Duron Maguir Eastern Corp.

712 D CISIONS OF NATIONAL Boston Cement Masons and Asphalt Layers Union No. 534, a/w Operative Plasterers and Cement Ma- sons International Association AFL-CIO (Duron Maguire Eastern Corp.) and Peter Frattaroli and Enrico P. Ventresca. Cases I -CB 2377 and I-CB- 2386 July 26. 1979 SECOND SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN FANNING ANI) MfMBERS JNKINS ANI PNH I I( On April 10, 1978, the National Labor Relations Board issued a Supplemental Decision and Order' in this proceeding. The Board found that the General Counsel had failed to establish that Respondent vio- lated Section 8(b)(1)(A) or 8(b)(2) of the Act and therefore reaffirmed its initial Order in its entiret. 2 Thereafter, on December 28. 1978. the United States Court of Appeals for the First Circuit issued a decision' in which it granted the Charging Parties' petition for review and remanded the case to the Board for the limited purpose of considering what relief is appropriate. In its decision, the court fund, contrary to the Board, that since the Uinion was oper- ating a referral system for members only and not an exclusive hiring hall the fee sought from Ventresca and Frattaroli by the Union was not legitimate and the Union violated Section 8(hb(1)(A) and (2). The Board, having accepted the remand, respect- fully recognizes the court's opinion as binding for the purpose of deciding this case. On March 16. 1979, the Board notified the parties that it had decided to accept the remand and invited each party to file a statement of position. Pursuant to this notice, Respondent and the Charging Parties filed statements. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record as a whole the decision of the United States Court of Appeals for 1235 NLRB 826. 2 As descnribed in more detail at 235 NLRB 826. supra, the Board had earlier issued a Decision and Order reported at 216 NLRB 568 (1975) Thereafter. on December 18. 1975. the United States Court of Appeals for the First Circuit issued a decision in which it granted the Charging Parties' petition lir review, vacated the Order of the Board therein. and remanded the case for further proceedings. The Supplemental Decisln and Order re- ported at 235 NLRB 826 followed from the earlier remand h) the First Circuit. 3590 F.2d 5. I.ABOR RELATIONS BOARD the First Circuit remanding the proceedings. and the statement of position filed by each party. As indicated above, the remand to the Board is for the limited purpose of considering what relief is ap- propriate. The C(harging Parties contend that the ap- propriate remedy is the remedy ordered by the Ad- ministrative Law Judge in his initial decision reported at 216 NLRB 568. 574. Thus, the Charging Parties assert that Frattaroli and Ventresca should be made whole for loss of pay and benefits since July 16. 1973. Respondent contends, however, that the make-whole period should encompass only the period from July 16, 1973. to April 30, 1974. Respondent predicates this limitation on alleged changes in the terms of the collective-bargaining agreement governing relations between Respondent and Duron Maguire Eastern Corp. In the alternative. Respondent contends that the make-whole order should not extend beyond Duron Maguire Eastern's involvement in the Shaw- mut Bank construction project. Finally. Respondent contends that the make-whole order must reflect the intermittent nature of' cement masons' employment. We find it inappropriate to limit the remedy or- dered bh the Administrative Law Judge reported at 216 N.RB 568. 574. The terms of his remedy and Order are consistent with remedial relief granted by the Board in other proceedings involving violations of' Section 8(b)( I )(A) and (2) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act. as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge reported at 216 NLRB 568, 574. which is restated below, and hereby orders that the Respondent, Boston Cement Masons and Asphalt Layers Union No. 534, a/w Operative Plasterers and Cement Masons International Associ- ation. AFL CIO. Boston, Massachusetts. its officers, agents, and representatives. shall: I. Cease and desist from: (a) Discriminatorily causing the termination of Pe- ter Frattaroli and Enrico P. Ventresca from employ- ment with Duron Maguire Eastern Corp., because of their nonpayment of dues and fines and because of their nonmembership in Respondent. (b) Unlawfully exacting dues and fines from non- members of Respondent while at the same time deny- ing them membership in Respondent for reasons other than nonpayment of legitimate initiation fees or dues. (c) In an, like or related manner restraining or co- ercing employees, members of the Bricklayers or the Cement Masons. in the exercise of their rights guar- anteed in Section 7 of the Act. 243 NLRB No. 134 BOSION CEfMtENT MASONS AND ASPHALT LAYERS UNION N(). 534 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Notify Duron Maguire Eastern Corp.. in writ- ing, with a copy to Peter Frattaroli and Enrico P. Ventresca, that it has no objection to their employ- ment. (b) Make Peter Frattaroli and Enrico P. Ventresca whole for any loss of pay or other loss such as senior- ity, etc., which they suffered as a result of the dis- crimination against them as set forth in the section otf the Administrative Law Judge's Decision entitled "The Remedy." (c) Notify Duron Maguire Eastern Corp. and the Associated General Contractors of Massachusetts. Inc., and Building Trades Employers Association of Boston and Eastern Massachusetts, Inc., that for the duration of its present contract with them it will abide by the interpretation of the contract phrasing "or its equivalent" which the parties have previously used: that journeyman status of a cement mason is the equivalent of having passed any apprentice program: and further that it will not attempt to unlawfully exact "dues" or "fines" from nonmembers who are working or seek to work in its claimed geographical area while at the same time denying them member- ship for reasons other than nonpayment of legitimate initiation fees or dues. (d) Respondent is to post at its business office. union hall. and any other place where it customarily posts notices to members copies of the attached no- tice marked "Appendix." 4 Copies of the notice shall also be posted at the Employer's place of business it the Employer is willing. Notices on forms provided by the Regional Director for Region I, after being signed by an authorized representative of Respon- dent, shall be posted by Respondent immediately upon receipt thereof in the manner provided above. Notices are to be posted for 60 consecutive days, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent and by the Employer to insure that the notices are not altered, defaced. or covered by any other material. (e) Notify the Regional Director for Region I. in ' In the event that this Order is enforced hby a Judgement of a United States Court of Appeals. the words In the notice reading "Posted hy Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the Na- tional Labor Relations Board." writing, within 20 days from the date of this Order. what steps have been taken to comply herewith. APPENDIX[) No)iicl To MIMHB R-KS PosIF D BY ORDI.R () 111E NAIIONAI. LABOR REI.AII()NS BOARI) An Agency of the United States Government Following a hearing at which we participated and of- fered evidence, it has been found that we violated the Act. We have been ordered to post this notice and we intend to carry out the Order of the Board and abide by the following: Wl wIL . Nor discriminatorily cause the termi- nation of Peter Frattaroli and Enrico P. Ven- tresca or any other employee from employment because of their not being members of our Union or because they do not pay dues or other monexs to us. WE wII.I. NOI in any like or related manner restrain or coerce employees in the exercise of their rights guaranteed b Section 7 of the Act. Wi- wiit. make Peter Frattaroli and Enrico P. Ventresca whole ftr an\ loss of pa) suffered ars a result of the discrimination we practiced against them. Wli: vwi, notif, Duron Maguire Eastern Corp. that we have no ohiection to their hirine Peter Frattaroli and Enrico P. Ventresca. WtI wiii notif Duron Maguire Eastern Corp.. and the Associated General Contractors of Massachusetts. Inc.. and Building Trades Em- ployers Association of' Boston and Eastern Mas- sachusetts. Inc.. that for the duration of our con- tract with them we will abide by the meaning we have previously given to the phrase in our con- tract "or its equivalent," which is that the jour- neyman status of a cement mason is the equiv- alent of having passed any apprentice program: and further that we will not unlawfully try to collect "dues" or "fines" from nonmembers who are working or seeking work in our geographical area while we refuse to accept them into our Union. BOSTON CMtNI MASONS AN) APIIAI.I LAYIERS UNI()N No. 534. A/w Ot'lRAIIlI- PI.ASERERS AND) CEMENI MASONS INIERNA- TIONAI Asso('IAToN. AFL-CIO 713