Painters, Local 850

PAINTERS, LOCAL 850 155 Brotherhood of Painters, Decorators and Paperhangers of America , Local 850, AFL-CIO and Morgantown Glass and Mirror, Inc. Case 6-CB-1534 June 27, 1969 DECISION AND ORDER BY CFIAIRMAN MCCULLOCH AND MEMBERS JENKINS AND ZAGORIA On February 20, 1969, Trial Examiner George A. Downing issued his Decision in the above-entitled proceeding, finding that the Respondent had not engaged in certain unfair labor practices and recommending that the complaint be dismissed in its entirety. Thereafter, the General Counsel filed exceptions to the attached Trial Examiner's Decision, and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National 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 brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the following modifications and clarifications. We find, in agreement with the Trial Examiner, that the Respondent did not refuse to bargain in violation of Section 8(b)(3) of the Act. In doing so, we rely solely on the following facts as found by the Trial Examiner and established by the record: For 10 years the Respondent, Local 850, has represented the glaziers employed by the Employer in the Morgantown, West Virginia, area. At the start of current negotiations, Local 850 was informed by its International that Local 751 would press its jurisdictional claims to represent these glaziers unless Local 850 negotiated standards obtained by Local 751 for glaziers in comparable areas. The International also provided Local 850 with a copy of a Local 751 contract for its guidance. The Employer was similarly advised. Although Local 850 thereafter, on April 16, reached tentative agreement with the Employer on a new contract, the agreement was not final and binding since, pursuant to the Employer's admitted understanding, International Representative Holdcroft's approval of wage rates was first necessary. Thereafter, on June 13, Local 850 declined to execute the contract on the ground that the wage rates in the contract were not acceptable to Holdcroft, or to the International and/or Local 751, and it requested further negotiations. In Standard Oil Company (An Ohio Corp.), 137 NLRB 690, the Board held, inter alia, that for a local to defer signing a collective-bargaining agreement pending approval by its international is not in itself unlawful. We agree with this view where, as here, the necessity for such approval is clearly understood by the parties, and if the international's withholding of approval related to dissatisfaction with the contract terms and not to extraneous issues. Here, the Respondent deferred signing the tentative agreement pending the International Representative's approval of the wage scale for glaziers in the contract, and the International Representative withheld approval because of dissatisfaction therewith. The wage scale was an integral part of, and not extraneous to, the Respondent's contract negotiations. In these circumstances, although the decision to withhold approval of the wage scale may have been influenced chiefly, or even solely, by the views of Local 751, we find that the decision related to the terms and conditions of employment being negotiated by Respondent Local 850 for the unit employees it represented and not to any terms and conditions of employment elsewhere. As there was therefore no improper precondition to the execution of the tentative agreement reached, we find, in agreement with the Trial Examiner, that the Respondent's refusal to execute it was not unlawful.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, and hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. As we have affirmed the Trial Examiner's dismissal on this ground, we find it unnecessary to rule on additonal grounds advanced by the Respondent, or found by the Trial Examiner for dismissing the complaint TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE GEORGE A DOWNING, Trial Examiner This proceeding under Section 10(b) of the National Labor Relations Act as amended was heard at Morgantown, West Virginia, on December 18, 1968, pursuant to due notice. The complaint which was issued on October 18, 1968 (all events herein occurred in 1968), on a charge filed June 19, alleged that Respondent engaged in unfair labor practices proscribed by Section 8(b)(3) of the Act by refusing on and after June 13 to execute a written contract embodying the terms and conditions of an agreement reached by it with the Charging Party (MGM herein) on April 16. Respondent answered, denying said unfair labor practices and pleading certain defenses which are referred to in section II, A, infra. Upon the entire record in the case and from my observation of the witnesses, I make the following: 177 NLRB No. 16 156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER ; RESPONDENT AS A LABOR ORGANIZATION I find on the basis of admitted facts that MGM is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act,' and that Respondent Union is a labor organization within the meaning of Section 2(5) of the Act. H. THE UNFAIR LABOR PRACTICES A. Introduction and Issues Respondent Local 850 and MGM have been parties since 1957 to yearly collective-bargaining agreements, the last of which expired on March 31, 1968. On February 13 Respondent requested a meeting for the purpose of negotiating a new contract , and meetings were held on February 21 and April 16, at the latter of which agreement was reached between the negotiators there present. In a further meeting held on June 13, MGM was informed that the contract was not acceptable to the International Union and/or to its Local 751 and requested further negotiations. MGM refused, claiming it had a valid contract, and stated that it would file an unfair labor practice charge. The central issue is whether the agreement as reached on April 16 was with the understanding that it was subject to approval of any sort, either by the International, its General Representative James P. Holdcroft , or by Local 751. Respondent asserts further that the agreement was subject to the approval of its membership.' As Respondent's defense revolved around a jurisdictional conflict between Local 850 and 751, it will be helpful to review preliminarily the jurisdictional lines, both geographical and craftwise, and the International's organizational hierarchy. The constitution provided in part separate general classifications for painters, for decorators (and glaziers), and for glassworkers (and general glazing). Local 751 was a glassworkers and glaziers local, whose headquarters were in Pittsburgh and whose geographical area covered 21 Pennsylvania counties, 2 Maryland counties and 2 counties in West Virginia (Monongalia and Preston). Local 850's jurisdiction was somewhat muddled. Though General Representative James P. Holdcroft described it as a painters local, without jurisdiction over glaziers and glassworkers, Business Representative George M. Sickles repeatedly characterized it as a mixed local union whose membership included both painters and glaziers within the counties of Monongalia and Preston. Furthermore, Local 850 had not only represented MGM's glaziers for some 10 years without question , but as will later be seen, it might have continued to do so, without objection from the International or Local 751, provided it negotiated for standards which might compare with those contained in certain 751 contracts, specifically those in the 'MGM, a West Virginia corporation, is engaged at Morgantown in the business of a glazing contractor. From July 1, 1967, to June 30, 1968, it purchased and received directly and indirectly from extrastate points goods and materials valued in excess of $50,000. 'though by answer Respondent raised issues concerning its own status as majority representative and averred to the contrary that Local 751 was such representative, its brief makes no contentions to that effect In any event the evidence unquestionably established Respondent's representative status at all times on and before June 13. Johnstown-Altoona area. On the organizational side, the evidence showed that General Representative Holdcroft supervised , under the International President, "the autonomous craft" of glaziers and glassworkers and that the corresponding supervisor over painters locals was General Representative Maynard Sulyvan. At the local level James Keneavy, of Pittsburgh, was business representative of Local 751 and George M Sickles, of Morgantown, was business representative of Local 850. With the setting thus laid, the pertinent events may be briefly summarized. B. The Evidence On February 13, the recording secretary of Local 850 wrote MGM and three other glazing contractors that a meeting would be held on February 21 for the purpose of negotiating a new working agreement for the glaziers of Local 850. Among those present on February 21 were Vice President Leonard Straight of MGM, Russell Smith, of General Glass Company, General Representative Holdcroft of the International, Business Representative Sickles of Local 850, Business Representative James Keneavy of Local 851, Steward Gerald Straight (brother of Leonard Straight) of MGM and Steward Willis Sommers of General Glass. Testifying for the General Counsel, Leonard Straight admitted that Holdcroft , who identified himself as an International Representative, stated that under the constitution Local 751 had jurisdiction over the area and that there was discussion of the fact that the Pittsburgh contract of Local 751 would not be appropriate for the Morgantown area but that the Johnstown -Altoona agreement of Local 751 might well furnish a good guide line by which to negotiate an agreement . No actual negotiations took place and nothing was said about obtaining approval of any agreement which might later be reached. No further meeting was held before April 16, but in the meantime MGM procured a copy of the Johnstown-Altoona agreement from another contractor and Holdcroft in turn sent a copy of it to Sickles on March 18 with the following memorandum: The enclosed agreement would be the only type that would permit me to talk L.U. 751 out of claiming the jurisdiction of Monongalia and Preston counties; if the men sign any other type of agreement I am sure 751 shall not consider giving up the jurisdictional rights of the area. Please contact me if anything develops. Thereafter Stewards Willis Sommers and Gerald Straight, using that copy as a guide, made some changes in it and prepared a working draft of a proposed agreement to be negotiated for the Morgantown area (G. C. Exh. 5). On April 1 Respondent Local wrote MGM setting a meeting for April 16. Present then were the same persons as before except for Holdcroft and Keneavy . The evidence is undisputed that, using the working draft as a base, the parties reached agreement on all its provisions except for certain modifications as noted on its face . What is in issue is whether the employer representatives understood or were informed that the agreement was, in whole or in part, subject to later approval of some sort. Sickles testified that he informed the employers that any agreement would have to be approved by the membership and the International and would have to be brought back to Local 751. After agreement was reached, PAINTERS, LOCAL 850 he informed them further that he had to take the agreement to Holdcroft (whom he would be seeing in a few days) and that it was subject to Holdcroft's approval. Though the testomony of the General Counsel's witnesses (Straight of MGM and Smith of General Glass) did not bear out the full extent of Sickles' claims, it nevertheless reflected awareness and understanding that some approval by Holdcroft was necessary. Though Straight testified he left the meeting feeling he had an agreement, he admitted understanding that Sickles was to submit it to Holdcroft for approval of wage rates.' And though Smith denied on direct examination that he heard Sickles say that the contract or the wage rates were to be approved by any one, he admitted on cross-examination that Sickles expressed the belief and stated his impression that the wage rates were subject to Holdcroft's approval. Aside from those admissions it is entirely reasonable to believe (in view of the caveat contained in Holdcroft's memorandum of March 18) that Sickles would necessarily have reserved the matter of approval pending Holdcroft's resolution of the jurisdictional claims of Local 751, of which the employer representatives were informed in the first meeting. Though I thus conclude and find that no final and binding agreement was reached on April 16, there is a further respect in which the General Counsel failed to establish the complaint allegation that the written contract which Respondent refused to sign on June 13 embodied the terms and conditions agreed to on April 16.' Thus Vice President Straight of MGM identified for the General Counsel as General Counsel's Exhibit 6 what was represented to be the final draft of the agreement reached 'Straight testified further that from his experience in negotiating prior contracts he understood the employees had a right to approve or reject a contract if they wanted to . He added that he understood that all the employees had approved or agreed upon the contract , though he testified he got that impression only from general discussions with his employees Holdcroft testified , on the other hand , that the employees in fact voted to reject the contract on June 12, and the General Counsel made no attempt to refute that claim. Though the matters next referred to were not affirmatively assigned in 157 on April 16 as copied from the working draft, General Counsel's Exhibit 5, which, with the modifications noted on its face, embodied the terms of the agreement actually reached. Comparison of the exhibits shows, however, that the final draft varied from General Counsel's Exhibit 5 in a number of substantial respects as follows: A new section (No. 8) was added to article II, which provided for examination of the employer's payroll records. The wage rates contained in article IV were not in conformity with those which appeared in the notations in General Counsel's Exhibit 5 and a new section was added providing for certain additional payments to be made by contractors who did not provide certain types of benefits. Section 1, of article IX was limited to tools, omitting the reference to coveralls or uniforms. Two paragraphs were added to article XII, one providing for severability of any provision which might be found to be unlawful or void and the other containing a no-strike-no-lockout provision. I therefore conclude and find that the General Counsel failed to establish by a preponderance of the evidence on the entire record that Respondent refused to bargain as alleged. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSION OF LAW Respondent did not refuse to bargain in violation of Section 8(b)(3) of the Act as alleged in the complaint. RECOMMENDED ORDER I therefore recommend that the complaint be dismissed. defense, they were put in issue by Respondent's denial of unfair labor practices as alleged and they bear directly on the question whether the General Counsel made out his case by a preponderance of the evidence on the entire record