Local Union #74, Marble, Slate and Stone Polishers

36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local Union #74, International Association of Mar- ble, Slate and Stone Polishers, Rubbers and Saw- yers, Tile and Marble Setters, Helpers, and Marble Mosaic and Terrazzo Workers' Helpers of the United States and Canada , AFL-CIO (The Blakley Granite, Marble & Tile Co., Inc.) and John R. Ro- docker. Case 25-CB-983 April 23, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND BROWN On December 21, 1970, Trial Examiner Herbert Silberman issued his Decision in the above-entitled case, finding that Respondent had engaged in and was engaging in certain unfair labor practices and recom- mending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed limited exceptions to the Trial Examiner's 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 this case to a three-member panel. The Board has reviewed the rulings of the Trial Ex- aminer made at the hearing and finds that no prejudi- cial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Ex- aminer's Decision, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Trial Examiner and hereby orders that the Re- spondent, Local Union # 74, International Association of Marble, Slate and Stone Polishers , Rubbers and Saw- yers, Tile and Marble Setters' Helpers, and Marble Mosaic and Terrazzo Workers' Helpers of the United States and Canada , AFL-CIO, Indianapolis , Indiana, its officers, agents, and representatives shall take the action set forth in the Trial Examiner 's recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE HERBERT SILBERMAN, Trial Examiner: Upon a charge filed by John R. Rodocker on April 29, 1970, a complaint, dated August 31, 1970, was issued alleging that the above- named Union, the Respondent in this case, has engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Section 8(b)(1)(A) and (2) of the Na- tional Labor Relations Act, as amended. The complaint, in substance, alleges that on November 24, 1969, Respondent caused John R. Rodocker to be discharged by the latter's employer because Rodocker had been expelled from member- ship in the Union for reasons other than his failure to tender the periodic dues and initiation fees uniformly required as a condition of acquiring or retaining membership in the Union and that thereafter Rodocker's employer was threatened that Respondent's members would refuse to work with Rodocker. Respondent filed an answer generally denying that it had engaged in the alleged unfair labor practices. A hearing in this proceeding was held on November 9, 1970, in Indianapolis, Indiana. Thereafter, General Counsel filed a brief with me which has been considered. General Counsel's motion to cor- rect the transcript of record in this case is granted. Upon the entire record in the case, I make the following: FINDINGS OF FACT I. JURISDICTION The Blakley Granite, Marble & Tile Co., Inc., herein called the Company, a corporation engaged in the business of tile contracting in Indianapolis, Indiana, annually, in the course and conduct of its business operations, purchases goods and materials valued in excess of $50,000 from sources outside the State of Indiana which goods and materials are transported through channels of interstate commerce to the Company's place of business in Indianapolis, Indiana. Respondent ad- mits, and I find, that the Company is an employer, as defined in Section 2(2) of the Act, engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED Respondent is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES During the times material hereto the Company and the Union have been parties to a collective-bargaining agreement which contains a union-security provision requiring member- ship in the Union as a condition of employment. John R. Rodocker who has worked for Blakley from time to time during the past 10 years was last hired by the Company in April 1969 and worked for it continuously until his termina- tion on November 24, 1969. During this period of time Ro- docker was employed in a classification covered by the collec- tive-bargaining agreement and was a member of Respondent Union. About 7 a.m. on Monday, November 24, 1969, Robert McPeak, Respondent's then president and business agent, telephoned Herbert McKenzie, Blakley's field superintend- ent, and informed McKenzie that Rodocker had been ex- pelled from the Union the preceding Friday night and that the Company "could not work him any longer." McKenzie replied that he "would get hold of John Rodocker and let them get together themselves." About a half hour later in a telephone conversation with Rodocker, McKenzie explained to Rodocker that McKenzie had been advised by McPeak that Rodocker was no longer a union member and that the 190 NLRB No. 9 LOCAL UNION #74, MARBLE, SLATE AND STONE POLISHERS Company could not "work him any more." McKenzie sug- gested to Rodocker that the latter communicate with McPeak and try to resolve the problem . Later the same afternoon Rodocker informed McKenzie "that he couldn't get together with anybody and that apparently he was out of the union and that he would get back with [McKenzie] if and whenever he got straightened out." Rodocker's employment with the Company was effectively terminated in the morning of November 24, 1969. McKenzie testified that Rodocker would not then have been terminated had it not been for McPeak's intervention. On Thursday or Friday of the same week McPeak met with McKenzie in the latter's office and repeated to McKenzie that Rodocker had been expelled from the Union , that "it was sanctioned by the International Union and that [the Com- pany] couldn't work [Rodocker] under those conditions." The same injunction against employing Rodocker was re- peated to the Company's president , Earl A . Blakley, by McPeak towards the end of November 1969. In the same conversation McPeak told Blakley that the reasons for Ro- docker's expulsion from the Union were "serious enough that if [the Company] were to hire Rodocker the men would not work with [the Company] " Respondent contends that McPeak was not specifically authorized to demand Rodocker's discharge . However, McPeak's conduct in this respect was within the scope of his apparent and actual authority and therefore attributable to Respondent. Based upon the foregoing , I find that on Novem- ber 24, 1969, Respondent caused the Company to discharge Rodocker because the latter had been expelled from the Un- ion for a reason other than his failure to tender the periodic dues and initiation fees uniformly required as the condition of acquiring or retaining membership in Respondent.' IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the Company's operations de- scribed in section I , above, have a close, intimate, and sub- stantial relationship 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 has engaged in certain unfair labor practices , I shall recommend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent unlawfully caused the Blakley Granite, Marble & Tile Co., Inc, on November 24, 1969, to discharge John R. Rodocker, I shall further recom- mend that Respondent notify the Company and John R. Rodocker, in writing, that it has no objection to the employ- ment of John R. Rodocker by the Company without regard to his membership or nonmembership in the Respondent labor organization and that it requests the Company to offer John R . Rodocker reinstatement to his former position and restoration of his seniority and other rights and privileges as they existed on November 24, 1969 I shall also recommend that Respondent make John R . Rodocker whole for any loss of earnings he may have suffered , by reason of the fact that Respondent unlawfully caused the Company to discharge him, by payment to him of a sum of money equal to the amount he normally would have earned from November 24, ' Respondent stipulated that Rodocker was expelled for reasons un- related to delinquency in the payment of dues or initiation fees 37 1969, the aforesaid date of his discharge , until 5 days after the date on which the Respondent shall have notified the Com- pany and John R. Rodocker , in writing, that it has no objec- tion to the employment of John R . Rodocker . The loss of earnings, as aforesaid, shall be computed in accordance with the method prescribed in F. W. Woolworth Company, 90 NLRB 289. Interest at the rate of 6 percent per annum shall be added to such net backpay and shall be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. 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 By causing the Blakley Granite, Marble & Tile Co., Inc., on November 24, 1969, to discharge its employee, John R Rodocker, because Rodocker had been expelled from mem- bership in Respondent for reasons other than his failure to tender the periodic dues and initiation fees uniformly re- quired as a condition of acquiring or retaining membership in Respondent, Respondent has violated Section 8(b)(1)(A) and (2) of the Act. 2. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act Upon the foregoing findings of fact , conclusions of law, and the entire record , and pursuant to Section 10(c) of the Act, I hereby issue the following recommended. ORDER2 Respondent, its officers, agents, and representatives , shall: 1. Cease and desist from: (a) Causing or attempting to cause the Blakley Granite, Marble & Tile Co., Inc., or any other employer, to discharge or otherwise to discriminate against John R. Rodocker, or any other employee, 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 them by Section 7 of the Act. 2. Take the following affirmative action which, I find, will effectuate the policies of the Act: (a) Make John R. Rodocker whole for any loss of earnings he may have suffered since November 24, 1969, as a result of the discrimination practiced against him in the manner set forth in the section of this Decision entitled "The Remedy." (b) Notify the Blakley Granite, Marble & Tile Co ., Inc., and John R Rodocker, in writing , that it has no objection to the employment of John R . Rodocker by the Company with- out regard to his membership or nonmembership in the Re- spondent Union and that it requests the Company to offer John R . Rodocker reinstatement to his former position and the restoration of his seniority and other rights and privileges as they existed on November 24, 1969, the date of his dis- charge. (c) Post at its business office and meeting halls in In- dianapolis, Indiana, copies of the attached notice marked "Appendix."' Copies of said notice, on forms provided by the ' 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, 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 NATIONAL LABOR RELATIONS BOARD" shall be changed to read "POST PURSUANT TO A JUDGMENT OF (Cont) 38 DECISIONS OF NATIONAL Regional Director for Region 25, after being duly signed by Respondent's authorized representative , shall be posted by Respondent immediately upon receipt thereof, and be main- tained by it for 60 consecutive days thereafter , in conspicuous places, including all places where notices to members are customarily posted . Reasonable steps shall be taken by Re- spondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Mail or deliver to the Regional Director for Region 25 signed copies of the attached notice for posting by the Blakley Granite, Marble & Tile Co., Inc., if said Company shall be willing, at all places where notices to the Company's em- ployees are customarily posted. (e) Notify the Regional Director for Region 25, in writing, within 20 days from the receipt of this Decision , what steps have been taken to comply herewith.' THE UNITED STATES COURT OF APPEALS ENFORCING AN OR- DER OF THE NATIONAL LABOR RELATIONS BOARD." ' In the event that this Recommended Order is adopted by the Board after exceptions have been filed this provision shall be modified to read: "Notify said Regional Director , in writing, within 20 days from the date of this Order , what steps Respondent has taken to comply herewith." APPENDIX 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 the Blakley Granite, Marble & Tile Co., Inc., or any other employer, to discharge or otherwise to discriminate against John R. Rodocker, or any other employee, in violation of Section 8(a)(3) of the National Labor Relations Act, as amended. WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of the rights guaran- teed them by Section 7 of the National Labor Relations Act, as amended. WE WILL notify the Blakley Granite, Marble & Tile Co., Inc., and John R . Rodocker, in writing, that we LABOR RELATIONS BOARD have no objection to the employment of John R. Ro- docker without regard to his membership or nonmem- bership in our Union and that we request his reinstate- ment by the Company to his former position with the restoration of his seniority and other rights and privi- leges as they existed on November 24, 1969, the date of his discharge. WE WILL make John R . Rococker whole for any loss of earnings suffered by him by reason of the unlawful discrimination practiced against him which resulted in his discharge on November 24, 1969. LOCAL UNION #74, INTERNATIONAL ASSOCIATION OF MARBLE, SLATE AND STONE POLISHERS, RUBBERS AND SAWYERS, TILE AND MARBLE SETTERS' HELPERS, AND MARBLE MOSAIC AND TERRAZZO WORKERS' HELPERS OF THE UNITED STATES AND CANADA, AFL-CIO (Labor Organization) Dated By (Representative) (Title) This is an official notice and must not be defaced by any- one. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered , defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 614 ISTA Center, 150 West Market Street, Indianapolis, Indiana 46202, Telephone 317-633-8921.