I.T.O. Corp. v. National Labor Relations Board

818 F.2d 1108
CourtCourt of Appeals for the Fourth Circuit
DecidedMay 18, 1987
DocketNos. 86-3550, 86-3551, 86-3553, 86-3557 to 86-3559 and 86-3581
StatusPublished
Cited by1 cases

This text of 818 F.2d 1108 (I.T.O. Corp. v. National Labor Relations Board) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
I.T.O. Corp. v. National Labor Relations Board, 818 F.2d 1108 (4th Cir. 1987).

Opinion

FRANK A. KAUFMAN, Senior District Judge:

Steamship Trade Association of Baltimore, Incorporated (STA) and eight of its [1110]*1110employer-members1 appeal from a decision of the National Labor Relations Board (Board) in which the Board concluded that STA and those employer-members had unlawfully refused to bargain with Local No. 953, International Longshoreman’s Association, AFL-CIO (Union) and from the Board’s Order requiring STA and those employer-members to bargain with the Union. In turn the Board has cross-appealed, petitioning this Court for enforcement of its Order.

The members of STA are employers engaged in maritime commerce in the Port of Baltimore, Maryland. Those employers include steamship lines, steamship agents, stevedoring firms, terminal operators and service companies. Prior to 1982, STA engaged in multiemployer bargaining with the Union on behalf of its stevedore employer-members with regard to checkers, ship runners, ship planners and timekeepers. In 1982, the Union petitioned the Board to authorize the Union to represent certain clerical employees working for the stevedore employer-members of STA and to include those additional employees in the existing multiemployer bargaining unit. Following a representation hearing, the Board’s Regional Director concluded that certain of the employees whom the Union sought to include in the existing unit should not be so included because they were office clericals rather than so-called plant clericals, i.e. clericals whose work was closely related to the work of checkers, ship runners, ship planners and timekeepers. On the other hand, the Director determined that several of the additional employees the Union desired to add to the existing unit were plant clericals who worked sufficiently closely with the previously covered employees within the unit so as to have an identity of interests with those already covered employees. Accordingly, the Director granted the Union’s petition as to those latter employees and directed that an election be held. The Board affirmed the Regional Director’s Decision and Direction of Election, although the Board did determine that STA and two of the within employer-members, Maersk Container Service Corporation and Maher Terminals, Inc., had raised substantial issues with respect to the inclusion of two employees in the voting group. However, the Board permitted those employees to vote in the election, subject to challenge. In a Board-conducted election the additional plant clerical employees elected the Union to represent them as members of the existing bargaining unit. Thereafter, the Board certified the Union as the exclusive bargaining representative for those employees. The Board subsequently concluded that the two employees who had voted in the election subject to challenge should be included in the bargaining unit.

STA and three of the employer-members, ITO Corporation of Baltimore, Ceres Corporation, and Chesapeake Operating Company, do not employ any of the plant clerical employees so added to the existing bargaining unit. However, each of the employer-members does employ one or more persons who are represented by the Union and who are members of the existing unit.

Prior to 1982, STA and all of the eight employer-members had consented to bargain with the Union on a multiemployer basis. The said eight employer-members had also, prior to 1982, authorized STA to bargain on their behalf as to their employees who were members of the then-existing employee bargaining unit. However, promptly after the Union, in 1982, sought to represent the additional plant clericals, the Board of Directors of STA met and agreed that STA did not have authority to bargain with the Union as to any of the plant clericals whom the Union sought in 1982 to add to the existing bargaining unit. Further, none of the eight employer-members consented in 1982 to the inclusion in the bargaining unit of the added plant clerical employees.

[1111]*1111After the above-related election and certification, the Union filed an unfair labor practice charge with the Board, alleging that STA and the eight employer-members had unlawfully refused to bargain with the Union regarding the plant clerical employees who had been added to the existing unit. In 1986, the Board granted summary judgment in favor of the Union and ordered STA and the employer-members herein to bargain with the Union. In so doing, the Board noted that the newly added employees shared a sufficient community of interest with the employees in the existing bargaining unit and that, since the employers had previously consented to bargain with the Union on a multiemployer basis with STA acting as their representative, the said employers were obligated to bargain with the Union with regard to the additional employees. In this Court’s view, the Board, in so doing, correctly construed and applied appropriate legal principles.

“It is axiomatic that the basis for multiemployer bargaining units is the parties’ consent to be bound by group bargaining.” Arden Electric Co., 275 NLRB 654, 656 (1985). That view has been approved by the Supreme Court in Charles D. Bonanno Linen Service v. NLRB, 454 U.S. 404, 412, 102 S.Ct. 720, 725, 70 L.Ed.2d 656 (1982), in which Justice White wrote:

We agree with the Board and with the Court of Appeals. The Board has recognized the voluntary nature of multiemployer bargaining. It neither forces employers into multiemployer units nor erects barriers to withdrawal prior to bargaining. At the same time, it has sought to further the utility of multiemployer bargaining as an instrument of labor peace by limiting the circumstances under which any party may unilaterally withdraw during negotiations.

There is a difference between the formation of a multiemployer bargaining unit, on the one hand, and the expansion of an already existing unit, on the other hand. Further, once a multiemployer bargaining unit is in existence, withdrawal from it is somewhat circumscribed.

Any party to a bargaining unit may withdraw prior to the date set for negotiation of a new contract or the date on which negotiations begin, provided that adequate notice is given. Once negotiations for a new contract have commenced, however, withdrawal is permitted only if there is “mutual consent” or “unusual circumstances” exist.

Charles D. Bonanno Linen Service, Inc. v. NLRB, 454 U.S. 404, 410-11, 102 S.Ct. 720, 724, 70 L.Ed.2d 656 (1982), citing with approval Retail Associates, Inc., 120 NLRB 388, 395 (1958). Thus, an impasse in bargaining does not justify unilateral withdrawal by an employer in a multiemployer bargaining unit. Id. 454 U.S. at 412-19, 102 S.Ct. at 725-29. In addition, once a multiemployer bargaining unit is in existence, each employer member of that unit is, absent a valid timely withdrawal therefrom, required to bargain with the Union with regard to all employees who have been appropriately added to the existing unit. In other words, once an employer has consented to bargain on a multiemployer basis, that employer cannot limit its consent to the original employees in the unit. Rather, it is the Board which determines the appropriate composition of the unit once that unit has been consensually created by its employer members.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
818 F.2d 1108, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ito-corp-v-national-labor-relations-board-ca4-1987.