Tri-Associated Drywall Contractors, Inc.

National Labor Relations Board - Board Decisions

Jun 7, 1961

131 N.L.R.B. 1077 (N.L.R.B. 1961)

TRI-ASSOCIATED DRYWALL CONTRACTORS, INC., ETC. 1077
Accordingly, I find that Vice President Parker violated Section 8(a)(1) of the
Act, both in his interrogation as to King's union position, and in threatening him
with economic disadvantages in the event the union campaign were successful. I also
find, in the context of this threat, that his interrogation of Corbin was a further vio-
lation of Section 8(a)( I).
IV THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce -among the
several States, and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices, I shall -
recommend that it cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Upon the basis of the above findings of fact, and upon the entire record, I make
the following:
CONCLUSIONS OF LAW
I Farm Stores, Inc., F. S. #2, Inc, F. S. #4, Inc, and F. S. #31, Inc, Divisions
of Farm Stores, Inc., are engaged in commerce within the meaning of the Act.
2. Local 1010, Retail Employees Union of South Florida, affiliated with Retail,
Wholesale and Department Stores Union, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3 By interrogating employees concerning their union sympathies and by threaten-
ing them with loss of employment in consequence of successful union activities, the
Respondent has engaged in unfair labor practices within the meaning of Section
8(a)(1) oftheAct.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Tri-Associated Drywall Contractors , Inc., Chapter of Painting
& Decorators Association , Petitioner and Los Angeles County
District Council ; Orange County District Council ; Riverside
County District Council ; San Bernardino County District
Council ; Ventura County District Council ; San Diego County
District Council ; United Brfo. of Carpenters , AFL-CIO, and
Los Angeles District Council ; Orange Belt District Council;
Ventura County District Council; San Diego Local 333, United
Bro. of Painters , Decorators, AFL-CIO and Gypsum Drywall
Industry Union , Ind.' Case No. 21-R,41-668. June 7. 1961
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Max Dauber, hearing officer.
'At the hearing, the various district councils were referred to by numbers, but no
motion was made to amend their names to include these numbers Although all the labor
organizations here involved were referred to at, the hearing and in the pleadings as
Intervenors, they are all parties named in the petition Gypsum Drywall Industry Union,
Ind , is herein referred to as Gypsum, while the other labor organizations are referred to
collectively as the Unions.
131 NLRB No. 132.
1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The hearing officer's rulings made at the hearing are free from prej-
udicial error and are hereby affirmed?
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Leedom and
Brown].
Upon the entire record in this case, the Board finds :
1. The Unions contend that the Employer-Petitioner, an association
of employers in the drywall installation industry in southern Cali-
fornia, does not meet the Board's jurisdictional standards.
Harold Lamunyon, president of Lamunyon Drywall Contractors,
Inc., and Fletcher Reynolds, an officer of Fletch Reynolds, Inc., testi-
fied that their respective companies were members of the Employer-
Petitioner. Each of them also testified that he was personally familiar
with the business activities of his company, and that it had purchased
during 1960, from a California distributor, materials valued at more
than $50,000 which had originated outside the State. Furthermore,
Reynolds testified that his company received approximately $45,500
for work done on military installations of the United States Govern-
ment during the 1960 fiscal year, and Lamunyon testified that he also
performed a substantial amount of such work. The Unions presented
no evidence of their own to contradict this testimony, but argued that
the testimony of Lamunyon and Reynolds, unsupported by business
records, was not the best evidence. We find, however, that, as both
witnesses were familiar with the operation of their respective com-
panies and testified from their personal knowledge, and as the Unions
presented no evidence to the contrary, the testimony of Lamunyon and
Reynolds is of sufficient probative'value to justify its consideration in
determining whether to assert jurisdiction.' On the basis of this
evidence, we find that these two employers meet our indirect inflow
standard 4 and that Reynolds also meets our national defense stand-
ard.' As we treat all members of an employer association as a single
enterprise for-jurisdictional purposes, and assert jurisdiction over the
entire association if any one of its members meets our standards 6 and
as we have found that two members meet our jurisdictional standards,
we find that the Employer-Petitioner is engaged in commerce within
the meaning of the Act, and that it will effectuate the policies of the
Act to assert jurisdiction herein.
2 The Unions moved to disqualify the hearing officer for alleged misconduct because of
statements and rulings he made during the hearing, and moved to dismiss or remand the
proceedings on the ground , inter alia , that they had not received "a fair hearing. `In view
of our dismissal of the petition , which was urged by the Unions, these questions-have
become moot , but we note that the record does not indicate that the hearing officer was
guilty of misconduct.
Staniar Company, 116 NLRB 578
* Siemona Mailing Service, 122 NLRB 81.
Ready Mixed Concrete & Materials , Ina, 122 NLRB 318.
See Siemona Mailing Service, supra, at 84.
TRI-ASSOCIATED DRYWALL CONTRACTORS, INC., ETC. 1079
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.'
3. No question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9(c) (1) and Section 2(6) and (7) of the Act for the reasons set forth
below.
4. The Employer-Petitioner urges the Board to find appropriate
a single unit composed of journeymen and trainee drywall hangers
and tapers employed by all its members. In the alternative, it seeks
two associationwide separate units, one consisting of journeymen and
trainee hangers and- the other of journeymen and trainee tapers. On
June 21, 1960, Gypsum demanded recognition by the Employer-
Petitioner as the associationwide bargaining representative of the
tapers, and, on July 15, as the associationwide representative of the
hangers (also known as installers). At the hearing, Gypsum agreed
to represent the tapers and hangers either in separate association wide
units or in a combined associationwide unit, whichever the Board
found appropriate, The Unions contend that all the proposed units
are inappropriate, and urge dismissal of the petition.8
Lamunyon, executive secretary of the Employer-Petitioner, testi-
fied that it had approximately 15 members, and he produced copies of
cards purporting to show the membership status of the various em-
ployers, but all these copies were unsigned and undated. Both
Lamunyon and Reynolds testified that their respective companies
belonged to the Employer-Petitioner; Lamunyon also testified that he
had authorized the Employer-Petitioner to act for his company, and
an authorization card signed by him was introduced into the record.
No such card was introduced for Reynolds or any other employer
member, and Reynolds in fact admitted at the hearing that his com-
pany was also represented by Gypsum Drywall Contractors of Cali-
fornia for collective-bargaining purposes until October 1960, 2 months
after the original petition was filed herein.
The record shows that Gypsum Drywall Contractors of California
is an employer association which has been in existence for many years,
and has local chapters covering the same industry and geographical
areas as the Employer-Petitioner claims to do. It has executed nu-
merous collective-bargaining agreements with various unions over
the years, is still actively engaged in collective bargaining, and is a
4 The status of Gypsum as a labor organization was attacked by the Unions. As it exists
for the purpose of representing employees with respect to wages, hours, and other condi-
tions of employment , we find that it is a labor organization within the meaning of Sec-
tion 2(5)° of the -Act.
•8 Among their grounds for dismissal of the petition, the Unions urge four different
collective -bargaining agreements as bars. The Employer-Petitioner contends that none of
these contracts constitute a bar because they are prehire agreements in the building and
construction industry , executed in conformity with Section '8(f), and , therefore, cannot
serve as bars . In view of our dismissal on other grounds, we do not pass upon these
contract-bar contentions.
1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
party to a number of current union contracts. Of the 15 employers
who the Employer-Petitioner alleges comprise its membership, 12 were
associated with Gypsum Drywall Contractors of California for collec-
tive-bargaining purposes during 1960. Only three were shown ever to
have resigned, and their dates of resignation were not shown. The
parties stipulated that all the members of the Employer-Petitioner,
including Lamunyon, had signed counterparts of the master agree-
ment negotiated by Gypsum Drywall Contractors of California with
the various District Councils of Carpenters involved herein. That
master agreement, which became effective on August 1, 1959, and runs
to July 31, 1962, covers "drywall installers" or hangers. Thus, not
only is there no evidence of any bargaining by the Employer-
Petitioner for hangers or installers, but, on the contrary, the bargain-
ing history shows that members of the Employer-Petitioner have
bargained for hangers or installers through a different employer
association.
There is evidence of some bargaining by the Employer-Petitioner-
regarding tapers, but it is clearly insufficient to establish the appro-
priateness of the unit of tapers sought herein. Lamunyon testified
that the Employer-Petitioner was formed early in 1959 and its certifi-
cate of incorporation, which was introduced in evidence, is dated Sep-
tember 21, 1959. Nevertheless, at the hearing, which was held in
November 1960, more than a year after the incorporation, only one
contract was presented in evidence to which the Employer-Petitioner
was a party. This was a contract with the Orange Belt District
Council, executed on July 25, 1960, and made effective as of July 1,
1960, until June 30, 1963. The petition herein was filed less than 1
month after the execution of this contract.
The contract covers not only members of the Employer-Petitioner
but also members of two other employer 'associations who operate.
within the jurisdiction of the Orange Belt,District Council. It also
covers employees in approximately 15 categories who work in the
painting and paperhanging trade, including drywall tapers. It is
clear, therefore, that the contract unit is far more extensive in its
coverage of employers and of employee categories than the unit sought
herein by the Employer-Petitioner.' Moreover, while the Orange Belt
District Council contended that this contract was a bar to the petition
herein, it nevertheless joined the other Unions, at the hearing and in
its brief, in attacking the bona fides of the Employer-Petitioner as
an association of employers formed for the purpose of bargaining
collectively.
In view of the short period of time'-which elapsed between the execu-
tion of the contract and the filing of the instant petition; 9 the attack
by the Orange Belt District Council, which signed the contract with
0 Of Moron Building Products Co., Inc, et al , 116 NLRB 1406
NACHMAN CORPORATION 1081
the Employer-Petitioner and other employer associations, on the status
of the Employer-Petitioner as a bargaining representative; the fact
that the contract unit is not coextensive with the unit sought in the
petition; and the disagreement among the parties over the appropri-
ateness of the unit of tapers requested by the Employer-Petitioner, we
find that there is no controlling history of multiemployer bargaining
by the Employer-Petitioner in a unit of tapers.1° We find, therefore,
that the Employer-Petitioner has failed to establish a bargaining his-
tory of the kind and extent required by the Board to find appropriate
the proposed Employer-Petitionerwide units of hangers and tapers,
separately or combined."
Further the record fails also to establish that the members of the
Employer-Petitioner have clearly manifested a desire to be part of a
multiemployer unit represented by the Employer-Petitioner.12 Thus
no evidence was presented to show that any members of the Employer-
Petitioner, other than Lamunyon, authorized the Employer-
Petitioner to bargain for the group, or that any of them jointly par-
ticipated in any bargaining sessions.13 And mere membership in an
employer association does not constitute authorization for it to bar-
gain collectively for its members.14
Accordingly, on the basis of the foregoing and the entire record,
we shall grant the Unions' motion to dismiss the petition."
[The Board dismissed the petition.]
10 Schaeffers Prospect IGA Store, 124 NLRB 1433.
11 American Publishing Corporation, et at., 121 NLRB 115, 121.
12 American Publishing Corporation , supra.
13 Pennsylvania Garment Manufacturers Association, Inc., 125 NLRB 185, 197.
14 Arden Farms , et at., 117 NLRB 318.
16 Before, during, and after the hearing, the Unions made numerous motions to dismiss,
in addition to those adverted to above , on grounds of failure to join necessary parties,
inconsistencies , and ambiguities in the petition and amended petition , and others . In view
of our dismissal on unit grounds, we deem it unnecessary to pass upon these additional
grounds for dismissal , or upon the motion by Orange Belt District Council for enforce-
ment of a subpoena. duces tecum against Lamunyon. Counsel for the Unions claims in his
brief that this subpena was not complied with, but we are administratively advised that it
was. In view of our dismissal, we find that even if there was a failure to comply, it
would not have been prejudicial to the Unions.
Nachman Corporation and Eugene Olaque, Employee , Petitioner
and United Furniture Workers of America , Local 1010, AFL-
CIO. Case No. 21-RD-489. June 7, 1961
ORDER
On March 23,1961, the Board issued an order which in effect denied
a request filed by Mattress, Spring & Bedding Workers, Local 691,
131 NLRB No. 126.