Painters, Local 850

National Labor Relations Board - Board Decisions

Jun 27, 1969

177 N.L.R.B. 155 (N.L.R.B. 1969)

PAINTERS, LOCAL 850 155
Brotherhood of Painters, Decorators and
Paperhangers of America , Local 850, AFL-CIO
and Morgantown Glass and Mirror , Inc. Case
6-CB-1534
June 27, 1969
DECISION AND ORDER
BY CFIAIRMAN MCCULLOCH AND MEMBERS
JENKINS AND ZAGORIA
On February 20, 1969, Trial Examiner George A.
Downing issued his Decision in the above-entitled
proceeding, finding that the Respondent had not
engaged in certain unfair labor practices and
recommending that the complaint be dismissed in its
entirety. Thereafter, the General Counsel filed
exceptions to the attached Trial Examiner's
Decision, and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
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 brief, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner with the following modifications and
clarifications.
We find, in agreement with the Trial Examiner,
that the Respondent did not refuse to bargain in
violation of Section 8(b)(3) of the Act. In doing so,
we rely solely on the following facts as found by the
Trial Examiner and established by the record: For
10 years the Respondent, Local 850, has represented
the glaziers employed by the Employer in the
Morgantown, West Virginia, area. At the start of
current negotiations, Local 850 was informed by its
International that Local 751 would press its
jurisdictional claims to represent these glaziers
unless Local 850 negotiated standards obtained by
Local 751 for glaziers in comparable areas. The
International also provided Local 850 with a copy of
a Local 751 contract for its guidance. The Employer
was similarly advised. Although Local 850
thereafter, on April 16, reached tentative agreement
with the Employer on a new contract, the agreement
was not final and binding since, pursuant to the
Employer's admitted understanding, International
Representative Holdcroft's approval of wage rates
was first necessary. Thereafter, on June 13, Local
850 declined to execute the contract on the ground
that the wage rates in the contract were not
acceptable to Holdcroft, or to the International
and/or Local 751, and it requested further
negotiations.
In Standard Oil Company (An Ohio Corp.), 137
NLRB 690, the Board held, inter alia , that for a
local to defer signing a collective-bargaining
agreement pending approval by its international is
not in itself unlawful. We agree with this view
where, as here, the necessity for such approval is
clearly understood by the parties, and if the
international's withholding of approval related to
dissatisfaction with the contract terms and not to
extraneous issues. Here, the Respondent deferred
signing the tentative agreement pending the
International Representative's approval of the wage
scale for glaziers in the contract, and the
International Representative withheld approval
because of dissatisfaction therewith. The wage scale
was an integral part of, and not extraneous to, the
Respondent's contract negotiations. In these
circumstances, although the decision to withhold
approval of the wage scale may have been
influenced chiefly, or even solely, by the views of
Local 751, we find that the decision related to the
terms and conditions of employment being
negotiated by Respondent Local 850 for the unit
employees it represented and not to any terms and
conditions of employment elsewhere. As there was
therefore no improper precondition to the execution
of the tentative agreement reached, we find, in
agreement with the Trial Examiner, that the
Respondent's refusal to execute it was not unlawful.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the complaint herein be, and it
hereby is, dismissed in its entirety.
As we have affirmed the Trial Examiner 's dismissal on this ground, we
find it unnecessary to rule on additonal grounds advanced by the
Respondent, or found by the Trial Examiner for dismissing the complaint
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
GEORGE A DOWNING, Trial Examiner This proceeding
under Section 10(b) of the National Labor Relations Act
as amended was heard at Morgantown, West Virginia, on
December 18, 1968, pursuant to due notice. The complaint
which was issued on October 18, 1968 (all events herein
occurred in 1968), on a charge filed June 19, alleged that
Respondent engaged in unfair labor practices proscribed
by Section 8(b)(3) of the Act by refusing on and after
June 13 to execute a written contract embodying the terms
and conditions of an agreement reached by it with the
Charging Party (MGM herein) on April 16. Respondent
answered, denying said unfair labor practices and pleading
certain defenses which are referred to in section II, A,
infra.
Upon the entire record in the case and from my
observation of the witnesses, I make the following:
177 NLRB No. 16
156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER ; RESPONDENT AS A
LABOR ORGANIZATION
I find on the basis of admitted facts that MGM is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act,' and that Respondent
Union is a labor organization within the meaning of
Section 2(5) of the Act.
H. THE UNFAIR LABOR PRACTICES
A. Introduction and Issues
Respondent Local 850 and MGM have been parties
since 1957 to yearly collective-bargaining agreements, the
last of which expired on March 31, 1968. On February 13
Respondent requested a meeting for the purpose of
negotiating a new contract , and meetings were held on
February 21 and April 16, at the latter of which
agreement was reached between the negotiators there
present . In a further meeting held on June 13, MGM was
informed that the contract was not acceptable to the
International Union and/or to its Local 751 and requested
further negotiations . MGM refused , claiming it had a
valid contract, and stated that it would file an unfair labor
practice charge.
The central issue is whether the agreement as reached
on April 16 was with the understanding that it was subject
to approval of any sort , either by the International, its
General Representative James P. Holdcroft , or by Local
751. Respondent asserts further that the agreement was
subject to the approval of its membership.'
As Respondent' s defense revolved around a
jurisdictional conflict between Local 850 and 751, it will
be helpful to review preliminarily the jurisdictional lines,
both geographical and craftwise, and the International's
organizational hierarchy . The constitution provided in part
separate general classifications for painters , for decorators
(and glaziers), and for glassworkers (and general glazing).
Local 751 was a glassworkers and glaziers local, whose
headquarters were in Pittsburgh and whose geographical
area covered 21 Pennsylvania counties, 2 Maryland
counties and 2 counties in West Virginia (Monongalia and
Preston).
Local 850's jurisdiction was somewhat muddled.
Though General Representative James P. Holdcroft
described it as a painters local, without jurisdiction over
glaziers and glassworkers, Business Representative George
M. Sickles repeatedly characterized it as a mixed local
union whose membership included both painters and
glaziers within the counties of Monongalia and Preston.
Furthermore , Local 850 had not only represented MGM's
glaziers for some 10 years without question , but as will
later be seen , it might have continued to do so, without
objection from the International or Local 751, provided it
negotiated for standards which might compare with those
contained in certain 751 contracts , specifically those in the
'MGM, a West Virginia corporation, is engaged at Morgantown in the
business of a glazing contractor . From July 1, 1967, to June 30, 1968, it
purchased and received directly and indirectly from extrastate points goods
and materials valued in excess of $50,000.
'though by answer Respondent raised issues concerning its own status as
majority representative and averred to the contrary that Local 751 was
such representative, its brief makes no contentions to that effect In any
event the evidence unquestionably established Respondent's representative
status at all times on and before June 13.
Johnstown-Altoona area.
On the organizational side , the evidence showed that
General Representative Holdcroft supervised , under the
International President, "the autonomous craft" of
glaziers and glassworkers and that the corresponding
supervisor over painters locals was General Representative
Maynard Sulyvan. At the local level James Keneavy, of
Pittsburgh , was business representative of Local 751 and
George M Sickles, of Morgantown, was business
representative of Local 850.
With the setting thus laid, the pertinent events may be
briefly summarized.
B. The Evidence
On February 13, the recording secretary of Local 850
wrote MGM and three other glazing contractors that a
meeting would be held on February 21 for the purpose of
negotiating a new working agreement for the glaziers of
Local 850. Among those present on February 21 were
Vice President Leonard Straight of MGM, Russell Smith,
of General Glass Company, General Representative
Holdcroft of the International , Business Representative
Sickles of Local 850, Business Representative James
Keneavy of Local 851, Steward Gerald Straight (brother
of Leonard Straight) of MGM and Steward Willis
Sommers of General Glass.
Testifying for the General Counsel, Leonard Straight
admitted that Holdcroft , who identified himself as an
International Representative , stated that under the
constitution Local 751 had jurisdiction over the area and
that there was discussion of the fact that the Pittsburgh
contract of Local 751 would not be appropriate for the
Morgantown area but that the Johnstown -Altoona
agreement of Local 751 might well furnish a good guide
line by which to negotiate an agreement . No actual
negotiations took place and nothing was said about
obtaining approval of any agreement which might later be
reached.
No further meeting was held before April 16, but in the
meantime MGM procured a copy of the
Johnstown -Altoona agreement from another contractor
and Holdcroft in turn sent a copy of it to Sickles on
March 18 with the following memorandum:
The enclosed agreement would be the only type that
would permit me to talk L .U. 751 out of claiming the
jurisdiction of Monongalia and Preston counties; if the
men sign any other type of agreement I am sure 751
shall not consider giving up the jurisdictional rights of
the area . Please contact me if anything develops.
Thereafter Stewards Willis Sommers and Gerald
Straight , using that copy as a guide, made some changes
in it and prepared a working draft of a proposed
agreement to be negotiated for the Morgantown area (G.
C. Exh. 5).
On April 1 Respondent Local wrote MGM setting a
meeting for April 16 . Present then were the same persons
as before except for Holdcroft and Keneavy . The evidence
is undisputed that, using the working draft as a base, the
parties reached agreement on all its provisions except for
certain modifications as noted on its face . What is in issue
is whether the employer representatives understood or
were informed that the agreement was, in whole or in
part, subject to later approval of some sort.
Sickles testified that he informed the employers that
any agreement would have to be approved by the
membership and the International and would have to be
brought back to Local 751. After agreement was reached,
PAINTERS, LOCAL 850
he informed them further that he had to take the
agreement to Holdcroft (whom he would be seeing in a
few days) and that it was subject to Holdcroft's approval.
Though the testomony of the General Counsel's
witnesses (Straight of MGM and Smith of General Glass)
did not bear out the full extent of Sickles' claims, it
nevertheless reflected awareness and understanding that
some approval by Holdcroft was necessary. Though
Straight testified he left the meeting feeling he had an
agreement, he admitted understanding that Sickles was to
submit it to Holdcroft for approval of wage rates.' And
though Smith denied on direct examination that he heard
Sickles say that the contract or the wage rates were to be
approved by any one, he admitted on cross-examination
that Sickles expressed the belief and stated his impression
that the wage rates were subject to Holdcroft's approval.
Aside from those admissions it is entirely reasonable to
believe (in view of the caveat contained in Holdcroft's
memorandum of March 18) that Sickles would necessarily
have reserved the matter of approval pending Holdcroft's
resolution of the jurisdictional claims of Local 751, of
which the employer representatives were informed in the
first meeting.
Though I thus conclude and find that no final and
binding agreement was reached on April 16, there is a
further respect in which the General Counsel failed to
establish the complaint allegation that the written contract
which Respondent refused to sign on June 13 embodied
the terms and conditions agreed to on April 16.' Thus
Vice President Straight of MGM identified for the
General Counsel as General Counsel's Exhibit 6 what was
represented to be the final draft of the agreement reached
'Straight testified further that from his experience in negotiating prior
contracts he understood the employees had a right to approve or reject a
contract if they wanted to . He added that he understood that all the
employees had approved or agreed upon the contract , though he testified
he got that impression only from general discussions with his employees
Holdcroft testified , on the other hand , that the employees in fact voted
to reject the contract on June 12, and the General Counsel made no
attempt to refute that claim.
Though the matters next referred to were not affirmatively assigned in
157
on April 16 as copied from the working draft, General
Counsel's Exhibit 5, which, with the modifications noted
on its face, embodied the terms of the agreement actually
reached. Comparison of the exhibits shows, however, that
the final draft varied from General Counsel's Exhibit 5 in
a number of substantial respects as follows:
A new section (No. 8) was added to article II, which
provided for examination of the employer's payroll
records.
The wage rates contained in article IV were not in
conformity with those which appeared in the notations in
General Counsel's Exhibit 5 and a new section was added
providing for certain additional payments to be made by
contractors who did not provide certain types of benefits.
Section 1, of article IX was limited to tools, omitting
the reference to coveralls or uniforms.
Two paragraphs were added to article XII, one
providing for severability of any provision which might be
found to be unlawful or void and the other containing a
no-strike-no-lockout provision.
I therefore conclude and find that the General Counsel
failed to establish by a preponderance of the evidence on
the entire record that Respondent refused to bargain as
alleged.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following:
CONCLUSION OF LAW
Respondent did not refuse to bargain in violation of
Section 8(b)(3) of the Act as alleged in the complaint.
RECOMMENDED ORDER
I therefore recommend that the complaint be dismissed.
defense, they were put in issue by Respondent's denial of unfair labor
practices as alleged and they bear directly on the question whether the
General Counsel made out his case by a preponderance of the evidence on
the entire record