The Dade County, Florida, Tile, Marble and Terrazzo Contractors Association

National Labor Relations Board - Board Decisions

May 28, 1965

152 N.L.R.B. 1008 (N.L.R.B. 1965)

1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
NOTE.-We will notify any of the above-named employees if presently serving in
the Armed Forces of the United States of their 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.
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, 849
South Broadway, Los Angeles, California, Telephone No. 688-5204, if they have
any questions concerning this notice or compliance with its provisions.
The Dade County , Florida, Tile, Marble and Terrazzo Contractors
Association and its Agent, Anthony Scremin and Marble Pol-
ishers, Machine Operators & Helpers, Local 121, AFL-CIO and
Independent Terrazzo, Tile and Allied Trades Union
L. M. Penzi & Son Tile Co., Inc. and Marble Polishers , Machine
Operators & Helpers, Local 121, AFL-CIO and Independent
Terrazzo, Tile and Allied Trades Union. Cases Nos. 12-CA-
2768-1, 12-CA-2952, 12-CA-2768-3, and 12-CA-2996. May 28,
1965
DECISION AND ORDER
On February 15, 1965, Trial Examiner Lloyd Buchanan issued his
Decision in the above-entitled proceedings, finding that the Respond-
ents had not engaged in the unfair labor practices alleged in the com-
plaint and recommending that the complaint be dismissed in its
entirety. The General Counsel thereupon filed exceptions to the Trial
Examiner's Decision and a brief in support thereof.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with these cases to a three-member
panel [Members Fanning, Brown, 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 Trial
Examiner's Decision, the exceptions and brief, and the entire record
in these cases, and hereby adopts the Trial Examiner's findings, con
clusions, and recommendations with the following additions and
modifications.
Like the Trial Examiner, we do not view the Paul-Rastatter con-
versations regarding the position available with the Intervenor as suf-
ficient evidence to warrant a conclusion that the Association has
rendered or is rendering unlawful aid, assistance, or support to the
Intervenor. The record demonstrates that Paul, attorney for the Asso-
ciation, merely mentioned to Rastatter, during a casual conversation,
that the Independent Union, according to his information, had an
opening for a business agent. Paul gave Rastatter the name and
152 NLRB No. 105.
THE DADE COUNTY, FLORIDA, TILE, MARBLE, ETC. 1009
address of that Union's attorney to whom application for the position
could be made if Rastatter were interested. There is no evidence to
support the view that a recommendation of Rastatter was or would
be given by Paul to the Intervenor or that such a recommendation
would have any effect upon the Intervenor's selection of a business
agent. The record does not disclose any other evidence which would
warrant the finding of a violation based on these allegations of the
complaint.'
Nor do we deem the inclusion of the notice of a meeting of the Inter-
venor in the pay envelopes of employees of L. M. Penzi & Son Tile Co.,
Inc., by the Company's bookkeeper or the events surrounding the brief
circulation of the blue "signature sheet" by the bookkeeper to consti-
tute violations of the Act on the part of either the Company or the
Association. With respect to the meeting notice, the record conclu-
sively demonstrates that the bookkeeper did not know that the meeting
was for union purposes or, consequently, whether the meeting was of
members of the Independent Union or of the incumbent, Local 121.
This information had not been given to her and was not, therefore,
included on the notice which stated only "MEETING TODAY....
(the time and place).... All Tile & Terrazzo helpers." Further, the
bookkeeper testified without contradiction that she would include such
a notice in the employees' pay envelopes for anyone who called and
requested that information of general interest be relayed to the
employees.
With respect to the blue "signature sheet," the record is void of any
evidence which would demonstrate that either Penzi or his bookkeeper
knew that the "signature sheet" had any connection with either union;
nor did the "signature sheet" itself so state. A finding that Penzi did
have such knowledge or that the bookkeeper had such knowledge and
that it was, therefore, attributable to Penzi, must be based on more than
mere speculation.
Having concluded, in agreement with the Trial Examiner, that the
Respondents have not violated Section 8(a) (1) or (2) of the Act, we
shall order that the complaint be dismissed in its entirety.
[The Board dismissed the complaint.]
1 Having found that the conversations relative to a position with the Intervenor con-
stitute insufficient evidence on which to predicate a violation of Section 8(a) (2), we
find it unnecessary to decide whether or not Paul acted as an agent of the Association
in discussing this matter with Rastatter.
The General Counsel contends, further, that Paul had also discussed with Rastatter
the possibility of the Independent Union's affiliation with the International Union of
Operating Engineers, Rastatter's employer. However, this incident is not alleged in the
complaint , nor was the complaint amended to include it at any time after Rastatter
testified to its occurrence. Paul testified that he could not recall such a conversation
and that he thought it had not taken place. In the absence of an allegation in the
complaint or an amendment thereof concerning this conversation, and in view of the
rnresolved contradictory testimony with regard thereto, we do not reach this issue.
789-730-66-vol . 152-65
1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER'S DECISION
The complaint herein (issued July 31, 1964; charges filed October 21, November 14,
and December 16, 1963, and January 9, June 8, and July 31, 1964), as amended,
alleges that the Association and Penzi, by various acts therein described, have violated
Section 8(a)(1) and (2) of the National Labor Relations Act, as amended, 73 Stat.
519; that on or about January 14, 1964, said Respondents entered into a settlement
agreement, which was approved by the Regional Director for Region 12 on or about
January 20; and that they thereafter further violated Section 8(a)(1) and (2) of the
Act and the settlement agreement by attempting to enlist and assist an individual to
become business agent for the Respondent, by enclosing in employees' pay envelopes
notices of a meeting of the Independent, and by assisting the Independent to obtain
bargaining authorization signatures from employees. The answer, as amended, denies
the allegations of violation, more specifically denies that certain alleged acts were
committed with the knowledge or authority of the Respondents, and denies that the
settlement agreement was violated.
A hearing was held before Trial Examiner Lloyd Buchanan at Miami, Florida, on
various dates between October 12 and 15, 1964. At the close of the hearing, counsel
were given an opportunity to argue orally. Pursuant to leave granted to all parties,
briefs have been filed by the Respondents and the General Counsel, the time to do,
so having been extended.
Upon the entire record in the case and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT (WITH REASONS THEREFOR)
1. THE RESPONDENTS' BUSINESS AND THE LABOR ORGANIZATIONS INVOLVED
It was admitted and I find that: The Association, a Florida nonprofit corporation,
acts as the agent for all of its members in labor matters including contract negotia-
tion with unions; the Association's members annually purchase in the aggregate goods
and materials valued at more than $50,000 and received directly from sources outside
the State of Florida; Penzi is a member of the Association and annually purchases
materials valued at more than 5,000 and received directly from sources outside the
State of Florida; and the Association and its members, including Penzi, are severally
engaged in commerce within the meaning of the Act.
It was admitted and I find that Local 121 and the Independent are severally labor
organizations within the meaning of the Act.
II. THE UNFAIR LABOR PRACTICES
The Respondents made various preliminary motions which were disposed of at the
hearing, reasons stated on the record. I have noted their claim that the history of
events in the representation proceeding indicates improper motivation by the Charg-
ing Union and error in the Regional Director's dismissal of the representation petition
and his issuance of the complaint herein. Neither the documents received in evidence
in this connection nor the events cited show such impropriety as to bar consideration
of the allegations of violation.
After charges had been filed against the Respondents, the Association, Penzi, and
Local 121 on or about January 14, 1964, entered into a settlement agreement in
Cases Nos. 12-CA-2768-1 and 12-CA-2768-3 which was on or about January 20
approved by the Regional Director, all conditioned on observance of the terms
thereof and the promise of the Association and Penzi that they would not engage in
any interference within the meaning of the Act.
It was agreed at the hearing that proof would be limited to postsettlement violations
and that, until it appeared that there had been such violations, prior acts would not
be considered. Without admitting the allegations of earlier violation, the Respond-
ents agreed that they would not litigate the allegations with respect thereto: they
would not object to a finding of such violation as alleged if postsettlement violation
were found sufficient to warrant adjudication against them.
It appears without contradiction except for some variance in dates that in the latter
part of January or early February 1964, Rastatter, an assistant business agent for the
Operating Engineers, had a conversation with Paul, who was at that time and had
been since October or November 1963 the attorney for the Association. The conver-
sation took place in the negotiation or conference room of Maule Industries, Inc.,
also represented by Paul and not a member of the Association, during negotiations
between Maule and the Operating Engineers. Paul told Rastatter that "he was having
THE DADE COUNTY, FLORIDA, TILE, MARBLE, ETC. 1011
problems with Dennis Murphy's Local," Murphy being the business representative
for 121. Indicating his knowledge and ability to work in such a situation, Rastatter
replied that he had worked for 121 for 4 years.
Early in February, during another Maule-Engineers session at the same place, Paul
told Rastatter that a movement was on foot among an independent group in 121 to
establish an independent union; that the group was looking for "someone to stand up
to Dennis Murphy"; and that with Rastatter's background he should get in touch with
Landy, another attorney, who was representing the independent group. Whether at
one or two such meetings in the conference room or in the Maule lounge room before
the bargaining session with the Engineers began, during a casual conversation which
lasted not more than 2 minutes as they were waiting to begin a Maule bargaining
session, it was Rastatter who first mentioned Murphy, saying that he had himself
worked for 121 at one time; when he asked whether Paul was having trouble with
Murphy, Paul replied in the affirmative adding that he represented the Association;
and it was Rastatter who, saying that he knew the industry, declared that he would
be interested in being business agent for the independent group. Disclaiming any
connection with the matter, Paul nevertheless told Rastatter that the could tell him
with whom to get in touch, and gave him Landy's name and address.
I have noted also Rastatter's faradic (if not electrifying) reply, when his attention
was later called to it, that Paul had earlier asked him whether the Engineers would
be interested in affiliation with the Independent. While not alleged, this would fur-
ther suggest Paul's involvement with the Independent, although not necessarily on
behalf of the Association. Paul could not recall this conversation as further described
by Rastatter, and thought that it had not taken place.
While Paul's recollection was admittedly not complete; he was positive in his denial
that he gave Landy's card to Rastatter; he maintained that he did not have any such
card. Whether such conversation constituted solicitation and whether Paul was act-
ing on behalf of the Association do not depend on whether Landy's card was passed;
his name and address admittedly were.
As alleged, a few weeks later and again at Maule's, Paul asked Rastatter whether
he had talked with Landy, Rastatter replying that he had called but had been unable
to keep an appointment, and that he would call Landy at the first opportunity. While
the next allegation is that Paul asked Rastatter whether he had made an appointment
with Landy, Rastatter testified that on March 14 or 15, again in Maule's offices, he
told Paul that he had an appointment with Landy for the afternoon of March 19.
Rastatter did not keep that appointment.
The last in this series occurred on or about March 21, Rastatter having made an
appointment with Landy for that morning. We have no explanation for Rastatter's
appearance in Paul's office, on another floor of the same building. This must remain
to us, as it was to Paul, "a complete mystery." Rastatter testified, as alleged, that
Paul now sent him to Landy's office. According to Paul, he found Rastatter in his
office when he came in, and asked what he was doing there. Told that he had come
to see Landy and was "waiting" for him, Paul, having expressed his surprise at seeing
Rastatter, told him, "Enjoy yourself," and went into his office leaving Rastatter read-
ing a magazine. We can find violation here only if we assume that there were viola-
tive acts concerning which there was no testimony by either Paul or Rastatter.
The issue here is whether Paul who, as we have seen, appeared for and represented
Maule at the time of the conversations at its offices in connection with Maule-Engi-
neers bargaining sessions , was acting as agent of the Association during these conver-
sations with Rastatter. My impression, as I heard Rastatter, that Paul was not and
had not indicated that he was speaking for the Association, was confirmed on review
of the transcript and, as we shall see, by Paul's testimony.
We must not make too much of the fact that Paul was also admittedly the attorney
and thus the agent of the Association. This is not a case of a supervisor or agent
in a plant engaged in the employer's business. While one possible conclusion is that
Paul might have been acting on behalf of the Association even while he was at Maule's,
the different circumstances must give pause as we explore the relationship and the
capacity in which he was acting at the time, and here we infer an implied agency even
if his acts were neither authorized nor ratified. It does not appear that the Associa-
tion as principal knew or could have known , either earlier or later, of these events.
Certainly the question arises and calls for proof whether an organization which
retains an attorney is liable for anything which he may say, particularly in the con-
text of or at the time of his activity on behalf of another employer. We recall that,
after Rastatter had mentioned 121 and Murphy and had asked Paul whether he was
having trouble, the latter had replied that he represented the Association, as he had
in labor matters since October 1963 . Paul himself testified on cross-examination that,
1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
although he met with the Association's labor committee dozens of times, he never
discussed the Rastatter conversations with it; it "was a ridiculous thing," it had taken
place at the Maule meetings, and it was not on his mind in connection with Associa-
tion affairs. Whether or not Paul, as he testified, had "no interest" in the identity of
the Independent's business agent, our concern is with any interest and activity based
thereon which can be and is here charged to the Association. Paul had earlier testified
that he did not recall that he had ever informed the Association or any of its members
of these conversations with Rastatter.
Paul's representation of the Association does not per se make it responsible for
everything which he did while apparently engaged in connection with the affairs of
another client; nor for every statement which he made at times and places when he
was not shown to be directly engaged in Association matters If Paul himself vio-
lated the Act, he is not a respondent He was at the time of the events described
involved generally in activity on behalf of Maule. If agency is to be found, it might
be as reasonable to charge or impose it upon Maule as upon the Association. What-
ever the General Counsel's problem as to proof, and aside from any per se aspect,
I find that the Association is not liable for the acts of its attorney of 3 to 5 months
under circumstances such as these when he is apparently engaged in work for another
client. We cannot substitute for necessary factual connection the suspicion of the
General Counsel or of counsel for 121. Nor, whatever its value might be, do we
even have Rastatter's impression whether Paul was here speaking on behalf of the
Association.
We thus do not reach the question whether the conversations, described as "casual,"
constituted such substantial support or assistance as would warrant a finding of viola-
tion.' While, as counsel for the Respondents argues, direct interference was not
shown in the absence of evidence of employee knowledge of the conversations be-
tween Paul and Rastatter, derivative interference could be found were there unlawful
assistance or support; and the latter could be found whether or not the activities
engaged in were crowned with success, if support were actually shown.
If more needs to be said, it may be noted that, unlike violation of Section 8(a)(1)
which may be found in connection with acts vis-a-vis employees because such acts
tend to interfere with employees' activities regardless of their effect in a given situa-
tion, the support here alleged did not constitute such 8(a)(1) violation because it
does not appear to have come to the attention of any employees. As for violation of
Section 8(a)(2), and whatever Paul's intent, one may further consider whether in
fact his abortive efforts either substantially interfered with the administration of the
Independent or contributed support to it.
Neither insofar as these Respondents are concerned and within the issues of the
case, need we go into the association later formed between Landy and Paul. The
latter testified credibly that this was neither in esse nor contemplated at the time of
the events, supra.
Since I cannot predict the Board's decision on the issues of violation, I am impelled
to utter a word of caution and clarification with respect to remedy. The Board
recently, after finding violation of Section 8(a)(2) which stemmed from acts of
employer representatives (supervisors), directed the employer to withdraw recogni-
tion from a certified union.2 I would point out that this provides a means for an
employer to terminate or avoid its obligation to bargain. In the instant case the
rights of the employees to be represented by one or another union should not be
limited or denied because of what Paul (or Penzi, infra) did.
Enclosure in employee pay envelopes by Penzi on or about June 4 of a notice of
a meeting of the Independent is alleged as a violation of Section 8(a)(1) of the Act;
and violation of Section 8(a)(2) is charged in the same connection against the
Association because of such enclosure by Penzi. Pettit, Penzi's bookkeeper and sole
office employee, was entrusted with the handling of such matters, and Penzi is respon-
sible for her acts. She testified that an unidentified caller asked her to inform
Penzi's helpers and grinders that a meeting of the Independent would be held the
following Monday night, and although Penzi has a bulletin board, it was her idea to
put the information on a card in the employees' pay envelopes on Friday. She was
not told nor did she on the cards state the name of the union or in fact that it was
to be a union meeting. It has not been shown that Pettit ever had refused or would
refuse to issue a similar notice on behalf of any other organization (she testified that
she would act similarly on anyone's request; she indicated no concern over union
activities) and although this question has not been raised, one may wonder whether
Cf Signal Gil and Gas Company, 131 NLRB 1427.
The Powers Regulator Company, 149 NLRB 1185.
THE DADE COUNTY, FLORIDA, TILE, MARBLE, ETC. 1013
even inclusion in pay envelopes of a notice of meeting clearly described as a union
meeting would itself constitute unlawful assistance or interference. Finally it must
be noted that, unless Penzi's membership makes the Association liable for all of its
members' acts,3 the Association has not been connected with what is here claimed to
be violative. I find that there was no violation here.
It is also alleged that Penzi unlawfully interfered with employees' protected con-
certed activities by assisting the Independent in May to obtain bargaining authoriza-
tion signatures from employees. About the middle of May a colored man whom she
did not know brought a blue sheet of paper into the office and asked Pettit to have
the employees sign it. Typed on the sheet were the words "All Marble Polishers,
machine operators and helpers"-nothing else. At that time Penzi had two employees
in those classifications. A few minutes after she received it, and outside the building,
Pettit showed the sheet to Penzi's president, L. M. Penzi. Just then the two employees
so classified came up and, in Penzi's presence, Pettit told them that the colored man
had requested that they sign the sheet. They said that they would not sign because
there was no information on the sheet. L. M. Penzi said nothing. The sheet remained
in the office until the same colored man picked it up unsigned about 2 weeks later.
Information concerning the blue sheet was offered by counsel for the Independent,
who told us that preparatory to the filing of a representation petition he had prepared
a similar blue sheet for each member of the Association with the member's name and
address on the respective sheets except for one whose name he had been unable to
read; and that after the sheets were collected and returned to him, the following was
typed on each "We, the undersigned employees of (name of member company) wish
to have Independent Terrazzo, Tile & Trades Union, Inc. as our negotiating Agent."
The circumstances indicate that the blue sheet left at Penzi was one of those pre-
pared by counsel for the Independent (the one on which he had not inserted the
company name), although he testified that he did not know who had delivered it.
If the sheet was submitted to Penzi for signatures, the complaint nowhere charges
violation by the Independent although preparation and submission of such sheets by
the attorney for the Independent to the respective employers in order to obtain an
election is grossly violative for the interference requested of the employers in obtain-
ing employee signatures and for the assistance obtained from the employers. As for
violation by the Association or by its employer members in this connection, we have
no more proof than the statement of counsel concerning his preparation of the blue
sheets for submission to the employers and his later receipt of them, this being hearsay
insofar as it suggests any action taken by the employer members of the Association,
specifically by Penzi which alone is charged.
With respect to Penzi, that Respondent is bound by the acts of the employee who
takes care of its business when L. M Penzi is not in the office Although he has
given her no instructions concerning documents like the blue sheet, she is entrusted
with such matters, having herself posted the notice pursuant to the settlement agree-
ment, later calling L. M. Penzi's attention to it We recall also that the latter per-
mitted Pettit to offer the blue sheet to the employees for signature and did not disavow
her act. But we must likewise recall that the sheet as submitted suggested no un-
toward action or action of any kind, that being the very reason given by the two
employees for their refusal to sign.
To the extent that the sheet was left on the desk in the office for 2 weeks, it was
not addressed to any other employees, and there is no evidence that it was called to
the attention of employees when, as was testified, they came into the office for their
paychecks during the 2-week period.
If offense be charged for L. M. Penzi's failure to disavow what on its face was not
violative, when Pettit on that single occasion and without warning to him but in his
presence transmitted the request to the two employees, their immediate refusal would
appear to have closed the matter, whatever tendency to interfere could conceivably
be found. L M. Penzi would need an expert's knowledge of the law and the cases
to recognize that the situation, apparently closed, required a disavowal. But most
important in this connection as already noted and as pointed out by counsel, neither
the sheet nor any remark made pointed to union activities. There is no basis here
for finding violation and setting aside the settlement agreement.
Mention may be made of the argument by counsel for the Respondents that it is
unfair to deprive or delay the employees of all of the members of the Association in
the exercise of the right to select the Independent as their collective-bargaining rep-
resentative Actually it is conceivable that were the proper respondent before us
on a timely charge and with more proof than the hearsay statement by counsel to
3 L. M. Penzi is a member of the Association's executive board.
1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
show that action was in fact taken by the various employers who maintained the
blue sheets and by them probed into their employees' attitude toward the various
labor organizations, violation might indeed be found. But while we can reflect on
the possibilities of violation which might be found and of greater delay in any expres-
sion of employee choice, we are limited by the proof. .
Upon the basis of the above findings of fact and upon the entire record in the case,
I make the following:
CONCLUSIONS OF LAW,
1. Marble Polishers, Machine Operators & Helpers, Local 121, AFL-CIO, and
Independent Terrazzo, Tile and Allied Trades Union are severally labor organizations
within the meaning of Section 2(5) of the Act.
2. The Respondents have not since January 1964 engaged in unfair labor practices
within the meaning of Section 8 (a) (1) or (2) of the Act.
3._ There is no sufficient basis for setting aside the settlement agreement in Cases
Nos. 12-CA-2768-1 and 12-CA-2768-3.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case, I recommend that the complaint be dismissed in its
entirety.
J. A. Terteling & Sons, Inc. d/b/a Western Equipment Company
and International Union of Operating Engineers Local 370,
AFL-CIO. Case No. 19-CA-2920. May 28, 1965
DECISION AND ORDER
On March 25, 1965, Trial Examiner William E. Spencer issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent 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 Trial Examiner's Deci-
sion. Thereafter, the General Counsel and the Respondent filed excep-
tions to the Trial Examiner's Decision with briefs in support thereof.
Pursuant to the provision of Section 3 (b) of the National Labor
Relation Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, 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 rec-
ord in this case, including the Trial Examiner's Decision, the excep-
tions, and briefs, and hereby adopts the Trial Examiner's findings,
conclusions, and recommendations.'
1 The General Counsel excepts to the finding in the Trial Examiner's Decision that the
Respondent offered striking employees reinstatement immediately upon receipt of Trial
Examiner Bennett's Decision in the earlier case, reported at 149 NLRB 248. However,
the record Is unclear as to when the reinstatement offers were made, and the date to
which backpay runs under the Trial Examiner's Order which we are adopting must
therefore be left for compliance.
152 NLRB No. 110.