Local Union 798, Painters

National Labor Relations Board - Board Decisions

Jul 30, 1974

212 N.L.R.B. 615 (N.L.R.B. 1974)

LOCAL UNION 798, PAINTERS 615
Local Union 798 of Nassau County , New York ; Broth-
erhood of Painters and Allied Trades, AFL-CIO and
Nassau Division of the Master Painters Association
of Nassau-Suffolk Counties Inc. and Nassau Divi-
sion of the Gypsum Drywall Contractors, Inc.' Case
29-CB-1495
July 30, 1974
DECISION AND ORDER
On February 8, 4974, Administrative Law Judge
Thomas S. Wilson issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed ex-
ceptions and a supporting brief, and the Respondent
filed a reply brief.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge, only to
the extent consistent herewith.
This case involves negotiations between the two
associations and the Respondent in late 1972 and ear-
ly 1973 for a new collective-bargaining agreement,
particularly for a new stewards clause. The old agree-
ment, which expired on March 31, 1973, provided,
"On each and every job, the Union shall have the right
to designate a Job Steward." It defined the duties of
stewards as consisting "of examining dues books and
cards of Journeymen and Apprentices on the job and
enforcing Trade Agreement conditions." At all mate-
rial times herein, the Respondent's bylaws have pro-
vided that stewards must be members of the
Respondent in continuous good standing for 3 years.
Early in the negotiations, the Respondent submit-
ted a brief list of proposals stating in part, "Stewards
to [be] appointed on all jobs from the Union Office."
On January 23, the Union submitted a printed set of
proposals containing the following:
(15) All stewards for all jobs to be designated
from the Union Hall from the ranks of the unem-
ployed members.
During the remaining seven meetings prior to the ex-
piration of the contract and the beginning of the
strike, the Respondent insisted on inclusion of item
15, the proposed stewards clause .2 At the March 29
meeting, the stewards clause was discussed at length
and the associations proposed modifications, first that
the steward be the fifth man on the job and then that
the steward be the third man on the job. At the con-
1 The name of the Charging Party appears as amended at the hearing.
2 The record, contrary to the Administrative Law Judge's finding, indicates
that item 15 was insisted upon until the second meeting during the strike.
clusion of the meeting, the stewards clause, wages,
and the duration of the contract were unresolved. On
April 1 the Respondent struck. Although other issues
had not been settled, the disagreement over the stew-
ards clause caused the impasse which led to the strike.
The record establishes that the parties promptly
agreed to the other issues once they agreed to the
stewards clause. In addition, Respondent's business
representative testified that the Respondent was not
going to give up the stewards clause under any cir-
cumstances.
At the first meeting after the commencement of the
strike, the parties stood pat on the stewards clause. At
the next meeting, on April 12, the Union proposed
that the employers shall designate a foreman on each
job and the Union shall designate a steward on each
job from the Union. On April 30, the parties again met
and resolved the outstanding issues. They agreed to a
3-year contract with a 75-cent wage increase each
year, and to the following stewards clause:
The Union, through the business representa-
tive, shall designate a qualified journeyman as a
steward on each and every job and the Employer
shall designate a foreman on each and every job
subject to the following:
(a) There shall be a one year trial basis on
the steward program subject to reopening at
the expiration of the first year of this agree-
ment: The reopening limited to this item only.
(b) The Joint Trade Board to hear and de-
termine all grievances on the steward issue.
(c) No work stoppage pending disputes on
the steward issue.
(d) One-man jobs to be exempt from the
stewards program subject to investigation by
the business representative.
I
We are concerned here with the meaning of both
the proposed (item 15) and the agreed-upon stewards
clauses. Item 15 on its face states that stewards would
be appointed from the ranks of the unemployed. Since
members of the associations for the most part had
regular complements of employees, the proposed
clause meant that the Union was not satisfied to name
an employee already in the employ of the Employer,
even though he might well meet the requirements of
the Union's bylaws as to having been a union member
in good standing for 3 years, but instead was insisting
that an additional 3-year union member, designated
solely by the Union, be hired and appointed as stew-
ard. The record demonstrates that this was the exact
intent of the Union in insisting upon the inclusion of
212 NLRB No. 89
616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the clause . Gypsum Drywall Contractors' president,
who was present at most of the bargaining sessions,
testified as follows:
Q. What about as you agreed, to this propos-
al? Is the shop steward that is selected, does he
come from someone that is employed by you in
an existing complement or is he selected from
someone who is not already employed by you?
A. He is selected by the Union, someone who
is not employed by me.
Q. Now, with respect-
JUDGE WILSON: That's under this present con-
tract?
THE WITNESS: Yes that's what I think he asked.
MR EDELMAN: Yes, I did. That's my question.
Q. (By Mr. Edelman) So that the different
wording,aside, the practical difference would be
that in the past years the shop stewards were
selected from one of your normal employees and
now they are selected from someone who is not
a member of your normal staff?
A. That's correct.
Although the Respondent's recording secretary at the
negotiations testified that the Union could, under the
new agreement, designate a member of an employer's
regular crew as shop steward, he shortly thereafter
testified:
Q. But you had the right then to designate and
say, "We don't want to pick a shop steward from
the employees that you have previously em-
ployed, we'll send you one?"
A. That there is what we were fighting for, to
protect our work.
Q. And to protect your work you wanted to be
sure that you appointed a shop steward that you
could send out to the job because you knew he
would be the type of shop steward that would
enforce and police the contract, is that correct?
A. That is correct.
The president of Gypsum Drywall Contractors fur-
ther testified that the association resisted
Respondent's proposals in part because the employers
did not want to employ "strangers"; i.e., men from
outside their crews. He testified that Respondent's
stated position during the negotiations was to obtain
a turnover of men to get the unemployed on jobs. The
Union's testimony did not refute the contention that
it was the intent of the clause to require the hiring of
an additional person through the union hall, to be
selected by the Union, but did assert that the reason
for the clause was not to obtain additional employ-
ment, but rather to help assure better enforcement of
the contract.
The General Counsel contends that both the pro-
posed and the agreed-upon stewards clauses are un-
lawful preferential hiring clauses requiring the
employer-members of the associations to hire 3-year
members of Respondent as stewards, rather than hav-
ing stewards appointed from the employers' regular
work crews. The General Counsel also contends that
the Respondent violated Section 8(b)(3) of the Act by
negotiating to impasse and striking to secure an un-
lawful stewards clause. The General Counsel argues
that the strike also violated Section 8(b)(2) and
8(b)(l)(A) because it was an attempt to cause discrim-
ination through a preferential hiring clause; i.e., the
stewards clause.
The Respondent argues that the clauses do not act
to encourage union membership because each clause
is valid on its face, anyone eligible to become a stew-
ard would have long been a member of Respondent
by virtue of the 8-day union-security clause, and that
no employer would be required to lay off a nonunion
employee to accept a steward referred by Respon-
dent. The Respondent further contends that the stew-
ards clauses are mandatory subjects of bargaining, are
necessary to police the contract, and promote the pur-
poses of the Act by giving stability to labor regula-
tions.
The Administrative Law Judge, in dismissing the
complaint herein, found that the right to police the
contract is fundamental to the right to bargain collec-
tively. He further found that under the stewards pro-
vision there is a theoretical possibility of some
discrimination, but that the possibility is hardly real
because of the 8-day union-security clause. He con-
cluded that the importance and necessity of policing
the collective-bargaining agreement outweigh the the-
oretical possibilities of discrimination.
The issue before us is whether the stewards clauses
arbitrarily encourage union membership by discrimi-
nating in favor of employment of union members. As
we have found, the intent of the proposed clause,
which was the central issue in the negotiations, and of
the agreed-upon clause, as understood by the parties,
was to permit the Respondent to require the hiring of
persons designated by the Union to serve as stewards,
it being understood that there would be new hires
selected from outside the employers' regular work
crews. Thus, the stewards provision plainly gives the
Respondent significant control over the hiring of at
least one employee on each job, excluding one-man
jobs, and thereby inherently encourages union mem-
LOCAL UNION 798, PAINTERS
bership.
The Board recently stated in Ashley, Hickham-Uhr
Co.,' "Not every encouragement of union member-
ship is unlawful. . . . " Unlike that case , however, the
Respondent herein has impinged on, the employment
relationship in a manner irrelevant to legitimate
union interests. While Respondent has legitimate in-
terests in appointing stewards and policing contracts,
we do not here find legitimate justification for the
insisted-upon union control over the hiring process.
Any failure of stewards who were already employed
to enforce the trade agreements could surely be con-
trolled by appropriate union training or, if necessary,
by internal union discipline of stewards who failed to
perform responsibly. We see no compelling reason
why Respondent required control over the hiring pro-
cess in order to maintain proper employee representa-
tion.
The Act specifically prohibits discrimination in hir-
ing on the basis of union membership. The fact that
an 8-day union-security clause is permissible in this
industry does not mean that a closed shop is permissi-
ble, nor that we can ignore discriminatory hiring prac-
tices by either companies or unions. Congress chose
to permit agreements that an employee hired on a
nondiscriminatory basis can be required to become a
union member at an earlier date than in other indus-
tries, but it deliberately did not sanction the imposi-
tion of union membership as a condition of hire. We
therefore are not persuaded, as was the Administra-
tive Law Judge, that the violation which we have
found here, can be excused by the 8-day clause in
Section 8(f) of the Act.
For the above reasons, we find that the stewards
provision, as insisted upon and agreed to, creates a
hiring arrangement under which the Respondent gave
its members preference in referrals. The Respondent
has thereby attempted to cause the employers to dis-
criminate against employees and applicants for em-
ployment in violation of Section 8(a)(3) of the Act and
has, accordingly, violated Section 8(b)(1)(A) and (2)
of the Act. By insisting on such provision and strik-
ing to obtain it, the Respondent has refused to bar-
gain in violation of Section 8(b)(3) of the Act. We
shall therefore order the Respondent to cease and
desist therefrom and to delete the unlawful stewards
provision.
3 210 NLRB No. 1. The union did not violate the Act by requiring the
employer to hire a steward and lay off an employee because the union had
a "legitimate and valid concern for placing an experienced steward on a
potentially troublesome jobsite ." The steward was specified by name to deal
with a specificjunsdictional problem . In the instant case, the Respondent has
not sought to place a particularly knowledgeable steward on a troublesome
jobsite or with a particularly difficult employer, but has sought blanket hiring
preference on every job for an entire class-i.e., all person designated solely
by the Union to serve as stewards.
CONCLUSIONS OF LAW
617
1. Local Union 798 of Nassau County, New York;
Brotherhood of Painters and Allied Trades, AFL-
CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
2. Nassau Division of the Master Painters Associa-
tion of Nassau-Suffolk Counties, Inc, and Nassau Di-
vision of the Gypsum Drywall Contractors, Inc., are
individuals engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
3. By insisting upon, agreeing to, and maintaining
an agreement with said associations that job stewards
be appointed by the Respondent from outside the
regular work forces of the members of said associa-
tions and thereby requiring employees to be mem-
bers of Respondent as a condition precedent to ob-
taining employment, the Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(b)(2) of the Act.
4. By insisting upon and striking to obtain said
unlawful agreement, the Respondent has refused to
bargain in violation of Section 8(b)(3) of the Act.
5. By the aforementioned acts, the Respondent has
restrained and coerced employees in the exercise of
their rights guaranteed by Section 7 of the Act, and
,has thereby engaged in and is engaging in unfair labor
practices within the meaning of Section 8(b)(1)(A) of
the Act.
6. The aforementioned unfair labor practices are
unfair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Local Union 798 of Nassau County, New York:
Brotherhood of Painters and Allied Trades, AFL-
CIO, Mineola, New York, its officers, agents, and
representatives, shall:
1. Cease and desist from:
(a) Insisting upon, agreeing to, and maintaining a
stewards clause or other agreement with Nassau Di-
vision of the Master Painters Association of Nassau-
Suffolk Counties Inc. or Nassau Division of the Gyp-
sum Drywall Contractors, Inc., or any other employ-
er, which requires employees to be members of the
Respondent as a condition precedent to obtaining
employment, except as authorized by Section 8(a)(3)
of the Act.
(b) Causing or attempting to cause members of
said associations, or any other employer, to discrimi-
nate against employees or prospective employees in
violation of Section 8(a)(3) of the Act.
618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Refusing to bargain in good faith by insisting
to impasse upon and striking to obtain a provision of
the collective-bargaining agreement requiring unlaw-
ful discrimination as set forth in paragraphs (a) and
(b) hereof.
(d) In any like or related manner restricting or
coercing employees or prospective employees of
members of the said associations, or any other em-
ployer, in the exercise of their rights guaranteed in
Section 7 of the Act, except as such rights may be
affected by an agreement requiring membership in a
labor organization as a condition of employment as
authorized in Section 8(a)(3).
2. Take the following affirmative action which is
designed to effectuate the policies of the Act:
(a) Delete from the current collective-bargaining
contract with the Nassau Division of the Master
Painters Association of Nassau-Suffolk Counties Inc.
and Nassau Division of the Gypsum Drywall Con-
tractors, Inc., the unlawful stewards clause men-
tioned in paragraph I of this Order.
(b) Post at its business office and meeting halls
copies of the attached notice marked "Appendix." 4
Copies of said notice, on forms provided by the Re-
gional Director for Region 29, after being duly
signed by an authorized representative of the Re-
spondent, shall be posted by the Respondent imme-
diately upon receipt thereof, and be 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 the Respondent to insure that said notice is
not altered, defaced, or covered by other material.
(c) Notify the Regional Director for Region 29, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
MEMBERS FANNING AND JENKINS, dissenting:
We agree with our colleagues that the real issue
before us for determination is whether the stewards
clauses sought by Respondent Union unlawfully en-
courage union membership by discriminating in fa-
vor of the employment of union members. We do not
agree, however, with their conclusion that the exis-
tence of such discrimination has been established on
the record before us.
These steward clauses provide, in effect, that the
Union shall designate from the union hall the indi-
vidual who is to be the steward on a particular job
and that each such individual shall be selected from
the ranks of the unemployed members. There would
seem to be no dispute that the Union's purpose in
seeking such a provision was to be able to more ef-
fectively police their collective-bargaining agree-
ments with the two associations' employer members.
Thus, the problem as the Union saw it was that each
employer's work force remained relatively stable
and, as a result, stewards appointed from among the
employees of the employer were reluctant to jeopar-
dize their steady employment by insisting upon full
compliance with the terms of the collective-bargain-
ing agreement.
Our colleagues reason that the ultimate effect of
such a provision is to require the various employers
to hire union members to the exclusion of nonmem-
bers. But is such a conclusion realistic? Because of
the 8-day union-security clause in this and prior
agreements, it is highly unlikely that the hiring of a
steward would cause the displacement of a nonunion
employee. But even if such were the case, we have
long since recognized that not every encouragement
of union membership is unlawful. Rather, in cases
such as this, we seek to determine whether the con-
duct in question is being carried out for the purpose
of achieving legitimate union objectives pursuant to
their role as collective-bargaining representative.
Frankly, we can see no ulterior motive on the
Union's part, nor does the evidence even suggest one.
The Union's purpose clearly must be as it has stated,
to police more effectively its collective-bargaining
agreement with these employees. In the recent Ash-
ley, Hickham-Uhr Co. case,' this Board recognized
the lawfulness of precisely this same objective and we
fail to see how the degree or extent of the union's
problem can have any bearing on the lawfulness or
unlawfulness of its conduct. Conduct which is en-
gaged in solely for the purpose of promoting legiti-
mate union objectives under the collective-bargaining
relationship cannot be classified as an arbitrary en-
couragement of union membership and we would so
find.
In short, the Union was attempting to secure ade-
quate policing of its contract by union members who
were more independent of the employer than his reg-
ular work force. It seems obvious that a steward
should be a union member. Selecting him from those
outside the regular employee complement seems to
us to be justifiable here, and the "encouragement" of
union membership by such action to be undiscerni-
ble.
For the foregoing reasons, we would dismiss the
complaint in its entirety.
In the event that this 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 "
52I0NLRB No I
APPENDIX
LOCAL UNION 798, PAINTERS 619
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR" RELATIONS BOARD
An Agency of the United States Government
After a trial at which all sides had the chance to give
evidence, the National Labor Relations Board has
found that we violated the National Labor Relations
Act and ordered us to post this notice:
WE WILL NOT insist upon, agree to, or enforce
any agreement with any member of Nassau Divi-
sion of the Master Painters Association of Nas-
sau-Suffolk Counties Inc. or Nassau Division of
the Gypsum Drywall Contractors, Inc., or any
other employer, which provides that job stewards
be appointed by us from outside the regular; work
forces of the members of said associations, and
which thereby requires employees to be members
of a labor organization as a condition precedent
to obtaining employment.
WE WILL NOT cause or attempt to cause mem-
bers of said associations, or any other employer,
to discriminate against employees or prospective
employees in violation of Section _8(a)(3) of the
National Labor Relations Act, as amended.
WE WILL NOT insist upon and strike to obtain
said unlawful agreement with the said associa-
tions, or any other employer.
WE WILL NOT in any like or related manner re-
strain or coerce employees or prospective em-
ployees of members of said associations, or any
other employer, in the exercise of their rights
guaranteed in Section 7 of the Act.
WE WILL delete from the current collective-bar-
gaining agreement with said associations the
aforementioned unlawful stewards clause.
LOCAL UNION 798 OF NAS-
SAU COUNTY, NEW YORK,
BROTHERHOOD OF PAINTERS
AND ALLIED TRADES, AFL-
CIO
(Labor Organization)
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 compli-
ance with its provisions may be directed to the
Board's Office, 16 Court Street, Fourth Floor, Brook-
lyn, New York 11241, Telephone 212-596-3535.
I
DECISION
STATEMENT OF THE CASE
THOMAS S. WILSON, Administrative Law Judge: Upon a
charge duly filed on April 19, 1973, by Nassau Division of
the Master Painters Association of Nassau-Suffolk Coun-
ties Inc. and Nassau Division of the Gypsum Drywall Con-
tractors, Inc., herein referred to as the Charging Party or the
Employer, the General Counsel of the National Labor Rela-
tions Board, herein referred to as the General Counsel I and
the Board respectively, the Regional Director for Region 29
(Brooklyn, New York), issued its complaint dated Septem-
ber 20, 1973, against Local Union 798 of Nassau County,
New York; Brotherhood of Painters and Allied Trades,
AFL-CIO, herein referred to as the Respondent or the
Union.
The complaint alleged that Respondent had engaged in
and was engaging in unfair labor practices affecting com-
merce within the meaning of Section 8(b)(1)(A), (2), and (3)
and Section 2(6) and (7) of the Labor Management Rela-
tions Act, 1947, as amended, herein referred to as the Act.
Respondent duly filed its answer admitting certain allega-
tions of the complaint but denying the commission of any
unfair labor practices.
Pursuant to notice a hearing thereon was held in Brook-
lyn, New York, on November 26, 1973, before me. All par-
ties appeared at the hearing, were represented by counsel,
and were afforded full opportunity to be heard, to produce,
examine, and cross-examine witnesses and to introduce evi-
dence material and pertinent to the issues. At the conclusion
of the hearing oral argument was waived. Briefs were re-
ceived from General Counsel and Respondent on January
16, 1974.
Upon the entire record in the case and from my observa-
tion of the witnesses, I make the following:
FINDINGS OF FACT
I. BUSINESS OF THE CHARGING PARTIES
Nassau Division of the Master Painters Association of
Nassau-Suffolk Counties, Inc. and Nassau Division of the
Gypsum Drywall Contractors, Inc., are and have been re-
spectively at all times material herein corporations duly
organized under, and existing by virtue of, the laws of the
State of New York.
At -all times material herein, the Painters Association has
maintained its principal office and place of business at 1399
Franklin Avenue m the town of Garden City, county of
Nassau, and State of New York where it is, and has been
at all times material herein, operating as an association of
1 This term specifically includes the attorney appearing on behalf of the
General Counsel at the hearing
620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employers , who are , and have been , engaged in performing
services in connection with painting , decorating , and paper-
hanging, in the building and construction industry.
At all times material herein , the Drywall Association has
maintained its principal office and place of business at 1399
Franklin Avenue in the town of Garden City, county of
Nassau , and State of New York, operating as an association
of Employers engaged in performing services in related
services in the building and construction industry.
At all times material herein , the Painters Association and
Drywall Association have respectively performed , inter aha,
the functions of negotiating , executing , and administering
collective - bargaining agreements on behalf of its respective
employer-members with labor organizations representing
employees employed by its employer -members.
During the past year, which year was representative of its
annual operations generally, the employer -members of both
the Painters Association and Drywall Association have re-
spectively , in the course and conduct of their businesses,
purchased and caused to be transported and delivered to
their respective places of business , paints, dryboard, and
other goods and materials, valued in excess of $50,000 of
which goods and materials valued in excess of $ 50,000 were
transported and delivered to their places of business in in-
terstate commerce directly from States of the United States
other than the State of New York.
The Painters Association and the Drywall Association,
and each of them, is and has been at all times material
herein an employer engaged in commerce within the mean-
ing of Section 2(2), (6) and (7) of the Act.
If THE LABOR ORGANIZATION
Local Union 798 of Nassau County, New York, Brother-
hood of Painters and Allied Trades , AFL-CIO , has for
many years past been the recognized bargaining agent of all
journeymen and apprentice painters, and decorators em-
ployed by the employer -members of the Painters Associa-
tion.
At all times material herein the Union has been the recog-
nized bargaining agent of all journeymen and apprentice
drywall painters, tapers, texturizers , and finishers employed
by the employer -members of the Drywall Association.
III THE ALLEGED UNFAIR LABOR PRACTICES
The facts of the instant case are deceptively simple. How-
ever judging from the case authority cited in the briefs, as
well as my own research, the answer to these facts is not
quite so simple.
The Drywall Contractors, as part of the Charging Party,
and the Union for the past 10 years or so have been parties
to a series of collective-bargaining agreements covering em-
ployees engaged in the drywall and painting trades. -
The jobs handled by the Drywall Contractors generally
require from one to five or six tapers on the job. The evi-
dence indicates that most of these jobs require but one or
two employees per job. A few, require more. These contrac-
tors also generally have a regular crew of employees but are
free to seek additional help from Respondent, from fellow
contractors, or from the streets, as the case may be.
The instant dispute arose during negotiations between the
above parties on a renewal contract for that which was to
expire on April 1, 1973.
The agreement between the above parties expiring on
April 1 recognized the Union as the bargaining representa-
tive of all employees employed by the Associations. It also
provided for maintanence of membership as well as requir-
ing union membership of new employees after 8 days of
employment. Section 15(A) of this agreement provided:
On each and every job, the Union shall have the right
to designate a job steward.
Paragraph (B), section 15, described the duties of such stew-
ard and (C) of that section provided, inter a/a, that "the
steward shall not be dismissed or discriminated against for
enforcing trade agreement conditions" as well as precondi-
tioning his discharge or removal on other matters not mate-
rial herein. _
According to the union bylaws stewards are required to
have been members of Respondent in continuous good
standing for a period of 3 years.
Negotiations looking toward the renewal agreement
opened between the parties hereto on December 13, 1972.
Early in the negotiations the Union proposed that section
15(A) be amended to read as follows:
Stewards to be appointed on all jobs from the Union
office from the unemployed.
This stewards clause, as it was called, immediately be-
came a bone of contention between the parties and re-
mained such at all negotiation sessions, which were held
thereafter on January 3 and 23, 1973, February 13 and 21,
and March 1, 13, 20, 27, and 29. By March the proposed
stewards clause had become worded as follows:
The Union to designate a steward to be referred from
the union hall but that if the job is only a one-man job,
the business representative of the Union would police
these jobs without a steward being referred
As of the final bargaining session of March 29 the parties
had reached no agreement regarding the stewards clause.
The Union demanded the stewards clause in order, it
contends, to better, police the collective-bargaining agree-
ment between the parties. It was convinced that there were
certain evasions of the collective-bargaining agreement oc-
curring, such as "lumping" wherein hourly rates were being
supplanted by the payment of piece-work prices, improper
use of "sticks and rollers" as provided for in the agreement,
improper payments to funds for fringe benefits and a gener-
al lack of enforcement of trade rules. This, the Union
claimed, was due to the fact that most, if not all, stewards
on the jobs were regular employees of the contractors and
as such regular employees were more interested in regular
LOCAL UNION 798, PAINTERS 621
employment than in policing the contract and its terms.
On the other hand the Drywall Association objected 'to
the fact that the appointment on the job of a steward who
was not a regular employee of the contractor would force
that contractor to employ a new man selected by the Union
which would prevent the contractor from making accurate
calculations on a job bid as they would not know the capa-
bilities of the new employee as well as they knew the capa-
bility of the regular employees and, in addition, that such
appointment might well require the contractors to layoff
regular employees.
All efforts at arriving at a compromise on the stewards
clause satisfactory to both parties failed just prior to the
expiration of the expiring contract on April 1. There were,
of course, two other clauses not agreed to on April 1; i.e.,
wages and the duration of the contract. However, the main
stumbling block was and remained the stewards clause.
Wages, of course, were largely dependent upon the wage
guidelines in force at that time. And the duration of the
contract was of relatively minor importance.
With the expiration of the 1970-73 agreement on April 1
with these three clauses still at issue, the Union went on
strike and remained on strike until April 30. During negotia-
tions during the strike the contractors had offered to permit
the Union to designate a steward on all five man jobs where-
as the Union continued to demand the selection of the first
man as steward on all jobs.
Finally at the end of April the parties broke this stalemate
by agreeing upon the following stewards clause: -
The Union, through the business representative,
shall designate a qualified journeyman as a steward on
each and every job and the Employer shall designate
a foreman on each and every job subject to the follow-
ing:
(a) There shall be a one year trial basis on the
steward program subject to reopening at the expira-
tion of the first year of this agreement: The re-
opening limited to this item only.
(b) The Joint Trade Board to hear and determine
all grievances on the steward issue.
(c) No work stoppage pending disputes on the
steward issue.
(d) One-man jobs to be exempt from the stew-
ards program subject to investigation by the busi-
ness representative.
With this agreement on the stewards clause the issue on
wages and on the duration of the contract were promptly
settled. With agreement for a 3-year contract the Union
promptly called off the strike, the men returned to work and
have been working steadily ever since.
Union's insistence upon the right to appoint a steward on
the various jobs and the Drywall Association's equally ada-
mant refusal of this right did prevent the attainment of a
satisfactory collective-bargaining agreement prior to the
strike and, in fact, caused the impasse which led to the
strike.
In this state of affairs General Counsel in his brief argues:
The issue now remaining and the central issue is
whether the original and agreed upon stewards clauses
are discriminatory and therefore unlawful.
The Board has consistently held that a union violates
the act when it requires by agreement or otherwise an
employer to hire union members only, or to prefer
union members over non -union members .2
In the instant case both the original and the agreed
upon modified-stewards clause require that the Associ-
ation prefer union members over non-union members.
Both the original and the agreed upon stewards clause
required the employer-members of the Association to
accept an employee designated by Respondent to be
the shop steward. Since Respondent by-laws require
that a shop steward must be a member in good standing
of Respondent for 3 continuous years the effect of the
stewards clause is to require the employer-members of
the Association to accept a member of the Respondent
as one of his employees. The Employer would have no
choice in the selection of the employee. Since the em-
ployer-members of the Associations have a fixed num-
ber of regular unit employees, this clause would require
the employer-member to hire into his existing unit a
3-year Respondent member who would be steward,
and it would operate without regard to whether or not
the existing unit contained employees who satisfied the
3-year membership requirement. Thus the employer-
member would be either forced to layoff an existing
crew member or be restricted, because of limited job
vacancies from hiring a new crew member who is not
a Respondent member. Thus it is clear that the effect
of this stewards clause required preference to Respon-
dent members over nonmembers.
It is recognized that Respondent may have a legiti-
mate interest in having a member steward be employed
in an existing unit of employees. However, the pro-
posed clauses go beyond that legitimate interest be-
cause as set forth above they would require the
employer-member to hire into an existing unit of em-
ployees a 3-year Respondent member as steward with-
out regard to whether the existing unit contained any
3-year members thus requiring the employer-member
to layoff an existing crew member or be restricted from
hiring a new employee, not a member of Respondent.
B. Conclusions
The General Counsel correctly argues that, as found
above, the stewards clause was the stumbling block to the
consummation of a satisfactory agreement prior to the April
1 expiration date of the prior agreement. I agree. The
For the reasons set forth above it is argued that both
the original and agreed upon clauses are unlawful be-
2 Citation of a number of cases involving discriminatory hiring hall and
discriminatory agreement or understanding cases omitted.
622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cause they operate to cause job referral discrimination
based upon membership in Respondent.
Much of the above argument might be true. However, as
a practical matter, if the union-security clause of the con-
tract is being enforced as required after 8 days of employ-
ment, the alleged discrimination is much more theoretical
than real. Regular crewmembers in all probability have
worked for the Employer more than 8 days and thus under
the terms of the union-shop clause of the agreement would
have to have become union members already. The same
thing is also true regarding the theoretical new nonunion
employee who at the most has only 8 days before having to
join the Union. Thus there is the theoretical possibility of
some very temporary discrimination in regard to one man
per job. But, if the union shop clause is enforced in accor-
dance with its terms, that possibility is hardly real.
One of the prime objectives in the passage of the National
Labor Relations Act was to provide the representative of
the employees in an appropriate unit with the right to bar-
gain with the employer in regard to wages, hours; and work-
ing conditions of those employees and to set those
agreed-upon matters down in writing in a signed collective-
bargaining agreement . A necessary concomitant of that
right to bargain collectively is the right of the Union to
police that collective -bargaining agreement after its execu-
tion . Without the right to police the agreement , collective
bargaining itself becomes nothing but a hollow act, a farce.
Hence the right of the Union to have stewards on the job
in order to police the agreement arrived at must be and has
been a mandatory subject of bargaining .3 This applies to the
3 See Industrial Union of Marine and Shipbuilding Workers [Bethlehem Steel
Co ] v. N L.R. B., 320 F 2d 615 (C.A 3 1963).
appointment, duties, responsibilities , and,tenure of stew-
ards. It is obvious from the 1970-73 contract between these
same parties that even' ,these parties have recognized the
above to be so; Section 15(A), (B), and (C) of.that contract
proves the recognition , of this fact.
As the appointment, duties, responsibility, and tenure of
stewards on the job is a mandatory subject of bargaining as
these parties themselves have recognized, the Union had the
right to bargain to impasse in regard thereto as well as to
resort to strike in order to reach satisfactory terms thereon.
Even if we assume the slight theoretical possibility of dis-
crimination as argued in General Counsel's brief, the impor-
tance and necessity of policing the collective -bargaining
agreement far outweighs the highly theoretical possibilities
of some discrimination somewhere . Otherwise collective
bargaining becomes a hollow farce.
Upon the basis of the foregoing findings of fact and upon
the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. Local Union 798 of Nassau County, New York;
Brotherhood of Painters and Allied Trades, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of
the Act.
2. Nassau Division of Master Painters Association of
Nassau-Suffolk Counties Inc. and Nassau Division of the
Gypsum Wall Contractors, Inc., are individuals engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
3. Local Union 798 of Nassau County, New York; Broth-
erhood of Painters and Allied Trades, AFL-CIO has not
committed any violation of Section 8(b)(1)(A), (2), or (3) of
the Act.
[Recommended Order omitted from publication.]