Brotherhood of Painters, Etc.

National Labor Relations Board - Board Decisions

Nov 18, 1955

114 N.L.R.B. 1171 (N.L.R.B. 1955)

BROTHERHOOD OF PAINTERS, ETC. 1171
bookkeepers are not confidential employees, and we shall therefore in-
clude them in the unit which we herein -find appropriate.
We find that all regular and regular part-time employees at each of
the Employer's five retail drugstores in Lake County, Indiana, includ-
ing bookkeepers, but excluding store managers, pharmacists, porters,
employees currently otherwise represented, seasonal employees, guards,
and supervisors as defined in the Act, constitute separate units ap-
propriate for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act.
[Text of Direction of Elections omitted from publication.]
MEMBER MuRAoCK took no part in the consideration of the above
Decision and Direction of Elections.
Brotherhood of Painters , Decorators & Paperhangers of America,
Carpet, Linoleum and Resilient Tile Layers Local Union No. 419,
AFL, and George Cooney, Business Agent and Charles Myers,
Jr., A. R. Mick, B. F. Carls, Art Cassias . Cases Nos. 30-CB-46,
30-CB-47, 30-CB-48, and 30-CB-19. November 18, 1955
DECISION AND ORDER
On February 18, 1955, Trial Examiner Howard Myers issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair
labor practices,, and recommending that they cease and desist there-
from and take certain affirmative action, as- set forth in the copy of
the Intermediate Report attached hereto. Thereafter, the Respond-
ents and the General Counsel each filed exceptions to the Intermediate
Report and supporting briefs.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter=
mediate Report, the exceptions and briefs, and the entire record in
these cases, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner only insofar as they are consistent
with our decision herein.
1. We agree with the Trial Examiner that on or about October 11,
1954, the Respondents violated Section 8 (b) (2) and Section 8 (b)
(1) (A) of the Act by causing the Company to lay off, on October
12, 1954, and later discharge, on or about October 15, 1954, the four
' As no exception was filed to the Trial Examiner's recommendation of dismissal as to
the allegation in the complaint with respect to the Union's administration of its join
referral program, we shall dismiss this allegation without further comment.
114 NLRB No. 175.
387644-56-vol. 114-75
1172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
coniplaiiiants herein in the absence of a:valid union-security contract,
as more fully set forth in- the Intermediate Report: The Respondents
contend that they were justified in-having the Company discipline the
four complainants because, in obtaining bonus pay, they bargained
individually in derogation of the Union's status as exclusive bargain--
ing `agerit -and/or breached the alleged contract between- the parties
*hich,'-fixed' 'the scale of wages, and thus engaged in unprotected
a6tivity; Apart .from whether there is merit in the legal aspects of
this contention, the record discloses that the Company unilaterally
established this mode of payment without any individual bargaining
on the part of the employees involved, and that the alleged contract
contained no provision which precluded the payment of rates higher
tli`an the minimum prescribed. Thus, there appears to be no factual
basis for the Respondents' contention.
2. The complaint alleged that the Respondents enforced unlawful
hiring practices at a housing project where the Company was engaged
as a subcontractor in the installation of floor and wall tile. The Trial
Examiner found no such violation of the Act and recommended that
this allegation of the complaint be dismissed. We disagree. We find
that the Respondents and the Company followed the unlawful prac-
tice of requiring applicants for employment as tile employees to ob-
tain clearance from the Union as a condition of employment. The
pertinent circumstances as disclosed by the recoi d are as follows :
The Company, a partnership, began work in March 1954 as a sub-
contractor, installing wall and floor tile in a housing project near
Denver. A partner, Spoon, contacted the Union's business agent,
Cooney, a Respondent herein, and informed him that the Company
needed men to install tile. Cooney assured Spoon that the Union
would be able to furnish the men: Cooney also informed Spoon in a
general manner what working conditions and wage scales the Union
would require.
A few days later, the Company's foreman at the housing project,
Baker, telephoned Cooney and asked him for the Union's wage scales
as well as for a sufficient number of men to man the job. ' Cooney
told Baker that he would send him the necessary information and,
shortly after that, Baker received four documents by mail.
One of the documents, among other things, recited the prevailing
wage scales for union members in the Denver area and also incorpo-
rated by reference as part of the understanding between the parties
the standard contract that the Union formerly executed with em-
ployers in the Denver area prior to 1948.1 The latter contains provi-
2 The following two paragraphs are in the document containing the wage scales :
For the purpose of uniformity and for your information , I [Cooney] have been
asked to send a copy of the 1950 memo , which supplemented our working agreement
to all Employers.
This memo will serve as a reference , in conjunction with our old agreement for
your convenience.
The iecoid shows that the indicated previous working agreement was the standard con-
tract mentioned above.
BROTHERHOOD OF PAINTERS, ETC. - - 1173
sions which require the employer to hire only union members or those
obtaining a working permit from the Union. The standard contract
was 1 of the 4 documents received by the foreman, Baker. _
On the document containing the wage scales, the Union's business
representative, Cooney, had written the following sentences. "We
have not required a signed agreement since 1947. However, we con-
form to the old agreement insofar as it does not conflict with any
State or Federal laws."
While the Board has held that such a "savings" provision does not
serve to validate an agreement containing an otherwise unlawful
union-security clause,3 we are not satisfied that the record establishes
that the parties entered into a closed-shop contract. However, we do
find that the Respondents enforced illegal hiring practices at the
Company's project. Apart from three employees, all the tile installing
men employed by the Company at the housing project were union
members who had been secured through the Union. As to 2 of the 3
employees, a partner, Oshier, credibly testified that, although he had
contacted them on his own, he had then notified the business agent
about the men. Oshier stated that "I told [Cooney] that we had these
two men and if he would clear them through we would like to put them
to work." The third employee, Carls, had gone to work for the
Company at the housing project after receiving a working permit
from another union with whom the Company had contractual rela-
tions. About 2 days later, the latter union and the Respondent Union
became involved in a jurisdictional dispute as to which union had
the right to install the wall tile at the project. As the Respondent
Union's members had been assigned this work at the commencement
of the housing project, it was agreed that they should continue to
perform this work until the international union with which both
unions were affiliated should resolve the jurisdictional dispute. Carls
was assigned to installing wall tile. Carls credibly testified that
Cooney decided to give him a working permit until it was determined
which union was to perform the work. Later, Cooney induced Carls
to apply for membership in the Respondent Union. Based on the fore-
going, we find that the Respondents enforced illegal hiring practices
at the Company's project and thereby violated Section 8 (b) (1) (A)
and (2) of the Act .4
3. We find, in accordance with the Trial Examiner, that the General
Counsel has not sustained by a preponderance of the evidence the alle-
gation in the complaint that the Respondent Union enforced closed-
shop conditions generally over work coming within the jurisdiction of
the Union in the area of Denver, Colorado. Cooney testified that the
Union gave the document, which contains the wage scales and which
Ebasco Services , Inc., 107 NLRB 817.
Seabright Construction Company, 108 NLRB 8
1174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
incorporated by reference the old standard contract, to all employers
who wished to employ union members. However, there is no inde-
pendent evidence that such employers were given copies of the stand-
ard contract; and there is no independent evidence that the employers
with whom the Union dealt ever agreed or gave effect to any illegal
hiring practices. Accordingly, we shall dismiss this allegation of the
complaint.
4. The General Counsel excepts to the Trial Examiner's failure to
find, as alleged in the complaint, that the Respondent Union violated
the Act by placing the Company on its unfair list in November 1954
for the purpose of causing the Company to discriminate against the
four complainants herein. We find no merit in this contention, as the
record shows that the Union placed the Company on its unfair list for
other reasons and not in an attempt to cause the Company to dis-
criminate against the complainants.
5. Nor do we find any merit in the exception of the General Counsel
to the Trial Examiner's failure to find that the Union violated the Act
by causing the Company to discriminate against the four complain-
ants by reemploying them, on November 8-10, 1954, at rates of pay less
than that they had received prior to their discharge. As more fully
stated in the Intermediate Report, the Union objected to the bonus
arrangement of the Company, whereby the employees received a bonus
of an extra hour's pay per day for completing daily the installation
of tile in six houses. This practice the Company discontinued when
the Union protested on October 11, 1954. As set forth above, the
Union caused the Company to lay off the four complainants on Oc-
tober 12, 1954, and later discharge them on October 15, 1954. After
settling various difficulties with the Union, the Company reemployed
the four complainants on November 8-10, 1954, but without the bonus
arrangement.
The Union, as bargaining representative of the Company's tile
employees, had the authority under the Act to bargain with the Com-
pany regarding, among other things, the wage scales to be paid these
employees. The record shows that the parties' agreement to change
the wage scales affected the rates of pay of all other tile employees as
well as the four complainants and that there was no disparate treat-
ment or purpose of discrimination on the part of the Union against
the latter. Hence there was no violation of the Act.
As the bonus pay arrangement was legitimately changed at or about
the same time that the discrimination first occurred, it follows that,
in computing any loss of pay that the complainants may have suf-
fered because of the discrimination against them by the Respondent
Union in securing their layoff and later discharge, as set forth above,
the complainants are not entitled to have any bonus included in such
computations.
BROTHERHOOD OF PAINTERS, ETC.
ORDER
1175
Upon the entire record in these cases , and pursuant to Section 10
(c) of the National Labor Relations Act, as amended, the National
Labor Relations Board hereby orders that the Respondents, Brother-
hood of Painters, Decorators & Paperhangers of America, Carpet,
Linoleum and Resilient Tile Layers Local Union No. 419, AFL, its
officers, representatives, agents, successors , and assigns , and George
Cooney, its business agent, his representatives and assigns , shall :
1. Cease and desist from :
(a) Causing or attempting to cause Spoon Tile Company to dis-
charge, suspend, lay off, or in any other manner discriminate against
its employees in regard to their hire or tenure of employment or any
term or condition of employment in violation of Section 8 (a) (3)
of the Act.
(b) Restraining or coercing employees or prospective employees
of Spoon Tile Company, in the exercise of their right to self-organiza-
tion, to form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in other
mutual aid or protection, or to refrain from any or all of such ac-
tivities except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a condi-
tion of employment, as authorized in Section 8 (a) (3) of the Act.
(c) The practice of requiring the Company's employees or appli-
cants for employment to obtain clearance from or be members of the
Respondent Union, as a condition of employment, except as authorized
by Section 8 (a) (3) of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Post in conspicuous places in their business offices and all places
where notices to members are customarily posted, copies of the notice
attached hereto and marked "Appendix A." 5 Copies of said notice,
to be furnished by the Regional Director for the Seventeenth Region,
shall, after being duly signed by the Respondents, be posted by them
immediately upon receipt thereof and maintained by them for a period
of at least sixty (60) consecutive days thereafter. Reasonable steps
shall be taken to insure that said notices are not altered, defaced, or
covered by any other material.
(b) Mail to said Regional Director signed copies of the aforesaid
notice for posting, Spoon Tile Company willing, at the job site of
Spoon Tile Company, Thornton, Colorado, where notices to its em-
ployees are customarily posted.
B In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Coui t of Appeals, Enforcing an Order "
1176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Notify said Regional Director in writing, within ten (10) days
from the date of this Order, what steps the Respondents have taken
to comply herewith.
_. IT IS FURTHER ORDERED that the, Respondent Union make whole
Charles Myers, Jr., A. R. Mick, B. F. Carls, and Art Cassias for any
loss of pay that they may have suffered because of the discrimina-
tion against them by payment to each of them of a sum of money
equal to the amount each would normally have earned as wages, less
his net earnings, during the period of the discrimination .6
IT IS FURTHER ORDERED that the allegations in the complaint that
the Respondent Union violated the Act by (1) • entering into a closed-
shop agreement with Spoon Tile Company; (2) maintaining closed-
shop conditions with other employers over work coming within its
jurisdiction in the Denver area; (3) placing the Company on its unfair
list; (4) causing the Company to reemploy the complainants at rates
of pay less than that they had received prior to their discharge; and
(5) manipulating the job-referral program of Local 419 in such a
manner as to deprive the complainants herein of regular employment
after their discharge by the Company be, and they hereby are, dis-
missed.
MEMBER MURDOCK took no part in the consideration of the above
Decision and Order.
Owe shall not hold the Respondent , George Cooney, personally liable for back pay.
See Local 4 20, Plumbers (J. J. White, Inc ), 111 NLRB 112G.
APPENDIX A
NOTICE TO ALL MEMBERS OF BROTHERHOOD OF PAINTERS, DECORATORS
& PAPERHANGERS OF AMERICA, CARPET, LINOLEUM AND RESILIENT
TILE LAYERS LOCAL UNION No. 419, AFL, AND TO ALL EMPLOYEES
OF SPOON TILE COMPANY
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our members and the employees of
Spoon Tile Company that:
WE WILL NOT cause or attempt to cause Spoon Tile Company, its
officers, agents, successors, or assigns, to discriminate against any
employee or prospective employee of said Company in violation of
Section 8 (a) (3) of the Act.
WE WILL NOT restrain or coerce employees or prospective em-
ployees of Spoon Tile Company, its officers, agents, successors, or
assigns, in the exercise of the rights guaranteed in Section 7 of
the Act, or in their right to refrain from all or any such concerted
activities, except to the extent that such right may be affected by
BROTHERHOOD OF, PAINTERS, ETC. 1177
the,prodiso in Section 8 (b)° (1) (A) of the Act, or by an agree-
ment requiring membership in a labor organization as a condition
of employment as authorized in Section 8 (a) (3) of the Act.
WE WILL NOT cause or attempt to cause Spoon Tile Company to
'require employees or applicants for employment to obtain clear-
ance or job referrals from us as a condition of employment, ex-
cept as authorized by Section 8 (a) (3) of the Act.
Brotherhood of Painters, Decorators & Paperhangers of Amer-
ica, Carpet, Linoleum and Resilient Tile Layers Local Union No.
419, AFL will make Charles Myers, Jr., A. R. Mick, B. F. Carls,
and Art Cassias whole for any loss of pay suffered because of the
discrimination against them.
BROTHERHOOD or PAINTERS , DECORATORS
& PAPERHANGERS OF AMERICA , CARPET,
LINOLEUM AND RESILIENT TILE LAYERS
LOCAL UNION No. 419, AFL,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
Dated---------------- By-------------------------------------
(GEORGE COONEY)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by Charles Myers, Jr., A. R . Mick,'
B. F. Carls,2 and Art Cassias, the then General Counsel of the National Labor
Relations Board , herein respectively called the General Counsel3 and the Board,
by the Regional Director for the Seventeenth Region ( Kansas City, Missouri ), issued
his complaint on November 24, 1954,4 against Brotherhood of Painters , Decorators
& Paperhangers of America , Carpet, Linoleum and Resilient Tile Layers, Local
Union No . 419, affiliated with American Federation of Labor, and George Cooney,
herein jointly called Respondents and individually called Local 419 and Cooney,
alleging that Respondents had engaged in and were engaging in unfair labor prac-
tices affecting commerce within the meaning of Section 8 (b) (1) (A ) and (2) and
Section 2 ( 6) and (7) of the National Labor Relations Act, 61 Stat. 136, as amended,
herein called the Act. Copies of the charges , the complaint , the order of consoli-
dation, together with notice of hearing thereon , were duly served upon each Re-
spondent and upon each of the Charging Parties.
With respect to the unfair labor practices the complaint, as amended at the hear-
ing, alleged in substance that : (1) For several years immediately preceding the
filing of the original charges herein on October 19, 1954,5 Local 419 has enforced
1 Also referred to in the record as Arleigh Russell Mick.
s Also referred to in the record as Billy F Carls.
3 This term specifically includes counsel for the General Counsel appearing at the
hearing.
* On the same date, pursuant to Section 102 33 (b) of the Board' s Rules and Regula-
tions, Series 6, the said Regional Director issued, and had served upon the parties herein,
an order consolidating the aforesaid numbered cases.
6 Unless otherwise noted, all dates refer to 1954.
1178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
closed-shop conditions over work coming within its jurisdiction in the Denver,
Colorado, area; (2) pursuant to this closed-shop policy, there is an agreement or un-
derstanding presently in force between Respondents and Spoon Tile Company, a
contractor performing installation work for F and S Construction Company at
a housing project located about 10 miles north of Denver, Colorado, to the effect
that only members of Local 419 would be employed by Spoon Tile on work com-
ing within the jurisdiction of Local 419, and that the working rules of Local 419
would prevail while Spoon Tile was engaged on construction projects within the
geographical jurisdiction of said Union; (3) since on or about October 9, each
Respondent has coerced and restrained the four Charging Parties herein in the rights
guaranteed in Section 7 of the Act, by threatening to cause, attempting to cause,
and by causing each of them to suffer loss of employment because they had accepted
a wage scale and conditions of employment from Spoon Tile different from those
established by Local 419; (4) since on or about October 12, each Respondent has
caused Spoon Tile to discriminate against each of the Charging Parties in regard
to the terms and conditions of his employment by (a) laying them off on October
12, (b) discharging them on October 15, and (c) reemploying them on or about
November 8 to 10, at rates of pay and conditions of employment less favorable to
said complainants than they had enjoyed prior to their discharge; and (5) each
Respondent after October 15, the date when the complainants were discharged by
Spoon Tile at the instance of Respondents, manipulated the job-referral program
of Local 419 in such a manner as to deprive said complainants of regular employment.
On December 3, Respondents filed a joint answer denying the commission of the
alleged unfair labor practices.
Pursuant to due notice, a hearing was held from December 7 to and including
December 13, before the duly designated Trial Examiner. The General Counsel
and Respondents were represented by counsel and participated in the hearing. All
parties were afforded full opportunity to be heard, to examine and cross-examine
witnesses, to introduce evidence pertinent to the issues, to argue orally at the con-
clusion of taking of the evidence, and to file briefs or proposed findings of fact and
conclusions of law, or both. At the conclusion of the General" Counsel's case-in-
chief, Respondents' counsel moved to dismiss the complaint in its entirety. Decision
thereon was reserved. The motion is disposed of in accordance with- the findings,
conclusions, and recommendations set forth below.
Upon the entire record in the case, and from his observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
I. THE BUSINESS OPERATIONS OF SPOON TILE COMPANY
Spoon Tile Company, a copartnership consisting of Rufus Spoon, his son Earl,
and Frank A. Oshier, has its principal offices and place of business at Phoenix,
Arizona. Since its inception in or about July 1951, Spoon Tile has operated as a
contractor in the States of Utah, New Mexico, and Colorado, in the installation of
ceramic, metal, asphalt, and plastic tile.
During its fiscal year of 1951, Spoon Tile performed services in the State of New
Mexico amounting in excess of $188,000; during its 1952 fiscal year it performed
services in the States of Colorado and New Mexico amounting in excess of $159,000;
during its 1953 fiscal year it performed services in the State of Colorado amounting
in excess of $108,000; and during its 1954 fiscal year it performed services in the
States of Colorado and Utah amounting in excess of $232,000.
Spoon Tile is presently performing a contract for F and S Construction Company
for the installation of all floor and wall tile at a housing project at Thornton, Colo-
rado, which is located about 10 miles north of Denver.' Spoon Tile commenced to
install tile on this project on or about April 5 and as of November 1 had completed
work on about 650 of the 5,000 homes to be erected
Spoon Tile is also presently performing tile installation work under a contract with
F and S Construction Company on a housing project at Kearns, Utah, which is
located about 10 miles southwest of Salt Lake City, Utah, where, at the time of the
hearing, it had completed work on about 1,000 of the 2,800 homes to be erected.
During the period from April 1 through October 1954, Spoon Tile's purchases of
materials amounted to $81,785.80, of which $71,203 06 were purchased from firms
located in the State of California.
Upon the above undisputed facts the Trial Examiner finds that Spoon Tile Com-
pany during all times material was engaged in and is engaged in commerce within the
meaning of the Act, and that it will effectuate the policies of the Act for the Board to
assert jurisdiction in this case.
BROTHERIfOOD OF PAINTERS , ETC. 1179
II. THE LABOR ORGANIZATION INVOLVED
Brotherhood of Painters , Decorators & Paperhangers of America , Carpet, Linoleum
and Resilient Tile Layers Local Union No. 419, affiliated with American Federation
of Labor, is a labor organization not only admitting to membership employees of
Spoon Tile Company but also craftsmen in Denver , Colorado , and vicinity whose
work falls within its jurisdiction.
III. THE UNFAIR LABOR PRACTICES
A. The pertinent facts
In the latter part of March 1954 , Rufus Spoon , one of the partners of Spoon Tile,
telephoned George Cooney , the business representative and financial secretary of
Local 419 and one of the respondents herein, and , after informing Cooney that his
company had a contract with the F and S Construction for the installation of the
floor and wall tile at the Thornton project, inquired whether Cooney 's union could
supply men to set and lay tile . After Cooney had assured Spoon that Local 419
could supply the necessary men and after a discussion regarding the prevailing wage
scale, Spoon advised Cooney that either he or his partner , Frank A. Oshier, would
get in - touch with him the following week.
Shortly before April 5, the approximate date when Spoon Tile commenced opera-
tions at the Thornton, project , Bernard Baker , Spoon Tile's foreman , called at
Cooney's office and Cooney gave him copies of the prevailing tile operators' wage
scale, the vacation and severance data for such workmen, forms for reporting hours
of work performed for use in calculating the amounts due Local 419 's health and
welfare fund , and the collective-bargaining agreement then in force between Local
419 and the employers in Denver , Colorado, area employing craftsmen over whom
Local 419 had jurisdiction . The wages scale, the vacation and severance pay, and
the payments to be made to the health and welfare fund are covered by the aforesaid
agreement.
About mid-April, F and S Construction reassigned the installation of wall tile to
the hard tile setters who were represented by a union other than Local 419. There-
upon the men supplied Spoon Tile by Local 419 ceased work , claiming that wall tile
setting should be given to members of Local 419. Within a day or two an agree-
ment was reached between Cooney, representatives of the hard tile setters union, a
representative of the Painters Union, and" a representative of the Denver Building
Trades Council , whereby the members of Local 419 were again assigned the wall tile
jobs pending the resolution of the dispute by AFL's Washington, D. C., jurisdictional
board . Thereafter all men working as tile setters or layers on the Thornton project
were either members of Local 419 or held work permits issued by that organization.
Iii the latter part of April, or early in May, Baker told Cooney that some of his
tile men were better workmen than others and inquired whether Spoon Tile could
not pay the better workmen higher wages. Cooney replied that if Baker desired he
could pay these men foremen 's wages. About mid-May, Baker commenced giving
Ralph Spencer and Dale Smith , two floor tile men , each foremen 's pay, viz, $3.50
a day in addition to their regular wages as fixed by the union scale.
In order to speed up the work and to maintain the schedule laid out by F and S
Construction for the tiling of six houses per day, Spoon Tile, commencing with the
payroll week of May 13, gave all its tile men , except Spencer and Dale Smith, who
continued to receive foremen 's pay, an extra hour's pay per day at overtime rates.
This extra pay, however , was reduced to regular rates commencing with the payroll
week of May 20, and was paid to each man, except Spencer and Dale Smith , weekly.
When Cooney learned , in the latter part of June, of this extra pay being given to
the tile men he told Baker that "he wouldn't stand for" such a procedure because "it
constituted piecework ." Thereupon , commencing with the payroll week of July 1,
Spoon Tile discontinued paying the men the extra compensation on a weekly basis,
but instead gave each of the tile men a check at the end of each month fdr an extra
hour 's pay per day worked. Likewise , commencing with the payroll week of July 1,
instead of paying Dale Smith weekly foreman 's pay of $3.50 per day plus his regular
wages, Spoon Tile gave him this extra compensation at the end of each month .6
The payment of this extra compensation ceased about September 30, and the
practice of the men leaving the job before the regular quitting hour if the men had
Spencer was injured early in June and was absent from the job for about a week or
10 days . Upon his return to work, because he was unable to do the work he formerly
did, Spoon Tile decided not to gn e him the extra foreman's pay . Spencer worked about
1 week at regular wages and then quit his job
1180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
completed tiling the required number of houses and had done all other required
work ,7 upon Cooney 's insistence . Cooney objected to the aforesaid practice and to
the payment of the above -referred-to extra compensation because he considered the
men, under such arrangements , were actually working under piecework conditions
and were thus violating the expressed policy of Local 419 and undermining °,the
working conditions in the Denver area.
The 10 tile men working for Spoon Tile, all of whom were members of Local
419, except Billy F. Carts who had been an applicant for membership since about
mid-April and who held a Local 419 work permit since that time, were ordered to
appear before the executive board of Local 419 on October 9.8 There, Cooney
stated, among other things, that the tile men at the Thornton job had been working
at piecework rates. After a rather heated discussion about Cooney's accusations
and about certain other matters pertaining to the Spoon Tile job, including the manner
in which the men were performing their work, the executive board announced that
only Cooke Smith, Leonard Berkheimer, and Fred Deicken could return to the
Spoon Tile job and the other seven men would be referred to other jobs.9
Shortly after the aforesaid executive board meeting, Oshier was informed of its
decision to refer seven of his tile men to other jobs. At the request of some of the
men involved, Oshier conferred that afternoon with Complainants Myers, Mick,
Carts, and several other of his tile men. As a result of this meeting, the same parties
and several additional tile men then in Spoon Tile's employ conferred the following
day with Rufus Spoon and Baker.
Pursuant to the decision reached at this second meeting, the 4 complainants herein,
together with Spoon , Oshier, and at least 1 other Spoon Tile employee, met the next
morning, Monday, October 11, at the Board's Denver office. There they sought the
advice of a field examiner attached to said office. The employees were advised by
the field examiner to return to their jobs and Spoon and =`Oshier were advised to
put them to work. At about 10.30 or l I o'clock that morning the four complainants
arrived at the Thornton job and worked the balance of the day.'°
At about noon on October It, Oshier telephoned Cooney and asked whether he
and Rufus Spoon could call upon him . Cooney replied , according -to Oshier's un-
denied and credited testimony, "I had better get down there and talk to him because
if these four men (the complainants) came back to work he was going to throw a
picket line around [the project] the next morning." Later that day, Oshier, Spoon,
and a managerial representative of F and S Construction conferred with Cooney at
the union hall. When Spoon asked Cooney if the employees ordered off the Spoon
Tile job could return to work, Cooney replied, in effect, they could not.
The four Charging Parties reported for work at the regular starting time on October
12, 13, 14, and 15 but were refused employment, despite the fact that Spoon Tile
needed their services, was beseeching Cooney for additional tile men, and was fall-
ing behind the schedule outlined for it by F and S Construction. Each of the
complainants, however, was paid $10 per day as "report in time" for each of the
aforesaid 4 days. On October 15 or 18, the said four men were discharged by Spoon
Tile.
About November 3, Cooney mailed Spoon Tile d letter, dated November 1, reading
in part as follows.
On or about October 11, 1954, we were forced to withdraw members of our
union from your employment on the Thornton, Colo. project because of your
failure to comply with our working standards.
Since then, you have corrected the conditions complained of and we therefore
wish to advise you that the members of our union, including those in your
employment prior to the above occurrence, are now available for employment
with your concern.
Upon receipt of the above letter Spoon Tile advised the dischargees involved to
report to work on November 8. Cassias returned to work on November 8, Myers
and Mick on November 9, and Carts on November 10
7 This practice of leaving the job before the regular quitting hour provided the men
had completed all required work, was agreeable to Spoon Tile.
a All these nien appeared at the meeting except Art Cassias who reported to the union
hall after the meeting had concluded.
6 Cassias, when he reported to the union hall on October 9, was told by Cooney that he
could not work at Spoon Tile but would be referred to another job.
w Cooke Smith, Leonard Berkheimer, and Fred Deicken worked a full 8 hours on
October 11.
BROTHERHOOD OF PAINTERS, ETC. 1181
At a regular membership meeting of Local 419 held on November 24, a resolution
was passed placing Spoon Tile on that Union's unfair list . Copies of said resolution
were.mailed on November 26 or 27 to each Spoon Tile employee who was a member
of Local 419 and to Spoon Tile.
When the members of Local 419 and Carls reported at the Thornton job on
Monday, November 29, they refused to go to work because of the above-mentioned
"unfair" listing.
On December 2, Rufus Spoon called on Cooney and, after stating that his firm
was desirous of eliminating all friction between it and Local 419, inquired what
specifically Spoon Tile had done to antagonize Local 419, besides the mixup over the
payments to the health and welfare fund. Cooney replied that the establishment of
the piecework practice was the main bone of contention and that it was his intention,
as well as that of Local 419, to eliminate that practice . Spoon then stated that if
Cooney would specify in writing the practices of Spoon Tile which were objectionable
to him and to Local 419, he would sign a memorandum agreeing to discontinue them.
Later that day Spoon signed, on behalf of Spoon Tile, the following memorandum
prepared by Cooney and the president of Local 419:
It is understood that no piece work practice will be tolerated and it is mutually
understood that no effort will be made to introduce the same. We will furnish
the best men possible for the job with the understanding that some men are
capable of more production than others, but that all men on the job will be
required to do an honest eight hour days work. (No laying down on the job
will be tolerated.) We will make no effort to restrict production or will we
tolerate any effort to use sweatshop methods.
1)
A health and welfare performance bond equal to about three months pay-
ment or $300.00, will be provided. A check on the total number of hours of
work performed against the total number paid to date and an adjustment made
on the balance due.,
(2)
A floor covering man of our craft (or 'one familiar with our craft) of your
choice to act as foreman with instructions from you to do all his business,
pertaining to union affairs, with the steward or the representative of the Union.
. (3)
Heat- (preferably a conversion unit) but in no case the use of a butane
burner or any other open flame type burner in the house while the mechanics
are using cutback cement.
On December 3, Cooney telegraphed Spoon Tile as follows: _
A tentative agreement has been made with Mr. Spoon subject to confirmation
by. Local 419 You may resume operations Monday under this agreement and
any additional men required will be furnished if available upon request.
On December 6, work was resumed "by the tile men at the Thornton project.
B. Concluding findings
Upon the credited evidence in this case, as summarized above, and upon the record
as a whole, the Trial Examiner is convinced, and finds, that Respondents' actions,
as found above, were clearly violative of Section 8 (b) (1) (A) and (2) of the Act.
Section 8 (b) (1) (A) states that it shall be an unfair labor practice for a labor
organization or its agents to restrain or coerce employees in the exercise of the rights
guaranteed in Section 7 of the Act provided, however, that labor organization's
right to prescribe its own rules with respect to the acquisition or retention of member-
ship therein are not impaired. Section 8 (b) (2) forbids, among other things, a
labor organization from causing or attempting to cause an employer to discriminate
against an employee in violation of Section 8 (a) (3) of the Act.
The above-referred-to sections cannot be successfully challenged on the ground
that they are vague and indefinite. The statute furnishes an adequate guide as to
what conduct is proscribed and it is as specific as the nature of the problem permits.
In short, the statute prohibits labor organizations, and their agents, from forcing,
as here, employers to discharge employees, under threats of throwing up picket
lines around their business establishments or through the use of other retaliatory
measures, unless there is in existence a valid union-shop agreement and the employees
involved are not in compliance therewith.
1182 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
Needless to say, the Act does not prohibit a labor organization from disciplining
its members . But it is also well settled that a labor organization cannot , absent
a valid union shop agreement , compel an employer to discharge an employee unless
the employee is not in compliance with that agreement . The credited evidence in
this case clearly discloses no existing valid closed-shop agreement between Spoon Tile
and Local 419. It therefore follows that when Cooney demanded that Spoon Tile
refuse employment to the four employees here involved he, as well as Local 419,
violated Section 8 (b) (1) (A) and (2) of the Act. The record also discloses that
Spoon Tile discharged the four Charging Parties because they were compelled to do
so by Local 419 and Cooney.
At the hearing Respondents contended that the complaint should be dismissed on
the ground , among others, that the evidence does not disclose any action by
Respondents which "in any way encouraged union membership." This contention
is without merit.ii
The Trial Examiner further finds that the allegations of the complaint that
Respondents violated the Act by (1) enforcing closed-shop conditions over work
coming within the jurisdiction of Local 419 in the Denver area ; ( 2) enforcing closed-
shop conditions in their business relations with Spoon Tile; and ( 3) manipulating the
job-referral program of Local 419 in such a manner as to deprive the complainants
herein of regular employment after October 15, have not been sustained by substan-
tial evidence . With respect to (3) above, the undisputed evidence reveals that as
soon as jobs appeared and the four persons here involved were available for such
openings , they were assigned to them in accordance with the regular practice of
Local 419. As to ( 1) and (2), the most that Spoon Tile did when it came into the
Denver area was to contact Local 419 in its quest for tile men, inquire as to that
organization 's rules and wage scales , and indicate its intention , without the formality
of negotiating a contract , of hiring through Local 419 and of conforming to its rules.
Local 419 did -not foist upon Spoon Tile any restrictions as to whom it could or
could not hire . In fact , when Cooney handed Baker a copy of the collective-
bargaining contract then used in the Denver area , it contained the following
notation:
We have not required a signed agreement since 1947. However, we conform
to the old agreement insofar as it does not conflict with any State or Federal laws.
Accordingly, the Trial Examiner recommends that the allegations of the complaint
referred to in the paragraph immediately above be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondents set forth in section III, above , occurring in connection
with the business operations of Spoon Tile Company set forth in section I, above,
have a close, intimate, and substantial relation to trade, traffic , and commerce among
the several States, and such of them as have been found to be unfair labor practices
tend to lead to labor disputes burdening and obstructing commerce and the free flow
of commerce.
V. THE REMEDY
Having found that Respondents have engaged in unfair labor practices affecting
commerce within the meaning of Section 8 (b) (1) (A) and (2), the Trial
Examiner will recommend that they cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act.
In order to make effective the interdependent guarantee of Section 7, to prevent a
recurrence of unfair labor practices and thereby minimize industrial strife which
burdens and obstructs commerce and thus effectuate the policies of the Act, the
Trial Examiner will recommend that Respondents cease and desist from in any man-
ner infringing upon the rights of the employees or prospective employees of Spoon
Tile, or of any other employer, guaranteed in Section 7 of the Act.
As it has been found that Respondents , in violation of the Act, caused Spoon
Tile to lay off the four complainants herein, the Trial Examiner shall recommend
that Local 419 make them whole for any loss of pay they may have suffered because
of the discrimination against them by payment to each of them a sum of money
equal to the amount he would normally have earned as wages, less his net earnings
during the period he was not working full time for Spoon Tile.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, the Trial Examiner makes the following:
'IN. L. R B v International Union of Operating Engineers , Hoisting and Portable
Local No 101 of Greater Kansas City and Vicinity, AFL, 216 F. 2d 161 (C. A. 8).
STEEL IMPROVEMENT AND FORGE CO. 1183
CONCLUSIONS OF LAW
1. Brotherhood of Painters, Decorators & Paperhangers of America, Carpet,
Linoleum and Resilient Tile Layers Local Union No. 419, affiliated with American
Federation of Labor, is a labor organization within the meaning of Section 2 (5) of
the Act.
2. Spoon Tile Company, Phoenix, Arizona, is an Employer within the meaning
of Section 2 (2) of the Act.
3. By restraining and coercing employees of Spoon Tile Company in the exercise
of the rights guaranteed in Section 7 of the Act, Respondents have engaged in and
are engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A)
of the Act.
4. By causing and attempting to cause Spoon Tile Company, an Employer, to
discriminate against its employees, in violation of Section 8 (a) (3) of the Act,
Respondents have engaged in and are engaging in unfair labor practices within the
meaning of Section 8 (b) (2) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
6. The allegations of the complaint that Respondents, in violation of the Act, (1)
enforced closed-shop conditions over work coming within the jurisdiction of Local
419 in the Denver area; (2) enforced closed-shop conditions in their business rela-
tions with Spoon Tile; and (3) manipulated the job-referral program of Local 419 to
the detriment of the complainants here involved, have not been sustained by sub-
stantial evidence.
[Recommendations omitted from publication.]
Steel Improvement and Forge Co. (Champion Division ) and In-
ternational Union, United Automobile , Aircraft , and Agricul-
tural Implement Workers of America, CIO, and its Local 759,
Petitioner . Case No. 8-RC-2529. November 18, 1955
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National
'Labor Relations Act, a hearing was held before John Vincek, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act.
4. The Employer is an Ohio corporation engaged in the manufac-
ture of drop forgings for, priiharily, the aircraft industry. The parties
are agreed as to the appropriateness of a residual unit composed of
factory clerks and expediters, but there was disagreement as to the
inclusion of timekeepers who the Employer urges are confidential
employees.
Timekeepers are hourly paid as are the plant clericals, but unlike
office clericals who are salaried. Although they do no production
114 NLRB No. 172.