Charles E. Daboll, Jr.

National Labor Relations Board - Board Decisions

Jun 3, 1953

105 N.L.R.B. 311 (N.L.R.B. 1953)

CI (ARLES E DABOLL, JR 311
paycheck to the office employees of the same date. The
Regional Director concluded that the timing of the increase
was designed by the Employer to influence the outcome of the
elections. The Regional Director therefore recommended that
the elections be set aside.
The Employer contends that the increase was granted on
January 9 because it was the first regular payday after it
received notice of approval of the increase by the Wage
Stabilization Board. However, nothing in the Wage Stabilization
Board ruling required that the Employer give the increase
on that date, or precluded the Employer from waiting a few
more days until after the election before granting the in-
crease. In granting the increase despite the imminence of the
elections, the Employer repeated essentially the same conduct
which impelled the Board to set aside the prior elections of
March 13, 1952. Those elections were set aside because the
Employer only 10 days before the elections granted an
increase to about one-third of the eligible voters. The Board
said: "No reason appears why the Employer could not have
postponed this March 3, 1952, increase until after the election.
In view of the foregoing, we find that the purpose of the grant-
ing of this increase in wages, particularly in view of its
timing, was to influence the results of the elections; and that
the granting of such increase interfered with the elections." 8
For similar reasons, we find that the January 9, 1953,
increase interfered with the elections of January 14.
We, accordingly, sustain Objection No. 2 filed by the
Petitioner to the conduct of the elections. We shall, therefore,
set aside the elections of January 14, 1953, and direct new
elections at such time as the Regional Director advises the
Board that the circumstances permit a free choice among
the employees herein concerned.
[The Board set aside the elections.]
8101 NLRB 55
CHARLES E. DABOLL, JR. and CLARENCE B. SELLS
OPERATIVE PLASTERERS' AND CEMENT MASONS' INTER-
NATIONAL ASSOCIATION, AFL, LOCAL UNION 797 and
CLARENCE B. SELLS. Cases Nos. 20 -CA-707 and
20-CB -244. June 3, 1953
DECISION AND ORDER
On March 31, 1953, Trial Examiner David F. Doyle issued
his Intermediate Report in the above-entitled proceeding,
finding that the Respondents had engaged in and were engaging
in certain unfair labor practices , and recommending that
they cease and desist therefrom and take certain affirmative
action , as set forth in the copy of the Intermediate Report
105 NLRB No. 44
291555 0 - 54 - 21
312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
attached hereto. Thereafter, the Respondents filed exceptions
to the Intermediate Report.
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
the entire record in the case, and hereby adopts the findings,
conclusions, and recommendations of the Trial Examiner, with
the exceptions, modifications, and additions set forth below.
The Trial Examiner found, and we agree, that the Respondent
Employer's operations affect commerce within the meaning
of the Act. During the year 1952, the Respondent Employer
simultaneously performed services in the States of both
California and Nevada, and thus conducted a multistate enter-
prise.' And since the services performed in each of these
States during this period was over $25,000 in value, the
Respondent Employer performed out-of-State services of
such value, irrespective of whether the Respondent Employer's
base of operations during this period was either the State of
California or the State of Nevada.' Accordingly, there are
two grounds on which we assert jurisdiction in this case.4
THE REMEDY
Having found that the contract between the Respondents
contained illegal provisions, the Trial Examiner recommended
that the Respondents cease giving effect to the entire contract.
However, as no violation of Section 8 (a) (2) has been alleged
or found, we shall limit our order in this respect to requiring
the Respondents to cease giving effect to the unlawful union-
security provisions of the contract.5
ORDER
Upon the entire record in the case, and pursuant to Section
10 (c) of the National Labor Relations Act, the National Labor
Relations Board hereby orders that Charles E. Daboll, Jr.,
Las Vegas, Nevada, his officers, agents , successors, and
assigns, shall:
1. Cease and desist from:
(a) Performing or giving effect to those provisions of his
contract with Operative Plasterers' and Cement Masons'
International Association, AFL, Local Union 797, which re-
quire that employees be members of, or obtain a clearance
from, that labor organization as a condition of employment.
1 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, Murdock, and
Styles].
2 The Borden Company, Southern Division, 91 NLRB 628.
9Stanislaus Implement and Hardware Company, Limited, 91 NLRB 618.
4Arthur G McKee and Company, 94 NLRB 399.
6 Acme Mattress Company, Inc., 91 NLRB 1010.
CHARLES E. DABOLL, JR. 313
(b) Encouraging membership in Operative Plasterers' and
Cement Masons' International Association , AFL, Local Union
797, or in any other labor organization of its employees, by
requiring that applicants for employment be members of,
or obtain a clearance from, the above-named Union as a
condition of employment.
(c) In any like or similar manner, interfering with, re-
straining , or coercing its employees in the exercise of their
rights under Section 7 of the Act:
2. Take the following affirmative action which the Board
finds will effectuate the policies of the Act:
(a) Make whole Clarence B. Sells and Wesley Sinclair for
any loss of earnings suffered as a result of the discrimination
against them in the manner set forth in the section of the
Intermediate Report entitled "The Remedy."
(b) Upon request, make available to the Board or its agents
for examination or copying all payroll records, social -security
payment records, timecards , personnel records and reports,
and all other records necessary or useful to an analysis of
the amount of back pay due under the terms of this Order.
(c) Post at its office in Las Vegas, Nevada, copies of the
notice attached hereto as Appendix A.6 Copies of such notice,
to be supplied by the Regional Director for the Twentieth
Region, shall, after being duly signed by a representative of
Charles E. Daboll, Jr';, lie posted immediately upon receipt
thereof and maintained by' it for sixty (60) consecutive days
thereafter in conspicuous places; including all places where
notices to employees customarily are posted . Reasonable
steps shall be taken to insure that such notices are not
altered, defaced, or covered by other material.
(d) Notify the Regional Director for the Twentieth Region,
in writing , within ten (10) days from the date of this Order
what steps have been taken to compl 'y' heiewith.
Upon the same considerations , tie National Labor Relations
Board hereby orders that Operative Plasterers ' and Cement
Masons' International Association; AFL, Local Union 797, its
officers ; representatives , and agents , shall:
1. Cease and desist frorri:
(a) Performing or giving effect to those provisions of its
contract with Clark E. Daboli, Jr., which require that em-
ployees be member's, bf, or receive a clearance from, the
Union as a condition of employment.
(b) Causing or attempting to cause Charles E. Daboll, Jr.,
to discriminate against any of its employees or applicants for
employment because such employees are not members of, or
have not obtained a clearance from the above-named labor
organization , except in conformity with Section 8 (a) (3) of
the Act.
(c) Restraining or coercing employees of Charles E. Daboll,
Jr., in the exercise of their rights under Section 7 of the Act.
6In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuantto a Decision and Order " the words "Pur-
suant to a Decree of the United States Court of Appeals , Enforcing an Order "
314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action which the Board
finds will effectuate the policies of the Act:
(a) Make whole Clarence B. Sells and Wesley Sinclair for
any loss of pay suffered by reason of the discrimination
against them in the manner set forth in the section of the
Intermediate Report entitled " The Remedy ," and notify in
writing the Respondent Employer, Sells , and Sinclair that the
Union has withdrawn its objection to the employment of the
two named employees.
(b) Post at its business office in the Las Vegas , Nevada,
area copies of the notice attached hereto as Appendix B.' Copies
of such notice , to be furnished by the Regional Director for
the Twentieth Region, shall , after being signed by a repre-
sentative of said Union, be posted by it immediately upon
receipt thereof and maintained by it for sixty (60) consecutive
days thereafter in conspicuous places, including all places
where notices to members customarily are posted . Reasonable
steps shall be taken to insure that such notices are not
altered , defaced , or covered by other material.
(c) Additional copies of Appendix B, to be furnished by the
Regional Director , shall be signed by a representative of
the said Union and forthwith returned to the Regional Direc-
tor. These notices shall be posted on the bulletin boards of
Charles E . Daboll , Jr., where notices to employees are
customarily posted.
(d) Notify the Regional Director for the Twentieth Region,
in writing within ten (10 ) days from the date of this Order
what steps have been taken to comply herewith.
7 In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuantto a Decision and Order " the words "Pur-
suant to a Decree of the United States Court of Appeals , Enforcing an order."
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor
Relations Board, and in order to effectuate the policies of the
National Labor Relations Act, as amended , we hereby notify
you that:
WE WILL cease performing or giving effect to those
provisions of our contract with Operative Plasterers'
and Cement Masons ' International Association, AFL,
Local Union 797, which require that employees be mem-
bers of, or obtain a clearance from, that labor organiza-
tion as a condition of employment.
WE WILL NOT enter into, renew , or enforce any
agreement with said labor organization which requires
our employees to be members of, or obtain a clearance
from, that labor organization as a condition of employ-
ment, except in conformity with the Act, as amended.
CHARLES E. DABOLL, JR. 315
WE WILL NOT encourage membership in said labor
organization by discriminatorily refusing to hire appli-
cants for employment because they have not received
the clearance of the above-named labor organization,
or in any other manner discriminate in regard to hire or
tenure of employment, or any terms or conditions of
employment.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of the rights guaranteed them 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 employment as authorized in Section 8
(a) (3) of the Act.
WE WILL make Clarence B. Sells and Wesley Sinclair
whole for any loss of pay suffered as a result of the
discrimination against them.
All our employees are free to become, to remain, or to
refrain from becoming or remaining members of the above-
named union or any other labor organization, except to the
extent that this right may be affected by an agreement in
conformity with Section 8 (a) (3) of the Act, as amended.
CHARLES E. DABOLL, JR.,
Employer.
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.
APPENDIX B
NOTICE TO ALL OFFICERS, REPRESENTATIVES, AGENTS,
AND MEMBERS OF OPERATIVE PLASTERERS' AND CEMENT
MASONS' INTERNATIONAL ASSOCIATION, AFL, LOCAL
UNION 797
Pursuant to a Decision and Order of the National Labor
Relations Board, and in order to effectuate the policies of the
National Labor Relations Act, as amended, we hereby notify
you that:
WE WILL cease performing or giving effect to those
provisions of our contract with Charles E. Daboll, Jr.,
which require that employees be members of, or receive
a clearance from, our union as a condition of employment.
WE WILL NOT enter into, renew, or enforce any
agreement with the above-named employer which requires
employees to be members of, or obtain a clearance from,
316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
our union as a condition of employment , except in con-
formity with the provisions of the Act, as amended.
WE WILL NOT cause or attempt to cause any employer
to discriminate against employees in regard to their hire
or tenure of employment or any term or condition of
employment in violation of Section 8 (a) (3) of the Act,
as amended.
WE WILL NOT in any manner restrain or coerce
employees of any employer in the exercise of rights
guaranteed them 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 employment as authorized in Section 8 (a)
(3) of the Act, as amended.
WE WILL notify Clarence B. Sells , Wesley Sinclair,
and Charles E. Daboll, Jr ., that we withdraw our objections
to the employment of Sells and Sinclair by Charles E.
Daboll, Jr.
WE WILL make Clarence B. Sells and Wesley Sinclair
whole for any loss of pay suffered because of the discrim-
ination against them.
OPERATIVE PLASTERERS' AND CEMENT
MASONS' INTERNATIONAL ASSOCIATION,
AFL, LOCAL UNION 797,
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.
Intermediate Report and Reccommended Order
STATEMENT OF THE CASE
Upon separate charges duly filed and later amended by Clarence B. Sells, an individual,
against Charles E. Daboll, Jr., herein called the Employer, and Operative Plasterers' and
Cement Masons' International Association, AFL, Local Union 797, herein called the Union,
the General Counsel of the National Labor Relations Board, herein called respectively the
General Counsel and the Board, caused the cases to be consolidated, and issued a complaint
dated October 21, 1952, against the Employer and the Union, collectively called herein the
Respondents, alleging violations of the National Labor Relations Act, as amended, 61 Stat
136, herein called the Act. Copies of the charges, the consolidated complaint, and notice
of hearing were duly served upon the Employer, the Union, and Sells
Pursuant to notice a hearing was held on November 13 and 14, 1952, and on February 4,
195:3, at Las Vegas, Nevada, before the undersigned Trial Examiner, duly designated by the
Associate Chief Trial Examiner The General Counsel, the Employer, and the Union were
represented by counsel, who participated in the hearing, and were afforded full opportunity
to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on
the issues All parties were offered opportunity to argue upon the record and to file briefs
No agrument was had, but the Respondents filed a brief which has been considered
CHARLES E. DABOLL, JR. 317
With respect to the unfair labor practices , the complaint alleged in substance that:
(1) On or about January 1, 1950 , 1 the Employer and the Union executed a labor agreement
violative of the Act, in that it required individuals to obtain clearance from the Union before
the Employer would hire them, (2) on March 10, 1952, the Employer refused to employ
Clarence B Sells and Wesley Sinclair for the reason that they had not obtained clearances
from the Union pursuant to the aforesaid labor agreement, (3) the Union attempted to cause
and did cause the Employer to refuse to employ Sells and Sinclair because neither of them
had obtained a clearance from the Union; (4) both the Employer and the Union by giving
effect to the terms of the labor agreement above mentioned are thereby discriminating in
regard to the hire, tenure, and terms and conditions of employment of employees, thereby
encouraging membership in a labor organization , (5) the Employer by the above conduct has
violated Section 8 (a) (1) and (3) of the Act, and the Union has violated Section 8 (b) (1) (A) and
Section 8 (b) (2) of the Act
At the hearing the Respondents filed a verbal answer to the complaint, in which certain
allegations of the complaint were admitted and others denied In general the Respondents
denied the commission of any unfair labor practices Both Respondents also denied that the
Board has jurisdiction over the operations of the Employer, contending that Daboll's opera-
tions did not affect interstate commerce within the meaning of the Act
Upon the entire record in the case and from my observations of the witnesses, I make
the following:
FINDINGS OF FACT
L THE BUSINESS OPERATIONS OF THE EMPLOYER
The above-named Employer is an individual who, prior to June 5, 1952, was a resident of
the State of California. Daboll is a plastering contractor Apparently, until approximately
December 20, 1951, he confined his business activities to the State of California During 1951
his total receipts from all sources were $274,266 33. In that year he received $242,205
from Michael Grayson, a general contractor , in payment for services and materials furnished
in plastering 433 residential units, which Grayson was building He received $32,061 33
from other contractors for performing several smaller jobs In 1951 Daboll spent $51,205 80
for such plastering materials as lath, sand , cement, and wire All this material was pur-
chased and used within the State of California.
On December 20, 1951, Daboll entered into a contract with the Federal Home Development
Company, Inc., to plaster 352 residential housing units which the Federal Home Development
Company, Inc., was building at Henderson, Nevada The Federal Home Development Company,
Inc., hereinafter referred to as Federal Homes, is a privately owned Nevada corporation
which maintains offices at Las Vegas, Nevada, and at Beverly Hills, California In the
course of the construction which it performed, Federal Homes purchased steel from Michi-
gan, lumber from California, and cabinets from Ohio. The total cost of these items for all
units was $343,100 The contract price for the labor and materials to be furnished by Daboll
was $323,000. Early in 1952 Daboll began performance of the contract, and in October 1952
completed the plastering of all 352 units . By the terms of his agreement with Federal Homes,
Daboll was to supply both the labor involved and the materials necessary to the completion
of the contract. He ordered all building materials from the Atwater Company Limited of
Los_ Angeles, California, who shipped the material to the job site in Nevada These pur-
chases amounted to $ 132,518, These materials were all used in the Henderson project
except for a small amount which was used on a small job at Las Vegas, Nevada, for which
Daboll was paid $ 2,400. Over objection by the General Counsel, Daboll testified that approx-
imately $ 55,000 worth of the material ordered from Atwater Company Limited was manu-
factured by the Blue Diamond Company of Nevada, which mined, manufactured, and shipped
this material to the job site from its plant at Las Vegas. The remainder of the material
was shipped to the job site from outside the State of Nevada The Henderson project and
the small job previously mentioned constituted Daboli's entire business operation for the
year 1952 in Nevada
However, during the year 1952, Daboll performed services for various customers in the
State of California, to the extent of $ 27,484 42. Daboll also testified that on June 5, 1952,
he moved permanently from California to Nevada, and at that time moved his business into
Nevada.
i Evidently-this, date is a typographical error All parties agreed their relationship was
governed by a contract dated January 1, 1951, General Counsel's Exhibit No. 2 in evidence
318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Henderson, Nevada, where the housing units were built, is a town of approximately 7,000
population, situated approximately 12 miles from Las Vegas. Henderson is the site of several
large industrial plants which are connected with the magnesium industry, which in turn is
connected with the atomic energy program. Among the plants located at Henderson contrib-
uting to the atomic energy program are Titanium Metals Corporation, Manganese Incor-
porated, Western Electro-Chemical Company, Stauffer Chemical Company, and United
States Lime Products Corporation. The residential units were erected within walking distance
of these plants. However, there is no proof in this record that a person connected with
defense production has any priority as to the rental or purchase of any of the housing units
erected by Federal Homes. Apparently the rental or purchase of the units is offered to the
general public, without regard to personal occupation.
On the basis of the above facts, the General Counsel contends that the operations of Daboll
affect interstate commerce on two points. The first is that Dabollis conducting a multistate
enterprise by performing plastering work in each of the States of Nevada and California to
an extent above $25,000 in value. The second point is that Daboll's operations, regarded
in connection with the entire housing project of Federal Homes, which is situated near a
center of defense activity, substantially affects the national defense.
The Respondents on the other hand contend that Daboll's operations did not bring into
either California or Nevada, from outside the boundaries of either State, sufficient materials
to bring his operations within the legal definition of interstate commerce. Respondents
claim that Daboll is simply a small plastering contractor who for a portion of his time
operated in California, and who at a later period operated in the State of Nevada, which
on June 5, 1952, became his home, and the sites of his business operations.
The question is a close one. However, on the basis of all the evidence, I find that Daboll
operated on a two-State basis. In 1951 he performed services in the State of California in
the amount of $ 274,266 33 However, with the advent of the job at Henderson, Nevada, his
operations extended across State lines. In 1952, he simultaneously performed services
in the State of California in the amount of $27,484.42, and services in the State of Nevada
in the amount of $323,000. In view of this simultaneous operation in two States, I find that
Daboll was conducting a multistate enterprise in the States of California and Nevada and,
since he performed services of a value over $25,000 in each State in the year 1952, that his
operations affect commerce within the meaning of the National Labor Relations Act as
defined in previous cases of the Board.2
With the General Counsel's contention that Daboll's operations substantially affected the
national defense, I cannot agree. There is no evidence that the Federal Homes project was
other than a private project of a private corporation, financed by private funds, for the pur-
pose of private gain. Though the houses were built in the vicinity of certain plants which
produce products ultimately used in the national defense program, that fact is not sufficient
to sustain the allegation that Daboll's operations substantially affect the national defense.
For the reasons stated above, I find that the Employer is engaged in interstate commerce
within the meaning of the Act.
II. THE UNION
Operative Plasterers' and Cement Masons' International Association, AFL, Local Union
797, is a labor organization within the meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The illegal contract
At the hearing the Respondents admitted that the hiring procedures followed on the Hender-
son job were set forth in a contract dated January 1, 1951, executed by the Master Plasterers
of Las Vegas and the Union. The Employer is not a signatory of this contract, but it is clear
that the Employer and the Union adopted this contract sometime prior to hiring men for
the Henderson job, and that in all hiring for the job, the contract was rigidly enforced by
the Respondents. The General Counsel's complaint alleges that this agreement contains
a union-security clause which requires individuals to obtain clearances to work from the
Union, before the Employer may hire them. The terms of the contract establish this allega-
tion. The contract in part reads as follows:
2McKee and Company, 94 NLRB 399, 400; Stanislaus Implement and Hardware Co., Ltd ,
91 NLRB 618.
CHARLES E. DABOLL, JR. 319
The Employer does hereby agree and affirm that he does recognize the O. P. &-C E L A.,
Local#797 as exclusive representative of all work performed which the Plasterers'
have jurisdiction on and shall require that all Plasterers on the job shall be members in
good standing of this Local Union, known as the Party of the Second part. Evidence of
good standing to be determined by the possession of a paid up current working Building
Trades Card issued by the Secretary of Local No. 797.
This Local Union agrees to furnish competent men to all employers. Should an
occasion arise wherein the Local Union is unable to furnish requested men within
forty-eight hours after said requisition is placed, the employer shall be free to request
men himself through other Local Unions, provided the employer abides by the Inter-
national Constitution of the 0, P. & C. F. I. A., and the Constitution of the Local Union
and that the men have clearances from Local #797 before going to work. (Emphasis
supplied.)
B. The hiring procedure; the discrimination
against Sells and Sinclair
Charles E. Daboll, Jr , testified credibly that when he came to the Las Vegas area to enter
upon the Federal Homes contract he brought Fred Longstreet with him as foreman. Long-
street, as Daboll's foreman of plasterers, gave daily supervision to the job. Daboll spent
approximately 2 days in each week on the job site. Longstreet had full authority to hire,
fire, discipline, and direct the plasterers and laborers. Daboll testified that when he came
to the Las Vegas area he required a group of plasterers to perform the job. He found a
bona fide group of plasterers, capable of performing the job, in the Union. He made arrange-
rs ants with the Union to provide him with plasterers, and thereafter all the men who were
hired by Longstreet or Daboll were referred to the job by the Union.
Clarence B. Sells, a colored man, testified credibly that he has been a plasterer for
approximately 15 years. For approximately 5 years prior to the time he came to the Las
Vegas area he had been a member of Local 400, Operative Plasterers and Cement Finishers
International Association of the United States and Canada, AFL, Santa Monica, California.
Around September 11, 1951, work at Santa Monica became slack. He then journeyed to
Las Vegas, where he met Wesley Sinclair, his brother-in-law, who was also a plasterer,
and who had informed him that some work was available in the Las Vegas area. Sells and
Sinclair went to the union hall and saw Jerry Berry, the business agent for the Union. Sells
asked Berry to accept his travelbook Berry told the men that there was no work in the
area for plasterers, and refused to accept Sells' travelbook. Berry told the men that there
were some jobs finishing cement and laboring in the area, and that if they switched over to
the appropriate trade local, they could perhaps find a job at those trades . Berry also told
the men that if some plastering work arose he would let them know. For some time there-
after both men worked as laborers in the Las Vegas area , while they sought jobs throughout
the area at their trade of plastering. During all this time the men kept in touch with Berry
who told them that there were no plastering jobs available.
On or about March 10, 1952, Sells and Sinclair went to the project at Henderson where
Daboll was performing the plastering for Federal Homes. They sought out Foreman Long-
street and asked him if he needed plasterers Longstreet said he needed plasterers but that he
could not hire the men, that they would have to obtain a clearance from the Union. He'
took the men aside from the job to a place where he could speak to them privately. He told
them that they had to see Jerry Berry, the representative of the Union, because Berry did
all the hiring on the job. Longstreet told them that if he hired them without a clearance
from the Union, Berry would pull all the men off the job
Sells and Sinclair then went again to see Jerry Berry. They located Berry at the union
hall and told him that Longstreet would put them to work the following morning if Berry
would give them a clearance. Berry became very angry and said that Longstreet didn't know
what he was talking about, that if Longstreet needed plasterers, Berry would know about
it. The men repeated to him Longstreet's assurance of work, and again asked that they be
given clearance. Berry again refused clearance, saying that there was no work for them.
A few days later Sells went back to Henderson and saw Longstreet on the project. When
Longstreet saw Sells, Longstreet immediately threw up his hands and told Sells that he
could not employ him without a clearance. Sells then obtained a job with the Tee Plastering
Company as a hod carrier. After working about 2 weeks as a hod carrier, he quit the job
and went back to Berry and told Berry that he had quit carrying the hod, and that he wanted
work at his trade as a plasterer. He also paid Berry $28 dues which he owed the Union. At
320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this time Sells spent considerable time at the union hall waiting for a job . On occasion
he saw other plasterers obtain clearances from Berry. He called this situation to Berry's
attention but Berry told him that there was no job as plasterer available to Sells . On several
later occasions Sells spoke to both Longstreet and Berry , without obtaining employment.
Sells filed the instant charges with the Board on April 29 , 1952. On that date Miller, a
field examiner for the Board, interviewed both Sinclair and Sells . Miller then accompanied
the men to Daboll's office where they saw Daboll. Miller explained the situation , and Daboll
said that he personally was willing to give the men a job, but that he could not do it as the
Union had his hands tied. In the course of this conversation , Sinclair and Sells spoke about
being discriminated against because of their color. Daboll said that he had employed many
colored plasterers in Los Angeles but in Las Vegas the matter was out of his hands, that
he employed only men who had obtained clearance from the Union and that he couldn't
give the men a job without a clearance from the Union. On this same date , Sells again
went to the Local and talked to Berry and received the same answer , that there was no
work for him.
Sells stated that the Union maintains a list of plasterers who are out of work, at the
union hall, and that he had requested Berry on many occasions to put his name on the list
but that Berry had never complied with his request . Wesley Sinclair and Annabelle Sells
both testified credibly corroborating certain portions of Sells' testimony. I credit the
testimony of these three witnesses.
Jerry Berry testified as a witness for the Respondent Union. He testified that he first
talked with Sells around September 1, 1951. Sells asked him for work on that occasion, and
he explained to Sells that work was very slow, and that the Union had a large number of
members out of work. Berry denied that he refused to accept Sells' book . He testified that
he told Sells that he would accept his book, but that there wasn 't any work for him, and if
he had any knowledge of where he could get a job, he might as well keep his book. Later,
on November 13, 1951 , when Sells again presented his book for deposit, Berry accepted it.
About a week after deposit of the book, Sells again came to the office and asked Berry
for work. Berry again told him there were a lot of men out of work, and there wasn't any
work at the time . Berry admitted that Stills came to the office onhalf a dozen occasions
and that Berry always told him that there wasn 't any work. On a couple of occasions Berry
saw Sells on different construction jobs where Sells was working as a laborer . On those
occasions he also told Sells that there was no work. Berry stated that on one occasion
Sells ' wife called him on the telephone and asked him how work was, and he told her there
wasn't any work at that time . Berry explained that on some occasions he had as high as
20 to 30 men out of work at a time and that some of these men had been out of work as
long as 6 months . Berry stated that no employer had ever requested that Sells be dispatched
to the job. Berry also admitted that in assigning work from the out-of-work list, a pre-
ference was given to members who were residents of Las Vegas.
Berry's testimony that no jobs were available during the time that Sells and Sinclair were
requesting work was proven false by records of the Employer , which were produced pursuant
to a subpena issued by the General Counsel. These records established that in the period
beginning with the payroll period of March 5, 1952 , and ending with the payroll period of
April 30, 1952 , Daboll through the Union hired approximately 28 plasterers , all of whom
were steadily employed on the project thereafter.
Berry also testified that the contract between the Master Plaster Contractors and the
Union, dated January 1, 1951, was originally signed by the parties in the year 1946, and
that the contract in evidence ,3 dated January 1, 1951, was the contract for that year. He
testified that no changes were made by the parties in the contract during the period 1946
to 1951 , except on the subject of wages . Wages were negotiated annually between 1946 and
1951.
I do not credit the testimony of Berry . His testimony that there were no plastering jobs
available in the Las Vegas area during March and April 1952 is established to be false by the
payroll records of the Employer . Furthermore , Berry's demeanor and bearing on the witness
stand were not such as to inspire confidence.
Concluding Findings
It is worthy of note that the testimony of Sells, his wife , and Sinclair is practically un-
disputed in this record. Both the Employer and the Union admit that Sells and Sinclair
were not given clearance and were not hired at a time when the Union was referring plasterers
sGeneral Counsel ' s Exhibit No. 2 in evidence.
CHARLES E. DABOLL, JR. 321
to the job and the Company was accepting these men as employees . The Respondents seek
to escape responsibility for this discrimination by a rather ingenious defense.
It is the claim of the Respondents that the pertinent union -shop provisions , including that
of clearance , were originally set up in a contract between the Master Plumbers of Las Vegas
and the Union in the year 1946 , sometime prior to the enactment of the Labor -Management
Relations Act of 1947; that the contract was automatically renewed from year to year,
except that wages were negotiated annually , and that therefore the contract dated January 1,
1951, is lawful, and unaffected by the Labor - Management Relations Act The Respondents
claim that the January 1 , 1951 , contract is in reality the 1946 contract , which has been
"extended" within the meaning of the court 's decision in Clara-Val Packing Co., 191 F. 2d
556 (C. A. 9), and International Ass'n . of Heat and Frost Insulators and Asbestos Workers,
Local No. 7, AFL , 199 F . 2d 321 (C. A. 9).
I find that contention to be without merit . In the first place , I find Respondents ' evidence
is insufficient to establish that the contract dated January 1, 1951, is in fact a 1946 contract
between the Master Plasterers and the Union "extended " into 1951 . Respondents have not
introduced in evidence any document purporting to be the original 1946 contract. Such a
document would, of course , be the best evidence on that point . The Respondents base their
contention on the unsupported testimony of Jerry Berry , business agent of the Union, that
the contract in evidence is the same contract which was executed in 1946 . Heretofore I have
stated that I found a very substantial portion of Berry's testimony to be false . His testimony
that there were no jobs available in Marchand April 1952 was proven false by the Employer's
records . Inasmuch as Berry's testimony has been entirely unreliable on one of the major
issues in the case , I do not accept his unsupported testimony on this point.
The Respondents ' contention is also without merit for a second reason . Even if we assume
arguendo that the Master Plumbers of Las Vegas and the Union executed a contract in 1946
governing wages , hours , and conditions of work for plasterers in the Las Vegas area, such
a contract would not be available as a defense to the Respondents in this proceeding. Daboll
was not operating in Nevada at that distant date, and could not have been a party to any
contract in 1946 . Indeed he is not a signatory to the contract of January 1, 1951 . The evidence
is that Daboll , at the time he undertook to perform plastering in the Las Vegas area, on or
about January 1 , 1952 , agreed with the Union to adopt the January 1, 1951 , contract between
the Master Plasterers and the Union . That was the first time that any contractual relation-
ship existed between Daboll and the Union . Surely , these Respondents cannot now be per-
mitted to claim that they are exempted fromthe operation of the Labor -Management Relations
Act because of a contract of other parties . For these reasons , I find that the only contract
here involved is that of January 1 , 1951, and that its terms are clearly violative of the Act.
In that posture of the case , the violations of the Act alleged in the complaint are, for all
practical purposes , admitted.
Upon the entire record I find that : (1) On or about January 1 , 1952 , the Respondent Em-
ployer and the Respondent Union entered into a labor agreement which contained a union-
security clause which restricted employment to members of the Respondent Union and to
those individuals to whom the Union would issue a clearance for work; (2) pursuant to
that agreement the Respondent Employer on March 10 , 1952 , refused to employ Clarence B.
Sells and Wesley Sinclair , for the reason that they had not obtained work clearances from
the Union ; (3) by such action the Union caused the Employer to refuse to employ Sells and
Sinclair , as stated above; and (4) by giving effect to the terms of the aforementioned labor
agreement , the Respondent Employer engaged in unfair labor practices within the meaning
of Section 8 (a) (1) and (3) of the Act , and the Union engaged in unfair labor practices within
the meaning of Section 8 (b) (1) (A) and Section 8 (b) (2) of the Act.4
V. THE REMEDY
Having found that the contract of January 1, 1951, between the Respondents contains illegal
provisions , it will be recommended that the Respondents cease and desist from giving
effect to the entire contract ,5 and from entering into, renewing , or enforcing any agreement
which requires membership in the Union or clearance from the Union as a condition of
employment.
4Carpe -ir and Skaer , Inc , et al., 93 NLRB 188; Phoenix Tinware Co., 100 NLRB568;
Mundet Cork Corporation , et al., 96 NLRB 1142.
5 Nothing in these recommendations shall be deemed to require the Respondents to vary or
abandon any substantive provision of such agreement or to prejudice the assertion by em-
ployees of any rights they may have acquired thereunder.
322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Having found that the Respondents engaged in unfair labor practices , it will be recom-
mended that they cease and desist therefrom and take certain affirmative action designed
to effectuate the policies of the Act. It has been found that: (1) From March 10, 1952, until
the completion of the plastering at the Henderson project, the Respondent Employer dis-
criminated against Clarence B. Sells and Wesley Sinclair in their hire , tenure , terms,
and conditions of employment; (2) such conduct by the Employer encouraged membership
in the Respondent Union and interfered with, restrained, and coerced employees in the
exercise of rights guaranteed by Section 7 of the Act; -and (3) the Respondent Union engaged
in unfair labor practices by causing the above-named Employer to so discriminate, thereby
restraining employees in the exercise of rights guaranteed by the Act. Since it appears that
the plastering on the Henderson project has been completed , and hiring in the building trades
is on a job basis , it will not be recommended that employment be offered to Sells and Sinclair
by the Respondent Employer. However, it is recommended that the Union notify the Employer,
Sells, and Sinclair in writing that it has withdrawn its objections to the employment of Sells
or Sinclair, and that the Employer is free to employ those men on any job which may arise
in the future.
Having found that the Employer and the Union were jointly responsible for the discrimina-
tion in the hire and tenure of employment of Sells and Sinclair , it is recommended that: (1)
The Employer and the Union, jointly and severally, make Clarence B. Sells and Wesley
Sinclair whole for any loss of pay they may have suffered by reason of the discrimination
against them, by payment to each of them of a sum of money equal to the amount he would
normally have earned as wages during the period of discrimination against him, less his
net earnings during this period. This period begins in each case on March 10 , 1952 , and ends
on the date upon which the plastering on the Henderson job was completed.
Upon the basis of the foregoing findings of fact and upon the entire record in the case, the
undersigned makes the following:
CONCLUSIONS OF LAW
1. Operative Plasterers' and Cement Masons' International Association, AFL, Local
Union 197, is a labor organization within the meaning of Section 2 (5) of the Act.
2. By executing and enforcing the contract of January 1, 1951, the Respondent Employer
has engaged in and is engaging in unfair labor practices within the meaning of Section 8
(a) (3) of the Act.
3. By interfering with, restraining , and coercing employees in the exercise of rights
guaranteed in Section 7 of the Act, the Respondent Employer has engaged in and is engaging
in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
4. By causing the Respondent Employer to discriminate against employees in violation
of Section 8 (a) (3) of the Act, the Respondent Union has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (b) (2) of the Act.
5. By restraining and coercing employees in the exercise of the rights guaranteed in
Section 7 of the Act , the Respondent Union has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (b) (1) (A) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 (6) and (7 ) of the Act.6
[Recommendations omitted from publication.]
6 The proposed findings of fact and conclusions of law submitted by the Respondents are
hereby specifically not found.
In the hearing the General Counsel moved that the Daboll Company, Inc ., a Nevada corpora-
tion which has taken over the plastering contracting business of the Employer , be named
specifically as a "successor " in this recommended order . The motion is hereby denied, on
the ground that the corporation is not a party to this proceeding , and has had no opportunity
to present evidence on the question of whether or not it is Daboll ' s "successor ," as that term
has been legally defined That question can be resolved in an appropriate proceeding in which
the corporation is made a party, if the need arises . This proceeding has extended to only a
part of the evidence on that question . Until the corporation has had an opportunity to present
its evidence , the motion is premature.