Sound Contractors Association

National Labor Relations Board - Board Decisions

Dec 23, 1966

162 N.L.R.B. 364 (N.L.R.B. 1966)

364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
who approved of it-claims that manifestly run counter to the fact that he admit-
tedly expressed disapproval of the new program to Sachs (not to speak of the Gen-
eral Counsel's contention, in his brief, that Kissam, Lane, and Drew concertedly
"complained about the new rule"), and are not entitled to belief.
Taking these considerations into account, I see no reason to accept Kissam's claim
regarding the alleged restaurant discussion over Grillette's denial that he made the
remarks imputed to him; nor Kissam's account of his conversation with Grillette
regarding a "recommendation" over that given by Grillette. One need not be per-
suaded that Grillette is altogether a credible witness; it is enough that Kissam's rele-
vant testimony lacks the qualitative weight needed to support the finding the Gen-
eral Counsel seeks.
Finally, as in the case of the discharge, and for much the same reasons, the rec-
ord will not support a conclusion that the refusal to reemploy Kissam was unlawful.
To be sure, undisputed testimony by Kissam that he was rehired by Stardust about
7 years ago after quitting suggests a possibility that, contrary to what Sachs told
Kissam following the latter's discharge, Stardust has no "policy" that would preclude
his rehire, but at best this raises no more than a`suspicion that the "policy" excuse
was a pretext to conceal an unlawful motive for the refusal to reemploy Kissam.
Even if one assumes that the "policy" excuse was a pretext, one may as reasonably
believe, it seems to me, that it was a mask for continuing anger by Sachs toward
Kissam as to conclude that it concealed an unlawful purpose.
The sum of the matter is, for the reasons stated, that the record does not estab-
lish by evidence of preponderant weight that the Respondent violated the Act by
discharging Kissam, or refusing to reemploy him, or made any statements, through
Grillette, abridging any Section .7 rights of employees. Accordingly, I shall recom-
mend dismissal of the complaint.
CONCLUSIONS OF LAW
Upon the basis of the foregoing findings of fact, and the entire record in this
proceeding, I make the following conclusions of law:
1. The Company is, and has been at all material times, an employer within the
meaning of Section 2(2) of the Act.
2. The Union is, and has been at all material times, a -labor organization within
the meaning of Section 2(5) of the Act.
3. The evidence does not establish that the Company has engaged in the unfair
labor practices imputed to it in the complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and the
entire record in this proceeding, it is recommended that the National Labor Rela-
tions Board issue an order dismissing the complaint.
Sound Contractors Association 1 and International Brotherhood
of Electrical Workers, AFL-CIO, Petitioner . Case 28-RC-1446.
December 23, 1966
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9(c) of the National
Labor Relations Act, as amended, a hearing was held at Phoenix,
Arizona, on March 16, 1966, before Hearing Officer Roy H. Garner.
The Hearing Officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed. Thereafter, the Employer
filed a brief.
1 The name of the Employer appears as amended at the hearing.
162 NLRB No. 45.
SOUND CONTRACTORS ASSOCIATION 365
Upon the entire record in this case, including the Employer's brief,
the National Labor Relations Board finds :
1. The Employer is an Association of individual employers and is
engaged in commerce within the meaning of the Act.2
2. The Petitioner, and Communications Workers of America,
AFL-CIO, herein called the Intervenor, are labor organizations
claiming to represent employees of members of the Employer.'
3. The petition herein seeks an election in an Associationwide unit
of sound, signal, and television system installers, technicians, service-
men, and their helpers, employed by members of the Employer. The
Intervenor contended at the hearing that separate agreements which
it had previously executed with three of the six members of the
Employer, in contemplation of later Associationwide bargaining,
should be construed as barring the petition, and that therefore no
question concerning representation is raised by the petition. One
agreement contains only a bare recognition clause, and was executed
by the Intervenor and Nelson-Hershfield Electronics, a member of
the Employer, in October 1965. The remaining agreements, entered
into about the same time by the Intervenor and two other members
of the Employer, Lawrence Engineering Co. and Engineering Sound,
Inc., are not complete collective-bargaining contracts; for example,
they do not contain provisions which regulate the employees' wages
or hours. Nor do any of the agreements contain either definite termi-
nation dates or provisions which are sufficiently complete to stabilize
the bargaining relationship of the parties. Contrary to the Inter-
venor's contention, they acccordingly do not operate as a contract
bar to the present petition.4 Nor may these recognition agreements
be considered a bar within the Keller Plastics principle.5 Unlike the
situations in which that principle has been applied, it does not affirm-
atively appear in this case that the Employer extended recognition to
the Intervenor in good faith on the basis of a previously demon-
strated showing of majority and at a time when only that union was
actively engaged in organizing the unit employees. Accordingly, we
find that the petition herein was timely filed, and that a question
affecting commerce exists concerning the representation of certain
employees of the Employer, within the meaning of Sections 9(c) (1)
and 2(6) and (7) of the Act.
2 The individual employers belonging to the Association are Bruce's World of Sound,
Engineering Sound, Inc., Executone of Arizona, Inc., Lawrence Engineering Company,
Nelson-Hershfield Electronics , and National TV and Appliances, Inc.
8 The Intervenor was allowed to intervene in this proceeding on the basis of a showing
of interest.
4 Appalachian Shale Products Co., 121 NLRB 1160, 1163; Pacific Coast Association of
Pulp and Paper Manufacturers , 121 NLRB 990, 993.
5 Keller Plastics Eastern, Inc., 157 NLRB 583 ; Universal Gear Service Corporation, 157
NLRB 1169.
Member Fanning agrees that the recognition agreements do not operate as contract bars.
He finds Keller Plastics inapplicable to the facts of this case. Accordingly, he concurs in
the result.
366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. As stated, the petition seeks an Associationwide unit.
Nelson-Hershfield Electronics contends that it is not part of the
aforementioned unit: The first of its arguments is that it did not
give the Association general authority to deal with labor organiza-
tions representing its employees, but gave limited authority to deal
only with the Intervenor as such representative. There is adequate
corroborative evidence in the record, however, to show that this argu-
ment lacks merit, and that the Employer was fully authorized by its
members to deal with any labor organization representing the employ-
ees, and we so find.
Secondly, Nelson-Hershfield argues that in any event it withdrew
from the Associationwide unit in late February 1965. We have main-
tained a policy of allowing an employer to withdraw from a multi-
employer bargaining unit, provided the withdrawal is made at an
appropriate time, usually prior to the start of multiemployer negoti-
ations. Nelson-Hershfield Electronic's attempt to withdraw from the
Associationwide unit is clearly untimely; the attempted withdrawal
occurred more than 2 months after negotiations between the Employer
and the Intervenor commenced on an Associationwide basis and not
until after Nelson-Hershfield Electronics received notice of the pres-
ent petition. Therefore, we find that Nelson-Hershfield Electronics
was a member of the Employer when the petition herein was filed,
and remains such, despite its untimely attempt to withdraw from the
existing Associationwide unit .e
Accordingly, we conclude that the Associationwide unit requested
by the Petitioner, including Nelson-Hershfield Electronics, is an
appropriate one for the purposes of collective bargaining. We find
that the following employees of the Association' s members constitute
a unit appropriate for the purposes of collective bargaining within
the meaning of Section 9 (b) of the Act :
All sound, signal, and television system installers, technicians, serv-
icemen, and their helpers, including those engaged in the installation
and servicing of master antenna TV systems and hospital call sys-
tems, but excluding office clerical employees, guards , and supervisors
as defined in the Act.
[Text of Direction of Election omitted from publication.] T
[MEMBER JENKINS took no part in the above Decision and Direc-
tion of Election.]
6 Quality Limestone Products, Inc., 143 NLRB 587, 591.
7 An election eligibility list, containing the names and addresses of all the eligible
voters, must be filed by the Employer with the Regional Director for Region 28 within
7 days after the date of this Decision and Direction of Election . The Regional Director
shall make the list available to all parties to the election . No extension of time to file this
list shall be granted by the Regional Director except in extraordinary circumstances. Failure
to comply with this requirement shall be grounds for setting aside the election whenever
proper objections are filed . Excelsior Underwear Inc, 156 NLRB 1236.