Heat & Frost Insulators Local 19

592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Association of Heat and Frost Insulators and Asbestos Workers, Local 19 and Insulation Industries, Inc. Case 30-CB-623 June 14, 1974 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO Upon a charge filed on August 3, 1973, by Insulation Industries, Inc., hereinafter called the Employer, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 30, issued a complaint and notice of hearing on February 28, 1974, against International Associa- tion of Heat and Frost Insulators and Asbestos Workers, Local 19, hereinafter called Respondent. The complaint alleged that Respondent had engaged in unfair labor practices within the meaning of Section 8(b)(1)(B) and Section 2(6) and (7) of the National Labor Relations Act, as amended, by conduct hereinafter specified. Respondent filed an answer in which it denied the commission of the alleged unfair labor practices. On April 3, 1974, the parties executed a stipulation of facts by which the parties waived a hearing before an Administrative Law Judge and the issuance of an Administrative Law Judge's Decision and recom- mended Order, and agreed to submit the case to the Board for findings of fact, conclusions of law, and an order, based on a record consisting of the stipulation and the exhibits attached thereto. On April 10, 1974, the Board approved the stipulation of the parties and ordered the case transferred to the Board, granting permission for the filing of briefs. Thereafter, both the General Counsel and the Respondent filed briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Upon the basis of the stipulation, the briefs, and the entire record in this case, the Board makes the following: FINDINGS OF FACT 1. JURISDICTION The Employer is, and at all times material has been, a Wisconsin corporation with its principal office located at Milwaukee, Wisconsin, where it is His daughters, Pamela Janiszewski and Judith Janiszewski , each own I percent of the Employer's stock and hold the offices of vice president and secretary-treasurer, respectively. 2 It was not only stipulated that Tate was, and is, a supervisor within the engaged in the application of pipe and duct insula- tion. During the past calendar year, a representative period, the Employer purchased and received goods valued in excess of $50,000 from suppliers located within the State of Wisconsin, which suppliers purchased and received, in interstate commerce, said goods directly from points located outside the State of Wisconsin. Respondent admitted, and we find, that the Employer is, and at all times material herein has been, an employer as defined in Section 2(2) of the Act engaged in commerce and in operations affect- ing commerce as defined in Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Respondent admitted, and we find, that International Association of Heat and Frost Insula- tors and Asbestos Workers, Local 19, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES Briefly stated, the stipulated facts show that the Employer was incorporated and began operations in 1968. Since that time, Bruce S. Tate, who owns. 98 percent of the Employer's stock,' has been the Employer's president and supervisor.2 At all times material herein, the Employer employed approxi- mately nine full-time asbestos workers who were all members of the Respondent. The only other full-time employee, with the exception of office clericals, was Gary Tate, who drove a truck and did cleanup work and was not a member of the Respondent. Since 1968, the Employer has recognized the Respondent as the exclusive collective-bargaining representative of all the Employer's employees in the appropriate unit. In 1971, the Employer joined the Southern Wisconsin Asbestos Contractors Associa- tion, hereinafter referred to as SWACA, a group of 10 asbestos contractors which represents its members for the purposes of collective bargaining and the adjustment of grievances. The current collective- bargaining agreement was negotiated by SWACA and signed by its president on behalf of the Employer and other members of SWACA. From 1951 to July 30, 1973, Tate was a member in good standing of the Respondent. In 1966, Tate requested and obtained a withdrawal card from the Respondent because he had obtained a supervisory position with another employer. Until July 30, 1973, meaning of Sec. 2(11) of the Act, but that he also represents the Employer for purposes of collective bargaining and/or the adjustment of grievances within the meaning of Sec. 8(b)(IXB) of the Act. 211 NLRB No. 86 HEAT & FROST INSULATORS LOCAL 19 593 Tate periodically renewed his withdrawal card and remained a member in good standing of the Respondent. On or about April 7, 1973, Tate delivered metal jacketing and bands to a jobsite at Aqua-Chem Company in Milwaukee, Wisconsin. Some of the metal had already been cut to size in the Employer's shop, and Tate began cutting the balance of the material on the jobsite. While Tate was working, Respondent's business agent, Bill Globig, and presi- dent, Gene Gottsacker, appeared on the jobsite and observed Tate cutting material to size for installation. Shortly thereafter, these union representatives charged him, pursuant to article XXIII of Respon- dent's constitution and bylaws, with having worked with the tools of the trade while on a withdrawal card, and with having worked against the best interests of the Respondent by working on Saturday, April 7, 1973, without receiving double time and vacation, welfare, pension, and education fund benefits as called for in the collective-bargaining agreement between SWACA and the Respondent. He was also charged with violating Respondent's constitution and bylaws by working with Gary Tate, who was not a member of the Respondent. Pursuant to article XXIV of Respondent's constitution and bylaws, a trial was held on May 9, 1973. Tate appeared at the trial and asserted that the work he had performed on April 7 did not fall within Respondent's jurisdiction and that it was work normally performed by employers in the trade. The trial board, however, found Tate guilty on all four charges and ordered him to pay a $1,000 fine by June 15, 1973. The stipulation agreed to by the parties shows that Tate was informed that he would be automatically expelled from the Respondent if he did not pay the fine by June 15. Tate refused to pay the fine and his membership in Respondent lapsed on or about July 15, 1973. At the May 1973 meeting of the Joint Trade Board, made up of representatives of the Respondent and SWACA, Respondent charged the Employer with contract violations arising out of the events described above. A hearing was held on June 27, 1973, and Tate was found guilty of all the alleged contract violations and was fined $500. A. Contentions of the Parties The General Counsel contends that the Board should find that an 8(b)(1)(B) violation is warranted based on the following two theories: "1. that in fining Tate, an admitted supervisor, for conduct involving a dispute under the collective-bargaining agreement the Respondent restrained and coerced the Employer in the selection of its bargaining representative by conduct necessarily tending to make Tate subser- vient to the Respondent. 2. that in preferring charges against Tate before the Respondent's Executive Board, Respondent by-passed SWACA, the Employ- er's chosen representative for collective bargaining and adjustment of grievances, which conduct had a necessary tendancy and forseeable consequence of affecting the Employer's selection of a bargaining representative." Respondent, on the other hand , contends that the complaint herein should be dismissed since the unit work for which Tate was fined for performing did not involve negotiation or grievance adjustment which is protected by Section 8(b)(1)(B) of the Act. Respondent's contention in this regard is based on its view that "a union's discipline is prohibited only if directed at the management person's activities qua management person, and that this did not include the man's performance of unit work ." Respondent further contends that Tate's membership in a multiemployer bargaining association did not alter his obligation, as a union member, not to perform unit work. In addition, Respondent argues that Tate is not entitled to the protection afforded to supervi- sors as designated representatives of their employers since he is an employer who voluntarily agreed to retain his union membership. B. Analysis and Conclusions In two recent cases,3 the Board has held that a union does not violate Section 8(b)(1)(B) of the Act when it fines a union member who is the sole owner of an unincorporated business enterprise. In one of those cases, Barr Floors, the incorporation papers were not filed until after the owner-member had crossed the picket line, conduct for which he was fined by the Respondent therein. The Board noted, however, that, even if the business had been incorporated at the time that its owner crossed the picket line, it would not have changed the result in that case since it would be elevating form over substance to attempt to draw a distinction between the sole stockholder of the corporation and the corporation itself. In line with this reasoning, the Board has consistently pierced the corporate veil where an individual is the sole owner of a corpora- tion, and has considered one as the alter ego of the other. In the instant case, the Employer is incorporated, but Tate owns 98 percent of the stock and his two daughters own the remaining 2 percent. In addition, 3 See Local 146, Sheet Metal Workers International Association, AFL-CIO (Robert Dale Jones d/b/a Aortic Heating and Cooling Company), 203 NLRB No. 168, and Bricklayers, Masons and Plasterers' Union, Local No 1 (Barr Floors, Inc), 209 NLRB No. 123. 594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Tate is the Employer's president and supervisor and, in effect, is operating as an individual entrepreneur. Under these circumstances, we do not consider Tate to be an employee selected for supervisory functions, but we do consider him, regardless of the corporate technicalities, to be the owner of the Employer. In view of this determination, we conclude that Respon- dent's conduct in fining Tate would not tend to subvert any loyalty between the Employer herein and its supervisors . Accordingly, we find that the Re- spondent did not violate Section 8 (b)(1)(B) of the Act by fining Tate, and that the complaint herein should be dismissed in its entirety. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety.