The Dade County, Florida, Tile, Marble and Terrazzo Contractors Association

1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD NOTE.-We will notify any of the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 849 South Broadway, Los Angeles, California, Telephone No. 688-5204, if they have any questions concerning this notice or compliance with its provisions. The Dade County, Florida, Tile, Marble and Terrazzo Contractors Association and its Agent, Anthony Scremin and Marble Pol- ishers, Machine Operators & Helpers, Local 121, AFL-CIO and Independent Terrazzo, Tile and Allied Trades Union L. M. Penzi & Son Tile Co., Inc. and Marble Polishers, Machine Operators & Helpers, Local 121, AFL-CIO and Independent Terrazzo, Tile and Allied Trades Union. Cases Nos. 12-CA- 2768-1, 12-CA-2952, 12-CA-2768-3, and 12-CA-2996. May 28, 1965 DECISION AND ORDER On February 15, 1965, Trial Examiner Lloyd Buchanan issued his Decision in the above-entitled proceedings, finding that the Respond- ents had not engaged in the unfair labor practices alleged in the com- plaint and recommending that the complaint be dismissed in its entirety. The General Counsel thereupon filed exceptions to the Trial Examiner's Decision and a brief in support thereof. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with these cases to a three-member panel [Members Fanning, Brown, and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in these cases, and hereby adopts the Trial Examiner's findings, con clusions, and recommendations with the following additions and modifications. Like the Trial Examiner, we do not view the Paul-Rastatter con- versations regarding the position available with the Intervenor as suf- ficient evidence to warrant a conclusion that the Association has rendered or is rendering unlawful aid, assistance, or support to the Intervenor. The record demonstrates that Paul, attorney for the Asso- ciation, merely mentioned to Rastatter, during a casual conversation, that the Independent Union, according to his information, had an opening for a business agent. Paul gave Rastatter the name and 152 NLRB No. 105. THE DADE COUNTY, FLORIDA, TILE, MARBLE, ETC. 1009 address of that Union's attorney to whom application for the position could be made if Rastatter were interested. There is no evidence to support the view that a recommendation of Rastatter was or would be given by Paul to the Intervenor or that such a recommendation would have any effect upon the Intervenor's selection of a business agent. The record does not disclose any other evidence which would warrant the finding of a violation based on these allegations of the complaint.' Nor do we deem the inclusion of the notice of a meeting of the Inter- venor in the pay envelopes of employees of L. M. Penzi & Son Tile Co., Inc., by the Company's bookkeeper or the events surrounding the brief circulation of the blue "signature sheet" by the bookkeeper to consti- tute violations of the Act on the part of either the Company or the Association. With respect to the meeting notice, the record conclu- sively demonstrates that the bookkeeper did not know that the meeting was for union purposes or, consequently, whether the meeting was of members of the Independent Union or of the incumbent, Local 121. This information had not been given to her and was not, therefore, included on the notice which stated only "MEETING TODAY.... (the time and place).... All Tile & Terrazzo helpers." Further, the bookkeeper testified without contradiction that she would include such a notice in the employees' pay envelopes for anyone who called and requested that information of general interest be relayed to the employees. With respect to the blue "signature sheet," the record is void of any evidence which would demonstrate that either Penzi or his bookkeeper knew that the "signature sheet" had any connection with either union; nor did the "signature sheet" itself so state. A finding that Penzi did have such knowledge or that the bookkeeper had such knowledge and that it was, therefore, attributable to Penzi, must be based on more than mere speculation. Having concluded, in agreement with the Trial Examiner, that the Respondents have not violated Section 8(a) (1) or (2) of the Act, we shall order that the complaint be dismissed in its entirety. [The Board dismissed the complaint.] 1 Having found that the conversations relative to a position with the Intervenor con- stitute insufficient evidence on which to predicate a violation of Section 8(a) (2), we find it unnecessary to decide whether or not Paul acted as an agent of the Association in discussing this matter with Rastatter. The General Counsel contends, further, that Paul had also discussed with Rastatter the possibility of the Independent Union's affiliation with the International Union of Operating Engineers, Rastatter's employer. However, this incident is not alleged in the complaint , nor was the complaint amended to include it at any time after Rastatter testified to its occurrence. Paul testified that he could not recall such a conversation and that he thought it had not taken place. In the absence of an allegation in the complaint or an amendment thereof concerning this conversation, and in view of the rnresolved contradictory testimony with regard thereto, we do not reach this issue. 789-730-66-vol. 152-65 1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD TRIAL EXAMINER'S DECISION The complaint herein (issued July 31, 1964; charges filed October 21, November 14, and December 16, 1963, and January 9, June 8, and July 31, 1964), as amended, alleges that the Association and Penzi, by various acts therein described, have violated Section 8(a)(1) and (2) of the National Labor Relations Act, as amended, 73 Stat. 519; that on or about January 14, 1964, said Respondents entered into a settlement agreement, which was approved by the Regional Director for Region 12 on or about January 20; and that they thereafter further violated Section 8(a)(1) and (2) of the Act and the settlement agreement by attempting to enlist and assist an individual to become business agent for the Respondent, by enclosing in employees' pay envelopes notices of a meeting of the Independent, and by assisting the Independent to obtain bargaining authorization signatures from employees. The answer, as amended, denies the allegations of violation, more specifically denies that certain alleged acts were committed with the knowledge or authority of the Respondents, and denies that the settlement agreement was violated. A hearing was held before Trial Examiner Lloyd Buchanan at Miami, Florida, on various dates between October 12 and 15, 1964. At the close of the hearing, counsel were given an opportunity to argue orally. Pursuant to leave granted to all parties, briefs have been filed by the Respondents and the General Counsel, the time to do, so having been extended. Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT (WITH REASONS THEREFOR) 1. THE RESPONDENTS' BUSINESS AND THE LABOR ORGANIZATIONS INVOLVED It was admitted and I find that: The Association, a Florida nonprofit corporation, acts as the agent for all of its members in labor matters including contract negotia- tion with unions; the Association's members annually purchase in the aggregate goods and materials valued at more than $50,000 and received directly from sources outside the State of Florida; Penzi is a member of the Association and annually purchases materials valued at more than 5,000 and received directly from sources outside the State of Florida; and the Association and its members, including Penzi, are severally engaged in commerce within the meaning of the Act. It was admitted and I find that Local 121 and the Independent are severally labor organizations within the meaning of the Act. II. THE UNFAIR LABOR PRACTICES The Respondents made various preliminary motions which were disposed of at the hearing, reasons stated on the record. I have noted their claim that the history of events in the representation proceeding indicates improper motivation by the Charg- ing Union and error in the Regional Director's dismissal of the representation petition and his issuance of the complaint herein. Neither the documents received in evidence in this connection nor the events cited show such impropriety as to bar consideration of the allegations of violation. After charges had been filed against the Respondents, the Association, Penzi, and Local 121 on or about January 14, 1964, entered into a settlement agreement in Cases Nos. 12-CA-2768-1 and 12-CA-2768-3 which was on or about January 20 approved by the Regional Director, all conditioned on observance of the terms thereof and the promise of the Association and Penzi that they would not engage in any interference within the meaning of the Act. It was agreed at the hearing that proof would be limited to postsettlement violations and that, until it appeared that there had been such violations, prior acts would not be considered. Without admitting the allegations of earlier violation, the Respond- ents agreed that they would not litigate the allegations with respect thereto: they would not object to a finding of such violation as alleged if postsettlement violation were found sufficient to warrant adjudication against them. It appears without contradiction except for some variance in dates that in the latter part of January or early February 1964, Rastatter, an assistant business agent for the Operating Engineers, had a conversation with Paul, who was at that time and had been since October or November 1963 the attorney for the Association. The conver- sation took place in the negotiation or conference room of Maule Industries, Inc., also represented by Paul and not a member of the Association, during negotiations between Maule and the Operating Engineers. Paul told Rastatter that "he was having THE DADE COUNTY, FLORIDA, TILE, MARBLE, ETC. 1011 problems with Dennis Murphy's Local," Murphy being the business representative for 121. Indicating his knowledge and ability to work in such a situation, Rastatter replied that he had worked for 121 for 4 years. Early in February, during another Maule-Engineers session at the same place, Paul told Rastatter that a movement was on foot among an independent group in 121 to establish an independent union; that the group was looking for "someone to stand up to Dennis Murphy"; and that with Rastatter's background he should get in touch with Landy, another attorney, who was representing the independent group. Whether at one or two such meetings in the conference room or in the Maule lounge room before the bargaining session with the Engineers began, during a casual conversation which lasted not more than 2 minutes as they were waiting to begin a Maule bargaining session, it was Rastatter who first mentioned Murphy, saying that he had himself worked for 121 at one time; when he asked whether Paul was having trouble with Murphy, Paul replied in the affirmative adding that he represented the Association; and it was Rastatter who, saying that he knew the industry, declared that he would be interested in being business agent for the independent group. Disclaiming any connection with the matter, Paul nevertheless told Rastatter that the could tell him with whom to get in touch, and gave him Landy's name and address. I have noted also Rastatter's faradic (if not electrifying) reply, when his attention was later called to it, that Paul had earlier asked him whether the Engineers would be interested in affiliation with the Independent. While not alleged, this would fur- ther suggest Paul's involvement with the Independent, although not necessarily on behalf of the Association. Paul could not recall this conversation as further described by Rastatter, and thought that it had not taken place. While Paul's recollection was admittedly not complete; he was positive in his denial that he gave Landy's card to Rastatter; he maintained that he did not have any such card. Whether such conversation constituted solicitation and whether Paul was act- ing on behalf of the Association do not depend on whether Landy's card was passed; his name and address admittedly were. As alleged, a few weeks later and again at Maule's, Paul asked Rastatter whether he had talked with Landy, Rastatter replying that he had called but had been unable to keep an appointment, and that he would call Landy at the first opportunity. While the next allegation is that Paul asked Rastatter whether he had made an appointment with Landy, Rastatter testified that on March 14 or 15, again in Maule's offices, he told Paul that he had an appointment with Landy for the afternoon of March 19. Rastatter did not keep that appointment. The last in this series occurred on or about March 21, Rastatter having made an appointment with Landy for that morning. We have no explanation for Rastatter's appearance in Paul's office, on another floor of the same building. This must remain to us, as it was to Paul, "a complete mystery." Rastatter testified, as alleged, that Paul now sent him to Landy's office. According to Paul, he found Rastatter in his office when he came in, and asked what he was doing there. Told that he had come to see Landy and was "waiting" for him, Paul, having expressed his surprise at seeing Rastatter, told him, "Enjoy yourself," and went into his office leaving Rastatter read- ing a magazine. We can find violation here only if we assume that there were viola- tive acts concerning which there was no testimony by either Paul or Rastatter. The issue here is whether Paul who, as we have seen, appeared for and represented Maule at the time of the conversations at its offices in connection with Maule-Engi- neers bargaining sessions , was acting as agent of the Association during these conver- sations with Rastatter. My impression, as I heard Rastatter, that Paul was not and had not indicated that he was speaking for the Association, was confirmed on review of the transcript and, as we shall see, by Paul's testimony. We must not make too much of the fact that Paul was also admittedly the attorney and thus the agent of the Association. This is not a case of a supervisor or agent in a plant engaged in the employer's business. While one possible conclusion is that Paul might have been acting on behalf of the Association even while he was at Maule's, the different circumstances must give pause as we explore the relationship and the capacity in which he was acting at the time, and here we infer an implied agency even if his acts were neither authorized nor ratified. It does not appear that the Associa- tion as principal knew or could have known , either earlier or later, of these events. Certainly the question arises and calls for proof whether an organization which retains an attorney is liable for anything which he may say, particularly in the con- text of or at the time of his activity on behalf of another employer. We recall that, after Rastatter had mentioned 121 and Murphy and had asked Paul whether he was having trouble, the latter had replied that he represented the Association, as he had in labor matters since October 1963 . Paul himself testified on cross-examination that, 1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD although he met with the Association's labor committee dozens of times, he never discussed the Rastatter conversations with it; it "was a ridiculous thing," it had taken place at the Maule meetings, and it was not on his mind in connection with Associa- tion affairs. Whether or not Paul, as he testified, had "no interest" in the identity of the Independent's business agent, our concern is with any interest and activity based thereon which can be and is here charged to the Association. Paul had earlier testified that he did not recall that he had ever informed the Association or any of its members of these conversations with Rastatter. Paul's representation of the Association does not per se make it responsible for everything which he did while apparently engaged in connection with the affairs of another client; nor for every statement which he made at times and places when he was not shown to be directly engaged in Association matters If Paul himself vio- lated the Act, he is not a respondent He was at the time of the events described involved generally in activity on behalf of Maule. If agency is to be found, it might be as reasonable to charge or impose it upon Maule as upon the Association. What- ever the General Counsel's problem as to proof, and aside from any per se aspect, I find that the Association is not liable for the acts of its attorney of 3 to 5 months under circumstances such as these when he is apparently engaged in work for another client. We cannot substitute for necessary factual connection the suspicion of the General Counsel or of counsel for 121. Nor, whatever its value might be, do we even have Rastatter's impression whether Paul was here speaking on behalf of the Association. We thus do not reach the question whether the conversations, described as "casual," constituted such substantial support or assistance as would warrant a finding of viola- tion.' While, as counsel for the Respondents argues, direct interference was not shown in the absence of evidence of employee knowledge of the conversations be- tween Paul and Rastatter, derivative interference could be found were there unlawful assistance or support; and the latter could be found whether or not the activities engaged in were crowned with success, if support were actually shown. If more needs to be said, it may be noted that, unlike violation of Section 8(a)(1) which may be found in connection with acts vis-a-vis employees because such acts tend to interfere with employees' activities regardless of their effect in a given situa- tion, the support here alleged did not constitute such 8(a)(1) violation because it does not appear to have come to the attention of any employees. As for violation of Section 8(a)(2), and whatever Paul's intent, one may further consider whether in fact his abortive efforts either substantially interfered with the administration of the Independent or contributed support to it. Neither insofar as these Respondents are concerned and within the issues of the case, need we go into the association later formed between Landy and Paul. The latter testified credibly that this was neither in esse nor contemplated at the time of the events, supra. Since I cannot predict the Board's decision on the issues of violation, I am impelled to utter a word of caution and clarification with respect to remedy. The Board recently, after finding violation of Section 8(a)(2) which stemmed from acts of employer representatives (supervisors), directed the employer to withdraw recogni- tion from a certified union.2 I would point out that this provides a means for an employer to terminate or avoid its obligation to bargain. In the instant case the rights of the employees to be represented by one or another union should not be limited or denied because of what Paul (or Penzi, infra) did. Enclosure in employee pay envelopes by Penzi on or about June 4 of a notice of a meeting of the Independent is alleged as a violation of Section 8(a)(1) of the Act; and violation of Section 8(a)(2) is charged in the same connection against the Association because of such enclosure by Penzi. Pettit, Penzi's bookkeeper and sole office employee, was entrusted with the handling of such matters, and Penzi is respon- sible for her acts. She testified that an unidentified caller asked her to inform Penzi's helpers and grinders that a meeting of the Independent would be held the following Monday night, and although Penzi has a bulletin board, it was her idea to put the information on a card in the employees' pay envelopes on Friday. She was not told nor did she on the cards state the name of the union or in fact that it was to be a union meeting. It has not been shown that Pettit ever had refused or would refuse to issue a similar notice on behalf of any other organization (she testified that she would act similarly on anyone's request; she indicated no concern over union activities) and although this question has not been raised, one may wonder whether Cf Signal Gil and Gas Company, 131 NLRB 1427. The Powers Regulator Company, 149 NLRB 1185. THE DADE COUNTY, FLORIDA, TILE, MARBLE, ETC. 1013 even inclusion in pay envelopes of a notice of meeting clearly described as a union meeting would itself constitute unlawful assistance or interference. Finally it must be noted that, unless Penzi's membership makes the Association liable for all of its members' acts,3 the Association has not been connected with what is here claimed to be violative. I find that there was no violation here. It is also alleged that Penzi unlawfully interfered with employees' protected con- certed activities by assisting the Independent in May to obtain bargaining authoriza- tion signatures from employees. About the middle of May a colored man whom she did not know brought a blue sheet of paper into the office and asked Pettit to have the employees sign it. Typed on the sheet were the words "All Marble Polishers, machine operators and helpers"-nothing else. At that time Penzi had two employees in those classifications. A few minutes after she received it, and outside the building, Pettit showed the sheet to Penzi's president, L. M. Penzi. Just then the two employees so classified came up and, in Penzi's presence, Pettit told them that the colored man had requested that they sign the sheet. They said that they would not sign because there was no information on the sheet. L. M. Penzi said nothing. The sheet remained in the office until the same colored man picked it up unsigned about 2 weeks later. Information concerning the blue sheet was offered by counsel for the Independent, who told us that preparatory to the filing of a representation petition he had prepared a similar blue sheet for each member of the Association with the member's name and address on the respective sheets except for one whose name he had been unable to read; and that after the sheets were collected and returned to him, the following was typed on each "We, the undersigned employees of (name of member company) wish to have Independent Terrazzo, Tile & Trades Union, Inc. as our negotiating Agent." The circumstances indicate that the blue sheet left at Penzi was one of those pre- pared by counsel for the Independent (the one on which he had not inserted the company name), although he testified that he did not know who had delivered it. If the sheet was submitted to Penzi for signatures, the complaint nowhere charges violation by the Independent although preparation and submission of such sheets by the attorney for the Independent to the respective employers in order to obtain an election is grossly violative for the interference requested of the employers in obtain- ing employee signatures and for the assistance obtained from the employers. As for violation by the Association or by its employer members in this connection, we have no more proof than the statement of counsel concerning his preparation of the blue sheets for submission to the employers and his later receipt of them, this being hearsay insofar as it suggests any action taken by the employer members of the Association, specifically by Penzi which alone is charged. With respect to Penzi, that Respondent is bound by the acts of the employee who takes care of its business when L. M Penzi is not in the office Although he has given her no instructions concerning documents like the blue sheet, she is entrusted with such matters, having herself posted the notice pursuant to the settlement agree- ment, later calling L. M. Penzi's attention to it We recall also that the latter per- mitted Pettit to offer the blue sheet to the employees for signature and did not disavow her act. But we must likewise recall that the sheet as submitted suggested no un- toward action or action of any kind, that being the very reason given by the two employees for their refusal to sign. To the extent that the sheet was left on the desk in the office for 2 weeks, it was not addressed to any other employees, and there is no evidence that it was called to the attention of employees when, as was testified, they came into the office for their paychecks during the 2-week period. If offense be charged for L. M. Penzi's failure to disavow what on its face was not violative, when Pettit on that single occasion and without warning to him but in his presence transmitted the request to the two employees, their immediate refusal would appear to have closed the matter, whatever tendency to interfere could conceivably be found. L M. Penzi would need an expert's knowledge of the law and the cases to recognize that the situation, apparently closed, required a disavowal. But most important in this connection as already noted and as pointed out by counsel, neither the sheet nor any remark made pointed to union activities. There is no basis here for finding violation and setting aside the settlement agreement. Mention may be made of the argument by counsel for the Respondents that it is unfair to deprive or delay the employees of all of the members of the Association in the exercise of the right to select the Independent as their collective-bargaining rep- resentative Actually it is conceivable that were the proper respondent before us on a timely charge and with more proof than the hearsay statement by counsel to 3 L. M. Penzi is a member of the Association's executive board. 1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD show that action was in fact taken by the various employers who maintained the blue sheets and by them probed into their employees' attitude toward the various labor organizations, violation might indeed be found. But while we can reflect on the possibilities of violation which might be found and of greater delay in any expres- sion of employee choice, we are limited by the proof. . 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. Marble Polishers, Machine Operators & Helpers, Local 121, AFL-CIO, and Independent Terrazzo, Tile and Allied Trades Union are severally labor organizations within the meaning of Section 2(5) of the Act. 2. The Respondents have not since January 1964 engaged in unfair labor practices within the meaning of Section 8 (a) (1) or (2) of the Act. 3._ There is no sufficient basis for setting aside the settlement agreement in Cases Nos. 12-CA-2768-1 and 12-CA-2768-3. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, I recommend that the complaint be dismissed in its entirety. J. A. Terteling & Sons, Inc. d/b/a Western Equipment Company and International Union of Operating Engineers Local 370, AFL-CIO. Case No. 19-CA-2920. May 28, 1965 DECISION AND ORDER On March 25, 1965, Trial Examiner William E. Spencer issued his Decision in the above-entitled proceeding, finding that the Respond- ent 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 attached Trial Examiner's Deci- sion. Thereafter, the General Counsel and the Respondent filed excep- tions to the Trial Examiner's Decision with briefs in support thereof. Pursuant to the provision of Section 3 (b) of the National Labor Relation Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Members Fanning, Brown, and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the entire rec- ord in this case, including the Trial Examiner's Decision, the excep- tions, and briefs, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations.' 1 The General Counsel excepts to the finding in the Trial Examiner's Decision that the Respondent offered striking employees reinstatement immediately upon receipt of Trial Examiner Bennett's Decision in the earlier case, reported at 149 NLRB 248. However, the record Is unclear as to when the reinstatement offers were made, and the date to which backpay runs under the Trial Examiner's Order which we are adopting must therefore be left for compliance. 152 NLRB No. 110.