Brotherhood of Painters, Etc., Local No. 1385

National Labor Relations Board - Board Decisions

Jul 18, 1963

143 N.L.R.B. 678 (N.L.R.B. 1963)

678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL reimburse our employees for initiation fees, dues , or other moneys
paid or checked off pursuant to the aforesaid agreement or any extension, re-
newal, modification , or supplement thereof, or to any agreement superseding it.
SULLIVAN ELECTRIC COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
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.
Information regarding the provisions of this notice and compliance with its terms
may be secured from the Regional Office of the National Labor Relations Board, 839
South Broadway, Los Angeles, California, 90014, Telephone No. Richmond 9-4711,
Extension 1031.
Brotherhood of Painters, Decorators and Paperhangers of
America, Glaziers Local Union #1385, AFL-CIO and Asso-
ciated Building Contractors of Evansville , Inc. Case No. 05-
CB-496. July 18, 1963
DECISION AND ORDER
On February 7, 1963, Trial Examiner Henry S. Sahm issued his
Intermediate Report in the above-entitled proceeding, recommending
that the complaint be dismissed in its entirety, as set forth in the
attached Intermediate Report. Thereafter, the General Counsel filed
exceptions to the Intermediate Report and a supporting brief, and the
Respondent filed a brief in support of the Intermediate Report.
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the exceptions, the briefs, and the entire record in the case,
and finds merit in the General Counsel's exceptions. Accordingly, the
Board adopts the Trial Examiner's findings to the extent consistent
with the following, but not his conclusions or recommendations.
1. The General Counsel alleged in his complaint that the Respond-
ent Union had reached agreement with the Employers upon the terms
of a collective-bargaining contract which would contain provisions re-
lating to the Tri-State Construction Advancement Program (known
as Tri-Scap), established for the purpose of promoting the glazing
industry in the Evansville, Indiana, area. This program, among other
things, provides for the Employers' contributions to a fund to be used
for the industry's advancement. The Respondent Union's subsequent
refusal to sign a written contract containing the Tri-Scap provisions
is alleged by the General Counsel to constitute a refusal to bargain by
the Respondent Union in violation of Section 8 (b) (3) of the Act.
The Trial Examiner found that the parties had agreed to all the
terms of a contract except as to the inclusion of Tri-Scap to which the
Respondent objected. He found, therefore, that the Respondent's
143 NLRB No. 72.
BROTHERHOOD OF PAINTERS , ETC., LOCAL NO. 1385 679
refusal to sign a contract embodying the industry advancement pro-
gram did not constitute n refusal to bargain in violation of the Act.
We do not agree with the Trial Examiner that inclusion of Tri-Scap
was not agreed upon and that therefore the complaint should be
dismissed.
On January 23, 1962, the Respondent notified the Employers and
the multiemployer association of which the Employers are members,
Associated Building Contractors of Evansville, Inc., referred to as
ABC, that it wished to meet in order to negotiate a new contract in
anticipation of the expiration of the existing contract on April 1,
1962. At the first meeting on March 21, 1962, Sweet, executive secre-
tary of ABC, proposed that the contract contain the Tri-Scap provi-
sions and furnished the negotiators with a complete written explana-
tion of the purpose and operation of the program.
At the second negotiation meeting, held on March 28, 1962, Sweet
again discussed Tri-Scap. Sweet's testimony is undenied that he ad-
vised the conferees as to what Tri-Scap would do for the Employers
and what it would do for the Union, and that he also showed various
books to the Respondent's negotiators. The books displayed at that
meeting were books to be furnished by Tri-Scap to the Respondent's
members, as a part of the service to be rendered by Tri-Scap. The
record is not clear as to what aspect of Tri-Scap was discussed at a
subsequent meeting on April 4, 1962, but it is clear that the matter was
considered.
On April 10, 1962, the parties met and further discussed several
facets of the proposed, collective-bargaining agreement. On that day,
the parties subscribed to a "Memorandum of Understanding" which
was signed severally by the Employers or their representatives and by
Carl Smiddy for the Union. This instrument recited that the parties
had arrived at an agreement relating to rates of pay, wages, hours of
work, and other terms and conditions of employment and specifically
set forth the wage increase upon which agreement was made. Within
minutes from the execution of the memorandum, one of the Employers
suggested that Tri-Scap had been omitted and Sweet of ABC added
the words, "and Tri-Scap." That Smiddy failed to object to the in-
clusion of the above-noted addendum is undisputed. Several days
later, Smiddy prepared a draft on the memorandum of April 10, 1962,
and delivered the draft to one Van Leunen, a negotiator for one of the
Employers. Smiddy and Van Leunen went over this draft and among
the corrections and additions, all of which were initialed at the time
by Smiddy, was a notation as follows: "Include Tri-Scap__________
Article XI." The amended draft was then delivered to Sweet of ABC,
whose office prepared the final draft. On April 18, 1962, Fred Neide-
mier, one of the Respondent's representatives, came to Sweet's office
and announced that "the boys wouldn't sign it (the new contract) with
680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tri-Scap in it." The record does not indicate precisely whom the term
"the boys" embraced.
Despite the Trial Examiner's reliance upon the provision of the
Respondent's constitution requiring membership ratification of
collective-bargaining agreements, the facts set forth above clearly
show, and we find, that an agreement was reached between the parties.
It is significant that Smiddy failed to state any reservations of au-
thority at the several negotiation meetings,and that Van Lexmen testi-
fied, without contradiction, that during 30 years of negotiation with
the Respondent, whatever was agreed upon orally was reduced to
writing and signed by the parties, without reference to membership
approval.
2. In this case we find that an agreement has been reached. The
Board has held that industry advancement programs, such as Tri-
Scap, are permissive subjects of bargaining, though not mandatory.'
Section 8(d) of the Act leaves little doubt that the execution of a
written contract is contemplated in the collective-bargaining process
if requested by either party.' Although we would not require the
Respondent to bargain with respect to Tri-Scap, we have held that
such provisions are not unlawful and may be, upon agreement of the
parties, the subject of collective bargaining at the negotiation stage.
In this case there was such an agreement. The parties did discuss
the provision and for us to hold that the Employers in this case may
not insist on the inclusion of this provision in their contract would
upset, if not undo,'the stabilizing effects of the agreement which was
reached after several negotiation meetings. We therefore find that
having agreed to Tri-Scap, the Respondent may not at the point of
executing the written contract refuse to honor its agreement.
In view of all of the facts and circumstances in this case, we find
that the Respondent, by refusing to sign the written agreement, the
terms of which had been agreed upon previously, failed to bargain
in good faith and thereby violated Section 8(b) (3) of the Act.
TILE EFFECT OF THE TINFAIR LABOR PRACTICE UPON COMMERCE
The activities of the Respondent, set forth above, which have
been found to constitute an unfair labor practice, have a close, in-
timate, and substantial relation to trade, traffic, and commerce among
the several States and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
'Detroit Resilient Floor Decorators Local Union No 2265 et al. (3fill Floor Covering,
Inc ), 136 NLRB 769, enfd 317 F 2d 269 (CA 7) : Met?opolitan District Council of
Philadelphia and Vicinn,ty etc. (UcCloikey and Company), 137 NLRB 1583; Detroit
Window Cleaners Union, Local 139, etc (,"aelyte Service Company), 126 NLRB 63
2H J. Heinz Company v. N.L.RB., 311 \ S. 514 (1941).
BROTHERHOOD OF PAINTERS, ETC., LOCAL NO. 1385
THE REMEDY
681
Having found that the Respondent has engaged in certain unfair
labor practices, we shall order it to cease and desist from this and
like and related conduct, and to take certain affirmative action de-
signed to effectuate the policies of the Act.
CONCLUSIONS OE LAW
1. Red Spot Paint & Varnish Co., an Indiana corporation, Central
Glass Company, an Indiana corporation, and Howard Stearns, Kallie
Sadler, and Eldon Miller, doing business under the trade name and
style of Stearns & Sadler Glass Co., at Harrisburg, Illinois, are en-
gaged in commerce within the meaning of the Act.
2. Brotherhood of Painters, Decorators and Paperhangers of Amer-
ica, Glaziers Local Union #1385, AFL-CIO, is a labor organization
within the meaning of Section 2 (5) of the Act.
3. All glaziers and apprentices engaged in construction work re-
spectively employed by Red Spot Paint & Varnish Co., Evansville,
Indiana, Central Glass Company, Evansville, Indiana, and Stearns 8
Sadler Glass Co., at Harrisburg, Illinois, exclusive of office clerical
employees, executives, guards, and supervisors as defined in the Act,
constitute separate units appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act.
4. On April 10, 1962, and at all times material thereafter, the Union
was and now is the exclusive representative of the above-designated
Employers' employees in the said appropriate units for the purposes
of collective bargaining within the meaning of Section 9(a) of the
Act.
5. By failing and refusing to execute the written agreement of the
parties, as agreed upon on April 10, 1962, the 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 affect commerce within the
meaning of Section 2(6) and (7) of the Act.
ORDER
Upon the entire record in the case, and 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 Paperhangers of America, Glaziers Local
Union #1385, AFL-CIO, its officers, representatives, agents, succes-
sors, and assigns , shall:
1. Cease and desist from refusing to bargain collectively in good
faith with red Spot Paint & Varnish Co., Central Glass Company,
682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Howard Stearns, Kallie Sadler, and Eldon Miller, doing business
under the trade name and style of Stearns & Sadler Glass Co., in the
separate appropriate units, by refusing to sign the collective-
bargaining agreement upon which the parties have agreed, or from
engaging in any like or related conduct in derogation of its statutory
duty to bargain.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Upon request bargain collectively with Red Spot Paint &
Varnish Co., Central Glass Company, and Stearns & Sadler Glass
Co., as the exclusive representative of the employees in the units here-
in found appropriate and embody any understanding which may be
reached in a signed agreement.
(b) If requested by Red Spot Paint & Varnish Co., Central Glass
Company, and Stearns & Sadler Glass Co., at Harrisburg, Illinois,
execute the contract on which agreement was reached with the said
Employers on or about April 10, 1962.
(c) Post at its business offices and meeting halls copies of the at-
tached notice marked "Appendix." 3 Copies of said notice, to be
furnished by the Regional Director for the Twenty-fifth Region, shall,
after being duly signed by an official representative of the Respondent,
be posted by the Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter in conspicuous
places, including all places where notices to its members are custom-
arily posted. Reasonable steps shall be taken by the Respondent to
insure that said notices are not altered, defaced, or covered by any
other material.
(d) Furnish to the Regional Director for the Twenty-fifth Region
signed copies of the attached notice marked "Appendix," for posting,
the Employers willing, at their respective offices, plants, or shops, in
places where notices to employees are customarily posted. The notice
shall be maintained at such places for a period of 60 consecutive days
thereafter. Copies of said notice, to be furnished by the Regional
Director for the Twenty-fifth Region, shall, after being duly signed by
an official representative of the Respondent as provided in paragraph
2(c) of this Order, be forthwith returned to the Regional Director
for such posting.
(e) Notify the Regional Director for the Twenty-fifth Region, in
writing, within 10 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
3In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "A Decision and Order" the words "A
Decree of the United States Court of Appeals , Enforcing an Order."
BROTHERHOOD OF PAINTERS, ETC., LOCAL NO. 1385 683
MEMBER BROWN, dissenting:
I am of the opinion, not shared by my colleagues," that industry
promotion programs are mandatory subjects of bargaining under the
Act. But were I to view the subject as nonmandatory, as my col-
leagues do, I would agree with them that Section 8 (a) (5) and 8 (b) (3)
require the execution of an agreement containing such provision once
parties have finally agreed on the matter.
The Trial Examiner was not satisfied, and I am not persuaded,
that the parties did reach final agreement on the disputed provision.
Accordingly, and only for this reason, would I dismiss the complaint.
MEMBER LEEDOM took no part in the consideration of the above
Decision and Order.
4 See Detroit Resilient Floor Decorators Local Union iKo 2265, et al. (Mill Floor Cover-
ing, Inc. ), 136 NLRB 769, enfd 317 F. 2d 269 ( C.A. 7) ; Metropolitan District Council of
Philadelphia and Vicinity ( McCloskey and Company ), 137 NLRB 1583.
APPENDIX
NOTICE TO ALL OUR MEMBERS AND ALL EMPLOYEES OF RED SPOT
PAINT & VARNISH CO., CENTRAL GLASS COMPANY, AND HOWARD
STEARNS, KALLIE SADLER, AND ELDON MILLER, DOING BUSINESS
UNDER THE TRADE NAME AND STYLE OF STEARNS & SADLER
GLASS Co.
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, as amended, we hereby notify you that :
WE WILL NOT refuse to bargain collectively in good faith with
Red Spot Paint & Varnish Co., Central Glass Company, and
Howard Stearns, Kallie Sadler, and Eldon Miller, doing business
under the trade name and style of Stearns & Sadler Glass Co.,
as the exclusive representative of the said Employers' employees
in the appropriate units described below by refusing to sign the
written collective-bargaining agreement to which we agreed, on
or about April 10, 1962, and we will not engage in any like or
related conduct in derogation of our statutory duty to bargain,
provided we remain the representative of the employees in the
appropriate unit, as prescribed in Section 9 of the Act.
WE WILL, if requested by Red Spot Paint & Varnish Co., or
Central Glass Company, or Stearns & Sadler Glass Co., at Harris-
burg, Illinois, execute the contract on which we reached agree-
ment with the said Employers on or about April 10, 1962.
The appropriate separate units are :
All glaziers and apprentices engaged in construction work
respectively employed by Red Spot Paint & Varnish Co., Evans-
ville, Indiana, Central Glass Company, Evansville, Indiana, and
684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Stearns & Sadler Glass Co., at Harrisburg , Illinois, exclusive of
office clerical employees, executives , guards, and supervisors as
defined in the Act.
BROTHERHOOD OF PAINTERS , DECORATORS AND
PAPERHANGERS OF AMERICA, GLAZIERS LOCAL
UNION #1385, AFI -CIO,
Labor Organization.
Dated---------------- By-----------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the
(late of posting, and must not be altered, defaced, or covered by any
other material.
Employees may communicate directly with the Board's Regional
Office, 614 ISTA Center, 150 West Market Street, Indianapolis, In-
diana, 46204, Telephone No. Melrose 2-1551, if they have any ques-
tions concerning this notice or compliance with its provisions.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge filed by the Associated Building Contractors of Evansville , herein
called ABC, on May 18, 1962, the General Counsel of the National Labor Relations
Board, by the Regional Director, issued his complaint dated October 19, 1962, and
amended on November 2, against the Brotherhood of Painters , Decorators and
Paperhangers of America, Glaziers Local Union #1385, AFL-CIO, referred to
hereinafter as the Union.
The complaint alleges that Respondent Union violated Section 8(b)(3) of the
Act in that it refused to sign a document containing a collective-bargaining agree-
ment whose terms had been agreed upon previously. The amended complaint in
paragraph 7 reads as follows:
(a) On or about April 10, 1962, pursuant to negotiations between the Re-
spondent and the Employers, a memorandum of understanding was signed by
the Respondent and the Employers, stating that agreement had been reached
concerning rates of pay, wages, hours of employment and all other terms and
conditions of employment.
(b) On or about April 13, 1962, in accord with and pursuant to the afore-
said negotiations and memorandum of understanding, the Respondent through
its agent , Carl Smiddy, and the Employers agreed to a final contract-complete
in every detail-which after being mimeographed was to be executed forthwith
by the Respondent and the Employers.
(c) On or about April 18, 1962, and at all times since , including but not
limited to specifically May 8, 1962 and May 12, 1962, the Respondent has
refused, and continues to refuse , to execute the above-written agreement em-
bodying rates of pay, wages, hours of employment or other conditions of
employment agreed upon between the Employers and the Respondent.
Respondent Union filed its answer admitting certain allegations of the complaint
but denying the commission of any unfair labor practices . At the hearing, Re-
spondent contended no agreement was reached by the parties.
Pursuant to notice , a hearing was held at Evansville , Indiana, on December 13,
1962, before Trial Examiner Henry S. Salim. At the conclusion of the General
Counsel's case-in-chief, the Respondent rested and offered no testimony. The
General Counsel and Respondent filed briefs on January 4, 1963, which have been
fully considered.
Upon the entire record in the case , from observation of the demeanor of the
witnesses , upon consideration of the arguments of counsel and citations of cases
alleged to be dispositive of the issues in this proceeding , there are hereby made the
following:
BROTHERHOOD OF PAINTERS, ETC., LOCAL NO. 1335
FINDINGS OF FACT
1. JURISDICTION
685
Red Spot Paint & Varnish Co., an Indiana corporation, is engaged in the fabrica-
tion and installation of glass at different project sites in the States of Indiana,
Kentucky, and Illinois. In the course and conduct of'its business operations dur-
ing the past 12 months, it purchased and delivered to its Evansville, Indiana, place
of business glass and other goods and materials valued in excess of $100,000, of
which goods and materials valued in excess of $50,000 were transported to said
place of business directly from States of the United States other than the State of
Indiana.
Central Glass Company, an Indiana corporation, is engaged in the fabrication
and installation of glass at different project sites in the State of Indiana. In the
course and conduct of its business operations during the past 12 months, Central
purchased and delivered to its Evansville, Indiana, place of business, glass and other
goods and materials valued in excess of $100,000, of which goods and materials
valued in excess of $50,000 were transported to said place of business directly from
States of the United States other than the State of Indiana
Howard Stearns, Kallie Sadler. and Eldon Miller, doing business under the trade
name and style of Stearns & Sadler Glass Co. at Harrisburg, Illinois, is engaged in
the fabrication and installation of glass at different project sites in the States of
Illinois and Kentucky. In the course and conduct of their business operations
during the past 12 months, Stearns purchased and delivered to their Harrisburg,
Illinois, place of business, glass and other goods and materials valued in excess of
$100,000, of which goods and materials valued in excess of $50,000 were trans-
ported to said place of business directly from States of the United States other than
the State of Illinois.
No jurisdictional issue is involved as Respondent does not deny the allegations in
the complaint averring that said Employers are engaged in commerce within the
meaning of Section 2(6) and (7) of the Act. It is found, accordingly, that said
Employers are engaged in commerce within the meaning of the Act.
II. THE RESPONDENT UNION
Brotherhood of Painters , Decorators and Paperhangers of America , Glaziers
Local Union #1385 , AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
The Testimony I
The then current multiemployer agreement under which various employers and
the Union were operating was due to expire on April 1, 1962 In anticipation of
this expiration date, the Union notified the Employers and ABC on January 23,
1962, that it wished to meet with said Employers and ABC in order to negotiate
a new contract.
The first of these negotiation meetings was held on March 21, 1962, at the offices
of Associated Building Contractors, herein called ABC. Various provisions of a
proposed contract were discussed and Sweet, executive secretary of ABC, proposed
just before the meeting adjourned that the contract should contain a provision
under which employers who are signatories to the collective-bargaining agreement
would obligate themselves to contribute to a fund known as the Tri-State Construc-
tion Advancement Program (herein called Tri-SCAP), established for the promotion
of the glazing industry in the Evansville, Indiana, area. As the union officials were
not familiar with this arrangement, Sweet explained that only the employers, not
the employees or the Union, would contribute to this fund. Sweet also gave each
of the conferees a written explanation of Tri-SCAP. (General Counsel's Exhibit
No. 2.) Other than the explanation by Sweet of Tri-SCAP, there was no discussion
of it by the conferees. The meeting was then adjourned.
The second meeting was held on March 28. The Union submitted a proposed
collective-bargaining agreement which did not contain the Tri-SCAP provision.
(Respondent's Exhibit No. 2.) The conferees went over the Union's proposed
contract paragraph by paragraph. All the provisions of the proposed agreement
'The record is hereby corrected In the following particulars by inserting "Yes" in-
stead of "Yeah" at: page 54, line 7; page 55, line 4; page 122, line 10; page 128, line 18,
page 137, line 1 ; and page 171-A, line 1
686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were accepted by management except wages , vacations , overtime , and expenses
incurred by glaziers on jobs outside Evansville.
The next meeting was held on April 4 at the offices of ABC. Those contract
provisions listed above, which had not been agreed upon at the previous meeting,
were discussed. Agreement was reached with respect to expenses. (Article X of
Respondent's Exhibit No. 2.) However the union representatives stated that upon
advice of their attorney they could not agree to an ABC proposal that ABC would
not be liable as a principal or employer for any breach of contract and that the
Employer's liability shall be several and not joint.
At the meeting on April 10, those provisions not yet agreed upon were discussed.
Wages, vacations, "riding time," and overtime were agreed upon by the parties.
Tri-SCAP was discussed for the first time at the meeting on April 10. Van Leunen,
one of the employer negotiators, testified that there was discussion as to whether
Tri-SCAP should be included in the agreement and that "it was stated by the union
negotiators that their only objection was that they had been told that it was illegal
to include such an item as Tri-SCAP in their contract." A paper was then written
up in longhand by Sweet, executive secretary of ABC, captioned "Memorandum
of Understanding." This reads as follows:
Memorandum of Understanding
APRIL 10, 1962.
This is to certify that Employers, Bob Van Leunen, Bert Carter, and S. H.
Stearns, and officers and members of Glaziers Local Union #1385 have of
this date entered into a Collective Bargaining Agreement containing Rates of
Pay, Wages, Hours of Work and other terms and conditions of Employment.
Wages shall be $3.30 from April 1, 1962 to April 1, 1963 and wages shall
be $3.42' from April 1, 1963 to April 1, 1964.
Other terms and conditions include Riding time, Glazing time, Vacation pay
and Tri-SCAP.
R. A. VAN LEUNEN,
S. H. STEARNS,
W. B. CARTER,
CARL SMIDDY.
After this "Memorandum of Understanding" was signed by the Employers and
union representatives, an unidentified employer mentioned Tri-SCAP whereupon
Sweet stated that the phrase "other terms and conditions" was meant to include
Tri-SCAP, but since it was "not spelled out" that he would add it, which he did by
writing in longhand the words "and Tri-SCAP." Sweet then initialed this insertion
made by him. As the meeting came to a close, it was agreed that Smiddy, presi-
dent of the Union, would type a "rough draft" for consideration by the Employers.
The meeting then adjourned.
Sometime thereafter, when a draft was prepared by Smiddy, which did not in-
clude Tri-SCAP, he sat down with Van Leunen, an employer representative, to discuss
it .2 Various suggestions were made by Van Leunen and those that were agreed to,
including the notation "include Tri-SCAP," were penciled in and initialed by Smiddy.
Van Leunen left the draft with Sweet who then proceeded to make additional
revisions, appending two stapled mimeographed printed insertions on the first page
and another stapled provision relating to Tri-SCAP on the next to last page. Ex-
tensive written insertions and excisions in red ink also were made by Sweet. The
draft, as revised by Smiddy, Van Leunen, and Sweet, was then mimeographed by
the latter. (General Counsel's Exhibit No. 8.)
Sweet testified that on April 18 Smiddy and Neidemier, the union negotiators,
came to Sweet's office and notified him that "the boys wouldn't sign it with Tri-
SCAP in it, and it was out." He also testified that a week or 10 days later, Smiddy
again came to his office and told him that an employer, Pittsburgh Plate Glass
Company, would not agree to the Tri-SCAP provision.
Discussion
One of the basic purposes of the Act is to "encourage the practice and procedure
of collective bargaining" as an instrument for promoting and achieving industrial
democracy, stability, and peace. (Section 1 of the Act.) In furtherance of this
national policy, the Act requires both employers and unions alike to bargain col-
lectively. Section 8(a)(5) and 8(b)(3) implement this objective and make it an
unfair labor practice, respectively, for either an employer or a union, under the
2 General Counsel's Exhibit No 4
BROTHERHOOD OF PAINTERS, ETC., LOCAL NO. 1385 687
conditions prescribed in the statute, to refuse to bargain collectively. Section 8(d),
in turn, defines the duty to bargain collectively to mean-
... the performance of the mutual obligation of the employer and the repre-
sentative of the employees to meet at reasonable times and confer in good
faith with respect to wages, hours, and other terms and conditions of em-
ployment, or the negotiation of an agreement ... and the execution of a written
contract incorporating any agreement reached if requested by either party... .
Congress did not further particularize the nature and character of the duty thus
prescribed. The Act "generally has been considered to absorb and give statutory
approval to the philosophy of bargaining as worked out in the labor movement in
the United States." Order of Railroad Telegraphers v. Railway Express Agency,
321 U.S. 342, 346. Within this broad framework, Congress left it to the Board
to infuse meaning and content in the statutory mandate through a continuing ex-
amination of collective-bargaining practices. A "statute expressive of such large
public policy as that on which the National Labor Relations Board is based must
be broadly phrased and necessarily carries with it the task of administrative ap-
plication." Phelps Dodge Corp. v. N.L.R.B., 313 U.S. 177, 194. "Congress ad-
visedly left the concept flexible to be defined with particularity by the myriad of
cases" coming before the Board. Federal Trade Commission v. Motion Picture
Advertising Service Co., Inc., 344 U.S. 392, 394. In short, it is for the Board,
primarily, to prescribe the "ground rules" of collective bargaining in the light of
the objectives which the Act seeks to achieve.
In carrying out this function the Board has stated the broad test of good-faith
bargaining to require the parties to have a sincere desire to reach an agreement and
to that end make every reasonable effort to reach common ground. E.g. N.L.R.B. v.
Boss Manufacturing Company, 118 F. 2d 187, 189 (C.A. 7); N.L.R.B. v. Reed &
Prince Manufacturing Company, 118 F. 2d 874, 885 (C.A. 1). The cases which
come before the Board upon charges that a party has refused to bargain in good
faith involve for the most part an evaluation of the parties' subjective state of mind,
as evidenced by their conduct, to determine whether they have negotiated with a
genuine desire to compose their differences and reach an agreement. But this factor
is not the sole measure of the bargaining obligation. The duty to bargain in good
faith is not always satisfied by a mere showing that the parties have evidenced a
genuine desire to come to an agreement. It also embraces a duty to refrain from
conduct which, viewed in the context of the statutory purposes and objectives, may
fairly be said to be incompatible with the "philosophy of bargaining" embedded in
the Act.
That the statutory duty to bargain in good faith embraces a desire to reach an
agreement is confirmed by Section 8(b)(3) of the amended Act and its legislative
history. The original 1935 Act which required employers to bargain collectively
imposed no corresponding duty upon unions. In 1947, it was proposed that the
Act make it an unfair labor practice for unions, as well as employers, to refuse
to bargain collectively. The proposal was resisted on the ground that it was un-
necessary since "Labor organizations exist for the purpose of collective bargain-
ing (H. Min. Rept. 245, 80th Cong., 1st sess., p. 83, 1 Leg. Hist. (1947)
374)? Congress found, however, that experience demonstrated that unions, despite
their basic purpose, may sometimes engage in practices which "frustrate the duty
to bargain collectively," and that it was necessary to incorporate in the Act a provi-
sion guarding against such practices. (93 Cong. Rec 4135, 2 Leg. Hist. (1947)
1062; see also 93 Cong. Rec. 4363, 5005, A-2252, 2 Leg. Hist. (1947) 1172, 1479,
1524.) Accordingly, it adopted Section 8(b)(3) and imposed upon unions "the
same [obligation] as that imposed upon employers by section 8(a)(5)." (S. Rept.
105, 80th Cong., 1st sess., p. 22, 1 Leg. Hist. (1947) 428.) Hence the amend-
ment, if it is to be given substantive effect, must be treated as imposing on unions
the broad obligation to bargain in a manner that comports with the integrity of the
collective-bargaining process in the context of industrial realities.
Contentions
The General Counsel contends the evidence shows that the negotiations between
the parties culminated in a verbal agreement between the Employers and the Re-
spondent Union on April 10, 1962, which was memorialized by the "Memorandum
4 "Leg Hist. (1947) " refers to the two-volume collection of the legislative history of
the Taft-Hartley Act, entitled "Legislative History of the Labor Management Relations
Act, 1947 " The two similar volumes for the original Wagner Act are referred to as
"Leg Hist ( 1935)."
Egg DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Understanding." 4 (General Counsel's Exhibit No. 3.) He claims that when
the words "and Tri-SCAP" were inserted in the "Memorandum of Understanding"
by Sweet, after it was signed by the parties, it was intended, and so understood by
the Union, to be a part of the agreement. The refusal of the Union to execute
a collective-bargaining agreement, after its terms had been agreed upon previously,
argues the General Counsel, is a violation of Section 8(b)(3). The Respondent
Union, on the other hand, claims there was no violation as there was no binding
agreement between the parties to include in the contract a provision with respect
to Tri-SCAP.
Conclusions
It should be noted at the outset that Tri-SCAP was exclusively controlled and
operated by the Employers It does not involve the Union It is the Employers
who contribute to the fund; not the Union or the employees. In fact, two of the
Employers, Stearns and Red Spot Paint & Varnish Co , have been contributing to
Tri-SCAP for some time. The Union has no control or plays no role whatsoever in
the administration of Tri-SCAP. The trustees of the fund are appointed by the
Employers. The fund is a matter exclusively between the Employers and Tri-
SCAP.5
The uncontradicted testimony negates the General Counsel's contention that agree-
ment was reached by the parties that Tri-SCAP was intended to be included in the
agreement. Immediately after the "Memorandum of Understanding" was signed,
Neidemier, a union negotiator, stated at the April 10 meeting that he did not under-
stand Tri-SCAP as he had never seen a copy of the agreement and declaration of
trust.6 Stearns, one of the employer negotiators at the April 10 meeting who signed
the "Memorandum of Understanding" (at which time the General Counsel claims
agreement was reached on Tri-SCAP), also admitted he did not understand how
the fund operated. It is self-evident, therefore, that it was impossible to reach
agreement on a matter which some of the parties did not understand. Accordingly,
it is found that the negotiations, detailed above, did not culminate in a binding
agreement being reached by the participants with respect to Tri-SCAP.
Furthermore, Sweet's testimony that after the April 10 meeting concluded, Smiddy,
the union negotiator, was to type a rough draft of what had been agreed upon at
that meeting militates against the General Counsel's contention that a final and bind-
ing agreement was reached by the parties. Moreover, when this rough draft was
prepared by Smiddy, he and Van Leunen, an employer representative, revised it
further. It was then given to Sweet who made extensive revisions, additions,
insertions, and excisions on the rough draft Then too, the finding that no agree-
ment was reached by the parties is buttressed by the cogent fact that from the
time this rough draft was turned over to Sweet for additional revisions until the
time charges were filed in this proceeding, Smiddy never again saw the draft he
had prepared. Under such circumstances, it was impossible to reach agreement
on a proposed contract the Union never saw and some revisions of which they
had never agreed to accept.
Smiddy, president of the Union, testified, in answer to questions propounded by
the General Counsel, that he was not authorized by the members of his union to
conclude a final agreement with respect to Tri-SCAP. In support of this assertion
by him is his testimony that Tri-SCAP was never discussed at any union meeting
held prior to April 10.7 Furthermore, the constitution of the International Union
requires that all agreements negotiated by a local's officials must be submitted to the
union's membership for approval before it is signed. It is not unreasonable to
assume, therefore, that the Employers knew membership ratification was necessary
as the Employers and the Union had been negotiating and executing collective-
bargaining agreements for over 30 years, thereby establishing a bargaining pattern
in these past negotiations whereby it was the practice of the Union to submit
proposed contracts to its members for their approval
The General Counsel in subparagraph (a) of his amended complaint alleges " agree-
ment" was reached on April 10 and in subparagraph (b) that a "final contract-complete
in every detail was reached on or about April 13, 1962 "
See Detroit Floor Decorators Local Union No 2265, et al. (Mill Floor Covering, Inc ),
136 NLRB 769, where the Board held, inter alia, that an industry promotion fund con-
cerns itself with the relationship of employer to consuming public, rather than with
wages, hours, or other terms and conditions of employment
Q Testimony of Sweet and Carter, employer representatives.
7 A union meeting had been held on April 9 but Tri-SCAP was not discussed
BROTHERHOOD OF PAINTERS, ETC., LOCAL NO. 1385 689
Finally, the General Counsel has not produced sufficient evidence to overcome
Smiddy's uncontradicted testimony that he did not have the requisite authority to
agree to Tri-SCAP and that it was not his intention to bind the Union to any agree-
ment concerning Tri-SCAP when he signed the "Memorandum of Understanding"
on April 10.8 Support for Smiddy's contention is found in the testimony of Carter,
an employer representative, that Smiddy, accompanied by other union representa-
tives, came to his office on May 14 and submitted for his consideration a proposed
contract. Carter requested the union representatives to leave the proposed con-
tract with him and "he would look it over." Carter's asking the union officials to
leave the proposed contract with him for his consideration makes it highly improbable
that he believed agreement had been reached at the April 10 meeting which he
attended. Further confirmation of the conclusion that no agreement was reached
on April 10, is the uncontradicted testimony of Smiddy that between the time of the
April 10 meeting and May 14, 11 employers signed the same agreement that was
submitted to Carter. (General Counsel's Exhibit No. 5.) Under these circum-
stances, it would be unreasonable to accept the General Counsel's contention that
agreement was reached when the "Memorandum of Understanding" was signed on
April 10, in view of the fact that Smiddy, shortly thereafter, entered into contracts
with I1 employers which corroborates his testimony that he neither intended nor
believed the Union was bound by these prior negotiations.
Particularly revealing is the following testimony of Sweet, in answer to questions
as to why he desired Tri-SCAP to be included in the contract between the employers
and the Union in view of the fact that the fund was to be financed and controlled
exclusively by the employers.
Q. Is there any relationship between Tri-SCAP and the collective bargain-
ing agreements that might be reached
A. Certainly.
Q. What is that relationship, sir?
A. By including it in the collective bargaining agreement it makes the em-
ployer legally responsible for fulfilling his part of fringe issues.
Q. Do you mean to say, sir, that by your last answer you were saying that
the purpose of having the Union include Tri-SCAP in the union contract with
the employer is to make the employer legally responsible for making these pay-
ments to Tri-SCAP?
A. That's correct.
Q. In other words, the purpose of having Tri-SCAP included in the union
contract was to be a legal compulsion to make sure that the employer would
make these payments to Tri-SCAP?
A. Particularly those renegade employers.
Q. By renegade employers, you mean employers who are not members of the
Association?
A. Not particularly.
Q. But you mean employers who did not agree to Tri-SCAP?
A. Well, who default in payments.
Q. Yes, and, therefore, by getting the union or asking the union to include
this Tri-SCAP in the legal contract between the union and the employers you are
hoping that thereby the union would be able to exert its pressure to have em-
ployers keep up and make payments to Tri-SCAP.
A. Correct. And it has been done in many cases.
Smiddy also testifieu that shortly after the meeting on April 10, Sweet suggested
to him that he accompany Sweet in soliciting employers to join Tri-SCAP and that
Smiddy's expenses would be paid by Sweet.9
The car's cited by the General Counsel are inapposite as they cannot properly
be read to govern the instant situation in that their facts are different from those
here presented. Thus, in Inland Steel Products Company, 120 NLRB 1678, the
Board found that the parties had reached agreement, whereas in the case at bar,
it has been found that no agreement was reached with respect to Tri-SCAP.
Maremont Automotive Products, Inc., 134 NLRB 1337, is authority for the prop-
8 The rough draft prepared by Smiddy (General Counsel's Exhibit No. 4) was signed
only by him.
9 One of Respondent's proposed findings of fact requesting a finding that this was a
device to bring compullsian on the Union to force employers to participate in Tri-SCAP
is refused as it is not believed necessary in resolving the issues in this case.
690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
osition that where the International and local unions by their actions ratify an
agreement negotiated by the local 's bargaining unit , it is a violation for them not
to execute the agreement negotiated by the bargaining unit . In California Associa-
tion of Employers, 123 NLRB 922, there again it was held the union was obligated
to sign the agreement as the Board found the local had given its business agents
apparent authority to execute the contract in question whereas, in the instant case,
in view of the history of the employers in bargaining with the Respondent for over
30 years, it must be assumed that the employers knew that all agreements negotiated
by the Union 's officials required ratification by the membership . The General Coun-
sel misconceives his role when he argues no evidence was produced by the Re-
spondent that the membership refused to ratify.'° The burden of proof throughout
the hearing remains on the General Counsel ; only the burden of going forward with
the evidence shifts.
In view of the foregoing conclusions , and upon the entire record , it is found no
agreement had been reached with respect to Tri-SCAP, and that the evidence war-
rants no finding that the Respondent committed unfair labor practices within the
meaning of Section 8(b)(3) of the Act, and it will , therefore , be recommended that
the complaint be dismissed in its entirety ." See International Molders and Foundry
Workers, etc., 91 NLRB 139.
11 See "The Testimony ," supra, where Smiddy's uncontradicted testimony is that he
notified Sweet on April 18 , that "the boys wouldn 't sign it with Tri-SCAP in it, and it
was out."
11 The conventional conclusions of law which are customarily repeated at this point are
omitted as they will be found in this body of the Intermediate Report.
Norman E. Kopp and Larry K. Evans, d/b/a Kopp -Evans Con-
struction Company and Alton-Wood River Building and Con-
struction Trades Council . Case No. 14-CA-2833. July 22, 1963
DECISION AND ORDER
On February 14, 1963, Trial Examiner Eugene E. Dixon issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had not engaged in the unfair labor practices alleged
in the complaint, and recommending that the complaint be dismissed,
as set forth in the attached Intermediate Report. Thereafter, the
Charging Party and General Counsel filed exceptions to the Inter-
mediate Report and supporting briefs. The Respondent filed a brief
in support of the Intermediate Report.
The Boardhas 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 Interme-
diate Report and the entire record in the case, including the excep-
tions and briefs, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.
[The Board dismissed the complaint.]
CHAIRMAN McCULLOCrI took no part in the consideration of the
above Decision and Order.
143 NLRB No. 78.