Marble Polishers, Etc., Local No. 121, AFL-CIO

=844 DECISIONS'OF NATIONAL LABOR RELATIONS BOARD initially filed. I think the Board before ordering such a drastic remedy , may wish to consider, and weigh carefully the several defenses of the Respondents , including their alleged reliance on advice given them by agents of the Board and the General Counsel, its scope and duration ; the lack of any evidence that the hiring hall pro- ,cedures here in question have been discriminatorily administered , or that those seek- ing its privileges were not fully aware of their nondiscriminatory administration; the fact that admittedly the agreement has now been revised to conform to Mountain Pacific criteria; and, finally, the very considerable lapse of time between the filing of charges and a hearing on the issues . I do not suggest that attention to such matters is required by legal concepts of lathes, entrapment , equitable estoppel, and the like, but by broader considerations of equity and public policy. "The validity of re- imbursement orders necessarily depends upon the peculiar circumstances of each case" (N.L.R.B. v. Adhesive Products Corp., 258 F. 2d 403, 409 (C.A. 2)) and there- fore precedents as to remedy do not have the force and rigidity of decisions on sub- stantive issues. In fact, a remedial order that does not take into account the "peculiar circumstances" of the case, is obviously not tappropriate . Accordingly, I shall make ca no recommendations with respect to the application of the Brown-Olds remedy in this se. Upon the basis of the foregoing findings of fact , and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Respondents Mason Exchange and Masonry Contractors and their mem- ,bers are, each of them, employers within the meaning of Section 2(2) of the Act. 2. The Respondent Unions are , each of them , labor organizations within the mean- ing of Section 2(5) of the Act. 3. By maintaining and giving effect to a collective -bargaining agreement which con- tains exclusive hiring hall provisions which do not meet the standards specified by the Board in Mountain Pacific, 119 NLRB 883, The Respondent Unions, and each of them, have engaged in and are engaging in unfair labor practices within the meaning ,of Section 8(b) (1) (A) and (2) of the Act, and the Respondents Mason Exchange and Masonry Contractors and their members, each of them, have engaged in and are en- gaging in unfair labor practices wtihin the meaning of Section 8(a)(1) and (3) of the Act. 4. By causing Henderson Construction Co. to discharge its employees Mosley, Nash, and Fortier, pursuant to hiring hall provisions of the aforesaid bargaining agreement, Respondent Local 300 has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b) (1) (A) and (2) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices 'affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] Marble Polishers, Machine Operators and Helpers, Local No. 121, AFL-CIO, and its Agent John Foglia [Miami Marble & 'Tile Company] and Boyd Garner. Case No. 1P2-CB-,977. August 10, 1961 DECISION AND ORDER On February 6, 1961, Trial Examiner Albert P. Wheatley issued his Supplemental Intermediate Report in the above-entitled proceed- ing, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the Intermediate Report and Supplemental Intermediate Report attached thereto. Thereafter, the Respondents filed exceptions to the Supplemental Intermediate Report and a brief in support of the exceptions. 132 NLRB No. 62. ,MARBLE POLISHERS, ETC., LOCAL NO. 121, AFL-CIO 845 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Rodgers and Leedom]. . The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Supple- mental Intermediate Report, the exceptions and the brief, and the entire record in the case, and hereby adopts the findings,' conclusions, and recommendations 2 of the Trial Examiner, with the exceptions noted below : ORDER Upon the entire record in this case, and pursuant to Section 10(c) ,of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Marble Polishers, Machine Operators and Helpers, Local 121, AFL-CIO, Miami, Florida, its officers, representatives, agents, including John Foglia, successors, and assigns, shall : 'The Trial Examiner issued his Intermediate Report on August 11, 1960, and recom- mended on the basis of Gordon Electric Company, 123 NLRB 862, that jurisdiction not be asserted herein, and that the complaint be dismissed Thereafter, on January 11, 1961, the Board ruled that the Trial Examiner "erred in finding and concluding that the com- plaint should be dismissed for lack of jurisdiction" and remanded the case to the Trial Examiner for "submission of a Supplemental Intermediate Report on the merits of the case." It is well settled that the Board will assert jurisdiction over an employer whose opera- tions singly do not meet any of the Board's standards for the assertion of jurisdiction provided, that employer is a member of an association of employers whose operations fall within one or more of the Board's jurisdictional standards. Siemens Mailing Service, 122 NLRB 81, 84 In similar situations, the issue presented to the Board has been whether or not the particular employer was a member of an association or had indicated his unequivocal intent to be bound by group or collective action rather than individual action. In Gordon Electric, supra, the Board concluded that the mere fact that an employer signs an area agreement previously negotiated by an employer association, is not sufficient to establish an unequivocal intent to be bound in collective bargaining by group rather than individual action. Gordon Electric involved one proposition only a determination of what constitutes evidence of unequivocal intent to be bound in collective bargaining by group rather than by individual action Miami Marble & Tile Company's business, standing alone, admittedly, is not sufficient for the Board to assert jurisdiction. However, this company was a member of the Dade County Florida Tile, Marble & Terrazzo Contractors Association, herein called the Association, which is in commerce. Miami Marble had unequivocally expressed its intent to be bound by collective action rather than individual action by signing the agreement designating the Association as its representative Subsequent to the commission of the unfair labor practice, the dis- charge of Boyd Garner, Miami Marble tendered its resignation but, at the time of the hearing, no action on the resignation shad been taken by the Association. It is established that the assertion of jurisdiction under the Act turns upon the factual picture existing at the time of the alleged unfair labor practices. Mountain Pacific, Seattle, and Tacoma Chapters of the Associated General Contractors of America, Inc, etc, 117 NLRB 1319, 1328. Thus, at the time of the discharge of Boyd Garner, Miami Marble was a member of a multiple-employer association and subject to the Board's jurisdiction. 2 We do not adopt certain portions of the remedy recommended by the Trial Examiner. (1) Our policy normally does not require the payment of backpay by a union agent Local 490, International Hod Carriers, Building and Construction Laborers Union, AFL-CIO, etc. (Dickmann-Pickens-Bond Construction Company), 130.NLRB 380. (2) We shall also order Respondent to notify the dischargee, Boyd Garner, as well as the Company, that it is requesting his reinstatement in order to toll liability for backpay. Construction and General Laborers Union Local No. 639, International Hod Carriers, Building and Common Laborers Union of America, AFL-CIO (Miller-Harr and Company, Inc.), 130 NLRB 1412. 846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD' 1. Cease and desist from : (a) Causing or attempting to cause Marvin L. Zank, doing business under the name of Miami Marble & Tile Company, to discriminate against any of its employees in violation of Section 8 (a) (3) of the Act. (b) In any like or related manner restraining or coercing employees in the exercise of the rights guaranteed in Section 8 (a) (3) of the Act. 2. Take the following affirmative action which the Board finds will, effectuate the policies of the Act : (a) Notify Boyd Garner and Marvin L. Zank, in writing, that Respondent Union has no objection to the employment by Marvin L. Zank, doing business under the name of Miami Marble & Tile Com- pany, of said Boyd Garner and requests the Company to offer him' reinstatement. (b) Make whole Boyd Garner for any loss of pay he may have suffered because of the discrimination against him. The loss of earn- ings shall be computed in accordance with the customary formula of the National Labor Relations Board (see N.L.R.B. v. Seven-Up Bot- tling Company of Miami, Inc., 344 U.S. 344, and F. W. Woolworth Company, 90 NLRB 289) and shall encompass the period between March 1, 1960, and 5 days after Respondent Union's notification to, Miami Marble & Tile Company, and to the employee, Boyd Garner, whichever notification is later, that it requests said Company to offer Boyd Garner reinstatement. (c) Post at its business office, copies of the notice attached hereto. marked "Appendix A." 3 Copies of said notice, to be furnished by the Regional Director for the Twelfth Region, shall, after being duly signed by a representative of the Respondent Union, be posted immedi- ately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken to, insure that said notices are not altered, defaced, or covered by any other material. (d) Forward signed copies of Appendix A to the aforesaid Re- gional Director for posting by the Company at its place of business- (e) Notify the Regional Director for the Twelfth Region, in writ- ing, within 10 days from the date of this Order, what steps the Re- spondent has taken to comply herewith. 3 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order " MARBLE POLISHERS, ETC., LOCAL NO. 121, AFL-CIO 847 APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order WE WILL NOT cause or attempt to cause Marvin L. Zank, doing business under the name of Miami Marble & Tile Company, to discriminate against Boyd Garner or any other employee 1 in violation of Section 8 (a) (3) of the Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959. WE WILL notify Marvin L. Zank, doing business under the name ,of Miami Marble & Tile Company, and Boyd Garner, in writing, that we withdraw our objections to the employment of Boyd Gar- ner and request his reinstatement to his former or an equivalent position. WE WILL make Boyd Garner whole for any loss of pay suffered as a result of the discrimination against him. WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of the rights guaranteed in Section 7 of the Act. MARBLE POLISHERS, MACHINE OPER- ATORS AND HELPERS, LOCAL No. 121, AFL-CIO, Labor Organization., Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT STATEMENT OF THE CASE Upon charges duly filed by Boyd Garner, an individual, the General Counsel of the National Labor Relations Board by the Regional Director for the Twelfth Region (Tampa, Florida) duly issued a complaint dated May 26, 1960, against Marble Polishers, Machine Operators and Helpers, Local No. 121, AFL-CIO, and its Agent John Foglia, herein called Respondents, alleging unfair labor practices affecting com- merce within the meaning of Section 8(b) (1) (A) and (2) and Section 2(6) and (7) of the National Labor Relations Act, as amended, herein called the Act. Thereafter Respondents filed an answer contesting jurisdiction and denying the commission of any unfair labor practice. Pursuant to notice, a hearing was held on June 20 and 21 , 1960, at Miami, Florida, before the duly designated Trial Examiner. At the conclusion of the General Coun- sel's case-in-chief, and at the conclusion of the hearing, counsel for Respondents moved to dismiss the complaint on jurisdictional grounds and for lack of merit. The Trial Examiner now disposes of the motion to dismiss in accordance with the following findings and conclusions. THE BUSINESS OF THE COMPANY Marvin L . Zank, doing business under the name of Miami Marble & Tile Company, herein called Miami Marble, maintains his principal office and place of business in 848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Miami, Florida, and engages in the marble and tile contracting business in the vicinity of that city. At the hearing in this matter .the parties stipulated that Miami Marble, in the course and conduct of its business, purchases goods and materials which originate from sources outside the State of Florida but that the quantity and/or value of such pur- chases are not sufficient to satisfy the Board's requirements for the assertion of juris- diction. The parties further agreed that the Dade County, Florida, Tile, Marble, and Terrazzo Contractors Association , herein called the Association , is an association composed of tile, marble, and terrazzo contractors located in Dade County, Florida, and that in the course and conduct of their business operations the Association mem- bers, as a group (collectively), purchase, annually, over $50,000 worth of materials and supplies which are shipped to said members "from other enterprises located in the State of Florida, which other enterprises had received the said goods and materials directly from States other than the State of Florida." The General Counsel concedes that Miami Marble's business operations alone do not satisfy the Board's standards for the assertion of jurisdiction but contends that at the time of the alleged unfair labor practices Miami Marble was a member of a multi- employer unit (member of the aforementioned Association ) and that, therefore, the commerce facts of the other members of the unit bring Miami Marble within the jurisdictional standards. Respondents assert that under the particular facts and cir- cumstances involved, Miami Marble's membership in the Association does not justify ,the assumption of jurisdiction assuming , arguendo, that the Board's requirements for assertion of jurisdiction over members of the Association have been established. Prior to February 17, 1960 (apparently sometime between January 25 and Febru- ary 17, 1960), Miami Marble became a member of the aforementioned Association. On or about February 24, 1960, Miami Marble and other members of the Association signed a document designating the Association their respresentative for the purposes of collective bargaining or the adjustment of grievances. Insofar as unfair labor practices are concerned this case concerns an employee of Miami Marble named Boyd Garner whom the Union allegedly caused to be dis- charged on or about March 1, 1960. By letter dated March 8, 1960 , Miami Marble tendered a resignation from the Association. The evidence adduced does not suggest that this tender was in any way motivated by a desire or intent to defeat the purposes of the Act. The Association replied to Miami Marble's letter of resignation by notifying Miami Marble it would be necessary "to have some kind of a hearing to determine whether" the "resignation would be accepted" and advising Miami Marble "to come to a meeting so that we could have this hearing." No hearing has been held. At negotiation meetings (looking toward a new contract ) between the Association and the Union involved herein held, apparently , the latter part of March 1960, the Union inquired whether the Association was negotiating on behalf of Miami Marble and was told that the Association was not sure since Miami Marble had submitted a resignation from the Association which had not been acted upon . Apparently, these negotiations have not been completed. There is no question but what an employer may withdraw from a multiemployer unit so long as the intent to withdraw is clear and unequivocal , the attempted with- drawal is at an appropriate time and the withdrawal would not frustrate the puproses and aims of the Act. Presumably , the General Counsel contends herein that Miami Marble's withdrawal was not timely 1 since it was initiated after the date of the alleged unfair labor practices and that assertion of jurisdiction turns on the factual picture existing at the time of the alleged unfair labor practices . While it is true that generally assertion of jurisdiction turns on the factual picture existing at the time noted above,2 there are exceptions to this general proposition . One such exception appears to be in situations such as involved herein . See Gordon Electric Company, 123 NLRB 862 .3 In the light of the cases dealing with timeliness of withdrawals from 1 A review of cases dealing with timeliness of withdrawals from employer associations is set forth in a recent Intermediate Report by Thomas F. Maher. See Cooks, Waiters and Waitresses Union, Local 337; and Peoria Local Joint Executive Board, Hotel and Restaurant Employees International Union; and Anna C. Rimrtngton (Greater Peoria Restaurant Association ), 131 NLRB 198. 2 See Mountain Pacific, Seattle , and Tacoma Chapters of the Associated General Con- tractors of America, Inc, 117 NLRB 1319, 1328 a In Gordon Electric the Trial Examiner issued an Intermediate Report finding, inter alia, that Gordon Electric Company had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action. On appeal the Board dismissed the complaint finding that "Gordon's MARBLE POLISHERS, ETC., LOCAL NO. 121, AFL-CIO 849, employer associations and the Gordon Electric case it appears that jurisdiction should, not be asserted herein. CONCLUSIONS For the foregoing reasons and upon the basis of the foregoing findings of fact,, the Trial Examiner concludes that the operations of Miami Marble do not meet the. Board's standards for assertion of jurisdiction and that it would not effectuate the policies of the Act to assert jurisdiction in this case. In view of the findings and con- clusions above, the Trial Examiner is not passing upon the merits of the unfair labor practice allegations of the complaint. [Recommendations omitted from publication.] SUPPLEMENTAL, INTERMEDIATE REPORT STATEMENT OF THE CASE Upon charges duly filed by Boyd Garner, an individual, the General Counsel of_ the National Labor Relations Board by the Regional Director for the Twelfth Region (Tampa, Florida) duly issued a complaint dated May 24, 1960, against- Marble Polishers, Machine Operators and Helpers, Local No. 121, AFL-CIO, and its Agent John Foglia, herein called Respondents, alleging unfair labor practices, affecting commerce within the meaning of Section 8(b) (1) (A) and (2) and Section 2(6) and (7) of the National Labor Relations Act, as amended, herein called the Act. Thereafter Respondents filed an answer contesting jurisdiction and denying the commission of any unfair labor practices. Pursuant to notice, a hearing was held on June 20 and 21, 1960, at Miami, Florida,, before the duly designated Trial Examiner. At the conclusion of the General Coun- sel's case-in-chief, and at the conclusion of the hearing, counsel for Respondents moved to dismiss the complaint on jurisdictional grounds and for lack of merit. On August 11, 1960, the Trial Examiner issued his Intermediate Report recom- mending that, on the basis of Gordon Electric Company, 123 NLRB 862, and cases, dealing with withdrawals from employer associations, jurisdiction not be asserted herein and that the complaint in this matter be dismissed without passing upon the merits of the unfair labor practice allegations of the complaint. Thereafter, on January 11, 1961, the Board ruled that the Trial Examiner "erred in finding and concluding that the complaint should be dismissed for lack of jurisdiction" and remanded the case to the Trial Examiner for "submission of a supplemental Inter- mediate Report on the merits of the case." Unfair Labor Practice Issue On or about March 1, 1960, Marvin L. Zank, doing business under the name of Miami Marble & Tile Company, discharged Boyd Garner, the Charging Party herein, and the complaint alleges that this discharge was caused by Respondents in violation. of Section 8(b)(1)(A) and (2) of the Act. The gravamen of the complaint is that the Union, acting through its agent , Foglia, directly caused Garner's discharge by threats to Tilesetter Albert Johnson, a supervisory employee of Miami Marble & Tile- Company. business is insufficient to warrant the assertion of jurisdiction." In that case the Board said : It is undisputed that Gordon's operations alone do not satisfy the Board 's standards for the assertion of jurisdiction. The Trial Examiner, however, justified the assump- tion of jurisdiction on the ground that at the time of the alleged unfair labor prac- tices Gordon became a member of a multiemployer unit and that, therefore, the, commerce facts of the other members of the unit brought him within the jurisdic- tional standards We have carefully examined the record in the case and are not persuaded that the evidence established that Gordon , by signing the area agreement previously negotiated between the Los Angeles Chapter, National Electrical Con- tractors Association, Inc, and the Union and his signing the NECA authorization- form, thereby indicated an unequivocal intent to be bound in collective bargaining by group, rather than individual, action. We find that, under the particular facts and circumstances of the case , Gordon's conduct amounted , at most, to the adoption of an area contract which is insufficient to make an employer part of a multi- employer unit. Accordingly, we shall dismiss the complaint against the Respondents in its entirety .850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Facts About 6 years prior to March 1, 1960, Garner applied for membership in Respond- ent Union and intermittently through the years made payments toward his union initiation fee and dues, although he never paid the entire initiation fee or became current in his dues payments. The Union, as a matter of policy, is lenient in its col- .lections of such moneys and endeavors to take into consideration individual circum- stances affecting the ability of the members and prospective members to pay. Ac- ,cordingly, prior, to the events involved herein, it accepted Garner's sporadic payments although it sought more frequent payments. During the summer of 1959 Assistant Business Agent John Foglia visited a jobsite ^(on 183d Street in Miami, Florida) where Tilesetter Albert Johnson and his helper (Garner) were working and told Garner that if he (Garner) did not "get straightened up with the Union" a union member would be sent to take his place. Foglia also made plain to Johnson and Garner that unless Garner got "straightened up with the Union" there was a likelihood that Respondent Umon would "stop the job" and -would report to the union of which Johnson was a member (the Mechanics local) that he (Johnson) was working with a nonunion helper (Garner) and that union (the Mechanics local-Local 7, Bricklayers, Plasterers, Masons International) would fine Johnson.' During September 1959 Assistant Business Agent Foglia and Respondent Union's Business Representative Herb Rastatter visited a jobsite (off Brickell Avenue in Miami, Florida), where Johnson and Garner were working and Foglia again endeav- ored to get Garner to get "straightened out with the Union" (to pay his initiation fee and dues). When Garner indicated he was hard pressed for money and could not ,get "straightened out" at that time, Foglia indicated to Johnson that unless Garner immediately paid to Respondent Union his initiation fee and dues or Johnson got rid of him (Garner) "he [Foglia] was going to report him [Johnson] to his union [the Mechanics Union]; that now both unions [Local 7-the Mechanics local and Local 121-the Helpers local] were working together and his [Johnson's] union would fine him a sum of money." 2 At 3:30 p.m. on March 1, 1960, Assistant Business Agent Foglia visited a jobsite (on 199th Street in Miami, Florida) where Tilesetter Albert Johnson and his helper, Garner, were finishing up a job After making a remark indicating that he (Foglia) resented Garner's failure to pay union fees and dues, Foglia conferred with Johnson and then left the jobsite. That evening Johnson telephoned Garner and told him (Garner) that Foglia had called him (Johnson) and told him to replace Garner with 1 Based upon the testimony of Garner as corroborated by Johnson Johnson also testi- fied he made a successful plea to retain Garner because Garner was his (Johnson's) "ex-brother-in-law with two children to look out for and I [Johnson] felt that as long as he was employed under me [Johnson] that at least he [Garner] could show some responsibilities towards them by bringing them up Because I [Johnson] knew if he [Garner] was working, then they could be cared for" Foglia testified he could not re- call the conversation. He did, however, deny that he "threatened Albert Johnson at that time." 2 Based upon the testimony of Garner which the Trial Examiner credits, Rastatter did not testify in his proceeding. Johnson's and Foglia's versions of this incident are sub- stantially in accord with that given by Garner except they deny that threatening re- marks were made. Johnson and Foglia testified that this conversation was prompted by Johnson's asking Foglia to get Garner discharged because Garner was not sending money for the support of his (Garner's) children as he was required to do. Nevertheless, neither of them testified that anything was said in this conversation about this matter. Furthermore, the record reveals that Garner was in fact making the required payments for the support of his children. In addition, the record reveals that Johnson and Garner never discussed this matter between them and the Trial Examiner believes it highly un- likely that Johnson would have. taken such a personal matter up with Foglia without first discussing it with his ex-brother-in-law (Garner). Also, If Johnson was interested in seeing that Garner's children received money from Garner it is not likely he (Johnson) would try to cut off Garner's monetary source To the contrary, he would try to insure no loss of revenue to Garner as he had done in the past-by giving him employment and by pleading with Foglia as he did (luring the summer of 1959. In addition, Johnson had ample authority to discharge Garner and there is no apparent reason why he should seek Foglia's aid to accomplish such a purpose. As a witness, Johnson appeared to be under considerable pressure to color the truth. He appeared to be torn by a desire to tell the whole truth and yet by a fear of consequences harmful to himself if he did so. In short, -the Trial Examiner on the basis of observation of witnesses and analysis of the record ,believes and finds that Johnson's and Foglia's testimony lack the ring of truth. MARBLE POLISHERS, ETC., LOCAL NO. 121, AFL-CIO 851 a union member the next morning or he (Johnson) would be reported to his own local union (the Mechanics local-Local 7) and be fined for working with a non- union helper. Johnson told Garner that he (Johnson) did not want "to get in trouble with his union" and that accordingly he (Garner) was discharged .3 Immediately after this conversation Garner telephoned Marvin Zank, owner-operator of Miami Marble & Tile Company, and told him (Zank) what Johnson had said. Zank told Garner he (Zank) would talk to Johnson and that he (Garner) should call him ('Lank) later. Zank then talked to Johnson who told Zank that Foglia had com- plained about Garner's not being a paid-up member of Respondent Union and had threatened to report Johnson to his own local union (Local 7) unless he got rid of Garner and that, accordingly, he (Johnson) had discharged Garner.4 When Garner telephoned Zank the second time on March 1, 1960, Zank told him what Johnson had said and that he (Zank) was going to leave the matter up to Johnson. On March 2, 1960, Garner was replaced by a member of Respondent Union in good standing. On or about March 8, 1960, Garner telephoned Foglia and asked him (Foglia) whether he (Foglia) had told Johnson to get rid of him (Garner). Foglia answered in the affirmative and told Garner that Respondent Union could not go along with his nonpayment of regular dues any longer, that he (Foglia) had a boss and that he (Foglia) had been told (after he (Foglia) visited the jobsite on March 1, 1960) to call Johnson and have him (Garner) replaced by a unionman and that he (Foglia) bad done so via telephone 5 At the times material herein there was no agreement requiring membership in a labor organization as a condition of employment by Miami Marble & Tile Com- pany, as authorized in Section 8(a) (3) of the Act. Conclusion In summary, the evidence reveals that despite Respondent Union's efforts to have Garner, an applicant for membership in Respondent Union, make regular payments toward his initiation fee and monthly dues, Garner steadfastly failed to make such and was discharged on March 1, 1960, and told (by both his employer and by Respondent Union) that his discharge was because of his failure to make regular payments to Respondent Union. The evidence further reveals that at the time of Garner's discharge, Garner's employer and Respondent Union were not parties to an agreement requiring as a condition of employment membership in Respondent Union. Notwithstanding the foregoing facts Respondent Union contends that in fact Garner was not discharged at the request or demand of the Union or because of his failure to pay regularly toward his union initiation fee and dues but was dis- charged because of resentment against him (by Johnson) caused by his (Garner's) failure to provide for the support of his children and that the reasons given Garner were contrived to camouflage this reason. This contention stretches credulity to the breaking point and is hereby rejected. As noted above, there is no evidence that Garner did not provide for the support of his children. In fact, the evidence is to the contrary. Whatever resentment Johnson harbored toward Garner because of the divorce of Garner and Johnson's sister and the problem concerning the chil- dren of that marriage Johnson kept it to himself insofar as Garner was concerned and nothing occurred with respect to this matter at or about the time of the dis- charge that can reasonably be viewed as prompting the discharge. Furthermore, if Johnson was interested in looking out for his sister and seeing that she received support money for the children, it is not likely that he would cut off Garner's mone- S Based upon the testimony of Garner, Johnson admitted the conversation was sub- stantially as related by Garner but claims he told Garner "a little untruth" and that Garner's discharge was not caused by Foglia but was caused by Garner's failure to pro- vide support for his (Garner's) children but he did not want Garner to know the real reason and used the Union's efforts to try to get Garner to become a member in good standing so as to conceal the real reason 4 Based upon the testimony of Zank, Johnson admits that he told Zank substantially the same things that he had told Garner earlier that evening. 5 Based upon testimony by Garner, Foglia admits that he told Garner that he (Fogla) had told Johnson to get rid of him (Garner) but claims that such was not the fact and that he was helping Johnson conceal the fact that Garner was being discharged for non- support and was .going along with Johnson's plan to, conceal this reason by making it appear that the reason was Garner's failure to become a member of the Respondent Union In good standing 614913-62-vol. 132-55 852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tary source. To the contrary, he would try to insure no loss of income to Garner as he had done in the past. There is not a scintilla of evidence that Johnson's local (Local 7) did anything at the time of Garner's discharge, or any other time, to indicate its displeasure be- cause he (Johnson) was working with a nonunion helper. Yet at the time of Garner's discharge Johnson was obviously concerned about disciplinary action by Local 7 for this reason. The only reasonable source of this concern was Foglia. As noted above, Foglia had earlier caused such concern and the situation giving rise to Foglia's earlier action had not changed at the time of Garner's discharge, ex- cept that the period of time during which Garner failed to make payments to the Union increased. From the entire record in this matter the Trial Examiner is convinced that Foglia, by words and conduct, indicated to Johnson that Respondent Union was miffed or irritated by Garner's failure to make regular payments toward his initiation fee and dues, and that unless he (Johnson) got rid of Garner he (Johnson) would be sub- jected to disciplinary action by his (Johnson's) local (Local 7) for working with a nonunion helper and that this conduct by Foglia caused Johnson to discharge Garner. The aforementioned conduct occurring in connection with the operation of the business involved herein has a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce and is conduct violative of Section 8(b)(1)(A) and (2) and Section 2(6) and (7 of the Act. [Recommendations omitted from publication.] Duval Engineering & Contracting Company and Seafarers International Union of North America, Atlantic and Gulf Districts, AFL-CIO (Harbor Inland Workers Division ). Cases Nos. 12-CA-1342 and 12-CA-1409.1 August 10, 1961 DECISION AND ORDER On November 14,1960, Trial Examiner Thomas S. Wilson issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent 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 Intermediate Report attached hereto. He also found that the Respondent had not engaged in certain other alleged unfair labor practices and recommended dis- missal of the complaint with respect thereto. Thereafter, the Re- spondent and the General Counsel filed exceptions to the Intermediate Report and supporting briefs. Pursuant to Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three- member panel [Members Leedom, Fanning, and Brown]. 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 Inter- mediate Report, the exceptions and briefs, and the entire record in the 1 On April 12, 1960 , the Regional Director issued an order consolidating these cases. 132 NLRB No. 65.