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

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