Bill's Cabinet Shop

National Labor Relations Board - Board Decisions

Aug 27, 1980

251 N.L.R.B. 1586 (N.L.R.B. 1980)

1586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bill's Cabinet Shop and Albert E. Chavez and 11
Southern California Counties Mill Conference,
Party to the Contract, and The Southern Cali-
fornia Association of Cabinet Manufacturers,
Party to the Contract. Case 31-CA-8868
August 27, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND TRUESDALE
On May 21, 1980, Administrative Law Judge
Russell L. Stevens issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and the In-
tervenor, Carpenters Local Union No. 743, filed a
brief in opposition to the General Counsel's excep-
tions.
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 considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions2 of the Administrative law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby
is, dismissed in its entirety.
X We agree with the result in this case, but d not rely on the Adminis-
trative Law Judge's discrediting of the testimony of employer Penell and
employees Chavez and Moreno concerning their "alleged conersation of
January 22." We view the three-way conversation as inherentlb credible
in the context of a new employer, but insufficient to overcome the fact
that Chavez and Moreno remained. respectively, union member and an
applicants for membership on the critical dates, when a unit of Respond-
ent's employees consisted of the two.
I We correct the Administrative Law Judge's Decision at sec III.C,
par. 4, by amending the last sentence to read "Only after Respondent
was a member of the Association, beginning January 25, and had signed
the union contract, on February 9. was the majority of the entire unit
relevant." Also, in this connection, see Tahoe Nugget, Inc.. 227 NLRB
357 (1976), where the Board said: "Unless a majority of an employer's
employees desire representation by a union, an employer cannot lawfully
force representation on them by joining a multiemployer bargaining
unit."
DECISION
STATEMENT OF THE CASE
RUSSELL L. STEVENS, Administrative Law Judge: This
case was heard in Bakersfield, California, on March 27,
251 NLRB No. 212
1980.' The amended complaints is based upon an origi-
nal charge filed on March 28 and an amended charge
filed April 23 by Albert E. Chavez, an individual. The
complaint alleges that Bill's Cabinet Shop (herein called
Respondent) violated Section 8(a)(1), (2), and (3) of the
National Labor Relations Act, as amended (herein called
the Act).
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally, and to file briefs. Briefs,
which have been carefully considered, were filed on
behalf of the General Counsel and the Intervenor. 3
Upon the entire record of the case, and from my ob-
servation of the witnesses and their demeanor, I make
the following:
FINI)INGS OF FACT
I. T1HI BUSINESS Ol RESPONDI)'NI'
Respondent is, and at all times material herein has
been, a sole proprietorship with an office and principal
place of business located in Bakersfield, California,
where it is engaged in the manufacture and sale of cabi-
nets. In the course and conduct of its business operations,
Respondent annually purchases and receives goods or
services valued in excess of $50,000 directly from suppli-
ers located outside the State of California.
I find that Respondent is, and at all times material
herein has been, an employer engaged in commerce and
in a business affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
1. IHIE IABOR ORGANIZATIONS INVOIVlE)
United Brotherhood of Carpenters and Joiners of
America, Local 743, AFL CIO, is, and at all times mate-
rial herein has been, a member of a joint labor organiza-
tion referred to as eleven Southern Caifornia Counties
Mill Conference, herein called the Mill Conference,
which, in addition to Local 743, is comprised of Local
Unions 1062, 1632, 721, 2477, 2288, 2172, 1959, 300, and
1407, affiliates of the United Brotherhood of Carpenters
and Joiners of America, AFL-CIO, and Local Union
No. 1798, Brotherhood of painters and Allied Trades,
AFL-CIO, for and on behalf of District Council of
Painters, Locals 36, 48, and 52.
The organizations described above are, and at all times
material herein have been, labor organizations within the
meaning of Section 2(5) of the Act.
All dates hereinafter are in 1979 unless stated to be otherwise
2 The original complaint was issued Ma 3.
a At the hearing, the Administrative Lasd Judge granted a motion by
United Brotherhood of Carpenters and Joiners of America. Local 743.
AFL-CIO (herein called the Union) to intervene herein
BILL'S CABINET SHOP 1587
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background4
Prior to January 16, the owner of Respondent was
William Huffman,5 who sold the business to William
Pennel on that date. Pennel was one of Huffman's em-
ployees for 3 or 4 years prior to Pennel's purchase of
Respondent. Pennel's purchase included tools, inventory,
and a contract to build cabinets for a housing project
being constructed by HUD. The business did not close
its doors during the change of ownership,s the nature of
the business remained the same, the name of the business
was not changed, and the same premises were used for
Respondent's business under a lease originally executed
by Huffman. 7
When Huffman owned the business, he was a member
of the Southern California Association of Cabinet Manu-
facturers (herein called the Association), a voluntary as-
sociation of employers with its headquarters located in
Los Angeles, California. The Association admits to mem-
bership firms engaged in residential cabinet, school cabi-
net, and full mill manufacturing, laminated fabricating,
and cabinet finishing industries in various counties in
California, including the counties of Los Angeles, Inyo,
Mono, Orange, Riverside, San Bernardino, Imperial,
Ventura, Santa Barbara, San Luis Obispo, and Kern, and
exists, in part, for the purpose of bargaining with labor
organizations concerning rates of pay, wages, hours of
employment, and other terms and conditions of employ-
ment of employees employed by its regular employer-
members.
The Association is authorized by its regular employer-
members to act as their agent for the purpose of negoti-
ating and executing collective-bargaining agreements
with labor organizations. At times material herein, i.e.,
from August 1, 1977, through July 31, 1980, the Associ-
ation and the Mill Conference were parties to a collec-
tive-bargaining agreement covering the following unit:
All employees performing work in the eleven
Southern California counties, more particularly de-
scribed as the counties of Los Angeles, Inyo, Mono,
Orange, Riverside, San Bernardino, Imperial, Ven-
tura, Santa Barbara, San Luis Obispo and Kern, in
the classification listed in Exhibit "A" [of the agree-
ment] with the exclusion of employees covered by
other valid labor agreements of differing jurisdic-
tions and administrative, professional and supervi-
sory personnel, as defined by the National Labor
Relations Act, as amended.
After Pennel purchased Respondent, Huffman re-
mained in the shop for a week or so to familiarize Pennel
with the business. During that period of time, Huffman
advised Pennel that he, Huffman, had been a member of
the Association, and he told Pennel that he, too, should
4 This background summary is based upon credited testimony and evi-
dence not in dispute, including the stipulation of facts in evidence as G C.
Exh. 2
s Individuals are referred to herein by their last names.
The fact that Pennel is a successor of Huffman was stipulated by
counsel at the hearing
I Respondent no longer is in business.
join the Association. On January 5 Earl Putnam, execu-
tive vice president of the Association, went to Respond-
ent's shop and talked with Pennel, who on that day, Jan-
uary 25, signed an application for membership in the As-
sociation. 8 Respondent was accepted as a member and
for 3 months thereafter paid regular membership dues.
Approximately in early February Pennel called Larry
McKenzie, a union business agent, on the telephone.
McKenzie later visited Respondent's shop, and on Febru-
ary 9 Pennel and McKenzie signed the union contract9
negotiated by the Association and the Union.' °
When Pennel took the business over from Huffman, he
hired the only two employees Huffman then had. Those
employees were Albert Chavez, who had worked for
Huffman since 1974, and Gary Moreno, who had worked
for Huffman since 1978. As of the date of purchase,
Chavez was a member of the Union, and the Union's re-
cords show'I that Cnavez paid union dues from March
23, 1976, through January 30, 1979. The Union's records
also show that Moreno applied for membership on Janu-
ary 2, which was prior to Pennel's purchase of the busi-
ness on January 16, and started paying his initiation fee
that day. Union rules provide that membership is effec-
tive upon completion of payment of the initiation fee,
and Moreno became a union member on February 23.
Pennel expanded and diversified the business, and
hired two new employees. Steven Pennel, Pennel's youn-
ger brother, was hired February 18, and Rick Pratt was
hired on February 21.
Penell paid dues to the Association through April, but
then discontinued and did not pay dues in May and
June.' 2 In July Putnam talked with Pennel on the tele-
phone and thereafter, Respondent resigned its member-
ship with the Association. The resignation was effective
June 30.
B. The Situation as of February 9
When Respondent and the Union signed the union
agreement on February 9, Respondent was a dues-
paying, regular member of the Association. The Associ-
ation's by-laws provide, inter alia, that Respondent is
bound by the provisions of all contracts the Association
enters into with the Union. Pennel testified that, when
G.C. Exh. 4
9 The union contract referred to herein is the contract negotiated by
the Association and the Mill Conference.
I' G.C Exh. 5.
" Intervenor's Exh. I.
' Pennel's action to withdraw from the Association did not occur
until after the charge and amended charge were filed herein.
' The union contract provides, inter alia:
Section 4: UNION MEMBERSHIP
(a) As a condition of employment every employee included in the
operations as set forth and wage rated in Exhibit "A," attached
hereto, shall be or become and remain a member in good standing of
the Local Union of the United Brotherhood of Carpenters and Join-
ers of America. AFL-CIO, or the International Brotherhood of
Painters and Allied Trades, AFL-CIO, as applicable, located in the
geographic area in which he is employed on and after the thirty-first
(31st) day of employment or on and after the thirty-first (31st) day of
this Agreement, whichever is later. If any employee fails to comply
with this, upon official written notification by the Local Union to
the individual Employer involved, he shall be terminated. There
Continued
BILL'S CABINET SHOP
1588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he signed an application for Association membership, he
did not know what the Association did, nor did he know
that the Association engaged in collective bargaining
with the Mill Conference, but that he later learned the
latter fact and thereafter began his effort to resign from
the Association. This testimony by Pennel is given no
credence. Pennel is a man of lengthy experience in the
trade, had worked 3 or 4 years for Huffman, and had
possessed enough business acumen to acquire a going
concern with an outstanding $50,000 contract, expand
and diversify the business, and double the employees
from two to four within a short period of time. Pennel
discussed the Association separately with Huffman and
Putnam and thereafter applied for membership in the As-
sociation. The record does not show the nature of Pen-
nel's discussions with Huffman and Putnam, but his testi-
mony that he signed a membership application without
knowing what the Association did is not convincing.
As of February 9 Respondent had two employees; i.e.,
Chavez and Moreno. Chavez admittedly was a union
member at that time, and Moreno had applied for mem-
bership. Moreno did not become a member until Febru-
ary 16, a week after Respondent signed the union con-
tract, but there is no testimony or evidence to show that
he attempted to, or did, withdraw his application for
membership or otherwise approach the Union about his
application.
C. The Union's Majority Status
Based upon Chavez' union membership as of February
9, and upon Moreno's relationship with the Union as an
applicant for membership as of that date, it is apparent
that the Union then had a majority since there were no
other employees.
There is nothing in the record to indicate that Pennel
did not know what he did when he signed the union
contract. To the contrary, Respondent made payments to
the Union's trust fund after the contract was signed. 4
The Intervenor argues that Chavez was a supervisor,
and that the complaint should be dismissed because
"Board Procedures do not contemplate an employer's
filing a charge against himself." The testimony indicating
Chavez' possible supervisory status was not denied, but
that testimony was too meager and inconclusive, and too
doubtful, to provide the basis for a finding. As of Febru-
ary 9 Respondent had two employees plus the owner. If
Chavez had been a supervisor, the result would be two
supervisors for one employee, which does not seem to be
a likely situation. Further, Chavez was not a convincing
witness, and some of his description of his authority is
not credited. It is found that Chavez was a rank-and-file
employee, not a supervisor.
The Intervenor also argues that the appropriate unit is
the multiemployer unit in which the Union enjoyed an
undisputed majority. However, that argument begs the
shall be no other limitation of the individual Employer as to whom
he shall employ, continue in employment or discharge, except as
provided for in this Agreement. For purposes of this Agreement,
"member in good standing" is defined to mean an employee who
tenders uniform initiation fees and current months' regular union
dues
" This statement derives from Pennel's testimony.
question. The complaint alleges that Respondent violated
the Act by becoming a member of the Association when
the Union did not represent a majority of Respondent's
employees. Thus, the question is whether or not the
Union represented a majority of Respondent's employees
as of January 25, since the relevant majority is that of
Respondent's employees at that time.t 5 Only after Re-
spondent was a member of the Association was the ma-
jority of the entire unit relevant.' 6
It is found above that as of January 25 and February 9
Respondent's employees were represented by the Union.
Chavez and Moreno had not disavowed their union af-
filiation as of either date, and, further, both of them re-
tained that affiliation beyond February 9. Thus, whether
or not the two employees no longer wanted the Union to
represent them, Respondent was bound by its contracts
with the Association and with the Union. t No 8(a)(2)
violation was involved when Respondent signed con-
tracts with the Association and the Union.
D. Respondent's Attempt To Avoid the Union
Contract
The General Counsel contends that Pennel did not
know what he was doing when he joined the Associ-
ation, and that he placed the employees in the position of
joining the Union against their will. As pointed out
above, it is clear that Pennel was fully aware of what he
was doing when he joined the Association. His later
withdrawal from the Association was not occasioned, so
far as the record shows, by his sudden realization that he
acted in ignorance when he joined. He made no such
representation to Putnam, nor to anyone else, so far as
the record shows.
Pennel testified that he called McKenzie on the tele-
phone "about the benefits that I got a bill for," and that
McKenzie replied "I will come out and explain it."
McKenzie testified differently, and stated:
A few days before I went out there, he called me
on the telephone and informed me that he had pur-
chased Bill's Cabinet Shop, and he also talked at
that time of some health and welfare problems of
his own.
Q. And did you suggest to him at that time that
he should sign a union contract?
A. No, sir. He informed me that he wanted to do
everything right, and he wanted to sign an agree-
ment with me.
Q. Did you ever inform Mr. Pennel that he was
bound to the contract of Mr. Huffman?
A. Yes, I believe I did.
McKenzie was a straightforward, convincing witness,
and he is credited.
Pennel testified that, when he saw a bill from the
Union for benefit payments, he knew that Huffman had
15 Mohawk Business Machines Corporation. 116 NLRB 248, 249 (1956);
Dancker & Sellkt. Inc.. 140 NLRB 824 (1963), enfd 330 F 2d 46 (2d Cir
1964).
16 Sheridan Creations. Inc., 148 NLRB 1503 (1964), enfd. 357 F.2d 245
(2d Cir 1966), cert denied 385 U S. I(X)5 (1967)
7 Sheridan Creations. Inc.. upra.
BILL'S CABINET SHOP 1589
had a contract with the Union. As of the time Pennel
signed the union contract, he was making regular dues
payments to the Association. It would be unreasonable to
conclude that Pennel inadvertently or erroneously signed
the union contract. It is apparent that he willingly and
knowingly signed it.
So far as Chavez and Moreno are concerned, it is clear
that they went to the Union prior to Pennel's purchase
of the business. The General Counsel contends that, at
some point after Pennel became the owner, and for rea-
sons not shown, Chavez and Moreno changed their
minds, and decided they did not want to be union mem-
bers. In an endeavor to support their contention that
they were opposed to union membership, Chavez and
Moreno, supported by Pennel, testified to a conversation
of January 22 among the three of them. According to
Pennel:
THE WirNSS: All right. Exactly what happened
was, there was a form there for health and welfare
benefits for Albert E. Chavez. It was left there by
the old owner. I brought it out and put it in front of
them and asked them what they wanted to do about
this. I didn't know exactly what it was about, be-
cause he had not explained it to him, the owner
didn't. Chavez said at this time, "That is the Union
benefits. That is if you join the Union, and I don't
want to be in the Union."
Moreno was not in the Union [at] this time, and
he said he didn't also want to be in the Union. So I
said, "Okay, I will agree with you," and that is all
that was said at that meeting.
Pennel said that he thereafter signed the union contract.
According to Chavez:
THE WITNESS: . . . Well, I walked in and I said,
"Bill, I don't want to get back in the Union," and
he said, "Fine," you know. He agreed, because I
told him all about it; that I did not like it, the way
they were running things, so he said, "Fine," he
will get out of it.
Q. What made you go in and tell Mr. Pennel you
did not want to be in the Union?
A. Well, I knew the contract would have to be
redone with him coming in the Shop, and for what
I have known, it was possible that we could prob-
ably get out this way.
According to Moreno:
THE WITNESS: . . . We were in the office at the
time, and we brought the question up in front of
Mr. Pennel, and we discussed it; that we definitely
did not want to be in the Union.
BY MR. BAII:
Q. Did you state that yourself'?
A. Yes, I did.
Q. Did you say that to Mr. Pennel?
A. Yes.
Q. After that conversation, did you become a
union member?
A. Yes, I did.
E. Discussion
There is no evidence that Chavez or Moreno, or any
other person, ever revoked or attempted to revoke, prior
to February 9 or at any other time relevant herein, their
representation by the Union. The Union was entitled to,
and did, rely upon the membership of Chavez and the
application of Moreno and his part payment of the initi-
ation fee as indication that the Union represented those
two employees when it signed a contract with Respond-
ent. Further, at the time the contract was signed, it was
entered into as a normal transaction by the Union and by
Respondent free of duress or misrepresentation. Regard-
less of any event that may have occurred after February
9, the contract was valid and binding between the parties
for the term of its existence. 18
Because of the manner in which this controversy was
presented, and based upon the testimony of the wit-
nesses, there is doubt concerning the conversation among
Pennel, Chavez, and Moreno alleged to have occurred
on January 22. However, assuming, arguendo that the
conversation did occur, it could not, standing alone,
have any effect upon the Union's status as representative
of the two employees. Until the employees revoked that
representative status, it remained as a fact. Merely telling
Pennel that they did not want to "be in the Union"
would not alter their existing status as union member and
applicant for membership. Until some revoking action
was taken by Chavez and Moreno, Pennel was entitled
to treat the two employees as being represented by the
Union. In any event, the failure of the two employees to
say anything to the Union prior to February 9 concern-
ing their representation by the Union and their continued
payment of dues supports the conclusion that they had
not repudiated the Union. The testimony of Pennel,
Chavez, and Moreno relative to the alleged conversation
of January 22 is not credited. Thus, Pennel's entering
into a contract with the Association on January 25, and
with the Union on February 9, did not constitute viola-
tions of the Act as alleged.
Finally, as pointed out by the Intervenor, there is a
presumption of union majority status of Respondent's
employees, arising from the successor relationship of
Pennel to Huffman, and the General Counsel did not
rebut that presumption by a preponderance of the evi-
dence. 9
CONCI.USIONS OF LAW
1. Bill's Cabinet Shop is, and at all times material
herein has been, engaged in commmerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Mill Conference and the Union are, and at all
times material herein have been, labor organizations
within the meaning of Section 2(5) of the Act.
l, Respondenl's withdraal from Ihe Associali, n is not in issue
~ Roman Catholic Dioceic of BrnxAln, et al, 222 NL.RB 1052 (1976):
Band-.lge. In(., 217 NI.RB 449 (1975), enfd 534 F2d 1 (Ist Cir 1976)
1590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Respondent did not, as alleged, violate Section
8(a)(1), (2), and (3) of the Act.
Upon the foregoing findings of fact, conclusions of
law, and the entire record in this case, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER 2 0
The complaint is dismissed in its entirety.
20 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.