Carpet, Linoleum and Resilient Tile Layers

National Labor Relations Board - Board Decisions

Jun 19, 1953

105 N.L.R.B. 669 (N.L.R.B. 1953)

CARPET, LINOLEUM AND RESILIENT TILE LAYERS 669
CARPET, LINOLEUM AND RESILIENT TILE LAYERS, LOCAL
UNION NO. 419, AFFILIATED WITH BROTHERHOOD OF
PAINTERS , DECORATORS AND PAPER HANGERS OF
AMERICA, AFL and WILLIAM F. COOPERSMITH. Case
No. 30 - CB-25 . June 19, 1953
DECISION AND ORDER
On March 13 , 1953, Trial Examiner Wallace E. Royster issued
his Intermediate Report in the above - entitled proceeding , finding
that the Respondent had engaged in and was engaging in certain
unfair labor practices and recommending that it cease and
desist therefrom and take certain affirmative action, as set
forth in the copy of the Intermediate Report attached hereto.
Thereafter , the Respondent filed exceptions to the Intermediate
Report and a supporting brief.
The Board ' has reviewed the rulings made by the Trial
Examiner at the hearing and finds that no prejudicial error
was committed . The rulings are hereby affirmed . The Board
has considered the Intermediate Report , the exceptions and
brief , and the entire record in the case , and hereby adopts the
findings , conclusions , and recommendations of the Trial Ex-
aminer.
ORDER
U on the entire record in this case, and pursuant to Section
10 (c) of the National Labor Relations Act, as amended, the
National Labor Relations Board hereby orders that the Re-
spondent , Carpet, Linoleum and Resilient Tile Layers, Local
Union No. 419, affiliated with Brotherhood of Painters, Deco-
rators and Paper Hangers of America , AFL, its officers,
representatives, agents, successors , and assigns, shall:
1. Cease and desist from:
(a) Causing or attempting to cause Lauren Burt , Inc., of
Colorado, its successors or assigns , to discharge William F.
Coopersmith or any other employee because he is not a member
in good standing of the Respondent or to discriminate against
such employee in any other fashion in violation of Section 8 (a)
(3) of the Act.
(b) Restraining or coercing Coopersmith or any other
employee of Lauren Burt , Inc., of Colorado , its successors
or assigns , in the exercise of the right to engage in or to
refrain from engaging in any of the concerted activities
described in Section 7 of the Act, except to the extent that
such right may be affected by an agreement requiring
membership in a labor organization as a • condition of em-
ployment as permitted by Section 8 (a) (3) of the Act.
'Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board
has delegated its powers in connection with this case to a three- member panel [ Chairman
Herzog and Members Houston and Murdock].
105 NLRB No. 96.
670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action , which the Board
finds will effectuate the policies of the Act:
( a) Notify Lauren Burt , Inc., of Colorado , and William F.
Coopersmith , in writing , that it has no objection to the employ-
ment of Coopersmith.
(b) Make whole William F. Coopersmith for any loss of pay
he may have suffered as a result of the discrimination against
him in the manner set forth in the section of the Intermediate
Re ort entitled " The Remedy."
(c) Post in conspicuous places at the business offices of the
Respondent in all places where notices or communications to
members are customarily posted , copies of the notice attached
to the Intermediate Report . 2 Copies of such notice , to be fur-
nished by the Regional Director for the Seventeenth Region,
shall , after being duly signed by a representative of the
Respondent , be posted by the Respondent immediately upon
receipt thereof and maintained for a period of sixty (60)
consecutive days thereafter. Respondent shall take reasonable
steps to insure that said notices are not altered , defaced, or
covered by other material.
(d) Mail to the Regional Director for the Seventeenth Region
signed copies of the notice for posting, Lauren Burt , Inc., of
Colorado , willing, at its premises in all places where notices
to employees are customarily posted by said Lauren Burt,
Inc., of Colorado . Copies of said notice , to be furnished by the
Regional Director for the Seventeenth Region, shall, after
being signed as provided above , be forthwith returned to the
Regional Director for posting.
(e) Notify the Regional Director for the Seventeenth Region,
in writing , within ten ( 10) days from the date of this Order
what steps the Respondent has taken to comply herewith.
2 This notice shall be amended by substituting for the words "The Recommendations of a
Trial Examiner" in the caption thereof, the words "A Decision and Order." If this Order is
enforced by a decree of a United States Court of Appeals, the notice shall be further amended
by substituting for said words "Pursuant to a Decision and order" the words "Pursuant to a
Decree of the United States Court of Appeals, Enforcing an Order."
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Charges having been filed by William F. Coopersmith, an individual, alleging violations of
the National Labor Relations Act, as amended, 61 Stat. 136, on the part of Carpet, Linoleum
and Resilient Tile Layers, Local Union No. 419, affiliated with Brotherhood of Painters,
Decorators and Paper Hangers of America, AFL, herein called the Respondent, the General
Counsel of the National Labor Relations Board issued his complaint dated January 29, 1953,
alleging that the Respondent had engaged in and was engaging in unfair labor practices af-
fecting commerce within the meaning of Section 8 (b) (1) (A) and (2) and Section 2 (6) and (7)
of the Act. With respect to unfair labor practices, the complaint alleges in substance that the
Respondent by maintaining closed-shop conditions at the place of Coopersmith's employment,
had caused the discharge of Coopersmith, made it impossible for Coopersmith to regain his
employment, and had thus restrained and coerced employees in the exercise of right guaran-
teed in Section 7 of the Act. Respondent's answer denies the commission of unfair labor
practices.
CARPET, LINOLEUM AND RESILIENT TILE LAYERS 671
Pursuant to notice a hearing was held before the undersigned in Denver. Colorado, on
February 17, 1953. All parties were represented, participated in the hearing, and were
afforded opportunity to examine and cross-examine witnesses and to introduce relevant
evidence.
Upon the entire record in the case and from my observation of the witnesses, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYERS
Lauren Burt, Inc., of Colorado, hereinafter called Colorado, is a Colorado corporation,
engaged in the building material specialties business, handling such items as acoustical
materials, roof decks, movable partitions, and modern fold doors and, in addition, was
engaged in the floor-covering business. During the fiscal year ending April 30, 1952, Colo-
rado made sales to purchasers located outside the State of Colorado, having a value of
$136,000. During the same period Colorado's purchases totaled more than $559,000, of
which more than 50 percent came from points outside the State of Colorado.
On May 1, 1952, Lauren Burt, president of Colorado, sold a retail business in Denver,
which he had established as a personal enterprise, to Earl A. Dixon, who for a period of
several years had been manager of Colorado's floor-covering department. By the contract
of sale and in consideration of payment of a year's salary, Dixon agreed to manage the
completion of certain contracts for floor-covering work, which Colorado had secured,
amounting to about $200,000. By endorsement over the signature of Burt, as president,
Colorado accepted this arrangement. The contracts to perform floor-covering work re-
mained the obligation and the property of Colorado, and Dixon, for the purpose of manage-
ment, remained an employee of Colorado. The retail business which Dixon obtained from
Burt continued to operate for the remainder of 1952 under the trade name of Lauren Burt
of Denver, herein called Denver. Dixon divided his time between the operation of Denver
and the management of Colorado's floor-covering contracts. Samuel A. Kaufmann, Colo-
rado's superintendent in floor-covering work, with authority to hire and discharge, remained
in Colorado's employ in the same capacity under the management of Dixon. During the
9-month period from May 1, 1952, to the date of the hearing, Denver made no purchases
from outside Colorado and performed no work outside that State. Denver has negotiated 3
contracts totaling in value about $25,000, for Stapleton Airfield, the principal airport at
Denver, Colorado, and for Mountain States Telephone Company, a public utility.
II. THE RESPONDENT
Carpet, Linoleum and Resilient Tile Layers, Local Union No. 419, affiliated with Brother-
hood of Painters, Decorators and Paper Hangers of America, AFL, is a labor organization,
admitting to membership employees of Colorado, Denver, and Dixon.
Ill. THE UNFAIR LABOR PRACTICES
Coopersmith, a floor-covering mechanic, became employed in that work by Colorado in
November 1949; except for short layoff periods continued in his employment until June 26,
1952; and for the last year worked under the direct supervision of Kaufmann. Coopersmith
was a member of the Respondent. In April 1952 he engaged in a dispute with William Cooney,
Respondent's business agent, and after that occasion was accused by Cooney of making
statements derogatory to Respondent's leadership. In May Coopersmith was told that he must
appear at a meeting of Respondent on June 11 in connection with Cooney's accusations, but
that he would be permitted to work until that date. Kaufmann was advised by Cooney that
Coopersmith must face charges before the Respondent on that date. Coopersmith attended the
meeting and after some heated discussion was ejected from the meeting place. In the belief
that he no longer would be permitted to work, Coopersmith did not report to his Employer
on June 12 or 13, but receiving information from an undisclosed source that he would be
permitted to continue his employment, came back to work June 16. He thereafter worked
steadily until June 26. After June 17 all work done by Coopersmith was on jobs for which
Denver was the contractor. It is suggested that due to this circumstance, Coopersmith has
not been an employee of Colorado since that date. Kaufmann testified, however, that he
supplied men to Denver with some frequency but that when Denver's need for them ended, they
reported back to him for assignment. For all days worked after June 17, Coopersmith was
672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
paid by Denver rather than Colorado but, as will appear , he remained under the direct super-
vision of Kaufmann . I find that the assignment of Coopersnuth by Kaufmann to work on a
Denver contract did not operate to sever Coopersmith 's employment relation to Colorado.
Kaufmann testified that during the morning of June 26 he received a request from Denver
to assign someone to complete a job that could be accomplished in a few hours . During the
same morning, Cooney telephoned Kaufmann to say that Coopersrruth was in bad standing with
the Respondent and was not to work any more . Kaufmann then went to the job site where
Coopersmith was working , told him of Cooney's call , and transferred him to another location
to finish the work about which Denver had called . Coopersmith was replaced the next day on
the job from which Kaufmann took him. Kaufmann testified that he assumed that Coopersmith
would not be available for work because of the telephone message from Cooney . However,
Coopersmith did report for work on the 27th . Kaufmann told him that there was no work for
him. Coopersmith returned in a few days to receive the same answer to his request for work.
Kaufmann conceded that he may have transferred Coopersmith on June 26 because the job on
which he was employed was near the Respondent 's office where some representative of the
Respondent might see him at work.
The Respondent called no witnesses . In cross-examining Kaufmann (a member of Respond-
ent), it attempted to establish that Coopersmith was not a particularly desirable workman
and that Colorado 's need for floor-covering mechanics diminished at about the time
Coopersmith lost his job. Kaufmann 's testimony gives some validity to both contentions, but
makes it clear that neither alone nor in combination did they operate to terminate
Coopersmith 's employment.
The complaint alleges that the Respondent maintained closed -shop conditions at Colorado
and Denver . The evidence is that since 1948 there has been no formal written agreement be-
tween the Respondent and either employer covering conditions of employment . As Respondent
has by bargaining been able to gain concessions as to wages , car allowance , and perhaps
other cost items , it has written letters to Colorado setting out what floor -covering mechanics
should be paid and Colorado has complied . All such employees of Colorado and Denver are
members of Respondent , and Colorado has consistently used the Respondent as a sole source
for the recruitment of workers.
Lauren Burt testified that Colorado 's floor-covering contracts will not be completed until
about April 15, 1953, and that the need for floor -covering mechanics in this work has been
more acute since June 26 than before . I find that Coopersmith had a reasonable expectation
to share in this work had the Respondent not demanded his removal from the job on June 26.
The retail business owned by Dixon does not meet the jurisdictional tests established by
the Board ; thus, if the Respondent had caused or attempted to cause Dixon to discriminate
against Coopersmith , the Board would not take cognizance . But no demand was made of Dixon
that he cease giving employment to Coopersmith and to have done so would not have accom-
plished Respondent 's manifest design . Coopersmith was one of a group of skilled mechanics
employed by Colorado who frequently was assigned by Colorado 's superintendent , Kaufmann,
to work for Dixon . It was the employment by Colorado and the consequent opportunity to earn
wages on Dixon 's jobs that Respondent sought to, and did, end. I find that Coopersmith re-
mained an employee of Colorado during the periods of loan to Denver, that Coopersmith's
employment with Colorado was terminated because of a demand by Respondent that such
action be taken , that the discharge of Coopersmithby Kaufmann tended to encourage member-
ship in good standing in the Respondent , and that the discharge thus was in violation of
Section 8 (a) (3) of the Act. By causing Colorado to discriminate against Coopersmith in the
manner found, Respondent, I find, violated Section 8 (b) (2) of the Act. By causing Coopersmith's
discharge because he was believed to oppose some of the policies adopted by Respondent's
officers , Respondent restrained and coerced Coopersmith in the exercise of rights guaranteed
in Section 7 of the Act and thereby violated Section 8 (b) (1) (A ) of the Act. It is so found.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in connection with
the operations of Colorado described in section I. above , have a close, intimate , and sub-
stantial 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
Having found that the Respondent has engaged in unfair labor practices within the meaning
of Section 8 (b) (1) (A) and (2 ) of the Act, I will recommend that it cease and desist therefrom
and take certain affirmative action designed to effectuate the policies of the Act.
CARPET, LINOLEUM AND RESILIENT TILE LAYERS 673
Having found that Respondent has caused Coopersmith to lose his employment with Colorado
and consequently to lose opportunity to earn wages on Denver contracts , it will be recommended
that the Respondent notify Colorado and Coopersmith , in writing , that it has withdrawn its
objections to Coopersmith 's employment by Colorado and that Respondent make Coopersmith
whole for any loss of pay he may have suffered by reason of his discharge. Loss of pay shall
be computed on the basis of each separate calendar quarter or portion thereof from June 26.
1952, to the date of Respondent 's notice of withdrawal of objection to Coopersmith 's employ-
ment. The quarterly periods shall begin with the first day of January, April, July, and
October. Loss of pay shall be determined by deducting from a sum equal to that which
Coopersmith would normally have eained for each such quarter or portion thereof, including
any and all amounts he would have been paid by Denver following assignment by Colorado to
Denver projects , his net earnings , if any, in other employment during the period. Earnings
in one particular quarter shall have no effect upon Respondent's liability for any other
quarter.
Upon the basis of the above findings of fact and upon the entire record in the case, I
make the following:
CONCLUSIONS OF LAW
1. Lauren Burt , Inc., of Colorado , is an employer engaged in commerce within the mean-
ing of Section 2 (6) and (7) of the Act.
2. Carpet, Linoleum and Resilient Tile Layers, Local Union No. 419, affiliated with
Brotherhood of Painters , Decorators and Paper Hangers of America , AFL, is a labor
organization within the meaning of Section 2 (5) of the Act.
3. By causing Lauren Burt, Inc ., of Colorado , to discriminate against Coopersmith in
violation of Section 8 (a) (3) of the Act, the Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8 (b) (2) of the Act.
4. By such conduct Respondent has restrained and coerced Coopersmith in the exercise
of rights guaranteed in Section 7 of the Act and thus has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (b) (1) (A ) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 (6) and (7) of the Act.
[ Recommendations omitted from publication.]
NOTICE
NOTICE TO ALL MEMBERS OF CARPET, LINOLEUM AND
RESILIENT TILE LAYERS, LOCAL UNION NO. 419, AFFIL-
IATED WITH BROTHERHOOD OF PAINTERS, DECORATORS
AND PAPER HANGERS OF AMERICA, AFL, AND TO ALL
EMPLOYEES OF LAUREN BURT, INC., OF COLORADO
Pursuant to the Recommendations of a Trial Examiner of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby
notify you that:
WE WILL NOT cause or attempt to cause Lauren Burt, Inc ., of Colorado , to discrim-
inate against William F. Coopersmith or any other employee because he is not in good
standing in our organization.
WE WILL NOT restrain or coerce employees of Lauren Burt, Inc ., of Colorado, in
the exercise of the right to engage in or to refrain from engaging in any or all of the
concerted activities described in Section 7 of the National Labor Relations Act, except
to the extent that such right may be affected by an agreement requiring membership in
a labor organization as a condition of employment, as authorized in Section 8 (a) (3)
of the Act.
WE WILL notify Lauren Burt, Inc ., of Colorado , and William F. Coopersmith that we
withdraw our objection to the employment of Coopersmith
674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL make William F. Coopersmith whole for any loss of pay suffered by him as
a result of our having caused his discharge by Lauren Burt, Inc., of Colorado.
CARPET, LINOLEUM AND RESILIENT TILE
LAYERS, LOCAL UNION NO, 419, AFFILIATED
WITH BROTHERHOOD OF PAINTERS,DECORA-
TORS AND PAPER HANGERS OF AMERICA, AFL,
Labor Organization.
Dated ................ By...................................... .......................................................
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be altered,
defaced, or covered by any other material.
THE GOODYEAR TIRE AND RUBBER COMPANY and BRICK-
LAYERS, MASONS & PLASTERERS INTERNATIONAL
UNION OF AMERICA, LOCAL NO. 7, AFL, Petitioner. Case
No. 8-RC-1937. June 19, 1953
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Charles A.
Fleming, hearing officer. The hearing officer's rulings made
at the hearing are free from prejudicial error and are hereby
affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the
Board has delegated its powers in connection with this case to
a three-member panel [Members Houston, Styles, and
Peterson],.
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within the mean-
ing of the Act.
2. The labor organizations involved claim to represent em-
ployees of the Employer.
3. No question affecting commerce exists concerning the
representation of employees of the Employer within the mean-
ing of Section 9 (c) (1) and Section 2 (6) and (7) of the Act, for
the following reasons:
The Petitioner requests a unit of bricklayers, cement masons,
and plasterers at the Employer' s plants in Akron, Ohio. It
contends that these employees constitute a craftgroupto which
the Board has customarily granted a separate representation,
notwithstanding a history of collective bargaining on a broader
basis.' The Employer and the Intervenor, United Rubber,
Cork, Linoleum & Plastic Workers of America, CIO, I and
1 The bricklayers, who perform the duties of cement masons and plasterers as well, have
been -included with other production and maintenance employees, for purposes of collective
bargaining, since 1937 at the Akron plants.
2 Herein referred to as URW-CIO or, together with its Local No. 2, as the Intervenor.
105 NLRB No. 97.