Bottfield-Refractories Co.

188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. Jamestown Machine and Manufacturing Company is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Association of Machinists, District No. 83, AFL-CIO, and the Employees' Shop Committee of the Jamestown Machine and Manufacturing Com- pany are each a labor organization within the meaning of Section 2(5) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed them by Section 7 of the Act, as found above, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By assisting, contributing support to, and interfering with the administration of the Shop Committee, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(2) of the Act. 5. 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.] Bottfield-Refractories Co.; Frommeyer & Co.; Jack Casper & Co.; Joseph Liberati ; Swartz & Funston, Inc.; John B . Kelly, Inc. of Pa.; Dan Lepore & Sons ; Alex Guerrina & Sons; John Campagna Co.; Anastasi Bros. Corp.; Michael G. Sabia and John J. Hennelly Bottfield-Refractories Co.; Swartz & Funston, Inc.; John B. Kelly, Inc. of Pa.; Alex Guerrina & Sons ; John Campagna Co.; Anastasi Bros. Corp.; Employing Bricklayers' Associa- tion of Delaware Valley and Vicinity and Eugene B. McGough and William Tammaro Swartz & Funston, Inc.; Dan Lepore & Sons and John P. Murphy Swartz & Funston , Inc.; Alex Guerrina & Sons ; John Campagna Co.; Anastasi Bros. Corp. and David E. Harte Jack Casper & Co.; Swartz & Funston , Inc.; John B. Kelly, Inc. of Pa.; Alex Guerrina & Sons; John Campagna Co.; Anastasi Bros. Corp. and Edward Kelly Bottfield-Refractories Co. and William Wallace McNeill Frommeyer & Co.; Jack Casper & Co.; Swartz & Funston, Inc.; John B. Kelly, Inc. of Pa.; Dan Lepore & Sons; Alex Guerrina & Sons; John Campagna Co.; Anastasi Bros. Corp. and Frank Craig Bottfield-Refractories Co.; Jack Casper & Co.; Swartz & Fun- ston, Inc.; Alex Guerrina & Sons ; John Campagna Co.; Anastasi Bros. Corp . and Michael Conway. Cases Nos. 4-CA- 1853, 4-CA-1854,4-CA-1861, 4-CA-1856, 4-CA-1858, 4-CA-1860, 4-CA-1862, 4-CA-1866, and 4-CA-1877. April 13, 1960 DECISION AND ORDER On October 16, 1959, Trial Examiner Louis Plost issued his Inter- mediate Report in the above-entitled proceeding, finding that the 127 NLRB No. 28. BOTTFIELD-REFRACTORIES CO., ETC. 189 Respondent Association and Respondent Employers had not engaged in the unfair labor practices alleged in the consolidated complaint and recommending that the consolidated complaint be dismissed in its entirely, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the General Counsel filed exceptions to the Intermediate Report with a supporting brief. The Respondents filed a brief in support of the Intermediate Report. 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 and briefs, and the entire record in this case, and hereby adopts the findings and conclusions of the Trial Examiner only to the extent consistent with our decision herein. In disagreement with the Trial Examiner and as alleged in the com- plaint, we find that Respondent Association and Respondent Employ- ers, except Respondent Employers Michael G. Sabia and Dan Lepore & Sons,' have interfered with the administration of Local 1, Brick- layers, Masons and Plasterers' International Union of America, AFL- CIO, within the meaning of Section 8 (a) (2) and (1) of the Act, by participating through their officers, agents, and management repre- sentatives in voting in a union election of officers and members of its conference (bargaining) and other committees. Respondent Association is an association of masonry contractors in the Philadelphia area organized for the purpose of engaging in col- lective bargaining on behalf of its members with various labor organi- zations representing their employees. All Respondent Employers are masonry contractors and, except Respondent Liberati, members of Respondent Association. Respondent Association and Respondent Employers have for many years bargained and contracted with Local 1 of the Bricklayers International, the Union herein, as the repre- sentative of their bricklayer employees. They are parties to the exist- ing contracts with the Union, which are not in evidence, covering such employees. On January 10, 1959, the Union conducted an election of its officers and members of conference (or bargaining) and grievance commit- tees. The record establishes that the following named individuals, all of whom were members of the Union for a number of years, but not in the bargaining unit or units covered by contracts, appeared at this election and, despite the challenges against some of them, were permitted by the International representative in charge of the election, Colflesh, to participate in the election. Admittedly, these individuals occupied the following positions with the Respondents : I We find that General Counsel failed to sustain the burden of proof that Respondent Employers Michael G Sabia and Dan Lepore & Sons participated in voting in the Janu- ary 10 election through their officers, owners, or management representatives. 190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sidney Swartz-Vice president and member of the bargaining committee of the Association . He is also supervisor for Respondent Swartz & Funston, Inc. Ellis J. Casper-Secretary-treasurer and member of the bargain- ing committee of the Association; he is also a partner in Respondent Jack Casper &Co. Anthony Nolfd-Member of the bargaining committee of the Asso- ciation; he is also an officer of Respondent Frommeyer & Co. Leo Canpagna-Member of the bargaining committee of the Asso- ciation; he is also an officer of Respondent Alex Guerrina & Sons, Inc. Thomas Fairley-Member of the bargaining committee of the Asso- ciation; he is also a supervisor of Respondent John B. Kelly, Inc. Joseph Anastasi-Member of the bargaining committee of the Asso- ciation; he is also an officer of Respondent Anastasi Brothers Corp. John Campagna-Owner of Respondent John Campagna & Co. Frank Dunn-Construction Superintendent of Respondent Bott- field Refractories Co. Joseph Liberati-Owner of Joseph Liberati. Of the total membership of 1,200 to 1,300 in the Union, some 576 members participated in the election . As some of the candidates for union offices and membership on the committees won or lost by a majority of a few votes, the General Counsel contends that the par- ticipation of these individuals in the election was not only unlawful but might have affected the results of the election. The Trial Examiner, relying primarily on his findings that the of- ficers, owners, and management representatives of the Respondents who participated in the election have been members of the Union in good standing, and-that they voted in the election on their own be- half, as individuals , rather than as officers or agents of the Respond- ents, found that such conduct was not violative of the Act . However, in Nassau and Suffolk Contractors' Association a the Board found that the mere act of voting in a union election by president and job superintendents , among others, of the respondent employers who were members of the union but were not in the bargaining unit of rank and file, was a form of interference with the administration of the union. The Board said : So far as appears from the record , these individuals did nothing more than appear at a union meeting and vote at a secret election concerning administration of the Union . However, voting in union elections is plainly a form of interference with the admin- istration of a labor organization . It may not be unlawful for company executives and high-ranking supervisors to retain union membership they acquired as rank-and -file employees as job in- 2 Nassau and SufoM Contractors' Association, Inc., and its members, 118'NLRB 174, 183. BOTTFIELD-REFRACTORIES CO., ETC. 191 surance in the event they should revert to ordinary employee status, but that does not make it lawful for them to participate in elections to determine who is to administer the affairs of the union. It is quite conceivable that in a closely divided vote exec- utive and high-ranked supervisors would have the balance of power and be in a position to select the union officials who are to deal with them in their separate capacity as employer agents.... As the mere act of voting by officers and management representa- tives of the Respondents in a union election of officers and members of its committees constitutes unlawful interference with the adminis- tration of the Union, it is not necessary that the Respondents be found to have encouraged or authorized voting participation by these in- dividuals or that they conspired to vote for one rather than the other slate of candidates, or that they have voted as a unit, or that the vote of any one in the employer group was decisive. Accordingly, we find that by the conduct of their officers, employers, and management representatives the Respondents interfered with the administration of the Union within the meaning of Section 8(a) (2) and (1) of the Act. THE REMEDY As we have found that the Respondents by the conduct herein de- scribed unlawfully interfered with the administration of the Union, we shall order that they cease and desist from participating through their offcers, owners, or management representatives in union elec- tions of officers or members of its various committees, or by par- ticipating otherwise in its internal administration. Under the circumstances, however, we find that it will not effectuate the policies of the Act to direct the Respondents either to cease and desist from recognizing the Union or to withdraw or withhold recog- nition therefrom. The General Counsel does not contend that the Union is an employer dominated or assisted labor organization, or that it is not the majority representative of the employees concerned. The Union is not a party to this proceeding as in the Nassau case. There is, furthermore, no evidence that in the January 10 election the Respondents were attempting to assist the election of one rather than another slate of candidates for the union offices, or that they par- ticipated in the election as an employer group rather than as in- dividuals, long-standing members of the Union. ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that Respondent Employing Bricklayers' As- sociation of Delaware Valley and Vicinity and Respondent Employ- 192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ers Bottfield -Refractories Co.; Frommeyer & Co.; Jack Casper & Co.; Swartz & Funston, Inc. ; John B. Kelly, Inc. of Pa.; Alex Guerrina & Sons ; John Campagna Co.; Anastasi Bros. Corp . ; and Joseph Liberati, their officers, agents, successors , and assigns, shall : 1. Cease and desist from interfering with the administration of Local 1, Bricklayers , Masons and Plasterers' International Union of America, AFL-CIO, by participating through their officers, owners, and management representatives in voting at union elections of of- ficers and member of its various committees, or by participating other- mise in internal administration of the said labor organization. 2. Take the following affirmative action which the Board find will effectuate the policies of the Act : (a) Post at their respective business offices in the Philadelphia area, and at all projects now being operated by them within the territorial jurisdiction of the said labor organization, copies of the notice at- tached hereto marked "Appendix A." 3 Copies of such notice, to be furnished by the Regional Director for the Fourth Region, shall, after being duly signed by representatives of Respondent Association and Respondent Employers, be posted by each of them immediately upon the receipt thereof, in conspicuous places, including all places where notices to employees are custoniarily posted. The notices shall remaiA posted for 60 consecutive days thereafter. Reasonable steps shall be taken by the Respondents to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for the Fourth Region, in writ- ing, within 10 days from the date of this Order, what steps the Re- spondents have taken to comply herewith. IT IS HEREBY FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges that Respondent Employers Dan Lepore & Sons and Michael G. Sabia engaged in unfair labor practices. MEMBER RODGERS took no part in the consideration of the above Decision and Order. I In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted 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." APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT interfere with the administration of Local 1, Bricklayers, Masons and Plasterers' International Union of America, AFL-CIO, by participating through our officers, own- ers, or management representatives in voting at union elections BOTTFIELD-REFRACTORIES CO., ETC. 193: of officers and members of various committees of the said labor organization, or otherwise in its internal administration. EMPLOYING BRICKLAYERS' ASSOCIATION OF DELAWARE VALLEY AND VICINITY Dated---------------- By-------------------------------------- (Representative ) (Title) FROMMEYER & COMPANY, Employer. By------------------------------------- (Representative ) (Title) JACK CASPER & CO., Employer. By-------------------------------------- (Representative) (Title) SWARTZ R FUNSTON, INC., Employer. By------------------------------------- (Representative ) (Title) JOHN B. KELLY, INC. OF PA., Employer. By-------------------------------------- (Representative) (Title) ALEX GUERRINA & SONS, Employer. By-------------------------------------- (Representative ) ( Title) JOHN CAMPAGNA CO., Employer. By-------------------------------------- (Representative) (Title) ANASTASI BROS. CORP., Employer. By-------------------------------------- (Representative ) (Title) JOSEPH LIBERATI, Employer. By-------------------------------------- (Representative ) ( Title) BOTTFIELD-REFRACTORIES CO., Employer. 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.. 560940-61-vol. 127-14 194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD INTERMEDIATE REPORT STATEMENT OF THE CASE The opening paragraph of the complaint herein reads as follows. It having been charged by John J. Hennelly, Eugene B. McGough , William Tammaro, John P . Murphy, David E. Harte, Edward Kelly, William Wallace McNeill, Frank Craig, and Michael Conway (herein called Charging Parties), that Employing Bricklayers ' Association of Delaware Valley and Vicinity (herein called Respondent Association ), and -Bottfield-Refractories Co., From- meyer & Co., Jack Casper & Co , Joseph Liberati , Schwartz & Funston, Inc., John B . Kelly, Inc. of Pa., Dan Lepore & Sons, Alex Guerrina & Sons, John Campagna Co., Anastasi Bros . Corp., and Michael G. Sabia (herein called Respondent Employers), have engaged in, and are engaging in unfair labor practices affecting commerce , as set forth and defined in the National Labor Relations Act, as amended , 61 Stat. 136 (herein called the Act). It is the considered opinion of the Trial Examiner that to clearly present this matter, giving proper weight to the very accurate statement appearing in the sum- mation of the General Counsel's brief that: This case involves a new type of violation only recently brought to the Board's attention. Accordingly, we are dealing with a still developing field of law. this report must be burdened with some discussion of the nine individual charges consolidated as the basis of the complaint herein. The record discloses (from evidence which was admitted as necessary to explain the basis of this proceeding ) that on January 10, 1959, Local 1, Bricklayers , Masons and Plasterers' International Union of America. AFL-CIO, (Local 1) conducted an election among its members for the election of various officers, committees, and a business agent. This election was strictly a union affair . It was not, nor could it conceivably have been , under the auspices , nor within the legal consideration, of the National Labor Relations Board (herein called Board) under the terms of the National Labor Relations Act as amended , 61 Stat. 136 (herein called Act) inas- much as the Board has no authority to interfere in the internal administration of a labor organization . The record further discloses that Local 1 has "between 1200 and 1300" members eligible to vote in its elections ; that 576 votes were cast in the January 10 election; and that the votes were closely divided, for example the vote for president being 257-256-33 and the vote for business agent was 282-200-70. The election was in charge of Samuel F . Colfiesh, special representative of the Inter- national Union, the parent body of Local 1. Of the nine named Charging Parties, seven had been candidates in the election , only one of them had been defeated. On January 15, 1959, a charge alleging that Employing Bricklayers ' Association of Delaware Valley and Vicinity (herein called the Association ) had engaged in unfair labor practices within the meaning of Section 8(a)(1) and (2) of the Act involving Local I was filed by John J. Hennelly.l The charge was docketed by the Regional Office as 'Case No. 4-,CA-1853. A similar charge was filed the same day by Eugene B. McGough and docketed as Case No. 4-CA-1854. On January 20, 1959, similar charges were filed by John P. Murphy and David E Harte, docketed as Cases Nos. 4-CA-1856 and 4-CA-1858, respectively. On January 22 Edward Kelly filed a charge alleging that named individuals who were "contractors" voted in the election conducted by Local 1 on January 10, in violation of Section 8(a)fl) of the Act . The charge was docketed as Case No. 4-aCA-1860. Likewise on January 22, 1959, William Tammaro and William Wallace McNeill filed a charge docketed as Cases Nos 4-CA-1861 and 4-CA-1862 similar to the others averring violations of the Act by the Association. On January 30, Frank Craig filed a similar charge docketed as Case No. 4-CA- 1866 and on March 2, Michael Conway filed a charge similar to the others but naming those violating the Act as six certain employers , and making no mention of the Association. All the original charges are signed by the Charging Parties as individuals. All but one of the above-listed charges were replaced by "Amended Charges" prior to the filing of the complaint The changes made by the amendments are of considerable interest. 1 Hennelly testified he was and had been business agent of Local 1 for 6 years BOTTFIELD-REFRACTORIES CO., ETC. 195 Case No. 4-CA-1853 (Hennelly) originally naming the Association as engaging in the unfair labor practice was amended February 20 to omit the Association and name 11 Employers instead. Case No. 4-CA-1854 was amended. on March 5, 1959, to include .5 of the 11 Employers named by Hennelly together with the Association. Case No. 4-CA-1856 was amended February 9 by replacing the name of the Association with two Employers later appearing in Hennelly's amended charge. Case No. 4-CA-1858 was amended February 10 by dropping the Association as the offender and naming four of those later named in Case No. 4-CA-1853 by Hennelly as those engaging in the unfair labor practices. Case No. 4-CA-1860 amended February 10 names six Employers, five who later appear in the 4-CA-1853 amendment Case No. 4-CA-1861, which originally only complained of the Association, was amended on February 10 to also include seven Employers, six of whom are those named in Case No. 4-CA-1860. Case No. 4-CA-1862 was amended February 26 by replacing the Association by one named Employer. Case No. 4-CA-1866 was amended on February 19 by replacing the Association as the one charged with unfair labor practices with eight Employers all later named in the Hennelly "Amended Charge." Case No. 4-CA-1877 was not amended. The captions all reflect the amended charges upon which the consolidated com- plaint is based. Upon the amended charges, consolidated for purposes of hearing, the Regional Director for the Fourth Region issued a complaint dated July 8, 1959, alleging that the Employing Bricklayers' Association of Delaware Valley and Vicinity and Bottfield-Refractories Co.; Frommeyer & Co.; Jack Casper & Co.; Joseph Liberati; Swartz & Funston, Inc.; John B. Kelly, Inc. of Pa.; Dan Lepore & Sons; Alex Guer- rina & Sons; John Campagna Co.; Anastasi Bros. Corp.; and Michael G. Sabia have .engaged in and are engaging in unfair labor practices affecting commerce, as set forth and defined in the National Labor Relations Act, as amended, 61 Stat. 136, more particularly Section 8(a) (1) and (2) and Section 2(6) and (7) thereof. The specific conduct claimed violative of the Act is set forth in the complaint as follows: On January 10, 1959, balloting was conducted by the Union for the election of its officers, agents and representatives, including the Union President, Vice- President, Recording Secretary, Treasurer, Financial Secretary, and members of, among others, the Conference and Grievance Committees. Respondent Association and Respondent Employers, through their officers, agents and representatives listed in paragraph 7, above, to wit: Leo Campagna, Joseph Guerrina, Ellis J. Casper, Sidney Swartz, Thomas Fairley, Anthony Nolfi, John Campagna, Frank Dunn, Joseph Anastasia, Daniel Lepore, Sam Robinson and Joseph Liberati, did on January 10, 1959, cast ballots and vote in the said election of the Union's officers described in paragraph 8, above. Due notice of hearing was served. The Respondents duly filed an answer in which they admitted the individuals named had voted in the election conducted by Local 1, but averred that these individuals were members in good standing in said Local 1, and had voted as individuals in their own behalf and not as officers, agents, or representatives of the Association or Employers,2 and denied that they had engaged in any of the unfair labor practices alleged. Pursuant to notice a hearing was held before Louis Plost, the duly designated Trial Examiner at Philadelphia, Pennsylvania, August 10, 1959. All the parties were represented . The parties participated in the hearing and were afforded full opportunity to be heard, to examine and cross -examine witnesses , to introduce evidence bearing upon the issues , to argue orally, and to file briefs and/or proposed 'findings of fact and conclusions of law with the Trial Examiner . The General 'Counsel and the Respondents argued orally . Briefs were received from the General Counsel on September 11 and from the Respondents on September 14. A statement of position in lieu of a brief was received from the Charging Parties on September 11. Upon the entire record in the case, and from his observation of the witnesses, the Trial Examiner makes the following: a It appeared that Employer Michael G . Sabia was not a member of the Association ; however, he was represented at the hearing and participated therein. 196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENTS The complaint alleges inter alia and the answer admits: Respondent Association is a corporation incorporated under the laws of the Commonwealth of Pennsylvania. The Respondent Association is an association of masonry constructors formed for the purpose of engaging in collective bar- gaining with labor organizations on behalf of its members, and is the designated exclusive collective bargaining representative of its members. The members of the Respondent Association annually contract for and perform services as masonry constructors outside the Commonwealth of Pennsylvania valued well in excess of $50,000. Joseph Liberati is an independent masonry constructor, not a member of the Association, with his principal offices located in Philadelphia, Pennsylvania, who annually performs services outside the Commonwealth of Pennsylvania, valued in excess of $50,000. Respondent Association, and the Respondent Employers, including Liberati, at all times material herein, have been and are now engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE ORGANIZATION INVOLVED Local 1, Bricklayers, Masons and Plasterers' International Union of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES As hereinbefore found the complaint alleged that in the election conducted by Local 1 on January 10, 1959, the Respondent Association and the Respondent Employers, through their officers, agents, and representatives, participated because Leo Campagna, Joseph Guerrina, Ellis J. Casper, Sidney Swartz, Thomas Fairley, Anthony Nolfi, John Campagna, Frank Dunn, Joseph Anastasi, Daniel Lepore, Sam Robinson, and Joseph Liberati, did on said January 10, 1959, cast ballots. The answer admitted the allegation; however, the General Counsel adduced evi- dence as to the conduct of and voting by representatives of management in the election. The first witness called by the General Counsel was John J. Hennelly, who on January 15, 1959, filed the charge in Case No. 4-CA-1853, originally naming the Association as engaging in unfair labor practices and later amended to replace the Association by 11 named Employers, these I1 in various combinations being named in the other 8 charges as amended. As to conduct other than voting as a basis for an unfair labor practice finding, Hennelly, who was a candidate for business agent in the January 10 election (a position to which he had been elected on 5 previous occasions and to which position he was elected on January 10, the balloting being 282 for Hennelly and a total of 270 against him, from an eligible list of more than 1,200 voters) testified that during the casting of ballots in the election at the Union's hall he saw Joe Liberati, a contractor, and Frank Dunn, construction superintendent for Bottfield-Refractories Co., wearing buttons pinned to their coat lapels which were inscribed "Vote for Doyle and Schilling." Schilling was a candidate against Hennelly for business agent , while Doyle was a candidate for president of Local 1, losing by a vote of 256-257-33. Hennelly testified he saw the above buttons worn only by Liberati and Dunn. Liberati did not testify. Frank J. Dunn testified that he has been construction superintendent for Bottfield- Refractories Co. since 1953; has been a member of Local I since 1948; has voted without challenge in all elections conducted by Local 1 since he became a member; and was not challenged in the January 10 election in which he voted. Dunn further testified he did not wear a "Doyle and Schilling" campaign button on January 10. On the evidence considered as a whole and from his observation of the witnesses, the Trial Examiner credits Dunn and finds that he did not wear a campaign b"tton promoting "Doyle and Schilling" on January 10, 1959, while he was at the Local 1 election and further finds that his right to vote was not challenged. Hennelly further testified that "waiting in line" approximately 50 feet from the voting booth: BOTTFIELD-REFRACTORIES CO., ETC. 197 I saw Anthony Nolfi, who represents Frommeyer Company; Sid Swartz, of Swartz and Funston Company; Leo Campagna, of Guerrina Company; Thomas Fairlie of John B. Kelly Company; and John Campagna was in the group. He further testified: ' TRIAL EXAMINER: What did you do when you saw these various individuals whom you say-whom you have named in the voting line? The WITNESS' I drawed some of the employers' attention I was going to challenge them, and went to the director of the election and challenged the eligibility of these people to vote in the election as employers voting. On cross-examination Hennelly was asked: "You say that you challenged the right of these men to vote. Whose right specifically did you challenge to vote?" Hen- nelly's answer did not name anyone but merely was "The contractors, employers." The answer evidently satisfied the Respondent whose next question was "The employers. The people whose names you mentioned." Hennelly's answer to this being a rather cryptic "Both for that, and many before that, too." Hennelly then testified that he challenged the right of voters to participate to Daniel R. Perna, the International Union's deputy in Local 1, and Samuel F. Colfiesh, the special representative of the International who had charge of the elec- tion; that on all challenges he made, Perna ruled that the party challenged was ineligible but that in each case Perna was overruled by Colfiesh. Daniel R. Perna, Local 1 International Union deputy, testified that it was his duty to arrange the January 10 election; that in the conduct of the election he was "under the supervision" of Samuel Colfiesh, the International Union's special repre- sentative who was also present; that during the voting: I was at the polling place, and a member approached me and asked me to challenge this certain member that holds a card, that he would not be eligible to vote. Perna further testified: TRIAL EXAMINER: I see. Do you know Mr. John J. Hennelly? The WITNESS: I do. TRIAL EXAMINER: Did he challenge any voters to you? The WITNESS: He did. TRIAL EXAMINER: Who did he challenge? The WITNESS: He challenged Joseph Liberati, and Tom Fairlie, in fact, all the contractors. TRIAL EXAMINER: Well, you haven't told me any but two, you've told me Fairlie and Liberati. Now, who else? The WITNESS: Frank Dunn. TRIAL. EXAMINER: Who else? The WITNESS: Well, that's all I could think of. Perna testified that he ruled the challenged voters ineligible but was overruled by his superior, Colfiesh. He further testified that Liberati and Dunn wore buttons "promoting or campaign- ing for Doyle and Schilling" while at the January 10 election. The Trial Examiner has credited Dunn's denial that he wore a campaign button and that his Tight to vote on January 10 was not challenged. Saln\Iel F. Colfiesh, the International Union's special representative, testified that: He had final authority to rule on eligibility of voters in the January 10 election; he "remembered" challenges being made only in the cases of Joseph Nitter (who how- ever voted before the challenge was made to him), Fairley, Nolfi, Swartz, and Casper; the challenges were made under the provisions of the Union's 1956 con- stitution but that he made his rulings under the 1958 constitution; he did not have a copy of the 1958 constitution at the election because "it hadn't been delivered yet" but that he nevertheless ruled on the "contents" of the constitution not yet printed, and which was not delivered until March 1959 , some 3 months after the election. International Representative Colfiesh further testified that the 1956 constitution was being rewritten at the time of the Union's convention in October 1958; it had not been read to the delegates; and he did not participate in the rewriting of the con- stitution, nor had he seen it at the time of the election but had seen "a brief in Washington, D.C." He further testified: TRIAL EXAMINER: And did you remember all [of the constitution of 1958], or did you just remember that particular part? The WITNESS: No, I remembered that particular part of it, sir. 198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD TRIAL EXAMINER : I see. But this thing, you were sure of? The WITNESS: I was sure of, sir, because it had been our contention for many years. Edward Kelly, who is Charging Party in Case No. 4-CA-1860, testified that "between 11 and 2" on January 10, 1959, he saw "Thomas Fairlie, Sid Swartz, Ellis Casper, Joe Anastasia, and Tony Nolfi" in the vicinity of the Union's hall. Kelly testified: I saw them coming out of the one car of the entrance-I was standing at the entrance on Broad Street, and the employers all come out of the one car and proceeded to go up the stairs to the hall to the polling place. In order that there be no doubts the Trial Examiner point's out that the above repre- sents all of Kelly's testimony. Upon the foundation of -Kelly's testimony, the General Counsel next sought to build proof that his structure of unfair labor practices enclosed all the Respondents named in the consolidated complaint, by the following: Frank Craig, who is the Charging Party in Case No. 4-CA-1866, testified that while the January 10 election was in progress he spoke to Ellis Casper, an employer who was in line to vote. As to this conversation Craig testified: Well, I asked him how he was, and how was his father whom I knew very well. He said all right. So, that was about the extent of the conversation. Oh, yes. He did relate--I told him that they were all together, all the contractors. A rather strange cluster together. He said yes, "We had a meeting before we came here." Craig further testified that present in the vicinity: There was Joe Anastasia, of the Anastasia Brothers Corporation; there was Thomas Fairlie, from the J. B. Kelly, Incorporated; there was Daniel Lepore, from Lepore & Sons, also present; there was John Campagna, of the John Campagna Company, he was there; and Tony Nolfi, I remember very clearly, he was there, he represented Frommeyer. That's about all I can remember clearly. The above recital represents the complete factual picture shown by the evidence offeredby General Counsel. The following witnesses were called by the Respondents. Anthony P. Nolfi testified that: He is bricklayer supervisor for Frommeyer & Co.; he has been a member of Local 1 "in and out" for "about 30 years," his membership being uninterrupted for the past "12 or 13" years; he always voted in elections of Local 1; and he voted in the January 10 election without challenge. Thomas Fairley testified that: He is superintendent for John B. Kelly; he has been a member of Local 1 "for 30 years"; he voted "in practically nearly every election" conducted by Local 1 during that time; and he voted in the January 10 election. He further testified: To my,knowledge, there was no meeting of the employers the night before, the day before, or at /anytime, pertaining to this election. Sidney Swartz testified that: He is bricklayer superintendent for Swartz & Funston; he has been a member of Local 1 "off and on" since 1938, and voted in its elections; :in 1957 he was challenged at the Union's election but that Perna ruled (in the 1957 election) he could vote, which he 'did; and he' voted in the January 10 election. Swartz further testified: ' Q. Did you attend any, kind' of a meeting to discuss this voting in elections? A. No. Q. Was there such a meeting, to your knowledge9 A. Not to my knowledge. There was no cross-examination. :Joseph F. Guerrina alleged in the complaint as having voted in the January 10 election" testified that he is not a member of Local 1, and did not vote or attempt to vote in the January 10 election. On the record the Trial Examiner credits Guerrina and finds that he did not vote or attempt to vote in the January 10 election as alleged. Eugene L. Lepore testified without contradiction that he is the son of Daniel Lepore, alleged to have voted in the Union's election, that Daniel Lepore is not a member of Local 1, and did not vote in the January 10 election. The Trial Examiner credits Lepore. BOTTFIELD-REFRACTORIES CO., ETC. 199 Conclusion as to the Evidence Any reader of this Intermediate Report, familiar with the Act and Board and court decisions interpreting it, must surely feel, at this point, that the Trial Examiner has been reporting conduct which does not surround an unfair labor practice within its ambit but relates merely to a fight between factions within a Union at the conclu- sion of one of the controversies, one faction charging Section 8(a) (2) violations involving the Union m which they sought and won office. As a charge of a violation under Section 8(a) (2) relates to conduct which most seriously affects a labor organization as the representative of its members, the Trial Examiner feels that he must again refer to the charge filed by these guardians of the honor of Local 1. Business Agent Hennelly testified in support of Case No. 4-CA-1853, in which he filed the original charge on January 15, the fifth day after the election during which the alleged unfair labor practice conduct occurred. Case No 4-CA-1853 then became the standard about which the other eight charging parties rallied to file their eight charges, the nine being the basis of the consolidated complaint. The Trial Examiner reasonably expected that Hennelly would testify as to the conduct of the 11 employers he charges as engaging in illegal conduct, yet he testified only as to 7 of these, and the sum total of his testimony cannot be reasonably inter- preted to mean more than that he knew of 4 employers or their representatives who voted under challenge and that perhaps lie saw the others he named present at the polls. Of the other eight charging parties, five had been candidates in the January 10 election (all but one were elected) and of these five only one (Kelly) testified. Again, in order that there be no misunderstanding, the General Counsel adduced direct evidence only with respect to three of the nine consolidated cases. It may well be that the General Counsel relied on the fact that the answer admitted the allegation that 12 Employers voted in the Union's election. However, the Re- spondents' admission was only that the individuals voted; it left the question of any illegality leading to an unfair labor practice open for proof. The General Counsel sought to supply the proof that the Respondents engaged in conduct violative of the Act by the testimony of Kelly and Craig which he argues to be evidence of a conspiracy against Local 1 and conduct within the meaning of Section 8(a)(2) of the Act. The evidence of a conspiracy on the part of the Respondents to engage in unfair labor practices within the meaning of Section 8(a) (2) of the Act is based entirely on the testimony of Kelly that he saw five Employers or their representatives arrive at the polling place, in a group, coupled with the testimony of Craig that he was told by Ellis Casper, an Employer, "We had a meeting before we came here." On this testimony the General Counsel argues, "It further appears that the employer representatives who voted did so as a part of a planned concerted effort." Based on a statement of Swartz, while testifying, that he and Fairley "work together on the Conference Committee" and Fairley's answer that he "did not know" how he and Swartz happened to be at the January 10 election together, the General Counsel builds the following argument in his brief: Under these facts only one reasonable conclusion can be reached-that the employers participating did so as part of a planned campaign under the auspices of Respondent Association. Six of eight officers arriving and voting together cannot credibly be explained as a coincidence. Therefore, Respondent Asso- ciation is as guilty of interference as the individual Respondent Employers, for as pointed out by the Board in the Anclwrage Businessmen's case, although aware of the participation of supervisors in the affairs of the union (the greater majority of the officers thereof themselves-participating) ',. . . the Respondent Employers took no steps to have them discontinued," thereby ratifying the acts of its officers and representatives 3 $ In citing Anchorage Businessmen's Association, 124 NLRB 662, the General Counsel adverts to a Board decision handed down August 21, 1951, 11 days after the hearing herein. Evidently "We are dealing with a still developing field of law'.' However, the Trial Examiner points to the following language from the Board's decision in the Anchorage case : In finding domination of the Independent, the Trial Examiner proceeded on the theory that the, activities of the pharmacist supervisors were automatically attribut- able to the Respondent Employers We do not agree. At is well established that the participation of,supervisors in intraunion activities does not per ae constitute,evi- dence .of domination , where, as here , the supervisors were members of the same bar- 200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Trial Examiner points out that in the Anchorage case the Independent involved was found to have entered into a contract with the Association (Employer) in violation of Section 8(a)(3) of the Act. Upon this violation coupled with the further finding that by acquiescing in its supervisors' participation in voting at Independent meetings affecting the administration of the Independent, dealing with the Independent's negotiating committee which included two store managers" constituted a violation of Section 8(a)(2) and (1) of the Act. Thomas Fairley, one of the employer representatives whom Kelly saw arrive at the polling place, testified, as hereinbefore found: Q. Was there a meeting the night before that election of any employers? You heard Craig testify. Was there any meeting? A. To my knowledge, there was no meeting of the employers the night before, the day before, or at anytime, pertaining to this election. Anthony P. Nolfi, also seen by Kelly, testified: Q. Did you attend any kind of a meeting to discuss this voting in elections? A. No. Q. Was there such a meeting, to your knowledge? A. Not to my knowledge. Frank J. Dunn, construction superintendent of Bottfield-Refractories Co., who voted in the January 10 election, testified: Q. Did you attend any meeting to discuss the voting of this local's union affairs with any other employees or representatives? A. No, sir. Mr. LEES: Cross-examine. Mr. WALTHER: No questions. Craig did not create an impression of completely disinterested candor with the Trial Examiner. At most, his related conversation with Employer Casper in which Casper spoke of a "meeting," consisted of a few short sentences of "made" conver- sation. The Trial Examiner has found Fairley, Nolfi, and Dunn to be credible witnesses as to other matters; he now fully credits their testimony to the effect that they did not attend and that there was no meeting of employer representatives held prior to the January 10 election at which the election was discussed. The General Counsel would have the'Trial Examiner infer that the Respondents engaged in a planned campaign to interfere in the affairs of Local 1 and that those Employers and employer representatives who voted in the Union's election did so to further such a conspiracy. On the contrary, it is clear that the Employers and Association members' representatives who so voted (a) were members in good standing in Local 1, some having been members for 30 years who had voted in the Union's elections throughout their membership, and (b) they so voted on their own behalf, as individual members, not as representatives or agents of the Association as part of a scheme, conspiracy, or attempt to unlawfully interfere -with the affairs of Local 1. The Trial Examiner so finds 4 gaining unit and union as rank-and-file pharmacists , and absent proof that the employer encouraged, authorized, or ratified their activities . In the Nassau and Suffolk case the Board rationalized the rule as follows : There are many industries where for a very long time foremen have been in- cluded in the same bargaining unit and union as the rank and file . No doubt in many such cases the foremen are active in the affairs of the union, serve on union committees , and are even union officers . It has not heretofore been con- tended, to the best of our knowledge, that where such conditions exist the em- ployer must necessarily be considered as dominating the bargaining representa- tive. We are not willing to hold that the voluntary inclusion of foremen in a bargaining unit of nonsupervisory employees is per se proof,of employer domina- tion and justifies disestablishment of the union representing such unit. And to require the employer to exercise some sort of veto power over the appointment of foremen to official positions within the union to avoid the charge of domina- tion would seem to involve interference in the affairs of the union , which is precisely what Section 8(a) (1) of the Act is designed to prevent [ Emphasis supplied. ] • The Trial Examiner , following the pattern herein established by Union Delegate Colfiesh in relying on "union law" not yet published, and the General Counsel in citing the Anchorage case, will also refer to a case, not decided at the time of the hearing, namely, Graham Transportation Company, 124 NLRB 960, in which the Board states : BOTTFIELD-REFRACTORIES CO., ETC. 201 The General Counsel leaned heavily on Nassau and Suffolk Contractor's Associ- ation Inc., and its members, 118 NLRB 174, which the Trial Examiner finds to be clearly distinguishable from the instant matter. In presenting his evidence the General Counsel in several instances pointed out similarity with the Nassau case, and in his oral argument and again in his brief he stressed similarity. However, in the opinion of the Trial Examiner the similarities are superficial so that in his attempts to fit this matter with Nassau the General Counsel was compelled to make excessive use of Procrustes' bed. The General Counsel is compelled to ask that the Trial Examiner infer that the Employers and Association representatives, all members of Local 1 who voted in its January 10 election not only did so in a scheme to manipulate the Union's affairs against the interests of the rank-and-file members of Local 1, but also to infer that they voted in support of a single ticket; and further infer that they could swing any union election. He is compelled to argue in his brief, not on evidence, but as mere wishful thinking in seeking a "suitable remedy" that: There is no allegation that the Union is not, in effect, the majority repre- sentative. But it is clear that interference in the affairs, administration and control of the Union has been engaged in by Respondents. As a result of this interference, the election of the Union officers, agents and representatives is "tainted." The evidence as to the candidates preferred by the voting employers and results of the election clearly indicates that some of the present Union officers were the choice of the employers, who possessed the balance of voting power. As the Trial Examiner reads the Nassau case, the unfair labor practice found therein by the Board is based on the conduct of two individuals who were in fact, and who acted as, agents of the employer while members of the union's negotiating committee. Surely no one will argue that the evidence in this matter shows any such conduct as having taken place during all the years Employers and their representatives were members of Local 1 and openly exercised their membership right to vote. The Trial Examiner does not believe the inferences the General Counsel asks be drawn from the evidence can be so drawn. With respect to the argument of the General Counsel that by not disavowing the conduct of those alleged to have voted in the January 10 election in order to illegally meddle in the affairs of Local 1, the Respondents engaged in an unfair labor practice, the Trial Examiner would ask, when, under the allegations of the com- plaint and the facts herein, could the Respondents have "disavowed" to the mem- bers of Local 1, inasmuch as Hennelly filed his charge 5 days after the unfair labor practice allegedly occurred. Conclusion The Trial Examiner is of the opinion that the record of this case discloses not an unfair labor practice but an intramural union battle in which one faction is seeking to make use of the Board's functions regardless of any effect an 8(a)(2) finding might have on the rights of, or benefits enjoyed by, the rank-and-file mem- bers. The Charging Parties seem like the woman in the folktale who bathed her baby and then threw out the baby together with bath water. That the General Counsel was not entirely hoodwinked is shown by the fact that both in his oral argument and his brief he pointed out that he did not seek the ordinary 8(a)(2) remedy as the facts did not show Local 1 to be a dominated labor organization, and although in one paragraph of the complaint a violation of Section 8(a)(1) of the Act is alleged by the Respondents having "interfered with, restrained and coerced" Local 1, the next paragraph alleges a Section 8(a) (2) violation by "interfering with the administration" of the Union. As a remedy the General Counsel asks that the Respondents withdraw: All recognition from Local Union No. 1, Bricklayers, Masons and Plasterers' International Union of America, AFL-CIO, as the representative of any of Respondent's employees for the purpose of collective bargaining with respect to grievances, labor disputes, wages, rates of pay, hours of employment or other conditions of employment, unless and until said Union is no longer repre- sented, administered or controlled by any officer or officers, agents or repre- sentatives holding office as a result of the election of January 10, 1959, or ,It is not a requirement of the Act that a "labor organization" be comprised exclu- sively of "employees." Supervisors may . . . join and participate in the activities of a labor organization without affecting its status ... . 202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD any other election of officers, agents or representatives of Local No. 1, in which Respondents voted or may vote. Clearly the Board is asked to interfere in the internal affairs of a labor organiza- tion to the point of making it wholly impotent. Final Conclusions The Trial Examiner is convinced on the entire record and finds that the General Counsel has not presented a cause of action upon which the Board can grant relief and will therefore recommend that the consolidated complaint and each of the nine separate alleged causes of action comprising the complaint as issued be dismissed. CONCLUSIONS OF LAW 1. The operations of the Respondents occur in commerce , within the meaning of Section 2(6) and (7) of the Act. 2. Local 1 , Bricklayers, Masons and Plasterers ' International Union of America, AFL-CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 3. The Respondents have not engaged in unfair labor practices as alleged in the complaint, within the meaning of Section 8(a)(1) and (2) and Section 2(6) and (7) of the Act. [Recommendations omitted from publication.) National Hotel Company d/b/a Thomas Jefferson Hotel' and Local 886, Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, 1 Petitioner. (ya e No. 10-P('- 4534. April 13, 1960 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, hearings were held before H. Carlton Byran, Jr., hear- ing officer. The hearing officer's rulings niade at, the hearings 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 [Chairman Leedom and Members Bean and Fanning]. Upon the entire record in this case, the Board finds: 1. The parties stipulated that : The Employer is a Texas corpora- tion engaged in operating a hotel at Birmingham, Alabama; during the 12-month period preceding the date of the first hearing the Em- ployer purchased $7,500 worth of alcoholic beverages from the State of Alabama, which beverages originated outside that State; and dur- ing that same period the Employer's gross revenues were in excess of $500,000 of which more than 75 percent was derived from transient guests. The Employer declined to stipulate that it was engaged in commerce. On the basis of the above-stipulated facts, we find that the Employer is engaged in commerce within the meaning of the Act, 1 The name of the Employer appears as corrected at the hearing. 2 The name of the Petitioner appears as amended at the hearing. 127 NLRB No. 22.