The Hammet Co., Inc.

National Labor Relations Board - Board Decisions

Oct 30, 1973

206 N.L.R.B. 679 (N.L.R.B. 1973)

THE HAMMET COMPANY, INC. 679
The Hammet Company, Inc. and Laborers' District
Council of Charleston , West Virginia and Interna-
tional Union of Operating Engineers, Local No. 132,
AFL-CIO and Local Union No . 175, a/w The Inter-
national Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America and West
Virginia State Council of Carpenters . Case 9-
RC-10146
October 30, 1973
DECISION AND DIRECTION OF ELECTION
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND PENELLO
Upon a joint petition duly filed under Section 9(c)
of the National Labor Relations Act, as amended, a
hearing was held before Hearing Officer Robert J.
Smith of the National Labor Relations Board. Fol-
lowing the close of the hearing the Regional Director
for Region 9 transferred this case to the Board for
decision. Thereafter, the Employer and the Joint Peti-
tioners filed briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has reviewed the Hearing Officer's rul-
ings made at the hearing and finds that they are free
from prejudicial error. They are hereby affirmed.
Upon the entire record in this proceeding, 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 organizations involved claim to repre-
sent certain employees of the Employer.
3. The Employer contends that an agreement be-
tween the West Virginia Contractors Bargaining As-
sociation, Inc. (herein called the Association), and the
United Steelworkers of America, AFL-CIO (herein
called Steelworkers), is a bar to an election in this
case, and therefore no question concerning represen-
tation of employees exists within the meaning of Sec-
tions 9(6)(1) and 2(6) and (7) of the Act.
The Association is a corporation formed solely for
the purpose of negotiating and administering collec-
tive-bargaining agreements on behalf of its contrac-
tor-members engaged in the business of heavy or
highway construction in the State of West Virginia.
The Association negotiated an agreement with the
International Union of District 50, United Mine
Workers of America (herein called District 50), on
January 1, 1967, and again on January 1, 1970, on
behalf of its contractor-members. In August 1972,
prior to the December 1972 termination date of the
second agreement, Steelworkers took over adminis-
tration of the agreement by virtue of its merger with
District 50 and an amendment reflecting the substitu-
tion was executed by the Association and Steelwork-
ers. On December 14, 1972, the Association entered
negotiations with Steelworkers and on or about Janu-
ary 26, 1973, the parties reached an agreement in
principle.' However, the agreement was not finally
reduced to writing and signed until May 1973.
In early February 1973, Employer, having recently
been awarded a contract for reconstruction of a sec-
tion of the West Virginia turnpike, contacted the As-
sociation and discussed the' possibility of becoming a
member .2 On February 10, the Employer requested
membership in the Association. Sometime thereafter
the Association's executive secretary, Steve Weber,
mentioned the prospect of the Employer's joining the
Association to Paul Rusen, region 9 subdirector of
Steelworkers. At that time Rusen indicated that he
wanted time to check into the matter and that there
might be a problem. A day or two later Rusen orally
advised Weber that Steelworkers would not sign a
contract with any company, such as Hammet, which
had not had a prior contractual relationship with Dis-
trict 50. Weber subsequently communicated this in-
formation to the Employer.
On March 6, the Association favorably acted upon
the Employer's application for membership and, on
March 15, Hammet executed an "authorization"
agreeing to bind the Employer to the agreement of
January 1973 between the Association and Steelwork-
ers. On March 19, Weber notified Rusen that the
Hammet Company had become a member of the As-
sociation.
By written reply dated March 23, Rusen replied to
Weber advising him that Steelworkers would not rep-
resent the employees of the Hammet Company.' On
i On October 16, 1972, a petition for a representation election was filed on
behalf of five craft unions , including two of the petitioners herein, for a unit
comprised of all employees of the Association members. On October 26,
Steelworkers notified the Association of its desire to modify the expiring
agreement and meet for negotiations . On November 7, the Association de-
nied this request pending resolution of the aforementioned petition. As a
result of discussions between Steelworkers and the petitioning craft unions,
the craft unions agreed to withdraw their petition in return for Steelworkers
promise not to extend its jurisdiction and that it would decline to represent
employees of any company which had not had a previous contract with
District 50 Thereafter, Steelworkers assured the Association that the repre-
sentation matters had been resolved among the unions involved . Subsequent-
ly, the petition was withdrawn and negotiations for a new contract began on
December 14.
Z This project designated as No. 1-77-2(23), 20, C-1 in Mercer County,
West Virginia, is the first contract which the Employer has had in West
Virginia.
s In May, the Employer forwarded to Steelworkers membership authoriza-
tion cards , dues-checkoff authorization cards , a check in payment of Steel-
Continued
206 NLRB No. 56
680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
May 16, the Joint Petitioners filed -their petition 'and
the Employer continues to decline to recognize the
Joint Petitioners.
The Employer contends that the Steelworkers re-
fusal to recognize the Hammet Company as a party
to the current contract constitutes no more than an
attempted withdrawal as to an individual member of
the multiemployer bargaining association . Further,
the Employer argues that the attempted withdrawal
was untimely and therefore ineffective, and that Steel-
workers is bound by the contract to all members of
the Association, including the Employer.
The Joint Petitioners contend that joining an asso-
ciation does not necessarily make an employer a part
of a preexisting multiemployer unit, for a particular
employer can become part of an established multiem-
ployer unit only if the already committed parties agree
to the newcomer's participation. We agree.
In our view, the crucial question is whether the
evidence shows that Steelworkers acquiesced in the
Hammet Company's participation in the multiem-
ployer unit, for as we have long held, such- acquies-
cence is essential to make an employer a part of an
existing association multiemployer unit 4 As to the
workers ' initiation fee, and a check for $1,941 30 representing hourly employ-
ee contributions under the health and welfare provision In June , the Em-
ployer forwarded additional cards and moneys to the Steelworkers, all of
which are being held by Steelworkers pending the outcome of this case
4 See, e.g., Shreveport-Bossier Cleaners & Laundries, Inc., 124 NLRB 534,
536, Alton-Wood River Building and Construction Trades Council, 144 NLRB
present record, it is undisputed that Steelworkers has
declined to accept the Employer as a member of the
multiemployer unit from the first time it was informed
of the Employer's application. Therefore, the Em-
ployer, despite its association membership, never be-
came a member of the multiemployer bargaining unit.
Accordingly, we cannot find that the agreement be-
tween Steelworkers and the Association is a bar to the
instant representation petition .1
Accordingly, we find that a question affecting com-
merce exists concerning the representation of certain
employees of the Employer within the meaning of
Section 9(c)(1) and Section 2(6) and (7) of the Act.
4. The appropriate unit: The parties stipulated and
we find that the following employees constitute a unit
appropriate for the purpose of collective bargaining
within the meaning of Section 9(b) of the Act:
All employees of the Employer on its highway
construction project No. I-77-2(23), 20, C-1 in
Mercer County, West Virginia, excluding all of-
fice clerical employees, professional employees,
guards and supervisors as' defined in the Act.'
[Direction of Election and Excelsior footnote
omitted from publication.]
260, cf. Sangamo Construction Company, 188 NLRB 159.
5 In view of this conclusion , we do not reach the Joint Petitioners ' alternate
contention that the Association 's agreement with Steelworkers constitutes a
prehire agreement as to the employees of the Employer.
6 The parties further stipulated and we find that employees Pair, Manke,
Sims, and Shelton are supervisors as defined in sec. 2(11) of the Act in that
they have the authority to hire or fire employees or effectively recommend
such action.
1