Field and Sons, Inc.

National Labor Relations Board - Board Decisions

Mar 29, 1971

189 N.L.R.B. 406 (N.L.R.B. 1971)

406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Field and Sons, Inc. and Massachusetts North Shore
Painters Local 1898 of The Brotherhood of
Painters, Decorators and Paperhangers of Ameri-
ca, AFL-CIO, of Salem , Massachusetts. Case
1-CA-7184
March 29, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND BROWN
On November 27, 1970, Trial Examiner Melvin J.
Welles issued his Decision in the above-entitled
proceeding finding that the Respondent had engaged
in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. Thereafter, the
Respondent filed exceptions 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, the brief, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recommend-
ed Order of the Trial Examiner and hereby orders that
the Respondent, Field and Sons, Inc., Lynn, Massa-
chusetts, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial Examiner's
recommended Order.
I We hereby correct the citation of Strong Roofing & Insulating
Company, listed in the Trial Examiner's Decision, section C, as 52 NLRB 3,
to 152 NLRB 9
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MELVIN J. WELLES, Trial Examiner: This case was heard
at Boston, Massachusetts, on October 6, 1970. The
complaint, issued September 16, 1970, based on a charge
filed July 7, 1970, and amended September 11, 1970, alleges
that Respondent violated Section 8(a)(5) and (1) of the Act
by refusing, on July 10, 1969, and thereafter, to sign an
agreement negotiated by an Association to which Respon-
dent belonged. Mr. Field elected to represent himself at the
hearing. He did not file a formal answer, but addressed a
letter to the Regional Director for the Region 1, which I
accepted, with no objection by the General Counsel, as an
answer. The General Counsel filed a brief.
Upon the entire record in this case, including my
observation of the demeanor of the witnesses, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a Massachusetts corporation, with its
principal office and place of business at Lynn, Massachu-
setts, where it is engaged in the painting and decorating
business. The General Counsel's allegation that Respon-
dent is engaged in commerce within the meaning of the
Act is predicated on Respondent's alleged membership in
an association called "Union Painting Contractors of the
North Shore." Evidence introduced by the General
Counsel does establish that certain members of the
Association other than Field do perform services valued in
excess of $50,000 for firms directly engaged in interstate
commerce. The Board had consistently held that it would
assert jurisdiction over an employer who did not otherwise
meet its jurisdictional standards when the employer is a
member of an association or bound by multiemployer
bargaining negotiations and the association, or any other
member thereof, meets the requisite standards.' As
Respondent, in its "answer," and at the hearing, denied
that it was a member of the Association, and in effect
denied that it was bound by the agreement reached
between the Union and the Association. I will discuss and
resolve these questions before stating my conclusions with
respect to commerce.
II. THE LABOR ORGANIZATION INVOLVED
Massachusetts North Shore Painters Local 1898 of the
Brotherhood of Painters, Decorators and Paperhangers of
America, AFL-CIO, of Salem , Massachusetts , is a labor
organization within the meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background, the Nature of the Association
Union Painting Contractors of the North Shore, herein
called the Association, has existed for about 20 years. For
the past 8 years, Mario Santeusanio, a painting contractor
himself, doing business under the name Eyklenburg and
Abbott, has been the president, secretary, and treasurer of
the Association, and the facts concerning the Association
are based on his uncontradicted testimony. The Associa-
tion exists primarily for the purpose of meeting with the
1 Edward Peterem and Robert Greenlee, a Partnership, d/b/a and Greenlee
Construction Co, 172 NLRB No 238, Siemons Mailing Service, 122 NLRB
81,84
189 NLRB No. 59
FIELD AND SONS, INC.
Union on contract negotiations, and secondarily to meet on
grievances.2 The Association does not have formal
meetings , nor does it have a formal membership, or dues.
Santeusanio's role as president, secretary, and treasurer
came about when he joined the Association, "asked who
the president was and they all pointed to me." A company
joins the Association by signing a contract with the Union,
or "just by coming to one of the meetings." Santeusanio
notifies all member contractors when negotiating meetings
are to be held. Even those contractors who do not, and
never have, attended negotiation meetings are considered
members of the Association once having signed a contract
negotiated between the Association and the Union.
Resigning from the Association is just as informal as getting
in to it. In response to the Trial Examiner's question;
How would somebody get out of the Association if he
wanted to get out after they had been in by virtue of
having signed a contract?
Santeusanio answered:
Up until today, a few weeks ago, I thought they just said,
"I have had it with the Union," and walked out. Two
contractors have done such. One was Olger Johanson at
the end of the previous-the '66 negotiations. He
decided to drop out of the Union. And Ted Norton just
dropped out because he left the paint business.
Johanson dropped out and then went to work as a
painter himself, self-employed.
B. Respondent's Participation in the Association and
in Bargaining
Respondent first signed a contract with the Union about
September 1965. The contract signed by Field then had
been negotiated by the Association and the Union in 1963,
and Field signed it after John E. McCarthy, a business
representative of Painters Local Union 1898 of the North
Shore, told him he ought to sign the agreement because he
had union men working for him. The Union told Field at
that time that he would get better men, and more jobs if he
became a regular union painting contractor. At the same
time that he signed the 1963 agreement, Field also signed an
agreement to be a party to the health and welfare fund.
In 1966, a new agreement was negotiated between the
Association and the Union effective June 13, 1966, and to
run for 3 years. Field personally participated in the
negotiations and signed the contract.
The 1969 negotiations began in about April of that year.
Field attended many meetings, both of the Association
alone, and with the Union, during this period. The Union
ultimately called a strike, which was settled by the
Association agreeing to a contract. During the strike, at an
Association meeting about a week before agreement was
reached with the Union, Field told Santeusanio "This is
ridiculous. I can't afford to pay these union wages. I am not
going to stay in the Union." After the contract was agreed
to, the Union, through McCarthy and John C. Damery, an
international representative of the Painters Union, sought
on numerous occasions to get Field to sign it, the most
2 Only one grievance was filed between 1966 and 1970, and it was
"ironed out "
407
recent occasion being about July 3, 1970, 4 days before the
Union filed the initial charge in this case.
Respondent did not controvert any of the testimony of
General Counsel's witnesses . President Field represented
himself, and took the stand to explain his position. He
specifically stated that the facts as testified to were
accurate. His position, however, was that he did not need
the Union, which had, in his view, not lived up to its
promises of getting him better men and better jobs. Field
also made it clear that he did not regard himself as a
member of any association , nor the Association as having
any real existence. As he put it:
There is no association. It is just that its a board .. .
that takes care, you know. The contractors got together
to debate with the Union.
Field also indicated that he intended to be primarily a
mason, with no new construction painting at all, so that he
would not be working "on union jobs," and therefore
"don't want to sign in the future unless I have to, if I have to
get some jobs like that."
C. Discussion
Despite the fact that the Association is extremely
informal, with no rules, bylaws, or structure other than a
sort of "last one in's the president" way of operating, it has
for at least 7 years bargained with the Union on behalf of
those painting contractors who signed with the Union.
Since 1965, when Respondent signed the 1963 contract,
President Field has personally participated in the bargain-
ing sessions, both in 1966, when he signed the contract that
emerged from those sessions , and in 1969, when he decided
just during the strike and before agreement was reached to
have no more of the Union, and thereafter refused to sign
the agreement. The agreement, which, like its predecessors,
is signed by each of the contractors after it is negotiated by
the Association and the Union, is between Union Painting
Contractors of the North Shore and Massachusetts North
Shore Painters Local 1898.
The fact that the Association here was informal and
unstructured, and, indeed, has no rules relating to
acquisition of or withdrawal from membership, does not
impair the Association's status as the bargaining agent for
those contractors who have assented to the existing
arrangement. Even assuming that Field's initial signing, in
1965, of the 1963 agreement did not automatically serve to
make Respondent a member of the Association, his active
participation in subsequent negotiations in 1966 and 1969,
as well as his attendance at Association meetings concern-
ing bargaining with the Union and his signing the 1966
agreement clearly demonstrate his intent to be bound by
such bargaining and to become a member of the
Association. When Field told Santeusanio, a week before
the 1969 contract was consummated , that he was "not
going to stay in the Union," he was withdrawing from the
Association and from multiemployer bargaining 3 Such
withdrawal, however, came too late to be timely or
effective; Respondent was already obligated to abide by
whatever bargain eventuated from the multiemployer
3 Santeusanio testified , as noted above, that he viewed Field's action as
a resignation from the Association
408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargaining that had been in progress, and in which
Respondent had participated. Sheridan Creations, Inc., 148
NLRB 1503, 1504-05, enfd. 357 F.2d 245, 247 (C.A. 2);
Shamrock Systems, Inc., 155 NLRB 1120; John J Corbett
Press, Inc., 163 NLRB 154. Field's expressed reasons for
not wishing to remain a "Union contractor" any longer do
not have any bearing on his legal obligations; they present
no special circumstances of the type that might excuse his
belated withdrawal from multiemployer bargaining.
As the original charge in this case was not filed until July
7, 1970, no violation of the Act can be found based on the
initial refusal to sign, in July 1969, as that was more than 6
months before any charge was filed. As related above,
however, union representatives McCarthy and Damery,
repeated their attempts to have Field sign the contract
within the 6 months' limitations period. The Board has
held, with court approval, that the obligation to sign an
agreement being a continuing one, any refusal within 6
months preceding the filing of a charge constitutes an
actionable unfair labor practice. Strong Roofing & Insulat-
ing Company, 52 NLRB 3, 386 F.2d 929 (CA. 9), cert.
denied 390 U.S. 920; see also Sewanee Coal Operators Assn,
167 NLRB 172, revd. 423 F.2d 169 (C A. 6). Although the
complaint alleges the violation as of July 10, 1969, I will, of
course, date the violation from January 7, 1969, 6 months
prior to the filing of the charge.4
The complaint alleges the "appropriate unit" as being
Respondent's employees. I am satisfied that Field's
conduct, including his participation in bargaining negotia-
tions in 1966 and 1969 establish his legal intent to be bound
by the 1969 negotiations between the Union and the
Association even viewing Respondent's employees as a
separate unit. However, the facts of this case, including the
contracts of 1963, 1966, and 1969, which are in evidence, so
obviously establish the appropriateness of the multiemploy-
er unit consisting of all members of the Association,
including Respondent, that I am constrained to find such a
unit, rather than the single unit alleged in the complaint, to
be appropriate. See Sheridan Creations, supra; John J.
Corbett Press, Inc., supra; Belleville Employing Printers, 122
NLRB 350.
In view of these findings, I conclude that Respondent,
being bound by the multiemployer bargaining negotiations
of the Association, which meets the Board's jurisdictional
standards, is engaged in commerce within the meaning of
the Act I conclude further that by its refusal on and after
January 7, 1970, to sign and honor the 1969 agreement
between the Association and the Union, Respondent
violated Section 8(a)(5) and (1) of the Act.
Upon the basis of the foregoing findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent, Field and Sons, Inc., is an employer
4 As Respondent was represented by its president, not by counsel, I do
not regard its failure to raise any 10(b) question as dispositive, and have
resolved the matter in accordance with Board law in rejecting Section 10(b)
as a defense and in dating the violation from January 7, 1970 instead of
July 10, 1969
5 In the event no exceptions are filed as provided by Section 10246 of
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Massachusetts North Shore Painters Local 1898 of
the Brotherhood of Painters, Decorators and Paperhangers
of America, AFL-CIO, of Salem, Massachusetts, is a labor
organization within the meaning of Section 2(5) of the Act.
3. All employees employed by members, including
Respondent, of Union Painting Contractors of the North
Shore, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of
the Act
4. At all material times the Union has been and is the
exclusive bargaining representative of the employees,
including those of Respondent, in the aforesaid appropriate
unit.
5. By refusing on and after January 7, 1970, to sign the
1969 agreement between the Union and the aforesaid
Association, Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(5) and (1) of
the Act, which affect commerce within the meaning of
Section 2(6) and (7) of the Act.
IV. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, it will be recommended that it cease
and desist therefrom and take certain affirmative action
designed to effectuate the purposes and policies of the Act.
It has been found that Respondent refused to bargain
with the Union by refusing to execute the 1969 agreement
between the Union and the Association. It will therefore be
recommended that Respondent sign and honor said
agreement, and make whole its employees for any loss of
wages or other benefits they may have suffered as a result of
Respondent's refusal to sign the agreement from January 7,
1970. Backpay if any, shall be computed in accordance with
the formula set forth in F W Woolworth Company, 90
NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB
716.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDERS
Respondent, Field and Sons, Inc., Lynn, Massachusetts,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Failing or refusing to sign the contract dated June 6,
1969, between Union Painting Contractors of the North
Shore and Massachusetts North Shore Painters Local 1898.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of the
right to self-organization, tojoin or assist the said Union or
any other labor organization, to bargain collectively
through representatives of their own choosing and to
engage in other concerted activities for the purpose of
the Rules and Regulations of the National Labor Relations Board, the
findings , conclusions , recommendations , 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
FIELD AND SONS, INC.
collective bargaining or other mutual aid or protection, or
to refrain from any or all such activities.
2. Take the following affirmative action which will
effectuate the policies of the Act-
(a) Forthwith sign the said agreement of June 6, 1969.
(b) Upon execution of the foregoing agreement, give
retroactive effect to January 7, 1970, to the terms and
conditions thereof, including but not limited to the
provisions relating to wages and other employment
benefits, and in the manner set forth in the section of this
Decision entitled, "The Remedy," make whole its employ-
ees for any losses they may have suffered by reason of
Respondent's failure or refusal to sign the said contract.
(c) Post at its place of business in Lynn, Massachusetts,
copies of the attached notice marked "Appendix." 6 Copies
of said notice, on forms provided by the Regional Director
for Region I, after being duly signed by Respondent's
representative, shall be posted by it immediately upon
receipt thereof and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
(d) Notify the Regional Director for Region 1, in writing,
within 20 days from the receipt of this Decision, what steps
Respondent has taken to comply herewith.?
6 In the event that the Board's Order is enforced by a Judgment of a
United' States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor 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 "
7 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, notify said Regional Director, in writing,
within 20 days from the date of this Order, what steps Respondent has
taken to comply herewith
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL forthwith sign the contract, dated June 6,
1969, between Union Painting Contractors of the North
Shore and Massachusetts North Shore Painters Local
1898.
WE WILL give retroactive effect to the terms and
conditions of said contract, including but not limited to
the provisions relating to wages and other employment
benefits, and WE WILL make our employees whole for
any losses they may have suffered by reason of our
refusal to sign the said agreement.
WE WILL NOT in any like or related manner interfere
with, restrain , or coerce our employees in the exercise of
rights guaranteed to them by Section 7 of the Act.
FIELD AND SONS, INC.
(Employer)
Dated By
(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 directed to the Board's Office, 20th
Floor, John F. Kennedy Federal Building, Cambridge &
New Sudbury Streets, Boston, Massachusetts 02203,
Telephone 617-223-3300.