Roofing, Metal & Heating Associates

National Labor Relations Board - Board Decisions

Aug 20, 1991

304 N.L.R.B. 155 (N.L.R.B. 1991)

155
304 NLRB No. 30
ROOFING, METAL & HEATING ASSOCIATES
1 The Respondents have excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully ex-
amined the record and find no basis for reversing the findings.
2 In adopting the judge’s decision, we rely on Iron Workers Local 15, 298
NLRB 445 (1990), enf. denied and remanded 929 F.2d 910 (2d Cir. 1991).
We note that in rejecting the liability standard employed by the Board in that
case, the court of appeals relied on the fact that liability was being imposed
in a compliance proceeding, as opposed to the original unfair labor practice
proceeding, and the parties found liable had never been charged. In the present
case we are determining liability against charged parties in an unfair labor
practice proceeding.
In agreeing that the Union violated Sec. 8(b)(1)(A) and (2) by seeking em-
ployee Sullivan’s discharge, Member Devaney finds it unnecessary to rely on
the judge’s analysis of Shenango, Inc., 237 NLRB 1355 (1978). Even assum-
ing that Shenango privileges a union to seek an employee’s discharge over
issues of internal union politics and that Sullivan’s positions fall within
Shenango’s purview, Member Devaney would accord greater weight to Sulli-
van’s Sec. 7 interest in participating in union affairs than to the Union’s inter-
est in preventing him from running for business agent. Member Devaney notes
that the Union proffered no support for Mangini’s statement that Sullivan’s
candidacy would ‘‘tear the union apart.’’ Member Devaney would find that
the interests invoked by this unsupported statement, without more, do not out-
weigh Sullivan’s Sec. 7 rights. Compare Longshoremen ILA Local 1294 (Inter-
national Terminal), 298 NLRB 479 (1990). (Defeated candidate’s use of per-
sonal invective against successful opponent in intraunion election gave rise to
reasonable grounds to question his loyalty.)
Roofing, Metal & Heating Associates, Inc. and Mi-
chael Sullivan
Roofers Local 30, Joint Apprenticeship Fund of
Philadelphia and Vicinity and Michael Sullivan
Local 30, United Slate, Tile and Composition Roof-
ers, Damp & Waterproof Workers Association,
AFL–CIO and Michael Sullivan. Cases 4–CA–
17133, 4–CA–17139, 4–CB–5588, and 4–CB–
5589
August 20, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On December 18, 1990, Administrative Law Judge
Irwin Kaplan issued the attached decision. Respondent
Roofers Local 30, Joint Apprenticeship Fund of Phila-
delphia and Vicinity and Respondent Local 30, United
Slate, Tile and Composition Roofers, Damp & Water-
proof Workers Association, AFL–CIO filed exceptions
and supporting briefs. The General Counsel filed a
brief in response.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to adopt the judge’s rulings, findings,1 and con-
clusions.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Roofers Local 30, Joint
Apprenticeship Fund of Philadelphia and Vicinity,
Philadelphia, Pennsylvania; the Respondent, Roofing,
Metal & Heating Associates, Inc., Southhampton,
Pennsylvania, their officers, agents, successors, and as-
signs, and the Respondent, Local 30, United Slate, Tile
and Composition Roofers, Damp & Waterproof Work-
ers Association, AFL–CIO, its officers, agents, and
representatives, shall take the action set forth in the
Order.
Bruce C. Conley, Esq., and Peter G. Verrochi, Esq., for the
General Counsel.
Kathleen M. Smith, Esq. (Blackburn, Michaelman & Tyndall,
P.C.), of Philadelphia, Pennsylvania, for the Respondent
Employer.
Bruce J. Kasten, Esq. (Duane, Morris & Heckscher), of
Philadelphia, Pennsylvania, for the Respondent Fund.
Stephen C. Richman, Esq. (Markowitz & Richman), of Phila-
delphia, Pennsylvania, the Respondent Union.
DECISION
STATEMENT OF THE CASE
IRWIN KAPLAN, Administrative Law Judge. These consoli-
dated cases were heard in Philadelphia, Pennsylvania, on No-
vember 27 and 28, 1989. The underlying charges in each of
the consolidated cases were filed by Michael Sullivan (the
Charging Party) on February 4, 1988. The aforenoted charges
gave rise to an order consolidating cases, consolidated com-
plaint and notice of hearing dated August 31, 1989, which
document was amended in minor respects at the hearing.
In essence, it is alleged that on or about December 2,
1987, Local 30, United Slate, Tile and Composition Roofers,
Damp & Waterproof Workers Association, AFL–CIO (Re-
spondent Local 30 or the Union), caused the Roofers Local
30, Joint Apprenticeship Fund of Philadelphia and Vicinity
(Respondent Fund or Fund), and Roofing, Metal & Heating
Associates, Inc. (Respondent RMHA or RMHA), respec-
tively, to discharge Michael Sullivan, as a training instructor
at separate schools run by the Fund and RHMA. It is alleged
that the Respondent Local 30 took this action because Sulli-
van ‘‘was about to run for the office of Business Manager
of the Union’’ thereby violating Section 8(b)(1)(A) and (2)
of the National Labor Relations Act (the Act). Further, it is
alleged that Respondent Fund and Respondent RHMA sepa-
rately violated Section 8(a)(3) and (1) of the Act by dis-
charging said Sullivan to accommodate Respondent Local 30.
Each of the Respondents filed answers (amended at the
hearing), admitting, inter alia, certain commerce facts includ-
ing the Board’s jurisdiction over Respondent RMHA and the
labor organization status of Local 30. The Respondents de-
nied, inter alia, the Board’s jurisdiction over the Fund and
that it acted as agent for Local 30. Each Respondent also de-
nied that it committed any of the alleged unfair labor prac-
tices.
Affirmatively, the several Respondents raised various de-
fenses, some of which they all joined, and others which were
taken by one or more but less than all the Respondents. In
principal part, a composite of the various defenses turn on
whether Sullivan, as a training instructor, is an employee of
156 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Union’s members involved in commercial roofing are in Local 30; the
members performing residential roofing are in Local 30B.
the Fund and/or RMHA entitled to the protections accorded
under the Act, and whether the consolidated complaint is
barred by the doctrine of laches. The subordinate issues will
be noted infra.
On the entire record, including my observation of the de-
meanor of the witnesses and after careful consideration of the
posttrial briefs, I make the following
FINDINGS OF FACT
I. JURISDICTION
A. The Fund
The Roofing & Sheet Metal Contractors Association of
Philadelphia & Vicinity (RSMCA or Contractors Associa-
tion) is an organization composed of employer-members en-
gaged in the commercial and industrial roofing industry, and,
inter alia, represents its employer-members in negotiating and
administering collective-bargaining agreements with the
Union, the most recent of which was effective by its terms
from May 1, 1989, through April 30, 1993. The parties stipu-
lated, inter alia, that George H. DuRoss, Inc. (DuRoss) is a
Pennsylvania corporation with business offices at 7921 Ox-
ford Avenue, Philadelphia, Pennsylvania, and is engaged in
the business of roofing installation, re-roofing, and roofing
repair and since at least 1987 DeRoss has been an employer-
member of RSMCA. Since 1987, DuRoss’ gross volume of
business has, annually, exceeded $500,000 and its roofing
services directly outside the Commonwealth of Pennsylvania
has, annually, exceeded $50,000. During the aforenoted time
period, Frank P. Manfredonia has been president and owner
of DuRoss and a trustee and the management cochairman of
the trust fund noted and described below. (G.C. Exh. 10.)
Pursuant to Section 302(c)(5)(C)(6) of the Act, the
RSMCA and the Union created a trust fund (Fund), as set
forth in an Agreement and Declaration of Trust. (G.C. Exh.
4.) Under article XXXIII of their collective-bargaining agree-
ments, the employer-members of the Contractors Association
are required to make contributions to the Fund, which oper-
ates a school to provide apprentice training to individuals
employed in the commercial and industrial roofing industry
within the jurisdiction of the Union. The apprentice training
is conducted at the Union’s training facility in Westville,
New Jersey. The Fund employs and pays apprentice instruc-
tors. (For reasons discussed infra, I find that the apprentice
instructors are employees within the meaning of the Act and
not independent contractors or managerial employees.)
The Board has long treated trust funds, which are estab-
lished by unions and contractor-employers pursuant to collec-
tive-bargaining agreements, as employers within the meaning
of the Act, and has consistently asserted jurisdiction. See,
e.g., Chain Service Restaurant Employees Local 11, 132
NLRB 960, 961–963 (1961); Garment Workers Health &
Welfare Fund, 146 NLRB 790, 791–793 (1964); Joint Indus-
try Board of the Electrical Industry & Pension Committee,
238 NLRB 1398, 1405 (1978); Welfare, Pension & Vacation
Funds Local 2, 256 NLRB 1145 fn. 1, 1156 (1981); Iron
Workers Local 15, 278 NLRB 914 (1986).
Here, the Board’s jurisdictional monetary standards, either
on an inflow or outflow basis, direct or indirect, are clearly
satisfied. Thus, in addition to the stipulations regarding the
business operations of employer-member DeRoss set forth
above, it is alleged, the Respondent Fund and Respondent
Local 30 admit (Tr. 13–14), and I find, that during the past
year the Fund received collective contributions in excess of
$50,000 from employer-members of RSMCA and during the
same period, the employer-members of RSMCA, received
gross revenues in excess of $500,000 and collectively pur-
chased and received materials and supplies valued in excess
of $50,000 directly from points outside the Commonwealth
of Pennsylvania. In these circumstances, and on the basis of
the entire record, I find that the Fund is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act. See, e.g., Welfare, Pension & Vacation
Funds, supra; Chain Service Restaurant Employees Local 11,
supra.
B. RMHA
It is alleged and admitted that RMHA is, and has been at
all times material, an organization composed of employer-
members engaged in the residential roofing industry and,
inter alia, represents its employer-members in negotiating and
administering collective-bargaining agreements with the
Union (Local 30B).1 Since 1986, the offices of the RMHA
has been in Southampton, Pennsylvania. The RMHA sup-
ports a training school in Westville, New Jersey, for certain
of its members. During the past year, the employer-members
of the RMHA, in connection with its aforenoted business op-
erations, collectively had gross revenues in excess of
$500,000 and during the same period, provided services val-
ued in excess of $50,000 directly outside the Commonwealth
of Pennsylvania.
It is alleged, the Respondents admit, and I find that the
RMHA and its employer-members are and have been at all
times material herein, employers engaged in commerce with-
in the meaning of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
It is alleged, the Respondents admit, and I find, that Local
30, United Slate, Tile and Composition Roofers, Damp &
Waterproof Workers Association, AFL–CIO (the Union, Re-
spondent Union, or Local 30) is and has been at all times
material a labor organization within the meaning of Section
2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background and Sequence of Events
1. Local 30 and the Fund
The RSMCA and Local 30 have been parties to successive
collective-bargaining agreements, the last of which by its
terms is effective from May 1, 1989, through April 30, 1993.
The Union is subdivided into Local 30 and Local 30B. As
noted previously (fn. 1), Local 30 represents employees em-
ployed by commercial or industrial contractor-members of
the RSMCA; whereas, Local 30B represents employees em-
ployed by employer-members of RHMA who are engaged in
the residential roofing industry. Michael Sullivan, the Charg-
ing Party, was employed as an apprentice instructor of em-
ployee-members of both Local 30 and Local 30B. (This sec-
157ROOFING, METAL & HEATING ASSOCIATES
2 Sullivan’s testimony was largely corroberated or uncontradicted. He was
responsive with no apparent effort to embellish his testimony. In short, I was
impressed with Sullivan’s demeanor and credit his testimony in all material
respects.
tion deals principally with Local 30 and the RSMCA and a
trust fund that they jointly established; the relationship be-
tween Sullivan and Local 30B, vis-a-vis the RHMA, will be
treated separately infra.)
Back around 1980, the Union (Local 30), and the
RSMCA, established by contract, the Roofers Local 30, Joint
Apprenticeship Fund of Philadelphia and Vicinity (the Fund),
as permitted under Section 302(c)(5) and (6) of the Act. The
Fund was established, inter alia, to provide an apprenticeship
program to teach the roofing and waterproofing trade to indi-
viduals within the Union’s jurisdiction. Pursuant to article
XXXIII of the collective-bargaining agreement, and to a
Declaration of Trust referred to therein, employer-members
of the RSMCA make regular contributions to the Fund to fi-
nance the apprenticeship program. (G.C. Exh. 2.)
The Fund Agreement and Declaration of Trust provide,
inter alia, for a Board of Trustees or Joint Apprenticeship
Committee (JAC) made up of an equal number of representa-
tives designated by RSMCA and the Union ‘‘who shall be
in charge of supervising the activities and administration of
the Apprentice Fund and apprentice program.’’ (G.C. Exh. 4,
art. 2, sec. 3.) The Fund has three trustees appointed by the
RSMCA and three trustees appointed by the Union. The
trustees’ responsibilities and powers include the following:
To establish the policy and rules to which the Ap-
prentice Fund is to be operated and administered. The
Trustees shall have the power to formulate and adopt
policies, standards of apprenticeship, rules and regula-
tions in order to attain and achieve the purpose of the
Apprentice Fund. [G.C. Exh. 4, art. IV, sec. 1(a).]
In the exercise of its responsibilities, the Fund (Board of
Trustees or JAC) formulated written rules entitled ‘‘AP-
PRENTICESHIP STANDARDS FOR ROOFERS’’ (Appren-
tice Standards). (G.C. Exh. 3.) There, JAC noted that its gen-
eral duties included the ‘‘operation of an adequate appren-
ticeship program.’’ To that end, its specific duties, inter alia,
were as follows:
(a) To regulate, supervise and control all matters re-
lating to apprenticeship of the roofing trade and be the
sole agency within the jurisdiction of the Union and the
Association [RSMCA] governing apprenticeship mat-
ters.
. . . .
(d) To establish the minimum standards of education
and experience required of apprentices.
(e) To determine the quality and quantity of experi-
ence on the job which the apprentice must have to be
reasonably responsible for his obtaining it.
. . . .
(m) To recommend that each apprentice be issued a
certificate of completion by the Pennsylvania State Ap-
prenticeship Council after successfully completing ap-
prenticeship and passing such examination as required
by committee. [Id. at art. III, sec. 1.]
In addition to on-the-job training, the Apprentice Standards
require a minimum of 300 hours or classroom or school in-
struction. (Id., art. V, sec. 3 (a).) While reference is made to
the apprentice instructor, the document does not spell out the
instructor’s power. It does note that this apprentice instruc-
tion ‘‘shall be under the direction of the committee [JAC].’’
(Id. at. (c).) (The relative functions of JAC and the appren-
tice instructor will be treated more fully below.)
In or around February 1980, Richard Bozzi, was hired as
the first apprentice instructor. Initially, the apprenticeship
training was conducted at the RSMCA’S facility in Philadel-
phia, but in 1985, the school moved to a Union facility in
Westville, New Jersey, its present location. At around the
same time, the Fund decided to hire a second apprentice in-
structor. In or around August 1985, Steve Traitz, then busi-
ness manager of the Union (the highest union position) and
trustee and co-chairman of the Fund, telephoned Charging
Party Michael Sullivan regarding that second position and
the latter expressed immediate interest. In October 1985, Sul-
livan was hired to work with Bozzi, as a second apprentice
instructor. Richard Harvey, the director of roofing services
for the RSMCA and the administrator or recording secretary
of the Fund, had Sullivan complete the necessary paperwork
including the W-2 forms. (Tr. 41–42; G.C. Exh. 5.) The
Fund deducted union dues, made pension fund contributions,
and paid Sullivan and Bozzi the full journeyman’s wages and
fringe benefits. (Tr. 49.) Sullivan was paid on the basis of
a 40-hour week.
Sullivan had been a journeyman roofer since 1971. As tes-
tified by Sullivan, 2 as instructor, ‘‘I would handle classroom
instruction, theory as well as hands-on application (simulated
roofing) which we did on the floor of the mock-up room.
Some record-keeping and some general maintenance in the
training facility.’’ (Tr. 75.) In addition to class room instruc-
tion, the apprenticeship program included on-the-job training.
When the apprentices entered the program, for the most part,
they were already working for contractor-members of the
RSMCA and Sullivan did not play any role in the selection
process. While Sullivan participated with representatives of
the RSMCA (usually Harvey), and the Union at semiannual
apprentice-evaluation sessions, Sullivan’s role appears to
have been largely ministerial and there is no evidence that
he actually caused an apprentice to be dismissed from the
program. Thus, Sullivan testified that he would present at-
tendance reports and if they reflected three unexcused
absenses, that apprentice would be terminated from the pro-
gram. (Tr. 80–81.) Even as to these attendance shortcomings,
Sullivan was not certain whether he recommended that any-
one be terminated and there is no record evidence showing
that he had actually done so. (Tr. 81.)
Basically, the semiannual evaluations were to determine
whether the apprentice should be advanced to the next phase
of the program. The apprentices were required to maintain
daily and monthly reports reflecting their experience in some
15 to 20 job categories. These reports were evaluated by
Fund officials with input from the apprentice instructor. If it
was determined, at these semiannual sessions, that an appren-
tice was lacking experience regarding some aspect of his
training, a letter would go out over Harvey’s signature noti-
fying the contractor to rotate the apprentice to alleviate that
deficiency. The instructor would continue to monitor those
reports over the following months and if little was done to
broaden the apprentice’s training or to correct shortcomings,
158 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 The reports were filled out and signed by the apprentice and countersigned
by the foreman for the employer for whom the apprentice worked. The appren-
tice was charged with the responsibility of dropping the report off at class on
the first of each month. Sullivan would review and transcribe the information
onto a master copy. These reports related to work experience and not to other
difficulties on the job. (Tr. 145.)
4 Karis at times was unresponsive, equivocal, uncertain and vague, particu-
larly with regard to the circumstances of Bozzi’s hiring. For example, Karis
testified that there came a time when the Union conveyed its interest in the
school and ‘‘before I knew it there was an instructor assigned by the Union
to now run Local 30-B trainee program.’’(Tr. 341.) When Karis was pressed
further to supply more details, he could recall virtually nothing of what tran-
spired on this subject. (Tr. 3432-344.) On the basis of demeanor factors and
his overall testimony, I found Karis an unreliable witness.
5 Bozzi’s appeared somewhat as a reluctant witness. Thus, at one point, he
acknowledged that his ‘‘mind has played some tricks’’ and that ‘‘things are
vague.’’ (Tr. 245.) Thus, on balance, I find his testimony of little probative
value.
the instructor would so inform Harvey or the Union for the
Fund to take further action.3 (Tr. 133–137.)
Sullivan, as instructor, spent almost all of his time at the
training facility. On occasion, approximately four Saturdays
a year, Sullivan would assist the apprentices in the field on
charity jobs. On such occasions, a trustee would contact and
instruct Sullivan to take some apprentices to a designated
charity location to install a roof. Sullivan testified that the
apprentices worked as volunteers and that he ‘‘tr[ied] to ro-
tate it so each apprentice got an equal share of it.’’ (Tr.146–
147.)
The apprenticeship program (for Local 30 members, cov-
ers 4 years, 32 weeks a year, one night a week per class.
Sullivan testified that he was not involved in any of these
decisions and when he started as instructor, the curriculum
had already been in place. The usual incoming class com-
prised from 20 to 30 apprentices. There is no classroom in-
struction during the summer months. Sullivan was paid, as
an apprentice instructor, on the basis of 52 weeks a year.
During the summer period, Sullivan continued to work at the
school, preparing classes for the fall, preparing manuals, xe-
roxing material, and performing some maintenance.
2. RMHA
As noted above, the RMHA is an association of roofing
contractors in the residential Roofing industry. Unlike the
RSMCA, whose members are in the commercial or industrial
roofing industry, the RMHA’s training program had not been
expressly conducted pursuant to any collective-bargaining
agreement. (At the time of the instant hearing, the RMHA
training program was inoperative.) Rather, the program was
instituted unilaterally by the RHMA without the assistance of
its bargaining counterpart, Local 30B. While the RMHA-
Local 30B collective-bargaining agreement sets up an ‘‘In-
dustry Fund,’’ the provision indicates that it is essentially to
defray expenses of the association and is silent in terms of
supporting any apprenticeship program. (G.C. Exh. 7, art.
XXII, pp. 34–36) Pursuant to that provision, employer-mem-
bers now contribute 10 cents per hour for each hour of work
(up from .06—id. at p. 34, art. XXIII), to meet the various
expenses of the RMHA.
The RMHA training program commenced 1n 1977 or
1988 to upgrade the quality of work of employees working
for employer-members of the association. During the early
years of the training program, the fund incurred few ex-
penses. As testified by Joseph Spitzer, executive secretary
and chief officer of the RMHA, ‘‘Basically, our only ex-
penses were coffee and doughnuts at the end of the evening
and some small expenditures for training material.’’ (Tr.
207.) The program was essentially voluntary and the contrac-
tors or officers and directors contributed their services. The
RMHA had free use of the Union’s facility known as
McCullough Hall to conduct the program. The program was
known as Roofers Advanced Training School (RATS).
Joseph Karis, president and a director of the RMHA,
played a major role in instituting the program. He was, inter
alia, the principal instructor and solicited the services of
other contractors to assist in the training. During the early
years, the Union did not play any role in the program. In or
around 1983, the RATS program was moved to the RSMCA
school facility where Bozzi was the apprentice instructor. For
an unspecified number of months, the RATS program contin-
ued to function much as it had when it was conducted at
McCullough Hall without assistance from the Union. Karis
continued to be the principal instructor for that program and
since classes were at the same facility as the Fund’s school,
this gave him the opportunity to observe the competence and
teaching skills of Bozzi. After about a year, Bozzi was re-
tained as the instructor for the RATS program.
The record is far from clear as to the circumstances re-
garding the Union’s involvement in that program, as well as
Bozzi’s hiring. According to Karis, the Union hired Bozzi for
the RATS program and the RHMA basically acquiesced in
that decision.4 Bozzi was of the view that the decision to
hire him resulted from discussions between then Union Busi-
ness Manager Jack Kinkade and Karis.5 Previously, the
RMHA conducted a 6-month training program which under
Bozzi’s stewardship was extended to 2 years. Bozzi, was
paid by RMHA, a flat rate which reached $150 for each
class. The RHMA did not deduct taxes or make other deduc-
tions (unlike the RSMCA). He conducted one class, one
night a week for local 30B-RHMA and three classes, three
nights a week for apprentices within the jurisdiction of Local
30 (JAC or the Fund).
In September or October 1986, Bozzi, who was then con-
templating dropping the Local 30B-RHMA job, asked Sulli-
van about his interest in taking over that class to which the
latter was most receptive. Bozzi recommended Sullivan to
Michael Mangini, then acting business manager (Traitz was
under house arrest) and Robert Crosley, then a union execu-
tive board member and trustee of the Fund, to replace him
as instructor of the RHMA program and they indicated their
approval. (TR. 86–87.) Around December 1986, Michael
Donnelly and Paul Rys, both officers of the RHMA, and ac-
tive supporters of the training program, told Sullivan what
they hoped to have covered in class. In January 1987, Sulli-
van replaced Bozzi for that program and that month he pre-
sided over his first Local 30B-RMHA class. Bozzi and Sulli-
van continued their instructional work for the Fund. At that
time both schools were conducted at the Union’s facility in
Westville, New Jersey.
Donnelly and Rys attended virtually every Local 30B class
taught by Sullivan. According to Sullivan, Donnelly, and Rys
monitored what he was doing and would make recommenda-
tions which he would follow. While basically, the curriculum
for Locals 30 and 30B were similar, Local 30B roofers were
also trained on slate, tile, and shingles, areas in which Sulli-
159ROOFING, METAL & HEATING ASSOCIATES
6 All dates refer to 1987, unless otherwise indicated.
7 Sullivan erroneously noted that he met with Harvey on ‘‘Tuesday, Decem-
ber 2nd’’; whereas, that Tuesday was the first day of the month.
van was not skilled. Thus, Sullivan needed assistance from
Donnelly, Rys, occasionally Karis and other residential roof-
ing contractors. After each class, Sullivan, inter alia, would
go over the material covered that evening with Donnelly and
Rys, discuss the strengths and weaknesses of the trainees,
and check with those RMHA officials whether supplies were
needed which were paid for by the RMHA.
It is undisputed that Sullivan performed his duties to the
full satisfaction of the RMHA. Similarly, JAC had no com-
plaints regarding Sullivan’s performance as apprentice in-
structor of the Fund’s program. Yet, he was dismissed as in-
structor of both programs. As noted previously, it is alleged
that this action was taken because Sullivan indicated his in-
tentions to run for the office of union business agent. Both
the Fund and RHMA denied that it was involved in the hir-
ing or firing of Sullivan and attributed decisions solely to the
Union. The Union contended, inter alia, that any action taken
by union officials were in their capacity as trustees of JAC
and not as agents on behalf of the Union. Sullivan’s alleged
protected concerted activity and the circumstances of his dis-
charge are treated below.
3. Sullivan’s decision to run for union office and the
loss of his position as instructor
In November 1987, a number of union officials, including
Business Manager Stephen Traitz, Assistant Business Man-
ager Michael Mangini, and Robert Crosley, a union execu-
tive board member and a trustee of the Fund, were convicted
of criminal charges and forced to resign their positions with
the Union. At the time of his conviction, Mangini had al-
ready effectively taken the place of Traitz (who had been
under house arrest), as head of the Union and became acting
business manager and co-chairman of JAC. On November
30, 1987,6 Sullivan decided to run for business manager.
That same day, Sullivan stopped in at the Fund’s office and
informed Harvey of his decision to run for that union posi-
tion. The following day, Tuesday, December 1,7 Sullivan
called Mangini (then still acting business manager and co-
chairman of the Fund), to advise him of that decision. Ac-
cording to Sullivan, Mangini told him the he would lose the
election and the that the victor would be displeased with him
(Sullivan) for opposing him in the election. (Tr. 102.)
(Mangini was still serving his conviction at the time of trial
and did not testify.)
Approximately one-half hour after Sullivan informed
Mangini that he had decided to run for business manager, the
former received a telephone call from Joseph Kinkade, a
business agent for Local 30 and Local 30B to set up a meet-
ing to discuss Sullivan’s decision to run for office. They met
in the parking lot at the Westville facility later that day. Sul-
livan remained in his car along with Bozzi. Kinkade came
up to Sullivan and told him that it would be better for the
Union if he withdrew from the race. Sullivan made it clear
that he would not withdraw. Kinkade spent some 5 to 10
minutes attempting to dissuade Sullivan from running and fi-
nally walked away. That evening, at the RHMA class, Sulli-
van also told Donnelly and Rys of his decision to run for
business agent and they wished him good luck and added
that they hope he knew what he was doing.
Harvey testified that shortly before lunch on December 2,
Mangini called him and told him that Sullivan and Bozzi
were through as instructors and to prepare their pay checks.
Assertedly, Harvey responded that he did not have such au-
thority and that he would have to consult with the other em-
ployer-trustees. Mangini told Harvey to get back to him be-
fore the end of the day. Later that day, Harvey called
Mangini and informed him that while the employer-trustees
did not take any position, they had no grounds to oppose the
decision and would proceed with processing the terminations.
(Tr. 46.) That same day, Harvey also called Sullivan, at
home, and notified him that he and Bozzi were terminated.
(Tr. 109.) Bozzi testified that Mangini called him at home
and informed him that he and Sullivan were terminated, as
instructors, and that he (Bozzi), had to return the JAC car
which the latter had been allowed to use. According to
Bozzi, Mangini told him that he was taking this action be-
cause Bozzi was supporting Sullivan’s campaign for union
office. (Tr. 247–248.) Within a few days, Sullivan and Bozzi
received 2 weeks’ severance pay. The checks were cosigned
by Harvey and Mangini. (Tr. 47.)
At around the same time, Sullivan also lost his job, as in-
structor, for the RMHA-Local 30B school. Rys testified that
he had called the Union on another matter and learned from
Kinkade that Sullivan would no longer be the instructor be-
cause he joined an opposing slate of candidates in the up-
coming Union election. Rys, in turn, informed RHMA Exec-
utive Secretary Joseph Spitzer.
The evening of December 2, Sullivan was nominated to
run for Business Manager as well as his entire slate of nine
officers and executive board members to run against Joseph
Crosley and the entire ‘‘Crosley slate.’’ (Joseph Crosley is
the brother of Robert Crosley, a former business agent who
was one of the thirteen union officials convicted in Novem-
ber.) The election was held on December 21 with the entire
Crosley slate victorious. By letter dated January 21, 1988,
Spitzer wrote to newly elected Local 30-Business Manager
Joseph Crosley pointing out, inter alia, that Sullivan was a
‘‘highly competent, dedicated instructor,’’ and as such, urged
Crosley, ‘‘to reconsider Sullivan’s firing and [to] restore him
to his former status.’’ (G.C. Exh. 8) This was not done. Mi-
chael Donnarumma was hired to replace Sullivan, as the in-
structor, at both the Local 30-Fund school, as well as at the
Local 30-B RMHA school.
B. Discussion and Conclusions
The essence of the General Counsel’s case is that Sullivan,
as an apprentice and training instructor, was an employee
within the meaning of the Act, entitled to the protections
thereunder and, that he was unlawfully terminated for run-
ning for union office. The Respondents raise a number of
threshold issues, any of which, if sustained, would nec-
essarily preclude findings of unfair labor practices. Thus, the
Respondents variously raise the equitable defense of laches;
that Sullivan was a managerial or confidential employee or
an independent contractor thereby excluding him from cov-
erage under the Act; and, that Sullivan, as instructor, enjoyed
a union appointive position. In this latter regard, the Re-
spondents contend that manifestations of disloyalty such as
running for union office against the wishes of the then cur-
160 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 Counsel for the Respondent Union merely represented that the attorneys
of these convicted former officers ‘‘would not allow us to discuss any of these
matters with them.’’ He did not proffer any documentation in support thereof
nor did he otherwise relate the steps he had taken, if any, to interview these
potential witnesses. (Tr. 19.)
rent union officers is not protected activity. These threshold
issues will be addressed first.
1. Laches
The underlying unfair labor practices charges (ULP’s) in
the instant case were filed on February 4, 1988. Those
charges led to a consolidated complaint which issued on Au-
gust 31, 1989, or approximately 19 months later. Counsel for
the Respondent Union argues that ‘‘the result was an inordi-
nate delay before the issuance of the Complaint and a result-
ing prejudice to the position of the Union in these proceed-
ings.’’ (R. U. br. at 11.) Respondent Fund joined in the lach-
es defense.
At the instant hearing, counsel for the General Counsel
represented that there were several outstanding contempt or-
ders against the Respondent Union and that the Regional Di-
rector withheld further formal action on the instant charges
involving Sullivan’s discharge, to consider whether said
charges fell within the scope of those contempt orders. Ac-
cordingly, the matter was referred to the Contempt Litigation
Branch of the General Counsel and a decision was subse-
quently made to proceed with the instant case independently
of the contempt litigation. (Tr. 26.) Counsel for the Respond-
ent Union noted that he had not been previously informed
that the instant Sullivan matter was considered as a possible
contempt case, a fact acknowledged by counsel for the Gen-
eral Counsel. (Tr. 27.)
The elements of proof required by the equitable defense of
laches are ‘‘(1) lack of diligence by the party against whom
the defense is asserted, and (2) prejudice to the party assert-
ing the defense.’’ Costello v. U.S., 365 U.S. 265, 282 (1961).
However, it has long been observed that the defense of lach-
es does not lie against the Board, as as agency of the United
States Government. NLRB V. Rutter-Rex Mfg. Co., 396 U.S.
258 (1969); Consolidated Casinos Corp., 266 NLRB 938,
992 (1983); Merrell M. Williams, 265 NLRB 506, 508
(1982); and Aircraft Upholstering Co., 228 NLRB 462
(1977). Counsel for Respondent Fund’s reliance on Northern
Stevedoring & Handling Corp., 143 NLRB 8 (1963), is
clearly misplaced and factually distinguishable. While there,
the Board noted, inter alia, the length of time which had
elapsed since the filing of charges and the issuance of the
complaint, it also noted that the disputed contractual provi-
sions were no longer in effect and that the General Counsel
did not oppose dismissal of the complaint. In any event, I
find for reasons noted below, that the record falls far short
of establishing the elements noted in Costello that are critical
to sustain a laches defense.
According to counsel for the Respondent Union, after the
filing of the instant ULP’s, Mangini, who was acting busi-
ness manager of the Union as well as co-chairman of the
JAC and who was alleged to be principally responsible for
Sullivan’s termination, ‘‘was incarcerated and was not avail-
able to the Local Union to prepare its defense to these
charges.’’ While Mangini was convicted of a number of
crimes in December 1987, there is no showing on this record
that he was incarcerated at any time prior to May 1989, or,
approximately 13 months after the instant charges were filed.
In this regard, the record disclosed that Mangini was ordered
to report May 5, 1989 to the ‘‘designated institution’’ to
serve his sentence. (U. Exh. 1.) Thus, I fail to discern how
the Respondents suffered prejudice, particularly in the ab-
sence of any showing that Mangini was in fact inaccessible
over a 13-month period. As for the General Counsel’s failure
to inform Respondents that it was contemplating linkage of
the instant case to outstanding contempt orders, I find, with-
out more, that this should not have caused the Respondents
to change any position to its detriment. Surely such consider-
ation by the General Counsel, along with any concomitant
delay is not tantamount to misleading any of the Respond-
ents that the General Counsel was no longer interested in ac-
tively pursuing the instant charges.
In rejecting the notion that the Respondents suffered preju-
dice by the delay in the issuance of the complaint, I also
note that there is a dearth of evidence tending to show what
efforts were made, if any, to attain Mangini’s cooperation or
to secure his release or the cooperation or release of other
former convicted union officers for the limited purpose of
providing evidence or testifying in this proceeding.8 Nor
have any of the Respondents made an offer of proof, to the
effect, that had any of these potential witnesses testified, that
they would have have materially rebutted the General Coun-
sel’s case. As will be noted below with regard to the sub-
stantive protected activity allegation, the weight of the evi-
dence is impressive and patently clear that Mangini played
a major role in the decision to terminate Sullivan because he
decided to run for union office.
In view of the foregoing and on the entire state of this
record, I find that the Respondents’ efforts showing prejudice
are, at best, obscure and fall short of justifying invoking the
doctrine of laches as a defense either factually or as a matter
of law. Accordingly, the defense of laches is rejected.
2. Whether Sullivan was a managerial or
confidential employee
The Fund
It is well settled that managerial employees are exempted
from coverage under the Act. NLRB v. Bell Aerospace Co.,
416 U.S. 267, 275 (1947); NLRB v. Yeshiva University, 444
U.S. 672, 682 (1980). In Bell, the Court observed with ap-
proval the Board’s exclusion of ‘‘managerial employees’’ de-
fined as those who ‘‘formulate and effectuate management
policies by making operative the decisions of their em-
ployer.’’ Supra at 288. In Yeshiva, the Court held that mana-
gerial employees ‘‘must exercise discretion within, or even
independently of established employer policy and must be
aligned with management.’’ Supra at 683. In the instant case,
I find that the record failed to demonstrate that Sullivan pos-
sessed the authority to exercise the kind of discretion in any
meaningful sense, independent of established management
policy, to justify characterizing his instructor’s position as
managerial in nature. He clearly was not involved in formu-
lating management policies. On the other hand, the record
disclosed that Sullivan, as an instructor and union member,
shared certain common interests with other unit employees
which tend to militate against a managerial status finding.
The record disclosed that Sullivan had become a journey-
man back in 1971 and since that time he has retained his
161ROOFING, METAL & HEATING ASSOCIATES
9 The only apparent exception is with regard to charity work when the in-
structor assisted apprentices in the field. On these occasions, the apprentices
worked as volunteers and rotated so that the work was distributed equally. In
all, this charity work amounted to approximately four Saturdays a year.
membership in Local 30. Since becoming an instructor in
October 1985, Sullivan had received the full journeyman’s
wages and fringe package that unit employees received under
the associationwide Local 30 contracts. Thus, the Fund made
deductions and contributions for the health, welfare, and pen-
sion funds; the prepaid legal fund; and the vacation fund.
The Fund also deducted union dues from Sullivan’s wages.
With regard to the discretion Sullivan possessed as an ap-
prentice instructor, the credited testimony revealed that it was
minimal, covering minor expenditures, such as the occasional
purchase of paper for certain routine clerical functions for
which he would be reimbursed. As noted above, Sullivan did
not exercise discretion independent of JAC’s written (the
fund agreement and declaration of trust) or established poli-
cies. See Milwaukee Children’s Hospital Assn., 255 NLRB
1009, 1013–1014 (1981). He had no authority to select any
of the candidates for the school nor could he dismiss any one
from the program. His input to the JAC regarding the dismis-
sal of apprentices related almost entirely to poor attendance
as reflected in monthly attendance reports in violation of the
Fund’s rules. Thus, three unexcused absences required dis-
missal. (Tr. 80–81.)
While Sullivan attended the semiannual evaluation ses-
sions, these meetings were conducted largely to review and
ensure that apprentices received training in all phases of
roofers’ work. In this regard, if it were determined that an
apprentice was deficient in a particular area, a form letter
over Harvey’s signature would be sent to the contractor re-
questing that the apprentice be rotated to gain more experi-
ence in that phase of the roofers work found to be deficient.
(Tr. 135–136.) These work reports were signed by both the
apprentice and the foreman on the job and submitted to the
instructor. The instructor would transcribe the data on to a
master card which disclosed the apprentice’s experience. Sul-
livan did not as a rule visit the jobsites9 and could not trans-
fer an apprentice from one job to another.
Sullivan’s job was mainly to provide classroom instruc-
tion, theory as well as hands-on application (simulated roof-
ing), at the training facility. When he was hired, a curriculum
was already in place. He did not attend Fund or trustee meet-
ings other than for the limited purpose of the semiannual re-
view and evaluation of apprentices, as noted above. Clearly,
finding a technical or industrial instructor, as here, in a non-
academic setting, to be an employee within the meaning of
the Act, is not without precedent. See, e.g., Iron Workers
Local 15, 278 NLRB 914 (1986); National Cash Register
Co., 95 NLRB 27, 32 (1951); New England Telephone &
Telegraph Co., 100 NLRB 643, 645 (1952); Heintz Mfg. Co.,
100 NLRB 1521, 1526 (1952). On the basis of the entire
record, noting particularly, that Sullivan spent the great bulk
of his time as an instructor with virtually no power or au-
thority to act autonomously in any meaningful sense or devi-
ate from the Fund’s or the JAC’s established policies, I reject
the contention that Sullivan, as an apprentice instructor, was
so aligned with management to justify denying him rights
guaranteed employees under the Act. Accordingly, I find that
Sullivan was not a managerial employee.
Turning to the Fund’s contention that Sullivan should be
denied the protections accorded by the Act on the basis that
he functioned as a confidential employee, I find that this po-
sition is also unsupported by the record and is otherwise un-
tenable.
First, it is noted that the Fund had neither raised this issue
in its answer or at the hearing. In any event, it acknowledged
that under Board law, citing Peavey Co., 249 NLRB 853
(1980), confidential employees are covered under the Act.
(Fund’s Br. at 21.) While the Fund urges that I apply certain
decisions of U.S. courts of appeals which have taken con-
trary positions, I am bound to honor still viable Board law.
See Iowa Beef Packers, 144 NLRB 615, 616 (1963); Speco
Corp., 298 NLRB 439 (1990). However, even on the merits,
for reasons noted below, the record falls short of establishing
that Sullivan was a confidential employee.
Thus, the record failed to disclose that Sullivan acted in
a confidential capacity to persons in charge of the Fund’s
labor relations policies. In this connection, it is noted, inter
alia, that none of the apprentices are directly employees of
the Fund. Further, without more, I do not find that Sullivan
was a confidential employee merely because he was involved
in recordkeeping and attended semiannual evaluation meet-
ings. Those records reflected essentially objective data and
any recommendations by him in connection therewith were
dictated by the policies of the Fund, i.e., three unexcused ab-
sences mean automatic dismissal from the program. See, e.g.,
Milwaukee Children’s Hospital Assn., supra at 1013–1014;
Heintz Mfg. Co., supra. Moreover, there was no showing that
labor relations was discussed at these meetings. In short, I
find that Sullivan was not a confidential employee.
3. Whether Sullivan was an independent contractor
RMHA
The RMHA denies that it exerted employer-like control
over Sullivan sufficient to attach liability for his dismissal as
instructor. In its brief, the RMHA made a ‘‘right to control’’
analysis without actually calling Sullivan an independent
contractor to support its contention that Sullivan was not its
employee. The record disclosed both, a number of factors
tending to support and militate against this position.
The Board has long applied the common law, right-of-con-
trol test in determining whether an individual is an employee
or independent contractor. NLRB v. United Insurance Co.,
390 U.S. 254 (1968); Prentiss & Carlisle Co., 230 NLRB
373, 374 (1977); Aetna Freight Lines, 194 NLRB 740 fn. 2
(1971). An employer-employee relationship is found to exist,
where the employer reserves the right to control not only as
to the ends to be achieved but also as to the means to
achieve such ends. See Edward Blankstein Inc., 245 NLRB
951, 955 (1979). It has long been observed that the applica-
tion of this test is not a ‘‘perfunctory exercise’’ but demands
a balancing of all the evidence relevant to the relationship.
Deaton, Inc., 187 NLRB 780, 781 (1971); Edward
Blankstein Inc., supra; see also Big East Conference, 282
NLRB 335, 342 (1986).
As noted above, the record revealed a number of factors
tending to negate the employer-employee relationship, as
contended by the RMHA. Clearly, the relationship between
the RMHA and Sullivan and the Local 30B training school
on one hand and on the other that of the RSMCA or the
162 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 Also reflecting on the control over the training program by the RMHA
is its unilateral decision to discontinue that program.
Fund in dealing with Sullivan and the Local 30 apprentice
school, was substantially different; the former program was
far less structured. Thus, the Fund, unlike the RMHA, was
established by a collective-bargaining agreement containing a
declaration of trust which, inter alia, provided for a joint
committee of employer and union trustees (JAC) to regulate,
supervise, and control all matters related to the school and
the apprenticeship program. The collective-bargaining agree-
ment between the RMHA and Local 30B does not contain
any provision for the establishment of an apprenticeship pro-
gram and is otherwise silent on this subject.
The RMHA training program was instituted to upgrade the
quality of work of employees employed by RHMA members.
The program was largely informal and initially, the instruc-
tors were employer-members of the RMHA who volunteered
their time and certain resources. From the program’s incep-
tion in 1977 or 1978 to until sometime in 1983, the Union
played no role. In or around 1983, Bozzi became the first
paid instructor for the RHMA. While the circumstances are
unclear regarding the Union’s subsequent role, according to
Karis, the Union hired Bozzi, and the RMHA merely acqui-
esced in that decision. In 1987, Sullivan replaced Bozzi as
the instructor with the latter’s recommendation and the bless-
ing of the union’s officers. Again, the record is unclear
whether the RHMA played any role in the hiring of Sullivan
but in any event it did not object and was familiar with his
qualifications. Unlike the arrangements with the Fund, nei-
ther Bozzi nor Sullivan had deductions taken from their pay;
instead, both were paid the same flat rate for each class of
instruction. Nor did the RMHA provide fringe benefits or ob-
tain insurance or bonding for its instructors. According to
Respondent RMHA: ‘‘ Once the union became involved with
the training program the role of the RMHA was limited sole-
ly to the issuance of payment to the instructors by the
Union.’’ (R. RMHA Br. at 4.)
While the factors relied on by the RMHA are not incon-
sequential and have some appeal, I find still other prominent
factors which tend to support the employer-employee rela-
tionship and that its involvement with Sullivan and the train-
ing program, was significantly greater than merely providing
a paycheck. For example, contrary to the RMHA, I find that
a careful reading of the record disclosed that the RMHA did
in fact oversee Sullivan’s work. In this regard, Sullivan
credibly testified that after the decision was made to hire him
but before he had his first Local 30B class Donnelly and Rys
(both directors and officers of the RMHA) told him what
they expected him to cover in class. Donnelly and Rys also
attended virtually every class and they met with Sullivan
after each session to go over the work covered and to deter-
mine the agenda for the following week as well as deciding
whether additional materials were needed. Sullivan did not
possess the knowledge or broad range of skills in residential
roofing that he had in commercial roofing and at times re-
quired help from Donnelly, Rys and other roofing contractors
in instructing the class.
Another factor relied on by Respondent RMHA in denying
the employer-employee relationship is that, assertedly, it was
not involved in evaluating Sullivan’s performance. While the
RHMA may not have have evaluated Sullivan in a formal or
conventional sense, it closely monitored his work and, in ef-
fect, was evaluating his performance indirectly day by day.
Thus, it is noted, inter alia, that the RMHA was always
pleased with Sullivan’s performance as reflected in a letter
to the Union to get Sullivan reinstated at the school. There,
Executive Secretary Spitzer wrote, inter alia, ‘‘Mr. Sullivan
had been teaching our training class (emphasis added) for
one year. . . . We have always found [him] to be a highly
competent, dedicated instructor.’’ (G.C. Exh. 8.) While it ap-
pears that the Union was principally (if not entirely) involved
in the decision to hire and fire Sullivan it also appears that
the RMHA elected to accommodate and to defer such deci-
sions to the Union; that is not the same as saying that the
RMHA was powerless to act otherwise.
The funds to pay for school materials, the instructor’s sal-
ary, and the rent for the school facility were all provided by
the RHMA out of the contractor-members contributions to
the general industry fund. Thus, it is undisputed that the
‘‘RMHA bore the cost of the program.’’ (R. RMHA Br. at
8) The fact that the RMHA did not provide fringe benefits,
take out taxes, or or make payroll deductions are not uncom-
mon in employment relationships and is not controlling in
deciding independent contractor status. Herald Star, 227
NLRB 505, 506–507 (1976); Edward Blankstein Inc., supra
at 956. Moreover, Sullivan was already receiving all the
fringe benefits from the Fund which unit members received
under the RRMCA-Local 30 collective-bargaining agreement.
On balancing a plethora of factors, many of which are
noted above and on assessing the total record, noting particu-
larly the daily active involvement and control in the training
program by RHMA directors and officers,10 I reject the no-
tion that Sullivan functioned as an independent contractor.
Conversely, I find that the RMHA employed Sullivan as an
employee within the meaning of the Act.
4. Whether Sullivan occupied a union
appointive position
The Respondents asserted that Sullivan occupied a union
appointive position and relying largely on Shenango Inc.,
237 NLRB 1355 (1978), contend that even if he were dis-
charged for political activity, such discharge was privileged
and not violative of the Act.
First, I am unpersuaded and reject the notion that Sullivan,
as instructor, possessed the responsibilities and functions,
vis-a-vis the union, similar to those of the plant safety com-
mittee chairman in Shenango or, those of shop stewards or
business agents in other cases where the Board and the
courts have treated loyalty to the union as a legitimate con-
sideration and permitted unions to terminate various staff
members for dissident activities. Compare Finnegan v. Leu,
456 U.S. 431 (1982) (union business agents); Rutledge v.
Aluminum Workers, 737 F.2d 965 (11th Cir. 1984) (director
of union’s regional office); Longshoremen ILA Local 1294
(International Terminal), 298 NLRB 479 (1990) (safety
man); Teamsters Local 282 (General Contractors), 280
NLRB 733 (1986) (shop stewards).
Here, unlike the cases relied on by Respondents, Sullivan
was without any authority to carry out any collective-bar-
gaining responsibilities on behalf of the Union or its mem-
bers in dealing with his employers. His job was to teach and
train apprentices for the Fund and to improve the quality of
work of employees of contractor-members of the RMHA.
163ROOFING, METAL & HEATING ASSOCIATES
11 Harvey, the administrator or recording-secretary of the Fund, testified that
with the departure of Steve Traitz, ‘‘Mangini became the figure at Local 30
with whom you spoke.’’ (Tr. 62.)
12 The RMHA perceived the Union to be responsible for Sullivan’s ouster.
Thus, Executive Secretary Joseph Spitzer wrote to the newly elected Union
Business Manager Joseph Crosley urging him to reconsider and reinstate Sulli-
van. (G.C. Exh. 8.)
While Sullivan, on rare occasion, may have provided his
classes with information about the Union, there is no show-
ing that it was required or part of Sullivan’s job; any ‘‘pep
talk’’ or otherwise promoting the Union were provided by
the union officers and not Sullivan. The latter barely touched
on this subject and only incidentally. As Sullivan credibly
testified, without contradiction: ‘‘We may touch on it, if they
[the students], would ask me a question on it. . . . I would
answer them. But [only] once in a blue moon we would hit
on that [subject].’’ (Tr. 151.)
Nor do I find the fact that Sullivan, on approximately four
Saturday’s a year, provided assistance to apprentices on
union sponsored charity projects in the circumstances of this
case, significantly alters the nature of the instructor’s position
to that of a union official. In this regard it is noted that the
charity program was voluntary and the apprentices on such
jobs were rotated so that the work was distributed as equally,
as possible. As for the decision to hire and discharge Sulli-
van, as noted previously, I find that the Fund and the RMHA
elected to go along and to defer to the Union’s wishes but
not that they were powerless to take any other course of ac-
tion. Of greater significance, is that Sullivan was employed
by the Fund and the RMHA and was not a union employee.
See, e.g., Welfare & Pension Funds, 251 NLRB 1241
(1980). Cf. Retail Clerks Local 770, 208 NLRB 356 (1974)
(union employees were not protected for engaging in dis-
sident activities).
Further, Shenango and related cases are misplaced for the
additional reason that they involve removing a person from
serving in a representative status on behalf of the union and
unit employees in dealing with the employer and, not as
here, dissolving a person’s employment status. In sum, I find
that factually Sullivan did not hold an appointive union posi-
tion within the meaning of Shenango and its progeny. Ac-
cordingly, the Union was not privileged, under the Act to
cause his discharge.
5. Whether Sullivan was discharged over his decision
to run for union office
The record clearly disclosed that Michael Mangini was
chiefly responsible for Sullivan’s demise as instructor on De-
cember 2, 1987, at both the Fund and the RMHA schools.
Mangini, at the time, served as acting business manager, and
concomitantly, the de facto head of the Union.11 It is undis-
puted that Mangini took this action because Sullivan an-
nounced that he would run for the vacant business manager’s
position in opposition to Mangini’s preferred candidate. In
this regard, Sullivan and co-instructor Bozzi testified credibly
and without contradiction that Mangini admitted as much in
phone conversations to them separately on December 2. Har-
vey testified that Mangini telephoned him on December 2
and instructed him to terminate the apprentice instructors and
to prepare their termination checks (one day after Sullivan
informed Mangini of his decision to run for union office).
As noted above, Mangini’s role in Sullivan’s discharge
and the nexus to Sullivan’s decision to run for union office
is not challenged. However, the Respondent Union denies
any responsibility for Mangini’s actions which it asserts was
taken solely in his capacity as co-chairman of JAC, a sepa-
rate and distinct legal entity and not in his capacity as a
union official. The record persuades me otherwise. While
Mangini served as a Fund trustee, the record is completely
devoid of any suggestion that he was displeased with Sulli-
van’s performance as an instructor or employee of the Fund.
On the contrary, Sullivan, as instructor, performed to the full
satisfaction of the Fund as well as of the RMHA. Thus, there
is no connection between Sullivan’s performance as an em-
ployee and his dismissal. Why then did Mangini take this ac-
tion? The answer is inescapable, and I find, that Mangini
acted solely in the interest of the Union as he perceived it
to be and clearly not in any trustee capacity. In support
thereof, the record disclosed that when Sullivan informed
Mangini, as the acting head of the Union of his decision to
be a candidate, the latter responded by intimating certain un-
specified reprisals. (Tr. 102.) Mangini clearly preferred the
opposing slate of candidates advising Sullivan that ‘‘we got
a guy that can beat you and this guy is not going to like you
too much when he gets in there.’’ (Tr. 102.) He also cau-
tioned Sullivan not to ‘‘knock’’ him during the campaign.
(Tr. 138.)
In rejecting the Union’s denial of responsibility for its role
in causing the ouster of Sullivan, it is also noted that ap-
proximately one half-hour after Sullivan first informed
Mangini of his decision, the former was contacted by Union
Business Agent Joseph Kinkade who wanted to meet with
him to discuss his candidacy. Later that same day, Kinkade
unsuccessfully pressed Sullivan to withdraw his candidacy
telling him that by running, he would be tearing the union
apart. (Tr. 104.) Sullivan was terminated the next day. As in-
dicated above, there is no pretense that the Union’s action
was taken for any reason other than Sullivan’s decision to
run for union office. Kinkade (business agent for Local 30
and 30B) also admitted as much by revealing to Paul Rys,
vice president of the RMHA, that Sullivan was no longer the
instructor because ‘‘[he] is on the opposing slate’’ in the up-
coming election.12 (Tr. 328.)
Having found that the Union caused Sullivan’s termi-
nation, I turn now to consider the role of the Fund and the
RMHA. Both Employers denied any responsibility for dis-
charging Sullivan, attributing the action solely to the Union.
In this connection, the record disclosed, and I find that nei-
ther Employer displayed the slightest animus toward Sullivan
for his dissident activities. In fact, both the Fund and the
RMHA were reluctant to go along; the RMHA, for its part
(as noted previously) wrote to the Union asking it ‘‘to recon-
sider [Sullivan’s] firing and to restore him to his former sta-
tus.’’ (See fn. 12, supra.) Nonetheless, in the circumstances
of this case, the fact that the Union had been delegated (at
least impliedly) the principal role in hiring and firing the in-
structors, does not, by itself, relieve the Fund or RHMA of
employer status or responsibility, particularly here, where
each employer sufficiently controlled and paid for their re-
spective programs, both knew of Sullivan’s candidacy, and
also knew that the Union’s action flowed therefrom. See
Wolf Trap Foundation, 287 NLRB 1040 (1988).
164 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 Rys and Donnelly, RMHA union officers, also acknowledged that they
believed that Sullivan was a candidate for union office before he was termi-
nated. With regard to the Fund, the record disclosed, inter alia, that Sullivan
told Harvey of his candidacy and warned him that he would be accountable
if adverse action were taken against him.
14 It appears that Respondent RMHA at some unspecified date discontinued
ts training program. If in fact that occurred, the RMHA’s liability would be
tolled as of that date. However, as this matter was not documented or other-
wise litigated, I recommend that any finding thereon be determined at the
compliance stage.
15 The Union’s backpay liability shall terminate 5 days after it notifies Re-
spondent Fund, Respondent RSMA and Sullivan that it has no objection to
said Sullivan’s reinstatement to his former instructor’s position. See, e.g.,
Q.V.L. Construction, Inc., supra at 1097 fn. 9.
16 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
In view of the foregoing, and the entire record, I find that
counsel for the General Counsel has demonstrated all the ele-
ments of a prima facia discriminatory discharge: protected
activity, employer knowledge,13 animus (supplied by the Re-
spondent Union) and timing (one day after informing Re-
spondents of the dissident activity) and further, that the Re-
spondents had not come forward to demonstrate that Sullivan
would have been discharged notwithstanding his protected
activities. Wright Line, 251 NLRB 1083 (1980).
Accordingly, I find that the Union by causing the Fund
and the RMHA to go along with its decision to terminate
Sullivan as instructor violated Section 8(b)(1)(A) and (2) of
the Act and, a fortiori, in the circumstances of this case, the
Fund and the RMHA, by so accommodating the Union, vio-
lated Section 8(a)(1) and (3) of the Act.
CONCLUSIONS OF LAW
1. The Respondent Fund is, and has been at all times ma-
terial, an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
2. The Respondent RMHA and its employer-members are,
and have been at all times material, employers engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
3. The Respondent Union is, and has been at all times ma-
terial, a labor organization within the meaning of Section
2(5) of the Act.
4. The Respondent Union, by attempting to cause and
causing the Respondent Fund and Respondent RMHA to ter-
minate Michael Sullivan as instructor, engaged in unfair
labor practices within the meaning of Section 8(b)(1)(A) and
(2) of the Act.
5. The Respondent Fund violated Section 8(a)(3) and (1)
of the Act by accommodating the Respondent Union, in dis-
charging its employee, Michael Sullivan, because he had en-
gaged in protected intraunion political activities.
6. The Respondent RMHA violated Section 8(a)(3) and (1)
of the Act by accommodating the Respondent Union in dis-
charging its employee, Michael Sullivan, because he had en-
gaged in protected concerted activities.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent Union has engaged in
certain unfair labor practices and concomitantly, that Re-
spondent Fund and Respondent RMHA have engaged in cer-
tain other unfair labor practices, I shall recommend that Re-
spondents be required to cease and desist therefrom and take
certain action designed to effectuate the policies of the Act.
Having found that Respondent Union was responsible for
causing Michael Sullivan to lose his position as instructor for
Respondents’ Fund and RMHA respectively, I shall rec-
ommend that it cease and desist therefrom and to notify Mi-
chael Sullivan, Respondent Fund, and Respondent RMHA,
respectively and separately, in writing, that it has no objec-
tion to said Sullivan’s reinstatement to his former position.
See, e.g., Q.V.L. Construction, Inc., 260 NLRB 1096, 1097
(1982); Operating Engineers Local 138, 233 NLRB 267
272–273 (1978).
Further, having found that Respondent Fund and Respond-
ent RMHA had unlawfully accommodated or deferred to the
Respondent Union’s unlawful action, I shall recommend that
the Employer-Respondents offer Michael Sullivan immediate
reinstatement to his former position, discharging if necessary
any employee hired to replace him.14 As I have found that
the Respondent Union alone displayed animus and that it
was principally responsible for Sullivan’s termination (Re-
spondent-employers, without any animus reluctantly, albeit
wrongfully, merely acceded to the Respondent Union’s in-
structions), I find that the Act will best be effectuated by
holding the Respondent Union primarily liable for any loss
of pay Sullivan sustained as a result of its unlawful action
against him. See, e.g., Alberici-Fruin-Colnon, 226 NLRB
1315, 1324 (1976). Accordingly, I recommend that the Re-
spondent Union in conjunction with the Respondent Fund, on
one hand, and the Respondent Union in conjunction with Re-
spondent RMHA, on the other, with the Respondent Union
primarily liable, shall be ordered to make Sullivan whole for
any loss of earnings, with interest, resulting from Respond-
ents’ unlawful action.15 Backpay shall be computed as pre-
scribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with
interest in the manner prescribed in New Horizons for the
Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended16
ORDER
A. The Respondent, Roofers Local 30, Joint Apprentice-
ship Fund of Philadelphia and Vicinity (Respondent Fund),
Philadelphia, Pennsylvania, its officers, agents, and represent-
atives, shall
1. Cease and desist from
(a) Acceding to the demand of Local 30, United Slate, Tile
and Composition Roofers, Damp & Waterproof Workers As-
sociation, AFL–CIO (Respondent Union), to discharge Mi-
chael Sullivan or any other employee for exercising their
rights to engage in intraunion political activities protected
under Section 7 of the Act.
(b) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the rights guaranteed them
in Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
165ROOFING, METAL & HEATING ASSOCIATES
17 If this Order is enforced by a judgment of a United States court of ap-
peals, the words in the notice reading ‘‘Posted by Order of the National Labor
Relations Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United
States Court of Appeals Enforcing an Order of the National Labor Relations
Board.’’
18 See fn. 17.
19 See fn.17.
(a) Offer Michael Sullivan immediate and full reinstate-
ment to his former position as apprentice instructor, without
prejudice to his seniority or any other rights or privileges
previously enjoyed, discharging, if necessary, any person
hired to replace him and, in conjunction with Respondent
Union, with Respondent Union primarily liable, make him
whole for any loss of earnings and other benefits suffered as
a result of his unlawful discharge, in the manner set forth in
the section of this decision entitled ‘‘The Remedy.’’
(b) Preserve and, on request, make available to the Board
or its agents, for examination and copying, all payroll
records, social security payment records, and reports, and all
other records necessary to analyze the amount of backpay
due under the terms of this Order.
(c) Post at the training facility in Westville, New Jersey,
copies of the attached notice marked ‘‘Appendix A.’’17 Cop-
ies of the notice, on forms provided by the Regional Direc-
tor, for Region 4, after being signed by a representative of
the Respondent Fund, shall be posted immediately upon re-
ceipt and maintained by the Respondent Fund for 60 con-
secutive days in conspicuous places, including all places
where notices are customarily posted. Reasonable steps shall
be taken to ensure that said notices are not altered, defaced,
or covered by any other material.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent Fund
has taken to comply.
B. The Respondent, Roofing, Metal & Heating Associates,
Inc. (Respondent RMHA), Southhampton, Pennsylvania, its
officers, agents, and representatives, shall
1. Cease and desist from
(a) Acceding to the demand of Respondent Union to dis-
charge Michael Sullivan or any other employee for exercis-
ing their rights to engage in intraunion political activities
protected under Section 7 of the Act.
(b) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the rights guaranteed them
in Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Michael Sullivan immediate and full reinstate-
ment to his former position as training instructor, without
prejudice to his seniority or any other rights or privileges
previously enjoyed, discharging, if necessary, any person
hired to replace him and, in conjunction with Respondent
Union, with Respondent Union primarily liable, make him
whole for any loss of earnings and other benefits suffered as
a result of his unlawful discharge, in the manner set forth in
the section of this decision entitled ‘‘The Remedy.’’
(b) Preserve and, on request, make available to the Board
or its agents, for examination and copying, all payroll
records, social security payment records, and reports, and all
other records necessary to analyze the amount of backpay
due under the terms of this Order.
(c) Post at the training facility in Westville, New Jersey,
copies of the attached notice marked ‘‘Appendix B.’’ 18 Cop-
ies of the notice, on forms provided by the Regional Director
for Region 4, after being signed by a representative of the
Respondent RMHA, shall be posted immediately upon re-
ceipt and maintained by the Respondent Fund for 60 con-
secutive days in conspicuous places, including all places
where notices are customarily posted. Reasonable steps shall
be taken to ensure that the notices are not altered, defaced,
or covered by any other material.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps Respondent RMHA
has taken to comply.
C. The Respondent, Local 30, United Slate, Tile and Com-
position Roofers, Damp & Waterproof Workers Association,
AFL–CIO (Respondent Union), its officers, agents, and rep-
resentatives, shall
1. Cease and desist from
(a) Causing or attempting to cause the Fund, the RMHA,
or any other employer to discharge Michael Sullivan or any
other employee employed by them for exercising their rights
to engage in intraunion political activity.
(b) In any like or related manner interfering with, restrain-
ing, or coercing members in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Notify the Fund and the RMHA in writing, with a
copy to Michael Sullivan, that the Respondent Union has no
objection to the employment of Sullivan as apprentice in-
structor or training instructor at the Westville, New Jersey
training facility, and simultaneously request the Fund and the
RMHA to reinstate Sullivan to his former position as instruc-
tor.
(b) In conjunction with Respondent Fund and Respondent
RMHA, with Respondent Union primarily liable, make Mi-
chael Sullivan whole for any loss of earnings he may have
suffered by reason of his unlawful discharge, in the manner
set forth in the section of this decision entitled ‘‘The Rem-
edy.’’
(c) Post at its office and meeting halls frequented by its
members copies of the attached notice marked ‘‘Appendix
C.’’19 Copies of the notice, on forms provided by the Re-
gional Director for Region 4, after being signed by a rep-
resentative of Respondent Union, shall be posted imme-
diately upon receipt and maintained by the Respondent
Union for 60 consecutive days in conspicuous places where
notices are customarily posted. Reasonable steps shall be
taken to ensure that the notices are not altered, defaced, or
covered by any other material.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent Union
has taken to comply.
166 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT accede to the demand of Local 30, United
Slate, Tile and Composition Roofers, Damp & Waterproof
Workers Association, AFL–CIO (Respondent Union) to dis-
charge Michael Sullivan or any other employee for exercis-
ing their rights to engage in intraunion political activities
protected under Section 7 of the Act.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the rights guaranteed
them in Section 7 of the Act.
WE WILL offer Michael Sullivan immediate and full rein-
statement to his former position as apprentice instructor dis-
charging, if necessary, any person hired to replace him and,
WE WILL, in conjunction with Respondent Union, with the
Respondent Union primarily liable, make Michael Sullivan
whole for any loss of earnings or other benefits he may have
lost as a result of his unlawful discharge.
ROOFERS LOCAL 30, JOINT APPRENTICESHIP
FUND OF PHILADELPHIA AND VICINITY
APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT accede to the demand of Local 30, United
Slate, Tile and Composition Roofers, Damp & Waterproof
Workers Association (Respondent Union) to discharge Mi-
chael Sullivan or any other employee for exercising their
rights to engage in intraunion political activities protected
under Section 7 of the Act.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the rights guaranteed
them in Section 7 of the Act.
WE WILL offer Michael Sullivan immediate and full rein-
statement to his former position as training instructor without
prejudice to his seniority or any other rights and privileges
previously enjoyed, discharging, if necessary any person
hired to replace him and WE WILL, in conjunction with Re-
spondent Union, with Respondent Union primarily liable,
make him whole for any loss of earnings and other benefits
suffered as a result of his unlawful discharge.
ROOFING, METAL & HEATING ASSOCIATES,
INC.
APPENDIX C
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT cause or attempt to cause Roofers Local 30,
Joint Apprenticeship Fund of Philadelphia and Vicinity (Re-
spondent Fund) or Roofing, Metal & Heating Associates, Inc.
(Respondent RMHA) to discharge Michael Sullivan or any
other employee employed by them for exercising their rights
to engage in intraunion political activities protected under
Section 7 of the Act.
WE WILL not object to Respondent Fund or Respondent
RMHA reinstating Michael Sullivan to his former position as
apprentice and/or training instructor.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the rights guaranteed
them in Section 7 of the Act.
WE WILL notify Respondent Fund and Respondent RMHA,
in writing, with a copy to Michael Sullivan, that we have no
objection to the employment of Michael Sullivan as appren-
tice and/or training instructor in their respective schools, and
WE WILL simultaneously request Respondent Fund and Re-
spondent RMHA to reinstate Sullivan to his former position.
WE WILL, in conjunction with Respondent Fund and Re-
spondent RMHA, with ourselves primarily liable, make Mi-
chael Sullivan whole for any loss of earnings and other bene-
fits he may have lost as a result of our unlawful action
against him.
LOCAL 30, UNITED SLATE, TILE AND COM-
POSITION ROOFERS, DAMP & WATERPROOF
WORKERS ASSOCIATION, AFL–CIO.