Painters, Local Union No. 823

National Labor Relations Board - Board Decisions

Oct 31, 1966

161 N.L.R.B. 620 (N.L.R.B. 1966)

620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brotherhood of Painters , Decorators and Paperhangers of Amer-
ica, Local Union No. 823, A FL-CIO and Independent Painting
Contractors of New Mexico, Billy Needham , President
Brotherhood of Painters , Decorators and Paperhangers of Amer-
ica, Local Union No. 823 , AFL-CIO and James L. Malone d/b/a
Malone Paint Service
Brotherhood of Painters , Decorators and Paperhangers of Amer-
ica, Local Union No. 823, AFL-CIO; Painting and Decorating
Contractors of America , Albuquerque Chapter and James L.
Malone d/b/a Malone Paint Service . Cases 28-CB-357, 364, 28-
CC-201, and 28-CE-5. October 31, 1966
DECISION AND ORDER
On April 20, 1966, Trial Examiner Louis S. Penfield issued his
Decision in the above-entitled proceeding, finding that the Respond-
ents have engaged in and were engaging in certain unfair labor
practices, and recommending that they cease and desist therefrom
and take certain affirmative action, as set forth in the attached Trial
Examiner's Decision. Thereafter, the Respondent, Brotherhood of
Painters, Decorators and Paperhangers of America, Local Union No.
823, AFL-CIO, filed exceptions to the Trial Examiner's Decision.
The General Counsel filed an answering brief to Respondent's
exceptions.
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 these cases to a three-member
panel [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Respond-
ent's answering brief, and the entire record in these cases, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner.'
[The Board adopted the Trial Examiner's Recommended Order.]
' In agreeing with the Trial Examiner that Respondents ' contract was not within the
protection of the construction industry proviso to Section 8(e), Member Fanning does not
rely on the theory that the so -called " self-enforcement provisions" in an otherwise valid con-
tract create an unlawful obligation under Section 8(e) of the Act . See his dissenting
opinion in Greater Muskegon General Contraetor8 Association , 152 NLRB 360, 369.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding with all parties represented was heard before Trial Examiner
Louis S. Penfield in Albuquerque, New Mexico , on October 26, 27 , and 28, 1965,
161 NLRB No. 44.
PAINTERS, LOCAL UNION-NO.,823 621
upon a consolidated complaint of,the ,General Counsel and, upon an answer by
Brotherhood of Painters , Decorators and Paperhangers of 'America, Local Union
No. 823, AFL-CIO, herein called Respondent.' Painting and Decorating Contractors
of America, Albuquerque Chapter, herein called PDCA, is named as a joint
Respondent in Case No. 28-CE-5. PDCA filed no answer. It had a representative
at the hearing but he entered no formal appearance although given the opportunity
to do so.
The issues litigated were whether Respondent violated Section 8(b) (1) (B), 8(b) (3),
and 8 (b) (4) (ii) (A) and whether Respondent and PDCA violated Section 8(e) of the
National Labor Relations Act, as amended, herein called the Act. Prior to the hear-
ing, Respondent filed objections to the consolidation of the cases , a motion to sever,
and a motion to dismiss. These motions were considered at the opening of the
hearing and denied without prejudice . The issues relating to each of the cases were
fully litigated, and I find no prejudice to have resulted from their consolidation
in a single proceeding. Matters raised in Respondent's motion to dismiss have been
reiterated in its brief, and will be considered in the body of the Decision below.
Upon the entire record, including consideration of briefs filed by Respondent and
the General Counsel, and upon my observation of the witnesses , I hereby make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYERS
Billy Needham, painting contractor; Charles Picoult, painting contractor; Homer
Corvin Painting Company; G. R. Argetsinger, painting contractor; Z. E. Gadziala
Painting Company; Heisse Painting Contractor, Inc.; Harold L. Uber, painting con-
tractor; Walter H. Humphrey, paint contractor; Monarch Painting; General Paint-
ing; James L. Malone d/b/a Malone Paint Service are each presently, or have been
at times material to this proceeding, employers engaged in the painting, decorating,
and drywall contracting business in Albuquerque, New Mexico. Under circum-
stances to be described below, such employers formed a multiemployer bargaining
group or association known as Independent Painting Contractors of New Mexico,
herein called IPC. At all times material to this proceeding, IPC has existed for the
purpose of bargaining collectively on behalf of its members, and has bargained
collectively on their behalf in a manner to be described below. During the past
year the employers named, who comprise, or comprised, IPC obtained painting
equipment, goods, and material valued in excess of $50,000 from points outside the
State of New Mexico for use in carrying on their painting contracting businesses.
Keyston Applied Coatings, Inc.; Van Fleet Painting and Decorating; Truman
Thornton Painting; Gaskill Painting and Decorating Co.; Mac Salas Painting Co.;
Harry Stokes Painting; Estrada Painting, Inc.; Carlson Dry-Wall Co.; and Harold
DuBoise Painting are each employers engaged in the painting, decorating, and dry-
wall contracting business in Albuquerque, New Mexico. Such employers comprise a
multiemployer group and are members of 'PDCA, an employer association which
exists for the purpose, among other things, of bargaining collectively for its mem-
bers, and at times material has so bargained. ' During the 'past year, employer-
members of PDCA, in the course of conduct of their painting contracting businesses,
obtained painting equipment , goods , and materials valued in excess of $50,000 from
points located outside the State of New Mexico.
Upon, the basis of the foregoing, I find that the businesses of the contractors who
comprise the membership of IPC and PDCA, respectively, affect commerce within
the meaning of the Act, and that within current Board jurisdictional standards it
will effectuate the policies of the Act to assert jurisdiction over such businesses.
U. THE LABOR ORGANIZATION INVOLVED
Respondent is a labor organization within the meaning of Section 2(5) of the
Act.
I The consolidated complaint issued on October 12, 1965, and is based upon charges
filed with the National Labor Relations Board, herein called the Board, on the following
dates : In Case 28-CB-357 on June 8, 1965; in Case 20-CB-364, a charge on July 16, 1965,
and an amended charge on August 18 , 1965; in Case 28-CC-201, an original charge on
July 16, 1965 , and an amended charge on August 18, 1965; and in Case 28-CE-5, on
August 18, 1965. Copies of the consolidated complaint ; the charges , and the amended
charges have been duly served upon the parties.
622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
M. THE ALLEGED UNFAIR LABOR PRACTICES
A. Prefatory statement
This consolidated proceeding concerns a controversy arising from bargaining
relationships between Respondent and two employer associations representing paint-
ing contractors in Albuquerque and vicinity. It is charged by the General Counsel
that Respondent violated its statutory bargaining duty by repudiating a collective-
bargaining agreement with IPC, and by attempting to bargain individually with
employer-members of IPC, that Respondent restrained and coerced a painting con-
tractor in the choice of his bargaining representative in violation of Section
8(b) (1) (B) ; that Respondent and Respondent PDCA entered into an agreement
containing provisions violative of Section 8(e), and that Respondent restrained and
coerced a painting contractor in violation of Section 8(b) (4) (A) by demanding
that he sign an agreement containing such 8(e) provisions. Respondent denies fail-
ure to fulfill its statutory bargaining duty, denies the unlawful character of the con-
tractual provisions, and denies that it has engaged in restraint and coercion relative
either to the choice of a bargaining representative, or to the execution of an agree-
ment containing unlawful provisions.
B. The formation and status of IPC
For many years painting contractors in the Albuquerque area had contractual
relationships with Respondent. Many were members of PDCA which had negotiated
collective-bargaining contracts with Respondent on their behalf. In 1960 a group
of painting contractors became dissatisfied with PDCA and revoked its authoriza-
tion to represent them. Thereafter the dissident group sought to negotiate with
Respondent or its owner. IPC was formed after the group consulted an attorney.
IPC at no time had a constitution or bylaws, and never registered as an incorporated
or unincorporated association with any State agency. In February and March
1961, however, some ten painting contractors signed a document entitled "Designa-
tion of Agent" which reads in pertinent part as follows:
The undersigned . . . in order to facilitate and make more economical the
negotiation of labor contracts, hereby appoints, designates and nominates the
Independent Painting Contractors Association of New Mexico, or its duly
authorized agent or agents, to negotiate, sign and conclude any or all bargain-
ing contracts with Painters Local Union No. 823 of Albuquerque, New Mexico,
covering work performed by my film or my employees which is subject to the
jurisdiction and legal representation of said Union covering painting, decorating,
and dry wall work. I further agree to observe and fully comply with the terms
and conditions of any such contract so negotiated by the Association, the Inde-
pendent Painting Contractors Association of New Mexico, Albuquerque, N.M.
it is further agreed that this designation of my agent for collective-bargaining
purposes aforesaid shall be binding upon my heirs, assigns , and successors, and
shall continue in force and effect unless terminated by either party thereto
upon ninety (90) days written notice.
Following the signing of the aforesaid designation, the contractors met and chose
Billy Needham, one of the group, as president of IPC, as well as other officers.
IPC, acting through Needham and other members, thereupon engaged in collective-
bargaining negotiations with Respondent. This resulted in the execution of a two-
year contract in June 1961. This contract was signed by IPC and Respondent.2
Respondent claims that IPC never established itself as a lawful employer associa-
tion, and that it never had capacity to bind its members to a valid and enforceable
contract. Respondent's claim is premised on its contention that IPC had no formal
organization othei than the "Designation of Agent," and thus that it never came
into being as a legal entity with capacity to contract, and on the further contention
that IPC lacked legal capacity to enter into a binding contract since it failed to
register as a unincorporated association with an appropriate New Mexico State
agency
Both contentions must be rejected. Existence of a formally organized association
has never been regarded by the Board as a condition precedent to the capacity of a
2 The contract named the then members of IPC, and had space at the end where each
member might sign indicating that he agreed "to abide by the terms and intent of the
above agreement "
PAINTERS , LOCAL UNION NO. 823 623
group of employers to bargain on a nultiemployer basis, or to designate a repre-
sentative to bind such employers to a contract resulting from such bargaining. The
test has always been whether or not the employers have established a course of con-
duct by which they have manifested a desire to be bound by group bargaining. If
so, no formally established organization has ever been deemed necessary.3
The intent of the contractors in the instant case is clearly made manifest by their
signing the "Designation of Agent." The lawful character of the group was not
challenged at the outset by Respondent which, as we have seen, entered into nego-
tiations and executed a contract with IPC in 1961. Nor, as we shall see, did
Respondent challenge the status of IPC in the 1962 negotiations or, indeed, at any
time until it sought to repudiate the 1962 contract under circumstances to be
described below.
I find no need to consider whether or not State law requires an unincorporated
association to register with an appropriate State agency in order to execute a bind-
ing contract . We are not confronted here with an issue of State law, but with a
question of Respondent's duty to bargain under Federal law . Even if we assume,
that Respondent correctly sets forth New Mexico State law as requiring such regis-
tration , an assumption which I regard as open to question , it is not controlling. The
duty to bargain arises under Section 8(d) of the Act, and the Federal statute, not
State law, controls the validity of contractual relations entered into in fulfillment
of such statutory bargaining duty.4 Nothing in the Act, as interpreted by the Boaid
or the courts, suggests a registration requirement to insure validity of a collective-
bargaining agreement 5
Accordingly, I find that the painting contractors who executed the designation of
agent signified thereby an intent to embark on group bargaining naming IPC as
their representative to bind them in future collective-bargaining negotiations, and,
that at all times hereafter, IPC functioned as representative of its members, with
power to bind them to a collective-bargaining agreement.6
C. The negotiation of the 1962 contract and its subsequent repudiation
With the execution of the 1961 IPC contract, there came into being two separate
contracts applicable to painting contractors in the Albuquerque area. Different con-
ditions in the two contracts gave rise to dissatisfaction, particularly among those
contractors who had remained members of PDCA. This resulted in efforts by both
Respondent and PDCA to persuade IPC to enter into negotiations which might
lead to a single contract providing uniform conditions for employees of all painting
contractors in the Albuquerque area Although IPC resisted such efforts at the out-
set, it finally joined with PDCA in meeting with Respondent in July 1962 to
negotiate a joint agreement The circumstances of these negotiations, and the eve its
which followed, provide the substance of the controversy in which the General
Counsel alleges Respondent violated its statutory bargaining duty.
The negotiations , themselves , and the developments which followed, are described
in the testimony of George Suddarth, business representative of the Union, Glen
Craven, administrative assistant of National Painting & Decorating Contiactois of
America, a national organization with which the Albuquerque Chapter PDCA is
affiliated, Billy Needham, president of IPC, Charles Picoult, a member of IPC, and
a participant in the negotiations , and R. F. Estrada, a member of IPC at the time
of negotiations but later a contractor-membei of PDCA. Confusion and equivoca-
tion characterize the testimony of witnesses on both sides of the controversy.
3 Balaban and Katz (Princess Theatre), 87 NLRB 1071, Electrical Contractors of Troy
and Vicinity, 116 NLRB 354; Local 26, IBEW (Belsingcr Signs), 152 NLPtB 1, Cascade
Employers Association, Inc., 141 NLRB 469; Quality Limestone Products, Inc. 143
NLRB 589
6 Federal law would control in a suit brought for breach of contract whether in a State
or Federal court As the U.S. Supreme Court has said "The dimensions of Section 301
require the conclusion that substantive principles of federal labor law must be paramount
In the area covered by the statute." Local 174. Teamsters v Lucas Flour Co , 309 U S 95.
5 Conioaij8 Express v N L R B , 195 F 2d 900 (C.A 2) , Gem go D Light Boat Stoi age,
Inc., 153 NLRB 1209; Memphis Mouldings Inc 14G NLRB 265.
0 There is no evidence that any of the original members of IPC ever revoked their
designations in writing as required by the terms of the "Designation of Agent " Sonic of
the members died and others went out of business, and one, R F. Estrada, abandoned
IPC and cast his lot with PDCA However, IPC etas still meeting and undertaking to
function as representative of its remaining members up to the time of the hearing
624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Although it is difficult to be sure of precision on many points, I believe the follow-
ing recital of events constitutes a fair appraisal of the collective testimony of such
individuals, particularly as it is buttressed by demonstrative evidence in the form
of contracts, letters, and other documents.
1. Representatives of IPC , PDCA, and Respondent met in joint negotiations in
July 1962 . Following 3 days of negotiations , a contract was consummated on
July 25, 1962. It stands undisputed that complete agreement was reached among
the representatives of the respective parties on that day , and that they signified
this by signing an undated document . It is likewise undisputed that the agreement
reached purported to be between Respondent and the Painting and Decorating
Contractors of America, Albuquerque Chapter, and the Independent Painting Con-
tractors of New Mexico , hereinafter referred to as the "ASSOCIATION," as
the collective-bargaining representative for its members (present and future) and
for such other recognized paint and decorating contractors who have authorized
the Associations in writing to represent them in matters of collective bargaining.
The draft was a complete contract covering all aspects of wages, hours, and work-
ing conditions , and, admittedly , such contract was to supersede the existing contracts
which Respondent then had with each of the associations . By its terms , it was to
run until April 1, 1966.
2. During the course of the 1962 negotiations , there was some discussion among
the parties concerning the possibility that IPC might disband as an employer-
association and that its members might affiliate with PDCA . The evidence estab-
lishes, however, that no step was taken to carry this out prior to the completion of
the negotiations , and it is not shown that the subsequent validity of any agreement
reached was conditioned in any manner upon the disbanding of IPC at a later date.
3. Shortly after July 25, 1962, the agreement was ratified without change by both
of the associations and by Respondent. The agreement was thereupon printed in
booklet form . With one exception , to be noted below, the booklet is a verbatim
copy of the draft. The printed agreement contains space for the signatures of indi-
vidual members of both associations. The record establishes that IPC members did
sign individual copies of the booklet.? I am convinced, and find, that the purpose
of obtaining the individual signatures was to make certain that each member was
apprised of the terms of the agreement reached, and not to effectuate a new or
binding individual contract with Respondent.8 Accordingly I find that upon ratifica-
tion of the agreement executed in July, as above described, there came into being
a collective-bargaining agreement effective until April 1, 1966, between Respondent
and the two associations .9
4. Following ratification the agreement went into effect, and for some months,
at least, the parties appear to have functioned pursuant to its terms with no prob-
lems of consequence. An effort was made to show that during this period IPC
members took steps to disband their association, and also that some members joined
and actively participated in the affairs of PDCA. As noted above, however, no
member revoked the "Designation of Agent" in the prescribed manner. While the
7 While the record is silent on the question , presumably PDCA members did likewise.
8 Business Representative Suddarth testified that after the members had signed their
individual contracts , it was "the prerogative of the union to accept or reject the contract
by signing It." Accordingly , Suddarth asserted that Respondent had no contracts with
those IPC members whose booklets Respondent , for undisclosed reasons, failed thereafter
to sign. In view of the consummation and ratification of the agreement by all parties as
recited above , I find the rationale which leads to such a conclusion to be incomprehensible.
8 Respondent asserts that I have no authority to "construe" the validity of or to "inter-
pret" agreement . The statutory bargaining duty requires the execution of agreements
reached. To establish if it has been fulfilled in any given situation , the Board necessarily
must consider the nature of the agreement . It is well recognized that breach of contract
may also be an unfair labor practice ; and that' Both the Board and the courts ' may have
concurrent jurisdiction in such matters , although possibly differing remedial powers:
Local 174 , Teamsters v. Lucas Flour, supra; Smith v. Evening News Assn ., 371 U.S. 195;
George E. Light Boat Storage, Inc., 153 NLRB 1208. I rest my findings on the premise that
we are not here merely concerned with enforcement or interpretation of a collective-
bargaining agreement , but with a claim that Respondent has undertaken to repudiate an
established bargaining relationship altogether . This may be a breach of its statutory
duty to bargain , and to the extent that the validity of the contract must be considered to as-
certain if such has occurred , such "interpretation" is appropriate.
PAINTERS, LOCAL UNION NO. 8 2 3 625
possibility of disbanding was apparently discussed at some IPC meetings , evidence
of any steps taken to effectuate such an end is inconclusive.10 There is evidence of
participation in PDCA meetings by IPC members for a limited period, but even to
the extent that this took place, it does not suffice to establish that those, or any
other, IPC members had abandoned IPC as an association or had shifted their
allegiance to PDCA for bargaining purposes.
5. In March 1963 George Suddarth was elected business representative of
Respondent. Suddarth testified that from the start of his term problems arose con-
cerning the administration of the agreement. These centered on the proper inter-
pretation of section 2, paragraph 1, entitled "Joint Committe." Section 2 provides
for the establishment of a joint committee comprised of employee and employer
representatives , the purpose of which is to resolve disputes and grievances arising out
of the contract. According to the provisions of the typewritten draft, drawn up
immediately upon completion of the negotiations, composition of such committee is
described as follows:
There shall be a permanent joint committee, three from the Associations and
three from the Union with two alternates from each side.
For some unexplained reason , when the agreement was printed the wording was
changed to read:
Three each from the Associations and three from the
Union with two alternates, one from each side.
[Emphasis supplied.]
There is a suggestion that the inclusion of the word "each" in the printed booklet
was merely a typographical error.
6. There is no showing that the change in wording in the booklet was deliberately
made to further a particular position of either party or to create confusion. Nor
does the record establish that the exact composition of the joint committee was
the subject matter of dispute during the negotiations . Apparently, however, the
parties interpreted the section differently. Union Representative Suddarth testified
that it was his understanding that the joint committee would be comprised of three
representatives from the two associations and three from the union . Billy Needham,
president of IPC, testified that he understood that the joint committee would consist
of three from each association , plus three from Respondent. The addition of the
word "each" in the printed booklet lends some support to the latter construction,
although it is not necessarily conclusive on the issue.
7. There is an indication that in the initial months a joint committee was set up,
and, insofar as it needed to function at all, it did so without friction . The record is
far from clear on this, however , and I cannot clearly determine whether or not the
joint committee functioned in these initial months on a three and three, or on a
three, three, and three basis.
8. Suddarth testified that after assuming office he was never successful in setting
up a joint committee , and that without it he regarded it as impossible for the parties
to operate successfully under the contract . Suddarth states that such committee
could not be formed because of the insistence of association representatives that
the committee be made up on a three , three, and three basis, a composition which
Suddarth deemed as unacceptable . Whatever the dissatisfactions , however, even
after Suddarth took office , the parties continued to operate under the agreement
with no open break coming until the latter part of 1964 . During this entire period,
a little over a year and a half, despite the difficulties which Suddarth claims beset
him, there is nothing to show a serious effort on Suddarth 's part to resolve the dis-
pute by reaching agreement among the parties , or by seeking to invoke Section 5
10 The only evidence pointing in such direction is the testimony of witness Estrada, who,
at one time , was a member of IPC , but at the time of the hearing had gone out of business
as a painting contractor . Estrada testified that members of IPC had agreed to disband,
and that he had drawn up a document establishing this which had been signed by some of
the members. Estrada admits, however, that this document was destroyed prior to the
hearing, and he acknowledges that even when it existed he had never shown it to the
president of IPC, Bill Needham Under the circumstances, I find Estrada's testimony to be
unconvincing, and insufficient to counteract other evidence of IPC's continuing existence.
264-188-67-vol 161 41
626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the contract providing for arbitration of "disputes over the interpretation of the
terms and conditions of the agreement." 11
9. By the end of 1964, Suddarth states that he became convinced that it was not
possible to "make this thing work." In December of that year, Suddarth initiated an
effort to establish that no lawful or binding collective-bargaining agreement existed,
and that the parties must undertake to negotiate a new contract. Suddarth states
that this effort on his part was premised upon knowledge he had obtained from the
State corporation commission establishing that neither association had been regis-
tered with that State agency at the time the 1962 contract had been consummated,
and on legal advice that he had received to the effect that the absence of such
registration stripped each association of the legal capacity to enter into a binding
agreement. It was his contention, therefore, that the agreement reached in July 1962,
was null and void. In early 1965, he apprised each employer group that it was not
"a legal association," and that the contract that had been executed in 1962 was
invalid. He suggested that the problem could be remedied by appropriate registra-
tion forthwith, and by the negotiation of a new agreement to supersede that exe-
cuted in 1962 which still had over a year to run. He suggested no other solution.
10. PCDA accepted Suddarth's representation and registered with the State
agency. Thereafter it entered into negotiations with Respondent which resulted in
the execution of a new agreement on February 12, 1965. This agreement covered
members of PDCA, and hereinafter will be referred to as the PDCA agreement.
11. Although IPC and some of its members met with Suddarth, IPC refused to
accept his suggestions, claiming that registration was not required, and that the
1962 agreement was still valid and binding.
12. Suddarth, unsuccessful in his attempts to persuade IPC to take any steps to
"legalize" its position, then approached individual IPC members taking the position
that Respondent did not have a working, agreement "legal under the laws of this
state;"-and therefore Respondent would be unable to supply men to the contractor
unless he would meet and attempt to negotiate a "legal working agreement." Indi-
vidual members, like IPC itself, declined to acquiesce and insisted on the con-
tinuing validity of the 1962 agreement. Suddarth at no time since has retreated
from his position that the 1962 contract between Respondent and IPC has no
binding effect.12 It was following this that IPC filed the charges which serve as the
basis for the refusal to bargain allegations in the complaint.
I find, that by the conduct above outlined, Respondent has repudiated its con-
tractual obligations to IPC exising under the 1962 contract, which I have hereto-
fore found to be valid and binding.
D. Respondent's representation of employees in an appropriate unit
and the effect of its repudiation of the 1962 contract
It stands undisputed that at all times material herein Respondent has represented
the employees of painting contractors who comprised the membership of PDCA
and IPC , respectively . In 1961 , Respondent bargained with IPC on behalf of
employees of its members and executed a collective-bargaining agreement covering
them . In 1962, Respondent continued to represent them , and the 1962 contract pur-
ported to cover employees of members of IPC as well as those of members of
PDCA. Even when Respondent asserted that the 1962 contract had no validity, it
claimed representation rights for employees of individual IPC members.
Multiemployer bargaining units have ' uniformly been held appropriate where
there has been a clearly expressed intention by the individual employers to be
u Respondent argues that it is improper to "construe" or "interpret" the agreement in
an unfair labor practice proceeding . At the same time Respondent concedes the composition
of the joint committee to be the basic problem. This is clearly a problem of interpretation
of an ambiguous provision which the parties viewed differently. Respondent, however, offers
no explanation for not resorting to contract machinery to resolve the dispute but, as we
shall see below, it met the issue by declaring the agreement null and void without regard
to any continuing bargaining duty.
za Among other things Respondent filed a complaint in the New Mexico District Court
against IPC seeking a declaratory judgment to the effect that the 1962 contract was null
and void because IPC was not a legal entity properly registered with the State , and thus
was incapable of executing a binding contract. IPC counter-claimed in that proceeding,
claiming damages against Respondent for breach of contract resulting from its repudia-
tion of the 1962 contract. Such proceeding was still pending at the time of the hearing.
PAINTERS , LOCAL UNION NO. 823 627
bound by group rather than individual action. The bargaining history outlined
above shows that members of the IPC have expressed such intention , and further
shows acquiescence therein by Respondent both as to the 1961 and the 1962 agree-
ments. Under the circumstances, I find a unit comprised of employees who are
members of IPC to be an appropriate unit within the meaning of Section 9(b) of
the Act, and further find that at all times material to this proceeding, Respondent
has been the statutory representative of employees in such unit within the meaning
of Section 9(a) of the Act.
I have found that Respondent negotiated a valid collective-bargaining agreement
in July of 1962 with PDCA and IPC as associations representing their member-
employer painting contractors. I have also' found that when difficulties arose regard-
ing the administration of this agreement, Respondent undertook to solve them by
repudiating its bargaining obligation under such contract, and by seeking in lieu
thereof to negotiate a new agreement with the associations or their individual mem-
bers. Respondent's alleged justification for such action is found solely in its claim
that IPC was not a legal entity capable of entering into a legal and binding con-
tract,_ and that, therefore, the 1962 contract was, in effect a nullity. I have found
Respondent's claims in this connection without merit. Therefore, the admitted
repudiation by Respondent of its obligation under the conrtact, and its insistence
that further bargaining with it be carried on by individual IPC members, stand as
a clear breach of its continuing duty to bargain with IPC. I find that by such con-
duct, Respondent has violated Section 8(b)(3) of the Act.
E. The alleged restraint and coercion with regard to Malone
James L. Malone was engaged in business under the name Malone Paint Service
as a painting contractor in Albuquerque until August 1965, when he abandoned
such business. From the outset Malone was a member of IPC, and he was one of
the painting contractors bound by the 1962 agreement between IPC, PCDA, and
Respondent. Malone testified that -in April or May 1965, Suddarth had shown him
a copy of the PDCA agreement, and had asked him to sign it. At the time Malone
states that he pointed out to Suddarth that he was already a party to the IPC
contract which was still good until 1966. Malone, however, did take a copy of the
PCDA contract with him. During the ensuing two months or so, Malone had no
further communications with Suddarth concerning the agreement.
On July 13, 1965, Malone had occasion to call Suddarth to obtain a painter. In
response to Suddarth's request, Malone visited Suddarth's -office on the same day,
at which time Suddarth showed him a copy of a complaint which had recently
been issued by the General Counsel against Respondent, and asked Malone how it
happened that his name appeared upon it.13 Malone was unable to explain why
his name was on the complaint. Malone states that Suddarth then told him that he
must take steps to withdraw his name from the complaint, and that he must sign
the PDCA agreement or that Respondent would "pull [his] men." Malone testified
that Suddarth also told him that on the following Friday night when Respondent's
executive committee had a scheduled meeting to discuss the complaint, he would
undertake to obtain, and expected to receive, authorization from the executive
committee "to pull every union man that worked" with the IPC contractors. Malone
states that Suddarth also asked him why he had not previously signed the PDCA
agreement that he had taken some months before. Malone says that he replied that
he did not do so because he regarded the IPC agreement with Respondent as cover-
ing his employees. He states that Suddarth replied that IPC had ceased to exist.
If the statements of Malone are to be credited' they clearly establish that Sud-
darth, 'as an authorized representative of Respondent, threatened to take economic
action against Malone and his fellow IPC members unless Malone would abandon
IPC and embrace the PDCA- contract. Suddarth's version of the events of July 13,
is not in accord with Malone's. However, in his testimony Suddarth concedes that
he had previously given Malone a copy of the PDCA contract, and admits that
when Malone came to his office on July 13 a discussion ensued concerning the
Is This was a complaint issued in Case 28-CB-357 on July 9, 1965 . Therein Respondent
was alleged to have violated Section 8(b) (3) of the Act by repudiation of the 1962 agree-
ment. Malone Paint Service was named as one of the employer IPC members. The allega-
tions in this complaint are the same as those later incorporated in the consolidated com-
plaint with which we are concerned in the instant proceeding.
628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
complaint. He denies, however, that he in anyway attempted to coerce Malone in
the manner which Malone relates above. Throughout the proceeding Suddarth was
an evasive, argumentative, and never concise witness. His account of the events
of July 13 illustrates each of these qualities. His narrative is discursive in the
extreme, and is replete with efforts to include matters which could not have taken
place on that occasion. Suddarth admits that he told Malone that he would no
longer be able to furnish him with men, but he attempts to assign as a reason
past indebtedness on Malone's part to former painters who had worked for him.
Malone admits that he had problems with past indebtedness, but he states that the
matter had theretofore been cleared up to Suddarth's satisfaction, and that it did
not become an issue at the July 13 meeting. Nowhere in Suddarth' s long and
wandering account of the July 13 meeting does he mention telling Malone that he
must withdraw his name from the complaint, and that he must sign with PDCA
or his men would be pulled. Denial of such threats occurs only after completion
of his narrative, and then only in response to leading questions. I find the denial
coming in such sequence to be unconvincing. In contrast to Suddarth, I found Malone
to be a straightforward witness who appeared to be telling a cohesive story of the
events which transpired on that occasion, and I am convinced, and find, that his
testimony more nearly reflects what actually happened. Accordingly, I reject Sud-
darth's denials, and find that the events of July 13 transpired substantially in the
manner related by Malone above. I further find that by such conduct Respondent
threatened to take economic action against Malone by pulling his men unless
Malone abandoned IPC as his bargaining representative and became a party to
the PDCA agreement.
F. Conclusions with regard to the alleged violations of Section 8(b) (1) (B)
Section 8(b)(1)(B) of the Act provides that it is an unfair labor practice for
a labor organization to restrain and coerce "an employer in the selection of his
representatives . . ." I have found above that Suddarth threatened Malone with
economic action which, among other things, had the object of forcing him to
abandon IPC as his representative for collective-bargaining purposes. A threat of
such economic action directed at the selection of a bargaining representative is
precisely the type of conduct that Section 8(b)(1)(B) proscribes. Accordingly,
I find that Respondent has engaged in a violation of Section 8 (b) (1) (B) of the Act.
G. The alleged unlawful clauses in the PDCA contract
As noted above, Respondent and PDCA entered into an agreement on Febru-
ary 12, 1965. The General Counsel alleges in Case 28-CE-5 that certain of the
provisions in this contract are violative of Section 8(e) of the Act. The following
are the alleged unlawful provisions:
Section 5, paragraph 3 The parties recognize that certain standards of
craftsmanship must be met in the painting and decorating field in order that
such field may retain and advance a reputation of good craftsmanship. There-
fore, the parties agree that any and all work performed by signatories of this
agreement shall be done by qualified and competent craftsmen. ,If the
employer, parties hereto, shall subcontract work, provisions shall be made in
such subcontract for the employment of persons in accordance with the hiring
procedures provided herein, provisions shall be made for the observances
by said subcontractor of the terms of this agreement.
Section 5, paragraph 3-a The employees covered hereby reserve the right
to respect any picket line established by any labor organization, and it shall
not be a violation of this agreement on the employees' part to refuse to work
behind a picket line.
Section 5, paragraph 2-a If any employer is found to be violating this
agreement and fails to correct said violation within forty-eight (48) hours
after being notified of such violation by the Union, then, in that event, the
Union shall reserve the right to terminate said employer's agreement
immediately.
Section 3, paragraph 3 No party to this agreement whether employer or
employee shall be required to work for, or with, or employ on any job a
person who is acting in violation of this agreement.
PAINTERS, LOCAL UNION NO. 823 629
The president of the Albuquerque Chapter of PDCA was present at the hearing,
although not entering a formal appearance . He acknowledged that PDCA and its
members were maintaining and giving "full force" to "all provisions" contained
therein. Respondent acknowledges execution and continued existence of such agree-
ment, but claims it had taken no steps to enforce the provisions under attack. As
set forth above, however, I have found that on July 13, 1965, Respondent
restrained and coerced Malone for a purpose , among others , of getting Malone to
enter into the PDCA agreement.
H Conclusions regarding the 8(e) and 8 (b)(4)(ii)(A) violations
We must first establish whether or not the provisions of the PDCA agreement
attacked by the General Counsel are properly construed to be violative of the Act.
Analysis of such provisions indicates the following : ( 1) Section 5, paragraph 3,
restricts subcontracting to persons who agree to observe the contract and to, hire
only through Respondent ; ( 2) Section 5, paragraph 3(a) permits employees to
refuse to cross "any picket line "; ( 3) Section 5, paragraph 2(a) permits Respondent
to terminate the agreement with an employer who violates any of its provisions;
and (4 ) Section 3 , paragraph 3, permits employees to engage in work stoppages if
the employer violates any of the provisions of the agreement . The Board has held
clauses of this nature not to be legitimate work preservation clauses primary in
scope, but holds them to have a secondary thrust directed at disrupting or pre-
venting the establishment of business relationships with employers who do not
conform to the terms of the agreement.
Thus clauses of the type found in section 5, paragraph 3, have been found
unlawful because in effect they require an employer to limit subcontracting to
persons bound by the agreement , and to use the union hiring procedures in the
agreement , thus becoming agreements whereby the contracting employer will be
called upon to "cease doing business with other employers " not in conformity
therewith.14
The Board has also held picket line clauses similar to that in section 5, para-
graph 3 ( a) to be violative of Section 8(e). It is reasoned that picket line clauses
not limited to covering protected activities engaged in by employees against their
own employer , or to activities against another employer who has been struck by
his employees in a strike by a representative which such employer is required to
recognize , are tantamount to agreements to cease doing business with another
employer whose "production or services are under the union 's ban." is
The self-enforcement language which is found in section 5 , paragraph 2(a) and
section 3 , paragraph 3, has also been held violative of Section 8(e). It is reasoned
that self-enforcement language, such as we find in both these clauses, when con-
sidered in conjunction with language such as we find in section 5 , paragraph 3,
prohibiting subcontracting to parties not bound to observe the agreement , amounts
to a sanction of private economic action, either by strike or termination, should
the contracting employer subcontract to an employer who is not bound to its terms,
and that thus its effect is to constitute an agreement to cease doing business within
the meaning of Section 8(e) of the Act.16
Respondent urges the construction industry proviso of Section 8 (e) to be
applicable to the contract in the instant case. Such proviso has the effect of taking
some subcontracting clauses outside the proscriptions of Section 8(e).17 An exam-
16 Building and Construction Trades Council of San Bernardino and Riverside Counties
v NLRB [Golding and Jones ], 328 F 2d 540 (C A D C ) , Tiuekdrivers Union, Local
413, International Brotherhood of Teamsters , Chauffeurs . Warehousemen & Helpers of
America ( The Patton Warehouse Inc ), 140 NLRB 1474 , 334 F 2d 539 (C A D.C ).
15 Truckdrivers Union, Local 1118 (The Patton Warehouse Inc ), supra , Los Angeles
Building and Construction Trades Council ( Jones and Jones , Inc ), 150 NLRB 1590
16 Cement Masons Local Union No 97 , AFL-CIO ( Interstate Employers , Inc ) 149
NLRB 1127, Muskegon Bricklaye-is Union No. 5 (Greater Msslegon General Contractors
Associat ion), 152 NLRB 300 elmal(laniated Lithographers of America , Ind (The Employ-
ing Lithographer s), 130 NLRB 985 enfd 309 F 2d 31 (C A 9)
11 The construction industry proviso of Section 8(e) reads as follows "Provided, that
nothing in this subsection ( e) shall apply to an agreement between a labor organization
and an employer in the construction industry relating to the contracting or subcontracting
of work to be done at the site of the construction , alteration , painting , or repair of a
building , structure or other work."
630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ination of the contract, however, indicates that its coverage includes, but is not
limited to, employers working in the construction industry. Nor does it appear that
by its terms the contract is limited exclusively to onsite work even when work is
done for the construction industry. Thus the specific language of the contract
includes painting of a great variety of things including "sign, pictorial, car, auto-
mobile, carriage, aircraft, machinery, mural and scenic painters," among other
things. In addition, provisions in the contract refer to "any and all work" and in
no way are limited to onsite work in the construction industry. Under the circum-
stances the provisions of the construction industry proviso are not applicable, and
I so find. Moreover, even assuming, arguendo, that the proviso be deemed to apply,
it has been held that even construction industry contracts with similar picket line
and self-enforcement provisions do not attain immunity through the proviso.'8
Accordingly, for reasons set forth above, I find the clauses attacked to be viola-
tive of Section 8(e), and further find that the construction industry proviso of that
section does not accord them immunity.
The PDCA contract was entered into on February 12, 1965. The charge in
Case 28-CE--5 was not filed until August 18, 1965, more than 6 months later. The
Board has held, however, that the words "to enter into" must be interpreted broadly
"and encompass the concepts of reaffirmation, maintenance, or giving effect to any
agreement which is within the scope of Section 8(e)." 19
Respondent does not disavow the contract. On the contrary, I have found
Respondent's conduct on July 13, 1965, an attempt to coerce Malone into becoming
a party to the PDCA contract. I further find that this constitutes a reaffirmance of
the validity of the PDCA agreement. Such reaffirmance occurred within the 6-month
period and in accord with the rationale of the cases cited in footnote 19, such
reaffirmance constitutes an "entering into" within the meaning of Section 8(e). As
ive have seen above, PDCA acknowledged that its members were giving full force
and effect to all provisions of the contract. These of course would include those
provisions attacked, as well as all others, and I regard such admission by PDCA
as constituting a reaffirmance on its part of the validity of the agreement. It is
irrelevant that there is no showing of efforts to enforce the provisions under
attack.20 Accordingly, I find that the record establishes that both Respondent and
PDCA reaffirmed the provisions of the existing agreement within the 10(b) period,
and thus that Section 10(b) constitutes no bar to an attack on the lawful character
of the provisions of the agreement.
Section 8(b) (4) (A) of the Act makes it an unfair labor practice for a labor
organization to engage in acts of restraint and coercion with an object of "forcing
or requiring" an employer "to enter into any agreement which is prohibited by
Section 8(e)." I have already found that Respondent engaged in restraint and
coercion with regard to Malone by threatening economic action against him and
other members of IPC with the dual object of bringing about an abandonment of
IPC, and forcing him to sign the PDCA agreement. Having also found that the
PDCA agreement contains provisions violating Section 8 (e), it follows that by
such conduct Respondent has also violated Section 8(b) (4) (ii) (A) of the Act,
and I so find.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent and Respondent PDCA, as set forth in section III,
above, occurring in connection with the operations of the employers described in
Is Muskegon Bricklayers Union No. 5, supra; Los Angeles Building and Construction
Trades Council, and Local 844, United Brotherhood of Carpenters i Joiners of America
(Quality Builders, Inc), 153 NLRB 383.
15 Dan McKinney Co , 137 NLRB 649 ; Los Angeles Mailers Union No. 9, IT U (Hillbro
Newspaper Printing Company, Division of Hearst Publishing Company, Inc), 135 NLRB
1132; District 9, International Association of Machinists, AFL-CIO (Greater St. Louis
Automotive Trimmers and Upholsterers Association, Inc ), 134 NLRB 1354.
20 At the hearing Respondent sought to show that at no time had It undertaken to en-
force the provisions attacked. Assuming this to be true, It would be irrelevant to an attack
on such provisions under either Section 8(e) or 8(b) (4) (ii) (A). Enforcement of such
provisions might constitute a separate unfair labor practice, but the vice of the conduct
alleged as unlawful In the instant case relates to entering into or reaffirming an agree-
ment containing unlawful provisions and not to acts undertaken in carrying out such
provisions.
PAINTERS , LOCAL UNION NO. 823 631
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 unfair labor practices violative of
Section 8(b)(1)(B), 8(b)(3), and 8(b)(4)(ii)(A) and that Respondent and Re-
spondent PDCA have jointly engaged in conduct violative of Section 8(e) of the Act,
I shall recommend that they cease and desist therefrom, and take certain affirmative
action designed to effectuate the policies of the Act.
It has been found that Respondent, by repudiating its obligations under the 1962
contract, has not fulfilled its statutory bargaining duty. The basis for the repudia-
tion was Respondent's unwarranted rejection of IPC's status as the bargaining
representative of its members. It appears, however, that the 1962 contract expired
by its terms on April 1, 1966. The General Counsel does not seek, and I would
regard it as inappropriate to direct, that the expired contract be reinstated. The
continuing status of IPC as the representative of its members, however, is to be
presumed. Having found IPC to be such representative with nothing appearing in
.this record to indicate that it no longer occupies such status, I shall order that
Respondent, upon request, bargain with IPC regarding the negotiation of a new
collective-bargaining agreement to succeed the 1962 contract and that if, as a
result of such negotiation, agreement is reached, that Respondent embody such
agreement in a written and signed contract.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, I -make the following:
CONCLUSIONS OF LAW
1. IPC and PDCA are each employer-associations engaged in representing their
respective members for collective-bargaining purposes, and, as such, are employers
within the meaning of Section 2(2), (6), and (7) of the Act.
2. Respondent is a labor organization within the meaning of Section 2(5) of
the Act.
3. All journeymen and apprentices employed by employers who are members of
IPC, excluding all other employees, and guards, watchmen, and supervisors as
defined by the Act, constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act.
4. At all times since July 1962 Respondent has been the representative of em-
ployees in the unit described in paragraph 3, above, within the meaning of Section
9(a) of the Act.
5. In the latter part of 1964 or early 1965 , Respondent repudiated an existing
collective-bargaining agreement with IPC, and at all times thereafter refused to
recognize or bargain with IPC as the representative of its members in the unit
described in paragraph 3, above, and also undertook to bargain directly and indi-
vidually with employer-members of IPC, thereby engaging in conduct violative of
Section 8 (b)(3) of the Act.
6. On or about July 13, 1965, by threatening to refuse to furnish painters to
Malone, or to other IPC members , unless Malone abandoned IPC as his bargaining
representative , Respondent restrained and coerced Malone , and other IPC mem-
bers, in their selection of a representative for purposes of collective bargaining,
thereby engaging in conduct violative of Section 8 (b) (1) (B ) of the Act.
7. The collective-bargaining agreement entered into by Respondent and Respond-
ent PDCA on or about February 12, 1965, and subsequently reaffirmed by each of
them , contains provisions violative of Section 8(e) of the Act.
8. By threatening to refuse to furnish painters to Malone or other IPC members
with an object of requiring Malone to enter into a contract containing provisions
violative of Section 8(e) of the Act , Respondent has engaged in conduct violative
of Section 8(b) (4) (ii) (A) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings offact and conclusions of law, I
recommend that Respondent , Brotherhood of Painters , Decorators and Paperhang-
ers of America, Local Union No. 823, AFL-CIO, and Respondent Painting and
632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Decorating Contractors of America, Albuquerque Chapter,21 and its officers, repre-
sentatives, and agents, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with IPC as the representative of employees
of IPC's employer-members in the unit described above, by repudiating any valid
existing collective-bargaining agreement that it has executed, or in any other manner
interfering with efforts of IPC as the representative of its employer-members to
bargain with Respondent on behalf of employees in such unit.
(b) Threatening to refuse to furnish painters to Malone, or other IPC members,
unless they abandon IPC as their bargaining representative.
(c) Enforcing or giving effect to section 5, paragraphs 2(a), 3, and 3(a), and
section 3, paragraph 3, of the collective-bargaining agreement entered into on Feb-
ruary 12, 1965, between Respondent and Respondent PDCA, or to any like or
related clauses in any other collective-bargaining contract between Respondent and
an employer whereby such employer agrees, in substance, to cease doing business
with any other person.
(d) Threatening to refuse to furnish painters to Malone, or any other employer,
where an object of such threat is to force or require such employer to enter into
an agreement prohibited by Section 8(e) of the Act.
2. Take the following affirmative action designed to effectuate the policies of
the Act:
(a) Upon request for Respondent to bargain collectively with IPC as the exclu-
sive representative of all employees in the unit herein found appropriate regarding
the negotiation of a new collective-bargaining contract to succeed the one which
expired on April 1, 1966, and, if agreement be reached, to reduce it to writing and
sign it.
(b) Post in conspicuous places at Respondent's business offices and meeting hall,
including all places where notices to its members are customarily posted, copies of
the attached notice marked "Appendix A." Respondent PDCA shall mail to all
its members copies of the attached notice marked "Appendix B," with instructions
that such members post such notices at their places of business or at such other
places where notices to their employees are customarily posted.22 Copies of said
notices, to be furnished by the Regional Director of Region 28, after being signed
by Respondent and Respondent PDCA, shall be posted by Respondent and PDCA
members upon receipt thereof, and be maintained by them for 60 consecutive days
thereafter. Reasonable steps shall be taken by Respondent and Respondent PDCA
to insure that said notices are not altered, defaced, or covered by any other material.
(c) Notify the Regional Director of Region 28, in writing, within 20 days from
the receipt by Respondent and Respondent PDCA of a copy of this Decision, what
steps have been taken to comply herewith.23
IT IS FURTHER RECOMMENDED that unless on or before 20 days from the receipt
of this Decision and Recommended Order, Respondent or Respondent PDCA notify
the Regional Director that it will comply with the foregoing recommendations, the
National Labor Relations Board will issue an order requiring Respondent and
Respondent PDCA to take the action aforesaid.
n Only sections 1(c) and 2(b) of the Recommended Order are applicable to Respond-
ent PDCA. .
22111 the event that this Recommended Order is adopted by the Board, the words "a Deci-
sion and Order" shall be substituted for the words "the Recommended Order of a Trial
Examiner" in, the notice. In the additional event that the Board's Order is enforced by -a
decree of a United States Court of Appeals, the words "a Decree of the United, States
'Court of Appeals Enforcing an Order" shall be substituted for the words "a, Decision
and Order."
In the event this Recommended Order is adopted by the Board, paragraph 2(c)' shall
be modified to read: "Notify the Regional Director for Region 28, in writing, within
10 'days from the date of this Order , what- steps Respondents have taken to comply
herewith."
APPENDIX A
NOTICE TO ALL MEMBERS OF BROTHERHOOD OF PAINTERS, DECORATORS, AND
PAPERHANGERS OF AMERICA, LOCAL UNION- No. 823, AFL-CIO
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended; we hereby notify you that:
WE WILL NOT refuse to bargain collectively with Independent Painting Con-
tractors of New Mexico, as the representative of employees of its members,
PAINTERS, LOCAL UNION NO. 823 633
by repudiating or otherwise refusing to recognize the existence of any valid
collective-bargaining agreement which may be entered into.
WE WILL NOT restrain and coerce employers in their selection of Independent
Painting Contractors of New Mexico, or any other representative, for the pur-
poses of collective bargaining.
WE WILL NOT enforce or give effect to section 5, paragraphs 2(a), 3, and
3(a), and section 3, paragraph 3 of our existing collective-bargaining agreement
with Painting and Decorating Contractors of America, Albuquerque Chapter,
nor will we enter into, enforce, or give effect to any like or related clauses in
any other collective-bargaining agreement with other employers whereby it is
required that such employers cease doing business with any other employer.
WE WILL NOT restrain or coerce any employer by threatening to refuse to
furnish painters where an object thereof is to cause such employer to enter
into a contract containing terms prohibited by Section 8(e) of the Act.
WE WILL, upon request, bargain with Independent Painting Contractors of
New Mexico as the exclusive representative of employees in the bargaining
unit described below with regard to a new contract covering wages, hours, and
working conditions of employees of members of such employer organization.
The bargaining unit is:
All employees of employer-members of Independent Painting Contrac-
tors of New Mexico, excluding all other employees, guards, watchmen, and
supervisors as defined in the Act.
BROTHERHOOD OF PAINTERS, DECORATORS AND PAPERHANGERS
OF AMERICA, LOCAL UNION No. 823, AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
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.
If members have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board's Regional Office, 7011
Federal Office Building and U.S. Courthouse, 500 Gold Avenue, SW., Albuquerque,
New Mexico, Telephone 247-2583.
APPENDIX B
NOTICE TO ALL EMPLOYEES AND MEMBERS OF PAINTING AND DECORATING
CONTRACTORS OF AMERICA, ALBUQUERQUE CHAPTER
Pursuant to the Recommended Order of a Trail Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT enforce or give effect to section 5, paragraph 2(a), (3), and
3(a) and section 2, paragraph 3 of our existing collective-bargaining contract
with Brotherhood of Painters, Decorators and Paperhangers of America, Local
Union No. 823, AFL-CIO, or give effect to any like or related clauses in any
other collective-bargaining agreement with the aforesaid labor organization
whereby we agree, in substance, to cease or refrain from doing business with
any other employer.
PAINTING AND DECORATING CONTRACTORS OF AMERICA,
ALBUQUERQUE CHAPTER,
Employer.
Dated------------------- By-------------------------------- ----------
(Representative) (Title)
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.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, 7011
Federal Office Building and U.S. Courthouse, 500 Gold Avenue SW., Albuquerque,
New Mexico, Telephone 247-2583.