Hi-Way Billboards, Inc.

National Labor Relations Board - Board Decisions

Jun 17, 1971

191 N.L.R.B. 244 (N.L.R.B. 1971)

244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hi-Way Billboards, Inc., Matteson Southwest Com-
pany and Sign and Pictorial Painters Local Union
No. 550 and Houston Sign Manufacturers Associa-
tion, Party to the Contract . Cases 23-CA-3710 and
23-CA-3711
June 17, 1971
DECISION AND ORDER
BY MEMBERS BROWN, JENKINS, AND KENNEDY
On January 13, 1971, Trial Examiner William J.
Brown issued his Decision in the above-entitled con-
solidated proceeding, finding that Respondents had en-
gaged in and were engaging in certain unfair labor
practices and recommending that they cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. There-
after, Respondents and the General Counsel filed ex-
ceptions to the Trial Examiner's Decision and support-
ing briefs.
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 powers
in connection with these cases to a three-member panel.
The Board has reviewed the rulings of the Trial Ex-
aminer made at the hearing and finds that no prejudi-
cial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions and briefs, and the
entire record in these cases, and hereby adopts the
findings,' conclusions, and recommendations of the
Trial Examiner to the extent consistent herewith.2
The Union and the Association had a 17-year history
of collective bargaining prior to May 1970. The latest
agreement covering Respondents was executed in July
1967 and was effective until July 20, 1970.3 In the past,
not all members of the Association have delegated au-
thority to the Association to bargain on their behalf.
Thus, although Association member Matteson was
represented by the Association in the 1967 negotia-
tions, member Hi-Way was not. Nevertheless, Hi-Way
became a party to the 1967 agreement.
The Trial Examiner found that Matteson violated Section 8(a)(1) and
(5) of the Act by advising employees that it would not contract with the
Umon. We find, however, that by advising employees that it would not
contract with the Union Matteson violated Section 8(a)(1) only.
2 The findings and conclusions are based, in part, upon credibility deter-
minations of the Trial Examiner, to which Respondents have excepted
After a careful review of the record, we conclude that the Trial Examiner's
credibility findings are not contrary to a clear preponderance of all the
relevant evidence. Accordingly, we find no basis for disturbing those
findings. Standard Dry Wall Products, Inc., 91 NLRB 544, enfd 188 F.2d
362 (CA. 3).
' All dates are 1970 unless otherwise indicated.
On May 18, 1970, Hearn, an official of both Matte-
son and the Association, agreed, with the Union to
negotiate a new agreement on behalf of Association
members. Participating in the Association's bargaining
was Association official Loper who was also an official
of Hi-Way. These two officials at no time advised the
Unions that they were not representing their respective
employer-members, Respondents herein, as part of the
Association unit.
This committee met with Joe Fatta, business repre-
sentative of the Union, on approximately 12 occasions
between May 25 and July 23. Although agreement had
been reached on many issues in prior meetings, negotia-
tions broke off following the July 23 meeting because
of the inability of the parties to come to terms on wages
and on the issue of making the agreement, when
reached, retroactive to the date of the expired agree-
ment. Pursuant to a union meeting the evening of July
23, employees thereafter struck members of the As-
sociation, including Hi-Way and Matteson.
Hearn and Loper then asked Fatta to meet with them
on July 25. The Trial Examiner, crediting Fatta's tes-
timony, found that, during this meeting, Hearn and
Loper acknowledged that they felt the Association was
"weak-kneed" and would reach an accord with the
Union, and asserted that their employers (Hi-Way and
Matteson) were not going to go along with it. Follow-
ing these remarks, Hearn and Loper handed Fatta let-
ters from their respective companies.
Hi-Way's letter stated:
This is to inform you that as Local 550 Sign and
Pictoral [sic] Painters [the Union] and the Hous-
ton Sign Manufacturers Assn. has reached an im-
passe concerning labor contracts, Hi-Way Bill-
boards, Inc. has resigned from the Houston Sign
Manufacturers Assn. and desires to negotiate with
Local 550 on an individual basis. The Houston
Sign Manufacturers Assn. does no longer repre-
sent Hi-Way Billboards, Inc. in any manner. Only
officers of Hi-Way Billboards, Inc. are authorized
to negotiate with Local 550.
Hi-Way Billboards, Inc. will honor the last offer
made by the Houston Sign Manufacturers Assn. to
the Local 550 as of July 23, 1970. If this offer is
unsatisfactory with Local 550, then Hi-Way Bill-
boards, Inc. will meet with representatives of the
Local 550 at any reasonable place or time to fur-
ther negotiate upon the basis of the last offer made
at the July 23 impasse.
Matteson's letter to the Union was substantially the
same as that of Hi-Way set out above. Fatta informed
Hearn and Loper that this action was untimely and
refused the request to bargain individually.
After Hearn and Loper had withdrawn Respondents
from the Association, a new Association bargaining
committee was formed, four more bargaining sessions
191 NLRB No. 37
HI-WAY BILLBOARDS, INC. 245
were held, and an agreement was reached on August 3.
On August 4, members of the Union met and agreed to
end the strike except as against Hi-Way and Matteson
because they refused to go along with the agreement.
The Trial Examiner, upon these facts, concluded
that Hi-Way's and Matteson's withdrawal from as-
sociation-wide bargaining was untimely, and that by
refusing to sign the agreement reached between the
Union and the Association they violated Section 8(a)(1)
and (5) of the Act.
Respondents contend that, inasmuch as the busi-
nesses of members of the Association and the percent-
age of their employee complement represented by the
Union differed, the association-wide unit was not ap-
propriate for purposes of collective bargaining. It is
well settled, however, that a multiemployer unit is ap-
propriate when there has been bargaining in that unit
for a substantial period of time, particularly where
there has been a uniform adoption of the agreements
resulting therefrom.4 Thus, we find that the history of
collective bargaining between the Union and the As-
sociation in this case is controlling, and that the as-
sociation-wide unit is an appropriate unit for purposes
of collective bargaining.
Hi-Way argues that it was not a member of the As-
sociation when bargaining started in 1970, and relies on
the fact that, prior to the 1967 negotiations, it withdrew
authority from the Association to bargain on its behalf
and told the Union that only officials of Hi-Way could
represent it in any future negotiations. We find it signfi-
cant, however, that on July 25, 1970, Hi-Way spokes-
man Loper told Fatta the Association was "weak-
kneed' and would come to terms with the Union, and
Hi-Way was not going to go along; and he thereupon
gave Fatta a letter announcing Hi-Way's intention to
withdraw from the negotiations then in progress and
stating that the Association no longer represented it in
any manner. Hi-Way also stated that it would stand by
the Association's July 23 offer and would negotiate
with the Union individually if this offer was not satis-
factory.
Considering Hi-Way's letter in its entirety, and in
light of Loper's remarks which preceded his delivery of
the letter to Fatta, we can only interpret these events
as constituting an admission on Hi-Way's part that it
had been participating in the Association's negotiations
up until that time. We view Hi-Way's declaration that
the Association no longer represented it to be an ac-
knowledgement that Hi-Way had theretofore been par-
ticipating in the negotiations as part of the association-
wide group rather than as an individual. We do not
believe that Hi-Way's withholding of bargaining au-
thority from the Association in prior years precludes it
from changing its mind and granting such authority in
the instant negotiations. Hi-Way, by its own actions,
demonstrated that it was joining the association-wide
bargaining unit in 1970, but then belatedly decided to
"go it alone" after the negotiations took a turn not to
its likings
Respondents contend that an impasse in negotiations
was reached on July 23 and, relying upon Tulsa Sheet
Metal Works, Inc., 149 NLRB 1487, enfd. 367 F.2d 55
(C.A. 10, 1966), assert that this impasse justified their
resignation from the Association on July 25. We find,
however, as urged by the General Counsel and as was
the case in Tulsa Sheet Metal Works, supra, that there
was no final impasse. On the contrary, at no time were
the parties so far apart that there was no hope of recon-
ciling differences, as Hearn and Loper, in effect, ac-
knowledged when they told Fatta that they thought the
Association would accede to the Union's demands after
their withdrawal. Moreover, when Hearn and Loper
terminated their bargaining capacity on behalf of the
Association on July 25 the disagreements they helped
to create were promptly resolved and a contract was
agreed upon shortly thereafter.
Respondents also contend that the Union entered
into individual negotiations with various members of
the Association following the strike and, relying upon
dictum in Pacific Coast Association of Pulp & Paper
Manufacturers, 163 NLRB 892, 896, assert that this
action confirmed Respondents' right to withdraw from
the Association. Such reliance is misplaced. In that
case, the union timely withdrew from multiemployer
bargaining as to a few members of the association, but
the remaining employers continued to bargain as a
group. The Board held that if any or all the remaining
employers had believed that multiemployer bargaining
was no longer desirable, they could have withdrawn
from the unit rather than continue bargaining as a
group. We did not state there, but it is implicit, that any
employer wishing to withdraw must do so in a timely
manner. However, as we have found, supra, Hi-Way
and Matteson started bargaining with the group in
1970.
Furthermore, the Union in the instant case accepted
the ostensible withdrawal of two other members of the
Association, but only upon their agreeing to be bound
by any contract reached between the Union and the
Association. This, we find, is in effect no withdrawal at
all. In addition, Respondents did not learn of the iden-
tity of these members until after they (Respondents)
had themselves withdrawn.
Finally, Respondents contend that the Union ac-
quiesced in their withdrawal by entering into individual
negotiations with them. Thus, on or about August 7,
Krist Gradis, et al, 121 NLRB 601, 609 Cf Anderson Lithograph Company, Inc., 124 NLRB 920, enfd sub
nom N.L.A.B. v. Jeffries Banknote Company, 281 F.2d 893 (C A 9, 1960).
246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hearn gave Fatta a proposed collective-bargaining
agreement between Matteson and the Union. At
around the same time, Loper gave Fatta a similar
proposed agreement by Hi-Way. Fatta agreed to look
these documents over, apparently found them different
from the Association agreement, and pronounced them
unacceptable. We find that the mere fact that Fatta
took the proposals offered him by Respondents and
agreed to study them did not constitute individual bar-
gaining.
Respondents also argue that Fatta's actions in dis-
cussing with them the agreement already reached be-
tween the Union and Association constituted in-
dividual bargaining. We find, however, that by agreeing
to submit to Hi-Way and Matteson a "letter of intent"
outlining its interpretation of certain provisions in the
Association contract, the Union did not engage in in-
dividual bargaining, but, rather, was attempting to per-
suade Respondents to fulfill their legal obligations and
sign the Association agreement.
The complaint alleged that the strike was converted
to an unfair labor practice strike as to Respondents on
August 5. The Trial Examiner made no finding in his
Decision regarding this allegation. Inasmuch as the
strike ended as to all other members of the Association
on August 5, and as the only apparent reason em-
ployees of Hi-Way and Matteson remained on strike
thereafter was the unfair labor practice of Respondents
in refusing to sign the Association agreement, we find
that this strike was converted to an unfair labor prac-
tice strike on August 5.
Accordingly, in light of all the foregoing circum-
stances, we find that by their refusal to adopt the agree-
ment reached between the Union and the Association,
Respondents Hi-Way and Matteson violated Section
8(a)(1) and (5) of the Act. We find that Respondent
Matteson also violated Section 8(a)(1) and (5) of the
Act by attempting to bargain individually with its em-
ployees, and violated Section 8(a)(1) of the Act-by-ad-
vising an employee that it would not contract with the
Union. In addition, we find the strike herein was con-
verted to an unfair labor practice strike as to Respond-
ents on August 5.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Trial Examiner, as modified below, and hereby or-
ders that Respondents Hi-Way and Matteson, their
officers, agents, successors, and assigns , shall take the
action set forth in the Trial Examiner's recommended
Order, as so modified:
1. Substitute the following for paragraph 1(a), delete
paragraph 1(b), and reletter paragraphs 1(c) and (d) of
the recommended Order:
"(a) Refusing to sign and to implement the 1970-
1973 contract between Houston Sign Manufacturers
Association and Sign and Pictorial Painters Local
Union No. 550, with respect to their employees in the
following bargaining unit:
All journeymen sign painters, designers, sketch-
men, journeymen sign hangers, sign painter help-
ers, sign hanger helpers, beginning sign hanger
helpers, spraymen and plastic workers and/or fab-
ricators."
2. Substitute the following for paragraph 2(a) of the
recommended Order:
"(a) Forthwith sign and implement the 1970-1973
contract between said Association and Union, insofar
as it applies to employees of Respondents in the above-
described unit, and give retroactive effect thereto from
its effective date in 1970."
3. Substitute the following for paragraph 2(b) of the
recommended Order:
"(b) Upon application, offer all unfair labor practice
strikers reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or other
rights and privileges, dismissing, if necessary, any em-
ployees hired since August 5, 1970."
4. Substitute the attached notices for the Trial Ex-
aminer 's notices.
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain with Sign and
Pictorial Painters Local Union No. 550 by failing
to sign and implement the 1970 agreement be-
tween the Union and Houston Sign Manufacturers
Association, nor in any like or related manner
interfere with, restrain, or coerce employees in the
exercise of their rights under the National Labor
Relations Act, as amended.
WE WILL forthwith sign and implement the
1970-1973 agreement between Houston Sign
Manufacturers Association and the above-named
Union, and will give retroactive effect to the terms
and conditions of said agreement from its effective
date in 1970.
WE WILL, upon application, offer to all unfair
labor practice strikers reinstatement to their
former jobs or, if those jobs no longer exist, to
substantially equivalent positions, without preju-
dice to their seniority or other rights and privi-
HI-WAY BILLBOARDS, INC. 247
leges, dismissing, if necessary, any employees
hired since August 5, 1970.
HI-WAY BILLBOARDS,
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, Dallas-Brazos Building, Fourth Floor, 1125
Brazos Street, Houston, Texas 77002, Telephone 713-
226-4296.
APPENDIX B
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT advise employees that we will
not bargain with Sign and Pictorial Painters Local
Union No. 550 nor will we attempt to bargain
directly with employees.
WE WILL NOT refuse to bargain with the said
Union by failing to sign and implement the 1970
agreement between the Union and Houston Sign
Manufacturers Association, nor in any like or
related manner interfere with, restrain, or coerce
employees in the exercise of their rights under the
National Labor Relations Act, as amended.
WE WILL forthwith sign and implement the
1970-1973 agreement between Houston Sign
Manufacturers Association and the above-named
Union, and will give retroactive effect to the terms
and conditions of said agreement from its effective
date in 1970.
WE WILL, upon application, offer to all unfair
labor practice strikers reinstatement to their
former jobs or, if those jobs no longer exist, to
substantially equivalent positions, without preju-
dice to their seniority or other rights and privi-
leges, dismissing, if necessary, any employees
hired since August 5, 1970.
MATTESON SOUTHWEST
COMPANY
(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, Dallas-Brazos Building , Fourth Floor, 1125
Brazos Street , Houston , Texas 77002, Telephone 713-
226-4296.
TRIAL EXAMINER'S DECISION
WILLIAM J. BROWN, Trial Examiner: This proceeding un-
der Section 10(b) of the National Labor Relations Act, as
amended, hereinafter referred to as the Act, came on to be
heard at Houston, Texas, on October 15 and 16, 1970' The
original charges of unfair labor practices were filed on July
27 by the above-indicated Charging Party, hereinafter some-
times referred to as the "Union," and the complaints herein
issued on September 17 by the General Counsel of the Na-
tional Labor Relations Board acting through the Board's
Regional Director for Region 23. They alleged, and the duly
filed answers of Respondents have denied, the commission of
unfair labor practices defined in Section 8(a)(5) and (1) of the
Act. By order issued September 17 the cases were con-
solidated for hearing.
At the hearing the parties appeared and participated as
noted above with full opportunity to present evidence and
argument on the issues. Subsequent to the close of the hearing
briefs were received from the General Counsel and the Re-
spondent Companies and have been fully considered. On the
entire record herein and on the basis of my observation of the
witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANIES
The pleadings and evidence establish and I find that Re-
spondent Hi-Way Billboards, Inc., hereinafter sometimes re-
ferred to as Hi-Way, is a corporation organized under the
laws of the State of Texas with its principal place of business
in Pasadena, Texas. It is engaged in the manufacture, sale,
and erection of billboards, signs, and other advertising dis-
plays. It also appears from the pleadings and evidence that
Respondent Matteson Southwest Company, hereinafter
sometimes referred to as Matteson Southwest, is a corpora-
tion organized under the laws of the State of Texas with its
principal place of business in Houston, Texas, where it is
engaged in the manufacture, sale, and erection of billboards,
signs, and other advertising displays. During the 12-month
period preceding issuance of the complaints herein Hi-Way
and Matteson Southwest each manufactured, sold, and dis-
tributed from their locations above-mentioned products
valued in excess of $50,000 and shipped directly to customers
located outside the State of Texas. I find, as the Companies
concede, that each is an employer engaged in commerce
' Dates hereinafter relate to the calendar year 1970 unless otherwise
indicated
248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
within the purview of Sections 2(6) and (7) of the Act and
that assertion of Board jurisdiction is warranted.
II. THE LABOR ORGANIZATION INVOLVED
The pleadings and evidence establish that the Union is a
labor organization within the purview of Section 2(5) of the
Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction to the Issues
According to the testimony of Joe A. Fatta, business repre-
sentative and financial secretary of the Union, which tes-
timony I credit, the Union has had a 17-year history of collec-
tive bargaining with the Houston Sign Manufacturers
Association,' an association which has apparently bargained
in prior years for some but not all of its member-employers
during the 17 years preceding the events material herein. At
various times certain nonmembers of the Association have
adopted the agreement negotiated between the Union and the
Association. The most recent agreement between the parties,
i.e., the Union, the Association, and Hi-Way and Matteson
Southwest, was signed and effective July 26, 1967, to be in
effect until July 20, 1970. Both Hi-Way and Matteson South-
west were parties to the 1967-1970 agreement.
By letter of May 8, Fatta notified the Association of the
Union's desire to negotiate changes in the existing agreement.
Robert Hearn, vice president of Matteson Southwest and
Chairman of the Association's bargaining committee, relied
on May 18 for the Association, expressing the Association's
desire to negotiate a new agreement more closely attuned to
a manufacturing, as distinguished from a construction-type
agreement, and stating that the Association would negotiate
on behalf of its members. Thereafter some 16 bargaining
sessions were held, commencing on May 25 and ultimately
terminated in a new agreement dated August 24 (effective as
of July 20) between the Union, the Association, and 11 em-
ployers not including Hi-Way or Matteson Southwest. It is
the contention of the General Counsel that the failure of the
Respondents to accept and be bound by the August 24 agree-
ment constituted an unlawful refusal to bargain. Matteson
Southwest is alleged, additionally, to have engaged in unfair
labor practices by individual dealing with employees and in
informing them of its intention to refuse further recognition
of the Union.
B. Hi-Way
As noted above, negotiations for a renewal agreement were
instituted following the union letter of May 8. James C. Loper
(Jake), Hi-Way's secretary, testified that in prior negotiations
in 1963, 1965, and 1967 he had advised the Union of his
intention to negotiate separately from the Association; he
conceded, however, that he gave no such notice at the incep-
tion of the 1970 negotiations, and I conclude that the Union
was justified in understanding that the Association bargain-
ing in 1970 was designed to embrace Hi-Way.
At the first bargaining session, on May 25, the Union pre-
sented its proposal which featured a 15-percent wage in-
crease, an additional week vacation, 12% cents added to the
welfare package, and 25 cents added to the pension contribu-
tion. The Union proposed a 1-year agreement but indicated
its willingness to go along with the employers' preference for
f Prior to May 1970, the employers' association was apparently known
as the Houston Sign Contractors Association. The evidence indicates that,
mere membership in the Association did not at any material time necessarily
import an authorization on the part of the member that he would be bound
by the Association's negotiations.
a 3-year term if other items were satisfactory.' The Associa-
tion made no proposals at the initial meeting. Loper attended
the first meeting and subsequent bargaining sessions until
Hi-Way's resignation from the Association on July 23. After
the May 25 meeting bargaining, continued with weekly and
then semi-weekly meetings at a local restaurant. I credit Fat-
ta's testimony that the progress of bargaining was substan-
tially impeded by the employers' practice of deferring the
start of business to permit employer socializing over the
Union's objections.
Although the Union initially expressed its desire for a 1-
year agreement it eventually acceeded to the Company's pref-
erence for a 3-year pact provided agreement was reached on
other issues. At some time in the discussions the Association
proposed a wage package amounting to no increase on the
bottom rate up to unsatisfactory, in the union eyes, increases
on the upper classifications; later the Association, proposed 25
cents on the bottom rates up to 42 cent per hour on the higher
classifications. This company proposal was unsatisfactory to
the Union particularly in view of pending Company offers of
50 cents and 57 cents to the Sheet Metal Workers and the
International Brotherhood of Electrical Workers.
About the time of receipt of this latter proposal, after the
16th meeting, the Union communicated with the Federal
Mediation and Conciliation Service. Prior to the Union's
calling on the good offices of the Federal Mediation and
Conciliation Service the Union had also been confronted with
an Association proposal to reduce certain overtime rates and
to permit the performance of certain journeyman assignments
by employees in the lower rated helper classifications. At a
meeting of the union membership on July 20, the expiration
of the current agreement, the union members voted to reject
the latest Association proposal and to authorize the calling of
a strike in support of the Union's bargaining position. By
letters dated July 25 (G.C. Exhs. 7 and 8), copies of which
were personally handed to Fatta, Hi-Way and Matteson
Southwest resigned their memberships in the Association and
informed the Association and the Union that each stood by
existing Association offers but would bargain thenceforth
with the Union on an individual basis. On receipt of these
copies Fatta informed Loper and Hearn that their withdraw-
als from Associationwide bargaining were untimely and that
he refused to bargain with them individually. Fatta continued
bargaining with the Association and an agreement was con-
cluded on August 3 and signed by the parties on August 24.
In the interim, pursuant to a vote taken on July 24, the
union members struck on July 27 in protest of the refusal of
Association employers to agree to retroactivity of wage ad-
justments agreed on in the course of the bargaining. On the
second day of the strike Loper asked Fatta to meet with him
and Hearn of Matteson Southwest and the three met the
following day. According to Fatta's testimony which I credit,
Loper and Hearn stated that they knew the Association
would reach an accord with the Union but that their Compa-
nies were not going along with it. They handed Fatta letters
to the foregoing effect, but Fatta informed the company rep-
resentatives that their withdrawal from Association bargain-
ing was untimely and he refused to bargain individually with
them. Fatta continued bargaining with the reconstituted As-
sociation committee and, after four bargaining sessions,
reached a new agreement on August 3 (formally executed
August 24) for a 3-year term expiring July 20, 1973. In the
interim Hurricane Cecilia struck the Gulf and necessitated
certain preventive work by employees in the bargaining unit.
Loper did not attempt to secure an emergency labor supply
' The agreement ultimately concluded between the Association and the
Union, G.C. Exh. 9, provided for a 3-year term.
HI-WAY BILLBOARDS, INC 249
from the Union but handled damage preventive work by the
use of salesmen and nonemployee friends. Employers who
remained members of the Association used union members
for storm damage preventive work.
Sometime about August 7 Loper and Fatta met at the
former's office where Loper proffered a 1-year written agree-
ment with wage clauses which were unacceptable to Fatta.
While it is difficult for the trier of the facts in this case to
extricate from the burdensome mass of detail the real heart
of the matters involved, I am convinced that the key to the
issues is to be found in the actions of Hi-Way and Matteson
Southwest almost immediately following the Union's strike
authorization vote. I conclude that the Companies here in-
volved withdrew from the group bargaining because of their
dissatisfaction with the bargaining fibre of their representa-
tive, the Association team, at a time when the bargaining was,
as Loper told Fatta, about to reach agreement.' In this con-
nection, as noted above, I credit Fatta's testimony to the
effect that Loper told him that the Association was weak-
kneed and would ultimately accede to union demands greater
than Loper would accept and that he therefore was withdraw-
ing from the group bargaining. It is clear that employer with-
drawal from an established multiemployer unit may be per-
mitted, in the circumstances here involved, only with the
consent of the Union. In the instant case Fatta is shown by
the evidence to have at all times insisted that Hi-Way recog-
nize the group-negotiated agreement. I conclude that Hi-
Way's withdrawal from the established group bargaining and
refusal to accept the Association agreement with the Union
constituted a refusal to bargain within the purview of Section
8(a)(5) and (1) of the Act. Sheridan Creations, Inc., 148
NLRB 1503.
Matteson Southwest is alleged also to have engaged in
unfair labor practices by (1) attempting since August 5 to
bargain individually with its employees, (2) offering benefits
to solicit striking employees to abandon the strike, and (3)
informing employees on or about August 5 that it had no
intention of entering into agreement with the Union.
To substantiate these three allegations respecting Matteson
Southwest, the General Counsel relies on the testimony of
Robert Wilborn, a Matteson Southwest employee for 9 years
and a union member for some 18 years. Wilborn joined the
strike, performed picket duty, and testified, apparently in
intraunion disciplinary proceedings, against two union mem-
bers who crossed the Union's picket line. Notwithstanding
his quite apparent union sympathy, I found him a credible
witness and credit his testimony as against that of Hearn to
the contrary.
Wilborn testified that during the strike Hearn telephoned
him at home and asked him to return to work. According to
his account, he asked Hearn if he intended to sign a union
contract and Hearn replied that he never would, whereat
Wilborn informed Hearn that he would not return to work;
Hearn asked that he think it over and call him. Later, during
the strike , Wilborn met Hearn at a restaurant ; Hearn handed
him a paper which he described as a contract better than that
negotiated with the Association ; Hearn asked him to read it
and show it to Fatta and his fellow union members for whom
Hearn had mimeographed copies.
On the basis of the credited testimony of Wilborn I find
that Matteson Southwest engaged in unfair labor practices
within the scope of Section 8(a)(5) and (1) of the Act by
attempting to bargain individually with employees and by
advising employees that it would not contract with the
Union.
C. Matteson Southwest
As detailed above, Matteson Southwest participated in the
Association-Union bargaining up to July 25 when Hearn
delivered to Fatta a letter proclaiming Matteson Southwest's
withdrawal from the Association bargaining and its intention
to bargain thereafter independently of the Association. As in
the case of Hi-Way, Fatta informed Matteson Southwest of
the untimeliness of its withdrawal from the group bargaining
and of his refusal to bargain separately with Matteson South-
west . A few days thereafter Fatta met with Hearn and relayed
to him the current status of the Association bargaining. On
August 7 Hearn presented Matteson Southwest's complete
contract proposal (G.C. Exh. 10) in which the wage proposals
were surprisingly generous , ' according to Fatta, but the cov-
erage was unsatisfactory . The Union rejected the proposed
agreement.
As in the case of Loper and Hi-Way, Hearn on behalf of
Matteson Southwest told Fatta on or about July 24 of his
withdrawal from Association bargaining because the weak-
kneed Association would eventually give in to union demands
and that Matteson Southwest was, on that account, with-
drawing from the group bargaining . I conclude, as above
noted respecting Hi-Way, that Matteson Southwest's with-
drawal from the group bargaining and refusal to accept the
Association agreement , constituted an unfair labor practice
within' the scope of Section 8(a)(5) of the Act.
Matteson Southwest and Hi-way cannot seriously contend that an im-
passe in the bargaining had been reached in view of their acknowledgements
on this occasion that the bargaining was about to reach fruition in an agree-
ment.
' The evidence indicates that Matteson Southwest generally paid higher
than the established wage scale.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent Companies set forth in
section III, above, and there found to constitute unfair labor
practices , occurring in connection with the business opera-
tions of the Respondent Companies as set forth in section I,
above, have a close, intimate , and substantial relation to
trade, traffic, and commerce among the several States and
tend to lead to labor disputes burdening and obstructing such
commerce and the free flow thereof.
V THE REMEDY
In view of the findings above set forth to the effect that the
Respondent Companies have engaged in unfair labor prac-
tices affecting commerce, it will be recommended that they be
required to cease and desist therefrom and from like or
related unfair labor practices and take such affirmative action
as appears necessary and appropriate to effectuate the policies
of the Act.
On the basis of the foregoing findings of fact and upon the
entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent Companies are employers engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. The Union is a labor organization within the purview of
Section 2(5) of the Act and is, and has been at all material
times, the representative of employees of each of the Re-
spondent Employers in the appropriate units consisting of all
journeyman sign painters, designers , sketchmen, journeymen
sign hangers, sign painter helpers, sign hanger helpers, begin-
ning sign hanger helpers , spraymen and plastic workers
and/or fabricators.
250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. By untimely withdrawal from the multiemployer appro-
priate unit herein involved, and by refusal to accept and be
bound by the agreement concluded between the Union and
the Association's multiemployer group Respondent Compa-
nies have engaged in unfair labor practices defined in Section
8(a)(5) and (1) of the Act.
4. By advising employees that it would not contract with
the Union and by attempting to bargain individually with
employees, Respondent Matteson Southwest has engaged in
unfair labor practices defined in Section 8(a)(5) and (1) of the
Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
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 :6
ORDER
Respondents, their officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with the Union as ex-
clusive bargaining representative of employees in the appro-
priate unit as set forth above.
(b) Refusing to accept and sign the agreement negotiated
between the Association and the Union and effective as of
July 20, 1970.
(c) In the case of Matteson Southwest only, advising em-
ployees that it would not contract with the Union and/or
attempting to bargain individually with the employees.
6 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
(d) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of their rights
under the act.
2. Take the following affirmative action which appears
necessary and appropriate to effectuate the policies of the
Act:
(a) On request bargain collectively with the Union as exclu-
sive representative of employees in the aforesaid appropriate
units.
(b) Forthwith sign the agreement negotiated between the
Union and the Association effective as of July 20, 1970.
(c) Post at their respective places of business in Pasadena
and Houston, Texas, copies of the attached notices marked
"Appendix A" and "Appendix B", respectively.' Copies of
said notice, on forms provided by the Regional Director for
Region 23, after being duly signed by the Respondents' au-
thorized representatives, shall be posted by them immediately
upon receipt thereof, and maintained by them thereafter for
a period of 60 consecutive days, in conspicuous places, in-
cluding all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent
Companies to ensure that said notices are not altered,
defaced, or covered by other material.
(d) Notify the Regional Director for Region 23, in writing,
within 20 days from receipt of this Decision, what steps have
been taken to comply with the terms hereof.,
' 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."
6 In the event that this recommended Order is adopted by the Board after
exceptions have been filed, this provision shall be modified to read: "Notify
the Regional Director for Region 23, in writing, within 20 days from the date
of this Order, what steps the Respondent has taken to comply herewith."