Precision Striping, Inc.

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<i. IN(. DECISION I. SAIHIINI ()F 1111 (ASE This matter was heard before me in Seattle, Washington, on November 30, 1978. The charge was filed on April 11. 1978, by Painters District Council No. 5 of the Interna- tional Brotherhood of Painters and Allied Trades, AFL- CIO (Union). The complaint issued on April 28. was amended on October 26, and alleges that Precision Striping. Inc. (Respondent) has violated Section 8(a)(5) and (I) of the National Labor Relations Act (Act). 11. JURISIIC IION Respondent is a Washington corporation located in Ever- ett. engaged in the installation of striping and curbing in parking lots. Its annual revenues exceed $50,000 from cus- tomers outside Washington and customers within Washing- ton who meet the Board's direct inflow/outflow jurisdic- tional standards. Respondent is an employer engaged in and affecting commerce within Section 2(2), (6). and (7) of the Act. Ill. l.ABOR OR(ANIZAII)ON The Union is a labor organization within Section 2(5) of the Act. 170 PRECISION SIRIPING. IN( IV. ISSUFS The complaint alleges that since about March 17. 1978, Respondent has refused to honor an existing labor contract with the Union. has refused to recognize the Union as the bargaining representative of certain of its emploees. and has changed certain terms and conditions of employment without giving the Union a chance to bargain over the changes, thereby in each instance violating Section 8(a)(5) and (I) of the Act. The answer denies any wrongdoing. V. Tll: Al t IG) t NFAIR I.ABOR PRA( 11( IS A. Fact.s On June 23. 1977, Respondent and the Union entered into a collective-bargaining contract to be effective from June 1, 1977. to May 31, 1980. The contract described the unit as: All installation or construction employees including working foremen, but excluding office clerical emplo - ees, confidential employees, professional employees. automotive mechanics, guards, and supervisors as de- fined in the National Labor Relations Act. This contract succeeded a similar one between Respondent and the Union. effective from June I. 1974, to May 31. 1977; and a memorandum agreement entered into at the time Respondent came into existence in April 1973. by which it became bound by the Union's standard 1971-74 contract. Each contract contained an 8-day union security clause common to the construction industry.' On March 13, 1978. Respondent conducted a poll of its unit employees to ascertain their feelings about continued union representation. The result was one for and four against representation.' Accordingly, on March 17. Respon- dent's attorney sent the Union a letter stating: We are writing this letter to you on behalf of our client, Precision Striping. Inc., concerning an alleged contract between you and Precision Striping. Inc. This contract we believe, is-to use the words of the United States Supreme Court in a recent case-- "unenforceable." According to our client. Painter's District Council No. 5 has never attained majority status among its employ- ees. In fact, our client has a good faith belief that a majority of Precision Striping's employees do not wish to be represented by this union as their bargaining agent. As a result, our client has decided that it is pru- dent and efficacious to abide by the wishes of a maJor- ity of its employees, and we are, therefore, providing you with notice that Precision Striping can no longer adhere to the terms of a document which has no legal I The General Counsel concedes that Respondent is engaged primaril in the building and construction industry as contemplated by Sec 8(fl f he Act. I The General Counsel does not contend that the poll was conducted n an unlawful manner. It was by secret ballot, the ballots being similar in tirm tor those used in NLRB elections, and was preceded by written assurances from Respondent to the employees that the) would suffer no detriment because off the way they voted. effect. This letter constitutes formal notification that. because ot your failure to obtain majorit 5 support among its employees. Precision Striping cannot, and does not. recognize ou as the exclusive bargaining agent for its employees. Coincident with the \withdrawal of' recognition, Respon- dent stopped making contributions to the pension and health-and-welfare trusts as prescribed hb the 1977 80t) con- tract, and thereafter ignored the tInion's efl'orlts to enlorce the union-securit clause. It otherwise has not departed fronl the existing terms and conlditions ' remplo mnill. As of the withdrawal of' recognition indeed. sinIce Sep- tember 1977. Respondent's unit complement conlisted of 'ill Beck. Chalres DeShazor. Phil ownie. fEd Roberts. and Mark Roberts. UInion records disloSe thail .1l hut 1 Robertls were members in good standing it that imc. beinl paid up through the first calendar quarter ot 1978. and had been tor six or more months hbefore.' he record indicate, that the ilnion had never demonstrated to Respondentl that it represented a majority of Respondent's ulitl cmlobs c, . Respondent had no objective grounds. apart flomr thie poll. to question the Union's majorits status. Inasmuch as a majorit) of Respondent's employees ere union members when it abrogated the bargaining relation- ship' and tihe attendant contract, it was not licensed b Sec- tion 8(f) o the Act to do so, and consequentl violated Section 8(a)(5) and ( I ) as alleged.4 Amado Elecitrit, Int. 238 NLRB 37 (1978): Haherman Con.struction C(omplin. 23t Nl.RB 79 (1978): The lrvin-c.\l elvev (o',lpa'. 194 NI.RB 52 (1971). Respondent's argument is rejected that the emplo' ee poll overrode union membership as a determinant of the Union's status. and so permitted abrogation in conjunction with Section 8(f). Polls as a prelude to the withdrawal of recognition generally are invalid unless prompted bh a good-faith doubt based upon other objective criteria. WVhite Ca stle S.steist. 224 Nl RB 1089 (1976): Jtlckson Sportswear Corpoporation, 211 NL.RB 891 (1974): Montgomer, W'ard I & Co.. 210 NLRB 717 (1974). While this principle obhiousl would be maladaptive in the 8(f) situation in which a union had never achieved majority, there is no reason that a rule at least that restrictive should not apply in situations such as the present. Thus. even indulging the unlikely proposi- tion that a poll, it prompted by the requisite doubt and despite a membership majority, would permit midterm ah- rogation in the 8(f) situation, Respondent's poll was not si prompted and so could not serve the purpose. After the withdrawal of recognition, the four members Ict their dues lapse. and were suspended Irom membership on Junle 30 On Jul! I . the union sent a letter to Respondent seeking to enflrce the unill iseciriil clause as concerns them It had sent a like letter concerning hi Riberl ,on Ma 10, 1978 These letters were ignored 4 Indeed, gisen the go I predicate tor Repndenl's nductl ilt reorl Io the poll would indicate thai. tar tronm douhbing he t nonr niai.ris II kiiew or suspected the opposile In a pre-poll menora.ndunm to he ciiplsees, Respondent', president, John Rehleld. gave this as the rlon tfr the poll "()n the basis t aI recent nited State. Supreme ( llrl decitil I hhellee 171 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The same result would obtain were Respondent deemed part of a multiemployer unit at the critical time.' The other employer-party to the 1977-80 contract came into its bar- gaining relationship with the Union through the Board's election processes, beyond which well over one-half of its unit employees in fact belonged to the Union at the time in question.' The Union thus had a majority, however the unit is perceived. It is unnecessary to decide whether, had the Union not had a demonstrable majority at the critical time, Respon- dent's conduct nevertheless would have been improper be- cause of the relative stability of its work force and the pro- tracted nature of its bargaining relationship with the Union. See Bricklavers & Masons International Union Local No. 3 (Eastern Washington Chapter. AGC), 162 NLR B 476 (1966). CONClUSIONS ()o LAW 1. By abrogating its bargaining relationship and labor contract with the Union, and by unilaterally changing cer- tain terms and conditions of employment as an incident of that abrogation, as found herein, Respondent engaged in unfair labor practices violating Section 8(a)(5) and () of the Act. 2. These unfair labor practices affect commerce within Section 2(6) and (7) of the Act. ORDER7 The Respondent, Precision Striping, Inc., Everet, Wash- ington, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Refusing to abide by the collective-bargaining con- tract entered into on June 23, 1977, with Painters District Council No. 5 of the International Brotherhood of Painters and Allied Trades, AFL-CIO. (b) Refusing to recognize and bargain collectively, con- cerning rates of pay, wages, hours, and other terms and that it is appropriate to ascertain directly from you the sentiment of Preci- sion Striping's employees on this important subject . . lof . . . whether a majority of you want to be represented by the Painters Union for collective bargaining purposes." The General Counsel and the Union argue that Respondent was part of a multiemployer unit, with the General Counsel making the alternative con- tention that a single-employer unit would be appropriate should the mul- tiemployer unit not he found. Respondent argues that it was never part of a multiemployer unit. Since in the circumstances of this case neither result nor remedy require definitive resolution of this question, it shall remain moot. 6 Yet another employer-party to the 1977-80 contract. altered to suit his special circumstances, had no payroll, but was himself a union member. 'All outstanding motions inconsistent with this recommended Order hereby are denied. In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions and Order, and all objections thereto shall be deemed waived for all purposes. conditions of employment, with the Union as the exclusive representative of the employees in this appropriate unit: All installation or construction employees including working foremen, but excluding office clerical employ- ees, confidential employees, professional employees, automotive mechanics, guards, and supervisors as de- fined in the National Labor Relations Act. (c) Withholding contributions to the pension and health- and-welfare trusts as prescribed by the above contract, or otherwise departing from the terms of that contract, with- out first reaching agreement with the Union to do so. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of rights under the Act. 2. Take this affirmative action: (a) Upon request, recognize and bargain with the Union concerning the employees in the above unit, as required by the contract entered into on June 23, 1977. (b) Upon request, rescind any or all unilateral changes made after its abrogation of its bargaining relationship with the Union on or about March 17, 1978. in any terms or conditions of employment of employees in the above unit; and honor and give full retroactive effect to the contract that was abrogated at the same time, if so requested. (c) Upon request, make all contributions 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 back payments.' (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records neces- sary to analyze the amounts owing under the terms of this Order. (e) Post at its office in Everett, Washington, copies of the attached notice marked "Appendix."9 Copies of said notice, on forms provided by the Regional Director for Region 19, after being duly signed by Respondent's authorized repre- sentative, shall be posted by Respondent immediately upon receipt thereof, and shall be maintained by it for 60 con- secutive days thereafter, in conspicuous places, including all places where notices to employees customarily are posted. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced or covered by any other material. (f) Notify the Regional Director for Region 19, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. I Interest to be computed as prescribed in Florida Steel Corporation, 231 NLRB 651 (1977). See, generally, Isis Plumbing & Healing Co., 138 NLRB 716 (1962). 9 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 172