Journeyman Plasterers' Protective, Etc., Local 5

National Labor Relations Board - Board Decisions

Feb 10, 1964

145 N.L.R.B. 1608 (N.L.R.B. 1964)

1608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
opinion, the majority's interpretation of these provisions of the Act
preclude the sort of accommodation I am convinced is necessary and
desirable to effectuate congressional intent. Every strike over the
assignment of work need not give rise to a 10(k) hearing. Such con-
duct should be examined with great care to determine whether the
striking union is entitled to the extraordinary procedure of this sec-
tion which might result in the Board's stamp of approval, a determi-
nation which depends in substantial part on whether the employer
against whom the union's pressure is directed is in reality involved
in the jurisdictional dispute. Without attempting to delineate fur-
ther the proper boundaries between jurisdictional strikes giving rise to
10(k) hearings and other strikes, a determination which, in my view,
should be developed on a case to case basis, I adhere to my position,
with due respect for the Court of Appeals for the District of Colum-
bia, that the Respondent's conduct with respect to Akron should have
resulted in the application of Sections 10(k) and 8(b) (4) (D) with-
out the contradictory application of Section 8(b) (4) (B).
MEMBER BROWN took no part in the consideration of the above Deci-
sion and Determination of Dispute.
Journeymen Plasterers ' Protective and Benevolent Society of
Chicago, Local No. 5 [John P. Phillips Plastering Co., Inc.]
and John J. Spinelli. Case No. 13-CE-1235. February 10, 1964
DECISION AND ORDER
On August 19, 1963, Trial Examiner Abraham H. Mailer issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Inter-
mediate Report. Thereafter, the Respondent filed exceptions to the
Intermediate Report and a supporting brief, and the General Coun-
sel submitted a brief in support of the Trial Examiner's Intermediate
Report.
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 [Chairman McCulloch and Mem-
bers Fanning and Jenkins].
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 entire
145 NLRB No. 152.
JOURNEYMEN PLASTERERS' PROTECTIVE, ETC., LOCAL 5 1609
record in this case, including the Intermediate Report and the excep-
tions and briefs, and hereby adopts the findings and conclusions of
the Trial Examiner, with the following amplification.
The Respondent contends, inter alia, that it did not cause or attempt
to cause Phillips to discharge Spinelli, nor did it discriminate against
him with regard to his membership; but rather that it accepted his ap-
plication for membership, and interposed no objection to Phillips'
retention of Spinelli as an employee.
However, although Respondent accepted Spinelli's application for
membership, we find, as did the Trial Examiner, that Respondent
attached discriminatory conditions upon both (1) the acceptance of
Spinelli's membership application (by requiring Spinelli personally
to assume the corporate debt of $1,187.15), and (2) its approval of
Spinelli's right to work on jobs under contract with Respondent (by
requiring Spinelli to pay $187.15 before he would be referred for
employment). Furthermore, although not objecting expressly to
Spinelli's continued employment by Phillips, Respondent neverthe-
less imposed substantial restrictions on Phillips' use of Spinelli in that
it refused to allow Spinelli to work either as a supervisor or as a
journeyman plasterer. These restrictions, it is plain, were imposed
because of Spinell's failure to fulfill the discriminatory conditions
under which Respondent had agreed to grant him membership. It
was the imposition of these restrictions that led directly to Phillips'
termination of Spinelli's employment, since Phillips was thereby dis-
abled from using Spinelli in "his fullest capacities"-a disability
which had the reasonably foreseeable effect of making it disadvan-
tageous for Phillips to continue to employ Spinelli in any capacity.
Thus a direct causative link appears between the discriminatory con-
ditions of membership imposed by Respondent on Spinelli and the
termination of his employment by Phillips.' In these circumstances,
we agree with the Trial Examiner that Respondent caused Phillips
to discharge Spinelli in violation of Section 8(b) (2), and by such
conduct also restrained and coerced Spinelli in the exercise of
rights guaranteed by Section 7 of the Act, in violation of Sec-
tion 8(b) (1) (A).
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner,2 with the following modification: In paragraph 1(b),
i Respondent does not rely on Spinelli 's failure to pay dues and initiation fees as justifi-
cation for its decision to restrict Phillips' use of Spinelli to nonsupervisory and non-
journeyman plastering work.
2 In the notice attached to the Intermediate Report as "Appendix ," third paragraph,
starting with the words "Wu WILL NOT in any like or other manner," delete the word
"other" and substitute the word "related."
The Recommended Order is hereby amended by substituting for the first paragraph
therein the following paragraph:
1610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
beginning with the words "In any like or other manner," delete the
word "other," and substitute the word "related."
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 Respondent, its officers, agents, representatives, successors, and assigns, shall:
The Appendix attached to the Intermediate Report is hereby amended by adding the follow-
ing immediately below the signature line at the bottom of the notice:
NOTE.-We will notify the above-named employee if presently serving in the Armed
Forces of the United States of his right to full reinstatement upon application in
accordance with the Selective Service Act and the Universal Military Training and
Service Act of 1948, as amended, after discharge from the Armed Forces.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge filed June 18, 1962, by John J . Spinelli, the Regional Director for
the Thirteenth Region of the National Labor Relations Board, herein called the
Board, issued a complaint on behalf of the General Counsel of the Board on Novem-
ber 9, 1962, against Journeymen Plasterers ' Protective and Benevolent Society of
Chicago, Local No. 5, herein called the Respondent , alleging a violation of Section
8(b)(1)(A ) and (2 ) of the Act . In substance , the complaint alleged that on or
about April 9, 1962, and continuing until on or about May 15, 1962, the Respondent
caused or attempted to cause John P. Phillips Plastering Co., Inc., herein called the
Employer, to discharge or otherwise discriminate against Spinelli in violation of
Section 8(a)(3) of the Act and /or for reasons other than his failure to tender
periodic dues and initiation fees; that since on or about May 15, 1962, Respondent
has caused or attempted to cause said Employer to refuse to reinstate Spinelli to his
former or substantially equivalent position of employment in violation of Section
8(a) (3) of the Act and/or for reasons other than his failure to tender periodic dues
and initiation fees; and that on or about May 15, 1962 , said Employer discharged
Spinelli and since that date has refused to reinstate him because of the Respondent's
acts as aforesaid . In its duly filed answer, Respondent denied the commission of
any unfair labor practice . Affirmatively , Respondent 's answer alleged that the dis-
charge of Spinelli by the Employer resulted from a scarcity of work and that this
discharge was without discrimination ; that the Respondent did not cause or attempt
to cause the discharge of or discrimination against Spinelli , although Spinelli had
failed to make payment of his union dues.'
Pursuant to notice, a hearing was held before Trial Examiner Abraham H. Mailer
at Chicago , Illinois, on February 18, 19, and 20, 1963. All parties were represented
and were afforded full opportunity to be heard, to introduce relevant evidence, to
present oral argument , and to file briefs with me. Briefs were filed by all parties.
Upon consideration of the entire record, including the briefs of the parties, and
upon my observation of each of the witnesses,2 I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
The Employer, John P. Phillips Plastering Company, Inc., a corporation main-
taining its place of business at Chicago, Illinois, is engaged in lathing and plastering.
'At the hearing, pursuant to notice of intention to amend complaint, the General
Counsel was granted leave to amend paragraph II of the complaint in which are alleged
the facts concerning the business of the Employer upon which the Board's jurisdiction is
predicated In its duly filed answer to the amendment, the Respondent averred that it
had no knowledge sufficient to form a belief as to the truth of the allegations set forth in
the amendment and demanded strict proof thereof
2 Unless specifically indicated to the contrary, any credibility evaluation I make of the
testimony of any witness appearing before me is based, at least in part, upon his demeanor
as I observed it at the time the testimony was given Cf. Retail Clerks International
Association, AFL-CIO, Local 219 (National Food Stores, Inc.), 134 NLRB 1680, 1683,
footnote 3; Bryan Brothers Packing Company, 129 NLRB 285. To the extent that I
indicate that I do not rely on or reject in part or entirely the testimony of any given
witness, it is my intent thereby to indicate that such part or whole of the testimony, as
the case may be, is discredited by me. Cf Jackson Maintenance Corporation, 126 NLRB
115, 117, footnote 1, enfd. 283 F. 2d 569 (C.A. 2).
JOURNEYMEN PLASTERERS' PROTECTIVE, ETC., LOCAL 5 1611
During the calendar year 1962, the Employer had a gross volume of business of
approximately $341,000. Of that amount, the Company performed services for
various branches of the United States Government, directly related to the national
defense:
U.S. Army--------------------------------------------------- $1,669
U.S. Navy--------------------------------------------------- 23,000
Veterans' Administration Hospital3------------------------------ 4,267
During the same year, the Company also performed services for other branches of
the United States Government as follows:
U.S. Post Office --------------------------------------------- $61,000
U.S. Courthouse---------------------------------------------- 965
With the exception of the services performed for the Veterans' Administration Hos-
pital, all of the foregoing was performed pursuant to a subcontract .4
During the calendar year 1962, the Employer performed services in the amount
of $6,398.33 for Hillman's Inc., a concern operating a chain of retail food stores in
Chicago and its suburbs. During its fiscal year ending June 30, 1962, Hillman's Inc.
did a gross volume of business in excess of $10,000,000. It purchased approximately
$80,000 worth of goods per week from one supplier in St. Joseph, Missouri. Dur-
ing 1962, the Employer performed services in the amount of $12,465.13 for the
Abbott Construction Company, a partnership, and $500 for the B. R. Abbott Con-
struction Company, a successor corporation. During the 3-month period of January,
February, and March, 1962, the Abbott Construction Company did a gross volume
of business in the amount of $501,000. For the 10-month period ending January
1963, the B. R. Abbott Construction Company did a gross volume of business in
excess of $3,000,000. During 1962, both companies made purchases directly from
Form-All Inc., a company located in Milwaukee, Wisconsin, as follows: Abbott
Construction Company, $85,285.60; B. R. Abbott Construction Company,
$63,815.04.
The General Counsel contends that the operations of the Employer meet two of
the Board's standards for the assertion of jurisdiction: first, the Employer's services
exert a substantial impact upon the national defense. Ready Mixed Concrete &
Materials, Inc., 122 NLRB 318, 320. Second, the Employer's operations also meet
the jurisdictional standard of indirect outflow as established in the case of Siemons
Mailing Service, 122 NLRB 81.
The Respondent challenges the Board's jurisdiction. As to the first jurisdictional
standard, it contends that the amount of the services rendered to the various branches
of the armed services is insufficient in amount to have a substantial impact on the
national defense; and that since the Employer worked as a subcontractor and had
no contract with the Government, it had only a distant connection with Government
work. In support of its contention, the Respondent cites Gammel Woodwork Co.,
1960 CCH NLRB 9311, Case No. 10-RC-4764, in which the Board refused to take
jurisdiction where the employer, a millwork contractor, had had one subcontract
for work at Fort Benning, Georgia, for $39,072. The Respondent's reliance on the
Gaminel decision is misplaced. In that case, the employer's subcontract for the
Government work was the only Government work he had performed. The contract
was fully performed, and he had no future contracts of a comparable nature. The
remainder of his business was transacted with local homebuilders. In other words,
his work for the Armed Forces represented an isolated transaction with no fore-
seeable prospect of Government business and the employer had no history of
engaging in interstate business. Factually, the case is entirely distinguishable from
the instant proceeding. As examples of what it considers to be substantiality of im-
pact on national defense, the Respondent cites Gray, Rodgers, Graham, & Osborne,
129 NLRB 450, where the services involved amounted to $79,482 and Geronimo
Service Company, 129 NLRB 366, where the services involved amounted to $863,-
340.30. These decisions do not assist the Respondent, for they do not set forth a
numerical amount which the Board would consider as a minimum of substantiality of
impact on the national defense. Contrary to the Respondent's contention, the Board
has recently asserted jurisdiction where the amount of the services performed on a
U.S. Air Force base was substantially less than the services performed by the Em-
ployer in the instant case on facilities of the Armed Forces. Thus, in Orange Belt
District Council of Painters #48 (Calhoun Drywall Company), 139 NLRB 383,
where the employer had performed services in the sum of $19,000 it was held that
8 The Board has held that the hospital operations of the Veterans' Administration are
directly related to the national defense. Hospital Hato Telas, 111 NLRB 155.
4 An overwhelming majority of the Employer 's work is performed pursuant to subcontract.
1612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
such services exerted a substantial impact upon the national defense. In the instant
case, the Employer performed services totaling $28,936 for the armed services and
the Veterans' Administration. In the light of the Orange decision, it must be con-
cluded that such services exert a substantial impact upon the national defense. If
there were any doubt in the matter, the sum of $61,000 received for services at the
U.S. Post Office could be added to the foregoing sum, in view of the importance of
communications to the national defense. Cf. Canal Marais Improvement Corpora-
tion, 129 NLRB 1332, 1333.
The second part of the Respondent's argument, viz, that the amount of the serv-
ices performed at these facilities by the Employer as a subcontractor should be dis-
regarded, is completely without merit. Respondent has not referred me to any
Board decision which so holds, and I have found none. To the contrary, the Board
in Ready Mixed Concrete & Materials, Inc., supra, held that an employer who par-
ticipated in a joint venture which supplied ready mixed concrete to general contrac-
tors engaged in the construction of an Air Force base was subject to the Board's
jurisdiction because such operations "clearly exert a substantial impact on national
defense." Id. at p. 320. On principle, this must be so, for a labor dispute involving
a subcontractor affects the ability of the prime contractor to perform his contl act
with the armed services. Moreover, the Employer's operations meet the jurisdic-
tional standard of indirect outflow established in the case of Siemons Mailing Service,
122 NLRB 81. As previously noted, the Employer during 1962 performed services
totaling $19,363.46 for Hillman's Inc, Abbott Construction Co., and B. R. Abbott
Construction Company. Hillman's Inc. is clearly within the Board's jurisdiction.
Carolina Supplies and Cement Co., 122 NLRB 88. The Abbott companies qualify
under Siemons Mailing Service, supra. Respondent concedes that the services ren-
dered by the Employer to Hillman's Inc., the Abbott Construction Co., and the B. R.
Abbott Construction Company should be considered in determining whether the
Employer's operations meet the jurisdictional standard of indirect outflow estab-
lished in the case of Siemons Mailing Service, supra, but argues that these operations
total only $19,363.46 and thus fall short of the $50,000 standard. The error in
the Respondent's position is that it excludes from consideration the services per-
formed by the Employer for the U.S. Post Office in the amount of $61,000. This
sum should be included in computing the amount of the Employer's indirect outflow.
Cf. J. Tom Moore & Sons, Inc., 119 NLRB 1663, 1664; Canal Marais Improvement
Corporation, 129 NLRB 1332, 1333. Thus, the Employer's total indirect outflow for
the year 1962 is an excess of $80,000 which satisfies the Board's jurisdictional stand-
ards as established in Siemons Mailing Service, supra .5
In view of the foregoing, I find and conclude that the Employer is engaging in
commerce within the meaning of the Act and that it will effectuate the policies of
the Act for the Board to assert jurisdiction here.
II. THE RESPONDENT LABOR ORGANIZATION
The Respondent, Journeymen Plasterers' Protective and Benevolent Society of
Chicago, Local No. 5, is, and at all times material herein has been, a labor organiza-
tion within the meaning of Section 2(5) of the Act.
HI. THE ISSUES
In addition to the issue whether the Board should assert jurisdiction herein, this
case presents the following issues:
1. Whether John J. Spinelli was a supervisor.
2. Whether the Respondent caused the Employer to discharge Spinelli.
3. If so, whether the Respondent's action was for some ground other than SpineIli's
failure to tender the periodic dues and the initiation fees uniformly required as a
condition of acquiring or retaining membership.
IV. THE UNFAIR LABOR PRACTICES
A. The sequence of events
John J. Spinelli, the Charging Party, had been a member of the Respondent from
1931 to 1952, had been a journeyman plasterer, and for approximately 10 months
in 1951 had been a business agent of the Respondent. In 1952, Spinelli entered the
5 As previously Indicated, under authority of Canal Marais Improvement Corporation,
supra, the services performed by the Employer for the armed services could also be In-
cluded in this computation, if necessary.
JOURNEYMEN PLASTERERS ' PROTECTIVE, ETC., LOCAL 5 1613
plastering contracting business which has operated in the corporate name of Spinelli
Plastering Company. In the latter part of 1959, Spinelli Plastering Company went
into involuntary bankruptcy, owing the Respondent $1,187.15, representing dues
which had been deducted from the wages of the employees.6 Respondent admits
that the debt of $1,187.15 to it was listed in the bankruptcy schedules filed by the
Spinelli Plastering Company?
On August 18, 1961, Spinelli by letter applied for membership in the Respondent.
By letter dated October 2, 1961, the Respondent Union invited him to appear before
its executive board on October 10, 1961. Spinelli appeared at this meeting. Ac-
cording to his uncontradicted testimony one of the board members, a Mr. Cava-
naugh, said that Spinelli's employees did not get paid when the machines stopped
operating.8 Spinelli told him that his employees had been paid; that the payment
record was in the hands of the trustee in bankruptcy and they could look it up.
After some discussion of the foregoing, Ellsworth McMasters, president of the
Respondent, referred to the corporation's debt to the Union and stated that before
Spinelli's application could be entertained and brought before the membership, he
would have to agree to pay this debt. Spinelli replied that it was a corporate debt
and he would have to speak to his attorney before he could make any commitment .9
McMasters then suggested that they could make it easy for Spinelli by permitting him
to pay $4 a working day toward liquidating the indebtedness and $1 a working day
toward the initiation fee. About 2 days later, Spinelli spoke to McMasters on the
telephone and told him he would assume the payment of the indebtedness. McMas-
ters invited him to come to the Respondent's office and sign a statement to that
effect. Spinelli did so and signed the following statement:
OCTOBER 24, 1961.
To the Officers and Members of Local #5:
I hereby acknowledge an indebtedness of $1,187.15 due to Local #5, con-
sisting of monies deducted from members wages by me, for the hourly assess-
ments, as per the Joint Agreement signed by me.
I suggest and agree to pay this back indebtedness in the following manner:
That the sum of $5.00 for each day that I work at the Plastering Trade, to be
divided in the following manner: 1.) $1.00 to be applied towards my initiation
Fee, (as set by the Executive Board) and 2.) $4.00 towards my back indebted-
ness until both are paid in full. Payments to be made weekly to the Office
of Local #5.
(S) John J. Spinelli,
JOHN J. SPINELLI.
Sometime after the executive board meeting, Spinelli was notified by McMasters
that his application for membership had been disapproved by the membership of
the Respondent. Spinelli then took the matter up with Byron Dolton, president of
the Plastering Institute and a past president of the Respondent . Dolton told him not
to worry, that there would be another meeting in 2 weeks, and that things would turn
out all right. Spinelli also telephoned Richard W. Burke, attorney for the Respond-
ent, who also told him that there would be another meeting in 2 weeks; that he,
Burke, would attend it; and things would be different.
On November 2, 1961, McMasters mailed Spinelli a photostatic copy of the
document which he signed agreeing to pay the indebtedness and initiation fee in
installments.
In the latter part of November 1961, Spinelli telephoned McMasters and asked him
what had occurred at the union meeting. McMasters told him that he had to make
6In addition , the corporation owed approximately $ 14,000 to the Plastering Institute for
health and welfare contributions. This Indebtedness Is not involved in the instant
proceeding.
Spinelli, personally, also went into bankruptcy.
8 The reference is to a machine plastering operation conducted by the Spinelli Plastering
Company.
9 McMasters admitted that he raised the question of the corporation's Indebtedness to
the Union, but denied that Spinelli's assumption of the debt was a condition to his being
accepted as a member of the Respondent. According to McMasters, he asked Spinelli if
he owed the money, and Spinelli admitted that he did and offered to pay It Based upon
my observation of McMasters' demeanor while testifying (more fully discussed infra),
I do not credit his version. Moreover, as hereinafter noted, Spinelli's undertaking to repay
the debt and the initiation fee by installments were lumped together in one instrument
which was prepared by McMasters.
1614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a down payment of $187 before he could go to work and that he had to pay his
initiation fee in the manner which was set forth in the statement that he had signed.
Spinelli inquired as to the amount of the initiation fee, and was told it was $250.
Spinelli told him that due to his bankruptcy he had no credit and that it would be
hard for him to raise $187; that he did not know how long it would take to get
that amount of money. McMasters replied that he had to pay $187 before he
would be permitted to go to work.io
In January 1962, Spinelli telephoned MeMasters and told him that he had one or
two offers to go to work. McMasters thereupon read him an article in the Respond-
ent's constitution to the effect that he could not be a foreman or a superintendent.
Spinelli went to work for the John P. Phillips Plastering Company, with whom the
Respondent had a union-security agreement, during the first week of February 1962.
Spinelli was employed by the Employer as a journeyman plasterer, but performed
a number of tasks including working with the tools, driving the truck, building scaf-
folds, relaying the Employer's messages to the men, making certain that materials
arrived at the job, distributing checks to the employees, and hiring and discharging
employees." The Employer usually had more than one job at a time, and Spinelli
performed these duties at one of the jobs. It is undisputed that in transmitting
instructions to the employees, and discharging employees, Spinelli merely acted
as a conduit transmitting Phillips' order. He did not receive a foreman's pay, and
there was a foreman on the jobs that he worked.
Sometime in February, Spinelli's attorney, Frank J. Belline, arranged a meeting
to classify Spinelli's status. Such a meeting was held in the office of Richard W.
Burke, attorney for Respondent, and was attended by Messrs. Burke, McMasters,
Spinelli, and Belline. Belline questioned the article in the Respondent's constitution
regarding supervisors. Burke told him that he would have to get a clarification from
the International. Burke then told Spinelli that he would have to pay $187.15 down
and then he could go to work. Following the meeting Belline volunteered to lend
Spinelli the money, and on or about February 13, 1962, mailed his check in that
amount to the Respondent. Under date of February 16, 1962, Burke wrote Spinelli
a letter in which he referred to Spinelli's acknowledgment of the indebtedness of
$1,187.15 to the Respondent; and that he had been advised by Belline that a check
in the amount of $187.15 was being forwarded to the Respondent, thereby reducing
the indebtedness to $1,000. The letter then referred to the agreement that Spinelli
had signed undertaking to have deducted from his daily wages the sum of $5 and
concluded:
When the initiation fee and the $1,000 balance has been paid in full you shall be
granted membership in Local No. S as a journeyman plasterer.
When Spinelli began to work, he instructed the Employer's bookkeeper to deduct
$5 a week out of his pay. He explained to her that since his status in the Union was
unsettled and he had not received written permission from the. Union to work,
he would have her deduct that amount and when he received his permit, he would
pay in cash to make up the difference between the $5 per week and $5 per (lay.
After 8 weeks, when Spinelli saw that the Employer was having trouble with the
Union, he requested the return of the moneys that had been deducted. On April 10,
1962, he received $40.
Around the end of February 1962, McMasters learned of Spinelli's employment.
He then preferred charges against the Employer for failure to report new men
within 2 days. On Apil 3, 1962, the Respondent sent the Employer a letter notifying
him to appear before the executive board of the Respondent on April 5, at 1:30 p.m.,
to answer charges for violating article III, paragraph 3, of the Joint Agreement.12
10 The credited testimony of Spinelli. McMasters did not specifically contradict Spinelli's
testimony. He denied telling Spinelli that he would have to pay $1,187.15, the enttre
dndebtedness , before he could go to work, or before his application could come before the
membership.
n It was Phillips, himself, who designated which employees were to be discharged as
jobs were completed, and Spinelli merely transmitted the information to the employees
affected. The record is not clear as to the extent of Spinelli's authority to hire, except
that he put on additional men only when ordered to do so by Phillips. It does not
affirmatively appear that he exercised independent judgment in the selection of new men.
12 The Joint Agreement is an agreement between the Respondent and the Plastering
Contractors of Cook County. Paragraph (c) of article III provides in part as follows
"Each employing contractor shall notify the Union within two days of any new employee
hired ... :'
JOURNEYMEN PLASTERERS' PROTECTIVE, ETC., LOCAL 5 1615
The letter did not arrive in time, and McMasters telephoned Phillips who "ran right
down there." At the executive board meeting, Phillips was told that he had broken
a rule of the Joint Agreement by failing to report three new men, one of whom
was Spinelli. Phillips pleaded guilty to the charge. He was told that the executive
board would consider what they would do about the violation. McMasters then
asked him in what capacity Spinelli was working and told him that Spinelli did not
have a permit to work any longer as a plasterer.13 That evening, Phillips had a
conversation with Spinelli in which he said, "I think we are going to have to sever
relations. They're putting pressure on me because I hired you and I didn't notify
them." 14
About 10 days later, Phillips received a telephone call from McMasters who told
him that the Respondent had decided to send Phillips a steward for 90 working
days. Phillips testified that he accepted the appointment of a steward as a penalty
for infraction of the rules.15 McMasters denied that the appointment of a steward
was a penalty. However, Respondent's brief concedes that one reason for the im-
position of an outside steward was "as a punishment for violation." (Respondent's
brief, page 7.) The steward, John Owens, started work on April 15, 1962.16 Phillips
testified that: he was dissatisfied with the quality of Owens' work; Owens did not do
first-class work and he had complained to McMasters about it; on two occasions he
received complaints from the customers about improper work done by Owens; and
in one instance the work was done over.
On the first or second day that Owens was on the job, he had a conversation with
Spinelli in which he said, "John, this is none of my doings. I thought all of this
was all over with." Spinelli asked, "What do you mean over with?" Owens
replied, "I thought you were in the Union. At that second meeting, they discussed
it, the Body granted permission for you to come back in. What's this all about?"
Spinelli answered, "Mr. Owens, John, I don't know what it's all about." Owens then
said, "Well, I was sent out on -a job as a steward and you know what the situation is.
You're not to tell the men what to do and you're not to pay any of the men." 17
Prior to Owens' arrival, Spinelli had distributed the paychecks to the men. On
the first payday thereafter, Owens refused to take a check from Spinelli, saying that
this was pursuant to orders from McMasters. Spinelli then returned to the office, left
the checks with the bookkeeper, and suggested that Phillips bring the checks out.
Later, Owens told Spinelli that he had checked with McMasters and that, since
Spinelli was the timekeeper, it was all right for him to pass out the checks. In the
latter part of May 1962, another incident occurred concerning the passing out of
checks. Spinelli had two checks for the foreman.18 Owens contended that the fore-
man's pay should be represented by one check. The dispute developed into a
shouting match between Owens and Spinelli. Spinelli then telephoned Phillips at
his office. A short time later, both Phillips and McMasters appeared at the job.
McMasters turned to Owens and said, "What's the trouble here?" Owens said,
"He's got two checks for the foreman." McMasters said, "There's nothing wrong
in that. However, it isn't according to Hoyle, but there's nothing wrong in that."
Phillips then told McMasters that the steward was causing quite a bit of trouble;
that he had been drunk on the job and left a lot of bad work, and that the Respond-
ent's sending out of the steward had been fairly costly to him.
That evening Phillips met with Spinelli and told him, "John, I can't take all
this pressure. It's costing me money. I can't use you at your fullest capacity.
It looks like you and I are going to have to sever relations." Spinelli asked him
if he would come to his attorney's office and sign a statement to that effect, and
Phillips said that he would.
The check in the sum of $187.15 which Attorney Belline had sent to the Respond-
ent on behalf of Spinelli was never deposited by the Respondent. On June 4,
18 The credited testimony of Phillips. According to McMasters, he told Phillips that
Spinelli could work in any capacity except as a supervisor. For reasons hereinafter dis-
cussed, I do not credit McMasters' testimony.
14 The foregoing conversation was brought out by counsel for Respondent on cross-
examination of Spinelli. Cf. N.L.R.B. v. Local 776, International Alliance of Theatrical
and Stage Employees (Film Editors ) ( Cascade Pictures Co. of California ), 303 F. 2d 513,
519-520 (C.A. 9).
15 MeMasters admitted that there already was a steward on the jab.
10 According to McMasters, the reason for the selection of Owens as steward, rather than
some employee then working for the Employer, was that Owens was unemployed at the time.
17 The foregoing is the credited testimony of Spinelli. Owens did not testify.
18 Apparently one check was for the journeyman 's pay ; the other for the foreman's pay
over and above that of a journeyman.
1616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1962, Attorney Burke returned the check to Attorney Belline with a letter which read
in part as follows:
This check is being returned to you for the reason that Mr. John J. Spinelli
failed to abide by the terms of his agreement with Journeymen Plasterers P. & B.
Society.
On June 8, 1962, Spinelli's employment terminated.
Steward Owens did not remain in the Employer's employ the full 90 working
days. After Spinelli's discharge, Phillips telephoned McMasters, told him that he
had run out of work, and asked to be relieved of the steward. McMasters advised
him to put his request in writing. On July 24, 1962, the Employer wrote to the
Respondent asking to be released of the steward due to shortage of work. Approxi-
mately 2 weeks later, Owens left the Employer. About a month before the healing,
according to Phillips, he voluntarily employed Owens again.
B. Credibility of the principal witnesses
Essential to the findings made herein is a resolution of the credibility of the prin-
cipal witnesses.
Spinelli testified generally in a fair and straightforward manner. He did not
exaggerate, nor did he attempt to evade questions put to him.19 He fully admitted
when he was uncertain as to any matter. I have credited his testimony.
John J. Phillips, president of the Employer, called as a witness for the General
Counsel, gave the appearance of a timorous individual caught between his oath to
testify truthfully and his fear of saying anything which he felt would offend the
Respondent. He listed a number of reasons for Spinelli's discharge (discussed
infra), but did not list pressure from the Respondent as one of them. I concluded
that Phillips was, in fact, a hostile witness, his hostility stemming from a fear of the
Respondent. Accordingly, I permitted counsel for the General Counsel to impeach
his testimony.20 Thus, although Phillips did not ascribe pressure from the Respond-
ent as causing him to discharge Spinelli, he admitted giving Spinelli's attorney a state-
ment at the time of the discharge in which he said:
In order to get the pressure off me from the union, I fired John Spinelli about
June 8, 1962.
Phillips admitted that when he signed the statement, he believed it to be true.
As the statement was completely contrary to his testimony on the witness stand, he
explained that he couldn't understand why he had been "so emphatic" in the state-
ment, that he is "very sissy about hurting people's feelings" and "was very agreeable
with Mr. Spinelli for almost anything to not hurt his feelings and just so I got
out of this situation," and that the reasons for the discharge which he gave on the
witness stand were the "truer" reasons. When asked by me whether he was afraid
of repercussions from the Respondent if he testified according to the statement
which he gave to Spinelli's attorney, he answered:
Oh, I actually never-I wouldn't say that the thought hasn't crossed my mind.
Phillips admitted that a month before the hearing he had been interviewed by the
attorney for the Respondent and that, since giving the aforesaid statement, he had
talked to McMasters, president of Respondent, a few times. He testified, however,
that Respondent's attorney had told him to tell the truth, and he did not recall the
content of his conversations with McMasters.
In this connection, it is singularly curious that, as brought out by counsel for
Respondent on cross-examination, Phillips voluntarily rehired Owens, the steward,
a month before the hearing. Considering the fact that Phillips, as he testified, had
been dissatisfied with Owens' work, had received complaints from customers about
work performed by Owens and on one occasion had to have the work done over,
19 Except in one minor respect, viz, with respect to the reasons for his failure to approve
a letter from Respondent's attorney setting forth an understanding reached at a meeting
among Messrs. Burke, 1\ eMasters, Spinelli, and Belline. This does not, however, affect my
overall evaluation of his credibility.
20Local 776, IATSE (Film Editors), 124 NLRB 842, 843, footnote 2, enfd. 303 F. 2d
513; Magic Slacks, Inc., 136 NLRB 607, 608, footnote 1; Uniform Rules of Evidence,
rule 20. Wigmore terms the rule forbidding impeachment of one's witness "a barnacle
inherited from ancient ideas . [which] serves usually to suppress the truth." Wig-
mores' Code of Evidence, par. 825, p. 176, footnote 2 I do not, however, rely upon the
impeachment testimony in arriving at my finding, antra, that the Respondent caused the
discharge of Spinelli.
JOURNEYMEN PLASTERERS' PROTECTIVE, ETC., LOCAL 5 1617
and had complained to McMasters about the quality of Owens' work, Phillips' hiring
of Owens just before the hearing indicates his complete subservience to the Respond-
ent. It would seem that Respondent was seeking to erase the penal effect of imposine
Owens on the Employer and to that end required Phillips' cooperation, which it
secured.
Phillips' testimony as to why he discharged Spinelli was discredited also by his
admission that, in a conversation with counsel for the General Counsel, he had
admitted that he thought about the cost of Spinelli and the cost of Owens, the
steward; that he couldn't get rid of the steward because of the executive board
decision, so he chose to discharge Spinelli.21
Accordingly, I have not credited Phillips' testimony, except as relied on herein.
Ellsworth McMasters, president of the Respondent, testified in a disingenuous
and evasive manner. As previously noted, he denied that the sending of a steward
to the Employer for 90 working days was a penalty imposed on the Employer-a
fact which Respondent's brief now concedes. He testified that he did not consider
Spinelli to be a member of the Union while he worked for the Employer and did not
issue a dues book to him because the application was not filled out and no moneys
received. Yet it is clear from the record that the Respondent considered Spinelli's
letter seeking membership as an application and that the executive board of the
Respondent acted upon it, as did the membership. Moreover, McMasters admitted
that nobody at the executive board meeting before which Spinelli appeared had
raised the question that his application was not in the proper form.
McMasters' testimony as to the purpose of requiring Spinelli to make a down-
payment of $187.15 is likewise significant. He testified that he did not know what
the check was for, whether it was to apply on the indebtedness or the initiation fee,
and did not call Belline, Spinelli's attorney, to ask what it was for. This is indeed
surprising in view of the fact that the amount of the downpayment was fixed by
McMasters and in view of the further fact that Attorney Burke's letter of February
16, 1962, written after the conference among McMasters, Burke, Belline, and
Spinelli, specifically stated that the check was "to be credited upon the aforemen-
tioned indebtedness of $1,187.15, whereby reducing the indebtedness to $1,000.00."
Later, McMasters finally straightened himself out in response to a leading question
by counsel for Respondent:
Q. And wasn't that $187 to apply upon the debt of $1187?
A. Yes, I guess so.
McMasters' testimony regarding Spinelli's failure to pay union assessments of 10
cents per hour reveals an interesting inconsistency. Thus, he testified that although
the Employer's monthly report to the Respondent showed an assessment of 10 cents
per hour for Spinelli, no money was submitted. The following colloquy then
.occurred:
Q. What action was taken by the union when they received this?
A. No action whatsoever was taken.
Q. Why not?
A. The man is not a member-what action are you going to take if a man
is not a member? .. .
However, at another point in the proceeding, McMasters testified that when he
learned that the Employer did not transmit assessments on Spinelli's wages, he
checked to see if the Union had in its office an authorization signed by Spinelli.
If, as McMasters insisted, Spinelli was not a member of the Union while he worked
for the Employer, why would McMasters be concerned whether Spinelli had signed
an authorization to have the union assessment deducted?
In view of the foregoing, I do not credit McMasters' testimony except as spe-
cifically noted.
C. Spinelli's job status
Respondent contends that Spinelli was a supervisor within the meaning of Section
2(11) of the Act, and therefore his discharge is not cause for a finding of violation
of Section 8 (b) (1) (A) or 8(b) (2). Additionally, Respondent contends that if
Spinelli was supervisor during the entire time of his employment by the Employer,
the Respondent did not violate the Act by insisting upon the Employer's compliance
with the Joint Agreement which contains the qualifications for a supervisor and which
qualifications, it is contended, Spinelli did not meet.
21 The foregoing also was brought out by way of impeachment and is not considered by
me as substantive evidence.
734-070-64-vol. 145-103
1618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It seems apparent that when the Employer hired Spinelli, it sought to take ad-
vantage of his experience as a plastering contractor. Thus, Phillips testified he used
Spinelli as a "leg man," utilizing him to deliver paychecks and messages to the men,
erect scaffolding, drive a truck, check on jobs to see if material had been delivered,
and act as timekeeper and as an estimator. In addition, Spinelli hired employees
and fired them as jobs were completed, although it was Phillips, himself, who
designated who was to be fired, and Spinelli merely informed the employees of
Phillips' action.22 As to whether Spinelli directed the employees, Phillips testified
without contradiction that it was "always understood that he conveyed my instruc-
tions. That was always understood . All be ever did anyway was just to
convey my messages to the men on the jobs." 23
It is true that Phillips testified that Spinelli "could have been called" a supervisor.
However, he testified that the reason for his characterization was that he imagined
that "supervisor would cover a timekeeper, checking materials on the job " Moi e-
over, the Employer never paid Spinelli a foreman's wage of an additional 25 cents
per hour over a journeyman's wage as required by the Joint Agreement. On the
contrary, there was a foreman on each job that Spinelli worked, and the foreman
did receive a foreman's pay. Furthermore, according to Phillips, Spinelli was not
in charge of the foreman, either officially or unofficially. Of course, Phillips'
characterization of Spinelli's function as a "supervisor" is not conclusive The test
is whether Spinelli possessed one or more of the incidents of a supervisor which
are set forth in Section 2(11) of the Act. Red Star Express Lines v. N.L R.B., 196
F. 2d 78, 80 (C.A. 2); N.L.R.B. v. Southern Bleachery & Print Works, 257 F. 2d
235, 239 (C.A. 4). Thus, in Gieene Construction Company, and Tecon Corpora-
tion, 133 NLRB 152, 154, the Board held that a carpenter foreman, without au-
thority to hire, fire, transfer, suspend, or lay off employees or effectively to recom-
mend such action, who merely directed the work of the other carpenters in a routine
fashion, acting as a conduit of orders given him by his supervisor, was not a super-
visor within the meaning of the Act
I am satisfied that Spinelli was not a supervisor, but acted merely as a conduit
of orders given him by Phillips. I therefore find and conclude that Spinelli was an
employee within the meaning of the Act and, as such, entitled to the protection of
the Act.24
D. The cause of Spinelli's discharge
The Respondent denies that it caused Spinelli's discharge. Phillips, when asked
why he had discharged Spinelli, gave a variety of reasons , but did not mention pres-
sure from the Union:
Well, that is pretty hard to put in words. I will be as frank as I can. I was
afraid to mention to him the financial attitude that I had on this situation. And
I don't know if I ever mentioned it to him or not, but I doubt that I did. And
aside from the pressure from just everyone, even people that weren 't in the
building that had heard that I had employed him, they told me to be careful.
In other words, there was pressure from practically everyone to be careful,
because the man, it seemed , wasn 't liked by-shall we say-most people.
Additional reasons supplied by Phillips were: The difficulty which he had with the
Latherers' Union when he was called before the executive board of that union be-
cause of some infractions on a job on which Spinelli was working, the fact that two
22 As previously noted, the record is not clear as to the extent of Spinelli 's authority to
hire, except that it affirmatively appears that lie put on additional men only when directed
to do so by Phillips In the absence of evidence that Spinelli exercised any independent
judgment in the selection of new men, and in view of his lack of authority in all other
respects , I do not consider that such authority to hire as he may have possessed gave him
the status of a supervisor within the meaning of the Act.
2' The record contains the suggestion that Phillips had hoped to use Spinelli as a super-
visor However, it is plain that Phillips never authorized Spinelli to direct the plasterers
in view of his doubt whether the Respondent would approve of Spinelli's acting as a super-
visor. Thus, Phillips testified: "I never was sure whether lie was authorized to do so
[supervise the plasterers] or not."
24 In view of my finding that Spinelli was not a supervisor , I do not reach the question
whether Respondent's action would constitute a violation of the Act, even if he had been
supervisor . See Local No. 207, International Association of Bridge, etc ., Workers v.
Perko, 373 U.S 701.
JOURNEYMEN PLASTERERS' PROTECTIVE, ETC., LOCAL 5 1619
foremen had left the Employer because of differences with Spinelli, and the fact
that Spinelli had difficulty keeping time records.25
Aside from the fact that, for reasons previously stated, I do not credit Phillips'
testimony in this regard, an analysis of his testimony convinces me that the fore-
going reasons constitute a parade of afterthoughts to avoid giving the real reason
and thus antagonizing the Respondent. Thus, when asked to identify the pressures
he had referred to, Phillips mentioned Jerry Hartl, a latherer, and Templeton Lime
Company, a supplier. He explained that the difficulty with Hartl was due to the
fact that Hartl was "squeezed a little bit too hard on the pricing," and conceded that
he, as well as Spinelli, was responsible for having "squeezed" Hartl. As to the pres-
sure from Templeton Lime Company, it consisted merely of somebody from that
company asking Phillips whether it was he or Spinelli who was buying the material.
These incidents can hardly be considered as pressures to discharge Spinelli. More-
over, neither these nor the other grounds now brought forth by Phillips were stated
by him to be the reasons for the discharge when Spinelli's employment was ter-
minated. See, e.g., Pyro Electric, Inc., 129 NLRB 1224, 1226.
While there is no direct evidence that the Respondent caused Spinelli's discharge,
it is well settled that "a finding of the Board need not be supported by direct evi-
dence," and that the Board "has the right to consider circumstantial evidence and
draw inferences therefrom as direct evidence is not always obtainable" (N L.R B.
v. Putnam Tool Company, 290 F. 2d 663, 665 (C.A. 6) ).26 It is therefore appropri-
ate to examine the circumstances leading up to the discharge.
It is clear from the record that Spinelli was persona non grata with the Respondent.
His plastering contractor corporation had gone bankrupt owing the Respondent
$1,187.15, representing employees' dues which had been withheld. This indebted-
ness was scheduled in the bankruptcy proceeding, and if the bankrupt were dis-
charged in bankruptcy, would be wiped out. In this posture, the first question that
McMasters asked of Spinelli when the latter applied for membership was what he
was going to do about the indebtedness to the Respondent. Although Spinelli signed
a statement undertaking to pay the past indebtedness and the initiation fee by in-
stallments, his application was nevertheless disapproved by the Respondent. Later,
after his membership application had been approved , the Respondent orally changed
the terms of his undertaking by requiring him to make a downpayment of $187.15.
Although Spinelli made the downpayment , represented by a check from his attorney
to the Respondent , the Respondent did not cash or deposit this check . It may well
be that Respondent held the check to see if Spinelli would make the payments called
for by his agreement with the Respondent . However , it is unnecessary to make any
finding in this regard . The fact is that Spinnelli did not make the payments called
for by the agreement.
When McMasters heard that Spinelli was working, he immediately investigated
the matter and filed charges against the Employer for failing to report to the Re-
spondent within 2 days the hiring of three men including Spinelli. The Employer's
failure to report the hiring of these men appears to be a violation of article III(c)
of the Joint Agreement . Yet it is significant that this was the first time that the
Employer had been charged with this violation , although the Employer had never
complied with this requirement , and McMasters was aware of such prior violations.
Thus, McMasters admitted that he knew that the Employer had several jobs being
worked on at this same time and that the Employer lays off men when the jobs
decrease and then takes on new men when business picks up. Specifically , McMas-
ters was aware of the fact that on the post office job in 1961 , the Employer had 15
men working , yet he testified that it never came to his mind that the Employer was
then violating article 111(c ) of the Joint Agreement . Respondent's zeal in enforcing
this provision of the Joint Agreement after it found that the Employer had hired
Spinelli, when contrasted to its earlier waiver of the provision or condonation of its
violation , leads to the conclusion that the Respondent seized upon the violation and
used it as a pretext to pressure the Employer to get rid of Spinelli . Cf. Local Union
No. 18, International Union of Operating Engineers , AFL-CIO, et al. (Earl D.
Creager, Inc.), 141 NLRB 512.
25 Employer's bookkeeper, Wiercioch, partially corroborated Phillips as to the last reason,
testifying that Spinelli did not adjust to the Employer' s system of keeping the employees'
time, but used his own system. However, as noted infra, Phillips did not attribute Spinelli's
discharge to this alleged difficulty at the time of the discharge.
26 To the same effect see , e.g., N.L.R.B. v. Link-Belt Company, 311 U.S. 584 , 602; N .L.R.B.
v. Lovvorn, d/b/a Georgia Twine & Cordage Company, 172 F. 2d 293 , 294 (C.A. 5) ;
Hartsell Mills Company v. N.L.R.B., 111 F. 2d 291, 293 (C.A. 4).
1 620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Coupled with the pretextuous charge is the further fact that, at the close of the
Employer's hearing before the executive board, Respondent's president, McMasters,
told Phillips that Spinelli's permit had been forfeited and that he could no longer
work as a journeyman plasterer. McMasters admitted that there was a discussion
about Spinelli at this meeting, but denied that there was any discussion about a
permit being issued to Spinelli. He pointed out that after he became president of
the Respondent he stopped the issuing of all permits. For reasons previously noted,
I do not credit his denial. Whether or not he used the term "permit" is unimportant.
I find that he made it clear to the Employer that Spinelli could no longer work for
him as a journeyman plasterer. Also, as discussed above, Phillips appeared very
anxious to avoid testifying in any way detrimental to the Respondent's interests.
Consequently, I am inclined to credit such portions of his testimony as do not accord
with the Respondent 's position 27
That the Employer was thereby made aware of the Respondent's attitude toward
Spinelli is apparent from what occurred that evening : Phillips met Spinelli and told
him that the Union was applying pressure to him and that he thought he might have
to discharge Spinelli.
The action of the executive board in requiring the Employer to accept an outside
steward was the next step in the application of pressure on the Employer. Thus,
the Employer was required to accept and pay wages to an unneeded employee for
a period of 90 working days. This made it uneconomic for the Employer, a small
company,28 to continue to employ Spinelli. The conduct on the job of John Owens,
the steward, added to the pressure. Aside from the fact that he did not do first-class
work, he on three occasions interfered with the distribution of checks by Spinelli.
On the third occasion, the dispute grew so violent that both Phillips and McMasters
had to come out to the job. It is significant that the Employer had never experienced
any difficulty in this matter before the advent of Steward Owens. That evening,
Phillips told Spinelli:
John, I can't take all this pressure. It's costing me money. I can't use you at
your fullest capacity. It looks like you and I are going to have to sever relations.
On June 8, 1962, Spinelli was discharged.
From the foregoing, I find and conclude as follows: The Respondent desired
the discharge of Spinelli because he did not comply with the terms of his agreement
with the Respondent to make payments at the rate of $5 per working day on account
of the past indebtedness and the initiation fee. To accomplish this objective, the
Respondent seized upon the pretext that the Employer had violated paragraph (c)
of article III of the Joint Agreement by failing to report within 2 days the names of
new employees hired, including Spinelli, and filed a charge against the Employer.
The charge was clearly a pretext to put pressure on the Employer, as the Employer
had never in the past reported new men, a fact of which the Respondent was fully
aware, and the Respondent had never taken any action against the Employer for
such violations. At the executive board meeting at which the charge was heard,
Spinelli's status was pointedly discussed, and it was made clear to the Employer that
Spinelli did not have Respondents sanction to work as a journeyman. The imposi-
tion of a steward for 90 days as a penalty for a violation which the Respondent
previously had waived or condoned was a financial penalty which made it un-
economic for the Employer to retain Spinelli. Respondents pressure was intensified
by the conduct of Steward Owens who caused a disturbance on the job in connection
with Spinelli's distribution of the checks 29 All of this led Phillips to tell Spinelli
that he thought they would have to sever relations. The steward did not remain in
the Employers employ for the full 90 working days. After Spinellis discharge, the
Respondent removed the steward at the Employers request . In sum , I find and
27 "It is no reason for refusing to accept everything that a witness says , because you do
not believe all of it ; nothing is more common in all kinds of judicial decisions than to
believe some and not all." N.L.R B. v. Universal Camera Corporation, 179 F. 2d 749,
754 (C A. 2).
28 The Employer maintains a nucleus of 3 plasterers and 3 helpers, and hires more men
as the work requires , going up to as many as 30 at a time . The average number of men
it employs is 5 plasterers and 5 helpers.
29 As steward assigned by the Respondent , Owens was its agent , and his actions as such
are chargeable to the Respondent Building & Construction Trades Council of Tampa
(Tampa Sand and Material Co.), 132 NLRB 1564, 1568 ; Truck Drivers and Helpers Local
Union No. 728 , International Brotherhood of Teamsters , etc. (Genuine Parts Co.), 119
NLRB 399, 416; Brunswick Corporation, 135 NLRB 574, 577.
JOURNEYMEN PLASTERERS' PROTECTIVE, ETC., LOCAL 5 1621
conclude that the Respondent by its conduct caused the Employer to discharge
Spinelli . Cf. St. Joe Paper Company, 135 NLRB 1340, enfd. 319 F. 2d 819 (C.A.
2); Brunswick Corporation , 135 NLRB 574 , 576-577; Southeastern Plate Glass
Company, 129 NLRB 412, 413; Local Union No. 49 affiliated with International
Union of Operating Engineers (Associated General Contractors of Minnesota , Inc.),
129 NLRB 399, 400.
Having found that the Respondent caused the discharge of Spinelli , I shall now
discuss the remaining question whether Respondent 's action was for some reason
other than his failure to tender the period dues and the initiation fee customarily
required as a condition of acquiring or retaining membership in the Union.
E. Whether the Respondent 's action in causing Spinelli 's discharge was for some
reason other than his failure to tender the periodic dues and the initiation fees
uniformly required as a condition of acquiring or retaining membership
When Spinelli applied for membership in the Respondent , he was required to sign
an undertaking to pay the indebtedness of his corporation and an initiation fee.
The amount of the initiation fee was not stated . Later, when President McMasters
informed Spinelli that his application had been approved , he was told:
Well, you got to make a down payment before you can go to work and you
got to pay your initiation fee in a manner that was stated in the statement you
signed.
Spinelli inquired as to the amount of the initiation fee and was told:
We are charging you $250 initiation fee to be paid in the manner that we
stated in the statement and you got to pay $187 down before you go to work 30
Also, in his letter of February 16, 1962, to Spinelli, Respondent's attorney stated:
When the initiation fee and the $ 1,000.00 balance [of the indebtedness] has
been paid in full you shall be granted membership in Local No. 5 as a journey-
man plasterer.
Two issues are raised:
(1) Whether the initiation fee of $250 was the fee uniformly required as a con-
dition of acquiring membership in the Respondent ; and (2 ) whether the payment
of the indebtedness was a condition to acquiring membership.
As to the first issue, section 12 of the Respondent 's constitution and bylaws
provide in pertinent part:
The application for journeyman membership must have the following
amounts as initiation fee paid in full; plus Five ( 5) dollars service charge
for request of record , and Five ( 5) dollars registration fee.
New Plasterer members_ ____________________________ °_____$250. 00
5 year membership when dropped__________________________ 200.00
10 year membership when dropped _________________________ 175.00
20 year membership when dropped____ _____________________ 125.00
30 year membership when dropped_________________________ 100.00
It is undisputed that Spinelli had been a member of the Respondent for at least
20 years before he left the Union . It would appear, therefore, that the initiation
fee applicable to him was $125.
President McMasters defended the imposition of the $250 initiation fee as follows:
As I stated before, it is up to the discretion of the Executive Board , and the ap-
proval of the body . It always has been that way.
When asked to point out where in the constitution it so provides , he answered:
It does not so state.
McMasters also cited the cases of two other former members of Respondent who
were charged an initiation fee of $250 to rejoin.
The statutory test as to the amount of the initiation fee is whether it is one
that is "uniformly required as a condition of acquiring membership ." Section
11 The credited testimony of Spinelli. As previously noted, McMasters did not specifically
contradict Spinelli 's testimony . He denied telling Spinelli that he would have to pay
$1,187.15, the entire indebtedness, before he could go to work, or before his application
could come before the membership.
1622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8(a)(3) and 8(b)(2). Respondent's constitution and bylaws clearly set up uniform
fees by classes. The executive board, according to McMasters, has exercised
the power to vary these fees and thus destroy the uniformity. Whether it did so in
violation of its constitution is of no consequence in this proceeding. The issue is
whether it did so to discriminate against Spinelli. I am convinced that it did. The
Respondent plainly did not like Spinelli because of the failure of his corporation to
pay withheld dues. It first rejected his application even though he had signed an
undertaking to pay the indebtedness. And it was only after the second meeting of
the membership, when his application was approved, that he was informed what the
initiation fee would be. Thus, the fixing of the initiation fee at twice the uniform
rate for his class was clearly a discriminatory act, obviously intended as ia punish-
ment for what had occurred in the past. The fact that, 'as testified by McMasters,
two other applicants for reinstatement had also been charged the same amount does
not derogate from this conclusion. For aught that appears in the record, these men
may also have been discriminated against.
Respondent also relies upon a provision in the constitution of its International 31
which empowers a local to charge applicants for reinstatement ` a higher fee than that
is required for applicants who are not former members providing that such increased
initiation fee does not exceed the recognized initiation tee by more than 50 per cent."
Respondent contends that it could have charged Spinelli $375 under this provision.
I do not so construe it. The provision is a limitation on what a local may provide
in its own constitution. In this case, the Respondent chose to fix reinstatement fees
for dropped members at less than the initiation fee charged to new members.
In any event, the provision does not supersede the Act and give the Respondent or
any local the legal right to discriminate among applicants, which is what it did in
this instance I therefore find and conclude that the Respondent discriminated
against Spinelli by fixing an initiation fee which was not uniformly charged members
of his class.
On the second issue, and wholly apart from the foregoing, I find that the Respond-
ent attached a condition to his being accepted for membership by requiring him to
pay the indebtedness of his corporation. This is amply supported not only by
Spinelli's credited testimony, but also by the letter from Respondent's attorney.
Whether Spinelli was morally obligated to pay this debt is not the issue. It was
a debt of the corporation and was listed in the bankruptcy schedules. The purpose
of the bankruptcy laws is to relieve debtors of their debts under appropriate condi-
tions. To require Spinelli to pay this debt was to attach a condition which had the
effect of increasing his initiation fee far above that uniformly required. In sum,
membership in the Respondent was not available to Spinelli until he had paid both
amounts. The Act does not empower a union to compel payment of anything beyond
"periodic dues and initiation fees uniformly required," regardless of the merits of
such other obligations. Thus, it is well settled that a union may not threaten em-
ployees covered by a union-security contract that their failure to pay fines or
assessments would result in expulsion from the union or discharge. See, e.g.,
N.L.R.B. v. Spector Freight System, Inc., 273 F. 2d 272, 277 (C.A. 8), cert. denied
362 U.S. 962; N L.R B. v. Food Fair Stores, Inc, 307 F. 2d 3, 16 (C A. 3) Ution
Starch & Refining Co. v. N.L.R.B., 186 F. 2d 1008, 1012, (C.A. 7), cert. denied
342 U.S. 815.
It is undisputed that Spinelli failed to pay periodic dues to the Respondent.
However, the Respondent never issued a dues book or card to him, and it is
questionable whether he was obligated to tender dues in view of (1) Respondent's
action in charging him a sum in excess of the uniform initiation fee as a condition
to becoming a member, and (2) Respondent's action in keeping Spinelli in,a never-
never land as to his union status. Moreover, according to McMasters, Spinelli
was not, during his employment by the Employer, a member of Respondent, so
that, under Respondent's theory of the case, there was no obligation on Spinelli's
part to pay dues. In any event, the Respondent does not rely upon Spinelli's
failure to pay dues as ground for its action. See paragraph IX of Respondent's
answer.
I therefore find that the Respondent discriminatorily charged Spinelli a greater
initiation fee than uniformly required, by two independent techniques: (1) by de-
manding a higher fee than that prescribed by its constitution and bylaws, and (2)
by insisting that he pay the corporation's indebtedness as a condition to acquiring
membership. In view of all of the foregoing, I find and conclude that Spinelli had
been denied membership in Respondent on some ground other than his failure
to tender the periodic dues and the initiation fees uniformly required as a condition
31 Operative Plasterers and Cement Masons International Association.
JOURNEYMEN PLASTERERS' PROTECTIVE, ETC., LOCAL 5 1623
of acquiring or retaining membership, and that the Respondent caused the Em-
ployer to discharge Spinelli in violation of Section 8(a)(3) of the Act because he
was not a member of the Respondent. Cf. Shear's Pharmacy, Inc., 137 NLRB 451,
452-453; Excel Merchandise Co., Inc., 116 NLRB 1581; International Association
of Bridge, Structural and Ornamental Iron Workers, Local No. 494 (Spiegelberg
Lumber and Building Company), 128 NLRB 1379.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section IV, above, occurring in con-
nection with the business operations of the Employer set forth in section 1, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce among
the several States and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow thereof.
VI THE REMEDY
Having found that the Respondent has engaged in unfair labor practices within
the meaning of Section 8(b)(1)(A) and (2) of the Act, I shall recommend that it
cease and desist therefrom and that it take certain affirmative action designed to
effectuate the policies of the Act.
Since I have found that the Respondent caused the Employer discrimmatorily
to discharge John J. Spinelli on June 8, 1962, I shall further recommend that the
Respondent notify John P. Phillips Plastering Company, Inc., and John J. Spinelli
in writing that the Respondent has no objection to Spinelli's employment by the
Employer. I shall also recommend that the Respondent make Spinelli whole for
any loss of earnings suffered by reason of the unfair labor practices against him.
Respondent's liability for backpay shall terminate 5 days after it notifies the Em-
ployer and Spinelli as aforesaid. Loss of earnings shall be computed in the manner
established by the Board in F. W. Woolworth Co., 90 NLRB 289. The backpay
obligation of the Respondent shall include the payment of interest, to be computed
in the manner set forth in Isis Plumbing & Heating Co., Inc., 138 NLRB 716.
In view of the nature of the unfair labor practices committed, the commission by
Respondent of similar and other unfair labor practices may be anticipated. The
remedy should be coextensive with the threat. I shall therefore recommend that
the Respondent be ordered to cease and desist from infringing in any manner on the
rights of employees guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
this case, I make the following
CONCLUSIONS OF LAW
1. John P. Phillips Plastering Company, Inc., is an employer within the meaning
of Section 2(2) of the Act, and its operations occur in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. The Respondent is a labor organization within the meaning of Section 2(5) of
the Act.
3. The Respondent, by causing the Employer discriminatorily to discharge John J.
Spinelli in violation of Section 8(a) (3) of the Act, engaged in unfair labor practices
within the meaning of Section 8(b) (1) (A) and (2) of the Act.
4. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case, Respondent, its officers, representatives, agents, suc-
cessors, and assigns, shall:
1. Cease and desist from:
(a) Causing or attempting to cause John P. Phillips Plastering Company, Inc.,
its officers, agents, successors, and assigns, to discharge or otherwise discriminate
against any of its employees in violation of Section 8(a) (3) of the Act, as modified
by the Labor-Management Reporting and Disclosure Act of 1959.
(b) In any like or other manner restraining or coercing employees of John P.
Phillips Plastering Company, Inc., in the exercise of the rights guaranteed them in
Section 7 of the Act, except to the extent that such rights may be affected by an
agreement requiring membership in a labor organization, as authorized in Section
8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure
Act of 1959.
1624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action designed to effectuate the policies of the
Act:
(a) Notify John P. Phillips Plastering Company, Inc., in writing, and furnish a
copy of such notification to John J. Spinelli, that it has no objection to Spinelli's em-
ployment and to his immediate and full reinstatement to his former or substantially
equivalent position.
(b) Make whole John J. Spinelli for any loss he may have suffered by reason of
the unfair labor practices in the manner set forth in the section of the Intermediate
Report entitled "The Remedy."
(c) Post at its offices and meeting halls, in conspicuous places, including all places
where notices to members are customarily posted, copies of the attached notice
marked "Appendix." 32 Copies of said notice, to be furnished by the Regional
Director for the Thirteenth Region, shall, after being duly signed by the Respondent's
representative, be posted immediately upon receipt thereof and be maintained by
Respondent for 60 consecutive days thereafter. Reasonable steps shall be taken by
the Respondent to insure that said notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director, in writing, within 20 days from the date of
the receipt of this Intermediate Report, as to what steps the Respondent has taken
to comply herewith.33
32 In the event that 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."
31 If this Recommended Order is adopted by the Board, this provision shall be modified
to read: "Notify the Regional Director for the Thirteenth Region, in writing, within 10
days from the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL MEMBERS
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the Labor Management
Relations Act, as amended, we hereby notify you that:
WE WILL NOT cause or attempt to cause John P. Phillips Plastering Company,
Inc., to discharge or otherwise to discriminate against John J. Spinelli or any of
its employees or prospective employees in violation of Section 8(a)(3) of
the Act, as modified by the Labor-Management Reporting and Disclosure Act
of 1959.
WE WILL NOT in any like or other manner restrain or coerce employees or
prospective employees of John P. Phillips Plastering Company, Inc., its officers,
agents, successors, or assigns, in the exercise of the rights guaranteed in Section 7
of the Act, except to the extent that such rights may be affected by an agreement
requiring membership in a labor organization as a condition of employment, as
authorized in Section 8(a)(3) of the Act, as modified by the Labor-Manage-
ment Reporting and Disclosure Act of 1959.
WE WILL notify John P. Phillips Plastering Company, Inc., in writing, that
we withdraw our objection to the employment of John J. Spinelli and to his
reinstatement to his former or a substantially equivalent position.
WE WILL make John J. Spinelli whole for any loss of pay suffered because
of the unfair labor practices against him.
JOURNEYMEN PLASTERERS' PROTECTIVE
AND BENEVOLENT SOCIETY OF CHI-
CAGO LOCAL No. 5,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
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, Midland
Building, 176 West Adams Street, Chicago, Illinois, Telephone No. Central 6-9660,
if they have any question concerning this notice or compliance with its provisions.