Harris Painting

642 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Harris Painting, Inc. d/b/a Harris Painting and Painters Union Local No. 294, International Brotherhood of Painters and Allied Trades, AFL-CIO. Case 32-CA-6224 30 September 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS BABSON AND STEPHENS On 30 September 1985 Administrative Law Judge Richard J. Boyce issued the attached deci- sion. The General Counsel filed exceptions and a supporting brief, the Respondent filed an answering brief, and the General Counsel filed a response to the answering brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions and to adopt the recommended Order as explained below. 1. Paragraph 2(a) of the complaint alleges, and the answer admits, "At all times material herein, Respondent, a California corporation with an office and place of business in Fresno, California, has been engaged in business as a painting contractor." In addition, the record indicates that the Respond- ent was engaged in work on construction projects and that the collective-bargaining agreement be- tween the Association and the Union to which the Respondent became a party contained a 7-day union-security clause. Accordingly, we find that the Respondent is an employer in the building and construction industry within the meaning of Sec- tion 8(f) of the Act. 2. In John Deklewa & Sons, 282 NLRB 1375 (1987), the Board overruled R. J. Smith Construc- tion Co., 191 NLRB 693 (1971), enf. denied sub nom. Operating Engineers Local 150 v. NLRB, 480 F.2d 1186 (D.C. Cir. 1973), abandoned the conver- sion doctrine, and modified unit scope rules in 8(f) cases. The Board decided to apply the following principles: (1) a collective-bargaining agreement permit- ted by Section 8(f) shall be enforceable through the mechanisms of Section 8(a)(5) and Section 8(b)(3); (2) such agreements will not bar the processing of valid petitions filed pur- suant to Section 9(c) and Section 9(e); (3) in processing such petitions, the appropriate unit normally will be the single employer's employ- ees covered by the agreement; and (4) upon the expiration of such agreements, the signato- hce ry union will enjoy no presumption of majori- ty status, and either party may repudiate the 8(f) bargaining relationship. The Board also held at footnote 41: "[W]e will re- quire the party asserting the existence of a 9(a) re- lationship to prove it." As the record in the instant case fails to demonstrate a 9(a) relationship, we find that Section 8(f) applies and that Deklewa is controlling. 3. Applying Deklewa to the instant case, we con- clude that the complaint should be dismissed. In 1979 the Respondent authorized the Fresno County Chapter of the Painting and Decorating Contrac- tors of California, Inc. (the Association) to repre- sent it in bargaining with the Union. The Respond- ent thus became party to an agreement between the Association and the Union effective from 1 July 1980 through 30 June 1983. As the judge properly found, the Respondent effectively withdrew from multiemployer bargaining prior to the expiration of the 1980-1983 agreement. The Respondent hon- ored the contract until its expiration date; after- wards it failed to make trust fund contributions or to recognize the Union. The General Counsel con- cedes that for the Respondent the contract expired as of 30 June 1983. The Union had no further agreement with the Respondent. Because the contract had expired, the Union, under the fourth Deklewa principle, noted above, enjoyed no presumption of majority status, and the Respondent was free to repudiate the 8(f) bargain- ing relationship. The complaint alleges that the Re- spondent violated Section 8(a)(5) and (1) of the Act by failing to make trust fund contributions. Because the allegation turns on whether the Respondent was obligated to recognize the Union, and because under Deklewa it was not, we shall dismiss the complaint. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. Diane Sidd-Champion, Esq., for the General Counsel. Stephen Thomas Davenport Jr., Esq. (Finkle & Stroup), of Fresno, California, for the Respondent. DECISION STATEMENT OF THE CASE RICHARD J. BOYCE, Administrative Law Judge. This matter was heard in Fresno, California, on 2 August and 2 November 1984.1 The charge was filed on 27 January ' This manner of setting forth dates comports with current Board prac- 286 NLRB No. 56 HARRIS PAINTING 643 1984, and amended on 29 March, by Painters Union Local No. 294, International Brotherhood of Painters and Allied Trades, AFL-CIO (the Union). The com- plaint issued on 30 March and alleges that Harris Paint- ing, Inc., d/b/a Harris Painting (Respondent) violated Section 8(a)(5) (and, derivatively, Sec. 8(a)(1)) of the Na- tional Labor Relations Act (the Act) in July 1983, and since, by discontinuing and failing to make payments to various fringe-benefit trust funds on behalf of certain of its employees. As is concluded below, after an examination of rele- vant evidence and applicable legal principles, Respond- ent did not violate the Act as alleged. I. JURISDICTION Respondent, a California corporation owned and man- aged by Robert and Linda Harris, husband and wife, is a painting contractor in Fresno. That its revenues satisfy the Board's jurisdictional standards and that it is an em- ployer engaged in and affecting commerce within Sec- tion 2(2), (6), and (7) of the Act are undisputed. II. LABOR ORGANIZATION The Union is a labor organization within Section 2(5) of the Act. III. THE ALLEGED MISCONDUCT A. The Relevant Evidence In August 1979, Respondent joined the Fresno County Chapter of the Painting and Decorating Contractors of California (the Association). So doing, it authorized the Association to represent it in collective bargaining with the Union and caused those employed by it as painters, tapers, and paperhangers to become part of a multiem- ployer bargaining unit comprised of employeees in those classifications working for the several employer-members of the Association. Respondent thus became party to a bargaining agree- ment negotiated by the Association and the Union in 1980, to be effective from 1 July 1980 through 30 June 1983. The agreement, among other things, called for the employer-members to contribute so much per hour worked by each unit employee to an array of trust funds-health-and-welfare, pension, vacation, and indus- try promotion. In November 1982, following negotiations between the Association and the Union, the employer-members of the Association ratified a 2-year extension of the agree- ment-through 30 June 1985. During the meeting in which that occurred, however, Respondent resigned from the Association, informing the Union of that devel- opment by letter dated 28 February 1983. The General Counsel concedes, for purposes of this litigation, that the resignation effectively removed Respondent from multi- employer bargaining, preserving for it the agreement's original expiration date. Respondent honored the agreement throughout its term, but since has failed to make trust-fund contribu- tions or to recognize the Union. Its last contributions were made in July 1983-for hours worked through the 30 June expiration date. Its next contributions- suppos- ing, as the General Counsel contends, that the obligation continued-were due on 10 August, becoming delinquent on the 20th. When the agreement expired, Respondent was en- gaged, with a crew of about 10, on a housing project in Fresno. It also was working on a project in Yosemite National Park, crew size undisclosed, at that time. Other- wise, apart from a vague reference to a school job in Clovis, California, in 1982, the record does not reveal the whereabouts or makeup of Respondent's crews while it was subject to the agreement. Concerning Respondent's personnel practices, Robert Harris testified: We have from zero people to 25. I hire 'em for the job and normally lay 'em off after the job and, when we have another job, then we hire 'em back, or hire new people. Despite Respondent's resignation from the Association, the complaint alleges that the appropriate unit at relevant times embraced the employees of the several employer- members of the Association, including Respondent. The complaint also alleges that the Union "was the designat- ed exclusive bargaining representative" of those employ- ees. Except as might be presumed from the Association's being party to the agreement, there is no evidence that the Union ever represented a majority of the members' employees. Nor was evidence offered, other than the agreement, to show that the Union ever achieved majori- ty status among Respondent's employees-on any given jobsite or in toto.2 B. Conclusion and Reasons An employer generally violates Section 8(a)(5) (and, derivatively, Sec. 8(a)(1)) by unilaterally discontinuing fringe-benefit contributions on expiration of a bargaining agreement calling for them. As stated in Hinson v. NLRB, 428 F.2d 133, 138 (8th Cir. 1970), enforcing an 8(a)(5) finding by the Board:3 2 The agreement contained a 7-day union -security clause There is no evidence, however, that it was observed or enforced Linda Harris testi- fied that on 30 June she stated to the Union's business representative, Henry Scharnick "I have 9 or 10 men on my [Fresno housing] job. To- morrow we are no longer under contract We're no longer obligated . to pay benefits And I want to know whether these men are going to fined on our job, because I promised, I gave them my word, that I would check with you " Linda further testified that she and Scharnick talked on that occasion "about whether [Respondent's] employees would have to be union members" after 30 June, but provided none of the details of that exchange Linda added that she then met with the crew on the housing project, that the "general question" they raised "was were they going to be fined by the Union" for continuing on the job, and that she replied that Scharnick had said they "would not be fined if they stayed on the job because, as far as he was concerned [Respondent was] still in the Union " Robert Harris testified that he too met with the crew on the housing project about that time, advising them to "contact Henry Schar- nick to see if there's any problems working on the job" While these gleanings suggest that most or all of the crew on that project were union members, they are not sufficiently to the point to warrant such a finding, particularly since they did not surface as part of the General Counsel's case and the General Counsel doubtless could have introduced documen- tary evidence-payroll and union membership records-of far greater probative value had she seen fit See Contract Knitter, 220 NLRB 558, 558-559 (1975) 3 Hen House Market No 3, 175 NLRB 596 (1969) 644 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The [Board's] order . . . simply requires [the em- ployer] to abide by an obligation once extant by reason on the binding contract but then continuing on after its expiration, in limited form, not by reason of the contract itself but because of the dictates of the policy embodied in the National Labor Relations Act. Essential to this or any other 8(a)(5) violation, howev- er, is proof that the affected employees were in an ap- propriate unit at relevant times and that the union repre- sented a majority of the employees in that unit. Proof of majority usually is presumed during and after the expira- tion of a bargaining agreement-conclusively during, re- buttably after. Cobb Theatres, 260 NLRB 856, 859 (1982); Sahara-Tahoe Hotel, 241 NLRB 106, 107-108 (1979). The General Counsel, while not explicit, seemingly premised her case on the latter of these presumptions.4 But, the usual presumptions do not obtain if the em- ployer is engaged primarily in the building and construc- tion industry and the agreement concerns employees likewise engaged. This is because Section 8(f) of the Act exempts employers and unions in that industry from vio- lation for entering into agreements-sometimes called prehire contracts-even though "the majority status of Marble & Granite Co., 271 NLRB 908 (1984); Precision Striping, Inc., 245 NLRB 169 (1979); Dee Cee Floor Cov- ering, 232 NLRB 421 (1977); R. J. Smith Construction Co., 191 NLRB 693 (1971). Respondent, as a painting contractor, and the Associa- tion, as an organization of painting contractors , were and are entitled to 8(f) dispensation. The bargaining agree- ment therefore created no presumption of union majority status-either in the multiemployer unit or among Re- spondent's employees. Consequently, proof lacking that agreement was not an 8(f) contract or that the Union at- tained majority status in an appopriate unit including Re- spondent's employees sometime before the alleged mis- conduct the complaint must be dismissed. Stine Scovil Construction Co., 269 NLRB 465, 465-466 (1984).5 CONCLUSION OF LAW The General Counsel has failed to prove that Re- spondent violated the Act as alleged. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed6 ORDER such labor organization[s] has not been established The complaint is dismissed. .. ." See generally Jim McNeff Inc. v. Todd., 113 LRRM 2113 (1983); NLRB v. Iron Workers Local 103 (Higdon Contracting Co.), 434 U.S. 335 ( 1978); Acme 4 Thus, as stated in her brief "No assertion has been made that the Union failed to represent a majority of Respondent 's employees " In fact, Respondent's answer denies the complaint allegation to the effect that the Union enjoyed majority status b Because the General Counsel has failed to meet her initial burden, Respondent's several affirmative defenses need not be considered 6 All outstanding motions inconsistent with this recommended Order hereby are denied. If no exceptions are filed as provided by Sec. 102 46 of the Board's Rules and Regulations, the findings, conclusions, and rec- ommended Order shall, as provided in Sec 102.48 of the Rules , be adopt- ed by the Board and all objections to them shall be deemed waived for all purposes