Kuykendall Painting Co.

National Labor Relations Board - Board Decisions

Aug 10, 1992

308 N.L.R.B. 177 (N.L.R.B. 1992)

177
308 NLRB No. 42
KUYKENDALL PAINTING CO.
1 In light of our decision to adopt the judge’s recommended dis-
missal of the complaint on jurisdictional grounds, we find it unnec-
essary to pass on the Respondent’s exceptions.
Kuykendall Painting Co. and District Council No. 2
of the Brotherhood of Painters and Allied
Trades, AFL–CIO. Case 14–CA–21628
August 10, 1992
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On March 25, 1992, Administrative Law Judge Mi-
chael O. Miller issued the attached decision. The Re-
spondent filed exceptions and a supporting brief. The
Charging Party filed exceptions and a supporting brief
and an answering brief to the Respondent’s exceptions.
The General Counsel filed an answering brief to the
Respondent’s exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Caryn L. Fine, Esq., for the General Counsel.
William C. Cody, Esq., for the Respondent.
Janet E. Young, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
MICHAEL O. MILLER, Administrative Law Judge. This
case was heard in St. Louis, Missouri, on January 30, 1992,
based on an unfair labor practice charge filed on September
23, 1991, as amended on November 7, 1991, by District
Council No. 2 of the Brotherhood of Painters and Allied
Trades, AFL–CIO (the Union or the Charging Party), and a
complaint issued by the Regional Director of Region 14 of
the National Labor Relations Board (the Board), on Novem-
ber 8, 1991. The complaint alleges that Kuykendall Painting
Co. (Respondent), withdrew recognition from the Union,
failed and refused to make contributions required under a
collective-bargaining agreement and repudiated that agree-
ment in violation of Section 8(a)(5) and (1) of the National
Labor Relations Act (the Act). Respondent’s timely filed an-
swer denies the commission of any unfair labor practices and
asserts affirmative defenses.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by the General Counsel, Respondent and the Charging
Party, I make the following
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION STATUS
The Painting and Decorating Contractors of America,
Chapter No. 2 (PDCA), is an association of employers en-
gaged in the construction industry as painting subcontractors,
which exists for the purpose, inter alia, of representing its
members in negotiating and administering collective-bargain-
ing agreements with various labor organizations, including
the Union.
It was stipulated that Custom Coatings, Inc., a member of
the PDCA, is and has been at all times material herein a
Missouri corporation with an office and place of business in
St. Charles, Missouri, where it is engaged as a painting con-
tractor in the building and construction industry performing
both residential and commercial painting. During the 12-
month period ending October 31, 1991, Custom Coatings,
Inc., in the course and conduct of its business operations,
purchased and received at its St. Charles, Missouri facility,
goods and materials valued in excess of $50,000 from other
enterprises located within the State of Missouri which had re-
ceived said goods and materials directly from points outside
the State of Missouri and had received products, goods and
materials valued in excess of $50,000 directly from points lo-
cated outside the State of Missouri.
Custom Coatings, Inc. has been at all times material herein
an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
The employer members of the PDCA are now, and have
been at all times material herein, employers engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
Respondent is not a member of the PDCA. The record is
devoid of evidence with respect to any interstate implications
of Respondent’s business.
The complaint alleges, Respondent admits, and I find and
conclude that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
Respondent has been in business since 1973, engaged in
painting homes under construction in subdivisions and other
light commercial painting. John Kuykendall, its proprietor or
president, was a union member and, in 1980, 1983, and
1985, executed the collective-bargaining agreements which
had been negotiated between the PDCA and the Union. Re-
spondent operated as a union contractor. It complied with the
terms of the contracts, paid the wages and fringe benefits re-
quired under them, including payments into the various bene-
fit funds, and secured union member-employees from the
Union. Respondent, however, was never a member of the
PDCA and never participated in its negotiations.
The agreements which Respondent signed stated that they
were between it and the Union. They continued, as follows:
The Union is herewith recognized as the exclusive
bargaining representative of all employees covered by
this Agreement.
178 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The demand was made to satisfy perceived requirements pursuant
to John Deklewa & Sons, 282 NLRB 1375 (1987).
2 Under direct examination, Keys testified that he found
Kuykendall’s employees on the Winding Trails subdivision in Octo-
ber or November but did not locate Kuykendall, himself, until late
November or early December. Under cross examination, he testified
that he spoke with Kuykendall in late October or early November.
3 According to Krout, Kuykendall had told him as early as July
1988, at the election when Krout had become a business agent, that
he was going to go out of the painting business and into a mobile
home park. Krout did not mention this to anyone until after the Feb-
ruary or March conversation.
The . . . (PDCA) is herewith recognized as the ex-
clusive Bargaining Representative for contractors signa-
tory to this Agreement . . . .
According to representatives of the Union (Joseph Shatro,
business manager) and of the PDCA (Raymond Hagemeyer,
former president and chairman of the negotiating committee),
the foregoing language bound all signatories of one PDCA-
union agreement to the subsequent agreements until they
gave timely notice of an intention to bargain separately. No
bylaw or constitutional contractual provision imposing a no-
tice requirement was adduced.
It was the Union’s practice to send a list of all the signato-
ries to the prior agreement to the Federal Mediation and
Conciliation Service with its 60-day termination letter, as an
indication of the parties involved in the negotiations. It was
the practice of the Union and the PDCA to compare with-
drawal letters each had received prior to the opening of ne-
gotiations to determine for whom the PDCA would be bar-
gaining.
As noted, Respondent executed copies of the agreement
negotiated between the Union and PDCA for the 1980–1982,
1983–1985, and 1985–1988 terms. Kuykendall never sent ei-
ther the Union or the PDCA notice that he did not intend
to be bound by the PDCA’s negotiations for the 1988–1991
agreement. Respondent’s name was included among the con-
tractors listed by the Union in its FMCS notification; that no-
tification, basically a list of the union painting contractors as
of mid-1987, included some contractors who had expressly
withdrawn from the PDCA negotiations.
On June 25, 1988, the Union sent Respondent a notice that
it was terminating the ‘‘current agreement between [the
Union] and your company’’ as of August 31. That letter re-
quested that Respondent ‘‘advise [it] if you have designated
the [PDCA] as your bargaining representative.’’ No response,
either acknowledging PDCA as his bargaining representative
or withdrawing its alleged authority, was received from
Kuykendall.
On June 27, 1988, the Union sent Respondent a demand
for recognition based upon signed authorization cards ‘‘from
a majority of your bargaining unit employees.’’1 While the
Union has no record of receiving that agreement, signed,
from Respondent, such an agreement, presumably from Re-
spondent’s files, signed and dated by both parties on August
26, 1988, was entered into evidence.
The PDCA and the Union reached a new agreement some-
time in the summer of 1988, to be effective from September
1, 1988, to August 31, 1991. The Union had copies printed
and sent out to each of the employers who had been signa-
tory to the prior agreement other than those who had with-
drawn PDCA’s authority to negotiate on their behalf. A copy
was mailed to Respondent; Kuykendall did not sign or return
it.
In October, Shatro assigned Union business agent Irvin
Keys to locate Kuykendall and get him to sign the agree-
ment. Keys found Kuykendall working on a jobsite in No-
vember or December 19882 and asked him to sign the con-
tract. Kuykendall, he testified, stated that he had been out of
town dealing with family problems and was looking into the
possibility of ‘‘getting into something else.’’ Keys did not in-
sist that Kuykendall sign at that time but said that he would
check back later.
Keys spoke with Kuykendall on another jobsite in early
1989. He was still trying to get the contract signed and asked
what Kuykendall was going to do. According to Keys,
Kuykendall ‘‘still talked about getting out of the painting
business . . . it wasn’t being profitable . . . he had men-
tioned . . . some land down around Hillsboro and he was
thinking about a trailer park.’’
Finally, according to Keys, he and business agent James
Krout found Kuykendall on another jobsite in February or
March 1989. Keys reiterated the request that Kuykendall sign
the contract. Kuykendall, according to the testimony of both
agents, said that he was getting out of the painting business,
that he was going to open a trailer park after he completed
the last couple of houses. Krout allegedly told Keys that this
was no surprise to him, that Kuykendall had told him of his
intentions at an earlier time.3
Kuykendall acknowledges having several conversations
with Keys wherein Keys pressed him to sign the agreement.
In each, he said, he refused to sign the contract because the
annual wage increases were too costly. In their last conversa-
tions, in April and May 1989, he said, he told Keys that he
was going to get out of the Union and just paint, by himself.
Keys threatened to pull his painters and told him that he
would be prevented from painting subdivisions in St. Louis.
He purportedly told Keys that he would continue as a painter
because that was all he knew how to do.
Kuykendall denied telling Keys or Krout that he was
thinking about, or intended, to go into the mobile home park
business. In the April conversation, he claimed, he told Keys,
in passing, that he had bought some property and might put
a trailer on it.
In resolving this credibility issue, I note as significant that
the Union did not pull Kuykendall’s painters, or file either
a grievance or unfair labor practice charge against him. The
Union would have had a right, and would have been ex-
pected to take such actions, if Kuykendall had flatly refused
to sign the contract, particularly if he also indicated that he
was going to continue as a nonunion painter. On the other
hand, I note that Kuykendall was continuing to pay the
wages and benefits required under that contract, somewhat
obviating the Union’s inclination to apply pressure upon him.
On balance, considering the above, the corroboration of Keys
by Krout and the somewhat more explicit recollections of
Keys and Krout than Kuykendall, I credit Keys and Krout.
I find that Kuykendall said something in their final conversa-
tion which, in light of his earlier references to land and a
trailer, lead Keys to believe that he was going out of the
painting business.
On May 24, 1989, Kuykendall’s attorney, John Kilo,
called Shatro. He testified that he told Shatro that
179KUYKENDALL PAINTING CO.
4 General Counsel contends that Respondent failed to establish that
Kuykendall reduced his workforce to not more than one employee.
His testimony to that effect, however, was credible and
uncontradicted; moreover, it was not Respondent’s burden to prove
the inappropriateness of the unit. It is irrelevant to the issue of unit
appropriateness that Kuykendall, as owner of the business, per-
formed unit work and thus ‘‘displaced the position of a second unit
employee.’’ A unit which includes the owner and one other is still
a single employee unit and inappropriate.
Kuykendall was interested in getting out of the Union and
that he would be sending a letter withdrawing recognition as
an employer and individually. He claimed to have told
Shatro that Kuykendall was going to continue as a painter,
with a downsized business, and that Shatro had said that
Kuykendall would not be able to get union painters. He then
read Shatro a draft of the letter he was going to send and
was told that it was ‘‘Fine.’’
Shatro recalled the conversation differently. When Kilo
told him that Kuykendall was going out of business, he said,
he asked for a letter so that he could notify the fringe benefit
funds. He denied that Kilo told him that Kuykendall was
going to continue as a nonunion painter, with a smaller crew.
No letter was read to him at that time.
No letter was sent until July 24, 1989. At that time, Kilo
wrote:
This is to advise you that Kuykendall Painting Co., Inc.
is withdrawing any further recognition as an employer
under the Painter’s Union. Please be further advised
that John Kuykendall, individually, is withdrawing as a
member . . . to take effect immediately.
Noting the delay between the May 24 conversation and the
July 24 letter, the absence of any reference in the letter to
Kuykendall’s future plans, and the substantial improbability
that the chief officer of a union would authorize a union con-
tractor to go nonunion in mid-term without a loud objection,
I must credit Shatro. Kilo may have meant to imply that
Kuykendall was going to remain in business as a non-union
painting subcontractor but I cannot find that he told that to
Shatro.
As noted, Respondent complied with the terms of the
1988–1991 agreement until July 28, 1989. After that time, as
the Union determined from the fringe benefit fund records,
all of his union employees, including his son, had begun
working for other union contractors.
The Union made no effort to pursue Kuykendall’s signa-
ture by seeking him out at his home. He was not observed
on any jobsites during the remainder of 1989, 1990, or until
July 1991. However, Respondent stipulated that it never went
out of business. Kuykendall continued to paint homes, either
by himself or with no more than one employee, throughout
that entire time.4
A new collective-bargaining agreement, effective Septem-
ber 1, 1991 through August 31, 1994, was reached in the
summer of 1991. Kuykendall’s name had not been among
those submitted to FMCS with the Union’s notification.
Krout found Kuykendall working in a subdivision in July
1991. When confronted, Kuykendall said that nothing had
changed and asked Krout not to make trouble for him. The
Union sent an ‘‘area standards’’ letter to Kuykendall, threat-
ening to engage in informational picketing. It also filed a
grievance under the new contract, alleging that Kuykendall
had breached the agreement by failing to pay wages and
remit both dues and fringe benefit contributions. That griev-
ance has been held in abeyance pending this proceeding.
B. Analysis and Conclusions
General Counsel and the Union contend that Respondent’s
signing of the 1980, 1982, and 1985 contracts binds it to
both the multiemployer unit and to the terms of the PDCA-
Union agreements negotiated in 1988 and 1991. They further
contend that Kuykendall fraudulently misrepresented his in-
tention to go out of business, thereby forestalling the applica-
tion of Section 10(b), the statute of limitations. Respondent
contends that it was an individual employer, not in com-
merce and not obligated to execute the PDCA agreements,
with, at most, a separate and ultimately inappropriate one
man unit. Respondent further contends that the finding of
any unfair labor practice is precluded by Section 10(b).
In Ruan Transport Corp., 234 NLRB 241 (1978), the em-
ployer signed an agreement reached earlier between the
union and a council of employers. That employer had not
participated in the negotiations, was not a member of that
council, and had never expressly authorized that council to
negotiate on its behalf. However, the agreement which the
employer signed stated:
The employees covered under this Agreement shall
constitute one bargaining unit. Accordingly, the [Coun-
cil] and the Employers who are parties to this Agree-
ment acknowledge that they are part of a multi-em-
ployer collective-bargaining unit comprised of [the
Council] and those of their members who have or will
certify the [Council] to represent them for the purpose
of collective bargaining, and only to the extent of such
authorization; and also such other individual employers
who have or may singly become parties to this agree-
ment. [Emphasis supplied.]
The employer did not participate in the next round of nego-
tiations between the council and the union; neither did it ex-
pressly authorize or expressly withdraw authorization for the
council to bargain on its behalf. After the union and the
council reached a new agreement, it was presented to the
employer, who refused to sign it. An 8(a)(5) charge was
filed.
The Board in Ruan held, in principles equally valid today:
we note that a multiemployer unit, unlike other types
of bargaining units, is consensual in nature. The Board
has consistently held that ‘‘the essential element war-
ranting the establishment of multiple employer units is
clear evidence that the employers unequivocally intend
to be bound in collective bargaining by group rather
than by individual action.’’ As a general rule, the
Board has found that an employer does not become
part of a multiemployer bargaining group (i.e., it does
not intend to be bound by group bargaining) where it
merely adopts a collective-bargaining agreement in the
negotiation of which it did not actually participate and
which it did not authorize another to negotiate on its
behalf. [Emphasis supplied; footnotes omitted.]
180 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Contra, J. D. Candler Roofing, 258 NLRB 341 (1981), cited by
the General Counsel, where the employer’s power of attorney had
expressly authorized the association to bargain on its behalf for that
contract and for ‘‘successor labor agreements until revoked.’’
6 The discussions between the PDCA and the Union regarding who
the PDCA was bargaining for, and the Union’s notification to FMCS
purporting to name the employers involved in its negotiations with
PDCA are immaterial. ‘‘It is, of course, well settled . . . that agency
and authority cannot be proved by the hearsay statements of the al-
leged agent himself.’’ Brownell v. Tidewater Associated Oil Co., 121
F.2d 239 (3d Cir. 1941); Wigmore Evidence, Chadbourn Rev., Vol
IV, § 1078, p. 176.
7 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be waived for
all purposes.
In Ruan, the Board specifically found that the ‘‘one bargain-
ing unit’’ provision did not serve to authorize the council to
negotiate on the employer’s behalf in subsequent years.
Agreeing with the administrative law judge that this clause
was less than a model of clarity, it went on to say:
assuming arguendo, that the provision was clearly writ-
ten and unambiguous, we find that such a bare cov-
enant by the Respondent by which it agreed to be part
of a multiemployer bargaining group does not itself suf-
fice to clearly demonstrate that the Respondent dele-
gated authority to the [council] to represent it in future
negotiations. The most than can be said for the ‘‘one
bargaining unit’’ provision is that it perhaps implicitly
authorized the [council] to represent the Respondent in
[the next] negotiations. However, we find that some-
thing in addition to a mere implied delegation of au-
thority is needed in order to constitute clear evidence
of an unequivocal intent on the part of an employer to
be bound by group bargaining. We would require, for
example, some conduct on the part of the employer
which indicates that it actually pursued a group course
of action with regard to labor relations.
See also Southern California Pipe Trades Council (Plumbing
Industry), 292 NLRB 270, 281 (1989).
In the instant case, the agreements which Respondent had
signed were expressly between it and the Union; moreover,
they did not purport to apply to or create a multiemployer
bargaining unit. Further, the language purporting to accept
PDCA as the employer’s bargaining representative was am-
biguous in that it did not specify whether it was solely for
the term of this agreement or was intended to apply to future
negotiations.5
Thus, the agreements and the relevant conduct of the em-
ployers in Ruan and the instant case are equivalent. Neither
engaged in any conduct indicating an actual pursuit of group
action.
In Ruan, the Board further noted that the employer had ad-
vised the union of its intent to bargain separately and, in fact,
such negotiations took place. In the instant case, the Union
demanded recognition from Respondent based upon its ma-
jority status among Respondent’s employees, terminated the
agreement which it had with the Respondent, and asked Re-
spondent to notify it if Respondent was designating the
PDCA as bargaining agent. Kuykendall did not respond to
the latter request. These actions, by both the Union and the
Respondent, negate the unequivocal intent required to estab-
lish a multiemployer bargaining unit.6
Having found an insufficiency of proof that Respondent
had obligated itself to multiemployer bargaining or included
its employees within a multiemployer bargaining unit, I must
further find that the critical elements of this case likewise
fail.
Respondent was not a member of the PDCA. Neither was
it aligned with the PDCA in multiemployer bargaining or in
a multiemployer bargaining unit. Therefore, this record is de-
void of any evidence establishing jurisdiction of the Board
over Respondent.
Moreover, after July 1989, the Respondent employed, at
most, one employee. There was, therefore, no unit appro-
priate for collective bargaining.
In the absence of evidence establishing jurisdiction, I need
not reach the questions of Respondent’s repudiation of the
agreement, failure to comply with that agreement, withdrawal
of recognition or alleged fraudulent concealment of a cause
of action tolling the statute of limitations.
Accordingly, I make the following
CONCLUSIONS OF LAW
1. Respondent is not an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. At no time after the withdrawal of recognition did Re-
spondent employ employees in a unit appropriate for the pur-
poses of collective bargaining.
3. Respondent has not engaged in the unfair labor prac-
tices alleged in the complaint.
On the basis of these findings of fact and conclusions of
law, and the entire record in this proceeding, I issue the fol-
lowing recommended7
ORDER
The complaint herein is dismissed in its entirety.