Norman Fromme Masonary Contractor

670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Norman Fromme, an Individual, d/b/a Norman Fromme Masonry Contractor and Charles R. Bell, James D. Howell and Bricklayers , Masons and Plasterers' International Union of America (AFL-CIO), Local No. 32, Vincennes, Indiana, Party to the Contract Bricklayers, Masons and Plasterers ' International Union of America (AFL-CIO), Local No. 32 of In- diana, and its Secretary, Clyde J. Jones, Jr. and Norman Fromme, an Individual, d/b/a Norman Fromme Masonry Contractor. Cases 25-CA-3403-1, 25-CA-3403-2, and 25-CB-8 89 June 19, 1970 DECISION AND ORDER By MEMBERS MCCULLOCH, BROWN, AND JENKINS On March 11, 1970, Trial Examiner Ivar H. Peterson issued his Decision in the above-entitled proceeding, finding that Respondent Employer and Respondent Union had engaged in and were engag- ing in certain unfair labor practices as alleged in the complaint and recommending that they cease and desist therefrom and take certain affirmative ac- tion, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that Respondent Union had not engaged in certain other unfair labor practices alleged in the complaint and recommended dismissal as to them. Thereafter, Respondent Union filed exceptions to the Trial Ex- aminer 's Decision and a supporting brief, and the General Counsel filed limited exceptions to the Decision and a supporting brief. 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 powers in connection with these cases to a three- member panel. 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 Trial Examiner's Decision, the exceptions and briefs, and the entire record in these cases, and hereby adopts the findings, conclusions, and recom- mendations ' of the Trial Examiner with the modifi- cations noted below. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner and" hereby orders that Respondent Norman Fromme, an In- dividual, d/b/a Norman Fromme Masonry Contrac- tor, Jasper, Indiana, his agents, successors, and as- signs, and Respondent Bricklayers, Masons and Plasterers' International Union of America (AFL-CIO), Local No. 32 of Indiana, and its Secretary, Clyde J. Jones, Jr., and its other officers, agents, and representatives, shall take the action set forth in the Trial Examiner's Recommended Order with the modifications noted below. 1. Redesignate paragraphs 1(b) and (c) of sec- tion B of the Trial Examiner's Recommended Order as paragraphs 1(c) and (d), respectively, and add the following as a new paragraph 1(b): "Interpreting or giving effect to its agreement with Respondent Employer in any manner which causes or attempts to cause said employer to dis- criminate against applicants for employment in violation of Section 8(a)(3) of the Act." 2. Delete paragraph 2(b) of section B of the Trial Examiner's Recommended Order and redesignate paragraphs 2(c) and (d) as paragraphs 2(b) and (c), respectively. 3. Substitute the following for the fourth in- dented paragraph of Appendix B attached to the Trial Examiner's Decision. WE WILL NOT interpret or give effect to our agreement with the above-named Employer in any manner which causes or attempts to cause the above-named Employer to discriminate against applicants for employment in violation of Section 8(a)(3) of the Act. MEMBER BROWN, concurring in part, dissenting in part: Contrary to the majority, I would dismiss the complaint insofar as it alleges that the Union causea or attempted to cause discrimination against Bell and Howell in violation of Section 8(b)(1)(A) and (2) of the Act. The Employer and Union are parties to a collec- tive-bargaining agreement which included a lawful clause giving unemployed bricklayers in the area a hiring preference over nonresidents. Bell and Howell were nonresidents who sought work in the Union's jurisdiction while local bricklayers were unemployed and available for work. The Trial Ex- aminer, in finding that the Union unlawfully inter- fered with the employment of Bell and Howell, con- ' For remedial purposes the Trial Examiner recommended that Respon- dent Union rescind the provision in the applicable collective-bargaining agreement which resulted in preferential treatment for members of Respondent Union However, as that provision is lawful on its face, and the violation we find is predicated on its unlawful application, we shall order Respondent Union to cease and desist from interpreting or giving effect to said provision in any manner which discriminates against employment ap- plicants who are not members of Respondent Union Accordingly, we shall delete those provisions of the Trial Examiner's Recommended Order requiring rescission of the clause in issue 183 NLRB No. 83 NORMAN FROMME MASONRY CONTRACTOR 671 cluded that the otherwise lawful "hiring preference" clause was actually applied to afford employment preference on the basis of union mem- bership. In my opinion, the General Counsel has failed to meet his burden of proving either that the clause was discriminatorily applied or that the interference with the hiring of Bell and Howell was for reasons other than their seeking work while local bricklayers were unemployed. There is no evidence that local unemployed bricklayers who were non- members were ever denied employment in favor of union members. Therefore, the clause clearly was not applied to afford unemployed area residents a preference based upon union membership. Although there is evidence that the Union urged the Employer to hire resident members before em- ploying Bell and Howell, ambiguous evidence of this nature is hardly sufficient to establish a prima facie case of discrimination. For it is quite possible that all bricklayers within the Union's jurisdiction were members, or that those available for work were all members, and, in such cases, the Union's attempt to secure their employment would be per- fectly consistent with a lawful application of the collective-bargaining agreement and would not, as a matter of fact, evidence a discriminatory preference based on union membership. Ac- cordingly, as I am not satisfied that the General Counsel has sustained his burden of proving that the Union's actions with respect to Bell and Howell related to their nonmembership,2 I would dismiss the complaint insofar as the 8(b)(I)(A) and 8(b)(2) allegations are based thereon. ' It is noteworthy that at times material to the instant proceeding at least six nonmembers were employed as rank-and-file bricklayers within the Union 's jurisdiction TRIAL EXAMINER'S DECISION Statement of the Case tion 8(a)(3) and (1) of the Act. Thereafter, on charges filed on July 1, 1969, by Fromme against the Union and its secretary, Clyde Jones, Jr., the Regional Director issued a complaint on August 13, 1969, against the Union and Jones, alleging that the Responent Union had violated Section 8(b)(2) and (1)(A) of the Act by causing Respondent Fromme to discriminate against Bell and Howell, and had further violated Section 8(b)(1)(A) by threatening to fine Bell and Howell because they filed charges under the Act. Also on August 13 the Regional Director consolidated the cases for hearing. Pursuant to notice, I conducted a hearing on the consolidated complaints, as further amended at the hearing, at Jasper, Indiana, on August 26, 27, and 28, 1969, and January 6, 1970. The General Coun- sel and the Respondents were represented by coun- sel and participated in the hearing. Posthearing briefs filed by all parties have been carefully con- sidered. Upon the entire record, and from my observation of the witnesses , I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT EMPLOYER The Respondent Employer, an individual proprietorship, is engaged at Jasper, Indiana, and vicinity as a masonry contractor. During 1968 the Respondent Employer purchased goods and materi- als valued at $34,714 which were transported to construction sites in Indiana from outside the State of Indiana. During the same year Fromme per- formed work in Indiana for Peyronnin Construction Company, of Evansville, Indiana, in the amount of $117,500. Peyronnin during 1968 made direct purchases from suppliers outside the State of Indi- ana valued in excess of $134,000, which purchases were,§hipped directly to Peyronnin's Indiana facili- ties. I find,' contrary to the contention of Respon- dent Union, that the Respondent Employer is en- gaged in commerce within the meaning of the Act and comes within the Board's' jurisdictional stan- dards, and it will effectuate the policies of the Act to assert jurisdiction herein. IVAR H . PETERSON , Trial Examiner : Upon charges filed, on May 14, 1969 , by Charles R. Bell and James D. Howell , the General Counsel of the Na- tional Labor Relations Board, by the Regional Director for Region 25, issued a complaint on June 27, 1969, against Norman Fromme , an Individual, d/b/a Norman Fromme Masonry Contractor, herein called Fromme or Respondent Employer, alleging in substance that pursuant to a contract arrange- ment with Bricklayers , Masons and Plasterers' In- ternational Union of America (AFL-CIO), Local No. 32, Vincennes , Indiana, herein referred to as Local 32, the Union , or the Respondent Union, Fromme had on April 22, 1969, unlawfully denied employment to Bell and Howell in violation of Sec- II. THE LABOR ORGANIZATION INVOLVED The Respondent Union, Local 32, is a labor or- ganization within the meaning of the Act. Clyde Jones is secretary and business agent and Fred Shoobridge is a steward . The Respondent Union admitted, and I find, that Jones and Shoobridge are agents of Respondent Union within the meaning of Section 2(13) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background and Issues At all times here material the Respondent Em- ployer has been a signatory to the collective-bar- 672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gaining agreement, effective from July 1, 1967, to April 30, 1970, between building contractors of Knox, Pike, and Gibson Counties in Indiana and the Respondent Union. These three counties constitute the territorial jurisdiction of the Respondent Union. One provision of this agreement reads as follows: Local Employees shall be employed on all pro- jects at all times, if local Employees are availa- ble. The General Counsel contends, as alleged in the complaints, that this provision has been applied and given effect so as to require that members of the Respondent Union be preferred for employment and hired if available before all others and, more particularly, that two applicants for employment, Charles Bell and James Howell, not members of Local 32, were denied employment by virtue of the application of this provision. The complaints further alleged that the arrangement or practice between the Respondents require membership in or clearance by the Respondent Union as a condition of employment of employees hired by or who per- formed work for Respondent Employer under the jurisdiction of the Respondent Union. Additionally, the complaint against the Respondent Union alleges that its admitted agent, Secretary Jones, threatened to fine Bell and Howell because they filed charges under the Act and refused to dispatch Bell for the same reason.The Respondent Employer, insofar as wrongdoing on his part is concerned, virtually ad- mits that he did not hire Bell and Howell on April 22, although he needed men, because they were not members of Local 32.1 The Respondent Union de- nies that it committed any unfair labor practices. B. The Facts Beginning in August 1968 and continuing into the summer of 1969 the Respondent Employer was engaged in performing the masonry work as a sub- contractor on the North Gibson High School in Princeton, Indiana, which is in Gibson County and within the territorial jurisdiction of Local 32. Fol- lowing a shutdown in mid-December, work resumed in January. Fromme, the Respondent Em- ployer, testified that in January, as well as on prior occasions, Secretary Jones told him that according to the contractual provision quoted above Fromme could not hire men who were not members of Local 32 so long as Local 32 members were available. According to Fromme, in February he wished to have Jerry Summers, an employee who had just completed a job for Fromme in Jasper, come to the North Gibson High School job to work as a bricklayer. Summers was a member of Local 53 of the Bricklayers International and in the past had worked for Fromme on a number of occasions. ' The charge filed by Respondent Employer alleged that "on orders of Jones" he "could not hire" Bell and Howell on April 22 "because they were not members of Local No 32 " Fromme discussed this proposal with Fred Shoobridge, the steward on the North Gibson job and an admitted agent of the Respondent Union. Shoobridge, so Fromme testified, advised him that 10 Local 32 members were then unemployed and the only way Summers could be put to work on the job was as a foreman. Summers testified he talked to Shoobridge who "said I would have to be a fore- man" because Local 32 men were not working.' Summers did work as a foreman on the job for several weeks. He then called Jones and stated that he did not wish to work as a foreman but as a bricklayer and inquired if Local 32 men were out of work. Jones advised him Local 32 men were unem- ployed. Knowing that Local 32 did not want non- members of that local working in its jurisdiction when members were unemployed, and not wishing to continue working as a foreman, a job he felt was too much for him, or cause any trouble between Jones and Fromme, Summers quit. James Vaughn,' a member of Local 52, who had worked as a bricklayer on the North Gibson job prior to the mid-December shutdown, had an ex- perience somewhat similar to that of Summers. When work resumed Vaughn was told by Fromme that he would be unable to use Vaughn, as there were too many Local 32 men unemployed. Later on, in May or June, Vaughn accompanied Fromme to the jobsite as Fromme indicated he thought all Local 32 men were then employed. Fromme asked Shoobridge, the steward, if Vaughn could go to work. Shoobridge replied that he thought eight Local 32 men were out of work and that Jones should be contacted. Vaughn visited Jones where the latter was working and was told that four or five men were out of work but as soon as they obtained work he (Jones) would let Vaughn go to work. Thereupon, Fromme hired Vaughn as foreman and Fromme worked as an ordinary bricklayer. This ar- rangement lasted 4 days and then Shoobridge sold Vaughn a work permit and Vaughn thereafter worked as a regular bricklayer. Bell and Howell, the alleged discriminatees, both members of Local 54 of the Bricklayers at Olney, Illinois, met Jones in Vincennes, Indiana, on April 8 and inquired about the possibility of obtaining work in the jurisdiction of Local 32. Jones replied that there was no work available explaining, as Bell credibly testified, "that he couldn't put on any per- mit men because he had [Local 32] men loafing." Howell testified to the same effect. Jones was not questioned about this incident. According to Fromme, Jones visited the North Gibson project the week prior to April 22 and asked Fromme whether he was ready to hire men, saying that there were about eight men from Local 32 unemployed and that Fromme would have to 2 Shoobndge was not questioned about this incident 3 At some places in the transcript his name is erroneously spelled "Bond NORMAN FROMME MASONRY CONTRACTOR 673 hire these before he employed any others. Jones testified he spoke to Fromme on the jobsite on April 3 and asked if he needed any bricklayers. Fromme replied he was not hiring until the ground dried out. Jones then, so he testified, "informed him that we had local men out of employment and I would like to have him call me if he needed bricklayers and he told me he would do this." On April 22 Bell and Howell went to Fromme's North Gibson job looking for work. They asked Fromme if he had any need for men, and Fromme replied that he needed two bricklayers badly. Thereupon, according to Fromme's testimony on direct examination by counsel for the General Counsel, the following occurred: Q. Then after there was some conversation between Mr. Shoobridge and Mr. Howell, didn't you ask them if they were from the Vin- cennes Local? A. That's correct. Q. And one of the men told you he had been, but was not then. A. That's right. Q. And the other man was not from the Vincennes Local either, Mr. Bell. A. That's right. Q. Then didn't you tell these men that you were sorry but you could not hire them? A. Yes. A week previous to this is when Jones came to the job site and wanted to know whether I was ready to hire men. He said he had about eight men loafing from that Local and I'd have to hire these Local men before I put on any other men. So I passed this information on to these two men that I'll have to hire the Local men that are unemployed before I can hire anyone else. The versions of the conversation as given by Bell and Howell are not materially different.4 Following their unsuccessful effort to obtain em- ployment with Fromme, Bell and Howell reported their difficulty to Joseph Slichenrnyer, secretary of their local, Local 54. They inquired why, if Local 32 could exclude members of sister locals from em- ployment in its territorial jurisdiction, Local 54 could not do the same thing. Slichenrnyer said such procedure would be unlawful, and offered to help them by contacting one Shepherd, an International officer. Later Slichenmyer, advised them that Shepherd would get in touch with Jones in an effort to resolve the difficulty. Thereafter, on May 14, ap- parently acting on the advice of Slichenmyer, Bell and Howell filed the present unfair labor practice charges against Fromme. On June 30 Bell and Howell applied for work at the Prestolite Battery jobsite in Vincennes, Indiana. They were told by the foreman that both could have work. They then went to the union steward to purchase work permits, but he referred them to Jones, who was working at another project. Jones issued a work permit to Howell, but told Bell, an apprentice, that he would have to produce a letter from his own local consenting to his working out- side its jurisdiction and to appear at the next meet- ing to be voted upon by Local 32. Actually, Bell had a letter from the secretary of his local and of- fered to show it to Jones, but the latter expressed lack of interest. During the course of this incident Jones inquired how their "claim," i.e., the charge filed with the Board, was progressing and added they had put Local 32 "right in the middle of it." He also stated, according to the undenied and credited testimony of Bell and Howell, that the Union would file charges against them and they would be fined $1,000 plus expenses and attorney's fees. That day or the next day Bell telephoned George King, the first vice president of the Interna- tional . On July 1, King sent Bell a telegram which stated that Jones had been telegraphed the follow- ing message: YOU ARE INSTRUCTED TO ISSUE PERMIT TO APPRENTICE CHARLES BELL, I.U. NO. 3603, SO THAT HE CAN WORK UNTIL MATTER CAN BE GIVEN ATTENTION AT YOUR NEXT LOCAL MEETING. When he received this telegram Bell returned to Prestolite to see if he still had a job, but learned that he did not. Bell did not return to Jones to ob- tain a permit. About July 7 officers of Locals 32 and 54, together with Bell and Howell, met in an effort em- ployment with Fromme on April 22. As found above, they were told by Fromme, in response to their inquiry whether he needed any men, that he did need two men at that time. However, when Fromme found out that they were not members of Local 32 he told them he could not hire them, as- cribing his inability to do so to the preference he was required to give to members of Local 32 who were then unemployed. Without regard to whether the contract between the Union and Fromme pro- vided and required that members of Local 32 be given preference over nonmembers, it seems clear that Fromme's refusal to hire Bell and Howell because they were not members of Local 32 was discriminatory and had the natural consequence of encouraging membership in Local 32, and there- fore was violative of Section 8(a)(3) and (1) of the Act. I so find.5 Whether the Respondent Union can be said to have caused Fromme to discriminate against Bell and Howell in violation of Section 9(b)(2) depends on the construction and application given the con- tractual provision relating to preference as between "Local Employees" and other applicants for em- ployment. On its face, the clause-"Local Em- 41n his brief, counsel for the Respondent Employer summarizes this episode as follows "On April 22, 1969 , Charles Bell and James Howell ar- rived at the job site in Princeton, Indiana , where Mr Fromme was working They asked for employment, and he refused to hire them because of his previous instructions in this regard from Local 32 " 3 Radio Officers' Union v N.L.R.B , 347 U S 17, 45. 674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees shall be employed on all projects at all times, if local Employees are available"-is susceptible of an interpretation that it refers to re- sidents of the three-county area covered by the contract and not to members of Local 32 as such. If construed to give preference to residents of the geographical area covered by the contract rather than to members of the Respondent Union, it would appear that no illegality would attach to the clause even though, because of their being residents of the area, members of Local 32 would benefit." Upon an appraisal of the evidence in the record I am persuaded, although the matter is not free from doubt, that the Respondent Union equated the term "Local Employees" with members of Local 32 and that this construction of the contract provision, acquiesced in by the Respondent Employer (although reluctantly), caused Fromme on April 22 not to hire Bell and Howell, thereby violating Sec- tion 8(a)(3). Fromme's testimony, as quoted above, is that, in refusing to hire Bell and Howell, he made reference to the visit of Jones a week earlier during which Jones stated that eight men from Local 32 were unemployed and Fromme would have to hire these men before he hired others. Jones, on the other hand, places the visit as occurring on April 3 and he testified that he told Fromme Local 32 men were unemployed and asked Fromme to call him if he needed any bricklayers. I was more favorably impressed with Fromme as a witness than with Jones, and I credit Fromme. Accordingly, I find that Jones on that occasion said that unemployed members of Local 32 were to be hired before others. This is consistent with the testimony of Fromme, which I credit, that Jones on one occasion had called his attention to the contractual provi- sion, underlined it with a red pencil, and said that as long as "local employees" were available Fromme had to hire them. Moreover, Fromme testified without contradiction that he complained to Jones about this limitation, and mentioned that the contracts of other locals were less restrictive. Jones, so Fromme credibly testified, said that was not the situation with respect to the Local 32 con- tract. In addition, I credit the testimony of Sum- mers and Vaughn, as set forth above, regarding their conversations in early 1969 with Jones, prior to being employed by Fromme in the capacity of foreman. As to both of them, Jones made clear that they could not be employed by Fromme as jour- neymen bricklayers for the reason that Local 32 members were unemployed. In sum, I conclude and find that the Respondent Union caused the Respon- dent Employer not to hire Bell and Howell because they were not members of Local 32, and that it ° See Bricklayers, Masons and Plasterers' International Union of America, etc (Plaza Builders, Incorporated ), 134 NLRB 751 ' In reaching this conclusion I have not overlooked the fact that records of the Union relating to health and welfare payments made by contractors pursuant to the union contract show that, during April and particularly the thereby violated Section 8(b)(2) and (1)(A) of the Act.7 With respect to the refusal of Jones to issue Bell a work permit on June 30 in connection with the Prestolite Battery job, I think the evidence is too in- substantial to warrant a finding of violation of Sec- tion 8(b)(2). There is no showing that that em- ployer had a contract with the Respondent Union or had been given, by Jones the same interpretation of the contract as Jones had given Fromme. Moreover, Bell's contract had been with a job foreman, not shown to have had authority to hire Bell. Finally, it does not appear that Bell en- deavored to ascertain whether he could go to work without a permit. I shall therefore dismiss the al- legation of violation of Section 8(b)(2) with respect to this incident. However, it is undisputed that on this occasion Jones told Bell and Howell that, because of the charges they had filed against Fromme, thereby involving the Union, charges would be filed against them and they would be fined. Thereby, I find, Bell and Howell were restrained and coerced in the exercise of the right guaranteed them in Section 7 of the Act, and par- ticularly to file charges under the Act. By such threat the Respondent Union violated Section 8(b)(1)(A) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in sec- tion III, above, occurring in connection with the operations of Fromme described in section I, above, have a close, intimate, and substantial rela- tion to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent Employer vio- lated Section 8(a)(3) and (1) of the Act, and that the Respondent Union violated Section 8(b)(2) and (1) (A) of the Act, it will be recommended that they cease and desist therefrom, and take certain affirmative action designed to effectuate the poli- cies of the Act. The record shows that Bell and Howell were de- nied employment on April 22, 1969, and that the North Gibson High School job was not completed at the time of the hearing in August 1969. As a result of not being hired, Bell and Howell were deprived of employment which they otherwise would have had subsequent to April 22 and con- week Bell and Howell were denied employment , several nonmembers of Local 32 were employed within the jurisdiction of Local 32 1 am not per- suaded that this circumstance compels a finding that Local 32 did not have a policy of preference for its members NORMAN FROMME MASONRY CONTRACTOR 675 tinuing until the hearing. At the outset of the hear- ing, Respondent Employer stated he was willing to employ Bell and Howell and the Respondent Union stated it was interposing no objection to their em- ployment. I shall therefore recommend that the Respondents, jointly and severally, make Bell and Howell whole for any loss of pay each may have suffered between April 22 and August 26, 1969, by reason of the discrimination against them. Backpay shall be determined in accordance with the formula prescribed in F. W. Woolworth Company, 90 NLRB 289, including interest thereon at 6 percent per annum in accordance with Isis Plumbing & Heating Co., 138 NLRB 716. I shall also recommend that the Respondent Union rescind the provision in its contract requiring that preference in employment be given to its members. 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. Norman Fromme, an individual, d/b/a Nor- men Fromme Masonry Contractor, is an employer within the meaning of Section 2(6) and (7) of the Act. 2. Bricklayers, Masons and Plasterers' Interna- tional Union of America (AFL-CIO), Local No. 32, of Vincennes, Indiana, is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent Employer, by refusing to employ Charles 'Bell and James Howell because of their nonmembership in Local 32, violated Section 8(a)(3) and (1) of the Act. 4. Kespondent Union , by causing Respondent Employer not to employ Charles Bell and James Howell, violated Section 8(b)(1)(A) and (2) of the Act. 5. Respondent Union, by threatening to fine Charles Bell and James Howell because they filed charges with the Board against Respondent Em- ployer, violated Section 8(b)(1)(A) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of Act. In other respects alleged in the complaint against it, the Respondent Union has not violated the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and the entire record in the case, it is recommended that: A. Respondent Employer, Norman Fromme, an individual, d/b/a Norman Fromme Masonry Con- tractor, Jasper, Indiana, his agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to employ Charles Bell or James Howell, or any other applicant for employment, because of such applicant's nonmembership in Local 32. (b) In any other manner interfering with, restraining, or coercing his employees or applicants for employment in the exercise of the rights guaran- teed by Section 7 of the Act. 2. Take the following affirmative action which will effectuate the policies of the Act: (a) Jointly and severally with Respondent Union make whole Charles Bell and James Howell, in the manner set forth above in the section entitled "The Remedy," for any loss of earnings suffered by reason of the discrimination against them. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary and pertinent to compute the amount of backpay due. (c) Post at his place of business in Jasper, Indi- ana, copies of the attached notice marked "Appen- dix A." Copies of said notice, on forms provided by the Regional Directdt for Region 25, after being duly signed by the Respondent, shall be posted im- mediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken to insure that said notices are not al- tered, defaced, or covere4l by any other material. (d) Notify said Regional Director, in .writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.9 B. Respondent Union, Bricklayers, Masons and Plasters' International Union of America (AFL-CIO), Local No. 32 of Indiana, and its Secretary, Clyde J. Jones, Jr., and its other agents, officers, and representatives, shall: 1. Cease and desist from: (a) Causing or attempting to" cause Norman Fromme, an individual, d/b/a Norman Fromme Masonry Contractor, to refuse to employ Charles Bell or James Howell, or any other applicant for employment, because of such applicant's nonmem- bership in Respondent Union. 8 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations , and Recommended Order herein shall, as provided in Section 102.48 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 In the event that the Board 's Order is enforced by a Judgment of a United States Court of Appeals , the words in the notice reading "Posted by Order of the Na- tional Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 9 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " 427-258 O-LT - 74 - 44 676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Threatening to fine any employee for having filed charges with, or otherwise resorted to the processes of, the National Labor Relations Board. (c) In any other manner restraining or coercing employees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which will effectuate the policies of the Act: (a) Respondent Union, jointly and severally with Respondent Employer, make whole Charles Bell and James Howell, in the manner set forth above in the section entitled "The Remedy," for any loss of earnings suffered by reason of the discrimination against them. (b) Rescind the provision of the contract with Respondent Employer giving preference in employ- ment to members of Respondent Union. (c) Post in the Respondent Union's business of- fice and places where notices to members are customarily posted, copies of the attached notice marked "Appendix B."10 Copies of said notice, on forms provided by the Regional Director for Region 25, after being duly signed by the Respondent Clyde J. Jones, Jr. and the duly authorized representative of Respondent Union, shall be posted immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps Respondent have taken to comply herewith. steps 10 See fn 8, supra ., " See fn 9,supra APPENDIX A NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to employ Charles Bell or James Howell, or any other applicant for employment, because of such applicant's non- membership in Local 32. WE WILL NOT in any other manner interfere with, restrain, or coerce employees or appli- cants for employment in the exercise of the rights guaranteed in Section 7 of the National Labor Relations Act. WE WILL, with Local 32, make whole Charles Bell and James Howell for any loss of pay suffered as a result of the discrimination against them. NORMAN FROMME, AN INDIVIDUAL, D/B/A NORMAN FROMME MASONRY CONTRACTOR (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or com- pliance with its provisions may be directed to the Board's Office, 614 ISTA Center, 150 West Market Street, Indianapolis, Indiana 46204, Telephone 317-633-8921. APPENDIX B NOTICE TO MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT cause or attempt to cause Nor- man Fromme, an individual, d/b/a Norman Fromme Masonry Contractor, to refuse to em- ploy Charles Bell or James Howell, or any other applicant for employment, because of such applicant's lack of membership in Local 32. WE WILL NOT threaten to fine any employee for having filed charges with, or otherwise resorted to the processes of, the National Labor Relations Board. WE WILL NOT in any other manner restrain or coerce employees in the exercise of the rights guaranteed in Section 7 of the National Labor Relations Act. WE WILL rescind the provision in the con- tract with the above-named Employer granting preference in employment to members of Local 32. WE WILL, with the above-named Employer, make whole Charles Bell and James Howell for any loss of pay suffered as a result of the dis- crimination against them. BRICKLAYERS , MASONS AND PLASTERERS' INTERNATIONAL UNION OF AMERICA (AFL-CIO), LOCAL 32 OF INDIANA (Labor Organization) NORMAN FROMME MASONRY CONTRACTOR 677 Dated By This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecu- (Representative) (Title) tive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or com- Dated By pliance with its provisions may be directed to the Board 's Office, 614 ISTA Center, 150 West Market Street, Indianapolis , Indiana 46204 , Telephone Clyde J. Jones, Jr. 317-633-8921.