Bricklayers Local No. 1

National Labor Relations Board - Board Decisions

Mar 21, 1974

209 N.L.R.B. 820 (N.L.R.B. 1974)

820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bricklayers , Masons and Plasterers ' Union, Local No.
1 and Barr Floors, Inc. Case 1-CB-2324
March 21, 1974
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On November 26, 1973, Administrative Law Judge
Abraham H. Mailer issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief.
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 brief
and has decided to affirm the rulings, findings, and
conclusions' of the Administrative Law Judge and to
adopt his recommended Order.
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 Respondent, Bricklayers,
Masons and Plasterers' Union, Local No. 1, Hart-
ford, Connecticut, its officers, agents, and represent-
atives, shall take the action set forth in the said
recommended Order.
1 We agree with the Administrative Law Judge's conclusion that the
Respondent violated Sec. 8(b)(1)(B) of the Act by fining supervisors
Bordallo and Daigle. Although the Court of Appeals for the District of
Columbia Circuit disagreed with the Board in sinular situations in
International Brotherhood of Electrical Workers, AFL-CIO [Illinois Bell
Telephone Company] v N LR B and International Brotherhood of Electrical
Workers, Local 641 [Florida Power & Light Company] v N L R B, 487 F.2d
1143 (C A D.C , 1973), reversing and remanding 192 NLRB 85 and 193
NLRB 30, the Board's petitions for certiorari were granted 414 U S 1156
(1974), and we shall continue to adhere to our decisions in those cases until
such time as the Supreme Court may determine the issue.
DECISION
ABRAHAM H. MALLER, Administrative Law Judge: On
July 11, 1973, the Acting Regional Director for Region I of
the National Labor Relations Board, herein called the
Board, issued on behalf of the General Counsel a
complaint against Bricklayers, Masons and Plasterers'
Union, Local No. 1, herein called the Respondent.' Briefly,
the complaint alleged that the Respondent, a labor
organization, has restrained and coerced Barr Floors, Inc.,
herein referred to as Barr Floors, in the selection of its
representatives for the purposes of collective bargaining
1 The complaint was issued upon a charge filed on May 30, 1973, by Barr
Floors, inc
and the adjustment of grievances by preferring charges
against, and fining, William Gelmini, president, treasurer,
and director of Barr Floors, Leo P. Daigle, secretary and
director of Barr Floors, and Arthur Bordallo, a supervisor
for Barr Floors, all of whom are members of sister locals of
the Respondent, because the said individuals crossed a
picket line established by the Respondent against Barr
Floors, in violation of Section 8(b)(I)(B) of the National
Labor Relations Act, as amended (29 U.S.C. § 151, et seq)
herein called the Act. In its duly filed answer, the
Respondent denied any violations of the Act.
Pursuant to notice, a hearing was held before me at
Hartford, Connecticut, on October 2, and 3, 1973. All
parties were represented at the hearing and were afforded
full opportunity to be heard, to introduce relevant
evidence, to present oral argument, and to file briefs with
me. Briefs were filed by all parties on or before November
8, 1973. Upon consideration of the entire record, the briefs,
and upon my observation of each of the witnesses, I make
the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE CHARGING PARTY
Barr Floors is and has been at all times material herein a
corporation duly organized under and existing by virtue of
the laws of the State of Connecticut. At all times material
herein, Barr Floors has maintained its principal office and
place of business in Hartford, Connecticut, and is now and
continuously has been engaged in the Hartford area in the
installation of concrete floors. In the course and conduct of
its business, Barr Floors derives revenue exceeding $50,000
annually from the aforesaid installations for companies
that are directly engaged in commerce by virtue of their
purchases exceeding $50,000 annually directly from out-
side the States in which they operate. Accordingly, I find
and conclude that Barr Floors is and has been engaged in
commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Bricklayers, Masons and Plasterers' Union, Local No. 1,
is and has been at all times material herein a labor
organization within the meaning of Section 2(5) of the Act.
III. THE ISSUE
Whether the Respondent's action in fining Gelmini,
Bordallo, and Daigle constitutes a violation of Section
8(b)(1)(B) of the Act.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
Gelmini, Bordallo, and Daigle are members of sister
locals of the Respondent.2 Bordallo owns 100 percent of
the stock of Barr Concrete Specialists, a corporation
(herein referred to as Barr Concrete). Gelmini was
employed by Barr Concrete as an estimator, and Daigle as
2 Gelmini and Daigle are members of Bricklayers Local No. 3, and
Bordallo is a member of Bricklayers Local No. 12
209 NLRB No. 123
BRICKLAYERS LOCAL NO. 1
a supervisor. Barr Concrete had a contract with the
Respondent. Sometime prior to the occurrence of the
events hereinafter detailed, Gelmini told Bordallo that he
was having difficulty obtaining contracts for Barr Con-
crete, under which Barr Concrete would have to pay
masons the union scale. Bordallo told Gelmim that if he
wanted to obtain nonunion work, he should organize his
own company. Thereafter, Gelmini obtained a contract for
concrete work on a project being erected by Monsanto at
South Windsor, Connecticut, within the territorial jurisdic-
tion of the Respondent. Apparently, the contract was in
the name of Barr Floors, although it appears that the
incorporation papers were not filed with the Secretary of
State of Connecticut until March 29, 1973.3 Gelmini, doing
business as Barr Floors, began performing the contract in
February and continuing through March. At that jobsite,
Barr Floors employed laborers and masons. The latter
were members of the Respondent. From on or about
March 20 and until and including March 26, the Respon-
dent picketed Barr Floors at that jobsite, because Barr
Floors did not have a collective-bargaining agreement with
the Respondent. As a result of the picketing, Barr Floors'
mason employees refused to enter the jobsite, but Gelmini,
Daigle, and Bordallo did cross the picket line and
performed the work that normally would be performed by
the masons who had refused to cross the picket lines.
Thereafter, the Respondent, by its business agent,
Gennero Laurito, preferred charges against Gelmini,
Daigle, and Bordallo for crossing the picket lines and for
"selling out our trade." 4 As a result of a hearing on these
charges, Respondent imposed fines of $250 each on
Gelmini, Daigle, and Bordallo. Each has paid his fine to
the Respondent.
There appears to have been a rather close relationship
between Barr Floors and Barr Concrete. Thus, they shared
the rent of a suite consisting of two offices, and the expense
of an office secretary and telephones. Barr Floors rented
equipment from Barr Concrete, although Bordallo was
vague as to the amount of rentals received by Barr
Concrete. Also, Barr Floors employed laborers and masons
who on other occasions had worked for Barr Concrete.
Gehnini uses a truck owned by Barr Concrete for his
personal as well as business use, and Bordallo, in turn, uses
a truck owned by Barr Floors, also in his personal and
business use.5 However, it is uncontradicted that neither
Gelmini nor Daigle has any financial interest in Barr
Concrete, although Gelmini is vice president of Barr
Concrete. Neither does Bordallo nor Daigle have any
financial interest in Barr Floors, although Daigle is listed
as secretary and a director of Barr Floors.
In its brief, the Respondent does not dispute the
evidence that Bordallo had the authority to hire and fire
laborers for Barr Floors and responsibly to direct them,
while Daigle had the authority to hire and fire and
responsibly direct masons.
s All dates referred to herein occurred during 1973
4 The term "selling out our trade" is ambiguous The Respondent did not
offer any definition at the hearing.
B. Conclusions
821
1. As to Bordallo and Daigle
As indicated, it is not disputed that Bordallo and Daigle
were supervisors for Barr Floors, within the meaning of the
Act. Rather, Respondent contends that they were proprie-
tors of the dual operations of Barr Floors and Barr
Concrete. Respondent argues: "while legally all the
elements of a true partnership may be absent, the facts
indicate a joint venture involving the three men under
which they shared in all the available work and in the
proceeds after expenses." 6
The record does not establish, as Respondent concedes,
that there was a partnership between the parties. Neither
does it support the contention that there was a joint
venture among them. Thus, Bordallo was the sole owner of
the stock of Barr Concrete, while Gelmini owned all the
stock in Barr Floors. While, as a matter of financial
savings, both corporations shared the same office and the
same office expenses, there is no evidence in the record
that either Bordallo or Gelmini were to share in the net
proceeds of each of the businesses. Rather, each was on a
salary and expense reimbursement basis while working for
the other. While this arrangement may raise some
suspicion as to a cooperative effort, it is merely speculative
and cannot form the basis of a finding of a joint venture.
Nor is there any evidence that Daigle had any proprietary
interest in either corporation or was to share in the profits.
The fact that he was designated as secretary and director of
Barr Floors is of no consequence. In sum , Barr Floors and
Barr Concrete were separate entities, separately controlled
and not shown to have a common labor relations policy.
Cf. Peter Kiewit Sons' Co., et al., 206 NLRB No. 66.
As indicated, the supervisory status of Bordallo and
Daigle is not in dispute. It is settled Board law that the
fining of a supervisor for crossing a picket line is violative
of Section 8(b)(1)(B). The rationale is set forth in Local
Union No. 2150, IBEW (Wisconsin Electric Power Compa-
ny), 192 NLRB 77 at 78:
... Respondent violated Section 8(b)(1)(B) when it
fined the supervisors for performing work which the
Employer had directed them to perform. Here, the
supervisors, by doing struck work, as directed by the
Employer, were furthering the interests-of the Employ-
er in a dispute not between the Union and the
supervisor-union members but between the Employer
and the Union. During the strike of the Union, the
Employer clearly considered its supervisors among
those it could depend on during this period. The
Union's fining of the supervisors who were acting in the
Employer's interest in performing the struck work
severely jeopardized the relationship between the
Employer and its supervisors.
s * * s s
Of course, our decision is not meant to imply that a
5 The reason for the interchange appears to be the different capacities of
the trucks.
6 Resp br pp. 3-4.
822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union is completely precluded from disciplining super-
visor-union members. It only means that when the
underlying dispute is between the employer and the
union rather than between the union and the supervi-
sor, then the union is precluded in taking disciplinary
action by Section 8(b)(1)(B). The intent is to prevent
the supervisor from being placed in a position where he
must decide either to support his employer and thereby
risk internal union discipline or support the union and
thereby jeopardize his position with the employer.
This policy has been consistently followed in all cases
involving union interference with an employer's control
over its own representatives. See, e.g., IBEW, Local 134
(Illinois Bell Telephone Company), 192 NLRB 85, reversed
487 F.2d 1143 (C.A.D.C., 1973); New Mexico District
Council of Carpenters (A. S. Horner, Inc.), 177 NLRB 500,
enfd. 454 F.2d 1116 (C.A. 10, 1972); San Francisco-
Oakland Mailers' Union 18 (Northwest Publications, Inc.),
172 NLRB 2173; Sheet Metal Workers, Local 361 (Lang-
ston & Co., Inc.), 195 NLRB 355, 356, enfd. 477 F.2d 67
(C.A. 5, 1973); New York Typographical Union No. 6,
International Typographical Union, AFL-CIO (Daily Racing
Form), 206 NLRB No. 83.7 The fact that there had been no
prior collective-bargaining history between the Respondent
and Barr Floors does not affect the application of the rule.
New Mexico District Council of Carpenters (A. S. Horner,
Inc.), supra; New York Typographical Union No. 6,
International Typographical Union, AFL-CIO (Daily Racing
Form), supra.
Accordingly, I find and conclude that by fining Bordallo
and Daigle for crossing the picket line the Respondent
violated Section 8(b)(1)(B) of the Act.
1045 (1954); Industrial Fabricating Inc., 119 NLRB 162,
169 (1957), enfd. 272 F.2d 184 (C.A. 6, 1959); Ogle
Protection Service, Inc. and James L. Ogle, 149 NLRB 545,
546 (1964), fn. 1, modified in other respects 375 F.2d 497
(C.A. 6, 1967).
On principle, there is no more reason for permitting an
individual to avoid his obligation to the union of which he
is a member by organizing a corporation which he
completely owns, than there is to permit a person to avoid
the effect of his unfair labor practices by organizing a
corporation to carry on his business . As Gelmini was the
sole owner of Barr Floors, the Respondent's "conduct
directed to the employer himself rather than to his
supervisor[s ] would not tend to subvert any loyalty
between the Company and his supervisors" (Local 146,
Sheet Metal Workers International Association, AFL-CIO,
et al. (Robert Dale Jones), 203 NLRB No. 168). According-
ly, I find and conclude that the Respondent did not violate
Section 8(b)(1)(B) of the Act by fining Gelmini, and the
complaint should be dismissed in this regard.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section IV,
above, occurring in connection with the operations of the
Employer described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States, and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof.
VI. THE REMEDY
2. As to Gelmini
The General Counsel and the Charging Party contend
that the foregoing considerations apply as well to the
Respondent's action in fining Gelmini. They argue that the
Union's dispute was with Barr Floors, a corporation, while
Gelmini was an employee-supervisor of the corporation.
The short answer to this contention is the fact that when
Gelmini crossed the picket line, conduct for which he was
fined by the Respondent, he was operating as an individual
entrepreneur. Barr Floors, a corporation, did not exist at
that time. As previously noted, Gelmini crossed the picket
line between March 20 and 26, whereas the incorporation
papers for Barr Floors were not filed until March 29. But
even assuming, arguendo, that Barr Floors as a corporation
had been in existence at the time that Gelmini crossed the
picket line, the attempt to draw a distinction between
Gelmini as the sole stockholder of the corporation and the
corporation, itself, must fail. To interpose the corporate
veil between Barr Floors and Gelmini would elevate form
over substance. Where an individual is the sole owner of a
corporation, the Board has consistently ignored the
corporate fiction and has considered one as the alter ego of
the other. Diaper Jean Manufacturing Company, 109 NLRB
Having found that the Respondent has engaged in unfair
labor practices within the meaning of Section 8(b)(1)(B) of
the Act, I shall recommend that it cease and desist
therefrom and that it take certain affirmative action
designed to effectuate the policies of the Act.
Having found that the Respondent illegally fined Arthur
Bordallo and Leo P. Daigle, I shall recommend that the
Respondent be ordered to rescind its action in fining them
and to repay them for the fines which they had paid to the
Respondent, with interest at the rate of 6 percent per
annum.
CONCLUSIONS OF LAW
1. Barr Floors is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Bricklayers, Masons and Plasterers ' Union, Local
No. 1, is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Respondent has violated Section 8(b)(1)(B) of
the Act by fining Arthur Bordallo and Leo P. Daigle.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
7 As noted above, there is a conflict between the courts of appeal with Supreme Court has not reversed" (Insurance Agents' Inlernanonal Union,
regard to the foregoing policy. However, the Board has consistently AFL-CIO, 119 NLRB 768, 773) See, also, Novak Logging Company, 119
followed that policy, and as an Administrative Law Judge of the Board , I NLRB 1573, 1575-1576; and Scherrer and Davisson Logging Company, 119am required "to apply established Board precedent which the Board or the NLRB 1587, 1589
BRICKLAYERS LOCAL NO. 1 823
5. The Respondent has not violated Section 8(b)(1)(B)
of the Act by fining William Gelmim.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDERS
Bricklayers, Masons and Plasterers' Union, Local No. 1,
its officers, agents, and representatives, shall:
1. Cease and desist from:
(a) Restraining or coercing Barr Floors, Inc., in its
selection of representatives for the purposes of collective
bargaining or the adjustment of grievances.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Rescind the fines which it levied against Arthur
Bordallo and Leo P. Daigle and expunge from its records
all references thereto.
(b) Reimburse said Arthur Bordallo and Leo P. Daigle
for any and all sums paid by each of them pursuant to the
fines referred to in the preceding paragraph, together with
interest thereon at the rate of 6 percent per annum, and
advise each of them in writing that the fines have been
rescinded and that the records thereof have been ex-
punged.
(c) Post at its business offices and union halls in
Hartford, Connecticut, copies of the attached notice
marked "Appendix."9 Copies of the notice on forms
provided by the Regional Director for Region 1, after
being duly signed by the Respondent, shall be posted by
the Respondent 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 by the Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 1, in writing,
within 20 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
It is further ordered that insofar as the complaint alleges
that the Respondent violated the Act by fining William
Gelmini, the complaint be and it is hereby dismissed.
8 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, recommendations and recommended Order herein
shall, as provided in Section 102.48 of the Rules and Regulations, be
adopted by the Board and constitute its findings, conclusions, and Order
and all objections thereto shall be deemed waived for all purposes
9 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board "
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT restrain or coerce Barr Floors, Inc., in
its selection of representatives for the purposes of
collective bargaining or the adjustment of grievances.
WE WILL rescind the fines which we levied against
Arthur Bordallo and Leo P. Daigle and expunge from
our records all references thereto.
WE WILL reimburse said Arthur Bordallo and Leo P.
Daigle for any and all sums paid by each of them
pursuant to the fines levied against them, together with
interest thereon at the rate of 6 percent per annum, and
we will advise each of them in writing that the fines had
been rescinded and that the records thereof have been
expunged.
BRICK LAYERERS, MASONS
AND PLASTERERS' UNION,
LOCAL No. 1
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
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.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, 7th
Floor, Bulfinch Building, 15 New Chardon Street, Boston,
Massachusetts 02114, Telephone 617-223-3300.