Precision Striping, Inc.

National Labor Relations Board - Board Decisions

Sep 21, 1979

245 N.L.R.B. 169 (N.L.R.B. 1979)

PRECISION STRIPING. INC.
Precision Striping, Inc. and Painters District Council
No. 5 of the International Brotherhood of Painters
and Allied Trades, AFL-CIO. Case 19-CA 10315
September 21. 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MFMBERS JNKINS
AND PENEII.()
On February 7, 1979, Administrative Law Judge
Richard J. Boyce issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.' and the General Counsel filed
a brief in support of the Administrative Law Judge's
Decision. The Charging Party also filed exceptions
and a brief in support thereof.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
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 with
certain modifications, and to adopt his recommended
Order, as modified herein.2
Although we agree with the Administrative Law
Judge's conclusion that Respondent violated Section
8(a)(5) and () of the Act by abrogating its collective-
bargaining relationship and contract with the Union,
we disapprove of his supporting rationale to the ex-
tent indicated below.
The facts are set forth in detail in the Decision of
the Administrative Law Judge. Briefly, however, Re-
spondent repudiated a collective-bargaining agree-
ment with the Union, covering its installation or con-
struction employees, on March 17, 1978, after taking
a poll which disclosed that four of the five employees
working under the contract did not desire continued
union representation.' The contract, which contained
a conventional 7-day construction industry union-se-
' Respondent has requested oral argument. This request is hereby denied
as the record, the exceptions, and the briefs adequately present the issues and
the positions of the parties.
I In par. I(d) of his recommended Order, the Administrative Law Judge
provided that Respondent shall cease and desist from "in any other manner"
interfering with. restraining, or coercing its employees in the exercise of the
rights guaranteed them under the Act. However, it is the Board's policy that
such an order is warranted only where a respondent is shown to have a
proclivity to violate the Act. or has engaged in such egregious or widespread
misconduct as to demonstrate a general disregard for the employees' funda-
mental statutory rights. Hickmor Foods. Inc, 242 NLRB 1357 (1979) We
find that the broad injunctive order issued against Respondent is not war-
ranted in this case, and we will modify the Administrative Ltaw Judge's
recommended Order and notice accordingly.
I As noted by the Administrative aw Judge, it is not contended that the
poll was conducted in an unlawful manner
curity clause, was to have been effective by its terms
from June 1. 1977, until May 31, 1980, and was a
successor to a similar agreement which had been in
force from June , 1974, until Mav 31, 1977. Respon-
dent and the Union had entered into their original
bargaining relationship pursuant to Section 8(f) of
the Act. which permits an employer, such as Respon-
dent, engaged primarily in the construction industry.
to make a "pre-hire" agreement with a union cover-
ing employees engaged in that industry before the
Union has attained majority status.
Respondent contends that it was justified in refus-
ing to honor its contract with the Union in midterm,
because such an 8(f) agreement is not enforceable un-
der the Supreme Court's decision in N.L. R. RB. v. Local
Union No. 103, International Association of' Bridge,
Structural & Ornamental Iron Workers. AFL-CIO
[Higdon Contracting Co.].4 However, the Court there
noted that it was "undisputed that when the union
successfully seeks majority support, the prehire agree-
ment attains the status of a collective-bargaining
agreement executed by the employer with a union
representing a majority of the employees in the
unit." 5 Consistent with this principle, the Board has
decided that, where a union, originally recognized un-
der Section 8(f), subsequently achieves status among
employees who make up a permanent, stable work
force6 or among employees employed at a particular
jobsite.7 "the employer is then under the statutory
duty to recognize and bargain with the union as the
employees' exclusive representative."' Further, where
there is a collective-bargaining agreement in effect be-
tween an employer and a union which is the statutory
bargaining agent for the employees covered by the
contract, that union enjoys an irrebuttable presump-
tion of majority status for the duration of the agree-
ment.9
In the instant situation, Respondent employed a
permanent complement of workers, who moved from
site to site.'0 When Respondent polled it employees
and withdrew recognition from the Union in March
1978, four of the five employees were union members
in good standing. It therefore follows that the Union,
possessing majority support from Respondent's em-
ployees at that time, was their collective-bargaining
representative as defined in Section 9(a) of the Act.
and was entitled to the irrebuttable presumption of
'434 U.S. 335 (1978).
Id at 350.
Cf Dee Cee Floor Covering. Inc., 232 NLRB 421 1977). Chairman Fan-
ning dissenting in part. where the Board distinguished situations in which a
construction industry employer maintains "a regular complement of employ-
ees." from those in which the employer hires on a project-hb-project basis.
7See. e.g.. Dvis Industries. Inc., 232 NI.RB 946 (1977).
IId at 952.
Herton Furniture Conpany. III NLRB 342 (1955)
iw Respondent had employed the same five individuals since September
1977.
245 NLRB No. 34
169
I)F (CISIONS OF NATIONAL L.ABOR RELATIONS BOARD
majority status flowing from a valid labor agreement
in such circumstances. Respondent thus did not have
the right to repudiate its contract with the Union, or
to poll its employees on the issue of continued union
representation, irrespective of whether it had a rea-
sonable doubt, based upon objective considerations.
of the Union's majority status. We therefore find en-
tirely inapposite, and do not adopt, the Administra-
tive Law Judge's discussion regarding whether Re-
spondent's poll was prompted by a reasonable doubt
of the Union's majority support grounded in objec-
tive criteria.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its order the recommended Or-
der of the Administrative Law Judge. as modified be-
low, and hereby orders that the Respondent,
Precision Striping. Inc., Everett, Washington, it offi-
cers, agents, successors, and assigns, shall take the ac-
tion set forth in the said recommended Order, as so
modified:
I. Substitute the following for paragraph l(d):
"(d) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them under Section 7 of the
Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPI.OYEES
POSTED BY ORDER OF THE
NATIONAI. LABOR REI.ATIONS BOARD
An Agency of the United States Government.
WE WILL NOT refuse to abide by the collective-
bargaining contract we entered into on June 23,
1977, with Painters District Council No. 5 of the
International Brotherhood of Painters and Allied
Trades, AFL-CIO.
WE WILL NOT refuse to recognize and bargain
collectively, concerning rates of pay, wages,
hours, and other terms and conditions of em-
ployment, with the Union as the exclusive repre-
sentative of the employees in this appropriate
unit:
All installation or construction employees in-
cluding working foremen, but excluding office
clerical employees, confidential employees,
professional employees, automotive mechan-
ics, guards, and supervisors as defined in the
National Labor Relations Act.
WE Wlll. NI withhold contributions to the
pension and health and welfare trusts as pre-
scribed by the above contract, or otherwise de-
part from the terms of that contract, without first
reaching agreement with the Union to do so.
Wi WtIL.. NOI in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them under
Section 7 of the Act.
WE Wtli., upon request, recognize and bargain
with the Union concerning the employees in the
above unit, as required hb the contract entered
into on June 23, 1977.
WE wIlt.., upon request. rescind any or all uni-
lateral changes made after our abrogation of our
bargaining relationship with the Union on or
about March 17, 1978, in any terms or condi-
tions of employment of employees in the above
unit: and wE onwilL honor and give full retroac-
tive effect to the contract that was abrogated at
the same time, if so requested.
WE WI.L, upon request. make all contribu-
tions to the pension and health and welfare trusts
as prescribed by the above contract, retroactive
to the time of its abrogation on or about March
17, 1978, with interest on all hack payments.
PRE(CISION SIRIPIN