Disney Roofing & Material Co.

National Labor Relations Board - Board Decisions

Nov 20, 1963

145 N.L.R.B. 88 (N.L.R.B. 1963)

88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wilber F. Disney, An Individual , d/b/a Disney Roofing & Mate-
rial Co., Disney Cedar Supply Co., Inc., and Carlmont Roofing
Co., A Corporation and Building and Construction Trades
Council of San Mateo County and United Mine Workers of
America, District 50 and Its Construction Local Union No.
14903, Party to the Contract . Case No. 2O-CA-2433. November
?0, 1963
DECISION AND ORDER
On August 2, 1963, Trial Examiner Henry S. Salim issued his Inter-
mediate Report in the above-entitled proceeding, finding that Re-
spondents Wilber F. Disney, An Individual, d/b/a Disney Roofing &
Material Co., and Carlmont Roofing Co., A Corporation, had engaged
in and were engaging in certain unfair labor practices and recom-
mending that they cease and desist therefrom and take certain affirma-
tive action, as set forth in the attached Intermediate Report. He also
found that Disney Cedar Supply Co., Inc., one of the named Respond-
ents, had not engaged in certain other alleged unfair labor practices
and recommended dismissal of those allegations of the complaint.
Thereafter, the Respondents and the General Counsel filed exceptions
to the Intermediate Report and supporting briefs.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Leedom, Fanning, and
Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report and the entire record in this case, including the ex-
ceptions and briefs, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner, with the following
modifications.
The Trial Examiner recommended that the complaint be dismissed
as to Disney Cedar Supply Co., Inc., one of the named Respondents
herein.
The record shows that the three corporations named in the com-
plaint have common officers and ownership, are in affiliated businesses,
operate from a single location, and constitute a single integrated busi-
ness enterprise. The Trial Examiner so found, and we expressly
adopt that finding. Further, the record clearly shows that Wilber F.
Disney, president of each of the three corporations, solicited em-
ployees of Disney Cedar Supply Co., Inc., as he did employees of the
other named Respondents' corporations, and that these facts were
fully litigated at the hearing. Accordingly, we find, contrary to the
Trial Examiner, that Disney Cedar Supply Co., Inc., together with the
145 NLRB No. 11.
DISNEY ROOFING & MATERIAL CO., ETC. 89
other named Respondents, is responsible for the unfair labor practices
committed herein and that it is properly the subject of the Board's
remedial order.
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner with the following modifications : i
Paragraph 1(b) is amended by addition of the following at the
beginning of the paragraph :
Soliciting checkoff authorizations from employees, or soliciting
employees to become members in the Unionby threats or otherwise,
or assisting . .. .
The companion notice provision shall be modified to include Disney
Cedar Supply Co., Inc.
1 The Recommended Order Is hereby amended by substituting for the first paragraph
therein, the following paragraph:
Upon the entire record in this case , and pursuant to Section 10(c) of the National
Labor Relations Act, as amended, the National Labor Relations Board hereby orders
that Respondents Wilber F, Disney, An Individual, d/b/a Disney Roofing & Material
Co, Disney Cedar Supply Co, Inc., and Carimont Roofing Co., A Corporation, their
officers , agents , successors , and assigns , shall:
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges filed on October 13, 1962, and February 27, 1963, by the Building
and Construction Trades Council of San Mateo County, herein called the Union, the
General Counsel of the National Labor Relations Board, by the Regional Director
for the Twentieth Region, issued a complaint dated March 15, 1963, against Wilber F.
Disney, An Individual, d/b/a Disney Roofing & Material Co., Disney Cedar Supply
Co., Inc., and Carlmont Roofing Co., A Corporation, herein called the Respondents,
alleging that Respondents had engaged in and were engaging in unfair labor practices
within the meaning of Section 8(a)(1) and (2) and Section 2(6) and (7) of the
National Labor Relations Act, as amended. Copies of the charge, complaint, and
notice of hearing were served upon the parties.
With respect to the unfair labor practices, the complaint alleges, in substance, that
Respondents rendered unlawful aid, assistance, and support to the United Mine
Workers of America, District 50, and its Construction Local No. 14903, herein
called UMW, by soliciting their Carlmont employees to sign UMW membership
cards and dues and initiation checkoff authorizations. Respondents' answer admits
certain jurisdictional and factual allegations of the complaint but denies the com-
mission of any unfair labor practices.
Pursuant to notice, a hearing was held in San Francisco, California, on May 6
and 7, 1963, before Trial Examiner Henry S. Salim. All parties were represented
and were afforded full opportunity to participate in the hearing and to introduce rele-
vant evidence bearing on the issues, to argue the issues orally upon the record, and
to file briefs and proposed findings of fact and conclusions of law. Briefs were filed
by the parties on June 10, 1963, which have been fully considered.
Upon the entire record in the case, and from observation of the demeanor of the
witnesses, the Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS
(a) Wilber F. Disney, An Individual, d/b/a Disney Roofing & Material Co., has
been, at all times material herein, engaged in the business of installing wood, compo-
sition, shingle , and wood shake roofs.
90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Disney Cedar Supply Co., Inc., a California corporation, is now, and has
been at all times material herein, engaged in the wholesale and retail sale of shingles,
shakes, and composition roofing materials and supplies.
(c) Carlmont Roofing Co., a California corporation, is now, and has been at all
times material herein, engaged in the business of installing wood, composition, shingle,
wood shake, and tar and gravel roofs and waterproofing.
(d) Wilber F. Disney, An Individual, d/b/a Disney Roofing & Material Co.,
Disney Cedar Supply Co., Inc., and Carlmont Roofing Co., A Corporation, are, and
at all times material herein have been, affiliated businesses with common officers,
ownerships, directors, and operators and constitute a single integrated business enter-
prise; the said directors and operators formulate and administer a common labor
policy for the aforementioned companies, affecting the employees of said companies.
All of said companies operate from a single office and place of business at 301 El
Camino Real in the the city of San Carlos, State of California. It is found, therefore,
that the coordinate activities of the various business entities described above are so
intimately interrelated and so dependent upon each other that the totality of their
operations is a virtual integration and constitute a single enterprise for jurisdictional
purposes.'
(e) During the past year, Respondents, in the course and conduct of the business
operations as set forth above, purchased and received directly from points outside
the State of California, materials and supplies valued at in excess of $50,000. The
Respondents admit and it is found that they are engaged in commerce within the
meaning of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Building and Construction Trades Council of San Mateo County and United
Mine Workers of America, District 50 and its Construction Local No. 14903, are
labor organizations as defined in Section 2(5) of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
The complaint alleges, in pertinent part, that:
On or about July 2, 1962, Wilber F. Disney informed employees of Disney Roof-
ing & Material Co., who were members of local unions affiliated with Building and
Construction Trades Council of San Mateo County, that he was organizing another
company to be known as Carlmont Roofing Co, which would be under contract
with UMW, District 50, and solicited his employees to repudiate their unions and
to become employees of Carlmont Roofing Company, and to become members of
UMW, District 50.
On or about September 19, 1962, Wilber F. Disney solicited employees of Disney
Roofing & Material Co., who were members of local unions affiliated with the AFL-
CIO, to sign membership applications and checkoff authorizations on behalf of
UMW, District 50.
On or about October 5, 1962, Respondents and UMW, District 50, became parties
to a collective-bargaining agreement which includes, inter alia, union-security pro-
visions requiring membership in UMW, District 50, as a condition of employment
after the seventh workday from the date of the contract execution or from the date
of hire, and provisions concerning checkoff of initiation fees and dues.
On or about January 27, 1963, Wilber F. Disney solicited employees of Carlmont
Roofing Co. to sign authorization cards authorizing him to check off and withhold
from their pay initiation fees and dues on behalf of UMW, District 50.
A. The testimony 2
The Respondent, Disney Roofing & Material Co ., is engaged in the roofing busi-
ness in San Carlos, California . Disney installs two types of roof ; wood shingle roofs
'See N.L R.B. v. U.S Air Conditioning Corp., et at ., 302 F. 2d 280, 281 (C.A. 1) ;
N.L.R B. v. National Garment Company, 166 F. 2d 233 (C.A. 8), cert. denied 334 U.S.
845; Joseph E. Cote, d/b/a J. E. Cote, and Brook Farm Foods, Inc., and Edouard Cote,
101 NLRB 1486
2 The evidence concerning some of the Incidents involved In this proceeding Is incom-
plete as to specific details so that findings of fact made herein result from an attempt to
reconcile the evidence in determining what were the circumstances and chronology which
gave rise to this complaint In attempting to supply coherence and continuity to those
portions of the record in which there are gaps, necessary recourse has been made to the
context of other facts and circumstances in an effort to determine what actually occurred
and the attending circumstances when they occurred It might be stated, parenthetically,
DISNEY ROOFING & MATERIAL CO., ETC. 91
and tar and gravel roofs. Wood shingle roofs are installed by Disney employees
who are members of the Carpenters Union , and tar and gravel roofs by employees
belonging to the Roofers Union .3 The Carpenters Union and the Roofers Union
are both constituent members of the San Mateo County Building and Construction
Trades Council, AFL-CIO, the Charging Party, referred to hereinafter as the
council.
Because of this jurisdictional dichotomy in the council , it has been necessary for
Respondent Disney to employ members of both the Carpenters and Roofers Unions
and to deal with both these unions Although Disney has not been a signatory in
the past to collective -bargaining agreements which have been executed by the con-
tractors and constituent craft unions comprising the Building and Construction Trades
Council of San Mateo County, when agreement was reached on rates of pay and
working conditions negotiated by these parties, Disney adhered to the pay rates
and working conditions previously negotiated by the employers and these various
unions comprising the council .4
The then current contract between these constituent unions of the AFL-CIO
council and the contractors was due to expire shortly and it was this event which
triggered the actions hereinafter detailed . In anticipation of this expiration date, the
employers and the labor organizations began negotiations in the spring of 1962, in
an effort to reach new agreements . Agreement was later reached by the employers
and the constituent unions of the AFL-CIO council , and a collective -bargaining
agreement executed , effective as of June 16, 1962.5
About the time negotiations had commenced for this new contract , Disney went
to a meeting held by District 50 of the United Mine Workers (UMW) and attended
by construction industry contractors . At this meeting, officials of the UMW ex-
plained that there were no craft demarcations in the UMW, as under the separate
craft arrangement of the unions comprising the Building and Construction Trades
Council of San Mateo County. Consequently , under the UMW, it was pointed out,
employees could be shifted from one construction craft to any other craft, thus
obviating the necessity for an employer dealing with two or more craft unions, as
was necessary under the AFL-CIO.
This arrangement of the UMW, testified Disney, appealed to him because in deal-
ing with the AFL-CIO Building and Construction Trades Council , it had been
necessary for him to use Carpenter union members for installing wood shingle
roofs and members of the Roofers union for tar and gravel roofs. However, under
the UMW, all construction employees , regardless of different crafts, are represented
by District 50, UMW, and can be shifted from one type of craft job to any other,
which is his case , Disney testified , meant that he could use the same employees for
installing both wood shingle and tar and gravel roofs . Moreover, Disney testified,
these same employees could be used under the UMW arrangement to drive trucks,
clean up the premises, and load and unload materials during slack periods.
As some of the men employed at various times by the Disney Roofing & Material
Co. were affiliated with either the Carpenters or Roofers Unions, and he wished to
eliminate this arrangement , Disney initiated steps, shortly after he attended the
UMW meeting , to incorporate a new company , the Carimont Roofing Co., with
the object of having those employees which Carlmont would hire when it was in-
corporated become members of District 50 of the United Mine Workers . In this
manner, reasoned Disney, his Carlmont Co. would do all the work heretofore done
that events ambiguous when viewed in isolation often become clear and informative when
considered in relation to other events which is true in this case as indicated mire.
8It is uncontradicted that Disney initiated this scheme to obviate dealing with the
individual craft unions under the AFL-CIO council. It appears that under the AFL-CIO
council wood roofs were installed by carpenters and tar and gravel by members of the
Roofers Union. It would seem, therefore, that he had been dealing with both the
Carpenters and Roofers Unions, depending on the type of roof he was installing
d However, for those employees of Disney Roofing & Material Co., who were members of
the Carpenters Union, Disney deducted from their wages and paid such deductions to the
Carpenters Union's health, welfare, pension, and vacation trust funds.
It appears also that a letter dated September 21, 1962, which Disney received from
the Carpenters Union addressed "To all employers signatory to the Carpenters 42 County
Master Agreement," requesting Disney "as a signatory to [the] Agreement" to sign the
new agreement, intensified his desire to disassociate from the arrangement under which
he had operated up to this time Corroborative of this is a letter dated October 5, 1962,
from Disney to the Carpenters Union, notifying them that he had joined Interstate
Employers, Inc., and "selected them to act as my agent for purposes of collective
bargaining . . . .
92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by his Disney Company and Carlmont 's employees being UMW members, could
install both wood shingle and tar and gravel roofs. In furtherance of this purpose
the Carlmont Roofing Co . was incorporated on or about July 17, 1962.
Upon the incorporation of Carlmont , Disney met with a UMW official with re-
spect to that union representing Carlmont 's employees . The UMW official supplied
Disney with membership application forms, dues checkoff authorization forms, and
applications for group insurance which were to be signed by those employees who
would be hired in the future by the Carlmont Roofing Co.
Shortly thereafter, on October 5, 1962, Disney's Carlmont Co . joined Interstate
Employers , Inc., an employers ' association , organized for the purpose of representing
member employers in the negotiation of collective -bargaining agreements with
various unions . In joining the association , Disney authorized it to sign a prehire labor
agreement , as provided for in Section 8 (f) of the Act, on behalf of Carlmont, with
District 50, UMW.6
In the meantime , Disney had spoken to Albert Keen, one of the Disney Company
employees , who was a member of the Carpenters Union. Keen , whose testimony
was given in a forthright , candid , and entirely plausible manner , testified that Disney
told him that he would be transferred to Carlmont 's payroll and explained to him
the UMW arrangement and how it would benefit him if he were to join the UMW in
that he would be given more work , and layoffs would be minimized to the extent that
he would continue to work during slack periods which was not the situation then
existing under the Carpenters Union.
Later, Disney came to Keen's home and again importuned him to disaffiliate from
the Carpenters Union and to join the UMW. Keen 's testimony continues as follows:
He again told me about switching over to [UMW], that I would benefit by it
because of winter conditions , and other times when work is slow, that he could
use me on anything that I would be needed for, and I wouldn 't have to pay any
extra dues . . He also mentioned the fact that he couldn't use this United
Mine Workers Union under Disney Roofing Company and this was the reason
for starting the Carlmont Roofing Company . It was his way of getting around
working AFL-CIO members along with another Union , the United Mine
Workers Union. He said he couldn't do that because he wasn't allowed to do it.
He said the fellows who went along with the United Mine Workers Union would
work when things were slow and the other fellows would take what was left.
Keen testified that the next time Disney spoke to him was sometime in September.
At that time , Keen testified , Disney showed him various UMW authorization forms
for dues checkoffs , initiation fees, and group insurance . Keen also testified Disney told
him on September 19 that the Carlmont Roofing Company would go into operation
about October 1 and he would give Keen until that time to make up his mind whether
he would go to work for Carlmont as a UMW member. Keen voluntarily quit his
job with Disney on September 24, 1962.
Jack Bailey was employed by Disney Roofing & Material , Co. until September 24,
1962. Bailey credibly testified , as follows, about a conversation he had with Disney
on September 19:
Disney approached me and asked me if I heard about the United Mine
Workers Union , and I told him that I had heard a little about it and he asked
me if I would like to join it. I said I would have to think it over. He told me
he knew there were good benefits to it and it was the first fifty members who
would get in at $10.00 initiation fee, and if I would like to join it to come down
after work to his office and those that did get in, the Carlmont Roofing would
have most of the work and would be started around the first of October . . . .
I stopped in that afternoon after work . . . at his office and [talked ] to Disney
[Disney] showed me these application blanks and asked me to sign them,
and asked me to read them over , which I did, but I told him I couldn't sign them
that night because I didn't know my correct address at that time . I took them
home with me.
o When Disney was asked by the General Counsel, on cross-examination, if his letter of
October 5, 1902 (General Counsel's Exhibit No. 7), had not authorized Interstate Em-
ployers, Inc, to enter into an agreement with UMW, lie answered. ". . . Yes, I did " In
Trial Examiner's Exhibit No 1, Disney, in an affidavit given to an investigator of the
Regional Office on April 19, 1963, stated, "As a member of Interstate Employers, Inc. of
Los Angeles, I have authorized that organization to sign an agreement with UMW cover-
ing the employees of Carlmont . I gave such authorization to Interstate on about
Sept or Oct 1962 As far as I know Interstate has signed an agreement with UINIW In
my behalf covering my employees of Carlmont Roofing Inc . . " See General Counsel's
Exhibit No. 8
DISNEY ROOFING & MATERIAL CO., ETC. 93
Bailey testified that he signed the UMW's application for membership and checkoff
authorization forms that same evening and turned them over to Disney the following
morning.
Charles Wheeler has been employed by Respondent Carlmont Roofing Co. since
January 9, 1963, and joined UMW in the latter part of January. He testified that 2 or
3 days after he was employed, he asked Disney ". . . what Union [I] had to join"
and that Disney replied it was no concern of his and that Wheeler "can stay non-
union [or] you can go AFL." There is, however, an inherent weakness in Wheeler's
foregoing testimony which militates against its acceptance for the following reason.
At the hearing, Wheeler was confronted with a letter dated January 23, 1963,
addressed to him from Disney, which reads as follows:
As you have worked for this firm longer than eight days, enclosed is a form
used by the United Mine Workers Dist. #50 for membership, which the As-
sociation I belong to has an agreement with.
You can send your signed card to United Mine Workers, Dist. #50, Local
14903, 1946 McKinley, Fresno 3, Calif.
The contract we have states if you aren't a member in good standing after eight
days and the union notifies us in writing, then we can not use you as our
employee.
Thanking you, I am
Very truly yours,
(S) W. F. Disney
W. F. DISNEY, Pres.
WFD/ed
This letter shows conclusively Disney could not have told Wheeler that he had no
interest in what union he belonged to as the letter itself states he must join the UMW
8 days after he becomes employed by Respondent.
Wheeler also testified that be went to Fresno, a distance of approximately 300
miles from where he was employed by Respondent, to request the UMW official
to whom he spoke to send some membership forms to Disney's office. This testi-
mony of Wheeler is patently incredible as the letter Disney wrote to him, supra,
states that enclosed with the letter was a UMW membership form. Moreover, it
strains one's credulity to believe Wheeler's testimony that after traveling to the
UMW's office in Fresno, a distance of 300 miles, he would ask that the membership
form be mailed to Disney in San Carlos rather than he (Wheeler) signing the mern-
bership application form right then and there in the UMW's office.
Also significant as to whether Disney rendered unlawful assistance to UMW, is
Wheelers' answer when he was asked on cross-examination if Disney had discussed
with him the matter of his joining the UMW and he answered: "It is possible, I
would say."
Nor is Pannett's testimony, who was employed also by Carlmont on January 9,
1963, and who is a UMW member, credited that Disney did not send him a UMW
membership application form as the letter, dated January 23, 1963 (General Counsel
Exhibit No 16), addressed to him from Disney specifically states he was enclosing
a UMW membership form.
It is against this evidence that Respondent's testimony, denying it committed any
unfair labor practices, is considered.
Disney denied Keen's testimony that he had importuned Keen to join UMW. On
the contrary, Disney testified, it was Keen who came to him and in the presence of
one, Tucker, urged that the incorporation of Carlmont be hurried along so that he
(Keen) could join UMW. However, Tucker, a general contractor, who Disney
alleged was in his office and heard Keen make this statement, which was crucial to
Respondent's defense, was not called as a witness to corroborate this important inci-
dent. The unexplained failure to produce Tucker as a witness at the hearing renders
this purported defense dubious and also warrants drawing an inference that, if pro-
duced, his testimony would not have supported Disney's testimony or the position
of the Respondent Company? Tucker's absence "not only strengthens the probative
force" of Keen's testimony "but of itself is clothed with a certain probative force." 8
Keen's version is credited.
7 Halliday v U 8, 315 U S 94, 99: Interstate Circuit v. United States, 306 U S 208„
225, 226; N L R.B V. Sam Wallick and Sam K. Schwalm, d/b/a Wallick and Schwalm
Company, et al, 198 F. 2d 477, 483 (C A 3) ; N L R R. v. Reed Z Prince Manufacturing
Company, 130 F 2d 765, 768 (C.A. 1) ; Concord Supplies <& Equipment Corp., 110 NLRB
1873, 1879
8 Paudler v. Paudier, 185 F. 2d 901, 903 (,C.A. 5), cert. denied 341 U S. 920.
94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Although Disney denied he offered or gave either Keen, Bailey, Pannett, or
Wheeler, his employees, UMW membership application cards, he did admit, how-
ever, that such cards were given to him by Cappell, a UMW official. It is not un-
reasonable to assume, therefore, that these cards were given to Disney by UMW
upon his invitation, for the purpose of his soliciting these four employees of Disney
and Carlmont Companies, to sign them, and it is so found.
Contentions
The General Counsel contends that the arrangement detailed above is invalid
because of the unlawful assistance rendered UMW in obtaining its majority status
when Disney solicited employees of both his Disney Roofing & Material Co. and
Carlmont Roofing Co. to become members of UMW.
It appears, based upon the oral presentation and cross-examination of Respondents'
representative, a labor consultant, that the following is Respondents' defense.
Interstate Employers, Inc., "Building and Construction Division," had entered into
a collective-bargaining agreement on March 10, 1961, with District 50, UMW,
covering all employees of Interstate's members who are engaged in the building and
construction industry. On December 7, 1961, Respondents Disney Roofing &
Material Co. and Disney Cedar Supply Co., Inc., both applied for membership in
Interstate.9 On October 5, 1962, Carlmont Roofing Co., which came into existence
the preceding July, then became a member of Interstate.10 However, contends Re-
spondents' Representative Jones, although Carlmont "joined" Interstate on October 5,
1962, it did not agree to be bound by the provisions of the contract previously exe-
cuted by Interstate and UMW, until January 14, 1963, when it signed an "Exclusive
Collective Bargaining Representative Notice." (General Counsel's Exhibit No.
13.) 11 It was not until January 14, 1963, argues Respondent, that Carlmont Roofing
Co. became a party to and agreed to be bound by the provisions of the "master" con-
tract,12 which had been entered into between Interstate Employers and UMW on
March 10, 1961. Thereupon, contends Respondent, when Carlmont's two employees,
Pannett and Wheeler, signed membership application cards on January 27, 1963,
designating UMW as their bargaining representative, this action retroactively vali-
dated the "prehire" agreement clause in the "master" contract. This is valid, alleges
Respondent's representative, as Section 8(f) of the Act permits prehire agreements
in the building and construction industry, thereby obviating the requirement that
a labor organization must establish its majority status prior to the entering into of
such an agreement.
Discussion
Section 8(f) provides, in pertinent part, that:
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
industry to make an agreement covering employees engaged (or who, upon their
employment, will be engaged) 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 established 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 organiza-
tion after the seventh day following the beginning of such employment or the
effective date of the agreement, whichever is later, ... .
The problems of the building and construction industry under the Taft-Hartley
Act have been the subject of considerable comment by authorities in the field; and
Congress in previous years had made several attempts to correct the shortcomings of
the Act as applied to the industry. The occasional nature of the employment relation-
ship makes this industry markedly different from manufacturing and other types of
enterprise. An individual employee typically works for many employers and for none
9 See General Counsel's Exhibit No 10(a).
10 The record fails to disclose that a written membership application was made by
Carlmont
u The reason for this, allege Respondents, is that it did not desire to become a party
to the Interstate-UMW contract until such time as Carlmont hired employees.
12 General Counsel's Exhibit No. 15
DISNEY ROOFING & MATERIAL CO., ETC. 95
of them continuously. Jobs are frequently of short duration depending upon various
stages of construction.
During the Wagner Act, the Board declined to exercise jurisdiction over the industry
not only because of these complexities but also because the industry was substantially
organized and hence had no need of the protection afforded by the Act . Concepts
evoked by the Board therefore developed without reference to the construction
industry. In 1947 after passage of the Taft-Hartley amendments , the Board applied
the provisions of the Act to the building and construction industry.
This application of the 1947 Act to the construction industry had given rise to
serious problems , for the reasons hereinafter described . In the building and con-
struction industry it is customary for employers to enter into collective -bargaining
agreements for periods of time running into the future , perhaps 1 year or in many
instances as much as 3 years. Since the vast majority of building projects are of
relatively short duration, such labor agreements necessarily apply to jobs which have
not been started and may not even be contemplated . The practice of signing such
agreements for future employment was not entirely consistent with Wagner Act
rulings of the Board that exclusive bargaining contracts can lawfully be concluded
only if the union makes its agreement after a representative number of employees
have been hired. One reason for this practice is that it is necessary for the employer
to know his labor costs before making the estimate upon which his bid will be based
A second reason is that the employer must be able to have available a supply of
skilled craftsmen ready for quick referral . A substantial majority of the skilled
employees in this industry constitute a pool of such help centered about their appro-
priate craft union. If the employer relies upon this pool of skilled craftsmen,
members of the union, there is no doubt under these circumstances that the union
will in fact represent a majority of the employees eventually hired.
Section 8(f) recognizes this situation and contains other provisions which take
into account the occasional nature of employment in the building and construction
field. It does so by reducing from 30 days to 7 the grace period before which the
employee may be required to join the union. The reduction in this time allowance
reflects the normally short employment period for construction employees.
Accordingly , Section 8 ( f) states that it is not an unfair labor practice for an
employer primarily engaged in the building and construction industry to enter into
agreements with labor organizations of which building and construction employees
are members without the union 's majority status having been established in the
manner required under Section 9 of the Act. This section also permits the union-
shop provisions of such a contract to take effect within 7 days of hiring in recognition
of the brief periods of employment characteristic of the construction industry.
However , a caveat under Section 8(f) cautions that Board certification will not
be available if it is found that a substantial number of the employees in the unit in
question did not designate or select the union as their bargaining agent.
Inasmuch as the purpose of Section 8(f) is to permit voluntary prehire agreements
because of the inability to conduct representation elections in the construction field,13
it follows that the effect of Section 8(f) is to protect voluntary collective -bargaining
relationships established in good faith without governmental intervention . However,
Section 8(f), and this is important as applied to the facts in this case, protects the
right of the employees to be free of coercion in the selection of their own bargaining
representative. 14
Conclusions
Labor Consultant Jones, who necessarily had to have an intimate knowledge of
not only the technical but also most of the minute factual details surrounding the
execution of the contract between Interstate, Respondents , and UMW , as he was the
prime promoter in all the incidents which eventuated in this proceeding , testified in
an evasive manner, fenced with counsel , and gave ambiguous explanations of the
circumstances surrounding the matter. His testimony can be characterized as eva-
sively garrulous . The evidence shows that no one ( including Disney ) had as much
overall knowledge as Jones of the details regarding this case from the period
October 1962 until the bearing in May 1963. Evidently "much knowledge is grief"
and "he that increaseth knowledge increaseth sorrow," 15 as Jones learned when he
13184 Cong . Rec. 10249
14 The above are edited excerpts from the Legislative History of the Labor -Management
Reporting and Disclosure Act of 1959, vol. I, pp . 423-425; and vol. II , pp. 808, 1082,
1577(3), 1578(2), 1643(3), and 1715 (U.S. Government Printing Office).
15 Ecclesiastes 1, 18
96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was under cross-examination . He disclaimed knowledge in many instances, and
gave equivocal answers in others to matters with which he was obviously acquainted.
The evidence, it would seem, adds up to a blatant attempt to not only compromise
but eschew the law. Then too, it appears that Respondents belatedly found them-
selves in the unfortunate position of justifying their actions for reasons that appar-
ently did not occur to them prior to the time of the hearing.
Disney's denial that he had ever importuned Keen or Bailey to join UMW is not
credited for the reasons explicated supra. Nor is it unreasonable to assume from
the evidence in this case, and it is so found, that Disney urged and required Pannett
and Wheeler, employees of the Carlmont Roofing Co., to execute UMW applications
for membership and checkoff authorization forms in order to obtain employment.
It was he who assumed the initiative in organizing the presentation to the employees
of the case for UMW afriliation.ls As a matter of fact, there is ample evidence show-
ing the most determined resolve on Disney's part to implant UMW as the employees'
bargaining agent. Likewise, it is clear that Disney gave his employees to understand
(including Keen and Bailey) that UMW was the only union he would deal with and
their choice in the matter was no longer of any avail. Their solicitation and in-
doctrination was not left to UMW but assumed by Disney so that it is not unreason-
able to find that joining UMW was made a condition of continued employment.
Because of this illegal assistance given to UMW by Disney, the union at no time
represented an uncoerced majority of the employees and therefore Disney's giving
exclusive recognition to and entering into a collective-bargaining agreement with
UMW manifestly violated Section 8(a) (2) of the Act and it is so found. 17
Moreover, the Board and the courts have long held that a collective-bargaining
agreement, entered into between an employer and a labor organization which does
not represent a majority of the employees in the appropriote collective-bargaining
unit, provides illegal assistance to the labor organization in violation of Section
8(a)(2) of the Act.ls Respondents argue, however, that this principle is limited
by Section 8(f) of the Act which permits prehire agreements and does not require a
labor organization to establish majority status prior to entering into such an agree-
ment. Not only is this an example of the non sequitur but the contention is far wide
of the mark as it disregards the language of Section 8(f) which specifically provides
that assistance to a union is proscribed by Section 8(a) of the Act. In other
words, lack of majority does not invalidate a contract otherwise valid under Section
8(f), but assistance in obtaining such majority status does. In short, the validity
which Section 8(f) gives to prehire agreements is removed where it is shown that
the union has been illegally "established, maintained, or assisted ," by the employer.
As was stated by the Board in a recent case: 19 "Section 8(f) was designed to
accommodate the unique problems of the building and construction policies of the
Act." The very provision which allows an employer in the building and construc-
tion industry to sign a prehire agreement with a building and construction industry
labor organization excludes from such privilege labor organizations which are
"established, maintained, or assisted by any action defined in Section 8(a) of the
Act as an unfair labor practice. The latter language was inserted into the section
in order to restrict the utilization of the section to the legitimate legislative purpose."
Here, since it has been clearly established that the Respondent unlawfully assisted
the UMW in obtaining membership applications and checkoff authorization cards,
there was present the illegal assistance which Section 8(f) proscribes as such conduct
interfered with, restrained, and coerced its employees in the exercise of their right
to choose a bargaining representative.
The Board, in a case dispositive of the issue herein, held in Bear Creek Construc-
tion Co., 135 NLRB 1285, that a construction company and union violated the Act
by entering into a prehire agreement covering employees engaged in the construc-
tion industry, even though Section 8(f) does not require a union to establish
16 See section III, A, supra Of. Gladys it. Juett, adnisnistratrix of the estate of C. D.
Juett, deceased, 137 NLRB 395
17 Cf Salmirc Oil Company, 139 NLRB 25; Fiore Brothers Oil Co., Inc, 137 NLRB 191,
enld 317 F 2d 710 (CA 2)
1s The Crossett Company. 140 NLRB 007. It was also held in Bernhardt Bros. Tugboat
Service, Inc , 142 NLRB 851, that it was an unfair labor practice for a labor organization
(which is not the freely designated bargaining representative of the employees) to obtain
such "recognition" in a coercive atmosphere engendered by the employer's unlawful
conduct
19 Oilfield Maintenance Co , Inc, et al., 142 NLRB 1384.
DISNEY ROOFING & MATERIAL CO., ETC. 97
majority status prior to signing a prehire agreement, because: (1) Validity given by
Section 8(f) to prehire contracts is removed where the contracting union has been
illegally "established, maintained, or assisted" by the employer; and (2) the obtain-
ing of employees' signatures to union membership applications and dues checkoff
authorization cards. See also Lapeer Metal Products Co., 134 NLRB 1518, and
W. L. Rives Company, 136 NLRB 1050.
The General Counsel argues that the Respondent is not primarily engaged in the
building and construction industry and that Section 8(f) is therefore not applicable.
It is true that the Board has held that Section 8(f) of the Act which permits prehire
contracts between employers engaged primarily in the construction industry and
labor organizations of which building and construction employees are members,
may not be found to validate the union's majority status, inasmuch as the employer
is not primarily engaged in the building and construction industry. Frick Com-
pany, 141 NLRB 1204. However, it is not necessary to resolve this question because
under the facts of the case at bar and the specific provisions of Section 8(f), the
Respondent is guilty of having violated Section 8(a) (2) because of illegal assistance
rendered to the UMW by the acts delineated above.
Accordingly, it is found that Wilber F. Disney, d/b/a Disney Roofing and Material
Co., and Carlmont Roofing Co., by urging and requiring employees to execute appli-
cations for membership and checkoff authorization forms in order to obtain employ-
ment, rendered illegal assistance in violation of Section 8(a)(2) of the Act, and
has interfered with the rights of its employees in violation of Section 8(a)(1).20
IV. THE REMEDY
Having found that the Respondents have unlawfully assisted the United Mine
Workers, District No. 50 and its Construction Local No. 14903, it shall be recom-
mended that the Respondents cease and desist from such activities, and, further, that
they shall withdraw and withhold recognition from said UMW unless and until that
union shall have been certified by the Board as the exclusive representative of the
Carlmont Roofing Co. employees.
As the evidence reveals that employees Pannett and Wheeler were coerced into
signing UMW cards and joining said union, it shall be recommended that the
Respondents reimburse these employees, as well as former employees, for any
UMW initiation fees and dues paid directly to UMW or deducted from their wages
pursuant to checkoff atuhorizations by paying to each of them a sum of money
equal to the total of such initiation fees and dues.
RECOMMENDED ORDER
Upon the entire record in this case, and pursuant to Section 10(c) of the National
Labor Relations Act, as amended, it is hereby recommended that the Respondents,
Wilber F. Disney, an Individual, d/b/a Disney Roofing & Material Co., and the
Carlmont Roofing Co., their officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Recognizing and dealing with United Mine Workers of America, District 50
and its Construction Local No. 14903, or any successor thereto, as collective-
bargaining representative of any of its employees, for the purpose of dealing with
said Respondent Companies concerning grievances, labor disputes, wages, rates of
pay, hours of employment, or other conditions of employment, unless and until said
labor organization shall have been certified as such representative by the Board
(b) Assisting or rendering other support to UMW or any other labor organization
and from otherwise interfering with the representation of its employees through a
labor organization of their own choosing in violation of Section 8(a)(2) and (1)
of the Act.
(c) Giving effect to or performing the agreement of March 10, 1961 (General
Counsel's Exhibit No. 15), entered into with UMW, or to any modification, extension,
supplement, or renewal thereof, or to any superseding agreement, unless and until said
labor organization shall be certified as such representative by the Board.
20 No probative evidence was introduced, nor Is any substantive allegation made in
paragraph VI of the complaint with respect to alleged unfair labor practices, on the part
of Respondent Disney Cedar Supply Co., Inc. It is recommended, therefore, that the
complaint be dismissed as to Disney Cedar Supply Co, Inc
734-070-64-vol. 145-8
98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) In any other manner interfering with, restraining, or coercing its employees
in the exercise of their right to self-organization, to form, join, or assist any labor
organization, to bargain collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any and all such activities, except
to the extent such right may be affected by an agreement requiring membership
in a labor organization as a condition of employment as authorized in Section 8(f).
2. Take the following affirmative action which it is found will effectuate the
policies of the Act:
(a) Withdraw and withhold all recognition from said UMW, or any successor
thereto, as the representative of any of its employees for the purpose of dealing
with them concerning grievances, labor disputes, wages, rates of pay, hours of
employment, or any other term or condition of employment.
(b) Reimburse its employees, present and former, for any initiation fees, dues, or
other moneys illegally exacted or checked off from them, as a condition of employ-
ment, plus interest at the rate of 6 percent to be computed in the manner set forth
in Isis Plumbing & Heating Co., 138 NLRB 716.
(c) Preserve and, upon 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 moneys due under the terms of this Recommended Order.
(d) Post immediately at its place of business, copies of the attached notice
marked "Appendix A." 21 Copies of said notice, to be furnished by the Regional
Director for the Twenty-First Region, shall, after being duly signed by Respondents,
be posted immediately upon receipt thereof, and be maintained for a period of 60
consecutive days thereafter, in conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps shall be taken to ensure
that said notices are not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for the Twenty-First Region, in writing, within
20 days from the receipt of this Intermediate Report and Recommended Order,
what steps Respondents have taken to comply herewith 22
21 If this Recommended Order Is adopted by the Board, the words "A Decision and
Order" shall be substituted for the words "The Recommended Order of a Trial Examiner"
in the notice. If the Board's Order is enforced by a decree of a United States Court of
Appeals, the notice will be further amended by the substitution of the words "A Decree of
the United States Court of Appeals, Enforcing an Order" for the words "A Decision and
Order."
21 If this Recommended Order is adopted by the Board, this provision shall be modified
to read: "Notify the Regional Director for the Twenty-First Region, in writing, within
10 days from the date of this Order, what steps the Respondents have taken to comply
herewith "
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify you that:
WE WILL withdraw and withhold recognition from the United Mine Workers
of America, District 50 and its Construction Local No. 14903, as the representa.
tive of any of our employees for the purpose of dealing with us concerning
grievances, labor disputes, wages, rates of pay, hours of employment, or other
conditions of employment, unless and until the above-named labor organization
shall have demonstrated its exclusive majority representative status pursuant to
a Board-conducted election among our employees.
WE WILL NOT perform or give effect to the collective-bargaining agreement
entered into between Interstate Employers, Inc., and United Mine Workers,
District 50 and its Construction Local No. 14903.
WE WILL NOT solicit checkoff authorizations or memberships in said Union
by threats or otherwise, or in any like or related manner, interfere with, restrain,
or coerce our employees in the exercise of their right to self-organization, or
to refrain from any or all such activities, except to the extent, if any, that such
right may be affected by an agreement requiring membership in a labor or-
ganization as a condition of employment, as authorized in Section 8(f) of the Act.
BREWTON FASHIONS, INC., A DIVISION OF JUDY BOND 99
WE WILL reimburse our employees for initiation fees, dues, or other moneys
paid or checked off as a condition of employment.
DISNEY ROOFING & MATERIAL CO.,
Employer.
Dated---------------- --- By-------------------------------------------
(WILBER F. DISNEY , President)
CARLMONT ROOFING CO.,
Employer.
Dated------------------- By-------------------------------------------
(WILBER F. DISNEY , President)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 830
Market Street, San Francisco 2, California , Telephone No. Yukon 6-3500, Extension
3191, if they have any questions concerning this notice or compliance with its
provisions.
Brewton Fashions , Inc., a Division of Judy Bond ,' Respondent
and James T. Heron , Charging Party and United Garment
Workers of America, Party to the Contract
Brewton Fashions, Inc., a Division of Judy Bond, Respondent
and International Ladies' Garment Workers' Union , AFL-CIO,
Charging Party and United Garment Workers of America
and United Garment Workers of America , Local Union No.
422, Parties to the Contract
United Garment Workers of America and United Garment Work-
ers of America, Local Union No. 422 , Respondents and Inter-
national Ladies' Garment Workers' Union , AFL-CIO, Charg-
ing Party and Brewton Fashions, Inc., a Division of Judy
Bond , Party to the Contract. Cases Nos. 15-CA-2119 (post 10-
CA-4970), 15-CA-2098 (post 10-CA-5024), and 15-CB 579 (post
10-CB-1333). November °20, 1963
DECISION AND ORDER
On May 17, 1963, Trial Examiner Joseph I. Nachman issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent Employer had engaged in and was engaging in certain
unfair labor practices in violation of the Act, and that the Respond-
ent Local Union had engaged in and was engaging in certain unfair
labor practices in violation of the Act, and recommending that the
said Respondents cease and desist therefrom and take certain affirma-
tive action, as set forth in the attached Intermediate Report. The Trial
Examiner also found that the Respondent International Union had
not engaged in any unfair practices, and that the Respondent Local
1 Corrected to accurately reflect the name of said Respondent as set forth in an amended
answer filed at the hearing.
145 NLRB No. 1.