United Slate, Tile. Etc., Local 316

National Labor Relations Board - Board Decisions

Mar 8, 1961

130 N.L.R.B. 1260 (N.L.R.B. 1961)

1260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Food , Drug and Beverage Warehousemen and Clerical Employees ' Union,
Local No. 595, is a labor organization ,within the meaning of Section 2(5) of the Act.
3. The evidence does not by its preponderance establish that Carlos V. Garcia
was discharged in violation of Section 8(a) (1) or (3) of the Act.
[Recommendations omitted from publication.]
United Slate, Tile and Composition Roofers, Damp and Water-
proof Workers Association , Local No. 316 and Aldecks Com-
pany, Inc., Charging Party . Case No. 12-CB-350. March 8,
1961
DECISION AND ORDER
On September 14, 1960, Trial Examiner George L. Powell issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the General Counsel
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 exceptions and the brief, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the' Trial Examiner.2
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 United Slate,
Tile and Composition Roofers, Damp and Waterproof Workers Asso-
ciation, Local No. 316, its officers, agents, representatives, successors,
and assigns, shall:
1. Cease and desist from :
(a) Causing or attempting to cause Southland General Builders,
Inc., Aldecks Company,, Inc., their officers, agents, successors, or as-
signs or any other employer over whom the National Labor Relations
Chairman McCulloch and Member Jenkins did not participate in this Decision.
The Respondent filed no exceptions to the Trial Examiner ' s Intermediate Report and
Recommended Order . The General Counsel in his exceptions contends that the findings of
law in the Intermediate Report and Recommended Order therein should be modified be-
cause of the Trial Examiner 's failure to conclude expressly that the Respondent violated
Section 8(b) (2) of the Act by causing or attempting to cause Southland General Builders,
Inc., to discriminate against Aldecks' employees. As we read the Intermediate Report
as having in effect made such finding, we clarify the decision and 'modify the order
accordingly.
130 NLRB No. 127.
UNITED SLATE, TILE, ETC., LOCAL NO. 316 1261
Board may assert jurisdiction, to discriminate against its employees
in violation of Section 8(a) (3) of the Act.
(b) Restraining or coercing the employees of Aldecks Company,
Inc., or any other employer over whom the National Labor Relations
Board may assert jurisdiction, by threatening them with loss of work
unless money is remitted to it.
(c) In any other manner restraining or coercing employees in the
exercise of the rights granted in Section 7 of the Act, including the
right to refrain from engaging in any or all of the activities guaran-
teed thereunder.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Make whole for loss of any pay the employees listed below
may have suffered by reason of discrimination against them in the
manner set forth in the section of. the Intermediate Report entitled
"The Remedy":
Gordon Dixon
Evencio Ferreiro
L. M. McKennon
H. Pressley
John Shelton.
Douglas Thompson
Thomas Graham
Lonnie Pollard-
Henry Burse
Ernest Lamar
Lloyd Anderson
Lamar.. Almond
(b) Make whole for loss of any pay Foreman Walter Gilbert may
have suffered on October 8, 1959, by reason of the curtailment of all
the work of Aldecks on the Southland' Job.
(c) Post at its office and meeting halls in Miami, Florida, copies of
the notice attached hereto marked "Appendix." S Copies of said
notice, to be' furnished by the Regional Director of the Twelfth Re-
gion, shall, after being duly signed by the Respondent Union's repre-
sentative, be posted by it immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to members are customarily
posted. 'Reasonable steps shall be taken to insure that said notices
are not altered, defaced, or covered by any other material.
(d) Promptly mail to the said Regional Director signed copies
of Appendix for posting by the Charging Party, the latter willing, at
its Miami facilities.
(e) Notify the Regional Director for the Twelfth Region, in writ-
ing, within 10 days from the date of this Order, what steps the Re-
spondent has taken to comply herewith. '
L In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted 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."
1262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL MEMBERS OF UNITED SLATE, TILE AND COMPOSITION
ROOFERS, DAMP AND WATERPROOF WORKERS ASSOCIATION, LOCAL
No. 316, AND ALL EMPLOYEES OF ALDECKS COMPANY, INC., AND
SOUTHLAND GENERAL BUILDERS, INC.
Pursuant to a Decision and Order of the National Labor Rela-
tions Board,,,anid in :order to., effectuate the policies of the .Labor-
Management; Relat.ioi- s'Act, we hereby notify you that :
WE WILL NOT. cause or attempt to cause Southland General
Builders, Inc., Aldecks Company, Inc., or any other employer over
whom the National Labor Relations Board may assert jurisdic-
tion, to discriminate against employees in regard to their hire or
tenure of employment, or any term or condition of employment,
in violation of Section 8(a) (3) of the National Labor Relations
Act.
WE WILL NOT condition the.employment of.employees upon the
payment of:initiation fees or dues.
WE WILL NOT in any other manner restrain or coerce employees
in the exercise of the rights guaranteed under Section 7 of the
Act, including the right to refrain from engaging in any or all
of the activities guaranteed thereunder.
WE WILL make whole for loss of any pay the following em-
ployees may have suffered by reason of discrimination against
them on October 8, 1959: .
Gordon Dixon Thomas Graham
Evencio Ferreiro Lonnie Pollard
L. M. McKennon Henry Burse
H. Pressley - Ernest Lamar
John Shelton Lloyd Anderson
Douglas Thompson Lamar Almond.
WE WILL make'. whole for .loss ,of any , pay, Forman Walter
Gilbert may have suffered on October 8, 1959, by reason of the
curtailment of all the work of Aldecks Company, Inc., on the
Southland job.
UNITED SLATE, TILE AND COMPOSITION
ROOFERS, DAMP AND WATERPROOF
WORKERS ASSOCIATION, LOCAL No.
316,
Labor Organization. .
Dated---------------- By=.------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
UNITED SLATE, TILE, ETC., LOCAL NO. 316 1263
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding began with the filing of a charge on October 14, 1959, by the
Charging Party, amended by the same party on January 21, 1960, and, with all
parties represented, was heard before the duly designated Trial Examiner in Miami,
Florida, on April 5 and 6, 1960, on complaint of the General Counsel issued Jan-
uary 21, 1960, and answer of the Respondent on January 27, 1960.
The issues in the case are whether Respondent Union violated Section 8(b) (1) (A)
and„(2), of the.National Labor. Relations Act,, as amended, herein called the Act, by
its agents requiring or instructing Southland General Builders, Inc., hereinafter
called.Southland, a,general.contractor,.and Aldecks Company,,Inc., hereinafter called
Aldecks or Charging Party, a subcontractor of Southland, to refuse employment on
the Southland job to certain employees of Aldecks on that job, because said em-
ployees were not members of, or refused to execute checkoff authorizations to or
refused to pay'dues and initiation fees to, Respondent Union; and by threatening
said employees of Aldecks with loss of employment on the Southland job by telling
them that they could not work on the job unless they joined Respondent Union or
executed checkoff authorizations in its favor or paid dues and initiation fees to it;
and having by these means and for these reasons actually caused said employees of
Aldecks loss of employment.
The defense of the Respondent Union is the general denial that these allegations
are true.
All parties were represented by counsel who participated in the hearing. Full
opportunity was afforded the parties to be heard, to examine and cross-examine wit-
nesses, to, introduce relevant and, pertinent evidence, and to file briefs. The only
brief filed, that of the Charging Party, has been carefully considered.'
At the close of the General Counsel's case, Respondent Union's counsel moved
to strike the allegation in the complaint relating to Southland General Builders, Inc.,
on the ground that jurisdiction over the employer has not been shown by the Gen-
eral Counsel, nor has its commerce activity been introduced into the record. The
General Counsel opposed the motion citing the cases of Newark and Essex Plaster-
ing Co., 121 NLRB 1094, and International Brotherhood of Electrical Workers Local
No. 5, AFL-CIO (Pittsburgh's Great Southern Shoppers Mart, Inc.), 115 NLRB
1196. Ruling on the motion was reserved. The motion is hereby denied under the
authority cited.
.Upon, the entire record, and from my observations of the witnesses at the hearing,
I hereby make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE CHARGING PARTY
The Charging Party is a Florida corporation with its place of business located at
6500 N.W. 35th Avenue, Miami, Florida. It is engaged in the business of roof deck
contracting, erecting gypsum roofs, and allied enterprises. During the fiscal year
which ended on March 31, 1960, Charging Party purchased goods and supplies from
sources located outside the State of Florida in excess of $50,000. I find the Charging
Party is engaged in commerce within the meaning of the Act.
H. THE LABOR ORGANIZATION INVOLVED
The Respondent Union is a labor organization within the meaning of Section 2 (5)
of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
During October 1959,2 Southland, a general contractor, was engaged in construc-
tion of an apartment building at 7195 East Drive, North Bay Village, Florida.3
Aldecks, a subcontractor of Southland, had contracted on September 17 to install
a Gypsum roof deck on the building. Deliveries of materials to the jobsite began
1 Although specifically requested by the Trial Examiner to do so, the General Counsel
did not file a brief.
2 Unless otherwise noted all dates occur In the year 1959.
S The record variously refers to this jobsite as 357 Harbor Corporation job, the Bay
Harbor job, and the Southland job.
1264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on September 28 and after Aldecks' subcontractor , Econolite Company, had done
its work, Aldecks began working on October 6.
Last names will be used in this report for the purpose of brevity but the following
individuals are more fully identified as the record occasionally refers to them by
their first names. Samuel Adler and Nathan Schecter were principals in and agents
,of Southland . Robert P . Witt was president of Aldecks . George Abbale was the
business agent of the Respondent Union.
The collective -bargaining agreement involved in the case is one entered .into on
or about July 15, 1958, by Roof Deck Contractors Association , an employers asso-
ciation of which Aldecks was a member, and Respondent Union covering the Roof
Deck workers of the member employers . This agreement was to run until March
31, 1960, and thereafter from year to year unless terminated upon 60 days ' notice
prior to the expiration date or anniversary thereof. It contained no union -security
or checkoff provision.
On April 7, Respondent Union advised Aldecks by telegram that it considered the
agreement terminated because it at that time no longer represented a majority of
Aldecks' employees . However Abbale , Respondent Union 's business agent, admitted
on the record that Respondent Union thereafter considered itself still bound by
this agreement . In fact, part of its defense to this case is that Aldecks was not living
up to it.
In addition to the written agreement there was a verbal agreement between Aldecks
and Respondent Union under which Aldecks agreed to a dues checkoff for union
members in consideration of Abbale's promise to enter into good-faith negotiations
of changes in and extensions of the July 15 written agreement . Some of - the em=
ployees of Aldecks signed the necessary checkoff authorization cards ' in July.
Checkoff deductions were made for about 2 weeks and thereafter discontinued by
Aldecks on the ground that Abbale failed to negotiate in good faith . The employees
affected at no time requested Aldecks to continue the deductions after - they had
ceased and there is also credible evidence that Respondent Union returned a portion
of the money received from the employees while the verbal checkoff agreement was
in effect 4
B. The events
On the morning of October 6 (the first day for Aldecks ' work ), a committee from
the Building Trades Council , composed of some five or six business agents of the
various crafts involved in the building and construction industry, visited the jobsite.
The following composed this committee : Abbale of Respondent Union , Vernaglia
of the Roofers , Rubin and Esposito of the Laborers , Dobb of the Plumbers, and
Hammond of the Electricians . 5 Upon arriving at the - jobsite they discovered that
Aldecks was working under its subcontract with Southland . Adler, one of the
principals of Southland , noticed the group of business agents and came over to them.
He was introduced to Abbale who told him that Aldecks was not living up to its
agreement with Respondent Union on three particulars . That is, they did not em-
ploy journeymen . They did not pay overtime . And they did not check off the
money due to the Union . Abbate told Adler that if Aldecks lived up to its agree-
ment there would be no problems . Adler volunteered to hold a meeting to resolve
the problem.
Accordingly , on the afternoon • of the same day, October 6, a meeting was held
in the offices of Southland and Southland's attorney , Arthur Klein . Present at this
meeting were Witt, the president of Aldecks , Alder and Schecter of Southland , Klein,
attorney for Southland , Abbale of the Respondent Union, Vernaglia of the Roofers,
Rubin and Esposito of the Common Laborers , Hammond of the Electricians, Dobbs
of the Plumbers, and probably Harry Ross of the Painters . The evidence is con-
fusing as to exactly what occurred at this meeting . All of the evidence from the
various witnesses has been carefully studied and I find that the following correctly
summarizes the facts.
Adler told the group that Abbale had called on him at the jobsite and told him
that the Respondent Union was having trouble with Aldecks and unless Aldecks
would live up to the contract conditions, he, Abbale, was not going to permit
Aldecks to do the job or to do their. work. Witt asked specifically what contract
term was charged as having been violated whereupon Abbale said the use of non-
union men-that the men were not paying any kind of a fee or dues to the Respondent
Union and he had to get this collection from them before they would be permitted
to work. Witt told Abbale that the contract had no checkoff nor closed-shop position
4 Employee Gordon Dixon so testified.
5 Sole of the Lathers probably arrived a little later in another car.
UNITED SLATE, TILE, ETC., LOCAL NO. 316 1265
but Abbale repeated that the men were nonunion and were not going to work on
the job unless he got paid $10 per man. Witt told Abbale to go directly to the men
if they had to pay any fees. Witt was told by the other business agents to "get
right" with the Union and was told, "You know what is going on. . You can
get the men to pay George Abbale if you want to" and Vernaglia, business agent of
the Roofers, told. him, "Well, you'd better get right with this union, or you are just
not going to work on'this job." Esposito, business agent of the Laborers, announced
to the gathering, "kick the guys off the job, get a good union ship to come in to
do the job; get rid of the guys, they are done." Witt replied that he was living up
to the terms of the contract and told Esposito that he was not taking any orders
from him. Witt believed it was Esposito who said to Adler, "Well, kick them off
the job. We can get a Georgia contractor in there, and if there is now any legal
fees involved in this thing we will underwrite them for you. Don't worry about
that, Mr. Adler."
Adler, believing the $100 to $150, which was all that was involved moneywise,
was secondary to what he would lose if the job were shut down, asked Witt if he
objected to paying the Union any money. Witt reiterated that he was living up to
the terms of the contract and the meeting broke up. The following day Aldecks' men
reported to work and worked that day until they ran out of material.
C. Thursday, October 8
According to the credited testimony of Foreman Walter Gilbert, he and a crew
of approximately 12 men 6 reported for work at the jobsite the following day,
Thursday, October 8. Schecter called him to the office and told him that he,
Schecter, had enough money for each of the men to pay the required $10. Schecter
wanted Gilbert to give the money to the men and to tell them to give it to Abbale,
and to tell the men to sign the union cards and continue their work uninterrupted.
Gilbert refused to do this, but did call the men together at Schecter's request.
Schecter came out with Abbale and told the men that he had $10 apiece for them
to give Abbale and that Abbale would give them a union card for them to sign.
Abbale, however, refused to accept the money if Schecter was going to give it
to them. Thereupon, Schecter told the men, "I loan it to you. You can give it back
to me or you don't have to give it back to me. . . . I will loan you the $10 and
if I can get it back, O.K., and if I don't, O.K."
Abbale then addressed Dixon, one of the employees of Aldecks, asking, "How
about it, Dixon? . . . Will you join the Union so we can go to work?" Dixon
answered, "Hell, no. I am not going to join your union." And he turned and
walked off and the rest of the men started to walk off. Adler arrived on the scene
and after being told by Schecter as to what had happened said, "You all get off
the . . damn job. We don't want you anywheres around here."
Gilbert then called Witt who asked him to get a letter from Adler but Adler re-
fused saying that he would send a telegram. (No telegram was sent.) As Gilbert
and the men started their return to the shop, Abbale was on the telephone trying
to get another gypsum company to come out and pour the job.
Aldecks wired Southland at 4:45 p.m. the same date, stating in effect that Adler's
attempt to coerce Aldecks' employees to join a union and his ordering them off the
job after they"had refused to join the Union violated the Act. Also that he-ex-
pected to complete the contract and would be on the job the next day to do so unless
written instructions to the contrary were given.
Aldecks' men returned to work on the 9th and on the 13th the job was completed
without further trouble. Hence, if there is a violation of the Act and the remedy is
to award backpay to the employees who were illegally deprived of their jobs, the
backpay would be limited to the one day, October 8.
Counsel for Respondent Union stipulated that on October 8 the Aldecks crew
did not want to belong to Respondent Union.
D. The case for Respondent Union
The defense of the Respondent Union was that Abbale was merely trying to
enforce the verbal agreement he had with Aldecks relating to a checkoff and had
two other grievances concerning the written contract which he wished settled.
6 Gordon Dixon, Evencio Ferreiro, L. M. McKennon, H. Pressley, John Shelton, Douglas
Thompson, Thomas Graham, Lonnie Pollard, Henry Burse, Ernest Lamar, Lloyd Anderson,
and Lamar Almond..
597254-61-vol. 130-81
1266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
E. The conclusions of fact
The evidence is overwhelmingly clear with respect to the fact that the "problem"
had to do only with the payment of $10 per man. The failure of Aldecks to hire
journeymen or to pay overtime was not a real issue . Abbale himself testified that
Adler was "perturbed" because he thought that Aldecks had misrepresented them-
selves as they came on the job and said they were union contractors. A contract
breach in refusing to hire journeymen, assuming without deciding that this would
breach the contract, or a contract breach in refusing to pay overtime, has nothing to
do with being a "union contractor." In fact, it would seem the existence of a con-
tract with the Union would entitle Aldecks to the designation of being a union con-
tractor. In response to a question, "Did Mr. Adler say or ask. anything of Mr. Witt
in an attempt to clear up these difficulties?", Abbale testified, "Well, he said that we
had an agreement, that there had been an agreement made between Aldecks and
myself that a voluntary checkoff would . take place, and all I asked or he asked
was, why don't you live up to what you have agreed to?" Abbale testified that
Adler telephoned him the night of October 7 and told him to be at the jobsite the
next morning with a union dues receipt book. Abbale testified that he told the
Aldecks employees on the morning of October 8 that Mr. Adler said that if the
employees did not get right they could not work. It is clear from this testimony
that the employees were required to pay the requested $10 per person and that upon
making this payment the work would continue uninterrupted. This then was the
"problem" or the real dispute.
The men asked Abbale why they had to pay $10 apiece. He testified that he told
them about the International constitution and the bylaws permitting 6 months in
which to pay the full initiation fee and that if it were not paid up the employees
would stand to lose what they already had paid in. If this testimony is to be
credited, the $10 was to make up the unpaid difference in the initiation fee and union
cards could be issued before the deadline for making the final payment. Apparently
he wanted the men to join so as not to lose what they already had paid in. But he
contradicted this proposition by testifying, contrary to credited testimony of em-
ployee witnesses, that he did not ask the men to join inasmuch as they previously
had agreed to join in signing the payroll-deduction card and hence he knew they
wanted to join the Union. Further, he could not tell when he had last collected any
money from the employees.
One other piece of evidence should be mentioned at this point for the light it
may throw on the issue of what the $10 was for and also to-show Abbale's motive
in the events of October 8. Barnes, Aldecks' superintendent, testified, without
contradiction, that on or about June 30 he called Abbale at the union hall in order
to get some additional mechanics and helpers for the next day and was told by
Abbale that he was not going to give him the men. And for Aldecks to be "right,"
Aldecks had to be Union. Abbale wanted $65 for each man in order for Aldecks to
work. Barnes at that time said that he had 20 men, and Abbale told him he would
let Aldecks go back to work for a flat $1,300. The $65 was to be an initiation fee.
It now is obvious why the complaint alleged that Respondent Union required
Southland or Aldecks to refuse employment on the Southland job to certain Al-
decks' employees because: (1) they were not members of Respondent Union;
(2) they refused to execute checkoff authorizations to Respondent Union; and
(3) they refused to pay dues and initiation fees to Respondent Union. After hearing
the evidence and reading the record it is clear that the "problem" had to do with
one or more of these three things. I find (1) Aldecks' employees were not mem-
bers of Respondent Union and did not want to belong to it (see Dixon's testimony
above and stipulation of counsel), and (2) Aldecks' employees refused to pay dues
and initiation fees to Respondent Union. As to checkoff authorizations, they had
previously signed these but when Aldecks stopped taking the money out of their
pay they in effect withdrew the checkoff authorizations by going along with the
practice. Accordingly, the employees in effect had refused to execute current checkoff
authorizations and it can be said that all three of the reasons alleged by the General
Counsel have been established.
Did Respondent Union require Southland or Aldecks to refuse employment on
the Southland job to Aldecks employees because of the reasons set forth above?
I find Respondent Union required Southland to refuse this employment. At the
meeting on October 6, Adler told the group that Abbale had called him at the job-
site and told him that unless Aldecks would live up to the contract, Abbale was not
going to permit Aldecks to do the job. This is uncontradicted in the record and is
credited. The contract conditions alluded to related to the $10 per man which is
dues and initiation fees.
UNITED SLATE, TILE, ETC., LOCAL NO. 316 1267
The complaint of the General Counsel also alleged that the Respondent Union
threatened these employees of Aldecks with loss of employment on the Southland job
by telling them they could not work on the job: unless they joined Respondent Union
or executed checkoff authorizations or paid dues and initiation fees to it. The
credited evidence on this point is that witnesses for the General Counsel corroborated
the testimony of Foreman Gilbert with respect to the fact that on the morning of
Ocober 8 George Abbale, the business agent for the Respondent, came up to them
in their group and told them that they could not work on the job unless they joined
the Union. Employee Dixon testified that Abbale came up and said, "You can't
work on the job unless [you] join this union [Respondent Union]." He also testified
that all of the employees could hear Abbale. Pollard, who no longer is with
Aldecks, testified ". . . Abbale said we couldn't work unless we joined the Union."
Burse, who is no longer with Aldecks, testified: . [Abbale] says he weren't
going to let us work that day if we didn't join the Union." Thompson, employee,
testified, ". . . Abbale came up and told us [we] couldn't work that day, because
we were nonunion. . . McKennon testified, ". . . We were just fixing to block
it [cement mixer] up when George [Abbale] came up and said, `There is no use of
blocking it up because you can't work unless you join the Union.' " Abbale denied
that he told the employees they could not work unless they paid the $10 or joined
the Union. However, I cannot credit Abbale over the witnesses for the General
Counsel. His testimony was vague when it could be sharp if he wished it to be so.
And he impressed me as being so involved in the case he could not bring himself to
say anything which he thought might be harmful to his case. His own witness, Ru-
bin, could not corroborate him on who first brought the Aldecks "problem" to Ad-
ler's attention on the morning of October 6. Vernaglia, Respondent Union's witness,
carefully testified, as did Abbale, that it was he and not Abbale who first called the
problem to Adler's attention. Both apparently felt this was of prime importance
yet under the facts of the case it is of minor importance if indeed material. Likewise
much was made over whether the word "picket" was mentioned by Abbale. Again,
this is immaterial as the credited evidence is that Abbale told Adler that he was not
going to permit Aldecks to do the job unless Aldecks lived up to the contract, which
in turn meant unless Aldecks got the men to pay $10 each. A union can shut down
a job by picketing or by asking employees of others not to work. Also at the after-
noon meeting on October 6 the various'statements by participants such as, "Well,
you'd [Aldecks] better get right with this union [Respondent], or you are just not
going to work on this job" clearly go so far beyond the possibility of picketing as
to render immaterial a finding that the word "picket" was used. Abbale must be
found to have ratified these statements made by members of his committee at the
afternoon meeting on October 6. The meeting was called because of his problem,
he was participating in it and he would be under a duty to correct any impressions
that the committee was speaking for him should he disagree with its sentiments and
expressions. Not disagreeing under these circumstances, he is held to adopt the
statements , as his own.
The complaint of the General Counsel concludes by charging Respondent Union
as actually causing these employees to lose employment by the above means and
reasons. The evidence is clear on this point and I find this fact as alleged in the
complaint.
F. The conclusions of law
The law is clear that a labor organization, as well as an employer, is precluded
from affecting the job tenure of an employee because he is not a union member or
because he has not paid the initiation fees and dues, unless there is in effect a valid
union-security agreement. As there was no union security in the agreement involved,
the action of Respondent Union in causing the loss of 1 day's employment to the 12
identified employees of Aldecks violated Section 8(b)(1)(A) and (2) of the Act.
All that is prerequisite to a violation of Section 8(b)(2) in this case is that Abbale
caused Aldecks, concededly an employer, to remove its employees from the installa-
tion work. The statute imposes no requirement that the pressure to effect this dis-
crimination be brought directly on the Charging Party. That point is made clear in
the decision of the Court of Appeals for the District of Columbia in Operating
Engineers Local No. 3, etc. v. N.L.R.B., 266 F. 2d 905 (C.A.D.C.), cert. denied
361 U.S. 834. There, as here, discrimination resulted from union pressure, not on
the employer of the discriminatees, but on the contractor with which the employer
had agreed to do the work in question. The Court saw "no reason to disturb . the
Board's judgment that the impact upon the four employees [who were removed
from the job] flowed naturally from the [Union's pressure against the contract]
266 F. 2d at 908. Acord: N.L.R.B. v. West Texas Utilities Company, 218 F. 2d 824
(C.A. 5), enfg. per curiam 108 NLRB 407, 412-413.
1268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
By threatening employees with the loss of work unless they joined it, Respondent
Union also independently violated Section 8(b)(1) (A) as there was not in effect a
valid union-security contract.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent Union set forth in section III, above, occurring
in connection with the operations of the Company described in section I, above, has
a close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tends to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
It having been found that the Respondent Union has engaged in unfair labor
practices, it will be recommended that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act.
It having been found, as set forth in section F, supra, that Respondent Union
violated Section 8(b)(1)(A) and (2) of the Act by causing the loss of 1 day's work
to the following 12 employees, it will be recommended, among other things that
Respondent Union make them whole for any loss of pay they may have suffered on
October 8, 1959.
Gordon Dixon Thomas Graham
Evencio Ferreiro Lonnie Pollard
L. M. McKennon Henry Burse
H. Pressley Ernest Lamar
John Shelton Lloyd Anderson
Douglas Thompson Lamar Almond
As the above violation of the Act caused a complete shutdown of the Southland
job, insofar as Aldecks was concerned, it might be that Foreman Gilbert also lost
some pay on its account. It will be recommended that Respondent Union make
him whole for any loss of pay he may have suffered on October 8, 1959.
It having been found that the Respondent Union violated Section 8(b)(1) (A) by
threatening employees with loss of work unless they joined it (in the absence of a
valid union-security contract), it will be recommended that it be ordered to cease
and desist from engaging in this conduct.
It having been found that the Respondent Union violated Section 8(b)(2) of the
Act by causing the loss of employment as heretofore set forth, it will also be recom-
mended that Respondent Union be ordered to cease and desist from this conduct.
As the record shows that some of these employees no longer are employees of Aldecks
and as they may transfer to other employers in the same field, I will recommend that
Respondent Union be ordered to cease and desist from attempting to cause or causing
any other employer to discriminate against them in any like or related manner.
Discrimination against employees by a labor organization goes to the very heart of
the Act and must be stopped as effectively as conduct of an employer is stopped.?
Mr. Justice Stone in N.L.R.B. v. Express Publishing Company, 312 U.S. 426, said
that, "To justify an order restraining other violations it must appear that they bear
some resemblance to that which the employer has committed or that danger of their
commission in the future is to be anticipated from the course of his conduct in the
past." This rule must apply equally to labor organizations as to employers and-there
is ample evidence in the record to show that Respondent Union would not let these
12 employees work unless they each paid $10. There is no reason to believe the
Respondent Union would let them work for' another employer at the same trade
without such payment.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. The Charging Party is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. United Slate, Tile and Composition Roofers, Damp and Waterproof Workers
Association, Local No. 316, is a labor organization within the meaning of the Act.
7 Entwistle Mfg. Co., 120 F. 2d 532, 536 (C.A. 4).
YAKIMA FROZEN FOODS 1269
3. The Respondent Union has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(b) (1) (A) and (2) of the Act.
4. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
George Mick , d/b/a Yakima Frozen Foods and Fruit and Vege-
table Packers' and Warehousemen 's Union, Local 760. Case
No. 19-CA-1760. March 9,1961
DECISION AND ORDER
On January 25, 1960, Trial Examiner Martin S. Bennett issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices alleged in the complaint herein and recommending that
he cease and desist therefrom and take certain affirmative action, as
set forth in the copy of the Intermediate Report attached hereto.
The Trial Examiner also found that Respondent had not engaged in
certain other unfair labor practices alleged in the complaint, and
recommended that those allegations of the complaint be dismissed.
Thereafter, the Respondent, the General Counsel, and the Charging
Party (hereinafter referred to as the Union), filed exceptions to the
Intermediate Report and supporting briefs.
The Board 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 exceptions and briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, only insofar as they are consistent with
the findings, conclusions, and order hereinafter set forth.
1. The Trial Examiner found that Respondent Mick, after claiming
inability to pay a wage increase requested by the Union, failed and
refused to furnish the Union with information to substantiate its
claim, and thereby failed to bargain in good faith, as required by
Section 8(a) (5) of the Act. We disagree.
As set forth in the Intermediate Report, the Union was certified on
February 27, 1959. At the parties' first bargaining conference, on
March 7, Respondent Mick stated that he was unable to pay a wage
increase the Union sought. To prove his claim, Respondent offered
to the Union the Company's most recent balance sheet, that is, one for
the calendar year 1957. The Union refused the offer.
On March 16, 1959, Respondent mailed to the. Union a list of
counterproposals to the Union's demands. Respondent's accompany-
130 NLRB No. 128.