The Peoria Chapter of the Painting & Decorating Contractors of America

National Labor Relations Board - Board DecisionsJun 21, 1973

204 N.L.R.B. 345 (N.L.R.B. 1973)

PEORIA PAINTING & DECORATING CONTRACTORS The Peoria Chapter of the Painting & Decorating Con- tractors of America & Its Individual Members and International Brotherhood of Painters and Allied Trades, Local Union No. 157, AFL-CIO. Case 38- CA-1457 June 21, 1973 DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On December 8, 1972, Administrative Law Judge Melvin Pollack issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and General Counsel filed a limited exception and a supporting brief. 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. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that The Peoria Chapter of the Painting & Decorating Contractors of America & Its Individual Members, Peoria, Illinois, as listed in the Board com- plaint, their officers, agents, successors, and assigns, shall take the action set forth in the Administrative Law Judge's recommended Order. DECISION STATEMENT OF THE CASE MELVIN POLLACK, Administrative Law Judge: This case was tried at Peoria, Illinois, on October 18, 1972. Pursuant to charges filed on May 2 and 31, a complaint was issued on August 25, 1972, and amended at the hearing. The ques- tion presented is whether Respondent Association and its employer members locked out the employees represented by the charging Union, in violation of Section 8(a)(5) and (1) and 8(d) of the National Labor Relations Act. Upon the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel, the Association, and the Union, I make the following: FINDINGS OF FACT I JURISDICTION 345 The Association is made up approximately of 26 employ- er members engaged in the painting and decorating business throughout the Peoria, Illinois, vicinity. The Association exists for the purpose, among others, of engaging in mul- tiemployer collective bargaining with the Union for and on behalf of its employer members. The annual out-of-state purchases of the employer members collectively exceed $50,000. I find that the Association and its employer mem- bers are engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. The Union is a labor organization within the meaning of Section 2(5) of the Act. II ALLEGED UNFAIR LABOR PRACTICES A. The Facts On or about May 1, 1969, the Association and the Union executed a collective-bargaining agreement effective from May 1, 1969, to April 30, 1972. By letter dated February 14, 1972, the Union advised the Association that it was "prepared to start negotiations for wages and conditions." At a meeting on March 23, the Union's representatives presented a memorandum of understanding on health and welfare and part of its contract proposal to the Association's representatives. The parties met again on April 10. The Union presented the remainder of its contract proposal to the Association, which gave the Union its proposed contract changes. The parties also discussed the Union's memoran- dum of understanding on health and welfare. The Union, which had sent notices that day to the Federal Mediation and Conciliation Service and to the Illinois Mediation and Conciliation Service,2 advised the Association that the next meeting "would be in front of the Federal Mediation Ser- vice." A federal mediator was present at the next bargaining session on April 18 and at succeeding sessions. On April 27, the Association rejected the Union's offer to work under the 1969 contract for 2 weeks after it expired on April 30. The Association rejected a similar offer on April 30. By telegram dated May 1, the Association notified the Union that be- cause of the unresolved labor contract dispute the employ- ees employed by the Association's members and represented by the Union were laid off until further notice. All members of the Association participated in the lockout, which began on May 1 and ended May 9. The parties reached agreement on a contract on May 26. The contract was reduced to final written form on June 16 and signed by representatives of the Union and the Association on June 19. Members of the Association individually signed con- tracts on August 25. B. Analysis and Conclusions Section 8(d) of the Act, to the extent pertinent here, pro- 1 All dates hereafter are in 1972 unless otherwise stated. 2 The notices were received the next day, April I 1 204 NLRB No. 66 346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD vides: ... Where there is in effect a collective-bargaining contract covering employees in an industry affecting commerce, the duty to bargain collectively shall also mean that no party to such contract shall terminate or modify such contract , unless the party desiring such termination or modification- (1) serves a written notice upon the other party to the contract of the proposed termination or modifica- tion sixty days prior to the expiration date thereof, or in the event such contract contains no expiration date, sixty days prior to the time it is proposed to make such termination or modification; (3) notifies the Federal Mediation and Conciliation Service within thirty days after such notice of the exis- tence of a dispute, and simultaneously therewith noti- fies any State or Territorial agency established to mediate and conciliate disputes within the State or Ter- ritory where the dispute occurred, provided no agree- ment has been reached by that time; and (4) continues in full force and effect, without resort- ing to strike or lockout all the terms and conditions of the existing contract for a period of sixty days after such notice is given or until the expiration date of such contract, whichever occurs later. The Board, with court approval, has construed the 60-day waiting period specified in Section 8(d)(4) to include a wait- ing period of 30 days from the time notices are given to Federal and state mediation and conciliation services under Section 8(d)(3) of the Act. Retail Clerks International Associ- ation, Local No. 1179, AFL, 109 NLRB 754. Local Union 219, Retail Clerks International Association, AFL-CIO v. N.L.R.B., 265 F.2d 814 , 818-819 (C.A.D.C., 1959); Fort Smith Chair Company, 143 NLRB 514, 519, affd. 336 F.2d 738 (C.A.D.C., 1964), cert. denied, 379 U.S. 838 (1964). The Union notified the Association on February 14 of its desire to negotiate contract changes but did not notify the Federal and state mediation agencies of the existence of a dispute until April 11. Respondents locked out the employ- ees represented by the Union on May 1, the day after its contract with the Union expired. The lockout therefore oc- curred more than 60 days after the Union's service upon Respondent of an 8(d)(l) notice but less than 30 days after the Union served notices under Section 8(d)(3). Respon- dents contend, however, that the Union's failure to serve timely 8(d)(3) notices was violative of that section and hence permitted it to resort to a lockout under Section 8(d)(4) without regard to the notice requirements of Section 8(d)(3). Affording the mediation services a full 30-day opportuni- ty to assist the parties to a contract labor dispute is "an integral part of the scheme evolved by Congress for achiev- ing a higher degree of stability in collective bargaining." Retail Clerks International Association, Local No. 1179, AFL, supra at 759. Respondents clearly were not privileged to resort to a lockout without regard to the requirements of Section 8(d) merely because of any default on the part of the Union in meeting these requirements. The Union's untimely notices of April I1 to the mediation agencies of the exis- tence of a dispute delayed until May 11 the time when the Union could resort to a strike or Respondents could resort to a lockout under Section 8(d)(4). See Local Union 219, Retail Clerks International Association, AFL-CIO v. N.L.R. B., supra; Fort Smith Chair Company, 143 NLRB 514, 519. Had the Association desired to avoid such delay, it could have ascertained from the Union or the mediation agencies whether the requisite 8(d)(3) notices had been timely filed by the Union and, if not, filed its own notices. The Association claims that it relied upon a union repre- sentation at the April 10 meeting that it had timely filed 8(d)(3) notices. While the Union may have indicated on April 10 that it had sent out 8(d)(3) notices, it does not appear that it said anything about the time such notices were sent. The members of the Association's bargaining committee testified only that the Union's representatives said the mediation services "had been contacted." The Union's offers on April 27 and 30 to extend the contract until May 14 belie any intention to mislead the Association. In view of the foregoing, I find that Respondent resorted to a lockout within the 60-day waiting period prescribed by Section 8(d)(4) and, accordingly, that Respondents refused to bargain with the Union, in violation of Section 8(a)(5) and (1) of the Act .3 CONCLUSIONS OF LAW 1. The Association and its members are employers en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The Association and its members have engaged in un- fair labor practices violative of Section 8(a)(5) and (1) and 8(d)(4) of the Act. THE REMEDY Having found that Respondents have engaged in certain unfair labor practices, I shall recommend that they cease and desist therefrom and that they take certain affirmative action designed to effectuate the policies of the Act. It having been found that Respondents' lockout consti- tuted a refusal to bargain within the meaning of Section 8(a)(5) and 8(d) of the Act, I shall recommend that they make whole the employees locked out for loss of earnings suffered by reason of the unlawful lockout by payment to each employee of a sum of money equal to that which he would normally have earned as wages during the period of the lockout, with 6 percent interest 4 As the party "moving" under Sec 8(d) to modify or terminate an existing contract, the Union had the obligation to file the notices specified in Sec 8(d)(I) and (3) of the Act Fort Smith Chair Company, 143 NLRB 514, 516-517 Accordingly, Respondents' failure to file notices with the mediation and conciliation services 30 days before the lockout of May 1, while neces- sary in the circumstances of this case to comply with the 60-day waiting period specified in Sec 8(d)(4), did not constitute a violation of Sec 8(d)(3). Cf Carpenters District Council of Denver and Vicinity, AFL-CIO, 172 NLRB 793 4 The Association contends that in reaching agreement upon a new con- PEORIA PAINTING & DECORATING CONTRACTORS Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, there is issued the following recommended: ORDERS The Peoria Chapter of the Painting & Decorating Con- tractors of America and its individual members, as listed in the Board complaint, their officers, agents, successors, and assigns , shall: 1. Cease and desist from refusing to bargain collectively with International Brotherhood of Painters and Allied Trades, Local Union No. 157, AFL-CIO, concerning the termination or modification of a collective-bargaining agreement with said Union by failing to continue in full force and effect, without resorting to lockout, all the terms and conditions of said collective-bargaining agreement for a period of 30 days from the date notice is given to the Federal Mediation and Conciliation Service and any appro- priate state agency of the existence of a dispute within the meaning of Section 8(d)(3) of the Act. 2. Take the following affirmative action which is neces- sary to effectuate the policies of the Act. (a) Make whole all employees unlawfully locked out for any loss in earnings suffered by reason of the lockout in the manner described in the section of this decision entitled "The Remedy." (b) Post at the Association's office, and at the plants of each of its members at such places where notices to employ- ees are customarily posted, copies of the notice attached hereto marked "Appendix." 6 Copies of said notice, on forms to be provided by the Office-in-Charge for Sub-Re- gion 38, shall, after being duly signed by the Association's representative and by representatives of its members at their respective plants where the notices are posted, be posted by each member of the Association immediately upon receipt thereof, and maintained by it for a period of 60 days there- after in conspicuous places. Reasonable steps shall be taken to insure that said notices are not altered, defaced or coered by any other material. (c) Notify the Officer-in-Charge for Sub-Region 38, in writing, within 20 days from the receipt of this Order, what steps have been taken to comply herewith. I In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions , and recommended Order herein shall, as provided in Section 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. 6In the event the Board 's Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD" shall be changed to read "POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD" APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 347 WE WILL NOT refuse to bargain collectively with Inter- national Brotherhood of Painters and Allied Trades, Local Union No. 157, AFL-CIO, concerning the ter- mination or modification of a collective -bargaining agreement with said Union by failing to continue in full force and effect, without resorting to lockout, all the terms and conditions of said collective-bargaining agreement for a period of 30 days from the date notice is given to the Federal Mediation and Conciliation Service and any appropriate State agency of the exis- tence of a dispute within the meaning of Section 8(d)(3) of the Act. WE WILL make our employees whole for any loss of pay suffered by reason of the lockout. [Name of member employer] Dated By Dated By (Representative) (Title) THE PEORIA CHAPTER OF THE PAINTING & DECORATING CON- TRACTORS OF AMERICA (Employer) (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 direct- ed to the Board's Office, Savings Center Tower, 10th Floor, Peoria, Illinois 61602, Telephone 309-673-9061.