Employing Bricklayers' Association of Delaware Valley and Vicinity

National Labor Relations Board - Board Decisions

Dec 26, 1961

134 N.L.R.B. 1535 (N.L.R.B. 1961)

EMPLOYING BRICKLAYERS' ASSN.' OF DELAWARE VALLEY 1535
Employing Bricklayers ' Association of Delaware Valley and
Vicinity and John T. Hennelly. Case No. 4-CA-2221. Decem
ber 26, 1961
DECISION AND ORDER
On June 13, 1961, Trial Examiner James A. Shaw issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had not engaged in the unfair labor practice alleged in
the complaint and recommending that it be dismissed in its entirety,
as set forth in the Intermediate Report attached hereto. Thereafter,
the General Counsel filed exceptions to the Intermediate Report and
a supporting brief.
The Board has reviewed the rulings of the Trial Examiner made
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 this case, and finds merit in the General Counsel's exceptions.
The facts of this case are virtually undisputed. Andrew Cromwell
is the executive secretary of the Respondent Association, and its agent.
He is also a member in good standing of Local 1, Bricklayers, Masons
and Plasterers' International Union of America, AFL-CIO.' , On
July 22, 1960, Local 1 conducted an election for delegates to the Inter-
national's biennial convention. Cromwell insisted on voting at this
election and did cast a ballot over the objection of some Local 1 offi-
cials . The Trial Examiner, upon careful consideration of the appli-
cable precedents, concluded that Cromwell's participation in the
election did not constitute illegal assistance on the part of the Respond-
ent in violation of Section 8(a) (2) of the Act, because he considered
that the selection of delegates to an International convention every
2 years was too remote from the Local's bargaining functions for the
Board to take cognizance of. With full realization of the reasonable-
ness of the Trial Examiner's conclusion, we nevertheless hold that
Cromwell's participation in an election of delegates to the Interna-
tional convention goes beyond his right as a member of the Union to
participate in its affairs, in view of his position as an agent of the
Respondent.
The Board and the courts have uniformly held that management
officials and supervisory employees who are members of a labor organ-
ization but are excluded from an applicable bargaining unit may not
' At the hearing, the General Counsel offered evidence of alleged practices by the Re-
spondent of a nature similar to those charged herein, which purportedly had occuried
after the issuance of the instant complaint . The Trial Examiner denied the General
Counsel's offer. Since we find ',merit in the General Counsel's exceptions to the Inter-
mediate Report , we find it unnecessary to pass , on the Trial Examiner ' s ruling because any
additional findings of violations would be merely cumulative
'The Local and its parent organization are hereinafter referred to as Local 1 and the
International ,, respectively.
134 NLRB No. 145.
1536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ,
participate in the administration of the local by voting in local union
elections which are held to select officials of locals who are to partici-
pate in the negotiation and administration of the local's contracts.'
In this case, however, as noted by the Trial Examiner, the connection
between the officials being voted for and the bargaining process at
the local union level was indirect.
It is common knowledge that, either for historical reasons or as a
result of the emergence of bargaining problems common to an entire
industry, international unions do exert influence and control over the
bargaining powers and functions of their locals. The interaction of
Local 1 on the policies of this International and that of the Inter-
national on Local 1 are well illustrated by the issues which have been
considered and voted on at recent conventions of the International.
At the 1958 convention, resolutions were presented (1) to amend
the International constitution regarding the type of equipment which
locals, whose members worked in the homebuilding field, would be
permitted to use; (2) to discontinue a policy of the International
specifying a particular weight of masonry above which two brick-
layers were required; (3) to stay the International's participation in
local union affairs until arbitration had been exhausted and a strike
was imminent; and (4) to negotiate a nationwide pension plan, includ-
ing contributions from employers, for the benefit of members of the
International. At the 1960 convention, which delegates from Local 1
attended and in whose election Cromwell had participated, resolutions
were presented involving a pension fund proposal, and permission to
local unions to negotiate with employers the weight of a masonry
unit above which two men would be required. The action taken by the
convention on the latter resolution resulted in a change in the Inter-
national's policy, permitting the locals greater leeway in negotiating
on the subject with employers.
In N.L.R.B. v. Employing Bricklayers' Association of Delaware
Valley c Vicinity, et al., 292 F. 2d 627 (C.A. 3), enforcing 127 NLRB
188, involving the labor organization, the Respondent, and the Charg-
ing Party in the instant case, the Respondent there admitted that
it was proper for the Board to prohibit supervisors from- voting at
union elections where members of the bargaining or grievance com-
mittees or business representatives were to be chosen, but the Respond-
ent contended that the Board's order in that case should not prohibit
members of the Union in good standing from voting for officers
and committee members where such voting or participation did not
a Nassau and Suffolk Contractors' Association, Inc., et al, 118 NLRB 174; N.L.R.B. v.
Anchorage Businessmen's Association , Drugstore Unit, 289 F. 2d 619 ( CA 9), enfg.
124 NLRB 662 ; Local No. 636 of the United Association of Journeymen , etc. (Detroit
Assn . of Plumbing Contractors ) v. N.L R.B., 287 F. 2d 354 (C.A.D C.), enfg. in part and
remanding in part 126 NLRB 1381 ; N.L.R.B. v. Employing Bricklayers' Association of
Delaware Valley & Vicinity, at al., 292 F . 2d 627 ( C.A. 3) enfg. 127 NLRB 188.
EMPLOYING BRICKLAYERS' ASSN. OF DELAWARE VALLEY 1537
pertain to the collective-bargaining process, or to the wages, hours,
or working conditions of the union members. The court answered
this with a statement which also has relevance here. It said that
Respondent's contention "does not take into account the `facts of life""
relationship between policies relating to the bargaining process formu-
lated by such officers and their critical impact on the members of the,
union bargaining committee in the performance of their functions."
Very little that either a local or international union concerns itself'
with is wholly unrelated to the negotiation and administration of
bargaining agreements. To the extent that management officials are,
permitted to participate in the formulation of a union's policies, relat-
ing directly or indirectly to negotiating and administering bargaining
agreements, such officials are forced to choose between competing
loyalties. Management officials may even make these choices based
on their personal rather than their employers' interests, and in some,
degree their choices may even be of greater benefit to the union than
they are to the employer. But despite the possibility that a manage-
ment official, who is also a member of a union, may act from what he
conceives the true interest of the union to be, this is nevertheless an
area in which, in our opinion, only union members who have no
divided loyalties should be admitted.
In this particular case, any effect which Cromwell might have had
on the formulation of the International's policies, through his vote
for delegates of the Local, might be slight. But because of his status
in the Respondent Association, his vote represents the judgment of a
person with dual loyalties, which are not always easily reconcilable.
We find, therefore, the Cromwell's voting for Local 1's delegates to
the International convention was an intrusion into the administrative
affairs of the Local, and constituted illegal assistance to the Local
within the meaning of Section 8(a) (2) and (1) of the Act.
THE REMEDY
As we have found that the Respondent by the conduct herein de-
scribed unlawfully interfered with the administration of the Union,
we shall order that it cease and desist from participating through its
officers, owners, or management representatives in Local Union elec-
tions of delegates to the International Union's biennial convention,
or by participating otherwise in the internal administration of the
Local Union.
Under the circumstances, however, we find that it will not effectuate
the policies of the Act to direct the Respondent either to cease and
desist from recognizing the Union or to withdraw or withhold recog-
nition therefrom .4
J
' Employing Bricklayers' Association of Delaware Valley & Vieindty, at al., supra.
630849-62-vol. 134-98
1538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Employing Bricklayers'
Association of Delaware Valley and Vicinity, its officers, agents, sue-'
cessors, and assigns, shall:
1. Cease and desist from interfering with the administration of
Local 1, Bricklayers, Masons and Plasterers' International Union of
America, AFL-CIO, by participating through its officers, owners,
and management representatives in voting at union elections of dele-
gates to the International Union's biennial convention, or by partici-
pating otherwise in internal administration of the said labor
organization.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post at its offices in Philadelphia, Pennsylvania, and at the
headquarters of Local 1, Bricklayers, Masons and Plasterers' Inter-
national Union of America, AFL-CIO, in Philadelphia, Pennsyl-
vania, the Union willing, copies of the notice attached hereto marked
"Appendix." 5 Copies of such notice, to be furnished by the Regional'
Director for the Fourth Region, shall, after being duly signed by
representatives of Respondent Association, be posted by it immedi-
ately upon the receipt thereof, in conspicuous places, including all
places where notices to employees are customarily posted. The notices
shall remain posted for 60 consecutive days thereafter. Reasonable
steps shall be taken by the Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(b) Notify the Regional Director for the Fourth Region, in writ-
ing, within 10 days from the date of this Order, what steps the Re-
spondent has taken to comply herewith.
CHAIRMAN McCuLLOCH, dissenting :
I agree with the Trial Examiner that Cromwell's participation in
the election of delegates to the Union's international convention did
not interfere with any employee's Section 7 rights or interfere with
or assist in the administration of the local union in violation of Sec-
tion 8 (a) (1) or (2). I would therefore affirm the Trial Examiner's
dismissal of the complaint against the Respondent here.
It is not uncommon for union members who have become manage-
ment officials to retain their union membership. Granted this may
create dual loyalties and some conflicts of interest, it is not unlawful.
Indeed, Section 14(a) expressly permits it.
5 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there 'shall,be substituted for the words, ')'Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an order."
EMPLOYING BRICKLAYERS' ASSN. OF, DELAWARE VALLEY 1539
In such situations,•however, the Board is-rightly concerned to pro-,
tect rank-and-file union members and the administration of the union
organization against interference by supervisors. In the language of
the Supreme Court, it must carry out the "clear legislative policy to
free the collective bargaining process from all taint of an employer's
compulsion, domination or influence." (International Association
of Machinists, Tool c Die Makers Lodge No. 35 v. N.L.R.B. (Serrick
Corp.), 311 U.S. 72, 80.) The cases, cited by the majority, barring
supervisor' participation in elections of local union officers and bar-
gaining representatives are an appropriate application of that prin-
ciple, even where as in the present case the executive board of the
International on at least one earlier contested occasion expressly per-
mitted employer local members to vote in a local union election.
But the Board under the authority of the statute in Section 14(a)
must also recognize the right of a union member who is a supervisor
to participate in the affairs of his union, short of such interference.
Like the Trial Examiner, I would find the participation of Cromwell
(the only such supervisor out of 319 voting members) in this election
for convention delegates to be too remote from and not sufficiently
directly related to the internal affairs or administration of the local
union to constitute unlawful interference or assistance.
The majority concedes that the effect of Cromwell's- vote on the
making of the International's policies "might be slight," but finds a
violation because of his divided loyalties. This principle would bar
virtually every act of participation by a supervisor-member. I would
not interpret the statutory prohibition so broadly. I would draw the
line on what constitutes unlawful interference or assistance short of
what was done by the concededly highly placed management official
here.
In other circumstances, I could find improper interference with the
administration of a labor organization where supervisor-members
vote in an election for convention delegates. The number of such
supervisors voting; their positions in the management hierarchy, on
the one hand, and in the union structure, on the other; the issues in the
election; the proximate connection of these issues to the bargaining
relations with the employer; these and other factors could establish
proof of such interference. Doubts should perhaps generally be
resolved against permitting even a questionable degree of participa-
tion, for the Board should give primary protection to the rights of
rank-and-file members to be free of such employer interference.
But in view of the careful statutory preservation of the rights of
supervisors to remain as union members, and in the absence of any
showing here of acts by Cromwell either interfering or tending to
interfere with the Union's internal administration or bargaining with
employers, I would dismiss the complaint. The Board can protect
1540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
basic membership rights in appropriate cases without setting in mo-
tion the whole administrative machinery to deal with an isolated
incident of supervisor bravado.
APPENDIX
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, we hereby notify our employees that :
WE WILL NOT interfere with the administration of Local 1,
Bricklayers , Masons and Plasterers ' International Union of
America, AFL-CIO, by participating through our officers, own-
ers, or management representatives in voting at Local Union
elections of delegates to the International Union's biennial con-
vention, or participating otherwise in its internal administration.
EMPLOYING BRICKLAYERS ' ASSOCIATION OF
DELAWARE VALLEY AND VICINITY,
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.
rj
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding against Employing Bricklayers' Association of Delaware Valley
and Vicinity, herein referred to as the Association or the Respondent, involves alleged
violations of Section 8(a) (1) and (2) and Section 2(6) and (7) of the Act, and was
initiated by John J. Hennelly, herein called Hennelly or the Charging Party. The
hearing was conducted before Trial Examiner James A. Shaw in Philadelphia, Penn-
sylvania, on February 13, 14, and 15, 1961. The parties participated in the hearing
and were afforded full opportunity to be heard, to examine and cross-examine wit-
nesses, to introduce evidence bearing upon the issues, to argue orally, and to file
briefs and/or proposed findings of fact and conclusions of law with the Trial Exam-
iner. Though counsel for the parties argued at times before the Trial Examiner in re-
gard to their respective positions on specific issues, they waived formal oral argument
,at the close of the taking of testimony. Briefs were received from the General Coun-
sel and the Respondent on April 19, 1961. They have been carefully considered by
the Trial Examiner.
On April 28, 1961, the parties submitted to the Trial Examiner for his approval a
formal stipulation in regard to the activities of Andrew Cromwell in his official ca-
pacity as an employee of the Association.' In addition the stipulation included cer-
tain proposed corrections of the record herein. The Trial Examiner hereby accepts
and approves the stipulation in its entirety, and has marked it for idenitfication
as Trial Examiner's Exhibit No. 1, and placed it in the formal exhibit file.
Upon the entire record in the case, and from his obervation of the witnesses, the
Trial Examiner makes the following:
i See infra.
EMPLOYING BRICKLAYERS' ASSN. OF DELAWARE VALLEY 1541
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The complaint alleges, the answer admits, and the Board has previously found
in Bottfield-Refractories Co. et al., 127 NLRB 188 that: Respondent Association
is a corporation duly organized under and existing by virtue of the laws of the Com-
monwealth of Pennsylvania, with its principal offices located in Philadelphia, Penn-
sylvania; Respondent Association is an association of masonry contractors which was
formed and exists for the purpose, among others, of negotiating and administering
collective-bargaining agreements made for and on behalf of its member-employers
with labor organizations representing employees employed respectively by member-
employers, and is the designated collective-bargaining representative of its members;
at all times material herein, each of the member-employers of the Respondent Associ-
ation has maintained a principal place of business in the Commonwealth of Pennsyl-
vania, and is engaged as a masonry contractor in the building and construction
industry.
During the past year, the said member-employers of the Respondent Association,
in the course and conduct of their business operations, contracted for and performed
services as masonry contractors valued in excess of $50,000, of which services valued
in excess of $50,000 were contracted for and performed in States other than the Com-
monwealth of Pennsylvania.
Upon all of the foregoing the Trial Examiner finds that the Respondent Association
and its member-employers are, and have been at all times material herein, employers
engaged in commerce within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
•
Local 1, Bricklayers, Masons and Plasterers' International Union of America,
AFL-CIO, herein called the Union, and Bricklayers, Masons and Plasterers' Inter-
national Union of America, AFL-CIO, herein called the International Union, are
labor organizations within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The issue
As the Trial Examiner sees it the sole issue herein is as follows- Did the Respond-
ent Association by its officer, agent, or management representative, Andrew Crom-
well, engage in conduct violative of Section 8(a) (2) and (1) of the Act, by casting a
ballot and voting for a delegate to the 1960 biennial convention of the International
Union, at an election conducted by Local 1, on July 22, 1960?
The General Counsel in his complaint contends that it did. The Respondent in its
answer denies in toto his contention in this regard.
Let us first look4at the essential allegations in the complaint upon which the Gen-
eral Counsel relies in support of his contention. Briefly stated they are as follows:
(1) The Union at all times material herein is the exclusive collective-bargaining
representatives of the bricklayer employees of the Respondent Association and its
member-employers in the Philadelphia, Pennsylvania, area. For many years the Re-
spondent Association and its member-employers have bargained with the Union as the
exclusive representative of their bricklayer employees, and are and have been parties
to a collective-bargaining contract covering said employees; (2) at all times mate-
rial herein Andrew Cromwell has been an officer, agent, or management representa-
tive of the Respondent Association, occupying the position of executive secretary; 2
(3) at all times material herein, Cromwell, as executive secretary, has participated in
the adjustment of disputes and grievances arising under, and in the administration of,
the agreement between the parties, on behalf of the Association; (4) at all times ma-
terial herein, Cromwell, as executive secretary, has participated in policy decisions
made by the Association governing its dealings, and collective-bargaining relation-
ship, with the Union; (5) on July 22, 1960, balloting was conducted by the Union for
the election of its delegates to the 1960 biennial convention of the International
Union; (6) "On July 22, 1960, the Respondent Association, through its officer, agent,
or management representative, Andrew Cromwell, did cast a ballot and vote in the
said election of the Union's delegates as described" above; and -(7) by the afore-
said activities of Cromwell the Respondent engaged in conduct violative of Section
8(a) (2) and (1) of the Act.
2 See infra for a clarification of,Cromwell 's duties.
d
1542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent by its original answer and by certain concessions and stipulations
at the hearing herein admitted certain jurisdictional allegations in the complaint, but
denied that it had engaged in any of the alleged unfair labor practices.
B. Background
In order to understand the issues herein the Trial Examiner is convinced that
particular reference should be made to a previous case involving the identical parties.
He has reference to John J. Hennelly, the Charging Party herein, and the named Re-
spondent herein. In that case, though there were several charging parties and named
Respondents , nevertheless, the Board in its Decision and Order refers primarily to the
"Respondent Association," which is the Respondent herein. The case referred to
will, for convenience herein , be styled Employing Bricklayers' Association of Dela-
ware Valley and Vicinity, et al., 127 NLRB 188.
The labor organization involved in the foregoing case is the same that we are con-
cerned with herein-Local 1, Bricklayers, Masons and Plasterers' International
Union of America, AFL-CIO. As also indicated above, one of the charging parties
was John J. Hennelly (Case No. 4-CA-1853), business agent for Local 1. The issue
before the Board was whether or not the Respondent Association interfered with
the administration of Local 1, within the meaning of Section 8(a)(2) and (1) of the
Act, by participating through their officers, agents, and management representatives
in voting in a union election of officers and members of its conference (bargaining)
and other committees .3 In the considered opinion of the Trial Examiner what the
Board found in that case is of the utmost importance in his disposition of the issues
herein, for reasons which will likewise be apparent below. For this reason he feels
that the following excerpt therefrom should be inserted herein below:
Respondent Association is an association of masonry contractors in the
Philadelphia area organized for the purpose of engaging in collective bargain-
ing on behalf of its members with various labor organizations representing
their employees. All Respondent Employers are masonry contractors and,
except Respondent Liberati, members of Respondent Association. Respond-
ent Association and Respondent Employers have for many years bargained and
contracted with Local I of the Bricklayers International, the Union herein, as
the representative of their bricklayer employees. They are parties to the exist-
ing contracts with the Union, which are not in evidence, covering such
employees.
On January 10, 1959, the Union conducted an election of its officers and
members of conference (or bargaining) and grievance committees. The record
establishes that the following named individuals, all of whom were members
of the Union for a number of years, but not in the bargaining unit or units
covered by contracts, appeared at this election and, despite the challenges
against some of them, were permitted by the International representative in
charge of the election, Colfiesh, to participate in the election. Admittedly,
these individuals occupied the following positions with the Respondents:
Sidney Swartz: Vice president and member of the bargaining committee
of the Association. He is also supervisor for Respondent Swartz &
Funston, Inc.
Ellis J. Casper: Secretary-treasurer and member of the bargaining com-
mittee of the Association; he is also a partner in Respondent Jack Casper
& Co.
Anthony Nolfi: Member of the bargaining committee of the Association;
he is also an officer of Respondent Frommeyer & Co.
Leo Campagna: Member of the bargaining committee of the Associa-
tion; he is also an officer of Respondent Alex Guerrina & Sons, Inc.
Thomas Fairlie: Member of the bargaining committee of the Associa-
tion ; he is also a supervisor of Respondent John B. Kelly, Inc.
Joseph Anastasi: Member of the bargaining committee of the Associa-
tion; he is also an officer of Respondent Anastasi Brothers Corp.
John Campagna: Owner of Respondent John Campagna & Co.
Frank Dunn: Construction superintendent of Respondent Bottfield-
Refractories Co.
Joseph Liberati: Owner of Joseph Liberati.
g The members of the "bargaining conference" would be the same individuals that the
Employers would meet with and bargain with at collective-bargaining conferences , during
their tenure of office. The importance of this observation will be apparent below
EMPLOYING BRICKLAYERS' ASSN. OF DELAWARE VALLEY 1543
Of the total membership of 1,200 to 1,300 in the Union, some 576 members
participated in the election. As some of the candidates for union offices and
membership on the committees won or lost by a majority of a few votes, the
General Counsel contends that the participation of these individuals in the
election was not only unlawful but might have affected the results of the
election.
The Trial Examiner, relying primarily on his findings that the officers, owners,
and management representatives of the Respondents who participated in the
election have been, members of the Union in good standing, and that they voted
in the election on their own behalf, as individuals, rather than as officers or
agents of the Respondents, found that such conduct was not violative of the
Act. However, in Nassau and Suffolk Contractors' Association 2 the Board
found that mere act of voting in a union election by president and job super-
intendents, among others, of the respondent employers, who were members of
the union but were not in the bargaining unit of rank and file, was a form of
interference with the administration of the union. The Board said:
So far as appears from the record, these individuals did nothing more
than appear at a union meeting and vote at a secret election concerning
administration of the Union. However, voting in union elections is plainly
a form of interference with the adminstration of a labor organization. It
may not be unlawful for company executives and high-ranking supervisors
to retain union membership they acquired as rank-and-file employees as
job insurance in the event they should revert to ordinary employee status,
but that does not make it lawful for them to participate in elections to
determine who is to administer the affairs of the union. It is quite con-
ceivable that in a closely divided vote executives and high-ranked super-
visors would have the balance of power and be in a position to select the
union officials who are to deal with them in their separate capacity as
employer agents... .
As the mere act of voting by officers and management representatives of the
Respondents in a union election of officers and members of its committees
constitutes unlawful interference with the administration of the Union, it is not
necessary that the Respondents be found to have encouraged or authorized
voting participation by these individuals or that they conspired to vote for one
rather than the other slate of candidates, or that they have voted as a unit, or
that the vote of any one in the employer group was decisive. Accordingly, we
find that by the conduct of their officers, employers, and management repre-
sentatives the Respondents interfered with the administration of the Union
within the meaning of Section 8(a)(2) and (1) of the Act.
2 Nassau and Suffolk Contractors' Association, Inc, and its members, 118 NLRB
174, 183
The Board's Decision and Order in the above case, 127 NLRB 118, was issued on
April 13, 1960. At the time of the hearing herein it was before the United States
Court of Appeals for the Third circuit for enforcement.
We now come to events that led up to the filing of the charges herein.
C. The facts
The facts herein are not in dispute. The record clearly shows and the Board has
found in the above-cited case that the Respondent Association and the Union have
bargained collectively for many years. The issue herein evolves around the voting
by Andrew Cromwell, executive secretary of the Respondent Association,4 at times
material herein, at an election conducted by the Union on July 22, 1960, for the pur-
pose of selecting delegates to an International convention, which was to convene in
Los Angeles, California, in September 1960
The record clearly shows that Andrew Cromwell was at all times material herein
a paid-up member of the Union in good standing and had been for many years. In
addition to his membership in the Union, he has, at least since 1957, been the ad-
ministrator for a Local 1-Respondent Association trust welfare plan under the
'Not to be confused with the "Corporate" secretary of the Respondent Association,
Thomas Fairlie , who the record indicates occupied that position at times material herein.
(See General Counsel 's Exhibit No 19A.)
1544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
,collective-bargaining agreement between the parties. At the hearing herein he
-was referred to as the "administrator" of the welfare fund .5
The record is none too clear as to the date Cromwell assumed his duties as the sec-
retary for the Respondent Association. However, it does show that he was serving
:in that capacity during 1959, 1960, and at the time of the hearing herein in Feb-
ruary 1961. At the hearing herein the parties stipulated that Cromwell is a paid
representative and agent of the Respondent. The record is replete with uncontra-
-dicted and undenied evidence both oral and documentary that Cromwell at all times
material herein actively participated, as the Respondent's representative and agent,
in negotiations with the Union and others with whom the Respondent has occasion
to do business with, such as the Federal Mediation Board and the Labor Department
of the State of Pennsylvania. In the course of his duties he made recommendations
.to the Respondent Association regarding the settlement of disputes and grievances
under their contract with the Union. He attends meetings of the joint conference
committee where disputes and grievances between the Respondent and the Union
are discussed and disposed of. While it is true that he is not the "corporate" sec-
retary of the Association, nevertheless he does the "leg-work," so to speak, in run-
ning its office, such as handling the correspondence and other clerical duties.
In the considered opinion of the Trial Examiner, an illustration of his status with
the Respondent Association is best told in one of the letters he wrote to the members
,of the Association in his capacity as "Secretary" regarding a matter that is of grave
importance to all concerned herein. The letter referred to follows below:
Employing Bricklayers Association of Delaware Valley
R. WALTON STRUSE, JR., President
SIDNEY SWARTZ, Vice-president, Treasurer
THOMAS FAIRLIE, Secretary
DECEMBER 6, 1960.
To All Members of the Employing Bricklayers Association:
GENTLEMEN: As you all know, there is a case pending before the Circuit
Court of Appeals against the Association and certain members of the Associa-
tion because of the fact that some of us voted in the elections in Bricklayers'
Local No. 1 of December 10 and January 13, 1958 and 1959.
On November 30, 1960, I forwarded the following letter to Mr. Geoffrey J.
Cunniff, our Attorney.
"At our Board Meeting held on October 31, 1960, it was agreed that, if you,
as our legal counsel, would advise our people to vote in the forthcoming elec-
tion of officers for Bricklayers Local Union No. 1 of Pa., the committee would
seriously consider doing so.
I ask that you please accept this communication as a request for your opinion
,on the above stated matter. I also ask that you state very definitely your rea-
sons for the answer that you will give, so that our people will be able to de-
termine without any hesitation whatsoever, just what course of action they will
6follow."
I am attaching hereto, a copy of Mr. Cunniff's answer .to me, which is dated
December 1, 1960. I have underscored that portion of his letter which I feel is
all important to us as an Association. I feel, as Mr. Cunniff does, that, if we
'fail, at this time, to exercise our prerogative as dues paying members in Local
Union No. 1, we will be, in fact, admitting that we have no right to vote, even
though we pay dues to an organization.
NOTE: I AM TYPING BELOW AN EXCERPT FROM A LETTER
'DATED OCTOBER 27, 1960 ADDRESSED TO DANIEL PERNA, INTER-
NATIONAL UNION DEPUTY FOR LOCAL UNION NO. 1, AND SIGNED
BY THOMAS F. MURPHY, SECRETARY BRICKLAYERS' INTERNA-
TIONAL UNION. ANYONE INTERESTED IN DOING SO, CAN INSPECT
THIS PARTICULAR LETTER AT ANY TIME AT MY OFFICE. THE
EXCERPT IS AS FOLLOWS:
"WITH REFERENCE TO THE PRIVILEGE OF VOTING AS IT APPLIES
TO THE MEMBERSHIP OF LOCAL NO. 1, PENNSYLVANIA, YOU ARE
ADVISED AND DIRECTED THAT THE POLICY OF THIS INTERNA-
TIONAL UNION IS TO INSIST THAT ITS ACTIVE MEMBERS WITH
PAID-UP CARDS ARE ENTITLED TO ALL THE PRIVILEGES OF THEIR
MEMBERSHIP, WHICH INCLUDES THE RIGHT TO VOTE AND TO
5 See infra for further reference to Cromwell's activities.
EMPLOYING BRICKLAYERS' ASSN. OF DELAWARE VALLEY 1545
HOLD OFFICE. YOU ARE DIRECTED, THEREFORE , TO PROCEED,
ACCORDINGLY."
If there are any questions regarding any of the above or the enclosed , please
call.
Respectfully yours,
[S] ANDREW J. CROMWELL,
Secretary.
cc: GJCunniff
After careful consideration the Trial Examiner feels that Cunniffs letter to
Cromwell should likewise be inserted herein. Consequently it follows below:
Law Offices
GEOFFREY J. CUNNIFF
3 Penn Center Plaza
Philadelphia 2, Pa.
DECEMBER 1, 1960.
ANDREW CROMWELL, Secretary,
Employing Bricklayers' Assn. of Delaware Valley,
1300 W. Hunting Park Avenue,
Philadelphia 40, Pennsylvania.
DEAR ANDY: This is in reply to your letter of November 30, 1960 requesting
my advice on the question of whether or not members of the Employing
Bricklayers Association of Delaware Valley should vote in the forthcoming
election for Bricklayers Local Union No. 1 of Pennsylvania.
In my judgment, any member of Local Union No. 1, who is qualified to do,
so and if he so desires, should cast his ballot in the forthcoming election. My
reason for this position is that the Order of the National Labor Relations Board
is presently before the United States Court of Appeals for enforcement. In
and of itself, this Order is completely ineffective until the Court enforces it.
If the Association feels that this Board Order is invalid as a matter of law, as.
I am sure it does, then to be consistent, the members of the Association should.
continue to vote in the elections of Local Union No. 1. Otherwise, their failure
to utilize their voting franchise might very well be considered an acceptance
of the Labor Board's Order. In other words in trying to reduce the problem
to its simplest terms, let me put it this way-as far as the legal right of our
Association members to vote in Local Union No. 1 elections, that right remains
as valid as though there had been no National Labor Relations Board Order.
If the United States Court of Appeals, of course, enforces the Board Order
then, and only then, does the picture change. In any event, it will be necessary
to await final decision of the Court before the rights of members of Local
Union No. 1, and of the Association, are finally determined.
I trust this answers your inquiry, but if you require further elucidation of my
position, please let me know.
Sincerely,
[S] GEOFFREY J. CUNNIFF.
GJC:mgs
At times material herein Cromwell was paid $8,000 per year by the Respondent
Association for his services.
We now come to the incident of July 22, 1960, that was the basis for the filing
of the charge herein by John Hennelly, "An Individual." As indicated above,
Hennelly, at all times material herein, was the business agent of Local 1 and had'
been for several years. He had also been a delegate for Local 1 at previous Inter-
national and State conventions. The record shows that at these conventions, par-
ticularly at the State convention which was held before the election of July 22,
1960, he had sponsored a pension plan that was very popular among many of the
rank-and-file members of the Union. Further evidence of the importance of the
pension issue is found in the campaign literature put out by Hennelly and others,
on his slate of candidates, Tom Harley and "Sailor" Joe Lipscomb. In their
handbill that was offered and received in evidence at the hearing herein we find the-
following in large black lettering:
IMPORTANT
[8%'" wide]
WHY TOM HARLEY, SAILOR JOE LIPSCOMB AND JOHN HEN-
NELLY SHOULD BE ELECTED AS DELEGATES TO THIS INTER-
1546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
NATIONAL CONVENTION. (ELECTION FRIDAY NIGHT, JULY 24,
1960)
[TOP OF HANDBILL]
EXCERPTS FROM THE MINUTES OF THE 1958 CONVENTION
PORTRAYING FORCEFUL PARTICIPATION OF JOHN HENNELLY
[Text of Handbill consisting of four printed pages]
[BOTTOM OF HANDBILL]
We Earnestly Request Your Vote and Our Election as Delegates to the In-
Support For Election-Friday Night- ternational Convention TOM HAR-
July 24, 1960 LEY-(Sailor ) JOE LIPSCOMB-
JOHN HENNELLY
The handbill of another slate of candidates for delegates to the International
convention sets forth their conception of a pension plan, which obviously differs from
that of the Hennelly faction . It likewise is set forth herein below:
[Page 1]
ACTION NOT PROMISES
This is what you deserve for your money and trust.
TAKE A LOOK INSIDE FOR OUR PROGRAM
WE WILL FIGHT FOR THESE BENEFITS FOR YOU AND YOURS
We will present this program at the coming Convention
LOOK FOR US ON THE BALLOT
#4 JACK SEROTA
#10 SAM GLASSMIRE
#16 HUGHIE McCAUSLAND
#17 JAKE SHEFFIT
WE HAVE PLEDGED OURSELVES TO WORK FOR YOU
YOUR INTEREST IS OUR INTEREST
VOTE FOR US AND OUR PROGRAM
IT WILL BE A VOTE FOR YOU
[Page 2]
RECIPROCAL AGREEMENT
NATIONWIDE RECIPROCAL AGREEMENT ON WELFARE FUNDS
A National Agreement on Welfare Funds so that wherever you
work you can be protected by your own plan.
No Waiting To Meet Eligibility Requirements While Working Away
From Home
[Page 3]
INTERNATIONAL PENSION FUND
1.-An International Agreement Covering All Brickwork
CONTRACTORS TO PAY
To a pension fund
2.-Contractors Make the Payments Not You
3.-Vested Rights & Death Benefits (You and Yours to Reap the Fruits of
Your Labor)
4.-Gold Card Members
Relief Members
Disabled Members
ALL TO BE COVERED BY THE PLAN
THIS IS OUR PLATFORM -
EMPLOYING BRICKLAYERS ' ASSN. OF DELAWARE VALLEY 1547
[Page 4] ,
- HENNELLY, LIPSCOMB, HARLEY
They have asked that you pay more dues to get a Pension Plan
Remember that when you vote they want you to pay
The Craigs, Boyds , and Others
HAVE OFFERED NOTHING. THEY DON'T HAVE ANY THOUGHTS
ON THE MATTER.
WHY WASTE YOUR VOTE
"VOTE THE 'DOYLE WAY"
The ballot contains the names of 18 candidates , and in the legend at the top
appears the following:
ELECTION OF DELEGATES
FRIDAY JULY 22, 1960
POLLS OPEN 8 P.M. TO 10 P.M.
DELEGATES TO THE
BIENNIAL CONVENTION OF
THE BRICKLAYERS, MASONS &
PLASTERERS' INTERNATIONAL
UNION OF AMERICA
VOTE FOR 4
The names of the candidates were listed ,by number and their names printed in
large type.
As indicated above, the election was held on the night of July 22, 1960, at the
union hall in Philadelphia, Pennsylvania. It was conducted in a small room ap-
proximately 30 feet by 15 feet. Daniel R. Perna, Local l's International Union
deputy, was in charge of the election. In addition to Perna, there were five mem-
bers who acted as the election board, and an alternate International Union delegate,
who took Perna's place in the event he left the room. The procedure was as follows:
Q. (By Mr. SNYDER.) Now, can you please describe the layout, the physical
layout on the 3rd floor, where you say the election took place?
A. Yes, I can. It's a room about this size [indicating]; one table. We have
five chairs for the Election Board to sit there; and three polling places, made
of canvas, where the men-after they receive their ballots, they go into the
polling booth, sign their name, deposit it in .the ballot box, and they're supposed
to immediately leave the room.
Q. Are there any conditions to receiving a ballot?
A. Yes, there is conditions. One, member must present his book to see
that he is paid up in dues and in good standing; and then his name is registered
in an entry book for the man, to show that he came down to vote. Then it's
checked by another member on the Election Board and passed on to the man
that has the ballot-in sort of approval all the way down the line. And then
he's handed a ballot to go in and vote.
Q. Are you the only one that presides at these elections or do you have any
assistants?
A. Well I have an alternate deputy. If I happen to leave the room, the
alternate deputy takes over my duties.
Q. But is the deputy or alternate deputy the only one that administers the
election?
A. Well, the election board can -act if I leave instructions with them as to
not to let a member vote if his dues are not paid up for the last two months,
if he's a contractor, or if he has anything to do with local contracting repre-
sentative or under supervision, or otherwise.
Q. What's the Election Board you mentioned?
A. The Election Board?
Q. Yes?
A. The Election Board consists of five men.
1548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. And what do they do , do you know?
A. Well, I tried to say-one registers the member as he enters the polling
room; one checks his book to see if he 's paid-up within the month's time; one
hands him the ballot ; and one checks the ballot-box. It's a procedure that
they can't trip up on anything.
Q. These are members of the Local union , I take it?
A. These are Local members, of Local No. 1.
We now come to the incident that is the predicate for the charge and the complaint
herein , that is, the participation of Cromwell in the election for delegates to the
International convention , on the ' night of July 22, 1960. What transpired is, in the
considered opinion of the Trial Examiner , best told in Perna's uncontradicted and
undenied testimony which is fully credited by the Trial Examiner . Consequently
it follows below:
Q. (By Mr . SNYDER . ) Now where did you see Mr. Cromwell when you saw
him the night of July 22nd? .
A. In the polling room-coming to vote.
Q. What did he do then?
A. He was presenting his book to one of the members , to register his name
in the book . And one of the members of the Election Board stamped the
book , and he received the ballot , and instead of following the usual procedure
of going over to the booth , he got a ballot presented to him and he said, "Now
I'm going to vote for John Hennelly-and I'll show you right here that I'll
mark it." I told him , "You can do anything you want . Just don't mark the
top of the ballot-don't put your name because it will be void ." I warned him
of that.
Then he said , "I'll write my name in the back of it , and let him do something
about it ." Then he stayed in there and I said , "Will you please deposit your
ballot in the ballot-box and leave the room ?" That's all that happened.
Q. Did Mr . Cromwell enter one of the polling booths to mark his ballot?
A. No, he didn't.
After Cromwell voted he left the room . According to Perna, Cromwell 's ballot
was not voided even though he signed his name on the back of it. An examination
of his ballot shows that he voted for only one candidate , John Hennelly , the Charging
Party herein.
Shortly after Cromwell had voted and his ballot placed in the ballot box, Hennelly
filed his protest with Perna. Though Hennelly knew that Cromwell had entered
the polling place , he was unavoidably detained and for this reason he could not
file his protest before Cromwell's ballot had been approved and dropped in the
ballot box. The election board and Perna overruled his objection and Cromwell's
ballot was counted along with the others.6
The results of the election were as follows:
322 registered
319 voted
10 voided
The four candidates receiving the most votes were as follows:
John Hennelly-471
Frank Craig-140
Joe Lipscomb-102
Hughie McCausland-88
These four were accordingly certified at the proper time as the delegates from
Local 1 to the International Convention , which was to be held in Los Angeles,
California, in September 1960.
Hennelly later protested Cromwell 's voting in the above-described election at a
regular meeting of Local 1. ^
At the time of the election there were approximately 1,150 members of Local 1
who were eligible to vote. Only 322 , or 28 percent , appeared at the polling place
and registered to vote on July 22 , 1960 , for delegates to the International
convention.
6 See General Counsel'6 'Exhibit No 8.
EMPLOYING BRICKLAYERS' ASSN. OF DELAWARE VALLEY 1549
The record shows that Cromwell was the only member of Local 1 who had any
connection with the Respondent Association who registered and voted in the above
election.
On the first day of the hearing herein the General Counsel in the course of his
case-in-chief interrogated the witness, Damel R. Perna, International Union deputy
of Local 1 as to an incident that occurred on the night of December 10, 1960, during
the course of the election of officers for Local 1. Counsel for the Respondent
Association objected to this line of testimony on the grounds that it went to matter
far beyond the issue set forth in the complaint, which as indicated above was whether
or not the Respondent engaged in conduct violative of Section 8(a)(2) and (1)
of the Act, by the participation of Andrew Cromwell, its executive secretary, in
the election of delegates to the biannual convention of the International conven-
tion . At the request of the Trial Examiner the General Counsel stated to the record
the purpose of the testimony he expected to elicit from the witness Perna, which he
did in an able manner. Briefly it was to the effect that through the witness Perna,
he would show a continued effort on the part of the Respondent Association to
participate in Local 1 affairs, by voting in an election of officers for the Local on the
night of December 10, 1960. Several members of the Respondent Association who
were paid-up members of Local 1 appeared at the polling place on the night of the
election and were denied the right to vote in the election. As a result of their
appearance tempers flared on both sides of the aisle, so to speak, and ended in a
"donnybrook." After careful consideration the Trial Examiner sustained the
objection for reasons set forth below. However, he did permit the General Counsel
to make an offer of proof, and requested that he do so by question and answer, in
accordance with rule 43(c) of the Federal Rules of Procedure. His ruling and
request in this regard was predicated upon the theory that the Board, and perhaps
the courts, might view the proposed testimony in a different light, and if so the
testimony was before them in the language of the witness and not in that of counsel.
The Trial Examiner requested the offer of proof referred to above for several
reasons. In the first place the testimony related to the very issue that was before
the Board in the previous case involving the parties herein; 7 (2) it concerned matters
that were not alleged in the complaint; (3) since the issue involved herein con-
cerned one specific act, to wit, voting in an election for delegates to an International
convention, he did not consider it admissible as "background" evidence to assist the
Board in framing "future remedial orders," involving the Respondent herein, in
anticipatory violations of the Act; and the refusal of the General Counsel to amend
his complaint as to the specific violations that were clearly apparent in the offer
as set forth in the record. The offer of proof and the colloquy of counsel is found
in the transcript of the record beginning at page 82 et seq.
The Trial Examiner has pointed out above that one of the principal issues involved
in the preelection campaign was a pension plan. In addition to this issue, Hennelly
personally advocated a reversal of a decision of the executive board of the Inter-
national Union permitting employer Local 1 members to vote in the Local 1 election
for officers on January 10, 1959. At the hearing herein the General Counsel adduced
considerable testimony from his witnesses in support of his case-in-chief as regards
the power and control of the International Union over local union affairs. To the
Trial Examiner at least much of the testimony tended to show that it was not too
solicitous toward the rank-and-file on the local level. For the most part this
testimony was offered through the witness Hennelly both orally and in documentary
form as exhibits.
As the Trial Examiner sees it the purpose of this phase of the General Counsel's
case was to show that the contractors and/or employers who were members in good
standing in Local 1, and affiliated with the Respondent Association, by voting in an
election for delegates to the International convention were engaging in conduct
violative of Section 8(a)(2) and (1) of the Act for the same reasons that the
Board found in the previous case, which as shown above, involved their voting in an
election for officers and committeemen of Local 1.
The complaint does not refer to the International Union as an entity, nor was it
served with a copy of either the charge or the complaint prior to the hearing herein .8
7 See supra in re cases '4=CA-1854, 4-CA-1861, et al., 127 NLRB, 188.
$ Since a portion of the testimony cast an unfavorable light on the policies of the
International in regard to its disposition of matters on the local level, the Trial Examiner
feels that it was at least entitled to a copy of the complaint and notice of hearing, so that
if it desired it could have entered an appearance amicus curiae at the hearing herein
1550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Conclusion
The resolution of the question involved herein has been most difficult primarily
because it goes a step further than the Board's finding in the previous case involving
the same parties. In an examination of previous cases involving employer partici-
pation in union affairs we find this oft-repeated phrase, "to prohibit association,
for collective-bargaining purposes, of supervisors and journeymen in the same
union." 9 Further examination reveals that in the Nassau and other cases, in-
volving similar questions, the Board has limited its holding to voting or other
participation in determining union policy by employers and their representatives,
such as Cromwell herein, at the collective-bargaining level. At no time has it barred
their retention of nominal membership in the union as job insurance should they
revert to rank-and-file employees or to enable them to retain pension or other
union benefits.' Another factor to be borne in mind is that in the previous case
involving the same parties herein the union, Local 1, was electing the very officers
with whom the contractor-supervisory members of Local I would be dealing with
across the table in collective-bargaining activities. The Board found that such
participation by employers and high-ranking supervisors who are not in the bargain-
ing unit, such as occurred in the previous case, was violative of the Act." As a
matter of fact counsel for the Respondent herein in his brief submitted to the Trial
Examiner for consideration after the close of the hearing herein agrees with the
finding of the Board in the previous case in the following excerpt therefrom:
Respondent concedes in the case now on appeal, and concedes here, that the
Board is completely justified in prohibiting supervisory employees from partici-
pating in union elections where the purpose of such elections is to select mem-
bers of the bargaining committee, grievance committee, or business agent. In
short, there is no question concerning the Board's right to preserve and protect
the wellsprings of collective bargaining from possible pollution due to employer
interference. The question is whether or not the prohibition against participat-
ing in elections should be extended to cover voting for delegates to an Inter-
national Convention, and whether such extension is a valid exercise of Board
power.
In the cases thus far decided, Nassau & Suffolk Contractors' Association,
118 NLRB 174, and Local 636 etc. vs. NLRB, decided January 19, 1961 by
the United States Court of Appeals for the District of Columbia, the facts
showed clearly and plainly that high-ranking supervisory employees were not
only participating in union elections, but were in fact serving as members of
the union bargaining committee. As a result, in order to correct a situation
which concededly needed correction, the Board entered sweeping orders in both
cases prohibiting voting in union elections of any kind and for any purpose by
supervisory employees.
It is interesting, however, to note that the Board approaches the problem on
a case by case basis. This method was expressly approved in the Local 636
case, where the Court emphasized the difference between, for instance, merely
attending meetings and serving on the bargaining team. Conceivably, had the
issue been presented, the Court might have felt the same about the election of
delegates to an International Convention, and we trust that the Board will also
recognize that a union member may participate by his vote in matters far re-
moved from the sphere of collective bargaining.
Now to the resolution of the question we are faced with herein. As the Trial
Examiner sees it the overall question is this, Should the Board go a step further and
find that a member of the union who is also an employer or an agent thereof, such
as Andrew Cromwell, be denied the right to participate in a local union election for
delegates to an International convention?
0 Local 636 of the United Association of Journeymen and Apprentices of the Plumbing
and Pipe Fitting Industry of the United States and Canada, AFL-CIO (Detroit Assn of
Plumbing Contractors) v. N.L R.B., 287 F. 2d 354 (C.A D.C.), enfg in part and remanding
in part 126 NLRB 1381
10 See Nassau and"Sufolk Contractors' Association, 118 NLRB 174, 183-184
u See supra for citation of the previous case, which is now before the Third Circuit
Court of Appeals for enforcement.
EMPLOYING BRICKLAYERS' ASSN. OF DELAWARE VALLEY 1551
After long and careful consideration the Trial Examiner concludes and finds that
Cromwell's participation in the union election for delegates to the International
convention on July 22, 1960, was not violative of Section 8(a)(2) and (1) of
the Act.
Persuasive factors in the Trial Examiner' s finding in this regard have been the
following. In the first place the primary purpose of the Act is to promote industrial
peace and amicable relations between employees and employers. In the considered
opinion of the Trial Examiner the denial of the right to vote by members of. the
union who are employers or agents thereof, on an issue such as the selection of
delegates to International conventions every 2 years is too remote from the bargain-
ing process for the Board to take cognizance of. As he sees it, the processing of
unfair labor practice charges on the International level is too remote from the
bargaining process, and could be a precedent for a flood of cases involving dis-
satisfied groups or cliques on the local level as to rulings and decisions of the
International Union, either at conventions or in their day-to-day conduct of affairs.
Their remedy lies elsewhere. For example, as to the handling of fiduciary matters,
their remedy would be by way of an accounting in the local courts having juris-
diction over such funds. Again, if they should be dissatisfied with the conduct of
certain officers and the policies they promulgate their remedy lies in the very consti-
tution and bylaws that they as members of the union have subscribed to. If there
has been abuse of the rights of individuals or groups on the local bargaining level
in relations with employers, then, and in that event only, their remedy lies of course
with the Board. Such is not the case here. All we have in this record is some evi-
dence regarding anticipatory activity on the part of delegates to an International
convention that might sponsor legislation harmful to the rank-and-file on the
collective-bargaining level. Quite frankly the Trial Examiner is not convinced that
the Board should entertain charges of this nature.
At the election we are concerned with herein, one of the primary issues was a
pension plan. Cromwell as a member of the Union had a personal interest in such
plans on the same level and for the same reasons as others who participated in the
election. In the absence of any evidence to the contrary who can say that his
motive for appearing at the union hall and voting in the election was otherwise?
If the Board can deny the right of a longtime member of the Union to vote in an
election for delegates to an International convention, can it go further and in a
future case deny Cromwell, or persons similarly situated, the right to attend union
meetings? Will it next be called upon to deny them the facilities of the hall where
some, no doubt, in a nostalgic mood like to toddle around now and then and recall
the day of their youth as apprentices in the industry? In the considered opinion of
the Trial Examiner the Board sooner or later must call a halt somewhere. Why
not here?
The Trial Examiner is not unmindful of Cromwell's behavior at the polling place;
to be sure he was a bit "smart alecky," so to speak, but that is not the issue herein.
And finally, of the 322 who appeared at the election and the 319 who voted, he
was the only member who was either an employee of the Respondent Association
or a member thereof. An infinitesimal percentage, to predicate a finding that by
his conduct the Respondent Association engaged in conduct violative of Section
8(a)(2) and (1) of the Act.
Upon all of the foregoing the Trial Examiner concludes and finds that by the
conduct discussed and described above the Respondent Association did not engage
in conduct violative of Section 8(a)(2) and (1) of the Act.
In the circumstances the Trial Examiner will recommend that the complaint
herein be dismissed in its entirety.
CONCLUSIONS OF LAW
1. The operations of the Respondents occur in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Local 1, Bricklayers , Masons and Plasterers ' International Union of America,
AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act.
3. The Respondent has not engaged in unfair labor practices as alleged in the
complaint , within the meaning of Section 8(a)(1) and ( 2) and Section 2(6) and (7)
of the Act.
[Recommendations omitted from publication.]