Architectural Contractors Trade Assn.

National Labor Relations Board - Board DecisionsSep 30, 2004

343 N.L.R.B. 259 (N.L.R.B. 2004)

ARCHITECTURAL CONTRACTORS TRADE ASSN. 343 NLRB No. 39 259 Architectural Contractors Trade Association and Lo- cal 67, Operative Plasterers’ and Cement Ma- sons’ International Association of the United States and Canada, AFL–CIO and Local 9, In- ternational Union of Bricklayers and Allied Craftworkers, AFL–CIO. Case 7–RC–22466 September 30, 2004 DECISION ON REVIEW AND ORDER BY MEMBERS SCHAUMBER, WALSH, AND MEISBURG On July 9, 2003, the Regional Director for Region 7 issued a Decision and Order in which he found the peti- tioned-for multiemployer plasterers unit inappropriate and dismissed the petition. Pursuant to Section 102.67 of the National Labor Relations Board’s Rules and Regula- tions, the Petitioner filed a timely request for review of the Regional Director’s Decision and Order in which it argued that the Regional Director erred in finding that the Petitioner and the Employer intended to create single- employer units governed by a common collective- bargaining agreement. Instead, the Petitioner argues that the parties intended to create a multiemployer bargaining unit and that the petitioned-for coextensive unit is appro- priate. On September 17, 2003, the Board granted the Petitioner’s request for review solely with respect to the appropriateness of the petitioned-for multiemployer unit. The Petitioner filed a brief on review. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. After careful consideration of the entire record, includ- ing the Petitioner’s brief on review, we find, contrary to the Regional Director, that the petitioned-for unit is ap- propriate because the Petitioner and the Employer cre- ated and maintained a multiemployer bargaining unit.1 The Employer is a multiemployer association consist- ing of approximately 50 contractors employing over 2000 employees in different skilled trades. Of these 50 members, approximately 9 contractors employ plasterers. The Employer and the Petitioner have been in a collec- tive-bargaining relationship since 1985. In 1995, the individual members of the Employer signed powers of attorney delegating authority to the Employer’s prede- cessor, Detroit Association of Wall & Ceiling Contrac- tors, to negotiate and sign collective-bargaining agree- ments and to handle all matters pertaining to labor rela- tions, including handling and settling all labor controver- sies, disputes, and interpretations of collective- 1 See also Arbor Construction Personnel, Inc., 343 NLRB No. 38 (2004), which we have issued today involving the same unions and an analogous issue. bargaining agreements.2 The Petitioner and the Em- ployer were parties to an 8(f) agreement effective from June 1, 1997, through May 31, 1999. In 2000, the Peti- tioner and the Employer entered into a successor agree- ment, effective from August 1, 2000, through May 31, 2003 (2000 Agreement), and changed their relationship from one governed by Section 8(f) to one governed by Section 9(a).3 The 2000 Agreement referred to members of the Employer collectively as the “Employer” and con- tained the following recognition language: The Employer hereby recognizes Local 67 as the sole Collective Bargaining Agent for all journeymen and apprentice plasterers in the employment of the Employer with respect to wages, hours and other terms and conditions of employment on any and all work described in this agreement whenever possible. Each Employer, in response to the Union’s claim that it represents a majority of each Employer’s em- ployees acknowledges and agrees that there is no good faith doubt that the Union has been authorized to, and in fact does, represent such majority of em- ployees. The Employer agrees to recognize, in such case, the Plasterers & Cement Masons Local 67 as the ma- jority representative of its Employees pursuant to Section 9(a) of the Labor Management Relations Act. They are now or hereafter the sole and exclu- sive collective bargaining representatives for the employees in the bargaining unit with respect to wages, hours of work and all other terms and condi- tions of employment. The Regional Director found that the above-quoted recognition language evidenced an intent to create single- employer bargaining units. Finding no evidence to rebut the presumption of a single-employer unit, the Regional Director found the petitioned-for unit inappropriate. We disagree. A multiemployer bargaining unit is appropriate where “the employers involved have evidenced a clear intent to participate in multiemployer bargaining and to be bound by the actions of the bargaining agent.” Hunts Point Recycling Corp., 301 NLRB 751, 752 (1991). Where an employer is part of a multiemployer bargaining relation- ship governed by Section 9(a), a petition for a single- employer unit will not be entertained. See Casale Indus- tries, 311 NLRB 951, 952 (1993). However, to over- come the single-employer presumption and find a mul- 2 No party contends that any of the individual contractors have re- voked this power of attorney. 3 No party disputes that Section 9(a) governs the Employer’s and the Petitioner’s relationship. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD260 tiemployer bargaining unit appropriate, the Board re- quires more than the mere adoption of an areawide con- tract, which includes a “one unit” clause. See Schaetzel Trucking, Inc., 250 NLRB 321, 323 (1980); Gordon Electric Co., 123 NLRB 862, 863 (1959). Instead, the Board requires evidence of an unequivocal intent to be bound by group action manifested by either participation in the group bargaining or delegation of authority to an- other to engage in such bargaining. See Schaetzel Truck- ing, 250 NLRB at 323. Here, both the 1995 power of attorney and the 2000 Agreement evidence an unequivocal intent by the indi- vidual contractor-members of the Employer to be bound by group action over at least the past 9 years.4 The indi- vidual contractors explicitly delegated to the Employer the authority to engage in bargaining and to sign collec- tive-bargaining agreements. Further, some of the indi- vidual contractor-members of the Employer designated representatives to sit on bargaining committees to nego- tiate collective-bargaining agreements in past years. The express delegation of authority to the Employer and the individual contractors’ participation in group negotia- 4 We note that the Intervenor is also party to a multiemployer collec- tive-bargaining agreement covering at least some of the members of the Employer. tions provides sufficient evidence to overcome the sin- gle-employer presumption. That the 2000 Agreement provides for recognition under Section 9(a) only after majority status at each member employer is shown is not inconsistent with a multiemployer bargaining unit. See Painters (Northern California Drywall Contractors As- sn.), 326 NLRB 1074, 1079 (1998), quoting James Luterbach Construction Co., 315 NLRB 976, 979 (1994) (“Each of the employers has a Section 9 bargaining rela- tionship with the union, and the multiemployer group (consisting of those employers) has a Section 9 relation- ship with the union.”). In sum, we find that the petitioned-for multiemployer unit is appropriate in light of the existence of a control- ling history of multiemployer bargaining. Accordingly, we remand this case to the Regional Director for further action consistent with this Decision. ORDER The Regional Director’s Decision and Order is re- versed. This proceeding is remanded to the Regional Director for further appropriate action consistent with this Order.