United Slate, Tile & Composition , Etc., Local No. 57

National Labor Relations Board - Board Decisions

Nov 17, 1961

134 N.L.R.B. 367 (N.L.R.B. 1961)

, UNITED SLATE, TILE & COMPOSITION, ETC., LOCAL NO. 57 367
2. By discharging Raymond J . Spaeth , Daniel F . Dillon , and Robert G. Hacker
on January 6, 1961, and thereby discriminating in regard to their hire and tenure
of employment and discouraging membership in the labor organization referred to in
paragraph 1, the Respondent has engaged in unfair labor practices within the meaning
of Section 8(a) (3) and ( 1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and ( 7) of the Act.
[Recommendations omitted from publication.]
United Slate, Tile and Composition Roofers, Damp and Water-
proof Workers Association , AFL-CIO , Local Union No. 57
[Atlas Roofing Co ., Inc.] and Ernest John Hendrickson. Case
No. 12-CC-98. November 17, 1961
SUPPLEMENTAL DECISION AND ORDER
On August 16, 1961, Trial Examiner Sidney Lindner issued his
Supplemental Intermediate Report in the above-entitled proceeding,
finding that the Respondent has not engaged in unfair labor practices
alleged in the complaint and re( ormnending that the complaint be
dismissed in its entirety, as set forth in the Supplemental Intermediate
Report attached hereto. Thereafter, the General Counsel filed excep-
tions to the Supplemental Intermediate Report.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Members
Rodgers and Fanning].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Supple-
mental Intermediate Report, the exceptions, and the entire record in
the case, and hereby adopts the Trial Examiner's findings, conclusions,
and recommendations, except as noted below.'
[The Board dismissed the complaint.]
i In adopting the Trial Examiner ' s conclusion that the Respondent did not violate Sec-
tion 8 (b) (4) (u) (B) of the Act, we rely exclusively on his evidentiary finding that the
Respondent's agents , Fluck and Vernaglia , sought to accomplish their objective, which
was to get Empire to break its contract with Atlas and discontinue the use of Atlas
roofers , by persuasion and not by threats, coercion , or restraint We deem therefore
unnecessary for the disposition of the case to pass upon the Trial Examiner ' s finding that,
because the Respondent 's agents were "concerned with the threat to social institutions and
the democratic process posed by the USEA," their conduct in accomplishing their objec-
tive is not within the "pervading sense "- of this section of the Act
SUPPLEMENTAL INTERMEDIATE REPORT
- On October 26, 1960 , I issued an Intermediate Report in this proceeding recom-
mending dismissal of the General Counsel's complaint alleging the Respondent
-Union 's violation of Section 8(b)(4)(ii )(B) and Section 2(6) and (7) of the Act,
for failure of proof that the Board 's standards for assertion of jurisdiction over the-
businesses of the employers herein involved have been met. On June 23, 1961,-the
134 NLRB No. 35.
368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board issued its Decision and Order Remanding Case to the Trial Examiner (131
NLRB 1267) holding that the General Counsel had proved sufficient compliance with
the Board's jurisdictional standards to warrant assertion of jurisdiction. The Board
further ordered issuance by the Trial Examiner of a Supplemental Intermediate Re-
port setting forth findings of fact, conclusions of law, and recommendations with
respect to the unfair labor practices alleged in the complaint. Accordingly, from my
consideration of the entire record, and from my observation of the witnesses, I make
the following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
In accordance with the Board's decision in .131 NLRB 1267, I find that Empire
Development Corporation, herein called Empire, is engaged in commerce or opera-
tions affecting commerce within the meaning of the Act, and that the policies of the
Act will be effectuated by the assertion of the Board's jurisdiction in this case.
II. THE LABOR ORGANIZATION INVOLVED
United Slate , Tile and Composition Roofers, Damp and Waterproof Workers
Association , AFL-CIO, Local Union No. 57, herein called the Union , is a labor
organization within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The complaint alleges that on or about April 28 and 29, 1960, the Union, through
its agents , threatened, coerced, and restrained Empire to compel it to cease doing
business with Atlas Roofing Co., Inc., herein called Atlas, as a means of forcing
Atlas to recognize and bargain with the Union as the representative of its employees
although the Union was not certified to be their representative, and that the Union
thereby violated Section 8(b) (4) (ii) (B) of the Act. This allegation is denied by the
Union.
In April 1960, Empire was engaged in the construction of residential houses and
had subcontracted various operations involved in the building of these houses to
different firms. The roofing work had been subcontracted to Atlas whose employees
were represented by a labor organization known as United Southern Employees
Association, herein called USEA. Willard Fluck, business agent for the Union, testi-
fied that in April 1960 he passed the Empire project in the course of visiting other
nearby projects where members of the Union were employed. He stopped to learn
the name of the roofing subcontractor and was informed that Atlas had the job.
Fluck thereupon advised Robert Goldberg and David V. Weinstein, Empire's vice
president and secretary, respectively, that USEA, to which Atlas employees belonged
and by which they were represented, subscribed to anti-Semitic and anti-Negro
doctrines. There is no question in this case, for it is freely admitted by Fluck, that
he had strong feelings about USEA because of its religious and racial prejudices and
that he "attempted to do something about it in this case." It is clear beyond dispute
that what Fluck sought to accomplish was the cancellation of Empire's contract with
Atlas. The General Counsel maintains that he unlawfully proceeded to reach the
subject by threatening Empire with a work stoppage by the other employees on the
project who belonged to various building trades unions. The Union denies that Fluck
or anyone else for whose conduct it is responsible in any way directly or impliedly
threatened Empire with a work stoppage.
There were four meetings during the events of this case when the subject of the
Atlas contract was discussed with Goldberg and Weinstein, either by Fluck alone or
with his fellow business agent, Joseph Vernaglia. On one of these occasions Fluck
was accompanied by a group of business agents from the Building Trades Council of
which the Union was a member. It was in the course of these meetings that the
threat of a work stoppage allegedly occurred.
Goldberg related that at the first meeting Fluck had exposed the "undemocratic
leaning" of USEA and the thought that it would not be right for Empire to employ
roofers who belong to this organization. He recalled that he and Weinstein had
promised to check Fluck's information and if it was found to be true, they would
use another roofer. Weinstein's account of this first meeting was substantially the
same as Goldberg's. He recalled that Fluck had suggested a call to a Mr. Perlmutter
of the B'nai B 'rith Anti-Defamation League to confirm this report that USEA was
"anti-Jewish and anti-Negro."
Fluck met Goldberg and Weinstein a second time about a week or 10 days after
the first meeting. Goldberg was unable to specifically recall what transpired. Wein-
stein remembered telling Fluck that he had not been able to contact Perlmutter to
substantiate his report about USEA. He claimed Fluck said something about coming
UNITED SLATE, TILE & COMPOSITION, ETC., LOCAL NO. 57 369
in with a delegation from the other unions on the Empire project to see him.
Weinstein asked whether Fluck would specify a particular roofer as a replacement
for Atlas , but was told he had no one in mind although he could provide a list from
which Weinstein could make his own selection.
Goldberg and Weinstein testified concerning the events of a third meeting with
Fluck about 1 to 3 weeks following the second meeting. Both were present in their
office when Fluck arrived with a group of business representatives from other unions
some of whom represented craftsmen at work on the Empire project. Goldberg re-
called that on this occasion , Fluck and the other business agents presented newspaper
and magazine clippings and pamphlets to prove that USEA was anti -Semitic and anti-
Negro. Fluck and the others expressed the feeling that Empire should not employ
persons who belong to such an organization and stated that their own men should not
work beside such persons . The Carpenters' business agent, Goldberg related, threat-
ened to call his members off the job unless Atlas employees were removed. At one
point Goldberg testified that Fluck said Empire could continue to use the Atlas men if
the roofers would join the Respondent Union . At another point Goldberg testified
Fluck indicated Atlas' men could complete the work on three houses which they had
started but would not be allowed to work on others . Goldberg also testified that
someone mentioned the possibility of Hendrickson , the Atlas vice president , getting
together with Fluck to negotiate a contract with the Union and it was left to Goldberg
and Weinstein to arrange the meeting at their office.
Weinstein recalled that at the third meeting when the business agents of the
various unions were present Fluck told him he had nothing to do with the other
unions, but that they, themselves , would pull their men off the Empire job if the Atlas
employees continued to do the roofing. At Fluck's direction one of the agents
showed Weinstein certain magazines and pamphlets concerning the USEA. Then,
Weinstein testified , Fluck asked him what he was going to do about Atlas, and he
replied that he might get Atlas to sign a contract with the Union.
About a day after this last meeting , Fluck and Business Agent Vernaglia met with
Hendrickson at the Empire project. Goldberg and Weinstein were also present.
Goldberg testified that Fluck unsuccessfully sought to have Hendrickson sign a con-
tract and other papers . He further related that when Fluck spoke about a court
proceeding involving USEA he and Weinstein suggested that Atlas be permitted
to continue with Empire's houses and that if the outcome of the court case was un-
favorable to Atlas its services would be discontinued . Fluck insisted that a decision
be reached immediately about Atlas , and left the impression that unless the
Atlas employees were removed the other union tradesmen on the job would not be
permitted to work . Thereupon Goldberg and Weinstein informed Hendrickson that
Atlas could not remain on the job and within the next 2 or 3 days he gave a letter
to Atlas discontinuing its services.
Concerning this same meeting, Weinstein testified that Hendrickson refused to
sign a contract with the Union , and that he discussed other matters with Fluck and
Vernaglia pertaining to Hendrickson 's past history in the Union . Fluck and Ver-
naglia, according to Weinstein , made no threat to cause a cessation of work on the
project. They did, he related , say that they would let Atlas finish work on the
three houses which it had started but that if Atlas was to do any other work the other
unions would walk off the job. Fluck made it clear that he had no control over the
other unions and their members on the Empire job, and that if they walked off it
would be only as a consequence of the retention of the Atlas employees on the job.
Weinstein had that day called Rabbi Rosenberg at Fluck's suggestion and had sub-
stantiated Fluck's report about USEA's religious and racial prejudices . He had there-
upon decided to break off relations with Atlas, but was willing to abide by his con-
tractual obligations which called for the completion of roofing work on 12 houses by
Atlas. If in the forthcoming court proceeding USEA was not cleared of the changes
against it he would not use Atlas on the remaining Empire houses to be built. He
so informed Hendrickson . Nevertheless , Empire presented its letter within the next
2 or 3 days terminating Atlas' services at that time
Hendrickson testified that he had received a telephone call from Weinstein on the
day when the delegation from the several trade unions had visited the Empire project.
Weinstein , he said, told him a work stoppage had been threatened by the "trades"
because of their opposition to USEA . Hendrickson replied that he could straighten
out the matter and Weinstein accordingly arranged for him to be at his office the next
morning. Hendrickson arrived at the specified time and met Weinstein . Fluck and
Vernaglia arrived soon after . In an ensuing discussion Fluck and Vernaglia charged
that USEA was an anti -Semitic organization and offered documents to prove
this. Hendrickson stated he was not convinced. He suggested that he be permitted
to finish work on Empire 's first 12 houses. Fluck insisted that he could finish work
630849-62-vol 134-25
370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on the three houses on which starts had been made, but could work on no other
houses. Then he drew a paper from his pocket and said, "I have the contract here,"
whereupon Hendrickson stated he would not sign any contract as "[I] already belong
to one union and I'm not serving under two flags at one time." In the course of the
conversation Weinstein reported that he had just received verification from Rabbi
Rosenberg of the claims against USEA. Thereupon Hendrickson renewed his sug-
gestion that he be permitted to complete the 12 houses with the understanding that
he would do no further work on Empire's houses until the matter pertaining to USEA
was cleared up before the Board or elsewhere. Fluck and Vernaglia objected and
stated Atlas could continue on the Empire job only if Hendrickson signed a con-
tract with the Union. His refusal to do so ended his meeting with them. Hendrick-
son remained for a private discussion with Weinstein during which he sought to per-
suade him that the threat of a work stoppage was merely a bluff. It was then arranged
for the Atlas roofers to come to the project that afternoon. If the other men on the
job were to walk off, Hendrickson promised to discontinue his operation. Upon
arrival of the Atlas roofers that afternoon Empire's carpenter foreman told Hendrick-
son that he had orders from Weinstein not to let Atlas work on the houses. Empire
subsequently replaced Atlas with another roofing firm.
Fluck denied that he or any member of the Building Trades Council to which
the Union belonged had threatened Empire with a work stoppage. He acknowledged
that at the meeting when the business agents or the other unions went with him to the
Empire project, the business agent of the Carpenters Union had stated that his
members might "very well walk off" the job if they were required to work with USEA
members, and this because of their acquaintance with that organization But, Fluck
maintained, the Carpenters Union was not a member of the Building Trades Council
and its business agent had not come to the Empire project at the time in question
with him or at his invitation. As to the meeting the next day with Hendrickson,
Fluck testified this had been sugegsted by Weinstein who had himself expressed the
thought that Atlas might sign a contract with the Union He claimed that when he
and Vernaglia met with Hendrickson nothing was said about a work stoppage if
Atlas continued on the job. He denied that he said anything to Hendrickson about a
contract or that he had a contract on his person. All that was mentioned about
a contract was the fact that Hendrickson had in the past been involved in difficulties
with the Union and that Hendrickson would have to appear before its local executive
board before he could get a contract. This was said to Hendrickson by Vernaglia.
Fluck related that during the discussion Weinstein reappeared after he had con-
cluded a telephone conversation and stated to Hendrickson that he had just been in-
formed by Rabbi Rosenberg that what had been said about USEA was true and that
Hendrickson was "through." He and Vernaglia then left. Vernaglia's account of
this meeting was consistent with Fluck's testimony.
Norman Goldstein, business agent for Local 478 of the Laborers Union, testifying
about the meeting of the business agents with Goldberg and Weinstein, said that he
and five other business agents of other unions had accompanied Fluck to the Empire
project. He in particular had gone to this meeting because it was felt as a fellow
Jew he could speak more effectively to Goldberg and Weinstein about the anti-
Semitic character of USEA. He did most of the talking and revealed to Weinstein
the information which had been gathered about this organization particularly by
Rabbi Rosenberg. The sole purpose of the agents' visit, he stated, was to apprise
the Empire officials of these circumstances. He testified that neither he nor anyone
else at the meeting threatened to pull employees off the job for any reason Actually,
none of the laborers on the job were unionized The Carpenter's business agent,
Williams, who had not come to the meeting with him, Fluck, and their associates,
had observed that his organization was having difficulty with USEA and that they
were both involved in litigation before the Board and in Federal court. In these
circumstances, Williams expressed belief that the members of his union would not
want to work together with the roofers who belonged to USEA. Goldstein also
testified that it was Weinstein who suggested at this meeting that Fluck get to-
gether with Hendrickson the next day. Weinstein declared that if the information
which he had that day received about USEA "could be substantiated to any degree
that he would have them off there before they knew what had hit them "
Julius Sole, the business agent of the Lathers Union, had accompanied Goldstein
to the foregoing meeting. He maintained that Fluck had only introduced the business
agents and then said nothing further in the ensuing discussions. Sole's union had
no members working for Empire. He had gone with the others because of his re-
sentment against USEA. He said that as a person of Italian extraction he had been
raised with Jews and was disturbed by USEA's discrimination against the Jews,
STANDARD TRUCKING COMPANY 371
Catholics, and Negroes. He wanted to expose USEA to Goldberg and Weinstein.
Sole also denied that anyone but Williams of the Carpenters Union had said anything
about men walking off the job.
Conclusions
The testimony of Goldberg and Weinstein was inconsistent in many respects and
I am not persuaded from such testimony that either Fluck or Vernaglia threatened to
cause a work stoppage at the Empire project if Atlas was to continue to do the
roofing work. Goldberg was not sure of exactly what Fluck said during the several
conversations, but seems only to have the impression that Fluck said something about
pulling men off the job. Weinstein, conceding that neither Fluck nor Vernaglia
made any threats to cause a cessation of work on the project, nevertheless stated
he also had the impression that unless Atlas was removed there would be a work
stoppage. Such impressions on the parts of both Goldberg and Weinstein may have
come about because of what Carpenters Union Business Agent Williams said.
The record, however, is not altogeter clear that Williams made such a threat, but
even if he did, it is not attributable to the Respondent Union.
While I am convinced from the whole record that the object of Fluck as well as
the business agents of the other unions was to get Empire to break its contract with
Atlas and discontinue the use of Atlas' roofers , I am also convinced from the testi-
mony of Fluck, Vernaglia, Goldstein, and Sole, which I credit, that they attempted
to accomplish their objective solely by application of moral persuasion and not by the
use of threats, coercion , or restraint.
The conduct of the Respondent Union and its agents found above is not the sort
proscribed by Section 8(b) (4) (ii) (B) of the Act. The pervading sense of this
section of the Act relates to certain activities committed in a context of disputes
between employers and labor organizations having to do with the employment of
persons because of their affiliation or lack of affiliation in unions, or to promote the
interests of labor organizations . What Fluck and the other business agents were
seeking to accomplish with Empire was not the employment or unionists over non-
unionists or the enhancement of the prestige and welfare of their respective labor
organizations, but rather their concern with the threat to social institutions and the
democratic process posed by the USEA. They sought by their persuasion to con-
vince Goldberg and Weinstein of that peril. Such means to get Empire to cease doing
business with Atlas is not in violation of Section 8(b)(4)(ii)(B) of the Act and I
so find. Accordingly I will recommend that the complaint herein be dismissed in its
entirety.
CONCLUSIONS OF LAW
1. The operations of Empire Development Corporation constitute and affect trade,
traffic, and commerce among the several States within the meaning of Section 2(6)
and 7 of the Act.
2. United Slate, Tile, and Composition Roofers, Damp and Waterproof Workers
Association, AFL-CIO, Local Union No. 57, is a labor organization within the
meaning of Section 2(5) of the Act.
3. The Respondent Union has not engaged in unfair labor practices within the
meaning of Section 8 (b) (4) (ii) (B) of the Act.
[Recommendations omitted from publication.]
Standard Trucking Company and James Albert Pennington,
William Albert Parton , and Joseph E. McJunkin . Cases Nos.
11-CA-1691-1, 11-CA-1691-2, and 11-CA-1691-3. November 17,
1961
DECISION AND ORDER
On April 25, 1961, Trial Examiner William J. Brown issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
134 NLRB No. 39.