Mcgee v. Local No. 682 Of Bhd. Of Painters

• Decision Date: 23 June 1944
• Docket Number: No. 807.,807.
• Citation: 38 A.2d 303
• Parties: McGEE v. LOCAL NO. 682 OF BROTHERHOOD OF PAINTERS, DECORATORS and PAPERHANGERS OF AMERICA, A.F. of L.
• Court: Rhode Island Supreme Court

38 A.2d 303

McGEE

v.LOCAL NO. 682 OF BROTHERHOOD OF PAINTERS, DECORATORS and PAPERHANGERS OF AMERICA, A.F. of L.

No. 807.

Supreme Court of Rhode Island.

June 23, 1944.

Suit by Raymond J. McGee, doing business as Thomas P. McGee & Sons, against Local No. 682 of th Brotherhood of Painters, Decorators and Paperhangers of America, A.F. of L., to review a decision of the Rhode Island State Labor Relations Board holding the plaintiff guilty of unfair labor practice. From a decree reversing decision of the State Labor Relations Board, Local No. 682 of the Brotherhood of Painters, Decorators and Paperhangers of America, A.F. of L., and State Labor Relations Board appeal.

Appeal dismissed, decree affirmed, and case remanded.

See, also, 30 A.2d 461.

Appeal from Superior Court, Providence and Bristol Counties; Alexander L. Churchill, Judge.

Higgins & Silverstein and John R. Higgins, all of Woonsocket, for employer.

Edward F. Dwyer, of Woonsocket, Joseph A. Padway and I.B. Padway, both of Washington, D.C., and Irving I. Zimmerman, of Woonsocket, for Union.

Francis A. Manzi, of Providence, for R.I. State Labor Relations Board.

CAPOTOSTO, Justice.

These are two appeals from a decree of the superior court reversing a decision of the Rhode Island State Labor Relations Board, hereinafter called the board, which decision is dated October 27, 1942, and holds that Raymond J. McGee, hereinafter called the employer, was guilty of unfair labor practice in that he had refused to bargain collectively with Local No. 682 of the Brotherhood of Painters, Decorators and Paperhangers of America, A.F. of L., hereinafter called the union. The unfair labor practice was the alleged violation of subdivision 6, sec. 5, chapter 1066, Public Laws 1941, as amended by Public Laws 1942, chapter 1247, entitled the Rhode Island State Labor Relations Act, hereinafter called the act. The appellants are the board and the union.

The decision of the board in the instant case involves three prior hearings and decisions by the board, the first of which, dated August 17, 1942, is specifically referred to in its decision now before us, and the other two were made a part of the present record by the board, at the hearing in the superior court. At that hearing, when the question arose as to whether the record in all three of the prior proceedings before the board were to be considered as part of the record in the case at bar, the board agreed, while the attorney for the union merely said: “I don't believe I can agree to it.” No formal objection to such action was made by him, however, nor did he, in any other manner, ask for a ruling by the court on the matter.

The union now insists that, in so far as it is concerned, we should disregard all such prior proceedings and confine our consideration of this case solely to the decision of the board of October 27, 1942 in case 43. This we cannot do. While the union did not expressly agree to the incorporation of the prior proceedings as part of the record in the instant case, it must be held to have waived any objection thereto, or at least to have acquiesced in such action.

The proceedings thus incorporated in the record now before us are known as cases numbered 38, 42 and 43 in the files of the board and will be so identified in this opinion. The decision of the board in the instant case, which was reversed by the superior court, came at the conclusion of a series of controversies between the union and the I.T.U. as to which of the two rival labor organizations was the real representative of the employees for the purpose of collective bargaining with the employer.

It appears that on May 5, 1941, the employer, who employed some twenty men, entered into a collective labor contract with the union. This contract consists of three pages and each page is dated May 5, 1941. The pertinent provisions of the contract are as follows: “Sec. 1. (a) On and after April 1st, 1941 eight (8) hours shall constitute a days work * * *. Sec. 3 Starting April 1st, 1941 the rate of wages shall be eighty cents (80¢) per hour * * *. Sec. 10 This agreement shall remain in force one (1) year from the date here of. Either party contemplating changes at its expiration shall give ninety (90) days notice. The party receiving such notice agrees to call a conference within thirty (30) days upon receipt of same. Sec. 11 Upon expiration when neither party has shown a desire to change as specified, this Agreement shall then remain in force subject to change by either party at any time. Such changes shall be governed by the provisions set forth in Sec. 10 of this Agreement.” (Italics ours)

By letter, dated December 17, 1941, the union notified the employer that the new wage scale for painters in that organization would be one dollar an hour, effectual ninety days from the date of this letter. The raise in wages was thus set by the union to become effective on March 18, 1942, which was within the period covered by the contract. The record before us shows that, following the receipt of this letter, the employer discussed this matter with representatives of the union without reaching an agreement; and that, in April 1942, the business agent of the union demanded that the employer sign a new contract calling for one dollar an hour, which the latter refused to sign, whereupon the union called a strike and the employees quit work on April 13, 1942.

Two days later the I.T.U. filed a petition, case 38, requesting the board to hold an election on the ground that it represented the employees for the purpose of bargaining with the employer. The union appeared and intervened. Following a hearing, the board, by its decision of May 18, 1942, dismissed the petition, without prejudice, on the ground that, as the employer had entered into a contract with the union “for a period of one year from April 1941 to April 1942”, and as it further appeared that negotiations were then pending for a renewal of such contract, the union “should be permitted to continue negotiations” with the employer.

On May 25, 1942, the employer entered into a contract with the I.T.U. By this time all employees, who formerly belonged to the union, had become members of the I.T.U. On July 20, 1942, the I.T.U. filed another petition, case 42, asking for an election and for certification of representation. This proceeding was, in effect, a petition to reopen case 38 on the ground of a material change of circumstances. A motion by the union to intervene was granted, but a similar motion by the employer was denied. On July 24, 1942 the union filed a petition for certification, case 43, and alleged therein that the employer had refused to negotiate with it. The I.T.U. was allowed to intervene.

These two petitions were heard on August 4, 1942, and a decision was rendered by the board in each case on August 17, 1942. In case 42, the board gave no validity to the employer's contract with the I.T.U. and further held that: “In view of the existence of the automatic renewal clause contract, the Board now finds, that there is no justifiable question or controversy concerning the bargaining representation of the employees of Thomas P. McGee & Sons or any reason for the holding of an election.” The board therefore dismissed the petition. In case 43 the board, basing its decision upon “the entire record of the proceedings”, in effect found that the employer's contract with the union had been automatically renewed; that the union was the then proper bargaining agent, and that the employer should negotiate with the union respecting the matter in dispute.

The next step in the interlocking proceedings involved in the instant case took place on October 5, 1942, when the union filed a petition with the board, identified as case 44 in its files and the one now actually before us, in which the union alleged that the employer was guilty of unfair labor practice, in that he had refused to negotiate with it. The I.T.U. was not a party in this case. The board, in substance, found that the employer had refused to negotiate with the union, and that, by entering into a contract with the I.T.U., he had disregarded the board's decision of August 17, 1942, wherein it had designated the union as the sole bargaining agent for the employees. “Upon the basis of the foregoing findings of fact and from the entire record in the proceedings”, the board held that the employer had engaged in unfair labor practices and therefore ordered the employer to negotiate with the union in accordance with certain specified directions.

From this decision the employer duly appealed to the superior court, which, after hearing on the entire record hereinbefore summarized, reversed the decision of the board on the ground that in the circumstances of this case the employer had “a legal right to enter into a new labor contract with any person or association or labor body”, and entered a decree to this effect. From such decree, the board and the union appealed to this court.

The appellants urge different grounds for their common contention that the superior court erred in reversing the decision of the board in the instant case. The board contends that the contract between the employer and the union was a contract for one year from April 1, 1941 to April 1, 1942; that it was automatically renewed on the...