The Cement League of New York

National Labor Relations Board - Board Decisions

Feb 3, 2016

02-RC-154016 (N.L.R.B. Feb. 3, 2016)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
THE CEMENT LEAGUE1
Employer
and Case 02-RC-154016
NEW YORK AND VICINITY
DISTRICT COUNCIL OF CARPENTERS
Petitioner
ORDER
The Employer’s Request for Review of the Regional Director’s Decision and Direction of
Election is denied, as it raises no substantial issues warranting review.
MARK GASTON PEARCE, CHAIRMAN
KENT Y. HIROZAWA, MEMBER
Dated, Washington, D.C., February 3, 2016.
Member Miscimarra, dissenting:
I would grant review of the Regional Director’s decision to direct an election in the
petitioned-for multiemployer unit for purposes of Section 9(a) representation. In my view, the
Cement League (Employer), a multiemployer association, raises substantial issues warranting
review regarding whether its members had the requisite intent to engage in multiemployer
bargaining under Section 9(a) of the Act.
The Cement League and the Carpenters Union had a 28-year history of multiemployer
bargaining for only Section 8(f) agreements. Upon expiration of the most recent 8(f) agreement,
the Employer declined to extend multiemployer 9(a) recognition to the Union and commenced in
renewed multiemployer bargaining before the Union filed its petition. Under these
circumstances, the League, and its individual members, had every expectation that they were
bargaining only for an 8(f) agreement—as they had for the past 28 years. Although it is well
settled that any member-employer could have withdrawn from the League at the expiration of the
existing 8(f) contract, none did so, presumably with the expectation that the League would
negotiate another 8(f) agreement. There is no persuasive evidence that any of the League’s
members agreed to take part in multiemployer 9(a) bargaining.
In John Deklewa & Sons, 282 NLRB 1375 (1987), enfd. sub nom. Iron Workers Local 3
v. NLRB, 843 F.2d 770 (3d Cir. 1988), cert. denied 488 U.S. 889 (1988), the Board explained the
fundamental and significant distinctions between 8(f) and 9(a) relationships and agreements.

1 The Employer’s name appears as corrected.
Although the Board has established certain bargaining duties for a multiemployer association and
union bargaining for a renewed 8(f) agreement, see, James Luterbach Construction Co., 315
NLRB 976 (1994), the Board has never addressed the circumstances presented here, where a
multiemployer association with a long history of 8(f) agreements with the union is suddenly
compelled to engage in bargaining, without its express consent, for a 9(a) agreement. In light of
the significant differences between 8(f) and 9(a) agreements, I would grant review to consider
whether the bargaining principles articulated in Luterbach, or some other principles, would best
effectuate the purposes of the Act under these circumstances.
PHILIP A. MISCIMARRA, MEMBER
Dated, Washington, D.C., February 3, 2016