Bricklayers Local 6 (Key Waterproofing)

National Labor Relations Board - Board Decisions

Feb 13, 1984

268 N.L.R.B. 879 (N.L.R.B. 1984)

BRICKLAYERS LOCAL 6 (KEY WATERPROOFING)
Bricklayers & Allied Craftsmen, Local 6, AFL-CIO
(Key Waterproofing Co., Inc.) and Robert L.
Gumbel. Case 3-CB-4116
13 February 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 16 August 1983 Administrative Law Judge
Steven B. Fish issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings,1 and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Bricklayers
& Allied Craftsmen, Local 6, AFL-CIO, Albany,
New York, its officers, agents, and representatives,
shall take the action set forth in the Order, except
that the attached notice is substituted for that of
the administrative law judge.
In his decision, the judge stated that the record failed to establish
that the Respondent had any policy or contract provision prohibiting the
employment, as rank-and-file employees, of individuals who were or had
been contractors. The Respondent, in its exceptions, notes that art. XVIII
of the contract specifically prohibits "lumping" (i.e., the receiving of
lump payment for a particular job). The Respondent argues that, even if
its business agent had requested, as alleged, that employee Robert
Gumbel be discharged, the request was an attempt to enforce this con-
tractual provision. Although the contract prohibits "lumping," we are not
convinced that the Respondent was motivated by any honest and reason-
able belief that Gumbel was "lumping." Further, we agree with the judge
and find no evidence of restrictions, either in the contract or local union
rules, on the employment of former contractors. However, even if we
read the contract to prohibit this employment practice, we would none-
theless find that the Respondent's actions were not motivated by a con-
cern over this matter.
APPENDIX
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 ordered us to post and abide by this notice.
WE WILL NOT cause or attempt to cause Key
Waterproofing Company, Inc., or any other em-
ployer, to discharge or otherwise discriminate
268 NLRB No. 135
against Robert Gumbel or any other employee, be-
cause of his failure to pay to us or to our funds
moneys which we or the funds assert that said em-
ployee owes to us or because of any other arbitrary
or invidious reasons.
WE WILL NOT in any like or related manner re-
strain or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL make Robert Gumbel whole for any
loss of pay he may have suffered as a result of our
discrimination against him, with interest.
WE WILL notify Key Waterproofing Company,
Inc., in writing, and furnish a copy of such notifi-
cation to Robert Gumbel, that we have no objec-
tion to Gumbel's employment by said Employer.
WE WILL notify Robert Gumbel that we have
removed from our files, and have asked the Em-
ployer to remove from the Employer's files, any
reference to his discharge and that we will not use
the discharge against him in any way.
BRICKLAYERS & ALLIED CRAFTSMEN,
LOCAL 6, AFL-CIO
DECISION
STATEMENT OF THE CASE
STEVEN B. FISH, Administrative Law Judge: The
hearing in the above case was heard before me in
Albany, New York, on October 5, 1982.' The complaint,
as amended, alleges that Bricklayers & Allied Craftsmen,
Local 6, AFL-CIO, herein called the Respondent, on or
about August 31, attempted to cause and'did cause Key
Waterproofing Company, Inc., herein called the Employ-
er or Key, to discharge its employee Robert L. Gumbel,
herein called Gumbel or the Charging Party, because of
personal hostility by Dominick Spano, the Respondent's
agent, toward Gumbel and/or because of arbitrary and
invidious considerations, and for reasons other than
Gumbel's failure to tender periodic dues and initiation
fees uniformly required as a condition of requiring or re-
taining membership in the Respondent, in violation of
Section 8(b)(XIXA) and (2) of the Act.
A brief has been received from counsel for the Gener-
al Counsel and has been carefully considered.
Based on the entire record,2 including my observation
of the demeanor of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Employer is a New York corporation with its
main office in Colonie, New York, and various other
places of business and facilities in New York State, in-
cluding a construction site in Cairo, New York, herein
' All dates hereinafter are in 1982 unless otherwise indicated.
' The unopposed motion filed by the General Counsel to correct the
transcript is hereby granted, as set forth in Appendix B. (Omitted from
publication.]
879
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
called the Cairo site, where it is engaged in the business
of providing and performing waterproofing, caulking,
and related services. During the past year, the Employer
in the course and conduct of its business provided serv-
ices valued in excess of $50,000 for other enterprises
within the State of New York, including Alekira Con-
struction Inc., Beltrone Construction Co., and Unit Span
Building Systems, which other enterprises each per-
formed services valued in excess of $50,000 in States
other than the State of New York. Key is now and has
been at all times material herein an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
II. LABOR ORGANIZATION
It is admitted and I find that the Respondent is a labor
organization within the meaning of Section 2(5) of the
Act.
111. FACTS
Gumbel has worked as a caulker and an estimator for
20 years. From 1962 to 1966 he was a member of the Re-
spondent. In 1973 Gumbel became a partner in a corpo-
ration called Castaways Caulking Inc. Said corporation
was signatory to an associationwide contract with vari-
ous locals of the Bricklayers Union in the area including
the Respondent. In 1978 Gumbel became the sole owner
of Castaways.
In 1979 Castaways was audited by the Capitol Area
Masons Welfare and Pension Funds. The audit deter-
mined that Castaways owed the funds $14,000 in contri-
butions. Gumbel asserted that Castaways was not respon-
sible for these payments, since they covered employees
who although members of the Respondent were working
outside the geographical area covered by the contract
for the period when the funds claimed contributions for
them. In fact Gumbel asserts that payments were made
on behalf of such employees to the funds located in the
areas in which the work was performed.
Initially the funds obtained a default judgment on its
claim against Castaways. However, subsequently, Cast-
aways obtained an attorney, who succeeded in obtaining
a reopening of the proceeding, which is currently pend-
ing in Federal District Court.
According to Gumbel, as a result of pressure from the
Respondent, because of this dispute, Castaways was
unable to obtain any work, so it ceased operations in No-
vember 1979.
Since that time, Gumbel was employed as a caulker
for various contractors located in Binghamton and White
Plains, New York, and in Glen Cove, Long Island.3
Since November 1982, Gumbel was employed on and off
by Countrywide Caulking Corporation in Albany, New
York, as an estimator. Since 1979 he has been a member
of Local 28 of the Bricklayers Union.
Key is a corporation which is owned and operated by
Michael Kilcullen. Key is signatory to an association-
wide contract which includes the Respondent as one of
the parties. The contract contains a union-security clause,
3 None of these jobs was located within the Respondent's geographical
area.
which requires membership in the Union after 7 days of
employment. The contract also contains a provision that
the Respondent agrees to furnish, if available, employees
if requested by the Employers. The Employers shall give
at least 48 hours' notice when requiring employees. The
contract further stated, "the right of the employer to
employ persons of his own selection shall not be ques-
tioned."
According to Kilcullen neither this clause nor any
other provision in the contract obligates him to go
through the Respondent first before hiring any employ-
ees. Indeed, Kilcullen testified that he has frequently
hired employees in the past on his own. However, Kil-
cullen also testified that he normally does notify the Re-
spondent when he has hired employees.
Key obtained a subcontract from Unit Span Construc-
tion to perform caulking and waterproofing at a jobsite
in Cairo, New York. In June, Key completed the first
phrase of the job. Kilcullen performed this work himself,
along with employee Chuck Diamond who was a
member of the Respondent. In late June, Kilcullen sus-
tained an injury and was incapacitated from performing
the next phase of the job.
At that time Gumbel was unemployed and heard about
Kilcullen's inquiry. He called Kilcullen sometime in
early August, on the phone, and after inquiring about
Kilcullen's injury asked if Kilcullen needed any help to
complete the job. Gumbel informed Kilcullen that he as
well as his daughter (Julie Wenz) and son-in-law (Jud
Stine), both of whom had worked with him at his last
job with Sampson Window Corp., were also available
for employment. Kilcullen replied that he might have
some work for them on the Cairo project, and that he
would get back to Gumbel when the work was ready to
be performed.
On or about Friday, August 27, Kilcullen called
Gumbel, and they went together to the Cairo jobsite in
order to show Gumbel the site, the scope of the work,
and what work had to be done. At the jobsite Gumbel
and Kilcullen discussed the work that had to be done
and the manner in which it would be performed. Gumbel
again told Kilcullen that his son-in-law and daughter
were unemployed and also available for work and asked
if they would be hired. Kilcullen asked how long it
would take to complete the job with the three of them.
Gumbel responded 4 to 5 days. Kilcullen answered that
was about what he had figured, and he told Gumbel that
he could start work on Monday, August 30, with his
son-in-law and daughter. Gumbel informed Kilcullen that
he wished to be treated as an employee, so as to build up
his unemployment credits. Kilcullen agreed and said that
Gumbel, Stine, and Wenz would each be paid $14 per
hour which is the union contract rate for caulkers. Kil-
cullen also informed Gumbel that he would take care of
the fringe benefit contributions to the union funds for the
three employees. Gumbel and Kilcullen discussed the
amount of materials needed and came to an agreement
on how much was necessary. The materials were bought
and paid for by Kilcullen.
Kilcullen and Gumbel also discussed briefly the third
phase of the job, which consisted of the ground joints.
880
BRICKLAYERS LOCAL 6 (KEY WATERPROOFING)
Kilcullen stated that it was taken for granted that
Gumbel would get involved in that phase of the work if
Kilcullen could not do it.4 There was no discussion be-
tween Kilcullen and Gumbel as to the extent of Gum-
bel's authority on the job, such as whether he could hire
or fire employees, adjust grievances, or other such
powers. Kilcullen testified however that in his view
Gumbel was in "complete control of the job." In fact the
general contractor, Unit Span, was notified that Gumbel
could be Key's representative on the jobsite.
On Monday and Tuesday, August 30 and 31, Gumbel,
Stine, and Wenz performed work at the jobsite. Gumbel
spent most of his time doing caulking as did his daughter
Wenz. Stine, his son-in-law, acted as a helper, mixing
materials, moving ladders, packing joints, and preparing
joints for caulking. Gumbel also admits that he acted as
more or less the "foreman," by telling Stine and Wenz
where to start and which work would be performed first,
and checked their work to see if it was done properly.
Wenz has been working in the field since 1979, while
Stine's experience as a helper had been about a year and
a half. Gumbel's instructions to them were based on his
greater experience in the industry.
Key paid all three employees in cash at the rate of S14
per hour, which was normal practice for Key's employ-
ees. W-2 forms were prepared for all three setting forth
the appropriate deductions for state, Federal, and social
security taxes, and Key forwarded the appropriate
amounts to such agencies.
Kilcullen did not make the contributions required for
these employees to the Union's funds as he had promised
he would do. However, Kilcullen testified that was be-
cause he was in arrears. In fact Key also became in ar-
rears with respect to contributions for employee Dia-
mond for work performed by Diamond with Kilcullen
on the third phase of the job.
About 12 noon on August 31, Dominick Spano, the
Respondent's business agent, came to the jobsite. Spano
approached Gumbel and asked, "What are you doing
here?" Gumbel replied that he was caulking. Spano
asked who he was working for, and Gumbel answered
Key Waterproofing. Spano asked Gumbel if he was
"lumping," 5 to which he replied no, that he was work-
ing on an hourly basis.
Spano then responded, "you're not going to work
here, you're not going to work in my territory," and
added that Gumbel owed Spano a lot of money. Gumbel
replied that he had a paid-up union book and offered to
show it to Spano. Spano responded, "take that book and
shove it up your ass, I don't want to see your book,
you're not going to work in my territory." Spano again
mentioned the money allegedly owed by Gumbel to the
Union, and Gumbel answered that the matter was in the
hands of the courts, and suggested that they let the
courts decide.
Spano also mentioned that Stine did not have a union
"book." Gumbel replied that Stine was a helper, not a
caulker and therefore did not need a book. Spano made
no reply to this assertion of Gumbel. Spano then went to
the office of the general contractor and then left.
4 The third phase of the job consisted of 2 to 3 days' work.
* Lumping is an industry term which is similar to subcontracting.
Gumbel continued working until 2:30 to 2:45 p.m. when
he ran out of materials. 6
Later on that day, Kilcullen received a call from
David Zygmon, his estimator, who informed him that
Andy Martello, the Respondent's vice president and an
administrator of Capital Area Masons Welfare and Pen-
sion Funds, had called, and instructed Kilcullen to get in
touch with Spano. Thereupon, Kilcullen called Martello
at the Respondent's hall. Martello informed Kilcullen
that Spano had been at the jobsite and that Spano was
upset because Gumbel was on the project with two
people, one of whom did not have a book. Martello
added, "in view of the past this is just adding more trou-
ble to a situation where Mr. Gumbel had a habit of
bringing people that were non-union members on the job
and that he was upset about it." Martello instructed Kil-
cullen to call Spano that evening, and get the matter
straightened out.
Later that evening Kilcullen called Gumbel and in-
formed him that Kilcullen had heard there was a prob-
lem at the jobsite between Gumbel and Spano. Gumbel
confirmed the fact that Spano had been there, and was
upset with Gumbel's being on the job. Kilcullen asked
about the employee's not having a book and Gumbel re-
plied that the employee was a helper and not a caulker.
Kilcullen then informed Gumbel that he would be speak-
ing to Spano later that evening, but, until the matter was
straightened out, it would be better if Gumbel and the
other employees left the job. Kilcullen told Gumbel that
as it stood that he would finish the job himself, but he
would get back to Gumbel after he talked with Spano.'
Later on that evening, Kilcullen spoke to Spano on
the phone. Spano began by telling Kilcullen that Gumbel
was on the jobsite and that one of the other people with
him did not have a book. Kilcullen replied that he was
under the impression that the employee had a book, but
Spano responded that the worker had admitted to him
that he did not have one. Spano added that he could file
a grievance against Kilcullen for allowing a nonunion
employee on the job. Spano also claimed that Gumbel
was still in business, but Kilcullen replied that he was
working as an employee for Key. 8
Spano then asked Kilcullen if he were aware of the
fact that there were problems between the Respondent
and Gumbel. Kilcullen responded that he understood
6 The above is derived from the unrefuted testimony of Oumbel.
Spano did not testify.
I The above is what I believe to be the most probable version of his
conversation, as derived from a synthesis of three different versions of
this discussion offered by Kilcullen during the hearing. While at one
point Kilcullen claimed that he had definitely made up his mind to termi-
nate Gumbel and so informed Gumbel at that time, other portions of his
testimony as well as his letter subsequently written to Gumbel, see infra,
indicate to the contrary. Thus in my judgment, Kilcullen made only a
tentative decision at that time to remove Gumbel, pending his conversa-
tion with Spano, and that he so informed Gumbel of same. I note particu-
larly Kilcullen's testimony that he told Gumbel that "we better terminate
this right now until I find out what....
' The collective-bargaining agreement in effect between the Respond-
ent and Key contains a provision that requires Key to subcontract only
to subcontractors who are signatories to the contract or whose employ-
ees are represented by various other unions. Spano made no reference to
this clause nor any other clause in the contract when speaking to Kilcul-
len.
881
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the problems had been ironed out and, since Gumbel
had been working as an employee for other companies,
Kilcullen felt it was all right to hire him. Spano respond-
ed that the problem had not been solved, that there was
an ongoing battle between them, because Gumbel was
delinquent in paying welfare and pension. Spano contin-
ued that, if it were up to him, Gumbel "wouldn't be
working here or anywhere." Kilcullen informed Spano
that he had already dismissed Gumbel from the job, and
that Gumbel would not be performing any more work
on the project.
Later on that same evening about 11 p.m. Kilcullen
called Gumbel. Kilcullen told Gumble that Spano was
up in arms because Gumbel was working at the site, and
that Kilcullen did not realize that Spano hated Gumbel
as much as Spano did. Kilcullen said that it would be
better if Gumbel gets off the job, and that Kilcullen
would finish the job himself. Kilcullen added that he was
not going to get in trouble with Spano. Gumbel respond-
ed that he agreed with Kilcullen, because "you can't
fight the Union. I've been trying to fight them for years
and it's just tough."
On September 1, Kilcullen sent a letter to Gumbel ex-
plaining why it was necessary to remove him from the
job. According to Kilcullen he sent the letter to cover
himself in case Gumbel took action against Kilcullen for
terminating Gumbel from the project.
The letter reads as follows:
Dear Robert:
Please be advised that I received a telephone call
last night from Business Agent Dominick Spano. I
was told by him that you are not to work on any
construction projects in this area, and if it were up
to him, you were not to work in this state at all.
The reasons for this, he said, are that you owe a
lot of money to his local, and that you had brought
a non-union worker with you on this job. His anger
toward you was brought to the force by statements
such as, "You are a no-good liar," and that you
stole from your employees.
As you can surely understand, I have no alterna-
tive but to finish this project with other forces.
Until you clear up this matter, I cannot have you
do any work for this company.
I hope that you realize I cannot afford to in any
way alienate myself with Dominick, especially in
your behalf. The alternatives would be devastating
to me.
I am sorry, but this is the way it must be.
The second and third phases of the project were com-
pleted by Kilcullen himself along with employee Dia-
mond, who had worked with him on the first phase of
the job before Kilcullen's injury. The second phase was
done by Kilcullen while he was still on crutches. The
record does not reflect when the third phase was com-
pleted, nor whether Kilcullen was still injured at that
time.
IV. ANALYSIS
A. Gumbel's Status
The Respondent argues that the record established
that Gumbel was acting as a subcontractor or independ-
ent contractor on the job, or at the very least a supervi-
sor of the Respondent and is therefore not subject to the
protections of Section 8(bX2) of the Act.
With respect to the independent contractor issue, the
standard applied by the Board in such cases is the
common law right to control test as set forth by the Su-
preme Court in NLRB v. United Insurance Co. of Amer-
ica, 390 U.S. 259 (1968). Under this test an employer-em-
ployee relationship exists when the employer reserves
the right to control not only the result to be achieved
but also the means to be used in attaining the result. The
test requires an analysis and balancing of the facts in
each case. Capital Parcel Delivery Co., 256 NLRB 302,
303 (1981).
An analysis of the relevant facts in the instant case
leads me to conclude, which I do, that Gumbel was at
all times material herein an employee of Key Water-
proofing and not an independent contractor. Initially it
must be noted that Gumbel signed no written agreement
with Key. The Board has held that oral agreements, pro-
viding for individual services which are readily termina-
ble, are inconsistent with independent contractor status.
Prentiss & Carlisle Co., 230 NLRB 373, 374 (1977); A. Pa-
ladini, Inc., 168 NLRB 952, 953 (1967). Additionally,
Gumbel was paid the same hourly salary as the other
employees pursuant to the terms of the collective-bar-
gaining agreement between Key and the Respondent.
See Lucky Stores, 243 NLRB 642, 644 (1979). Further-
more, Key, by submitting W-2 and other forms to the
appropriate governmental agencies, has represented itself
that it is the employer of Gumbel. Prentiss & Carlisle,
supra at 374.
While it is true that Kilcullen was not present at the
jobsite, and he referred to Gumbel as having "control of
the job," in fact Kilcullen had met with Gumbel prior to
the commencement of work, and had laid out the work
to be done and how it was to be performed. All the ma-
terials used on the job were bought and paid for by the
Respondent. Thus, Gumbel has not been shown to have
a significant entreprenurial interest in his working ar-
rangements. Lucky Stores, supra at 644: B & F Cartage,
251 NLRB 645, 651 (1980). It is clear that, unlike the
genuinely independent businessman, Gumbel's earnings
do depend on his ability to exercise good business judg-
ment, to follow sound management practices, and to be
able to take financial risks in order to increase his profits.
Standard Oil Co., 230 NLRB 967, 972 (1977).
Accordingly, I find that Gumbel was an employee of
Key within the meaning of Section 2(3) of the Act.
Turning to the issue of Gumbel's alleged supervisory
status, the Respondent relies on Gumbel's assignment of
work and control of the jobsite, as well as his role in the
hiring of his daughter and son-in-law by Key in order to
establish same. With respect to Gumbel's assignment of
work, and being in charge of the other two employees, I
find these functions do not clothe Gumbel with sufficient
882
BRICKLAYERS LOCAL 6 (KEY WATERPROOFING)
supervisory authority to conclude that he is a supervisor
under Section 2(11) of the Act. Thus, Gumbel spends
most of his time performing production work alongside
the other employees, and his terms and conditions of em-
ployment were controlled by the contract. Moreover, it
has not been shown that his assignment of work and re-
sponsibility for seeing that the job is completed properly
run to other than standard routine operations, or that
Gumbel exercises any significant independent judgment
in the course of his work performance. Any such author-
ity exercised by Gumbel in this area relates to his skills
and experience as a caulker. Risdon Mfg. Co., 195 NLRB
579, 581 (1972); Iroquois Telephone Corp., 169 NLRB 344,
345 (1968); Laborers Local 341 (Bannister-Joyce-Leonard),
223 NLRB 917, 919 (1976).
Gumbel's role in the hiring of his son-in-law and
daughters presents more troublesome questions, as it is
clear that Gumbel recommended that Kilcullen hire
them, and that Kilcullen accepted his recommendation
without any further inquiries, investigation, or interview-
ing of these employees. However, not every effective
recommendation to hire employees transforms the one
who makes such a recommendation into a supervisor
within the meaning of the Act. Thus it is necessary to
demonstrate that independent judgment and discretion
have been utilized in making such a recommendation.
Washington Post Co., 254 NLRB 168, 189 (1981); Magno-
lia Manor Nursing Home, 260 NLRB 377, 385 (1982);
Wisconsin Beef Industries, 249 NLRB 256, 262 (1980).
The record does not establish that Gumbel exercised any
independent judgment in recommending the hire of his
son-in-law or daughter.
Moreover, to the extent that the hiring arrangement
herein may be viewed as bestowing on Gumbel the au-
thority to effectively recommend personnel action, it is
basically limited and personal authority exercised not in
the interests of Key, but in Gumbel's own interest to suit
his own particular needs and desires (i.e., the hiring of
his close relatives) and to preserve the harmonious rela-
tionship within the work crew. Lipsey, Inc., 172 NLRB
1535 (1968); Brewery Workers (Gulf Bottlers), 298 F.2d
297 (D.C. Cir. 1961); Kenosha News Publishing Corp., 264
NLRB 270 (1982); Norac Lumber Co., 234 NLRB 572
(1978); Willis Shaw Frozen Food Express, 173 NLRB 487,
488 (1968); Scott Paper Co., 171 NLRB 821 (1968).
Accordingly, I find that it has not been demonstrated
that Gumbel was a supervisor of Key within the mean-
ing of Section 2(11) of the Act.
B. Whether the Respondent Caused or Attempted to
Cause Key to Terminate Gumbel
The Respondent argues that it did not cause or at-
tempt to cause Key to discharge Gumbel, but rather that
Kilcullen made up his mind to terminate Gumbel on
hearing that he had a nonunion employee on the job
with him, and because Kilcullen feared that he had vio-
lated his contract. I do not agree. As noted above, I
have found that, while Kilcullen did tell Gumbel to
leave the job before speaking to Spano, his decision was
only tentative at that time pending his discussion with
Spano and that this was so communicated to Gumbel. It
is noted that, at the time of his conversation with
Gumbel, Kilcullen was aware of the fact that Spano had
been at the jobsite and had objected to Gumbel's pres-
ence therein. Thus, when he spoke to Spano later on in
the evening, Spano although not specifically requesting
Gumbel's termination reaffirmed his opposition to
Gumbel and the Respondent's problems with him, and
stated that "if it was up to him Gumbel wouldn't work
here or anywhere." In these circumstances, particularly
where the Respondent was a party to a collective-bar-
gaining agreement with the Respondent, and where Kil-
cullen testified that he did not wish to get in trouble
with Spano, it is clear that the Respondent's conduct
herein amounted to an "efficacious request" that Key
discharge Gumbel, which satisfies the term "cause or at-
tempt to cause" as used in the Act. Electrical Workers
IBEW Local 262 (Arthur Paul Jr. Electrical Contractor),
264 NLRB 251 (1982); Stereotypers (Dow Jones), 175
NLRB 1066 (1969); Teamsters Local 294 (Rubber City
Express), 204 NLRB 700, 701, 702 (1973). See also Paint-
ers Local 1627 (Johnson's Plastering Ca), 233 NLRB 820,
821 (1977), where the Board held that a union caused an
employer not to hire an individual, notwithstanding the
absence of a direct demand that he not be hired.
C. Whether the Respondent's Causing Key to
Discharge Gumbel was in Violation of the Act
As quoted in Operating Engineers IUE Local 18 (Ohio
Contractors Assn.), 204 NLRB 681 (1973), reversed on
other grounds 496 F.2d 1308 (6th Cir. 1974). See also
Boilermakers Local 40 (Envirotech Corp.), 266 NLRB 432
(1983).
When a union prevents an employee from being
hired or causes an employee's discharge, it has dem-
onstrated its influence over the employee and its
power to affect his livelihood in so dramatic a way
that we will infer-or, if you please, adopt a pre-
sumption that-the effect of its action is to encour-
age union membership on the part of all employees
who have perceived that exercise of power. But the
inference may be overcome, or the presumption re-
butted, not only when the interference with em-
ployment was pursuant to a valid union-security
clause, but also in instances where the facts show
that the union action was necessary to the effective
performance of its function of representing its con-
stituency.
The issue for resolution is therefore whether the Re-
spondent has been able to overcome or rebut the pre-
sumption of illegality of its actions, by showing that its
conduct was either in the enforcement of a valid union-
security clause or that it was necessary to the effective
performance of representing its constituency. Since nei-
ther Spano nor any other official of the Respondent testi-
fied herein, its reasons for its actions have not been clear-
ly articulated. However, a number of possible reasons are
not suggested by the record.
There is evidence in the record that Spano objected to
the fact that employee Stine did not have a "book."
While the Respondent's contract with Key does contain
a union-security clause, it is clear that its actions were
883
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not in furtherance or enforcement of that provision. At
no time did the Respondent demand or request that Kil-
cullen replace Stine with a union member. Indeed the
entire thrust of the Respondent's actions was to remove
Gumbel from the job, and the fact that Stine was also
terminated was incidental to the Respondent's conduct.9
Therefore the fact that Stine may not have had a "book"
provides no basis for the Respondent to object to Gum-
bel's presence, who admittedly did have a book and in
fact had offered to show it to Spano. °I
The record also contains some testimony concerning
the existence of a 48-hour notice provision in the con-
tract. However, it appears from reading the provision
and Kilcullen's testimony that Key is not required to go
through the Respondent to obtain employees. In any
event, there is no evidence in this record that the possi-
ble violation of this clause in the contract in any way
motivated the Respondent's actions. Thus, Spano never
mentioned the clause to either Kilcullen or Gumbel
during his conversations with them, nor does the record
even suggest that this provision in the contract was
being enforced by the Respondent in its demand that
Key discharge Gumbel.
There is some evidence in the record that Spano asked
Gumbel if he was "lumping" the job, and then later
claimed to Kilcullen that Gumbel was "still in business."
This raises the possibility that the Respondent was moti-
vated in its action by a belief that Gumbel was operating
as a subcontractor. The Board has found that a refusal to
refer an employee because of an established union policy
against referring individuals who are also contractors is
not unlawful. The Board reasoned that the Union's rule
was legitimate and reasonable, in that it is an effort to
assure that employment opportunities for those who, day
in and day out, are rank-and-file employees, are not prej-
udiced by competition from those who have operated as
contracting employees. Carpenters Local 1080 (Commer-
cial Contracting Corp.), 201 NLRB 882 (1973). See also
Painters Local 1075 (Carr Glass d Paint Ca), 190 NLRB
388, 389 (1971); Marquette Mfg. Co., 213 NLRB 182
(1974). In Operating Engineers IUE Local 825 (AGC of
New Jersey), 187 NLRB 50, 53 (1970), this theory was
extended to a situation where the union merely had an
honest and reasonable belief that the individual not re-
ferred was operating as a contractor and was therefore
outside the unit, and where the evidence revealed no
other arbitrary considerations were involved in the
union's actions.
However, in my judgment the facts on this record do
not permit the Respondent to take solace in nor rely on
the holdings in the above cases. Initially it must be em-
phasized that contrary to the above-cited cases, where
the record revealed the existence of an established union
policy either in the contract itself, 1 or by evidence of
s I note that the complaint does not allege nor does the General Coun-
sel contend that the Respondent unlawfully caused the discharges of
Stine or Wenz.
10 I note also in this regard that even as to Stine, the union-security
clause provides a 7-day grace period. Stine was only employed by Key
for 2 days.
11 Carr Gla, supra.
local union rules,2 a the record herein fails to establish
that the Respondent had any such policy or contract
provision against employees who are or were contractors
working or that it was attempting to enforce any prohi-
bition against such activity.
Moreover, as noted above I have found that Gumbel
was not in fact working as a contractor on the jobsite,
but as an empl6yee. I also conclude that the Respondent
did not have an honest or reasonable belief that Gumbel
was so acting. The evidence is unrefuted that Gumbel
had not acted as a contractor since 1979, some 3 years
earlier, when Castaways ceased operations. When Spano
asked Kilcullen and Gumbel about the matter he was
told by both individuals that Gumbel was acting as an
employee for Key. The record does not reveal that
Spano made any investigation of this issue, nor that he
had any basis to support his purported belief that
Gumbel was still in business, or was operating as a con-
tractor. In fact, an examination of Spano's conversations
with Kilcullen and Gumbel convinces me that Spano's
reference to Gumbel's being in business and his com-
plaint about Stine's not having a "book" were mere pre-
texts, seized on by Spano to mask his true motivation in
seeking the discharge of Gumbel. I find that the evidence
establishes that the real reason for Spano's dissatisfaction
with Gumbel was the fact that the Respondent claimed
that he owed them S14,000 back pension and welfare
moneys as a result of his association with Castaways. I
rely on, in this regard, Spano's comments to Kilcullen
that if it were up to him Gumbel would not work any-
where, right after assuring Kilcullen that the problem in-
volving the pension and welfare payments had not been
solved, as well as Spano's statement to Gumbel that
"you're not going to work in my territory," while telling
him that he owes Spano a lot of money.
Accordingly it then becomes necessary to detemine
whether the Respondent may lawfully cause Key to dis-
charge Gumbel because of the funds' pending claims
against Castaways, a corporation with which Gumbel
was associated. Thus, it must be decided if the action
was necessary to the effective performance of its func-
tion of representating "its constituency." Ohio Contrac-
tors, supra. I note that the Respondent has made no such
showing. Indeed the Respondent presented no testimony
whatsoever on the issue of why it caused Key to termi-
nate Gumbel, nor as to how its conduct was necessary to
the performance of its representative function.
The Board in Plasterers Local 5 (John P. Phillips Plas-
tering), 145 NLRB 1608 (1964), faced a similar issue, and
found that a union may not lawfully cause an employee
to be terminated because of a corporate debt owed to the
union by a corporation that the employee had been in-
volved with. "
i" Commercial Contracting, supra; AGC of New Jery, supra; Marquette
Mfg., supr.
'" In Phillus, supra, the debt involved was deducted from the wages of
employees by the corporation and not forwarded to the union. The
amount was $1,187.15 which was admittedly owed by the corporation
and was listed in the schedule of the corporation debts in its bankruptcy
proceeding.
884
BRICKLAYERS LOCAL 6 (KEY WATERPROOFING)
The Board affirmed the then Trial Examiner's deci-
sion, which held that "whether the employee was nor-
mally obligated to pay this debt is not the issue." Id. at
1622. Indeed in the instant case it is not even clear
whether Gumbel was morally obligated to pay the debt
or in fact whether there was a debt at all. Gumbel assert-
ed that he did not owe any money to the funds, since the
payments requested were for work performed outside the
jurisdiction of the Local and that he had made payments
to other funds for these employees. Gumbel's defenses in
this regard may or may not be viable and I need not and
do not make any finding in this regard. However, it is
clear that the matter is still pending before the Federal
District Court and that it is at least possible that Cast-
aways as a corporation, much less Gumbel as an individ-
ual, may not owe anything to the funds, when the litiga-
tion is finally completed.
Moreover, the Board has consistently held that a union
violates Section 8(b)(1)(A) and (2) of the Act when it
seeks to interfere with the employment opportunities of
members, who fail to pay admittedly legitimate union
fines t 4 or assessments.15 Thus, it would seem to follow
that if a union cannot lawfully cause an employee to be
terminated because he refuses to pay a clearly legitimate
fine or assessment for which the employee is individually
liable, that it similarly cannot do so because an individual
as here refuses to pay a debt to the union funds which
may or may not be valid, and which is a debt that runs
only to the corporation and not to the individual. Such
conduct by the Respondent can only be described as ar-
bitrary, invidious, and unrelated to its representative
functions, and therefore violative of Section 8(b)(l)(A)
and (2) of the Act. I so find.
CONCLUSIONS OF LAW
1. The Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
2. Key Waterproofing Company, Inc., is an employer
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
3. By causing Key to terminate the employment of
Robert Gumbel at the Cairo jobsite in Cairo, New York,
the Respondent has violated Section 8(b)()(A) and (2) of
the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in
unfair labor practices in violation of Section 8(b)(1)(A)
and (2) of the Act, I shall recommend that the Respond-
ent be ordered to cease and desist therefrom and to take
certain affirmative action designed to effectuate the poli-
cies of the Act.
Since I have found that the Respondent unlawfully
caused the Employer to terminate Gumbel, I shall rec-
ommend that the Respondent notify Key Waterproofing
14 Johnson's Plastering, supra.
'" Longshoremen Local 440 (Port Arthur Stevedores), 214 NLRB 1068
(1974).
Company, Inc., and Gumbel in writing that it has no ob-
jection to Gumbel's employment by the Employer. I
shall also recommend that the Respondent make Gumbel
whole for any loss of earnings suffered by him as a result
of the discrimination against him. 6 Loss of earnings
shall be computed in the manner set forth in F. W.
Woolworth Co., 90 NLRB 289 (1950), and Florida Steel
Corp., 231 NLRB 651 (1977). See, generally, Isis Plumb-
ing Co., 138 NLRB 716 (1962).
I shall also recommend that the Respondent be or-
dered to expunge from its files any reference to Gum-
bel's unlawful discharge and to notify Gumbel in writing
of its actions as well as inform him that his unlawful dis-
charge shall not be used as a basis for future action
against him. Furthermore, I shall recommend that the
Respondent be required to ask Key to remove from its
files any reference to Gumbel's unlawful discharge and
notify Gumbel that it has asked the employer to do so.
See R. H. Macy & Co., 266 NLRB No. 157 (May 23,
1983).
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommended
ORDER 1 7
The Respondent, Bricklayers and Allied Craftsmen,
Local 6, AFL-CIO, Albany, New York, its officers,
agents, and representatives, shall
1. Cease and desist from
(a) Causing or attempting to cause Key Waterproofing
Company, Inc., or any other employer to discharge or
otherwise discriminate against Robert Gumbel or any
other employee because of his failure to pay to the
Union or the Union's funds moneys which the Union or
the funds assert that said employee owes to them or be-
cause of any other arbitrary or invidious reasons.
(b) In any like or related manner restraining or coerc-
ing employees in the exercise of the rights guaranteed
them in Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act.
(a) Make Robert Gumbel whole for any loss of pay he
may have suffered as a result of the discrimination
against him in the manner set forth in the section entitled
"The Remedy."
(b) Notify Key Waterproofing Company, Inc., in writ-
ing, and furnish a copy of such notification to Robert
I6 While the facts are clear that the Respondent caused Key to dis-
charge Gumbel from employment on the second phase of the job and not
to hire him for the third phase at the Cairo jobsite, his status vis a vis the
third phase is not sufficiently clear from this record. I shall therefore
have the determination of whether Gumbel is entitled to backpay for the
third phase of the job to the compliance stages of this proceeding. I note
in this connection that the record suggests that Key would have hired
Gumbel for this phase, if Kilcullen had been unable to complete it him-
self Thus, among other factors, it must be determined when the third
phase was completed and what Kilcullen's physical condition was at that
time.
l' If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
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 pur-
poses.
885
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gumbel, that it has no objection to Gumbel's employ-
ment by said Employer.
(c) Expunge from its records any reference to the un-
lawful discharge of Robert Gumbel and notify him, in
writing, that this has been done and that evidence of his
unlawful discharge shall not be used as a basis for future
action against him.
(d) Post at its business office copies of the attached
notice marked "Appendix A." 18 Copies of the notice, on
forms provided by the Regional Director for Region 3,
after being signed by the Respondent's representative,
shall be posted and maintained for 60 consecutive days in
I 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
conspicuous places including all places where notices to
members are customarily posted. Reasonable steps shall
be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other materi-
al.
(e) Forward a sufficient number of signed copies of the
notice to the Regional Director for Region 3 for posting
by the Employer at its place of business, in places where
notices to employees are customarily posted, if the Em-
ployer is willing to do so, and ask the Employer to
remove any reference to Gumbel's unlawful discharge
from the Employer's files and notify Gumbel that it has
asked the Employer to do this.
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
886