Westwood Plumbers

National Labor Relations Board - Board Decisions

Dec 30, 1958

122 N.L.R.B. 726 (N.L.R.B. 1958)

726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
arise Riddle would report it to the Employer 's vice president . The matter would
then be investigated and a decision made as a result of the investigation.
As the agreed -upon unit specifically includes garage employees and as the evi-
dence does not indicate that Riddle's job is supervisory , the Regional Director
recommends that the challenge to his ballot be overruled.
Thelma Riddle is an inspector whose job it is to examine bottles for defects.
She is the wife of W. W. Riddle, an alleged supervisor . While there may be some
doubt about W. W. Riddle's supervisory status, the evidence is clear that Riddle
has no stock or other financial investment in the Company.
As Thelma Riddle is not employed by her parent or spouse2 and as her job is
within the unit agreed upon by the parties , the Regional Director recommends
that the challenge to her ballot be overruled.
With regard to the remaining challenges-Route Managers E. H. and W. L.
Bowling , Production and Maintenance Supervisor W. W. Riddle, and Checker
Brice Fonvielle-the Employer has presented evidence tending to show that these
persons have no supervisory authority as defined in Section 2(11) of the Act. The
Petitioner , on the other hand, presented evidence which, if credited, indicates that
the four have supervisory authority . Under the circumstances , it appears that such
conflicting testimony can best be resolved on the basis of record testimony.
The Regional Director therefore recommends that the ballots of 0. C. Mangum,
W. C. Riddle, and Thelma Riddle be opened and counted . If these ballots do not
prove , to be determinative , it is further recommended that the Board direct a hear-
ing for the purpose of resolving the conflict in evidence concerning E. H. and
W. L. Bowling , W. W. Riddle, and Brice Fonvielle.
2 Antierican Steel Buck Corporation , 107 NLRB 554.
Westwood Plumbers and Harold W. Deem
Plumbers and Steamfitters Local Union 545, AFL-CIO and
Harold W. Deem . Cases Nos. 21-CA-2752 and 21-CB-938.
December 30, 1958
DECISION AND ORDER
On April 4, 1958, Trial Examiner David F. Doyle issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain un-
fair labor practices and recommending that they cease and desist
therefrom and take certain affirmative action, as set forth in the
copy of the Intermediate Report attached hereto. Thereafter, the
Respondent Union filed exceptions to the Intermediate Report, and
a supporting brief.
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
Intermediate Report, the exceptions and brief, and the entire record
in the case, and hereby adopts the findings, conclusions,, and recom-
mendations of the Trial Examiner.
ORDER
Upon the entire record in the case,'and pursuant to Section 10(c)
of the"Sational Labor Relations Act, as. Amended, the .National
122 NLRB No. 91.
WESTWOOD PLUMBERS 727
Labor Relations Board hereby' orders that Harry «T.' Bronson,
d/b,/a Westwood Plumbers and Culver Plumbers, Los Angeles,
California, his officers, agents, successors, and assigns shall:
1. Cease and desist from :
(a) Encouraging membership in Plumbers and Steamfitters Local
Union 545, AFL-CIO, or in any other labor organization of" his
employees, by discriminating against employees in violation of Sect
tio'n 8(a) (3) of the At, or by any other discriminatory practices.
(b) In any like or similar manner, interfering with, restraining,
or coercing his employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action which the Board finds
will ' effectuate the policies of the Act :
(a) Make whole Harold W. Deem for any loss of earnings suf-
fered in the manner set forth in the section of the Intermediate
Report entitled "The Remedy."
(b) Offer to Harold W. Deem immediate and full reinstatement
to his former or substantially equivalent position without prejudice
to his seniority or other rights and privileges.
(c) Upon request, make available to the Board or its agents for
examination or copying, all payroll records, social security payment
records, timecards, personnel records and reports, and all other
records necessary or useful to an analysis of back pay due under the
terms of this Order.
(d) Post at his shop at Los Angeles, California, copies of the
notice attached to the Intermediate Report marked "Appendix A."1
Copies of such notice, to be furnished by the Regional Director for
the Twenty-first Region, shall, after being duly signed by a repre-
sentative of the Employer, be posted immediately upon receipt
thereof and maintained by it for sixty (60) consecutive days there-
after in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be taken
to insure that such notices are not altered, defaced, or covered by
other material.
(e) Post at the same places and under the same conditions as
set forth in (d) above, and as soon as they are forwarded by the
Regional Director, copies of. the Respondent Union's notice at-
tached to the Intermediate Report marked "Appendix B."
(f) Notify the Regional Director for the Twenty-first Region, in
writing, within ten (10) days from the date of this Order as to
what steps the Employer has taken to, comply herewith.
:'This notice shall be amended by substituting for the words "The Recommendations of
a Trial Examiner" the words "A Decision and Order." In the event that this Order is
enforced by a decree of a United States Court of Appeals, the notice shall be further
amended by substituting for the words "Pursuant to a Decision and Order" the words
"Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the same considerations, the Board orders that Plumbers
and Steamfitters Local Union 545, AFL-CIO, its officers, representa-
tives, and agents, shall:
1. Cease and desist from :
(a) Causing or attempting to cause the Employer to discriminate
against any of his employees because such employees are not mem-
bers of the above-named labor organization.
(b) Restraining or coercing employees of the Employer in the
exercise of their rights under Section 7 of the Act.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Make whole Harold W. Deem for any loss of pay suffered by
reason of the discrimination against him in the manner set forth
in the section of the Intermediate Report entitled "The Remedy."
(b) Notify the Employer, in writing, sending a copy to Harold W.
Deem, that the Union withdraws its objection to his employment
as a plumber, and requests the Employer to offer Deem immediate
and full reinstatement to his former or an equivalent position.
(c) Post at all its business offices in the Los Angeles, California,
area, copies of the notice attached to the Intermediate Report
marked "Appendix B."2 Copies of such notice, to be furnished by
the Regional Director for the Twenty-first Region, shall, after being
signed by a representative of the said Union, be posted by it
immediately upon receipt thereof and maintained by it for sixty
(60) consecutive days thereafter in conspicuous places, including
all places where notices to members are customarily posted. Reason-
able steps shall be taken to insure that such notices are not altered,
defaced, or covered by other material.
(d) Mail to the Regional Director signed copies of Appendix B
for posting by Respondent Employer, at its Los Angeles, Cali-
fornia, shop, as provided above. Copies of said notice, to be fur-
nished by the Regional Director, shall, after being duly signed by
Respondent Union's representative, be forthwith returned to said
Regional Director for such posting.
(e) Notify the Regional Director for the Twenty-first Region
in writing, within ten (10) days from the date of this Order, what
steps it has taken to comply herewith.
2 See footnote 1.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges filed by Harold W. Deem , the General Counsel of the National
Labor Relations Board issued a consolidated complaint , and notice of hearing
therein , on October 1,6, 1957, against Westwood Plumbers and Plumbers and Steam-
WESTWOOD PLUMBERS 729
fitters Local Union . 545, AFL-CIO.' The complaint ,, in substance , alleged that
Westwood had discriminatorily discharged Deem, and that the Union had caused
the discharge.
SUMMARY JUDGMENT AND MOTION TO VACATE
On October 16, 1957, the complaint and notice of hearing herein were duly
served on the parties .2 Thereafter the Union duly filed its answer denying that
it had committed the unfair labor practices alleged in the complaint . However,
Westwood failed to file an answer pursuant to the Rules and Regulations of the
Board, and on November 21 counsel for the General Counsel filed with the
Regional Director , Twenty-first Region (Los Angeles , California), a motion for
summary judgment against Westwood on the ground that Westwood was in default.
In due course the motion was referred to the Trial Examiner for a decision. On
November 27, the duly designated Trial Examiner herein, granted the General
Counsel's motion , and entered a summary judgment against Westwood in accord-
ance with the Board 's Rules and Regulations and established precedent.
The summary judgment found that Westwood was in default ; and therefore, as
to Westwood , all the allegations of the consolidated complaint were deemed to be
admitted as true, and the facts found to be, as stated therein. The judgment also
directed that the hearing on the consolidated complaint and the answer of the
Union proceed on December 2, as scheduled in the notice of hearing. The judg-
ment also stated that in due course the Trial Examiner would issue such Inter-
mediate Report and Recommended Order as he deemed appropriate on the basis
of the summary judgment. It is embodied herein.
Pursuant to the notice aforesaid , a hearing was held before the Trial Examiner
on December 2 at Los Angeles , California . At the opening of the hearing counsel
for Westwood appeared specially for the purpose of moving to vacate the sum-
mary judgment . Counsel for Westwood stated that Harold W. Bronson, owner
of Westwood , had no prior experience with the Board , or with its procedures, and
that he was unfamiliar with his rights . Counsel stated that Bronson had not con-
sulted counsel in the matter until after the summary judgment had been entered,
when for the first time he presented the documents to counsel and sought his
advice. Counsel stated that those facts constituted the only basis for his motion
to vacate the summary judgment.
Speaking on the motion , the General Counsel stated that the complaint was
served on October 16 , and that the period for answer expired on October 26,
according to the Rules and Regulations of the Board. On October 31 he noticed
that Westwood had not interposed an answer, so he phoned Bronson and reminded
him that the Rules and Regulations required that an answer be filed within 10
days. General Counsel told Bronson that he would give the latter an additional
few days to answer in the proceedings . Bronson asked the General Counsel to
wait, while he located the complaint and other papers which were in his office.
When they were found , Bronson and the General Counsel continued their con-
versation . Bronson asked for the General Counsel's advice in the matter. The
General Counsel told him that most people in a similar position retained a lawyer.
Bronson replied that he did not want a lawyer, as that would cost him more than
the case was worth, and that he did not wish to spend the time involved in dis-
cussing the case with a lawyer. The General Counsel then explained the nature
of a respondent 's answer as required by the Rules and Regulations . Bronson
ordered his secretary to listen on a telephone extension , and record in shorthand
the General Counsel 's instructions-that the answer was to admit or deny the
allegations in every numbered paragraph of the consolidated complaint . Later in
the day the General Counsel phoned Bronson again , and informed Bronson and
his secretary that the original of the answer had to be signed and sworn to.
Counsel for Westwood replied that the General Counsel 's statement of this con-
versation was substantially correct , but that Bronson believed that he could come
to the hearing personally, and explain his position without prejudice , without in-
terposing an answer . The Trial Examiner then denied the motion to vacate the
summary judgment , on the ground that no sufficient cause therefor had been shown.
Counsel for Westwood thereupon left the hearing and the proceeding continued
against the Union.
In this Report the Respondent Union is referred to as the Union or Local 545;
Westwood Plumbers, as Westwood, and a second company named 'Culver Plumbers, as
Culver ; the General Counsel of the Board and his representatives at the hearing, as the
General Counsel ; the National Labor Relations Board, as the Board ; and the Labor
Management Relations Act of 1947, as amended, as the' Act.
®All dates in this Report are in the year 1957, unless noted otherwise.
730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All remaining parties were represented thereafter and were afforded opportunity
to examine and cross-examine witnesses and to introduce evidence relevant to the
issues. The General Counsel argued the issues orally and the Union has pre=
sented a brief which has been considered: .
From my observation of the' witnesses, and upon the entire record in z the case,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF WESTWOOD ; THE PLUMBING -HEATING
AND PIPING EMPLOYERS COUNCIL
It was stipulated by the parties, and I find, that Harry W. Bronson is the owner
and proprietor of the company known by the firm name of Westwood Plumbers.
The company has its principal place of business in Los Angeles, California, where
it is engaged in the business of selling, installing, and repairing plumbing, heating,
and piping equipment.
Westwood, at all times pertinent hereto, was a member of Plumbing-Heating
and Piping Employers Council of Southern California, Inc., a California corpora-
tion composed of employer contractors in the plumbing, heating, and piping indus-
try. Through designated representatives Westwood and other members of the
Council participate in the negotiation, execution, and administration of collective-
bargaining agreements with the Union and other labor organizations.
The members of the Council, in the aggregate, receive goods and materials from
points outside the State of California valued in excess of $1,000,000 per year, and
furnish goods and services valued in excess of $100,000 per year to enterprises
which produce or handle goods and ship such goods outside the State of California,
or which perform services outside the State of California valued in excess of
$50,000 per year.
I find that the Council, and its member Westwood, are employers engaged in
commerce within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It was stipulated at the hearing and I find, that the Union is a labor organiza=
tion within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background; undisputed points
1. The relationship of Westwood and Culver
In addition to Westwood and the Council, there is another entity directly in-
volved in this case. It is undisputed that Bronson is the proprietor of Westwood,
and that his foreman at Westwood is Ron Miller, who is a member of the Union.
Prior to July 1, Miller, as foreman for Westwood, supervised a force of approxi-
mately three or four plumbers, who were on the Westwood payroll. These men
were Jasper Rodewald, Robert Dale, and the Charging Party, Harold W. Deem.
It is undisputed that Miller, Rodewald, and Day were members in good standing
of the Union, and that all of these men worked out of the Westwood plumbing
shop on Pico Avenue, Los Angeles.
However, Bronson was a partner in, and coowner of, another plumbing business,
known as Culver Plumbers. Culver maintained a small office on Venice Avenue,
in the Culver City section of Los Angeles. Culver, in reality, was simply another
name for Bronson, as that business consisted of a telephone and answering service.
It is undisputed that prior to July 1, all orders for plumbing work received by
Culver were immediately performed by the Westwood plumbers operating with
Westwood facilities. Culver had no shop, no trucks, no tools or equipment, no
supplies of plumbing parts, fixtures, or pipes, and no employees. Any bookkeep-
ing or clerical services necessary to the Culver operation, were performed by
Westwood.
In Culver, Bronson had a partner-Ron Miller, his foreman at Westwood. And,
as will appear, hereafter, Culver had another asset which in time proved to be
valuable-Culver was not a member of the Council, and had no contractual rela-
tionship with the' Union, prior to the strike of the Union, which will be described
hereafter. It 'is undisputed also, that _ prior ' to the strike the' number of orders
received by Culver was negligible, in'comparison with' the business of Westwood.
Upon all the- evidence, I, find that Westwood and Culver constitute a single ein'
ployer within the meaning ofrthe' Act:
WESTWOOD PLUMBERS
2. The strike
731
At the . hearing, counsel stipulated that on July 1 the Union began a strike
against the members of the Council over contract terms then being negotiated,
and'that.until August 15 , there was no contract in effect between the Union and
the Council. It was also stipulated that the strike was settled on August 15; the
terms of the settlement being ratified by the Union on August 16 and by the
Council on August 17. Work of the employees and the companies was resumed
on August 19, and the new contract between the Council and the Union was actu-
ally signed on September 27.
It was stipulated at the hearing that the Union-Council contract, which expired
on July 1, contained a union-shop provision, as did the new contract between the
parties. In this connection, however, it should be noted that during the period
July 1-August 15, there was no contract in effect between the Council and the
Union.
The Culver-Union Contract
It is likewise undisputed that Culver, during the strike, on July 16, executed a
contract with the Union, under circumstances which will be related hereafter.
The Correspondence as to Deem's Discharge
It is undisputed that Deem, the Charging Party herein, and an employee of
Westwood, was discharged by Bronson on July 25. At the time of his discharge
Bronson gave Deem the following letter:
JULY 25, 1957.
MR. HAROLD DEEM
Los Angeles, Calif.
DEAR MR. DEEM: Because you are not at present affiliated with the plumb-
er's union, I am forced to terminate your services.
I regret to do so, because your work here has been more than satisfactory.
(Signed) Harry W. Bronson,
HARRY W. BRONSON,
WESTWOOD PLUMBERS.
It is likewise undisputed that in connection with Deem's discharge, Bronson
wrote the following letter to the Union.
PLUMBERS & FITTERS LOCAL #545
Santa Monica , Calif.
JULY 27, 1957.
GENTLEMEN: A per the telephone conversation with you on July 25, this
is to confirm that Mr. Harold Deem is no longer in our employ. There are
no employees with this firm who are working in the capacity as plumbers.
As you are aware, we are also engaged in Appliances and Appliance Repair
business in which we are operating as in the past.
Very truly yours,
(Signed) HARRY W. BRONSON,
WESTWOOD PLUMBERS.
[Emphasis supplied.]
B. The testimony
Harold W. Deem testified that in 1948 he joined the Glendale, California, local
of the Union . During 1950 he took out a clearance card from the Glendale local
and sought employment at Las Vegas, Nevada . However, the Las Vegas local
would not accept clearance cards, so he finally obtained clearance in Local 668 of
the Union at Boulder City, Nevada . Having obtained clearance , he went back to
Las Vegas but his clearance card was refused by that local . He returned to Glen-
dale in May of 1955 , and found that the Glendale local had moved to Burbank,
California, while he was in Nevada . When he went to the Glendale local he was
told that the Local would not take clearance cards. However, the union official
in charge advised him to go to Local 78 of the Union , which is in downtown
Los Angeles . That local sent him to Long Beach . Long Beach, in turn , sent him
to Santa Ana where he obtained some employment , but without obtaining a clear-
ance card . At Santa Ana he was employed on a work permit for which he paid
$4.75. Finally, without either help or clearance from the Union, he obtained work
with Westwood.' Shortly thereafter he saw an ad in a newspaper saying that
Clayton Plumbers ," another employer, needed men . He went to Clayton Plumbers,
who sent him to Local 545, the Union herein.
732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This was his first contact with Local 545.. He did not apply for clearance to
Local 545, but he was able to obtain a work permit, allowing him to work for
Clayton, for which he paid $10. He worked for Clayton about 3 weeks, but dur-
ing this time he received repeated calls from Bronson who wanted him to come
back to Westwood. He finally consented, and went back. to work for Westwood.
While there employed, Thomas H. Conn, business manager of Local 545, ap-
proached him at Westwood, and asked him how it came about that he was
working for Westwood, when he had been issued a permit to work for Clayton
Plumbers. Deem explained that he had. only worked for Clayton Plumbers about
3 weeks, and that he had returned to his original job at Westwood. Conn said
that Deem was not permitted to move around like that, and that Conn would be
forced to file an injunction against Deem, if he continued to work. A day or two
later Deem went to the union hall and spoke to Conn who gave him a slip directed
to Wes Young, the financial secretary of the Union. Young told Deem that he
would be required to appear before the executive board of the Union before he
could work in the jurisdiction of Local 545. Young gave Deem a card which
constituted permission to work at Westwood Plumbers,. until such time as Deem
could appear before the executive board "to clear in that local, or get straightened
out with the Local."
On that day, when Deem returned to Westwood, Bronson asked him if he was
a member of the Union. Deem replied that he had a card in Local 668, Boulder
City, Nevada, but that he was not cleared in California. Bronson replied that
was all he wanted to know-that Deem was a union member. At that time, Deem
was 2 months in arrears in the payment of his dues to Local 668. Usually he
paid his dues every 6 months and had done that for the past couple of years.
Shortly thereafter he stopped paying dues to Local 668. He did not go before the
executive board as then planned, because the strike, mentioned previously, started
on July 1.
The Strike Activity
From Deem's testimony, it is clear that after the commencement of the strike
Westwood's operations were continued, with most of the work being performed
by Bronson and Deem. Miller, Rodewald, and Dale went out on strike. Deem's
employment was somewhat covert, with Bronson referring plumbing jobs to Deem
over the phone at Deem's home. Operating in that manner Deem went to the
Westwood shop only occasionally.
In approximately the second week of the strike on one of his visits to the shop
he encountered two union men. They asked him if he was a union member and
he answered that he was not. On a second occasion a man , whom he later
learned was named Sharpe, approached Deem at an apartment house where he
was making an emergency repair. Sharpe asked if he was working for Westwood,
and Deem replied that he was. Sharpe then told Deem that he was from Local
545, and that he was a member of the strike committee. There were two other
men with Sharpe on this occasion. A few days later Deem encountered the same
men at another job. On this day one of the men took his photograph.
Meanwhile, Bronson had taken steps to resume full-scale plumbing operations.
Bronson testified that on July 15, he and Miller went to the union office and
conferred with Conn, the business agent. Bronson told Conn that Culver was. not
affiliated with the Council, was an independent company, and that he desired to
sign a contract with the Union so that Culver could operate, despite the strike.
Apparently this was satisfactory to the Union. On the next day Conn and Miller
executed a contract, covering Culver's operation. It is undisputed that immediately
upon the execution of this agreement, Miller, Rodewald, and Dale resumed work,
as employees of Culver, and these men thereafter worked on both Westwood and
Culver orders, regardless of the strike. Deem, however, was not transferred to
Culver. He continued to work covertly for Westwood, as directed by Bronson.
This situation soon attracted the attention of the strike committee. Deem testi-
fied that on approximately July 18, Miller came to his home and requested Deem
to accompany him to the union hall. Miller explained that he and the union
plumbers, then ostensibly working for Culver, had been called before the strike
committee on the charge that they were working with a nonunion plumber, Deem.
Miller wanted Deem to explain to the strike committee that he was working for
Westwood.
At the union hall, Miller and Deem met with Sharpe, previously mentioned,
the man who had photographed Deem, and several other men who comprised the
strike committee, and Young, the financial secretary of the Union. In the course
of the meeting Deem learned for the'first time of the contract between the Union
and Culver, and verified that Miller, Rodewald, and Dale were charged with work-
WESTWOOD PLUMBERS' 733
ing" with a nonunion man, himself . Miller explained that he and the union plumb-
ers were working for. Culver, and not working with Deem, who was employed by
Westwood. Deem corroborated Miller's statement that he was working for West-
wood. This explanation apparently was accepted by the union officials as sufficient
to clear the union men, but it had no such advantage for Deem. As he left the
meeting, he heard Young say that Deem would not be allowed to appear before
the executive board, or be reinstated in the Union, as the Union regarded Deem
as a strikebreaker, and that the Union could fine any union man $100 for working
with a nonunion man.
After he appeared before the strike committee, Bronson told Deem not to come
to the Westwood shop any more and to confine his jobs to those Bronson referred
to him at his home. Thereafter, Deem had frequent conversations with Bronson
on the. phone, but he received fewer jobs, and finally his jobs stopped altogether.
On July 25 Deem sought out Bronson to try to pin him down, as to his pros-
pects. He asked Bronson what he was to do, he either had to have more jobs,
or look elsewhere for work. Bronson replied that Miller, Rodewald, and Dale
had been in trouble with the Union over working with Deem, and that he had
had to write a letter to the Union stating that he had terminated Deem. Deem
asked if that meant he was terminated. Bronson replied that he was, until the
strike was settled. Bronson further explained that he was forced to terminate
Deem, because Rodewald, who had been appointed union steward, had told Bron-
son that he and the other men could not work with Deem under the union rules.
Deem then told Bronson that he would like a letter of termination, similar to
the letter Bronson had written the Union. Bronson complied with Deem's request
and gave him the letter previously set forth.
On August 1, Deem filed charges with the Board against Westwood and the
Union.
After he was terminated, Deem called Conn, the business agent of the Union,
on the telephone. After some conversation, Conn said that to be reinstated in the
Union Deem would have to pay his initiation fee and back dues, a sum around
$175. Deem told Conn that he should have been allowed to remain at Westwood,
and that the Union should not have forced Bronson to discharge him. Conn
denied that the Union had forced Bronson to discharge Deem. Deem then re-
minded Conn of the citations which were issued to Miller, Rodewald, and Dale.
Conn said that he would not pull the men off the job; that he did not need to;
if they were assessed $100 for working with him, they would quit the job, rather
than pay the fine. Conn advised Deem to come to the union hall, pay his initia-
tion fee and arrearages of dues, and clear into the Local. Conn said if he would
do that, he would send Deem to another job.
A few days after August 20, 1957, Deem received a copy of a letter from the
Union directed to Bronson. This letter reads as follows:
DEAR SiR: This is to notify you that the undersigned Local Union has no
objection to Harold W. Deem being employed by you, subject to all of the
terms and conditions of the Collective Bargaining Agreement between your
firm and District Council #16 of the United Association of Journeymen and
Apprentices of the Plumbing and Pipe Fitting Industry of the United States
and Canada.
Very truly yours,
[Emphasis supplied.]
(Signed ) T. H. CoNN, Business Manager.
A copy of this letter was also sent to Irving Helbling, the field examiner
assigned to investigate the merits of Deem's charge.
After he received this letter, Deem again phoned Conn and asked him if the
letter meant he could go back to work for Westwood Plumbers or Culver Plumbers.
Conn told him it meant with either company, as they both understood that it was
the same job.
The General Counsel called Harry W. Bronson as a witness , but he appeared
to be extremely evasive, with the result that the General Counsel finished his
examination of Bronson under Rule 43(b), treating Bronson as a hostile witness.
Bronson did not impress the Trial Examiner favorably. He seemed to be without
candor or frankness, and keenly apprehensive that he might say something which
might offend the Union. At one point, the gist of his testimony was that he had
discharged Deem on his own initiative, without any inducement or encouragement
to do so by the Union.
However , some testimony shedding a different light on the situation was elicited
.from Bronson . He said that Young, the financial secretary of the Union, called
734 DECISIONS OF,NATIONAL :LABOR' RELATIONS BOARD
-him in the early days of Deem 's employment , and told Bronson that Deem was
in arrears in his dues to the Union. Bronson told Young he would convey this
information to Deem, and tell him to get straightened out. A short time there-
after, Young again called Bronson. On this occasion, Bronson told Young that
Deem was no longer employed by Bronson. This was the truth, as at that time
Deem was working at Clayton Plumbers.
When the strike occurred, all of Westwood's plumbers went out on strike, except
Deem. Bronson had a talk with Deem, and it was decided that Deem would work
during the strike. Thereafter, Deem and Bronson performed as much of the work
coming to Westwood and Culver as two plumbers could perform. Deem drove
a Westwood truck, but one which had no name on it, and he received his orders
from Bronson, over the telephone at his home. In that way, Bronson and Deem
kept Deem's visits to the shop at a minimum.
Bronson said that in the early days of the strike, he noticed that there were
several men stationed at the shop. One of these was Bernard Sharpe and another
was Bill Seitz, both striking plumbers. On one occasion, Sharpe asked Bronson
who the fellow was "that calls himself a free-lance plumber." At that moment
Bronson received a telephone call, so he did not answer Sharpe's question. On
another occasion, Bronson saw these men and asked them why they were hanging
around the shop. They said that they were on strike, and that they were just
checking on the shop. As soon as he could, Bronson phoned Deem, at a cus-
tomer's home where Deem was performing some emergency work. Bronson told
Deem that he had better not come into the shop, as the strikers were watching
the shop. Deem told Bronson that his warning came too late, as a group of
strikers had taken a photograph of Deem that morning. Bronson cautioned Deem
.not to come into the shop.
Bronson also testified to a conversation with Rodewald around July 20, at the
.shop. On this occasion, Rodewald told Bronson that he had been appointed
steward by the strike committee and he couldn't work for Bronson any longer
if Deem continued to work for him. Bronson testified that on this occasion he
told Rodewald, "This all ties in together ... Mr. Deem will have to be laid off."
After he received this message through Rodewald, Bronson informed Deem that
he would have to lay him off, and relayed to Deem what Rodewald had told him.
Deem requested a letter of termination, so he gave Deem the letter previously set
forth.
When he was examined as to the tenor of the letter which he had sent the
Union, Bronson denied that Conn or any other official of the Union had requested
or induced him to discharge Deem. He said that writing this letter was his own
idea, and that he did it voluntarily.
Casper A. Rodewald also was called as a witness by the General Counsel. His
testimony was marked by a conspicuous loss of memory, and by extreme vague-
ness and evasiveness. When he was asked if he had appeared before the union
,strike committee, he testified that he was present but that he didn't "really know
whether they were the so-called strike committee or what." He also could not
remember who the men were who were in this group. Rodewald admitted that
in the course of his conversation with the strike committee that they asked him
the names of the men who were working with him, and that he mentioned Deem's
name, and that one of the men told him that Deem was .not a member of the
Union in good standing. Rodewald also said that in the course of this meeting
some one in this group said that he was to be the steward at Culver Plumbers,
but he did not remember who told him that. After further examination Rode-
-wald said that "a couple of the boys" at this meeting said that they were making
him the steward. Shortly thereafter he talked to Bronson, telling him that he was
the steward and that Bronson should straighten out the matter with he Union,
.referring to Deem's employment. Rodewald also told Bronson that Bronson had
a contract with the Union and that Bronson should live up to it. Rodewald testi-
fied that he did not tell Bronson that the men, including himself, could not work
for Bronson if Deem continued to work for him. However, Rodewald said that
he might have told Bronson that the men would be subject to a fine under the
Union's bylaws for working with a nonunion plumber. Rodewald also said that,
at that time, it was his understanding that the Union had a rule that a man could
be fined for working with a nonunion man.
On cross-examination Rodewald denied that he told Bronson that he should
have only union men working on the job, and denied that he told Bronson that
if he didn't get rid of Deem that he would walk off the job.
Thomas H. Conn. the business manager of the Union, testified for the defense.
'In. general he denied that the Union had induced or caused the discharge of Deem
WESTWOOD PLUMBERS 735
by Bronson. He said that he never requested the discharge of Deem, - nor had he
told anyone that he could not prevent the men walking off the job, if Deem was
employed.
He testified that around July 24, Bronson phoned him and said that he wanted
Conn to know that he had discharged Deem , and that Westwood was not oper-
ating. Conn repied that the discharge was Bronson's idea solely. Bronson agreed,
and said he- would send Conn a letter to confirm the substance of the conversation.
Conn testified that during the strike there existed a strike committee , whose func-
tion it was to divide up the Union's territory, and see to it that no other craft
performed plumbing work. This committee was composed of rank-and-file mem-
bers, and had no other powers or duties. Sharpe, mentioned previously, was a
member of the committee. Conn said that only he could appoint a steward for
any plumbing shop, and that usually no steward was appointed for shops with less
than 15 to 20 employees. Conn said that the union constitution prohibits members
from working with nonmembers , and provides for a fine, if members violate the
prohibition.
The above is not a complete or exhaustive narrative of the testimony, most of
which deals with conversations between the witnesses, different versions of the
same conversations, or denials and counterdenials. Suffice it to say, that the above
is a summary of the main events of the controversy, which are obscured to some
extent by the lack of candor of witnesses Bronson and Rodewald. Both of these
men appeared apprehensive of offending the Union. They appeared unwilling to
testify, and having testified to one effect, they contradicted themselves, or modified
their testimony shortly thereafter. Deem's testimony, in contrast , was forthright
and straightforward. After a consideration of all the evidence, I credit Deem's
testimony, in its entirety, and I accept such portions of the testimony of Bronson
and Rodewald as corroborate the testimony of Deem. In view of all the evidence,
I do not credit Conn's testimony to the effect that he did not request Deem's dis-
charge. I credit his testimony only to the extent it is consistent with the findings
hereafter expressed.
Concluding Findings
By virtue of the summary judgment, the allegations of the complaint charging
Westwood Plumbers with the discriminatory discharge of Deem are deemed to be
admitted as true, and the facts found to be as stated therein. It follows therefore,
that Westwood violated the Act, as alleged in the complaint. The evidence ad-
duced at the hearing, especially the testimony of Bronson, confirms the correctness
of the summary judgment.
In this posture of the case, one question remains for resolution-did the Union
cause Bronson to discharge Deem, and thereby violate Section 8(b) (1) (A) and
(2) of the Act?
The answer to this question is not as readily apparent as it might be, because
of the testimony of Rodewald, Conn, and Bronson. Rodewald and Conn each
stated he did not request the discharge of Deem. Bronson, too, testified to that
general proposition, but in other testimony he corroborated much of Deem' s testi-
mony as to the sequence of events leading up to Deem's discharge. I am con-
vinced that Rodewald, Conn, and Bronson have not been completely honest or
frank in their testimony; that because of their desire to exculpate the Union they
have withheld testimony damaging to the Union. In consequence, in this record
there is no direct evidence of any request or demand by the Union that Deem
be fired. Yet, after considering all the evidence, I am convinced that the Union
caused Deem's discharge, if not by a direct request or demand, at the least by
a course of conduct that created such circumstances, and exerted such pressures
on Bronson, that he was caused to fire Deem.
This pressure on Bronson grew out of the Union's special attention to Deem's
employment, from its beginning to its end. This pressure began with Young's
phone calls to Bronson in the early days of Deem's employment, in which Young
urged Bronson to get Deem straightened out. This pressure increased in the early
days of the strike, with the surveillance of the shop, and the interrogation and
photographing -of Deem by members of the strike committee. All of this brought
home to Bronson the knowledge that Deem's nonunion status was not satisfactory
to the Union.
Of course, Bronson wanted to continue his business without interruption during
the strike, and he thought he had achieved that purpose when he executed the
Culver-Union contract. That agreement. constitutes a unique arrangement, for by
it the Union permitted Bronson, wearing his Culver hat, to be actively engaged in
performing struck work, while ostensibly it conducted a strike against Bronson,
wearing his Westwood hat. Agreements such as this, whereby a union gives to
736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
one employer ' a secret privilege or concession which is denied other employers,
have earned the name of "Sweetheart Contract." However, the affectionate rela-
tionship of the Union and Bronson was disturbed by the continued presence of
the unwanted stepchild, Deem. Upon'the execution of the Union-Culver arrange-
ment, all the employees of Westwood were transferred to Culver, except Deem,
and when Deem performed a few jobs for Westwood, Miller and the union men
were cited to appear before the strike committee on the charge that they were
working with a nonunion man, Deem. This action of , the Union undoubtedly
convinced Bronson that Deem constituted more of a hindrance than a help to his
operations , and when Rodewald told Bronson that he was the steward in the
operation, and that he and the other union men could not work with Deem, Bron-
son bowed to the implicit demand in that statement, and fired Deem.
The instrument used by the Union to cause the discharge of Deem was a provi-
sion of the Union's bylaws which admittedly provided that the executive board
of the Union could fine any member who worked with a nonunion plumber. This
provision generated the pressure, which was first exerted upon the men, and
through them upon Bronson, with the result that Bronson discharged Deem, When
the Union notified Bronson through Rodewald that the union men would not work
with Deem, the Union thereupon imposed closed-shop conditions on both West-
wood and Culver, and effectively caused the discharge of Deem.
However, there is a second aspect of the testimony which warrants most care-
ful examination . Bronson and Conn both testified that in arriving at the "Sweet-
heart Contract" between Culver and the Union, Deem's employment was not con-
sidered or discussed by the parties, although Deem's strikebreaking employment
was, or should have been, known to both the parties at that time. Both Bronson
and Conn also testified that in their telephone conversation on July 25, neither
party referred to Deem's employment or its termination. Yet, Deem's termination
was of such importance to the parties that on July 27, Bronson wrote a letter to
Conn reading, "As per the telephone conversation with you on July 25, this is
to confirm that Mr. Harold Deem is no longer in our employ." This letter, writ-
ten close to the time of the discharge, impeaches the testimony of Conn and
Bronson that they were not concerned with the continued employment of Deem.
On the basis of this letter, the course of conduct of the parties as portrayed in
the undisputed evidence, and the credited testimony of Deem, I find that on or
prior to July 25 Conn requested Bronson to discharge Deem , and that pursuant
to that request Bronson discharged Deem, and by his letter of July 27 confirmed
his compliance with the Union's request.
Therefore, upon all the evidence, I find that the Union caused Westwood to
discharge Deem from its employment on July 25, 1957, and has caused Westwood
to refuse to reinstate him to employment since that date, all because Deem was
not and is not a member of the Union in good standing, thereby violating Section
8(b)(1)(A) and (2 ) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Union and Harry W. Bronson d/b/a Westwood Plumbers
and Culver Plumbers, set forth in section III, above, which occurred in connection
with Westwood's operations set forth in section 1, above, have a close, intimate,
and substantial relation to trade, traffic, and commerce among the several States
and tend to lead to labor disputes burdening and obstructing commerce and the
free flow of commerce.
V. THE REMEDY
Having found that the Union and Westwood engaged in unfair labor practices,
it will be recommended that they cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act. It has been found
that: (1) from July 25, 1957, Westwood has discriminated against Harold W.
Deem, in his hire, tenure, terms, and conditions of employment; (2) such conduct
by Westwood encouraged membership in the Union and interfered with, restrained,
and coerced employees in the exercise of rights guaranteed by Section 7 of the
Act; and (3) the Union engaged in unfair labor practices by causing Westwood
to so discriminate, thereby restraining employees in the exercise of rights guaran-
teed by the Act. It will be recommended, therefore, that Harry W. Bronson,
d/b/a Westwood Plumbers and Culver Plumbers, offer to Harold W. Deem imme-
diate and full reinstatement to his former or substantially equivalent position with-
out prejudice to his other rights and privileges; and the Union notify Harry W.
Bronson, d/b,/a Westwood Plumbers and Culver Plumbers, in writing, and furnish
a copy of said notification to Deem, that it has withdrawn its objection to his
WESTWOOD PLUMBERS 737
employment as a plumber at his shop in Los Angeles,, California, and request the
above-named Employer 3 to offer Deem full and immediate reinstatement to his
former or equivalent position.
Having found that Harry W. Bronson, d/b/a Westwood Plumbers and Culver
Plumbers, and the Union were jointly responsible for the discrimination in the
hire and tenure of employment of Deem, it will be recommended that .the Em-
ployer and the Union, jointly and severally, make Harold W. Deem whole for any
loss of pay he may have suffered by reason of the discrimination against him, by
payment to him of a sum of money equal to the amount he would normally have
earned as wages from July 25, 1957, until his reinstatement as ordered above, less
his net earnings during this period. The loss of earnings will be computed in
accordance with the formula of the Board stated in F. W. Woolworth Company,
90 NLRB 289.
It is also recommended that the Employer be ordered to make available to the
Board upon request, payroll and other records to facilitate the checking of the
amount of earnings due.
Upon the foregoing findings of fact, and upon the entire record in the case,
I make the following:
CONCLUSIONS OF LAW
1. Plumbers and Steamfitters Local Union 545, AFL-CIO, is a labor organiza-
tion, within the meaning of Section 2(5) of the Act, which admits to membership
employees of the Employer.
2. Harry W. Bronson, d/b/a Westwood Plumbers and Culver Plumbers, is an
employer engaged in commerce within the meaning of Section 2(6) and (7) of
the Act.
3. By discriminating in regard to the terms and conditions of employment of
Harold W. Deem, thereby encouraging membership in the Union, the Employer
has engaged in and is engaging in unfair labor practices within the meaning of
Section 8(a)(3) of the Act.
4. By interfering with, restraining, and coercing employees in the exercise of
rights guaranteed in Section 7 of the Act, the Employer has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a)(1) of the
Act.
5. By causing the Employer to discriminate against employees in violation of
Section 8(a)(3) of the Act, the Union has engaged and is engaging in unfair labor
practices within the meaning of Section 8(b)(2) of the Act.
6. By restraining- and coercing employees in the exercise of the rights guaran-
teed in Section 7 of the Act, the Union has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (b) (1) (A) of the Act.
7. 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.]
8 The term Employer, used In this section of the Report, refers to Harry W. Bronson,
both as Westwood and 'Culver, since it has been found that these are all designations of
the single employer, Harry W. Bronson. The evidence indicates that all employees of
Westwood were transferred to Culver, after July 16. If Bronson is no longer conducting
business under the name and style of Westwood, this provision contemplates that Deem
will be reinstated at Culver, if that firm is operating, or by Bronson, if he Is operating in
his own name, or under any other name.
APPENDIX A
NOTICE To ALL EMPLOYEES
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify you that:
WE WILL NOT encourage membership in Plumbers and Steamfitters Local
Union 545, AFL-CIO, by discriminating in regard to hire or tenure of em-
ployment or any terms or conditions of employment of our employees because
they are not members of the above -named Union.
WE WILL NOT in any like or related manner interfere with , restrain, or
coerce our employees in the exercise of the rights guaranteed them in Sec-
tion 7 of the Act, except to the extent that such right may be affected by an
505395-59---vol. 122-48
138 DECISIO&S OF NATIONAL LABOR- RI ATIONS BOARD
agreement - requiring membership in. a labor organization as a, condition of
employment as authorized in Section 8(a)(3) of the Act.
WE WILL offer to Harold W. Deem immediate and full reinstatement to, his
former or substantially equivalent position, without prejudice to any seniority,
or other rights and privileges, previously enjoyed and we will make said em-
ployee -whole for any loss of earnings suffered as a result of the ditlcrimina-
tion against him.
All our employees are free to become, to remain, or to refrain from, becoming,
.or remaining, members of the above-named Union or any other labor organization,
except to the extent that this right may be affected by an agreement in conformity
-with Section 8(a)(3) of the Act, as amended.
HARRY W. BRONSON D/B/A WESTWOOD
PLUMBERS, CULVER PLUMBERS,
Employer.
.Dated------------------- By-------------------------------------------(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
-altered, defaced, or covered by any other material.
APPENDIX B
NOTICE TO ALL OFFICERS, REPRESENTATIVES , AGENTS, AND MEMBERS
OF PLUMBERS AND STEAMFITTERS LOCAL UNION 545, AFL-CIO
Pursuant to the Recommendations of a Trial Examiner of the National Labor
-.Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify you that:
WE WILL NOT cause or attempt to cause Harry W. Bronson, d/b/a West-
wood Plumbers , Culver Plumbers, to discriminate against employees in regard
to their hire or tenure of employment, or any term or condition of employ-
ment in violation of Section 8(a)(3) of the Act, as amended.
WE WILL NOT in any manner restrain or coerce employees of any employer
in the exercise of the rights guaranteed them in Section 7 of the Act, except
to the extent that such right may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employment as authorized
in Section 8(a)(3) of the Act, as amended.
WE WILL notify the above-named Employer, in writing, and send Harold
W. Deem a copy, that we withdraw our objections to his employment as a
plumber, and request that he be reinstated to his former or an, equivalent
position.
WE WILL make Harold W. Deem whole for any loss of pay suffered be-
cause of our discrimination against him.
PLUMBERS 4ND STEAMFITTERS
LOCAL UNION 545, AFL-CIO,.
Labor Organization.
':Dated------------------- By------------------==-----------------------(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
West Virginia Pulp and Paper Company and United Paper-
makers and Paperworkers, AFL-C10.1 Cases Nos. 5-R-1624,
5-R-1625,5-R-1631,5-R-1632, and 5-RC-369. December 30,1958
DECISION AND AMENDMENT OF CERTIFICATIONS
The Union is the certified bargaining representative of the pro-
,Auction and. maintenance employees at the Employer's Covington,
i The ease caption reflects the current. name of the certified union.
122 NLRB No. 86.