William W. Kimmins & Sons

National Labor Relations Board - Board Decisions

Nov 15, 1950

92 N.L.R.B. 98 (N.L.R.B. 1950)

In the Matter Of WILLIAM W. KrnIMINs, SR ., WILLIAM W. KIMMINS,
JR., AND RODMAN C. KIMMINS, CO-PARTNERS , D/B/A WILLIAM W.
KIMMINS & SONS and ROBERT BROWN, AN INDIVIDUAL
Case No. 3-CA-015.Decided November 15, 1950
DECISION AND ORDER
On July 14, 1950, Trial Examiner Albert P. Wheatley issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair labor
practices, and recommending that they cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. The Trial Examiner also found that
the Respondents had not engaged in certain other unfair labor prac-
tices alleged in the complaint, and recommended dismissal of these
allegations . Thereafter, the Respondents filed exceptions to the Inter-
mediate Report and a. supporting brief.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Houston, Murdock, and Styles].
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 Inter-
mediate Report, the Respondents' exceptions and brief, and the entire
record in the case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.'
The Respondents' request for oral argument is hereby denied as the
record, the exceptions, and the Respondents' brief, in our opinion, ade-
quately present the issues and positions of the parties.
No exceptions having been filed to the Trial Examiner's recom-
mended dismissal of the allegations in the complaint with respect to
1 The Respondents have excepted to the Trial Examiner ' s recommendation that the Board
exercise jurisdiction herein. The jurisdictional facts, as fully set forth in the Intermediate
Report, show that the Respondents furnish services valued at more than $ 50,000 per
annum to Republic Light, Heat and Power Company, a public utility distributing gas in
Buffalo and vicinity , and to New York Telephone Company. On the basis of these facts,
we find, in accordance with our recently announced jurisdictional policy, that it will
effectuate the policies of the Act to assert jurisdiction in this case . Cf. hollow Tree Lumber
Company, 91 NLRB 685.
92 NLRB No. 25.
98
WILLIAM W. KIMMINS .& SONS 99
interrogation of employees and applicants for employment, we shall
dismiss these allegations.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondents, William W. Kimmins, Sr.,
William W. Kimmins, Jr., and Rodman C. Kimmins, co-partners,
d/b/a William W. Kimmins & Sons, their agents, successors, and
assigns, shall :
1. Cease and desist from :
(a) Encouraging membership in International Hod Carriers',
Building & Common Laborers' Union of America, Local 210, AFL,
or any other labor organization of its employees, by discharging any
of their employees or in any other manner discriminating in regard
to their hire or tenure of employment or any term or condition of their
employment, except to the extent authorized by Section 8 (a) (3) of
the Act;
(b) Performing, giving effect to, or enforcing any agreement or
arrangement with International Hod Carriers', Building & Common
Laborers' Union, Local 210, AFL, which-requires employees to join or
maintain membership in such labor organization as a condition of
employment unless such agreement has been authorized as provided
by the National Labor Relations Act, as amended;
(c) In any other manner interfering with, restraining, or coercing
employees in the right.to refrain from exercising the rights guaranteed
in Section 7 of the Act, except to the extent that such rights may be
affected by an agreement requiring membership in a labor organization
as a condition of employment as authorized by Section 8 (a) (3) of
the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Robert Brown immediate and full reinstatement to his
former or substantially equivalent position without prejudice to his
seniority or other rights and privileges;
(b) Make whole Robert Brown in the manner set forth in the section
of the Intermediate Report entitled "The remedy" for any loss of pay
he may have suffered by reason of the Respondents' discrimination
against him ;
(c) Upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment
records, time cards, personnel records and reports, and all other records
100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
necessary to analyze the amounts :of back pay due and the right, of
reinstatement under the terms of this Order;
(d) Post at their place of business in Kenmore,'New York, copies
of the notice attached to the Intermediate Report marked Appendix A.2
Copies of said notice, to be furnished by the Regional Director for the
Third Region, shall, after being duly signed by the Respondents' rep-
resentative, be posted by them immediately upon receipt thereof, and
maintained by them for sixty (60) consecutive days thereafter, in
conspicuous places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respond-
ents to. insure that said notices are not altered, defaced, or covered by
any other material.
. (e) Notify the Regional Director for the third Region, in writing,
within ten (10) days from the date of this Order, what steps the
Respondents have taken to comply herewith.
IT Is FURTHER ORDERED that the- complaint be, and it hereby is dis-
missed insofar as it alleges unlawful interrogation of employees and
applicants for employment concerning their union membership or
affiliation.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
Messrs. William Naimark and Milton Pravitz, for the General Counsel.
Brown, Kelly, Turner d Symons, by Mr. John E. Leach, of Buffalo, N. Y., for
Respondents.
STATEMENT OF THE CASE
Upon a charge and an amended, charge duly filed September 12, 19.49, and
May 2, 1950, respectively, by Robert Brown, an individual, the General Counsel
of the National Labor Relations Board by the Regional Director for the Third
Region (Buffalo, New York), duly issued a complaint dated May 3, 1950, against
William W. Kimmins, Sr., William W. Kimmins, Jr., and Rodman C. Kimmins,
co-partners , d/b/a William W. Kimmins & Sons, herein called Respondents,
alleging that Respondents had engaged in and were engaging in unfair labor
practices affecting commerce within the meaning of Section 8 (a) (1) and (3)
and Section 2 (6) and (7) of the National Labor Relations Act, as amended,
61 Stat. 136, herein called the Act.
With respect to unfair labor practices the complaint alleged in substance that
Respondents discriminatorily discharged Robert Brown on or about September
9, 1949, and failed or refused to reinstate said Robert Brown, and that Re-
spondents , in the course of their business operate under and pursuant to an
agreement or arrangement containing discriminatory and illegal union -security
provisions.
2 This notice, however, shall be and it hereby is amended by striking from the first para-
graph thereof the words "the recommendations of the Trial Examiner" and substituting
in lieu thereof the words "A Decision and Order." In the event that this Order is enforced
by a decree of a United States Court of Appeals, there shall be inserted before the. words
"A Decision and Order" the words "4.Decree,.of tlie, United, States,Court of Appeals
Enforcig;"
WILLIAM W. KIMMINS & SONS 101
In -'their answer, as amended, Respondents admit certain allegations of the
complaint, including an allegation that Respondents discharged' Robert, Brown
for the reason that he was not a member in good standing in the International
Hod Carriers', Building & Common Laborers' Union of America, Local 210, AFL,
herein called the Union, but deny that Respondents refused to reinstate said
Robert Brown and/or committed or are committing unfair labor practices.
Pursuant to notice, a hearing was held at Buffalo, New York, on May 22 and
25, 1950, before the undersigned Trial Examiner. The General Counsel and
Respondents were represented by counsel' All parties were afforded full op-
portunity to be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing upon the issues. At the conclusion of the General Counsel's
case-in-chief counsel for Respondents moved to dismiss the complaint (1) on.
jurisdictional or commerce grounds and (2) on the ground that the 6-month
provision of Section 10 (b) of the Act had not been complied with. Re-
spondents did not offer evidence. on their own behalf. After oral argument
on the record the undersigned, on the authority of Cathey Lumber Co., 86
NLRB 157, denied the motion to dismiss insofar as it was based upon non-
compliance with the 6-month provision of the Act, and took under consideration
the motion to dismiss on jurisdictional or commerce grounds. It is now dis-
posed of in accordance with the following findings and conclusions.
Upon the entire record in the case and. from his observation of witnesses,
the undersigned makes the following.:
FINDINGS OF FACT
1. COMMERCE ; THE BUSINESS OF RESPONDENTS'
William W. Kimmins, Sr., William' W. Kimmins, Jr., and Rodman C. Kim-
mins, co-partners " doing business as William W. Kimmins & Sons maintain
their principal office and place of business' in Kenmore, New York,' and engage
in, the installation of sewer mains, water' mains, gas mains, and telephone
conduits for various municipalities and utilities 'concerns.
In the course of their business operations' Respondents purchase' various
supplies and equipment including pipe, fittings, hydrants, valves, cement, sand
and gravel, lumber and building materials. During 1949 Respondents expended
approximately $140,000 for'such supplies and equipment. Approximately $45,100
represents supplies and equipment shipped to Respondents from points and
places- outside New York. During this same period Respondents purchased and
received from within New York $5,000 worth of sewer' pipe and a machine and
crane valued at $30,000 all of which originated outside New York. -
During 1949 Respondents rendered services for which it received approxi-
mately $431,874. Approximately $150,000 represents services for Republic
Light, Heat and Power Company, Inc., herein called Republic, a public utility
corporation distributing manufactured and natural gas' in Buffalo and nearby
communities. Republic is a wholly owned subsidiary of City Service Company,
a Delaware corporation engaged in interstate commerce. Approximately $100,000
I References hereinafter to the General Counsel are to his representatives at the hearing.
2 The facts concerning Respondents' business were stipulated.
s A suburb of Buffalo, New York.
4 Republic purchases most of its manufactured gas from Semet-Solvay Company, Buffalo,
New York. Most of the natural gas served by Republic comes from outside New York and
is purchased ' by Republic from-.New York.State Natural Gas Corporation.
102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
represents services rendered for the New York Telephone Company, consisting
of installing telephone subways in Amherst and Batavia, New York. Approxi-
mately $120,000 represents services rendered for the Buffalo Sewer Authority,
a subdivision of the City of Buffalo, New York. Between $15,000 and $20,000
represents services rendered for the Town of Tonawanda in Tonawanda;. Erie
County, Now York.
On the basis of the foregoing facts there is no question that Respondents'
operations affect commerce. However there is considerable doubt as to whether
the Board as a matter of policy would exercise its jurisdiction. In connection
with the latter issue the undersigned has given careful thought and study to
various theories and cases including cases cited during the oral argument,,
cases concerning "arteries essential _to the flow of commerce," and recent deci-
sions involving the building and construction industry,' to determine the policy of
the Board concerning enterprises similar to the one involved herein. Neverthe-
less the undersigned has not reached a definite conclusion, with a reasonable
degree of certainty, as to whether the Board as a matter of policy would or
would not assert jurisdiction herein. Accordingly, it is believed that this mat-
ter is best left to the determination of the Board itself with a recommendation
from the undersigned that jurisdiction ,be exercised herein.
II. THE LABOR ORGANIZATION INVOLVED
- International Hod Carriers ', Building & Common Laborers ' Union, Local 210,
AFL, is a labor organization within the ' meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The facts
Robert Brown, laborer, was employed by Respondents from August 2, 1948,
to January 1949 at which time he was laid off because of a reduction in force
due to lack of work . Brown was recalled by William W. Kimmins, Jr., in
May 1949 and worked for.Respondents until September 9, 1949, when he was
discharged , by William W. Kimmins , Jr.-,."because he-wasn't a member of..the. .
Union."
On April 30, 1948, the Union and the General Contracting Employers Associa-
tion' executed an agreement "effective on May 1, 1948, and shall continue in
effect in its entirety until May 1, 1949 , and thereafter from year to year un-
less . . .." This agreement provides , inter alia:
" The Town of Tonawanda is the Keystone of the Niagara Frontier, consisting of Buffalo,
Lackawanna, Town of Tonawanda and the cities of Tonawanda, North Tonawanda, and
Niagara Falls ; is strategically located for the assembly of materials, and for manufacture
and distribution via water, air, rail, and truck ; has an estimated population of from 50,000
to 52,000 and has approximately 48 industrial firms located and operating therein, including
Allegheny Ludlum Steel Corp., Continental Can Company, Inc., Dunlop Tire and Rubber
Corp., E. I. Du Pont De Nemours & Company, Western Electric, and several of the major
petroleum products companies. -
6 Strong Company, 86 NLRB 687; Brown-Ely Co., 87 NLRB 27; J. R. Reeves and A.
Teichert & Sons, Inc., 89 NLRB 54.
'Denver Building and Oosistx.uctionY-Ts ades Gounsil::(-Williamn G.-Churches, et, al: ),
90 NLRB 378; Carpenter & Skaer, Inc., et at, 90 NLRB 417; United Association of Journey-
men and Apprentices of The Plumbing and Pipe Fitting Industry (Pettus-Banister Com-
pany), 90 NLRB 500; and Local 596, IBEW (West Virginia Electric Corp) 90 NLRB 526.
8 See Carpenter & Skaer, Inc., et al., 90 NLRB 417.
WILLIAM W. KIMMINS & SONS 103
Provided the employment is in accordance with the terms of this agree-
ment, the Union shall at all times furnish the Employer with all men
needed.
The Employer shall have an optional right to hire men, either direct or
through the representative of the.Union, provided such men are members of
the Union.
Respondents were not members of the General Contracting Employers Associa-
tion but on May 1, 1948, executed an agreement with the Union providing:
On and after May 1, 1948, we, the undersigned, agree that all laborers
employed by the undersigned will be paid at the rate of - per hour. All
overtime shall be paid at the rate of Double Time. Further, we agree
that a Union Shop will go into effect at such time as the National Labor
Relations Board shall hold an election among the employees and shall
certify authorization to make an agreement requiring union membership
as a condition of employment.
An election pursuant to Section 9 (e) of the Act was never held.
William W. Kimmins, Jr., testified that Respondents abided by and operated
under the terms of the agreement between the Union and the General Contract-
lug Employers Association, that during 1949 and 1950 Respondents "operated
under a closed shop contract," that employees were told that they would have to
abide by "our union regulations" and that he (Kimmins, Jr.) in the latter part
of 1948 told Brown "he would have to do something about it" [joining the Union].
Al DiSimone, cost clerk and estimator for Respondents, at the direction of Wil-
liam W. Kimmins, Jr., in August 1949 told Brown that he couldn't work for
Respondents unless he was a member of the Union.
During August and September 1949 Brown unsuccessfully sought membership
in the Union and on September 9, 1949, he was discharged by William W.
Kimmins Jr., because "he wasn't a member of the Union." .
After his discharge browns telephoned Respondents office and asked for work.
lie was told by the person answering the telephone, identified by Brown as"an
oftiee worker known as Tom, that he could have work if ,he got a unlOtii-
membership card.
B. Conclusions
In view of the illegal provisions of the contract between the Union and
the General Contracting Employers Association pursuant to which Respond-
ents operated, the arrangement pursuant to which Respondents operated a
closed shop and required membership in good standing in the Union as a condi-
tion of employment, and the evidence of enforcement of these illegal conditions,
the undersigned concludes and finds that Respondents conduct was unlawful,
substantially as alleged in the complaint, and that Respondents thereby violated
Section 8 (a) (1) and (3) of the Act. However, the undersigned finds that the
evidence does not support the allegation of the complaint that Respondents
"questioned employees and applicants for employment concerning their union
membership or affiliation." The only direct evidence` tending to support this
allegation was given by Brown and was to the effete that DiSimone questioned
him (Brown) as to whether he (Brown) had a union card. DiSimone, a cost
clerk and estimator, is not a supervisory employee. Although there is evidence
0 Date not fixed but apparently prior to May 2, 1950.
104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that I7iSimone, at the direction of William W. Kimmins, Jr., told Brown that
"he couldn't work for the Company without a Union card" there is no evidence
establishing interrogation at the direction of Respondents or any of them.
Furthermore, the undersigned believes and finds that there is insufficient
evidence to warrant an inference and finding of interrogation by Respondents
or at their direction or with their approval.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondents -set forth in Section III, above, occurring in con-
nection with the operations described in Section I, above, have a close, intimate,
and substantial relation to trade, traffic, and commerce among the several States,
:nd tend to lead to labor disputes burdening and obstructing commerce and the
free flow of commerce:
V. THE REMEDY
Since it has been found that Respondents have engaged in certain unfair labor
practices it will be recommended that they cease and desist therefrom in order
to effectuate the policies of the Act.
It has been found that Respondents discriminated in regard to the hire and
tenure of employment of Robert Brown thereby encouraging membership in the
Union. It will be recommended that Respondents offer Robert Brown imme-
diate and full reinstatement to his former or substantially equivalent Position,"
wiihout.prejudice to his seniority or other rights and privileges, and that Re-'
spondents make whole Robert Brown for any loss of pay he may have suffered'
by payment to him of a sum of money equal to the amount he would normally
have earned as wages from the date of the discrimination against him to the
date of Respondents' offer of reinstatement, less his net earnings' during such
period,' The loss of pay shall be computed on the basis of each separate calen-
dar quarter or portion thereof during the period from Respondents' discrimina-
tory action to the date of a proper offer of reinstatement. It will be further
recommended that Respondents make available to the Board, upon request, pay-
roll and other records to facilitate the checking of the amount of back pay
due.'
The scope of the unfair labor practices discloses a purpose to interfere with,
restrain, and coerce employees in the right to refrain from any or all of the
concerted activities guaranteed them by Section 7 of the Act. The undersigned
will therefore recommend that Respondents cease and desist from in any manner
infringing upon these rights.
Upon' the basis of the foregoing findings of fact. and. upon the entire record
in the case, the undersigned makes the following:
CONCLUSIONS OF LAW
1. International Hod Carriers', Building & Common Laborers' Union of Amer-
ica, Local 210, AFL is a labor organization within the meaning of Section 2
(5) of the Act.
10 The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch,
65 NLRB 827.
u Crossett Lumber Company, 8 NLRB 440, 497-8.
Up. W. Woolworth Company, 90 NLRB 289; Cen-Tcnnial Cotton Gin Company, 90
NtRBo 3d5.
WILLIAM W. KIMMINS & SONS 105
2. By discriminating in regard to the hire and tenure of employment of Robert
Brown thereby encouraging membership in a labor organization , Respondents
have engaged in and are engaging in unfair labor practices within the meaning of
Section 8 ('a) (3) of the Act.
3. By entering into, performing , giving effect to, and enforcing agreements
or arrangements with the Union requiring employees to join or maintain.mem-
bership in such labor organization as a condition of employment Respondents
have engaged in and are engaging in unfair labor practices within the mean-
ing of Section 8 (a) (1) and ( 3) of the Act.
4. By such discharge and such illegal union -security arrangements and by
otherwise interfering with, restraining , and coercing employees in the exercise
of the rights guaranteed in Section 7 of the Act , Respondents have engaged in
and are engaging in unfair labor practices within the meaning of Section 8
(a) (1). of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 ( 6) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]