District Council of Painters No. 52

National Labor Relations Board - Board Decisions

Apr 7, 1976

223 N.L.R.B. 748 (N.L.R.B. 1976)

748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
District Council of Painters No. 52 and South Central APPENDIX
Board of Painting & Decorating Contractors Asso-
ciation of America . Case 31-CB-1962
April 7, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND JENKINS
On December 30, 1975, Administrative Law Judge
Richard J. Boyce issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief, and the General Coun-
sel filed cross-exceptions and a brief in support there-
of and an answering brief to Respondent's
exceptions.
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, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order as modified below.
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 as modified
below, and hereby orders that the Respondent, Dis-
trict Council of Painters No. 52, San Luis Obispo,
Santa Barbara, and Ventura Counties, California, its
officers, agents, and representatives, shall take the
action set forth in said recommended Order, as so
modified:
1. Substitute the following for paragraph 1:
"1. Cease and desist from refusing to bargain col-
lectively with the Associations, concerning the wages,
hours, and other terms and conditions of employ-
ment of the employees in the appropriate unit, by
failing and refusing to honor the residential repaint
contract which was agreed upon in February 1975
and copies of which were signed in March and April
1975."
2. Substitute the attached notice for that of the
Administrative Law Judge.
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
Pursuant to a hearing in which all parties partici-
pated and had a chance to give evidence, the Nation-
al Labor Relations Board decided that we had com-
mitted an unfair labor practice in violation of Section
8(b)(3) of the National Labor Relations Act, and or-
dered us to post this notice.
WE WILL NOT refuse to bargain collectively
with Ventura Master Painters Association,
Painting and Decorating Construction Painters
Association of Santa Barbara, and San Luis
Obispo and Northern Santa Barbara County
Chapter of Painting & Decorating Contractors
of America, concerning the wages, hours, and
other terms and conditions of employment of
the employees in the appropriate unit, by failing
and refusing to honor the residential repaint
contract which was agreed upon in February
1975 and copies of which were signed in March
and April 1975.
WE WILL, as the exclusive bargaining represen-
tative of the employees in the appropriate unit,
bargain collectively with the above Association
by honoring the residential repaint contract;
and by signing such further copies of the con-
tract, if requested, as we would have signed but
for our repudiation thereof.
WE WILL notify the above Association in writ-
ing that we are retracting our repudiation of the
residential repaint contract.
The appropriate unit is:
All painting and decorating employees em-
ployed by the employer-members of the above
Associations, excluding all office clerical em-
ployees, guards, and supervisors as defined in
the Act.
DISTRICT COUNCIL OF PAINTERS No. 52
DECISION
STATEMENT OF THE CASE
RICHARD J. BOYCE, Administrative Law Judge: This case
was heard in Santa Barbara, California, on November 4,
1975. The charge was filed July 9, 1975, by South Central
Board of Painting & Decorating Contractors Association
of America. The complaint issued August 29, 1975, was
amended during the hearing, and alleges violations by Dis-
223 NLRB No. 112
DISTRICT COUNCIL OF PAINTERS
trict Council of Painters No. 52 (herein called Respondent)
of Section 8(b)(3) of the National Labor Relations Act.
The parties were given opportunity at the hearing to in-
troduce relevant evidence, examine and cross-examine wit-
nesses , and argue orally. Briefs were filed for the General
Counsel and Respondent.
1. ISSUE
The issue is whether Respondent by disavowing a bar-
gaining contract, copies of which it previously had signed,
because of the intervening failure of a membership ratifica-
tion vote, violated Section 8(b)(3) of the Act.
11. JURISDICTION
Respondent engages in collective bargaining on a single-
unit basis with three employer associations and their em-
ployer-members. The three associations are Ventura Mas-
ter Painters Association, Inc.; Painting and Decorating
Construction Painters Association of Santa Barbara, Inc.;
and San Luis Obispo and Northern Santa Barbara County
Chapter of Painting & Decorating Contractors of America.
They are referred to in this decision, collectively, as the
Associations.
The employer-members of the Associations, in the ag-
gregate , annually purchase goods of a value exceeding
$50,000 from suppliers in California who in turn received
said goods, in substantially the same form, directly from
outside California. The Associations and their employer-
members, jointly, are an employer engaged in and affecting
commerce within Section 2(2), (6), and (7) of the Act.
III. LABOR ORGANIZATION
Respondent is a labor organization within Section 2(5)
of the Act.
IV. THE ALLEGED UNFAIR LABOR PRACTICE
A. Facts
Respondent is the bargaining representative, in a single
unit, of all painting and decorating employees employed by
the employer-members of the Associations.' Those em-
ployees are covered by a master labor agreement between
Respondent and the Associations, running from July 1,
1974, through June 30, 1977.
Increasingly in recent years, residential repaint work has
gone to nonunion painters. This problem was raised during
the negotiations leading to the current master agreement,
the thought being to include special residential repaint pro-
visions enabling union contractors to become more com-
petitive. The master agreement was concluded without
such provisions, however, and the pressure for a residential
repaint dispensation persisted. Through representatives on
the Channel Counties Painters and Decorators Joint Com-
1 Excluding all office clerical employees , guards, and supervisors as de-
fined in the Act. The complaint alleges, the answer admits, and it is found
that this is an appropriate unit within Section 9(b) of the Act.
749
mittee (herein called the Joint Committee), Respondent
and the Associations continued to pursue the matter at
Joint Committee meetings.'
Agreement on a residential repaint contract was reached
at the Joint Committee meeting of February 24, 1975. It
contained 13 items, foremost of which was that wages for
residential repaint work would be 75 percent of master
agreement scale. At a followup meeting on March 5,
Respondent's executive secretary, Robert Marks, signed a
memorandum acknowledging that Respondent's executive
board, in its February 21 meeting, had "voted to accept the
Residential Repaint Agreement as proposed by Labor and
Management." At the same meeting, Marks signed memo-
randa whereby Respondent agreed to drop NLRB charges
against employer-members of the Association who had re-
fused to sign the master agreement in the absence of resi-
dential repaint provisions, and to forego pursuit of fringe
benefit claims against those employer-members for non-
compliance with the master agreement. Withdrawal of the
charges followed.
At a later Joint Committee meeting, on March 13, the
administrator of the Joint Committee, Raymond Barrett,
was directed by the delegates to notify the Associations'
employer-members of the newly negotiated repaint con-
tract and to distribute copies to them for signing. Distribu-
tion presently was made, and 10 employer-members signed
and returned copies to Barrett. Marks, for Respondent,
signed nine of those copies upon their return. In reliance
upon the contract, one of the Associations 3 shortly placed
newspaper advertisements proclaiming a 25-percent reduc-
tion in labor costs for residential painting, one of the em-
ployer-members ° performed work pursuant to its terms,
and another employer-member 5 bid jobs based on the re-
duced scale.
On June 2, however, Marks sent this letter to Barrett:
Dear Sir:
The results of a referendum vote by the membership
of District Council #52 indicate that the members are
not in favor of a Residential Repaint Agreement.
Please be advised that such an agreement is not in
effect at this time.
Efforts are actively being pursued to seek an alternate
solution to the problem of the repaint work being
done by non-union people.
We request that you notify your Association members
of these results.
Very truly yours,
ROBERT V. MARKS
Executive Secretary
Previously, at the meeting on February 21 in which
Respondent's executive board voted acceptance of the re-
paint contract, Marks had been directed to obtain a "legal
2 As explained by its administrator, Raymond Barrett, the Joint Commit-
tee consists of 14 delegates, one-half of whom represent Respondent and
one-half of whom represent the Associations.
3 Ventura Master Painters Association, Inc.
° Lewis Painting.
5 Bertram Hainsworth Sands.
750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
interpretation" concerning the need for membership ratifi-
cation. Marks went to Ventura Attorney James Farley,
who advised that ratification was not necessary . Farley
provided Marks with a letter to that effect, dated March 5,
which Marks took to the aforementioned Joint Committee
meeting of March 5. Marks testified that , armed with
Farley's letter, he "didn't feel like there was anything left to
do but get it [the repaint contract ] signed."
Then , at a meeting of Respondent 's executive board on
March 21, heated argument arose over the ratification is-
sue. The question finally was put to vote whether the exec-
utive board's acceptance of the contract at its February 21
meeting contemplated ratification , or only inquiry into the
need for ratification. The chairman, breaking a 6-6 tie,
voted that ratification was contemplated. This prompted
Marks to query the International with which Respondent is
affiliated . The International replied that its constitution
dictated ratification.6 A ratification vote was held some
time in May. The membership rejected the repaint con-
tract, causing Marks to send the above -quoted June 2 letter
to Barrett.
Marks testified that he believed that Respondent and the
Associations had a binding contract until the International
told him of the need for ratification . He conceded that he
never informed anyone from the Associations "officially"
that ratification would be required ; although he vaguely
recalled opining to someone or other, after the Internation-
al had spoken, that he was confident a ratification vote
would carry. Art Mascala, a business representative for Re-
spondent, testified in seeming contradiction of Marks that
Marks mentioned a possible need for ratification at the
Joint Committee meeting of February 24. Marks testified,
with notable lack of conviction ,7 that he mentioned the
need for ratification at the Joint Committee meeting of
April 10. Mascala testified at one point that he had no
recall of this; at another , that he had a "vivid recollection"
of it. The minutes of the February 24 and April 10 meet-
ings are silent on the point, and all of the management
witnesses denied any such mention . The management wit-
nesses are credited because of the unlikelihood of so im-
portant a matter being omitted from the minutes ; the con-
flict between Marks and Mascala concerning the February
24 meeting; the weakness of Marks' testimony concerning
the April 10 meeting; the dubious quality of Mascala's cor-
roboration regarding April 10 ; and, finally, the impressive
forthrightness of the management witnesses.
On September 24, 1975, Judge Manuel Real of the Unit-
ed States District Court, Central District of California, is-
sued an order for preliminary injunction enjoining Respon-
dent, among other things, "from signing any contracts
affecting the wages , hours and working conditions of the
union members without first submitting such contracts to a
referendum vote of the members ...." This was at the
behest of three presumed members of Responent. The rec-
6 The International cited sec . 196(b) of the cQnstitution. which states:
"Where the working agreements are negotiated by the District Councils
and/or Local Unions, the same shall be decided upon by referendum vote
of the membership of the Local Unions of the same craft."
r "1 do believe I made it known"; "I think so, yes"; "I feel that I made the
statement at that time"; " I don't have a specific recollection as to what was
said."
ord is silent concerning the circumstances underlying that
proceeding.
B. Discussion
Never during negotiation of the repaint contract did Re-
spondent alert the Associations that agreement was subject
to membership ratification . Fortified by legal advice,
Marks himself believed, until well after the contract had
been reached and several copies signed and actions taken
in reliance on it , that ratification was not necessary.
Respondent 's eventual repudiation of the contract , embod-
ied in Marks ' June 2 letter, therefore constituted bad-faith
bargaining in violation of Section 8(b)(3) of the Act. Eleva-
tor Constructors Local 8 (National Elevator Industry, Inc.),
185 NLRB 769 (1970); Brotherhood of Painters, Decorators
and Paperhangers of America, Glaziers Local 1385 (Associat-
ed Building Contractors of Evansville), 143 NLRB 678
(1963); Sheet Metal Workers Union, Local 65, AFL-CIO
(Inland Steel Products Co.), 120 NLRB 1678 (1958).
Judge Real's preliminary injunction does not alter this
conclusion. Not only had Respondent already signed sev-
eral copies of the repaint contract by then , but there is
nothing in the record to suggest that the injunction was
addressed to the issues in this proceeding . Beyond that,
and more fundamentally , the injunction does not run to
the National Labor Relations Board in its enforcement of
statutory policy; nor could it without doing violence to the
doctrine of exhaustion of administrative remedies. See
N.L.R.B. v. C & C Plywood Corp., 385 U.S. 421 (1967);
Wilmot v . Doyle, 403 F .2d 811 (C.A. 9, 1968).
CONCLUSIONS OF LAW
1. By repudiating the residential repaint contract as
found herein, Respondent engaged in an unfair labor prac-
tice within Section 8(b)(3) of the Act.
a. This unfair labor practice affects commerce within
Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDERS
Respondent, District Council of Painters No. 52, its offi-
cers, agents , and representatives, shall:
1. Cease and desist from refusing to bargain collectively
with the Associations, concerning the wages, hours, and
other terms and conditions of employment of the employ-
ees in the appropriate unit, by failing and refusing to honor
the residential repaint contract which was agreed upon in
February 1975 and copies of which were signed in March
1975.
B In response to the General Counsel' s motion, the transcript has hereby
been corrected.
9 All outstanding motions inconsistent with this recommended Order
hereby are denied . 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.
DISTRICT COUNCIL OF PAINTERS 751
2. Take the following affirmative action:
(a) As the exclusive bargaining representative of the em-
ployees in the appropriate unit, bargain collectively with
the Associations by honoring the residential repaint con-
tract; and by signing such further copies of the contract, if
requested, as it would have signed but for its repudiation
thereof.
(b) Notify the Associations in writing that it is retracting
its repudiation of the residential repaint contract.
(c) Post at its offices and meeting halls copies of the
attached notice marked "Appendix." 10 Copies of said no-
tice, on forms provided by the Regional Director of Region
31, after being signed by an authorized representative of
Respondent, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to members customarily are post-
ed. Reasonable steps shall be taken to ensure that said no-
tices are not altered, defaced, or covered by other material.
(d) Notify the Regional Director of Region 31, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
10 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relation Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."