San Diego County Chapter Painting and Decorating Contractors Association, Inc.

National Labor Relations Board - Board Decisions

Oct 29, 1969

179 N.L.R.B. 432 (N.L.R.B. 1969)

432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
San Diego County Chapter Painting and Decorating
Contractors Association , Inc., a Corporation, et at.
and Orange Belt District Council of Painters No.
48, et al . Case AO-116
October 29, 1969
ADVISORY OPINION
A petition and an amended petition was filed with
the National Labor Relations Board by Orange Belt
District Council of Painters, No. 48, herein called
the Petitioner, for an Advisory Opinion pursuant to
Sections 102.98 and 102.99 of the Board's Rules and
Regulations, Series 8, as amended. Responses to the
petition and amended petition were filed by the
following four employer associations, also known as
the Four Chapters, San Diego County Chapter
Painting and Decorating Contractors Association,
Inc.; Orange County Chapter Painting and
Decorating Contractors Association, Inc.; Desert
Chapter Painting and Decorating Contractors
Association of Palm Springs, and Tri-County
Chapter of Painting and Decorating Contractors
Association, Inc. Previously, on May 18, 1964, the
Board issued two Advisory Opinions involving the
Petitioner, the Four Chapters and a fifth Chapter,
called Tri-Associated Chapter.'
In pertinent part the petition and amended petition,
the response and amended response allege, and the
aforementioned earlier Advisory Opinion stated, as
follows:
I A proceeding has been instituted by the Four
Chapters in the Superior Court of the State of
California, for the County of San Diego, herein
called the State Court, Case 312 544, against the
Petitioner, certain individuals, and the Southern
California Painting and Drywall Association, herein
called the Drywall Association. The complaint
alleges that the Petitioner and Drywall Association
entered into a "sweetheart" agreement, allegedly
illegal under Section 8(a)(2) of the Act, and seeks,
in part, to have the State Court restrain the
Petitioner from providing painters under that
agreement.
2. Thereafter, the United States District Court for
the Southern District of California, herein called the
Federal District Court, to which the proceeding in
the State Court had been removed, remanded the
case to the State Court on the ground that it did
,,not have jurisdiction over the within action."
3. Each of the Four Chapters is an employer
association within the meaning of the National
'Painting and Decorating Contractors Association of Orange County.
Inc. a Corporation . et a! and District Council of Painters No 48. 147
NLRB-1 and 4
Labor Relations Act and is composed of members
who are California employers engaged in the
building and construction industry, primarily as
painting, decorating, and drywall contractors The
Chapters were formed and exist for the principal
purpose of representing their members in negotiating
collective bargaining agreements with the Petitioner,
a labor organization within the meaning of the Act.
4. The Four Chapters allege in the State Court
complaint that "[h]istorically since 1961 and prior
thereto, [the Four Chapters] individually or in
aggregate have negotiated collective bargaining
agreements with either the [Petitioner] or prior to
1961 with the individual local unions which now
comprise [the Petitioner]" and that "there is a
present and existing agreement between [the Four
Chapters] and [the Petitioner] which will expire on
or about June 30, 1969 " From these allegations as
well as the earlier Advisory Opinions, it is
reasonable to assume that there has been since 1961
collective bargaining between the Four Chapters and
the Petitioner on a multichapter, multiassociation
basis and that the latest agreement, which
presumably expired June 30, 1969, was also
multichapter, multiassociation in character.
5. In addition to the earlier unfair labor practice
charges alleging violations of the Act filed on behalf
of, and against, the Petitioner and the Four
Chapters (detailed in the aforementioned Advisory
Opinions), charges were also filed on August 18,
1969, in Cases 21-CB-3440 and 21-CA-8739,
alleging violations of Section 8(b)(3) and 8(a)(1) and
(2) of the Act against the Petitioner and the Drywall
Association, respectively. While the Four Chapters
admit the filing of these most recent charges, they
assert that the charges allegedly have been filed by
the secretary to the Petitioner's attorney and
therefore are a sham and of no legal significance. In
rendering its jurisdictional Advisory Opinion herein,
the Board has not considered the allegations of these
charges.
6. The petition alleges and the Four Chapters
admit the following interstate commerce data for
the Four Chapters and their constituent employer
members:
The aforesaid employers' associations consist of
employers engaged in the building and
construction industry and primarily those engaged
in the business of painting and drywall
application, said associations represent their
employer members for the purpose of collective
bargaining. During the past calendar year, insofar
as the employer members of said associations are
concerned, the dollar volume of performance of
services to customers outside the State of
California exceeded $50,000, the dollar volume of
sales and performance of services to firms which,
in turn, made sales to customers outside the State
of California, exceeded $50,000, the dollar volume
of purchases of goods and services from outside
the state of California exceeded $50,000, the
dollar volume of purchases from firms which, in
179 NLRB No. 70
SAN DIEGO PAINTING & DECORATING CONTRACTORS ASSN.
turn, purchased those goods from outside
California, exceeded $50,000, the total volume of
all sales and performances of services of the
contractors represented by such associations
exceeded $500,000, the dollar volume of national
defense work done during the past calendar year
exceeded $2,000,000, said work being done on
behalf of the Defense Department directly or
indirectly.
7. The State Court has made no findings with
respect to the aforesaid commerce data.
8. Except for the unfair labor practice charges in
Cases 21-CB-3440 and 21-CA-8739 hereinabove
mentioned , there is no representation or unfair labor
practice proceeding involving the same labor dispute
now pending before the Board.
On the basis of the above , the Board is of the
opinion that:
1. Because there has been since 1961 collective
bargaining between the Petitioner , on the one hand,
and the Four Chapters , on the other, upon a
multichapter , multiassociation basis (the latest
multichapter , multiassociation agreement having
presumably expired on June 30 , 1969), the Four
Chapters should be treated as a single enterprise for
jurisdictional purposes and the combined commerce
operations of all members of the Four Chapters
must be considered in determining whether the
Board would exercise jurisdiction in regard to the
business of any single member of any one of these
chapters who participate in or intend to be bound by
group bargaining.'
2 The employer members of the Four Chapters
'Siemons Mailing Service , 122 NLRB 81, 84, see cases cited in fn 1,
supra
433
are nonretail California enterprises engaged in the
building and construction industry, primarily as
painting, decorating, and drywall contractors.
3. The facts presented show that the members of
the Four Chapters have a combined direct outflow
of more than $50,000, a combined indirect outflow
of more than $50,000, a combined direct inflow of
more than $50,000 and a combined indirect inflow
of more than $50,000.
4. Any one of these four commerce factors
satisfies the Board's discretionary nonretail
jurisdictional requirements, which are applicable to
the employers concerned herein.'
5. It follows that the Board would assert
jurisdiction with respect to the operations of any
single member of any one of the Four Chapters.
6 It also follows that the Board would assert
jurisdiction with reference to the business of any one
of the Four Chapters.
Accordingly, the parties are advised under Section
102.103 of the Board's Rules and Regulations,
Series 8, as amended, that upon the allegations
submitted herein the Board would assert jurisdiction
as to the operations of any one of the Four
Chapters, or any single member of any one of these
Chapters, with-respect to disputes cognizable under
Sections 8, 9. and 10 of the Act.4
'Siemons Mailing Service , supra, 85
The Four Chapters argue that the Petitioner should be collaterally
estopped from raising herein the jurisdictional issues which allegedly were
determined by the Federal District Court We find no merit in the
argument The Federal District Court merely decided that it did "not have
jurisdiction over the within action " There is no showing that the Federal
District Court had determined the question of the Board 's jurisdiction over
the Four Chapters and their individual members with respect to matters
cognizable under the Act