Central New Mexico Chapter, National Electrical Contractors Association, Inc.

National Labor Relations Board - Board Decisions

Jun 15, 1965

152 N.L.R.B. 1604 (N.L.R.B. 1965)

1604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Central New Mexico Chapter, National Electrical Contractors-
Association , Inc.; and Represented Employers 1 and Interna-
tional Brotherhood of Electrical Workers , Local Union 611,
AFL-CIO, Petitioner . Case No. 28-RC-1199. June 15. 1965
DECISION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, as amended, a hearing was held before Hearing Officer
James W. Mast, of the National Labor Relations Board. The Hearing
Officer's rulings made at the hearing are free from prejudicial error
and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three-member-
panel [Chairman McCulloch and Members Fanning and Zagoria].
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. The Petitioner filed a petition for a Board certification in a multi--
employer unit represented by Central New Mexico Chapter, National-
Electrical Contractors Association, Inc., herein called the Chapter. In,
the alternative, it seeks clarification of the multiemployer unit repre-
sented by the Chapter. In view of the parties' prior bargaining history
and the fact that the Employer recognizes the Union as the majority
representative of its employees in the bargaining unit, which we find
below to be appropriate, we shall treat the petition herein as a petition
for clarification under Section 102.60(b) of the Board's Rules and
Regulations, Series 8, as amended, and shall determine the scope of the,
multiemployer unit represented by the Chapter.
4. The Petitioner would include within this unit members of the
Chapter, nonmembers who have signed letters of "Assent A," and New
Mexico Electric Construction Co., herein called NMECO, in the latter
case contending that NMECO and Gamblin Electric Company, a
member-signatory, constitute a single employer for unit purposes-
Alternatively, the Petitioner seeks the most inclusive multiemployer
unit, encompassing NMECO, which the Board finds appropriate.
The Employer contends that: (1) Individual firms do not grant to
the Chapter authority to represent them in collective bargaining by
virtue of their membership in that organization, and (2) signatories
to letters of "Assent A" have merely conferred upon the Chapter
1 The name of the Employer appears in the caption as amended at the hearing.
152 NLRB No. 145.
CENTRAL NEW MEXICO CHAPTER, ETC. 1605
authority to represent them in negotiations over changes in the par-
ticular collective-bargaining agreement referred to in the signed instru-
ment and the granting of such limited authority does not warrant a
finding that those signatories constitute a multiemployer unit for pur-
poses of collective bargaining within the meaning of the Act.
Further, Gamblin and NMECO contend that they do not constitute a
single employer for unit purposes and, as NMECO has never signed a
letter of "Assent A," that company is not part of any multiemployer
bargaining unit the Board may nevertheless deem appropriate.
..Accordingly, they urge that the petition herein be dismissed as to
NMECO.2
The record shows that the chapter, an association of employers in the
electrical industry, was organized in January 1951, primarily for the
purpose of bargaining collectively with labor organizations in the so-
^called Albuquerque, New Mexico, wage area. From its inception, it
has negotiated with the Petitioner and has executed several agree-
ments, the last on April 1, 1963. However, neither the Chapter's con-
stitution, nor its bylaws, expressly grants to the Chapter the authority
to represent its members in collective bargaining with the Petitioner.
Indeed, an express grant was omitted from the Chapter's bylaws, not-
withstanding a recommendation for its inclusion made by its national
office. Further, there is nothing in the history of bargaining between
the negotiating parties to warrant the inference that the Chapter pos-
sessed this authority, and the bargaining agreements themselves negate
such an inference. Prior to 1958, these agreements were executed by
the negotiating parties and adopted by the Chapter members. Subse-
quent thereto, while the format for negotiations remained the same, the
parties developed the attendant use of so-called letters of assent. Thus,
contracts since 1958 state that they are made by and between the
,Chapter
... on behalf of its members who employ workmen under the
terms and conditions contained herein, and have signed a Letter
of Assent to be bound by this Agreement for its duration as set
2 Gamblin also contends that the Board does not have jurisdiction over it , as the firm
was not served with a copy of a notice of hearing until after the hearing in this proceed-
ing had begun . Gamblin therefore urges that , as to it, the petition herein be dismissed.
The firm makes no contention or showing that it was prejudiced in any manner by having
failed to receive a copy of the notice of hearing prior to the first day of the hearing, nor
do we find prejudice thereby. Proper service was made upon the Chapter , as the repre-
sentative of a multiemployer bargaining unit to which Gamblin belongs , as hereinafter set
forth In view of the resulting agency relationship , we find that service upon the Chapter
constitutes adequate service upon Gamblin Moreover , the record shows that Gamblin
had actual notice of this proceeding and that two of its three officers, directors , and stock-
holders were present on the first day of the hearing in response to a subpoena duces tecum
issued by the Board. Further , the petition herein clearly designated employees who
were sought to be represented as those employed by a class of employers which included
Gamblin . We also find, on the basis of the entire record, that Gamblin's interests were
fully represented and that there was an opportunity to litigate all issues . Accordingly,
4Gamblin's motion to dismiss as to it is hereby denied.
1606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
forth below and Local Union 611, IBEW. It shall also apply to
other individual employers who employ workmen under the terms
of this Agreement and by virtue of signing a similar Letter of
Assent, authorize the... Chapter ... as their collective bargaining
agent for all matters contained herein or affecting this Agreement,
including all amendments or revisions adopted pursuant thereto.3
[Emphasis supplied.]'
Under the circumstances, we find that individual firms do not, by vir-
tue of their membership in the Chapter, grant to it the authority to act
as their representative in collective bargaining so as to warrant their
inclusion in a multiemployer bargaining unit.4
There are two forms of letters of assent in general use. They are
designated as "Assent A" and "Assent B." "Assent A" differs from
"Assent B" in that by signing the former, an individual firm agrees not
only to adhere to the provisions of the bargaining agreement, but also
designates the Chapter as its bargaining representative in the follow-
ing terms :
In signing this Letter of Assent the undersigned firm does hereby
authorize the ... Chapter ... as its collective bargaining repre-
sentative for all matters contained in this agreement or pertaining
to this agreement. This authorization to the ... Chapter .... shall
remain in effect until terminated by written notice to the parties
to the aforementioned agreement 30 days prior to the notification
date provided for therein.
The notification provision contained in the most recent agreement
between the Petitioner and the Chapter is as follows :
Either party desiring to change or terminate this Agreement must
notify the other in writing at least one hundred and twenty (120)
days prior to March 31, 1965, or March 31st of any year thereafter.'
As previously stated, the Employer contends that individual firms
conferred upon the Chapter only the limited authority to represent
signatories to letters of "Assent A" in matters relating to the specific
agreement referred to in the Letter of Assent. Such an interpretation
renders nugatory the above-quoted language contained in the Letter of
Assent pertaining to the termination of the Chapter's bargaining
authority, the clear meaning of which is to continue the authority
s Agreement between Central New Mexico Chapter of NECA , Inc, and International
Brotherhood of Electrical Workers, Local Union No. 611, AFL-CIO, dated April 1, 1963,
page 1.
4 Cf Hoisting & Portable Engineers Local Union #701 International Union of Operating
Engineers , AFL-CIO (Cascade Employers Association , Inc), 141 NLRB 469
5 Agreement between Central New Mexico Chapter of NECA, Inc, and International
Brotherhood of Electrical Workers Local Union No . 611, AFL-CIO, dated April 1, 1963,
article I , section 2.
CENTRAL NEW MEXICO CHAPTER, ETC. 1607
reposing in the Chapter to represent a signatory unless such authority
is expressly withdrawn 30 days prior to commencement of the negotia-
tion period provided by the basic agreement. Rather, we find, on the
basis of the entire record and especially in the light of negotiations
subsequent to 1958, that Chapter members and nonmembers alike have,
by signing a letter of "Assent A," delegated to the Chapter binding
authority to represent them in collective bargaining. Accordingly,
we find that such firms, except those which may have timely revoked the
authority granted in accordance with the terms of "Assent A," com-
prise a multiemployer bargaining group.6
5. As aforesaid, the Petitioner contends that Gamblin, a signatory
to letter of "Assent A," and NMECO constitute a single employer for
unit purposes and, therefore, NMECO is also part of the multiem-
ployer bargaining group although it has never signed a similar letter
of assent.
The record shows that for the past 5 or 6 years, Gamblin has been
engaged in the performance of commercial and industrial electrical
contracting work. Its three officers, directors, and stockholders are
Harry T. Gamblin, Robert E. Rodgers, and Edwin F. Wood. In Feb-
ruary 1963, these individuals organized NMECO, becoming the offi-
cers , directors, and stockholders of the new firm as well. The testimony
of these officials reveals that NMECO was organized for the purpose
of engaging in residential electrical contracting work. Formerly
Gamblin had performed this work. However, it had virtually aban-
doned such operations, finding it impractical to compete with non-
union contractors as a result of rising operating costs. Since June
1962, house wiring, performed for special friends on a nonbid basis,
has constituted less than one-half of 1 percent of Gamblin's total vol-
ume of business.
NMECO commenced operations in April 1963, as a nonunion
contractor under the direction of Nap Duran who was hired from the
outside to run the business. This individual is responsible for the day-
to-day management of NMECO's affairs. However, he occasionally
seeks the advice of the company's three officials, and the latter do not
deny their ultimate right of control over the company's affairs. Duran
bids on jobs and decides on the number of employees necessary to carry
on the firm's business and on the terms and conditions of their employ-
ment. NMECO maintains separate office and warehouse facilities
approximately 11/2 miles away from Gamblin. NMECO never hired
employees from Gamblin, nor is there any interchange of employees
between the two firms. In the first fiscal year of its operation, NMECO
6 Cf. Northern Nevada Chapter, National Electrical Contractors Association, et al., 131
NLRB 550.
1608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
grossed over $270,000, over 98 percent of which was derived from resi-
dential electrical contracting work and the performance of service
calls. The remainder represents commercial work performed on a non-
bid basis.
There is ample evidence in the record to support the conclusion that,
although Gamblin and NMECO are separate corporate entities, they
constitute a single employer under the Act. However, this single
employer determination does not necessarily establish that an employ-
erwide unit is appropriate, as the factors which are relevant in identi-
fying the breadth of an employer's operation are not conclusively
determinative of the scope of an appropriate unit.7 In the circum-
stances of this case, and particularly in view of the separate supervi-
sion of employees of the two firms, their separate location, the lack of
employee interchange, the absence of evidence showing functional inte
gration, and the fact that the labor policies of NMECO, a residential
contractor , are based on its own needs and are not dependent on those
of Gamblin, a commercial and industrial contractor, we conclude that
employees of NMECO do not have the same community of interest as
employees employed by Gamblin. We find, therefore, no warrant for
including NMECO in the multiemployer bargaining unit herein found
appropriate.
Accordingly, we find that the following employees of the individual
employers who have delegated authority to the Chapter to represent
them for purposes of collective bargaining constitute a unit appropri-
ate for purposes of collective bargaining within the meaning of Sec-
tion 9 (b) of the Act : 8
All licensed journeymen wiremen and their indentured apprentices
engaged in inside electrical construction work in Bernalillo, Santa Fe,
Torrance, Guadalupe, DeBaca, Quay, San Miguel, Mora, Harding,
Union, Colfax, Taos, Rio Arriba, Sandoval, Valencia, Socorro, Catron,
Sierra, Luna, Grant, Los Alamos, and Hidalgo Counties, and all San
Juan County, excluding the Navajo Indian Reservation; 9 but exclud-
7 Dixie Belle Mills, Inc. , etc., 139 NLRB 629, 630.
b The employers thus included in the multiemployer bargaining unit as signatories to
letters of "Assent A" a;e listed in the attached Appendix and made a part hereof. Seven
employers-Prokosch Electric Company, Brooks Electric , Determan Electric , Dunn Elec-
tric, Herkob Company, Inc., Service Electric , and Storey Electric-have apparently au-
thorized the Chapter to bargain for them . However, the Petitioner did not introduce into
evidence copies of letters of "Assent A" signed by these seven firms, as it had in the
case of those firms included in the multlemployer unit . Moreover , the Petitioner does
not contend that they are part of the multiemployer unit , and there is no evidence that
they have , either directly or through the Chapter , actually participated in multiemployer
bargaining. Prokosch Electric Company abandoned its contractual obligations with the
apparent consent of the parties to this proceeding . The remaining six firms are "travel-
ing contractors." Under the circumstances , we shall not include them.
9 The counties enumerated above comprise the geographical area set forth at page 19
of the April 1, 1963, agreement between the Petitioner and the Employer. The parties
agree that the geographical area thus described is appropriate for unit purposes.
OPERATIVE PLASTERERS & CEMENT MASONS, ETC. 1609
ing estimators, all other crafts, office clericals, guards, and super-
visors,10 as defined in the Act.11
15 Individual employers designate their foremen and general foremen from among the
journeymen employees referred to particular jobs pursuant to the hiring hall provisions
of the bargaining agreement here involved . These designations continue only for the
referral period, and , upon termination , the employees who served as foremen and general
foremen return to the hall and register as journeymen . The record indicates that there
Is a rapid and frequent change in the journeymen employees thus selected to serve as
foremen and general foremen . Consequently , we find that whatever supervisory authority
is exercised by employees acting either as foremen or general foremen is irregular and
sporadic and does not warrant a finding that such employees are excluded from the unit.
n The unit is set forth above substantially as amended at the hearing.
APPENDIX
The following employers are signatories to letters of "Assent A"
and constitute the multiemployer bargaining unit herein found
appropriate :
Bomur-Chauvin Kelly Electric Co.
Boone Electric Company Las Vegas Electric
Bowers Electric, Inc. McDowell Electric
Britt Electric Co. Mesa Electric Co.
Carnell Electric Modern Electric Co.
L. H. Chant Electric Co. Newbery Electric Corp.
City Electric Co., Inc. of Arizona
K. L. Conwell Electric Co. Powell Electric Corp.
Dawson Electric, Inc. Reno Electric Co.
Dee Electric Co. Reynolds Electrical &
Eagle Electric, Inc. Engineering Co.
Fulkerson Electric State Electric Co.
Gamblin Electric Company Titan Electric Service Co.
Grimes & Morris, Inc. Wearden Electric
Heights Electric Co. Yearout Electric Co., Inc.
Imperial Electric
Operative Plasterers and Cement Masons International Associa-
tion , Plasterers and Cement Masons , Local No. 65, and Dan
Gustafson 1 and Twin City Tile and Marble Company 2 and Tile
Layers Union No. 18 of the State of Minnesota, of the Brick-
layers, Masons and Plasterers International Union of America,
AFL-CIO; and Tile and Marble Setters Helpers, Twin City
Local 34, Marble, Slate and Stone Polishers , Rubbers and
Sawyers, Tile and Marble Setters Helpers , AFL-CIO: Case
No. 18-CD-36. June 15,1965
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding pursuant to Section 10 (k) of the National Labor
Relations Act, as amended, following a charge filed by Twin City Tile
1 The name of the Respondent Union, herein called the Plasterers , appears as amended
at the hearing.
2 Herein called Twin City or the Employer.
8 Herein called the Tile Layers.
152 NLRB No. 148.