W. F. Mosley Contracting, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1970

184 N.L.R.B. 14 (N.L.R.B. 1970)

14 DECISIONS OF NATIONAL
W. F. Mosley Contracting , Inc. and Brotherhood of
Painters , Decorators & Paper Hangers of Amer-
ica, AFL-CIO, Local Union 107. Case
15-CA-3600
June 30, 1970
DECISION AND ORDER
BY MEMBERS FANNING, MCCULLOCH, AND JENKINS
On April 7, 1970, Trial Examiner Jerry B. Stone
issued his Decision in the above-entitled proceed-
ing, finding that the Respondent had not engaged in
the alleged unfair labor practices and recommend-
ing that the complaint be dismissed in its entirety,
as set forth in the attached Trial Examiner's Deci-
sion. The General Counsel filed timely exceptions
and a brief, and the Respondent filed a memoran-
dum in reply.
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
powers in connection with this case to a three-
member panel.
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
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in the case, and'hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that the complaint herein be, and it hereby
is, dismissed in its entirety.
LABOR RELATIONS BOARD
The basic issues are (1) whether the Respondent
belonged to a multiemployer bargaining association
duly authorized to enter into binding collective-bar-
gaining agreements on his behalf and (2) whether
Respondent has violated Section 8(a)(1) and (5) of
the Act by refusing to sign a collective-bargaining
agreement allegedly agreed to by such multiem-
ployer bargaining association. There are other is-
sues but the above are the basic issues involved
herein, and the disposition of these issues as in-
dicated hereinafter removes the necessity of resolv-
ing other issues.
All parties were afforded full opportunity to par-
ticipate in the proceedings, and the Respondent
and the General Counsel have filed briefs which
have been considered.
Upon the entire record in the case and from my
observation of witnesses, I hereby make the follow-
ing:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER[
W. F. Mosley Contracting, Inc., a corporation
chartered under Mississippi law, is engaged in
painting and general contracting. During 1968, W.
F. Mosley Contracting, Inc., purchased from Hand-
sboro Glass and Supply Company, Inc., of Gulfport,
Mississippi, goods valued in excess of $50,000. Said
goods had been purchased and received from
points outside the State of Mississippi by Hands-
boro Glass and Supply Company, Inc. During the
fiscal year 1969, ending on October 31, 1969, W.
F. Mosley Contracting, Inc., purchased from
Handsboro Glass and Supply Company, Inc.,
goods and materials valued in excess of $50,000.
Said goods were purchased and received by Hands-
boro Glass and Supply Company, Inc., from places
outside the State of Mississippi.
Based upon the foregoing, it is concluded and
found that the Respondent is, and has been at all
times material herein, an employer engaged in com-
merce within the meaning of Section 2(6) and (7)
of the Act.
II. THE LABOR ORGANIZATION INVOLVED2
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JERRY B. STONE, Trial Examiner: This proceeding
under Section 10(b) of the National Labor Rela-
tions Act, as amended, was tried pursuant to due
notice on November 6 and 7, 1969, at Gulfport,
Mississippi.
The charge in this case was filed on July 25,
1969. The complaint in this case was issued on Sep-
tember 30, 1969. An amendment to the complaint
was issued on November 6, 1969.
184 NLRB No. 2
Brotherhood of Painters , Decorators & Paper
Hangers of America, AFL-CIO, Local Union 107,
the Union, is, and has been at all times material
herein, a labor organization within the meaning of
Section 2 (5) of the Act.
' The facts are based upon stipulations of the parties and credited
testimony of Mosley and a fair inference therefrom
' The facts are based upon the pleadings and admissions therein
W. F. MOSLEY CONTRACTING, INC. 15
III. THE ALLEGED UNFAIR LABOR PRACTICES
The Facts3
The principal issue in this case is whether the
Respondent was a member of an association
authorized by him to negotiate and to bind him
with respect to contracts negotiated. Resolution of
this issue in this case disposes of the necessity of
resolving the other issues.
The facts are relatively clear. In early 1967,
Brotherhood of Painters, Decorators & Paper Hang-
ers of America, AFL-CIO, Locals 311 and 107
merged. Thereafter efforts were made to organize
and to get contractors in the area to bargain jointly
or to abide by an area-type contract.
Around March 31, 1967, union representatives
had a meeting with some contractors doing business
in the Gulfport area . Among the contractors were a
man named Bailey , a member of the Painting and
Decorating Contractors of America in another city,
Mosley (the Respondent herein), Wimpee, and
Brosh. The union representatives and the contrac-
tors were of the opinion that a contractors' associa-
tion should be formed. Thereafter Union Represent-
ative Stokes contacted Lennie Hijuelos, regional
vice president and secretary-treasurer of the Tri-
State Council of Painting and Decorating Contrac-
tors of America in New Orleans. Stokes told
Hijuelos that a group of contractors in the Gulfport
area were interested in forming a chapter (of
PDCA) and suggested that Hijuelos contact W. F.
Mosley. Hijuelos wrote Mosley, referred to what
Stokes had related, suggested a meeting between
Mosley (and the others), and requested a time and
place for such meeting.
The record is not clear how the next events
shaped up. In any event either 5 or 6 days later
(April 11) Mosley and Hijuelos met in Mosley's of-
fice in Gulfport. Hijuelos and Mosley discussed the
number of contractors who were on the Gulf Coast
and other related matters. Hijuelos explained the
ground rules of PDCA and that for a charter a
chapter would have to have five active members.
Hijuelos and Mosley discussed five prospective ac-
tive members. Either on or around April 11, or
thereafter, the other four prospective contractor
members of PDCA were contacted.4
As a result of the foregoing, Hijuelos met with
Mosley and three or four of the other contractors
who were prospective members of the proposed
chapter on April 27, 1967. Hijuelos discussed with
the contractors the purpose of PDCA, its activities,
what a chapter was, and how to form a chapter.
Hijuelos pointed out that the purpose of PDCA was
concern with labor organizations and with labor
negotiations.
Hijuelos told the contractors that they would
have to elect officers and keep their dues paid in
order to keep the proposed association (chapter)
active. Hijuelos told the contractors that the or-
ganization was for better relationship between the
Union and the contractors, that it would bring the
contractors together, and that they could discuss
their problems or anything else they decided.
Hijuelos told the contractors that the association
would give them a better bargaining position.
Hijuelos explained the various activities and
publications of PDCA and showed the contractors
samples of the estimating guide, the yearbook, the
test book, and similar publications.
Apparently the Union and the contractors had
previously set a bargaining session for the night of
April 27, 1967. Hijuelos was asked by the contrac-
tors to remain for the bargaining sessions, to sit in
the bargaining sessions with them, and to review
the bargaining sessions with them.
On the night of April 27, 1967, Hijuelos, four of
the referred-to contractors,,' and the Union met to
discuss a bargaining contract. At this session, one
of the contractors told Mosley to act as chairman of
the contractor group. During the session the Union
presented a written contract proposal, and wages,
hours, and working conditions of the employees of
the employers were discussed. After the session
Hijuelos took a copy of the proposed contract back
to New Orleans with him and reviewed it. On April
29, 1967, Hijuelos, by letter to Mosley, sent notes
on suggested revisions, copies of a New Orleans
contract, and a proposed supplemental agreement
for residential work.,' Hijuelos requested that if
Mosley's group decided to form a chapter of PDCA
on Monday that names, addresses, and checks (for
dues) be submitted in order that the prospective
members might be placed on the national roles.
Apparently around May 1, 1967, some of the
referred-to contractors met and discussed the con-
tract proposal, Hijuelo's suggestions, and the
PDCA. Terry gave Mosley a check for Terry's
PDCA dues. It is not clear when the other three
contractors submitted their dues or how they were
submitted to PDCA. It is clear that dues for the
referred-to five contractors were submitted to
Hijuelos by late May 1967.
Apparently around this time the contractors
desired deleted from the Union's proposal provi-
sions relating to the limitation of roller size and to
the industrial rate of pay for the use of power
equipment. It appears that the contractors' position
was communicated to the Union. It also appears
that the Union decided to accept a contract with
the deletions proposed by the contractors. It ap-
pears that shortly before May 11, 1967, Mosley and
Wimpee spoke to each other and were in agree-
' The facts are based upon a composite of the credited aspects of the
testimony of Hijuelos , Reed , Jordan , Terry Wimpee, and Mosley, the ex-
hibits and stipulations in the record , and fair inferences based upon the
foregoing and the logical consistency of all of the facts
4 The prospective contractor members were Mosley, Terry, Wimpee,
Langford, and Jordan
' It appears that Langford was not present
° It is not clear whether the proposed supplemental agreement related to
the New Orleans contract or to the proposed Gulfport contract
16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment as to the proposed contract. It also appears
that Mosley and Wimpee checked with two of the
other contractors. These two indicated their agree-
ment to the proposed contract terms. The overall
evidence tends to reveal that Langford was the one
contractor not specifically contacted at the time.
The overall evidence tends to reveal that Langford
was known by all to be willing to go along with the
consensus of the others as to contract terms.
Thereafter Mosley advised Reed, of the Union, of
the contractors' willingness to execute the proposed
contract, as amended. Reed secured from Mosley
the proposed contract, as amended, and had the
same typed up. Thereafter, on or around May 11,
1967, Reed took the typed copy of the contract to
the individual contractors, some of whom were
members or later became members of the PDCA,
and secured some of their signatures to said con-
tract.7
The referred-to contract contained, inter alia, the
following provisions:
SCALE OF WAGES AND WORKING
CONDITIONS
Articles of agreement made and entered into
this the day of , 196 , between , here-
inafter referred to as the "Employer", and
the Brotherhood of Painters, Decorators and
Paperhangers of America, Local Union No.
107, AFL-CIO, of Biloxi , Mississippi,
hereinafter called the "Union", for and behalf
of the Employees now employed or hereinafter
to be employed by the Employer and collec-
tively designated as Employees.
In consideration of the mutual covenants
and obligations hereinafter assumed by each of
the Parties hereto and to each other, said
Parties do hereby agree and bind themselves as
follows:
ARTICLE I. HIRING PROCEDURE:
Section C. In the employment of workmen
for all work covered by this agreement the fol-
lowing shall govern:
1. The Union shall establish and maintain
open and non-discriminatory employment list
of workmen of this particular trade, including
journeymen painters or indentured apprentices
previously employed by Employers in the
multi-employer unit included in this agreement
and non-member workers who may make ap-
plication for a place on the list.
*
3. The Union or its agent will furnish each
such required and competent workman en-
tered on said list to the Employer by use of a
written referral by the Union to the workman
dispatched, and will furnish such workman
from the Union's open listing in the manner
and order as follows:
(b). Workmen who have been employed by
Employers within the unit covered by this
agreement during the previous ten (10) years.
*
ARTICLE II. APPRENTICES:
*
Section 2. When an Employer, because of
working conditions, is unable to provide the
diversity of work experience necessary for the
apprentice to become a well rounded
craftsman, the joint apprenticeship committee
is empowered to rotate the apprentice in order
to provide the necessary experience. When an
Employer loses an apprentice in this manner,
he hereby agrees to replace him within sixty
(60) days.
Section 3. All Employers signatory to this
agreement shall contribute monthly two cents
(.02) per hour of the hours performed by jour-
neymen in his employ. Monies to be paid to
the treasurer of the Joint Apprentice Commit-
tee.
ARTICLE VI.
Section 1. A Joint Trade Board will be ap-
pointed by the contracting parties immediately
upon signing this agreement . All matters of dis-
agreement between the parties hereunto must
be submitted to the Joint Trade Board for deci-
sion . This Board to meet within forty-eight
(48) hours after the request is presented in
writing to the Secretary of the Board.
*
I The dates on the contract appear to have been added months after the was confusion as to when the contract was signed At one point he testified
date of execution I find it hard to believe that the contract was dated June that the contract was signed on May 11, 1967 Considering this and the log-
l, 1968, by mistake in 1967 Rather I am convinced that in 1968 , or more ical consistency of all of the evidence, I am persuaded the contract (1967)
likely in 1969, this date was inserted Reed testified to the effect that there was signed on May 11, 1967
W. F. MOSLEY CONTRACTING, INC.
Section 3 . The Joint Trade Board shall have
the power to interpret this agreement and said
Board , as well as each of the Parties hereto,
shall have the power to enforce this agreement,
and the decision of said Board shall be final
and binding to all Parties of this Agreement.
Section 4 . The Joint Trade Board shall be
composed of three ( 3) Contractors signatory
of this agreement , and three ( 3) journeymen
members of the Painter 's Local Union No.
107.
Section 5 . In all matters coming before the
Board for decision a majority vote of all mem-
bers of the Board will rule. In the case of a tie
vote , or inability to reach a decision , the case
shall be submitted to the National Trade Joint
Board and their decision is final.
Section 6 . The Board shall elect a President
and a Secretary -Treasurer . The Board shall be
responsible to the Parties of this agreement for
all monies turned over to it.
Section 7 . The Joint Trade Board shall have
authority to discipline violators of this agree-
ment by cancellation of this agreement, and
fining violators of this agreement . All fines to
be paid to Secretary -Treasurer of Joint Trade
Board , and said fines to be used in the opera-
tion of Trade Board.
The aforesaid contract did not include language
that specifically referred to PDCA in its body or at
the places for signatures . At the places for signa-
tures was an indicated place for " Employer " signa-
tures.
On or around May 30 , 1967, the following
Declaration of Trust was executed . Respondent
Mosley was not a signatory thereto nor was this
trust executed purportedly by someone for the
"contractors association."
1 June 1967
DECLARATION OF TRUST APPROVED BY
THE NATIONAL JOINT PAINTING AND
DECORATION APPRENTICESHIP AND
TRAINING COMMITTEE
THIS AGREEMENT AND DECLARA-
TION OF TRUST, entered into as of the 1st
day of June , 1967, in the city of Biloxi , State of
Mississippi , by and between Local Union No.
107 of the Brotherhood of Painters, Decora-
tors and Paperhangers of America ( hereinafter
called the ` Union ') and the Gulf Coast Chapter
of the Painting and Decorating Contractors of
America , Inc., (hereinafter called the 'CHAP-
TER'), and
EMPLOYER UNION
TRUSTEES TRUSTEES
s After the contract was signed , the Union appears to have signed up sub-
stantially all of Mosley's employees as members The facts indicate that at
the most only five of Mosley's employees were union members prior to
17
who, with their successors designated in the
manner hereinafter provided for, are
hereinafter called the `TRUSTEES'.
WHEREAS, the Union and the Chapter
have heretofore entered into a Collective Bar-
gaining Agreement dated the 1st day of June,
1967, which, by some of its terms, require
specific contributions by all employers who are
parties thereto, for the purpose of financing
the establishment and maintenance of a Trust
for the operation of a program or programs
providing for the training of apprentices and
the retraining or refresher training of jour-
neymen, and it is the desire of the Union and
the Chapter to create an appropriate Trust for
the administration of such training programs.
In Section 7 of ARTICLE VII - in the third
line, after the word "in" shall read as follows:
When a general contractor indicates his
desire to perform work normally sub-con-
tracted, he will be required to show, affirm-
atively, that such work is ordinarily per-
formed by him and that his existing or-
ganization includes capable personnel and
suitable equipment for the work. Members
of this Brotherhood shall not work for any
general contractor who cannot so qualify.
New Section 8 to ARTICLE VII to read:
The regulation of tools contained in this
Agreement shall not be interpreted or en-
forced in a way to prevent their use where
required, or necessary, to perform an ac-
ceptable job with specified coatings and
where all proper safety regulations are en-
forced.
/s/ Charles B. Reed
Contractors Assn. Local Union
and/or other Representative
May 30, 1967 May 30, 1967
Date Date
/s/ C. A. Langford Date:
/s/ Clarence Jordan Date:
/s/ J. W. Wimpee Date:
/s/ R. C. Brosh Date:
/s/ Jim Young & Son Date:
/s/ Aity Company
There were other documents executed as to wage
statements around this time. These documents
reflect individual signatures but nowhere, even
where space indicated therefor, reflects a signature
of an agent purportedly for a "contractors associa-
tion. "8
After such meeting as previously set forth and
occurring in April and May 1967, there was no
further meeting of the referred-to Gulf Coast
Chapter of Painting and Decorating Contractors of
this time The record is imprecise as to this or as to Mosley's number of
employees at the time
18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
America in 1967 or 1968. As indicated, dues were
paid by Clarence Jordan, Langford Ptg. & Dec.
Service, W. F. Mosley, Gordon Terry, and Wimpee-
Godwin, Inc., in May 1967. Thereafter these dues
were forwarded in late May or June 1967 to the na-
tional association . A listing of the aforesaid was in-
cluded in the national yearbook of 1967 as being
the Gulf Coast chapter. No officers were elected
for said chapter, no charter was issued to said
chapter, no constitution nor bylaws were adopted
by said chapter, and as indicated no formal
meetings of said chapter were held after May
1967.9 No dues were paid thereafter by such mem-
bers, except by Wimpee who paid dues to the na-
tional association in early 1969. Furthermore, there
is no evidence to reveal that membership in the
Painting and Decorating Contractors Association,
in and of itself, constituted authorization by respec-
tive members to such association to negotiate on
the members' behalf or to enter into binding collec-
tive-bargaining agreements on behalf of such mem-
bers.
Around November 1968, Reed received some
moneys from a PDCA contractor, not a member of
the Gulfport group, in connection with the joint ap-
prenticeship program. Reed established an account
for "Gulfcoast Chapter PDCA & Local Union 107
Joint Apprenticeship Program" and told Mosley
that he had done so. Mosley told Reed that this was
all right.10
Around April 1969, Reed spoke to Mosley and to
some of the other contractors about negotiations
for a new contract. There is conflict as to whether
Reed sent written letters concerning negotiations
for a new contract to the contractors. Reed testified
to the effect that he sent "written letters" to con-
tractors, return receipt requested, as to such
negotiations around May 9, 1969, and that his cop-
ies of such letters were lost in the hurricane of
1969 in that area. Mosley denied receipt of such
letters. Mosley further testified as follows as to how
the May 11, 1969, bargaining session was set up.
Q. (By Mr. Jolly) Did he make any request
of you?
A. Yes.
Q. What was that request?
A. He asked me if I would call Johnny Wim-
pee and Gordon Terry and he said he knew he
couldn't get hold of Clarence, and to call them
and see what their feelings were on it.
Q. What did you say when he asked you to
do that?
In fact the meetings in April or May 1967 cannot be said to have been
formal meetings
10 Based upon Mosley's credited testimony , Reed testified to the effect
that he asked Mosley what to do before he established the account Reed as
a witness, at various points, appeared to be building his case As an exam-
ple, he tried to establish that the Federal Mediator contacted the contrac-
tors for the June 27, 1969, meeting, when in fact, as per his prior affidavit,
he had done the contacting I credit Mosley 's version of these events over
MR. SYKES: Object as self-serving.
TRIAL EXAMINER: Overruled.
A. I told him I would.
Q. (By Mr. Jolly) Did you do it?
A. Yes.
Q. Did you hear from Mr. Reed again?
A. Yes, sir.
Q. How long after his first call to you was it
until you heard from him again?
A. I am not for sure . But my next contact
with him was the first negotiating session, I
guess you would call it, I had at the Admiral
Benbow.
Jordan testified to the effect that his first
knowledge of the 1969 negotiations was when he
received a copy of the proposed contract which had
been left at a paint store for him. Terry testified to
the effect that he first heard of the 1969 proposed
agreement prior to the May 11, 1969, negotiation
meeting when Reed brought him a contract
proposal. The General Counsel did not use Wimpee
as a witness on the grounds that his testimony
would be cumulative . The Respondent used Wim-
pee as a witness but he was not questioned on this
point.
Considering Reed's demonstrated propensity to
build his case and all of the foregoing, I conclude
and find that the May 11, 1969, session was set up
by oral communications and not by "written" let-
ters. I discredit Reed's testimony to the effect that
he sent "written" letters, return receipt requested,
to 11 contractors."
On May 11, 1969, the Union (Stokes, Reed, and
Simmons) met at the Admiral Benbow Inn with
contractors Wimpee, Terry, and Mosley for
negotiation of a new contract. The meeting lasted
15 minutes. The Union presented its proposed con-
tract which contained proposed wage increases and
other changes. Wimpee and Terry told the Union
that they believed the employees were entitled to
raises but that the Union was asking for too much
money. Mosley offered to sign and extend the
present contract terms for 1 year. The Union told
the contractors that it would take their opinions
back to the membership for approval.
Before, after, and during this May 11, 1969,
negotiation meeting , as indicated, Reed, for the
Union, distributed copies of the proposed contract
to all contractors who had signed the 1967 bargain-
ing agreement . When Reed presented the proposed
contract, after May 11, 1969, to Langford, Lang-
ford expressed his opinion as to the contract and
apparently indicated that he would go along with
Reed 's version
" As in all credibility determinations, the determination must be made
upon the objective facts, testimony , and demeanor of witnesses in the trial
It is not inconceivable that Reed sent written letters with return receipt
requested and that all other witnesses have honestly forgotten such letters
However , sufficient evidence to establish the sending of such written letters
has not been presented in this case , nor has Reed been presented as a wit-
ness deserving credit on such point
W. F. MOSLEY CONTRACTING, INC. 19
the "consensus" of the others. Jordan, after receiv-
ing his copy of the proposed contract, marked upon
the proposed contract his opinion as to the terms
therein, and returned the proposed contract to
Reed's office.
Thereafter the Union at a union meeting in-
formed its membership of the contractors' opinions.
The union membership at such meeting voted to re-
ject the contractors' proposals and instructed the
union to take the original union proposal back for
negotiation.
It appears that Reed then notified Mosley and the
other contractors that the union had rejected their
proposals. A meeting was then set for May 26,
1969. Apparently a short time before May 26,
1969, Mosley, Wimpee, and Terry met at Mosley's
office to discuss the contract proposals.12 It appears
in general effect that Wimpee, Terry, and Jordan
were willing to give the employees a 10-cent raise
across the board and that Mosley's position was
somewhat similar except that he would not give a
raise for residential work.
On May 26, 1969, the Union and contractors
Mosley, Wimpee, and Young met at the Admiral
Benbow for negotiations. Mosley's expressed posi-
tion was (1) no raise-residential work, (2) 10
cents an hour raise every 6 months-commercial
work, (3) hazardous pay-same as commercial, and
(4) industrial pay-15 cents an hour increase over
2 years. The contractors were against the Union's
contract proposals concerning showup time and
roller limitation. The contractors were for 20 cents
an hour night pay differential as compared to the
Union's proposal of 40 cents an hour. Wimpee's
position was that he would give 10 cents an hour in-
crease in all rates and would accept the Union's
proposed structural steel rate. The evidence reveals
in this respect that Wimpee employed employees
mainly for commercial work. Ninety percent of the
residential work was performed by Respondent
Mosley.
After the May 26, 1969, negotiations, Reed saw
Terry, who told Reed that he was willing to give
wage increases. Reed also spoke to Jordan and
asked him what he thought about the negotiations.
Jordan's specific reply is not revealed by the
record.
On May 27, 1969, Reed went by Mosley's office
and copied from Mosley's copy of the proposed
contract notations made by Mosley as to positions.
On May 27, 1969, Reed sent a letter to the Federal
Mediation and Conciliation Service requesting their
aid in respect to negotiations.
It13 appears that Reed, after the May 27 meeting
with Mosley, had a union meeting and reported the
status of the negotiations and the various positions
of the contractors. It further appears that the union
membership instructed Reed to continue negotia-
tions. It appears that Reed contacted Mosley again
in early June to tell him in effect that the Union re-
jected the contractors' proposals and to ask Mosley
to see if the contractors would change their posi-
tions. Mosley told Reed in effect that he was having
another meeting with the other contractors.
Thereafter in early June 1969, Wimpee, Mosley,
Terry, and Jordan again met in Mosley's office and
discussed in effect that the Union would not go for
their last positions. It appears that the foregoing
contractors continued their previously indicated
positions and also discussed the fact that the cur-
rent wages would continue until the termination of
the present contract. It also appears that Reed later
telephoned Mosley to ascertain whether there had
been any changes. Mosley reported the contractors'
positions, which in effect constituted no change.
Reed requested that Mosley send him a reply in
writing for his use in telling the members.
Thereafter on June 13, 1969, Mosley sent Reed the
following letter:'"
At this time I feel that there is no further
need for negotiations on the new wage agree-
ment. As we previously stated the first offer
that we submitted to you still stands.
Looking forward to hearing from you on the
matter,
Reed telephoned Mosley later to tell him that the
Union could not go for the contractors' proposals.
Later Reed was contacted by Dean, of the Federal
Mediation Service, as to a meeting. Dean, ap-
parently busy with other problems also, requested
Reed to notify the contractors of the meeting. Reed
notified Mosley of the proposed meeting.
On June 27, 1969, the Union's representatives,
Federal Mediator Dean, and Mosley met at the
Holiday Inn in Biloxi , Mississippi. At this meeting
the parties discussed the contract proposal in a
joint session . After such discussion Dean separately
talked to the Union and to Mosley. In composite ef-
fect the Union agreed to give up its request for a
$25 apprentice fee, to remove its roller limitation
12 Jordan testified to the effect that there were two meetings ( Mosley,
Jordan, and Wimpee ) at Mosley's office in June, that at the first meeting no
decision was made , and that at the second meeting (after the union rejec-
tion of their position) certain decisions were made Terry's testimony con-
cerned one meeting in Mosley's office apparently at the same time Terry's
testimony was very general , and from the overall facts it appears that the
questions and answers did not hit specific facts Thus I am convinced that
his reference to 20- to 25-cent raises referred to a recollection of the night
rates and not to raises in general Mosley testified as to one meeting Con-
sidering all of the facts and the logical consistency thereof, I find the facts
as set forth
" As the evidence indicates, statements to and by Reed, Mosley, and the
others were loosely worded insofar as much of the meaning with respect to
the issues herein The examination of the witnesses did not specifically
reveal the complete continuity of events The testimony and fair in-
ferences clearly reveal that the parties were knowledgeable of each other's
positions at the joint meetings-and the results of each other 's meetings It
is clear that Reed was talking to the individual contractors throughout the
period and obtaining information as to their viewpoints and the status of
the negotiations The facts thus warrant inferences that the results of the
union meetings and the contractors' meetings were communicated to the
opposing parties
1" Considering all of the facts and the logical consistency thereof, I am
persuaded that Reed knew that Mosley's letter referred to the fact that the
unresolved issues were still unresolved and not that there was one solidified
contractors ' position
20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
demand, and to drop from 40 cents to 20 cents per
hour its night pay differential pay demand. The
Union continued to demand "show up" time pay.
Mosley continued to insist on no increase in pay for
residential work. Mosley offered 10 cents an hour
increase in pay on commercial work and 15 cents
an hour increase on industrial work, and to offer
the commercial rate for structural work. At the end
of the meeting Reed, of the Union, told Mosley that
he would take his (Mosley's) last proposal back to
the membership and see what the membership
wanted to do. Reed asked Mosley to try to get the
rest of the PDCA members together and see what
they could do, to see if they could come up with
more money. Mosley told Reed that he would try to
do so.15
It appears that the Union was aware on July 1,
1969, that there was no change in the contractors'
positions. In any event the Union held a union
meeting on or around July 1, 1969. At this meeting
the Union voted to reject the contractors' contract
proposals. A strike vote was taken with a resulting
tie vote. For some reason, this July 1, 1969, union
meeting was apparently determined to be null and
void. It appears that Reed was again in contact with
some of the contractors and information was passed
as to the continued status of the negotiations.
On July 8, 1969, the Union held another meet-
ing, again voted to reject the contractors'
proposals, and this time voted to strike the contrac-
tors on July 9, 1969. After the meeting, Reed
telephoned the various contractor members of
PDCA and notified them of the strike decision.
Reed also notified Dean, of the Federal Mediation
Service, to the same effect.
The union-directed strike commenced against
Mosley, Wimpee, Terry, and Langford on the
morning of July 9, 1969. Forty-two of Mosley's
forty-three employees ignored the strike and re-
ported to work on July 9, 1969. Whether the other
employee was sick or joined the strike is not clear.
Langford's one or two employees joined the strike.
Jordan's 5 to 8 employees, Terry's 6 to 8 em-
ployees, and Wimpee's 10 employees, all joined the
strike.
Thereafter on the morning of July 9, 1969, Terry
went to Reed's office and discussed the reason for
the strike. Reed told Terry that the strike was
caused by the failure to reach a wage agreement
and summarized his own version of the effect of the
June 27, 1969, negotiations. Terry indicated that
the offers from Mosley were different from the
position taken by the contractors.'6 Jordan also
came by Reed's office to discuss the situation. Reed
15 It is clear that during the negotiations Mosley explained that he could
not afford to pay the proposed residential rates and why
16 The overall facts clearly reveal that Mosley related accurately at all
times his position and the general position of the other contractors Jordan
credibly testified that Reed had told him in effect that Mosley had made
such notification or communication to him as to the contractors' positions
Such remarks as made by Terry on July 9, 1969, in all probability were
indicated the best thing to then do was for all to at-
tend a bargaining session with Dean of the Federal
Mediation Service.
Thereafter on July 9, 1969, a bargaining media-
tion session was held with the contractors (Mosle',
Wimpee, Jordan, and Terry), the""'-ion, and Dean
of the Federal Mediation Service at the Holiday
Inn. Dean conducted the meeting and discussed "
problems with the group as a whole, and thej
separately. There were certain agreements and con-
cessions arrived at by all. It was clear that Mosley
would go along with the other contractors except
with respect to the residential pay question. The
end result was that Wimpee, Terry, and Jordan and
the Union agreed to contract terms including re-
sidential pay rates. Mosley was told by one of the
contractors that he no longer had a vote. It was
clear that Mosley's disagreement as to contrac!
terms was with respect to the residential pay rates.
Mosley left the meeting with the clear message that
he would not go along with a contract including in-
creases in the residential pay rates.
Reed then had the 1969 contract typed up and
took the same to the offices of Jordan, Terry, and
Wimpee for their signatures. There was no place
provided on said contract for the "contractors as-
sociation" to sign , nor did anyone sign the contract
purportedly for an " association ." At some point of
time later, a contractor named "Townsend" signed
the contract as a party.
Later, apparently after July 25, 1969, Reed again
telephoned and personally approached Mosley and
requested that he sign the 1969 contract. Mosley
told Reed both times in effect that he had not
changed his position, that he could not go along
with the residential rates.
Additional Evidence
Jordan, Terry, Wimpee, and Mosley all credibly
testified to the effect that they understood that they
could not be bound by a majority vote of the con-
tractors (as best described as the 1967 PDCA
group).
Analysis and Conclusion
Considering all of the foregoing, I am persuaded
and convinced, and I conclude and find that neither
Mosley nor the other contractors (Wimpee, Terry,
and Jordan) had conferred upon the PDCA (or the
contended association group) authority to negotiate
an agreement that would be binding absent their in-
dividual approval thereof."
either prompted by a desire to put his own position in a better light, or
because Reed was characterizing Mosley's position as the clear position of
all the contractors The overall facts are convincing that the divergent in-
terests of Mosley and the other contractors were known, and that Mosley
and the other contractors had different positions on rates of pay for the re-
sidential work but otherwise their positions were substantially similar
" See Electric Theatre, et al , 156 NLRB 1351
W. F. MOSLEY CONTRACTING, INC. 21
Thus there is no evidence relating to membership
in the PDCA to reveal that mere membership con-
ferred binding negotiating authority upon the
PDCA. Nor is there any evidence, written or oral,
too reveal that Mosley and the other contractors had
agreed to cone binding negotiating authority upon
the PDCA or upon group bargaining . Furthermore,
4hTre is no evidence that Mosley and the other con-
tractors ever communicated to the Union that the
?DCA or group association had such binding
authority.
The 1967 and 1969 contracts involved herein
were utilized by the Union in establishing written
contractual relations with employers other than the
contended PDCA bargaining association. Thus the
term "employer" as used in the contract was
designed to refer to the contracting party involved
,as disclosed by the signatures on said contract. The
employees represented by the Union are set forth
as being the employees of the Employer . The lan-
guage describing the employment lists to be kept by
the Union refers to employees employed by the em-
ployers in the "multi -employer unit " included in
the agreement . This , however , is not necessarily
descriptive of the " bargaining unit." The Union and
employees may very well agree to employment lists
as to certain categories and not as to all categories
in a bargaining unit . Furthermore , the term "multi-
employer " unit as used in the agreement appears to
refer to the employees , as described, of all the em-
ployers who sign the said agreement. Thus the term
cannot be said to be a descriptive term of an ap-
propriate bargaining unit but rather a term used
loosely to describe the fact that the employment list
is of all such employees employed by all employers
who sign said agreement . The said 1967 and 1969
contracts and the other similar type documents in-
volved contain no signatures purporting to be on
behalf of a "bargaining association " even where
such places for signature are indicated.
The "declaration of trust ," apparently executed
on May 30, 1967, contains reference to a collec-
tive-bargaining agreement entered into by the Gulf
Coast Chapter of the Painting and Decorating Con-
tractors of America , Inc., and the Union on June 1,
1967.18 This document , as indicated , contained a
place for signature for Contractors Association
and/or others-but said signature place is blank.
.The signatures affixed to this document are by
Langford , Jordan , Wimpee , Brosh , Young , and Aity
Company . Mosley did not sign this document.
Again , it is noted that this document has been util-
ized by the Union for contractors who admittedly
were not members of the contended PDCA bar-
gaining association. It might be contended that the
signatures of Langford, Jordan , and Wimpee upon
this document constitute in effect a - prior admission
that their previous actions with regard to the basic
1967 contract constituted action by the Gulf Coast
Chapter of the Painting and Decorating Contrac-
tors of America, Inc. However, Mosley did not sign
this document and Wimpee, Langford, and Jordan
are not respondents herein. Furthermore, Wimpee,
Terry, Jordan, and Mosley all credibly testified to
the effect that they did not consider that they had
given the PDCA final and binding authority to
make agreements on their behalf. I am convinced
that the totality of the evidence reveals that the
reference in the declaration referred to constitutes
a loose descriptive term denoting that the em-
ployers who were members of PDCA had executed
the same agreement on or around May 11, 1967.
The evidence reveals that thereafter Reed ap-
proached the contractors on an individual basis and
that the 1969 bargaining was also on an individual
basis. Thus Reed took back to the union member-
ship the different positions of Mosley, Wimpee, and
the other contractors to the Union for the union
rates during the 1969 bargaining.
Finally, under the circumstances of this case, I
give weight to the credited testimony of Mosley,
Wimpee, Terry, and Jordan to the effect that they
did not consider that they had given an association
the authority to enter into a contract on their be-
half without their approval. In sum the totality of
the evidence reveals that Mosley had not given to
the alleged bargaining association the authority to
negotiate a final and binding agreement that did not
meet with his approval.19 Accordingly, it follows
that the facts do not reveal that Mosley has violated
Section 8(a)(5) and (1) by his refusal to agree to
the 1969 contract agreed to by the other contrac-
tors.
Upon the basis of the above findings of fact, and
upon the entire record in the case, I make the fol-
lowing:
CONCLUSIONS OF LAW
1. W. F. Mosley Contracting , Inc., the Respon-
dent , is engaged in commerce within the meaning
of Section 2(6) and ( 7) of the Act.
2. Brotherhood of Painters , Decorators & Paper
Hangers of America , AFL-CIO, Local Union 107,
the Union, is, and has been at all times material
herein , a labor organization within the meaning of
the Act.
3. The Respondent has not engaged in unfair
labor practices within the meaning of Section
8(a)(5) and (1) of the Act, as alleged.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact
and conclusions of law and upon the entire record
in this case, it is recommended that the complaint
be dismissed in its entirety.
1fl As indicated previously it is clear that this date had been placed on the
document at a much later time than on June 1, 1967
° And the facts do not otherwise support a finding of conduct violative
of Section 8(a)( I ) and (5) of the Act
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