Poly-Urethane Industries, Inc.

National Labor Relations Board - Board Decisions

Jan 15, 1974

208 N.L.R.B. 419 (N.L.R.B. 1974)

POLY-URETHANE INDUSTRIES , INC. 419
Poly-Urethane Industries , Inc. and Roofers Local
Union No. 57, of the United Slate , Tile and
Composition Roofers, Damp and Waterproof
Workers Association , AFL-CIO. Case
12-CA-5901
January 15, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On July 19, 1973, Administrative Law Judge
Ramey Donovan issued the attached Decision in this
proceeding. Thereafter, General Counsel and the
Charging Party filed exceptions and supporting
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.
Act"; that a negotiated settlement of the grievance ensued
and the terms thereof were approved by the local joint
adjustment board existing under the aforesaid contract;
that the said settlement terms provided for Respondent's
payment of $1,414; that subsequently, the four employees
delivered to the Union the appropriate checks for distribu-
tion to four affected employees of Respondent; that,
subsequently, the four employees having received the
aforementioned checks from the Union, the Respondent
"notified the four employees that each was expected to
return his check to Respondent uncashed, with which
instruction each of the four employees complied." The last
quoted conduct, including Respondent's acceptance of the
returned checks is alleged to constitute an 8(a)(1) violation
because it interfered "with employees' rights to have
grievances adjusted and to rely upon the Union to seek
redress of grievances." i Respondent, in its answer to the
complaint, denies the commission of the alleged unfair
labor practice and affirmatively pleads that the General
Counsel in the complaint is "attempting to enforce an 8(f)
contract which it had heretofore held to be unenforceable."
The case was tried at Coral Gables, Florida, on June 7,
1973, with all parties represented by counsel. At the
conclusion of the trial, the counsel for the General Counsel
made oral argument. The other parties did not choose to
do so although counsel for the Union did make some brief
comments at this juncture.2 Only the Charging Party filed
a brief.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint herein be, and it
hereby is, dismissed in its entirety.
DECISION
RAMEY DONOVAN, Administrative Law Judge: On
January 2, 1973, the above labor organization, Roofers
Local Union No. 57, herein the Union, filed a charge
against Poly-Urethane Industries, Inc., herein the Respon-
dent. The General Counsel of the Board through the
Regional Director, Region 12, issued a complaint on May
15, 1973. The complaint alleges a violation of Section
8(a)(1) of the Act in that the Union had filed a grievance
"under the provisions of the parties' January 12, 1972,
collective-bargaining agreement which was entered into
and legitimized by the provisions of Section 8(f) of the
1 After the filing of the charge, the Regional Office investigated it and
refused to issue a complaint Briefly stated, the Regional Office gave ay its
reasons - after the 8(f) contract was executed, the employees, pursuant to
their employer's instructions, signed union cards, thereafter, the employer
paid the initiation fees and each month's dues for the employees, with the
latter paying nothing, later, the employer gave its unit employees unilateral
pay raises and, additionally, the employer never abided by all the terms of
the contract, absent uncoerced majority there was no basis for an 8(a)(5)
proceeding, and the request for the return of the checks from the employees
was not a violation of the Act (Resp Exh 1-a)
The foregoing dismissal of the charge was appealed by the Union to the
General Counsel of the Board. The Office of Appeals of the General
FINDINGS AND CONCLUSIONS
1. JURISDICTION
Respondent is a Florida corporation with its principal
office and place of business in Miami, Florida, where it is
engaged in the building and construction industry in the
nonretail business of sales and application of chemical
insulation products applied t -)walls and roofs of buildings.
In the course and conduct of its business, abovemen-
tioned, Respondent annually purchases and receives
goods, materials, and supplies valued in excess of $50,000
directly from points located outside the State of Florida.
Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act. The Union
is a labor organization within the meaning of Section 2(5)
of the Act.
It. THE ALLEGED UNFAIR LABOR PRACTICE
From July 1, 1971, to June 30, 1974, there had been in
Counsel sustained the dismissal of the charge in all respects except that it
authorized an 8(a)(1) complaint on the employer's conduct in demanding
the return of the grievance settlement checks from the employees (Resp
Exh 1(c)) The Union filed a motion for reconsideration with the General
Counsel on the latter's action in sustaining the Regional Director's refusal
to issue an 8(a)(5) complaint After further consideration, the General
Counsel adhered to his original position regarding refusal to issue an 8(a)(5)
complaint
2 During the course of the hearing, counsel for the parties did explicate
their respective positions in the course of objections and motions on
evidence and issues
208 NLRB No. 67
420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
effect a contract between The Employing Roofing and
Sheet Metal Contractors Association and the Union.3 On
January 12, 1971, Respondent signed the contract or a
copy of the contract, aforementioned.4 Lane, business
manager of the Union, testified that, as far as he knew,
Respondent was not a member of the Association but had
signed the contract.5
The contract provides that the Employers Negotiation
Committee and each signatory employer recognized the
Union as the exclusive bargaining agent for all roofers and
damp and waterproof workers in the employ of any of the
contractors signing the contract and that the Association is
the exclusive bargaining agent for all the contractors
signing the contract. Inter aba, the contract provides for a
grievance procedure for disputes or grievances concerning
the interpretation or application of the contract. Such
grievances may be filed by an employee, the Employer,
and the Union. The first step in the grievance procedure is
for the Union or the employee to take up the matter "with
the Company." If the matter remains unsettled, the Union
or the employee, as the second step, may request the
convening of a Joint Board, with equal representatives of
the Employers and the Union, "to seek to mediate and
settle the dispute." Step 3 provides that the procedure for
mediation efforts in step 2 shall not operate to delay the
use of step 3 if either party seeks to initiate arbitration by
writing to the Federal Mediation Service for a panel of
names of suggested arbitrators. "The decision of the
arbitrator shall be final."
On September 20, 1972, a hearing was held before a local
joint adjustment hoard, as provided in the contract, on
charges brought by the Union against the instant Respon-
dent. Various articles of the contract were cited by the
Union as having been violated by Respondent. The Union
was represented by Lane, business manager and previously
business agent of Local 57. Goodman, secretary-treasurer
of Respondent, represented Respondent. At the meeting
Goodman announced that he was attending the meeting
under protest: that Respondent's "relations with the Union
are illegal"; that his presence did not relinquish his legal
rights: that he had been informed of the joint board
meeting by telephone and "had not seen any specific
violations he had been charged with."
According to the minutes of the meeting, a discussion
followed in which Goodman expressed the view that the
Union does not represent "the majority of his people" and
that Respondent had "insisted the men join the Local
Union." Lane relied on the contract, aforedescnbed. At the
end of the meeting the joint board had reached the
conclusion that Lane and Goodman "were to meet and
further explore settlement terms, which would have to be
approved by this committee [Board] if such terms were
reached."
Thereafter, according to Lane, he and Goodman met
3 It was provided that July I, 1971. was to be the effective date when the
contract was signed by the representatives of the Association and the
L coon 1 he exact date of such signing does not appear
4 The signature line of the contract is as follows
Accepted this 12 day of Jan. 1971 _
By /signature; evidently Wm. Weitzman/
President
(Title)
Poly-Urethane Inc,
(Company)
twice and agreed upon a settlement . The Joint Board held
a meeting on October 12, 1972. Lane was present for the
Union. Goodman was not present and, as far as appears
from the minutes, no other representative of Respondent
was present. The minutes show that the joint board
approved the settlement in the following resolution:
Be it hereby resolved that the settlement terms as
outlined by Mr. Robert Lane of Roofer Local Union
No. 57 be hereby approved.
The settlement provided for the payment of $1,414 by
Respondent . This sum was to be divided among four
employees of Respondent whom I have referred to and
named earlier in this decision. The crux of the union
grievances against Respondent before the joint board was,
according to Lane, the fact that "We saw non-union people
doing our work when union people should have done
it. . . . The crux of our complaint was that our people
should have done all the work that was performed on these
jobs." Apparently the settlement figure was arrived at by
computing the number of hours worked on the particular
jobs that were the subject of the grievance.
Lane testified that, subsequently, Respondent delivered
to him four checks in the agreed to amounts. Lane states
that he told the four employees when he gave them the
checks "that there were certain people doing work that
they were entitled to do and that they were entitled to be
compensated . And the grievance committee [the joint
board] felt the same way I did and this is why they
received the money." The four employees thanked Lane
when he gave them the checks.
However, sometime between the time that Respondent
delivered the checks to Lane and the time when Lane got
in touch with the employees and gave them the checks,
Respondent had spoken to the four employees. The four
employees, Copertino, Padilla, S. Fuentes, and L. Fuentes
were called to Respondent 's office . President Weitzman,
Goodman, and the four employees were present. Weitz-
man told the employees that "In the coming days we were
about to receive a check from the union.6 That when that
check was in our hands we had to return it to him, we had
to, because it belonged to him." Thereafter, Lane contact-
ed the employees and gave them the checks as previously
described. The employees said nothing to Lane about what
Weitzman had told them about the checks. The day after
or shortly after they had received the checks from Lane,
each of the four employees returned his check, uncashed,
to Goodman, secretary-treasurer of Respondent.
Conclusion
We have, at the inception of this Decision, described the
complaint allegations . In statements made at the hearing,
counsel for the General Counsel , in essence , affirms that
the Union introduced into evidence four union authorization cards
signed, respectively , by four employees of Respondent on the following
dates. Lionel Fuentes, 2/25/72, AntonioCopertmo, 1/13/72, Blas Padilla,
1/13/72, Sigilfredo Fuentes, 1/ 13/72.
b As is clear, the checks were company checks that the Company had
given to the Union to distribute to the employees pursuant to the settlement
POLY-URETHANE INDUSTRIES, INC. 421
the theory of the complaint is that Respondent interfered
with the employees' Section 7 rights by telling the
employees to return, and receiving from employees, checks
secured for them by the Union as their representative in
the settlement entered into with Respondent pursuant to a
contract grievance procedure. This theory is valid, accord-
ing to counsel for the General Counsel, irrespective of the
refusal of the General Counsel to issue an 8(a)(5)
complaint allegation because of the Union's lack of an
uncoerced majority status.
In my opinion, the statement of Respondent's President
Weitzman to the ;our employees in October 1972 did not
constitute a violation of Section 8(a)(1) of the Act.
Weitzman said, in substance, that the employees would
soon receive checks from the Union, but when they
received the checks, the employees should or must return
the checks to Weitzman and the Company because the
checks belonged to Weitzman and the Company. The
employees, when they received the checks, return them to
the Company. I perceive no threat or promise of benefit in
Weitzman's statement. He expressed his view or his
argument or opinion that the checks belonged to the
Company and therefore must be returned to the Company.
Such conduct is encompassed by Section 8(c) of the Act.7
If it be said tha, Weitzman's statement was necessarily
coercive because of the employer-employee relationship,
this argument relies on a premise rejected by Section 8(c).
The same contention may be made regarding an employer
statement to employees that unions are subversive and
corrupt and the employees should not join the Union or
sign union cards and should tear up or return any union
cards that they had received from the Union because the
Union is an unjust and bad institution seeking to extract
from the employer what belongs to him as the owner of the
factory.
It is a reasonable inference that Weitzman's statement
about returning the checks because they belonged to him
7 Other than the complaint allegation regarding Respondent's securing
of the return of the checks from the employees, there is no independent
8(a)(1) allegation to show illegal antiunion conduct or statements by
Respondent . At the hearing, the Union made an offer of proof to
demonstrate that, in the past, Respondent had made known to employees its
opposition to the Union If this area, not alleged in the complaint, had been
opened, it also would have made relevant any evidence possessed by the
General Counsel or the Respondent that had led the General Counsel to
find administratively that Respondent had paid the union dues of its
employees and any evidence that the employees had joined the union at
Respondent's insistence as asserted by Respondent before the Association
Joint Board . It is unnecessary to speculate whether Respondent would have
emerged from the two ci_rrents of evidence as an employer hostile to the
union or as an employer assisting and helping the union in any event, on
the evidence in the instant record, it cannot be found that Respondent's
statement to the employees about returning the checks was accompanied by
a threat or promise of benefit or that it was made in a context or
background of illegal antiunion conduct or statements by Respondent
a "We are not contending that there is any kind of a valid contract or
invalid, the papers show that there was an 8(f) contract and I made the
statement that the General Counsel's position is that from the circumstances
of this case, we feel that the contract was unenforceable . General
Counsel's position is that the rights of the employees here flow from the
agreement Isettlement agreement] made between the Respondent, Mr.
Goodman and Mr. Lane that's what the rights flow from and that is where
the violation occurred . General Counsel is not claiming that the rights
of these employees flow from any violation of this contract, we're not saying
there is a contract in effect or otherwise we would have asked for a 8(a)(5)
remedy [and would have alleged an 8(a)(5) violation ]"
was based or rationalized on the Company statement to the
Joint Board at the September 20, 1972, hearing that it was
attending the meeting under protest; that its relationship
with the Union was illegal; and, as amplified at that
meeting , the Company does not believe the Union
represents the majority of company employees and that the
Company had "insisted the men join the Local Union." As
a consequence, the Company evidently believed or took
the position that it was improperly compelled to settle with
the Union and pay $1,400 to employees and therefore the
employees were not entitled to the checks.
I express no opinion on the merits of the foregoing
inferred company position. The issue of the contract, or of
union majority status , or the proceedings before the joint
board, are not presented by the complaint. It is contended,
however, that the Respondent did enter into a settlement
with the Union and that the checks were paid pursuant to
the settlement. Therefore, the argument is, that the
employer, in telling the employees to return the checks
secured by the Union as representative of the employees,
interfered with the Section 7 rights of the employees.
The counsel for the General Counsel, as I understand
him, in effect, takes the position that regardless of the
validity or invalidity of a contract or the status of the
Union, it is illegal for the employer to avoid, frustrate, or
interfere with the carrying out of a settlement or under-
standing, made between an employer and a union, when
the settlement or understanding provides for the payment
by the employer of money or other benefits to employees
of the employer.8
The reality of the situation between the Union and
Respondent is that Respondent has not complied with a
settlement made with the Union under the aegis of a
contract and a contractually established joint board.
Presumably, in view of Respondent's contentions or
attitude, it could have or might have refused to comply
with the settlement by: stating to the joint board and the
The complaint allegation , that the union grievance and the settlement
thereof were pursuant to a contract "legitimized" by Sec 8(f) of the Act,
presumably means that insofar as the contract had come into being and
existed under circumstances and conditions described in Sec. 8 (f), the
contract was not illegal by reason of such circumstances and conditions
Perhaps the foregoing type of situation is appropriately described as
"legitimization ." The complaint, however, does not allege a refusal to
bargain, or that Respondent in dealing directly with the employees about
the return of the checks was engaged in illegal unilateral conduct in
derogation of the union's status as the exclusive collective-bargaining agent,
nor does it allege any conduct to be in derogation of the contract and
violative of Sec 8(a)(5) of the Act Also, there may be a question of how
legitimized a contract is under Sec. 8(f) when the General Counsel had
found administratively that union dues had been paid by the Respondent
and that the employees had joined the Union at Respondent's direction
(Resp Exh I-a, 1-(c)), and. thus, the Union did not represent an uncoerced
majority The coerced majority, according to the General Counsel's
administrative finding , was the result of Respondent 's assistance to the
Union by paying dues for employees and so forth as abovementioned Such
assistance to a union is normally vulnerable as a violation of Sec 8 (a)(2) of
the ALL Whatever legitimization that Sec. 8(f) of the Act extends . does not
include a contract made with a union "assisted by any action defined in Sec.
8(a) of this Act as an unfair labor practice." However, I do not regard the
Sec 8(f) legitimization or nonlegitimization of the contract as material to a
decision on the merits of the instant 8(a)(I) complaint that is before me
From statements above quoted, counsel for the General Counsel appears to
cast little. if any, reliance upon the contract, in expounding his theory of the
8(a)(1) violation
422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union that it would not carry out the settlement; or, by
paying the $1,400 with a check or checks unsupported by
bank deposits; or, by stopping payment on the checks; or
by offering the checks to the Union for the employees but
refusing to manually release the checks from its president's
hand; or, by giving the checks to the Union for the
employees and then telling the employees to return the
checks to the employer. Essentially, all the foregoing types
of action are acts of noncompliance with the joint board
approved settlement A debtor, mortgagee, or similarly
situated person does not discharge an obligation to pay by
paying with a bad check or by handing over a check and
then securing its return before it is cashed.
By the same token, the logic of the General Counsel's
position is that in all the foregoing courses of action that I
have described, the Respondent would have violated
Section 8(a)(1) of the Act. If, for instance, the Respondent
had told the joint board that it would not carry out the
terms of the approved settlement with the Union, it would
presumably have interfered with the employees' rights
since the Union had negotiated the settlement with the
Respondent and the Union represented the employees,
albeit its representative capacity was not without some
major weaknesses in the eyes of the General Counsel .9
The remedy for the instant alleged violation or for
violations of essentially the same nature, that I have
described in the foregoing paragraphs, would presumably
be an order to cease interfering and, affirmatively, in
effect, to comply with the joint board sanctioned settle-
ment under the contract by paying the employees the sums
specified in the settlement and not again requesting the
return of such payments.
I find it to be a novel proposition that the Board is the
tribunal for the enforcement of awards or settlements of
joint boards, arbitrators, or others similarly placed, or that
the Board is the prime tribunal for the adjudication of real
or alleged breaches of contract and for noncompliance
with contract machinery. True, the Board may become
involved in contractual aspects when it proceeds under
Section 8(a)(5) of the Act but every alleged breach of
contract or failure to comply with the award of an
intracontract tribunal or arbitrator is not the responsibility
of the Board. Arbitral or joint board decisions or awards
are presumably to be enforced in the courts, if enforcement
is necessary.
The foregoing observations are even more pertinent in a
situation like that of the instant case, where the General
Counsel in discharging his statutory duties had refused to
issue an 8(a)(5) complaint because of his findings or
conclusions regarding the status of the Union as represent-
ative of the employees in its relationship with the employer.
If the Contractors Association, the Joint Board, and the
Union have a legally enforceable contract, claim, or award
against Respondent, and if the Respondent has defensive
contentions regarding the contract and so forth, these
matters , in my opinion, can appropriately be adjudicated
by a court and not by the Board in an 8(a)(1) proceeding.
If this is not so, then every alleged breach of contract or
alleged noncompliance or interference with awards or
decisions where a union and employees are involved can be
arguably an 8(a)(1) violation and cognizable by the Board
as the prime tribunal for such matters. And further, the
Board's role would be limited to enforcement of such
decisions or awards by preventing interference or noncom-
pliance therewith simply because they were awards or
decisions or settlements and irrespective of the legality or
illegality of the contract involved or its enforceability by
Board action under Section 8(a)(5) of the Act, or the status
of the Union as exclusive bargaining representative.
The complaint, in my opinion, is not supported by the
evidence and dismissal is recommended.
CONCLUSION OF LAW
Respondent had not engaged in unfair labor practices as
alleged in the complaint.
ORDER
The complaint is dismissed.
9 R J Smith Construction Co, Inc, 191 NLRB 693.