W. F. Mosley Contracting, Inc.

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 427-835 0 - 74 - 3