Acme Tile & Terrazzo Co.

National Labor Relations Board - Board Decisions

Feb 28, 1992

306 N.L.R.B. 479 (N.L.R.B. 1992)

479
306 NLRB No. 83
ACME TILE & TERRAZZO CO.
1 Respondent International Union of Bricklayers and Allied Crafts-
men, Local No. 1 Rhode Island has excepted to the language in the
judge’s recommended Order and notice to the extent that it could be
construed as preventing the Union from enforcing lawful contractual
union-security obligations requiring membership in the Union within
8 days of employment. We agree with the judge that the helper ad-
dendum to the Bricklayers agreement was lawful and that the collec-
tive-bargaining agreement of which it is a part contains a valid
union-security provision. We will clarify the Order and notice ac-
cordingly.
Acme Tile and Terrazzo Co. and Local No. 36-T,
United Brotherhood of Carpenters and Joiners
of America, AFL–CIO
Admiral Tile Co., Inc. and Local No. 36-T, United
Brotherhood of Carpenters and Joiners of
America, AFL–CIO
Jolicoeur & Resmini Co., Inc. and Local No. 36-T,
United Brotherhood of Carpenters and Joiners
of America, AFL–CIO
Providence Marble Corp. and Local No. 36-T,
United Brotherhood of Carpenters and Joiners
of America, AFL–CIO
Roman Tile & Terrazzo Co. and Local No. 36-T,
United Brotherhood of Carpenters and Joiners
of America, AFL–CIO
Ceramic Tile, Marble and Terrazzo Contractors
Association of Rhode Island, Inc. and Local No.
36-T, United Brotherhood of Carpenters and
Joiners of America, AFL–CIO
International Union of Bricklayers and Allied
Craftsmen, Local No. 1 Rhode Island (Acme
Tile & Terrazzo Co., et al) and Local No.
36-T, United Brotherhood of Carpenters and
Joiners of America, AFL–CIO. Cases 1–CA–
26463–1, 1–CA–26463–2, 1–CA–26463–3, 1–
CA–26463–4, 1–CA–26463–5, 1–CA–26463–6,
and 1–CB–7053
February 28, 1992
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On April 8, 1991, Administrative Law Judge Peter
E. Donnelly issued the attached decision. The General
Counsel and the Charging Party filed exceptions and
supporting briefs and Respondent Employers and Re-
spondent Ceramic Tile, Marble and Terrazzo Contrac-
tors Association of Rhode Island, Inc. filed a joint an-
swering brief to the Charging Party’s exceptions. Re-
spondent International Union of Bricklayers and Allied
Craftsmen, Local No. 1 Rhode Island filed limited ex-
ceptions and a supporting brief, to which the Charging
Party filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions1 and briefs and has
decided to affirm the judge’s rulings, findings, and
conclusions only to the extent consistent with this De-
cision and Order.
I. BACKGROUND
The facts, provided in detail in the judge’s decision,
may be summarized as follows. Respondent Ceramic
Tile, Marble and Terrazzo Contractors Association of
Rhode Island (Association) is the authorized collective-
bargaining representative for its individual members,
namely, the Respondent Employers. The Association
had negotiated series of collective-bargaining agree-
ments with Local 1 of the International Union of
Bricklayers and Allied Craftsmen of Rhode Island
(Local 1), the last of which was effective May 1, 1988,
through April 30, 1990. The agreement covered work
performed by tile ‘‘setters’’ (also called ‘‘mechanics’’).
The Association also entered into a prehire agreement
with the Tile, Marble, Terrazzo Finishers, Shopworkers
& Granite Cutters International Union AFL–CIO
(Local 36) (herein Local 36) effective April 1, 1988,
through March 31, 1989, covering ‘‘helpers.’’ Helpers
perform grouting, acid washing, mixing, cleanup, and
various other duties. In December 1988, Local 36 was
formally notified that as a result of its International
union’s decision to affiliate with the International
Brotherhood of Carpenters (Carpenters), Local 36 was
a Carpenters affiliate. Local 36 was authorized under
the Agreement of Affiliation to retain its identity and
to exercise autonomy at the local level for a period of
at least 2 years from the date of affiliation.
In January 1989, Bricklayers Local 1 Business Man-
ager David Barricelli invited Local 36 President John
Martino and its executive board to meet to discuss af-
filiation. At the meeting, Local 36 declined to affiliate
with Local 1 because it wanted to retain its own busi-
ness agent, executive board, and set of books, rather
than integrate operations as Local 1 had proposed. On
February 3, Barricelli addressed Local 36 members at
one of their union meetings and made his proposal di-
rectly to the members. He also told them that if they
did not join Local 1, he would speak to the Bricklayers
locals in Massachusetts and Connecticut and would tell
them that the Local 36 helpers were carpenters and
should no longer be permitted to work in those juris-
dictions. This was significant because much of the Re-
spondent Employers’ work was done in Massachusetts
and Connecticut. The members discussed their options
among themselves and voted to remain with the Car-
penters.
On February 14, Carpenters President Martino and
other officials met with some of the Association mem-
bers and informed them that Local 36 was affiliated
with the Carpenters and was not going to affiliate with
480 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Neither Respondent Providence nor Respondent Association was
included in these complaint allegations.
3 There was neither unlawful coercion nor assistance so as to in-
validate the addendum.
4 Sec. 8(f) provides that a prehire agreement may require ‘‘as a
condition of employment, membership in such labor organization
after the seventh day following the beginning of such employment.
. . . .’’ Sec. 14(b), however, provides that ‘‘[n]othing in this Act
shall be construed as authorizing the execution or application of
agreements requiring membership in a labor organization as a condi-
tion of employment in any State or Territory in which such execu-
tion or application is prohibited by State or Territorial law.’’
5 For example, according to Acme helper Robert Degnan’s credited
testimony, Acme President John Verardo told him on March 31 that
he had signed a contract with the Bricklayers Union and ‘‘if we
wanted to work Monday, we had to come in Monday morning and
be prepared to sign a card joining the Bricklayers Union or we can’t
work . . . . He said he would have cards available at the shop to
sign.’’
the Bricklayers. John Verardo from Acme Tile ex-
pressed concern that, because the helpers in Massachu-
setts and Connecticut had decided to affiliate with the
Bricklayers, the Bricklayers would prevent him from
using Local 36 helpers in those States if they were af-
filiated with the Carpenters.
On March 29, 1989, 2 days before the Association
contract with Local 36 was set to expire, the Associa-
tion members met at Barricelli’s office. Barricelli
raised problems relating to Local 36’s affiliation with
the Carpenters and proposed that they consider an
‘‘Addendum’’ to the Local 1 contract. The addendum
covered work performed by the helpers at a wage rate
comparable to that being paid helpers under Brick-
layers’ contracts in Massachusetts and Connecticut.
Barricelli said that if the Association members did not
sign this ‘‘Addendum,’’ he would attempt to persuade
the Bricklayers locals in Massachusetts and Con-
necticut to discontinue their previous practice of allow-
ing their setters to work with helpers from Local 36
and to enforce their contracts, which covered helpers.
After some discussion among themselves, the Re-
spondent Employers agreed to sign the addendum. The
addendum became effective April 1, 1989, and was a
supplement to an underlying agreement that contained
a union-security clause requiring employees to become
members of Bricklayers Local 1 within 8 days of their
employment. By letter mistakenly dated May 29, but
sent March 29, 1989, Association President MacPhail
advised Carpenters President Martino that the Associa-
tion was repudiating its bargaining relationship with
Local 36 effective at the expiration of their agreement
on March 31, 1989.
On Friday, March 31, the day before the addendum
was to go into effect, several of Respondent Employ-
ers’ employees were told by their Employers that if
they wanted to work on the following Monday morn-
ing, they would have to join the Bricklayers. None of
the helpers joined the Bricklayers at that time or
worked on Monday, April 3.
II. DISCUSSION
The complaint alleges, inter alia, that Respondent
Employers Acme Tile and Terrazzo Co. (Acme),
Roman Tile & Terrazzo Co. (Roman), Jolicoeur &
Resmini Co., Inc. (Jolicoeur), and Admiral Tile Co.,
Inc. (Admiral) violated Section 8(a)(1), (2), and (3) of
the Act by forcing their helper employees to join Inter-
national Union of Bricklayers and Allied Craftsmen,
Local No. 1 Rhode Island (Bricklayers).2
The judge dismissed this aspect of the complaint. He
found, inter alia, that the Respondent Employers’ state-
ments (on which these complaint allegations were
predicated) that employees must join the Bricklayers
Union in order to continue working were an expla-
nation of contractual union-security provisions.
The General Counsel and the Charging Party, Local
No. 36-T of the United Brotherhood of Carpenters and
Joiners of America, AFL–CIO, filed exceptions. They
argue, inter alia, that the statements contributed unlaw-
ful support to the Bricklayers within the meaning of
Section 8(a)(2) and interfered with the employees’
Section 7 right to join or assist the Carpenters and to
refrain from joining the Bricklayers, within the mean-
ing of Section 8(a)(1), citing Freeman G. Gaffney,
Inc., 205 NLRB 1012, 1016–1017 (1973). The General
Counsel also argues that even if the addendum and the
union-security clause were legal, a requirement that the
employees join the Union violates Section 8(a)(1), (2),
and (3) when the employees are not given the statutory
7-day grace period and, instead, it is implied that im-
mediate execution of membership cards is a condition
of employment. He relies on Bear Creek Construction
Co., 135 NLRB 1285, 1286 fn. 4 (1962), and Luke
Construction Co., 211 NLRB 602 (1974). Moreover,
according to the General Counsel, those employees
who were not allowed to work because they refused to
join Local 1, a minority union, are discharged
discriminatees under Section 8(a)(3).
We find merit in these 8(a)(1), (2), and (3) allega-
tions. Although we agree with the judge that the Re-
spondent Association lawfully entered into an 8(f)
agreement with Bricklayers Local 1,3 we disagree with
his conclusion that the Respondent Employers’ state-
ments and the resulting terminations did not violate the
Act.
The Association contract provided that employees
were required to join that Bricklayers within 8 days of
their employment. Indeed, Section 8(f) of the Act re-
quires that there be a 7-day grace period.4 Neverthe-
less, the judge credited testimony that these Respond-
ent Employers all told their helpers to join the Brick-
layers before they reported to work on Monday, April
3, 1989, only 2 days after the new agreement went into
effect.5 The Respondent Employers have not even as-
481ACME TILE & TERRAZZO CO.
6 Luke Construction Co., 211 NLRB 602, 603 (1974).
7 In mid-May, Jolicoeur employee John Eghian was told by Super-
visor Joe Resmini that he could return to work if he joined the
Bricklayers. Ten of the helpers resigned from the Carpenters and
joined the Bricklayers on the following dates in 1989: Gerard Peltier,
April 6; Sam DeRotto, June 16; Karl Langborg, June 26; Carlo
Martino, July 3; Paul Baptista, July 5; David Curtis, July 11, Robert
Bordieri, July 24; Greg Sears, September 18; Paul Graziano, Sep-
tember 20; and John Eghian, September 28.
8 Metric Constructors, 297 NLRB 913 (1990).
In light of the above findings of violations against the Respondent
Employers, limited solely to the denial of the statutorily required 7-
day grace period, we need not pass on whether their conduct was
unlawful for the additional reason that the contract assertedly applied
only to projects begun after April 1. Since we do not pass on this
issue, we do not decide whether employees working on projects
begun before April 1 could be lawfully subjected to the union-secu-
rity clause of the contract.
serted that these were inarticulate communications or
misunderstandings. Thus, we must conclude that the
Respondent Employers said what they meant, and
meant what they said. Plainly, the helpers had no 7-
day grace period. By telling employees that their con-
tinued employment was conditioned on membership in
Respondent Bricklayers Local 1 as of Monday, April
3, 1989, which did not allow for 8(f)’s 7-day grace pe-
riod, Respondent Employers Acme, Admiral, Jolicoeur,
and Roman have interfered with, restrained, and co-
erced employees in the exercise of their rights to re-
frain from joining a labor organization in violation of
Section 7 of the Act and Section 8(a)(1) of the Act,
and have rendered unlawful assistance to Local 1 in
violation of Section 8(a)(2) and (1) of the Act.6
By the same token, we find that Respondent Em-
ployers Admiral, Acme, Roman, and Jolicoeur termi-
nated their helpers on March 31, 1989, because they
refused to join Local 1. The Respondent Employers
had a collective-bargaining agreement with the Massa-
chusetts Bricklayers covering tilesetters. Based on their
understanding that the setters would refuse to work
with helpers represented by the Carpenters, the Re-
spondent Employers terminated those helpers on Fri-
day, March 31, to ensure that there would be no work
stoppage in Massachusetts or Connecticut on Monday
morning and that the Employers would be able to work
without incident. Those employees who subsequently
joined Bricklayers Local 1 were allowed to return to
work.7 Under the express language of the Associa-
tion’s collective-bargaining agreement with the Brick-
layers and consistent with the requirements of the Act,
employees were entitled to an 8-day grace period in
which to become members of the Bricklayers. The Re-
spondent Employers’ insistence on immediate member-
ship deprived them of their right to exercise their
choice in the matter and unlawfully encouraged their
membership in Bricklayers Local 1. By forcing em-
ployees to join the Bricklayers before they could law-
fully be required to do so, Respondent Employers
Roman, Jolicoeur, Acme, and Admiral also unlawfully
discouraged membership in Carpenters Local 36. Ac-
cordingly, we find that the Respondent Employers vio-
lated Section 8(a)(3) and (1) of the Act when they con-
ditioned the continued employment of ‘‘helpers’’ on
those employees immediately joining Local 1 of the
Bricklayers Union.8
AMENDED CONCLUSIONS OF LAW
Delete Conclusion of Law 4 and add the following:
‘‘4. Respondents Roman, Jolicoeur, Acme, and Ad-
miral violated Section 8(a)(1) of the Act by telling
their respective employees on March 31, 1989, that
their continued employment was conditioned on mem-
bership in International Union of Bricklayers and Al-
lied Craftsmen, Local No. 1 Rhode Island as of April
3, 1989.
‘‘5. Respondents Roman, Jolicoeur, Acme, and Ad-
miral violated Section 8(a)(1) and (2) of the Act by re-
quiring on March 31, 1989, that their employees im-
mediately join the Bricklayers.
‘‘6. Respondents Roman, Jolicoeur, Acme, and Ad-
miral violated Section 8(a)(1) and (3) of the Act by
terminating their employees because they refused to
join the Bricklayers.
‘‘7. Respondent Ceramic Tile, Marble & Terrazzo
Contractors Association of Rhode Island, Inc. and Re-
spondent Providence Marble Corp. have not violated
the Act.
‘‘8. The unfair labor practices are unfair practices
affecting commerce within the meaning of Section 2(6)
and (7) of the Act.’’
AMENDED REMEDY
Having found that Respondents Roman, Jolicoeur,
Acme, and Admiral have engaged and are engaging in
unfair labor practices, we shall order that they cease
and desist and take affirmative action necessary to ef-
fectuate the purposes of the Act and to post an appro-
priate notice.
Having found that Respondent Employers Roman,
Jolicoeur, Acme, and Admiral violated Section 8(a)(3)
and (1) of the Act by discharging employees, we shall
order each to offer its discriminatorily discharged em-
ployees immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions without prejudice to
their seniority or other rights and privileges previously
enjoyed and to expunge from their files all references
to the terminations. We shall also order that each of
these Respondents make the discriminatorily dis-
charged employees whole for any loss of earnings and
other benefits suffered as a result of the discrimination
against them. Backpay shall be computed on a quar-
terly basis in the manner established by the Board in
F. W. Woolworth Co., 90 NLRB 289 (1950), with in-
482 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
terest to be computed in the manner prescribed in New
Horizons for the Retarded, 283 NLRB 1173 (1987).
ORDER
The National Labor Relations Board orders that
A. Respondents Acme Tile and Terrazzo Co., Provi-
dence, Rhode Island. Admiral Tile Co., Inc., Johnston,
Rhode Island; Jolicoeur & Resmini Co., Inc., Provi-
dence, Rhode Island; and Roman Tile & Terrazzo Co.,
Riverside, Rhode Island, their officers, agents, succes-
sors, and assigns, shall take the action set forth below.
1. Cease and desist from
(a) Telling their employees that their employment is
conditioned on joining International Union of Brick-
layers and Allied Craftsmen, Local No. 1 Rhode Island
before the expiration of the 8-day grace period pro-
vided by law and contained in the union-security
clause of the collective-bargaining agreement.
(b) Requiring their employees to join International
Union of Bricklayers and Allied Craftsmen, Local No.
1 Rhode Island before the expiration of the 8-day
grace period provided by law and contained in the
union-security clause of the collective-bargaining
agreement.
(c) Discouraging membership in Local No. 36-T,
United Brotherhood of Carpenters and Joiners of
America, AFL–CIO, or any other labor organization,
by discharging employees or by otherwise discrimi-
nating against employees in regard to hire, tenure of
employment, or other terms or conditions of employ-
ment because the employees do not join International
Union of Bricklayers and Allied Craftsmen, Local No.
1 Rhode Island before the expiration of the 8-day
grace period provided by law and contained in the
union-security clause of the applicable collective-bar-
gaining agreement.
(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) Offer Gerard Peltier, Karl Langborg, Sam
DeRotto, Carlo Martino, Paul Baptista, David Curtis,
Robert Bordieri, Greg Sears, Paul Graziano, John
Eghian, and any and all unlawfully discharged employ-
ees on the payroll as of March 29, 1989, reinstatement
to their former positions or, if any of those positions
no longer exist, to a substantially equivalent position,
without prejudice to their seniority or other rights and
privileges previously enjoyed, and make them whole
for any loss of earnings and other benefits they may
have suffered by reason of the respective Respondents’
unlawful termination of them as set forth in the
amended remedy section of this Decision and Order.
(b) Make whole the discriminatorily discharged em-
ployees for any loss of earnings they may have suf-
fered because of their unlawful discharges as set forth
in the amended remedy section of this Decision and
Order.
(c) Remove from its files any reference to the un-
lawful discharges and notify the employees in writing
that this has been done and that the discharges will not
be used against them in any way.
(d) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(e) Post at their respective offices copies of the at-
tached notice marked ‘‘Appendix A.’’9 Copies of the
notice, on forms provided by the Regional Director for
Region 1, after being signed by the Respondents’ au-
thorized representative, shall be posted by the Re-
spondents 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 the Re-
spondents to ensure that the notices are not altered, de-
faced, or covered by any other material.
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondents have taken to comply.
B. take the action set forth in the Order as modified.
1. Substitute the following for paragraph 1(a).
‘‘(a) Restraining and coercing employees in the ex-
ercise of their Section 7 rights by threatening them
with loss of work because they are not members of the
Respondent, except to the extent that it seeks to en-
force a lawful union-security clause.’’
2. Substitute the attached ‘‘Appendix B’’ for that of
the administrative law judge.
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT tell employees that their employment
is conditioned on joining International Union of Brick-
layers and Allied Craftsmen, Local No. 1 Rhode Island
before the expiration of the 8-day grace period pro-
483ACME TILE & TERRAZZO CO.
1 The Regional Director for Region 1, by letter dated September
26, 1989, refused to issue complaint on the 8(a)(5) allegation con-
cluding:
I have determined that further proceedings are not warranted
with regard to the allegations that the Association and its Em-
ployer Members named above violated Section 8(a)(5) of the
Act by negotiating and executing a collective-bargaining agree-
ment with Bricklayers and Allied Craftsmen, Local 1 during the
term of their contract with the Carpenters.
The investigation revealed that the Carpenters’ contract, which
was a contract with the Association and was due to expire on
March 31, 1989, was an agreement under Section 8(f) of the
Act. Therefore, the Association and its Employer Members were
not obligated by the Act to continue to recognize the Carpenters
after March 31, 1989. John Deklewa & Sons, Inc., 282 NLRB
[1375] (1987). The investigation further revealed that the con-
tract that the Association executed with the Bricklayers on
March 29, 1989 was not to be effective until April 1, 1989. As
this contract was not effective by its terms until after the Asso-
ciation and its Employer members were free to cease recog-
nizing the Carpenters, they did not violate Section 8(a)(5) of the
Act by entering into the contract. I am therefore refusing to
issue a complaint alleging that the Association and its Employer
Members violated Section 8(a)(5) of the Act.
vided by law and by the union-security clause of the
collective-bargaining agreement.
WE WILL NOT require employees to join Inter-
national Union of Bricklayers and Allied Craftsmen,
Local No. 1 Rhode Island immediately upon hire or
before the expiration of the 8-day grace period pro-
vided by law and by the union-security clause of the
collective-bargaining agreement.
WE WILL NOT discourage membership in Local No.
36-T, United Brotherhood of Carpenters and Joiners of
America, AFL–CIO, or any other labor organization,
by discharging employees or by otherwise discrimi-
nating against employees in regard to hire, tenure of
employment, or other terms or conditions of employ-
ment because they do not join International Union of
Bricklayers and Allied Craftsmen, Local No. 1 Rhode
Island before the expiration of the 8-day grace period
provided by law and by the union-security clause of
the collective-bargaining agreement.
WE WILL NOT in any like or related manner interfere
with, restrain, or coercing you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL offer Gerard Peltier, Karl Langborg, Sam
DeRotto, Carlo Martino, Paul Baptista, David Curtis,
Robert Bordieri, Greg Sears, Paul Graziano, John
Eghian, and any and all unlawfully discharged employ-
ees on the payroll as of March 31, 1989, reinstatement
to their former positions or, if those jobs no longer
exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privi-
leges previously enjoyed and WE WILL make them
whole for any loss of earnings and other benefits they
may have suffered by reason of the discharges less any
net interim earnings, plus interest.
ACME TILE AND TERRAZZO CO.; ADMI-
RAL TILE CO., INC.; JOLICOEUR &
RESMINI CO., INC.; ROMAN TILE &
TERRAZZO CO.
APPENDIX B
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT restrain and coerce employees in the
exercise of their Section 7 rights by threatening them
with loss of work because they are not members of the
International Union of Bricklayers and Allied Crafts-
men, Local No. 1 Rhode Island, except to the extent
we seek to enforce a lawful union-security clause.
WE WILL NOT in any like or related manner restrain
or coerce employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
INTERNATIONAL UNION OF BRICK-
LAYERS AND ALLIED CRAFTSMEN,
LOCAL NO. 1 RHODE ISLAND
Kathleen McCarthy, Esq., for the General Counsel.
Richard A. Skolnik, Esq., of Providence, Rhode Island, for
Respondent Union.
Girard Visconti, Esq., of Providence, Rhode Island, for Re-
spondent Employers and Respondent Association.
Julius C. Michaelson, Esq., of Providence, Rhode Island, for
the Charging Party.
DECISION
STATEMENT OF THE CASE
PETER E. DONNELLY, Administrative Law Judge. Based on
previously filed charges in the above-captioned case filed by
Local No. 36-T, United Brotherhood of Carpenters and Join-
ers of America, AFL–CIO (Local 36-T or Charging Party),
the Regional Director for Region 1 issued an order consoli-
dating cases, consolidated complaint and notice of hearing on
October 6, 1989, against Respondent Employers, Acme Tile
and Terrazzo Co. (Acme), Roman Tile and Terrazzo Co.
(Roman), Jolicoeur & Resmini Co., Inc. (Jolicoeur), Provi-
dence Marble Corp. (Providence Marble), Admiral Tile Co.,
Inc. (Admiral), and Ceramic Tile, Marble and Terrazzo Con-
tractors Association of Rhode Island, Inc. (Association),
charging these employers with violations of Section 8(a)(1),
(2), and (3) of the Act.1 Further alleged is that the Inter-
national Union of Bricklayers and Allied Craftsman, Local
No. 1 Rhode Island (Bricklayers or Local 1) committed un-
fair labor practices within the meaning of Section 8(b)(1)(A)
and (2) of the Act. Answers thereto were timely filed by Re-
spondents. Pursuant to a motion, a hearing was held before
the administrative law judge on February 6, 7, 8, 9, and 10,
484 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 At the hearing, par. 6(a) of the complaint was amended to add
‘‘Alfred Conti, Vice-President of Admiral,’’ and par. 7(d) of the
complaint was amended to substitute ‘‘Vice-President Alfred Conti’’
for ‘‘President Joseph Lombardi.’’
3 Errors in transcript have been noted and corrected.
4 By Order dated October 4, 1990, I denied Respondent Employer
Association’s motion to file a responsive pleading and granted Gen-
eral Counsel’s motion to reopen hearing to receive two court deci-
sions related to the validity of the International level merger between
the Carpenters and TMT. These decisions appear in the record as J.
Exhs. 1 and 2. Having reviewed all information, I have concluded
that those decisions, addressed to the validity of the merger, does not
affect the disposition of the instant case.
5 The Bricklayers also represent crafts other than setters within
what is generally called the ‘‘trowel’’ trades.
6 While the date of the affiliation agreement was November 10,
1988, Local 36 did not receive its charter or its designation as Local
36-T of the Carpenters until May 1989.
7 All dates refer to 1989 unless otherwise indicated.
all in 1990, at Providence, Rhode Island.2 Briefs have been
timely filed by Respondent Association and Employers, Re-
spondent Bricklayers, Charging Party, and General Counsel
which have been duly considered.3
FINDINGS OF FACT
I. EMPLOYERS’ BUSINESSES
Respondent Employers are corporations with offices and
places of business in the State of Rhode Island where they
are engaged as ceramic tile, marble and terrazzo contractors
in the building and construction industry, performing residen-
tial, commercial, and industrial work. The complaint alleges,
the Respondent Employers admitted at the hearing, and I find
that Respondent Employers are employers engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
II. LABOR ORGANIZATION
The complaint alleges, Respondents admits, and I find that
Local 36-T and Local 1 are labor organizations within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts4
The Association has been in existence for approximately
30 years. As noted above, the Employer members of the As-
sociation at present are Acme, Admiral, Jolicoeur, Provi-
dence Marble, and Roman. Local 36, Tile, Marble and Ter-
razzo Finishers, Shopmen and Granite Cutters International
Union (Local 36 or TMT) has represented under contract em-
ployees of these Employers engaged in the work of grouting,
acid washing, mixing, cleanup, and various other duties in-
volved in the installation of tile, except for the setting of the
tile itself. Local 36 represents a total of some 18 employees
known as helpers or finishers. The actual setting of the tile
is done by employees represented under separate contract by
Local 1. These employees are known as setters, or mechan-
ics.5 The geographical jurisdiction of Local 1 is limited to
Rhode Island.
At a national convention of the TMT in August 1988,
there was a vote to affiliate with the International Brother-
hood of Carpenters (herein Carpenters). Pursuant to this vote,
an agreement of affiliation was drafted and signed by the
presidents of both International Unions. This document was
dated November 10, 1988.
By letter dated December 2, 1988, from Carpenters Gen-
eral President Sigurd Lucassen, TMT Local Unions were ad-
vised that an agreement of affiliation had been approved by
the general executive board of the TMT and ratified by the
general executive board of the Carpenters.6 Despite the affili-
ation, it appears that prior to and even after the affiliation,
many TMT Local Unions in various States rejected affili-
ation with the Carpenters and, instead, decided to affiliate
with the Bricklayers. Among those who voted to affiliate
with the Bricklayers were TMT locals in Connecticut and
Massachusetts. The Employers all signed contracts with
Bricklayers locals in those States covering their helpers.
After being notified of the affiliation, sometime in early
January 1989,7 John Martino, president of Local 36, received
a telephone call from David Barricelli, business manager for
Local 1, inviting the executive board of 36 to meet for the
purpose of discussing the possibility of having Local 36 join
Bricklayers Local 1 in the manner that so many other TMT
locals nationally had affiliated with Bricklayers rather than
accept affiliation with the Carpenters.
The invitation was accepted despite the fact, as Martino
testified, he regarded Local 36 as being already affiliated
with the Carpenters.
In this regard, it is significant to note that despite the af-
filiation, Local 36 was still authorized under the agreement
of affiliation to retain its identity and to exercise autonomy
at the local level. Paragraph 4 of the agreement of affiliation
reads, in pertinent part:
Former TMT Local Unions who have sufficient fi-
nancial resources and membership to maintain a full-
time representative shall, for a period of at least 2 years
from the date of affiliation, continue to maintain their
own charter as UBC Local Unions, affiliated with the
appropriate UBC Council, and shall conduct their own
affairs and have their own Bylaws and working rules,
subject to the UBC Constitution and Laws and the ap-
plicable Council Bylaws and bargaining structure.
The meeting was held on January 10 at the Aurora Club
in Providence, Rhode Island. In attendance at this meeting
were Martino and the rest of the Local 36 Executive Board.
Representing Local 1 were Barricelli and the executive vice
president of the Bricklayers, Thomas Uzzalino. At this meet-
ing, Martino explained that Local 36, if it joined Local 1,
wanted to maintain its independence by retaining its own
business agent, its own executive board and its own set of
books in the same way that Martino understood that TMT
locals in Massachusetts and Connecticut had joined Brick-
layers locals in those States. These terms were unacceptable
to Barricelli who took the position that Local 36 would have
to integrate with Local 1. Martino did agree to allow
Barricelli to address Local 36 on the matter.
At a union meeting on February 3, Barricelli addressed the
membership of Local 36. Only two members were absent.
Barricelli explained to the membership that TMT locals in
Massachusetts and Connecticut had already joined the Brick-
layers and that if they joined Local 1, they would be pro-
485ACME TILE & TERRAZZO CO.
vided a seat on the Administrative Department, one person
in negotiations, and that there would be no initiation fee if
Local 36 joined as a group. He also explained those fringe
benefits available through Local 1. According to Martino,
Barricelli also advised them that if they did not join Local
1, he would speak to the Bricklayers locals in Massachusetts
and Connecticut and advise them that the Local 36 helpers
were Carpenters and should no longer be permitted to work
in those jurisdictions. This was a substantial consideration
since much of the work done by the Respondent Employer
members of the Association was done in Massachusetts and
Connecticut. He also told them that setter members of Local
1 would not be permitted to work with Carpenters from
Local 36 and that if they did so, they would be fined. Fi-
nally, at the end of the meeting, Barricelli told the member-
ship that there were two ways to deal with people, either you
offer them a carrot which well and good if accepted, but if
not, you use a hammer. He urged them to think it over, to
discuss it and get back to him soon with a decision. After
Barricelli left, the membership meeting continued where the
matter was discussed. Apparently, some members were of-
fended by Barricelli’s remarks, and concerned that Barricelli
would do as he had said which would prevent them from
working. Martino agreed to seek advice from the Carpenters
International which he did, and a special meeting was ar-
ranged for February 6 at the Local 36 Union Hall.
At this meeting, the Carpenters were represented by Carl
Soderquist, a Regional representative who told them that the
membership of Local 36 was already Carpenters under the
terms of the agreement of affiliation and that Barricelli had
no right to threaten their work jurisdiction. Further, that the
Carpenters would provide advice and legal assistance to
Local 36 if that became necessary. After Soderquist left, the
membership discussed the matter among themselves and a
standing vote was taken among the membership on the ques-
tion whether to stay with the Carpenters or join the Brick-
layers, which disclosed that all present wanted to stay with
the Carpenters. Martino had authorization cards which he
distributed to the members explaining that if they wanted to
designate the Carpenters to represent them, they should com-
plete and sign the cards. The cards, however, did not men-
tion affiliation with the Carpenters and, in fact, authorized
‘‘Local #36 TMT Finishers & Shopmen Int’l’’ as the collec-
tive-bargaining agent. All 16 members present signed the au-
thorization cards.
A few days after the meeting, Barricelli called Martino
and asked what the membership had decided. Martino told
him that the decision was not to join the Bricklayers.
Barricelli responded that he would do what he had to do to
help them change their minds.
On February 14, Martino, along with William Holmes,
business agent from Carpenters Council 94, Frank Fiano, a
representative of the Carpenters, and Soderquist met with
some Employer members of the Association, including John
Verardo from Acme and Robert Morin from Jolicoeur.
Martino explained that Local 36 was going to stay with the
Carpenters. Verardo expressed concern that since the helpers
in Massachusetts and Connecticut had gone with the Brick-
layers, the Bricklayers would prevent him from working with
Local 36 helpers in Massachusetts and Connecticut since
they were Carpenters. Soderquist explained that the Car-
penters would do what had to be done. Verardo inquired
about a new contract to replace the current contract with
Local 36, TMT expiring on March 31. Soderquist confirmed
that the present Local 36 Executive Board would be able,
under the terms of the agreement of affiliation, to negotiate
their own contract without interference and that the only dif-
ference would be that Local 36 would be known as Car-
penters. Verardo would not agree to negotiate with Local 36.
Rather, he told them that he would await advice from the
Association and the Bricklayers.
As for Barricelli, having been advised by Martino that
Local 36 intended to retain their affiliation with the Car-
penters, Barricelli took the steps that he had indicated to
Martino that he would. By letter dated February 20, he ad-
vised Local 18 of the Bricklayers in Massachusetts as fol-
lows:
I am writing to update you as to the situation that
exists between the International Union of Bricklayers
and Allied Craftsmen and the Tile, Terrazzo, Marble
Finishers of Providence, Rhode Island.
Please be advised that currently all discussions with
them pertaining to their joining this organization have
broken down, and it appears that they will be trying to
operate as members of the Carpenters International
Union. Therefore, at this time, I would request that you
not extend the courtesies that you have been by allow-
ing them to work within your jurisdiction in Massachu-
setts and ask that you replace them with helpers who
belong to the International Union of Bricklayers and
Allied Craftsmen.
If you should have any further questions regarding
this matter, please feel free to contact this office or Ex-
ecutive Vice President Thomas Uzzalino in Wash-
ington.
On February 22, substantially the same letter was sent by
Barricelli to Local 65 of the Bricklayers in Connecticut. All
five members of the Association were sent copies of this let-
ter.
Barricelli also sent a letter dated February 23 to setter
members of Local 1 in Rhode Island. This letter read:
The purpose of this memo is to update you on the
current situation that exists pertaining to tile, terrazzo,
and marble finishers.
Earlier this year merger discussions between the Fin-
ishers International Union and the Bricklayers Inter-
national Union broke down, and eventually their Gen-
eral President, in an action at their National Convention
this summer, ordered the remaining locals into the Car-
penters International Union. This action is currently
being contested in the courts by several finishers locals.
In the interim, however, approximately 5,000 of the
8,000 members of the Finishers International joined the
International Union of Bricklayers and Allied Crafts-
men. Locally, the helpers in Massachusetts and the
helpers in Connecticut were among the helpers that
joined our International.
Several months ago I discussed the possibility of
having helpers from Rhode Island join this organization
with their Local Executive Board. Executive Vice Presi-
dent Thomas Uzzalino came to Providence from Wash-
ington to attend that meeting. When we left that meet-
486 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 Under an informal and longstanding arrangement, first with the
TMT locals and later with Bricklayers locals, Local 36 helpers had
been allowed to work for the Employers in Massachusetts and Con-
necticut despite the fact those locals had contracts in those States
covering helpers.
ing, we were lead [sic] to believe that the helpers
would in fact be joining this organization, and they
were supposed to contact me to address their full mem-
bership. Unfortunately, since that time, they have taken
the position that they will not join this organization and
will be operating as members of the Carpenters Inter-
national Union.
The ramification of this action is as follows. I have
notified Mike Titino in Boston and Joe Colomonico in
Connecticut and told them to no longer extend the
courtesy of allowing Rhode Island helpers to work in
Massachusetts and Connecticut, and they have both as-
sured me that they will now not allow helpers who do
not belong to the International Union of Bricklayers
and Allied Craftsmen to work in either of those juris-
dictions. I must also advise you that if you are caught
working with a helper who does not belong to the Inter-
national Union of Bricklayers and Allied Craftsmen you
will be fined accordingly. With regards to work in
Rhode Island, please be advised that we will be noti-
fying the contractors that we are claiming the work of
the finisher, and once this has been done, you will be
notified that you no longer will be able to work with
finishers who are not members of this organization in
Rhode Island.
I WANT TO MAKE EXPLICITLY CLEAR TO YOU THAT
YOU HAVE EVERY RIGHT TO DO ALL OF THE WORK NEC-
ESSARY TO COMPLETE YOUR INSTALLATION, INCLUDING
ALL WORK CURRENTLY DONE BY THE FINISHERS.
I will be contacting you within the next couple of
weeks as to the date, time, and place of a formal meet-
ing instructing you as to your rights and work assign-
ments within the industry. I would hope that all of you
will be in attendance at that meeting. If you have any
questions pertaining to this memo, please feel free to
contact this office.
In early March, a meeting took place at the offices of
Roman between the Local 36 Executive Board, Steve
MacPhail of Roman and Robert Morin of Jolicoeur. Also in
attendance was Holmes. The meeting was essentially to dis-
cuss a new contract for the helpers when the current contract
expired on March 31, and the question raised by the Employ-
ers concerned what would happen now that Local 36 was af-
filiated with the Carpenters. What would happen when they
worked in Massachusetts and Connecticut? The Employers
were afraid that Barricelli would prevent them from using
Local 36 helpers in those States and thus preclude them from
working there. This was especially important to MacPhail
since one-third of his work was in Massachusetts. MacPhail
told Martino that he was not going to negotiate any agree-
ment until he had spoken to the other Association and ob-
tained advice from the Tile Council in Washington.
On March 29, at Barricelli’s request, the Association Em-
ployer members met at Barricelli’s office, ostensibly to dis-
cuss the terms of the wage reopener in Local 1’s contract
with the Association for the setters. Once the meeting began
however, Barricelli turned their attention to problems relating
to Local 36’s affiliation with the Carpenters. Barricelli pro-
posed for their consideration what was described as an ‘‘Ad-
dendum’’ to the Local 1 contract with the Employers pro-
viding coverage therein for the helpers, together with a wage
rate following the wage rate being paid to helpers under
Bricklayers’ contracts in Massachusetts and Connecticut. The
Employer asked what would happen if they refused to sign,
and Barricelli told them that he would do as he had indicated
earlier, attempt to persuade the Bricklayers locals in Massa-
chusetts and Connecticut not to allow setters in those juris-
dictions to work with helpers from Local 36, but to adhere
to the Bricklayers contracts covering helpers in those States,
which, according to Barricelli, contained union-security pro-
visions. These contracts were not put into evidence.8 As to
the finishing work in Rhode Island, Barricelli intended to file
a claim under the auspices of the Building Trades Council
of the AFL–CIO, claiming the work as a work jurisdiction
dispute.
After a caucus, and some discussion, the Employers agreed
to the addendum and signed it. By its terms, it became effec-
tive April 1 and expired, along with the Local 1 contract, on
April 30, 1990. With respect to motivation, MacPhail testi-
fied, in essence, that despite the fact that he was aware that
his employees were affiliated with the Carpenters, he signed
with the Bricklayers because one-third of his work was in
Massachusetts and if he did not sign the contract, he would
not be able to use his own helpers in Massachusetts, which
meant that he would not be able to work in Massachusetts.
MacPhail also testified that he was influenced by the fact
that so many (MacPhail had heard a figure of 80 percent)
TMT locals nationally, including those in Massachusetts and
Connecticut had joined the Bricklayers and by the fact that
the helpers, unlike the Carpenters, were a ‘‘trowel’’ trade
performing work closely related to and working with the
Bricklayers setters as a part of the same crew. Essentially,
the same views were shared by Verardo, Morin, and Joseph
Lombardi of Admiral Tile. Not surprisingly, all the contrac-
tors were concerned with being able to continue to do busi-
ness in Massachusetts and Connecticut as well as Rhode Is-
land.
By letter dated May 29, Martino was advised by Associa-
tion President MacPhail that the Association was repudiating
its bargaining relationship with Local 36. The letter read:
The Collective Bargaining Agreement between Tile,
Marble, Terrazzo Finishers, Shopworks [sic] & Granite
Cutters International Union (AFL–CIO) Local #36 ex-
pires March 31, 1989.
In light of the expiration of the Agreement, please be
advised that this letter is to serve as official notice to
you and your local union that the Ceramic Tile, Marble
and Terrazzo Contractors Association of Rhode Island,
Inc. is repudiating its bargaining relationship with Tile,
Marble, Terrazzo, Finishers, Shopworkers & Granite
Cutters International Union (AFL–CIO) local #36 effec-
tive at the expiration of the above mentioned Agree-
ment.
Be further advised that as this Association has not
voluntarily accepted, nor has Local #36 legally dem-
onstrated the fact that Local #36 represents majority
support among our employees. Therefore, we will not
487ACME TILE & TERRAZZO CO.
9 Ten of the finishers resigned from the Carpenters and joined the
Bricklayers on the following dates: Gerard Peltier, , April 6; Sam
DeRotto, June 16; Karl Langborg, June 26; Carlo Martino, July 3;
Paul Baptista, July 5; David Curtis, July 11; Robert Bordieri, July
24; Greg Sears, September 18; Paul Graziano, September 20; and
John Eghian, September 28.
engage in any future bargaining with Tile, Marble, Ter-
razzo Finishers, Shopworkers & Granite Cutters Inter-
national Union (AFL–CIO) Local #36.
The record discloses that on Friday, March 31, the final
day before the addendum with Local 1 covering the helpers
was to go into effect, various employees were approached by
management concerning their continued employment.
Sam Derotto, vice president of Local 36 and an employee
of Admiral, testified that he was approached on March 31 by
one of the Admiral owners, ‘‘Chippi’’ Conti, and told that
he would not be able to work on Monday if he did not join
the Bricklayers. Karl Langborg, a helper employed by Acme,
testified that Verardo told him in about mid-March that when
the Local 36 contract ran out at the end of the month, his
helpers would not be able to work after that unless they
joined the Bricklayers. Robert Degnan, also an Acme helper,
testified, on cross-examination, that Verardo told him, on
March 31, in the presence of Langborg and another em-
ployee named Paul Graziano that he had signed a contract
with Local 1 and that because of the contract, he would have
to join the Bricklayers.
Daniel Curtis, an employee of Roman, testified that he was
told by MacPhail on Friday, March 31, that in order to work
on the following Monday, he would have to join the Brick-
layers since they had just signed a contract with Local 1 pro-
viding that they had to be Bricklayers in order to work.
Robert Bordieri, a Jolicoeur employee, testified that he
was told by Joe Resmini on March 31 that if he wanted to
work on the following Monday that he would have to join
the Bricklayers and did not mention either the expiration of
the contract with Local 36 or the execution of a new contract
with Local 1. John Eghian, another Jolicoeur employee, testi-
fied that as early as February, he was told by Resmini that
he would not be able to work after March 31 because he was
a member of the Carpenters. On March 31, on a jobsite, he
was told by Morin to ‘‘pick up all your tools and that’s it,
you can’t work any more.’’ In mid-May, he was told by
Resmini that he could return to work if he joined the Brick-
layers. Eghian declined, but did join the Bricklayers later on
September 28.
It appears that none of the helpers worked on the Monday
following Friday, August 31, or for some time after that. But
as time went on, and being without work, most of them did
join the Bricklayers in the following months and returned to
work.9
MacPhail, Verardo, Morin, and Lombardi testified that
they told their helper employees on March 31 that they had
signed a contract with Local 1 covering the helper work and
that in order for them to continue to work, it would be nec-
essary for them to see Business Agent Barricelli and be re-
ferred for employment by Local 1 under the terms of the
contract. They denied having told their helper employees that
they would have to join the Bricklayers in order to work. A
review of all the relevant testimony in this record convinces
me that the helpers were told that a contract had been signed
with Local 1 and that in order to return to work, they would
have to be referred by Local 1. Despite their denials, and
particularly since under the terms of the Local 1 contract,
helpers would have to become members of the Bricklayers
within 8 days of their employment, it is credible to believe
and I conclude that the Employers did tell them that they
would have to join the Bricklayers in order to work.
B. Argument
The General Counsel contends that Barricelli’s remarks to
the membership of Local 36 on February 3 violate Section
8(b)(1)(A) of the Act. The Act provides in Section 7 that
employees have a right to join or to refrain from joining a
labor organization, free from coercion on the part of em-
ployer or union. When a union interferes with that right to
select or reject representation, it violates Section 8(b)(1)(A)
of the Act.
The record makes clear that Barricelli, in addressing the
membership of Local 36 on February 3, in an effort to in-
duce them to join the Bricklayers, told them, in essence, that
if they insisted on retaining their affiliation with the Car-
penters, he would request Bricklayers Local Unions rep-
resenting helpers in Massachusetts and Connecticut to with-
draw the historic courtesy of allowing helpers from Local 36
in Rhode Island to work for the Employers on jobs within
those jurisdictions. Barricelli also threatened that in Rhode
Island, he would not allow Local 1 setters to work with
Local 36 helpers affiliated with the Carpenters. He concluded
his remarks with a statement to the effect that he had offered
a carrot but that if they did not go along, he would have to
use the hammer.
In essence, Barricelli threatened to interfere with an exist-
ing beneficial arrangement so as to prevent members of
Local 36 from working unless they rejected their affiliation
with the Carpenters and joined the Bricklayers. Such remarks
are coercive and constitute a violation of Section 8(b)(1)(A)
of the Act.
Next, let us consider the legality of the helper addendum
to the Bricklayers contract. Section 8(f) of the Act reads:
(f) . . . It shall not be an unfair labor practice under
subsections (a) and (b) of this section for an employer
engaged primarily in the building and construction in-
dustry to make an agreement covering employees en-
gaged (or who, upon their employment, will be en-
gaged) in the building and construction industry with a
labor organization of which building and construction
employees are members (not established, maintained, or
assisted by any action defined in section 8(a) of this
Act as an unfair labor practice) because (1) the majority
status of such labor organization has not been estab-
lished under the provisions of section 9 of this Act
prior to the making of such agreement, or (2) such
agreement requires as a condition of employment,
membership in such labor organization after the seventh
day following the beginning of such employment or the
effective date of the agreement, whichever is later, or
(3) such agreement requires the employer to notify such
labor organization of opportunities for employment with
such employer, or gives such labor organization an op-
portunity to refer qualified applicants for such employ-
ment, or (4) such agreement specifies minimum training
488 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 John Deklewa & Sons, 282 NLRB 1375 (1987), enfd. sub nom.
Iron Workers Local 3 v. NLRB, 843 F.2d 770 (3d Cir. 1988), cert.
denied 488 U.S. 889 (1988).
11 In Deklewa, supra at fn. 41, and in Sage Development Co., 301
NLRB 1173 (1991), the Board held that it will require the party as-
serting the existence of a 9(a) relationship to prove it. This has not
been asserted or proved in this case.
or experience qualifications for employment or provides
for priority in opportunities for employment based upon
the length of service with such employer, in the indus-
try or in the particular geographical area: Provided,
That nothing in this subsection shall set aside the final
proviso to section 8(a)(3) of this Act: Provided further,
That any agreement which would be invalid, but for
clause (1) of this subsection, shall not be a bar to a pe-
tition filed pursuant to section 9(c) or 9(e).
Under these provisions, an employer in the construction
industry may sign a prehire agreement without the union es-
tablishing majority status. Until the Deklewa case,10 under
the ‘‘conversion doctrine,’’ collective-bargaining relation-
ships and agreements formed under Section 8(f) of the Act
could ‘‘convert’’ into a 9(a) relationship by means of evi-
dence that the Union had acquired majority status by means
other than a Board election or voluntary recognition. Having
thus acquired 9(a) status, the Union would enjoy, like any
other 9(a) representative, an irrebuttable presumption of ma-
jority status during the term of the contract and a rebuttable
presumption at its expiration, giving rise to an obligation to
recognize and bargain with the Union as the collective-bar-
gaining representative of the employees. Refusals to bargain
were enforceable under the provisions of Section 8(a)(5) and
(3) of the Act. Further, the existence of a converted contract
served as a bar to any election petition filed after the conver-
sion and during the contract’s term.
In Deklewa, the Board held in reversing this precedent:
We have decided to overrule the Board’s decision in
R. J. Smith, to abandon the so-called conversion doc-
trine, and to modify relevant unit scope rules in 8(f)
cases. We shall apply the following principles in 8(f)
cases: (1) a collective-bargaining agreement permitted
by Section 8(f) shall be enforceable through the mecha-
nisms of Section 8(a)(5) and Section 8(b)(3); (2) such
agreements will not bar the processing of valid petitions
filed pursuant to Section 9(c) and Section 9(e); (3) in
processing such petitions, the appropriate unit normally
will be the single employer’s employees covered by the
agreement; and (4) upon the expiration of such agree-
ments, the signatory union will enjoy no presumption of
majority status, and either party may repudiate the 8(f)
bargaining relationship.
In taking this action we recognize that the Supreme
Court has stated, concerning major portions of current
8(f) law, that ‘‘the Board’s construction of the Act, al-
though perhaps not the only tenable one, is an accept-
able reading of the statutory language and a reasonable
implementation of the relevant statutory sections.’’
NLRB v. Iron Workers Local 103 (Higdon Contracting
Co.), 434 U.S. 335 (1978) (Higdon). It is our view,
however, that the development of the current law under
R. J. Smith and Higdon has exposed significant defi-
ciencies. The principles we advance today represent a
more appropriate interpretation and application of Sec-
tion 8(f), and they will better serve the statutory poli-
cies of protecting labor relations stability and employee
free choice in the construction industry.11
In the instant case, the principal issue is whether or not
the Association/Bricklayers contract was lawful under Sec-
tion 8(f) of the Act. It appears that Association/Local 36 con-
tract which expired on March 31, 1989, was an 8(f) contract.
Under Deklewa, upon the expiration of the contract, either
party was free to repudiate the contract. This is what the As-
sociation did by letter dated March 29, 1989, and imme-
diately executed the addendum recognizing Local 1 as the
collective-bargaining representative of the helper employees
and setting a wage rate.
Under the terms of Section 8(f) of the Act, such a prehire
agreement would ostensibly be lawful. However, the General
Counsel takes the position that entering into the addendum
was not lawful because it was the product of unlawful coer-
cion. The facts, set out more fully above, show that Barricelli
did write to Bricklayers locals in Massachusetts and Con-
necticut, advising that Local 36 members were operating as
Carpenters and requesting those two locals to stop extending
to Local 36 members the courtesy that had previously been
extended of allowing them to work despite the fact that con-
tractually Bricklayers locals in Massachusetts and Con-
necticut represented the helpers, and were entitled to do the
helper work in those jurisdictions. Barricelli requested that
Local 36 members be replaced by helpers who belonged to
those Bricklayers locals. As to the Carpenters members of
Local 36 working in Rhode Island, it was Barricelli’s ex-
pressed intention to submit to the National Joint Board for
the Settlement of Jurisdictional Disputes a claim for the help-
er work, and by letter to the setter members of Local 1 dated
February 22, Barricelli advised that any setter working with
a helper not a member of Local 1, presumably Local 36 Car-
penters, would be fined.
In my opinion, the facts do not establish that Barricelli un-
lawfully coerced the Association Employers into executing
the addendum. I am satisfied, based on the record, that while
the members of the Association realized the difficulty that
Barricelli’s intentions could create for them, if pursued, it
was nonetheless their own preference that their helpers be
represented by the Bricklayers rather than the Carpenters. In
other words, apart from Barricelli’s threats, the Association
members would have entered into the addendum with Local
1 anyway. First, from the beginning, as a practical matter,
the only options available to Association members were ei-
ther a contract with the Carpenters or the Bricklayers. From
the beginning, the Association had balked at recognition by
the Carpenters as the collective-bargaining representative for
the finishers. Employer meetings with Carpenters representa-
tives reflect reluctance to accept representation by the Car-
penters. They were unable to get sought-after assurances that
they would be able to work in Massachusetts and Con-
necticut if their finishers were represented by the Carpenters
since the setters and helpers in those States were represented
by Bricklayers. They were afraid that the courtesy now being
extended in Massachusetts and Connecticut to bring their
489ACME TILE & TERRAZZO CO.
own helpers to work in those States would be discontinued,
even without Barricelli’s threats.
As MacPhail testified, he signed the contract so that he
could continue to use his own men in Massachusetts. Using
Rhode Island Local 36-T Carpenters helpers with Bricklayers
setters from locals in Massachusetts and Connecticut in those
States was clearly a concern, even apart from Barricelli’s
threats. MacPhail also testified that he was influenced to sign
the addendum because the helpers in Massachusetts and Con-
necticut had joined the Bricklayers, an affiliation which he
felt was more appropriate since both were trowel trades
working together as a crew on the same projects doing work
that was unrelated to carpentry. Another factor influencing
MacPhail to sign the addendum was his information that 75
percent of the helpers nationwide, had joined the Bricklayers.
The other Association Employers, Verardo, Morin, and
Lombardi also testified that they were motivated to sign the
addendum for much the same considerations. Having re-
viewed the relevant testimony, I am satisfied that given the
options available to them, the Employers would have signed
the addendum even without the threats made to them by
Barricelli. In other words, while threats were made by
Barricelli, the addendum was not the product of that coer-
cion, but was rather the product of the independent judg-
ments made by the Employers.
Next, the General Counsel contends that in addition to
having been the product of unlawful coercion, the addendum
was also the product of unlawful assistance. As noted above,
Section 8(f) provides, inter alia, that it is not unlawful in the
construction industry for an employer to make a prehire
agreement with a labor organization ‘‘not established, main-
tained or assisted by any action defined in Section 8(a) of
this Act as an unfair labor practice.’’ While the Employers
made no secret of their preference for representation by the
Bricklayers, the record is totally insufficient to support the
conclusion that the Employers or the Association ‘‘estab-
lished, maintained or assisted’’ the Bricklayers in violation of
Section 8(a) of the Act, and no 8(a)(1), (2), and (3) or
8(b)(1)(A) and 8(b)(2) violations can be predicated on the
entering into, maintaining or enforcing the addendum.
Next, the General Counsel argues that even assuming the
validity of the addendum, by its terms, it does not apply to
any project employing a Local 36 member on March 31
since it covered projects which began after the effective date
of the addendum, which was April 1. Thus, since only Car-
penters helpers were employed on uncompleted projects as
of April 1, Local 1 had no jurisdiction over those helpers,
and directions by the Employers on March 31 for their help-
ers to get clearance from the Bricklayers violate Section
8(a)(2) of the Act. Further, requiring the seeking of clearance
from Bricklayers as a condition of employment constitutes
unlawful discrimination under Section 8(a)(3) of the Act.
I disagree. The addendum does not, in my opinion, con-
template representation of the finishers by Local 1 only at
such times as new projects are begun, some time after April
1. In relevant, part, the addendum reads:
This Addendum to the Agreement between the Inter-
national Union of Bricklayers and Allied Craftsmen
Local #1 Rhode Island, hereafter called ‘‘Union,’’ and
the Ceramic Tile, Marble and Terrazzo Contractors As-
sociation of Rhode Island, hereafter called ‘‘Em-
ployer,’’ dated May 1, 1988, to April 30, 1990, is en-
tered into freely by both parties this 29th day of March
1989 effective April 1, 1989.
In addition to the work assignments set forth in the
above-stated and attached Agreement, the Employer
agrees to assign to employees represented by the Union,
all additional work assignments necessary to complete
the entire installation of tile, marble, terrazzo and mo-
saic projects which begin after the effective date of this
addendum.
The Union agrees to establish with the Employer a
schedule of wage rates and a schedule of benefit pay-
ments for each hour of employment by employees
working on the additional assignments.
In my opinion, the controlling date as to the effective dates
of the addendum, i.e., the date on which representation be-
gins, is April 1, 1989. Coverage of helpers under the adden-
dum begins at that time and covers work performed begin-
ning April 1, 1989. The interpretation sought by the General
Counsel would cause me to abstract and define selected lan-
guage in a manner totally out of context with the natural
meaning of the entire document.
Next, the General Counsel argues that Acme, Admiral,
Jolicoeur, and Roman violated Section 8(a)(1), (2), and (3)
of the Act on March 31 by forcing their helper employees
to join the Bricklayers as a condition of employment. Having
concluded that the addendum was lawful under Section 8(f)
of the Act, it would appear that under the terms of the ad-
dendum, which incorporated the Local 1, Rhode Island Tile,
Terrazzo and Marble agreement, that representation by Local
1 began on April 1, 1989. As set out above, I have con-
cluded that these Employers did tell their finishers that a
contract had been signed with the Bricklayers and that it
would be necessary for them to be referred by the Brick-
layers and that it would be necessary for them to join the
Bricklayers Union. However, I cannot conclude, under these
circumstances, given a valid prehire agreement, that these re-
marks violate the Act. In context, all the Employers did was
to advise their helpers of what appropriate procedures would
be under the new contract starting on Monday morning.
While they also advised the helpers that they would have to
join the Union, this was simply an observation of the natural
consequences of the existence of the union-security provi-
sions in the contract which requires membership within 8
days of their employment, and not that they would not be
allowed to work unless they immediately joined the Union.
Accordingly, these allegations must be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of Respondent Bricklayers Local 1, set forth
in section III above, occurring in connection with Respond-
ent Employers’ operations, described in section I above, have
a close and intimate relationship to trade, traffic, and com-
merce among the several States and tend to lead to labor dis-
putes burdening and obstructing commerce and the free flow
of commerce.
V. REMEDY
Having found that Respondent Bricklayers Local 1 vio-
lated the Act, I shall recommend that it cease and desist
490 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
13 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
therefrom and from engaging in any like or related conduct
and that it post an appropriate notice, signing additional no-
tices for posting by the Employers if the Employers so de-
sire.
CONCLUSIONS OF LAW
1. Employers and the Employer Association are engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Respondent Union and the Charging Party are labor or-
ganizations within the meaning of Section 2(5) of the Act.
3. By threatening employees, Respondent Union has en-
gaged in unfair labor practices within the meaning of Section
8(b)(1)(A) of the Act.
4. Respondent Association and Respondent Employers
have not violated the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended12
ORDER
The Respondent International Union of Bricklayers and
Allied Craftsmen, Local No. 1 Rhode Island, its officers,
agents, and representatives, shall
1. Cease and desist from
(a) Restraining and coercing employees in the exercise of
theirSection 7 rights by threatening them with loss of work
because they are notmembers of Respondent.
(b) In any like or related manner restraining or coercing
employees in the exercise of the rights guaranteed them by
Section 7 of the Act.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act.
(a) Post at its business office and on any union bulletin
board at the Employers’ places of business, copies of the at-
tached notice marked ‘‘Appendix.’’13 Copies of the notice,
on forms provided by the Regional Director for Region 1,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to members are cus-
tomarily posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, defaced,
or covered by any other material.
(b) Forward a sufficient number of signed copies of the
notice to the Regional Director for Region 1 for posting by
the Respondent Employers in places where notices to em-
ployees are posted, if the Employer is willing to do so.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.