Glaziers, Local Union 767

National Labor Relations Board - Board Decisions

Feb 8, 1977

228 N.L.R.B. 35 (N.L.R.B. 1977)

GLAZIERS, LOCAL UNION 767
Glaziers, and Glassworkers , Local Union 767 (Sierra
Glass Service, Inc.) and David John Bergman. Case
20-CB-3696
February 8, 1977
DECISION AND ORDER
By MEMBERS FANNING, JENKINS, AND
PENELLO
On October 12, 1976, Administrative Law Judge
Russell L. Stevens issued the attached Decision in
this proceeding. Thereafter, the Charging Party and
Employer jointly filed exceptions and a supporting
brief.
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.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby is,
dismissed in its entirety.
DECISION
STATEMENT OF THE CASE
RUSSELL L. STEVENS, Administrative Law Judge: This
matter was heard at Reno, Nevada, on August 24 and 25,
1976.1 The complaint, issued May 18, 1976, is based upon a
charge filed November 17 by David John Bergman, an
individual. The complaint alleges that Glaziers & Glass-
workers, Local Union 767, hereinafter referred to as
Respondent or as the Union or as Local 767, violated
Section 8(b)(3) of the National Labor Relations Act,
hereinafter referred to as the Act.
All parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross- examine
witnesses , to argue orally, and to file briefs. Briefs, which
have been carefully considered, were filed on behalf of
General Counsel, Respondent Union, and Sierra Glass
Service, Inc.
I All dates hereinafter are within 1975 unless otherwise stated
2 General Counsel moved in his brief to make minor transcript correc-
tions The motion has been carefully considered , has not been opposed, and
hereby is granted
3 This summary is based upon credited testimony of various witnesses
relative to facts not in dispute (except as discussed ) and supported by the
record
35
Upon the entire record 2 of the case, and from my
observation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Sierra Glass Service, Inc., hereinafter referred to as Sierra
Glass, a Nevada corporation with a principal place of
business in Reno, Nevada, is, and at all times material
herein has been, engaged in the business of installing
residential, commercial, and other glass. During the most
recent calendar year, in the course and conduct of its
business operations, Sierra Glass purchased goods, materi-
als, and supplies valued in excess of $50,000 directly from
suppliers located outside the State of Nevada.
I find that Sierra Glass is, and at all times material herein
has been, an employer engaged in commerce and in
operations affecting commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
It. THE LABOR ORGANIZATION INVOLVED
Glaziers & Glassworkers , Local Union 767, is, and at all
times material herein has been , a labor organization within
the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background3
Warren Welsh (Welsh) and Larry Schenck (Schenck)
became partners in February 1968, and on February 12,
1968, opened a glass business in Reno called Sierra Glass
Service, at 645 Sunshine Lane (hereinafter referred to as
645). About a year later Welsh and Schenck opened a new
location at 230 Sunshine Lane4 (hereinafter referred to as
230), called Sierra Glass Service, initially as a warehouse
and later as a glass business . About the same time, Welsh
and Schenck acquired from a company known as Alpine
Glass a glass business at South Lake Tahoe. The Tahoe
business was renamed South Shore Glass by Welsh and
Schenck. Welsh and Schenck managed the three business-
es5 together until Schenck died in November 1971.
Welsh owned and managed the three businesses, alone,
after Schenck's death. In 1973, on a date not established,
Welsh sold South Shore Glass to Ann and Bill Russell. In
October 1973, Welsh sold 230 to his estimator and
manager, Laurel Marshall, who about a year later moved
the equipment and employees to a different location. In
January 1976, Welsh moved the 645 businesses to 620,
where it now remains.
The first contract between the Union and Sierra Glass
was signed in 1968 , when the only business location was at
645. (This is discussed below.) Sierra Glass continuously
was under contract with the Union thereafter, at least until
S 230 is about 2-1/2 blocks from 645
5 The business at 645 was incorporated in February 1969 230 was
operated from the 645 location . South Shore Glass was incorporated shortly
after the business was purchased . Corporate headquarters for 645 and 230
was at 645 (now 620 Sunshine Lane) Welsh and Schenck maintained their
offices at 645 Welsh 's office now is at 620 Sunshine Lane (herein 620)
228 NLRB No. 10
36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the events concerned in the controversy herein . A problem
between Sierra Glass and the Union occurred in 1971, when
the Union accused the Company of contract violations. 645
was picketed by Local 767 on that occasion.
A new contract was entered into , effective August 1,
1972, until August 1, 1975, between Local 767 and a group
of employees including Sierra Glass . At the time Welsh
signed the 1972 contract he was operating three businesses,
at South Shore Glass, at 645 , and at 230 . Welsh participat-
ed, on at least two occasions , in negotiations for the 1972
contract . The provisions of the union (Local 767) contract
existing when South Shore Glass was opened were applied
at South Shore Glass and adhered to by Welsh during the
time he (and Schenck) owned South Shore Glass from 1969
until 1973 . During that period of time Welsh made regular
reports and forwarded contributions required by the union
contract to the Union on behalf of unit employees at South
Shore Glass . The provisions of the 1972 contract and the
preceding 1968 contract also were applied by Welsh to the
230 location at all times while that location was owned by
Sierra Glass between 1969 and October 1973. Reports and
contributions on behalf of unit employees at 230 regularly
were made by Welsh to the Union.
In early 1974, Local 767 picketed the location at 645 for a
period of about 3 weeks . At that time 645 was the only
business operated by Welsh. Bartlett told Welsh that the
latter was being picketed because he was not "fulfilling all
the requirements of the Union ." Welsh acknowledges that,
since the contract of 1972 , he has not applied the union
contract to employees at 645, and that he has operated 645
as a nonunion shop and 230 as a union shop since that date.
B. Contentions of the Parties
Welsh contends that the employees working for him at
645 are not unit employees, that neither he nor the Union in
the past have considered them unit employees, and that the
Union is violating the Act by insisting that the August 1,
1972, contract covers employees at 645.
The Union contends that the contract of August 1, 1972,
as amended, by its terms covers employees at the 645
location and that Sierra Glass is violating the terms of that
contract.
C. The Contract of August 1, 1972
Following are pertinent portions of the aforesaid con-
tract:
SECTION 1. TERM OF AGREEMENT
(a) This agreement shall remain in full force and effect
from August 1, 1972 and including July 31, 1975 on all
items other than wages and renegotiate Section 8, and
shall be considered as renewed from year to year
thereafter unless either party hereto shall give written
notice to the other of its desire to have the same
modified, and such notice must be given at least sixty
(60) days prior to July 31, 1975, or on any anniversary
date thereafter of this agreement . If such notice is not
given, then this agreement shall stand as renewed for
the following year. The wage portion of this agreement
is for the period of one year, beginning August 1, 1972
to July 31, 1973.
(b) Upon written notice at least sixty (60) days prior to
July 31, 1973, both parties agree to meet and negotiate a
cost package for wages and renegotiate Section 8 only
for the period beginning August 1, 1973 to July 31, 1974.
Upon written notice at least sixty (60) days prior to July
31, 1974, both parties agree to meet and negotiate a cost
package for wages and renegotiate Section 8 only for
the period beginning August 1, 1974 to July 31, 1975.
SECTION 2. RECOGNITION
The Employers shall recognize Glaziers and Glass
Workers, Local Union #767, as the exclusive represen-
tative for the purpose of collective bargaining for all of
the glaziers and glass workers employed by the Employ-
ers within the territorial jurisdiction of the Local Union.
SECTION 24. GENERAL GLAZING
Selecting, cutting, preparing, handling , installing or
removal of all plate glass , X-ray shielding glass , window
glass , and of all other types of glass, including structural
glass, tempered glass doors, safety or protection glass,
auto glass , all plastics or other similar materials when
used in place of glass and when set or glazed with putty,
mastic, cement , rubber or other materials used in place
of same , driving the Employer's truck as necessary.
The installation of the above materials when set in
wood, stone , rubber (natural or synthetic), metal of all
types, sash doors, skylights, louvers, sliding or fixed
showcase , glass doors or partitions in the shop or on the
job, whether temporary or permanent, on or for any
building in the course of construction , repair or alter-
ation.
The fabrication and installation of all extruded, rolled
or fabricated metals, tubes, mullions, metal facing
materials, mutins, facia, trim mouldings, porcelain
panels, arch porcelain panels skylights , show doors and
relative materials, including those in any or all types of
building related to store front and wall construction.
Door and window frame assemblers , such as patio
sliding or fixed doors, vented or fixed windows, such
items as shower doors, bath tub enclosures, storm sash,
where the glass becomes an integral part of the finished
product, it shall be considered glazier's operation
including the installation of same , except in the case of
basic manufacturing.
ART GLASS: [Text omitted ]
MIRRORS AND PROCESSING: [Text omitted]
SECTION 25. TOOLS AND WORKMANSHIP [Text
omitted]
The fact that no notice of intention to modify the
contract pursuant to section 1, above, was given by either
party is not disputed and is found.
GLAZIERS , LOCAL UNION 767 37
D. The Unit
The contract definition of the unit is set forth in section 2,
above.
General Counsel contends that the unit is as follows:
All glaziers and glassworkers at the Employer's 230
Sunshine Lane, Reno, Nevada location, excluding all
other employees, guards and supervisors as defined in
the Act.
The fact that the first contract between the parties was
signed in 1968 amply is shown by the testimony of Welsh
and Kendall Bartlett, business representative for Local 767
since 1964 or 1965. Further, General Counsel stated on the
record that he does not contest the fact that a contract
between the parties existed prior to 1972. Welsh testified on
several occasions to the existence of a union contract prior
to 1972, and also prior to the opening of 230. For example:
Q. [By Mr. Longman] Do you know of your own
personal knowledge if Mr. Schenck had had dealings
with Mr. Bartlett or the Union during the time that he
was your partner?
A. Yes. He mainly did it at the time he was here.
Q. Is it your testimony that there was never a union
contract in existence covering Sierra Glass before 1972?
A. Yes. We were signed up before that.
Q. When was it that you were first signed up?
A. I would have to say about 1969.
Q. Would it be'68?
A. It could have been in the last half. I can't tell you
that.
Q. Is it true, sir, that you were continuously under
union contract commencing with the latter part of 1968
to and including sometime in 1975 or '76? Either one?
A. Yes. I would say from the end of'68 until I sold
the storefront part.
s t s s t
Q. Isn't it a fact, sir, that when you negotiated with
Mr. Bartlett for the first time, that you-the only place
of business that you had was 645 Sunshine Lane; isn't
that true, sir?
A. That would not be true because my partner did
the negotiation.
Q. When the business commenced to negotiate with
the Union.
A. That would seem possible, yes.
Welsh contends that the 1972 negotiations primarily
involved wages, which underscores the existence of an
earlier contract.
Neither party introduced a copy of the 1968 contract into
evidence, but Bartlett testified credibly and without contra-
diction that provisions of the 1972 contract in general, and
the 1972 definition of general glazing work in particular, are
the same as those in the 1968 contract.
Bartlett corroborated Welsh when he testified that, at the
time the 1968 contract was signed, the only business
covered by the contract was the one at 645. Bartlett and
Welsh also corroborated each other in testifying that
negotiations for the first contract were conducted by
Bartlett and Schenck, and that Sierra Glass at that time
owned no business other than the one at 645.
Welsh testified that the work done at 620 is "identical" to
the work previously done at 645, and that it consists of auto
glass, replacement of broken glass in homes, screens, and
shower doors. Welsh also testified that the work done at 645
was the same when the location was opened in 1968, as it is
at 620 today. Further, Welsh testified that the only work
ever done at 230, when that location was owned by Sierra
Glass, was storefront and commercial work, usually done at
the worksite while new commercial buildings were under
construction. He said employees at 645 and 230 never were
interchanged between those two locations. Finally, Welsh
testified that the work done at South Shore Glass principal-
ly was commercial storefront installation, with some home
and auto replacement work.
Welsh testified that, in December 1969, he opened the
store at 230 in order to bid on, and perform, commercial
work that never had been done at 645. He stated that, when
he signed the contract of August 1, 1972, he signed only for
the 230 location and that he never recognized Local 767 at
645. However, that testimony differs from his later testimo-
ny wherein he said his Company had a contract with the
Union from 1968 until after 1972. Since the Company only
owned one store in 1968 - the 645 location - the earlier
testimony clearly was wrong.
It is seen from the foregoing that, regardless of the kind of
work performed at 645, that location was under contract
with Local 767 starting in 1968 and, based upon Welsh's
testimony as well as that of Bartlett, the contract was being
enforced by the Union (through picketing) at least as early
as 1971.6 The record does not show any modification or
termination of the 1968 contract prior to its replacement by
the 1972 contract.
Since Welsh applied the 1968 contract to his operations at
230 after it was opened, and regularly made union reports
and contributions pursuant to that contract dunng its entire
life, it is obvious that the parties intended, both in 1968 and
1972, a unit embracing all Sierra Glass glassworkers and
glaziers, wherever they were employed. It is not realistic to
contend that 645 employees were not included within the
unit under the 1968 contract, since that is the location the
contract was signed for by Schenck, and that contract was
applied to the 645 employees, as demonstrated by the 1971
picketing. Welsh laid this subject to rest when he testified:
Q. When you first formed your partnership with
Mr. Schenck, what year was that?
A. That was February of'68.
Q. So then, it was in the same year that you formed
your partnership with Mr. Schenck that you signed the
union agreement for the first time to your recollection.
6 Bartlett testified, credibly and without challenge, that complaints of
contract violations giving rise to the 1971 picketing were filed with the Union
by glaziers working at 645
38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. To my recollection-
Q. Is that right, sir?
A. Yes.
Q. And that , that contract was in force , in effect
continuously at least through 1972.
A. Yes.
Q. And thereafter for some period of time; is that
right?
A. Yes.
Q. It's true , is it not, sir, that when you went into
business with Mr . Schenck, that you did not operate the
present premises commonly known and described as
230 Sunshine Lane for any business purposes ; is that
true?
A. That's true.
Q. So that it was sometime after you signed the
union contract that you first started to operate the
premises as a glass business commonly known as 230
Sunshine Lane; right?
A. Close to that vicinity. Would have worked
together.
In view of the foregoing it is quite clear , and it is found,
that the unit involved in this controversy is, and was
intended by the parties to be, one that includes all
employees of Sierra Glass , wherever they are located.7
E. The Work Performed
In an attempt to show that the parties intended a unit
covering only 230 when Welsh signed the 1972 contract,
General Counsel introduced testimony and evidence about
work performed at the three locations. It is argued that
230's work was limited to commercial storefront work at
new construction sites, and that South Shore Glass primari-
ly was engaged in commercial work , whereas 645 was
devoted at all times solely to auto and replacement glass,
screens, and doors. It is contended that commercial
storefront work is different from general glazing, thus is not
within the definition of the 1972 contract relating to general
glazing.
This argument is without merit, for several reasons:
I. The definition of general glazing is the same in both
contracts, 1968 and 1972. That definition is set forth above,
and obviously includes storefront and commercial work at
new construction sites. There is no testimony or evidence
that the parties ever discussed, or negotiated relative to, any
different interpretation of the contract terms.
2. Welsh participated in negotiations leading to the
signing of the 1972 contract, yet he acknowledged, and
Bartlett confirmed , that at no time, during negotiations or
otherwise , did Welsh say anything about negotiating only
for 230. Further, Welsh testified that he- never discussed
with Bartlett any work distinction between 645 and 230.
3. Storefront signs at 645 and 230 make no distinction
relative to work . The 645 sign reads "Sierra Glass," and the
230 sign reads "Sierra Glass Warehouse."
r Welsh indicated in his testimony , although the point is not entirely
clear, that South Shore Glass was incorporated separately from Sierra Glass.
However , resolution of that point is not necessary . This controversy
primarily involves 645 and 230 and further , since Welsh was the sole
stockholder of all three locations , they can and should be considered as one
for purposes of this Decision.
4. The contract of 1972 was signed under the name
"Sierra Glass ." No words of limitation are shown.
5. Since at least 1970, the yellow pages of the telephone
book have carried the name Sierra Glass at only one
location : 645.8 Further, those advertisements , until 1974
after 230 was sold to Marshall, covered both commercial
and residential work.
6. Employees at 230 and 645 were paid from the same
bank account.
7. All reports to the Union gave only the 645 address.
The 230 address appears on no records sent to the Union.
Based upon the foregoing, and upon Welsh 's testimony
that he operated 645 as a nonunion shop and 230 as a union
shop , it is well established that Welsh's reason for not
applying the 1972 contract to 645 was not related to the
terms of that contract . Rather, failure to apply the contract
was in order to divide the business into two functions. 230
was for commercial work, where union affiliation would be
advantageous . 645 was for glass work on automobiles and
homes, where formal advance bids generally are not made
and where union affiliation would be of detriment rather
than of benefit. As Welsh acknowledged, 645 glaziers were
paid less than those at 230. Clearly the work distinction was
made by Welsh for his own purposes.
Welsh was equivocal and less than convincing when he
testified that no storefront or commercial work ever was
performed at 645. Testimony shows that 645 was in
business at least a year before 230 was formed . During that
time, and thereafter until the new contract was signed in
1972, Welsh applied the 1968 contract to 645, according to
his own testimony and that of Bartlett. Bartlett credibly
testified that he knew some commercial work was done at
645, and he and witness Dan Hoss credibly testified that
they observed tools at 645 customarily used on commercial
work . These facts, and Welsh's testimony, compel the
conclusion that Welsh and Schenck 9 started 645 as a union
operation ; that 645 remained a union operation until about
the time of Schenck's death ; that the division of work at 230
and 645 occurred in 1971; that the division of work
continued until South Shore Glass and 230 were sold by
Welsh; and that the contract of August 1, 1972, was
negotiated without any reference to or discussion about a
division of work.
It is found that the August 1, 1972, contract by its terms
covers all glazing work, including storefront and commer-
cial work on new construction, as well as noncommercial
glass work on automobiles and in homes.
It is further found that the August 1, 1972, contract is a
renewal of an earlier contract with similar provisions
describing the unit and the work covered by the contract,
and that the 1972 contract covers work performed, and
glassworkers and glaziers employed, at 645 and 230.
F. Bartlett 's Knowledge
General Counsel and Welsh argue that Bartlett has
known for several years that Sierra Glass work was divided
a Resp . Exh. 1.
B Both Welsh and Bartlett testified that the 1968 negotiations and
contract, and discussion of union matters thereafter until Schenck 's death,
were conducted by Schenck and Bartlett.
GLAZIERS, LOCAL UNION 767
between 645 and 230, as described above, but that Bartlett
took no action and it therefore can be assumed that Bartlett
knew the 1972 contract covered only the employees at 230,
or condoned its application to 230 only. The argument is
based upon:
(a) About seven or eight glaziers worked at 645, and three
glaziers worked at 230. Reports made to the Union since
November 1972 cover only employees at 230.
(b) No employees at 645 or 620 have told Welsh that
Local 767 represents them, nor has Local 767 stated to
Welsh that it represents any of those employees.
(c) Welsh never asked Bartlett for referrals to 645.
(d) Bartlett visited the premises at 645 and 230 on many
occasions , and therefore knew that 645 had employees who
were not being reported to the Union.
(e) Present employees at 645 do not want the Union to
represent them.
(f) Bartlett knew only automobile and residential work
was being done at 645, and he knew about the business at
230.
Bartlett denies any intent or action to apply the 1972
contract, or its predecessor 1968 contract, to 230 alone. He
also denies that he condoned such an application of the two
contracts. Bartlett answers the above-listed contentions by
Welsh, as follows:
(a) Although Bartlett knew about the 230 location and
had visited it on many occasions, he first learned of the
existence of 230 in 1971, and at all times thereafter, until
230 was sold to Marshall, he knew of only one business
address for communications , and of only one headquarters
and one office for Sierra Glass, i.e., 645. All reports and
union contract contributions were sent from 645. All
referrals of employees under the contract were sent to 645.
He was suspicious that Welsh was not reporting all his
employees under the contract, but he had no proof of that
fact until just prior to filing the Section 301 action in the
U.S. District Court for the District of Nevada on December
12, 1974. Bartlett said he did not know of the sale of 230 to
Marshall until the latter part of 1974.
(b) Welsh never indicated to Bartlett that he was not
familiar with the terms of the contract ; 10 Bartlett discussed
specific terms of the contract with Welsh during negotia-
tions but Welsh never said he would withdraw from the
contract nor did he ever tell Bartlett that he believed only
employees at 230 were covered by the contract.
(c) Welsh never asked for referrals to specific locations.
He merely requested glaziers , and Bartlett dispatched them
to the only business address he knew - 645. Bartlett never
knew where Welsh put the men to work.
(d) Bartlett said he suspected Welsh was violating the
contract, as discussed elsewhere herein, but he had to
assume Welsh was honest, and had to await proof before
taking action.
(e) This allegation is immaterial, except as discussed
below.
(f) Bartlett contends this is immaterial , since the contract
covers employees at 645. Bartlett said he did not condone
10 Welsh testified he never read all the contract
11 Bartlett testified that Local 767 has contracts with approximately 65
contractors , and has about 410 members . Bartlett said he has no investigator,
and that he alone runs the office and dispatches employees.
12 Marshall worked on the premises at 230, at all times prior to and after
the sale of 230, until 230 was moved to another location
39
Welsh's actions in applying the contract only to employees
at 230.
Bartlett insists , and the record supports him, that the 1968
contract was signed when only 645 was in existence. The
record also shows that the 1972 contract was applied only
to employees at 230. The record does not show the extent of
how the 1968-72 contract was applied, but Bartlett and
Welsh testified to the picketing in 1971, described above,
while Schenck was alive, and Welsh testified that, whatever
the problem was, Schenck worked it out with the Union. A
key question, therefore, is whether Bartlett knew about, and
condoned, Welsh's actions relative to the 1972 contract.
Bartlett credibly testified that he first knew of the
existence of 230 sometime in 1971. There is nothing in the
record to contradict that statement , or to raise an inference
that it is not accurate.
Bartlett testified that he addressed the group of negotiat-
ing employers, including Welsh, in 1972 and 1973 and
admonished them to report all unit employees. He said he
was suspicious at that time that some employers, including
Welsh, were not reporting accurately.[[ Welsh testified that
he was not present at all negotiation sessions and his
testimony did not specifically cover this point. This
testimony by Bartlett is credited.
General Counsel's Exhibit 5 is a series of copies of
Welsh's reports to the Union. They all show the employer
as "Sierra Glass Service Inc. 645 Sunshine Lane Reno
Nev." Contributions for employees were reported and
made through November 1973. The December report
states , "No employees hired for November 1973. All
employees terminated November 30, 1973." Reports were
sent to the Union monthly from January 1974 through May
1974, stating no glaziers were employed.
Bartlett credibly testified that he first knew 230 had been
sold when Marshall so advised him by telephone in 1974.12
Bartlett further testified that, when he learned after
December 1973 that Welsh's reports were showing no
employees he was suspicious and talked with the adminis-
trator of the union trust fund about it. The administrator
suggested that Bartlett look into the matter , and Bartlett
called Welsh on the telephone. Bartlett testified:
TitE WITNEss: He said that he was no longer in the
construction end of it. I told him he had to send in
fringe benefits on all of his hourly employees. He
informed me that he couldn't afford it.
Welsh did not deny Bartlett's testimony about the above
conversation. Welsh testified to another conversation,
which he placed at about 2 or 3 months before he sold 230
to Marshall, i.e., about July or August 1973.13 Welsh stated:
Q. You said you were picketed on a second
occasion. When was that second occasion you were
picketed?
A. That was 1974 at 645 Sunshine Lane.
13 It appears possible that the two recitations may cover the same
conversation, but that would not change any findings or conclusions The
date is uncertain because Welsh earlier testified that the 230 sale was not
entirely consummated until some time after October 1973.
40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. Were you picketed only at 645 Sunshine Lane at
that time?
A. Yes.
Q. How long were you picketed?
A. Approximately three weeks.
Q. Did you ever have any conversations with
anyone from the Union concerning this picketing?
A. Yes. I called Ken Bartlett.
Q. As best as you can recall, what took place in that
conversation? What did you say, and what did he say?
A. Best I can recall, I called Ken and asked him
what was going on and why.
Q. What did he say?
A. At that time, he believed we weren't paying all
our dues like we should and that weren't fulfilling all the
requirements of the Union.
Q. Did he say which location he felt you weren't
fulfilling these requirements at?
A. No.
Q. How many locations did you have in business in
Reno at that time?
A. At that time, just one.
Q. Which was where?
A. 645 Sunshine Lane.
Bartlett testified that the district court action was filed by
the Union about 6 months after his conversation with
Welsh, quoted above.
G. Summary Analysis
1. Continuously from 1968 until charges were filed
herein, Sierra Glass was under contract with the Union.
Welsh testified that he never indicated an intent to
withdraw from the contracts, or terminate either of them.
When the first contract was signed Sierra Glass had but
one location, at 645 Sunshine Lane. The unit included all of
Sierra Glass' employees. A new location (230), 2-1/2 blocks
away, was acquired by Sierra Glass in 1969. The parties
voluntarily treated 230 as an accretion under the contract;
the terms of the 1972 contract and its predecessor 196814
contract were applied to and accepted at 230 until 230 was
sold and transferred to Marshall. No change (other than
wage rates) was made at 230 after the renewal contract was
signed on August 1, 1972. Corporate headquarters, facili-
ties , work classifications under the contract, work condi-
tions, and unit description remained the same. The accre-
tion was a valid one.15 The same conclusion is required by
consideration of the 1972 contract alone. It covers, by its
terms , all glaziers and glassworkers employed by Sierra
Glass, both commercial and residential. The record does
not support General Counsel's contention that the parties
intended to limit the contract to 230. Wording of the
14 The record on enforcement of the contract between 1968 and 1972 is
not extensive or complete , but existence of the contract is admitted . Events
challenged herein occurred for the most part after August 1 , 1972, the
complaint is based upon events after August 1 , 1972, and the record shows
picketing in 1971 because of alleged contract violations . Further, General
Counsel argues that 230 "which employed union glaziers for construction
work, was operated as union shop at all times during the period that the
Employer maintained this particular business operation ... " 230 was
maintained by Respondent as a business operation from about February
1969 until October 1973 Therefore, by General Counsel's own argument, the
contract is unequivocal; Welsh testified that he never
discussed with Bartlett the limitation he now claims. No
evidence shows, or indicates, that the parties intended to
limit the contract to 230.
2. General Counsel called as witnesses five employees.
Miller and Pilkington started working for Sierra Glass at
645 in 1974 and 1975, respectively, well after the 1972
contract was signed. Hobbs did not work for Sierra Glass
between 1970 and 1975, during the controversial events
involved herein. Rubertus started working for Sierra Glass
at 645 in 1969, became a member of Local 767 in 1970, went
to 230 for a month in 1971, then took a union withdrawal
and returned to 645 in 1971. Marsh worked at 645 from
1969 until the present.
Testimony of the five employees was intended to estab-
lish the fact that employees of 645 are not union members,
and do not want Local 767 to represent them. However:
(a) Desires of present employees are immaterial, so far as
events on and prior to August 1, 1972, are concerned.
(b) Such desires also are not controlling in the proceed-
ings herein. The language of the Board in Shamrock Dairy,
Inc.,16 is appropriate:
Although the Union in this case has never been
certified as the representative of the Respondent's
employees, the Respondent extended recognition to the
Union as their exclusive representative in the 1953
contract. This the Respondent was forbidden by law to
do if the Union did not have majority status at the time
of the execution of the contract. It would be improper to
presume that the Respondent engaged in unlawful
conduct by execution of the 1953 contract. Rather, we
presume that the Respondent acted lawfully and that
the Union, which had been the recognized bargaining
representative of the Respondent's employees since
1937, had majority status at the time of the execution of
the 1953 contract, as the Respondent, in effect, admit-
ted by granting sole recognition. There is no evidence to
rebut this presumption. Accordingly, the Union was the
majority representative of the Respondent's employees
at the time of the execution of the 1953 contract. We
further fmd that the Union enjoyed such status for the
duration of the contract. By virtue of the existence of
the contract, the Union was entitled to such recognition
for the period during which the contract was a bar to a
redetermination of its bargaining status.10 At the time
of the inception of the alleged refusal to bargain in July
1955, the 1953 contract had about 2-1/2 months to run.
No reason appears why that contract then would not
have been a bar to a redetermination of the Union's
bargaining status for the remaining period of the
contract. On the basis of the foregoing, we conclude
that it was incumbent upon the Respondent to treat
parties had been enforcing the earlier contract approximately 3-1/2 years
pnor to signing the August 1, 1972, contract. General Counsel did not show
that 645 was treated differently from 230 prior to 1972 Based upon these
facts, it is clear that the 1968 contract was enforced during its existence, both
at 230 and 645.
15 Public Service Company of New Hampshire, 190 NLRB 350 (1971),
White Cross Discount Centers, Inc., 199 NLRB 721 (1972).
16 Shamrock Dairy, Inc., Shamrock Dairy of Phoenix, Inc, and Shamrock
Milk Transport Co., 119 NLRB 998 (1957), and 124 NLRB 494 (1959), enfd
280 F.2d 665 (C.A.D.C., 1960), cert. denied 364 U S. 892 (1960).
GLAZIERS, LOCAL UNION 767
with the Union as the majority representative of the
employees involved herein at the time of the alleged
refusal to bargain . [Footnote omitted.]
If present employees desire a change of representative, that
must be accomplished pursuant to Board procedures.
3. The record shows Bartlett communicated with
Welsh , instituted picketing, and finally instituted a Section
301 proceeding within a reasonable time after learning of
contract violations by Welsh . Under such circumstances,
Bartlett is found not to have condoned the violations.
4. General Counsel argues that Respondent violated
Section 8(b)(3) of the Act by "its verbal and written
demands, its picketing , and its filing and maintaining the
Section 301 suit, to include the auto glass and replacement
work employees in the unit , although Respondent was not
the lawful bargaining representative of those employees."
The record does not support this allegation . The verbal
and written demands and the picketing were timely
legitimate protests against alleged contractual violations by
Sierra Glass, and included requests for remedial action by
Sierra Glass . Relative to the suit in the district court, the
Board stated in United Aircraft Corporation (Pratt and
Whitney Division): 17
Respondent filed suits against the Charging Parties in
Connecticut Superior Court seeking damages for al-
leged tortious acts committed by the Unions ' members
during the course of the 1960 strike and secured
judgments against the Unions in excess of $ 1 million .9
In the Clyde Taylor case,10 the Board held that, while
"the making of a threat by an employer to resort to the
civil courts as a tactic calculated to restrain employees
in the exercise of rights guaranteed by the Act" was a
violation of Section 8(a)(1), an actual suit was not
similarly unlawful . In justification of the latter position
the Board majority reasoned that "the Board should
accommodate its enforcement of the Act to the right of
all persons to litigate their claims in court, rather than
condemn the exercise of such right as an unfair labor
17 192 NLRB 382, 384 (1971).
18 In the event no exceptions are filed as provided by Sec. 102 46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall , as provided in Sec . 102.48
41
practice." 11 Since the Taylor case, the Board has
consistently held that the filing of a civil suit cannot be
found to be an unfair labor practice.12
8 United Aircraft Corp. v JAM, 68 LRRM 2488 , 70 LRRM 2577
(Conn . Supenor Ct. Hartford County, Nos 133884 and 133885.) The
Connecticut Supreme Court affirmed the Supenor Court 's finding of
liability, but directed a new trial with respect to the amount of
compensatory damages. United Aircraft Corp v. Machinists, issued April
27, 1971.
to Clyde Taylor Company, 127 NLRB 103.
11 Id at 109. In taking this position , the Board majority overruled
W.T. Carter and Brother, 90 NLRB 2020, and adopted the view
expressed by former Chairman Herzog in his dissent in that case.
12 Smith Steel Workers, 174 NLRB 235, enfd . in relevant part sub
nom. Smith Steel Workers v . A O. Smith Corporation, 420 F.2d 9 (C.A. 7);
G.C Murphy Company, 171 NLRB 370; DC International, Inc., 162
NLRB 1383, 1394; Fashion Fair Inc, 159 NLRB 1435, 1449 ; Loca1283,
United Automobile, Aircraft and Agricultural Implement Workers of
America, 145 NLRB 1097, 1121.
Based upon all the foregoing, it is found that the
allegations of the complaint were not proved.
CONCLUSIONS OF LAW
1. Sierra Glass Service, Inc., is, and at all times material
herein has been, engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. Glaziers & Glassworkers, Local Union 767, is, and at
all times material herein has been, a labor organization
within the meaning of Section 2(5) of the Act.
3. Respondent Glaziers & Glassworkers, Local Union
767, did not violate Section 8(b)(3) of the Act, as alleged in
the complaint.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this case, and pursuant to Section
10(c) of the Act, I hereby issue the following recommended:
ORDER 18
It having been found and concluded that Respondent,
Glaziers & Glassworkers, Local Union 767, has not
engaged in unfair labor practices, the complaint herein is
dismissed in its entirety.
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions , and Order, and all objections thereto shall be deemed
waived for all purposes