Local 86, Painters

National Labor Relations Board - Board Decisions

Mar 28, 1974

209 N.L.R.B. 891 (N.L.R.B. 1974)

LOCAL 86, PAINTERS
Local 86, Brotherhood of Painters, Decorators and
Paper Hangers of America , AFL-CIO and Carpet
Control, Inc. Case 28-CP- 123
March 28, 1974
ORDER REOPENING RECORD AND
REMANDING PROCEEDING TO
REGIONAL DIRECTOR
By MEMBERS FANNING, KENNEDY, AND
PENELLO
On November 23, 1973, Administrative Law Judge
James T. Barker issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the Employer filed a
brief and reply brief in support of the Administrative
Law Judge's Decision.
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 Las considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to order the reopening of the
record and remand the proceeding to the Regional
Director.
In its exceptions the Respondent contends, inter
alia, that the Administrative Law Judge erred in
granting the General Counsel's motion for judgment
based on the pleadings and stipulations. We agree.
Respondent was charged with violating Section
8(b)(7)(B) of the Act by picketing for recognition
where within the preceding 12 months a valid
election had been conducted. As noted by the
Administrative Law Judge, "[a] certification emanat-
ing from an election which is not a `valid' one
perforce does not serve to support an allegation of a
Section 8(b)(7)(B) violation." However, when Res-
pondent sought to introduce evidence to support its
contention that the election underlying the Regional
Director's certification of the results of the election
was invalid, the Administrative Law Judge refused to
accept the evidence and stated in his decision "[t]he
validity of a certification and the regularity of the
procedural steps giving rise thereto are not to be
tested in an unfair labor practice proceeding." He
noted that in the representation phase of the instant
dispute, Respondent had made available to the
Regional Director the essentials of the material
which it sought to incorporate into the instant
record. He further noted that after the Regional
Director was not persuaded, Respondent sought
permission from the Board to appeal the direction of
1 Retail Clerks International Association , Local 57, AFL-CIO (Nested
Stores Company), 138 NLRB 498, 500
891
an expedited election, and in the process apprised the
Board, administratively and through the appeals
process, of all the material and legal arguments
advanced at the unfair labor practice proceeding.
The Board denied Respondent's request for permis-
sion to appeal.
By refusing to permit Respondent to litigate the
validity of the RM election, the Administrative Law
Judge foreclosed Respondent from effectively pro-
testing at a hearing the direction of the expedited
election. Section 102.75 of the Board's Rules and
Regulations, Series 8, as amended, provides in part
that if it appears to a Regional Director that issuance
of a complaint based on Section 8(b)(7)(B) may be
warranted but for the pendency of a petition under
Section 9(c) of the Act, the Regional Director shall
suspend proceedings on the charge and shall proceed
to investigate the petition under the expedited
procedure provided. On June 1, 1973, the Employer
in the instant proceeding filed both an RM petition
and a charge contending that Respondent was
violating Section 8(b)(7)(C) of the Act. On June 13,
the Regional Director ordered that an expedited
election be held on June 20.
Expedited elections differ markedly from regular
9(c) elections in regard to the right to a hearing.
Although Section 9(c)(1) of the Act provides that a
hearing be held prior to the election if there is
reasonable cause to believe that a question concern-
ing representation exists, the initial proviso to
Section 8(b)(7)(C) provides that where 8(b)(7) picket-
ing has been conducted and a petition has been filed,
the Board shall, without regard to Section 9(c)(1),
direct an election. Section 102.77 of the Board's
Rules and Regulations provides for a hearing where
an expedited election otherwise appears warranted
only in a case in which it appears to a Regional
Director that the proceeding raises questions that
cannot be decided without a hearing. Once the
Regional Director had determined that a hearing prior
to election is not required to resolve the issues raised
by the petition and has directed an expendited
election, the only recourse available to the aggrieved
party is to file a request with the Board for special
permission to appeal from such determination.
Respondent in the instant proceeding filed such a
request which was denied by the Board. That denial,
however, was not a ruling upon the merits of the
issue and cannot be cited to Respondent's prejudice.'
Obviously, therefore, the right to a hearing prior to
election is considerably less where the Regional
Director believes the picketing may be in violation of
Section 8(b)(7)(C). Since Section 8(b)(7)(B) cannot
be violated without a previous valid election and
209 NLRB No. 142
892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
since an election which has been expedited is valid
only if the picketing would have violated 8(b)(7)(C),
the preelection picketing is clearly of vital impor-
tance to the 8(b)(7)(B) charge . As we stated in Nested
Stores : where the union also unsucessfully requested
leave to appeal the direction of an expedited
election:
had the picketing continued for more than 30 days
without the filing of a petition.2 Under these
circumstances, we find that the Administrative Law
Judge erred in not permitting Respondent to intro-
duce evidence challenging the validity of the expedit-
ed election.
Section 8(b)(7)(B) proscribes picketing which
has an object of organization or recognition,
within a year of a valid election. Hence, in
addition to a proscribed object, an essential
element of this violation is the conduct of a valid
election in the preceding year. Because the
election was "expedited" pursuant to Section
8(b)(7)(C), the Respondent was not given a
hearing on the petition prior to the election. It
was, of course, given a hearing on the sufficiency
of the petition in the present unfair labor practice
proceeding as well as on all other issues pertain-
ing to the alleged violation of Section 8(b)(7)(B).
The Trial Examiner found that the election was
valid and that the picketing on and after May 3
had an object of recognition. Accordingly, he
concluded that picketing during this period
violated Section 8(b)(7)(B). [Footnotes omitted.]
In its argument to the Trial Examiner at the
close of the hearing and in its exceptions, the
Respondent attacks the validity of the election.
We find merit in its contentions.
Section 9(c) of the Act requires that a hearing
be held prior to any election pursuant to a
petition filed thereunder. There are two excep-
tions to this requirement: (1) consent elections
under 9(c)(4); and (2) elections where the petition
is filed in a context of picketing which would have
violated 8(b)(7)(C) if the picketing continued
beyond a reasonable period of time not to exceed
30 days, without a petition being filed. Hence, in
the latter situation, if the picketing would not
have violated 8(b)(7)(C), the holding of an
"expedited" election would exceed the Board's
authority, and such an election could not there-
fore be valid for purposes of 8(b)(7)(B). Thus, in
order to determine the validity of the election
herein, we are obligated to examine whether the
initial picketing (i.e., from February 9 to March
18, 1960), would have violated Section 8(b)(7)(C),
had it continued for more than 30 days without
the filing of a petition.
The principles of law therein enunciated are equally
applicable to the instant case and here require us to
examine the preelection picketing to determine
ORDER
It is hereby ordered that the record in this
proceeding be, and it hereby is, reopened, and that a
further hearing be held before Administrative Law
Judge James T. Barker for the purpose of permitting
the introduction of evidence as directed above.
IT IS FURTHER ORDERED that this proceeding be,
and it hereby is, remanded to the Regional Director
for Region 28 for the purpose of arranging such
further hearing before the Administrative Law Judge
and that said Regional Director be, and hereby is,
authorized to issue notice thereof.
IT IS ALSO FURTHER ORDERED that upon the
conclusion of such hearing, the Administrative Law
Judge shall prepare and serve on the parties a
Supplemental Decision concerning findings of fact
based upon the evidence received pursuant to the
provisions of this Order, and conclusions of law and
recommendations, and that, following service of such
Supplemental Decision on the parties, the provisions
of Section 102.46 of the Board's Rules and Regula-
tions, Series 8, as amended, shall be applicable.
2 See also Carpenters District Council of Detroit, Wayne and Oakland
Counties and Vicinity, United Brotherhood of Carpenters and Joiners of
America, AFL-CIO (Shepard Marine Construction Company), 195 NLRB
530; San Francisco Local Executive Board of Culinary Workers, Bartenders,
Hotel, Motel and Club Service Workers, AFL-CIO (APB Enterprises, Inc
d/bla Perry 's), 207 NLRB No 38; Department & Specialty Store Employees'
Union, Local 1265, AFL-CIO (Oakland G R Kinney Company, Inc), 136
NLRB 335
DECISION
STATEMENT OF THE CASE
JAMES T. BARKER , Administrative Law Judge: This
matter came on for hearing at Phoenix, Arizona, on
October 16, 1973, pursuant to a complaint and notice of
hearing issued on August 24, 1973,1 by the Regional
Director of the National Labor Relations Board for
Region 28. The complaint and notice of hearing was based
on an onginal charge filed on behalf of Carpet Control,
Inc., hereinafter called Carpet Control or the Company, on
August 7, and a first amended charge filed on behalf of
Carpet Control on August 9. The complaint alleges
violations of Section 8(b)(7)(B) of the National Labor
Relations Act, as amended, hereinafter called the Act.
whether Section 8(b)(7)(C) would have been violated 1 Unless specified otherwise, all dates refer to the calendar year 1973
LOCAL 86, PAINTERS 893
FINDINGS OF FACT B. Pertinent Facts
1. THE BUSINESS OF COMPANY
Carpet Control, Inc., is an Arizona corporation which at
all times material herein has maintained its principal office
and place of business in Phoenix, Arizona, where it is and
has been engaged in the sale and installation of carpets and
related materials.
During the calendar year immediately preceding the
issuance of the complaint herein, Carpet Control, in the
course and conduct of its business operations, performed
services valued in excess of $50,000, which services were
furnished within the State of Arizona to business entities or
enterprises which annually produce goods valued in excess
of $50,000 which are shipped directly out of the State of
Arizona.
During the same period of time, Carpet Control, in the
course and conduct of its business operations, purchased,
transferred, and had delivered to its Phoenix, Arizona,
plant, goods and materials valued in excess of $50,000,
which goods in excess of $50,000 were transported to such
plant from, and received from, a business enterprise
located in the State of Arizona, which enterprise had
received the said goods and materials directly from states
other than the State of Arizona.
Upon these facts, which are not in dispute, I find that at
all times material herein Carpet Control has been an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 86 , Brotherhood of Painters and Paper Hangers of
America , AFL-CIO, hereinafter called the Respondent or
the Union , is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
As noted, the complaint alleges a violation of Section
8(b)(7)(B). The Respondent contends that the election
underlying the June 28 Regional Director's certification
was invalid and that, in any event, the picketing which
transpired before and after the certification was solely to
protest the Company's breach of contract.
The ultimate issue in this case is whether judgment on
the pleadings was properly granted in the present state of
the record. Subsumed within this basic issue is the question
whether Respondent should have been permitted to litigate
at the instant unfair labor practice hearing the validity of
the RM election; and whether the introduction of
additional evidence relating to the asserted object of the
postcertification picketing would have been probative and
proper, when viewed in light of the pleadings and the
record stipulations.
During the first 6 weeks of 1973, representatives of the
Respondent and the Company , respectively, executed a
collective-bargaining agreement containing , inter aka, a
recognition clause providing in pertinent part, as follows:
The Contractors hereby recognize the Union as the sole
collective-bargaining representative of all installers,
apprentices , and vendors of the contractors signatory
hereto over whom the Union has jurisdiction, as such
jurisdiction is defined by the Building and Construc-
tion Trades Department of the AFL-CIO... .
n s • s s
(A) The employers shall requisition all employees
who are to be employed from the local hiring hall of the
Union . The Union will immediately dispatch such
employees as have been requisitioned in accordance
with this section , subject to and governed by the
following conditions:
(1) Selection of applicants for referral to jobs
shall be on a non-discriminatory basis and shall
not be based on or in any way affected by Union
membership , by-laws, regulations, constitutional
provisions or any other aspect or obligation of
Union membership , policies or requirements.
The collective-bargaining agreement also contains a
schedule of wages and also provides that Carpet Control
must pay into the Phoenix Painting Industry Trust a sum
equivalent to $1.40 per hour worked by each employee
under the terms of the agreement.2
The parties stipulated that the collective -bargaining
agreement in question is the type permitted by Section 8(f)
of the Act. The voluntary nature of the contract is not in
dispute . The parties further stipulated that at no time
material did Respondent represent a majority of Compa-
ny's employees.
It was stipulated also that in March or April 1973
Messrs. Williams and Burleson, business agents of Respon-
dent , went to a jobsite for the purpose of getting employees
employed by the Company to join the Union.
Commencing on or about May 29, 1973, and thereafter
until mid-August on a continuous basis , Respondent
picketed the premises of Carpet Control using a picket sign
which read as follows:
"PICKET AGAINST CARPET CONTROL
BREACH OF CONTRACT
PAINTERS LOCAL 86"
The picketing ceased in mid-August 1973 pursuant to an
oral stipulation between the Regional Director and counsel
for Respondent, in order to avoid the necessity of a 10(1)
proceeding in Federal court.
In the meantime on June 13, pursuant to a petition which
2 At the time of its execution , the contract provided for payment of $1.30
per hour into the industry trust fund
894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had been filed by Carpet Control in Case 28-RM-301, the
Regional Director ordered an expedited election to be held
on June 20 . On June 18 , the Union , through counsel, filed
an appeal in the form of a night letter challenging the
Regional Director's June 13 direction of an expedited
election . In support of the appeal the following representa-
tion and argument was advanced:
Facts of case are that the employer entered into an 8(f)
agreement with the Union in February . It failed to
make certain fringe benefit payments and failed to give
certain pay increases . On May 30, 1973, the Union
went on strike against the company for breach of
contract . Under these facts, it is submitted that no
expedited election is warranted . First , the picketing and
striking of the Union was not an act of initial picketing
to obtain recognition and bargaining rights within the
meaning of 8(b)(7). Accordingly , basis for expedited
election does not exist . R. J. Smith Construction Co.,
191 NLRB No. 135 , cannot be extended in the manner
suggested . In any event , it would be inconsistent with
Section 8 (f) if an employer may repudiate his 8(f)
contract through the devices of an 8(b )(7) charge and
an expedited election . Such tactics are also inconsistent
with stability in the field of labor relations . N.L.R.B. v.
Irving, decided March 22, 1973 , by Third Circuit,
denied enforcement of 194 NLRB No. 8. Further, an
8(f) employer should , as a policy matter, be estopped to
challenge majority status of a union in circumstances
where he is in violation of his agreement . Otherwise,
the NLRB will render meaningless Section 8(f) of the
Act and will overthrow basic contract law long applied
in this country.
Request that you take appropriate action to void the
expedited election and that the respondent be granted a
hearing on employer 's RM petition.
Notwithstanding the pendency of the Union 's appeal, an
election was conducted on June 20 in a unit of employees
comprised by the installers , apprentices and sanders
employed by Carpet Control. The tally of ballots executed
by a representative of Respondent revealed that , in a unit
of approximately 27 eligible voters, 2 ballots were cast for
the Union and 24 were cast against the participating labor
organization. No ballot was challenged.
On or about June 28 , the Regional Director certified that
a majority of the valid ballots had not been cast for any
labor organization appearing on the ballot, and that no
labor organization was the exclusive representative of all of
the employees in the unit therein involved.
Subsequently , on July 5, through its executive secretary,
the Board informed the Union that its June 18 communica-
tion had been treated by the Board as a request for special
permission to appeal the Regional Director's direction of
an expedited election . Treating the communication as
such , the Board denied the Union 's request for leave to
appeal.
The parties stipulated that no objections were filed to
conduct affecting the results of the RM election , and that
at no time herein has Respondent been duly certified as the
collective-bargaining representative of any of the employ-
ees of Carpet Control.
The parties further stipulated that at no relevant time
had the Union filed a charge alleging Respondent had
engaged in an unlawful refusal to bargain within the
meaning of Section 8(a)(5) of the Act ; nor did'the Union
initiate court litigation charging Carpet Control with
breach of contract.
C. The Offer of Proof
At the hearing , I permitted counsel for Respondent to
make an offer of proof outlining the evidence which it
would have elicited at the unfair labor practice hearing, but
for the grant of General Counsel's motion for judgment on
the pleadings . In substance , the offer of proof was to the
effect that John Kleiner, the business manager of Respon-
dent , would have been called to testify as a witness and
would have testified that in his official capacity as business
manager , and as an official of the trust fund which was
operative under the terms of the collective-bargaining
between the Union and the Company , it came to his
personal attention that , during the period beginning shortly
after March 15, the Company had failed to file reports with
the trust fund, as required by the terms of the collective-
bargaining agreement . Kleiner would further testify that,
as a consequence , he contacted an official of the Company
regarding this failure . In his conversation with the
company official, Kleiner demanded the Company make
contributions to the trust fund , but the Company, through
its official , took the position that the employees were not
members of the Union and therefore it was not necessary
to make contributions on their behalf . Thereafter , accord-
ing to the offer of proof, in early April the Company did
file forms in blank covering the months of February and
March and subsequently made similar filings for the
intervening months of April through September.
Kleiner would further testify that, during the time period
in question , the Company had "numerous employees"
performing work of the type and nature covered by the
collective-bargaining agreement.
According to Respondent 's further offer of proof,
Kleiner would also testify that, in the interim, during the
month of April, Respondent's business agent again spoke
with an official of the Company and called to his attention
the fact that the Company was still not complying with the
provisions of the collective -bargaining agreement requiring
trust fund contributions on behalf of nonunion employees.
Nonetheless, the Company 's representative reiterated that
Carpet Control had no obligation to make contributions on
behalf of nonunion employees.
During the meeting, Kleiner submitted to the representa-
tive of the Company copies of documents containing the
schedule of wages and hours applicable , respectively, to the
period December 1, 1972, through April 30, 1973, and to
the period May 1, 1973, and thereafter. Kleiner had signed
the documents which he submitted to the company official.
The question arose during the meeting whether the Union
would be willing to grant an extension of the upcoming
May 1973 wage increase . An extension into August was
sought.
Before the meeting terminated , Respondent 's business
agent assured the company official that he would obtain
from counsel a legal opinion as to whether or not the
LOCAL 86, PAINTERS
requested wage rate extension could be given and whether
the Company was legally required to make trust fund
contributions on behalf of nonunion employees.
In this latter connection, Respondent's business agent
contacted counsel shortly before May 25 and, under date
of May 25, counsel prepared a legal opinion which he
delivered to Kleiner. A copy of the legal opinion was
mailed to the Company.
The document containing the May 25 legal opinion of
counsel was offerred in connection with Respondent's
offer of proof. The opinion answered m the negative the
question relating to the deferral of the wage increase, and
in the affirmative the question of whether the Company
was required under the terms of the agreement to make
contributions to the trust fund on behalf of nonunion
employees.
On or about May 25, according to the offer of proof,
Kleiner learned that the Company was not paying the
increases called for under the May 1 wage schedule.
Thereafter, on or about May 29 or 30, Kleiner caused
picketing to be commenced against the Company for the
reason that the Company had failed to make contributions
to the trust fund and had failed to make the May 1 wage
increase.
In its offer of proof, Respondent further represented that
Kleiner would further testify that he initiated picketing
against the Company and maintained a picket line through
mid-August for no other reason than to protect the
Company's failure to make contributions to the trust fund
and grant the May l wage increase.
Respondent further offered to prove through the
testimony of Messrs. Williams and Burleson, business
agents of Respondent, that sometime in March or April
1973 the business agent went to a residential construction
project for the purpose of talking with employees of the
Company about joining the Union. On this occasion the
business agents were unable to persuade the employees to
speak with them but an individual on the project did advise
the two business agents that "the word had been put out
that anyone who joined the Union could look for a new
fob."
Conclusions
Prefatory Analysis
Section 8(b)(7)(B) of the Act makes it unlawful for a
union to picket with an organizational or recognitional
object where within the preceding 12 months a valid
election under Section 9(c) of the Act has been held.3
Whether judgment on the pleadings may properly be
granted upon the instant record must be measured initially
against certain predicate principals. A certification ema-
nating from an election which is not a "valid" one perforce
does not serve to support an allegation of a 8(b)(7)(B)
3 See Local Joint Executive Board of Las Vegas, Nevada, etc (Custom
Catering, Inc d/b/a Blue Onion), 182 NLRB 250,251
4 International Brotherhood of Electrical Workers, Local 953, AFL-CIO
(Erickson Electric Company), 154 NLRB 1301, 1305; see also International
Hod Carriers' Building and Common Laborers' Union of America, Local 840,
AFL-CIO (C A. Bhnne Construction Company), 135 NLRB 1153.
5 See N.LR.B v Lawrence Typographical Union, 376 F2d 643 (C A 10,
1967).
895
violation. For the General Counsel to prevail upon a
complaint alleging a violation of Section 8(b)(7)(B), it must
be found that the picketing in which the Union engaged
was for a proscribed object and this is a question of fact to
be determined from the entire record. A labor organization
charged with a violation of Section 8(bX7)(B) may
successfully defend by establishing that the sole object of
the picketing was a permissible one; but if an object of the
picketing is found to have been recognitional or organiza-
tional, a violation would be present .4 Picketing which
initially was in furtherance of a legitimate trade union
objective may become imbued through the interplay of
time and succeeding events with an impermissible object,5
and the legend of the picket signs employed does not
always serve as a reliable guide in an assessment of the
Union's object .6
By way of defense, Respondent contends, initially, that
the election underlying the Regional Director's certifica-
tion of the results of the election was invalid. Respondent
sought at the unfair labor practice proceeding to introduce
evidence to support that thesis. In the representation phase
of the instant dispute, however, the Union had made
available to the Regional Director the essentials of the
material which it sought to incorporate into the instant
record. When the Regional Director was not persuaded,
the Union sought permission from the Board to appeal the
Regional Director's direction of an expedited election, and
in the process apprised the Board, administratively and
through the appeals process, of all of the material and legal
arguments advanced before me at the instant unfair labor
practice proceeding. The Board denied the Union's request
for permission to appeal and the Regional Director's
determination remained intact.
The validity of a certification and the regularity of the
procedural steps giving rise thereto are not to be tested in
an unfair labor practice proceeding before an Administra-
tive Law Judge.7 Upon an application of this principle, and
as no matter not previously considered in the representa-
tion phase of this proceeding was raised by Respondent at
the instant hearing, I find that the unfair labor practice
forum was an inappropriate one to be used by the Union
for testing the certification underlying the unfair labor
practice allegations of the instant complaint.
The Merits
A determination on the merits of the complaint herein
arises pursuant to the motion for judgment on the
pleadings made by the General Counsel at the hearing
before me. Under Rule 56 of the Federal Rules for Civil
Procedure, a summary judgment on the pleadings may
properly be granted where it appears clearly to the trier of
fact that the moving party is entitled to judgment as a
6 See Knitgoods Workers' Union Local 155, International Ladies Garment
Workers Union, AFL-CIO (Boulevard Knitwear Corp), 167 NLRB 763,
766-767.
7 Local 334, Laborers' International Union of North Americq AFL-CIO
(Exquisite Construction Company), 183 NLRB 523; Sec. 102.67 (f) of the
Rules and Regulations of the National Labor Relations Board , Series 8, as
amended ; cf. Local Joint Executive Board of Las Vegas, Nevada, etc. (Custom
Catering, Inc d/b/a Blue Onion), supra.
896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
matter of law, viewing the supporting material in the light
most favorable to the opposing party.8
Viewed in the light most favorable to the Respondent,
the pleadings, herein, as refined by record stipulations,
establish that the picketing which admittedly transpired
subsequent to the Regional Director's certification of the
results of the election, when construed in light of the
Board's pronouncement in R. J. Smith Construction Co.,
Inc., 191 NLRB 693,9 had, at least in part, a recognitional
or organizational object.
It may reasonably be inferred that Respondent initiated
the picketing in May 1973-several weeks prior to the
election and the filing of the RM petition which gave rise
thereto-for the purpose of protesting the Company's
failure to make trust fund contributions and pay wage rates
in accordance with, the terms of the collective-bargaining
agreement. It may further be assumed that Respondent
filed no charge alleging violation of Section 8(a)(5) of the
Act because of the supposed futility of doing so in light of
the Board's decision in R. J. Smith. Finally, it may
additionally be concluded that Respondent abstained from
seeking redress in court for a breach of contract and
resorted to picketing prior to the election because it
considered this course to be the most direct and effective
means of self-help in countering the Company's asserted
contract violation.
The picketing was commenced, and for an interval
transpired, at a time when, by virtue of a viable contract,
the Union was entitled to recognition as bargaining
representative of a unit in the construction industry to
which, by reason of the last proviso to Section 8(f), no
presumption of majority attached. Indeed the Respondent
concedes that it never commanded a majority. There had,
of course, been no certification of the Union. In the factual
context described, the Company filed an RM petition
which, as above noted, because of the final proviso of
Section 8(f), was not barred by the existence of the
collective-bargaining agreement to which the Union and
the Company were then parties. An expedited election was
held and the results were adverse to the Union. A
certification of the results of the election followed, but
picketing continued.
At issue is the proposition whether or not the postelec-
tion picketing continued to have, arguendo, as its sole
object the protesting of the Company's alleged breach of
contract. Following the certification it is clear, under the
teaching of Lawrence Typographical, 10 that the Union
occupied no better position than any union which has,
through a typical Board election, sought and failed to have
itself accepted initially as a bargaining representative. In
sustaining the Board in Lawrence Typographical, the circuit
court gave specific affirmance to the Board's observation
that:
8 See Frasier v Doing, 130 F.2d 617 (C A.D C ), Reynolds v Needle, 132
F.2d 161 (C.A D.C ), Giordano v Lee, 434 F 2d 1227 (C A 8)
!i Order set aside and remanded 480 F 2d 1186 (C A D C, 1973). This
trier of fact is, of course , bound by the Board's decision. At this time, the
Board has not acted upon the remanded
10 Lawrence Typographical Union No 570, affiliated with the International
Typographical Union, AFL-CIO (Kansas Color Press, Inc ), 158 NLRB 1332,
1338-39, enfd 376 F 2d 643 (C.A 10, 1967)
11 See Retail Clerks International Association, AFL-CIO v
Montgomery Ward&, Company, Inc, 50 LRRM 2702, Modm Manufacturing
Nowhere is there any indication of a congressional
intention to withhold the protection and sanctions of
Section 8(b)(7)(B) in those situations where the picket-
ing union which lost the valid Board election was the
recognized incumbent statutory representative. Indeed,
so to hold would invite a losing incumbent union to
resort to such picketing as a pressure tactic to wrest the
representative status and recognition which it was
denied by the employees' freely expressed choice at the
ballot box, would unstabilize the situation for a period
of 12 months during which no new election could be
held in accordance with Section 9(c)(3), and would
subvert and nullify the very purpose for which Section
8(b)(7)(B).
It is fundamental that a union's authority to act as
collective-bargaining representative of employees may be
revoked by those employees dunng the term of an existing
contract under the procedures proscribed by Section 9 of
the Act. Moreover, a respectable body of authority
supports the proposition that a decertified union has no
rights under an unexpired collective-bargaining agreement
with an employer,ii and this loss of rights extends clearly
to any preexisting recognition rights, as well as to any
contractually based former right to administer the previ-
ously viable collective-bargaining agreement.12 I perceive
no basis in logic for distinguishing the practical and legal
effects upon the Respondent Union of losing the represent-
ation election involved here. In analogy to Retail Clerks, I
conclude and find that the effect is the same and that,
following the certification of the results of the June 20
election, the Respondent had no claim to recognition
under the contract and had no standing to administer its
terms on behalf of employees of the Company.
It is thus apparent, in context of the then prevailing
circumstances, following the certification-the contract
having no present or prospective effect-there could have
been no present breach of contract on the part of the
Company. Moreover, it is reasonably inferable that the
Respondent, being then represented by legal counsel, was
cognizant of that fact. Accordingly, the picketing which
followed the June 28 certification could not reasonably be
found to have been in protest over any present, on-going
breach of contract.13
Nor is it readily discernible how this continued economic
action could have materially assisted the Respondent in
recovering funds which had assertedly not been paid under
the terms of the contract while it was legally viable prior to
the certification. The earlier picketing had had no effect. A
Co v. Grand Lodge International Association of Machinists, 216 F 2d 326
(C A 6), Milk & Ice Cream Drivers Union, Local 98 v. McCulloch. 306 F.2d
763 (C A.D C, 1962)
13 Retail Clerks International Association, AFL-CIO v Montgomery
Ward & Company, 316 F 2d 754 (C.A 7, 1963)
13 Indeed , the picketing continued after the Board on July 5 denied
Respondent 's request for special permission to appeal the Regional
Director's direction of an expedited election, which action of the Board had
the immediate effect of leaving intact the certification
LOCAL 86, PAINTERS
Section 301 action was, at this point in time, clearly the
course most likely to have achieved the Union's purpos-
es.14 No such action was filed.
This failure is of more than passing significance when it
is noted that prior to the election and during the term of
the contract, Respondent had attempted to recruit mem-
bers from among employees employed on a project of the
Company. The Respondent chose to continue to picket,
and refrained from filing a breach of contract action, I am
convinced and find, because the picketing would better
serve its simultaneous, combined objective of punishing the
Company for a past breach of contract, and of forcing the
Company to recognize it, or, more indirectly, of causing
employees of the Company to select the Union as their
bargaining representative. In face of the Respondent's
failure to file suit for recovery of funds assertedly
improperly denied the Union's pension trust fund, I find
unconvincing the Respondent's contention that the picket-
ing was for the single and sole purpose of contesting a
breach of contract.
On the basis of the foregoing, and for the reasons stated,
I find Respondent violated Section 8(b)(7)(B) of the Act by
picketing in the face of the June 28 certification. This
finding is required, notwithstanding the Respondent's
desire to adduce additional record evidence, for it is
concluded that, viewing the evidence in the light most
favorable to the Respondent, the presence of a proscribed
object is too indelibly revealed to render probative the
evidence and character of proof which is outlined in
Respondent's offer of proof.
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 of the
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
14 Retail Clerks, supra, is not to the contrary for such a suit would not be
for a present breach of an existing agreement, but would litigate the effects
of a past breach of the agreement which transpired while the contract was in
effect.
15 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,
conclusions , and recommended Order herein shall, as provided in Sec.
102 48 of the Rules and Regulations, he adopted by the Board and become
897
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. 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)(7)(B) of the Act.
4. 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 15
Respondent, Local 86, Brotherhood of Painters, Decora-
tors and Paperhangers of America, AFL-CIO, its officers,
agents,:and representatives,-shall:
1. Cease and desist from:
(a) 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 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 for a period of 12 months following the
termination of the picketing found unlawful.
(b) Picketing, or causing to be picketed, or threatening to
picket Carpet Control, Inc., for any of the aforementioned
objects, 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 notice attached hereto and marked "Appendix." 16
Copies of said notice, to be furnished by the Regional
Director for Region 28, shall, after being duly signed by an
official representative of Respondent, be posted by
Respondent immediately upon receipt thereof, and be
its findings , conclusions, and order, and all objections thereto shall be
deemed waived for all purposes
it 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."
898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including 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
by him.
(c) Notify the Regional Director for Region 28, in
writing, within 20 days from the date of this Order what
steps have been 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 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 a bargaining unit of installers,
apprentices , and sanders employed by Carpet Control,
Inc., or with the object of forcing said employees to
accept or select us as their collective-bargaining
representative , and will abstain thereafter from picket-
ing for such object for a period of 12 months.
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 bargaining unit within the
preceding 12 months.
Dated By
LOCAL 86, BROTHERHOOD
OF PAINTERS , DECORATORS
AND PAPER HANGERS OF
AMERICA , AFL-CIO
(Labor Organization)
(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, Patio
Plaza Building , 5000 Marble Avenue , N.E., Albuquerque,
New Mexico 87110, Telephone 505-843-2555.