Garner/Morrison, LLC, (2011)

Docket Number:28-CA-021311
 
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NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes.

Garner/Morrison, LLC and International Union of Painters and Allied Trades, District Council #15, Local Union #86, AFL2013CIO2013CLC

Southwest Regional Council of Carpenters and International Union of Painters and Allied Trades, District Council #15, Local Union #86, AFL2013 CIO2013CLC. Cases 282013CA201321311 and 282013CB2013 6585

May 27, 2011

DECISION AND ORDER REMANDING

BY CHAIRMAN LIEBMAN AND MEMBERS BECKER AND PEARCE

On January 27, 2009, the two sitting members of the Board issued a Decision and Order Remanding in this proceeding, which is reported at 353 NLRB 719.1

Thereafter, the Respondents each filed a petition for review in the United States Court of Appeals for the District of Columbia Circuit, and the General Counsel filed a cross-application for enforcement. On June 17, 2010, the United States Supreme Court issued its decision in New Process Steel, L.P. v. NLRB, 130 S.Ct. 2635, holding that under Section 3(b) of the Act, in order to exercise the delegated authority of the Board, a delegee group of at least three members must be maintained. Thereafter, the court of appeals remanded this case for further proceedings consistent with the Supreme Court2019s decision.

The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.2

The Board has considered the judge2019s decision3 and the record in light of the exceptions and briefs and has

1 Effective midnight December 28, 2007, Members Liebman, Schaumber, Kirsanow, and Walsh delegated to Members Liebman, Schaumber, and Kirsanow, as a three-member group, all of the powers of the National Labor Relations Board in anticipation of the expiration of the terms of Members Kirsanow and Walsh on December 31, 2007. Thereafter, pursuant to this delegation, the two sitting members issued decisions and orders in unfair labor practice and representation cases.

2 Consistent with the Board2019s general practice in cases remanded from the courts of appeals, and for reasons of administrative economy, the panel includes the remaining member who participated in the original decision. Furthermore, under the Board2019s standard procedures applicable to all cases assigned to a panel, the Board members not assigned to the panel had the opportunity to participate in the adjudication of this case at any time up to the issuance of this decision.

3 On December 21, 2007, Administrative Law Judge James M. Kennedy issued the attached decision. The General Counsel and Charging Party Painters Union (the Painters) each filed exceptions and a supporting brief, the Respondents each filed an answering brief, and the General Counsel and the Painters each filed a reply brief.

decided to affirm the judge2019s rulings, findings, and conclusions only to the extent consistent with this Decision and Order.

  1. OVERVIEW

    The complaint in this case alleges, among other things, that Respondent Garner/Morrison (Garner/Morrison) violated Section 8(a)(1) of the Act by engaging in surveillance of its employees during a meeting with its painters and tapers on April 2, 2007,4 and violated Section 8(a)(2) of the Act by assisting and recognizing the Respondent Carpenters Union (Carpenters) at this meeting. The complaint additionally alleges that the Carpenters violated Section 8(b)(1)(A) of the Act by accepting such assistance and recognition and by entering into a collective-bargaining agreement5 with Garner/Morrison.6 The judge dismissed the complaint in its entirety, finding that no such unlawful conduct occurred.7 As discussed below, we find, contrary to the judge, that Garner/Morrison surveilled its employees2019 protected activity

    4 All dates hereafter are 2007 unless otherwise indicated.

    5 The complaint refers to the Carpenters entering into a collectivebargaining agreement with Garner/Morrison. As discussed herein, the Carpenters entered into an agreement with Garner/Morrison entitled 201cSouthwest Regional Council of Carpenters Arizona Drywall/Lathing Memorandum Agreement.201d The agreement states that Garner/Morrison 201cagrees to comply with all the terms, including wages, hours, and working conditions and rules as set forth in the [Carpenters2019 master agreement].201d

    6 The complaint does not allege that Garner/Morrison violated the Act by entering into a collective-bargaining agreement with the Carpenters.

    7 In adopting the judge2019s findings that Garner/Morrison did not violate Sec. 8(a)(1) of the Act by expressing to the employees that it would be futile to select the Painters as their collective-bargaining representative, we do not rely on the judge2019s statement that Garner/Morrison2019s part-owner Chris Morrison did not expressly refer to union representation at the April 2, 2007 meeting. Contrary to the judge2019s statement, the record establishes that Morrison told the employees that the Carpenters was a 201cbetter choice201d for them than the Painters; that the Carpenters 201cis probably the way we want to go201d; and that 201cwe think it is a good deal201d when introducing the Carpenters2019 representatives. Under the circumstances, however, these statements do not convey the message that selecting the Painters would be futile. For this reason, we adopt the judge2019s dismissal of the complaint allegation.

    In adopting the judge2019s finding that Garner/Morrison did not violate Sec. 8(a)(1) of the Act by promising employees improved benefits if they selected the Carpenters as their exclusive collective-bargaining representative, we do not rely on the judge2019s statement that: 201cSomething needed to be done as the Painters2019 insurance had been lawfully dropped and something was needed to take its place. The Carpenters provided a handy replacement.201d Rather, we rely on the judge2019s additional finding that there was no evidence that Garner/Morrison executives made any promises of benefits to its employees if they selected the Carpenters.

    For the reasons set forth in his decision, we adopt the judge2019s findings that Garner/Morrison did not violate Sec. 8(a)(1) of the Act during its April 2, 2007 meeting by polling its painters and tapers or by interrogating them.

    at this meeting, thereby assisting the Carpenters with its organizing effort, and unlawfully recognized the Carpenters as the employees2019 collective-bargaining representative. We further find that the Carpenters unlawfully accepted such assistance and recognition and unlawfully entered into the memorandum agreement with Garner/Morrison.

    The judge further found that Garner/Morrison did not violate Section 8(a)(1) by interrogating employee Gary Servis on April 9. As explained below, we find that further credibility resolutions are required to resolve this issue. Accordingly we shall sever and remand this allegation to the judge for further analysis.

  2. APRIL 2 ALLEGATIONS

    A. Factual Background Garner/Morrison is a construction industry employer engaged in drywall installation and tenant improvement work in office buildings and at commercial construction sites. Garner/Morrison incorporated in November 2003. During its first month of operation, Garner/Morrison2019s three owners performed the manual labor and did not hire any employees. Thereafter, between December 1 and 3, 2003, Garner/Morrison hired its first employee, a carpenter.

    On December 3, 2003, prior to hiring any additional employees, Garner/Morrison entered into a 200220132006 Memorandum Agreement (2002 MOA) with the Carpenters. The 2002 MOA assent provision states, among other things, that 201cthe Carpenters Union has the support of a majority of the employees performing work covered by this Agreement.201d

    The 2002 MOA bound the parties to a 200220132006 drywall multiemployer master agreement (2002 Master Agreement) that contained a recognition provision (2002 recognition provision) stating.

    The [Carpenters] Union understands and recognizes that the WWCCA [the employer association] and its members are signatory to a collective bargaining agreement with the painters and/or plaster tenders covering drywall finishing and wet wall finish work. The parties agree that Article h [sic], Section 6 [the work-covered clause, which the recognition clause incorporates by reference] shall apply only to those signatory employers who are not already signatory to a collective bargaining agreement with the painters and/or plaster tenders covering the drywall finishing or wet wall finish work as described in Article I Section 6 of the agreement and who chose to assign that work to the painters. The [Carpenters] Union agrees not to invoke or enforce Article I, Section 6 or to create any recognition dispute concerning the work described in that section against

    any signatory employer that is also signatory to an agreement with the painters and/or plaster tenders covering the drywall finishing or wet wall finish work and who chooses to assign that work to the painters and/or plasterers and plaster tenders.

    Thereafter, in April 2004, Garner/Morrison hired painters and tapers and immediately entered into two collective-bargaining agreements with the Painters, one covering Garner/Morrison2019s painters and the other covering Garner/Morrison2019s tapers (collectively, the 201cPainters2019 collective-bargaining agreements201d). Both contracts bore a March 31, 2007 expiration date.

    On January 16, 2006, during the term of the Painters2019 collective-bargaining agreements, Garner/Morrison signed an additional 200520132007 Memorandum Agreement (2006 MOA) with the Carpenters expressly binding Garner/Morrison to the terms of the 2002 Master Agreement and any subsequent Carpenters master agreements until June 30...

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