Plumbers and Steamfitters Union

National Labor Relations Board - Board Decisions

Feb 17, 1953

102 N.L.R.B. 1423 (N.L.R.B. 1953)

PLUMBERS AND STEAMFITTERS UNION, LOCAL NO. 393 1423
5. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
6. Cement Masons Local No. 555, Operative Plasterers & Cement Masons In-
ternational Association , AFL, has not caused Anderson-Westfall Company to
discriminate in regard to the hire and tenure of employment of Robert E.
Holloway.
[Recommendations omitted from publication in this volume.]
Appendix A
NOTICE TO MEMBERS OF THIS LOCAL
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our members that:
WE WILL NOT cause or attempt to cause ANDERSON-WESTFALL COMPANY, or
any other employer, except in accordance with Section 8 (a) (3) of the Act,
to discharge employees or in any other manner discriminate against them
in regard to their hire, tenure, or any other term or condition of employ-
ment, because such employees are not members of, or have been suspended
from membership in Cement Masons Local No. 555, Operative Plasterers
& Cement Masons International Association, AFL.
WE WILL NOT in any other manner restrain or coerce employees of ANDER-
SON-WESTFALL COMPANY, or of any other employer, in the exercise of their
right to self-organization, to form labor organizations, to join or assist
any labor organizations, to bargain collectively through representatives of
their own choosing, and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or to refrain from
any or all of such activities, except to the extent that such right 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.
WE WILL make Lee E. Parker whole for any loss of pay he may have suf-
fered as a result of our causing ANDERSON-WESTFALL COMPANY to discrim-
inate against him.
CEMENT MASONS LOCAL No. 555,
OPERATIVE PLASTERERS & CEMENT MASONS
INTERNATIONAL ASSOCIATION, AFL,
Labor Organization.
By ----------------------------------------
(Representative ) ( Title)
Dated --------------------
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.
PLUMBERS AND STEAMFITTERS UNION, LOCAL No. 393 and S. FIDONE.
Case No. 2O-CB-227. February 17,19.53
Decision and Order
On October 29, 1952, Trial Examiner David F. Doyle issued his
Intermediate Report in the above-entitled proceeding, finding that the
102 NLRB No. 145.
1424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent Union had engaged in and was engaging in certain un-
fair labor practices, and recommending that it cease and desist there-
from and take certain affirmative action, as set forth in the copy of
the Intermediate Report attached hereto. Thereafter, the Respondent
filed exceptions to the Intermediate Report and a supporting brief.
The Board 1 has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the Respondent's exceptions and brief, and the entire
record in the case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner with the following additions
and modifications : 2
The record shows, as found by the Trial Examiner, that the Com-
pany is a member of the Northern California Conference of the
Plumbing and Heating Industry Inc., which acts as the collective-
bargaining agent for its members, including the Company, and that
the most recent contract between the said Conference and the Re-
spondent Union expired in July 1951. We find, therefore, that on
September 7, 1951, there was no union-security agreement (or any
other agreement) in effect between the Company and the Respondent.
We find, like the Trial Examiner, that on September 7, 1951, the
Respondent caused the Company to remove Fidone from the Sterne
and Price project because he was not a member of the Union and
had not been cleared by it. The Respondent thereby caused the Com-
pany to discriminate against Fidone; Section 8 (a) (3) of the Act
forbids such discrimination in the absence of a valid union-security
agreement. Accordingly, we find, like the Trial Examiner, that, by
causing the Company to remove Fidone from the Sterne and Price
project, the Respondent violated Section 8 (b) (1) (A) and (2) of the
Act.
Order
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 the Respondent, Plumbers and
Steamfitters Union, Local No. 393, its officers, agents, successors, and
assigns, shall:
'Pursuant to the provisions of Section 3 (b) of the Act , the' Board has delegated its
powers in connection with this case to a three -member panel [Chairman Herzog and
Members Styles and Peterson].
' The Trial Examiner granted the motion of the General Counsel to strike a portion of
the Respondent 's answer to the complaint as not stating a valid defense . We affirm his
ruling. Regardless of whether the stricken portion of the answer set forth a valid defense,
we also find nothing in the record to indicate that Respondent suffered any prejudice as
a result of the Trial Examiner 's action. Although expressly granted an opportunity by
the Trial Examiner at the hearing to make an offer of proof setting forth the evidence it
proposed to submit in support of the stricken allegations of the answer , Respondent failed
to avail itself of this opportunity . In its brief filed with the Board , the Respondent failed
to indicate what evidence , if any, it had to support these allegations.
PLUMBERS AND STEAMFITTERS UNION, LOCAL NO. 393 1425
1. Cease and desist from :
(a) Causing or attempting to cause Anderson and Rowe, Inc., its
successors or assigns, to discharge Sebastian Fidone or any other em-
ployee or prospective employee because he is not a member in good
standing of the Respondent, in violation of Section 8 (a) (3) of the
Act.
(b) Restraining or coercing employees or prospective employees
of Anderson and Rowe, Inc., its successors or assigns, in the exer-
cise of their right to engage in, or to refrain from engaging in, any
and all of the concerted activities listed in Section 7 of the Act, ex-
cept to the extent that such right may be affected by the proviso in
Section 8 (b) (1) (A) of the Act, or by an agreement requiring
membership in a labor organization as a condition of employment, as
authorized in Section 8 (a) (3) of the Act.
(c) In any other manner causing or attempting to cause Anderson
and Rowe, Inc., its successors or assigns, to discriminate against em-
ployees or prospective employees in violation of Section 8 (a) (3) of
the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Notify Anderson and Rowe, Inc., in writing, and furnish a
copy to Sebastian Fidone, that the Respondent has no objection to the
employment of Sebastian Fidone as a plumber on the Sterne and Price
project, Santa Clara County, without regard to his membership or
nonmembership in the Respondent or any other labor organization,
and without prejudice to his seniority, or other rights and privileges;
said notification shall contain a request that Anderson and Rowe,
Inc., offer Sebastian Fidone employment as a plumber on the Sterne
and Price project, Santa Clara County, California.
(b) Make whole Sebastian Fidone for any loss of pay he may have
suffered as a result of the discrimination against him in the manner
set forth in the section of the Intermediate Report entitled "The
Remedy."
(c) Post in conspicuous places at the business offices of the Re-
spondent, and at the Sterne and Price project, Santa Clara County,
California, in all places where notices or communications to its mem-
bers or employees of Anderson and Rowe, Inc., are customarily posted,
copies of the notice attached to the Intermediate Report, marked "Ap-
pendix A." 3 Copies of the said notice, to be furnished by the Re-
gional Director for the Twentieth Region, shall, after being duly
8 This notice shall be amended by substituting for the words "The recommendations of
a Trial Examiner," the words "A Decision and Order." If this Order is enforced by a
decree of a United States Court of Appeals, the notice shall be further amended by sub-
stituting for the words "Pursuant to a Decision and Order" the words "Pursuant to a
Decree of the United States Court of Appeals, Enforcing an Order."
1426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
signed by the Respondent's representative, be posted by the Respond-
ent immediately upon receipt thereof and maintained for a period of
sixty (60) consecutive days thereafter. Reasonable steps shall be
taken by Respondent to insure that said notices are not altered, de-
faced, or covered by any other material.
(d) Notify the Regional Director for the Twentieth Region in writ-
ing, within ten (10) days from the date of this Order, what steps the
Respondent has taken to comply herewith.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon a charge duly filed on December 10, 1951, and amended January 21, 1952,
by S. Fidone, an individual , the General Counsel of the National Labor Relations
Board ,' on behalf of the Board by the Regional Director for the Twentieth
Region ( San Francisco , California), on May 2, 1952, issued a complaint against
Plumbers and Steamfitters Union, Local 393, herein called the Respondent, or
Local 393, alleging in substance that Local 393 was engaging in unfair labor
practices within the meaning of Section 8 (b) (1) (A) and (2) of the Act and
that said unfair labor practices affected commerce within the meaning of Section
2 (6) and (7) of the Act. With respect to the unfair labor practices the com-
plaint alleged :
(1) That Anderson and Rowe, Inc., herein called the employer, or the
Company, is a California corporation engaging in the business of contracting
with its principal office and place of business at San Francisco, California,
and that the operations of Anderson and Rowe, Inc., have a close, intimate,
and substantial relation to interstate commerce ;
(2) That on or about September 12, 1951, the Respondent by its officers,
agents and representatives caused the employer to discharge S. Fidone,
one of its employees on the Sterne and Price project, because Fidone was
not a member in good standing of Local 393 for reasons other than failure
to tender periodic dues, and for the further reason that said Fidone was not
cleared, referred, or dispatched for work, at the Sterne and Price project
by Local 393. (Emphasis supplied.)
The answer of Local 393 denied the commission of the unfair labor practices,
and in denial thereof alleged specifically, "that Respondent admits that Respond-
ent by its Business Agent, Dan McDonald, did inform the employer that the said
Fidone had failed to tender periodical dues to Plumbers and Steamfitters Union,
Local No. 393, and was not a member in good standing of the said local by reason
of his said failure to tender periodical dues and had not been cleared, referred,
or dispatched for work at the said project by Respondent and, further, by rea-
son of the fact that the said Fidone has heretofore threatened to kill the said
Business Agent of Respondent, and his temperament is such that he is not quali-
fied to work with the members of Respondent who are employed by the employer
by reason of his said temperament, which said temperament, moral qualifications
and other personality traits involved risk to the life of the officers of the Respond-
ent Union."
1 The representative of the General Counsel at the hearing is herein called the General
Counsel , and the National Labor Relations Board, the Board.
PLUMBERS AND STEAMFITTERS UNION, LOCAL NO. 393 1427
Pursuant to notice a hearing was held at San Jose, California, on July 1-2,
1952, before the undersigned, the duly designated Trial Examiner. The General
Counsel and the Respondent were represented by counsel. All parties partici-
pated in the hearing and were afforded full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence bearing upon the issues.
Ruling was reserved upon several motions made by the parties. These motions
and the rulings thereon are discussed in the course of this report. After the
close of the hearing, the parties submitted briefs on the issues and the motions,
which have been considered.
Upon the entire record, and from his observation of the witnesses, the Trial
Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF ANDERSON AND ROWE, INC.'
It is admitted by the pleadings that Anderson and Rowe, Inc., is a California
corporation engaged in the business of mechanical contracting, with its principal
office and place of business at 2501 Harrison Street, San Francisco, California.
In the course and conduct of its business the Company purchases and installs
plumbing, heating, and ventilating supplies. Evidence adduced at the hearing
establishes that the Employer in the course and conduct of his business maintains
job offices at each of the sites where it is performing construction. Each of
these jobs is a separate entity which is run from that particular office. During
the year 1951 the Employer was involved in constructing a residential housing
project in the county of Santa Clara, California, for the Sterne and Price Con-
struction Company, which was the general contractor on that project.
During the year ending December 31, 1951, Anderson and Rowe, Inc., pur-
chased materials and supplies of a value of $890,698, of which amount, materials
and supplies of a value of $141,664 were received from outside the State of Cali-
fornia.
During the same period the Employer received $1,645,289 for contracting work.
Of the latter mentioned amount, $48,559 was received by the Employer for work
performed as subcontractor on the Federal Reserve Bank of the United States
in San Francisco, California. The original contract price for plumbing, heating,
and ventilating on the Federal Reserve Bank was $69,500. The contract was
entered into on April 19, 1951; and work commenced shortly thereafter. Due
to extras to be installed, the contract price will finally be in excess of $74,000.
The principal contractor on the job, Dinwiddie Construction Company, was
billed monthly by the Employer for its work on the Federal Reserve Bank. In
the period from April 1951 to December 31, 1951, a period of less than 9 months,
the Employer had performed services on the Federal Reserve Bank in excess of
$48,000. The principal contract of $69,000 was completed approximately a
month before the hearing, the job being delayed by strikes.
It was also established by evidence on the hearing that the Employer is a
member of the Northern California Conference of the Plumbing and Heating
Industry, Inc., herein called the Association.
It was stipulated that the conference is a trade association which is engaged in
promoting the trade interests of its members, and acts as the collective-bargain-
ing agent for the member companies. During the calendar year ending Decem-
ber 31, 1951, the member companies, affiliated with the Association, purchased
2 Findings in this section of the report are based on stipulations of the parties , General
Counsel Exhibit No. 2 in evidence, and the undisputed testimony of Harold Turner.
1428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and received in excess of $500,000 worth of materials directly from outside the
State of California. It was also stipulated by the parties that the contract be-
tween the Association and the locals of the Union at San Mateo and Santa
Clara Counties expired in July 1951. Matters pertaining to that contract were
at the time being litigated in another case before the Board.3
Upon all the evidence I find that Anderson and Rowe, Inc., is engaged in com-
merce within the meaning of the Act.`
II. THE LABOR ORGANIZATION INVOLVED
Upon the pleadings, I find that Plumbers and Steamfitters Union, Local
No. 393, is a labor organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Preliminary motions
Prior to the taking of testimony, counsel for the Respondent moved to dismiss
the complaint on the ground that the first amended charge filed January 21,
1952, was not dated, and therefore did not meet the requirements of Section
102.11 of the Board's Rules and Regulations. The motion was denied on the
ground that failure to date the first amended charge was a mere procedural
irregularity not invalidating the charge, or barring the subsequent issuance of the
complaint.
The General Counsel moved to strike a certain allegation from Respondent's
answer on the ground that the pleaded facts did not constitute a defense to
the complaint under the Act. The allegation thus attacked reads as follows :
... Further, by reason of the fact that the said Fidone has heretofore
threatened to kill the said business agent of Respondent, and his tempera-
ment is such that he is not qualified to work with the members of Respondent
who are employed by the employer by reason of his said temperament, which
said temperament, moral qualifications and other personality traits involved
risk to the life of the officers of the Respondent Union.
The motion to strike the above allegation was granted e
B. The testimony
Sebastian Fidone, the charging party, testified as a witness for the General
Counsel. Fidone stated that he had been a journeyman plumber since 1940, and
from that year until 1945 he had been a member of Local 393. In 1945 he took
a withdrawal card from the Union, and went into business for himself as a
plumbing contractor. He continued in business for himself until August 1, 1951.
Fidone paid $2 withdrawal dues to the Union for the year 1946. About
March 5,1947, he went to the office of Dan McDonald, business agent of Local 393,
for the purpose of paying withdrawal dues for the year 1947. When he informed
McDonald that he wished to pay his withdrawal dues, McDonald said that he
could not accept the dues from Fidone, as the latter was on the "unfair list."
Fidone walked out of the office and made no further attempt to pay his dues.
8 Central California Chapter, Associated General Contractors of America, Inc. at at, Case
No. 20-CA-620, 621, 622.
4Amalgamated Bank of New York, 92 NLRB 610; N . L. R. B. v. Bank of America, 130
F. 2d 624 (C. A. 9) ; Hollow Tree Lumber Company, 91 NLRB 103; Utah Construction
Company, 95 NLRB 196; Morgan Packing Company, 91 NLRB No. 104; Lee's Department
Store v. N. L. R. B., 196 F. 2d (C. A. 9) enforcing 91 NLRB 647.
3 Kingston Cake Co., 97 NLRB 1445.
PLUMBERS AND STEAMFITTERS UNION, LOCAL NO. 393 1429
On February 16, 1949, Fidone sent a letter to Local 393 asking that a hearing
be granted to him by the executive board of the Union. On March 2, 1949, he
met with the executive board. Fidone's difficulty with the Union evidently arose
over the hiring of a nonunion plumber. Fidone explained to the executive board
that on the occasion that he had hired the nonunion man, he needed a man very
badly and the Union was not able to furnish a plumber to him, so he had hired
a friend who had just been discharged from the Navy. McDonald then stood
up, and referring to Fidone said , "I don't think he'd do any good for the local."
On August 14, 1951, Fidone rejoined the Plumbers and Steamfitters Union, join-
ing Salinas Local No. 503. He paid $131 initiation fee, and a fine of $175 which
had been imposed upon him by Local 393. The $175 fine was forwarded to Local
393. On August 14, 1951, Fidone received a work clearance from a second local,
No. 467. It was stipulated by the parties that Local 467 had jurisdiction over
plumbers and steamfitters in the county of San Mateo, and that Local 393 had
jurisdiction over the plumbers in the county of Santa Clara.
Fidone testified that about September 5, 1951,8 he obtained employment from
Anderson and Rowe, Inc., who were constructing a residential development named
Linfield Oaks in San Mateo County. When he was hired on that job, there re-
mained only 1 house on which work was to be completed. After he had worked
approximately 4 or 5 days Mike Cochrane, the Employer's foreman at Linfield
Oaks, told Fidone that the work was practically finished at Linfield Oaks, and
that he would like Fidone to go to the Sterne and Price Project, a housing
project in Santa Clara County, as Anderson and Rowe, Inc., needed plumbers
on that project. This was satisfactory to Fidone as the Sterne and Price
Project was closer to his home.
On the next morning he reported for work at the Sterne and Price Project,
reporting to Charles J. Cook, the Employer's foreman on that job. When he
reported, he told Cook that Cochrane had sent him from Linfield Oaks. Cook
said it was okay, and made a place for Fidone at the bench where the plumbers
were doing some prefabricating work. On direct examination, Fidone said that
this date was either September 10 or 11, to the best of his recollection.
When he had been working 2 or 3 hours he saw Dan McDonald, business agent
of Local 393, come on the project. McDonald came up to him and asked Fidone
what he was doing there. Fidone said, "I paid my fine that you levied on me, and
I happen to be working here." McDonald then turned to Cook, the foreman who
was also there, and said to Cook, "Where did you get that guy from?" Cook told
McDonald that Fidone came from the San Mateo side. McDonald said, "Well,
you better send him back. I don't want him around." Cook and McDonald then
walked beyond Fidone's hearing. About 45 minutes later Cook came back and
said to Fidone, "Sorry, I can't have you on the job, because Dan McDonald,
business agent of 393 says he doesn 't want you on the job , so I'll have to send you
back to Linfield Oaks." Cook added that he'd like to have Fidone on the Sterne
and Price Project, as that job was going to be a long one, lasting about a year.
Fidone went back to the Linfield Oaks job and finished out the day. At the end
of the day, Cochrane, the foreman on that job, said to him, "Sorry I'll have to
let you go, but I would like to have you down there, if the business agent didn't
see you." At quitting time Fidone was given a check for 2 days' pay. This con-
eluded his work with Anderson and Rowe, Inc.
On cross-examination Fidone placed the incident as occurring on September
10. Later he said that Cochrane told him on Friday, September 7, to report at
the Sterne and Price Project on the next workday. Monday, September 10,
All dates in this section of this report are 1951 , unless noted otherwise.
250983-vol. 102-53-91
1430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was celebrated as a holiday, Admission Day, so he reported for work on Septem-
ber 11, a Tuesday.
Charles J. Cook, foreman for Anderson and Rowe, Inc., on the Sterne and Price
Project, testified as a witness for the General Counsel. He stated that he was a
journeyman plumber and had been foreman on the project since April 1951 and
that the project was still continuing at the date of the hearing, July 1, 1952,
Cook stated that he was the responsible supervisor in charge of the project for
the Employer. He had authority to hire, fire, and supervise the work of all
plumbers on the project. Cook testified that Fidone worked for him in the
month of September, but he did not recall the exact date. He testified that
Fidone came on the project and was given a job at the prefabbing bench. On the
same morning, McDonald came to the project about 9: 30 a. in. Cook and
McDonald had a conversation at the prefabbing bench in the presence of approxi-
mately 5 men including Fidone. Cook stated that McDonald approached him and
asked in reference to Fidone, "Where did you get this man?" Cook explained
that Fidone was sent to him from another job by another job foreman. McDonald
then told Cook to send Fidone back to San Mateo County where he would be under
his own jurisdiction.
When McDonald left, Cook told Fidone about the conversation, and Fidone
said, "Well I know the way circumstances are." Then cok said, "I an sorry
I have to let you go in order to keep peace. I will send you back to San Mateo.
You go up and report to Mike Cochrane at Linfield Oaks." Cook testified that
he knew McDonald was an officer of Local 393. Cook himself is a member of
Local 467.
Harold Turner, the witness previously mentioned, was recalled by the General
Counsel. Turner testified that from timecards in his possession, the last day
upon which Fidone worked for Anderson and Rowe was September 12, 1951, a
Wednesday. The witness stated that Sunday the 9th of September was Ad-
mission Day, a holiday, which was celebrated as a holiday on Monday, September
10; and that Fidone worked 8 hours each on September 11 and 12.
In defense the Respondent offered the testimony of Robert C. Wurtz and Rex
R. Saunders. Both these men testified that they attended the national convention
of the Union at Kansas City which occurred in the week beginning September 10,
1951. Wurtz testified that he met McDonald on September 8 at Kansas City
and saw him at various times in the ensuing week. Saunders stated that he went
to Kansas City on September 5, 1951, and that McDonald was ahead of him in
reaching that city.
Dan McDonald, business representative of Local 393, when called as a witness
by the Respondent, testified that he talked to Foreman Cook in August 1951 con-
cerning the employment of Fidone on the Sterne and Price Project. The closest
that McDonald could place the date upon which this conversation occurred was
that it occurred within the 2weeks prior to September 7. He said that he left San
Jose for the convention at Kansas City on Friday evening, September 7, and was
in Kansas City for the convention during the following week.
McDonald stated that on the occasion that he went to the Sterne and Price
Project he asked Foreman Cook to transfer Fidone back to San Mateo County,
as the Union would like to have Santa Clara men on the job. Fidone had not
cleared with Local 393 at that time. He stated that Fidone had cleared with
Local 393 about 6 weeks prior to the hearing. On cross-examination McDonald
testified, in regard to Fidone, as follows :
Q. He didn't have a clearance from your Union to work there?
A. He didn't have a clearance ; nor was he a member of the Local Union.
PLUMBERS AND STEAMFITTERS UNION, LOCAL NO. 393 1431
Q. He wasn't a member of your local Union?
A. That's right.
Q. So you told Mr. Cook you wanted him transferred back to San Mateo
County?
A. That's right.
Q. That is, outside the jurisdiction of your Local?
A. That's correct.
Fidone was recalled at the conclusion of the Respondent's case. He said that
his memory was refreshed from examining certain records pertaining to his
employment. He stated that during the month of August 1951 he had worked
for the James A. Nelson Co., a plumbing firm in San Francisco. He went to
work for Nelson on August 24 and worked for the next 2 weeks. After looking
at the records, he wished to change his previous testimony to state that the in-
cident in which McDonald requested Cook to transfer him occurred on Septem-
ber 7, 1951.
Fidone's withholding slips, furnished to him by James A. Nelson Co., the
employer referred to,' show that Fidone worked 40 hours during the pay period
ending Sunday, August 26, and 40 hours in the pay period ending Sunday, Sep-
tember 2. Withholding slips given Fidone by Anderson and Rowe, Inc.,' show
that he worked 32 hours in the pay period ending Sunday, September 9, and
16 hours in the pay period ending Sunday, September 16.
Timecards of Anderson and Rowe, Inc.,' show that Fidone worked Tuesday
through Friday in the pay period ending Sunday, September 9, and on Tuesday
and Wednesday, September 11, 12, the following week. Monday, September 10,
was a holiday.
C. Pending motions
At the close of the evidence the General Counsel moved to amend the com-
plaint to allege September 7, 1951, as the date of Fidone's discharge from the
Sterne and Price Project, instead of September 12, 1951. Counsel for the Re-
spondent opposed the motion claiming that such an amendment would state a
new and different cause of action. Ruling was reversed by the Trial Examiner.
Counsel for the Respondent then moved to dismiss the complaint on the
ground that the General Counsel has not proved his case by a preponderance of
the evidence, pointing out that the testimony of Fidone was so palpably erroneous
or uncertain, that it could not be accepted as reliable, and serve as the basis for
a finding of discrimination. Ruling on this motion was likewise reserved by
the Trial Examiner.
Concluding Finding
The complaint alleges that the Respondent caused the Employer to discharge
Fidone from the Sterne and Price Project because of his nonmembership in good
standing in Respondent for reasons other than his failure to tender periodic
dues, and for the further reason that Fidone had not been cleared, referred, or
dispatched by Respondent.
Respondent's answer states that the Respondent informed the employer that
Fidone had not tendered periodic dues, and was not a member in good standing
of Respondent, and had not been referred or dispatched for work at said project
by Respondent. In effect this portion of the answer constitutes an admission
by pleading of important facts alleged in the complaint, and the testimony of
' General Counsel Exhibit No. 3, in evidence.
e General Counsel Exhibit No. 4, in evidence.
Respondent Exhibit No. 1, in evidence.
1432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
McDonald, Fidone and Cook clearly establishes that the violations alleged, ac-
tually occurred.
Fidone, Cook, and McDonald, all testified credibly, and were in general agree-
ment as to the substance of their conversation at the Sterne and Price Project.
On that occasion, McDonld requested Cook to terminate Fidone'8 employment
on the project, for the reasons alleged, and Cook, acting for the employer, com-
plied with the request "to keep the peace." He sent Fidone back to Linfield
Oaks, a job nearing completion, where Fidone worked a few additional hours
before his final, complete dismissal. From these facts, the Respondent argues
that McDonald merely asked for Fidone's "transfer," and that Cook by this
conduct did not "discharge" Fidone from the Sterne and Price Project. That is
surely a distinction without a difference. The undisputed facts are that because
Fidone was not a member in good standing in Local 393, or cleared or referred
for work by that local, his employment in Santa Clara County was terminated,
and he was deprived of steady, prospectively long-term employment on the Sterne
and Price Project. That he was sent by the Employer to other employment for
a few additional hours, does not absolve Local 393 of its illegal interference with
Fidone's employment. As far as Santa Clara County was concerned, he was
discharged and barred from further employment in that county. Upon this un-
disputed evidence, I find that the Respondent "caused the employer to discharge
S. Fidone from its employ at the Sterne and Price Project."
The Respondent also argues that Fidone's faulty memory as to the date of the
occurrence renders the General Counsel 's entire case unreliable . I cannot agree.
It appears that none of the three participants in the event under examination
is sure of the date of their conversation and the subsequent discharge of Fidone,
but they all agree as to the nature of the conversations ; and the patent result of
the conversations was that Fidone was deprived of employment. Upon this
state of the proof the uncertainty as to the date is of minor importance. It is
definitely established that the conversation and the discharge of Fidone from the
Sterne and Price Project occurred between the morning of September 4, when
Fidone began employment with Anderson and Rowe, Inc., and the evening of
September 7, the day on which McDonald left Santa Clara County to attend the
convention. The date of the conversations, and the discharge of Fidone, is es-
tablished as occurring between the aforementioned dates by ,all the witnesses.
The matter of the date was thoroughly litigated at the hearing, and determined to
the extent mentioned above, so I hereby grant the General Counsel's motion to
amend the date set forth in the complaint, by changing it from "on or about
September 12,1951," to "on or about September 4-7,1951." 10
Upon the record as a whole, I find that the General Counsel has proven by a
preponderance of the evidence that the Respondent violated Section 8 (b) (1)
(A) and 8 (b) (2) of the Act as alleged in the complaint. Respondent's motion
for dismissal is therefore denied 11
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in
connection with the operations of Anderson and Rowe, Inc., described in section
I, above, have a close, intimate, and substantial relation to trade, traffic, and
1° Cathey Lumber Co., 86 NLRB 157, enfd . 185 F . 2d 10,21 ; Coca-Cola Bottling Co. v.
N. L. R. B., 195 F. 2d 955 (C. A. 8) ; Caroline Mills, Inc., 71 NLRB 369, enfd. 1671 F. 2d
212 (C. A. 5).
11 The Radio Officers Union of the Commercial Telegraphers Union A . F. L., 93 NLRB
1532 ; Kingston Cake Co., 97 NLRB 1445 , (a remand 191 F. 2d 563 (C. A. 3)) ; Teamsters
Union ( Sesco Contractors ) ; 98 NLRB 824.
PLUMBERS AND STEAMFITTERS UNION, LOCAL NO. 393 1433
commerce among the several States, and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices
within the meaning of Section 8 (b) (1) (A) and Section 8 (b) (2) of the
amended Act, the undersigned will recommend that it cease and desist therefrom
and take certain affirmative action in order to effectuate the policies of the
amended Act.
Having found that in violating Section 8 (b) (1) (A) and 8 (b) (2) of the
Act, the Respondent has deprived Sebastian Fidone of employment by Anderson
and Rowe, Inc., on the Sterne and Price Project in Santa Clara County, Cali-
fornia, it will be recommended that: (1) The Respondent notify Anderson and
Rowe, Inc., in writing, and furnish a copy of said notification to Fidone, that it
has withdrawn its objections to the employment of Fidone as a plumber by
Anderson and Rowe, Inc., on the Sterne and Price Project in Santa Clara
County, California, and requests the Company to offer Fidone employment on
that project; and (2) the Respondent make Fidone whole for any loss of pay
he may have suffered, by reason of the Respondent pt eventing his employment
by the Company from September 12, 1951, to the date of Fidone's reemployment
by the Company, according to the following formula : Fidone's loss of pay shall
be computed on the basis of each separate calendar quarter, or portion thereof,
from September 12, 1951, to the date of the Company's offer of employment to
him as a plumber, or to the date on which the Respondent serves its notice upon
the Company of its withdrawal of objections to Fidone's employment, whichever
shall first occur. The quarterly periods hereinafter called "quarters" shall
begin with the first day of January, April, July, and October. Loss of pay shall
be determined by deducting from a sum equal to that which Fidone would nor-
mally have earned for each such quarter or portion thereof, his net earnings,"
if any, in other employment during the period. Earnings of one particular
quarter shall have no effect upon the Respondent's liability for any other quarter.
Upon the above findings of fact, and upon the entire record in the case, the
undersigned makes the following:
CONcrvsIONS OF LAW
1. Anderson and Rowe, Inc., a California corporation, is an employer engaged
in commerce within the meaning of Section 2 (6) and (7) of the Act.
2. The Respondent, Plumbers and Steamfitters Union, Local No. 393, is a
labor organization within the meaning of Section 2 (5) of the Act.
3. By restraining and coercing employees in the exercise of the right guaran-
teed in Section 7 of the Act, the Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8 (b) (1) (A) of the
amended Act.
4. By causing Anderson and Rowe, Inc., an employer, to discriminate against
an employee in violation of Section 8 (a) (3) of the amended Act, the Respond-
ent has engaged in and is engaging in unfair labor practices within the meaning
of Section 8 (b) (2) of the amended Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the amended Act.
[Recommendations omitted from publication in this volume.]
v See Croseett Lumber Company, 8 NLRB 440; Republio Steel Corporation v. N. L. R. B.,
911 U.8.7.
1434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Appendix A
NOTICE TO ALL MEMBERS OF PLUMBERS AND STEAMFITTERS UNION, LOCAL No. 393,
AND TO ALL EMPLOYEES AND PROSPECTIVE EMPLOYEES OF ANDERSON AND ROWE,
INC.
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our members and the employees of ANDERSON
AND ROWE, INC., that:
WE WILL NOT cause or attempt to cause ANDERSON AND ROWE, INC., or
its successors and assigns, to discriminate against Sebastian Fidone or any
other employee or prospective employee in violation of Section 8 (a) (3)
of the Act.
WE WILL NOT restrain or coerce employees or prospective employees of
ANDERSON AND ROWE, INC., its successors or assigns, in their exercise of the
right to refrain from any or all of the concerted activities listed in Sec-
tion 7 of the Act, except to the extent that such right may be affected by
the proviso in Section 8 (b) (1) (A) of the Act, or by an. agreement re-
quiring membership in a labor organization as a condition of employment
as authorized in Section 8 (a) (3) of the Act.
WE WILL notify in writing ANDERSON AND ROWE, INC., that we withdraw
our objection to the employment by it of Sebastian Fidone as a plumber
on the Sterne and Price Project, Santa Clara County, California, and will
request ANDERSON AND ROWE, INC., to offer Sebastian Fidone employment
as a plumber on that project.
WE, WILL notify Sebastian Fidone that we have advised ANDERSON AND
RowE, INC., that we withdraw our objection to his employment as a plumber
on the Sterne and Price Project, Santa Clara County, and that we request
ANDERSON AND ROWE, INC., to offer him employment' as a plumber on that
project.
WE WILL make Sebastian Fidone whole for any loss of pay suffered by
him as a result of our having caused his discharge by ANDERSON AND ROWE,
INC., on the Sterne and Price Project, Santa Clara County, California.
PLUMBERS AND STEAMFITTERS UNION,
LOCAL No. 393
By-------------------------------------
(Representative) (Title)
Dated----------------------------
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.
INTERNATIONAL BROADCASTING CORPORATION (KWKH ) and INTERNA-
TIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL. Case No.
15-CA-312. February 17,1953
Amendment to Decision and Order
On May 16, 1952, the Board issued its Decision and Order in the
above-entitled case, finding that the Respondent had engaged and was
199 NLRB 130.
102 NLRB No. 146.