International Association of Heat and Frost Insulators and Asbestos Workers

National Labor Relations Board - Board Decisions

Dec 29, 1955

114 N.L.R.B. 1526 (N.L.R.B. 1955)

1526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stantial community of interest with other employees in the units, and
in accord with our usual practice, shall exclude them."
Accordingly, we find that all employees at each of the Employer's
establishments in California, including mechanics, welders, helpers,
machine tool operators, painters, steam cleaners, janitors, outside serv-
icemen, shipping and receiving clerks, partsmen, warehouse employ-
ees, equipment craters, and truckdrivers, but excluding office clerical
employees, salesmen, guards, and supervisors as defined in the Act,
constitute- separate units appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act. I
[The Board dismissed the petitions in Cases Nos. 21-RM-352 and
21-RM-354.]
[Text of Direction of Elections omitted from publication.]
MEMBERS MURDOCK and BEAN took no part in the consideration of
the above Decision, Order, and Direction of Elections.
17 Westinghouse Electric Corp., 110 NLRB 475; Ozark Manufacturing and Supply Com-
pany, 108 NLRB 1476.
International Association of Heat and Frost Insulators and
Asbestos Workers, AFL-CIO,' Local 31, and Prescott Jentzel,
its business agent and John Frank and Joseph S. Aguiar. Case
No.1-CB-. 84. December 29,1955
DECISION AND ORDER
On February 2, 1955, Trial Examiner Sidney Asher issued an Order
in the above-entitled proceeding, finding that the Company's opera-
tions in interstate commerce did not meet the Board's jurisdictional
standards, and granting the Respondents' motion to dismiss the com-
plaint in its-entirety. Thereafter, the General Counsel filed a request
for review. On March 10, 1955, the Board ordered the record re-
opened and the case remanded to the Trial Examiner for a further
hearing pertaining to the Employer's involvement in interstate com-
merce. On May 27, 1955, the Trial Examiner issued an Intermediate
Report in this case, wherein he found, upon the additional commerce
data presented at the second hearing directed by the Board, that the
Company's operations meet the Board's jurisdictional standards. He
further found, from the entire record, that the Respondents had en-
gaged in and were engaging in certain unfair labor practices and
recommended that they cease-and desist therefrom and take certain
1 The AFL and CIO having merged subsequent to the hearing in this proceeding, we are
amending the identification of the affiliation of the Union accordingly.
114 NLRB No. 236.
INTL. ASSN.' OF HEAT AND FROST INSULATORS, ETC. 1527
affirmative action, ,as set forth in the copy of the Intermediate Report
attached hereto. The Trial Examiner also found that the Respqwdents
had not engaged in certain other unfair labor practices alleged in the
complaint. Thereafter, the Respondents filed exceptions to the Inter-
mediate Report, together with a supporting brief:
The Board has reviewed the rulings of the Trial Examiner made at
the hearings and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief of the Respondents, and the
entire record in the case and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner.'
TIIE REMEDY
In the light of the testimony of Respondent Union's business agent,
Prescott Jentzel, detailed in the Intermediate Report,,it appears that
the Respondents have on occasions in the past committed violations
of the Act, similar to the unfair labor practices herein, but involving
employers other than Rhode Island Covering Company. Moreover,
it appears from Jentzel's testimony that the Respondents are likely to
continue to commit such violations when situations similar to those in
the instant case occur within its territorial jurisdiction. Accordingly,
we shall adopt the Trial Examiner's recommendation with respect to
the scope of the cease and desist order, and we shall enjoin the Re-
spondents from the commission of similar illegal action not only with
respect to the Company, but also with reference to any other
employers.3
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondents, International
Association of Heat and Frost Insulators and Asbestos Workers,
AFL-CIO, Local 31, its agents, successors, and assigns, and Prescott
Jentzel, business agent of the said Respondent Union, shall:
1. Cease and desist from :
(a) Maintaining, applying, enforcing, interpreting, performing, or
giving effect to any contract, agreement, arrangement, understanding,
or practice with Rhode Island Covering Company, or any other em-
ployer, in such a way as to grant job preference in insulating work to
2 The-Trial Examiner found that the union-security provisions of the May 27, 1954, con-
tract between the Respondent Union and the Company were not illegal, per se, and he
accordingly concluded that the Union did not violate the Act by executing the contract
containing such provisions . As no exceptions were filed with respect thereto, the Board
adopts the Trial Examiner's findings and conclusions in this regard without passing upon
their merits
Cf. N. L. R. B. v United Mine Workers of America, District 31, et al , 198 F 2d 389
(C. A. 4) ; United Marine Division, Local 333 , International Longshoremen's Association
(Independent ), 107 NLRB 686, 702.
1528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees, or applicants for employment, who possess or obtain meln-
bershjF in or clearance from the Respondent Union, except to the
extent permitted by Section 8 (a) (3) of the Act.
(b) Causing or attempting to cause Rhode Island Covering Com-
pany, or any other employer, to discriminate against employees or
prospective employees in violation of Section 8 (a) (3) of the Act.
(c) In any other manner restraining or coercing employees or pro-
spective employees of Rhode Island Covering Company, or any other
employer, in the exercise of the rights guaranteed in Section 7 of the
Act, except to the extent that such rights may be affected by an
agreement requiring membership in a labor organization as a condi-
tion of employment, as authorized by Section 8 (a) (3) of the Act.
2. -Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Notify Rhode Island Covering Company, in writing, that they
withdraw their objections to the reassignment of John Frank and
Joseph S. Aguiar to insulating work on the Rhode Island Hospital
project; or if the Company's part of such project has been completed,
that they have no objection to the employment of the above-named
employees in insulating work on any other project within the geo-
graphical area over which the Respondent Union claims jurisdiction.
(b) Furnish copies of the said notification to John Frank and
Joseph S. Aguiar.
(c) Post at the Respondent Union's office in Cranton, Rhode Island,
copies of the notice attached marked "Appendix A." 4 Copies of the
said notice, to be furnished by the Regional Director for the First Re-
gion, shall, after being duly signed by the Respondent Union's repre-
sentative and by Respondent Jentzel, be posted by the Respondents im-
mediately upon receipt thereof and maintained by them for sixty (60)
consecutive days thereafter in conspicuous places, including all places
where notices to members of the Respondent Union are customarily
posted. Reasonable steps shall be taken by the Respondents to insure
that said notices are not altered, defaced, or covered by any other
material.
(d) Mail to the said Regional Director signed copies of the said
notice for posting, the Rhode Island Covering Company willing, in
the Company's office at Providence, Rhode Island, for sixty (60) con-
secutive days, in places where notices to employees are customarily
posted. Copies of the said notice, to be furnished by the said Regional
Director, shall, after being duly signed as aforesaid, be forthwith re-
turned to the said Regional Director for such posting.
4 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted foi the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
INTL. ASSN. OF HEAT AND FROST INSULATORS, ETC. 1529
(e) If the Rhode Island Covering Company's part of the Rhode
Island Hospital project has not been completed, mail to the said Re-
gional Director signed copies of the said notice for posting, the project
manager willing , in conspicuous places at the site of the said project,
for sixty (60) consecutive days, or until the Rhode Island Covering
Company's part of the said project is completed, whichever is shorter.
Copies of the said notice, to be furnished by the said Regional Di-
rector, shall, after being duly signed as aforesaid, be forthwith re-
turned to the said Regional Director for such posting.
(f) Cause, at their expense, the said notice to be printed in a news-
paper of general circulation in Providence, Rhode Island.
3. The Respondent Union shall take the following affirmative ac-
tion, which the Board finds will effectuate the policies of the Act : Make
whole John Frank and Joseph S. Aguiar for any loss of earnings they
may have suffered because of the discrimination against them, in the
manner set forth in that portion of the Intermediate Report entitled
"Recommendations:"
4. In addition, both Respondents shall take the following affirma-
tive action, which the Board finds will effectuate the policies of the
Act : Notify the said Regional Director in writing, within ten (10)
days from the date of this Order, what steps the Respondents have
taken to comply herewith.
IT IS FURTHER ORDERED that the complaint, insofar as it alleges that
the Respondents committed violations of the Act different from those
found in this Decision and Order to have been committed, be, and it
hereby is dismissed.
MEMBERS MURDOCK and BEAN took no part in the consideration of
the above Decision and Order.
INTERMEDIATE REPORT
This proceeding involves allegations that International Association of Heat and
Frost Insulators and Asbestos Workers, AFL, Local 31, Cranston , Rhode Island,
herein called the Union or the Respondent Union, and Prescott Jentzel , Cranston,
Rhode Island, its business agent, herein called Jentzel or Respondent Jentzel,1 have
since May 27, 1954, restrained and coerced employees of Rhode Island Covering Com-
pany, herein called the Company, and caused or attempted to cause the Company
to discriminate against its employees and prospective employees in regard to hire or
tenure of employment and other terms and conditions of employment . It is alleged
that such conduct violated Section 8 (b) (1) (A) and (2 ) of the National Labor
Relations Act, as amended (61 Stat. 136), herein called the Act. Separate charges
and amended charges were filed by John Frank and Joseph S. Aguiar. After the
issuance of a complaint by the General Counsel,2 the Respondents filed a joint answer
denying that the Company was engaged in commerce within the meaning of the
Act and denying the commission of any unfair labor practices . A hearing was held
before me on November 23 and 24, 1954, at Providence , Rhode Island. The General
Counsel and the Respondents were represented and participated fully in the hearing.
1 The Respondent Union and Respondent Jentzel will be referred to collectively as the
Respondents.
2 The designation General Counsel is intended to include the General Counsel of the
National Labor Relations Board and his representative at the bearings.
1 530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
After the General Counsel had completed his evidence with regard to the Company's
operations, the Respondents moved to dismiss the complaint in its entirety on the
ground that the evidence did not warrant the assertion of jurisdiction by the Board.3
I reserved ruling on the motion. After the close of the hearing, the Respondents sub-
mitted a joint brief, which has been considered. On February 2, 1955, I issued an
order granting the Respondents' motion to dismiss the complaint in its entirety.
Thereafter, the General Counsel filed with the Board a request for review, in which
he urged that the order of February 2, 1955, be reversed and a finding made that
the Company is engaged in commerce within the meaning of the Act. In the al-
ternative, the General Counsel requested the Board to remand the case to the Trial
Examiner with instructions to reopen the record to take further evidence with re-
spect to the operations of the Company. The Respondents 'filed an opposition to
the General Counsel's request. On March 10, 1955, the Board ordered the record
reopened and the case remanded to the Trial Examiner for a further hearing "for
the purpose of adducing evidence pertaining to the precise business and operations
of the Rhode Island Covering Company, the dollar volume of its business and the
sources from which it is derived, and the nature of the office, or offices, it main-
tains in Worcester, Massachusetts, or elsewhere" and that, upon conclusion of the
hearing, the Trial Examiner prepare an Intermediate Report containing additional
commerce findings based upon the evidence adduced at the reopened hearing and,
if assertion of jurisdiction is warranted, decide the case on the merits. In accordance
with this Order, a remanded hearing was held before me on March 28, 1955, at
Providence, Rhode Island. The General Counsel and the Respondents were rep-
resented and participated fully in the hearing.4 Although granted time within which
to do so, no party has filed with me any additional brief.
Upon the entire record of both the original hearing and the remanded hearing
in this case, I make the following:
FINDINGS OF FACT
1. JURISDICTION
A. Jurisdictional facts
The Company is a Rhode Island corporation, with places of business in Providence,
Rhode Island; Worcester, Massachusetts; and Norwich, Connecticut. It is engaged
in the sale and application of insulating material and kindred materials. As a sub-
contractor in the construction industry, the Company executes agreements with
general contractors whereby it undertakes to supply and install insulating material
and kindred materials. In addition, it sells insulating material and kindred materials
to be applied by the purchaser rather than by the Company.
The Company maintains its principal warehouse and office at Providence. This
is the only establishment involved in the present proceedings. Eleven salesmen work
out of the Providence office; their function is to sell subcontracts to general con-
tractors under which the Company agrees to furnish insulating material and to apply
such material to buildings under construction. In addition, the Company hires work-
men at the Providence office who are engaged in insulating work on contracts out
of the Providence and Norwich offices. The payroll for these employees is made
up at the Providence office. The Company has a central billing system under which
all customers (except for cash sales ) are billed from the Providence office, regardless
of where the work was performed or the sale was consummated. The Providence
warehouse ships insulating material and kindred materials to the Worcester and
Norwich warehouses.
The Company's Worcester establishment has been maintained for about 5 years. It
consists of an office and warehouse. There is an employee on duty during regular
working hours. In addition, 2 salesmen worked out of the Worcester office in 1953
and 3 salesmen in 1954. Employees engaged on construction jobs handled by the
s At the original hearing no evidence was adduced regarding the amount of the Com-
pany's gross receipts for any period, the amount of its purchases of raw materials, or the
amount of products sold by it. The only evidence submitted on the Jurisdictional Issue
was that, during the fiscal year ending January 31, 1954, the value of work performed by
the Company in the Commonwealth of Massachusetts totaled "more than $150,000" and
the value of work performed by the Company in the State of Connecticut "might be some-
where around" $25,000.
4 The Company, which was named in the complaint as "Party to the Contract," although
served with copies of both notices of hearing, complaint, charges, and amended charges,
neither filed an answer nor a formal appearance at either hearing.
INTL. ASSN. OF HEAT AND FROST INSULATORS, ETC. 1531
Worcester office are normally hired in Worcester by the employee on duty there.
But occasionally employees are transferred from Providence to the Worcester office.
The payroll for the Worcester employees is compiled in Worcester and payment
is made by checks drawn on a Worcester bank. The employee on duty at the
Worcester office also sells insulating material and kindred materials to "anyone de-
siring them ," for application by the purchaser . If such a sale is on credit the
purchaser is billed from the Providence office; but if the purchase is a cash trans-
action the cash is received by the employee in Worcester. The Company annually
files a certificate of condition with the Department of Corporations and Taxation of
the Commonwealth of Massachusetts , and also pays to Massachusetts a tax on
personal property located within that Commonwealth.
The total contract price received by the Company pursuant to contracts performed
in Massachusetts which were completed and billed during the fiscal year ending
January 31, 1954, was $117,467. Of this amount, $53,934 represents receipts from
jobs on which the labor was supplied from the Worester office while the materials
were shipped from Providence, and the remaining $63,533 represents receipts from
jobs handled directly out of Providence (the labor and materials being supplied from
the Providence office). The total contract price received by the Company pursuant
to contracts performed in Massachusetts which were completed and billed during the
fiscal year ending January 31, 1954, was $283,030. Of this amount, $142,720 rep-
resents receipts from jobs on which the labor was supplied from the Worcester office
while the materials were shipped from Providence. The remaining $140,309 repre-
sents receipts from jobs handled directly out of Providence. In addition, in both
fiscal years, there were jobs for which both the labor and the materials used origi-
nated in Worcester.5
The Company has maintained an office and warehouse in Norwich for about a
year. The Norwich office does no estimating or planning for construction jobs. No
salesmen work out of the Norwich office and no insulating employees are hired there.
All insulating employees who work out of the Norwich office are listed on a payroll
prepared in Providence which also contains the Providence employees. The mate-
rials used on construction jobs handled by the Norwich office are usually shipped
there from the Company's Providence warehouse. The Company pays a sales tax
to the State of Connecticut for goods sold in that State. While the record is not en-
tirely clear, it also apparently files with the State of Connecticut a certificate similar
to the certificate of condition filed in Massachusetts, and pays a "profits tax" to
Connecticut.
The total contract price received by the Company pursuant to contracts performed
in Connecticut which were completed and billed during the fiscal year ending Janu-
ary 31, 1954, was $48,872, all of which represents receipts from jobs handled di-
rectly out of Providence. The total contract price received by the Company pursu-
ant to contracts performed in Connecticut completed and billed during the fiscal
year ending January 31, 1955, was $65,873. Of this amount, $1,798 represents re-
ceipts from jobs on which the labor was supplied from Worcester, while the mate-
rials were shipped from Providence. The remaining $64,075 represents receipts from
jobs handled directly out of Providence.
For the fiscal year ending January 31, 1954, the total dollar volume of business
done by the Company at all locations was $922,691. Of this amount, $528,822
,(roughly 57 percent) represents receipts from subcontract work performed by the
Company and. $393,869 (roughly 42 percent) represents receipts from sales of mer-
chandise not applied by the Company itself but by the purchasers. For the fiscal
year ending January 31, 1955, the total dollar volume of business done by the Com-
pany at all locations was $1,198,710.
During the fiscal year ending January 31, 1954, the total dollar value of sales of
merchandise shipped from the Company's Providence warehouse to its Worcester
and Norwich warehouses was $137,953.6 During the fiscal year ending January 31,
1955, the total dollar value of sales of merchandise shipped from the Company's
Providence warehouse to its Worcester and Norwich warehouses was $128,461.7
'All such merchandise was sold at the Worcester and Norwich warehouses for appli-
cation by the purchasers.
The record contains no evidence with respect to the Company's purchases.
s Exhibits purporting to show that these jobs totaled $342 in the fiscal year ending
January 31 , 1954, and $400 in the fiscal year ending January 31, 1955, were rejected
under the best evidence rule
This excludes $503 sales tax paid to the State of Connecticut.
7 This excludes $625 sales tax paid to the State of Connecticut.
1532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Contentions and conclusions regarding jurisdiction
The General Counsel, in oral argument, seems to take the position that the Com-
pany was not engaged in "the type of multistate enterprise that the Board would con-
template" because the main business is in Rhode Island and the Massachusetts
and Connecticut establishments are smaller offices maintained merely for conven-
ience. On the other hand, the Respondents contend that the Company constitutes a
multistate enterprise. In this respect, I agree with the contention of the Respondents
As it is clear that the Company's overall establishment is maintained in substantial
respects in all 3 States, and the 2 branch locations form an integral part of the enter-
prise, the Company properly falls within the Board's standards applicable to multi-
state enterprises.8
The Board has established two separate sets of standards for multistate enter-
prises. One applies to any multistate enterprise which constitutes "an establishment
other than retail." 9 The other is applicable to multistate chains "of retail stores or
service establishments." 10 At oral argument, the General Counsel maintained that
the Company is not a retail outfit but "a service establishment," on the ground that
at least the majority of its sales of merchandise is at wholesale, and that the retail
transactions, if any, are insufficient in volume to constitute the Company a retail
establishment. The Respondents do not appear to have taken a position on this
matter.
Nelson B. Swanson, president of the Company, testified that the sales made by
the Company were wholesale in nature. Moreover, more than half the Company's
gross income in the fiscal year ending January 31, 1954-the year in which the un-
fair labor practices are alleged to have occurred-was derived from subcontracting
activities. I deem subcontracting to be an operation "other than retail" rather than
"service." 11 For these reasons, I conclude that the Company constitutes "an estab-
lishment other than retail" and I will therefore apply the standards for that category.
The Board will assert jurisdiction over "an establishment other than retail which
is operated as an integral part of a multistate enterprise" if the particular establish-
ment involved (here the Providence office) meets any of the standards applicable to
an individual establishment (not part of an interstate enterprise). The Board will
assert jurisdiction over any individual establishment which annually "produces or
handles goods and ships such goods out of state . valued at $50,000 or more." 12
In the instant case, it appears from the record of the remanded hearing that the
Providence office in each of the 2 fiscal years for which figures are available handled
merchandise and shipped such merchandise to the Massachusetts and Connecticut
warehouses totaling more than $50,000. Accordingly, the Company's Providence
operations fall within the Board's jurisdictional standards.
In view of the above, I find that the Company, at all material times, has been
engaged in commerce within the meaning of the Act at its Providence establishment,
and that it would effectuate the purposes of the Act for the Board to assert juris-
diction over these operations. Accordingly, because of evidence not adduced at the
original hearing but now properly before me, the order issued by me on February 2,
1955, is hereby rescinded, and the Respondent's motion to dismiss the complaint in
its entirety is denied.
II. THE RESPONDENTS
The Respondent Union was, at all material times, a labor organization within the
meaning of Section 2 (5) of the Act. Respondent Jentzel was, at all material times,
business agent of the Respondent Union and its "agent" within the meaning of
Sections 2 (13) and 8 (b) of the Act.
Fort Knox Construction Company, 112 NLRB 140.
e Jonesboro Grain Drying Cooperative, 110 NLRB 481.
is Hogue and Knott Supermarkets , 110 NLRB 543.
'i Compare Fort Knox Construction Company, supra, where the Board applied the
Jonesboro or "other than retail" standards-rather than the Hogue and Knott or "service
establishment" standards-to a multistate enterprise engaged in operating housing proj-
ects. See also Burns Detective Agency, 110 NLRB 995, in which the Jonesboro standards
were applied to a multistate enterprise engaged in furnishing guard services to manu-
facturing plants. On the other hand, the Hoque and Knott standards were applied to a
multistate chain of beauty shops, Clafey's Beauty S1ioppes, 110 NLRB 620, and a multi-
state chain of automobile brake service establishments S G Tilden, Incorporated, at ais,
111 NLRB 640
"Jonesboro Grain Drying Cooperative, supra.
I'NTL: ASSN . OF HEAT AND-FROST INSULATORS , ETC: 1533
Ill. THE UNFAIR LABOR PRACTICES
A. Sequence of events
The Company employs both union and nonunion workers. For a number of years
prior to the events described hereafter , the Company and the Union had maintained
contractual relations with regard to the wages , hours, and working conditions of
the Company 's insulating employees 13 within a certain geographical area over which
the Union claimed jurisdiction . One such contract expired late in 1953. The parties
were unable to reach a new agreement and, on December 18, 1953, the Company's
union employees went on strike . The nonunion employees continued to work and
additional workers were hired to replace the strikers.
Among other subcontracts held by the Company was one to install insulating
material on the Rhode Island Hospital then being constructed , herein referred to as
the hospital job. In May 14 the Company assigned a foreman and three rank-and-file
nonunion employees to work on the hospital job. Prescott Jentzel, the Union 's busi-
ness agent and one of the Respondents herein, was present at the job site. He in-
formed a representative of the general contractor that the Union was on strike
against the Company , that the Company 's employees were "moving in" to start the
job, and that if they commenced to work "there was a possibility that there would
be picketing ." When the Company 's crew began working, the Union established a
picket line of two men carrying signs reading : "Rhode Island Covering Company.
Asbestos Workers Local 31 Want Work." The other craftworkers on the construc-
tion job-about 300 in number-stopped working . The Company 's employees then
ceased their work, told the other craft employees to go back to work, and returned
to the Company 's office. Thereupon , the pickets were removed and the other craft
employees resumed working . The Company made no other attempt to perform
its subcontract at the hospital job during the remainder of the strike.
During the strike, the parties continued contract negotiations . On May 27, the
parties entered into a contract in which the Company recognized the Union as the
exclusive bargaining representative of its insulating employees within the geographical
area over which the Union claimed jurisdiction . It contained union-security clauses
discussed in more detail hereafter . During the negotiations , Nelson B. Swanson,
the Company 's president , had submitted to the Union 's representatives a list of 22
nonunion employees on the Company 's payroll on December 18 , 1953, the date of
the commencement of the strike . The list was verified from the Company 's employ-
ment records . It was orally agreed as part of the settlement that the Union would
accept these men as members 15 Thereafter , there was distributed to each employee
on the list a notice on the Company 's letterhead dated May 27, which read as follows:
NOTICE
Any employee of the Rhode Island Covering Company, Inc., on the payroll of
the company on December 18, 1953 and who-on that date-was employed
"in the application of pipe and boiler coverings , insulation of hot surfaces,
ducts, flues , et cetera , and covering cold pipes and circular tanks con-
nected therewith"
shall on or before June 26, 1954 obtain , and thereafter maintain , membership
in Local Union No. 31 of the International Association of Heat and Frost
Insulators and Asbestos Workers as a condition of employment with the Rhode
Island Covering Company, Inc., in the employment abovedescribed.
Rhode Island Covering Company, Inc.,16
Nonunion employees whose names appeared on the list were furnished by Jentzel
with applications for union membership . Nonunion employees omitted from the
is Also referred to in the record as applicating employees , asbestos workers , and em-
ployees engaged in pipe covering Whenever the terms "employees" or "workers" are
used herein , they are used in this limited sense.
is Unless otherwise indicated , all dates refer to the year 1934
11 There is a conflict in the testimony as to whether the Company urged the Union to take
into membership all its nonunion employees or only those who were on the Company's
payroll on December 18, 1953 . 1 consider it unnecessary to resolve this conflict.
io There is a conflict in the evidence as to whether the Company ' s or the Union's repre-
sentatives worded this notice . I deem it unnecessary to resolve this conflict, as the
authorship of the notice is immaterial.
1534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
list did not receive these notices 17 and were not furnished with union application
blanks.
On May 28 , the day after the agreement was signed , two rank-and-file nonunion
employees of the Company under Foreman Paul Mirante returned to the hospital
job to resume work there . Mr. Hoenhauser , the project manager, halted them
but was told by Mirante that the dispute between the Union and the Company had
been settled . Hoenhauser doubted this and the Company 's crew did no further
work that day. On the next working day they returned to the hospital job and
Mirante exhibited to Hoenhauser a copy of the agreement between the Company
and the Union . Hoenhauser telephoned to Jentzel , who confirmed the signing of
the contract . Hoenhauser then permitted the Company 's nonunion crew to resume
work at the hospital project.
Shortly after the signing of the contract , a large number of strikers returned to
work. None was assigned at that time to the hospital job, which continued for
the time being to be manned entirely by nonunion workers.
In mid-June , Jentzel informed Swanson that nonunion men could not be working
on the hospital project 30 days after the contract was signed , and that if the Com-
pany continued to employ nonunion help, the union men could not work.18 On
June 24 or 25 , 19 Jentzel went to the site of the hospital job and asked Mirante what
the Company intended to do "about manning the job." Mirar_te replied that he did
not yet know. Jentzel then informed Mirante that , after he became a union mem-
ber,20 he was "not supposed to work with nonunion men."
Between June 21 and 25, Jentzel received 13 registered letters requesting (in
various phraseology ) an application for membership in the Union . All except two
were from nonunion employees of the Company assigned to the hospital job, who
were laid off that project on June 25, as will appear hereafter . Neither Jentzel nor
the Union ever answered these letters.
On June 25, the last working day before the deadline set forth in the notice of
May 27, there were 23 nonsupervisory employees working at the hospital job under
Mirante, all of whom were nonunion . Of these, the names of Mirante and seven
rank-and-file employees appeared on the list which Swanson had supplied to the
Union 's representatives during negotiations . On that day, Mirante read off the
names of the 16 employees who were not on the list and directed them to report
to the Company 's office at the beginning of the next working day , because they were
not being taken into the Union.21
On June 26 , 19 of the 22 nonunion employees listed during the negotiations 22
(including Mirante and the 7 men assigned to the hospital job) applied for mem-
bership in the Union and paid their initiation fees.23
17 Swanson 's testimony that he directed that all employees receive such a notice is
deemed inaccurate and is not credited.
is The findings of fact regarding this conversation are based upon the credited testimony
of Swanson, who impressed me as a sincere and forthright witness (although occasionally
inaccurate). Jentzel denied telling Swanson that the union men could not work if the
Company continued to employ nonmembers. But he admitted that he asked Swanson
whether he intended to mix union and nonunion men on the same job and that Swanson
replied that he did not know, and that Jentzel then stated that union members might
object to working with nonunion men. Jentzel was, at times, an evasive witness He
impressed me as somewhat lacking in candor I do not credit his version However, my
conclusions regarding the legal effect of this conversation would be no different even if
I credited Jentzel's version.
11 Jentzel testified that this conversation took place on June 25 Although Mirante
placed this conversation as having taken place on July 24 or 25, it is obvious from the
context that he meant June 24 or 25.
11 Mirante had been on the Company's payroll on December 18, 1953. His name ap-
peared on the list furnished by the Company during negotiations , and he had received one
of the notices quoted above dated May 27. Consequently he and Jentzel both knew that
he was soon to be taken into the Union.
21 The finding that Mirante explained the reason for the layoff is based upon the credited
testimony of John Frank and Joseph S Aguiar, the complainants herein. Ladd Martin,
another nonunion employee who was present and whose name was read, did not recall this
statement Mirante testified that he told these men to report back to the Company's office
on the following working day, but did not testify that he gave them any reason
22 One listed employee, Conrad Vandenberg, had died in the interim Two others, Ed
Berube and H Persson, were not taken into membership; the record does not explain why
23 They were formally sworn into the Union on July 1G and the Company was informed
of their names by Jentzel in a letter dated July 19.
INTL. ASSN. OF HEAT AND FROST INSULATORS , ETC. 1535
On June 28 , the next working day, only Mirante and the seven other employees
who were being taken into the Union remained on the hospital job . The 16 em-
ployees laid off the hospital job reported to the Company's shop . Swanson told them
that he could not put them to work on any project on which union men were work-
ing because they were not union members. A week or two later, other employees
were referred to the hospital job , and the work force on that project reached its
peak of between 20 and 25 men in late July or early August . Except for a few
members of other craft unions referred to the Company by Jentzel , only members
of the Union have worked on the hospital job since June 25.
Since June 28, only one of the employees laid off the hospital job on that day (W.
Benoit ) has been assigned to insulating work within the geographical area over
which the Union claims jurisdiction . The others have been doing intermittent labor-
ing work and "odd jobs" around the Company's shop and elsewhere at a lower rate
of pay,- or have occasionally performed insulating work outside the geographical
area over which the Union claims jurisdiction . Only one (Ladd Martin) was
eventually admitted to union membership . Some of them telephoned to Jentzel
and inquired why they had not received applications for union membership . Jentzel
explained , in effect, that he would check the matter the next time he talked to
Swanson.
The contract between the Company and the Union was due to expire on October
31. Several months prior to that date, both parties gave notice of intent to amend
the contract . Since then , they have been attempting to negotiate a new agreement
but the matter is still unresolved.
B. Legality of the contract's union-security clauses as applied by the parties
1. Facts
The pertinent clauses of the contract of May 27 read as follows-
ARTICLE VII
Subject to applicable law, all employees who are members of the Union in
good standing and all employees who become members after date of execution
of this Agreement shall, as a condition of employment , maintain their member-
ship in the Union in good standing throughout the life of this Agreement.
Subject to applicable law, the employer recognizes that the Local Union is
the established and prime source of skilled and dependable labor necessary or
required to perform the kind of work covered within its craft jurisdiction, and
that the Union is normally ready, able and willing to supply such kind and
quality of labor . The employer agrees that on each occasion of need for such
labor , it shall call on the Union to furnish qualified workmen in the.classifica-
tions within its craft jurisdiction.
Should a shortage of workmen exist and they cannot be supplied by the Union,
after a forty-eight ( 48) hour notice to it, the Employer may procure qualified
workmen from other sources but such other workmen shall apply for and,
subject to the laws and regulations of the Union , become members of the Union
within thirty ( 30) days from the date of employment.
* * * * *
ARTICLE XI
The party of the first part [the Company ] agrees to employ the membership
of Local No. 31 in the application of pipe and boiler coverings , insulation of hot
surfaces , ducts , flues, etc., also the covering of cold piping and circular tanks
connected with the same. This to include alterations and repairing of work
similar to the above and the use of all materials for the purpose mentioned.
Swanson testified that the Company 's policy in recruiting labor within the territory
over which the Union claims jurisdiction is to call the Union first. If the Union is
unable to supply the necessary workers "after a period," the Company obtains labor
elsewhere . He further testified that the Union , from time to time, sends him lists
of company employees recently taken into union membership . Swanson also testi-fied that , before restoring employee Benoit , a member of the Plasterers ' union, tothe hospital job he first secured Jentzel 's approval . Mirante testified that , whenevera new man is added to his crew , he notifies Jentzel . He further testified that, some-
time between June 25 and October 6 , when an employee named McGuirl (a member,of, the Plasterers ' union ) • was assigned to the , hospital job , he cleared with Jentzel
1536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
,before putting McGuirl to work. Jentzel testified that he maintains a list of union
members available for work. When Swanson requests a given number of workers,
Jentzel checks his list of available union members. If there are no union members
available at the expiration of 48 hours, "then it's his [Swanson's] privilege to find
them as he pleases." He also testified that, since June 25, Swanson assured him
that every employee working for the Company within the geographical area over
which the Union claimed jurisdiction was a union member, and that that was "the
way it was going to stay." Further, Jentzel testified that he had never referred any
nonunion employee to Swanson, except members of other craft unions when so re-
quested by Swanson. Jentzel's attitude toward placing union members in jobs is
strikingly illustrated by his testimony. On direct examination he stated- ". . . there
is certain work that comes under the jurisdiction of the Asbestos Workers as regards
to building construction, and it's a purpose of the Business Agent to scout around
the jobs and see that we get the work that is rightfully our jurisdiction..... On
cross-examination he testified:
Q. (By Mr. Coven.) Well, now, what happens if you find that some people
other than your members are doing work which you consider as rightfully
within your jurisdiction?
A. What do we do?
Q. Yes.
A. We do what we can to recover the work and see that it goes to our par-
ticular membership.
Q. And what is that that you do to see that you can recover work?
A. If it's on a Building and Construction Trade's job, and if [the] only
means to obtain the work is to picket the job with the sanction of the Building
and Construction Trade's Council, why we go to that.
Q. You have done that on occasions?
A. Yes.
Q. Let's assume-well, have there been occasions when you have found non-
Union people working on a building construction job?
A. Yes.
Trial Examiner ASHER: Is this question addressed to the industry generally
or to this particular employer?
Mr. COVEN: To the industry generally.
Q. (By Mr. Coven.) Have you found such occasions?
A. Yes.
Q. And what has happened on those occasions?
A. Well, on one occasion we used a picket line to retrieve the work.
Q. And what happened after you used the picket line?
A. We did get the work.
2. Contentions and conclusions regarding the contract's union-security clauses
The complaint alleges, and the answer denies, that the Respondents violated the
Act by executing the contract of May 27 and that, since June 25, the Respondents
have compelled the Company to employ only members of or persons approved by
the Union in insulating work. It is alleged that such conduct contravened Section
8 (b) (1) (A) and (2) of the Act.
A reading of the contract itself reveals that it contains a "first opportunity" clause
under which the Union had the exclusive right to supply any needed labor for the
"Company for a period of 48 hours. It was only after the lapse of this period that
the Company was permitted to hire workmen from other sources. This was the
clear intent of the contract, and it was so understood and applied by the parties.
Moreover, it was the Union's policy to refer to the Company only its members, un-
less the Company specifically requested the Union to refer members of other unions.
I do not agree with the General Counsel's contention that the contract was violative
of the Act on its face. It does not of necessity imply that the Company undertook
to hire only union members 24 A contrary conclusion would strike down all "first
24 George D. Auehter Company, et al, 102 NLRB 881, enfd. 209 F. 2d 273 (C. A. 5),
cited by the General Counsel, involved a similar contract provision While both the
Board and the court there held the provision illegal, it appears that they did so not on
the basis of the provision standing alone, but rather "in the light of the interpretation
placed upon it by the Respondents." Compare the later case of Motor Truck Association
of Southern California, 110 NLRB 2151, footnote 4, where the Board seems to leave the
question open.
INTL. ASSN. OF HEAT-AND FROST INSULATORS, ETC. 1537
opportunity" clauses on the theory that such provisions cannot have, or be under-
stood as having, a legitimate basis for existence. I cannot subscribe to so narrow
a view.
However, it is well settled that when a union undertakes to supply an employer
with workmen, it is required by the Act to carry out this obligation on a non-
discriminatory basis 25 Here, the agreement giving the Union the first opportunity
of supplying workmen to fill existing vacancies was unquestionably utilized by the
Union as a vehicle to secure job preference for its members or persons approved by
it. This exceeded the bounds of permissive union-security arrangements. I accord-
ingly find that, by discriminatorily applying and enforcing the security clauses of
the contract since May 27, 1954, the Respondents restrained and coerced employees
and prospective employees of the Company in the exercise of rights guaranteed in
Section 7 of the Act, and thereby violated Section 8 (b) (1) (A) of the Act.
Moreover,,the Respondents by this conduct caused the Company to violate Section
8 (a) (3) of the Act, and thereby themselves violated Section 8 (b) (2) of the Act.26
C. The discrimination against John Frank and Joseph S. Aguiar
1. Facts
John Frank was first employed by the Company in January, while union employees
were on strike, at a rate of $2.25 per hour. He was among the employees assigned
to work on the hospital job in May. As previously set forth, the Union established
a picket line and the other craft workers on the construction job stopped working.
Thereupon, the Company's crew ceased working, told the other craft employees to
go back to work, and returned to the Company's office. During the remainder of
the strike, Frank was employed by the Company doing insulating work on various
projects other than the hospital job. As Frank was not on the Company's payroll
on December 18, 1953, the date of the commencement of the strike, his name did
not appear on the list furnished to the Union's representatives during negotiations
and he did not receive one of the notices issued by the Company to the men on that
list dated May 27. Nor did he receive an application for union membership.
After the contract between the Company and the Union was executed, Frank was
again assigned to the hospital job crew. At that time, his pay was increased to
$2.971/2 per hour. On June 22, he sent a registered letter to Jentzel to which he
never received a reply. It read as follows:
Mr. JENTZEL: I am forwarding you this letter, requesting an application for
becoming a member of the pipe coverers local. I would like very much of
becoming a member of your union, and sincerely hope all difficulties of the past
have been settled in favor of the union.
Sincerely yours,
Mr. JOHN FRANK,
22 Taft St., Fall River, Mass.
Frank was one of the nonunion employees laid off the hospital job on June 25 by
Mirante, under circumstances described above. He reported to the Company's shop
on June 28, together with the other employees who had been laid off, and was in
the group to which Swanson announced that he could not put them to work on any
project on which union men were working because they were not union members.
For the next week or two Frank reported daily to the Company's office but was not
given any assignment. Then he was assigned to do "odds and ends," not insulating
work, at Swanson's summer house at wages of $2.971/2 per hour. This lasted "maybe
a couple of weeks." Following that, there was a period during which Frank was not
assigned to any work. Later, he was detailed to do carpentry work (not insulating
work) and "odds and ends" at the home of another official of the Company. His
hourly rate at the beginning of this job was $2.971/2 but before the job was com-
pleted this was reduced to $2.60 or $2.40. After that, Frank was assigned to insulat-
25 N. L. R. B. v. National Maritime Union of America, 175 F. 2d 686 (C A. 2), rehearing
denied July 25, 1949, cert. denied 338 U. S. 954, rehearing denied 339 U S. 926; N. L R B.
v George D. Auchter Company, et al., supra , and Utah Construction Co , 95 NLRP 196.
28 Assuming without deciding that the union members on strike were economic strikers
who had been permanently replaced, the Union may well have lost its majority status as a
result. Whether or not the Respondents than violated the Act by demanding and obtaining
from the Company recognition as the exclusive bargaining agent of d11 employees in the
unit need not here be determined, for it is not encompassed within the allegations of the
complaint. For the same reason, I also express no opinion regarding the legality of the
picketing of the hospital job in May.
1538 DECISIONS' OF NATIONAL LABOR RELATIONS BOARD
ing work , at a rate of $2.971/2 per hour, on projects outside the Union's claimed ter-
ritory. He has also worked in the Company's shop from time to time . Since June
25, Frank has neither been reassigned to the hospital job nor been assigned.to any
insulating work within the geographical area over which the Union claims
jurisdiction.
Sometime after Frank sent his registered letter to Jentzel, he telephoned to Jentzel
and identified himself as a laid-off employee of the Company. Pointing out that he
would "very much like to be working," he asked why he had not received the appli-
cation for union membership which he had requested. Jentzel replied that he had
been trying to contact Swanson but had been unable to get an appointment with
him and assured Frank that when he talked to Swanson he would discuss Frank's
case. Although Jentzel did later speak to Swanson, he failed to mention Frank indi-
vidually in that conversation.
Although Mirante testified that Frank was an apprentice on June 25, Swanson ac-
knowledged that he was then receiving journeyman's pay. Frank had done insulating
work "on and off for about 10 years." 27 He belonged to the Carpenters' union be-
fore working for the Company, but has never been a member of the Union.
Frank filed the original charge herein on July 20 and an amended charge on
October 13.
Joseph S. Aguiar began to work for the Company late in March, while the strike
was still in progress, at wages of $1.80 per hour. From that time until the begin-
ning of June he was employed on various jobs at different places. Early in June
he was assigned to the hospital job at a rate of $1.80 per hour. A week later his pay
was increased to $2.971/2 per hour. As Aguiar had not been on the Company's pay-
roll on December 18, 1953, his name did not appear on the list furnished to the
Union's representatives during negotiations, and he did not receive one of the notices
issued by the Company dated May 27. He also did not receive an application for
membership in the Union.
On June 22, Aguiar sent a registered letter to Jentzel, to which he never received
an answer. The letter read:
DEAR SIR: I work for the Rhode Island Covering Co. of Providence, R. I.
I am applying for an application to get in the Pipe Coverers Union.
I remain.
Yours truly,
JOSEPH S. AGUTAR, '
26 Norman St., Fall River, Mass.
Aguiar was among the nonunion employees laid off the hospital job by Mirante on
June 25. In accordance with Mirante's instructions, he reported to the Company's
shop on June 28 and was among those who were told by Swanson that they could not
be put to work on any project on which union men were working because they
were not members of the Union Three days later Aguiar was assigned to driving
a truck for the Company at wages of $1.80 per hour. Since that time he has been
employed intermittently at laboring work, such as cleaning up and unloading cars.
During part of this time he was paid $2 per hour. Since June 25 he has not been
reassigned to the hospital job or been assigned to any insulating work within the
Union's claimed territory. But he has done insulating work for about 2 weeks in
locations outside the area over which the Union claims jurisdiction at the rate of
$1 80 per hour.
Several months after sending the above-quoted letter to Jentzel, Aguiar telephoned
to Jentzel and asked him why he had not received any reply. Jentzel answered that
he received a large quantity of registered mail and did not respond to all of it, and that
he was attempting to ascertain from Swanson the names of nonunion workers em-
ployed by the Company.
Mirante classified Aguiar as an apprentice , but Swanson testified that he was
being paid journeyman's wages on June 25. Before coming to work for the Com-
pany, Aguiar had from time to time belonged to the Laborers' union, the Team-
sters, the Electrical Workers, and some other unions. So far as the record shows,
he has never been a member of the Union.
Aguiar filed the original charge herein on August 11 and an amended charge on
October 8.
It will be recalled that the Company's work crew assigned to the hospital job
numbered only 7 men and a foreman on June 28, but that a week or two later it
was increased and eventually reached a peak of between 20 and 25 men . Yet only
27 The Union classifies as a journeyman anyone who has worked In the craft for 4 years
or more under the supervision of a journeyman.
INTL. ASSN. OF HEAT AND FROST INSULATORS, ETC. 1539
1 of the 16 employees laid off there on June 25, W. Benoit, was reassigned to the
hospital job and then only with Jentzel's approval, based on Benoit's membership
in the Plasterers ' union . On direct examination, Swanson testified:
Q. How about the rest of the people on that list? The other people who
were not called back to work on the 26th [sic]. Have you considered any of
them for employment on that job since that time?
A. No.
Q. And why not?
Mr. WISE: I object to that.
Trial Examiner ASHER: Objection overruled; answer the question.
The WITNESS: The reason we have not because if we sent them back there,
we just felt that Local 31 men would walk off the job, and we weren't looking
for any more trouble.
Q. (By Mr. Coven.) Referring specifically to Mr. Joseph Aguiar and John
Frank, have you considered them for work on the Rhode Island Hospital job?
A. No, sir.
Q. Why haven't you considered them specifically?
A. I want to evade trouble.
Mr. WISE: What's that?
Trial Examiner ASHER: He said, "I want to avoid trouble," or evade.
Q. (By Mr. Coven.) What do you mean by "trouble"?
A. The other men walking off.
Q. Have there been openings at the Rhode Island Hospital from time to time
since June 28 for which you would have considered Mr. Frank and Mr. Aguiar
if not for this desire of yours to avoid trouble as you have put it?
A. I'd be glad to.
2. Contentions and conclusions regarding the discrimination against Frank
and Aguiar
The complaint alleges, and the answer denies, that on June 25 the Respondents
compelled the Company to discharge or lay off Frank and Aguiar from the hospital
job because they were not members of the Union or because of the Respondents'
withdrawal of consent to their continued employment, and that since that date the
Respondents have required the Company to refuse or fail to reemploy them. It is
alleged that such conduct violated Section 8 (b) (1) (A) and (2) of the Act.
I first examine the effect of the oral arrangement of May 27 between the parties
that the Union would accept as members the employees on the list submitted by
Swanson during negotiations. It was understood by all concerned that those not on
the list would not be taken into union membership. Thus, Mirante testified on cross-
examination:
It was understood that Mr. Swanson desired us in the Local 31, but he could
not send such a notice out unless we were going to be taken into the Local.
Any lingering doubt on this score was eliminated by the issuance to those on the
list of the notices dated May 27 and, later, applications for union membership,
while the requests for union applications from those omitted from the list went un-
answered .28 It was further understood that those omitted from the list, after 30,
days following the signing of the contract, would be prohibited from performing
insulating work within the territory claimed by the Union on any project on which
union men were working. This was underscored by Jentzel' s statement to Swanson
in mid-June that nonunion men could not be working on the hospital project 30
days after the contract was signed, and that if the Company continued to employ
nonunion help the union men could not work. It was further demonstrated by
Jentzel's warning on June 24 or 25 to Mirante, a representative of the Company,29'
that after he became a union member he was "not supposed to work with nonunion
men."
29 Jentzel attempted to excuse his failure to answer these requests on the ground that
he was unable to ascertain if the applicants were, in fact, employed by the Company. But
he admitted on cross-examination that it is not necessary for an applicant to be actively
employed in the trade in order to acquire union membership.
29 The Respondents seem to contend in their brief that Mirante was not a supervisor on
June 24 or 25. I cannot agree. The record is clear, and I find, that on those dates he
had authority effectively to transfer and assign the men working under him. It follows
that he was a supervisor within the meaning of Section 2 (11) of the Act Jentzel's,
warning to him therefore constituted a warning to the Company.
387644-56-vol. 114-.88
1540 DECISIONS OF NATIONAL ' LABOR RELATIONS BOARD
I turn next to Mirante 's layoff of Frank and Aguiar from the hospital 'job on
June 25. It was perhaps no mere coincidence that Mirante chose for the layoff the
date of June 25 , the last working day before the deadline agreed upon by the parties
and set forth in the notices issued by the Company under date of May 27.30 But
that need not be decided . Whatever the real reason for the timing of the layoff, the
critical question is: On what basis did Mirante select the individuals for layoff?
Mirante admitted that he had "a very good idea " that the seven men he retained
were going to be taken into the Union . He further admitted that, in selecting men
for layoff, he was influenced by the union -security clauses of the contract 31 and
Jentzel 's warning that he was not supposed to work with nonunion men. Finally,
he admitted that with respect to ability "the group in general was about on a par,
and it was more or less like picking names out of a hat." In view of these ad-
missions, I am convinced and find that Mirante selected Frank and Aguiar for
layoff from the hospital job on June 25 because of his belief that they were not going
to become union members and that it would violate Jentzel's warning to continue
them on the hospital project along with himself and the other seven men who were
about to be taken into the Union . It is equally clear , and it is found , that Swanson
was aware that this had been the reason for the layoffs. Otherwise , he would not
have told the laid-off men on June 28 that he could not put them to work on any
project on which union men were working because they were not union members.
As the Company 's action in laying off Frank and Aguiar from the hospital job on
June 26 was discriminatory , it becomes necessary to determine whether or not it
was caused by the Respondents . The Respondents contend in their brief , that, if
Mirante were a supervisor , he "acted for the Company and not at the behest of the
Union ." On this topic , the Board has stated:
We reject the argument that a finding of "cause or attempt to cause," under
Section 8 (b) (2) of the Act , may only be predicated upon direct or expressed
threats of retaliation by a union 's agents. It is enough that the union 's conduct
reveals an intent to arouse the employer 's fear that the hire or reemployment of
an applicant will result in economic pressure against him 32
In view of Jentzel 's statement to Swanson in mid-June that nonunion men could
not be working on the hospital project 30 days after the contract was signed, and
that if the Company continued to employ nonunion help the union men could not
work, and his warning to Mirante on June 24 or 25 that after Mirante became a
union member he was not supposed to work with nonunion men, it is obvious, and
I find, that the Respondents sought to instill fear in the Company that the retention of
Frank and Aguiar after June 25 on any project on which union members were em-
ployed would result in retaliation against the Company. It is further concluded that
the Company yielded to this pressure when it removed Frank and Aguiar from
the hospital job on June 25 merely because they were not union members.
The same result can be achieved by adopting a different approach . Assuming
the validity of the union -security provisions of the contract of May 27, Frank and
Aguiar were protected by proviso A of Section 8 (a) (3) of the Act against job
discrimination if their employer had "reasonable grounds for believing that such
[union] membership was not available to the employee on the same terms and con-
ditions generally applicable to other members " The Board has held that this pro-
viso "protects any employee discriminatorily excluded from membership whether or
not such tender [of dues and initiation fees] is made ." 33 Without doubt, here the
Company well knew that Frank and Aguiar would not be permitted to join the Union
solely because they had been hired while union members were on strike . They were
30 Mirante testified • "We had been catching up on the work ahead of us and I would
not need as large a crew . There was a stock problem . . . Significantly , however, no
other evidence of need for a reduction in force was presented , and Swanson made no
reference to any such problems when he addressed the laid-off employees on June 28
a According to Mirante , the contract meant "the Local Union would supply all labor
and we were to work with union members only."
32 Chief Freight Lines Company, 111 NLRB 22.
sa Union Starch & Refining Company, 87 NLRB 779 ,'784, enfd. 186 F. 2d 1008 ( C. A. 7),
cert. denied 342 U. S. 815 . In footnote 23 of its decision , the Board pointed out :
It should be noted that this decision does not impair the right of the Respondent
Union to prescribe its own rules with respect to the acquisition of membership, a
union privilege protected by the proviso to Section 8 (b) (1) (A ). Under our deci-
sion, a union may deny membership to an employee upon any ground it wishes, but
the only ground on which it can have a nonmeinbei discharged under a union-
security clause is the employee 's refusal to tender initiation fees and dues.
,;^
INTL. ASSN: OF HEAT AND FROST INSULATORS , ETC. 1541
therefore afforded job protection against the Respondents by virtue of Section 8 (b)
'(2) of the Act . And the tender of dues and initiation fees by them was excused
because of the Respondents ' affirmative obstructive conduct.34
The General Counsel further contends that the failure to reassign Frank and
Aguiar to the hospital job after the crew on that project was increased was inde-
pendently discriminatory and was also caused by the Respondents ' pressure on Swan-
son and Mirante . In view of Swanson 's admission , quoted above , that he did not
reassign Frank and Aguiar to the hospital job because he wished to avoid trouble,"
such as the other men walking off , it is clear and I find that the failure of the Com-
pany to reassign Frank and Aguiar to the hospital job at the time the number of
men assigned to that project was increased was likewise based on the sole fact that
they were not union members and was likewise caused by the Respondents.
The Respondents argue in their brief that the oral understanding of May 27 that
the Union would accept as members all employees on the list submitted by Swanson
during negotiations was not discriminatory . They point out that this constituted
part of a strike settlement and was based on the fact that the employees omitted from
the list were , in their words , a "strike breaking crew." Under these circumstances,
the Respondents maintain that "strike breakers" should not "expect that returning
regulars should give way to them in the struggle for limited work opportunities."
There might be some force to this argument if it were shown that it was necessary
for the Company to displace the replacements in order to provide jobs for the return-
ing strikers . However, the legality of such an arrangement under those circumstances
need not here be determined . For those were not the facts. Quite to the contrary,
Swanson testified:
Q. Did you ever meet Mr. Jentzel on the Monday following the signing of
the agreement and have a discussion with him?
A I'm not just clear what you mean.
Q. Do you think you might have discussed a question of a surplus of men?
A. You mean what would we do with our surplus of men?
Q. Yes.
A. Well, we didn't have a surplus.
Q. Do you recall discussing a surplus?
A. No, because there wasn 't any surplus. We needed every man we had.
We didn 't have a surplus.
Q. And did you keep them all working?
A. We could have.
Q. You could have?
A. Yes, sure.
This testimony , elicited by the Respondents ' counsel on , cross-examination, amply
demonstrates that there was sufficient work available for all returning strikers without
displacing any replacements . The Respondents ' contention is therefore lacking in
merit.
It is true that one of the employees laid off from the hospital job on June 25-
Benoit-was later reassigned to that project . But this was done only after Jentzel
gave his approval, based perhaps on Benoit 's membership in the Plasterers ' union. It
is also true that another employee in the laid off group-Ladd Martin-was eventu-
ally taken into union membership . In connection with Martin , however , it is sig-
nificant that membership was not extended until after he had withdrawn a charge
filed by him with the Board against the Respondents . It is therefore not unlikely
that the Respondents ' change of heart with regard to Martin was influenced by the
withdrawal of his charge . In any event , the fact that the Respondents may not have
discriminated against Benoit or Martin to the same degree that they discriminated
against Frank and Aguiar does not overcome the substantial evidence that Frank
and Aguiar were, in fact, discriminated against by the Company at the behest of
the Respondents 35
Finally, in their brief the Respondents asked the Board "to note that Frank and
Aguiar only lost temporarily full and regular employment" and "have been working
steadily , not only in and about Rhode Island and Connecticut but in Worcester."
84 N. L. R. B. v. Pape Broadcasting Company, et al., 217 F. 2d 197, 199 (C. A. 5), reh.
denied January 28, 1955.
ae See N. L. R. B. v. W C. Nabors Company, 196 F. 2d 272, 276 (C. A. 5), cert denied
344 U. S. 865
1542 DECISIONS '-OF NATIONAL LABOR RELATIONS BOARD
Aside from the inaccuracy of this last statement,36 the argument misses the point-
The question is not whether the Union permitted the discriminatees, to work `else-
where or in other types of employment, but whether they were afforded the same
opportunity to do insulating work at the hospital job or on any other project within
the Union's claimed territory as were those who were taken into the Union. I find
that they were not.
It is accordingly found that, by causing the Company to remove Frank and
Aguiar from the Rhode Island Hospital job on June 25, 1954, and by causing it to.
refuse or fail to reassign them to that project at all times since, the Respondents re-
strained and coerced employees and prospective employees of the Company in the
exercise of rights guaranteed in Section 7 of the Act and thereby violated Section
8 (b) (1) (A) of the Act. Moreover, the Respondents by this conduct caused the
Company to violate Section 8 (a) (3) of the Act and thereby themselves violated
Section 8 (b) (2) of the Act.
D. Inducing members not to work with nonmembers
The complaint alleges and the answer denies that, since June 25, the Respondents
induced or encouraged union members to refuse to work with nonmember employees,
in violation of Section 8 (b) (1) (A) and (2) of the Act. The only evidence that
the Respondents induced or encouraged any union members not to work with non-
members is the statement of Jentzel on June 24 or 25 to Mirante, described above.
But Mirante was then a representative of the Company and the statement has there-
fore been found to have been violative of the Act as illegal pressure on the Company
to discriminate against nonmembers. There is no evidence that the Respondents in-
duced or encouraged any other union member to refuse to work with nonmember
employees. It is therefore unnecessary to decide whether or not a union violates
the Act by inducing or encouraging its members (not representatives of an employer)
to refuse to work with nonmembers.
Upon the basis of the above findings of fact, and upon the entire record of both
the original hearing and the remanded hearing in this case, I make the following:
CONCLUSIONS OF LAW
1. International Association of Heat and Frost Insulators and Asbestos Workers,
AFL, Local 31, is a labor organization within the meaning of Section 2 (5) of
the Act.
2. Prescott Jentzel is business agent of the Respondent Union and its agent within
the meaning of Sections 2 (13) and 8 (b) of the Act.
3. By maintaining, applying, enforcing, interpreting, performing, and giving effect
to the provisions of the contract of May 27, 1954, with Rhode Island Covering
Company, in such a way as to grant job preference in insulating work to employees
or applicants for employment who possess or secure membership in or clearance
from the Respondent Union, and by causing the said Employer to discriminate
against John Frank and Joseph S. Aguiar in violation of Section 8 (a) (3) of the
Act, the Respondents have engaged in and are engaging in unfair labor practices
within the meaning of Section 8 (b) (2) of the Act.
4. By such conduct the Respondents have restrained and coerced, and are re-
straining and coercing, employees and prospective employees of the said Employer
in the exercise of rights guaranteed in Section 7 of the Act, and have engaged in and
are engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A)
of the Act.
5. The above-described unfair labor practices tend to lead to labor disputes burden-
ing and obstructing commerce and the free flow of commerce and constitute unfair
labor practices affecting commerce within the meaning of Section 2 (6) and (7) of
the Act.
6. The Respondents have not violated the Act by executing the contract of May
27, 1954, with Rhode Island Covering Company.
Upon the basis of the above findings of fact and conclusions of law, and upon
the entire record of both the original hearing and the remanded hearing in this
case, I make the following:
RECOMMENDATIONS
In order effectively to remedy the unfair labor practices committed, it will be
recommended that the Respondents cease and desist from maintaining , applying, en-
3e Both Frank and Aguiar have had periods of total unemployment since June 25.
Moreover, Swanson testified that there is steady work "outside" ( I. e., Insulating work)
but only intermittent employment "in the shop," such as "sweeping the floors, washing
the floors, take off the awnings."
INTL . ASSN. OF HEAT AND FROST INSULATORS , ETC. 1543
forcing, interpreting , performing, or giving effect to any contract,37 agreement,
arrangement , understanding, or practice with the Company, or any other employer,38
in such a way as to grant job preference in insulating work 39 to employees or appli-
cants for employment who possess or obtain membership in or clearance from the
Respondent Union, except to the extent permitted by Section 8 (a) (3) of the Act.
It will further be recommended that the Respondents cease and desist from causing
,or attempting to cause the Company, or any other employer, to discriminate against
employees or prospective employees in violation of Section 8 (a) (3) of the Act.
Because of the underlying purpose and tendency of the unlawful conduct found, I
conclude that there exists danger that the Respondents will in the future commit
other unfair labor practices. Accordingly, it will be recommended that the Re-
spondents cease and desist not only from the unfair labor practices found but also
from in any other manner infringing upon the rights guaranteed in Section 7 of
the Act.
Affirmatively, it will be recommended that the Respondents notify the Company,
in writing , that they withdraw their objection to the reassignment of Frank and
_Aguiar to insulating work on the hospital job; or if the Company's part of the hospital
project has been completed,40 or when it is completed, that they have no objec-
.tion to the employment of the above-named employees in insulating work on any
other project within the geographical area over which the Respondent Union claims
jurisdiction. The Respondents shall furnish copies of the said notification to Frank
.and Aguiar. In addition, it will be recommended that the Respondent Union make
Frank and Aguiai whole for any loss of earnings they may have suffered becaitse
of the discrimination against them, by paying to each of them a sum of money equal
to the amount he normally would have earned from June 25, 1954, the date of
.the discrimination against him, to 5 days after the Company receives notification from
the Respondents that they have withdrawn their objection to the reassignment of
Frank and Aguiar as aforesaid, less his net earnings , if any, during that period. The
back pay provided for herein shall be computed on a quarterly basis in the manner
established by the Board; earnings in one particular quarter shall have no effect on
the back-pay liability for any other period. Moreover, back pay shall be abated
from February 2, 1955, when the complaint was dismissed in its entirety, to the
date of the issuance of this Intermediate Report The Respondent Union shall de-
,duct from the amounts payable to Frank and Aguiar such sums as would normally
have been deducted from their wages for deposit with State and Federal agencies
on account of social security and other similar benefits. The Respondent Union
shall pay to the appropriate State and Federal agencies, to the credit of Frank and
Aguiar and the Company, a sum of money equal to the amount which, absent dis-
crimination, would have been deposited to such credit by the Company, either as
a tax upon the Company or on account of deductions made from Frank's and Aguiar's
wages by the Company on account of such social security or other similar benefits.
It will not, however, be recommended that Respondent Jentzel make the discrim-
inatees whole out of his personal resources for any loss of earnings suffered because
of the discrimination against them.41
In order adequately to publicize both to employers and employees, including non-
members of the Respondent Union, that the Respondents will cease and desist from
their unlawful hiring practices, it will be recommended not only that they post the
usual notices in the Union's office and on the hospital project, if the Company's part
of that job has not been completed, but also that they cause it to be printed at their
expense in a newspaper of general circulation in Providence, Rhode Island.42
It will further be recommended that the complaint be dismissed insofar as it al-
leges that the Respondents violated the Act by executing the contract of May 27, 1954.
[Recommended Order omitted from publication.]
37 So far as the record shows, there has been no formal contract between the Company
and the Respondent Union since October 31, 1954
88 "Any other employer" as used herein means any other employer as defined in Sec-
tion 2 (2) of the Act whose operations meet the Board's jurisdictional standards.
sa Insulating work as used herein encompasses all work described in Article XI of the
contract of May 27, 1954, between the Company and the Respondent Union.
90 On November 24, 1954, Swanson testified that it would take approximately another
months to complete the Company's part of the project.
u J. J. White, Inc., 111 NLRB 1126.
4 J. J. White, Inc., supra.
1544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX A
NOTICE TO ALL MEMBERS OF INTERNATIONAL ASSOCIATION OF HEAT AND FROST
INSULATORS AND ASBESTOS WORKERS, AFL, LOCAL 31, AND ALL EMPLOYEES OF
RHODE ISLAND COVERING COMPANY
Pursuant to the recommendations of a Trial Examiner of the National Labor Re-
lations Board, and in order to effectuate the policies of the National Labor Re-
lations Act, as amended, we hereby notify you that:
WE WILL NOT maintain, apply, enforce, interpret, perform, or give effect
to any contract, agreement, arrangement, understanding, or practice with Rhode
Island Covering Company, or any other employer, in such a way as to grant
job preference in insulating work to employees or applicants for employment who
possess or obtain membership in or clearance from the undersigned Union,
except to the extent permitted by Section 8 (a) (3) of the National Labor
Relations Act.
WE WILL NOT cause or attempt to cause the said Company, or any other
employer, to discriminate against employees or prospective employees in viola-
tion of Section 8 (a) (3) of the National Labor Relations Act
WE WILL NOT in any other manner restrain or coerce employees or prospective
employees of the said Company, or any other employer, in the exercise of the
rights guaranteed in Section 7 of the National Labor Relations Act, except to the
extent that such rights may be affected by an agreement requiring membership
in a labor organization as a condition of employment, as authorized by Section
8 (a) (3) of the National Labor Relations Act.
WE WILL notify the said Company, and furnish copies of such notification to
John Frank and Joseph S. Aguiar, that we withdraw our objection to the re-
assignment of the said John Frank and Joseph S. Aguiar to insulating work on
the Rhode Island Hospital job; or if the said Company's part of the said project
has been completed, or when it is completed, that we have no objection to
the employment of the above-named employees in insulating work on any
other project within the geographical area over which the undersigned Union
claims jurisdiction.
WE WILL make whole John Frank and Joseph S. Aguiar for any loss of earn-
ings suffered by them because of the discrimination against them.
INTERNATIONAL ASSOCIATION OF HEAT AND
FROST INSULATORS AND ASBESTOS WORK-
ERS, AFL, LOCAL 31,
Labor Organization.
Dated---------------- By----------------------------------------------
(Representative) (Title)
Dated---------------- ----------------------------------------------
(PaESCOTT JENTZEL, Business Representative)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
Milham Products Co., Inc. and International Ladies' Garment
Workers' Union, AFL-CIO,' Petitioner . Case No. 1-RC-3899.
December 29,1955
SUPPLEMENTAL DECISION AND CERTIFICATION OF
REPRESENTATIVES
Pursuant to a Decision and Direction of Election dated August 3,
1955, and Order Amending Direction of Election dated August 11,
1955,2 an election was conducted on September 22, 1955, under the di-
'As the AFL and CIO meiged since the election herein, we are taking notice thereof
and are amending the Union's designation.
2 Not reported in printed volumes of Board Decisions and Orders.
114 NLRB No. 243.