Butler Brothers

National Labor Relations Board - Board Decisions

Jun 10, 1942

41 N.L.R.B. 843 (N.L.R.B. 1942)

In the Matter of BUTLER BROTHERS , A CORPORATION AND ALEx WASLEFF,
DOING BUSINESS AS ALEX WASLEFF BUILDING MAINTENANCE Co. and
ELEVATOR OPERATORS AND STARTERS UNION LOCAL No. 66, AFFILIATED
WITH THE AMERICAN FEDERATION OF LABOR
Case No. C-2005.Decided June 10, 194
Jurisdiction : building maintenance operations of a general merchandise whole-
salei
Unfair Labor Practices
Interference, Restraint, and Coel eion: anti-union statements, threat of loss of
employment, interrogation concerning union afilliation ; contract letting out
maintenance work motivated by an effort to conceal violations of the Act by an
apparent shift of employer status held a violation of the Act.
Discrimination: transfers by "contractor" of employees because of their union
activity; loss of seniority rights, rights to sick benefits, paid vacations, and the
privilege of participating in group life ands hospitalization plans, upon transfer
of employees to "contractor's" payroll as a result of an illegal contract.
Remedial Orders : reinstatement and back pay awarded.
Definitions : Company which by contract let out its maintenance work to an
individual but continued to exercise control over the maintenance employees
and dominated the labor policies of the "contractor" held to have assumed
jointly with the "contractor" the role of employer of such emplyees within
the meaning of the Act; further, contract was ineffective to break the employer
relationship since it was executed for an illegal purpose.
Mr. Charles F. McErlean. for the Board.
Scott, Macleish d Falk, by Mr. Leland K. Neeves, of Chicago, Ill.,
for Butler.
Hof t cC Shapiro, by Mr. Morris R. Haft, of Chicago, Ill., for AVasleff.
111r. Manley K. Hunt, of Chicago, Ill., for Local 66.
Mr. Ben Law, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon amended charges duly filed by Elevator Operators and Starters
Union, Local No. 66, affiliated with the American Federation of Labor;
herein called Local 66, the National Labor Relations Board, herein
called the Board, by the Regional Director for the Thirteenth Region
(Chicago, Illinois), issued its amended complaint,' dated April 30,
' The original complaint was issued on Apiml 15, 1941.
41 N. L. It. B., No. 155.
843
844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1941, against the respondents, Butler Brothers, Chicago, Illinois,
herein called Butler, and Alex Wasleff, an individual doing business
as Alex Wasleff Building Maintenance Co., Chicago, Illinois, herein
called Wasleff, alleging that said respondents had engaged in and were
engaging in unfair labor practices affecting commerce, within the
meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the
National Labor Relations Act, 49 Stat. 449, herein called the Act.
Copies of the amended complaint, accompanied by notice of hear-
ing thereon, were duly served upon the respondents and Local 66.
Concerning the unfair labor practices, the amended complaint, as
further amended at the hearing, alleged in substance that the respond-
ents Butler and Wasleff: (1) jointly and severally transferred or dis-
charged eight named employees on certain dates,2 and have at all
times since refused to reemploy said individuals, because they and
each of them joined and assisted Federal Labor Union Number 20475,
affiliated with the American Federation of Labor, herein called Local
20475, or Local 66, and engaged in concerted activities with other
employees for the purposes of collective bargaining and other mutual
aid and protection, thus discriminating with regard to their hire and
tenure of employment; (2) jointly and severally, transferred on cer-
tain dates three named employees 3 from their regular employment in
a building leased by Butler at 111 North Canal Street, Chicago, Illinois,
herein called Building B, to employment in other buildings in the city
of Chicago, and at all times thereafter refused to reinstate said in-
dividuals to their,former employment, because they and each of them
joined and assisted Local 20475 or Local 66 and engaged in concerted
activities for the purposes of collective bargaining and other mutual
aid and protection; (3) entered into a contract, dated June 6, 1940,
for the purpose of combating, interfering with, restraining, and co-
ercing the self-organization of their employees; and (4) by the fore-
going acts and by making inquiries of their employees concerning
their membership in and activities on behalf of Local 20475 and Local
66, by threatening them with loss of employment because of their
membership in the said unions, by prohibiting on their premises dis-
cussion about labor organizations while allowing it on other subjects
unrelated to the work, by making disparaging remarks to the em-
ployees about Local 20475 and Local 66, and by informing their em-
ployees that they would not recognize the said unions, interfered with,
2 Robert Healy , on or about August 5 , 1940; Henry Reith, on or about August 24, 1940,
Walter Ledford , on or about August 24 , 1940 ; Leo Fitzpatrick , on or about August 26,
1940; Stanley Pukis, on or about August 31, 1940 ; Nick Zeman , on or about August 31,
1940 ; James Ward , on or about September 5, 1940 ; and Frank H. Harrity , on or about
October 9, 1940.
2 Paul Warzecha , on or about September 18, 1940; Lorenz Malavasi , on or about September
11, 1940; and Peter Shimkus, on or about January 27, 1941.
BUTLER BROTHERS AND ALEX WASLEFF 845
restrained, and coerced their, employees in the exercise of the rights
guaranteed in Section 7 of the Act.
On May 2, 1941, Butler filed its answer to the amended complaint,
denying that since July ' 1, 1940, it has been the employer, within
the meaning of the Act, of the employees named in the amended
complaint and denying that it had engaged in any unfair labor prac-
tices. On May 7, 1941, Wasleff filed his answer to the amended-com-
plaint, denying that he had engaged in the alleged unfair labor
practices, and further denying that his operations are in commerce
or are regulated in any respect by the provisions of the Act. Both
respondents alleged in their answers that the employees named in
the amended complaint were the employees of Wasleff under and by
virtue of the afore-mentioned contract dated June 6, 1940.
Pursuant to notice, a hearing was held at Chicago, Illinois, from
May 8 to 17, 1941, before Thomas S. Wilson, the Trial Examiner duly
designated by the Chief Trial Examiner. The Board, Butler, Wasleff,
and Local 66 were represented by counsel - and participated in the
hearing. Full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing on the issues was afforded
all parties. At the opening of the hearing the Board moved further
to amend the complaint to allege that Butler and Wasleff entered int&
the contract dated June 6, 1940, for the purpose of interfering with
the self-organization of their employees. Wasleff objected to this
motion, but Butler did not. The Trial Examiner granted the motion.
At the close of the hearing, Wasleff moved to dismiss the complaint.
The Trial Examiner reserved ruling on this motion, which was there-
after denied in his Intermediate Report. The Trial Examiner granted,
at the close of the hearing, a motion by counsel for the Board to con-
form the complaint to the proof with respect to such matters- as
dates and the spelling of names. The Board has reviewed these
and other rulings of the Trial Examiner on motions and on objections
to the admission of evidence and finds that no prejudicial errors were
committed. The rulings are hereby affirmed. Subsequent to the
hearing, briefs were submitted to the Trial Examiner by Butler and
Wasleff.
The Trial Examiner thereafter filed his Intermediate Report, dated
November 8, 1941, copies of which were duly served upon the parties.
He found that Butler and Wasleff had engaged in and were engaging
in unfair labor practices affecting commerce, within the meaning of
Section 8 (1) and (3) and Section 2 (6) and" (7) of the Act, and
recommended that they cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act. Ex-
ceptions to the, Intermediate Report were filed separately by Butler
and Wasleff on December 22, 1941. On the same day, Butler filed
846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a brief in support of its exceptions . Local 66 filed a brief on January
12, 1941.
Pursuant to notice , a hearing was duly held before the Board in
Washington , D. C., on February 5, 1942, for the purpose of oral argu-
ment. Butler and Wasleff and Local 66 were represented by counsel
and participated in the argument.
The Board has considered Butler's and Wasleff's exceptions and
the briefs . Insofar as the exceptions are inconsistent with the findings,
conclusions , and order set forth below, the Board finds them to be
without merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENTS
Butler Brothers , an Illinois corporation having its principal office
and place of business in Chicago, Illinois , is engaged in the whole-
saling of general merchandise . It sells to retail merchants , through
salesmen and catalogs , merchandise from its seven warehouses located
at Jersey City, New Jersey; Chicago , Illinois ; St. Louis, Missouri;
Baltimore , Maryland ; Minneapolis , Minnesota ; Dallas, Texas; and
San Francisco , California . In a booklet entitled "Our Company,"
which it has distributed among its employees, Butler describes its
customers as follows :
Butler Brothers ' customers , numbering over 100,000 independent
retail stores, are located in every city and town in the United States
and many foreign countries.
Butler's total sales in 1939 approximated $71,147,000. During, the
same year , in connection with its "Chicago House" alone, Butler pur-
chased approximately $7,500,000 worth of merchandise, of which about
75 percent was received from points outside Illinois, and sold ap-
proximately $16,020,000 worth of merchandise, of which about 67
percent represented sales to customers outside Illinois. Butler admits
that it is engaged in commerce within the meaning of the Act.
In Chicago, Butler operates twin 15-story buildings, known as
Buildings A and B. In Building A, which it owns, Butler has its
corporate offices, as well as its Chicago store and warehouse. Building
B is located across the street from Building A and has been leased by
Butler since about 1920. In a part of Building B, Butler prints adver-
tising circulars for distribution to its customers in all sections of the
United States and operates an office and lunch room. The remainder
of Building B is subleased by Butler to over 40 merchandising concerns
for use-as offices and warehouses . During the year 1940, tenants of
BUTLER BROTHERS AND ALEX WASLEFF - 847
Building B, other than the U. S. Rubber Company which occupies
approximately half of the building, received in their warehouses in
Building B, from States other than Illinois, merchandise valued at
more than $4,000,000 and shipped therefrom to points outside Illinois
merchandise valued at more than $2,500,000.
The U. S. Rubber Company maintains exclusive control over the
space which it occupies in Building B and provides its own janitor,
watchman, and elevator services. Butler provides such services, as
more fully discussed below, for the remainder of the building. This
proceeding is concerned with the approximately 20 janitors, watch-
men, and elevator operators, herein referred to collectively as the
maintenance employees, who service that portion of Building B not
occupied by the U. S. Rubber Company.
The elevator operators among the maintenance employees operate
three passenger elevators and nine freight elevators. The passenger
elevators carry employees of the various tenants, other than the U. S.
Rubber Company, to and from their offices and warehouses in the
building. The freight elevators carry the freight of such tenants to
and from their warehouses in the building. Frequently, the elevator
operators not only operate elevators carrying merchandise but, in
addition, load such merchandise on or off the elevator. The leases of
one or two of the tenants provide that their merchandise is to be han-
dled by the elevator operators supplied by Butler. Elevator operators
frequently receive bills of lading from the shipping companies and
deliver such bills of lading to the tenants receiving the goods. The
watchmen among the maintenance employees guard the building and
its contents. The janitors clean and maintain the common lobbies,
lavatories, and hallways.4
Alex Wasleff, an individual doing business as Alex Wasleff Building
Maintenance Co., is engaged' in the business of performing janitor,
watchman, doorman, elevator, and widow cleaning services in numer-
ous buildings owned or operated by various concerns in Chicago. Pur-
suant to a contract between Butler and Wasleff, dated June 6, 1940,
which by its terms became effective July 1, 1940, Wasleff furnishes to
Butler janitor, watchman, and elevator service in Butler's Building B,
hereinabove described.
4Although Butler admits that in its business as a whole it is engaged in interstate com-
merce and also that the tenants to whom it leases space in Building B are also engaged in
interstate commerce, both Butler and Wasleff contend that the operations of the maintenance
employees in servicing Building B are not in and do not affect commerce within the meaning
of the Act and that the Board therefore does not have jurisdiction in the instant case. The
contention lacks merit It is clear that the maintenance employees in Building B protect
and maintain property used in carrying on interstate commerce ; that they handle merchan-
dise in either the first or last step in interstate transportation ; and that a labor dispute
involving them would affect commerce within the meaning of the Act. Cf. Fleming V.
Arsenal Building Corporation et al, 125 F. ( 2d) 278 (C C. A. 2) ; Fleming v. A. B.
Kirschbaum Co., 124 F. (2d) 567, aff'd by the United States Supreme Court on June 1, 1942.
848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE ORGANIZATIONS INVOLVED
Federal Labor Union Number 20475, affiliated with the American
Federation of Labor, is a labor organization which, prior to August
1940, admitted to membership the maintenance employees in
Building B. -
Elevator Operators and Starters Union Local No. 66, affiliated with
the American Federation of Labor, is a labor organization which
admits to membership the maintenance employees in Building B. In
August 1940, the union membership of certain of the maintenance em-
ployees in Building B was transferred from Local 20475 to Local 66.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion prior to July 1, 1940
In March or April 1939, a group of the maintenance employees in
Building B applied for membership in Local 66. On April 6, 1939,
a representative of Local 66, Matthew Taylor, wrote to J. A. Powers,
Butler's director of operations and personnel, claiming that Local 66
represented a majority of the maintenance employees and requesting
the negotiation of a contract. A few days thereafter, Taylor con-
ferred with Powers and M. O. Harlan, who at that time was in charge
of the mechanical operation of Buildings A and B. Taylor indicated
in that interview that he desired to secure wage increases for the main-
tenance employees, and Butler's wage schedules for those employees
were generally discussed. Taylor departed, saying that he would call
upon Powers at a later time.
Among the first of the maintenance employees to apply for mem-
bership in Local 66 were James H.- Ward, an elevator operator, and
Walter Ledford, a watchman and elevator operator. Ward was elected
shop steward for Local 66 in Building B, but declined the office. Led-
ford was thereupon elected to that position and the applicants there-
after paid initiation fees to him. Ward testified that in April or May
1939, shortly after the maintenance employees had commenced their
Organizational efforts, Harlan said to him :
If I were you, Ward, I don't think I would fool with these or-
ganizations, these unions. They will only get you into trouble ....
they won't do you any good . . . . They want dues from you and
force you to join . . . . They charge you big dues and they
promise you a lot of money, but they don't give it to you ... .
We pay more than the scale, more than the union scale . . . . Of
course, you know that we could let this building out to a mainte-
nance company and we wouldn't have to bother with any unions
at all . . . . If we would happen to do that, probably some of you
BUTLER BROTHERS AND ALEX WASLEFF 849
boys would lost your jobs and some of you have been here a long
time and I would hate to see you lose your jobs.
On May 17,1939, Harlan sent a note to Ledford telling him to report
to Harlan when he went off duty on the following day. Ledford ac-
cordingly went to see Harlan. Ledford's version of the ensuing con-
versation is as follows : Harlan asked him, "Walter, I understand you
have been taking a mighty active part in the union .... You have been
made shop steward haven't you?" When Ledford replied in the affirma-
tive, Harlan continued, "Well, we won't stand for any union in Build-
ing 'B'. . . . I would hate to see any of you fellows over there lose your
jobs on account of the Union...." Harlan concluded by warning him
not to talk about unions or to collect dues on Butler's premises. Led-
ford further testified that, about a month later, Harlan remarked to
him that Local 66 was not asking for wage increases for the main-
tenance employees and that they would not get enough out of their
union affiliation to pay their dues.
In June or July 1939 , the group of maintenance employees who had
been interested in joining Local 66 became involved in a misunder-
standing with the officials of Local 66 and decided not to complete
their affiliation with that union. Ledford returned to the various em-
ployees the fees he had collected from them. Sometime in the fall of
1939, Butler decided to equalize the wage rates of employees doing
similar work in Buildings A and B. According to the testimony, of
Robert Healy, an elevator operator in Building B, Harlan informed
him at that time that Butler was going to raise the wages of all the
elevator operators, including Healy, to $120 per month and added, "We
don't want any of you boys joining any union or having anything to
do with unions; the company will not stand for it."
During the late fall of 1939, the maintenance employees in Building
B began to join Local 20475. Ledford, who had previously been a
member of that union and who had retained his membership, served
as shop steward. By-May 1940 all but one of the maintenance em-
ployees had joined Local 20475.
On March 14, 1940, Harlan again sent for Ledford. Ledford testi-
fied as follows concerning the conversation between Harlan and him-
self on that occasion : Harlan opened the interview by saying, "Walter,
I told you when this other union started that-I wouldn't stand for it.
You have gone now and got into this other union and been made shop
steward in that.... It may get your job.... I don't even want to
hear you talking about a union or collecting dues on Butler's premises."
Thereupon Ledford protested that Harlan was being too severe, and
Harlan, after questioning him as to how much money he received for
acting as shop steward, told him that he could continue collecting dues
unless he heard to the contrary from Harlan. Ledford then told Har-
463892-42-vol. 41-54
850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ian what Local 20475 desired for the employees with respect to wages
and hours, and Harlan replied, "We will let it [the maintenance work
in Building B] out to an agency before we will, do that.... Of
course, some of these old fellows over here will lose thdir jobs."
Harlan denied making any of the anti-union statements attributed to
him by Ward, Healy, and Ledford or that he had any conversations
concerning unions with any of these three employees in 1939. With
respect to his conversation with Ledford on March 14, 1940, in which
he warned Ledford against talking about a union or collecting dues on
Butler's premises and threatened that Butler would "let out" the main-
tenance work before it would comply with the desires of the Union
respecting wages and hours, Harlan testified that, because of reports
he had received that Ledford was collecting dues for a union in the
elevators, he called him in and advised him that unnecessary riding of
the elevators and talking to the operators was a violation of Butler's
safety rules; that Ledford explained that he was shop steward for a
union, but agreed to stop riding the elevators. Harlan denied having
at any time uttered threats to Ward or Ledford that Butler might "let
out" the maintenance work in Building B. However, as found herein-
after, on March 14, 1940, Harlan called Wasleff to his office and asked
him to submit a bid on the maintenance work in Building B. The Trial
Examiner found that Harlan was an unreliable witness and credited
the testimony of Ward, Healy, and Ledford. There are, moreover,
'marked inconsistencies in the testimony of Harlan.5 We consequently
find, as did the Trial Examiner, that Harlan made the statements at-
tributed to him by Ward, Healy, and Ledford.
Butler contends that it is not responsible for any anti-union state-
ments made by Harlan, as he was not a policy-making executive of
Butler and because his statements to Ward, Healy, and Ledford were
in conflict with Butler's policy as to labor relations, expressed in pub-
lished pamphlets distributed by it to the employees, and were contrary
to its instructions to executives. Tl'iis contention is without merit in
view of the fact that Harlan, at all times herein material, was Butler's
executive in charge of the employment, direction, and supervision of
the maintenance employees in Building B. His acts are consequently
binding upon Butler.' We find, as did the Trial Examiner, that, by
, Thus, although as stated Harlan admitted having had reports in the early spring of
1940 that Ledford was collecting dues for the Union and called him in to admonish him against
riding on the elevators for this purpose, he testified at another point that he had no knowl-
edge of any union activity in Building B from the spring of 1939 until May 1910. Ledford
testified ' that in March 1940 , Harlan remarked to him that he (IIailan ) did not like unions
because of some experiences which his wife's family had with them some years previously
in Florida . On direct examination Harlan denied this testimony , stating that his wife's
family lived in Alabama , but on cross-examination he admitted that they had lived in Florida
6 years before.
e Cf. H. J. Heinz Company v National Labor Relations Board , 311 U. S 514 , aff'g H J.
Heinz Company V. National Labor Relations Board, 110 F. ( 2d) 843 ( C. C. A. 6) enf.
BUTLER BROTHERS AND ALEX WASLEFF 851
the foregoing statements of Harlan, Butler interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
B. Discrimination 'with regard to hire and tenure of,employment and
other acts of interference, restraint, and coercion
1. The contract between Butler and- Wasleff
On March 14, 1940, as is apparent from. correspondence from Wasleff
to Butler, the same day upon which Harlan stated to Ledford that
Butler would "let out" the maintenance work rather than comply with
certain desires of Local 20475 as outlined to him by Ledford, Harlan
called Wasleff to his office and requested him to submit a bid upon the
maintenance work in Building B. On March 15, 1940, Wasleff wrote
Harlan a letter in which he proposed to render janitor, watchman, and
elevator operating service in Building B "as per [Harlan's] present
specifications" at "present pay-roll cost only." Harlan thereupon
checked Wasleff's references and credit and, as he testified, "explained
the proposition," to his superior, Powers. About May 1, 1940, Powers
directed Harlan to accept Wasleff's bid, and Harlan proceeded to pre-
pare with Stanley Sando, Wasleff's chief assistant and superintendent
of the Alex Wasleff Building Maintenance Co., detailed specifications
to be embodied in the prospective contract.
As previously stated, by May 1940 all but one of the maintenance,
employees had become members of Local 20475. Sometime during that
month, Local 20475 proffered to Butler a proposed contract covering
the maintenance employees. Powers, to whom the proposed contract
was submitted, called to his office Harry Hagmann, then president of
Local 20475, and told him that Butler was "considering letting out this
maintenance work to an outside concern" for reasons of economy and
efficiency. Hagmann replied that, in that event, Powers was to dis-
regard the proposed contract and that Local 20475 would submit it
to the maintenance company which was expected to take over the
work. Powers did not during the conversation identify Wasleff as
the particular "outside concern" with which Butler was at that time
negotiating a contract. "
About the middle of June 1940, Butler and Wasleff executed a con-
tract, dated June 6, 1940, and effective July 1, 1940. The contract
provided that, for a certain monthly sum to be paid by Butler, Wasleff
Matter of H. J. Heinz Company and Canning and Pickle Workers Local Union No. S2.5,
affiliated with Amalgamated Meat Cutters and Butcher Workmen of North America, American
Federation of Labor, 10 N. L R. B. 963; International Association of Machinists, etc. V
National Labor Relations Board, 311 U. S. 72, reh. den. December 9, 1940, aff'g 110 F. (2d) 29
(App. D C.), enf'g Matter of The derrick Corporation and International Union, United
Automobile Workers of America, Local No 459, 8 N. L R B 621.
852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would furnish-to Butler in Building B elevator, wattchman, and janitor
service, in accordance with certain detailed and comprehensive work
schedules, for the period from July 1, 1940, to December 31, 1941.
The contract was, by its terms, terminable by either party on 60 days'
notice. More specifically with respect to the obligations of Wasleff, the
contract required Wasleff to maintain adequate workmen's compensa-
tion, fidelity, and public liability insurance covering the employees and
maintenance operations, to indemnify Butler against liability arising
from the acts or omissions of any of Wasleff's servants or agents in
the building and, with the exception of tissue, towels, and soap for
the washrooms, and uniforms for the elevator operators, all of which
were to be supplied by Butler, to furnish all materials required in the
rendition of maintenance service. In addition, Wasleff was obligated
to employ for the first 30 days of the contract, at the wage rates paid
them by Butler, all the maintenance employees who were in Butler's
employ at the time the contract became effective. Wasleff's monthly
compensation under the contract amounted-to Butler's monthly pay-
roll costs for the maintenance work as of the time of execution of the
contract, plus a small additional amount to cover the wages of persons
hired temporarily to replace regular maintenance employees on vaca-
tion after July 1,1940.'
The schedules in the contract, setting forth specifications in accord-
ance with which Wasleff was to furnish maintenance service, prescribe
in minute detail the tasks to be performed by the maintenance em-
ployees at any given moment of the day or night and also, in most
instances, the number of such employees who must be on duty at
certain hours and in certain parts of the building. Butler reserved
the right, without paying additional compensation to Wasleff, to
change the schedules for watchmen and elevator operators, provided
that such changes did not increase the total number of man-hours by
more than 10 percent, and to change the specifications for janitor
service and require "incidental extra work" of the janitors not involv-
ing overtime.
Clause 11 of the contract recited that Wasleff was "an independent
contractor engaged in an independently established business . . . and
that neither second party [Wasleff] nor any of its employees, whether
engaged in rendering any of the services contemplated under this
contract or otherwise, shall under any circumstances whatsoever be
considered to be employees of first party [Butler]."
It 'is undisputed that, in actual practice after the effective date of
the contract, Butler retained and exercised a considerable degree of
'Pursuant to an oral understanding reached during negotiation of the contract , regular
maintenance employees in Building B who had not , prior to July 1, 1940 , taken their paid
vacations for the year, were allowed to take such vacations during August and September,
although Wasleff did not normally grant vacations with pay to his employees.
BUTLER BROTHERS AND ALEX WASLEFF 853
supervision and control over the maintenance employees in Building B.
At least until November 1940, Butler continued to issue directly to
the maintenance employees written and oral instructions pertaining
to their duties . In November 1940 Harlan began to address his
memoranda of instructions to Sando, Wasleff's superintendent. Fre-
quently, however , as appears , from the undisputed testimony, these
memoranda were handed directly to the maintenance employees before
they were submitted , to Sando. The watchmen continued after July
1, 1940 , to be governed in the performance of their work by Butler's,
20-page book of instructions.
The testimony of Sando and Harlan clearly establishes . the fact
that, subsequent to the effective date of the contract , Butler partici-
pated in decisions as to the hire and tenure of employment of the
maintenance employees . Early in July 1940, Wasleff, Sando, and
Esposito , a foreman for Wasleff , jointly decided to assign one Nick
Mastro to Building B as a working foreman. A few days later, Har-
lan complained to Sando about Mastro's appearance and ability. As
Sando testified in this connection , Harlan "seemed very much dis-
pleased that this man was operating there, that we had a man like
that on the passenger cars." Sando thereafter removed Mastro from
Building B and replaced him with one Brandt after consulting
Harlan. About July 15, 1940, Wasleff advertised in a Chicago news-
paper for elevator operators - and watchmen . From about 100 persons
responding to the advertisement , Sando selected 8 or 9 whom he
considered suitable. He then presented about 6 of the selected group
to Harlan and, during August and September , hired at least 3 of them
after Harlan had passed upon them favorably . Sando testified that
he thereafter ceased referring applicants for employment to Harlan
because "after that, I thought I knew the type of a man that Mr.
Harlan liked to see well enough so that I never consulted him further."
Sometime during the summer of 1940, Wasleff hired in Building B
one Lamperski , the father - in-law of J. E. Marshall , Harlan's assist-
ant s after Marshall had recommended Lamperski to Sando. In
October 1940 , as found hereinafter , certain of the maintenance em-
ployees went on strike and were reinstated by Wasleff after Powers
and R . N. Henry, Butler's executives , had interceded with him on
behalf of the strikers.
Butler also made it clear to the maintenance employees that , despite
the contract with Wasleff, they were still subject primarily to the
control and direction of Butler. Thus , 3 days after the contract went
8 Prior to the effective date of the contract , Marshall had served part time as an
elevator starter in Building B and had assisted Harlan in the supervision of the mainte-
nance employees . After July 1, 1940, he was retained on Butler 's pay roll and continued
to assist Harlan inspecting the work of the maintenance employees and reporting faulty
work and infractions of rules to Harlan or Sando.
854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
into effect, Harlan instructed the watchmen in writing that "in case
of trouble, etc.," they were to continue to "contact" either himself
or his assistant, Marshall. As Henry Semmler, a janitor and elevator
operator testified, about the middle of July 1940 Semmler asked Har-
lan which of the orders given him by representatives of Butler and
Wasleff should take precedence and Harlan replied, "Any orders I
give you in the matter of painting, cleaning, washing walls, or any-
thing like that should be done first." As Semmler further testified,
he and Harlan then "got talking about the change of contractors,
where we were let out to the Wasleff company" and Harlan stated
in this connection, "that is just like a man out on contract. My orders
are to be obeyed first. I am still the boss." Also in July 1940 Harlan
told Ledford that he, Harlan, was "still the boss" and that Ledford
would continue to take orders from him.' On August 19, 1940, Harlan
issued written instructions to the watchmen that Ledford, who had
been transferred from Building B 2 days previously, was not to be
admitted to the building thereafter after working hours.
That labor relations policies continued to be formulated by Butler
is apparent from the credible testimony of maintenance employee
Henry Reith. Thus, as found hereinafter, about August 20, Sando
asked Reith, a new employee whom Wasleff had hired after Harlan
had approved him, if he had seen any "dressed up fellows" around
the building, remarking at the same time, "you know they want a
union around here and we don't want that, and furthermore, if there
is anyone around here I want you to report to me or Mr. Harlan right
away."
The uncontroverted evidence clearly indicates that the maintenance
employees recognized the control retained over them by Butler. The
watchmen made frequent reports in the course of their work directly
to Harlan. All the maintenance employees obeyed the instructions
given them by Harlan and his assistant, Marshall. On September
12, 1940, Local 66, to which the membership of a majority of the
maintenance employees had been transferred from Local 20475, re-
quested Butler to meet with it to negotiate a contract covering them
and to discuss grievances.10 Also, on November 27, 1940, as found
hereinafter, Ledford, who had on August 17 been transferred from
0 Our foregoing findings are based upon the testimony of Semmler and Ledford, which
the Trial Examiner also credited Harlan denied Ledford's testimony, but be did not
deny that of Semmler other than by stating that be did not recall that any of the em-
ployees had asked him after July 1, 1940, about the matter of whose orders should be
given precedence
10 To this request, Butler replied that it was not an employer of the maintenance em-
ployees in Building B. Butler's reply was entirely inconsistent with its continuing control
over the maintenance employees which reasonably led them to believe that it was still
their employer.
BUTLER BROTHERS AND ALEX WASLEFF 855
Building B and who was subsequently discharged, called upon R. N.
Henry, one of Butler's senior executives, to attempt to obtain through
him separation pay from Butler.
By permitting the maintenance employees to take orders from
Harlan and Marshall, by referring applicants for employment to Har-
lan for his approval, by reinstating the strikers after Butler' s exec-
utives had interceded with Wasleff on their behalf, and by his entire
course of conduct as outlined herein, Wasleff also made it clear to
the maintenance employees that Butler retained substantial, if not
ultimate,, control over the work and tenure of employment and over
the labor policies of Wasleff.
Butler and Wasleff contend that, by virtue of their contract, Wasleff
became on July 1, 1940, and thereafter remained the sole employer,
within the meaning of the Act, of the maintenance employees. We
are unable to agree with this contention. The express terms of the
contract leave Butler with substantial control over Wasleff and the
maintenance employees. Thus, the provision allowing 'Butler to
change the schedules for watchmen and elevator operators and to
require "incidental extra work" of the janitors within broad limita-
tions necessarily gave,Butler a decisive check upon Wasleff's opera-
tions within the building. The contract allowed either party to ter-
minate the relationship upon 60 days' notice. It is obvious from this
provision that Wasleff was obliged to pursue such policies with re-
spect to the maintenance work as were acceptable to Butler, or incur
the risk of losing the contract within a short time. In actual practice
under the contract, as set forth above, Butler continued to direct much
of the work of the maintenance employees, to exercise a controlling
voice in decisions as to their hire and tenure of employment, and to
formulate labor relations policy. Although Wasleff paid the main-
tenance employees, provided appropriate insurance covering their
operations and a part of the materials used in their work, in all other
respects he acted more in the nature of a foreman than an independent
contractor. Wasleff remained at all times subject to and acquiescent
in the ultimate control vested in Butler. The maintenance employees
continued after July 1, 1940, to regard Butler as their principal
employer.
Under all the foregoing circumstances, we find that on July 1, 1940,
while Wasleff became for certain limited purposes an employer of
the maintenance employees in Building B, Butler, by virtue of the
control it retained and exercised over the maintenance employees and
the labor policies of Wasleff, thereafter assumed jointly with Wasleff
the role of employer of such employees, within the meaning of Section
2 (2) of the Act 11
"Cf. Long Lake Lumber Company and F. D. Robinson and International Woodworkers
of America Local Union No. 119, affiliated with the Congress of Industrial Organizations,
34 N. L R B 700 Moreover, as found hereinafter in Section III, B, 3, Butler entered
856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The transfers of employees from Building B in August and
September 1940
It will be recalled that, when Harlan stated to Ward and Ledford
that Butler might bring a maintenance contractor into Building B,
he also warned that the result of such step would be that a number
of the "old" employees would lose their jobs. Immediately after the
expiration of the 30-day period during which Wasleff, under the con-
tract, was obliged to retain the former maintenance employees on his
pay roll, Harlan's prediction %yas fulfilled. During August and- Sep-
tember 1940, Wasleff transferred from Building B, as more fully
described hereinafter, nine of the maintenance employees and offered
to each of them employment in other buildings serviced by him. All
but one accepted this offer. Of those who accepted, all but two were
laid off or discharged by Wasleff soon after their transfer and have
not since been reinstated by either Butler or Wasleff. Sando testified
as to six of the nine employees that, in each instance, he contemplated
that the employee in question would be retained in Wasleff's employ
only for a short time following his transfer out of Building B. Wasleff
claimed that the controlling reason for each of the transfers was the
necessity to reduce pay-roll expenses in order that he might show a
profit on his contract with Butler. As to certain of the transfers,-
Wasleff also advanced additional defenses hereinafter considered. He
did not urge inferior workmanship as the basis for any of the trans-
fers. We shall consider each of the transfers seriatim.
James Ward, an elevator operator who had been employed in
Building B for about 10 years, was transferred by Wasleff on August 3,
1940, to another building serviced by Wasleff. Three weeks later he
was laid off or discharged. Ward was among the first of the main-
tenance employees to apply for membership in Local 66 in April 1939,
and soon thereafter he was elected to, but declined, the office of shop
steward. At that time, as hereinbefore noted, Harlan warned him
against union activity and threatened that to avoid dealing with a
union Butler might "let out" the maintenance work, in which event
some of the men would lose their jobs.12 Despite this warning, Ward
Footnote 11 continued.
into the contract with Wasleff for the purpose of utilizing the resultant ostensible shift
of employer status to conceal intended violations of the Act and to thwart the organiza-
tional efforts of employees in Building B. Consequently , the contract , being executed
for an illegal purpose, was ineffective to break the employer relationship of Butler to the
maintenance employees Cf. Matter of Cowell Portland Cement Company, a corporation,
and International Union, Mine, Mall it Smelter Woikers of America, Local no, and United
Cement Lime it Gypsum Workers , International Union, Local 80 Successor to Lime it Cement
Emplpyees Union of Contra Costa County, No 21074, parties to the contracts , 40 N L R. B.
652.
12 See Section III, A, supra.
BUTLER BROTHERS AND ALEX WASLEFF 857
joined Local 20475 in December 1939 after the maintenance employees
had decided not to complete their affiliation with Local 66.
Ward testified that Sando notified him of his transfer, saying that
it was necessary because of difficulties with vacation schedules. In
his testimony concerning Ward, Sando alleged that he had been told
by Brandt, a maintenance employee whom Wasleff later promoted
to the position of subforelnan, that Ward was a "dangerous gossip,"
and that others had told him that Ward had an uncontrollable temper.
Sando admitted that he had not investigated these charges, and there
is no evidence that Ward had the objectionable traits mentioned;
indeed, his approximately 10 years of satisfactory service under Butler
is a clear indication to the contrary. Reith, who replaced Ward in
Building B, testified that about August 1 Sando had pointed Ward
out to him, stating, "he is a Red and a Communist and we are trying
to get him out of here." Sando denied this testimony. The Trial
Examiner did not credit his denial, nor do we. There is no evidence
that Ward was a "Red" or a "Communist." Under the circumstances,
we find that Sando's statement to Reith indicates a prejudice against
Ward based upon the latter's union activity.
Robert J. Healy, an elevator operator who had been employed in
Building B for over 41/2 years, was asked by Sando on August 3 to
take a job in another building serviced by Wasleff, with the explana-
tion that the reason for the proposed transfer was that Wasleff was
"stuck for -vacations." Healy inquired if the new work was to be
operating an elevator. Sando replied that he did not know and
told Healy to report at Wasleff's office on August 5. When 'Healy
reported, Esposito, one of Wasleff's foremen, offered him janitor work
in a building other than Building B. Healy refused the offer.
Healy had joined Local 20475 early in 1940 and participated in the
earlier movement to affiliate with Local -66. As hereinbefore found,
Harlan warned Healy in the fall of 1939 that Butler would not "stand
for" the maintenance employees joining a union 13
Sando testified that Healy was transferred from Building B "pri-
marily to save money," but mentioned also that prior to the dismissal
of Ledford, the shop steward for Local 20475, whose transfer was
contemporaneous with Healy's, he had heard from Esposito that Led-
ford had been riding in Healy's elevator for long periods of time.
As hereinafter found in connection with the transfer of Ledford,
Sando knew of Ledford's union activity, and we conclude and find
that Healy's contacts with Ledford led Sando to suspect Healy of
engaging in similar activity.
On about August 7 or 8, 1940, Healy asked Sando the reason for the
transfer of maintenance employees from Building B. According to
v See Section III, A, supra
858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Healy, Sando replied that Wasleff did not believe in having his em-
ployees work too long in one building and, when Healy stated that he
would attempt to remedy the "dirty deal" given him, Sando rejoined,
"Well, you can't do anything about it ... That is my job to see that
we are within the law." Sando denied telling Healy that Wasleff did
not believe in having his employees work too long in one building. He
did not deny saying that it was his job to see that Wasleff kept "within
the law." We credit Healy's testimony, as did the Trial Examiner.
In view of testimony by Sando that he contemplated that Healy and
others would not remain long in the employ of Wasleff after their
transfers, Sando's varying and inconsistent statements to Healy con-
cerning the reasons for his transfer, and the expressed opposition of
Harlan and Sando to organization of the maintenance employees, we
find that, by his statement that it was his job to see that Wasleff kept
"within the law," Sando meant that by the device of offering the main-
tenance employees work in other buildings before discharging them
Wasleff could avoid the legal consequences of discrimination against
them because of their union activity.
Walter Ledford, a watchman and elevator operator, had been in
Butler's employ for over 13 years at the time of his transfer on Au-
gnst 17. As hereinbefore described, Ledford was an outstanding
leader in the organization of the maintenance employees. He was
shop steward for Local 66 in the spring of 1939 and later held the same
position for Local 20475 from the fall of 1939 until after he was trans-
ferred from Building B. He solicited the membership of the other
maintenance employees and collected initiation fees and dues. As
hereinabove found, Harlan on three occasions warned Ledford against
engaging in union activity, expressed his hostility to an^organization
of the maintenance employees, and once threatened him that Butler
would "let out" the maintenance work rather than comply with the
desires of Local 20475.
On August 3 Ledford began his vacation. Ellsworth Conzett, a
new employee, who had been hired by Sando with Harlan's approval a
few days previously and who had been receiving instructions as to
the duties of watchman, was transferred to Ledford's job. At the end
of his vacation on August 17, in accordance with written instructions
received that day from Wasleff, Ledford reported to Esposito, who
assigned him to another building maintained by Wasleff. On August
19, Ledford, accompanied by O'Grady, a business agent for Local 66,
met with Wasleff and Sando in the former's office. Ledford protested
his transfer. Wasleff testified that he asked Ledford for several days
in which to consider the matter. On the same day, Harlan issued
instructions over his signature to the watchmen that thereafter Led-
ford was not to be admitted to Building B after working hours. In
BUTLER BROTHERS AND ALEX WASLEFF - 859
explanation of this order, Harlan testified that Ledford "had been
notified by [Wasleff] that he was no longer connected with the build-
ing and was not to be admitted after the building was closed ." So far
as the record shows, no- similar action was taken by Butler as to the
other maintenance employees who were transferred . We find that
Harlan's action with respect to Ledford reflected Butler's opposition
to his union activity and, a desire to isolate the other employees from
Ledford's influence.
Esposito discharged Ledford on August 24 , ` stating that Wasleff
had no more work for him. Sando testified that he decided to transfer
Ledford a few days after Ledford had gone on vacation and as soon
as it was determined that Conzett , whose wages were $25 less per month,
could replace him satisfactorily . Sando also testified that he had
received reports that Ledford had been riding in Healy's elevator; in
violation of rules. Sando did not assign this alleged offense as a
factor leading to Ledford 's transfer . As found hereinafter, Sando
knew of Ledford's union activity . On the basis of all the evidence,
we find that Sando believed that Ledford rode in Healy's elevator in
order to engage in union activity.
Sando's knowledge of Ledford's efforts on behalf of Local 66 and
his hostility thereto are reflected in events of October 1940. During
that month , as discussed more fully hereinafter , certain of the main-
tenance employees went on strike for 4 or 5 days. As the strikers re-
turned to work, Sando told them that Ledford had been a "trouble
maker" for both Butler and Wasleff ; that Wasleff would have nothing
more to do with him; and that Ledford could not continue to act as
their shop steward.
On November 27, 1940, Ledford called upon R. N. Henry, one of
Butler's senior executives , reminded him of his 13 years of service
with Butler, and requested that he be given the customary separation
pay. Henry stated that he would'require time to investigate the
matter and talk with Harlan and another Butler executive. When
Ledford returned a few days later, Henry reminded him that Butler
had paid his salary during a period of 9 weeks while Ledford was
recovering from an operation. According to Ledford's undisputed
account of the conversation, which we credit, Henry told him, "Well,
I am surprised that you ask for this conmpensation. We put you on
this job, we gave you the job. You have taken a mighty active part
in the union." Ledford testified further, "He told me I had done
Butler Brothers an injustice, I had done more harm than anybody
they had ever had around there, that I had helped to get them into the
union, and I wasn't satisfied with that, that I had to get them into the
Labor Board." Henry did not testify at the hearing, nor did Butler
offer any explanation of his failure to appear . We find that Henry's
860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
statements to Ledford reflected Butler's continuing hostility to organ-
ization of the maintenance employees. ,
Nick Zeman, who had been employed in Building B as a janitor and
elevator operator since 1936, was transferred by Sando early in August
to another building. Zeman remained in Wasleff's employ, working
as a janitor in two different buildings, until about September 3, when he
was laid off. In October, Esposito offered Zeman a job working
at night in another building on the north side of the city. Zeman
refused this offer because the building was too far from his home, and
the illness of his wife made it impossible for him to work at night.
In December, Zeman was again hired by Wasleff and worked for 1
week, after which he was laid off.
Zeman joined Local 20475 in May 1940 and, like the other union
members at, Building B was transferred to Local 66 in August of
that year.
Stanley G. Pukis, who had been in Butler's employ since 1928 and
had worked in Building B as a janitor and elevator operator, suc-
cessively, since 1933, was transferred to another building by Sando
about August 23. Pukis remained in Wasleff's employ, working as a
janitor, until August 31, when he was laid off.
Pukis applied for membership in Local 66 in April 1939, joined
Local 20475 in February 1940, and had his membership transferred
to Local 66 in August 1940.
Leo Fitzpatrick, an elevator operator who had been employed in
Building B since 1930, was transferred by Sando on August 24. At
Sando's order, Fitzpatrick reported to Esposito, who assigned him to
work as a janitor in another building. Due to the fact that he was
improperly dressed for the new job, Fitzpatrick quit after working
a few hours. The following day, he protested to Sando about his
transfer from Building B. According to the undisputed testimony of
.Fitzpatrick, whom we believe, Sando had the following conversation
with Fitzpatrick : Sando stated that he regretted having to transfer
Fitzpatrick but that he had been obliged to do so because he feared
that "the boys" might be antagonistic to Wasleff. Sando referred
Fitzpatrick to another firm for a job, stating, "You are a union man.
You won't have no trouble getting a job." Fitzpatrick did not there-
after apply to the individual to'whom Sando had referred him. Fitz-
patrick participated in both union movements in Building B and was
a member of Local 20475 at the time of the transfer of jurisdiction to
Local 66.
Paul Warzeclia, a janitor and part-time elevator operator in Build-
ing B since 1935, was transferred by Sando on or about September
18 to another building where Wasleff performed maintenance services.
Warzecha joined Local 20475 some time in the spring of 1940, and his
BUTLER BROTHERS AND ALEX WASLEFF 861
membership was transferred to Local 66 in August along with. that of
the other maintenance employees. After August 1940 Warzecha paid
no more dues to Local 66 and ceased to participate in its affairs. At
the time of the hearing, he was still in Wasleff's employ at the same
rate of pay he received in Building B, but had not been reinstated in
Building B.
Frank H. Harrity, who had been employed in Building B as an ele-
vator operator and watchman since January 1939, was transferred
from the building by Wasleff on September 23, 1940. During the
next 2 weeks he was assigned by Wasleff to work as a janitor in two
other buildings. He was laid off on or about October 10. Sando, who
apparently ordered Harrity's transfer, testified that, in addition to the
general need to lower costs, a factor in Harrity's removal was that
he believed Harrity had purposely confused two new employees whom
he was training in Building B. Harrity denied that he had been
guilty of this offense. The Trial Examiner considered Sando's claim
in this respect unconvincing and found, as do we, that Harrity's alleged
misconduct was not the real reason for his transfer. ,
Harrity applied for membership in Local 66 in March 1939. In the
spring of 1940 he joined Local 20475, and in August his membership
was transferred to Local 66. As hereinafter found, early in July
1940 Esposito questioned Harrity concerning the union affiliation of
the maintenance employees and Harrity replied that they were "100
percent" organized.
Lorenz Malavasi, who had been employed by Butler as a bus boy
in the restaurant in Building B in September 1937 and since about
March 1940 had worked as a janitor and elevator operator, was trans-
ferred by Sando to another building in September 1940. Malavasi
joined Local 20475 in April 1940, and early in August 1940 his mem-
bership was transferred to Local 66. He testified that, immediately
after Local 66 assumed jurisdiction over the maintenance employees,
Sando remarked to him, "Well, I knew that you belonged to the
Wholesale Merchandisers Union, but I didn't know that you had trans-
ferred to Local 66." Shortly after Ledford's removal from Building
B, Sando told Malavasi that there would be no further changes among
the employees. Within the ensuing few days two additional main-
tenance employees were removed. Malavasi protested to Sando that
all the men were worried about their jobs and asked "if it had some-
thing to do with the union." According to Malavasi, Sando replied,
"No," but then asked if he had ever heard the story about the bad
apple which spoiled the whole barrel. Sando denied having remarked
to Malavasi that he knew of the latter's union affiliation or that he
mentioned the story about the bad apple. The Trial Examiner
credited Malavasi, despite Sando's denials, and so do we. We find
862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Sando made the remarks attributed to him by Malavasi and that
Sando thereby expressed a belief that Ledford had been responsible
for all the maintenance employees joining a union, thereby expressing
hostility to Local 66.
Malavasi was transferred to a different building in September at
the same rate of pay, $85 per month, which he had received in Building
B. In October 1940 he ceased paying dues to Local 66 and participat-
ing in its affairs. At the time of the hearing he was still in Wasleff's
Employ and his pay had been raised to $115 per month. He had at
no time been returned to work in Building B.
Both Wasleff and Sando testified at the hearing that until August
19, 1940, they had no knowledge that there was any labor organiza-
tion among the maintenance employees. We do not credit their testi-
mony in this respect. Three representatives of Local 66 testified that
in April 1941 Wasleff remarked to them that, when Butler called him in
the spring of 1940 to consider a contract, he found "union trouble" in
Building B. Despite Wasleff's denial of their testimony, we find that
he made the remark thus attributed to him. , Moreover, as we have
found, Sando told maintenance employee Malavisi, early in August
1940, that he knew Malavasi had been a member of Local 20475. Frank
H. Harrity, one of the maintenance employees, testified that a few days
after July 1, 1940, while he was showing Nick Esposito, one of Wasleff's
foremen, through Building B, Esposito asked him, "How about the
Union? Anybody around here?" and that Harrity replied, "We are
100 percent. Everybody, everybody in the building is union." The
Trial Examiner did not credit Esposito's denial of Harrity's testimony,
nor do we. It is undisputed that Harlan, Butler's official with whom
Sando and Wasleff had protracted negotiations prior to execution of
the contract between Butler and Wasleff, knew that many of the main-
tenance employees had joined Local 20475. On the basis of all the
evidence, we find, as did the Trial Examiner, that Wasleff and his su-
pervisors, Sando and Esposito, as well as Butler, knew of the organiza-
tion of the maintenance employees prior to the time of the transfers.
Of additional significance with respect to the transfers is the testi-
mony of maintenance employees Charles Penar and Henry Reith. The
latter, a new, employee whom Sando had brought into Building B as
an elevator operator about August 3, 1940, with Harlan's approval,
testified that on August 20 Sando asked him if he had seen any "dressed
up fellows" around the building, remarking that some union officials
might be expected, and adding, "You know, they want a union around
here and furthermore if there is anyone around here I want you to
report to me or Mr. Harlan right away." Penar testified that in
August 1940 Harlan asked him if he belonged to a union; that he re-
plied that he did; that Harlan asked him if anyone had forced him to
join; and that he, Penar, answered, "No. Everybody belong to it. I
BUTLER BROTHERS AND ALEX -WASLEFF 863
join it too." Sando and Harlan denied the foregoing testimony of
Keith and Penar. The Trial Examiner did not credit their denials,
nor do we. We find that Sando and Harlan made the statements
attributed to them by Keith and Penar.
3. Conclusions as to the contract and the transfers of August
and September
The amended complaint alleged that Butler and Wasleff entered into
the contract for the purpose of combating, interfering with, restrain-
ing, and coercing the self-organization of their employees and that they,
jointly and severally, effected the transfers from Building B because
of the union activity of the maintenance employees. We shall first
consider the transfers.
Butler contends that by virtue of the contract with Wasleff it ceased
on July 1, 1940, to be an employer of the maintenance employees and
is, therefore, not responsible for any of the transfers. This conten-
tion is plainly without merit. We have already found that, although
Wasleff under the contract became an employer of the maintenance
employees on July 1, 1940, Butler thereafter also remained an employer
of such employees, within the meaning of the Act, by reason of the
control it retained and continued to exercise over them and over the
labor and employment policies of Wasleff. It is evident moreover, and
we find, on the basis of Butler's control over Wasleff's labor and em-
ployment policies and all the other evidence, that Butler directed or
approved, Wasleff's selection of the maintenance employees to be trans-
ferred from Building B.
Wasleff, while admitting his responsibility for the transfers, con-
tends, as stated, that the controlling reason for each of them was the
necessity to reduce pay-roll expenses in order that he might make a
profit on the contract. We do not doubt that Wasleff was compelled
after July 30, 1940, to curtail his operating expenses as a means of
realizing a profit on his operations in Building B and that he chose
to effect the necessary savings by reducing his pay-roll costs through
transferring some of the maintenance employees and replacing them
with new employees at lower wage rates 14 The evidence shows, how-
ever, that, in selecting the employees to be transferred, both Butler and
Wasleff were guided by a desire to eliminate the union activity of the
maintenance employees. Thus, as we have found, prior to the effective
date of the contract, Butler, through Harlan, warned certain of the
14 The evidence shows that Wasleff replaced Ward , who had been paid $110 per month,
with a man at $75 per month ; Healy, who had been paid $120 per month, with a man at
$75; Ledford , who had been paid $105 , with a man at $80; Pukis , who had been paid
$120, with a man at $85; Harrity, who had been paid $105, with a man at $80, Fitzpatrick,
whose wage rate does not appear , with a man at $85; and Neman , Warzecha , and-Malavasi,
whose wages had totaled $275 per month , with five women whose salaries totaled $265.
864 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD
maintenance employees against participation in union activity and
threatened that failure to comply with the warning might result in
Butler's "letting out" the maintenance work and consequent loss of
employment for some of the "old" employees. Following the effective
date of the contract, Harlan questioned one of the maintenance em-
ployees about his affiliation with Local 66 and still later Henry, another
Butler executive, rebuked Ledford, the union leader, for having aided
in organizing the maintenance employees. Immediately after Wasleff
began operations in Building B pursuant to the contract, Esposito, one
of Wasleff's representatives, interrogated Harrity about the status of
union organization among the maintenance employees and was in-
formed that they all belonged to a union. Thereafter, during the series
of transfers, Sando, the representative of Wasleff who directly effected
most of the transfers, told Reith, a new employee, that a union was not
wanted in Building B and instructed him to report to either Sando
or Harlan the presence of persons appearing to be union officials;
described Ward, one of the more prominent members of Local 66, to
Reith as a "Red and a Communist"; described Ledford to Malavasi as
the "bad apple" which spoiled the whole barrel; and implied to Healy
that it was his, Sandro's, job to see that Wasleff avoided the appearance
of illegally transferring maintenance 'employees. As found herein-
after, in October 1940 Wasleff warned certain of the maintenance
employees who had gone on strike that he would not deal with Local 66
and that Ledford had been a trouble maker and could no longer serve
as their shop steward.16
It cannot consequently be dismissed as mere coincidence that the
first three employees selected for removal from Building B, and sub-
sequently discharged, were Ward, Healy, and Ledford, each of whom
had been warned by Harlan against engaging in union activity and
had openly disregarded that warning. Nor is it mere coincidence that
among those selected for early removal were Fitzpatrick, to whom
Sando remarked that he would have no trouble in obtaining another
job since he was a "union man"; Harrity, who had soon after July 1,
1940, informed Esposito of his union affiliation and that of the other
maintenance employees; and Malavasi, to whom Sando described
Ledford as a "bad apple" and implied that he had "spoiled" the other
employees. Significantly, Warzecha and Malavasi, both of whom
ceased to engage in union activity immediately after their transfers,
continued thereafter in Wasleff's employ, though they were not rein-
stated in Building B. In removing these maintenance employees,
Wasleff fulfilled Harlan's prediction to Ward and Ledford that some
of the "old" employees would lose their jobs if, by continuing their
union activity, they forced Butler to "let out" the maintenance work.
15 See Section III, C, infra.
BUTLER BROTHERS -AND ALEX -WASLEFF 865
As noted, Ward had been in Butler's employ for about 10 years, Healy.:
for 5 years, Ledford for 131/2 years, Zeman for 4 years,, Pukis, for 12
years, Warzecha for 5 years, -and Malavasi for about 3 years. We
find that the selection by Butler and Wasleff of the' maintenance' em-
ployees for transfer was clearly designed to weaken and undermine the
collective efforts of the employees generally by removing from their
midst, together with the most active union protagonists, a relatively
large, number of union adherents, on whose numerical support,, at
least, the Union depended for strength and effectiveness. We find,
further, that the ' transfers were intended by Butler and Wasleff to
serve as an object lesson to the remaining veteran employees and to
new employees hired to replace those transferred that continued union
activity would not be tolerated.
-
,
Upon the basis of all the evidence, we find that Butler and Wasleff
jointly and severally effected the transfer of Ward, Healy, Ledford,
Zeman, Pukis, Fitzpatrick, Warzecha, Harrity, and Malavasi from,
Building B,because of their membership and activity on, behalf of
Local 20475 and Local 66, thereby discriminating with regard to the
hire and tenure of said employees and discouraging membership in
Local 20475 and Local 66. - We further find that by the above conduct
and by the questioning of Penar and Harrity by Harlan and Esposito
respectively, concerning the union affiliation of the - maintenance
employees, by Sando's statements to Reith, Healy, and Malava'si in
derogation of Local 20475 or Local 66 and the union leaders, and by,
Henry's statements to Ledford in criticism of these unions and Led,-
ford's part in their affairs, Butler and Wasleff, jointly and severally,
interfered with, restrained, and coerced the maintenance employees
in the exercise of the rights guaranteed in Section 7 of-the Act. ,
- . Upon the basis of Butler's hostility to the unionization of the
maintenance employees and Butler's threats to relinquish its mitiinte-
nance work to an independent contractor if union activity persisted,
the -undisputed showing that Butler called upon Wasleff to bid upon
the maintenance work in Building B on the same day upon which Har-
lan warned -Ledford against engaging in union activity- and threat=
ened to "let out" the maintenance work rather than deal with; a union;
the terms of the contract and the manner of its performance, and the
transfer of the nine employees, we find that, although Butler may
have had legitimate business reasons for entering into the contract
with Wasleff, it was primarily motivated by the purpose of utilizing
the resultant ostensible shift of employer status to conceal intended
violations of the Act and`to thwart the organizational efforts of em-
ployees in Building B, and that Butler-' thereby interfered with,
restrained, and coerced the employees in Building'B, in the exercise
of the rights guaranteed in Section 7 of the Act. - -
463892-42-vol 41-55
866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. The effect of the contract upon terms and conditions of employment
The immediate result of the contract between Butler and Wasleff,
so far as the employees in Building B were concerned, was that upon
their transfer to Wasleff's pay roll, although their nominal wages
were not at once reduced, they lost seniority rights, rights to sick
benefits, paid vacations based on length of service, and the privilege
of participating in certain group life and hospitalization insurance
plans,,all of which valuable perquisites they had theretofore enjoyed
as employees of Butler. We have found that Butler entered into the
contract for a discriminatory purpose. We further find that, by
depriving, its maintenance employees of seniority rights, rights to
sick benefits, paid vacations, and the privilege of participating in
group life and hospitalization plans through means of the contract,
Butler discriminated with regard to the hire and tenure of employment
of those employees because of their union activity, thereby discourag-
ing membership in the Union and interfering with, restraining, and
coercing its employees in the exercise of rights guaranteed in Section 7
of the Act.
C. Further interference, restraint, and coercion by Wasleff
In the latter part of October 1940, Local 20475, which had a contract
covering warehouse employees and elevator operators in Building A,
called a strike of those employees. Shortly thereafter, without notice
to either Butler or Wasleff, Local 66 ordered a strike of the main-
tenance employees in Building B and about 11 of them complied with
the order. The strike in Building A was settled after about 4 days,
but no agreement was then reached about the strike in Building B.
As'soon as O'Grady, a representative of Local 66, heard of the settle-
ment for Building A, he went to see Sando, who told him that he
had no orders to return the strikers in Building B. O'Grady then
asked if he could see Wasleff, and Sando replied that Wasleff would
have nothing to do with him16 O'Grady then complained to Powers
that Wasleff would not reinstate the strikers in Building B and asked
Powers to intercede with Wasleff on their behalf. Powers thereafter,
first alone, and later in the company of Henry, manager of Butler's
Chicago House, discussed the strike with Wasleff. According to
Powers' undisputed account of the conversations, which we credit,
Wasleff at first "virtually refused" to reinstate the strikers, but subse-
quently stated that he was "sore" at O'Grady for having called a strike
without serving notice and that he would reinstate the strikers "pro-
19 The finding as to O'Grady's conversation with Sando is based upon the former ' s undis-
puted testimony , which we believe.
BUTLER BROTHERS AND ALEX WASLEFF 867
vided O'Grady would stay out of the picture." Powers reported this
conversation to O'Grady, and the latter instructed the striking
maintenance employees to return to work.
Before fallowing the striking employees to return to 'their jobs,
Wasleff held a meeting with them in the lunch room in Building B.
Sando and Esposito were also present. The mutually corroborative
and credible testimony of maintenance employees Peter Shimkus,
Philip Chimino, Henry Semmler, and Steve White, which we credit
despite partial, denials by Wasleff, Esposito, and Sando, establishes
the following account of the meeting : Sando informed the men that
Wasleff was aggrieved because they had walked out without notifying
him; expressed his belief that the men had struck under threat of
violence from Local 66 and not of their own volition; stated that
the building had been operated satisfactorily without the strikers
and without organized labor; and announced that the strikers were
being reinstated by Wasleff simply as a favor to Butler. Wasleff
stated that he would have nothing to do with either O'Grady or
Local 66 and would not recognize or deal with them as representatives
of the employees. Sando added that Ledford, to whom he referred
as a."trouble maker" for both Wasleff and Butler, could not serve as
steward of the employees in Building B, stating that both Ledford
and O'Grady had been told to stay away from the building inasmuch
as Wasleff would have nothing to do with them. Esposito, as the
conference was breaking up, disparaged Local 66 to the employees
present as an organization which had engaged in racketeering practices.
Almost immediately after the strike,,one Brandt, the only veteran
maintenance employee who had not participated in the strike, was
promoted by Wasleff to a position as elevator starter and subforeman
in Building B, relieved of his duties as an elevator operator, and
given- an increase in pay. Sandy testified that Brandt had been made
a working foreman very soon after July, 1, but that, because he was
known to be unpopular with the other employees, he was not given
authority too suddenly. The evidence shows conclusively; however,
that Brandt did not spend full time 'as a 'foreman until immediately
after the strike. We find that, inasmuch as Brandt was the only
veteran maintenance employee who had not joined in the strike, his
promotion clearly indicated to the employees Wasleff's antipathy to
Local 66.
We find that, by the foregoing'statements of Wasleff and his assist-
ants disparaging Local 66 and its leaders and expressing Wasleff's
determination not to deal with Local 66, and by rewarding a lone
nonstriker with promotion, Wasleff interfered with, restrained, and
coerced the maintenance employees in the exercise of rights guaranteed
in Section 7 of the Act.
868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. The transfers of Heitry Reith and Peter Shimkus
The amended complaint alleged that Butler and Wasleff, jointly
and • severally, -transferred Henry Reith and Peter Shimkus, and
subsequently discharged Henry Reith, because of their union activity.
The Trial Examiner found that Reith was not transferred or dis-
charged and that Shimkus was not transferred because of union ac-
tivity. He recommended that the complaint be dismissed insofar
as it alleged that Butler and Wasleff discriminated against them as
to their hire or tenure of employment. We have examined the evi-
dence and agree with the conclusions of the Trial Examiner as to
Reith and Shimkus. We find accordingly, and shall dismiss the coin-
plaint insofar as it alleges that Butler and Wasleff discriminated-
against them as to their hire or tenure of employment.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find' that the activities of Butler and Wasleff, as set forth in
Section III above, occurring in connection with the operations of the
respondents 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 of commerce.
V. THE REMEDY
Since we have found- that Butler and Wasleff have engaged in unfair
labor practices, we shall order them to cease -and desist therefrom.
We shall also order them to take certain affirmative action which we
find necessary to effectuate the policies of the Act.
Since we have found that Butler and Wasleff discriminated in regard
to the hire and tenure of employment 17 of Robert Healy, Walter
Ledford, Leo Fitzpatrick, Stanley Pukis, Nick Zeman, James Ward,.
Paul Warzecha, Frank H. Harrity, and Lorenz Malavasi, we shall order
the respondents to offer to each of the above employees, except Lorenz
Malavasi, who does not desire reinstatement in Building B, reinstate-
thent to his former or substantially equivalent position in Building B,
restoring to each, in accordance with the principles set forth in the
following paragraph, the rights and privileges which he enjoyed as
An acknowledged employee of Butler prior to July 1, 1940; and make
each of them whole for any loss of pay he may have suffered by reason
of the respondents' discrimination against him, paying to him a sum
17 Although the transfer of each of the employees , except Warzecha and Malavasi, was
followed by discharge or other severance - of employment , we have not deemed it necessary
to find that such termination of employment was discriminatory, our remedy is designed
to restore the employees to the employment from which they were discriminatorily transferred.
BUTLER- BROTHERS A54TD: ALEX- WASLEFF- ' 869
of money equal to that which he would normally have earned as wages
fromthe date, of his discriminatory transfer for Building B to the date
of the offer of reinstatement, less his net eariimgs, if any, during such
period.1S - -
We have found that Butler utilized its contract with Wasleff as a
means of thwarting the self-organization of the maintenance employees,
and thus violated Section 8 (1)' of the Act. Butler can remedy this
unfair labor practice only by restoring to the maintenance employees
in Building B the rights and privileges pertaining to their wages and
working conditions of which they were deprived by the contract. We
will therefore order that Butler shall restore -to all the maintenance
employees who were employed in Building B on June 30, 1940, their
seniority rights, sick benefits, vacation allowances, group insurance,
and other rights; and privileges which they theretofore enjoyed as the
employees of Butler and that, if necessary to effect such restoration,
the contract be modified or cancelled.
On the basis of the foregoing findings of fact and upon the entire
-record in the case, the Board snakes the following:
CONCLUSIONS OF LAw
1. Butler and Wasleff are-employers of the employees here involved,
within the meaning of Section 2 (2) of the Act.
2. Federal Labor Union-Number 20475 and Elevator Operators &
Starters Union Local No. 66, both affiliated with the American Fed-
eration of Labor, are labor organizations, within the meaning of Section
2 (5) of the Act.
3. By discriminating in regard to the hire and tenure of employment
of Robert Healy, Walter Ledford, Leo Fitzpatrick, Stanley Pukis,
Nick Zeman, James Ward, Frank H. Harrity, Paul Warzeclia, and
Lorenz Malavasi, and by discriminating in regard to the terms and
conditions of employment of all the maintenance employees, thereby
discouraging membership in a labor organization, Butler and Wasleff
have engaged in and are engaging in unfair labor practices, within
the meaning of Section 8 (3) Of the Act.
4. By interfering with, restraining, and coercing their employees
in the exercise of the rights guaranteed in Section 7 of-the Act, Butler
and Wasleff have engaged in and are engaging in, unfair--labor prac-
tices, within the meaning of Section 8 (1) of the-Act.
I
"By "net earnings " is meant earnings, less expenses , such as for transportation, room;
and board , incuired by an employee in connection with obtaining work and-working else-
where than for the respondents , which would not have been incuired but for his unlai6ful
discharge and the consequent necessity of his seeking employment elsewhere See Matter
of Crossett Lumber Company and United Brother hood of Carpenters and Joiner's of America;
Lmnber and Sawmill Workers Union, Local 2x90, 3 N L R. B 440 Monies, received for
work performed upon Federal , State , county, and municipal or other work-relief projects
shall be considered as cainings See Republic Steel Coipoiation v B . 311 U S 7:
870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. The aforesaid unfair practices are unfair labor practices affecting
commerce, within the meaning of Section 2 (6) and (7) of the Act.
6. Butler and Wasleff have not engaged in unfair labor practices,
within the meaning of Section 8 (3) of the Act, in regard to Henry
Reith and Peter W. Shimkus.
ORDER
Upon the basis of the above findings of fact and conclusions of law,
turd pursuant to Section 10 (c) of the National Labor Relations Act,
the National Labor Relations Board hereby orders that the respond-
ents, Butler Brothers, a corporation, and Alex Wasleff, an individual
doing business as Alex Wasleff Building Maintenance Co., and the
officers, agents, successors, and assigns of each, jointly and severally,
shall : '
1. Cease and desist from :
(a) Discouraging membership in Federal Labor Union Number
20475 or Elevator Operators & Starters Union, Local No. 66, or any
other labor organizations of their employees, by transferring, dis-
charging, or refusing to reinstate any of their employees, or in any
other manner discriminating in regard to their hire and tenure of
employment, or any term or condition of their employment;
(b) In any other manner interfering with, restraining, or coercing
their employees in the exercise of the right to self-organization, to
form, join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in concerted ac-
tivities for the purpose of collective bargaining or other mutual aid
or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act:
(a) Offer to Robert Healy, Walter Ledford, Leo Fitzpatrick, Stan-
ley Pukis, Nick Zeman, James Ward, Frank H. Harrity, and Paul
Warzecha immediate and full reinstatement to their former or sub-
stantially equivalent positions in Building B, without prejudice to
their seniority and other rights and privileges, in the manner set forth
in the section entitled "The -remedy" above;
(b) Make whole Robert Healy, Walter Ledford, Leo Fitzpatrick,
Stanley Pukis, Nick Zeman, James Ward, Frank H. Harrity, Paul
Warzecha, and Lorenz Malavasi for any loss of pay they may have
suffered by reason of the respondents' discrimination in regard to their
hire and tenure of employment, by payment to each of them, respec-
tively, of a sum of money equal to that which each would normally
have earned as wages during the period from the date of such discrim-
ination to the date of the offer of reinstatement, less his net earnings
during such period;
BUTLER BROTHERS AND ALEX WASLEFF 871
(c) Post immediately in conspicuous places throughout Building B
and maintain for a period of at least sixty (60) days notices to the
employees stating (1) that the respondents will not engage in the
.conduct from which it has been ordered that they cease and desist'in
paragraphs 1 (a) and (b) hereof; (2) that the respondents will take
the affirmative action set forth in paragraphs 2 (a) and (b) hereof;
and (3) that the employees are free to become or remain members of
Elevator Operators & Starters Union, Local No. '66, and that the
respondents will not discriminate against any employee because of
such membership ;
(d) Notify the Regional'Director for the Thirteenth Region in writ-
ing within ten (10) days from the date of this Order what steps the
respondents have taken to comply herewith.
IT IS FURTHER ORDERED that Butler Brothers, a corporation, and its
officers, agents, successors, and assigns, shall, by whatever steps may
be necessary, including modification or cancellation of its contract
with Wasleff, restore to all the maintenance employees in its building
at 111 North Canal Street, Chicago, Illinois, known as Building B,
who were employed in said building by Butler Brothers, a corporation,
on June 30,1940, the same or substantially equivalent rights and privi-
leges pertaining to their conditions of employment, and particularly
their seniority rights, sick benefits, vacation privileges, and group
insurance privileges which they theretofore possessed; and that it shall
post notices in the manner and for the time prescribed in Section 2 (c)
of this Order, above, stating that it will take the affirmative action set
forth herein and notify the Regional Director for the Thirteenth Re-
gion in writing within ten _(10) days from the date of this Order what
steps it has taken to comply herewith. ,
IT IS FURTHER ORDERm that the complaint as to Henry Reith and
Peter W. Shimkus be, and the same hereby is, dismissed.