Joe Robertson & Son, Inc.

National Labor Relations Board - Board Decisions

Mar 10, 1969

174 N.L.R.B. 1073 (N.L.R.B. 1969)

JOE ROBERTSON & SON, INC. 1073
Joe Robertson & Son, Inc. , and N. J. Drywall
Company , Inc. and Wood , Wire & Metal Lathers
Local No. 214 , and Wood , Wire & Metal Lathers
Local No. 456 , Wood , Wire & Metal Lathers
International Union , AFL-CIO and Gulf Coast
District Council of Carpenters , AFL-CIO, Party
to the Contract . Case 12-CA-3895
March 10, 1969
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
On October 22, 1968, Trial Examiner Benjamin
B. Lipton issued his Decision in the above case,
finding that the Respondents had not engaged in the
unfair labor practices alleged in the complaint, and
recommending that the complaint be dismissed, as
set forth in the attached Trial Examiner's Decision.
Thereafter, the General Counsel filed exceptions and
a supporting brief which was adopted by telegram
by the Charging Party as supportive of its own
position
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel
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 Trial
Examiner's Decision and the entire record in this
case, including the exceptions and brief, and hereby
adopts the findings,' conclusions, and
recommendations of the Trial Examinei.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
At the request of the General Counsel, we note and correct the
inadvertent references in the Trial Examiner ' s Decision to the amount of
total work done by Robertson in 1965 and 1966 as being $43,237 and
$56,866 instead of $403,237 and $506,866
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
BENJAMIN B. LIPTON, Trial Examiner This proceeding
was heard before me on July 16-18, 1968, in Tampa,
Florida, upon a complaint by the General Counsel of the
National Labor Relations Board' alleging that the
above-captioned Respondents, severally and jointly,
engaged in certain violations of Section 8(a)(1), (3), and
(5) of the Act Respondents deny commission of any of
the unfair labor practices alleged. All parties participated
at the hearing and were afforded full opportunity to
present revelant evidence and to argue orally on the
record A brief filed by General Counsel and one filed
jointly by Respondents and Carpenters have been duly
considered
Upon the entire record in the case,' and from my
observation of the witnesses on the stand, I make the
following
1. THE BUSINESS OF RESPONDENTS
Joe Robertson & Son, Inc, herein called Robertson,
maintains a place of business in Tampa, Florida, where it
is engaged as a lathing and plastering contractor in the
building and construction industry N J Drywall
Company, Inc.,' of Tampa, Florida, is engaged as a
drywall contractor in the building and construction
industry. From February until June 1967, when formally
incorporated, the same business was conducted as a sole
proprietorship by Norman Robertson, d/b/a N. J
Drywall Company In both forms, the company is herein
called N. J. Annually, Robertson and N. J., respectively,
performs construction services valued in excess of $50,000
for employers directly engaged in interstate commerce It
is found that Respondent are each engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Local 561,° herein principally called the Lathers, since
about March 2, 1968, has been a labor organization
within the meaning of the Act Theretofore, Locals 214
and 456, respectively, were labor organizations within the
meaning of the Act.'
Gulf Coast District Council of Carpenters, AFL-CIO,
"Party to the Contract" and herein principally called the
Carpenters, is a labor organization within the meaning of
the Act.
III THE UNFAIR LABOR PRACTICES
A Background and General Context
The material evidence is substantially without conflict
Since 1948, Robertson has been primarily a lathing and
plastering contractor operating in the Tampa - St
Petersburg area. During this period, it was party to
successive collective-bargaining agreement with the
Lathers.6 The current contract for a 2-year term was
executed by Robertson in March or April 1967 but made
effective retroactively from August 16, 1966, the
expiration date of the prior contract'
The charge was filed on June 30 , 1967, and served upon each of the
Respondents about July 3, 1967 The complaint thereon issued on April 11,
1968
'Without objection , General Counsel ' s motion to correct the transcript
(as to some of the typographical errors ) is hereby granted
'This name appears as corrected at the hearing
'It is alleged in the complaint , admitted by Respondent , and found
herein, in substance that on or about March 2 , 1968, a merger of the joint
charging parties, herein respectively called Local 214 and Local 456, was
appropriately effected , and that Wood , Wire & Metal Lathers Local No
561, Wood, Wire & Metal Lathers Union , AFL-CIO , herein called Local
561, was thereupon created as successor to all contracts , rights and
obligations of the previously separate local unions Elsewhere the record
shows that Respondent Robertson thereafter accepted and recognized
Local 561 as the successor labor organization in all its dealings with the
Lathers
'Fn 4, supra
'Robertson had other agreements separately with unions representing the
plasterers and the laborers
'The stated parties to the contract are Locals 214 and 456 and The
Florida Council of Lathers of the Wood, Wire and Metal Lathers
International Union , AFL-CIO, and Florida West Coast Lathing and
Plastering Contractors Association , Inc Robertson has continuously been
a member and negotiator on behalf of the Association and was a signatory
to the instant contract
174 NLRB No. 160
1074 JOE ROBERTSON & SON, INC.
The contract contains, inter aka, a no-subcontracting
clause;' a "Successors and Assigns" clause,' provision for
operation of a job referral system, including maintenance
of a hiring list by the Lathers, procedures for grievances
and binding arbitration, and a no-strike, no-lockout
clause, specifically excluding employer violations of the
work jurisdiction requirement Covered in detail under the
latter provision are various types of drywall construction,
which includes gypsum board, wall board, plaster board,
sheet rock, and wood paneling Generally described,
drywall construction involves first the installation of studs,
usually of a special kind, then the particular wall material
is nailed to the studs, after which the joints are taped and
the finished wall is ready for painting In erecting wet
walls, a rock or metal lath is affixed to the studs, followed
by the application of plaster or stucco to produce the
completed wall On certain jobs, relatively uncommon, a
plaster wall is constructed on one side of the studs and a
drywall on the other The lathers employed by Robertson
were journeymen or apprentices in the Lathers; only two
of these employees were utilized as competent to perform
drywall work Drywall men were brought in "from the
outside" and referred by the Lathers or hired on the
jobsite and cleared by the Lathers. With minor exception,
none of the drywall men served an apprenticeship as a
lather In the latter half of 1966, Robertson was engaged
in its first significantly large drywall contract at the Jim
Walter Building in Tampa '° On this job, pursuant to the
Lathers' "suggestion" to Robertson, only drywall men
were used to hang the "board," while the steel studs were
installed exclusively by lathers
It is clearly a matter of record that the Carpenters
generally claimed jurisdiction on drywall construction in
the Tampa St Petersburg area (although Carpenters
made no direct demand upon Robertson). Mills and
Jones, the general contractor from whom Robertson
customarily obtained a major portion of its business, was
under contract with the Carpenters Pressure was exerted
by the Carpenters upon Mills and Jones, as particularly
evidenced in December 1966, to cease awarding
subcontracts to plastering firms, such as Robertson, that
utilize the Lathers in the performance of drywall work
The impact of the jurisdictional conflict was directly
bought to bear on Robertson by Mills and Jones and
other general contractors
In the testimony of Respondents, a decision was made
and effectuated by Robertson to discontinue the drywall
phase of its business, i e., to cease bidding on further jobs
but to complete the work on pending contracts About the
same time, in February 1967, Norman Robertson resigned
from his father's company and established himself as a
separate contractor confined exclusively to drywall
construction under the name of N. J Concededly, in the
early months, N. J. received certain forms of assistance
from Robertson, as detailed and considered within. At the
outset, N J. executed a prehire contract with the
Carpenters " Except for "a minimum number of
keymen," the contract provides for operation by the
'(Art IV, sec 3) " the Employer shall not sub- let or contract out on
the job site any of the work defined and described in Section I [work
jurisdiction ] Sub-letting or Contracting, on the job site, by the
Employer shall be permitted only if the Union gives prior agreement
thereto , and further , only if the work is sub-let or contracted out to a
contractor who maintains labor standards
'Quoted infra in discussion of General Counsel' s successorship
contention
"Data as to Robertson ' s annual sales , the proportion devoted to drywall
construction , and the comparative dollar volume of Jim Walter job, are set
forth, infra
Carpenters of an exclusive hiring hall, which includes
maintenance of a list of available men and a requirement
that all job applicants not previously registered submit a
resume of experience and qualifications Two of
Robertson's drywall men were engaged as initial
employees of N. J , and all other drywall employees were
referred by the Carpenters
An exhibit introduced by Robertson, without objection,
shows its gross volume of business, and proportion in
drywall, over a 3-year period
Total Work..... Drywall Portion
1965. $ 43,237. ...$ 20,913 - or 5 2
1966 . 56,866 . 114,266 - or 22 5
1967 442,915 .. 16,180 - or 3 6
According to the exhibit, the Jim Walter job in Tampa
was started in May 1966 and concluded in April 1967
However, Joe Robertson testified that the job was almost
completed by the end of 1966, that drywall construction
comprised 90 percent of this job, and that the value of
such work for 1966 was about $80,000
Comparable data for the business done by N J was
adduced in Norman Robertson's testimony. In 1967, he
received payment for work performed in the sum of
$400,000, of which he remitted a portion to his
subcontractors, about $250,000 consisted of his actual
work in drywall for that year (in major part from Mills
and Jones).
B General Counsel's Allegations
I That Robertson and N J. constitute a single
employer for purposes of the Act
2 That, in the alternative, N J was a successor to
Robertson, and violated Section 8(a)(5) by refusing to
recognize the Lathers, which was contractually entitled to
represent Robertson's employees in the performance of
drywall construction."i
3 That Robertson violated Section 8(a)(5) by refusing
to recognize the Lathers, in failing to honor the terms of
its collective-bargaining contract, and by its unilateral
decision to discontinue the drywall phase of its business
without notifying or consulting with the Lathers
4. That both Respondents violated Section 8(a)(3), in
that (a) Robertson's employees, who were also members
of the Lathers, had their continued employment with N. J
conditioned upon their becoming members of the
Carpenters, and (b) Robertson's employees were deprived
of work opportunities with the representation by the
Lathers, or forced or required to work under the terms
and representation of the Carpenters' contract 13
"Norman Robertson signed the contract on February 15, 1967, which
adopted an existing agreement , effective from April 1, 1966 to March 31,
1969, between the Carpenters and Florida West Coast Chapter of the
Associated General Contractors of America, Inc
' 'the language in paragraph 10(a) of the complaint describes the
allegation as a refusal by N J to recognize the Lathers as the
collective-bargaining representative of its employees and/or to abide by the
terms of the Lathers' contract with Robertson applicable to drywall work
"The foregoing are essentially the issues posed in General Counsel's
brief They are considered in the nature of a restatement of General
Counsel's theories in the case , and are in some respects at variance with
the language used in the complaint and in General Counsel 's arguments at
the hearing Insofar as substantive violations are raised for the purposes of
the conclusions reached herein I regard the the issues as thus restated
JOE ROBERTSON & SON, INC. 1075
C The Single Employer and Successorship Issues
In the corporation of Robertson, 90 shares of stock
were held by Joe Robertson, president, 5 shares by his
son, Norman Robertson, secretary-treasurer; and 5 shares
by a daughter holding office as vice president Norman
Robertson testified that, about November 1966, his father
told him "finally" that he was going out of the drywall
business, and Norman then indicated that he may go into
the business for himself In early January 1967,'1 Norman
engaged Robertson's attorney with instructions to set up a
company and subsequently to negotiate a contract with
the Carpenters. On January 14, weekly publications were
commenced pursuant to the Florida fictitious name
statute, and on February 15, Norman executed a required
affidavit which thereupon permitted N J to operate as a
sole proprietorship 15 On February 15, Norman formally
resigned from Robertson's firm,16 and sold his stock to his
father for $3,000. On the same date, he signed the prehire
contract with the Carpenters. In the interim, Norman
informed various general contractors, including Mills and
Jones, of his intention to set up a separate company
devoted to drywall construction and to operate through
the Carpenters, and he sought their consideration for
future business Joe also spoke with general contractors on
behalf of Norman It is apparent that, prior to February
15, Norman submitted in effect anticipatory bids for work
and that oral advance commitments were made to award
certain jobs to N. J. About February 16, N. J started
work in its first job, under Mills and Jones as general
contractor, at the J C Penney store in the West Shore
Plaza complex One month earlier, Robertson had bid
unsuccessfully for the lathing and plastering work on this
job but the award was made to another subcontractor. N.
J. hired Gene Church, as foreman, and Fred Oliver, both
of whom until then were drywall employees of Robertson,"
additional men were obtained through the Carpenters.
On the Penney Job, N J initially employed 4 or 5 drywall
men, later expanded to 12-I5 men In 1967, N. J
performed numerous other drywall jobs, in total volume
as earlier described Beginning about February, N J. and
Robertson arranged between them to submit "combined
bids."1B Thus, N. J. bid and obtained contracts for the
entire construction on walls, subcontracted the lathing and
plastering to Robertson, and retained the drywall work for
N. J The arrangement was abandoned after several
months because, as asserted, they "missed too many
jobs " Of 17 jobs undertaken by Robertson during this
period, 5 represented subcontracts received from N. J."
In late May, an incident occurred at West Shore Plaza
concerning one of the jobs in which N J had
subcontracted the plastering to Robertson Regarding a
small section of partition on the job, plaster was to be
applied on one side by Robertson, and drywall on the
other side by N J A question arose as to which
employees, lathers or carpenters, would put up the steel
sufficiently to fall within the general framework of the complaint
"Where not otherwise shown , all dates are in 1967
"As noted, N J became incorporated in June
"It was testified in effect that , for a few weeks prior thereto , Norman
did not conduct any business on behalf of Robertson
"It appears that N J at some point also employed former laborers of
Robertson
"Robertson had engaged in a similar practice with other contractors
prior to 1964
"The amounts involved in these five subcontracts to Robertson were
$439, $688, $91,127 , $4,196, and $274 - the latter three Jobs were located
at the West Shore Plaza.
studs Because of the time limitation on the job and the
fear of a possible work stoppage, Joe Robertson arranged
a meeting at the jobsite, also attended by Robertson's
foreman, Jerry Arey, Norman Robertson, their estimator,
Bob Kelso, and Walter Cassell of the Lathers (A
Carpenters representative had previously been consulted.)
Cassell said he wanted to do all the stud work Norman
countered that his carpenters "were going to do all of that
drywall " He said that he had the contract and could
subcontract any portion to his father,20 and also indicated
that if Cassell did not want to do it (i e , his portion of the
studs), he would do it all. Cassell was asked if he would
go along with a "composite crew" for such work, and he
said he would find out and call back He disputed Kelso's
statement that the stud work was not designed to be done
by the lathers. Cassell gave testimony (which was denied)
that Joe Robertson told him that if he rejected the
"composite crew," Robertson would pull all its men off
this work. Cassell did not call back, and the disputed
work was performed, although it is not clear how it was
distributed between the lathers and the carpenters.
Notwithstanding the argument and considerable testimony
on the part of General Counsel, this incident does not
appear to me "especially significant" on the issue of single
employer.
There is no allegation or evidence that Robertson
attempted to procure drywall work for itself after N J
entered the field, or after the earlier indefinite date that
the decision was crystallized to terminate this aspect of
Robertson's business However, pending contracts by
Robertson were completed, i e , the Jim Walter Tampa
Job in April, the St. Petersburg telephone building job on
May 10; and the Bradenton Bank job on June 7. The
following is recited in view of General Counsel's reliance
thereon. In March or April, Mills and Jones advised Joe
Robertson that there would be "extra" drywall work on
the telephone job (Normally, such additional work is
awaided to the original subcontractors.) As he testified,
Joe replied that he was not going to do any more drywall
and requested that his son, who was "going into" the
drywall business, be given an opportunity to bid on the
extra work N J submitted a bid and obtained the job.21
Joe admittedly endeavored, on the basis of his parental
interest, to assist Norman in getting N. J established as a
going concern. (1) He extended loans totaling $9,000,
without interest, secured by promissory notes Of this
amount, repayment has been made of $5,000 (2) For a
time, N J. utilized the services of Bob Kelso, the
estimator who worked for Robertson. Before February 15,
Kelso did some estimating for N J without charge, e g ,
in preparing the bid on the J C. Penney fob Thereafter,
N J regularly paid half of Kelso's weekly salary.
Sometime in 1967, N J took on a different estimator,
while Robertson continued with Kelso. (3) Initially, N J.
maintained an office on one side of the same building
occupied and owned by Robertson, and was not charged
any rental. In this office, N J had its own company signs
displayed After several months, N J. moved to other
premises in Tampa (which theretofore had been vacant for
2 1/2 years) and commenced paying his father, as owner,
"The contracts for this job were verbal at such time and were formally
written up on August 2 Fron the record, it appears a common practice
that work is begun on the basis of an oral understanding substantially in
advance of the date of the formal written contract for the job
"This testimony presents an apparent inconsistency with the evidence
elsewhere that, prior to February 15, Mills and Jones was made aware of
Robertson's decision to cease, and of N J 's prospective entry into, the
drywall business
1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a monthly rental of $125 (4) Until August, when N J.
purchased its own truck, it shared Robertson's truck and
paid the driver's wages for the time he worked on behalf
of N. J The truck was similarly used at times to haul
materials for Mills and Jones (5) For a limited period on
one job, an employee of Robertson was permitted to cut
studs on a portable bandsaw valued at $350, which
belonged to N J Certain other crafts not employed by N
J. were also allowed access to the handsaw. On one
occasion, Robertson's employee, Duran, was instructed by
his foreman, Arey, to cut studs for N. J 's foreman, upon
request Duran testified that, when he protested having to
perform work for a carpenter, Arey replied that if he did
not like it, he would get him his check. However, Arey
reconsidered and rescinded such instruction very shortly
thereafter.
Apart from the relatively minor instances shown above,
there is no evidence of interchange of employees between
Robertson and N. J. Throughout, N. J maintained
separately, for example, its own clerical staff, payroll, and
telephone Under the corporate structure of N J , which
commenced in June, Norman Robertson, as president, has
90 percent of the stock, - and there is no stock
ownership or official capacity in the company, directly or
beneficially held by Joe Robertson
The issues at hand present questions of fact to be
considered on the record as a whole and measured against
well-established criteria in a large body of a decisional
authority. No citation or discussion of cases is furnished
by the General Counsel, and I find none which would
fairly support these immediate allegations On the
evidence recited herein, it is my opinion that the General
Counsel substantially failed to maintain the requisite
burden of establishing that Robertson and N J constitute
a single integrated enterprise, or that N. J is legally the
successor of Robertson with respect to the drywall
business Both individuals, the father and the son, and
both companies, Robertson and N. J , are separate legal
entities absent contrary proof. There are certain suspicions
of collaboration by Joe and Norman Robertson which are
suggested in the circumstances of their association as
father and son in the original business prior to February
15, the combined bidding for a period thereafter, the
immediate pressures upon Robertson stemming from the
jurisdictional dispute over drywall construction, the clear
contractual right of the Lathers to Robertson's drywall
work; the actual changes accomplished by Robertson and
N J., which resulted in a loss by the Lathers of such
further work from Robertson and the acquisition by
Carpenters of a new source of drywall work from N J ,
thereby apparently achieving a jurisdictional objective.
However, these factors are scarcely adequate to
substantiate on a probative basis the specific allegations in
question The extent of assistance which Joe rendered to
Norman Robertson in the early formative stage of the N.
J firm was relatively insubstantial and, in any case,
cannot be viewed as a manifestation of control by
Robertson over the management or policies of N. J
So far as revealed by the record, Robertson nor N. J.
exercised control or participated in the management of the
other as relates to the day-to-day operations or to
decisions on labor relations, personnel, wages, or working
conditions of employees There is no interlocking
ownership or sharing of profits in any form or degree
Merely on the basis of the initial loan, and the relatively
minor aids afforded, it cannot be found that N. J has
been or is financially dependent upon Robertson to sustain
or conduct business. No significant interchange or transfer
of employees has been shown While there is similarity in
the business character of the two companies, albeit each
performs different specialized functions in the installation
of walls, their mutual operations may not be regarded on
the evidence as materially integrated 22 In sum, I find
lacking the critical elements necessary to establish a single
employer relationship for purposes of the issues raised in
the complaint 23
The alternative position is taken that N J is legally the
successor to Robertson's drywall business, and that the
Lathers "were contractually entitled to represent those
employees doing drywall "2° This contention is rejected as
without merit. Literally, N. J. did not succeed to any
distinct, divisible, or continuing aspect of Robertson's
going business In the circumstances here, and in the
competitive and transitory nature of the construction
industry, both companies must be regarded as having
assumed entirely separate obligations with respect to the
performance of drywall subcontracts Furthermore, as
shown, only a relatively slight portion of Robertson's
business was concerned with drywall, while N J. has
operated exclusively in drywall on a much larger scale
And only two of N J 's drywall men were formerly
employed by Robertson - as measured against a peak
complement of 18 drywall men utilized by N J in 1967 25
Apparently some reliance is placed by the General
Counsel on the following clause in Robertson's contract
with the Lathers:
(Art X, Sec 4) This Agreement shall be binding upon
the Employer, and heirs, successors and assigns. If the
Employer's business is purchased, assumed and/or
continued by any corporation, partnership, or single
proprietorship, then this Agreement shall continue in
full force and effect and be binding upon such successor
or assignee with the same effect as if it had originally
been signed by the successor or assignee
This provision can have no binding effect on N J as a
nonsignatory and independent entrepreneur whateser
the contractual obligation of Robertson.
Accordingly, the violations alleged against both
Respondents predicated upon the existence of a single
employer or successor relationship and, in particular, the
Section 8(a)(5) allegation against N. J ,26 are not
sustained
D. Alleged Discrimination by N J
On behalf of General Counsel, Albert M Martin
testified in substance, viz Norman Robertson had
previously told him he was going into business for himself.
While he was working for the Robertson firm at the
Bradenton Bank job, he received a message to call
Norman that evening He telephoned from Gene Church's
house Norman said he wanted to give him the first
"Cf N L R B v Denver Budding and Construction Trades Council, et
at, 341 U S 675, concerning the independent status of contractors and
subcontiactors in the building and construction industry
"See, e g , Miami Newspaper Printing Pressman Local No 46 v
N L R B . 322 F 2d 405 (C ADC ), See Bee Slurry Matic, Inc . 169
NLRB No 30, Ingledue Excavation Service, 150 NLRB 1024, M
Lowenstein & Sons, Inc, 150 NLRB 737
"Quoted from General Counsel's brief No further rationale is given
"Cf Western Freight Association, 172 NLRB No 46
"Absent the single employer and successor contentions, no position is
advanced that the Lathers claimed to represent N J 's drywall employees,
nor was any demand made by the Lathers upon N J
JOE ROBERTSON & SON,
opportunity to run a big job as foreman, at J C Penney,37
and that the only thing changed was that he would be
working under a Carpenters contract Norman gave him
the address of the Carpenters Hall and the name of an
official who would be waiting for him at an appointed
time the next day Martin replied that he would like to
think upon it overnight, and that if he accepted, he wanted
Norman to take him to see this man Norman agreed
The next morning, at a jobsite with Joe Robertson
present, he told Norman that he decided to decline
because he was serving an apprenticeship to be a lather.
He suggested that Church would probably accept that
offer (Martin was in error in fixing the time of the
conversations in March or April, as it is clear that the
Penney job was begun about February 16 )
As earlier indicated, Church and Oliver, former
employees of Robertson, commenced work for N J on
the Penney Job Norman Robertson averred that he told
Church and Oliver he was going to hire through the
referral system under Carpenters contract, and that he
never told them or anyone else they had to join the
Carpenters to work for him
The complaint alleges that N. J violated Section
8(a)(3) by offering employment to various employees of
Robertson on condition that they select the Carpenters as
bargaining representative In General Counsel's brief, it is
contended that N J.'s pattern in making the offers was
established by Martin's testimony, and that the manner in
which the offerees were told they would have to work
under a Carpenters contract had the practical effect of
conditioning their continued employment with N J. upon
their becoming members of the Carpenters I find this
entire position without substance N J.'s prehire contract
with the Carpenters contains no effective union security
requirement,29 and is not alleged as exceeding the
allowable reach of Section 8(f) of the Act with respect to
such contracts in the building and construction industry 29
The complaint does not attack the contract itself nor its
application as to N J Church and Oliver, the only former
Robertson drywall men actually hired by N J , were not
called as witnesses And the evidence plainly does not
support an inference that employment with N J was
conditioned upon union membership or discriminatory
terms Accordingly, this allegation is dismissed
E Alleged Refusal to Eargain by Robertson
The applicable law is settled and may be briefly stated-
An employer is obligated in good faith to engage in prior
collective bargaining, i e., notify and consult, with the
statutory representative of its employees concerning an
economically motivated decision to terminate a portion of
its operations and the effects thereof 10 Whether a
violation has been committed is to be judged upon the
overall circumstances of each case
As the particular issue has been brought up, I hold it
unquestionable that Robertson's bargaining obligation
continued, while Lathers remained the recognized
representative, during the lapse from August 16, 1966,
when the prior contract expired, to February or March
1967, when a new retroactive contract was signed.
"Denied by Norman Robertson
"Florida has a "right to work" law
"Cf Houston Chapter, Associated General Contractors of America,
Inc, et at , 143 NLRB 409
"Fibreboard Paper Products Corp v N L R B. 379 U S 203, Towne &
Country Mfg Co, Inc. et at v NLRB , 316 F 2d 846 (C A 5) (lead
cases) And see Georgia - Pacific Corporation, 150 NLRB 885, 890, fn 12
INC. 1077
Initially, I find that the Lathers had ample notice and
was aware of Robertson's intentions and decision to
terminate the drywall portion of its operations and of N
J 's embarkation into this business Inter alia, over a
period from December 1966 through June 1967, various
meetings were held in which the subject was discussed
with the Lathers' representatives, Walter Cassell and
Richard P De Cuicies The pertinent evidences may be
summarized
In December 1966, Joe Robertson told De Cuicies that
the Carpenters was putting the pressure on, threatening to
walk off, if the Lathers continued to do the drywall work
for subcontractors under Mills and Jones In early
January, a meeting was set up at the office of Mills and
Jones, with Joe Robertson and representatives of the
Carpenters and the Lathers in attendance Paul A Long,
the Carpenters' agent, made the point to Mills and Jones
that the Carpenters had a national agreement with general
contractors, and it could not afford to let anyone in that
agreement continue to award drywall work to a plastering
contractor who would give it to the Lathers. Long said he
would file charges against Mills and Jones if this
continued A discussion ensued concerning rulings of the
National Joint Board for Settlement of Jurisdictional
Disputes Alter the meeting, Joe Robertson told De
Cuicies that he was fed up with this jurisdictional trouble
and that he "wasn't going to do any more drywall work "
Cassell was similarly advised when he was in Robertson's
office in mid-December "
In early February, a contract negotiating meeting took
place at the office of the Associated General Contractors,
attended by Cassell and De Cuicies for the Lathers, Joe
Robertson, and various other principals On this occasion,
Joe Robertson said that Mills and Jones, in view of its
contract with the Carpenters, was not going to give
drywall work to plastering contractors because they could
not assign such work to carpenters De Cuicies asked him
to put this in writing but was refused According to De
Cuicies, Robertson mentioned "numerous times that he
was thinking about this thing - the heck with it all," and
that "his son was thinking very seriously about going into
the business, and he'd help him " De Cuicies told
Robertson that he was going to have to make up his mind
whether to stick with the Lathers or go with the
Carpenters
Cassell admitted that the first time he "knew for sure"
that Norman Robertson was actually operating as a
drywall contractor was when Church called and told him
he was "going to go" with N J as a foreman, working
through the Carpenters He also saw Church and Oliver
employed at the Penney job (which, as early noted,
commenced on February 16) 32 Cassell testified
I decided to go to Joe Robertson and get a contract
signed In other words, find out what he was calling his
company then, and so I did, I went to his office and he
signed the contract, and he signed as he has always
signed it, and he said it wouldn't be changed, and I told
him that I heard there was a new company and asked
him who that was and he said that it was Norman, and
it was N and J Dry Wall
"The date was fixed at about a month prior to Joe Robertson's call to
his attorney in early January with advice to sever his son's formal
connection with the Robertson firm
'IN J 's operations were observed by the Lathers on other later jobs
Additionally, Martin testified that he told Cassell in February of the
employment offer and his conversations with Norman Robertson
concerning N J 's separate business venture
1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
And he said that this company had been set up so
Norman could get the contract and sub work to him
- any part of it Whereas, if he got the contracts, he
couldn't sub it to Norman, and he asked me at the time
if I thought he was in violation of his contract with us,
and I told him that I didn't know, but that I intended
to find out 33
Dated May 23, the following letter was sent by the
Lathers to Robertson 3'
Dear Sir
We, the members of local 456, feel that there has
been a violation of the present contract by you
regarding work jurisdiction Therefore we would like
very much to meet with you regarding this matter
We have obtained a room to meet with you in the
Commercial Building at 1212 Florida Ave., room 109
May 27, 1967 at 9.30 A M
Sincerely yours
/s/ G 0 Reed, Sec
Local 456
St Petersburg, Florida
Dated May 25, Robertson replied
Wood, Wire & Metal
Lathers' International Union
Local Union 456
St Petersburg, Florida
IN ANSWER TO YOUR LETTER MAY 23
If you have charges to bring against us, we want you to
be more specific The time you have established for the
meeting is not satisfactory
Very truly yours,
JOE ROBERTSON & SON, INC
/s/ Joe W Robertson
President
In early June, a meeting was arranged by an official of
Mills and Jones in an effort to avoid a possible work
stoppage by the Lathers Among others, Robertson's
attorney was present The Lathers was concerned with the
performance of the "extra" drywall work on the St
Petersburg telephone job Joe Robertson stated that this
work was being done by N J De Cuicies raised the
question as to who were the parties involved in the N J
company, and was told that, if they wanted to find out,
"why not write Tallahassee "79
On June 20, a letter was sent to Robertson, viz
Gentlemen
You are herewith advised that your association,
involvement and performance by, through and with, N
& J Drywall Company, is and has been in violation of
your obligation to Locals 214 and 456, of the Lathers
International Union and your contract with these
"This meeting is elsewhere shown to have occurred in February or
March, and involved Robertson ' s execution of the current contract with the
Lathers made retroactive to August 16, 1966
"There is testimony that representatives of the Lathers withheld action
for several intervening weeks in personal deference to Joe Robertson while
concerned with the serious illness and ultimate decease of his wife
"On June 26, a charge (Case 12-CD-105) against the Lathers alleging
violation of Section 8(b)(4)(D) was filed by Mills and Jones , listing
Robertson as an employer, at the West Shore Plaza Shopping Center The
charge was thereafter withdrawn
organizations
Unless you immediately cease such association,
involvement and work performance by, through and
with such company, it is the intention of Locals 214
and 456 to each seek redress by all available means.
Please advise the undersigned within five (5) days from
the date of this letter of the action being taken by you
to correct the situation Failure to do so can only
accelerate the institution of action by us designed to
insure the fulfillment of your obligations and contract
with us
You may be governed accordingly
Yours very truly,
Lathers Local 214
By. /s/ Walter Cassell
Business Representative
Lathers Local 456
By /s/ Richard P De
Cuicies
Business Representative
On June 30, a further meeting was held at the office of,
and with, Hamilton, the Lathers' attorney, Cassell, De
Cuicies, Joe Robertson, and his attorney, Thompson The
parties reviewed the course of events and the relationship
of Robertson and N J. They discussed the possible
violation by Robertson of the Lathers' contract Questions
were raised as to who had the contracts for "extra"
drywall work on certain jobs. Hamilton asked Joe
Robertson his intention concerning drywall Robertson
said that he wanted no more to do with it, that N. J is in
business strictly on its own, and that his help was only as
a father toward a son . Finally, Hamilton stated that he
had no other recourse but to file (the instant) charges with
the Board
It is thus revealed that the jurisdictional conflict
between the Lathers and the Carpenters was the central
cause of Robertson's determination to cease drywall work3s
as a relatively small factor in its basically lathing and
plastering operations. That Robertson has effectively
eliminated its drywall business and N J has established
itself as a viable enterprise in this limited construction
field is evident without challenge Robertson and the
Lathers have enjoyed a long collective bargaining
relationship, still continuing No animus or discriminatory
motivation on the part of Robertson is suggested or
evidenced The departure of Church and Oliver from
Robertson's employ was voluntary, no attempt has been
made to show loss of work by any of Robertson's
employees
Over a substantial period of time preceding and
succeeding Robertson's decision and actions in
termination of its drywall business, I find that the Lathers
was repeatedly apprised and had ample notice of these
developments The initial reaction consisted of appeals to
Robertson to "stick with the Lathers " In the various
meetings, including contract negotiations, no efforts were
made by the Lathers to assert its right to bargain on the
termination decision and the effects upon Robertson's
employees. I do not construe Robertson's reply to the
Lathers' letter request on May 23 (much after the events)
for a specifically set meeting to discuss alleged contract
violations - as indicative of an unwillingness to meet
There was in fact meetings held in June in which,
however, the Lathers were concerned with other matters,
"The underlying problem of the jurisdictional dispute per se, which has a
history before the National Joint Board within the AFL-CIO, is, of course,
not here in issue before the Board
JOE ROBERTSON & SON, INC. 1079
as shown Until the meeting on June 30 and its resolution
then to file the charges herein, the Lathers manifested
only its interest in a possible breach of the
no-subcontracting and work jurisdiction provisions of its
contract with Robertson Such a determination is not
properly within the province of this proceeding." A
remedial order would not be warranted here, even if a
technical violation might be found under the Fibreboard
doctrine
On the overall evidence in the case, it is my conclusion
that Robertson has not refused to bargain in violation of
Section 8(a)(5), as alleged 1e
2. The Lathers and the Carpenters are labor
organizations within the meaning of Section 2(5) of the
Act.
3 The allegations of the complaint that Respondents
Robertson and N J have engaged in unfair labor
practices within the meaning of Section 8(a)(1), (3), and
(5) of the Act have not been supported by substantial
evidence
RECOMMENDATIONS
F Alleged Discrimination by Robertson
Nor, in light of all of the foregoing, do I find conduct
violative of Section 8(a)(3)
CONCLUSIONS OF LAW
1 Respondents are engaged in commerce within the
meaning of Section 2(6) and (7) of the Act
It is recommended that the complaint be dismissed in
its entirety
"It is difficult to comprehend , in terms of the statute and the evidence,
the vague interrelated theories of the General Counsel that Robertson
refused to abide by the terms of the Lathers ' contract The record affords
no elucidation
'E g , tlfeld Hardware & Furniture Co, 157 NLRB 1401, Eaborn
Trucking Service , 156 NLRB 1370, Hartmann Luggage Company, 145
NLRB 1572