Local 86, Brothd of Painters

National Labor Relations Board - Board Decisions

Mar 17, 1975

216 N.L.R.B. 1127 (N.L.R.B. 1975)

LOCAL 86, BROTHD. OF PAINTERS
Local 86, Brotherhood of Painters, Decorators and
Paper Hangers of America, AFL-CIO and Carpet
Control, Inc. Case 28-CP-123
March 17, 1975
SUPPLEMENTAL DECISION AND
ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On September 10, 1974, Administrative Law Judge
James T. Barker issued the attached Supplemental
Decision in this proceeding . On March 28 , 1974, the
Board remanded the case to the Administrative Law
Judge for further hearing (209 NLRB 891). There-
after, the Respondent filed exceptions and a support-
ing brief, and the Charging Party filed a brief in
answer thereto.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.
As more fully explained by the Administrative Law
Judge, Respondent and the Company agreed to the
terms of an 8(f) agreement with which the Respon-
dent later became dissatisfied . In an effort to
extricate itself from this agreement , Respondent
picketed the Company, not, of course, to protest a
supposed breach of their agreement as our dissenting
colleague believes, but to force company acceptance
of new contract terms . This was tantamount to a
repudiation by Respondent of the existing 8(f)
agreement and compelling renewed recognition of it
by the Company under a new agreement with
different terms.
Respondent's picketing therefore having a recogni-
tional object within the meaning of Section
8(b)(7)(C), the expedited election which Respondent
lost was properly directed , and Respondent's contin-
ued picketing thereafter violated Section 8(b)(7)(B)
of the Act, all as found by the Administrative Law
Judge.
I Chicago Printing Pressmen 's Union No. 3, and Franklin Union No. 4,
International Printing Pressmen & Assistants Union of North America, AFL-
CIO (Moore Laminating , Inc.), 137 NLRB 729 (1962); International
Typographical Union and Dayton Typographical Union No. 57 [The Greenfield
Printing and Publishing Co.] v. N.LRB., 326 F.2d 634 (C.A.D.C., 1966),
which includes a comprehensive summary of the relevant legislative history;
Bay Counties District Council of Carpenters AFL-CIO (Wilber F. Disney,
d/b/a Disney Roofing and Material Company), 154 NLRB 1598, 1605 ( 1965);
216 NLRB No. 190
ORDER
1127
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 Administrative Law Judge and
hereby orders that Respondent , Local 86, Brother-
hood of Painters , Decorators and Paper Hangers of
America , AFL-CIO, Phoenix, Arizona , its officers,
agents, and representatives, shall take the action set
forth in said recommended Order.
MEMBER FANNING, dissenting:
The majority here affirms the Administrative Law
Judge who found that Respondent's preelection
picketing was for a proscribed organizational or
recognitional object and would have been violative
of Section 8(b)(7)(C) had the picketing continued for
more than 30 days without the filing of a petition
under Section 9 of the Act. The Administrative Law
Judge further found that Respondent violated
Section 8(b)(7)(B), the subject of these proceedings,
by picketing after June 28 when the Regional
Director certified the results of an expedited election
conducted June 20. I disagree.
At the outset it is now well established that the sole
congressional purpose in enacting Section 8(b)(7)(C)
was to settle wherever possible, by means of an
expedited election, problems resulting from initial
recognition and organizational picketing.' Converse-
ly, Section 8(b)(7)(C) was not intended to reach
picketing by a recognized union to secure some
object other than recognition or organization, such
as, for example, picketing to secure compliance with
an existing contract .2
As found by the Administrative Law Judge in
1973, the Company, Carpet Control, Inc., voluntarily
recognized and executed a written collective-bargain-
ing agreement with Respondent. The Company was
of the view that the terms of its collective-bargaining
agreement with Respondent were as set forth in the
written contract with the exception of the terms
therein set forth concerning a wage increase effective
May 1, 1973, and concerning the Company's obliga-
tion to make trust fund contributions on behalf of its
employees. With respect to these exceptions the
Company was of the view that the May 1, 1973, wage
increase was not to take effect for its employees until
September 1, 1973, and that it was under no
obligation to make contributions to the trust fund,
Building and Construction Trades Council of Santa Barbara County, AFL-
CIO, et al. (Sullivan Electric Company), 146 NLRB 1086, 1087 (1964).
2 Waiters & Bartenders Local 500, Cooks & Waitresses Local 402, et al.
(Mission Valley Inn), 140 NLRB 433 , 437 (1963); Building & Construction
Trades Council of Santa Barbara County, AFL-CIO, et al. (Sullivan Electric
Company), supra, Bay Counties District Council of Carpenters, 154 NLRB
1598, 1605 , supra.
1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unless and until its employees became members of
the Union.
The Company's view with respect to the May I
wage increase and trust fund contributions was
based on the oral representations to the effect made
by Respondent' s Business Manager Kleiner, both
before and after the Company executed the written
contract. The Respondent, on the other hand, was of
the view that the terms of its collective-bargaining
agreement with the Company were solely as set forth
in the written contract. Thus Respondent took the
position that Kleiner was mistaken in telling the
Company that the May 1 wage increase need not be
paid until September 1, and that the Company need
not make trust fund contributions on behalf of its
employees unless and until the Company's employ-
ees became members of Respondent . In sum,
Respondent took the position that Kleiner's oral
representations were without legal effect.
Based on its review of the contract, the Company
declined to pay the May 1 wage increase on May 1,
and declined to make contributions to the trust fund
despite the Respondent's insistence that it do so.
Thus, because of the parties' conflicting views as to
just what their agreement was and, therefore, what
the Company's obligations thereunder were with
respect to these matters, the parties were confronted
with a contractual dispute in the most fundamental
sense ; fundamental inasmuch as the heart of the
dispute concerned not, for example, differing inter-
pretations of mutually recognized contractual provi-
sions, but rather concerned the very basic issue of
whether or not the agreement contained provisions
for a wage increase effective May 1 and for employer
trust fund contributions on behalf of nonunion
employees. Moreover, the parties' contractual dis-
pute had ramifications beyond the immediate con-
cern of the parties themselves. Thus the written
contract executed by the Company was the same
contract executed by other floor covering employers,
which contract contained inter alia a "most favored
nations" clause. Accordingly, several of these other
employers took the position in effect that by
operation of the "most favored nations" clause, they,
like the Company, were not required to pay the May
I wage increase on May 1. When they effectuated
this position by failing to pay the May 1 wage
increase , the Respondent struck these employers.
Thereafter, in an action brought by the employers a
temporary restraining order was issued against the
Respondent, which shortly thereafter was quashed.
Relying on these ramifications with respect to the
other floor covering employers, the Administrative
Law Judge concluded that the object of the picketing
3 Art. V: General Regulations provides in pertinent part: "A. The Union
agrees that if it grants to any employer terms or conditions which are more
was not to protest any breach of contract by the
Company, because its object as found by the
Administrative Law Judge was "to extract itself from
an untenable position vis-a-vis a disconsolate employ-
er group ...." In my view, the Administrative Law
Judge's finding and conclusion in this regard begs
the issue and is clearly erroneous, for a finding that
an object of Respondent's picketing was to extract
itself from the situation it found itself in vis-a-vis the
other floor covering employers not only does not
establish that the picketing was not to protest a
breach of contract, but rather serves to bolster the
conclusion that the object of the picketing was to
protest a breach of contract. Thus, the situation
Respondent found itself in vis-a-vis the other floor
covering employers clearly resulted from the conse-
quences which flowed from the "most favored
nations" 3 clause in their and the Company's con-
tract. If the Respondent had, as contended by the
Company, entered into an agreement with the
Company whereby it, contrary to the other floor
covering employers, did not have to pay the May 1
increase until September 1, then by virtue of the
operations of the "most favored nations" clause the
other floor covering employers could likewise delay
the May 1 wage increase. But the picketing here
challenged the Company's assertion that it had such
an agreement with Respondent and sought to get
Respondent to comply with the written terms of the
contract to which the other floor covering employers
were bound. Stated otherwise, if Respondent's
picketing were successful and the Company thereby
came around to the Respondent's view as to what
constituted the agreement, the other floor covering
employers would have no basis upon which they
could colorably delay the May 1 wage increase.
The Administrative Law Judge also found that, by
picketing, Respondent repudiated its collective-bar-
gaining agreement with the Company and thereafter
concluded that "the only avenue of relief open to the
company was capitulation, tantamount to renewed
recognition of the Respondent." I would find the
Administrative Law Judge's findings and conclusions
in this regard erroneous. Essential to his finding that
Respondent repudiated its contract with the Compa-
ny is his determination that Respondent's view of
what it believed to be the binding contract provisions
was without legal merit, and, conversely, that the
Company's view of the contract was legally correct.
In the first place, in my view the issue of whether
Respondent's or the Company's view of the contract
was legally correct is beside the point. Whether or
favorable than those contained herein, all employers party hereto shall be
granted the same more favorable conditions ...."
LOCAL 86, BROTHD. OF PAINTERS 1129
not the Company was in fact in breach of its
contract , as Respondent believed it to be , is irrele-
vant,4 for assuming arguendo that the Company was
not in fact in breach of its contract, the establishment
of this fact would not supply affirmative evidence
that picketing for what Respondent believed mistak-
enly to be breach of contract was actually for a
proscribed recognitional object.5 Secondly, as is
readily apparent, any determination as to what
constituted the legally enforceable contractual terms
between the parties necessarily required considera-
tion of and application of the parole evidence rule, a
rule to which the Administrative Law Judge at no
time makes any reference . Inasmuch, however, as the
parole evidence rule is a matter of law, absent some
judicial determination that the contract was as the
Company viewed it to be and that therefore the
Company had not breached the contract, Respon-
dent was free to take a contrary view of the contract,
a view which I submit was not unreasonable.6
This brings us in turn to a consideration of the
Administrative Law Judge's finding to the effect that
Respondent 's resort to self-help picketing in lieu of
arbitration or instituting a lawsuit for breach of
contract seeking money damages on specific per-
formance, coupled with Respondent's failure to
explain why it did not take such action, bolstered the
conclusion that picketing here was not, as asserted,
for breach of contract, but rather was in repudiation
of the agreement of the parties and for the recogni-
tional object of forcing the Company to enter into a
new agreement . The Administrative Law Judge's
reasoning appears to be that Respondent 's failure to
institute a lawsuit warrants the inference that
Respondent feared that its view of the contract
would not bear up under judicial scrutiny. Further,
from this inference he next apparently infers that
Respondent's asserted picketing object, i.e., for
breach of contract, was suspect, and finally, that the
picketing, not being for the object asserted, was for a
proscribed object. Quite apart from the inherent
difficulties in relying upon these successive and
dependent inferences to reach the conclusion
reached by the Administrative Law Judge, it may be
argued with equal persuasion that the Company was
likewise fearful that its view of the contract would
not bear up under judicial scrutiny, for, so far as can
be determined from the record, nothing stood in the
way of the Company bringing an action for declara-
tory judgment under Section 301(a) of the Labor
Management Relations Act, seeking to vindicate its
view that its contract was as it purportedly saw it to
be, and that, therefore it was not in breach of its
contract.? Accordingly, I would not infer that
Respondent's failure to institute a lawsuit was
indicative of a fear that it would not prevail which in
turn was indicative that it was not picketing for
breach of contract, and was in turn indicative that
the picketing was for recognition. Moreover, the
availability to 'the Company of this declaratory
judgment action belies the Administrative Law
Judge's finding that the only avenue of relief open to
the Company was capitulation to Respondent. And
with respect to Respondent's failure to invoke
arbitration, I note that the contracts appears to
provide for an exception to the grievance-arbitration
and no-strike provisions of the contract, where the
Company is failing to comply with the wage increase
or trust fund constitution provisions of the contract.
Thus far I have found erroneous the findings,
inferences, and conclusions of the Administrative
Law Judge which led him to the determination that
Respondent's preelection picketing was violative of
Section 8(b)(7)(C). In my opinion however, the
record affirmatively establishes that Respondent's
picketing was for what it believed to be a breach of
the contract by the Company, and not for recogni-
tion or organization. Thus as heretofore noted, prior
to Respondent's commencement of its picketing on
May 29 there existed a fundamental contractual
dispute. When the Company entered into a contract,
whatever its specific terms with respect to the
payment of a wage increase on May 1 and employer
contributions to a trust fund on behalf of its
employees, it, in legal effect, recognized the Respon-
dent as the representative of its employees. Thus it
4 Building & Construction Trades Council of Santa Barbara County,
AFL-CIO, eta!. (Sullivan Electric Company), supra at 1093.
a Waiters & Bartenders Local 500, et al. (Mission Valley Inn), 140 NLRB
433 (1963).
6 See, e.g., Garment Workers, ILGWU, Local 509, Missouri-Kansas-
Nebraska -Oklahoma District Council v . Annshire Garment Co , Inc., 65
LRRM 2769 (1967).
r See, e.g., Black -Clawson Co., Inc., Paper Machine Division v Interna-
tional Association of Machinists , Lodge 355, District 137, et al. , 313 F.2d 179
(C.A. 2, 1962), and Federal district court cases cited therein.
9 The contract provides at art. Xl:
Strikes , Lock-Out and Picket Lines
A. There shall be no lock-out by the Employers, no cessation of
work by the Employees , except, however, the Union must take action
in the following situations:
3. Where an Employer violates the pay provisions as to wage
scales, as to the timely payment of wages, or by failure to pay fringe
benefits herein contained.
B. As to those violations described in I through 8 above, the
Union may strike or picket the offending Employer and may also, or in
the alternative, submit the matter to the grievance procedures herein
established.
1130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cannot reasonably be said that Respondent's picket-
ing was for recognition, because they already had it.9
Moreover, it is clear that the Company was
insisting throughout the dispute on observance of the
contract it had with Respondent. In the first hearing
on this matter, the parties stipulated that "the only
objective of the picketing [from its inception] was
enforcing the terms and conditions of the 8(f)
contract with Carpet Control in that it would require
Carpet Control to make contributions to the funds
on behalf of its non-union employees and that it
would require the Company to institute the May 1
pay increase." Respondent's picket signs read
"Breach of Contract." The Company for its part
offered to prove that its position was that the
contract did not require it to make contributions to
the trust fund for nonunion employees. Further it
appears that the Company at no time refused or
withdrew recognition of Respondent. Indeed its RM
petition which it filed to obtain an expedited election
listed Respondent under "Recognized or Certified
Bargaining Agent." 10 Accordingly, it appears clear
that Respondent's picketing, stipulated to be for
enforcement of the contract, cannot be considered
picketing for recognition within the meaning of
Section 8(7)(C) as the Company had not withdrawn
recognition. In this connection, the Administrative
Law Judge's reliance on R. J. Smith Construction Co.,
Inc., is misplaced.11 That decision held that an 8(f)
contract does not itself give rise to a presumption of
majority status, and that therefore the employer is
free to abrogate the contract and withdraw recogni-
tion if it has a reasonable basis for doubting the
union's majority status, and unless the General
Counsel can prove that the union in fact had
majority status, no 8(a)(5) violation exists.12 It did
not hold that the contract had no legal force or effect
during the period the employer continued to observe
its terms and conditions. Here the parties to the
dispute had a dispute over the construction of their
contract; the Respondent picketed to enforce its
view. The Company resisted, maintaining that the
contract did not require it to make the payments the
Union was insisting upon. This is no different than
picketing to enforce a particular view of a non-8(f)
agreement insofar as determining the object of the
picketing under Section 8(b)(7)(C).13
On the basis of the foregoing I conclude that
Respondent's preelection picketing was not for a
proscribed organizational or recognitional object and
would not have been violative of Section 8(b)(7)(C)
had the picketing continued for more than 30 days
without the filing of a petition under Section 9 of the
Act.
Accordingly, since Section 8(b)(7)(B) cannot be
violated without a previous valid election and since
an election, such as here, which has been expedited is
valid only if the picketing would have violated
Section 8(b)(7)(C), I would dismiss the complaint
herein in its entirety.
9 Building & Construction Trades Council of Santa Barbara County,
AFL-CIO, et al (Sullivan Electric Company), supra at 1093
10 The Administrative Law Judge rejected as an exhibit a copy of the
petition offered by Respondent He did so without explanation and despite
the Company's statement that it had no objection to its introduction and the
General Counsel's statement conceding its authenticity Though the
General Counsel objected to the introduction of the exhibit on grounds of
relevancy, it clearly is relevant Though the contract is not a bar to an
election under Sec 9(c), such election could not be held without a hearing
unless the union agreed to it, or unless conditions for an expedited election
under Sec 8(b)(7)(C) were present As I find they were not, there has been
no valid election, either under Sec 9(c) or Sec 8(b)(7)(C) and the predicate
for the 8(b)(7XB) violation litigated herein is therefore missing
ii 191 NLRB 693 (1971) (Member Fanning dissenting)
12 R J Smith was reversed on review, Operating Engineers Local 150 v.
NL.RB,480F2d 1186(CA DC, 1973)
13 Compare Sullivan Electric Company, supra, which also involved a
prehire contract and Mission Valley Inn, supra
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
JAMES T. BARKER, Administrative Law Judge: This
matter was initially heard before me at Phoenix, Arizona,
on October 16, 1973.1 On November 23 a decision was
issued by me finding that Respondent had engaged in
conduct in violation of Section 8(b)(7)(B) of the National
Labor Relations Act, as amended, hereinafter called the
Act. Thereafter, on March 28, 1974, the National Labor
Relations Board issued its Order Reopening Record and
Remanding Proceeding to Regional Director.2 In its order
the Board directed that a further hearing be held before me
for the purpose of permitting Respondent to introduce
evidence challenging the validity of the expedited election
which, as fully set out in my November 23 decision, had
been directed by the Regional Director of the National
Labor Relations Board for Region 28 pursuant to a
petition filed in Case 28-RM-301. After an evidentiary
hearing at which all parties were accorded opportunity
fully to participate, briefs were timely filed with me.
Upon consideration of the briefs, and upon the entire
record in this case, I make the following:
FINDINGS OF FACT
1. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The ultimate issue in this case is whether the Regional
Director acted properly in directing an expedited election
in Case 28-RM-301. This question turns on whether
Respondent's preelection picketing would have violated
Section 8(b)(7)(C) had it continued more than 30 days
without the filing of a petition under Section 9(c) of the
Act.
1 All dates refer to the calendar year 1973 unless otherwise specified
2 The Board's fully explicated order is reported at 209 NLRB 891.
LOCAL 86, BROTHD. OF PAINTERS 1131
B. The Facts
1. The December contract discussions
In December 1972, John Kleiner , Respondent's business
manager and financial secretary, met in the office of
Carpet Control with the Company's president, Ben
Martinez, and the then vice president of Carpet Control,
Jack Cook. Kleiner presented to Martinez and Cook for
their consideration a copy of a union contract . During the
course of the discussion which related to the agreement, it
was pointed out to Kleiner by Martinez and Cook that the
Company was under contract with Hallcraft Homes to
provide carpet installation services at a housing project
then under construction by Hallcraft. Martinez and Cook
expressly noted that the contract rates were fixed through
August 31, 1973. Additionally, the conferees discussed
recruitment of the Company's employees into the Union
and the company representatives raised the question of the
disposition to be made of the funds specified by the union
proposal to be paid into the trust funds, insofar as those
payments would relate to employees who had not perfected
membership in the Union . Kleiner informed Martinez and
Cook that the Union had responsibility for recruiting the
employees into membership and asserted that payments
could be made directly to the employees until they had
joined the Union.3
During that portion of the meeting relating to the
Hallcraft service contract, the parties discussed the
projected May 1, 1973 , increases in wages. Kleiner assured
the Company that if an agreement was executed by the
Company, payment of the increased scale could be
postponed until after the August 31 expiration of the
Hallcraft contract . Kleiner left the contract proposals with
Martinez and Cook for their further study.
2. The contract executed
Subsequently, in early 1973, Kleiner met again with
Cook at Cook 's office . The terms of the proposed
agreement were again discussed and Cook again received
assurances from Kleiner that the projected May 1 wage
increase could be deferred until after the termination of the
Hallcraft service agreement , and that amounts equal to the
required trust fund contributions could be made directly to
the nonunion employees. After receiving those assurances,
Cook affixed his signature to the agreement.
Thereafter, Kleiner met separately with Martinez . In this
conference, as in his conversation with Cook, Kleiner gave
assurances that the wage increases could be deferred until
September 1, and that no payments into the trust fund
would have to be made for employees of the Company who
had not signed with the Union . Kleiner again stated that
the responsibility for signing employees into the Union
resided with him. Thereupon, Martinez affixed his signa-
ture to the agreement.
3. Subsequent dialogue concerning contributions
and wages
In due course , sometime in March , Martinez received
reporting forms to be submitted to the trust fund. In late
March, Martinez contacted Kleiner by telephone, inform-
ing Kleiner that he had received the forms but noting that
none of his employees had yet signed with the Union.
Martinez reiterated his understanding that in the circum-
stances he did not have to make contributions to the trust
fund. Kleiner agreed and instructed Martinez to make an
entry on the forms showing no contributions and to
forward the forms. Martinez did so.
Thereafter, some weeks later in April, Kletner met with
Martinez at the offices of the Company. Kleiner noted that
Martinez had received the forms but had not submitted
any contributions to the trust fund. Kleiner asserted that
he had been mistaken when he had informed Martinez that
it was unnecessary for the Company to contribute to the
fund for employees who had not joined the Union and that
he had been informed by his attorney that it would be
necessary for the Company to begin making contributions.
This led to a discussion of the pending May 1 wage
increase, and again on this score , Kleiner verified the
validity of his earlier assurances to the effect that the
increases would be deferred until September 1. In this
regard Kleiner volunteered to make a notation to that
effect on the pertinent copies of the wage supplement to
the basic collective-bargaining agreement . On the wage
supplement copy relating to the pre-May 1 wage scale,
Kleiner made the following notation : "8-31-73 for Carpet
Control." He affixed his signature. Similarly, on the copy
of the supplemental wage scale to become effective May 1,
he made the notation: "Effective 9-1-73 Expiration of
contract for Carpet Control." Kleiner also affixed his
signature to this notation.
During the course of the meeting, Martinez asked
Kleiner how he would explain to his employees that he was
being required to make trust fund payments to the fund
rather than directly to them . Kleiner suggested that
Martinez attempt to arrange an employee meeting for the
purpose of permitting Kleiner to explain the deductions
and contributions. Martinez thereafter endeavored to
arrange such a meeting but was unsuccessful . Martinez
then contacted Kleiner by telephone informing Kleiner
that he was going to challenge union counsel on the
validity of his opinion that fringes must be paid on behalf
of nonunion employees . Martinez attempted unsuccessful-
ly to contact counsel for the Union by telephone.
Following the meeting between Martinez and Kleiner,
the Company submitted reporting forms in blank to the
trust fund . No contributions accompanied the forms
submitted. This procedure was followed for the months of
April through September , inclusive.
Martinez testified credibly that at no time during the
April meeting did Kleiner state that he was seeking a legal
opinion on the validity of any deferral of the May 1 wage
increases and/or upon the validity of relieving the
Company from the obligation of making trust fund
3 There is credible testimony to the effect that the Company's total
compensation to its employees equaled union scale plus fringes . This was
not convincingly refuted.
1132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
payments for nonunion employees. Martinez further
testified that no written memoranda or separate written
amendatory documents were prepared by the parties
reflecting the meeting of the minds relating to wage
deferral and/or trust fund contributions.
Carpet Control did not pay a May I wage increase to its
employees,4 nor did it make any contributions on their
behalf directly to the trust fund.
4. The picketing commences
On or about May 25, Kleiner attended a special meetmg
of the Floor-Covering Labor-Management Board. The
topic of discussion at the meeting was the deferral which
the Union had granted to the Company on the May I wage
scale. Signatory employees who were present at the
meeting "literally raked [Kleiner ] over the coals" because
of the concession which the Union had apparently granted
to Carpet Control. In substance, Kleiner assured the
employers that he would receive legal advice concerning
the propriety of the deferral.
At the conclusion of the lengthy meeting, Kleiner
consulted with legal counsel relating to the legal ramifica-
tions of the deferral of the May 1 wage increase and the
legal propriety under the collective -bargaining agreement
of relieving the Carpet Control from the obligation of
making trust fund contributions for nonunion employees.
On May 25, Respondent's counsel issued a written
opinion declaring that the Union could not legally defer
for the benefit of the Company the scheduled May I wage
increase; nor could it waive the submission of contribu-
tions by the Company to the trust fund. The written
opinion was mailed to the Company on May 25. It was
received by the Company in the due course of the mails.
Thereafter, on the morning of May 29, picketing
commenced at the jobsite of Carpet Control. Later, during
the evening of May 29, Kleiner attended a regularly
scheduled labor-management meeting . Martinez was pres-
ent, as were many employers signatory to the floor-
covering agreement with the Union .5 At the meeting, the
waiver granted Carpet Control in the matter of May 1
wages and trust fund contributions again became the topic
of discussion . Several employers avowed that they were not
4 The foregoing is based primarily upon the credited testimony of Ben
Martinez and Jack Cook . I credit the testimony of John Klemer only to the
extent it is consistent with these findings.
Initially, I find the testimony of Martinez and Cook concerning the
earlier contract discussions more reliable than that of Kleiner in that it
comports more completely with the probabilities attendant on the
discussions, and is more fully consistent with subsequent events which
emerged out of the discussions.
Thus, in crediting Martinez and Cook, I find that the Hallcraft Service
Contract was fully considered by the parties prior to the execution of the
collective-bargaining agreement, and that Martinez fully aired the economic
dilemma posed by the fixed terms of the Hallcraft contract , on the one
hand, and the wage provisions of the union contract , on the other. I find,
contrary to Klemer , that before either Martinez or Cook affixed their
signatures to the collective-bargaining agreement , he, Klemer, on behalf of
the Union, agreed to a September I deferral of the May I wage increase. I
am unable to accept the implication of Klemer 's testimony to the effect that
Martinez would enter into an agreement to pay escalating wages at a time
when the income of the Company for the very services involved were fixed
by the terms of a binding contract . I reject Klemer's testimony that not until
April, after the Company had executed the collective-bargaining agreement,
did Martinez discuss in detail the question of deferral.
going to pay the May 1 wage increase . As an outgrowth of
this meeting , in the days that followed, this threat was
carried out by certain of the employers. As a consequence,
the Union struck five of them. The resultant picketing
against these five employers lasted approximately 4 days
until a temporary injunction was issued. The picketing of
Carpet Control continued and was conducted at the jobsite
only when employees of Carpet Control were working at
the jobsite with other crafts. During those times when
Carpet Control employees worked on the project outside of
normal working hours, no picketing transpired.
Conclusions
In agreement with the General Counsel, I conclude and
find that Respondent's preelection picketing was organiza-
tional or recognitional in nature and violated Section
8(b)(7XC) of the Act. I further find that the expedited
election conducted in Case 28-RM-301 was a valid
election and that the Regional Director acted properly and
within his authority in certifying the results thereof. In light
of these findings, it follows that Respondent's postelection
picketing, conducted in face of the certification, violated
Section 8(b)(7)(B) of the Act.
Board precedent establishes that an 8(f) collective-
bargaining agreement does not serve as the basis for a
labor organization to claim representative status among the
employees of an employer signatory to said agreement; nor
does such an agreement give rise to an obligation on the
part of an employer to engage in collective-bargaining.6
Moreover, picketing in the face of a preexisting collective-
bargaining relationship, which picketing has as its avowed
object the protesting of an alleged breach of a valid
contract, will be carefully scrutinized by the Board for the
purpose of determining whether or not the picketing was
also for a proscribed object.? Finally, the Board has held
that picketing to obtain an 8(f) agreement is violative of
Section 8(bx7)(C) of the Act .8 In Noonan, in assessing the
Respondent's object in picketing in the face of an existing
bargaining relationship with the employer therein, the
Board looked behind the union's avowed explanation of
the true purposes of the picketing to examine the realities
created by the picketing, in light of the then prevailing
Similarly, contrary to Klemer , and in keeping with the testimony of
Martinez and Cook, I find that a meeting of the minds between the
company officials and Kleiner was achieved prior to the contract's
execution that no direct payment of contributions need be made to the trust
funds until and unless the Union successfully recruited employees of the
Company.
5 Martinez was invited to the meeting on short notice.
a K J Smith Construction Company, 191 NLRB 693, enforcement denied
408 F .2d 1186 ; Board decision on remand , 208 NLRB 615 (1974).
7 See Lawrence Typographical Union No. 570, affiliated with International
Typographical Union (Kansas Color Press, Inc.), 158 NLRB 1332, 1337
(1966). Factually distinguishable is Building and Construction Trades Council
of Santa Barbara County, AFL-CIO, et al. (Sullivan Electric Company), 146
NLRB 1086 (1954), wherein the validity of the existing contract was not
placed in issue by the General Counsel . Here, contrary to Sullivan, the
General Counsel avers that the agreement between Respondent and the
Company was valid and binding . Cf. also Warehouse Employees Union Local
570, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers ofAmerica (Whitaker Paper Company), 149 NLRB 731 (1964).
8 Local 542, International Union of Operating Engineers, AFL-CIO (R. S.
Noonan, Inc.), 142 NLRB 1132 (1963).
LOCAL 86, BROTHD . OF PAINTERS
circumstances , including the composition of the employer's
work force and the subcontracting of certain key work
tasks . Proceeding from the Noonan decision, it becomes
apparent that here , as in Noonan, realities must be assessed
in probing the objectives of Respondent's picket line.
Nothing was developed in the record in the hearing on
remand to explain Respondent 's failure to resort to legal
action to contest the Company's asserted breach of the
agreement ; nor does the record reveal any attempt on the
part of the Union to achieve specific performance of
alleged contractual terms or to arbitrate the issue.
Significantly , what the record does establish is that
Kleiner, on behalf of Respondent, agreed to modified
contractual terms with respect to the May I wage rates and
payments into the trust funds, and then belatedly sought to
withdraw therefrom, after a bargain had been struck and
the terms integrated into the collective-bargaining agree-
ment between the Respondent and Company. Finding the
Company resolute in its determination to be bound only to
the terms of the agreement actually adopted by the parties,
and faced with an erosion of its bargaining relationship
with employers with whom Respondent had contracted on
a basis other than that agreed to with the Company,
Respondent erected a picket line. It is clear from the record
that the object of the picket line was not to protest any
breach of an existing agreement by the Company. Rather,
it is manifest that through resort to picketing , Respondent
was seeking to extract itself from an untenable position vis-
a-vis a disconsolate employer group and to compel the
Company to give effect to a new 8(f) agreement containing
terms different from those previously agreed to and
presently viable . In the circumstances that prevailed,
Respondent having, in effect, repudiated the existing 8(f)
collective-bargaining agreement - as it was free to do
under R J. Smith, supra - and having then undertaken
through picket line action to force company acceptance of
new terms , the only avenue of relief open to the Company
was capitulation, tantamount to renewed recognition of the
Respondent . That a bargaining relationship existed at the
time in question is no defense, where as here , the picketing
union was seeking to force recognition on different terms .9
In light of all the foregoing , and considering the entire
record in this proceeding , I find that Respondent's
preelection picketing was for a proscribed organizational
or recognitional object and would have been violative of
Section 8(bX7)(C) had the picketing continued for more
than 30 days without the filing of a petition under Section 9
of the Act.
I further find that Respondent violated Section
8(bx7)(B) of the Act by picketing after June 28 when the
Regional Director certified the results of the valid election
conducted on June 20.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above , occurring in connection with the operations gf the
$ See Central Arizona District Council of Carpenters, AFL-CIO (Wood
Surgeons Inc.), 175 NLRB 390 (1969).
10 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
1133
Company described 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 commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices , I shall recommend that it cease and
desist therefrom and take certain affirmative action
necessary to effectuate the policies of the Act.
Upon the foregoing findings of fact, and upon the entire
record in this case , I make the following:
CONCLUSIONS OF LAW
1. Local 86, Brotherhood of Painters, Decorators and
Paperhangers of America, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
2. Carpet Control, Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
3. Respondent's picketing on and after May 29, 1973,
would have violated Section 8(b)(7)(C) of the Act'had it
continued for a period in excess of 30 days without a
petition having been filed under Section 9 of the Act.
4. By picketing Carpet Control, Inc., at its Tempe
Gardens jobsite in Tempe, Arizona, on a continuous basis
from June 28, 1973, until mid-August 1973 with an object
of forcing or requiring the Company to recognize it or
bargain with it as the collective-bargaining representative
of employees in a unit of installers, apprentices, and
sanders employed by the Company, or forcing or requiring
said employees to accept or select it as their collective-
bargaining representative, although it had not been
currently certified as the collective-bargaining representa-
tive of such employees, and a valid election under Section
9(c) of the Act had been held within the preceding 12
months, Respondent engaged in an unfair labor practice
within the meaning of Section 8(b)(7XB) of the Act.
5. The aforesaid unfair labor practice is an unfair labor
practice affecting 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:
ORDER 10
Respondent, Local 86, Brotherhood of Painters, Decora-
tors and Paperhangers of America, AFL-CIO, its officers, ,
agents, representatives, successors, and assigns, shall:
1. Cease and desist from picketing, causing to be
picketed, or threatening to picket or cause to be picketed,
Carpet Control, Inc., with an object of forcing or requiring
the Company to recognize and bargain with it as the
representative of the employees in a unit of installers,
apprentices, and sanders employed by the Company, or
conclusions, and recommended Order herem shall , as provided in Sec.
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.
1134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the object of forcing or requiring employees in said
unit to accept or select it as their collective-bargaining
representative, such picketing not to be engaged in where
within the preceding 12 months a valid election under
Section 9(c) of the Act has been conducted which
Respondent did not win.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Post at its business office and meeting halls, copies of
the attached notice marked "Appendix."" Copies of said
notice, to be furnished by the Regional Director for Region
28, shall, after. being duly signed by an official representa-
tive of Respondent, be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to members are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or covered
by any other material.
(b) Furnish to the Regional Director of Region 28,
signed copies of the aforementioned notice for posting by
the Company, it willing, in places where notices to
employees are customarily posted. Copies of said notice, to
be furnished by the Regional Director for Region 28, shall,
after being duly signed by Respondent, as indicated, be
forthwith returned to the Regional Director for disposition
11 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 read "Posted pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT picket, or cause to be picketed, or
threaten to picket, Carpet Control, Inc., where an
object thereof is to force or require the Company to
recognize or bargain collectively with us as the
representative of the employees in the bargaining unit
comprised of installers, apprentices, and sanders
employed by the Company, or said unit employees to
accept or select us as their collective-bargaining
representative, where a valid election which we did not
win has been conducted by the National Labor
Relations Board among the employees in the bargain-
ing unit within the preceding 12 months.
by him. LOCAL 86, BROTHERHOOD
(c) Notify the Regional Director for Region 28, in OF PAINTERS, DECORATORS
writing, within 20 days from the date of this Order, what AND PAPER HANGERS OF
steps have been taken to comply herewith. AMERICA, AFL-CIO