Carpet, Linoleum and Resilient Tile Layers

CARPET, LINOLEUM AND RESILIENT TILE LAYERS 669 CARPET, LINOLEUM AND RESILIENT TILE LAYERS, LOCAL UNION NO. 419, AFFILIATED WITH BROTHERHOOD OF PAINTERS , DECORATORS AND PAPER HANGERS OF AMERICA, AFL and WILLIAM F. COOPERSMITH. Case No. 30 -CB-25 . June 19, 1953 DECISION AND ORDER On March 13 , 1953, Trial Examiner Wallace E. Royster 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 take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter , the Respondent 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 recommendations of the Trial Ex- aminer. ORDER U on the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Re- spondent , Carpet, Linoleum and Resilient Tile Layers, Local Union No. 419, affiliated with Brotherhood of Painters, Deco- rators and Paper Hangers of America , AFL, its officers, representatives, agents, successors , and assigns, shall: 1. Cease and desist from: (a) Causing or attempting to cause Lauren Burt , Inc., of Colorado, its successors or assigns , to discharge William F. Coopersmith or any other employee because he is not a member in good standing of the Respondent or to discriminate against such employee in any other fashion in violation of Section 8 (a) (3) of the Act. (b) Restraining or coercing Coopersmith or any other employee of Lauren Burt , Inc., of Colorado , its successors or assigns , in the exercise of the right to engage in or to refrain from engaging in any of the concerted activities described in Section 7 of the Act, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a • condition of em- ployment as permitted by Section 8 (a) (3) of the Act. '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 Herzog and Members Houston and Murdock]. 105 NLRB No. 96. 670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Take the following affirmative action , which the Board finds will effectuate the policies of the Act: (a) Notify Lauren Burt , Inc., of Colorado , and William F. Coopersmith , in writing , that it has no objection to the employ- ment of Coopersmith. (b) Make whole William F. Coopersmith for any loss of pay he may have suffered as a result of the discrimination against him in the manner set forth in the section of the Intermediate Re ort entitled " The Remedy." (c) Post in conspicuous places at the business offices of the Respondent in all places where notices or communications to members are customarily posted , copies of the notice attached to the Intermediate Report . 2 Copies of such notice , to be fur- nished by the Regional Director for the Seventeenth Region, shall , after being duly signed by a representative of the Respondent , be posted by the Respondent immediately upon receipt thereof and maintained for a period of sixty (60) consecutive days thereafter. Respondent shall take reasonable steps to insure that said notices are not altered , defaced, or covered by other material. (d) Mail to the Regional Director for the Seventeenth Region signed copies of the notice for posting, Lauren Burt , Inc., of Colorado , willing, at its premises in all places where notices to employees are customarily posted by said Lauren Burt, Inc., of Colorado . Copies of said notice , to be furnished by the Regional Director for the Seventeenth Region, shall, after being signed as provided above , be forthwith returned to the Regional Director for posting. (e) Notify the Regional Director for the Seventeenth Region, in writing , within ten ( 10) days from the date of this Order what steps the Respondent has taken to comply herewith. 2 This notice shall be amended by substituting for the words "The Recommendations of a Trial Examiner" in the caption thereof, the words "A Decision and Order." If this Order is enforced by a decree of a United States Court of Appeals, the notice shall be further amended by substituting for said words "Pursuant to a Decision and order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." Intermediate Report and Recommended Order STATEMENT OF THE CASE Charges having been filed by William F. Coopersmith, an individual, alleging violations of the National Labor Relations Act, as amended, 61 Stat. 136, on the part of Carpet, Linoleum and Resilient Tile Layers, Local Union No. 419, affiliated with Brotherhood of Painters, Decorators and Paper Hangers of America, AFL, herein called the Respondent, the General Counsel of the National Labor Relations Board issued his complaint dated January 29, 1953, alleging that the Respondent had engaged in and was engaging in unfair labor practices af- fecting commerce within the meaning of Section 8 (b) (1) (A) and (2) and Section 2 (6) and (7) of the Act. With respect to unfair labor practices, the complaint alleges in substance that the Respondent by maintaining closed-shop conditions at the place of Coopersmith's employment, had caused the discharge of Coopersmith, made it impossible for Coopersmith to regain his employment, and had thus restrained and coerced employees in the exercise of right guaran- teed in Section 7 of the Act. Respondent's answer denies the commission of unfair labor practices. CARPET, LINOLEUM AND RESILIENT TILE LAYERS 671 Pursuant to notice a hearing was held before the undersigned in Denver. Colorado, on February 17, 1953. All parties were represented, participated in the hearing, and were afforded opportunity to examine and cross-examine witnesses and to introduce relevant evidence. Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYERS Lauren Burt, Inc., of Colorado, hereinafter called Colorado, is a Colorado corporation, engaged in the building material specialties business, handling such items as acoustical materials, roof decks, movable partitions, and modern fold doors and, in addition, was engaged in the floor-covering business. During the fiscal year ending April 30, 1952, Colo- rado made sales to purchasers located outside the State of Colorado, having a value of $136,000. During the same period Colorado's purchases totaled more than $559,000, of which more than 50 percent came from points outside the State of Colorado. On May 1, 1952, Lauren Burt, president of Colorado, sold a retail business in Denver, which he had established as a personal enterprise, to Earl A. Dixon, who for a period of several years had been manager of Colorado's floor-covering department. By the contract of sale and in consideration of payment of a year's salary, Dixon agreed to manage the completion of certain contracts for floor-covering work, which Colorado had secured, amounting to about $200,000. By endorsement over the signature of Burt, as president, Colorado accepted this arrangement. The contracts to perform floor-covering work re- mained the obligation and the property of Colorado, and Dixon, for the purpose of manage- ment, remained an employee of Colorado. The retail business which Dixon obtained from Burt continued to operate for the remainder of 1952 under the trade name of Lauren Burt of Denver, herein called Denver. Dixon divided his time between the operation of Denver and the management of Colorado's floor-covering contracts. Samuel A. Kaufmann, Colo- rado's superintendent in floor-covering work, with authority to hire and discharge, remained in Colorado's employ in the same capacity under the management of Dixon. During the 9-month period from May 1, 1952, to the date of the hearing, Denver made no purchases from outside Colorado and performed no work outside that State. Denver has negotiated 3 contracts totaling in value about $25,000, for Stapleton Airfield, the principal airport at Denver, Colorado, and for Mountain States Telephone Company, a public utility. II. THE RESPONDENT Carpet, Linoleum and Resilient Tile Layers, Local Union No. 419, affiliated with Brother- hood of Painters, Decorators and Paper Hangers of America, AFL, is a labor organization, admitting to membership employees of Colorado, Denver, and Dixon. Ill. THE UNFAIR LABOR PRACTICES Coopersmith, a floor-covering mechanic, became employed in that work by Colorado in November 1949; except for short layoff periods continued in his employment until June 26, 1952; and for the last year worked under the direct supervision of Kaufmann. Coopersmith was a member of the Respondent. In April 1952 he engaged in a dispute with William Cooney, Respondent's business agent, and after that occasion was accused by Cooney of making statements derogatory to Respondent's leadership. In May Coopersmith was told that he must appear at a meeting of Respondent on June 11 in connection with Cooney's accusations, but that he would be permitted to work until that date. Kaufmann was advised by Cooney that Coopersmith must face charges before the Respondent on that date. Coopersmith attended the meeting and after some heated discussion was ejected from the meeting place. In the belief that he no longer would be permitted to work, Coopersmith did not report to his Employer on June 12 or 13, but receiving information from an undisclosed source that he would be permitted to continue his employment, came back to work June 16. He thereafter worked steadily until June 26. After June 17 all work done by Coopersmith was on jobs for which Denver was the contractor. It is suggested that due to this circumstance, Coopersmith has not been an employee of Colorado since that date. Kaufmann testified, however, that he supplied men to Denver with some frequency but that when Denver's need for them ended, they reported back to him for assignment. For all days worked after June 17, Coopersmith was 672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD paid by Denver rather than Colorado but, as will appear , he remained under the direct super- vision of Kaufmann. I find that the assignment of Coopersnuth by Kaufmann to work on a Denver contract did not operate to sever Coopersmith 's employment relation to Colorado. Kaufmann testified that during the morning of June 26 he received a request from Denver to assign someone to complete a job that could be accomplished in a few hours . During the same morning, Cooney telephoned Kaufmann to say that Coopersrruth was in bad standing with the Respondent and was not to work any more . Kaufmann then went to the job site where Coopersmith was working , told him of Cooney's call, and transferred him to another location to finish the work about which Denver had called . Coopersmith was replaced the next day on the job from which Kaufmann took him. Kaufmann testified that he assumed that Coopersmith would not be available for work because of the telephone message from Cooney . However, Coopersmith did report for work on the 27th. Kaufmann told him that there was no work for him. Coopersmith returned in a few days to receive the same answer to his request for work. Kaufmann conceded that he may have transferred Coopersmith on June 26 because the job on which he was employed was near the Respondent 's office where some representative of the Respondent might see him at work. The Respondent called no witnesses. In cross-examining Kaufmann (a member of Respond- ent), it attempted to establish that Coopersmith was not a particularly desirable workman and that Colorado 's need for floor-covering mechanics diminished at about the time Coopersmith lost his job. Kaufmann 's testimony gives some validity to both contentions, but makes it clear that neither alone nor in combination did they operate to terminate Coopersmith's employment. The complaint alleges that the Respondent maintained closed -shop conditions at Colorado and Denver . The evidence is that since 1948 there has been no formal written agreement be- tween the Respondent and either employer covering conditions of employment . As Respondent has by bargaining been able to gain concessions as to wages , car allowance, and perhaps other cost items , it has written letters to Colorado setting out what floor -covering mechanics should be paid and Colorado has complied. All such employees of Colorado and Denver are members of Respondent , and Colorado has consistently used the Respondent as a sole source for the recruitment of workers. Lauren Burt testified that Colorado 's floor-covering contracts will not be completed until about April 15, 1953, and that the need for floor -covering mechanics in this work has been more acute since June 26 than before. I find that Coopersmith had a reasonable expectation to share in this work had the Respondent not demanded his removal from the job on June 26. The retail business owned by Dixon does not meet the jurisdictional tests established by the Board ; thus, if the Respondent had caused or attempted to cause Dixon to discriminate against Coopersmith , the Board would not take cognizance. But no demand was made of Dixon that he cease giving employment to Coopersmith and to have done so would not have accom- plished Respondent's manifest design. Coopersmith was one of a group of skilled mechanics employed by Colorado who frequently was assigned by Colorado 's superintendent , Kaufmann, to work for Dixon . It was the employment by Colorado and the consequent opportunity to earn wages on Dixon 's jobs that Respondent sought to, and did, end. I find that Coopersmith re- mained an employee of Colorado during the periods of loan to Denver, that Coopersmith's employment with Colorado was terminated because of a demand by Respondent that such action be taken , that the discharge of Coopersmithby Kaufmann tended to encourage member- ship in good standing in the Respondent, and that the discharge thus was in violation of Section 8 (a) (3) of the Act. By causing Colorado to discriminate against Coopersmith in the manner found, Respondent, I find, violated Section 8 (b) (2) of the Act. By causing Coopersmith's discharge because he was believed to oppose some of the policies adopted by Respondent's officers , Respondent restrained and coerced Coopersmith in the exercise of rights guaranteed in Section 7 of the Act and thereby violated Section 8 (b) (1) (A) of the Act. It is so found. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of Colorado described in section I. above , have a close, intimate, and sub- stantial 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 Respondent has engaged in unfair labor practices within the meaning of Section 8 (b) (1) (A) and (2) of the Act, I will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. CARPET, LINOLEUM AND RESILIENT TILE LAYERS 673 Having found that Respondent has caused Coopersmith to lose his employment with Colorado and consequently to lose opportunity to earn wages on Denver contracts , it will be recommended that the Respondent notify Colorado and Coopersmith, in writing, that it has withdrawn its objections to Coopersmith 's employment by Colorado and that Respondent make Coopersmith whole for any loss of pay he may have suffered by reason of his discharge. Loss of pay shall be computed on the basis of each separate calendar quarter or portion thereof from June 26. 1952, to the date of Respondent 's notice of withdrawal of objection to Coopersmith's employ- ment. The quarterly periods shall begin with the first day of January, April, July, and October. Loss of pay shall be determined by deducting from a sum equal to that which Coopersmith would normally have eained for each such quarter or portion thereof, including any and all amounts he would have been paid by Denver following assignment by Colorado to Denver projects , his net earnings , if any, in other employment during the period. Earnings in one particular quarter shall have no effect upon Respondent's liability for any other quarter. Upon the basis of the above findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Lauren Burt, Inc., of Colorado , is an employer engaged in commerce within the mean- ing of Section 2 (6) and (7) of the Act. 2. Carpet, Linoleum and Resilient Tile Layers, Local Union No. 419, affiliated with Brotherhood of Painters , Decorators and Paper Hangers of America , AFL, is a labor organization within the meaning of Section 2 (5) of the Act. 3. By causing Lauren Burt, Inc ., of Colorado, to discriminate against Coopersmith in violation of Section 8 (a) (3) of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (2) of the Act. 4. By such conduct Respondent has restrained and coerced Coopersmith in the exercise of rights guaranteed in Section 7 of the Act and thus has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A ) 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. [ Recommendations omitted from publication.] NOTICE NOTICE TO ALL MEMBERS OF CARPET, LINOLEUM AND RESILIENT TILE LAYERS, LOCAL UNION NO. 419, AFFIL- IATED WITH BROTHERHOOD OF PAINTERS, DECORATORS AND PAPER HANGERS OF AMERICA, AFL, AND TO ALL EMPLOYEES OF LAUREN BURT, INC., OF COLORADO 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, we hereby notify you that: WE WILL NOT cause or attempt to cause Lauren Burt, Inc ., of Colorado , to discrim- inate against William F. Coopersmith or any other employee because he is not in good standing in our organization. WE WILL NOT restrain or coerce employees of Lauren Burt, Inc ., of Colorado, in the exercise of the right to engage in or to refrain from engaging in any or all of the concerted activities described in Section 7 of the National Labor Relations Act, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. WE WILL notify Lauren Burt, Inc ., of Colorado, and William F. Coopersmith that we withdraw our objection to the employment of Coopersmith 674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL make William F. Coopersmith whole for any loss of pay suffered by him as a result of our having caused his discharge by Lauren Burt, Inc., of Colorado. CARPET, LINOLEUM AND RESILIENT TILE LAYERS, LOCAL UNION NO, 419, AFFILIATED WITH BROTHERHOOD OF PAINTERS,DECORA- TORS AND PAPER HANGERS OF AMERICA, AFL, 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. THE GOODYEAR TIRE AND RUBBER COMPANY and BRICK- LAYERS, MASONS & PLASTERERS INTERNATIONAL UNION OF AMERICA, LOCAL NO. 7, AFL, Petitioner. Case No. 8-RC-1937. June 19, 1953 DECISION AND ORDER Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Charles A. Fleming, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. 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, Styles, and Peterson],. Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the mean- ing of the Act. 2. The labor organizations involved claim to represent em- ployees of the Employer. 3. No question affecting commerce exists concerning the representation of employees of the Employer within the mean- ing of Section 9 (c) (1) and Section 2 (6) and (7) of the Act, for the following reasons: The Petitioner requests a unit of bricklayers, cement masons, and plasterers at the Employer' s plants in Akron, Ohio. It contends that these employees constitute a craftgroupto which the Board has customarily granted a separate representation, notwithstanding a history of collective bargaining on a broader basis.' The Employer and the Intervenor, United Rubber, Cork, Linoleum & Plastic Workers of America, CIO, I and 1 The bricklayers, who perform the duties of cement masons and plasterers as well, have been -included with other production and maintenance employees, for purposes of collective bargaining, since 1937 at the Akron plants. 2 Herein referred to as URW-CIO or, together with its Local No. 2, as the Intervenor. 105 NLRB No. 97.