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New York District Council No. 9 v. National Labor Relations Board

decided: December 27, 1971.

NEW YORK DISTRICT COUNCIL NO. 9, INTERNATIONAL BROTHERHOOD OF PAINTERS & ALLIED TRADES, AFL-CIO, PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD, RESPONDENT *FN*



Moore, Hays and Mulligan, Circuit Judges. Hays, Circuit Judge, dissenting.

Author: Moore

MOORE, C. J.:

New York District Council Number 9 of the International Brotherhood of Painters and Allied Trades, AFL-CIO (Union) petitions this court to review an order of the NLRB,*fn1 the Board cross-petitions for enforcement.*fn2 The Board's order provides, in relevant part, that the Union cease and desist from enforcing, unilaterally and without notice to or consultation with the charging parties herein,*fn3 any production quota against employees of the charging parties performing work on New York City Housing Authority projects.*fn4 The order also requires the Union to, on request, bargain collectively in good faith with the charging parties prior to enforcement of any production quota.*fn5 We deny the Union's petition to review; we grant the Board's petition for enforcement.

I.

On March 5, 1968, the Union unanimously adopted at a special meeting a resolution, effective April 1, 1968, stipulating that no journeyman member employed on New York City Housing Re-paint work paint more than 10 rooms per week. According to the Union, the purpose of the rule is to relieve the pressure on painters to work quickly so as to reduce the number of violations of trade rules, increase the health and safety of union members, and improve the quality of their work. The Union sought to enforce the rule by requiring members to carry cards setting forth the rule and the penalties for violation, and by instructing union stewards to submit daily reports on production.

Prior to the announcement of this resolution, journeymen painted on average 11.5 rooms per week. The then existing collective bargaining contract made no reference to production quotas, but it did provide that Union members would work a seven-hour day, five-day work week.

On March 13, after receiving protests from members about the 10-room rule, Louis Elkins, secretary of the Association, informed the Union that the rule was contrary to a long-established trade principle, and that it violated Article XXII of the existing trade agreement, which provided that neither party to the agreement shall make any rule conflicting with the terms of the agreement. Elkins requested that the Union rescind the rule or refrain from taking action to implement it.

In reply Frank Schonfeld, the Union's secretary-treasurer, contended that the rule did not violate any term of the agreement, and therefore refused to accede to Elkins' request. Schonfeld similarly rejected a later request by Elkins that the matter be submitted to the Joint Trade Board*fn6 for resolution and submission to arbitration if necessary. While Elkins threatened court action, no such action was taken, apparently in the belief that the issue would be settled in the forthcoming negotiations on the new trade agreement.

Negotiations relating to a new agreement commenced in June of 1968. On July 31, the date on which the existing agreement expired, the Union called a strike, which was to last until September 9, the date on which the new contract was executed. During negotiations both sides submitted demands with respect to production quotas.*fn7 The Association abandoned its demand early in the negotiations, but consistently refused to accept the Union's demand. Unable to reach an accord on this issue, the parties signed the new agreement adhering to the positions they held prior to negotiations -- the Association believing that the rule violated the terms of the agreement, the Union believing that the rule did not and that it was a proper means of internal union management.

As did the old agreement, the new agreement provided for a seven-hour day, five-day work week, with journeymen to be paid by the hour.

After the strike ended, the Union intensified its efforts to enforce the 10-room rule. It threatened to fine those members who did not comply with the rule. Some members, at Union urging, stopped work after painting 10 rooms even though they had not yet worked the full 35 hour week. As a result of the Union's efforts, average production fell below the 11.5 room average.

In response, some employers discharged painters who reduced their output in observance of the rule, or docked employees for time not worked when they left the job after having met the 10-room quota.

Finally, on December 27, 1968, the five Association members and several independents filed section 8(b)(3) charges against the Union with the Board. After extensive hearings, the Trial Examiner recommended dismissal of the complaint as time-barred. The Board, one member dissenting, disregarded this recommendation, holding that the ...


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