Moveable Partitions, Inc.

National Labor Relations Board - Board Decisions

May 8, 1969

175 N.L.R.B. 916 (N.L.R.B. 1969)

MOVEABLE PARTITIONS, INC.
Moveable -:Partitions ,- Inc. and Taping Organizing
Committee, Petitioner. Case 2-RC-14978
May 8, 1969
DECISION AND DIRECTION OF
ELECTION
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND ZAGORIA
Upon, a petition duly filed under Section 9(c) of
the National Labor Relations Act, as amended, a
hearing was held before Hearing Officer Lawrence
A. Dinerstein on November 7, 15, and 22,
December 9, 13, and 30, 1968, and January 15, and
February 4, 1969. ]Following the hearing, pursuant
to Section 102.67 of the National Labor Relations
Board Rules and Regulations and Statements of
Procedure , Series 8, as amended , this case was
transferred to the National Labor Relations Board
for decision. Thereafter, briefs were filed by the
Employer, Petitioner, and Intervenors.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has _ reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from- prejudicial error. They are hereby
affirmed.
Upon the entire record in this case, including the
briefs, the Board finds: .
1. The Employer is engaged in commerce within
the meaning of the Act and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. The Employer and the Painters District
Council, as well as the other intervenors, contend
that the Petitioner is not a labor organization
because Petitioner' s constitution and bylaws
indicate the Petitioner's main purpose was the
formulation of a local to affiliate with the Painters
District Council. They, assert that when such
affiliation was rejected, Petitioner no longer had any
purpose, and that- by filing the representation
petition , Petitioner seeks to force the Painters
District Council to grant it a charter to form a
local.
The record reveals that whereas Petitioner's
original purpose was to form a local for tapers,
'Brotherhood of Painters , Decorators & Paperhangers of America,
AFL-CIO, District Council No. 9 of New York City, herein referred to as
Painters District Council , intervened on the basis of a contract interest.
Also allowed to intervene were Brotherhood of Painters, Decorators and
Paperhangers of America , AFL-CIO, and its following affiliates- Local
Union 798 of Nassau County; Painters District No . 20 of Westchester and
Putnam Counties , and Local Union 1486 of Suffolk County The basis for
the intervention by the above affiliated unions was letters of compliance
signed by Employer to cover terms and conditions of employment for his
employees while working in the jurisdiction of these unions , or, in the case
of Local 798, a bond posted by the Employer for the same purpose.
915
when it became apparent that the Painters District
Council would not grant such a charter, Petitioner's
purpose was changed to that of representing
employees and negotiating with employers
concerning wages, hours and working conditions. To
that end Petitioner's officials continued to hold
monthly meetings with the participation of
employees who are its members. Further, in filing
the representation petition, Petitioner seeks in its
own right as a labor organization both recognition
as a collective-bargaining representative and
bargaining on behalf of employees of the Employer,
rather than a local charter from the Painters. On
the basis of the foregoing, we find that Petitioner is
a labor organization within the meaning of Section
2(5) of the Act.
Painters District Council No. 9, Local 798,
District No. 20, and Local 1486 are all labor
organizations claiming to represent certain
employees of the Employer.
3. The Petitioner seeks an election in a unit of all
the Employer's tapers, alternatively described as all
employees engaged in painting, wood finishing, floor
finishing, floor refinishing, taping, paper hanging,
decorating, and in preparatory work incidental to
each of the aforementioned functions in New York
City and any other location where the Employer
employs them. The Intervenors and the Employer
contend that because the Employer signed letters of
compliance with Local 1486 and District Council
No. 20, for work performed in their respective
countywide areas, the collective-bargaining
agreements that these unions have with the painter
employers' associations of such areas cover these
employees and bar the petition.
The letter of compliance with District Council
No. 20 signed by the Employer on April 18, 1966,
provides in substance that the Employer will pay its
employees working within the jurisdiction of District
Council No. 20, the scale of wages set out in the
collective-bargaining agreement between District
Council No. 20 and the Painting and Decorating
Contractors of Westchester; the Employer will also
pay the prevailing percentage of gross wages set
forth therein to the Painters' Insurance Funds and
Pension Fund; and it will abide by all the Painters'
rules and regulations in that bargaining agreement.
The contract referred to is effective from April 15,
1966, to April 14, 1969.
The letter of compliance with Local 1486 states
that the Employer acknowledges that the Master
Painters Association of Nassau-Suffolk Counties
executed the collective-bargaining agreement with
Local 1486 on the Employer's behalf and the
Employer agrees to be bound by the terms,
conditions, and provisions thereof when performing
work in Suffolk County and to make payments
required therein to Local 1486's Insurance, Welfare,
Pension and Vacation Funds. The
collective-bargaining agreement referred to is
effective April 1, 1967, to March 31, 1970.
175 NLRB No. 149
916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With respect to these collective-bargaining
agreements , we note that they cover only those
employees of the Employer who work in and only
while working in Westchester and Suffolk County!
In order for a contract to be a bar to a petition, the
contract must embrace an appropriate unit.' We
find that the employees of the Employer covered by
these two contracts - those working in Westchester
County and those working in Suffolk County - do
not separately comprise an appropriate unit, but are
part of the larger appropriate unit of all of the
Employer's employees engaged in taping in New
York City and any other location where they are
working, established in bargaining contracts
executed by Employer and District Council No. 9
since 1959. We therefore find that the
collective-bargaining agreements that District 20 and
Local 1486 signed with the respective county
painters associations do not bar the present petition.4
Accordingly, we find that a question affecting
commerce exists concerning the representation of
certain employees of the Employer within the
meaning of Section 9(c)(1) and Section 2(6) and (7)
of the Act.
4. The Employer and Intervenors contend that an
established history of Association group bargaining
between Painters District Council No. 9 and the
Master Painters Association, makes a single-
employer segment of the established multiemployer
unit inappropriate.
Petitioner asserts that the Employer, which was
not a member of the Master Painters Association,
was never part of the multiemployer unit . Although
it signed the contracts negotiated by Painters
District Council and the Master Painters
Association, it never took part in the negotiations or
authorized the Master Painters or any other agent
to negotiate on its behalf.
When the Employer went into the drywall
business in 1959, it signed, as an individual
employer, the then current collective-bargaining
agreement , the terms of which were negotiated
between District Council No. 9 and the Master
Painters Association.' When the agreement expired
'The District 20 - Painting Contractors agreement and the Local 1486
- Master Painters agreement respectively provide for coverage of all
employees of the employer signatories wherever employed We do not
construe these clauses as extending the contract to cover all of the
Employer's employees through the letters of compliance signed by the
Employer; for the contracts are only applicable when work is being
performed in the jurisdictions of the locals in question, and only apply to
the employees working within those jurisdictions.
'Appalachian Shale Products Co, 121 NLRB 1160, 1164
`The Chairman and Member Zagoria would find that even assuming the
existing contract between District Council No. 20 and the Painting and
Decorating Contractors of Westchester covered the employees sought
herein , it could not bar the representation petition because although the
petition was prematurely filed, a hearing has been held on the petition and
the Board decision will issue on or after the 90th day preceding the
expiration date of this contract. See Deluxe Metal Furniture Company,
121 NLRB 995, Pacific Far East Line, Inc, 174 NLRB No 172 . Member
Brown's contrary views in this respect are stated in his dissent in Sperry
Gyroscrope Co. 147 NLRB 988, 996.
and a new Association one was negotiated, the
Employer, upon notice from Painters District
Council No. 9, signed a new agreement containing
the renegotiated provisions. It signed such
agreements in 1962 and 1965, although it had no
explicit understanding with the Painters District
Council that it would accept this procedure." At no
time did the Employer join the Master Painters
Association. At no time did it participate in
negotiations or authorize the Master Painters to
negotiate on its behalf.' Under these circumstances,
we find that this Employer has no history of
bargaining in a multiemployer unit. While it has
adopted contracts negotiated by the Master Painters
Association, this alone is not a sufficient basis for
including it in a multiemployer unit. We therefore
find that the bargaining history establishes that the
Employer's employees petitioned for constitute a
separate appropriate unit.'
The Employer and Intervenors contend, however,
that after the petition herein was filed and
negotiations for a new contract began, the Employer
expressly authorized the Master Painters
Association to bargain on its behalf and sat in on
negotiations. Thus, argue the Employer and
Intervenors, the Employer became part of the
multiemployer unit. We find that the Employer's
express authorization given at a time when
Petitioner was seeking separate representation of its
employees, and the Employer's participation in
bargaining sessions after the petition was filed, do
not establish bargaining for this Employer on a
multi-employer basis.
In addition, the Employer and Intervenors argue
that the Employer had in the past signed interim
agreements which showed the Employer's intent to
authorize the Master Painters Association to
negotiate new contracts for it. These interim
contracts were signed by the independent employers
and provided that from the expiration date of the
old contract until the effective date of the new
contract, the signatory employer should continue to
apply the terms and conditions of the expired
contract, as modified by the Painters District
Council demands in the current multiemployer
collective-bargaining sessions .' However, nothing
therein expressly authorized the Master Painters
Association to negotiate the new contract on the
signatory's behalf. At most, the agreement stated
that the parties to it intended to establish interim
'The employers , who were not members of the Master Painters
Association, signed individual contracts with the District Council These
contracts contained substantially the same terms and conditions as the
contract signed by the Association on behalf of its members The terms of
the individual employer agreements were never altered to conform to any
condition or requests of the separate employers
`Most independents in the industry signed the negotiated contracts.
'The contract signed by the Employer contained no provision authorizing
the Master Painters Association to be its bargaining agent
'Texas Cartage Company, 122 NLRB 999, 1000
'They are not signed by the Master Painters Association on behalf of its
members.
MOVEABLE PARTITIONS, INC.
terms and conditions of employment pending the
establishment of a New Trade Agreement for the
Painting Industry . We find that these agreements
cannot be construed as authorization for the Master
Painters Association to bargain on behalf of the
Employer.' a
Accordingly, we find that there is no history of
bargaining on a multiemployer basis as would
preclude a finding that the Employer 's employees
constitute a separate , appropriate unit . We find,
instead , in agreement with the Petitioner , that the
following employees constitute a unit appropriate"
for purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All employees of Moveable Partitions, Inc.,
engaged in taping of drywall in New York City
and any other location where working , excluding
all other employees , watchmen , guards and
supervisors as defined in the Act.
[Direction of Election ' Z omitted from publication.]
"The Employer did not sign such an interim agreement on August 1,
917
1968, when the 1965-68 contract expired and the parties did not contend
that by virtue of an interim agreement the petition was barred
"The Employer contested such a unit as an attempt by Petitioner to
sever tapers as a craft It appears that although the Employer utilizes only
employees in the taper classification , the historic contract unit, which
would be an appropriate unit , contains classifications of employees engaged
in painting , wood finishing , floor finishing, floor refinishing , taping, paper
hanging , decorating , and preparatory work incidental to each of these
functions . As the Board policy is to omit from the unit description
classifications not employed, we shall limit the unit description to tapers of
drywall. However, since this unit description encompasses all of the
Employer's employees presently covered by the contract unit , we find no
element of craft severance involved.
In order to assure that all eligibile voters may have the opportunity to
be informed of the issues in the exercise of their statutory right to vote, all
parties to the election should have access to a list of voters and their
addresses which may be used to communicate with them. Excelsior
Underwear Inc, 156 NLRB 1236; N.L.R B v. Wyman-Gordon Company,
394 U.S. 759. Accordingly, it is hereby directed that an election eligibility
list, containing the names and addresses of all the eligible voters, must be
filed with the Regional Director for Region 2 within 7 days of the date of
this Decision and Direction of Election . The Regional Director shall make
the list available to all parties to the election . No extension of time to file
this list shall be granted by the Regional Director except in extraordinary
circumstances . Failure to comply with this requirement shall be grounds
for setting aside the election whenever proper objections are filed.