Raymond Interior Systems, (2009)

Raymond Interior Systems and Southern California Painters and Allied Trades District Council No. 36, International Union of Painters and Allied Trades, AFL–CIO

United Brotherhood of Carpenters and Joiners of America, Local Union 1506 and Southern California Painters and Allied Trades District Council No. 36, International Union of Painters and Allied Trades, AFL–CIO and Southwest Regional Council of Carpenters, United Brotherhood of Carpenters and Joiners of America, Party in Interest. Cases 21–CA–37649 and 21–CB-14259

September 30, 2009

DECISION AND ORDER

By Chairman Liebman and Member Schaumber

On November 10, 2008, Administrative Law Judge Burton Litvack issued the attached decision. Respondent Raymond Interior Systems (Raymond) and Respondent Carpenters Local Union 1506 (the Carpenters) each filed exceptions and a supporting brief. The General Counsel and Painters District Council No. 36 (the Painters) each filed an answering brief. Raymond and the Carpenters each filed a reply brief. The Painters filed cross-exceptions and a supporting brief. The General Counsel, Raymond, and the Carpenters each filed an answering brief, and the Painters filed a reply brief.

The Board1 has considered the decision and the record in light of the exceptions, cross-exceptions, and briefs and has decided to affirm the judge’s rulings, findings,2 and conclusions and to adopt the recommended Order as modified and set forth in full below.3

We agree with the judge’s unfair labor practice findings in this case, although with two modifications:

(1) The judge found that, on October 2, 2006,4 Raymond violated Section 8(a)(2) and (3) of the Act by unlawfully assisting the Carpenters in obtaining authorization cards from Raymond’s drywall finishing employees. Specifically, the judge found that Raymond warned those employees that there would be no work for them if they failed to sign with the Carpenters “that day.” The judge found that those statements coerced the drywall finishing employees into signing authorization cards, upon which Raymond immediately granted 9(a) recognition to the Carpenters as the drywall finishing employees’ representative. Accordingly, the judge found that Raymond further violated Section 8(a)(2) on October 2, by granting that recognition at a time when the Carpenters did not represent an uncoerced majority of those employees, and that the Carpenters violated Section 8(b)(1)(A) by accepting that recognition. We agree with those findings for the reasons set forth in the judge’s decision.5 We, therefore, find it unnecessary to pass on the judge’s additional findings that Raymond unlawfully granted 9(a) recognition to the Carpenters on October 1, and that the Carpenters unlawfully accepted 9(a) recognition on that day. Those findings would be cumulative of the findings of unlawful conduct occurring on October 2, and would not materially affect the remedy in this proceeding.

(2) The judge also found that Raymond and the Carpenters violated Section 8(a)(3) and 8(b)(2), respectively, by maintaining and applying the Carpenters Union 2006–2010 master agreement, including its union-security provision, to the drywall finishing employees at a time when the Carpenters did not represent an uncoerced majority of those employees. The judge tied those violations to Raymond’s October 1 recognition of the Carpenters. As stated, we are not passing on the legality of that recognition. We nevertheless affirm the findings, as it is undisputed that the parties were applying that same agreement to the drywall finishing employees on October 2, when Raymond unlawfully recognized the Carpenters as the 9(a) representative of those employees. See Duane Reade, Inc., 338 NLRB 943, 944 (2003), enfd. mem. 99 Fed.Appx. 240 (D.C. Cir. 2004).

ORDER6

The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified and set forth in full below and orders that

1. Respondent, Raymond Interior Systems, Orange and San Diego, California, its officers, agents, successors, and assigns, shall

   1. Cease and desist from

      (a) Recognizing and bargaining with Southwest Regional Council of Carpenters on behalf of its affiliated local unions, including Respondent Carpenters Local Union 1506, as the 9(a) collective-bargaining representative of its drywall finishing employees at a time when those unions do not represent an uncoerced majority of those employees.

      (b) Maintaining, enforcing, or giving effect to the Carpenters Union 2006–2010 master collective-bargaining agreement, including the union-security clause, so as to cover its drywall finishing employees, or any extensions, renewal, or modifications thereof, unless or until Respondent Carpenters Local Union 1506 has been certified by the Board as the exclusive collective-bargaining representative of those employees; provided that nothing in this Order shall authorize, allow, or require the withdrawal or elimination of any wage increase or other benefits that may have been established pursuant to said agreement.

      (c) Assisting Respondent Carpenters Local Union 1506 in obtaining authorization cards by warning its drywall finishing employees that, if they did not sign with Respondent Carpenters Local Union 1506 that day, there would be no more work for them.

      (d) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.

   2. Take the following affirmative action necessary to effectuate the policies of the Act.

      (a) Withdraw and withhold all recognition from Respondent Carpenters Local Union 1506 as the collective-bargaining representative of its drywall finishing employees unless and until it has been duly certified by the Board as the collective-bargaining representative of those employees.

      (b) Jointly and severally with Respondent Carpenters Local Union 1506, reimburse its past and present drywall finishing employees, who joined Respondent Carpenters Local Union 1506 on or after October 2, 2006, for any initiation fees, periodic dues, assessments, or any other moneys, which they may have paid or which may have been withheld from their pay pursuant to the Carpenters Union 2006–2010 master agreement, with interest as set forth in the remedy section of the judge’s decision.

      (c) To the extent that coverage was provided under Carpenters Union plans, provide alternate benefits coverage equivalent to the coverage that its drywall finishing employees possessed under the Carpenters Union 2006–2010 master agreement, including pension coverage and medical, hospitalization, prescription drug, dental, optical, life, and other insurance benefits, and ensure that there be no lapse in coverage.

      (d) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place designated by the Board or its agents, all payroll records, social security payment records, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of money to be reimbursed under the terms of this Order.

      (e) Within 14 days after service by the Region, post at its Orange facility and worksites in Southern California copies of the attached notice marked “Appendix A.”7 Copies of the notice, on forms provided by the Regional Director for Region 21, after being signed by Respondent Raymond’s authorized representative, shall be posted by Respondent Raymond immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent Raymond to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, Respondent Raymond has gone out of business or closed the facility involved in these proceedings, Respondent Raymond shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former drywall finishing employees employed by Respondent Raymond at any time since October 2, 2006.

      (f) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply.

2. Respondent, United Brotherhood of Carpenters and Joiners of America, Local Union 1506, Los Angeles and Orange, California, its officers, agents, and representatives, shall

   1. Cease and desist from

      (a) Accepting assistance from Respondent Raymond in obtaining union authorization cards from Raymond’s drywall finishing employees.

      (b) Accepting recognition from Respondent Raymond as the 9(a) collective-bargaining representative of its drywall finishing employees at a time when Carpenters Local Union 1506 does not represent an uncoerced majority of those employees.

      (c) Maintaining and enforcing the Carpenters Union 2006–2010 master agreement, including the union-security clause, so as to cover Respondent Raymond’s drywall finishing employees, and any extensions, renewal, or modifications thereof, unless and until it has been certified by the Board as the collective-bargaining representative of those employees.

      (d) Failing to inform Respondent Raymond’s drywall finishing employees, when it first sought to obligate them to pay dues and fees under a union-security clause, of their rights under NLRB v. General Motors Corp., 373 U.S. 734 (1963), to be and remain nonmembers of Respondent Carpenters; and of the rights of nonmembers under Communications Workers v. Beck, 487 U.S. 735 (1988), to object to paying for union activities not germane to the Union’s duties as collective-bargaining representative, and to obtain a reduction-in-dues and fees for such activities.

      (e) In any like or related manner...