Brotherhood of Painters, District No. 9

National Labor Relations Board - Board Decisions

Nov 30, 1970

186 N.L.R.B. 964 (N.L.R.B. 1970)

964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brotherhood of Painters, Decorators and Paperhangers
of America , AFL-CIO, District Council No. 9 of
New York City and Westgate Painting and Deco-
rating Corp., Dynamic Painting & Decorating
Corp., D. C. Decorating Corp., Max Epstein &
Company, Inc., Weldon Painting Co ., Inc., United
Painting Company , Inc., The Hudson Maintenance
Corp., Aherne's Painting Contractors , Inc. and The
Association of Master Painters and Decorators of
the City of New York, Inc., Party in Interest. Case
2-CB-4704
November 30, 1970
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING, BROWN, AND JENKINS
On August 28, 1969, Trial Examiner Herbert
Silberman issued his Decision in the above-entitled
proceeding, finding that Respondent had not engaged
in any of the alleged unfair labor practices and
recommending that the complaint be dismissed, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the Charging Parties and the General
Counsel filed exceptions to the Trial Examiner's
Decision and supporting briefs; Respondent filed an
answering brief in opposition to exceptions and in
support of the Trial Examiner's Decision.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and the briefs,
and the entire record in the case, and hereby adopts
the findings, conclusions, and recommendations of
the Trial Examiner only to the extent consistent
herewith.
The facts show that on March 5, 1968, at a special
meeting called to discuss and act on problems
connected with New York City Housing Authority
repaint work, the Union adopted a resolution that no
journeyman member employed in City Housing
repaint work should paint more than 10 rooms per
week effective April 1, 1968. Prior thereto, overall
production averaged 11.5 rooms per man for a 35-
hour workweek. Within a few days thereafter, the
Union notified all contracting employers, including
the Charging Parties, of the 10-room rule. The notice
stated that the rule was adopted "to eliminate abuses
which have undermined standards of workmanship,
caused cheating of the Insurance Fund and in general,
were responsible for unfair competition." The mem-
bers of the Union were advised of the 10-room rule, as
well as the penalties for failure to abide by the rule, at
membership meetings and through the Union's
newspaper. The Union sought to enforce the rule by
requiring members to carry cards setting forth the rule
and penalties, and union stewards to submit daily
reports on production.
On March 13, 1968, after having received protests
from association members about the rule, Louis
Elkins, secretary of the Association, informed the
Union by letter that the rule was contrary to the long-
established trade principle that the Union shall not
restrict the amount of work a man may perform, and
that it constituted a violation of article XXII of the
existing trade agreement, which provided that neither
party "shall continue in force or make any rule or by-
law conflicting with its provisions." The letter
requested the Union to rescind the rule or refrain
from taking any action to implement it. On March 18,
1968, Frank Schonfeld, the Union's secretary-treasur-
er, replied that the rule did not violate article XXII,
and stated that the employers unilaterally established
excessive minimum quotas on this type of work,
resulting in conditions detrimental to the health,
safety, and work opportunities of its membership
which called for emergency action.
On March 21, 1968, Elkins suggested to Schonfeld
that the Union's alleged violation of the trade
agreement be submitted to the Joint Trade Board for
decision and submission to arbitration if necessary.
Schonfeld denied that the Union had violated the
agreement and stated that the matter therefore was
not arbitrable. Elkins rejoined that the Association
could bring court action to compel arbitration of the
dispute. However, as the time to commence negotia-
tions for a new agreement was approaching, Elkins
told the association members who complained about
the production slowdown that "we weren't going to
rock the boat," and that he was making every effort to
commence negotiations early.
Negotiations commenced in June, and on July 31,
1968, the date on which the existing collective-
bargaining agreement expired, the Union called a
strike which began August 1 and continued until a
new contract was executed on September 9, 1968.
Negotiations continued during the strike.
Among the Union's bargaining demands was the
following: "The Union shall have the right to
establish a maximum standard of production." The
Association's counterproposals included the follow-
ing: "Article XXII . . . Change to Read: During the
life of this Trade Agreement neither party to it shall
promulgate any rules establishing a standard of
production, or continue in force, or make any rules or
by-laws conflicting with its provisions." The Associa-
tion abandoned its demand early in the negotiations
and rejected the Union's demand.
Production quotas were discussed for the last time
at the September 3 meeting, during which the major
186 NLRB No. 140
BROTHERHOOD OF PAINTERS, DISTRICT NO. 9 965
differences between the parties were resolved. While
there is considerable conflict in the testimony con-
cerning the production quota problem, we find, in
agreement with the Trial Examiner, that the parties
were unable to reach any agreement concerning it.
The parties executed a new contract on September 9,
and the strike was terminated. The new contract,
which is effective from September 9, 1968, through
July 31, 1971, contains no reference to the Union's
work limitation rule and no change in article XXII,
except that it was renumbered as article XXII I.
After September 9, and within the 10(b) period, the
Union intensified its efforts to enforce the 10-room
rule, which included threats to fine members who
violated the rule. The Association and the employers
continued to oppose the Union's action. Certain
employers testified that occasionally they discharged
painters who reduced their output in observance of
the rule, and on several occasions docked employees
for time not worked when the employees left the job
after having completed the 10-room quota.
The charge herein was filed on December 27, 1968,
and the complaint issued on March 6, 1969. The
complaint, as amended,' alleges in substance that
since September 9, 1968, Respondent Union has
unilaterally promulgated a maximum production
quota of 10 rooms per week per man to all painters in
the contractual bargaining units and has instructed
and directed these employees to refrain from painting
in excess of 10 rooms per week, subject to intraunion
charges and penalties for violations of the rule; that
neither the Association nor any of the employers
involved has consented to, or approved, the rule; and
that the Union has thereby violated Section 8(b)(3) of
the Act.
The Trial Examiner found that the Union promul-
gated its maximum production quota of 10 rooms per
week per man and began to apply it in March 1968;
the charge in this proceeding was not filed until
December, more than 6 months later; if there was an
obligation on the part of the Union to bargain about
the 10-room rule, such obligation matured in early
March 1968; hence, this proceeding is barred by
Section 10(b) of the National Labor Relations Act,2
as amended.
i The complaint was amended on April 7, 1969, by removing the name
"Commodore Painting Co , Inc" as a Charging Party, pursuant to its
request that it be considered as withdrawn from the proceedings
2 Section 10(b) provides in pertinent part that "no complaint shall issue
based upon any unfair labor practice occurring more than six months prior
to the filing of the charge with the Board and the service of a copy thereof
upon the person against whom such charge is made
3 Scofield v. N L.R B, 394 U S 423
4 Local Lodge No 1424, International Association of Machinists (Bryan
Manufacturing Co) v NLRB B. 362 U S 411
s Associated Home Builders of the Greater East Bay, Inc v N L R B, 352
F 2d 745 (C.A 9) In its decision (145 NLRB 1775), the Board had found
no 8(b )( 1)(A) violation in the union's establishment of production ceilings
and imposition of fines on its members for violating them The Board had
In finding that this proceeding was barred by
Section 10(b) of the Act, the Trial Examiner relied on
the Supreme Court's decision in Scofield,3 that
enforcement of a work limitation rule is not per se a
violation of the Act, and the Supreme Court's ruling
in Bryan,4 that an unfair labor practice occurring
outside the 10(b) period cannot be carried forward as
a continuing violation for more than 6 months. In the
Bryan case, however, the Court also ruled that where
events within the 10(b) period are themselves unfair
labor practices, the earlier events may be utilized to
shed light on the true character of matters occurring
within the 10(b) period. The primary issue in the
present proceeding is whether the Union's actions
within the 10(b) period themselves constituted a
violation of Section 8(b)(3) of the Act. Hence, a
finding that the events which occurred within the
10(b) period constituted an unfair labor practice apart
from the events which occurred prior thereto would
render Section 10(b) inapplicable. For the reasons set
forth below, we find that Section 10(b) is not
applicable under the circumstances in this case.
In Associated Home Builders,5 the U. S. Court of
Appeals for the Ninth Circuit found, in similar
circumstances, that union rules on production were
unilaterally adopted for the purpose of establishing
"terms and conditions of employment" of union
members, and that even though an 8(b)(3) violation
was neither alleged nor litigated, the propriety of the
union's conduct should have been adjudicated by the
Board under Section 8(b)(3). Accordingly, the Court
remanded the case to the Board with instructions to
consider the issue of the union's failure to bargain
collectively with the employers before initiating its
production limitations. Thus, the key issue presented
by the evidence in the present case is whether the
Union, by implementing its 10-room rule within the
10(b) period, unilaterally changed "a term or condi-
tion of employment" without acquiescence by the
Employers.6
The record shows that prior to the imposition of the
10-room rule, there were no fixed production quotas.
The employees were paid on a salary, not a piecework
basis. Average production was 11 to 11.5 rooms per
man for a 7-hour day, 35-hour workweek. No change
found, however, that the union violated Section 8(b)(I)(A) by applying
dues payments made under a union-shop contract against fines imposed
upon members On remand from the Court, the Board , in absence of
exceptions. adopted the Trial Examiner 's finding that the 8(b)(3) issue was
moot as the parties had subsequently executed a collective -bargaining
agreement containing a provision that no quantity restrictions would be
placed on employees
6 Cf Scofield, supra, and Associated Musicians of Greater New York,
Local 802, AFM, 164 NLRB 23, which are distinguishable on their facts
Thus, in Scofield there was no 8(b)(3) charge and the Supreme Court found
that the employer had virtually acquiesced and cooperated in the
application and implementation of the rule In Associated Musicians, the
union bylaw could not effectively change wages , whereas here the union
rule did in fact change the amount of work performed
966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in these terms of employment was made by the parties
in negotiating a new contract. Nevertheless, after the
new contract was executed, the Union continued to
implement its 10-room rule and did in fact succeed in
unilaterally effecting changes in terms and conditions
of employment. There is evidence in the record of
instances of successful reduction in the quantity of
production from an average of 11.5 rooms per week
per man to an average of 10 rooms, and further, of
employees, pursuant to union urging, stopping work
after completing 10 rooms, even though they had
worked less than the 7-hour day or 35-hour week
provided for by the collective-bargaining agreement.
As the employees were paid on a salary basis, the
Union's action in these instances effected changes
both in the wages paid employees and in the
workweek.
In these circumstances, the Union unilaterally
effected changes in wages and the workweek which
were neither sanctioned by the contract nor accepted
by the Employers. The Union, by its action after the
new agreement was executed, thus sought to secure
without bargaining what it had failed to achieve in
bargaining. Therefore, the Union's unilateral imple-
mentation of its 10-room rule constituted a change in
terms and conditions of employment sufficient to
preclude the continued imposition of the rule without
the agreement of the Employers.
Accordingly, we find, under the circumstances set
forth above and upon the entire record, that the
Union, by unilaterally enforcing its 10-room maxi-
mum production quota on and after September 9,
1968, violated Section 8(b)(3) of the Act.7
THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth above,
occurring in connection with its operations described
in section I of the Trial Examiner's Decision, have a
close, intimate, and substantial relationship to trade,
traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstruct-
ing commerce and the free flow of commerce.
THE REMEDY
Having found that Respondent has engaged in
certain unfair labor practices prohibited by Section
8(b)(3) of the Act, we shall order that it cease and
desist therefrom and take certain affirmative action
designed to effectuate the purposes of the Act.
We have found that Respondent, as representative
of the employees of the Charging Parties in the
appropriate bargaining units, has unlawfully failed
and refused to bargain by unilaterally enforcing its
10-room maximum production quota against unit
employees performing work on New York City
Housing Authority projects without bargaining with
the Charging Parties relative thereto . We shall
therefore order that Respondent cease and desist
therefrom , and shall require Respondent to bargain,
upon request, with the Charging Parties prior to the
enforcement of any production quota against unit
employees normally performing such work.
CONCLUSIONS OF LAW
1. The Respondent is a labor organization within
the meaning of Sections 2(5) and 8(b) of the Act.
2. The Charging Parties are employers within the
meaning of Sections 2(2) and 8(b)(3) of the Act, and
are engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
3.(a) All journeymen painters, paperhangers, and
apprentices employed by the employer-members of
The Association of Master Painters and Decorators of
the City of New York, Inc., constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
(b) All journeymen painters, paperhangers, and
apprentices employed by Westgate Painting and
Decorating Corp. constitute a unit appropriate for the
purposes of collective bargaining within the meaning
of Section 9(b) of the Act.
(c) All journeymen painters, paperhangers, and
apprentices employed by Dynamic Painting & Deco-
rating Corp. constitute a unit appropriate for the
purposes of collective bargaining within the meaning
of Section 9(b) of the Act.
(d) All journeymen painters, paperhangers, and
apprentices employed by The Hudson Maintenance
Corp. constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act.
4. Respondent labor organization is, and at all
times material herein has been, the exclusive repre-
sentative of the employees in the above appropriate
units for purposes of collective bargaining, within the
meaning of Section 9(a) of the Act.
5. By failing and refusing to bargain collectively
with the Charging Parties, Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(b)(3) of the Act.
6. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
' We find it unnecessary to consider whether the Union's enforcement
of the rule prior to September 9, 1968, violated the Act
BROTHERHOOD OF PAINTERS, DISTRICT NO. 9 967
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
Brotherhood of Painters, Decorators and Paperhan-
gers of America, AFL-CIO, District Council No. 9 of
New York City, its officers, agents, and representa-
tives, shall:
1. Cease and desist from enforcing, unilaterally
and without notice to or consultation with the above-
named Employers, any production quota against
employees in the appropriate bargaining units per-
forming work on New York City Housing Authority
projects.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Upon request, bargain collectively in good faith
with above-named Employers prior to the enforce-
ment of any production quota against employees in
the appropriate bargaining units performing the
above work.
(b) Post at its business offices and meeting halls
copies of the attached notice marked "Appendix."8
Copies of said notice, on forms provided by the
Regional Director for Region 2, after being duly
signed by Respondent's representative, shall be
posted by it immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices
to members of Respondent are customarily posted.
Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director for Region 2, in
writing, within 10 days from the date of this Order,
what steps have been taken to comply herewith.
MEMBER FANNING, dissenting:
For many years Respondent Union has bargained
with the Association for painters employed by
members of the Association. In contemplation of the
expiration of their then current agreement in July
1968, the parties began negotiations for a new
contract in June of that year. The Union struck on
August 1 and continued its strike until a contract was
signed on September 9, 1968. Bargaining continued
during the strike. Among other issues, the parties
bargained with respect to the imposition of a
production ceiling on the number of rooms to be
painted per week by members of the Union. The
Union sought to include in the contract a specific
provision giving it the right to establish a maximum
standard of production. The Association countered
by seeking a specific clause forbidding either party to
establish such a standard. Neither the Union nor the
Association was successful in achieving its objective
and the contract, as finally executed, is silent as to this
issue. As far back as March 1968, the Union with the
knowledge, but not the acquiescence of the Employ-
ers, had established an intraunion rule requiring its
members to limit their production to 10 rooms per
week on all painting work performed for the New
York City Housing Authority. The rule was continued
in effect after September 9, 1968. The majority does
not pass upon the Union's enforcement of its
production rule prior to this date, but holds that its
subsequent enforcement of the rule is violative of
Section 8(b)(3), apparently on the ground that the
Union's unsuccessful attempt to secure a contractual
right for its journeyman standard of production
converted that standard into an unlawful refusal to
bargain.
The record shows that the Union's attempt to secure
by union rule or contract a production standard of 10
rooms per week per man was part of a program to
rectify an 8-year history of corruption, abuse of
employee rights, and shoddy workmanship in repaint
work performed for the New York City Housing
Authority. Shortly before the election of Frank
Schonfeld as secretary- treasurer of the Respondent
Union in September 1967, a New York County Grand
Jury handed down indictments alleging that Schon-
feld's predecessor, Martin Rarback, several officials
of the New York Housing Authority, and a dozen
painting contractors had engaged in a conspiracy to
discriminate in favor of certain contractors with
respect to the enforcement of union rules and
contractual conditions in painting work performed
for the Housing Authority. The primary victims of
this conspiracy were union members, who were
compelled to work long hours, for less pay, and under
speedup conditions, all in violation of their collective-
bargaining agreement. In addition, the tenants of the
Authority were forced to accept inferior paint and
inferior workmanship. Schonfeld testified that the
International Union appointed a trustee to take over
the affairs of the Respondent District Council. To the
consternation of the members, however, Rarback was
appointed to a lucrative position as head of the
Council's organizing and education department.
Pursuant to an order of Federal District Judge
Marvin Frankel, the trusteeship was terminated and
an election, conducted under the auspices of the
court, resulted in Schonfeld's election by the members
of Respondent Union. The latter thereupon took
steps, including in March 1968 the unanimous
B In the event that the Board ' s Order is enforced by a Judgment of a "Posted Pursuant to a Judgment of the United States Court of Appeals
United States Court of Appeals , the words in the notice reading "Posted by Enforcing an Order of the National Labor Relations Board "
Order of the National Labor Relations Board" shall be changed to read
968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
adoption of the 10-room rule, to correct the illegal and
unfavorable conditions under which its members had
been employed in Housing Authority work. The
members were assured that they would have the full
protection of their union in the future and that union
contractual conditions of employment would be
required of all contractors without discrimination.
With respect to the reasonableness of the 10-room
rule, union officials testified that a union painter
could not be expected to prepare, spackle, spread
drop cloths, move furniture, and paint more than 2
rooms per 7-hour day in a journeyman manner under
the union contract. Halls, closets, and bathrooms
were not counted as separate rooms.
I believe the majority's finding of a violation of
Section 8(b)(3) in this case represents a substantial
change in the direction of the law of labor relations
and is a matter of the gravest consequence. Historical-
ly, unions have attempted to improve the working
conditions of their members either by restricting the
conditions under which their members offer them-
selves for employment to any employer, with or
without a contract, or by securing favorable terms and
conditions through the processes of collective bar-
gaining. The 40-hour week, minimum wage rates,
restrictions on overtime, job referral systems are a few
examples of union rules and bylaws ultimately
incorporated in collective-bargaining agreements or
statutory law.9
The question whether conduct by a union, analo-
gously to employer conduct, can be treated as
unilaterally establishing working conditions was left
open by the Supreme Court in N.L.R.B. v. Insurance
Agents' International Union (Prudential Ins. Co.), 361
U.S. 477, 497. There the Court held that a union's
tactics in the nature of "sit-downs" and "slow
downs," clearly affecting the conditions under which
its members were employed, did not constitute a
violation of Section 8(b)(3). Nor, the Court held, did
the circumstance that the employees' conduct was
unprotected or deserving of moral condemnation
impinge upon the union's willingness to engage in
good-faith collective bargaining, as required by the
statute. In N.L.R.B. v. Katz d/b/a Williamsburg Steel
Products Co., 369 U.S. 736, the Court, distinguishing
Prudential Insurance, provided the Board with an
appropriate test to determine the legality of unilateral
conduct by parties involved in collective bargaining.
Unilateral conduct by an employer without prior
discussion with the union, the Court held, constituted a
refusal to negotiate and was an obstruction to
bargaining, contrary to congressional policy. In
Prudential, on the other hand, the Court pointed out,
the union took no action "unilateral or otherwise" to
9 Associated Musicians of Greater New York, Local 802, 164 NLRB 23,
16, citing N L R B v Furriers Joint Council of New York, 224, F 2d 78, 80
foreclose discussion of any issue. The gravamen of
unlawful unilateral conduct was found by the Court
to consist in "behavior which is in effect a refusal to
negotiate, or which directly obstructs or inhibits the
actual process of discussion, or which reflects a cast of
mind against reaching agreement." N.L.R.B. v. Katz,
supra, 747.
The most recent and authoritative discussion of the
legality of union rules adopted to restrict the prod-
uction of union members on the job is to be found in
the decision of the Supreme Court in Scofield v.
N. L.R.B., 394 U.S. 423. With due respect for the dicta
of the Court of Appeals for the Ninth Circuit in
Associated Home Builders v. N.L.R.B., 352 F.2d 745
(C.A. 9), upon which the majority relies, the later
decision of the Supreme Court in Scofield must be
given precedence over the view of the Circuit Court of
the Ninth Circuit in this area of labor law. Unques-
tionably, the production standard of 10 rooms per
man per week sought to be established by the
Respondent Union in this case affected, as in Scofield,
all three participants in the labor-management rela-
tion: employer, employee, and union. As in Scofield,
although the rule was an internal union matter, it was
obviously intended to have an impact beyond the
confines of union organization. Such an impact,
however, upon existing conditions of employment
was held by the Supreme Court in Scofield to be
insufficient in and of itself to warrant the conclusion
that the Union's conduct in enforcing a production
ceiling was violative of Section 8(b)(1)(A). In that case
the complaint did not allege a violation of Section
8(b)(3) and, although the issue was fully litigated, no
such violation was found or intimated. Indeed, the
Court did not confine its discussion to the narrow
context of restraint and coercion of employees, but,
expanding upon its rationale in Katz, supra, in the
refusal-to-bargain area, exonerated the union in
Scofield from conduct violative of Section 8(b)(1)(A)
because the enforcement of its production standard
did not obstruct, impede, or otherwise impair the
collective-bargaining process.
Significantly, in 1969 the Court in Scofield did not,
as it had in the Katz decision of 1962, make reference
to the comment of the 1960 Prudential Insurance
opinion that unilateral conduct of a union in
attempting to establish working conditions, analo-
gously to employer unlawful unilateral conduct, was
an open question. Further, it must be noted that the
Court had made a point in Prudential Insurance of
distinguishing between attempts by the union to
establish permanent conditions of employment and
mere harassing tactics to achieve its bargaining aims,
as in the Prudential case. Clearly, in Scofield the union
(CA 2)
BROTHERHOOD OF PAINTERS, DISTRICT NO. 9
was engaged in a campaign to achieve a permanent
improvement in working conditions for its members.
In my opinion, the legality of the Union's conduct
in the instant case, whether considered in violation of
Section 8(b)(3) or 8(b)(1)(A), whether unilateral or
not, rests squarely upon the criteria for finding such
conduct unlawful enunciated by the Supreme Court
in the Scofield decision. In that case the Court first
expressed concern with the question of the legitimacy
of the union's interest in curbing an unlimited
production system. If found that unions historically
had been opposed to such systems and that they were
justifiably fearful that competitive pressures would
endanger workers' health, foment jealousies, and
reduce the work force. Having found the union's
interest a legitimate one, the Court turned to the next
critical question, whether the production ceiling
sought to be imposed by the union on its members
could be shown to have impaired a statutory labor
policy. It answered this question in the negative and
succinctly stated its conclusions as follows:
The union rule here left the collective bargain-
ing process unimpaired, breached no collective
contract, required no pay for unperformed serv-
ices, induced no discrimination by the employer
against any class of employees, and represents no
dereliction by the union of its duty of fair
representation. In the light of this, and the
acceptable manner in which the rule was enforced,
vindicating a legitimate union interest, it is
impossible to say that it contravened any policy of
the Act. [Scofield v. N.L.R.B., supra, 436.]
I believe the complaint in the instant case should be
dismissed on the authority of Scofield. In view of the
evidence cited above and in the Trial Examiner's
Decision, the legitimacy of the Union's interest in
restoring legality and order to a portion of the
painting industry in the New York City area can
hardly be questioned. The Union did not attempt to
enforce its production rule by means of violence,
threats against employers, or other unreasonable
means. Indeed, there is no evidence that any member
was ever fined for violation of the rule. Far from
impeding the collective-bargaining process, it was at
the Union's insistence that the parties fully considered
and discussed the incorporation of the rule in the
collective agreement signed on September 9. The
General Counsel has not alleged and the evidence
certainly does not show that the parties bargained as
to this issue other than in good faith.
The majority asserts that the Union "effected
changes" which were "neither sanctioned by the
contract nor accepted by the Employers." But the
power to effect a change in a condition of employ-
ment did not rest with Respondent Union. At all
times the Employers had complete authority to
969
discharge or otherwise discipline any employee, who
failed to adhere to the Employer's own unilateral
production standard. The record shows that some
Employers did, in fact, exercise such authority when
some employees refused to work a full 7 hours per
day. No grievances were filed by the Union in any of
these cases, as the Union took the position that its 10-
room rule was designed to provide better, not less,
work.
I have serious doubts that union rules restricting the
production of its members may properly be consid-
ered a "unilateral change" in a condition of employ-
ment violative of Section 8(b)(3) because I have
difficulty understanding how such a change can be
effected without the acquiescence of the employer.
However, I do not believe that this is a matter of
substance in view of the Supreme Court's holding that
this type of union conduct is governed by the
provisions of Section 8(b)(1)(A). But assuming,
arguendo, for purposes of the instant case, that a union
may, indeed, accomplish a change in a condition of
employment unilaterally, I assume further that the
standard of legality applicable to employers would be
equally applicable to unions in an allegation of an
unlawful refusal to bargain. In Katz, as noted above,
the Supreme Court did not hold that all unilateral
conduct by an employer violated Section 8(a)(5). It
specifically held that unilateral conduct "without
prior discussion with the union" was a "refusal to
negotiate," and "obstruction to collective bargain-
ing," and "contrary to Congressional policy." It is not
the unilateral nature of the conduct which makes it a
violation of Section 8(a)(5), but the lack of discussion,
the lack of bargaining. If, after good-faith bargaining
to an impasse, the employer in Katz insisted on
implementing a unilateral change, its obligation with
respect to Section 8(a)(5) would have been fulfilled.
The fact that the change was neither sanctioned by a
contract nor accepted by the union would not be
sufficient to establish a violation of this section of the
Act. Of course, the union could take lawful counter-
measures in response to the employer's unilateral
action, but the action itself would not have obstructed
the collective-bargaining process. Applying these
principles to the alleged unilateral action of the Union
in this case, it is clear that the Union, certainly as of
September 9, 1968, had engaged in substantial good-
faith bargaining with the objective of incorporating in
the contract the established union rule requiring
members to paint no more than 10 rooms per week.
With respect to this issue, the conduct of the Union
after September 9 did not differ from its conduct prior
to that date. In bargaining the Employers had been
unsuccessful in their demand that the Union rescind
its rule. The Board has held that an employer does not
violate Section 8(a)(5) by unilaterally subcontracting
970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unit work where it had theretofore engaged in that
practice and the union during contract negotiations
was unsuccessful in its demand that the employer
retreat from this position. Shell Oil Company, 149
NLRB 283. By parallel reasoning, whatever unilateral
conduct the Respondent Union undertook in this
case , such conduct after September 9 was not violative
of Section 8(b)(3).
The above analogy is not intended to exonerate or
even to suggest that union conduct of this type should
be totally exonerated from the proscription of the
statute. It is, however, illustrative of the difficulty
encountered when comparing the enforcement of
union rules on union members to unilateral action
taken by an employer without prior discussion with
the union representing its employees. Scofield makes
it abundantly clear that unions are not free under this
Act to make and enforce such rules by threats and
fines without regard to statutory policy. The legiti-
mate interest of unions in protecting their members
and improving their conditions of employment must
be balanced by the statute's encouragement of
collective bargaining and its prohibition against the
restraint and coercion of employees. I have consid-
ered the Respondent Union's conduct in the instant
case in the light of these criteria, set forth more
specifically in the Scofield decision, and I must
conclude on the basis of that precedent that Respon-
dent Union has not violated any provision of this
statute.
For these reasons I dissent.
APPENDIX
NOTICE
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
To All Members of Brotherhood of Painters, District
Council No. 9 of New York City
Pursuant to a Decision and Order of the National
Labor Relations Board, and in order to effectuate the
policies of the National Labor Relations Act, we
hereby notify you that:
WE WILL NOT enforce our 10-room maximum
production quota against the employees in the
bargaining units described below working on New
York City Housing Authority projects without
bargaining with Westgate Painting and Decorat-
ing Corp.; Dynamic Painting & Decorating Corp.;
D. C. Decorating Corp.; Max Epstein & Compa-
ny, Inc.; Weldon Painting Co., Inc.; The Hudson
Maintenance Corp.; Aherne's Painting Contrac-
tors, Inc.; and The Association of Master Painters
and Decorators of the City of New York, Inc.
WE WILL, upon request, bargain in good faith
with the above-named Employers prior to the
enforcement of any production quota against the
employees in the bargaining units described
below. The bargaining units are:
All journeymen painters, paperhangers and
apprentices employed by (1) the employer-
members of The Association of Master
Painters and Decorators of the City of New
York, Inc.; (2) Westgate Painting and Deco-
rating Corp.; (3) Dynamic Painting & Deco-
rating Corp.; and (4) The Hudson Mainte-
nance Corp.
BROTHERHOOD OF
PAINTERS, DECORATORS
AND PAPERHANGERS OF
AMERICA, AFL-CIO,
DISTRICT COUNCIL No.
9 OF NEW YORK CITY
(Labor Organization)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, 36th Floor, Federal Building, 26 Federal
Plaza, New York, New York 10007, Telephone
212-264-0300.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HERBERT SILBERMAN , Trial Examiner: Upon a charge
filed on December 27, 1968, a complaint, dated March 6,
1969, was issued alleging that the Respondent, Brotherhood
of Painters, Decorators and Paperhangers of America,
AFL-CIO, District Council No . 9 of New York City, herein
sometimes called the Union , has engaged in and is engaging
in unfair labor practices affecting commerce within the
meaning of Sections 8(b)(3) and 2(6) and (7) of the Act. The
Respondent filed an answer denying that it had engaged in
any violations of the Act. A hearing in this proceeding was
held in New York, New York, on various days between
April 21 and June 11, 1969. Thereafter , briefs were filed on
behalf of the General Counsel , the Charging Party, and the
Party in Interest which have been carefully considered.'
Upon the entire record in this case, I make the following:
i No opposition having been filed to General Counsel's motion, dated
July 16, 1969, to correct the transcript of record, said motion is hereby
granted
BROTHERHOOD OF PAINTERS, DISTRICT NO. 9 971
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
The complaint alleges, and the answer does not deny, and
I find that the Respondent is, and during all times material
hereto was, a labor organization within the meaning of
Section 2(5) of the Act. The allegations of the complaint
relating to the corporate status of the Charging Parties, the
volume and nature of their businesses and the membership
of some of them in the Association of Master Painters and
Decorators of the City of New York, Inc., herein called the
Association, a membership corporation organized and
existing under the laws of the State of New York, which
performs the function of negotiating and administering
collective-bargaining agreements on behalf of its members
with Respondent, were not contested at the hearing by
Respondent and were proved by General Counsel.
Accordingly, as alleged in the complaint, I find that each of
the Charging Parties during all times material hereto has
been an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE ISSUES
The Charging Parties are paint contractors. During the
times relevant hereto individually they performed work,
awarded on the basis of competitive bids, at projects
operated by the New York City Housing Authority, a
public housing corporation.
For many years the Charging Parties have had contractu-
al relationships with the Respondent covering appropriate
units of journeymen painters, paperhangers, and appren-
tices. D. C. Decorating Corp., Max Epstein & Company,
Inc., Weldon Painting Co., Inc., United Painting Company,
Inc., and Aherne's Painting Contractors, Inc., during the
times material hereto, have been members of the Associa-
tion and their employees have been included in an
associationwide collective-bargaining unit. The employees
of Westgate Painting and Decorating Corp., Dynamic
Painting & Decorating Corp., and The Hudson Mainte-
nance Corp. have constituted separate appropriate units.
The historical bargaining practice has been for the
Respondent and the Association to negotiate a contract
and, thereafter, for the other employers who are not
members of the Association to enter into substantially
identical agreements with the Respondent.
The complaint, as amended, alleges: On July 31, 1968,
the then subsisting collective-bargaining agreements termi-
nated Negotiations for renewal of their contract were
conducted by the Association and the Respondent between
June and September 1968. During the negotiations
Respondent sought a provision "permitting it to establish
2 Respondent, in its answer, in addition to denying certain of the factual
averments of the complaint sets forth conflicting allegations For instance,
with respect to the averment of the complaint that the Association rejected
and refused to incorporate into the contract a provision permitting the
Union to establish maximum production quotas for all painting work, the
answer alleges that "the Association refused to discuss incorporating into
the written contract, then being negotiated, an express provision giving
Respondent the right to establish a maximum standard of production, and
the Association expressly waived its right to negotiate the same" With
respect to the allegation in the complaint that the contract contains no
maximum production quotas for all painting work
including the permission to establish a maximum prod-
uction quota of ten rooms per week per man on New York
City Housing Authority projects." The Association rejected
and refused to incorporate such proposal into the contract.
About September 9, 1968, Respondent entered into a
collective-bargaining agreement with the Association and
similar individual agreements with the other Charging
Parties who were not members of the Association. These
contracts contain no provision permitting, sanctioning, or
authorizing Respondent to establish maximum production
quotas for any of the employees covered thereby.
Nevertheless, since on or about September 9, 1968,
Respondent has unilaterally promulgated a maximum
production quota of 10 rooms per week per man to all
painters who are employed on New York City Housing
Authority projects, including employees of the Charging
Parties, and has urged, instructed, and directed such
employees to refrain from painting in excess of 10 rooms
per week per man on New York City Housing Authority
projects; and since on or about September 9, 1968,
Respondent has informed, warned, and otherwise instruct-
ed such employees that they would be subject to intraunion
charges and penalties if they failed to adhere to the 10
rooms per week per man maximum production quota for
New York City Housing Authority projects. Neither the
Association nor any of the employers named as Charging
Parties herein has consented to or approved such quotas.
Finally, the complaint alleges that Respondent has violated
Section 8(b)(3) of the Act by unilaterally promulgating a
maximum production quota for its members who are doing
New York City Authority work and by seeking to maintain
and enforce such quota against its members.
Respondent, in its answer, as amended, in addition to
denying that it has violated the Act, alleges as an
affirmative defense that on or about March 5, 1968, it
adopted a resolution applicable to its members employed in
New York City Housing repaint work that no journeyman
member should paint more than 10 rooms per week
effective April 1, 1968; that notice thereof was given to all
the Charging Parties; and that more than 6 months had
elapsed between the promulgation and application of said
rule and the date upon which the charges herein were filed.
Thus, Respondent alleges that this proceeding is barred by
reason of Section 10(b) of the Act.2
Ill. SEQUENCE OF EVENTS
The Union contends that the 10 rooms per week quota
which it sought to impose was not a slowdown nor a work
stretchout device but was adopted as an instrument to cure
abuses which had arisen in the segment of the industry
which does painting on a contractual basis for the New
provision authorizing Respondent to establish any maximum production
quotas, the answer alleges that the contract was subject to Respondent's
existing rules and regulations affecting its members , of which the
Association then had knowledge , and that such rules and regulations
included a union rule that on New York City repaint work no journeymen
shall paint more than 10 rooms per week Finally, the answer alleges that
the Association informed the Respondent that the latter 's rule regarding a
maximum production quota would be effective , if it were legal, without
being specifically included in their collective- bargaining agreement
972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
York City Housing Authority. The Union's position was
described at the hearing by Frank Schonfeld, secretary-
treasurer and principal executive officer of the Union.
Schonfeld testified that he was elected to office on
September 17, 1967, and assumed the position to which he
was elected on the 20th of that month. According to
Schonfeld, shortly before his election, the New York
County Grand Jury handed down an indictment alleging
that an unlawful conspiracy had existed among Schonfeld's
predecessor in office, several officials of the New York City
Housing Authority and more than a dozen painting
contractors who regularly did work for the New York City
Housing Authority. Pursuant to the alleged conspiracy,
which extended over a period of approximately 8 years, the
Union did not enforce the trade rules of the collective-
bargaining agreements with the employers in the paint
industry in an evenhanded manner. There were favored
contractors whose violations of the trade rules were
overlooked while the trade rules were vigorously enforced
against other paint contractors. In further pursuance of the
alleged conspiracy officials of the Housing Authority, in
addition to providing these same favored contractors with
privileged information, were lax in the inspection of the
work done by them so these contractors were able to
perform and get paid for work which did not meet and
comply with specifications. The conspiracy operated in
such a manner that although substantial sums of money
were passed as bribes the painting costs of the New York
City Housing Authority did not increase. The principal
victims of the conspiracy were the employees who were
compelled to work longer hours, were compelled to violate
union rules and regulations (established presumably to
protect the health and safety of the painters and to
maintain the quality of their work), and were subject to
speedup practices. Also victimized by the conspiracy were
the tenants of the apartments because the New York City
Housing Authority approved inferior work. After Schon-
feld assumed office he received numerous complaints that
the Union's trade rules were being violated which indicated
that practices forbidden by the applicable collective-
bargaining agreements were still being carried on by paint
contractors doing New York City Housing Authority work.
To correct these abuses Schonfeld instructed the business
agents and the stewards to see that the collective-bargaining
agreements were properly observed and that everyone
understood that there is a change in the Union's leadership
and the Union was now determined to protect its members.
The subject was also covered at various union meetings.
However, this campaign was not successful. Schonfeld
explained that there were so many projects throughout the
city including a great number which were small and where
just a few painters worked for only a few days that it was
difficult to police the jobs and also "to persuade the men
that the old days of exploitation and corruption are gone."
The 10-rooms rule was therefore promulgated "as an index
of the fact that violations [of the trade rules] are in fact
occurring." The Union's thesis is that a qualified painter
who does his work diligently but without violating the trade
rules cannot paint more than 2 rooms per day or 10 rooms
3 Witnesses for General Counsel vigorously contested Schonfeld's
assertion that painters cannot paint more than two rooms per day without
per week even on the easiest jobs, therefore, a violation of
the 10-rooms quota necessarily indicates that a violation of
the trade rules has occurred. According to Schonfeld, the
10-rooms rule "really [has] nothing to do with [a]
production quota in the normal sense . . . [but] must be
understood in terms of the determination to enforce the
[trade ] agreement as far as the tools, as far as the hours, as
far as the wages and [as far as ] our responsibility to the City
[to insure that specifications are being observed] are
concerned."3
The 10-rooms rule was adopted by the Union at a special
meeting held on March 5, 1968, specifically called "to
discuss and act on problems connected with City Housing
Re-painting." The minutes of the meeting show that
Secretary-Treasurer Frank Schonfeld spoke about the
increasing importance to the Union of work performed in
Government housing projects and that "for a variety of
reasons, this type of work in New York City has
deteriorated to the point where impossible `numbers'
demanded by employers and working conditions make it
difficult for a large section of our membership to seek
employment on City work; an area which should provide
the best type of work for our members since it must be done
under Union conditions with rigid specifications, has, in
fact, become one of the least desirable places to work. From
a standard of one (1) room a day with a helper to wash
kitchens and bath-rooms and help cover up, men are now
compelled to turn out two and one-half to three rooms and
more per day." He thereupon proposed the resolution,
quoted below, which was adopted unanimously:
WHEREAS, the Union has recently become increas-
ingly aware that certain violations of the Trade
Agreement have become prevalent in the performance
of City Re-paint work, namely: the practice of lumping,
failure to report real earnings to the Painting Industry
Insurance Fund with consequent short changing of
contributions to the Pension, Welfare and Annuity
Funds, the constant speed-up of Journeymen, the
endangering of the health and safety of workers, the
deterioration of standards of quality of work furnished
to the City, and other undesirable effects on employers
and employees; Now therefore, be it
RESOLVED, that notice be given to employers on City
Housing Re-paint work, in order to furnish them with
information essential to their making new bids on
contracts for such work, that the Council hereby
establishes the following Trade Rules:
(a) On City Housing Re-paint work, no
Journeyman shall paint more than ten (10) rooms
per week.
(b) This Trade Rule shall be effective so as to
meet a bid deadline of April 1, 1968, or thereafter.
(c) As to jobs not yet subject to the foregoing
Trade Rule, no Journeyman shall paint a greater
number of rooms, or other areas , than shall be
provided for by Union ruling made for the
particular job on which such Journeyman is
employed. In this connection, the Union shall
establish a presumptive maximum number of
violating the standards established by the relevant collective-bargaining
agreements
BROTHERHOOD OF PAINTERS, DISTRICT NO. 9
rooms per week for each City Housing Re-paint
job, subject to review after presentation by the
employer of evidence relative to such ruling.
Within a few days after the Union 's special meeting
various employers having contractual relationships with the
Union , including the Charging Parties, were sent the
following letter:
TO ALL EMPLOYERS SIGNED WITH
DISTRICT COUNCIL NO. 9
SUBJECT: RE-PAINTING WORK ON NEW YORK
CITY HOUSING AUTHORITY PROJECTS.
Gentlemen:
Please be advised that District Council No. 9 has taken
action to impose a maximum production limit for its
members on all City Housing repaint work of 10 rooms
per 35 hour week. This will go into effect on all jobs bid
hereafter. We are calling this matter to your attention
for information and guidance.
On all jobs that have been previously bid, the following
Trade Rule was adopted:
As to jobs not yet subject to the foregoing Trade
Rule, no Journeyman shall paint a greater number
of rooms, or other areas, than shall be provided
for by Union ruling made for the particularjob on
which such journeyman is employed. In this
connection, the Union shall establish a presump-
tive maximum number of rooms per week for each
City Housing repaint job, subject to review after
presentation by the employer of evidence relative
to such ruling.
The above Trade Rule was adopted in order to
eliminate abuses which have undermined standards of
workmanship, caused cheating of the Insurance Fund
and in general, were responsible for unfair competition.
The Union is particularly interested in eliminating
"lumping" and other piece work practices.
Your cooperation is requested to the end that the
public, the journeyman and the contractor can be dealt
with fairly in the best interest of our industry.
The members of the Union were advised of the 10-rooms
rule at membership meetings and through the Union's
bimonthly newspaper.4
After learning of the Union's promulgation of the 10-
rooms rule and after having received protests from
members of the Association about the rule, Louis Elkins,
secretary of the Association, on March 13, 1968, wrote the
following letter to the Union:
Reference is made to the circular letter recently
addressed and issued by the Council "TO ALL
EMPLOYERS SIGNED WITH DISTRICT COUN-
CIL NO. 9", and entitled:
"SUBJECT: RE-PAINTING WORK ON NEW
YORK CITY HOUSING AUTHORITY PROJECTS"
4 The prominent, lead feature in the March-April, 1968 edition of the
Union's newspaper is devoted to an article entitled, "Painting in City
Projects Cheap, Shoddy, and Scandalous " The headnote to the article is
as follows
It takes a young back and a strong stomach to work for private
contractors on city housing repaint work You've got to start fast and
keep moving all day under tension to keep yourjob, and you've got to
973
Obviously, the unilateral action taken by the Council
on March 5, 1968, in adopting a rule which imposes a
maximum production limit on its members on all City
Housing re-paint work is contrary to the long estab-
lished principle that the amount of work a man may
perform shall not be restricted by the Union, nor by the
representatives, officers, or members of the Union.
Even more significantly, however, the action of the
Council constitutes a clear-cut violation of Article XXII
of the Trade Agreement, which reads as follows:
"ART. XXII. During the life of this Trade
Agreement neither party to it shall continue in
force or make any rule or by-law conflicting with
its provisions."
Inasmuch as the proposed action of the Union, as
described in the aforementioned circular letter, is, in our
view, a plain violation of the Trade Agreement between
the Union and the Association, we hereby formally
request your immediate assurances to us either that the
so-called "maximum production limit" rule described in
your circular will be rescinded, or that the Union will
refrain, during the life of our present Trade Agreement,
from taking any action to implement such rule.
Your immediate acknowledgment and reply is
requested.
Frank Schonfeld sent the following reply to Elkins on
March 18, 1968:
In reply to your letter of March 13, 1968, regarding
the right of our Union to impose a maximum limit on
repainting of City Housing projects, please be advised
as follows:
I. The Union's present position is not in conflict with
any existing provision of the Trade Agreement and,
therefore, we cannot agree that it violates Article XXII.
2. As I pointed out to you in an earlier letter,
conditions in this area of our work have deteriorated to
such a point in terms of jeopardizing the health, safety
and working standards of our members that emergency
action was called for.
s • s a
As a matter of historical record, it has become a long
established principle on the part of the employers to
unilaterally establish excessive minimum quotas on this
type of work. Capable, qualified and conscientious
mechanics who could not reach the arbitrary unrealistic
quota have been restricted by employers from engaging
in this work. As a result, workmanship and integrity in
this field have been a constant source of scandal and
complaint.
Whatever the Association chooses to do or not to do,
the Union is determined to act to protect the health,
learn how to do a quick, shabby, cheap piece of work. This is the story
of the decline of a trade , the debasement of workers , the deterioration
of homes The result is exploitation and speed-up of painters,
contempt for tenants , cheating of the city, and the degeneration of an
industry
Another article in the same edition of the paper describes the substance of
the Union's 10-rooms rule.
974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
safety and work opportunities of its membership and to
reestablish the standing and reputation of our industry
for craftsmanship and integrity.
On March 21, 1968, at a meeting with Schonfeld about
other matters, Elkins suggested to Schonfeld that the
Union's alleged violation of the trade agreement through
the adoption of the 10-rooms rule should be brought before
the Joint Trade Boards for decision and ultimate
submission to arbitration if necessary. Schonfeld replied
that the Union had not violated the trade agreement and
therefore the matter was not arbitrable. Elkins responded
that the Association can bring a court proceeding to compel
arbitration to which Schonfeld answered that that was his
privilege. About the same time representatives of the three
Charging Parties, who were not members of the Associa-
tion, had a meeting with Schonfeld where they protested the
10-rooms rule.
After the Union's promulgation of the 10-rooms rule in
March 1968 several members of the Association com-
plained to Elkins that some of their men were slowing down
in production. Elkins informed them that the Association
was discussing the matter with the Union. According to
Elkins, "I told them we don't want to start any wars, we
don't want to rock the boat. Mr. Schonfeld is not a fellow
with horns. He can be spoken to and perhaps something is
going to happen. In the meantime I always try to convince
them that we are approaching the time when our
Agreement expires on July the 31st. [The then existing
collective-bargaining agreement between the Union and
the Association was for a 3-year period from August 1,
1965, to July 31, 1968.] I am making every effort to start
negotiations bright and early. . . . Let's not start any wars
and I certainly wouldn't be a party to it. Let's sit down at
the bargaining table in a congenial atmosphere."
Upon the expiration of the subsisting collective-bargain-
ing agreement on July 31, 1968, the Union called a strike
which continued until a new contract was executed on
September 9, 1968. Negotiations, however, were started in
June 1968, before the strike began and continued during the
strike. Approximately 20 to 25 bargaining sessions were
held.
At the outset of the negotiations, the Union submitted a
5-page document setting forth its bargaining demands.
5 The Joint Trade Board , which is composed of three members of the
Association and three members of the Union , exists under the terms of the
parties' collective -bargaining agreements for the purpose of hearing and
adjusting grievances or complaints.
6 Louis Elkins and Bernard Bierman , both of whom were members of
the Association 's negotiating committee , testified that the Association had
not included in its demands any item to the effect that the Union should
withdraw the rule limiting production on New York City Housing project
jobs When these gentlemen testified , they did not have before them a copy
of the Association 's demands Both Elkins and Bierman impressed me as
being intelligent , truthful , and possessed of reasonably good memories The
error in their recollections concerning the Association's demands reflects
not any effort on their part to dissemble but rather that the negotiations
were protracted , argumentative, and complicated In such circumstances,
absent minutes or comprehensive notes , recollections become uncertain
Furthermore , both Elkins and Bierman explained at some length why it
was unnecessary for the Association to present any such demand This
reflects an often observed phenomenon that memory after a period of time
tends to accommodate itself to an individual 's beliefs and desires even at
the expense of accuracy
7 There is no dispute that most of the discussion relating to the Union's
demand for the right to establish production standards was limited to the
Among these demands was the following: "The Union shall
have the right to establish a maximum standard of
production." This demand was not limited to New York
City Housing Authority work and therefore was broader in
scope than the 10-rooms rule which was promulgated by
the Union in March 1968. The Association, in turn,
presented to the Union a list of 38 counterdemands.
Included among these demands is the following:
31:-ARTICLE XXII on page 28-CHANGE TO
READ:
During the life of this Trade Agreement neither party to
it shall promulgate any rules establishing a standard of
production, or continue in force, or make any rules or
by-laws conflicting with its provisions.
This demand was abandoned by the Association relatively
early in the negotiations.6
The Union's demand for a provision authorizing it to
establish production quotas was discussed at meetings held
on July 26 and August 19, 1968. The Association was firm
in its rejection of this demand. According to Schonfeld,
"[w ]hen we [the Union ] could not make any headway on
that score, we then proceeded to a particular demand that
this production limitation should apply to the city housing.
„7
The last discussions during the 1968 contract negotiations
about production quotas took place on September 3. This
was the so-called "breakthrough" meeting. At this meeting
the major differences between the bargaining parties were
resolved. The parties executed a contract on September 9
and the strike which had been in progress since August 1
was terminated. The new contract which is effective from
September 9, 1968, through July 31, 1971, contains no
change whatsoever from the terms of the preceding
contract insofar as it relates to the question of the Union's
right to establish production quotas. Article XXII of the
previous contract was incorporated verbatim in the new
agreement. It, however, has been renumbered as article
XXIII.
General Counsel contends in his brief that "[i]t was the
agreement of the parties that these proposals [relating to the
Union's authority to establish production quotas], raised
and discussed and rejected, were to remain as not
constituting terms or conditions of employment."8 The
Union's right to establish standards for New York City Housing Authority
work
A In support of this position General Counsel makes the following
argument . "Each time the Union raised its proposal in negotiations for this
addition to the contract which would have the effect of changing the
existing terms and conditions of employment concerning work limitation,
the Association categorically rejected it Furthermore-and this is most
significant-the course of negotiations with respect to this issue, the manner
of its rejection , the reaction of the Union negotiators to the rejection and
the resulting continued absence of any reference to the rejected proposal in
the contract agreed upon , occurred in the same manner as the parties
disposed, by agreement, of other Union proposals for contract innovations
which were rejected by the Association , which failed to appear in any form
in the contract and which were not again referred to or attempted to be
implemented by the Union after the contract was signed." This argument is
based upon a fallacious assumption of fact, namely , that the 10-rooms per
man per week limitation had not already been effectively promulgated by
the Union The proposal of the Union in this regard was for a contract
provision which would specifically recognize the Union's authority to do
what it had already done and, contrary to General Counsel, was not a
"proposal in negotiations . which would have the effect of changing the
existing terms and conditions of employment" Furthermore , I do not
BROTHERHOOD OF PAINTERS, DISTRICT NO. 9
Union on the other hand takes the position that during the
bargaining negotiations, particularly at the crucial Septem-
ber 3 meeting, the Association agreed that the Union could
maintain its 10-rooms per man work limitation on New
York City Housing Authority projects if such rule were not
unlawful. I do not accept either position.
I find that the parties were unable to reach any agreement
at the September 3 meeting with respect to the production
quota problem. Rather than permit this issue to interfere
with the consummation of a contract and the termination
of the strike, the parties merely dropped the entire subject
just as if it had never been raised as part of the negotiations.
Accordingly, I find that the Union's work through the
period of the negotiations and subsequent thereto. I further
find that the attitudes of the respective parties, certainly as
late as September 9, 1968, when the new collective-
bargaining agreement was executed, remained exactly the
same as they were prior to the commencement of
negotiations, that is, the employers were contending that
the work limitations rule constituted a breach of the
collective-bargaining agreement and was otherwise unlaw-
ful, while the Union was arguing to the contrary.9
After the strike ended on September 9, the Union
continued with its efforts to induce or compel its
membership to observe the 10-rooms rule. The Association
and individual employers lodged protests with the Union
concur with General Counsel's interpretation of what occurred at the
negotiations and my findings are contrary to those advanced by General
Counsel in his brief and in his arguments at the hearing
9 Four members of the Association's negotiating committee testified to
the events at the bargaining sessions and three witnesses for the
Respondent testified to such events There is substantial conflict as to what
transpired particularly at the September 3 meeting, not only between
General Counsel's witnesses and the Union's witnesses, but also among the
witnesses for the respective parties
The September 3 bargaining meeting was divided into three sessions
separated by the lunch and dinner breaks. Bernard Bierman , a member of
the Association's negotiating committee, testified that at this meeting, after
he made a vigorous argument in opposition to the production quota, "Mr
Schonfeld as he was accustomed to doing during many of these things"
shrugged his shoulders "There was no reply and it was just dropped And
Mr Elkins at that point . said, `Forget it, it's over. That's the end of this
issue ' " Bierman explained further, "I think Mr Schonfeld never at any
time that I recall said, 'All right, we give in on this point' He didn't say it
in those words He merely dismissed it with a shrug, the way he did with
this thing There was no discussion necessary It was over It was finished
If he wanted to continue-if he refused to take it, then we would have to
bargain further, but once the thing was over, it was over "
Louis Elkins, executive secretary of the Association and a member of its
negotiating committee, generally agreed with Bierman as to this particular
event According to Elkins
On September the 3rd, which was the last time when we discussed this
particular subject, the union-whatever they had to say-said it or
whoever said it and we spoke about it When it was over, it was my
impression that the union was sold a bill of goods by our arguments
and that it was finished, period The same as other matters The same
as other provisions They didn't exactly say we withdraw it or we don't
withdraw it They didn't pursue it any further As a matter of fact,
when we met on the following day, which was the 4th of September,
when we were just winding up everything, they didn't bring it up
When they didn't, we felt it was completed When Mr Bierman got
through, I believe he was the last speaker on the subject, I think he
sold them a bill of goods and they were satisfied among themselves
that, boys, we can't get it, let's forget about it That was my
impression And I believe that was it
Somewhat inconsistently Elkins also testified that although he was
getting no place in his efforts to persuade the Union to rescind the 10-
rooms rule which it had promulgated in March 1968, "we had hoped that
the thing would die a natural death " Although, according to Elkins, the
975
about the matter. The evidence shows that the rule was not
uniformly observed by the Union's membership. According
to the testimony of various employers, after September 9,
although production was considerably less than it should
have been, it exceeded 10-rooms per week per man on New
York City Housing Authority work. Despite threats made
by the Union to its membership to compel observance of
the 10-rooms rule, no member of the Union was disciplined
by the Union for his violation of the rule. On the other
hand, various employers testified that on occasions they
discharged painters because the employees were restricting
output in observance of the Union's 10-rooms rule and on
several occasions docked employees for time not worked
because the employees left the job after having completed
either 2 rooms in a day or 10 rooms within the week. In
none of these cases did the Union file any grievance against
the employer. Thus, so far as the record shows, the situation
since September 9 has been that the Union has been
contending that the rule is lawful and has been seeking to
enforce it through appeals to and pressures upon its
membership, while on the other hand, the employers have
been contending that the rule is unlawful and some
employers have disciplined employees for allegedly reduc-
ing output in observance of the rule.
rule had not died a natural death by July 1968 when negotiations were
begun, he testified that "as soon as the negotiations were completed, we
had hoped that the Union on the basis of Article XXIII of the new
Agreement, that the Union would not intensify its activities in enforcing
the ten room limitation "
Sid Schiller, another member of the Association' s negotiating committee,
although in various respects differing in his version of the transactions
from the other witnesses , generally corroborated Bierman and Elkins as to
how the production quota question was concluded Schiller testified that
after Bierman spoke against the Union's proposal , Mr Brodsky , another
member of the Association 's negotiating committee, said something to the
effect, "there's your answer," and "Mr Schonfeld shrugged back and then
we proceeded with other business on hand "
The testimony of George Peck, president of the Association , differs in
many material respects from that of Elkins, Bierman , and Schiller
According to Peck, after the luncheon recess. "I broke out and said that
the association would never go for a scale of production in any phase of
this business I don't recall anything that was said after that, it was
held in abeyance and we went to other points of the negotiations we
did not talk about it in the evening" Peck affirmed that what happened at
the negotiations with respect to the production quota issue was that the
employers' demand was dropped and the Union 's demand was dropped.
The employers' group maintained that what the Union had been doing was
illegal and Schonfeld maintained that what the Union had been doing was
legal and that is the way the matter ended . Peck further testified that it was
his impression that the Union had abandoned the 10-rooms limitation
demand Peck explained that he gained this impression from a private
discussion with two representatives of the Union (he avoided giving their
names on the ground that to do so would violate a confidence), neither of
whom was Schonfeld or the Union' s attorney , during which he was told
"that they [the Union] would abandon that point [production quota] in
order to facilitate and make an agreement " Peck further testified that this
private discussion was the sole basis for his impression that the Union
would abandon its 10-rooms production limitation and that he did not seek
any authoritative confirmation of the statement
The testimony of the Union' s witnesses is generally to the effect that the
Union did not at any time or in any manner indicate during the
negotiations that it would withdraw or rescind the work production rule,
promulgated on March 5, but to the contrary that it understood from
certain statements made by the Association 's negotiators that the
Association had no objections to the continuation of the rule if it was not
in violation of other terms of the agreement or was not otherwise unlawful
976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. CONCLUSIONS
The Respondent promulgated its 10-rooms rule and
began to apply it in March 1968. The charge in this
proceeding was not filed until December, more than 6
months later. The complaint alleges that the Union
promulgated the rule in disregard of its obligation to first
bargain about the subject and thus has violated Section
8(b)(3) of the Act. I find that if there was an obligation on
the part of the Union to bargain about the rule, such
obligation matured in early March 1968. It is unnecessary,
therefore, to consider whether the evidence establishes a
substantive violation of the Act because this proceeding is
barred by Section 10(b) which provides that "no complaint
shall issue based upon any unfair labor practice occurring
more than six months prior to the filing of the charge with
the Board and the service of a copy thereof upon the person
against whom such charge is made..... io
General Counsel contends that Section 10(b) is inapplica-
ble here and advances three arguments in support of this
position.
First, General Counsel contends that with respect to at
least five of the eight Charging Parties the rule was not
implemented until after September 9, 1968.11 Assuming this
to be the fact, General Counsel does not explain why for the
purposes of Section 10(b) the measuring period begins in
September rather than in March. It is General Counsel's
position that the Union's 10-rooms rule constituted a
change in a condition of employment. Because the term
"conditions of employment" includes all facets of the
employment relationship, future as well as present, a
condition of employment is altered when a change has been
effectively promulgated not when it becomes operative. For
example, if in January an employer announces that his
employees' summer vacations will be increased by I week,
the change in the employees' conditions of employment
relating to vacations occurred when the announcement was
made rather than when the employees begin to enjoy their
new vacation benefits. Similarly, if an employer announces
a deferred wage increase-the date of the announcement
rather than the operative date of the new wage rates is the
date on which the change in the conditions of employment
occurred. General Counsel recognizes that the 10-rooms
rule as promulgated contemplated deferment of its
implementation in some circumstances. 12 As the alleged
vice in the Union's conduct was to change or attempt to
change a condition of employment, that date in March on
which it announced the rule is the date from which the
alleged violation of its bargaining obligations began rather
than the various dates upon which the operation of the rule
began to affect the individual employer's production.
i° Durfee's Television Cable Company, 174 NLRB No 98 Charging
Party contends that between March and September the parties entered into
a new contract , had been involved in a strike , and had negotiated about the
work production limitation and that these factors present a wholly new
situation in September "when the Union again unilaterally reimposed a
work production limitation " I find contrary to Charging Party, that the
Union did not reimpose a new rule in September, but continued to
maintain the same rule that it had promulgated in March
11 By this statement General Counsel is referring to testimony by
officials of various companies that the effect of the rule upon their
operations had not become apparent until after September 9 However, the
employees of these companies had been advised in March 1968 of the
General Counsel 's second argument is that this "case
presents a situation where an illegal practice was promul-
gated more than 6 months prior to the date of filing of a
charge, and was additionally maintained and enforced
within the 6-month period." This argument and the cases
cited by General Counsel in support are inapposite.
Enforcement of a work limitations rule is not per se a
violation of the Act.13 Thus, as in the Bryan case,14 any
violation within the 6 months period can be spelled out only
by first finding that an unfair labor practice occurred prior
thereto.
General Counsel in support of his position argues:
This is not to say that any Union work limitation rule is
illegal, but rather that the particular one in our case,
under the circumstances of our case, is. We have
already pointed out how the agreement of the parties
not to adopt any form of work limitation must be
implied from the background and attendant circum-
stances, and is reflected in the continued absence of any
reference to work limitation in the contract . Because of
the parties' agreement to continue to treat the matter in
a negative manner, a consideration of the work
limitation rule as enunicated , even in connection with a
literal reading of the contract, would not reveal the
intrinsic illegal nature of the rule in our case . But the
impact of the Union's rule does become plainly revealed
upon consideration of the background of the elucidat-
ing established practice, Union attempt at change,
employer resistance to the proposed change and Union
capitulation as reflected in the continuation of the same
contract treatment of the subject.
To the extent that this argument depends upon the quoted
state of facts the argument fails because I have found that
the evidence does not support the factual premise on which
General Counsel relies. General Counsel's final argument is
as follows:
In addition to the fact that the Union as a general
practice maintained and gave effect to its 10-room rule
within the 10(b) period, there is a further argument
stemming from the fact that the changes in terms and
conditions of employment, and contrary to the terms of
the contract, were effected by the Union rather than, as
in the more typical situation , by the employer.
Normally, the employer having control of the prod-
uction process, the unilateral change is effected upon
his decision to make the change. The power to
implement follows naturally upon the decision. Where,
however, the change is imposed over the objection of
the one who normally controls the production process,
as here, the process is not accommodated to the change
and the change occurs only when the union is successful
adoption of the rule and had then been exhorted in the Union 's official
newspaper and at union meetings to cooperate with the Union in the
observance of the rule
11 In his brief General Counsel points out that "The resolution
contained a built-in provision for deferment of its implementation until all
current bid deadlines had been met (R-2), and in the case of at least one of
the Charging Parties there were no bids on new work from March until
October or later (Tr 367- I through 13 ), during which time he was not
subject to the maximum room limitation (Tr 366-6) "
73 See Scofield v NLRB , 394 U S 423 (1969).
i4 Local Lodge No 1424 , international Association of Machinists [Bryan
Manufacturing Co ] v N L R B, 362 U S 411
BROTHERHOOD OF PAINTERS, DISTRICT NO. 9
in imposing it, and therefore it occurs each time it is
imposed. It is not adopted as part of the system; it is
forced upon the system each time it is applied. It is a
series of repeated events, each one a violation. In our
case, then the Union's rule, unilaterally imposed as it
was, violated Section 8(b)(3) each time it was thus
imposed.
For generally the same reasons given above, I find no merit
to this argument.
CONCLUSIONS OF LAW
977
Respondent has not violated Section 8 (b)(3) of the Act as
alleged in the complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and upon the entire record, I
recommend that the complaint in this case be dismissed in
its entirety.