National Federation of Labor, Inc.

National Labor Relations Board - Board Decisions

Sep 7, 1966

160 N.L.R.B. 961 (N.L.R.B. 1966)

NATIONAL FEDERATION OF LABOR, INC. 961
National Federation of Labor, Inc . and Carpenters District Coun-
cil of Miami , Florida, and Vicinity , AFL-CIO and Center
Plumbing & Heating Corporation ; Central Plumbing & Heat-
ing, Inc.; Hurst Electric Co.; Frank Schaefer , Inc.; State
Builders, Inc.; Sun State Electric , Inc.; Taube Electric Con-
tractors , Inc.; John M. Callas, d/b/a United Electric , Parties to
Contract, and Biscayne Gardens Electric , Inc.; Car-Line Elec-
tric Corp.; Decker Electrical Corporation ; Goldman Plumbing
Co.; Simanek Construction Company, Parties of Interest
Biscayne Gardens Electric , Inc., Taube Electrical Contractors,
Inc., Decker Electric Company , Inc., State Builders , Inc., Sun
State Electric , Inc., John M. Callas, d/b/a United Electric, Car-
Line Electric Corp ., Frank Schaefer , Inc. and National Federa-
tion of Labor, Inc ., Petitioner . Cases 12-CB-748, 761, 12-RC-
1843, 1847, 1848, 1849, 1860, 1873, 1963, and 1896. September 7,
1966
DECISION AND ORDER AND ORDER
RESCINDING CERTIFICATION
On April 21, 1966, Trial Examiner Morton D. Friedman issued his
Decision in the above-entitled proceeding, finding that Respondent
had engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. He further found that Respondent did not engage in certain
other unfair labor practices as alleged in the complaint and recom-
mended dismissal as to them. In Cases 12-RC-1843, 12-RC-1847, 12-
RC-1848, 12--RC-1849, 12-RC-1860, 12-RC-1873, 12-RC-1896, and
12-RC-1963, all of which were consolidated with the unfair labor
practice case by previous direction of the Board, the Trial Examiner
recommended that the individual certifications issued to National
Federation of Labor, Inc., be revoked. Thereafter, the General Coun-
sel filed exceptions and a supporting brief, and the Respondent filed
cross-exceptions, and a supporting brief.
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 these cases to a three-member
panel [Members Fanning, Brown; and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and -finds that no prejudicial -error was committed. The
160 NLRB No 63. •
257-551-67-vol - 160-62
962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rulings are hereby affirmed. The Board has considered the entire rec-
ord in these cases, including the Trial Examiner's Decision, the excep-
tions, cross-exceptions, and the briefs, and hereby adopts the Trial
Examiner's findings, conclusions, and recommendations, with the
additions and modifications set forth below.
1. We agree with the Trial Examiner's finding that the Respond-
ent, National Federation of Labor, Inc., referred to herein as NFL,
violated Section 8(b) (1) (A) and (2) of the Act by executing con-
tracts with Sun State Electric, Inc. ; John M. Callas, d/b/a United
Electric; and Taube Electrical Contractors, Inc., which contained
clauses providing for preferential hiring of NFL members.
2. The General Counsel excepts to the Trial Examiner's failure to
find that NFL, an employer dominated labor organization, committed
additional 8(b) (1) (A) violations by executing collective-bargaining
agreements with various employers without representing an uncoerced
majority of their employees. There is merit in the General Counsel's
exception.
The record shows, and the Trial Examiner found, that the NFL is
a successor to or alter ego of the United Southern Employees Associa-
tion, referred to herein as USEA. In an earlier proceeding, the Board,
pursuant to a stipulation of the parties, on January 12, 1961, issued an
Order requiring, inter alia, that USEA, its officers, agents, successors,
and assigns cease and desist from (1) permitting employees to partici-
pate in a labor organization in which employers participate as mem-
bers, (2) maintaining in effect agreements with employers in the State
of Florida, and (3) seeking from employers in the State of Florida
recognition as the bargaining agent for employees, or (4) in any other
manner restraining or coercing employees. The Board's Order further
required USEA to rescind and set aside any agreements with employ-
ers located in the State of Florida and to disestablish itself as a labor
organization in that State. Thereafter, on April 10, 1961, the Court of
Appeals for the Fifth Circuit entered its decree enforcing the afore-
said Order of the Board.
We agree with and adopt the Trial Examiner's findings that NFL
is, and at all material times was, an employer-dominated labor organi-
zation. In so finding, we conclude that the entire record plainly reveals
that NFL has assumed the role of USEA and, while purporting to
represent employee interests with respect to terms and conditions of
employment, has utilized the bargaining process to promote employer
aims to such a degree that a finding of continued domination and
employer participation in its activities is warranted herein.
More specifically, as fully set forth in the Trial Examiner's Deci-
sion, the record shows that during the period cognizable by the instant
charges, the NFL has been utilized by employers to thwart the free
NATIONAL FEDERATION OF LABOR, INC; 963
choice of their employees and the organizational efforts of other
unions. The record is replete with instances where a bargaining rela-
tionship with NFL was sought by various contractors to counter rec-
•ognitional or bargaining demands of various building trades unions.
Actual bargaining, in some cases, was preceded by the contractor
arranging for NFL representatives to meet with and organize their
employees, while in others, it commenced with neither inquiry nor
concern on the part of the employers for the representative status of
that union.
Aside from its role in carrying out employer aims inimical to the
fundamental statutory policy seeking to protect employee freedom of
choice, the bargaining practices of NFL reveal the type of inertia or
docility to be expected of a labor organization tainted by employer
influence and unconcerned with better working standards through
bona fide collective bargaining. In all instances, bargaining between
NFL and the various employers proceeded from NFL's standard form
agreement which usually was hastily accepted by signatory employers
with little or no negotiation whatever. That agreement, while setting
forth a wage scale, nevertheless vested the contracting employer with
complete discretion in classifying employees for pay purposes, and
include few real benefits and safeguards commonly found in collective-
bargaining agreements in the construction industry, or, for that
matter, in other industries. Indeed, several employers conceded that
their contract with NFL entailed no change in preexisting employ-
ment terms. Additionally, NFL's indifference to employee interests is
further evidenced by its failure to police outstanding agreements, its
failure to process grievances, its allowing agreements to expire and
lapse without renegotiation, and its failure to seek negotiation of
matters under contractual reopening provisions. Also significant is
NFL's ambivalent position concerning the effort of organized labor to
bring about congressional repeal of Section 14(b) of the Act. Thus,
while opposing said repeal and adopting the view commonly associ-
ated with management groups throughout the Nation, NFL propa-
gandized compulsory unionism as "Communism and Nazism" while
itself party to collective-bargaining agreements which unlawfully con-
ditioned job referrals on membership in NFL.
These factors, considered against the background of the prior Board
Order involving NFL's predecessor and the history of employer par-
ticipation therein, in our opinion, amply demonstrate that NFL con-
tinues to function as an instrumentality of employer. influence and
control, and constitutes an employer-dominated labor organization.
The Trial Examiner, though finding that NFL, like its predecessor,
USEA, is an employer-dominated labor organization, refused to find
the additional 8(b) (1) (A) violation apparently because he construed
964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the General Counsel's position as relying solely on the failure of the
Respondent to comply with the Board's prior Order, and, in the
Trial Examiner's view, continued existence of a dominated labor
organization does not itself involve a sufficiently direct invasion of
statutory rights to constitute restraint or coercion within the meaning
of that section. However, we find it unnecessary to pass upon the Trial
Examiner's reasoning, since we are persuaded that the alternative
theory of the General Counsel has merit, and we find on that basis
that NFL, as a dominated union, violated employee rights-within the
meaning of Section 8(b) (1) (A) of the Act. Thus, as a matter of
settled law, the execution of a collective-bargaining agreement by a
labor organization which does not represent an uncoerced majority
restrains and coerces employees in the exercise of their Section 7
rights.' Furthermore, the representative status of a union is not unco-
erced where tainted by unlawful employer assistance and support 2
and, a fortiori, employee designation of a labor organization is no less
coerced when, as here, it is a by-product of employer domination. It is
thus patent that NFL has never represented an uncoerced majority of
employees and did not enjoy true majority status upon execution of
contracts with Hurst Electric Co.; State Builders, Inc.; Sun State
Electric, Inc. ; John M. Callas, d/b/a United Electric. ; Car-Line
Electric Corp. ; Biscayne Gardens Electric, Inc. ; Center Plumbing &
Heating Corp. ; and Central Plumbing & Heating, Inc., all of which
contracts were entered within the period properly cognizable under
the instant charges. Accordingly, we find that Respondent, by execut-
ing said agreements, restrained and coerced employees in violation of
Section 8(b) (1) (A) of the Act.
3: Having found that NFL, as a company-dominated labor organi-
zation, violated Section 8(b) (1) (A), and that said labor organiza-
tion is a successor to or alter ego of USEA, we are satisfied that the
seriousness of Respondent's unfair labor practices and the contumacy
reflected in its repeated and persistent violations of employee rights
will not be remedied fully by an order coextensive with that issued in
the earlier proceeding, as the General Counsel requests, but that a
broader order must be fashioned if the purposes of the Act are to be
effectuated herein. Accordingly, we shall order NFL to cease and
desist from representing employees for the purposes of collective-
bargaining, seeking recognition for such purpose from employers,
executing or maintaining collective-bargaining agreements with
employers, or in any other manner restraining or coercing employees
1International Ladies' Garment Workers' Union (Bernhard-Altmann Texas Corp ) v
N.L R B., 366 U.S 731 ( 1961).
2 Checker ' Taxi Company , 131 NLRB 611 ; East Tennessee Packing Companij , 153 NLRB
1257; Quality Coal Corporation , 139 NLRB 492, 495; Salmirs Ott Company, 139 NLRB 25,
NATIONAL FEDERATION OF LABOR, INC. 965
in the exercise of their Section 7 rights. We shall also order NFL to
rescind and set aside agreements with employers in the State of,Flor-
ida, and to disestablish itself as a labor organization. As we deem it
necessary that all members of Respondent and all employers with
whom Respondent has bargained be fully apprised of the steps taken
to remedy the Respondent's unfair labor practices, we shall order, in
addition to the customary posting of notices, that Respondent mail
individually to said members and employers signed copies of the
notice marked "Appendix" attached to this Decision and Order.
Finally, for the reasons fully stated in the Trial Examiner's Deci-
sion, we shall revoke the certifications issued to NFL in Cases 12-RC-
1843, 12-RC-1847, 12-RC-1848, 12-RC-1849, 1-2RC-1860, 12-RC-
1873, 12-RC-1963, and 12-RC-1896.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby orders that the
Respondent, National Federation of Labor, Inc., Miami, Florida, its
officers, agents, representatives, and successors, shall:
1. Cease and desist from :
(a) Representing or seeking to represent employees for purposes of
collective bargaining, seeking recognition from employers within the
State of Florida for purposes of collective bargaining, or entering
into, maintaining, or giving effect to any collective-bargaining agree-
ments with any employer in the State of Florida, or functioning
in any other manner as collective-bargaining representative for
employees.
(b) In any other manner restraining or coercing employees in the
exercise of their rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is deemed necessary
to effectuate the policies of the Act :
(a) Rescind, and set aside all collective-bargaining agreements with
employers in the State of Florida.
(b) Disestablish itself as a labor organization.
(c) Mail to each individual member of National Federation of
Labor, Inc., and any employer which has or is bargaining with
National Federation of Labor, Inc., a signed copy of the attached
notice marked "Appendix," 3 immediately upon receipt thereof, said
notice to be furnished by the Regional Director for Region 12, and
to be signed by Respondent's authorized representative.
3 In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "a Decision and Order" the words "a Decree of
the United States Court of Appeals Enforcing an Order."
966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Post at its office and meeting hall copies of said duly signed
notice, immediately upon receipt thereof, and maintain said notices.
for 60 consecutive days thereafter, in conspicuous places, including all
places where notices to members are customarily posted. Reasonable,
steps shall be taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(e) Sign and mail sufficient copies of said notice to the aforemen-
tioned Regional Director for forwarding to all employers with which
Respondent has bargained or is bargaining, for posting by said
employers at all locations where notices to employees of said employ-
ers are customarily posted.
(f) Notify the Regional Director for Region 12, in writing, within
10 days from the date of this Order, what steps Respondent has taken
to comply herewith.
IT IS FURTT]ER ORDERED that the, certifications of the National Fed-
eration of Labor, Inc., issued by the National Labor Relations Board
in the following cases be, and they hereby are, revoked : Cases 12-
RC-1843, 12-RC-1847, 12-RC-1848, 12-RC-1849, 12-RC-1860, 12-
RC-1873, 12-RC-1963, and 12-RC-1896.
APPENDIX
NOTICE TO ALL MEMBERS OF NATIONAL FEDERATION OF LABOR, INC.,
AND TO ALL APPLICANTS FOR EMPLOYMENT
Pursuant to a decision and order of the National Labor Relations
Board and in order to -effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that:
AVE WILL NOT represent, admit to membership, or seek to repre-
sent employees, nor will Ave seek recognition, or negotiate with
any employer for purposes of collective bargaining with respect
to wages, hours, or terns and conditions of employment, nor will
we enter into, maintain, or give effect to, any collective-
bargaining agreement with any employer.
WE WILL NOT in any other manner restrain or coerce employees
in the exercise of their rights guaranteed in Section 7 of the Act.
WE WILL rescind and set aside all collective-bargaining agree-
ments with employers, disestablish ourselves as a labor organiza-
tion, and abandon all activities as collective-bargaining repre-
sentative for employees.
NATIONAL FEDERATION OF LABOR. INC.
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
NATIONAL FEDERATION OF LABOR, INC. 967
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
If members have any question concerning this notice or compliance
with its provisions, they may communicate directly with the Board's
Regional Office, Room 826, Federal Office Building, 51 SW. First
Avenue; Miami, Florida 33130, Telephone 350-0600.
TRIAL EXAMINER'S DECISION AND RECOMMENDATIONS
STATEMENT OF THE CASE
Upon a charge filed in Case 12-CB-748 on March 4, 1964, and a charge filed in
Case 12-CB-761 on June 3, 1964, by Carpenters District Council of Miami, Flor-
ida, and Vicinity, AFL-CIO, herein referred to as the Charging Party or the Car-
penters, the Regional Director for Region 12 of the National Labor Relations Board,
herein called the Board, issued a complaint in Case 12-CB-761 on July 14, 1964,
and on June 30, 1965, issued a consolidated amended complaint which encompassed
the allegations of both charges . On July 13, 1965, the said Regional Director issued
an amendment to the consolidated amended complaint.
On July 2, 1965, the Board issued a notice to show cause in the representation
cases involved herein, the titles and numbers of which are heretofore listed , stating
that the allegations of the consolidated complaint herein "raise substantial questions
pertinent to the Board 's affording continuing validity to the certifications heretofore
issued to National Federation of Labor" (herein called the Respondent or NFL).
On July 14, 1965, the Board issued an order remanding proceeding to the Regional
Director, reopening the records in the representation proceedings on the issue of
revoking the said certifications and directing consolidation of hearing on that issue
with hearing in Cases 12-CB-748 and 761.
On August 10, 1965, the Regional Director for Region 12 issued an order consoli-
dating the unfair labor practice cases and the aforesaid representation cases and also
issued a second consolidated amended complaint alleging that NFL had violated
Section 8(b)(I)(A) and (2) of the National Labor Relations Act, as amended (29,
U.S.C. Sec. 151, et seq.), herein called the Act. In its duly filed answer to the afore-
said second consolidated amended complaint , the NFL, while admitting certain alle-
gations thereof, denied the commission of any unfair labor practices and denied that
the aforesaid certifications should be revoked.'
Pursuant to notice, a hearing was held before Trial Examiner Morton D. Fried-
man in Miami , Florida, on September 9 and 10, and October 13, 14 , and 15, 1965.
All parties were present and afforded full opportunity to be heard,' to produce rele-
vant evidence , to present oral argument and to file briefs. Briefs were filed by coun-
sel for the General Counsel and the Charging Party.
Upon consideration of the entire record in this case , including the briefs of the
parties, and upon my observation of the demeanor of each of the witnesses testify-
ing before me, I make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. THE BUSINESS OF THE VARIOUS PARTIES TO CONTRACT , PARTIES IN INTEREST
AND EMPLOYERS INVOLVED
Sun State Electric, Inc., herein called Sun State , Taube Electrical Contractors, Inc.,
herein called Taube , and Frank Schafer , Inc., herein called Schafer , are Florida cor-
porations engaged in the electrical contracting business , each of which has an of-
'The Respondent 's answer also contained an affirmative defense which was stricken at
the hearing on motion of counsel for the General Counsel on the ground of lack of relevancy
2 Local Union No. 349, International Brotherhood of Electrical Workers, AFL-CIO, was
granted permission to intervene at the opening of the healing on the ground that many of
the allegations of the complaint and the number of the contractors involved as either parties
to contract or parties in interest were electrical contractors whose work directly involved
the same type of work performed by members of the IBEW in the Miami - Dade County,
Florida, area
968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
five in the city of Miami, Florida. During the 12 months immediately preceding the
issuance of the complaint herein, a representative period, Sun State, Taube, and
Schafer each purchased from local suppliers goods, and materials valued in excess
of $50,000 which goods and materials were received by the said local suppliers di-
rectly from points located outside the State of Florida.
John M. Callas, an individual doing business as United Electric, herein called
United, is engaged in the electrical contracting business with his principal office and
place of business located in Miami, Florida. For the 12-month period immediately
preceding the complaint herein, a representative period, United purchased from local
suppliers goods and materials valued in excess of $50,000, which goods and mate-
rials were received by said local suppliers directly from points located outside the
State of Florida. --
State Builders, Inc., herein called State Builders, a Florida corporation, is engaged
in the general contracting business with its principal office located in the city of
Miami, Florida. During the 12-month period immediately preceding the issuance of
the complaint herein, a representative period, State Builders purchased from local
suppliers goods and materials valued in excess of $50,000, which goods and mate-
rials were received by the said local suppliers directly from points located outside the
State of Florida.
Center Plumbing & Heating Corporation, herein called Center, a Florida corpora-
tion, with its office and place of business located in the city of Miami, is engaged in
the plumbing and heating business. During the 12-month period immediately pre-
ceding the issuance of the complaint herein, Center purchased and received goods,
supplies, and materials of a value in excess of $50,000 from Florida suppliers, which
goods, supplies, and materials were received by the said Florida suppliers directly
from points located outside the State of Florida.
I find that Sun State, United Electric, Taube, State Builders, Frank Schafer, and
Center are each employers engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
I further find and conclude that it will effectuate the policies of the Act to assert
jurisdiction in this proceeding.'
H. THE LABOR ORGANIZATIONS INVOLVED
Carpenters District Council of Miami, Florida, and Vicinity, AFL-CIO, herein
called the Carpenters or the Charging Party is a labor organization within the mean-
ing of Section 2(5) of the Act.
Local Union No. 349, International Brotherhood of Electrical Workers, AFL-
CIO, herein called IBEW is a labor organization within the meaning of Section
2(5) of the Act.
National Federation of Labor, Inc., herein called NFL is a labor organization
within the meaning of Section 2(5) of the Act.
United Southern Employees Association, Inc., herein called USEA, was a labor
organization within the meaning of Section 2(5) of the Act.4
III. THE UNFAIR LABOR PRACTICES
A. Background and issues
United Southern Employees Association, herein called USEA, was named as a
Respondent along with a group of employers in a complaint dated May 12, 1960,
The complaint also alleged that Biscayne Gardens Electric, Inc., Decker Electric Corpo-
ration Car-Line Electric Corporation, Simanek Construction Company, Goldman Plumbing
Company, Hurst Electric Co., and Central Plumbing & Heating, Inc, are also employers
engaged in commerce within the meaning of Section 2(6) and (7) of the Act. However, at
the hearing, the General Counsel failed to adduce testimony or other evidence to show the
amount of business done by any of these individuals or corporations Accordingly, I have
not referred to them as employers upon whose business I assert jurisdiction herein.
Nevertheless, inasmuch as the volume of business of the employers heretofore found to be
employers within the meaning of the Act are sufficient to assert jurisdiction herein, the
omissions of the General Counsel In this respect are immaterial.
4 The Respondent ' s answer denied this allegation of the complaint . However, although
USEA ostensibly went out of existence in or around the year 1961 , the allegation in the
complaint and the finding herein are in the past rather than the present tense.
NATIONAL FEDERATION OF LABOR, INC. 969
in Cases 12-CA-1371, 12-CB-378, 12-CA-1450, and 12-CB-383.5 That complaint
alleged, inter alia, that the employers named therein were dominating, assisting, and
contributing to the support of USEA in violation of Section 8(a)(2) of the Act.
The complaint further alleged that USEA, by entering into collective-bargaining
agreements with the said employers at times when USEA did not represent a major-
ity of the employees of the said employers, thereby restrained and coerced employ-
ees in violation of Section 8(b)(1)(A) and (2) of the Act.
After several days of hearings in that earlier proceeding, on August 3, 1960, the
proceeding was settled by the parties executing a settlement stipulation providing.
that the Board could enter an Order requiring the dominating employees to cease
and desist from such domination and also requiring USEA, "its officers, agents,
successors and assigns" 6 to (1) cease and desist from permitting employees to par-
ticipate in a labor organization in which employers participate, maintaining agree-
ments with any-employers in the State of Florida, seeking from employers in the-
State of Florida recognition as the bargaining agent for employees, or in any other
manner restraining or coercing employees, (2) rescind any agreements with employ-
ers in the State of Florida, and (3) disestablish itself as a labor organization in the
State of Florida.? The said stipulation was signed by Charles A. Gould, as attorney
for the USEA and William A. Somersett, as national representative. This stipula-
tion also provided that the Board could enter an Order requiring the Respondent
employers, among other things, to cease and desist from participating as members
of and from recognizing, dominating, interfering with or contributing support to
USEA or any successor thereto.
On January 12, 1961, the Board issued its decision and order requiring USEA
and the employers named therein to cease and desist from engaging in the conduct
set forth in the stipulation and to take certain affirmative action. The Order also.
required USEA to disestablish itself as a labor organization in the State of Florida.
The Board's Order was affirmed by the Court of Appeals for the Fifth Circuit and
a Decree enforcing the said Order was entered on April 10, 1961.8
As more fully set forth hereinafter, in 1961 the National Federation of Labor,
Inc., herein referred to as NFL, the Respondent herein, was organized and in late
1963 and early 1964, it filed representation petitions in various proceedings and,.
after elections, was certified as the representative of the employees of the employers
herein. As more fully developed hereunder, the organizers of NFL and the parties
interested therein were among the officers and agents of the supposedly defunct
USEA.
As noted above, on August 10, 1965, the second consolidated amended complaint,
upon which the case herein was tried, was issued by the Regional Director. This
complaint alleges, in substance, that NFL is a successor to USEA; that employers
participate therein as members, that NFL is otherwise employer dominated, that
NFL has been certified as collective-bargaining representative of the employees of
a number of employers hereinafter named, but that at no time subsequent to said
certifications has NFL made a bona fide attempt to represent the employees of said
employers, and that in other instances the NFL has not been certified but has
entered into collective-bargaining agreement with employers, none of the agree-
ments constituting bona fide representation of the employees purportedly covered
by the agreements. The complaint also alleged that the NFL has maintained in force
and effect contracts with employers containing exclusive referral clauses with rights
to reject applicants, giving NFL the right not to select or refer applicants that are
not members of it and other union-security provisions at a time when NFL did not
represent a majority of the employees in the said unit; that despite the court order
against USEA, the NFL has constituted itself a successor to USEA and by its con-
duct has permitted employers to participate in labor organizations thereby violating
the terms of the Board's order; that by this and its other conduct the NFL has
restrained and coerced and is restraining and coercing employees in the exercise of
their rights guaranteed by Section 7 of the Act.
5 The charges in that proceeding were filed by, IBEW, the Intervenor in the current
proceeding.
6 Emphasis supplied.
7 The stipulation also provided that the Order could run against Electrical Employees of
Florida, USEA, Local No. 1, a local established by the said USEA
8All of the foregoing are admitted in the Respondent's answer herein.
970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As noted above, by its answer, NFL has admitted the former charge and the
former Board order and court order affirming the said Board order and enforcing
,the same. The answer also admits that Somersett, Gould, and George B. Brackett
are the officers, organizers, and attorney for the NFL. The answer further admits that
the Respondent, NFL, filed its petition of organization on August 17, 1960, and
that the certificate of incorporation was prepared by Charles A. Gould Jr., as
attorney for NFL. The answer additionally admits other allegations which allege
that NFL has the same address, uses the same furniture, the same telephone number,
and other facilities used by USEA. It also admits the filing of representation pro-
ceedings as alleged in the complaint and the certification . It also admits the entering
into of certain contractual arrangements with various employers. However, the
answer denies that NFL permits employers to participate as members, that it has
not made a bona fide attempt to represent the employees of any of the said employ-
ers for whose employees it was certified or for whose employees it has contracted.
It denies that the unlawful clauses in the contract alleged in the complaint have
ever been put into force and effect or are now in force and effect and, of course,
-denies that it is a successor to USEA. It further denies that any of the acts of NFL
constituted violations of the former court enforced Board Order or of any of the
sections of the Act as alleged.
As heretofore noted, the hearing on the complaint was consolidated with the
hearings in the representation cases to determine whether the certifications hereto-
fore issued to NFL for the employees of the employers named should be revoked.
At the hearing, in addition to the denials made in its answers, the Respondent
denied that the certifications should be revoked in any of the cases named.
Also, in his oral argument and brief, counsel for the General Counsel contends
that in the event the Respondent is found to have violated the Act in the manner
alleged in the complaint herein , the remedy should be as broad as prescribed in the
earlier Board order against the USEA. Additionally, although the General Counsel
admits he is not a party to the representation cases, nevertheless in addition to the
remedy prescribed in the earlier hearing, the certifications of the NFL in the cases
named herein should be revoked as an effective means of completing the remedy.
Thus, the principle issues framed by the pleadings and the contentions of the
parties, are as follows:
1. Is NFL the successor of USEA and a dominated union?
2. If the answer to 1 is in the affirmative , does the mere fact of successorship
constitute coercion of employees in a manner violative of Section 8(b)(1)(A) of
the Act?
3. Did NFL violate Section 8 (b)(2) by entering into agreements with employers
containing exclusive referral clauses?
4. Has NFL failed to represent properly the employees for whom it has been
.certified as bargaining representatives so as to warrant revocation of certification
heretofore issued?
5. In the event the violations alleged in the complaint are found , should the
-same remedy be applied as that prescribed in the Board 's January 12, 1961 order
in the earlier proceedings involving USEA?
B. The facts
1. The organization of NFL
The manner in which and the persons by whom NFL was organized are estab-
lished by the pleadings. As shown heretofore, on August 3, 1960, the representa-
tives of USEA signed a settlement stipulation in which it was agreed that USEA
be disestablished and no longer represent employees in the State of Florida. Just
-2 weeks thereafter, on August 17, 1960, NFL filed its certificate of incorporation
with the secretary of the State of Florida. The certificate was prepared by Charles
A. Gould Jr., the attorney for USEA. One of the three incorporators of NFL was
Charles F. Roche, who , it was stipulated , was at one time a business agent for the
USEA. The incorporators of NFL were referred to Attorney Gould by William A.
Somersett , who was the national representative of USEA from 1959 to 1961, for
,the purpose of having NFL's certificate of incorporation prepared and filed.
Shortly after its incorporation, NFL occupied the same office previously used by
'USEA at 937 First Avenue, Miami, Florida, and used and is still using the office
furniture used by USEA. Moreover, NFL used the same telephone number previ-
NATIONAL FEDERATION OF LABOR, INC. 971
ously used by USEA and the "night" telephone number for NFL was and is the
home telephone number of William A. Somersett, the former USEA national repre-
sentative, now admittedly an organizer for NFL.
The answer of NFL admits that the National Federation of Labor News, a news-
paper published by Somersett, has used and does use the same telephone as NFL
and that this same telephone was also used jointly by USEA and a publication
known as the USEA Labor News, also published by Somersett.
Although the Respondent's answer denies that NFL caused the name of USEA
Labor News to be changed to National Federation of Labor News, NFL vice
president, Jack Young, admitted on cross-examination that Somersett has the right
to use the NFL name in the name of the current publication.
A copy of USEA Labor News, introduced into evidence, shows that USEA
New's address was the same as that currently occupied by NFL and the NFL News,
and that Somersett was the publisher of the USEA Labor News. Moreover, the
proof of an advertisement, also received in evidence, on National Federation of
Labor News stationery announced that "USEA is now Federation News."
Despite Young's denials, it can be concluded, therefore, that National Federation
of Labor News, by reason of a common use of address, common publisher, and
the foregoing announcement that amounts to an admission that only the name had
been changed, is the same publication as USEA Labor News.
The foregoing becomes significant only in regard to the rather unique position
of William A. Somersett, in relation to the USEA and NFL. It must be concluded,
and I find, that when Somersett signed the settlement stipulation in the earlier
proceeding, he was authorized to do so as the chief person in authority in that
,organization. There his position was entitled "National Representative." At the
hearing in the instant proceeding, Vice President Young, denied that Somersett
held any office in the union and furthermore denied that Somersett was in charge
of NFL affairs. According to Young, Somersett merely answered the telephone,
wrote down the name of anyone who wanted a job, and referred people for appoint-
ment. Somersett, according to Young, merely took care of the office and received
no salary, only expenses. The only expenses which Somersett receives, according
to Young, are traveling expenses. After denying that Somersett had anything to do
with union affairs, Young admitted that he did see Somersett at a job that was
being picketed Furthermore, according to Young, Somersett never gives applica-
tions to new applicants and never handles any money from application fees. The
money, according to Young, goes to Vassalett, the treasurer of NFL. With regard
to the NFL News, Young admitted that there were copies of the News around the
union office. But he denied that he knew anything else about the affairs of the
News, or what its subscription price is or the manner in which it is distributed.
However, Young failed to testify as to whether the News pays rent to NFL or what
financial arrangements are made for the use of the News of NFL's premises, tele-
phone, or other facilities. Nor did Young explain how the night telephone of the
NFL is also the home telephone of Somersett. On the whole, Young seemed to
know little about NFL affairs and Somersett's part thereof, despite the fact that
Young is vice president of NFL and, accordingly, its second ranking officer.
An entirely different picture of Somersett's relationship with NFL was given by
Albert M. Speeney, a former business agent of NFL. According to Speeney's testi-
mony, which I credit for reasons hereinafter detailed, in 1962 he first came to
Somersett looking for membership in the NFL. This meeting was at the NFL office.
Speeney asked Somersett if this was a new local. Somersett answered that it was
and that he had formed it just a couple of years before. Then Somersett told
Speeney after Speeney had said he wished to join that he was going to make
Speeney a business agent. Several months after Speeney joined he was indeed made
a business agent. Speeney paid $20 upon joining NFL, $15 of which went to Som-
ersett and $5 went to dues. At that meeting, also, Somersett told Speeney that
NFL was not organized throughout the country but that it was Somersett's own
organization.
Speeney was present with Somersett and Greenberg at the NFL office in Miami
in the summer of 1963 when Somersett was getting Greenberg "signed up." Somer-
sett told Greenberg "you are protected and you don't have to worry about being
picketed by 349. I am out to get 349 myself. If I just get all of the union business
to stay with me we will run them down hill." 9
I Local 349, as heretofore noted, is the Intervenor herein and is a local of the IBEW,
AFL-CIO which has jurisdiction over electrical workers in the Miami area.
972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On March 16, 1964, Speeney attended a meeting of the NFL held at the union
hall. Present were three or four people including Somersett and Young. A discus-
sion took place with regard to the fact that jobs on which NFL employees were
working were being picketed by IBEW. Somersett said "we have to go back to the
old days and start breaking heads. We can't get enough boys to go out and break
heads so what I will have to do is bring in the goons."
Again during April or May of 1964 Speeney was at the NFL offices when Harry
Greenberg, president of Biscayne Electric entered. Somersett was at his desk.
Speeney was at the-edge of the desk facing it and facing Somersett.
Speeney saw Greenberg give Somersett a white envelope with no name on it. He
saw Somersett open it and take out three $20 bills, a $10 bill, and a $5 bill in U.S.
currency . He then saw Somersett count the bills and put them in the draw of his
desk. When Greenberg left, Speeney asked Somersett what the payment was for
and Somersett answered "damn it they have to pay up."
Somersett explained that each employer pays $75 for "protection" and he gets it.
This "protection" evidently is to prevent other unions from picketing jobs on which
NFL members are employed by contractors -who sign agreements with, or get their
help,from, NFL. Speeney then asked Somersett "what do you mean they have to
pay up" and Somersett answered "I ain't in business for my health." Somersett then
stated that he didn't protect any contractor who did not pay him. Somersett men-
tioned several contractors who refused to pay him and whom he would not protect.
Greenberg, called by the Respondent, testified that he remembered the meeting
but that he merely came down to the NFL office to get a letter from the Board for
Greenberg's attorney. Greenberg explained that he did not receive his copy of this
letter.
As heretofore stated, I credit Speeney's testimony. Aside from my observation of
Speeney on the witness stand, I have considered the detail with which he related
the Greenberg incident in the NFL office, the position of the parties, the details as
to how the money was handed over, the exact description of the bills and Somer-
sett's comments after Greenberg left. Although Greenberg denied that he came to,
the NFL office to give Somersett money, the rest of the incident and all of the tes-
timony about Somersett's statements. at that time and at other times was undenied
by any Respondent witness. Somersett, who was present at the first day of the hear-
ing, was not called to testify for the purpose of denying Speeney's very damaging
testimony. Taking into consideration these factors, I do not find that Speeney's,
evident dissatisfaction with Somersett and NFL, which he left some months before
the hearing, constitutes sufficient reason to consider his testimony incredible.
Respondent,had the opportunity to contravene much of Speeney's testimony but
did not choose to do so. Under the circumstances Speeney's undenied testimony
must be considered plausible and, therefore, I do not credit either Greenberg's testi-
mony concerning the money passing incident or the portions of Young's testimony
which would seem to be at odds with Speeney's version of Somersett's position vis-
a-vis the NFL. .
Furthermore, as hereinafter more fully set forth, almost every employer who
had dealings with the NFL either negotiated directly with Somersett on behalf of
NFL in arriving at oral or written agreements or were approached by Somersett to,
organize their employees. Moreover, those who sought out the NFL for establish-
ing a relationship with that organization almost uniformally sought out Somersett
and dealt with him.
2. The relationship between NFL and the various employers
a. Biscayne Gardens Electric, Inc.
Biscayne Gardens is an electrical contracting business, the corporate entity of
Harry Greenberg, its president. Biscayne Gardens was a respondent in the earlier
proceeding and was ordered in that proceeding to cease dominating the USEA or
recognizing that organization or participating as a member in its affairs . Shortly
after NFL was formed, Greenberg began his relationship with NFL. On Septem-
ber 20, 1961, NFL filed a representation petition for Biscayne Gardens' employ-
ees.10 However, probably shortly before that time, Greenberg entered into an oral
agreement with NFL, the -terms of which were approximately the same as the writ-
10 The record does not reveal what the outcome of that petition was.
NATIONAL FEDERATION OF LABOR, INC. 973
ten agreement entered into with NFL dated June 15, 1964 . Until the latter written
agreement was entered into, Greenberg checked off dues of his employees which
he remitted to NFL.
On or about October 3, 1961 , NFL issued a membership card to Greenberg, as
president of Biscayne Gardens. According to Greenberg, this card was used only for
the purpose of showing contractors that he was a union electrical contractor. In
fact, according to Greenberg, that is hpw the card came to be issued. He asked
Somersett for a card that he could show contractors to prove to them that he was
"union" and Somersett issued this card to Greenberg. However, Greenberg main-
tained that he never attended any meetings of NFL nor participated in any way in
its activities. The card itself was not signed by Somersett but by George B. Brack-
ett, who was at that time president of NFL. The card specifically states that it is
an employer's card and that Greenberg is an honorary member.
On January 9, 1964, after this oral argument has been in effect for approxi-
mately 21/2 to 3 years, NFL was certified as the bargaining representative of Bis-
cayne Gardens' employees. On June 15, 1964, after Greenberg met on only one
occasion with NFL representatives, an agreement was executed. According to
Greenberg, this single meeting consisted of the submission by the NFL representa-
tives of a proposed agreement. Greenberg read through the agreement and crossed
out what he did not like. The NFL representatives accepted the contract as modi-
fied by Greenberg without any argument.
An inspection of the agreement in question shows that it is the same contract,
virtually word for word, as other contracts entered into between NFL and employ-
ers during the same period of time. This agreement , unlike earlier agreements,
hereinafter discussed, did not contain any unlawful referral clauses. However,
neither did it contain many of the fringe benefits normally contained in modern
-collective-bargaining agreements. Thus, the contract makes no mention of retire-
ment funds, welfare funds, or any of the other types of funds usually established
for the benefit of employees and normally contributed to by employers. Moreover,
insofar as wages are concerned, there is no specific provision for payment of over-
time or holiday pay. In fact, the contract does not mention holidays at all.
So far as overtime is concerned, the contract contains a single clause "overtime
work by mutual agreement of wages and time between employer and employee."
This of course places the burden of establishing the rate of overtime pay not upon
the shoulders of the Union but leaves the matter entirely to the discretion of the
,employer and the individual employee, who must bargain for the rate overtime pay
without the help of his bargaining representative.
The contract does not require that the employer have a permanent place of busi-
ness, that the employer be licensed, or that the employer not use the tools of the trade
himself. As hereinafter set forth more fully, all of these details are normally found
in contracts in the building and construction trades in the Greater Miami and south-
ern Florida area. Moreover, although the contract contains wage scales for jour-
neymen and helpers, there are no standaids by which it is determined whether an
employee be a journeyman or a helper. This is left to the employer. Thus, for the
most part, the amount of wages paid to any individual employee are more or less
left to the discretion of the employer.
During the entire time that NFL represented Biscayne Gardens' employees, from
the date in 1961 when, according to Greenberg, the first oral arrangement was
entered into, until the date of the hearing, no grievance had ever been processed
by the Union on behalf of any of Greenberg's employees. In addition, according to
Greenberg, there has been no contact between Greenberg and the union representa-
tives except on occasions when Greenberg requested the referral of employees. Inso-
far as Greenberg knew, no representative of the Union ever came to his place of
business or to the place where his employees were working to police the terms of
the agreement or to determine whether Greenberg maintained the minimum bene-
fits called for by the contract. Greenberg, of course, continues to check off union
dues for his employees.
It is difficult to determine from the agreement whether the agreement expired on
its first anniversary, June 15, 1964. The dates are not inserted in the automatic
renewal clause. If, indeed, the contract has terminated, then it is clear that since
the termination of the contract no attempt has been made by the Union to renego-
tiate a new agreement or to obtain better terms tor the employees.
As set forth earlier in this Decision , Greenberg passed certain moneys to Somer-
sett. The purpose of this agreement, according to Speeney's version of the meeting
974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at which the money was passed, was for protection of Greenberg from the claims
of other unions.
In addition to all the foregoing, Greenberg admitted that he paid $10 on Septem-
ber 2, 1964, to the National Federation of Labor News for the purpose of funding
an outing for children to be held by NFL at a park in the Miami area. It should
also be noted that in connection with the written agreement between Biscayne
Gardens and NFL, at the time of the so-ca}led negotiations for the agreement NFL
representatives did not ask him for any clauses which did not appear in the printed
exhibit.
b. State Builders, Inc.
Fred R. Perlman, president and general manager of State Builders, stated that he
first made contact with NFL, sometime before October 20, 1963. At that time Perl-
man had a job in progress and the carpenters on that job who were members of'
Charging Party herein walked off the job because Perlman failed to sign a contract
with the AFL-CIO affiliate. He, therefore, called Somersett and told the latter that
he was interested in a contract with the NFL because he needed men. Somersett
assured Perlman that NFL could assign men to Perlman's firm.
Upon this assurance from Somersett, Perlman signed a contract with the NFL
on October 20, 1963. That contract was in most respects the same as the other con-
tracts drawn up with other contractors and NFL during that period. It lacked the-
same specific benefits as heretofore shown in the case of the contract signed by
Greenberg of Biscayne Gardens. Additionally, the agreement contained no wage
provisions. According to Perlman, there were several negotiation sessions before the
contract was signed.
On November 13, 1963, a supplemental agreement between NFL and State
Builders was executed wherein the wages for carpenters were set forth in detail,
beginning with finish carpenters at $4.10 an hour, then journeymen 1, 2, 3, and 4
ranging from $3.70 an hour down to $2.50 an hour. However this agreement left to,
the employer the sole right to classify all employees. No provision was made for-
painters, who are also members of the work crew of State Builders. In addition, the-
agreement admittedly did not cover overtime pay or hours per work week which.,
the agreement specifically made "subject to further negotiations." Such negotiations,
never occurred.
After the contract was signed, Perlman's work crew was built up with men-
referred to his company by NFL. The particular job on which he was working was
finished in March 1964. Since then, State Builders has subcontracted out all labor
and no longer employs any employees directly. The contract, which expired in
April, 1964, with a month-to-month renewal clause was never renewed or renego-
tiated. During the period of time that the contract was in effect no member or rep-
resentative of NFL policed the contract in any manner, nor were any grievances
processed.
However, several months after the supplemental agreement was signed on
November 13, 1963, the painters union affiliate of AFL-CIO began picketing the
State Builders job and Perlman upon advice of counsel, had his employees petition
for an election. Perlman explained that his attorney told him that if NFL was certi-
fied the AFL-CIO unions could not picket the job and could be enjoined from,
doing so. Perlman stated that this was the reason for the election. NFL won the-
election. However, after the election no contract was ever signed setting forth the
wage rate or any other applicable terms concerning the painters working for State-
Builders. Perlman explained that this was because he did not know how long he
was going to use painters in his work.
c. Taube Electrical Contractors, Inc.
Taube Electric is the corporate creature of Max Taube. This corporation was one
of the association of contractors which originally contracted with USEA. Taube,_
himself, attended meetings of the USEA and he knew Somersett during those times..
Taube first heard of NFL from Somersett in the early part of 1963. At that time
he was presented a contract by Somersett. However, he never made anything but
an oral agreement with NFL. This oral agreement conformed to a contract form
which was received in evidence and is similar to other contracts received in evi-
dence. It omitted the same benefits listed heretofore. Taube admitted. that in nego--
tiating this oral agreement with Somersett, the latter did not demand a pension plan.
or welfare plan, health or welfare fund, vacation fund, vacation time, apprentice-
ship program, prohibition from Taube working with the tools of the trade, demands
NATIONAL FEDERATION OF LABOR, INC. 975
for time and a half for overtime work or double time for holidays. Taube further
admitted that there was no definite provision for the payments to be made to his
employees. Furthermore, Taube admitted that even after certification of NFL,
approximately one year after the oral contract was entered into (January 29, 1964),
there was no specific provision for wages and Taube continued paying his employ-
ees whatever he and they could get together on. Furthermore, no attempt was ever
made by NFL to police even the oral agreement nor were any grievances ever
presented. However, at one time Taube stated that he did have a disagreement with
Somersett over wages that he was paying his employees and in August 1964 he
agreed on a scale with Somersett. However, this part of his testimony would seem
to be in conflict with the former part of his testimony. I find that the former ver-
sion was true and that Taube continued to pay whatever he chose."
d. John M. Callas d/b/a United Eleetiic
Callas had formerly employed IBEW members. A time came when he laid every-
one off because of lack of work. During this period IBEW invited him to come
down and talk over a new contract because his contract had expired. He felt that
the new contract which IBEW had given him was "out of hand" and he was also
dissatisfied with some of the things that went on while the IBEW members were
still employed. At that time someone told him about NFL and he decided to give
the latter union a try. Accordingly, he called Somersett in approximately October
1963. Thereafter, Somersett mailed him an agreement which after a couple of tele-
phone conversations he ultimately signed on March 28, 1964. This was after NFL
was certified on March 3, 1964, as the bargaining representative of Callas employ-
ees. Callas freely admitted that the negotiations consisted of only a couple of tele-
phone calls.
The contract is the usual agreement with the usual clauses omitted regarding
employees welfare. Callas admitted that when the Union was negotiating the con-
tract with him it did not ask him to contribute to any employee pension plan or
welfare fund or any health benefit plan or fund or to contribute to the expense of
any apprenticeship program. Nor was he asked, nor does the contract require, that
he be financially responsible, that he hold a license or maintain a permanent place
of business. Nor did the contract specify that the men who were sent to the job
would be qualified or that Callas would not be working with the tools of the trade
himself, nor did the contract require a stated ratio of apprentices to journeymen on
any particular job. With regard to overtime pay, there is no provision for such nor
with regard to extra pay for hazardous work, or holidays.
Callas further admitted that by an oral agreement with Somersett, which was not
included in the formal agreement, what he would pay his employees would be
strictly between Callas and the employee, that if a man wanted to work on straight
time or on an overtime basis it was up to him. He further admitted that when he
signed the NFL contract he did so because it looked very favorable for him and
that it was to his advantage to sign. While the basic pay scale was not too much
different than that of the IBEW, Callas stated that it wasn't so much a matter of
pay that made him sign the NFL contract; it was a matter of actually being able to
operate more freely and being able to discharge an employee when he wanted,
rather than go through a lot of red tape. Callas admitted that there was nothing in
the contract with NFL beside the wage scale which required him to do anything for
any of the employees. Callas further admitted that the idea of having an election
was given to him by Somersett who told him it would be a good idea.
However, Callas did state that he has refused to check off dues. Since the date of
the contract, although the contract has expired, it has not been renegotiated. There
has been no policing of the contract by NFL. Furthermore, there were no griev-
ances filed or processed during the time that NFL has represented Callas' employ-
ees. It would seem that the outstanding feature of the relationship between Callas
and NFL is that the decision as to what rate of pay Callas pays an employee is up
to him.
u I cannot credit Taube's testimony on cross-examination that he ultimately entered into
a wage scale agreement with NFL inasmuch as this testimony was prodded from Taube
by means of leading questions put to him by Respondent's counsel The testimony that he
bad not made any wage scale arrangement and paid the men whatever he could agree with
them directly was given on direct examination pursuant to nonleading questions.
976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
e. Hurst Electric Co.
Marion P. Hurst is the principal of Hurst Electric Co. Like many of the other
employers involved herein he is an electrical contractor who does business in and
around Miami. The contract between Hurst Electric Co., and NFL was signed by
Hurst's assistant, Snipes, on October 19, 1963. Hurst admitted that he had Snipes
sign with NFL because he was having difficulty with the IBEW and some of the
men who worked for him said that if he signed up with NFL he would not be
picketed any longer. Accordingly, he sent for NFL and reached an agreement
with Somersett. Actually Somersett came down and talked to him and told him
that as long as he paid above scale he did not care. Hurst refused to do anything
about checkoff.
The contract is the usual agreement signed by most of the employers involved.
Hurst admitted that he was paying his journeymen electricians a higher scale than
that which was set forth in the agreement he negotiated with Somersett. Moreover,
the contract was for one year and it was not renegotiated or reopened for any other
reason. Somersett did once call upon him to renew the contract but Hurst told
him that he did not care which union his men came from and he saw no point in
trying to maintain the contract any longer. After that Somersett did not speak to
him again. Hurst has never checked off any dues for his employees on behalf
of NFL.
f. Decker Electric Company, Inc.
C. K. Decker, the president of Decker Electric, was having trouble with the IBEW
local in the Miami area in 1961 and 1962. He stated that after having difficulty
with the IBEW, he decided to go to the NFL because he was looking for a way to
get the IBEW "off his back " He found out about NFL in a conversation he had
with an acquaintance who was in the roofing business. He asked the acquaintance
where he had gotten his men and this individual gave Decker Somersett's telephone
number. He called NFL and spoke to Somersett, telling the latter that he was in
trouble with IBEW and that he needed some men. He told Somersett that he broke
away from IBEW because they wanted him to employ four journeymen to one
apprentice. He did not agree that this was the proper ratio.
Upon Somersett's assurance, Decker signed his first contract with NFL on Janu-
ary 5, 1962. This contract has never been changed or renewed since that date
although later on, on January 28, 1964, NFL was certified as the bargaining repre-
sentative of Decker's employees. The contract, like the other contracts involved in
this proceeding, contained few clauses for the protection of the employees. It had
the usual sliding scale of wage clause. This clause enabled Decker, on his own
admission, to pay the men what he wanted to pay.
So far as he was concerned, the main thing that Decker was interested in was
the ratio of journeymen to apprentices and, this, Decker found more favorable in
the NFL contract. Decker further admitted that when he negotiated the 1962 con-
tract, he was not asked for anything that was not in the agreement. However,
Decker admitted that when he signed the contract in 1962 he was paying his men
generally more than the NFL contract called for. Decker further admitted that the
only time after he signed the contract that he ever saw Somersett was the time that
Somersett wanted to renew the contract. However this renewal never came about.
g. Car-Line Electric Corp.
Car-Line is engaged in the electrical contracting business. Most of its business
is done off shore in such places as Bermuda, Puerto Rico, and other islands of the
West Indies. However, Car-Line also does contract work for the U.S. Navy in the
Key West area of Florida. His most recent work in Key West also involved a Navy
contract. At the time the job started local officials of IBEW wanted him to hire
employees from that union . Clinton D. Greenfield, the president of Car-Line, stated
that he could not see any reason to hire men from the IBEW. The reason he did
not want to was because he was doing very well without a union. However,
although none of his employees were members of the NFL, Greenfield arranged
for NFL to talk to his men some time prior to March 20, 1964. Somersett came
down to Key West to talk to Greenfield's employees. Shortly thereafter, on
March 20, 1964, Car-Line signed an agreement with NFL.
After this first contact was made with Somersett Greenfield had a telephone con-
versation with Somersett after which they signed the contract. Some 4 months later,
- the NFL was certified as bargaining representative of Greenfield's employees.
NATIONAL FEDERATION OF LABOR, INC. 977
Greenfield admits that the precontractual conversation that he had with Somersett
concerned the benefits that Car-Line could derive from such a contract. Greenfield
admitted that the reason he called Somersett was to ask the latter to enter into a
contract with him Greenfield further asserted that the reason he wanted the con-
tract with NFL was to be able to obtain a contract which would give him a steady
source of employees from all trades rather than his having to go to various unions
to get employees for various trades. Since the certification and the contractual
arrangement Greenfield has spoken to Somersett upon many occasions but, with
only one exception, to obtain employees from the Union. The exception came at a
time when Somersett disagreed with Greenfield with regard to Greenfield's treat-
ment of two employees. This matter was settled before it came to the Board.
Greenfield admitted that in negotiating the contract Somersett never asked him
to contribute to an employees' pension fund, health and welfare fund, vacation
fund, or apprenticeship program. Nor did Somersett ever ask proof of Car-Line's
financial responsibility or require that firm to be licensed, maintain a permanent
place of business or require that the employees be qualified or that Greenfield not
work with the tools of the trade himself.
The contract with regard to overtime states that overtime work shall be by
mutual agreement of wages and time between employer and employee. Greenfield
admitted this pretty much permits him to pay his men as he chooses. There was
nothing in the contract in regard to payment of double time for holidays or extra
compensation for hazardous work or that there be a certain ratio of apprentices
and journeymen to be maintained on each job.
Greenfield admitted that there was never any renegotiation of the contract. He
stated the reason for this was that the relationship did not work out and the men
were not as promised by Somersett. Therefore, after 3 or 4 months he stopped
calling on NFL for labor and has not called NFL for labor since. Greenfield fur-
ther admitted that he paid his employees according to Navy scale and not accord-
ing to the scale of the contract. The Navy scale was ultimately made part of the
contract.
In his testimony Greenfield further admitted that he at no time required Somer-
sett to prove that his employees were represented by NFL. Nor did Somersett ever
present him with any pioof of representation. This was so even at the time he
signed the contract on March 20, 1964.
h. Frank Schafer, Inc.
Frank C. Schafer, president of Frank Schafer, Inc., admitted that he had for-
merly been a contracting employer with USEA. However, he discontinued this con-
tract upon court order in the earlier case. Sometime in the fall of 1951 he was
approached by Brackett, then president of NFL, who said that he wanted to speak
to Schafer's employees. According to Schafer he permitted Brackett to speak to
his employees in the back of his shop. After Brackett spoke to the employees he
came back in and spoke to Schafer and Schafer signed a contract without deter-
mining whether the employees desired to be represented by NFL or whether NFL
represented a majority of his employees.
There were no negotiations for the contract as such. The contract gave the
employees no benefits that they had not been given by Schafer before the contract.
As a matter of fact, Schafer was giving the men paid holidays and vacation time
and rates of pay which the contract did not call for. Schafer then admitted the
reason why he was eager to sign the contract was so that he could tell prime con-
tractors, for whom he was a subcontractor, that he had a union shop.
Schafer had no further meetings or contacts with NFL representatives until after
NFL was certified as bargaining representative of his employees on April 10, 1964.
This meeting, held in Schafer's attorney's office was between Somersett the attorney
for NFL and Schafer and his attorney. It took place in August of 1964. No new
contract was accepted at that meeting and the meeting ended with NFL promising
to go back and rewrite the contract and resubmit it for further negotiations. How-
ever, NFL never submitted a revised contract. After that date Schafer never spoke
to anyone from NFL except on one occasion when he called Somersett and asked
him to send in an electrician. Somersett never did send the electrician. At the time
that Schafer spoke to Somersett, Somersett did not say anything about submitting
a revised contract.
257-551-67-vol. 160-63
978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
During the period between the 1961 date when the only contract was signed,
and the certification , Somersett never offered to renegotiate the wages or provide
employees with additional benefits or even for a checkoff . Schafer does not know
whether his employees paid dues to NFL. As a matter of fact, between 1961 and
1964 Schafer took away some of the benefits from his employees such as paid
vacations and holidays without any protest from Somersett.
So far as the election of 1964 was concerned , Schafer told his employees about
the election by posting a notice on the bulletin board . In the intervening years he
doesn ' t know whether his employees even knew he had a contract with NFL.
i. Center Plumbing & Heating Corp.
Howard Massey, general manager of Center, testified without contradiction that
during 1963 the job on which he had subcontracted as the plumbing subcontractor
was being picketed by Local 519 of the AFL-CIO Plumbers Union. He was told
by his prime contractor that because of this picketing the job was being tied up and
that if the labor situation was not resolved, his contract would be terminated.
Local 519 submitted a contract at that time. However, Massey did not sign with
Local 519. Instead, on March 28, 1965, he signed an agreement with NFL.
Schafer met with Somersett a couple of times before the contract was signed.
There was no employee committee present during the negotiations. He admits that
he signed with Somersett because he had trouble on the job that he was on and he
had to somehow stop the trouble. Leading up to the contract, Somersett gave
Massey a contract to read and suggested that he speak to a meeting of Massey's
men, which he did. Somersett told Massey that NFL was a recognized union in the
State of Florida and that Massey would not have any labor problems if he signed
with NFL. Somersett also told him that he, Massey, would be boss if he signed
up with NFL.
During the negotiations for the contract Somersett did not ask whether the com-
pany was financially responsible or whether Massey was licensed or maintained a
permanent place of business. Nor did Somersett state that the employees whom he
sent would be qualified or that Massey would be prevented from working with
tools of the trade. Nor did Somersett ask that Massey pay time and a half for
overtime or double time for holidays, or contribute to employee pension fund or
health and welfare plan. Neither did Somersett ask that Massey contribute to the
cost of an apprenticeship program or that he maintain a stated ratio of apprentices
to journeymen or that extra pay be given for hazardous work.
Since signing the contract, NFL has not processed any grievances on behalf of
any employees. Massey admitted that he decides what rate of pay shall apply to
any particular employee. He further admitted that when Somersett organized his
employees it was in his presence and the men executed union authorization cards in
his presence as well as in the presence of Somersett.
j. Sun State Electric, Inc.
Millard S. Stephens, general manager of Sun State, admitted that until sometime
in early 1964 he had operated a nonunion shop and that from time to time he had
been picketed by IBEW. Around the first part of 1964 some of his men told him
about NFL. He told them that he did not care if they joined NFL but this was up
to them. Sometime later NFL representatives came to his office. The representatives
were Somersett and Brackett. He had one meeting with NFL prior to signing an
agreement on March 13, 1964. At that meeting he did not tell Somersett what
benefits he was providing his people. However, he did not enter into the contract
until he determined that his employees unanimously wanted to be represented by
NFL union. NFL was certified on February 17, 1964, approximately a month
before the contract was executed.
During contract negotiations NFL did not ask for any provisions not in the
agreement, which is in the usual form signed by all of the other contractors. Nor
did NFL ask for any health or welfare fund or vacation fund or extra pay for
hazardous duties or any of the usual benefits normally required in construction
trade contracts in southern Florida. Nor was there a request for an increase of
wages for overtime.
Since the execution of the contract neither Somersett nor any other representative
of NFL have ever contacted him although he is still deducting dues for his
employee members. Nor since that date has anyone from NFL ever contacted him
NATIONAL FEDERATION OF LABOR, INC. 979
to advise him that the contract had been changed or modified in any manner. NFL
has never requested renegotiation of the contract in any form . The only time
Stephens talked to Somersett since the date of the contract was to request referral
of employees.
In addition to sending the dues checkoff to NFL, at one time Stephens wrote
a $50 check to sponsor a softball team for the NFL. At another time he donated
$10 for flowers for a deceased member. Both of these donations went to the
National Federation of Labor News.
k. Central Plumbing & Heating, Inc.
It was stipulated at the hearing that Woodrow Smith of Central, were he to be
called to testify, would have testified that he signed an agreement with NFL on or
about February 12, 1965. He signed it in his then capacity as president of Central;
that prior to such contract or execution thereof Smith had only one meeting with
the representatives of NFL and that NFL did not ask for any additional clauses
other than those set forth in the said agreement. An examination of the contract
in question discloses that it is the usual one in the usual form signed by most of
the other employers and omits benefits to employees normally granted in the south-
ern Florida area.
3. Comparison with other unions
Louie S. Coggins, manager of the South Florida Chapter of the National Elec-
trical Contractors Association, testified that for the past 3 years he has been the
chief negotiator for the association members in their connections with the various
labor unions in southern Florida. Prior to his employment with this Association,
Coggins had been an electrical contractor in the area for 15 years. He stated that
he is fully familiar with the contracts made with, and the demands made by,
labor unions in the State of Florida. At the hearing, I permitted Co.-gins to testify
as an expert. I hereby reaffirm that ruling.
William G. Bobb, Jr., testified that he is the labor relations director for the
Florida East Coast Chapter of the Associated General Contractors of America.
Bobb is also vice president of Consultants For Management, Inc., a separate labor
management consultant firm. He has been with Associated General Contractors
for 17 years and has been engaged in the business of labor management consultant
separately for approximately 21/2 years. Thus he has been negotiating labor con-
tracts in southern Florida in the construction industry for a period of 17 years.
At the hearing I ruled that he was a qualified expert. I hereby reaffirm that ruling.
Both Coggins and Bobb testified that labor agreements in the construction indus-
try in southern Florida, which includes the Miami-Dade County area in which NFL
operates, almost uniformly contain many provisions which benefit employees which
are not contained in the agreements heretofore reviewed between NFL and the
employers with whom it has agreements. These provisions, almost completely
absent in the NFL agreements , are prohibitions against the employer working with
the tools of the trade, arbitration clauses which go through grievance procedures
and, finally, arbitration stages, transportation and reporting pay clauses, overtime
pay, holiday and hazardous work pay provisions, payment to trust funds for pension
plans, vacation plans, health and welfare plans. Also, most contracts require a
showing of employer financial responsibility and permanent place of business and
also required that employees be qualified and correct errors on their own time.
Also, in connection with holiday pay, contracts normally set forth the holidays to
be observed. Most contracts also require employers to furnish tools. In most trades
the contracts set forth the manner in which stewards are to be chosen and their
duties, also the ratio of stewards and foremen, working and nonworking, to journey-
men. Also specified is the ratio of journeymen to apprentices.
As noted above, few, if any, of these clauses are found in the agreements
between - NFL and the contracting employers. Both Bobb and Coggins stated
unequivocally that the NFL agreements shown to them were more favorable to
employers than any of those which they are able to negotiate on behalf of any
of the employees whom they represent.
With regard to grievances, Coggins stated approximately two to three grievances
per year per employer are the normal number filed by unions on behalf of
employees. By comparison, not a single employer who testified could remember a
single instance of any grievance being filed by NFL. In fact, the only grievance
discussed in the record in the instant case was a complaint of Speeney to Somersett
as to the former's wage rate while working for an NFL contracting employer.
980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Speeney testified, without contradiction, that when he complained to Somersett about
what Speeney felt was an underpayment, Somersett told him that he should have
been glad he was working.
4. The unlawful referral clauses
Sun State and United Electric on March 13 and 28, 1964, respectively, executed
written agreements with NFL. These agreements contained the following language:
Article III.
Referral Procedure
In the interest of maintaining an efficient system of production in the indus-
try, providing for an orderly procedure of referral of applicants for employ-
ment, preserving the legitimate interests of the membership and their employ-
ment status within the area, the parties hereto agree to the following system
of referral of applicants for employment:
1. The union shall be the sole and exclusive source of referrals of appli-
cants for employment, except as stated in Article II, Section 3.12
2. The employer shall have the right to reject any applicant for employment
that he feels is incapable of performing the duties assigned to such applicant.
3. The union shall not select and refer applicants for employment that are
not members of the Union.
4. The Union shall maintain a register of applicants for employment on the
basis of their particular trade.
Taube and NFL agreed to abide by the terms of an unsigned NFL contract form.
The unsigned document contains the same clauses as set forth above. Although
Taube gave several dates for the entering into of this so-called oral agreement, at
one part of his testimony he stated that the agreement was made "the early part
of 1964." This date is supported by examination of the physical characteristics and
contents of the various NFL contracts submitted in evidence. This contract con-
forms in form to other contracts made by NFL about the same period of time
whereas contracts executed at other times were slightly different. I find and con-
clude therefore that the early part of 1964 is the date of the entering into of this
agreement.
All of these agreements are still legally in effect. The agreement contained auto-
matic renewal clauses barring requests for amendments or renegotiation by the
parties thereto . Since in no case did NFL or the contractors renegotiate the agree-
ments in question , it must be concluded that the automatic renewal clauses caused
the contracts to renew themselves at their particular anniversary dates and that they
are still effective. Although in its answer the Respondent denied that the clauses
are in force and effect, no testimony or evidence of any kind was given by the
Respondent at the hearing to support this denial.
5. Other activities of NFL
Vice President Young of NFL admitted that in financing an NFL softball team,
three employers contributed $50 apiece to NFL. Stephens of Sun State Electric
admitted payment of $50 for this purpose and also the payment of $10 for flowers
sent to a deceased member. Greenberg, of Biscayne Gardens, a most reluctant wit-
ness, admitted giving the NFL Labor News $10 for a "union sponsored" outing for
children. Additionally, Massey of Center Plumbing testified, without contradiction,
that Somersett, on more than one occasion, while Center Plumbing was being
picketed at a "Star Lake" job, asked Massey for $300, purportedly for a trip to
Washington to get rid of the pickets. Massey refused to make these payments.
Finally, there is Speeney's credited testimony that he was present at the NFL office
when Greenberg of Biscayne Gardens handed Somersett $75, with reference to
which Somersett later told Speeney, that he, Somersett, was not in business for his
health and that the employers paid a fee and Somersett "protects them" from picket-
ing by other unions.
Both NFL and the NFL Labor News caused to be printed and distributed hand-
bills, letters and bumper stickers in which the theme was that the "right to work"
law, Section 14(b) of the Act, should not be repealed because "compulsory union-
xa ArticIe It, section 3 referred to above states, in part, that the employer shall not
deprive any employee of his rights under the State Right to Work Laws in the State of
Florida
NATIONAL FEDERATION OF LABOR, INC. 981
ism is Communism and Nazism." Bobb, one of the experts called by the General
Counsel, testified that the recent campaign to repeal Section 14(b) of the Act was
almost universally supported by labor organizations and equally universally opposed
by management and employer groups. This would indicate that to some extent, at
the least, NFL's attitude toward this question is atypical of labor organizations
generally.13
Also atypical is the position of NFL with regard to employer contributions to
health and welfare and other employee benefit funds normally required by con-
struction industry collective-bargaining agreements in the southern Florida area.
NFL's agreements, admitted in evidence, not only uniformly specifically prohibit
such contributions, but also, NFL distributed literature condemning such practices
and characterizing them as "shakedowns" and also asked employers in connection
therewith to call "and consult with one of the [NFL] representatives in regard to
unionism on the tine Arneiican plan."
C. Analysis and concluding findings
Counsel for the General Counsel contends that. (a) NFL is the successor of
USEA; (b) By its activities set forth earlier in this discussion, NFL, as successor
to USEA disobeyed the Board's order as enfoiced in the earlier proceeding against
USEA and thereby obstructed the Board's processes and its vindication of employ-
ees' statutory rights and thereby restrained and coerced employees in violation of
Section 8(b)(1)(A) of the Act; (c) By its execution of the contracts containing
preferential hiring clauses, NFL restrained and coerced employees in violation of
Section 8(b)(1)(A) and (2) of the Act; and (d) In order to adequately remedy
these violations an order should be issued as broad and as far-reaching as that
enforced by the Court of Appeals in the earlier proceeding against USEA. More-
over, counsel for the General Counsel contends that to fully effectuate such an
order, the certifications heretofore issued by the Board in the consolidated repre-
sentation cases herein should be revoked.
NFL, on the other hand, contends that (a) The testimony and other evidence
introduced by counsel for the General Counsel is insufficient to support the allega-
tion that NFL is the successor of USEA; (b) That in order to make out a case,
counsel for the General Counsel has to show that NFL is per se operating unlaw-
fully and not as a successor to USEA; and (c) If the General Counsel had wished
to make out a case of successorship, the proper procedure should have been to
initiate contempt proceedings in the United States Circuit Court of Appeals which
enforced the order against USEA.
If this proceeding is in the wrong forum, as contended by the Respondent, then
there is no necessity to discuss the merits of the other contentions of the parties.
Therefore, I will consider this contention of the Respondent first.
The short answer to the Respondent's contention that the General Counsel is in
the wrong forum, is that the courts have held the General Counsel may issue an
unfair labor practice complaint alleging violations of the Act occurring subsequent
to issuance of a Court of Appeals Decree enforcing a prior order against the same
respondent. The Board is not required to resort to contempt proceedings even
though the respondent's conduct following the enforcement decree may be such that
contempt proceedings would be appropriate.14 Thus, if USEA had violated the Act
subsequent to the enforcement decree of April 10, 1961, it would have been amena-
ble to the Board's jurisdiction and authority even though the conduct which could
have formed the basis of a new complaint against USEA may have also been viola-
tive of the enforcement decree. I cannot perceive of, nor has the Respondent
offered, any reason why the same rule should not be applied to NFL if NFL is the
successor or alter ego of USEA.
Whether NFL is a successor to which the foregoing may be applied depends
upon whether the record establishes a lack of "cleavage or clear line of fracture"
between USEA and NFL.15
Also to be considered is whether the record further establishes that NFL is an
employer-dominated organization. The Board has considered continued domination
11 I do not make this observation with a view to criticize this stand of NFL Nor is my
observation to be regarded as my having espoused either cause in this national debate.
14 N L R B. v John S Swift Company , Inc., 302 F 2d 342 (C A. 7) , Thompson Products,
Ine v N L R B , 133 F 2d 037 ((' A. 6)
15 Farrington Manufacturinq Company , 93 NLRB 1416, 1417.
982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or assistance to a new labor organization as evidence of successorship to an illegally
dominated or assisted predecessor.16
With regard to whether there was a "clear line of fracture" between USEA and
NFL, very apparent is the fact that the certificate of incorporation of NFL was
filed and approved on August 17, 1960, just 2 weeks after Somersett and Gould
signed the settlement stipulation in the earlier case against USEA on August 3,
1960. This was almost a full year before the Board's order issued in the USEA
case. Thus, it was approximately 1 year from the date of the organization of
NFL until USEA ultimately disestablished itself pursuant to the court enforced
Board order.
The Board and the courts have held that where very little time has elapsed
between the disestablishment and dissolution of a dominated union and the crea-
tion and emergence of another labor organization, that the active participation in
the latter organization by the same individuals who were the leaders in the domi-
nated union taints the new organization.17 In the case at bar, as heretofore set
forth, Somersett was the dominant force behind USEA and signed the settlement
stipulation. The record also shows that it was he who signed the notice pursuant to
the Board's enforced order. Gould had been the attorney for the USEA. The rec-
ord establishes that Gould drew up the certificate for individuals sent to him by
Somersett and thereby formed NFL. And, of course, the record clearly shows that
Somersett was active in NFL affairs.
Thus there was an inadequate, in fact almost nonexistent, hiatus between the
demise of USEA and the birth of NFL.18 Somersett's association with NFL came
to the surface as early as October 1961, only a few months after USEA had
reportedly been disestablished. Thus, in October 1961 he issued an NFL member-
ship card to Harry Greenberg, the president of Biscayne Gardens. Moreover, when
Schafer of Schafer Electric called NFL's office for a referral of employees in about
December 1961, it was Somersett to whom he spoke. Without repeating them here,
and thus burdening this Decision, heretofore set forth are numerous incidents in
which Somersett was shown to be the predominant figure of NFL, and I so find.
The Board and the courts have long held that identical leadership of an old dis-
established labor organization and a newly established labor organization evidences
successorship.19
But the continuity between USEA and NFL is not only demonstrated by the lack of
hiatus between the two organizations or the domination of both organizations by
Somersett. Also to be considered are the admitted facts that immediately upon its
incorporation NFL occupied the same office as that formerly used by USEA, 937
Northeast First Avenue, Miami, Florida. Also used by NFL were USEA's office
furniture and telephone number. And of course there is the added factor that NFL's
night telephone was the home telephone of Somersett.
Although Young, NFL vice president, testified that the NFL Labor News was
not an official organ of the NFL and was, rather, a Somersett publication, it can-
not be denied that, likewise, the USEA Labor News was the publication of Somer-
sett. That the NFL News is a continuation of the USEA News under a different
name is established by the advertisement sent to the Home Milk People to the
effect that USEA News was now NFL News. As in both organizations, NFL and
USEA, Somersett was the dominant figure, so in the news publication of both of
those organizations, Somersett was the dominant figure. Indeed, the philosophy of
the pamphlets and letters distributed by NFL were equally reflected in the Somer-
sett publications. Clearly, there must have been some connection between the
USEA and the USEA Labor News and the NFL and the NFL Labor News. They
occupied the same office as the respective labor organizations, the publications had
the same address, the same telephone numbers, and reflected the same policies.
13 Farrington Mfg Co , supra, Majestic Metal Specialties, Inc , 92 NLRB 1854
11 Majestic Specialties, Inc , supra
is See N.L R B. v. Link-Belt Company , 311 U.S. 584; John A. Roehling's Sons Company
v. N L R.B , 120 F.2d 289 (C A. 3), enfg. as modified 17 NLRB 482, N L.R B. v. Standard
Oil of NJ, 138 F 2d 885, 888 (CA. 2), enfg 43 NLRB 12 where it was stated that when
the sequence is not broken by a substantial period, marked at the outset by an outright
repudiation of what has gone before, continued domination of the new union may be
inferred "
N L R B. v. Southern Association of Bell Telephone Employees, 319 U.S. 50, N L R B.
v Landis Tool Company, 145 F 2d 152 (C.A. 3) , N.L R B. v. Baltimore Transit Company,
140 F 2d 51 (C.A. 4).
NATIONAL FEDERATION OF LABOR, INC. 983
The manner in which NFL Labor News was permitted to use the office, the tele-
phone number, and the equipment of NFL is not fully explained in his testimony by
Vice President Young. He did not state, for instance, that NFL News paid rent,
reimbursed NFL for use of the telephone or any of the other NFL facilities. Under
these circumstances it would be naive, indeed, to believe that the NFL News is not
an organ of the NFL which in turn is the organization dominated by Somersett.
Since the same condition existed in USEA, and it is established by the record that
NFL News is a continuation of USEA Labor News, it must be concluded that this
is further evidence that NFL and USEA are one and the same organization.
In sum, then, the leaders of both USEA and NFL were the same persons, namely
Somersett and Gould. Additionally, there was not only an inadequate hiatus
between the disestablishment of USEA and the emergence of NFL as a labor orga-
nization, there was no hiatus at all. NFL was created before USEA was ultimately
disestablished. Then, NFL having appeared on the scene it is clear that they oper-
ated at the "same old stand" as USEA using the same office, furniture, and the
same telephone number. Then there is the fact that NFL is dominated by Somer-
sett even though his title is merely that of organizer. Finally, came the emergence
of the NFL News which I have heretofore found to be the same organ as USEA
Labor News, both of which were Somersett enterprises whose activities were com-
pletely interwoven with those of the two respective labor organizations.
Thus, the circumstances under which NFL was organized and USEA was dises-
tablished result in the inescapable conclusion that the fact that Somersett was not
an incorporator of NFL is a fact which can be dispensed with as lacking any basis
for consideration. He did designate the three individuals who were used for the
function of incorporating NFL. That this action was taken at exactly the same
time that Somersett and Gould were executing the settlement stipulation in the
USEA case indicates that there was no real compliance with the Board's order. To
quote the General Counsel, "they were, in fact, complying by day and defying by
night." Their elaborate precautions suggest consciousness of the illegality of their
actions and their careful planning to clothe NFL with an appearance of independ-
ence, in itself, constitutes evidence of successorship.20
By reason of the foregoing, I conclude and find that the record establishes the
lack of a clear line of fracture between USEA and NFL and this alone would be
sufficient to warrant a finding that NFL is, indeed, a successor to USEA.
I turn now to the contention of the General Counsel that the evidence supports
a finding that NFL is an employer-dominated union which, he argues, constitutes
additional evidence that NFL is a successor of USEA. This contention is based, in
turn, upon decisions of the Board finding a predecessor labor organization to have
been dominated and then considering the domination of a second union to be a fac-
tor in finding that the second union was a successor organization.21 However, USEA
was not ordered disestablished upon a Board finding but upon an order pursuant to
stipulation. Accordingly, there has been no prior determination that USEA was
employer dominated despite the Board's order in the USEA case. However, there
are certain similarities presented by the record in the case at bar from which it may
be concluded that both USEA and NFL were and are employer dominated.
Thus, as heretofore cited, Max Taube of Taube Electric, admitted his former
association with USEA as did Frank Schafer of Frank Schafer, Inc. who admitted,
among other things, that he had been an officer and member of the board of direc-
tors of USEA. These factors together with the Board Order in the USEA case
directing, among other things, that Taube and Schafer cease and desist from par-
ticipating as members, officers, and directors of USEA, lead me to conclude that
USEA was employer dominated. As heretofore stated, counsel for the General
Counsel maintains that the record in the instant case is replete with factors con-
stituting indicia that NFL is employer dominated. He points to a number of factors
which I now consider.
Counsel for General Counsel selects as the first indicia of domination the absence
of bona fide collective-bargaining negotiations and argues that a contract recogniz-
ing only existing working conditions is meaningless and bespeaks a docility or iner-
20 See Montgomery Ward d Company, Incorporated, 4 NLRB 1151 ; J. Greenebaum Tan-
ning Co., 11 NLRB 300.
21 Farrington Manufacturing Company, 93 NLRB 1416, 1417-18, Majestic Metal Special-
ties, Inc. , 92 NLRB 1854, 1857-58.
984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tia not to be expected in a labor organization created for the purpose of genuine
collective bargaining 22
Both William G. Bobb and Louis Coggins, the expert witnesses, testified without
a contradiction that there are numerous clauses included in most labor contracts in
the construction field which contain direct benefits to employees which were uni-
formly omitted from the contracts shown to these two witnesses, which contracts
were typical of those entered into between NFL and the contracting employers.
Without repeating all of these clauses or demands normally made by labor organi-
zations in the construction industry, among the omissions in the agreements intro-
duced in evidence in this proceeding are geographical and work jurisdiction clauses,
fringe benefits such as health and welfare programs, pension funds, apprenticeship
training programs, premium pay for overtime, hazardous and holiday work, defini-
tion of overtime on a daily basis, clauses defining the rights and ratios of stewards
to others on the job. rights and ratios of foremen to other employees on the job,
rights and ratios of journeymen to apprentices on the job, grievance clauses, pro-
hibitions against employers using the tools of the trade and even protection against
discharge for honoring a picket line. Also omitted were requirements that the
employer be financially responsible and have a permanent place of business Also nor-
mally included is a grievance procedure, including a joint labor management
grievance committee and others. Both of these experts testified without equivocation
that the NFL contracts which they examined are considerably more favorable to
the employer then contracts which they themselves had negotiated with various
construction trade labor organizations.
As a matter of fact, article IV section 17, of the contracts introduced into evi-
dence, which are typical of NFL contracts, specifies that "the employer shall not
be required to contribute to any union funds, apprenticeship programs or any other
so called benefit plan on behalf of the employees." It is evident that NFL used this
as a selling point to employers.
In addition to the foregoing, as heretofore related, Callas of United Electric
admitted that there was nothing in his contract with NFL beside the wage scale
which required him to do anything for his employees. Moreover Callas admitted
that the way the wage scale provisions of the contract were administered he set the
wage scales himself freely and without any consultation with NFL representatives.
Callas was not the only one who admitted these conditions. Furthermore, not only
were the provisions heretofore enumerated not included in the contracts, but the
employers consistently testified, without exception, that NFL did not make any
negotiation demands for any of these beneficial clauses which are normally con-
tained in labor agreements in southern Florida in the construction industry.
Accordingly, in line with the cases heretofore cited, I conclude that the omission
from the contracts of these clauses and the manner in which they are adminis-
tered indicates a lack of bona fide representation of the employees in the negotia-
tion of contracts with employers. In coming to this conclusion, I have fully con-
sidered the fact that NFL is an independent union and not as powerful as the
established trade unions in the Miami area and elsewhere. In considering this
matter I fully realize that an independent union lacking the economic and numeri-
cal strength of the established international unions would have difficulty in obtaining
for its members the same degree of protection and benefit that the more powerful
international trade unions are able to obtain. However, the evidence reveals not a
lack of inability to obtain benefits for employees but rather a lack of any real
effort to obtain these benefits.
I have mentioned, in discussing the foregoing, NFL's apparent indifference to
wage rates , policing of contracts and contract negotiations generally. As argued by
the General Counsel, in the history of collective bargaining one of the great tradi-
tional demands of labor generally has been that for higher wages. Whether this is
beneficial to the economic welfare of the Nation is not here in issue. What is in
issue , is whether NFL made a bona fide attempt to represent its employees. I note,
that in connection with bargaining for wages NFL was completely lackadaisical.
In making this observation, I consider the testimony of Greenfield, the president
22 Pequanoc Rubber Coinpanit, 40 NLRB 541, 554 Northwestern Mutual Fire Association,
46 NLRB 825, 845, John Davis Brock, 42 NLRB 457, 463; Elvine Knitting Mills, Inc, 43
NLRB 695, 705-706. For other cases holding that an indication of domination is the
absence of bona fide collective-bargaining negotiations see John A. Roebling's Sons Com-
pany v N L R.B , 120 F 2d 289 (C A 3), and N I, R B. v Faultless Caster Corp , 135 F 2d
559 (C A 7).
NATIONAL FEDERATION OF LABOR, INC. 985
of Car-Line, who in negotiating for a contract with Somersett informed the latter
that the minimum wage rates to be paid employees under Car-Line's contract with
the U S. Navy were greater than those requested by Somersett for the employees.
Indeed, I received the impression from Greenfield's testimony that it was Greenfield
who ultimately induced Somersett to accept the higher wage rate which the Navy
required, rather than the wage rate which Somersett, himself, desired to be made a
part of the agreement. As pointed out by the General Counsel this was a "curious
juxtaposition of bargaining positions." It is, indeed, unusual for the employer rather
than the union representative to hold out for higher wages. Moreover, Schafer of
Schafer Electric admitted that he paid his employees more than the wages required
by his contract and Decker of Decker Electric testified in a like manner. Addition-
ally, almost all of the employers admitted that under the wage scale clause of the
contract they were able to determine the classification of the employees as journey-
men or helpers as they saw fit without consultation with NFL, thereby exercising
complete freedom in the amount which they paid their employees In fact, most of
the employers admitted that the pay which any of their employee-members of NFL'
received were the result of private negotiation between the employer and his
employees . This was especially true of Decker and of Massey of Center Plumbing.
In connection with the foregoing, I note two other peculiar circumstances which
indicate a lack of bona fide representation on the part of NFL. The first of these
was NFL's complete indifference to its responsibility as the employees' representa-
tive Not a single grievance was filed on behalf of any employee with any of the
contractors with whom NFL had agreements during the entire existence of NFL.
In fact, as set out in more detail above, the only record of any grievance at all was
the one which Speeney carried to Somersett where he was told by the latter that he
should be glad that he had a job. But in addition to this there was also the manner
in which the contracts themselves were negotiated. Again, almost consistently, the
employers testified that there was almost no negotiation between NFL representa-
tives and the employers before the submitted contracts were entered into. Thus a
number of the employers testified that the NFL contracts were signed after only
one or two meetings with NFL representatives. Other employers, as noted above,
testified that they were able to delete clauses from agreements without any protest
on the part of NFL.
Indeed , it can be said that the bargaining with the employers generally on the
part of NFL can be described only as "hasty." In fact, Bobb and Coggins testified,
in comparing the length of these negotiations to those in which they normally are
involved. that they considered themselves lucky to be able to reach an agreement
after only a half-dozen bargaining sessions.
Running through all of the relationships between NFL and the employers is a
pattern of NFL contracts executed without proof of majority representation. Thus,
Schafer, Perlman of the State Builders, Greenfield of Car-Line, and Greenberg of
Biscayne Garden all admitted that their contracts were made prior to the dates
that NFL was certified. Schafer did not attempt to verify NFL's claim that it
represented his employees. Nor did NFL present proof of majority representation
to Greenfield or Perlman. The Board and the courts have long held that execution
of a contract without proof of majority status constitutes evidence of domination.23
Another phase of NFL's relationship with its various contracting employers
should be considered. It is clear that NFL was engaged in a bitter struggle with
IBEW. Rivalry between the two competing unions does not necessarily denote
employer domination of the union with whom the employer eventually contracts.
However, given circumstances similar to the case at bar, the courts have held that
employer opposition to another union is evidence of domination of the union with
which the employer contracts.24
That most of the employers involved herein shared NFL's antipathy to the other
labor organizations is apparent. Thus, Massey of Center Plumbing and Heating had
been picketed as nonunion by the Carpenters on one job. As a result of this
picketing , the general contractor of that job threatened Center with dismissal from
the job unless it resolved its labor difficulties. Somersett met Massey at the jobsite
and informed the latter that if Center would sign up with NFL, it would have no
22 A' L R B. v Blossom Products Corporation, 121 F 2d 260 (C.A. 3), enfg as modified
20 NLRB 335, Dixie Bedding Manufaetuiing Company v N L R B , 268 F.2d 901 (C.A. 5),
enfg 121 NLRB 189 ; Bud's Cooling Corporation , 138 NLRB 596, 608
24 Berkshire Knitting Mills v N L.R B., 139 F.2d 134, 140 (C A. 3) , N L R B. v. Con-
densei Corporation of America, 128 F.2d 67, 74 (C A. 3)
986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
more labor problems and Massey would be the "boss." Thereafter, Massey signed
with NFL and when the AFL-CIO picketing continued , NFL engaged in "counter-
picketing." In similar fashion Hurst Electric had been picketed by the IBEW and
signed an agreement with NFL to prevent IBEW's picketing his job at the Hialeah
Hospital.
Decker of Decker Electric admitted that 'he had been in a similar situation.
Although he had not been picketed he had had a dispute with IBEW over the
latter's insistence on a ratio of four journeymen to one apprentice . Decker was
told about NFL by another employer and made contact with Somersett. Decker
thereafter signed with NFL and solved his problem. He was thereafter enabled to
employ as many apprentices as he desired. Callas of United Electric had also been
unhappy in his relationship with IBEW and thereafter signed up with NFL. The
same is true of Perlman of State Builders whose employees had quit after Perlman
had refused to sign with the Carpenters . Stephens of Sun State was also picketed
prior to the execution of his agreement with NFL.
Earlier in this report mention was made of NFL's atypical support of Sec-
tion 14(b) of the Act. General Counsel contends, as testified by Bobb, that labor
organizations in the main favored repeal of 14 ( b), while management groups gen-
erally opposed repeal. He argues that NFL's advocacy of a controversial point of
view favored _by employers and opposed by labor organizations is evidence of
employer control. While the General Counsel, of course, expresses no opinion on
the wisdom of NFL's campaign or on the campaign of other unions to repeal
Section 14(b) of the Act, it is clear that the atypical behavior may be the basis for
an inference of employer control 25
Perhaps one of the strongest indications of employer domination of a labor
organization is financial aid by an employer or group of employers to the organiza-
tion. NFL Vice President Young admitted that three employers each contributed
$50 to NFL, according to Young, for the Union's softball team. Stephens of Sun
State Electric confirmed this testimony in relating his $50 contribution for the
team in addition to $10 for flowers for a deceased union member. Young further
testified that additional funds were received from other employers for this purpose.
Greenberg , of Biscayne Gardens, testified that he donated $10 to the NFL News
for a union sponsored outing for children. Additionally, Massey of Center Plumb-
ing testified that on two or three occasions Somersett requested $300 for the pur-
pose of financing a trip to Washington to "get the pickets off the job," referring
to the Star Lake job on which Massey was then working. Massey refused to give
the money to Somersett.
I would hesitate, on the basis of the foregoing, to infer that the type of contribu-
tion made by most of the employers was sufficient to infer employer domination.
But, I have taken into consideration, also, the incident described by Speeney, whom
I have credited, that Greenberg made a $75 payment to Somersett for the purpose
of "protection." Somersett's admission to Speeney that he requested such payments
of the employers who wanted protection, establishes that the employers were in the
habit of making payments to the Union, or at least to Somersett, the dominant
figure in the NFL. I therefore conclude, from all of the testimony with regard to
this aspect of NFL's activities, that contributions were made to NFL by the employ-
ers and that such financial aid did indeed indicate domination.26
In sum, then, I conclude that there is ample proof that NFL was dominated by
the employers with whom it contracted. I have heretofore set forth Board and court
precedent to establish that domination of a new organization which followed the
dissolution of an older, dominated labor organization is proof of successorship by
the new labor organization of the older organization. This, together with the other
factors which I have heretofore found, namely, the organization of NFL even
before USEA was dissolved, the clear indication from the admissions of the
Respondent that Somersett was the leading figure in the organization of NFL as he
was-of USEA, the similarity of their publications, and the record as a whole, lead
me to conclude and find that not only is NFL the successor organization to USEA
but that it is clearly an alter ego of the older organization.
25 Berkshire Knitting Mills v N L R B, supra.
2AN.L R.B. v. Ephraim Haspel, 228 F 2d 155 (C A. 2), enfg. 109 NLRB 37; The Ameri-
can Thread Company, 84 NLRB 593 See also N.L R.B v Baltimore Transit Company, 140
F 2d 51 (C.A. 4), enfg as modified 47 NLRB 109 ; NLRB. v Skinner & Kennedy Sta-
tionery Company, 113 F 2d 667 (C A. 8) ; Gilfillan Bros, Inc, 53 NLRB 574.
NATIONAL FEDERATION OF LABOR, INC. 987
In coming to the foregoing conclusions and in finding that Somersett is basically
the NFL as he was the USEA, I have noted Vice President Young's apparent
absence of detailed knowledge of how NFL actually operates. He was the only
witness offered by the Respondent who could have shed some light on this question.
Somersett the one individual who could, if possible, have been able to counteract
the overwhelming evidence introduced by the General Counsel, did not testify. I
can but conclude that his failure to testify is mute evidence of the truthfulness of
the admissions of the various employers. It may well be, as Young testified, that
now he and other officers are starting to negotiate and draft bargaining agreements.
But, I gather that this was done after the charges in this proceeding were filed to
lend an air of authenticity to what was otherwise Somersett's private preserve.
While the record in this case does not show classic employer domination nor-
mally encountered where the dominated organization derives its original impetus
from the employer, nevertheless, I find that the domination stems from the proven
fact that NFL was formed and administered for the benefit of Somersett and the
contracting employers. Any benefit which redounded to NFL members was purely
incidental.
I come now to the consideration of the significance of the foregoing findings.
Counsel for the General Counsel asserts that if, indeed, as he contends, NFL is the
successor and alter ego of USEA,.then by its activities discussed above, NFL
obstructed the Board's processes and thereby violated Section 8(b) (1) (A) of the
Act. He theorizes that by continuing to seek recognition as the bargaining agent
of employees of employers in the State of Florida, by maintaining agreements with
such employers and, indeed, by its very existence as a labor organization, which is
the successor of USEA, NFL deliberately acted in contravention of the Board's
Order in the USEA case which was directed not only at USEA but at its successors.
This contumacy, argues the General Counsel, because it thwarts the processes of
the Board, interferes with employees rights, and thereby violates Section 8(b)(1)
(A) which protects employees' rights from depredation by labor organizations just
as Section 8(a)(1) protects such rights from interference by employers. Thus he
is contending that the mere existence of NFL is a violation of the Act.
This theory, in effect, advances a new doctrine, namely, that every failure to
comply with a Board order is a separate violation of the Act. For example, under
this theory, the failure of an employer to comply with a Board order to reinstate
a discriminatorily discharge employee would constitute a violation of Section
8(a)(1) of the Act in that the failure to comply obstructs the Board's processes
and the vindication of employees statutory rights thereby restraining and coercing
employees. In a like manner, the failure of a union, which violated Section 8(b)(2)
of the Act, in causing the discriminatory discharge of an employee to notify an
employer, pursuant to Board order, that the union had no objection to the rein-
statement of the discharge, would constitute a violation of Section 8(b)(1)(A).
Careful analysis of precedent fails to reveal any instance in which the Board has
exercised its authority to the limits advanced by the General Counsel's theory.
Nor does counsel for the General Counsel offer any direct precedent to support
his argument. However, he seeks to bolster his cause by citing cases in which the
Board has protected its processes by holding that interference with such processes
is, itself, violative of the Act. Thus he refers to the Better Monkey Grip Company,
case 27 where the Board found that an employer violated Section 8(a) (1) of the
Act by discharging a supervisor because the latter gave testimony adverse to the
employer's interest in an earlier Board proceeding. He specifically points to the
language of the Board in that case stating "Clearly inherent in the employees'
statutory rights is the right to seek their vindication in Board proceedings." 28
Other cases cited by counsel for the General Counsel are "Certain-Teed Products
Corporation,29 where the Board held violative an employer's instruction to employ-
ees that they did not have to cooperate with a Board investigating agent, and
Hilton Credit Corporation,30 where the Board held violative of Section 8(a)(1) an
employer's demand on its employees that they supply the employer with copies
of statements given to a Board agent investigating an unfair labor practice charge.31
27115 NLRB 1170.
2s Supra, 1171
- 147 NLRB 1517, 1520
30137 NLRB 56.
31 See also Texas Industries, Inc., 139 NLRB 365, 367-368 on this point.
988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
For an example of a similar union violation , counsel for the Geneial Counsel cites
Local 138, International Union of Operating Engineers , AFL-CIO ( Charles S.
Skura ),32 where the Board held as coercive and therefore violative of Section
8(b) (1) (A ) a union's fining a member for filing a charge with the Board.
Counsel for the General Counsel then states, correctly , that in all these cases the
gravamen of the violations found is interference with-the Board 's processes which,
in turn, interferes with the vindication of employees ' rights. He continues that
vindication of employees ' rights goes beyond the mere filing of charges and the
investigation of the same , or the giving of testimony in support thereof, but also,
logically to the extent that "employees rights are truly vindicated only when a
Respondent complies with such [Board ] order."
Counsel for General Counsel concludes his argument by stating "Protection of
an employee 's rights to file a charge would be an empty gesture if the Respondent
could blithely ignore a Board Order issued following such filing . Such conduct
inevitably inculcates in employees the belief that their attempts to vindicate their
rights are futile , and thus restrains and coerces them."
This contention and the argument presented in support thereof are most tempt-
ing, especially in view of the rather sorry manner in which NFL has comported
itself in its chosen role of bargaining representative , as heretofore demonstrated.
However, analysis of the cases cited in support of the General Counsel's contention
leads to the conclusion that in each case there was some overt activity on the part
of the Respondent which constituted interference , not merely the refusal to obey
a Board Order. In each case the interference with the Board's processes was a
direct act of invasion . This is not true of the case at bar.
I note also that under the General Counsel's theory any Respondent litigant
before the Board who honestly believes the Board's findings are in error would be
in the position of inevitably committing a further unfair labor practice by mere
refusal to comply. I do not believe that Section 8(a)(1) of the Act clothes the
refusal to comply with a final order of the Board with such a cloak of illegality.
This is not to say that repeated , similar violative acts of Respondents committed
subsequent to Boaid orders could not in and of themselves constitute violations of
the Act. I merely hold that a refusal to comply. is not per se violative unless it
involves additional acts of invasion of rights under the Act.
However, I do not find merit in the contention of the General Counsel that the
contracts which NFL entered into with Sun State United Electric , and Taube Elec-
tric containing preferential hiring clauses restrained and ecerced employees in viola-
tion of Section 8(b)(1)(A) and (2 ) of the Act . I have found that NFL executed
written agreements with Sun State and United Electric on March 13 and 28, 1964,
respectively . 33 Those agreements provided , inter alia , that NFL shall be the exclusive
source of referral of applicants for employment and that NFL shall not refer ap-
plicants who are not members of NFL. Respondent offered no evidence to show
that these agreements have been modified since their execution.
As contended, it is obvious that the clauses cited above are preferential. The
Board has held that the mere execution of such clauses are violative of Section
8(b)(1) (A ) and (2 ) of the Act even though there is no evidence that they were
ever enforced . 34 Accordingly , I find, that by the execution of the foregoing con-
tract with Sun State and United Electric NFL violated Section 8(b)(1)(A) and
(2) of the Act.
I have heretofore found that Taube Electric entered into an oral agreement for
preferential hiring with NFL sometime early in 1964 . Taube admitted that the oral
agreement entered into conformed to a written agreement which contained prefer-
ential hiring and exclusive referral clauses as contained in the two contracts here-
inabove found to be violative . Accordingly , even though no written agreement was
executed, I find that this arrangement between Taube and NFL was violative of
Section 8 ( b)(2) and ( 1)(A) of the Act.35
32 148 NLRB 679, 681.
3, The charge in Case 12-CB-761 was filed on June 3, 1964 Accordingly , the executions
of these two agreements were within the 6-month, 10(b) period
34 N.L R B v Sightseeing Guides and Lecturers Union Local 20076 , 310 F 2d 40 (C A
2), enfg 133 NLRB 985, N L R B v Gottfried Baking Co ., 210 F 2d 773 (C.A. 2), enfg
in part 103 NLRB 227, N L.R B v. Broderick Wood Products Company, 261 F 2d 548
(C A 10), enfg 118 NLRB 38
3v See Max B 06cheru itz, et at, d/b/a I 0schereoitz and Sons, 130 NLRB 1078
NATIONAL FEDERATION OF LABOR, INC.
IV. THE REPRESENTATION CASES
989
As noted above, the Board's notice to show cause in the representation cases
herein was issued upon its having sua sponte considered the allegations of the com-
plaint in the unfair labor practice cases considered herein. The aforesaid notice to
show cause asked NFL to show cause why the certifications heretofore issued in the
eight representation cases should not be revoked.
The activities of NFL as a bargaining representative has been fully set forth. I
would serve no useful purpose to repeat them here at length. To summarize, how-
ever, it is clear that NFL is a successor to USEA I have so found. In addition
thereto fully set forth and developed above is NFL's lack of bona fide representa-
tion of employees in contract negotiation and administration. The minimal require-
ments set forth in the agreements executed by NFL and various contractors with
whom it had contracts were for the most part documents which gave to the employ-
ees no more than the employers were willing to give them or had been giving them
prior to the negotiations with NFL. In addition, NFL's relationship with the employ-
ers was marked by indifference to wage rates, failure to police contracts, execution
of contracts with little or no prior bargaining, indifference to employee grievances
and general lack of activities not to be expected in a labor organization which gen-
uinely represented its employee members. In addition thereto, there was evidence of
financial contributions by employers to NFL Moreover, it was amply demonstrated
that NFL's relationships with the employers with whom it negotiated, and the
absence in its contracts of the normal and usual employer benefits included in most
contracts executed by unions in the construction industry, constitute further indicia
that NFL was neither organized nor conducted for the purpose of benefiting
employees.
While it is true that the relationships between NFL and the employers with
whom it contracted seemed to be most amiable, this absence of hostility did not
indicate genuine industrial peace but rather an absence of genuine representation
which permitted the employers a degree of freedom which is usually found when
there is no bargaining representative in the picture.
That the Board has the power to police its own certifications has long since been
settled.ss It follows that it has the power on its own motion to recall a certificate
which it has issued when circumstances are brought to its attention which would
have caused the Board to refuse to issue a certification in the first instance. Thus,
the Board would not place on a ballot an organization, which it found to have been
illegally dominated under Section 8(a) (2) of the Act
In the instant unfair labor practice case, it is amply demonstrated that NFL is
the alter ego of USEA. USEA was subject to a court decree enforcing an order of
the Board issued pursuant to a settlement agreement obligating the employers in
the USEA case to withdraw recognition from USEA and to cease giving effect to
the contracts between those employers and USEA. Thus, NFL, when petitioning in
the representation cases herein for certification as bargaining representatives of the
various employers employees was doing so at the time when the order pursuant to
the settlement agreement was still in effect. There has been no showing that NFL
has conducted itself in any manner different from that of which USEA was accused
in the earlier case. Under these circumstances, NFL at the time it filed a petition
and, indeed, at the time it was certified, had no standing to seek a Board-conducted
election. Accordingly, at the current time, the Board having been apprised for the
first time of these conditions, I recommend that, under all the circumstances, the
Board revoke the certifications in the following cases.
Biscayne Gardens Electric Co., Case 12-RC-1843
Taube Electrical Contractors, Inc., Case 12-RC-1847
Decker Electric Company, Inc., Case 12-RC-1848
State Builders, Inc., Case 12-RC-1849
Sun State Electric, Inc., Case 12-RC-1860
John M. Callas d/b/a United Electric, Case 12-RC-1873
Frank Schafer, Inc., Case 12-RC-1896
Car-Line Electric Corp., Case 12-RC-1963
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section II, above, occurring in con-
nection with the operations of the employers set forth in section I, above, have a
30 Lane-Wells Company, 79 NLRB 252, 25G.
990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
close, intimate , and substantial relation to trade, traffic , and commerce among the
several States , and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
VI. THE REMEDY
Having found that the Respondent has committed certain unfair labor practices,
I shall recommend that it be ordered to cease and desist from such conduct and to
take certain affirmative action designed to dissipate its affect.
Since I have found that NFL has entered into contracts with unlawful referral
clauses with Sun States , United Electric , and Taube it will be recommended that
Respondent cease entering into, maintaining , and enforcing any contract or agree-
ment with those employers that unlawfully conditions hire or tenure of employment
of employees or applicants for employment upon membership in the Respondent.
Upon the basis of all of the foregoing findings of fact and upon the entire rec-
ord in this case , I make the following:
CONCLUSIONS OF LAW
1. The employers named in section I of this Decision are employers within the
meaning of the Act.
2. National Federation of Labor, Inc., Carpenters District Council of Miami,
Florida, and Vicinity, AFL-CIO, and Local Union No. 349, International Brother-
hood of Electrical Workers, AFL-CIO, are labor organizations within the meaning
of the Act.
3. By its execution of contracts with Sun State , United Electric, and Taube con-
taining preferential hiring clauses , NFL restrained and coerced employees in viola-
tion of Section 8 (b)(1)(A) and (2) of the Act.
4. By seeking recognition as the bargaining agent of employees of employers in
the State of Florida , by maintaining agreements with such employers , and by its
existence as a successor of USEA, NFL did not violate Section 8(b) (1) (A) of the
Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication.]
Royal Plating and Polishing Co., Inc. and Metal Polishers,
Buffers , Platers and Helpers International Union, Local 44,
AFL-CIO. Case 22-CA-1640. September 8,1966
SECOND SUPPLEMENTAL DECISION AND ORDER
On August 27, 1964, the National Labor Relations Board issued its
Decision and Order in the above-entitled proceeding, concluding, on
the basis of the findings of fact set forth there and in the Trial
Examiner's Decision attached thereto, that Respondent violated Sec-
tion 8(a) (5) and (1) of the National Labor Relations Act, as
amended, "by failing to disclose to the Union, while it and the Union
were engaged in contract negotiations, its intention to shut down
operations at its Bleeker Street plant, and by unilaterally, and with-
out notice to the Union, closing down the plant." 1 The Board's Order
required Respondent to cease and desist from the unfair labor prac-
1148 NLRB 545, 546.
160 NLRB No. 72.