Painters Local 249, Brotherhood of Painters, Etc.

National Labor Relations Board - Board Decisions

Mar 9, 1962

136 N.L.R.B. 176 (N.L.R.B. 1962)

176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Painters Local Union No. 249, Brotherhood of Painters, Deco-
rators and Paperhangers of America , AFL-CIO and John J.
Reich . Case No. 9-CC-275. March 9, 1962
DECISION AND ORDER
On January 9, 1961, Trial Examiner Sydney S. Asher, Jr., issued
his Intermediate Report in the above-entitled proceeding, finding that
it would not effectuate the policies of the Act to assert jurisdiction
over the Employer's operation, and recommending dismissal of the
complaint in its entirety. Pursuant to exceptions duly filed by the
General Counsel, the Board on March 22, 1961, reopened the record
and remanded the case. The parties thereupon entered into a stipula-
tion which was incorporated into the existing record, and waived any
further hearings.
On June 22, 1961, Trial Examiner Asher issued his Supplemental
Intermediate Report in this proceeding, finding that it would effec-
tuate the policies of the Act to assert jurisdiction,' and that the Re-
spondent, referred to herein as Local 249 or the Union, had engaged
in and was engaging in certain unfair labor practices, and recommend-
ing that it cease and desist therefrom and take certain affirmative
action, as set forth in the copy of the Supplemental Intermediate
Report attached hereto. Thereafter, Local 249 filed exceptions and a
supporting brief.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and fords that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the entire
record in this case, including the Supplemental Intermediate Report,
the exceptions, and brief, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner with the following
amplification.
The facts are accurately set forth in the Supplemental Intermediate
Report. Briefly, John J. Reich is a painting contractor who entered
into a partnership agreement in 1953 with his son Louis, who was then
17 years old.' Several years later, while working with his father in
i The Trial Examiner found that the Employer ' s operations satisfied the Board' s appli-
cable jurisdictional standard since it had performed services valued in excess of $50,000
for employers who were themselves engaged in commerce . In coming to this conclusion,
the Trial Examiner included compensation for portions of two contracts which were per-
formed partly within and partly outside the base period. One such job was performed in
71 days, of which 70 were within the base period , and the Trial Examiner prorated the
value of the services performed on the basis of the work performed in the base period
The other job was estimated by the Employer to have been 90 percent completed during
the base period and the Trial Examiner again prorated the value of that job on the
basis of the work performed within the base period. We find that the Trial Examiner's
allocations were proper and therefore deny the exceptions of Local 249 to the jurisdictional
findings set out in the Supplemental Intermediate Report See Pelnik Wrecking Com-
pany, Inc, 126 NLRB 259.
2A copy of the agreement is attached to the Supplemental Intermediate Report as
Appendix A.
136 NLRB No. 11.
PAINTERS LOCAL 249, BROTHERHOOD OF PAINTERS, ETC. 177
the business, Louis joined Local 249 but, during the events involved
herein, had become delinquent in his dues payments and was no longer
a member in good standing.
In May 1960, the Employer and Local 249 entered into a collective-
bargaining agreement which contained the following article XIX :
Where there is more than one person in a Contracting business or
Corporation working under this agreement, only one person shall
be allowed to work with the tools of the trade. If more than one
person works with the tools of the trade they shall be members
of the Union.
During the month of September 1960, the Union took steps to rectify
what it regarded as a violation of this provision since neither John
nor Louis Reich was a member in good standing and both refused to
promise that they would not work with the tools of the trade. At a
union meeting on September 9, the membership passed a motion "that
starting September 12, 1960, we no longer work for John Reich Paint-
ing Contractor until he complies with our working agreement." The
two employees of the Employer immediately informed John Reich
that they would no longer be able to work for him because of this
motion. Since September 10, neither of these employees, nor any
other member of Local 249, has worked for the Employer. On Sep-
tember 30, 1960, Local 249 notified John Reich that it would have no
further dealings with him because he chose to operate his business
without regard for union conditions and restrictions.
The complaint alleges that Local 249 violated Section 8 (b) (4) (A)
by inducing or encouraging Reich's employees to strike and by threat-
ening, coercing, or restraining Reich, for the object of forcing or
requiring Louis Reich, an employer or self-employed person, to join
a labor organization. We agree with the Trial Examiner's reasoning
and his conclusions that Local 249 induced the two employees of the
Employer to withhold their services and, by threatening to strike and
striking, it coerced and restrained the Employer, for an object pro-
scribed by Section 8 (b) (4) (A). We also agree with the Trial
Examiner's conclusion that John and Louis Reich were partners and
that, consequently, Louis Reich is an employer or self-employed
person within the meaning of Section 8 (b) (4) (A) 3
The major contention of Local 249 is that article XIX is a complete
defense to the violation alleged, and that its attempts to enforce, and
its later repudiation of, the contract obviate any possible inference
that its object was to force Louis Reich to become a member of its
organization. The Trial Examiner found it unnecessary to deter-
mine whether the Employer was in violation of article XIX since as
3 Like the Trial Examiner, we respectfully disagree with the finding of the Federal
District Court in Fraker v Brotherhood of Painters ( Civil No 2519 , D C S. Ohio) that
the alleged partnership agreement does not establish genuine partnership.
178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a matter of fact Louis Reich had not worked with the tools of the
trade from the time he lost his good standing in the Union until after
September 30, 1960, when the contract was repudiated by the Union.
Although finding it unnecessary to reach that question, he did specifi-
cally find that, assuming the validity of article XIX, the method used
by Local 249 in attempting to obtain compliance with the contract
violated Section 8(b) (4) (A). We concur with these conclusions of
the Trial Examiner. Here, the Union attempts to defend conduct
constituting inducement and threats under 8 (b) (4) (i) and (ii) for an
object proscribed by Section 8(b) (4) (A). We have heretofore held
that an attempt to enforce an otherwise valid contractual provision
does not insulate a respondent from liability where its actions con-
stitute a violation of the "cease handling" or "cease doing business"
provisions of Section 8(b) (4) (B), (Section 8(b) (4) (A) before the
1959 amendments).' We perceive no essential distinction between
attempts to enforce a contract provision where an object thereof is to
force or require an employer or self-employed person to join a labor
organization from a situation where an object is to force any person to
cease doing business with any other person. In neither case can we
permit a union to attain an unlawful object by claiming that it is
merely seeking to have the employer abide by its contractual
obligation.
ORDER
The Board adopts the Amended Recommendations of the Trial
Examiner as its Order with the modification that provision 2(d) be
amended to read "Notify the said Regional Director, in writing, with-
in 10 days from the date of this Order, what steps the Respondent has
taken to comply herewith." s
MEMBERS LEEDOM and BROWN took no part in the consideration of
the above Decision and Order.
'Local 1976, United Brotherhood of Carpenters and Joiners of America, AFL and Los
Angeles County District Council of Carpenters and Nathan Fleisher v N L P. B. (Sand
Door & Plywood Co ), 357 U S. 93. Local 294, International Brotherhood of Teamsters,
etc (Bonded Freightways), 121 NLRB 924, enfd. 273 F 2d 696 (C A. 2) ; Local 929, United
Brotherhood of Carpenters and Joiners of America, AFL-CIO, et at (The Mengel Com-
pany), 120 NLRB 1756; Springfield Building Trades Council, et at (Leo Spear Construc-
tion Co, Inc.), 120 NLRB 600, enfd 262 F. 2d 494 (C A. 1) ; Bangor Building Trades
Council, AFL-CIO (Davison Construction Company, Inc ), 123 NLRB 484.
1In the notice attached to the Supplemental Intermediate Report as Appendix B, the
words "Decision and Order" are hereby substituted for the words "The Recommendations
of a Trial Examiner" In the event that this Order is enforced by a decree of a United
States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision
and Order" the words "Pursuant to a Decree of the United States Court of Appeals,
Enforcing an Order "
The following is to be inserted in the notice immediately after the sentence beginning
"This notice must remain posted . . : "Employees may communicate directly with the
Board's Regional Office, Transit Building, 4th & Vine Streets, Cincinnati, Ohio ; Telephone
Number, Dunbar 1-1420, if they have any question concerning this notice or compliance
with its provisions."
PAINTERS LOCAL 249, BROTHERHOOD OF PAINTERS, ETC. 179
SUPPLEMENTAL INTERMEDIATE REPORT
This case involves allegations that Painters Local Union No. 249 , Brotherhood
of Painters , Decorators and Paperhangers of America , AFL-CIO, herein called the
Respondent, has since on or about September 9, 1960, engaged in, and induced and
encouraged individuals employed by Louis G. Reich and John J . Reich , copartners,
d/b/a John Reich Painting and Decorating, herein called the Employer , to engage in,
a strike, and since on or about September 6, 1960 , threatened , coerced, and re-
strained the Employer , an object thereof being to force or require Louis G. Reich,
one of the copartners of the Employer , to join the Respondent . It is alleged that
this conduct violated Section 8 (b) (4) (i ) and (ii ) (A) of the National Labor Rela-
tions Act, as amended ( 61 Stat . 136), herein called the Act . After the issuance
of a complaint by the General Counsel , the Respondent filed an answer denying the
jurisdictional facts alleged in the complaint , denying that the Employer was engaged
in commerce or that its operations affected commerce , and also denying the com-
mission of any unfair labor practice . A hearing was held before me on October 24
and November 1, 1960 , at Dayton, Ohio. All parties were represented and par-
ticipated fully in the hearing . At the close of the General Counsel's case, the
Respondent moved to dismiss the complaint on several grounds, one of which was
that "there is no proof of [the Employer's engagement in] commerce ." Ruling
thereon was reserved . On January 9, 1961 , I issued my Intermediate Report finding
that the General Counsel had failed to prove that it would effectuate the policies
of the Act for the Board to assert jurisdiction over the Employer 's operations, and
recommending that the Board grant the Respondent 's motion to dismiss the com-
plaint in its entirety . On the same day the case was transferred to the Board.
The General Counsel filed exceptions to the Intermediate Report and a brief in
support thereof , alternatively requesting "that the matter be remanded to the Trial
Examiner for further hearing concerning jurisdiction only " The Respondent filed
a brief in support of the Intermediate Report . On March 22 , 1961, the Board
reopened the record and remanded the case, directing "that a further hearing be
held before Trial Examiner Sydney S. Asher, Jr., for the purpose of adducing further
evidence to establish whether each store or unit of the retail concerns serviced by
John J . Reich between September 1, 1959, and September 1, 1960, individually
satisfies the Board 's jurisdiction standards in accordance with New Jersey Poultry &
Egg Cooperative Association , Inc., 114 NLRB 536." The Board also directed me
to "prepare and serve upon the parties a Supplemental Intermediate Report con-
taining findings of fact , conclusions of law and recommendations based upon the
evidence contained in the entire record."
Thereafter , on April 7 , 1961 , "to obviate the necessity of further hearing," the
parties stipulated certain facts regarding whether each store or unit of the retail
concerns serviced by the Employer between September 1, 1959, and September 1,
1960 , individually satisfied the Board 's jurisdictional standards . The stipulation
further provided that it should "become a part of the record herein . in lieu of
a further hearing herein, subject to its acceptance by the Trial Examiner and the
parties hereby waive any further hearing in this case." Accordingly , on April 24,
1961 , I issued an order receiving the stipulation in evidence and closing the record.'
In view of the postremand stipulation , which contains facts compelling a reevalua-
tion of the findings in the original Intermediate Report, the findings of fact , conclu-
sion of law , and recommendation contained therein are now rescinded , and the
Respondent's motion to dismiss the complaint is denied . Upon the entire record in
this case ,2 including my observation of the witnesses , and also including the post-
remand stipulation of the parties , I make the following:
' In connection with the remand , the Board had authorized the Regional Director to
issue a notice of hearing No such notice had been issued at the time of the order closing
the record
2 Certain errors in the transcript have been corrected previously The transcript is now
further corrected as follows:
Page 121, line 18: Delete the word "stipulatios" and insert in lieu thereof the word
"stipulations "
Page 132, line 18: Delete the month "August" and insert in lieu thereof the month
"September."
Page 182, line 13: Delete the word "he " and insert in lieu thereof the words "the
Respondent."
641795-63-vol. 136-13
180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
AMENDED FINDINGS OF FACT
A. The Board's jurisdiction
1. Applicable principles
The performance of services for business concerns constitutes at least a significant
part of the Employer's operations. Therefore the Employer may be considered,
for jurisdictional purposes, as a nonretail enterprise.3 The Board will assert juris-
diction over nonretail enterprises which have a direct or indirect outflow across
State lines of at least $50,000 annually .4 Here the Employer has no proven direct
outflow. Therefore, in order to meet the Board's jurisdictional standards, it must
be shown that the Employer's indirect outflow amounted to $50,000 during the base
period. The Board has defined indirect outflow as "sales of goods or services to
users meeting any of the Board's jurisdictional standards except the indirect outflow
or indirect inflow standard." 5
One other preliminary observation should be made. The Board has held that
the impact of an employer's operations is determined by the annual rate of ship-
ment of goods in interstate commerce, rather than the flow of payments therefore
Accordingly, the controlling factor here is the time when the Employer performed
services; the date when payment was made, if any, is immaterial.
2. The appropriate base period
The original complaint, which was filed on October 4, 1960, alleged that the Em-
ployer had received in excess of $50,000 for services performed for interstate firms
"during the past twelve months." At the hearing, the General Counsel described
the base period as "the twelve months' period ending September 1, 1960. The period
preceding that." On October 24, 1960, during the hearing, the General Counsel
amended the complaint, again defining the base period as "during the past twelve
months." On November 1, 1960, during the hearing, the General Counsel once
more amended the complaint, reiterating therein the phrase "during the past twelve
months." At the close of this case, the General Counsel amended the complaint
again to describe the critical period as "from September 1, 1959, to September 1,
1960," pointing out that "it is a twelve-month period preceding the filing of the
charges." In his brief to the Trial Examiner, the General Counsel referred to the
base period as being "between September 1, 1959, and September 1, 1960." In his
brief to the Trial Examiner, able counsel for the Respondent vigorously attacked the
base period contended for by the General Counsel for the following reasons: (1) the
General Counsel should not be permitted to pick "what twelve month period [he]
might choose to use to show commerce"; (2) the alleged unfair labor practice oc-
curred after the base period selected by the General Counsel and therefore "com-
merce [within the General Counsel's base period] could not have been affected by
any alleged unfair labor practice of respondent during that time"; (3) the period
chosen has no relation to the case; and (4) "if September 1, 1959 to September 1,
1960, is used with both dates inclusive, a year and a day is being used." As men-
tioned above, the Board's remand order, in describing the base period, used the
phrase "between September 1, 1959, and September 1, 1960" and this language was
repeated in the postremand stipulation of the parties.
Let us examine the Respondent's objections to the General Counsel's suggested
base period seriatim. As to (1), it is true that the General Counsel appears to have
vacillated on this issue. However, the emphasis should properly be placed not on
how many times the General Counsel seems to have changed his mind regarding
the crucial period, but rather on whether he ultimately applied a period which is
appropriate under all the circumstances. For reasons appearing below, I am of the
opinion that he has done so here-except for a 1-day correction applied hereafter.
With regard to (2), it is not necessary that the selected 12-month period encompass
the time during which the unfair labor practices allegedly took place. So far as I
am aware, the Board has never imposed such a limitation. Indeed, it seems to have
dpne the very thing of which the Respondent complains, namely, found that an un-
fair labor practice was committed on a date subsequent to the base period utilized
3 John Myers, d/b/a Myers & Camille Painters, 131 NLRB 72.
* Siemons Mailing Service, 122 NLRB 81, 85.
5 Ibid
6 Jos. McSweeney & Sons, Inc., 119 NLRB 1399, 1400.
PAINTERS LOCAL 249, BROTHERHOOD OF PAINTERS, ETC. 181
for jurisdictional purposes.7 Referring to (3), in applying its jurisdictional standards,
the Board has "relied on the experience of an employer during the most recent
calendar or fiscal year, or the 12-month period immediately preceding the hearing
before the Board, where such experience was available." 8 Here, the record does
not show what period the Employer used as his fiscal year; nor does it show the extent
of the Employer's operations during the most recent calendar year, 1959; nor does
it indicate whether such figures were available. Nevertheless, I cannot agree with
the Respondent that the base period selected by the General Counsel (September 1,
1959, to September 1, 1960) is unrelated to the matter at hand. I do not interpret
the Board's above-quoted rule as so rigid and inflexible as to exclude the use of other
appropriate 12-month periods .9 The appropriateness of the base period selected
herein is found in the fact that it is the 12-month period immediately preceding both
the alleged commission of the unfair labor practices and the filing of the charges
herein.1e Finally, as to (4), it is true that "from September 1, 1959, to September 1,
1960" encompasses a year and a day if both September dates are included. But in a
postremand letter, copies of which were sent to the other parties, the General Coun-
sel indicated "that September 1, 1960, was not included in the critical period." It
is accordingly found that a base period which may properly be used for jurisdic-
tional purposes is from September 1, 1959, to August 31, 1960, inclusive, and that
such a period is justified and appropriate under the circumstances here present.
3. Retail enterprises
During the base period the Employer rendered services in the State of Ohio for
the following retail enterprises in the following amounts: S. S. Kresge Company,
$3,605; Elder and Johnston, $970; W. T. Grant Company, $622; and F. W. Wool-
worth Company, $988. The parties stipulated with regard to the above-named retail
enterprises as set forth in the original Intermediate Report. After the remand re-
ferred to above, the parties further stipulated as follows:
1. Each store unit of (S. S. Kresge Co., Elder and Johnston, W. T. Grant
Company, and F. W. Woolworth Co.) the retail concerns serviced by John J.
Reich, the Employer involved herein, between September 1, 1959, and Septem-
ber 1, 1960, satisfies the Board's jurisdictional standards individually, in ac-
cordance with the Board's decision in New Jersey Poultry & Egg Cooperative
Association, Inc., 114 NLRB 536, in that each of said stores or units of said
retail concerns has an annual gross volume of retail sales in excess of $500,-
000.00 and each of said stores or units of the said retail concerns has an annual
direct inflow of goods, wares and merchandise, in interstate commerce, of a
value in excess of $50,000.00 which are shipped directly from points outside of
the State of Ohio to each of said stores or units, individually, at their respective
locations in and around Dayton, Ohio.
2. Said parties hereby further stipulate that each store or unit of said retail
concerns serviced by John J. Reich between September 1, 1959 and September 1,
1960, is engaged, individually, in "commerce" or in operations "affecting com-
merce" as defined in Section 2(6) and (7) of the Act respectively.
I find the facts to be as stipulated. On the basis of this second stipulation, not
available to me at the time of the issuance of the original Intermediate Report, I
rescind my finding therein that the $6,185 received by the Employer from retail
enterprises cannot be counted as indirect outflow, and will therefore count this
amount as indirect outflow during the base period, within the meaning of New
Jersey Poultry & Egg Cooperative Association, Inc., 114 NLRB 536.
4. Oil and petroleum companies
On October 22, 1959, the Employer and Standard Oil Company (herein called
Standard) entered into a contract for sandblasting and painting at Standard's bulk
See for example Community Shops, Inc, 130 NLRB 1522 There the base period for
Jurisdictional purposes was the year 1958, yet the Board found that unfair labor prac-
tices had been committed in April 1959. Similarly in Southern Dolomite, 129 NLRB
1342 and 131 NLRB 513, the base period was "the 1959 fiscal year" and the Board found
that unfair labor practices had been committed in January 1960.
BAroostook Federation of Farmers, Inc, 114 NLRB 538, 539, quoted with approval in
John Myers, d/b/a Myers & Camille Painters , supra.
O For example, In La Prensa, Inc., 131 NLRB 523, the Board used "the year preceding
issuance of the complaint."
10 The complaint alleges that the unfair labor practices were committed on or about
September 6 and 9 , 1960, and the charges were filed on September 15, 1960.
182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plant in Dayton, for the sum of $4,669 "subject to such additions or deductions as
may be hereafter agreed to between the parties arising out of any additions to,
omissions from, or alterations in the plans and specifications." The funds were to be
paid as follows: On the 10th of each month after the work begins, payment of 85
percent of the value of work completed during the preceding month; payment of
the remaining 15 percent to be made 65 days after completion of the entire contract.
The Employer agreed to submit monthly reports to Standard showing the percentage
of work completed during the previous month.
Work on this project commenced early in November 1959. Bad weather set in
and work discontinued until September 1, 1960. The job was ultimately completed
in October 1960. John J. Reich, the Charging Party, testified that approximately
90 percent of the job had been completed before September 1, 1960, and that no
payment had been received for this job. The record does not show whether the
Employer furnished monthly progress reports to Standard as required by the
contract.
The General Counsel claims that the value of services rendered by the Employer
to Standard during the base period is 90 percent of $4,669. This raises two ques-
tions: May any portion of services begun but not completed during the base period
be counted as indirect outflow during the base period, and if so, how should the
amount or value of services rendered during the base period be calculated?
Neither the General Counsel nor the Employer has cited any authority to the
effect that a contract commenced during the base period may be "split up" nor have
I been able to discover any.11 The proposition appears to be a novel one. However,
there are certain guideposts. Thus, in one case the Board stated: "It is the annual
rate of shipment or flow of goods in interstate commerce, rather than the rate
of flow of payments for such goods, that determines the relative impact of an
employer's operations on commerce," 12 The emphasis is placed on the "annual rate
of . . . flow of goods [services]." By parity of reasoning, it would seem logical
in measuring "the relative impact of an employer's operations" to include as indirect
outflow all services actually rendered during the base period to customers whose
operations meet the Board's jurisdictional standards, even where such services con-
stitute only part, rather than the whole, of a specific project. I conclude that con-
tracts are separable for this purpose, and that so much of a contract as is per-
formed within the base period may be counted as indirect inflow. How, then, should
the contract in question be split? It cannot be assumed that work progressed at an
even pace throughout the contract's duration; for John J. Reich testified without
contradiction that bad weather compelled its temporary discontinuance. The only
available guide is his estimate that the work had been approximately 90 percent com-
pleted before September 1, 1960. As he is engaged in the business and his estimate
should therefore be meaningful, and as his estimate stands uncontradicted, the
General Counsel's proposal to count 90 percent is "the only practicable method that
could be used in the circumstances." 13 The Respondent protests that the base of
$4,669 is unreliable in the absence of proof that Standard actually paid that amount
for the completed job. This contention lacks merit. Standard contracted to pay
$4,669 with price changes permissible when agreed upon by the parties. There is
no proof that the parties ever adjusted the figure of $4,669 Accordingly it is
found that, during the base period, the Employer performed, within the State of
Ohio services for Standard valued at 90 percent of $4,669, or $4,202.10.
Between August 10 and November 12, 1959, the Employer performed in and
around Dayton a number of jobs for Phillips Petroleum Company, herein called
Phillips, for which it received $9,594.54 on November 18, 1959. John J. Reich testi-
fied that, of this amount, work valued at a total of $6,458 was completed before
September 1, 1959, and work valued at a total of $3,996.50 was performed after
September 1, 1959. The General Counsel therefore claims that work valued at
$3,996.50 was performed within the base period. Obviously at least one of these
figures is inaccurate, for the portion alleged to have been completed before Septem-
ber 1, 1959 ($6,458) when added to the portion allegedly performed after that
date ($3,996.50) results in a total ($10,454.50) greater than the total the Employer
11 In Pelnik Wrecking Company, Inc., 126 NLRB 259, the Board assumed, without de-
ciding, that the contract in question was divisible.
12 Jos McSweeney & Sons, Inc, supra.
11 Pelnik Wrecking Company, Inc., supra at 261.
PAINTERS LOCAL 249, BROTHERHOOD OF PAINTERS, ETC. 183
received from all the jobs ($9,594.54). The answer is probably found in the
estimate. This contains "amounts" totaling $12,735.14, but at the bottom of the
column of figures is "Net Payment" of $9,600.64-a reduction of approximately
24.6 percent.14 It is therefore reasonable to assume that, after adding the amounts
of the individual job estimates, the Employer agreed to accept a reduction of 24.6
percent in net payment of the entire bill," and that John J. Reich mistakenly testified
from the "amount" column but neglected to reduce these figures by 24 6 percent.16
Another adjustment needs to be made: The figure of $3,996.50 for work purported-
ly performed after September 1, 1959, is not accurate. The record shows that it
includes one job in the amount of $3,669 on which work commenced on August 31
and ended on November 9, 1959. This job therefore began before the base period
but was completed within the base period; it must be apportioned.17 For this pur-
pose it will be assumed that this job proceeded at an even pace during the 71 days
of its existence. Hence 1/71, or 1 day's proportion, must be deducted as outside the
base period, amounting to $51.67. Deducting this from the amount claimed by the
General Counsel ($3,996.50) gives $3,994.83. Accordingly, I find that the correct
value of work performed during the base period from this payment of $9,594.54
was 75.4 percent of $3,944.83, or $2,974.40.
In September 1959 the Employer performed in and around Dayton additional
painting work for Phillips in the amount of $2,193.80. Thus the value of all work
performed within Ohio for Phillips during the base period was $2,974.40 plus
$2,193.80, or a total of $5,168.20.
During the base period the Employer performed services, mostly in and around
Dayton,18 for Gulf Oil Corporation (herein called Gulf) amounting to $32,281.75.19
In addition, between August 9 and October 16, 1959, the Employer performed
services for Gulf in the amount of $428 at Wilmington and Irving Streets, Dayton
The General Counsel claims that the portion of this work performed within the
base period amounted to $395, explaining "2 out of total of 28 hours worked before
9/ 1 /59 or one third of total $428 subtracted." The General Counsel's method of
allocating a portion of this contract to the base period is perhaps open to question.
However, the entire job, valued at only $428, is insufficient in size to affect the ulti-
mate result herein. Therefore, in order to avoid unnecessary elongation of this
report, this job will be disregarded altogether.
The parties stipulated after the close of the hearing that Gulf, Phillips, and
Standard "are and have been engaged at Dayton, Ohio, in the non-retail distribution
of goods, wares, merchandise and other commodities and . . . each . . . has a
direct inflow of goods and materials annually, in interstate commerce of a value in
excess of $50,000 which are shipped to them directly from points outside of said
state." I so find.
5. General contractors
In August 1960 the Employer performed work at an undisclosed location for
V. O. Price Co. for which it was ,paid $1,320. The parties stipulated after the close
14 There is no apparent explanation for the $6 10 discrepancy between the $9,600 64 "net
payment" figure on the estimate and the $9,594 54 actually received
15 This accords with the Employer's method of charging Phillips on other estimates In
one instance the total estimated "amount" was $2,950 20 but net payment therefor was
only $2,193 80; in another the estimated "amount" totaled $8,188.80 while net payment
was only $6,010 70 In both these cases there was a reduction of slightly over 25 percent.
18 He also omitted any mention of three other jobs totaling $2,280 64 In the "amount"
column. The $10,454 50 mentioned above plus this $2,280 64 gives $12,735 14. the total
of figures in the "amount" column.
17 If work commenced during the base period but which was completed after the base
period may be "split," the same logic should apply to a contract started before the base
period and completed during the base period
1s Of this amount the location is not shown of jobs totaling $6,311
"This excludes an item of $236 because as to it the record shows that it was com-
menced on December 14, 1959-an impossible state of affairs Obviously, at least one of
the dates is erroneous
The Respondent questions the amount claimed for work done for Gulf allegedly amount-
ing to $4,300 75, on the ground that the bill was not paid by Gulf and therefore the figure
is a "unilateral valuation " In the absence of any evidence that this figure was excessive,
I find no merit in the Respondent's contention
184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the hearing, and it is found , that "V. O. Price Co. is and has been engaged as a
general contractor in the building and construction industry at Dayton , Ohio, and
elsewhere and has a direct inflow of materials and supplies of a value in excess of
$50,000 annually, in interstate commerce , which are shipped to it directly from
points outside of said state."
6. Newspapers
In September and October 1959 the Respondent performed services in Dayton
for Dayton Daily News in the amount of $572 . The parties stipulated after the
close of the hearing, and I find , that "Dayton Daily News is and has been a daily
newspaper published and distributed in Dayton, Ohio , having an annual gross
income in excess of $200,000 , and a direct outflow annually, in interstate commerce,
of materials and supplies of a value in excess of $50,000 which are shipped to it
directly from points outside of said state." No evidence was introduced to show that
Dayton Daily News holds membership in or subscribes to interstate news services,
or publishes nationally syndicated features , or advertises nationally sold products.
Therefore Dayton Daily News does not, on this record , meet the Board 's jurisdic-
tional standards applicable to newspapers . 20 Accordingly , the $572 worth of serv-
ices rendered it will not be counted as indirect inflow to the Respondent.
7. Banks
During the base period the Employer performed two jobs in Ohio for Peoples
Bank in the total amount of $344. The parties stipulated after the close of the
hearing, and I find, that "Peoples Bank is and has been engaged in the commercial
banking business at Dayton, Ohio, and has an annual volume in interstate commerce,
of checks in excess of $50,000 sent by it for collection directly to banks outside of the
State of Ohio and an annual volume, in interstate commerce, of checks in excess of
$50,000 sent directly to it for collection by banks outside of said state." 21
8. Other nonretail enterprises
During the base period the Employer performed three jobs for Top Value Enter-
prises, Inc., at unspecified locations, in the total amount of $595.48. The Employer
also performed two other projects for the same firm in the total amount of $270.44,
but it is not entirely clear what portion of these were performed within the base
period. As in any event the inclusion or exclusion of these latter two jobs would
not affect the ultimate result herein, no findings need be made regarding them.
In August 1960 the Employer performed a job for the East Dayton Tool and
Die Company, in Dayton, for the sum of $372. In July or August 1960 the Employer
performed work for Linden Tool and Manufacturing Co., in Dayton, in the amount
of $155. In October 1959 the Employer performed two jobs for Allen Cartons,
Inc., in Dayton, for the total sum of $445.
The parties stipulated after the close of the hearing, and it is found, that "Top
Value Enterprises, Inc., The East Dayton Tool and Die Company, Linden Tool and
Manufacturing Co., and Allen Carton's, Inc., (sic) are and have been engaged at
Dayton, Ohio, in the nonretail distribution of goods, wares, merchandise and other
commodities and that each of them has a direct inflow of goods and materials annu-
ally, in interstate commerce, of a value in excess of $50,000 which are shipped to
them directly from points outside of said state."
9. Conclusions regarding jurisdiction
From the foregoing it is concluded that, during the base period, the Employer
rendered services to the following firms engaged in commerce, each of which meets
the Board's standards for the assertion of jurisdiction (other than the indirect out-
20Beilevalle Employing Printers , 122 NLRB 350, 351-352
21 Apparently, checks sent directly by a bank to other banks outside the State for col-
lection is the equivalent of direct outflow of the sending bank for purposes of applying
the Board 's jurisdictional standards The Connecticut Bank and Trust Company, 114
NLRB 1293, footnote 1.
PAINTERS LOCAL 249, BROTHERHOOD OF PAINTERS, ETC. 185
flow or indirect inflow standards) in the amount set opposite its name, which con-
stitute indirect outflow from the Employer during the base period:
Retail enterprises:
S. S. Kresge Co---------------------------- $3,605.00
Elder and Johnston-------------------------- 970.00
W. T. Grant Company----------------------- 622.00
F. W. Woolworth Co----------------------- 988.00
Oil and petroleum companies:
Standard Oil Company---------------------- 4,202.10
Phillips Petroleum Company----------------- 5,168.20
Gulf Oil Corporation----------------------- 32, 281.75
General contractors: V. O. Price------------------ 1,320.00
Banks: Peoples Bank---------------------------- 344.00
Other nonretail enterprises:
Top Value Enterprises, Inc------------------- 595.48
The East Dayton Tool and Die Company-------- 372. 00
Linden Tool and Manufacturing Co------------ 155.00
Allen Cartons, Inc-------------------------- 445.00
$6, 185.00
41, 652.05
1,320.00
344. 00
1, 567.48
Total--------------------------------------------- 51,068. 53
It is accordingly found that, during the base period, the Employer was engaged
in commerce within the meaning of Section 2(6) and (7) of the Act; that it had
an indirect outflow of more than $50,000, and therefore its operations meet the
Board's jurisdictional standards for nonretail enterprises; and that it would effectuate
the policies of the Act for the Board to assert jurisdiction over its operations.
B. The Respondent and its agents
The complaint alleges, the answer admits, and it is found, that the Respondent is,
and at all material times has been, a labor organization within the meaning of the Act.
The complaint alleges that, at all material times, Irvin Grefer and Robert S. Meyers
have been agents of the Respondent and its recording secretary and business rep-
resentative, respectively. The answer admits that Meyers is the Respondent's
business representative but denies that Grefer is its recording secretary and denies
that either of them are, or have been, agents of the Respondent.
At the hearing the Respondent stipulated that Meyers is its business agent, duly
elected and serving as such , and that he negotiates contracts on its behalf. Another
stipulation of the parties indicates that, in September 1960, Grefer was the Respond-
ent's financial secretary. I find the facts to be as stipulated. The evidence further
shows, and I find, that Grefer was authorized to receive dues on behalf of the Re-
spondent from its members and to sign their dues books. It is accordingly con-
cluded that Meyers and Grefer were, at all material times, agents of the Respondent
within the meaning of the Act.
C. The unfair labor practices
1. Sequence of events
On July 9, 1953, John J. Reich entered into what purports to be a partnership
agreement, hereto attached as Appendix A, with his son, Louis G. Reich, who was
then 17 years of age. Louis G. Reich entered the military service on June 13, 1955,
and was honorably discharged on June 1, 1957. Louis G. Reich worked with the
tools of the trade as a painter without incident until sometime in July 1958 . By that
time, John J. Reich had dropped out from his former membership in the Dayton
Chapter of the Painting and Decorating Contractors of America, herein called the
Association.
In July 1958 John J. Reich met with representatives of the Association and the
Respondent . Meyers acted as spokesman on behalf of the Respondent . At this
meeting Meyers told John J. Reich that the Respondent's members would not work
186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for him unless Louis G. Reich joined the Respondent. John J. Reich agreed and
Louis G. Reich joined the Respondent as an apprentice, for the purpose of enabling
him to attend apprentice painting school sponsored by the Association and the Re-
spondent with the aid of the State and Federal Governments 22 At this meeting
Meyers was shown the purported partnership agreement, Appendix A. Thereafter
Louis G. Reich attended apprentice school for two semesters, the equivalent of "two
school years [in] regular school "
In 1960 representatives of the Respondent and the Association negotiated but
failed at first to agree upon terms for a contract. On May 1 23 the Respondent struck
the members of the Association and the Employer. After about 3 weeks, the
Association and the Respondent executed a collective-bargaining agreement, and the
strike apparently ended. Three days after the employees of the Employer went back
to work, John J. Reich received an agreement identical to the one entered into
between the Association and the Respondent. A note was attached requesting John J.
Reich to sign the agreement and return it to the Respondent. He did so This
contract contained a 7-day union-security clause, and wage scales through April 30,
1962. Article XIX read, in part:
Where there is more than one person in a Contracting business or Corporation
working under this agreement, only one person shall be allowed to work with
the tools of the trade. If more than one person works with the tools of the
trade they shall be members of the Union.
Thereafter, the employees of the Employer received the wage rates set forth in
the agreement, and the Employer observed all the contract's terms, with the possible
exception of article XIX, which will be discussed at greater length hereafter.
On September 1 Grefer telephoned the residence of John J. Reich, which is also
the business office of the Employer, and left word to have Louis G. Reich appear
at the Respondent's office to pay his dues which were delinquent. On September 2
John J. Reich gave Louis G. Reich a check in the amount of $23.75 with instructions
to proceed to the Respondent's office and give the Respondent the mentioned check
covering his dues arrearage. He further instructed Louis G. Reich not to give the
Respondent the check if he would be required to pay an additional reinstatement
fee. Thereafter, Louis G. Reich went to the Respondent's hall and tendered the
check to Grefer. Grefer informed him that he would have to pay a reinstatement
fee of $5 in addition to his dues. Louis G. Reich refused to pay the reinstatement
fee and the check for the amount of the delinquent dues was not accepted by the
Respondent. On September 6 John J. Reich went to the office of the Respondent
and offered the check of $23.75 to Meyers. Meyers informed him that Louis G.
Reich would not be allowed to work until he was reinstated in the Respondent.
He added that if Louis G. Reich worked without being reinstated in the Respondent,
he would take the men out of the Employer's shop John J. Reich informed Meyers
that Louis G. Reich was a partner in the business and, therefore, did not have to
belong to the Respondent. No agreement was reached at this meeting. On the same
day, Meyers sent a letter to John J. Reich which read:
Regarding the "Union Security" Clause, in the Working Agreement which you
have signed with Painters Local #249.
This is to inform you that Louis Reich has lost his good standing membership
in Local #249.
On September 8 Kenneth J Vance and Roy Turpin, members of the Respondent
and the only employees of the Employer at that time, appeared before the Re-
spondent's executive board, herein called the Board, at Meyers' request. Meyers
informed them and the Board that they had a little trouble with John J Reich and
that Louis G. Reich was delinquent in his dues and had refused to pay the rein-
statement fee, but had offered to pay the dues. Vance and Turpin told the Board
that Louis G Reich was the "Boss" and signed payroll checks, directed them in
their duties, hired, fired, and laid off employees, and that he was a partner to John J
Reich. One of the board members read to the meeting article XIX of the agree-
ment , quoted above. Vance and Turpin suggested that, as John J. Reich did not work
with the tools of the trade, there was no reason that they could see that Louis G.
Reich could not work with the tools of the trade without being a member of the
Respondent. In response to a question, Vance stated that Louis G. Reich had not
22 At the time, Louis G. Reich was over the apprentice age At first. Meyers pointed out
that apprentices were not allowed to supervise work but he eventually agreed that
Louis G Reich could continue his supervisory duties while attending apprentice school
23 All dates hereafter refer to the Year 1960 unless otherwise noted
PAINTERS LOCAL 249, BROTHERHOOD OF PAINTERS, ETC. 187
worked since receiving Meyers' above-quoted letter. Turpin confirmed this. At
the end of the meeting it was suggested by Meyers to Vance and Turpin that they
should attend a regular meeting of the Respondent scheduled for the following night,
as the matter of John J. Reich would be taken up at that time. The meeting ended
without any formal action. Vance and Turpin then visited John J. Reich at his home
and informed him of the meeting and of their attendance.
On September 9 a regularly scheduled membership meeting of the Respondent
was held. Among others, Vance, Turpin, Meyers, and Grefer were present. After
discussion of other business, Meyers brought up the subject of trouble with John J.
Reich. He stated that Louis G. Reich had refused to pay a reinstatement fee to
the Respondent, but had tendered back dues. Grefer suggested that Louis G. Reich
be pulled from the job and the two employees of John J. Reich be allowed to work.
Meyers suggested that no member of the Respondent be allowed to work for John J.
Reich until the matter was cleared up. The following motion was then made,
seconded , and passed by the membership:
that starting September 12, 1960, we no longer work for J. Reich Paint-
ing Contractor until he complies with our working agreement.
Vance and Turpin then informed John J. Reich on the telephone that they would
not be able to work the next day as scheduled because of the motion which had been
carried at the Respondent's meeting. The next morning Vance and Turpin went to
the home of John J. Reich and again explained that they could not work for him
that day. He replied that he understood their point of view.
During the afternoon of September 13, John J. Reich and Harry D. Wright, vice
president of the Association, conferred with Meyers. During this conference John
J. Reich showed Meyers the purported partnership agreement, Appendix A, and told
Meyers that, because of this agreement, his son was a partner of several years'
standing. He then showed Meyers a pamphlet given him by the National Labor Re-
lations Board which, in part, stated that management did not have to join a labor
organization. Meyers asked John J. Reich if it was his (John J. Reich's) intention
to continue to work with the tools of the trade. John J. Reich replied that he
intended to continue to do so. Meyers stated that if Louis G. Reich "was going to
continue to work, he would have to belong to the Union." John J. Reich asked
Meyers why his employees were not working Meyers replied, "Well, they can
work for you." John J. Reich then said: "Well, [it is] funny that they are not
working. They . . . said `we are not allowed to work for you.' Do you mean
to tell me that if these men work for me that they wouldn't get fined, you wouldn't
prefer charges [against] them?" Meyers responded: "I can't answer that." John J.
Reich then stated that the Respondent "had no right to take my men away from me
being that Louis wasn't working. If Louis would have worked, then [you] would
have had some kind of a reason, but being Louis wasn't working in the shop, I
[don't] see why [you] should .pull the men." Meyers answered: "Oh, have Louis
be reinstated and join the Union and get your men back. Until that time you get
no men." At the suggestion of Wright, it was agreed to hold a meeting that night
among the members of the Association, John J. Reich, and the board of the Re-
spondent. At this meeting, which was held as scheduled, John J Reich again, ex-
hibited the purported partnership agreement, Appendix A, and informed the Board
that his son , being part of the management , according to the pamphlet which he
had received from the National Labor Relations Board, did not have to join the
Respondent. He added that he (John J. Reich) also would work with the tools of
the trade. Meyers remarked that the National Labor Relations Board pamphlet
was out of date, adding: "We don't go by that anyhow. We go by the agreement
that you signed." He further stated that "the only thing for [John J. Reich] to do
was to have Louis to come back in and be reinstated and get in good standing
with the Union and [he would] get [his] men back." John J. Reich was asked to
leave the room and it was suggested by the board that the Association take up a
collection and pay the reinstatement fee. After this, John J. Reich reentered the
room and stated that the issue was not the repayment of the reinstatement fee, but
whether Louis G. Reich was going to belong to the Respondent. Apparently the
suggestion to make a collection was dropped. One of the board members told the
meeting that the Respondent had voted that no member should work for John J.
Reich until the suspension of Louis G. Reich was settled, and further stated "It's $5
and have Louis come back into the union or no men ." John J . Reich then said
that he had been "put out of business" and warned that if he did not get men in the
morning he would have no alternative but to file charges with the National Labor
Relations Board. Meyers replied that that was his privilege, and the meeting ended.
On September 15 John J . Reich filed the instant charges. Thereafter the Re-
gional Director filed in the United States District Court for the Southern District of
188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ohio (Western Division) a petition for a temporary injunction under Section 10 (1)
of the Act; the Respondent filed an answer. The court found that there was no
reasonable cause to believe that the Respondent had violated Section 8(b)(4)(i)
and (ii) (A) of the Act and denied the petition 24
On September 30 the Respondent held a membership meeting at which the
following motion was unanimously passed:
. that we discontinue doing business with John J. Reich, Painting Contractor,
because he will not live up to our working agreement.
On the same day the Respondent wrote to John J. Reich as follows:
Painters Local No. 249 has had relations with you for an extended period of
time. Now, however, it is quite obvious that you desire to sever relations
with Painters Local No. 249 and operate your business without regard for
union conditions and restrictions.
The union accepts your repudiation of union conditions and your severance
of the relationship, and henceforth shall have no further dealings with you.
So far as the record shows, the Respondent has never picketed the place of business
of John J. Reich nor any site where he was working, nor put him on any ",unfair"
or "do not patronize" list, nor otherwise notified the public or his suppliers that it
has any dispute with him. Since September 9 neither Vance nor Turpin nor any
other member of the Respondent has worked for the Employer. The action of the
Respondent's membership of September 9, quoted above, has not, so far as the
record reveals, been amended or repealed. Several times since September 9 Vance
and Turpin discussed with Meyers the possibility of their returning to work for John
J. Reich. Meyers told them that the Respondent would "require something in
writing" that either John J. Reich or Louis G. Reich would not work with the tools
of the trade. Meyers also stated to them that "he wouldn't say it's okay to go back
to work, and he wouldn't say it's not okay to go back to work."
From September 6, when the letter from Meyers, quoted above, was received,
until October 3, Louis G. Reich performed no services whatever for John J. Reich.
It is the Respondent's present position that if Louis G. Reich does not work with
the tools of the trade, the Respondent has no interest in whether or not he is a
member of the Respondent; but if John J. Reich and Louis G. Reich both intend
to work with the tools of the trade, members of the Respondent will not work for
John J. Reich unless article XIX of the agreement, quoted above, is complied with.
2. The inducement and encouragement
a. Contentions of the parties
The complaint alleges, and the answer denies, that "since on or about September 9,
1960, the [Respondent] has engaged in a strike against the Employer, and has
ordered, directed, instructed and appealed to its members employed by the Employer
not to work for the Employer." Although it is not entirely clear from the record,
the General Counsel, in support of this allegation, presumably relies upon the motion
of September 9 and Meyers' later statements to Vance and Turpin regarding their
return to Reich's employ. Pointing out that "no picketing, or other forms of re-
straint or coercion, are involved in this case," the Respondent argues in its brief that
"those members of the [Respondent] who had been employed by Reich prior to
September 9, 1960, were not ordered nor asked to withdraw their services from
Reich. . . . No one induced the two employees . [to] withdraw their services
from the employer, and they were told that the [Respondent] was telling them
neither to work for Reich or not to work for him. The choice was theirs." Sec-
ondly, the Respondent urges that "it is not a violation of the Act to simply advise
members as to which employers have agreements with the union and which do not."
Moreover, conceding that "perhaps had they [the employees involved] worked for
Reich [after September 9] they would have been subject to disciplinary action
within the union," the Respondent maintains that any such disciplinary action would
be protected by the proviso clause contained in Section 8(b)(1)(A) of the Act.
Finally, the Respondent argues that "members of the respondent union are not obli-
gated under the Act to work for John Reich either individually or collectively."
b. Conclusions regarding inducement and encouragement
Section 8(b) (4) (i) of the Act, as amended, makes it a violation for a labor
organization or its agents-
24 Fraker v . Brotherhood of Patinters, etc, Civil No 2519 (D C. S. Ohio)
PAINTERS LOCAL 249, BROTHERHOOD OF PAINTERS, ETC. 189
to engage in, or to induce or encourage any individual employed by any person
engaged in commerce or in an industry affecting commerce to engage in, a strike
or a refusal in the course of his employment to . . . perform any services
where an object thereof is proscribed. It has been found above that the Employer
was engaged in commerce. As Vance and Turpin were employed by the Employer
on September 9 there can be no doubt, and I find, that each of them was, on that
date, an "individual employed by any person engaged in commerce" within the
meaning of the above-quoted section of the Act 25 The next question is therefore
whether the motion adopted by the Respondent's membership on September 9
induced or encouraged either of them to refuse in the course of his employment to
perform services for the Employer.
The United States Supreme Court, speaking of Section 8(b) (4) (A) of the Act, the
predecessor of the present Section 8(b) (4) (i), stated: "The words `induce or encour-
age' are broad enough to include in them every form of influence and persuasion." 26
Bearing this in mind, the Respondent's contention that "no one induced the two
employees to withdraw their services from the employer" and that "the choice was
theirs" is simply contrary to the facts and highly unrealistic. Indeed, the Respond-
ent's attorney candidly admitted at the hearing "they [Vance and Turpin] can go on
and work with [the Employer], but I am satisfied, and there is no use being naive
about it, if they do, I am satisfied that some members of the Union, officers of the
union will file charges against them, put them out of the union." In short, it is
quite clear that when the Respondent's membership passed the motion in question
they were not merely engaging in an intellectual exercise but, on the contrary, fully
intended their motion to be adhered to. Any would-be violator was impliedly
warned that the Respondent might exercise sanctions against him 27 In an industry
such as the construction industry, where good standing in a union is a valuable
asset, such a implied threat was-and must be considered as intended to be-a potent
inducement to compliance. It was highly successful here in producing the desired
action; the potency of the motion is underscored by the fact that upon its passage both
Vance and Turpin immediately dropped their jobs with the Employer like a hot
potato-not even waiting for its effective date of September 12. And this happened
despite their evident satisfaction with their employment, shown by their relatively
long period of working for the Employer 28 and their attempts to get permission from
Meyers to return thereto after September 9. Realistically, then, the only "choice"
afforded them was a "Hobson's choice": do as you have been told, or take your
chance on the consequences.
The Respondent's argument that a union does not violate the Act simply by "ad-
vising members as to which employers have agreements with the union and which
do not," whether legally correct or not, is beside the point. There is a substantial
difference between advice and a preemptory order. Here the Respondent did not
merely inform its members. It did much more. It effectively directed them to
refrain from working for the Employer until its demands had been met. In effect,
the motion of the membership was tantamount to a strike call
The Respondent's next defense, as I understand it, is that the Union had a legal
right to discipline its membership for any reason whatever, and a fortiori to threaten
such action "within the union." This right is assertedly based upon the proviso to
Section 8(b) (1) (A) of the Act, which reads:
Provided, That this paragraph shall not impair the right of a labor organization
to prescribe its own rules with respect to the acquisition or retention of mem-
bership therein. [Emphasis supplied ]
The key words in the proviso are "this paragraph"-namely, paragraph (1) of
Section 8, subsection (b). Therefore the proviso is limited by its own terms to the
same paragraph of the Act and is not applicable to the paragraph with which we
are here concerned, namely paragraph (4) of Section 8, subsection (b).29
28For a definition of "individual" see Local Union No 505, International Brotherhood
of Teamsters, etc (Carolina Lumber Company), 130 NLRB 1438
28 International Brotherhood of Electrical Workers, Local 501, at at v N L R B (Samuel
Langer), 341 U S. 694, 701-702
27 Compare Truck Drivers and Helpers Local Union No 728, etc (Genuine Parts Com-
pany), 119 NLRB 399, 407, enfd as modified, 265 F. 2d 439 (C.A. 5), cert denied
361 US. 917
20 Vance had worked for the Employer since May 1959 and Turpin since August 1959
x In support of its position in this regard the Respondent cites International Typo-
graphical Union, et at . ( American Newspaper Publishers Association ), 86 NLRB 951,
Minneapolis Star and Tribune Company, 109 NLRB 727, and Foundation Company, 120
190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is undoubtedly true, as pointed out by the Respondent, that no member of the
Respondent is obliged by the Act, or indeed by any other law, to continue to work
for the Employer against his will30 But that fact does not license any union to
induce or encourage a work stoppage for a proscribed object.
The final issue regarding inducement and encouragement is whether the Respond-
ent is legally accountable therefor. Here, the action of the membership itself con-
stituted the inducement and encouragement; the Respondent's liability therefor
cannot seriously be questioned, regardless of the agency status of Meyers or Grefer.
For the foregoing reasons it is concluded that, on September 9, 1960, the Respond-
ent induced and encouraged Vance and Turpin, individuals employed by a person
engaged in commerce, to cease working for their employer31
3. Threats, coercing, and restraint
a. Contentions of the parties
Paragraph 6 of the complaint alleges, and the answer denies, that "since on or
about September 6, 1960 , the [Respondent ], through its Agents, Grefer and Meyers,
has demanded that Louis G. Reich , one of the Co-Partners of the Employer, join
the [Respondent]." Paragraph 8 of the complaint further alleges , and the answer
denies, that ",by the acts and conduct described above , the [Respondent] . .
threatened, coerced and restrained the Employer ." The General Counsel has not
indicated in either oral argument or in his brief what specific conduct of Grefer
and Meyers he relies upon in support of these allegations. Nor has the Respondent
stated its position on this issue.32 It will be assumed, however, that the General
Counsel does not contend that paragraph 6 of the complaint, standing alone, sets
forth a violation of the Act. In other words, it will be assumed that the General
Counsel's position is that a mere demand that Louis G. Reich join the Respondent
is insufficient and that to constitute a violation of the Act there must also be some
threats, restraint, or coercion practiced on the Employer by the Respondent.
b. Conclusions regarding threats, coercion, and restraint
Section 8(b)(4)(ii) of the Act, as amended, provides that it shall be an unfair
labor practice for a labor organization or its agents "to threaten, coerce, or restrain
any person engaged in commerce or in an industry affecting commerce" where an
object thereof is prohibited.
A search of the record reveals that the following occurred: In July 1958 Meyers
told John J. Reich that the Respondent's members would not work for him unless
Louis G. Reich joined the Respondent. This took place outside the period set forth
in the complaint and is also barred by the 6-month limitation contained in Section
10(b) of the Act. It will therefore be disregarded.
On September 6, 1960, Meyers informed John J. Reich that, if Louis G. Reich
worked without being reinstated in the Respondent, he (Meyers) would take the
men out of John J. Reich's shop. This was a clear threat to strike the Employer's
shop if the Respondent's demands were not met. Again, on September 13, Meyers
told John J. Reich: "Oh, have Louis be reinstated and join the Union and get your
men back. Until that time you get no men ." Similarly, this was a threat to con-
tinue a strike already in effect against the Employer. It is found that both consti-
tute threats, coercion, and restraint 33 of John J. Reich, a person 34 engaged in com-
NLRB 1453 These cases involved alleged violations of Section 8(b) (1) of the Act, not
of Section 8(b) (4) They are therefore inapposite
3o Involuntary servitude is prohibited by the United States Constitution, thirteenth
amendment. See also Genuine Parts Company, supra, at 407.
311n reaching this conclusion I have not found it necessary to consider the conversa-
tions after September 9 between Vance and Turpin on one hand and Meyers on the other,
as findings with regard to the legal effect of these conversations would merely be cumulative
and would not in any event affect my ultimate findings, conclusions, or recommendations.
I do not conceive it to be my function as Trial Examiner to tell any party how to try
his case, and do not wish to be understood as doing so The above remarks are not in-
tended critically, but as a mere statement of fact Yet it would not be amiss to note in
passing that a little more specificity might well have lightened my burden
33 Compare United Marine Division of the National Maritime Union, AFL-CIO, Local
No 333 (D M Picton & Co , Inc ), 131 NLRB 693, where the Board held that threats
to picket constituted threats, restraint, and coercion within the meaning of Section
8(b) (4) (ii) of the Act
11 See Carolina Lumber Company, supra
PAINTERS LOCAL 249, BROTHERHOOD OF PAINTERS, ETC. 191
merce, within the meaning of Section 8(b) (4) (ii) of the Act. It is further found
that both these statements were made by Meyers as the Respondent's agent acting
within the general scope of his authority. It is accordingly concluded that on Sep-
tember 6 and 13, 1960, the Respondent threatened, coerced, and restrained John J.
Reich, a person engaged in commerce.35
4. The object
a. Contentions of the parties
The complaint, as amended at the hearing, alleges, and the answer denies, that
"Louis G. Reich and John J. Reich are co-partners, doing business as John Reich
Painting and Decorating, and/or John J. Reich; or in the alternative, John J. Reich,
sole proprietor, doing business as John Reich Painting and Decorating, and/or
John J. Reich; either hereinafter called the Employer. Louis G. Reich is a partner
and/or a managing agent of the Employer." The complaint further alleges, and the
answer denies, that an object of the inducement and encouragement and the threats,
coercion, and restraint found above was "to force or require Louis G. Reich, one of
the Co-Partners of the Employer, to join the [Respondent]." The General Counsel
argues that, as Louis G. Reich was either a partner of the Employer or its managing
agent, such an object is proscribed by the Act.
The Respondent contends that Louis G. Reich has never been a partner of his
father and therefore the object, if it was to force Louis G. Reich to reinstate his
union membership, was legal. Moreover, the Respondent points out that it is
willing to permit its members to work for the Employer if it receives a written
assurance that Louis G. Reich will not work with the tools of the trade, and that an
object of forcing an employer to cease working with the tools of the trade is ad-
mittedly legitimate. Finally, the Respondent argues that the Employer had vio-
lated article XIX of its contract with the Respondent, and the Respondent's object
was simply to compel compliance therewith. By way of rebuttal, the General Coun-
sel takes the position that article XIX of the contract "is in derogation of law"
and therefore any strike to enforce it is forbidden.
b. The nature of the Employer
Section 6(1) of the Uniform Partnership Act36 provides: "A partnership is an
association of two or more persons to carry on as co-owners a business for profit."
It has been held that there is no arbitrary test for determining the existence of a
partnership and that each case must be decided according to its own particular
facts.37 An agreement to share the profits and losses of a business venture is an
essential element of a partnership, and ordinarily is sufficient to constitute the
parties to such an agreement partners ; such joint interest may result even though one
party furnishes the capital or stock and the other contributes his labor or skill.38 An-
other test of a partnership is whether the agreement was of such a nature that each
party became the agent of the other 39
In determining whether the Employer herein is an individual proprietorship as
contended by the Respondent , or a partnership as maintained by the General Coun-
sel, these precepts must be applied . Let us start our inquiry with the purported
partnership agreement of 1953, Appendix A. On its face this document contains
all the elements of a partnership agreement, even though it does not include a
precise method for the division of profits or losses, but leaves that matter for future
determination.40 Although Meyers testified that he "never thought it [the agree-
ment] was authentic" and the Respondent's brief describes it as "an obviously
superficial document" and "a simple scrap of paper ," the fact remains that its
se In reaching this conclusion I have not considered the remark made to John J Reich
by an unidentified member of the Respondent's board on the night of September 13:
"Have Louis come back into the union or no men" That incident would merely be
cumulative and would not in any event affect my ultimate findings, conclusions, or
recommendations
s^ The Uniform Partnership Act was adopted in Ohio in 1949 See R C Sections 1775 01
to 1775.42
g' Cyrus V. Cyrus, 242 Minn. 180, 183, 64 N W. 2d 538, 541.
88 Raymond S' Roberts, Inc v. White, at al., 117 Vt. 573, 97 A. 2d 245, 248
a9 Farris v. Farris Engineering Corp., et al, 7 NJ. 487, 81 A 2d 731, 739.
4° In this respect, I respectfully disagree with the finding of the court in Fraker v.
Brotherhood of Painters, etc., supra, that the document did not establish a genuine
partnership.
192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
authenticity was not seriously challenged. There does not seem to be anything
unusual or suspicuous about a father and son entering into such an arrangement,
and I find that it is a genuine document.
Louis G. Reich was legally an infant in 1953 when he signed the partnership
agreement. It was therefore voidable as to him; he could have repudiated it
within a reasonable time after reaching majority. But, on the contrary, I find that
his conduct described below indicates that after attaining majority he ratified and
adopted the agreement.
The next issue is: Did the parties after 1953 in fact conduct their business as a
partnership? In September 1958, after Louis G. Reich returned from military
service (he then being more than 21 years of age), a checking account was opened
in the Peoples Bank of Dayton in the name of John Reich or Louis G. Reich. Funds
received from work performed by the business were deposited in this account,
ad used to pay for salaries, materials, and other expenses of the business. The
checks drawn on this account had printed on their face "John Reich, Painting &
Decorating." John J. Reich drew from this account for his personal use from about
$25 to approximately $200 per month; Louis G. Reich drew $100 every week. In
January 1960 funds totaling $9,595.54, received from Phillips Petroleum Com-
pany in payment of work done by the business were used to open a new savings
account in the State Fidelity Savings and Loan Company, in the name of John
Reich or Louis Reich. The record does not reveal whether any withdrawals were
made from this account.
Whenever it became necessary to consider increasing or decreasing the business'
total work complement, John J. Reich and Louis G. Reich conferred. If it was
decided to take on additional employees, John J. Reich so informed the Respondent.
The Respondent then sent applicants to the jobsite, where they were interviewed 41
and hired by Louis G. Reich, without further consultation with his father. If it was
decided to lay off employees, Louis G. Reich selected the individuals to be laid off,
without consulting his father. If a workman proved to be incompetent or other-
wise undesirable, Louis G. Reich discharged him on his own initiative, exercising his
independent judgment in the matter.
Other duties of the business were distributed as follows: John J. Reich figured
jobs, computed work estimates for customers, and signed contracts with them. He
also paid approximately 90 percent of the business' bills, other than payroll, and
negotiated collective-bargaining agreements and grievances with the Respondent 42
Louis G. Reich assigned employees to particular jobs, supervised the work,43 made
out the payroll, signed payroll checks, ordered and picked up materials, sometimes
signed contracts with customers for jobs, and (until September 6, 1960) worked
with the tools of the trade. Turpin testified that, while working for the Employer,
he understood Louis G. Reich to be his "boss."
The business was listed in the telephone director under "John J. Reich Painting
and Decorating." Bids were submitted to customers, and contracts for work ex-
ecuted, in the name of John J. Reich alone. Apparently checks in payment of work
completed were made out to the order of John J. Reich.44 With one exception,
customers do not appear to have been advised that the firm was a partnership. The
single exception was Gulf Oil Corporation, whose jobs constituted approximately 62
percent in value of the total of those performed by the Employer for interstate firms
during the base period. The Respondent was informed of the existence of the
partnership in July 195845
No partnership returns have ever been filed under the Internal Revenue Code by
Louis G. Reich and John J. Reich, doing business as John Reich Painting and Dec-
41 The interview consisted merely of inquiring whether the applicant had been sent by
Meyers.
'2 Pointing out that John J. Reich does the estimating, the General Counsel's brief
states that "this is the extent of his control in the partnership " I find this statement
unsupported by the record.
"Meyers testified that he first learned that Louis G. Reich "was running the job for
John Reich" when so informed by Vance and Turpin on September 8 I do not credit
this testimony. In view of the discussion in July 1958 concerning Louis G. Reich's right
to supervise work while attending apprentice school, I find that the Respondent knew of
his supervisory functions at all times after July 1958
4' This is assumed from examination of certain voucher stubs attached to payments
received
45 No signed copy of the 1960 agreement between the Respondent and the Employer is in
evidence It is therefore impossible to determine whether the parties treated the Employer
therein as an individual proprietorship or a partnership.
PAINTERS LOCAL 249, BROTHERHOOD OF PAINTERS, ETC. 193
orating. John J. Reich and Louis G. Reich have filed individual returns under the
Internal Revenue Code. Federal income tax payments have been withheld from
Louis G. Reich's weekly compensation. The firm made unemployment compensa-
tion payments and old age and survivorship payments under the Social Security Act
to cover Louis G. Reich.
In my opinion the factors indicating that Louis G. Reich was a partner of his
father outweigh those militating against the existence of such a partnership. It is
accordingly concluded that John J. Reich and Louis G. Reich are, and at all times
since at least September 1958 have been, copartners, trading as John Reich Painting
and Decorating. In view of this finding, I deem it unnecessary to pass upon the
alternative contention of the General Counsel that, even if no partnership existed,
Louis G. Reich was at least a managing agent of John J. Reich.
c. Conclusions regarding the object
Section 8(b) (4) (i) and (ii) of the Act makes it an unfair labor practice for a
union or its agents to induce or encourage any individual employed by any person
engaged in commerce to strike, or to threaten, coerce, or restrain any person engaged
in commerce-
where in either case an object thereof is:
(A) forcing or requiring any employer or self-employed person to join any
labor or employer organization... .
It has been found above that Louis G. Reich was a partner of the Employer. It
is therefore clear, and I find, that he was an "employer" within the meaning of
Section 2(2) of the Act and a "self-employed person" within the meaning of Section
8(b) (4) (i) and (ii) of the Act 46
It may well be that, had the Employer furnished the Respondent with a written
guarantee that either John J. Reich or Louis G. Reich would not work with the
tools of the trade, the strike would have been averted or, if it were in progress,
would have ended. It may also be true, as the Respondent urges, that a strike to
force an employer to cease working with the tools of the trade would not run afoul
of Section 8(b) (4) (i) or (ii) (A) of the Act. But that is beside the point, for here
there was an additional object. There can be little doubt, and it is found, that had
Louis G. Reich been willing to be reinstated as a member of the Respondent, the
strike and the threats would not have occurred. Thus, one object of the conduct
in question was to force or require Louis G. Reich to reinstate his membership in
the Respondent-an object clearly prohibited by Section 8(b) (4) (i) and (ii) (A) of
the Act. It is well settled that, to find a violation of this section of the Act, it is
not necessary to find that the sole object of the conduct in question was proscribed.
It is enough if the prohibited eventuality was an object of the activity.47
We come, then, to the Respondent's final defense: that the Employer had breached
article XIX of its contract with the Respondent, and that the Respondent's object was
merely to remedy that breach. The record shows that Louis G. Reich did not work
with the tools of the trade after he lost his good standing in the Respondent on
September 6.48 Moreover, nothing in article XIX obligated the Employer to furnish
the written promise the Respondent sought to extract. Therefore it is doubtful if
the Employer was in violation of article XIX at the time the strike or the threats
occurred. But this question need not be decided. For even assuming, as the Re-
spondent maintains, that the Employer had violated article XIX before the threats
and the strike took place, other methods of enforcing the contract might well have
been open to the Respondent. In any event , assuming article XIX's validity,49 the
method of "enforcing" that contract provision adopted by the Respondent-namely,
striking and threatening the Employer-was one forbidden by Section 8(b) (4) (i)
and (ii) (A) of the Act.
46 Compare International Brotherhood of Teamsters , Chauffeurs, Warehousemen and
Helpers of America, AFL, Local No. 911 (Lakeview Creamery Company , a copartnership),
107 NLRB 601.
47 Compare N.L R.B v. Denver Building and Construction Trades Council, et al, 341
U.S. 675, 689 ; and N L R B v. United Steelworkers of America, AFL-CIO, et at (Barry
Controls, Inc ), 250 F. 2d 184, 187 (C A. 1).
*s The work performed by Louis G. Reich on October 3, even if it violated article XIX,
occurred long after the threats and the strike Indeed, it took place after the Respondent
itself in effect abrogated the contract on September 30.
49I need not, and do not, determine whether article XIX was contrary to law, as the
General Counsel contends
194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In view of the foregoing , it is concluded that , by engaging in the above-described
conduct, an object thereof being to force or require Louis G. Reich to reinstate his
membership in the Respondent , the Respondent violated Section 8(b) (4) (i) and
(ii) (A) of the Act.
Upon the basis of the above amended findings of fact, and upon the entire record
in this case, I make the following:
AMENDED CONCLUSIONS OF LAW
1. John J. Reich and Louis G. Reich are, and at all material times have been,
copartners, doing business as John Reich Painting and Decorating. Each of them is,
and at all material times has been , an employer within the meaning of Section 2(2)
of the Act, and a self-employed person within the meaning of Section 8(b)(4)(i)
and (ii) (A) of the Act.
2. The above-named partnership is, and at all material times has been , engaged
in commerce within the meaning of Section 2(6) of the Act.
3. Painters Local Union No. 249, Brotherhood of Painters, Decorators and
Paperhangers of America , AFL-CIO, is, and at all material times has been, a labor
organization within the meaning of Section 2(5) of the Act. Robert S. Meyers and
Irving Grefer are, and at all material times have been , its agents within the meaning
of Section 8 (b) of the Act.
4. At all material times up to and including September 9, 1960, Kenneth J. Vance
and Roy Turpin were employees of the above-named partnership, and therefore
were individuals employed by a person engaged in commerce within the meaning
of Section 8(b) (4) (i) of the Act.
5. By engaging in, and inducing and encouraging Kenneth J. Vance and Roy
Turpin to engage in, a strike or refusal in the course of their employment to perform
services, with an object of forcing or requiring Louis G. Reich to reinstate his
membership in the Respondent , the Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(b) (4) (i ) (A) of the Act
6. By threatening , coercing , and restraining John J . Reich , a person engaged in
commerce, with an object of forcing or requiring Lewis G. Reich to reinstate his
membership in the Respondent , the Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(b) (4) (ii) (A) of the Act.
7. The above-described unfair labor practices tend to lead to labor disputes
burdening and obstructing commerce and the free flow of commerce, and constitute
unfair labor practices affecting commerce within the meaning of Section 2(6) and
(7) of the Act.
Upon the basis of the above amended findings of fact and amended conclusions
of law, and upon the entire record in this case, I make the following:
AMENDED RECOMMENDATIONS
As the membership motion of September 9, 1960, itself constituted inducement
and encouragement of the Employer's employees in violation of the Act, it will
be recommended that the Respondent cease and desist from giving any force or
effect to this motion. In addition, it will be recommended that the Respondent cease
and desist, by any other means, from engaging in, or inducing or encouraging any
individual employed by the Employer to engage in, a strike or refusal in the course
of his employment to perform services, where an object thereof is forcing or re-
quiring either partner of the Employer to join or become reinstated in the Respond-
ent. It will also be recommended that the Respondent cease and desist from
threatening, coercing, or restraining either partner of the Employer, where an
object thereof is forcing or requiring either partner to join or become reinstated in
the Respondent . In my opinion, there is no evidence herein indicating danger that
the Respondent might , in the future, strike or threaten other employers or self-
employed persons engaged in commerce to compel them to join the Respondent
Accordingly, it will not be recommended that the Respondent cease and desist from
such conduct with regard to any other employer.50
Affirmatively, it will be recommended that the Respondent post the usual notices
at its office and meeting places, and furnish signed copies of such notices for posting
at the Employer's office, if the Employer is willing. It will further be recommended
that the Respondent mail to Vance and Turpin, at their last known addresses, copies
of the notices.
ea Compare Communication Workers of America, AFL-CIO, et al (Ohio Consolidated
Tel. Co ) v. N.L.R.B , 362 U S. 479.
PAINTERS LOCAL 249, BROTHERHOOD OF PAINTERS, ETC. 195
It is accordingly recommended that Painters Local Union No. 249, Brotherhood
of Painters , Decorators and Paperhangers of America, AFL-CIO, Dayton, Ohio, its
officers, representatives , agents, successors , and assigns , shall:
,1. Cease and desist from:
(a) Giving any force or effect to the motion of its membership on September 9,
1960, regarding John J . Reich and Louis G. Reich, copartners , trading as John Reich
Painting and Decorating.
(b) By any other means engaging in, or inducing or encouraging any individual
employed by the above -named partnership to engage in, a strike or refusal in the
course of his employment to perform services , where an object thereof is forcing or
requiring either partner to join or become reinstated in the Respondent.
(c) Threatening , coercing , or restraining either partner of the above-named part-
nership, where an object thereof is forcing or requiring either partner to join or
become reinstated in the Respondent.
2. Take the following affirmative action , which it is found will effectuate the pur-
poses of the Act:
(a) Post at its office and meeting places copies of the notice attached hereto
marked "Appendix B." Copies of the said notice, to be furnished by the Regional
Director for the Ninth Region , shall, after being duly signed by an authorized
representative of the Respondent , be posted by the Respondent immediately upon
receipt thereof in conspicuous places at all locations where notices to members
are customarily posted , and be maintained by it for 60 consecutive days thereafter.
Reasonable steps shall be taken by the Respondent to insure that the notices are not
altered, defaced , or covered by any other material.
(b) Sign and mail sufficient copies of the said notice to the said Regional Director
for posting , the above-named partnership being willing , at all locations where notices
to its employees are customarily posted.
(c) Mail to Kenneth J . Vance and Roy Turpin , at their last known addresses,
copies of the said notice.
(d) Notify the said Regional Director , in writing , within 20 days from the receipt
of the Intermediate Report, what steps the Respondent has taken to comply herewith.
It is further recommended that unless the Respondent shall, within 20 days from
the receipt of this Intermediate Report , notify the said Regional Director , in writing,
that it will comply with the foregoing recommendations, the National Labor Rela-
tions Board issue an order requiring the Respondent to take the action aforesaid.
APPENDIX A
Articles of Agreement entered into this 9th day of July A.D. 1953 at Dayton,
Ohio by and between JOHN REICH City of 'Dayton in the County of Montgomery
and State of Ohio party of the first part and LOUIS G. REICH of Dayton in the
County of Montgomery State of Ohio party of the second part, witnesseth:
The said party of the first part in consideration of the promises and agreements
of said party of the second part herein set forth covenants and agrees that he will
devote his time, energy, and skill to the promotion and conduct of the partnership
business of the parties hereto, to the best of his ability.
In consideration whereof said party of the second part hereby promises and agrees
that he will, likewise, devote all of the time, energy, and skill that will be able to
devote, according to his circumstances and conditions and to do everything in
his power to promote the partnership business of the parties hereto.
It is further agreed by and between the parties hereto that each party shall
receive as and for benefits from the operation and conduct of the partnership busi-
ness, such division of profits and remuneration therefrom , as may be equitable, fair
and just , and as may be agreed upon between the parties.
And it is agreed by and between the parties hereto upon the consideration afore-
said , that in the case of the failure of either party to perform the things covenanted
by him that this agreement may be terminated by either party upon thirty days
written notice to the other party.
In Witness Whereof, the said parties have hereunto set their names to duplicates
hereof the day and year first above written.
Witness: (S) Louis P. FLEIG.
(S) HELEN L . FLEIG.
641795-63-vol. 136-14
(S) JOHN REICH.
(S) Louis REICH.
196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX B
NOTICE TO ALL OUR OFFICERS, REPRESENTATIVES , AGENTS , AND MEMBERS AND TO
EMPLOYEES OF JOHN J . REICH AND Louis G. REICH, COPARTNERS, TRADING AS
JOHN REICH PAINTING AND DECORATING
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended , you are notified that:
WE WILL NOT give any force or effect to the motion of our membership on
September 9, 1960 , regarding John J . Reich and Louis G. Reich , copartners,
trading as John Reich Painting and Decorating.
WE WILL NOT by any other means engage in , or induce or encourage anyone
employed by the above -described partnership to engage in, a refusal in the
course of his employment to perform any services , where an object thereof is
forcing or requiring either partner to join or become reinstated in our union.
WE WILL NOT threaten , coerce , or restrain either partner of the above-
described partnership , where an object thereof is forcing or requiring either
partner to join or become reinstated in our union.
PAINTERS LOCAL UNION No. 249, BROTHERHOOD OF
PAINTERS , DECORATORS AND PAPERHANGERS OF
AMERICA, AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
New York Mailers' Union No. 6 , International Typographical
Union, AFL-CIO [New York Herald Tribune, Inc., et al.]
and The Publishers Association of New York City. Case No.
2-CC-614. March 12, 1962
DECISION' AND ORDER
On May 12, 1961, Trial Examiner Ramey Donovan issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take affirmative action,
as set forth in the Intermediate Report attached hereto.
The Board has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The rul-
ings are hereby affirmed.' The Board has considered the Intermediate
Report, the exceptions and brief, and the entire record in this case,
1 The Trial Examiner permitted Ingram, a representative of Neo-Gravure Printing Com-
pany, to Intervene during the course of the hearing . The Respondent has excepted to the
ruling and in a separate motion has requested that Neo-Gravure be dismissed as an
Intervenor . Ingram sought intervention only to explain an affidavit which he had given
to the General Counsel on a charge brought by this Respondent against Neo-Gravure in
another Region . As the Employer whose dispute with Respondent set in motion the
violations alleged, we find that Neo -Gravure was entitled to intervene . The fact that its
Intervention came while Ingram was testifying was not prejudicial to the Respondent.
The motion to dismiss Neo-Gravure as a party is hereby denied.
136 NLRB No. 19.