Heat & Frost Insulators Local 19

National Labor Relations Board - Board Decisions

Jun 14, 1974

211 N.L.R.B. 592 (N.L.R.B. 1974)

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.