Building Material, Local 282

BUILDING MATERIAL, LOCAL 282 Building Material, Truck Drivers, Chauffeurs, and Helpers, Local No. 282, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Explo, Inc.) and Marvin D. Skedelsky. Case 2-CB6 170 April 29, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND MURPHY On November 17, 1976, Administrative Law Judge John M. Dyer issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting brief, and the General Counsel filed a brief in support of the Administrative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,1 and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge as modified below and hereby orders that the Respon- dent, Building Material, Truck Drivers, Chauffeurs, and Helpers, Local No. 282, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, its officers, agents, and repre- sentatives, shall take the action set forth in the said recommended Order, as so modified: 1. Substitute the following for paragraph 2(c) and reletter the subsequent paragraphs accordingly: "(c) Rescind the appointment of Robert Kelleher as shop steward at Explo, Inc." 2. Substitute the attached notice for that of the Administrative Law Judge. I As part of "The Remedy," the Administrative Law Judge recommends that the Respondent be required to grant Explo employee union members the right to veto the appointment of the union steward at their shop. or in the alternative the right to elect their own steward. Even assuming, arguendo, that the Board has the authority to modify internal union rules in this manner, such an extraordinary remedy is not necessary to remedy the violation in this case. Therefore. we shall not adopt this portion of the Administrative Law Judge's proposed remedy. 229 NLRB No. II APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT act in a retaliatory manner and we will not place relatives, in-laws, or friends of union officials in jobs at the expense of union members in violation of the Act. WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of their rights under the National Labor Relations Act. WE WILL rescind the appointment of Robert Kelleher as shop steward at Explo, Inc., and make Arthur Munson and Joseph Monetti and any other Explo employee whole for any wages or benefits they lost as a result of Kelleher's appointment. WE WILL rescind the letters of reprimand and directions to Explo, Inc., employees Howie, Mooney, and Munson and will dismiss the charges filed by Kelleher and McGrath against them and former Explo employee Bell and strike any references to these matters from our minutes or other records. WE WILL pursue our duty to fairly represent all union members and employees represented by us. BUILDING MATERIAL, TRUCK DRIVERS, CHAUFFEURS, AND HELPERS, LOCAL No. 282, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA DECISION STATEMENT OF THE CASE JOHN M. DYER, Administrative Law Judge: Marvin D. Skedelsky, Esq., filed a charge on March 1, 1976,1 and an amended charge on March 30, against Building Material, Truck Drivers, Chauffeurs, and Helpers, Local No. 282, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Respondent, the Union, or Local 282, alleging that the I Unless stated otherwise the events herein occurred during the last half of 1975, and the early part of 1976. 347 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union had violated Section 8(b)(1)(A) and (2) of the Act by disciplining members for arbitrary, invidious, and capricious reasons and by causing member employees to lose employment by its action in appointing a shop steward for arbitrary, invidious, and capricious reasons, and by not fairly representing its members. On April 8, the Regional Director issued a complaint and notice of hearing alleging that the Union's trustee business agent, Jack Dee, on July 31, appointed his son-in-law, Robert Kelleher, as the shop steward at Explo, Inc., herein called Explo, the Company or Employer, which position gave him superseniority and caused Explo employees to lose employment. These employees complained about this appointment to the Union and the Union thereafter rescinded Dee's action. In November, an Explo employee ran on a slate opposed to the union incumbents and this slate lost the December election. Thereafter, three Explo employees were brought up on charges by Kelleher for alleged nonattendance at union meetings and Shop Steward Bell was charged with failure to perform his duties, and the three employees were reprimanded following a union "hearing" and Bell resigned his stewardship. There- after Dee again appointed Kelleher as shop steward at Explo resulting in the loss of employment by two Explo employees. It is alleged that the reprimands to the three employees and the second appointment of Kelleher were actions which restrained and coerced employee members' rights and caused Explo to discriminate against its employees and breached Respondent's duty of fair repre- sentation to the Explo employees, resulting in violations of Section 8(b)(1)(A) and (2) of the Act. Respondent's timely answer, as amended at the hearing, admitted the service and jurisdictional allegations, the status of its officers and business agents, the fact of the first appointment of Kelleher by Dee and the subsequent withdrawal of that appointment, member employee Mon- etti's running on a slate opposed to the incumbents and loss of that election, the charges to and the reprimand against the three employee members, and that Kelleher was appointed by Dee as shop steward in February 1976, but Respondent denied that any of these actions violated the Act. At the hearing in this matter held June 7 and 8, 1976, in New York, New York, the parties were afforded full opportunity to appear, to examine and cross-examine witnesses, and to argue orally. General Counsel and Respondent have filed briefs which have been fully considered. On the basis of all the evidence and noting that Respondent offered only evidence dealing with the em- ployment of Kelleher at Respondent and at other corpora- tions and did not otherwise attempt to rebut the testimony offered, I conclude Respondent violated Section 8(b)(1)(A) and (2) of the Act as alleged. On the entire record in this case and including my evaluation of the reliability of the witnesses based on the evidence received, the nonrebuttal of numerous parts of that evidence, and on the totality of the facts in this case, I make the following: FINDINGS OF FACT 1. COMMERCE FINDING AND UNION STATUS Explo, Inc., is a New York corporation with its principal office and place of business in the Bronx in New York City, and is a wholesaler and distributor of explosives. During the past year Respondent received directly from points outside the State of New York explosives and other goods and materials which were valued in excess of $50,000. The Company and Respondent admit and I find that the Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Respondent admits and I find that it is a labor organization within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES A. Background and Facts The Company started business in 1952 as an explosives supplier for construction projects in the New York area. Robert J. Maloney has been the president of this small corporation since it started business with four or five employees. Employees Bell and Pfleiger started with the Company and, in Maloney's absence, Bell acted as dispatcher and ran the office. Additionally, when the Company was unionized in the mid- 1960's, Bell was appointed the shop steward, which position he retained until July 1975. Fire and safety regulations provide that there shall be two drivers for each truck and the operation must be made up of two trucks, since one truck handles the explosives while the other contains the exploding devices. The drivers must pass certain tests and are specially licensed for these positions, so that when the Company is in operation there must be at least four drivers or chauffeurs. From the mid- 1960's until July 1975, there were no labor problems or grievances at the Company and any minor problems were handled by Bell. Annually a listing of the drivers by seniority was posted by Bell or Maloney so that the employees could make their choices of vacation periods by seniority. There was never a formal seniority list exchanged between the Union and the Company because the small complement of men having worked there for a number of years knew what their relative seniority was. Two employees, Monetti and McGrath, reported to Respondent for work on the same day July 6, 1970. Thereafter business remained good for Respondent through 1974, and four or more trucks were operated. Business turned down in 1975, and there came a question as to the seniority standing of Monetti and McGrath since they had both reported to work on the same day. In March 1975, Union Representative Dee to a question concerning their relative seniority told McGrath and Monetti that Monetti had seniority over McGrath and, after being out for a while in February and March, Monetti worked steadily through June 27. According to the testimony, there continued to be some grumbling by McGrath as to this determination by Dee, but nothing more happened in that regard until the latter part of 1975. 348 BUILDING MATERIAL, LOCAL 282 Up until May or June 1975, there were two companies in the New York area in the explosives business, Explo and Austin Powder Company, herein called Austin. Austin had periods of slowdowns and during 1972-73 suspended operations for a period of months. It started up again and continued until May or June 1975, when it suspended its New York City operations. Business Agent Dee's son-in-law, Robert Kelleher, had worked for Austin from March 1970 through July 1971, as a driver and as the appointed shop steward at that company. He started there again and worked from January through June 1972 and was off until April 1973. He thereafter worked steadily for Austin from April 1973 until near the end of May 1975. In the 1972-73 period when Austin closed down, Kelleher worked as an extra driver at Explo. The payroll records of Explo show that beginning about mid-May 1975, Kelleher worked for Explo through the end of June and, according to testimony, this was as an extra man filling in for vacationing Explo employees. About June 27, the operating engineers in the New York area went on strike and all construction work in the area was shut down for several weeks. On July 31, Dee took his son-in-law, Kelleher, to Explo and there announced that he was removing Bell as the shop steward and was appointing his son-in-law as the shop steward. Under the terms of the contract in existence then, the shop steward had superseniority which meant that all employees at Explo moved down one notch in seniority when Kelleher was appointed over them. Monetti complained to Dee, that Dee was doing him out of work by this appointment. Dee told Monetti that it was important to him to get his son-in-law in at Explo at that time and that somebody had to support his daughter. The appointment of Kelleher at that time meant that Munson and Monetti lost work in that Munson would have been a regular employee but was moved down to extra man and Monetti who would have been the extra man was made the second extra man. Within the next month or two, one of the senior employees, Pfleiger, retired which moved Munson and Monetti back up one notch. In the interim, on August 5, a majority of the Explo employees protested Dee's removal of Bell and appoint- ment of Kelleher to the Union's general executive board stating that they disagreed with the choice of Kelleher as the shop steward and filed a charge with the Union against Dee in that he had removed Bell as shop steward in violation of the Union's constitution and bylaws. Under the constitution and bylaws, this being in the main a construction union, the business agent was given the power to appoint shop stewards, with a proviso that if the people in the shop disagreed with the appointment, that they had a right to protest it to the general executive board. It is also apparent that the employees of Explo felt that the appointment in this manner was not proper because Explo was a continuous steady job and was not in the same frame as normal construction work which goes for a period and then stops necessitating the appointment of a shop steward by the Union due to the erratic nature of the work and the fluctuations of the employee complement. The protest of the Explo union members was set down for a hearing by the Union's executive board in September. Before the hearing could take place, Dee rescinded his appointment of Kelleher and reappointed Bell as the shop steward. When the Explo union members appeared for the hearing in September, they were told by Dee and other union officials present, that the matter had been resolved, that there was no necessity for a hearing, and that they were all union members and friends together and they should forget about it. Nothing further was done at that point. After Kelleher was removed and with the retirement of Pflieger, Munson was back at a steady job and Monetti in August began to work steadily and did so through September. On his return from a vacation, because construction was slowing down, Monetti was on a "next man" basis and worked irregularly in October and December. In November, Monetti accepted a nomination to run for office as a business agent on a slate opposed to the incumbent union officers. The incumbents won the early December election. Shortly thereafter Explo was informed by Dee that he had made a mistake when he had said in March that Monetti had seniority over McGrath. Dee said that if the Company wished they could determine what the seniority was or if they declined to do so then the Union would do it by tossing a coin. The coin toss took place on December 31, with Monetti boycotting the matter since, according to him, he had been previously accorded seniority over McGrath. In any event, the coin toss gave seniority to Monetti over McGrath and Monetti as next man substituted for a number of employees through January and early February. On January 3, Robert Kelleher, who in the meantime had received a job as teamster shop steward with the George A. Fuller Company which was erecting a veterans' hospital, filed charges against Explo employees Mooney, Howie, and Munson alleging that they had violated the union bylaws by not attending union meetings. On or about the same date McGrath filed charges against Bell alleging that he had not been performing his shop steward duties. The Union set these charges down for a hearing before the executive board on January 29. The charged union members asked the individual who had run on the slate against the incumbents for the president's spot, Mr. Ted Katsaros, to represent them in this hearing. On January 22, Katsaros wrote to the executive board in regard to the charges asking that he be given a list of every monthly union meeting held by Local 282 which these individuals had not attended and an explanation on how Local 282 kept records of individual attendance at such meetings. He also requested that some stenographic or tape recording be made of the hearing so that accurate minutes might be kept. On January 26, the secretary-treasurer of the Union replied stating that the Union did not have a record of membership meetings attended or missed by members except for shop stewards who were required by the bylaws to sign in. He also stated it was not the policy of the executive board to record executive board meetings and it 349 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would not be done and that the hearing would proceed as scheduled. There was undisputed testimony that the Union has some 4,500 members and conducts some nine meetings alternately in New York City and on Long Island, and that the attendance at the New York meetings runs between 150 and 175 members and the Long Island meetings are attended by between 200 and 250 members. According to testimony, the January 29 meeting ap- peared to be not a hearing in the normal sense of the word but a contest in which the charging parties, the incumbent officers, and the general executive board were lined up on one side of the room and the Explo defendants and their witnesses on the other side of the room. Stanley Howie, who was a most credible witness, stated that some people, whom he had never seen before, said that he and the others did not attend union meetings. Howie, Munson, and Mooney produced evidence that they did attend union meetings, but none of this was sworn testimony. Nothing was offered at this union "hearing" in the way of any documentary proof by the charging parties there. Howie stated that there were some questions and answers, people shouting and yelling back and forth, and some vulgarities and really not much was done except that Bell resigned his stewardship. Several days later Bell got a letter from the Union accepting his resignation. No one had ever said anything to Bell previously about his attendance or lack thereof at meetings. According to Howie, about the time that Bell offered to resign his stewardship, Bell asked Business Agent Dee why he had put Kelleher in his place the previous July and Dee replied with a four-letter epithet telling Bell in foul language what he could do. This episode seems typical of the atmosphere of the "hearing" and the lineup of the incumbent officers and business agents against the members employed at Explo. On February 19, the now deceased president of the Union sent identical letters to Mooney, Howie, and Munson stating that the executive board decided they had violated the constitution by failing to use their efforts to attend union membership meetings, and that they were reprimanded and directed to be more attentive to their duties and to make efforts to attend meetings and that if they could not legitimately attend the meeting they were to inform their shop steward or business agent in advance. Howie testified that the three filed an appeal to the Joint Council protesting this decision and shortly thereafter Dee met Howie and complained that they were making him look bad before his fellow members and he wanted them to drop their appeal. Howie said they were not happy with this thing hanging over their heads and Dee told him to forget it, that it did not mean anything. Howie said they would drop it if Dee would and it was left at that point. Some time later Dee told Howie that since they had filed a written appeal with the Joint Council he would need a letter from them withdrawing it. Howie said that in turn they wanted a letter from Dee withdrawing the charges. Nothing further has happened with the appeal before the Joint Council or with these proposals. On February 9, Monetti came in to work as an extra man at Explo because Bell was taking a month off and Monetti was to work in his place. Kelleher and Dee were there and Dee announced that he was appointing Kelleher as the shop steward. As a consequence of Kelleher's appointment, the superseniority accorded the shop steward moved all the Explo employees down one place, dropping Munson to an extra man and laying Monetti -off. Munson and Monetti vigorously protested Dee's actions. Howie asked Dee to step outside and talk and told Dee that the men were very much against this move but would not go back to the Union and protest it, since that had not done much good but they would go outside because they would not take this lying down. He asked Dee how he was going to get away with taking Monetti's job and Dee replied that he would take care of Monetti. Howie said that a number of other things were said by Dee and himself but that they were personal. About 2 weeks later, the charge in the instant matter was filed by the attorney hired by the Explo employees. Kelleher's appointment dropped Munson down and he worked in place of Monetti, subbing for Bell until March 5, when he was laid off. Munson then worked approximately 6 days through May and began to work steadily again in June after Bell retired. Monetti worked on February II, 17, and 18, March II and 17, April 14, and May 27, as a sub replacing others. After Bell's June retirement and Munson moving up, Monetti became the next man and would fill in for others. Absent Kelleher's appointment, Monetti's employment would have been that of Munson. B. Analysis and Conclusions There is no question but what the first placement of Kelleher in July 1975 is beyond the 10(b) period, and all parties so considered it, but the evidence does help explain what took place thereafter. The Union argued among other things that it was proper for Dee to place Kelleher as Explo steward in February since he was an experienced shop steward and there was no experienced shop steward at Explo once Bell resigned. However, unlike Ashley, Hickham-Uhr Co., 210 NLRB 32 (1974), there was no need shown here for an experienced shop steward, since the labor relations history at Explo was a peaceful one without the complications of jurisdictional strike or other potential problems which could be expected as they were in the above-cited case. The only duties of the shop steward at Explo was to check the members' book each month and attend meetings. The only expertise required was in the job requirements, but Dee quite apparently never considered appointing an Explo employ- ee or allowing the Explo members to elect their own shop steward. This is at best a hindsight argument with one eye on the above-cited case. Further the motivation of retaliation is present here, unlike the legitimate motives involved there. As to the charges against the Explo drivers, the Union states that it was merely processing charges which it would have to do under the constitution and that there was nothing arbitrary, invidious, or unfair by its so doing. According to the evidence, this was the first and only time in anyone's memory that one or more members had been brought up on charges of nonattendance at union meetings, and certainly was the only time when members 350 BUILDING MATERIAL, LOCAL 282 were found guilty, reprimanded, and given guidelines under which to operate for their attendance at union meetings. These charges by Kelleher and McGrath against Explo driver union members, coming after the Explo members' charges against Dee protesting Kelleher's July 1975 appointment, Kelleher's removal, Monetti's running against the incumbents, and the winning of the coin toss in the Monetti-McGrath seniority dispute and grounded on the flimsy basis on which they were filed and the acrimonious nature of the union "hearing," demonstrate clearly that they were retaliatory for the actions taken by the Explo driver members' opposition to Kelleher and Dee in both the Kelleher appointment matter and in the subsequent election. Certainly where no one has ever been brought up on such charges and there is no documentation whatsoever as to who attends membership meetings, or that Bell neglected his steward duties, and the fact that no more than 5 percent of the membership attend meetings, plus the manner in which this "hearing" was held, demonstrate that these charges and the Union's finding, reprimand, and directions are a sham and a mockery of union constitutional procedures and are mere retaliatory measures against members for exercising their Section 7 rights. Certainly union members should be urged to attend union meetings for their own benefit and for the benefit of the Union but to use this system to retaliate against members who assertedly did attend the union meetings and to issue directions to the members which would make them answerable to Kelleher and Dee about their reasons for nonattendance at further meetings, is to rub salt in their wounds. This strategem engaged in by Kelleher and McGrath and rather apparently sponsored by Dee in both the charges, the "hearing" and the reprimand, is such a transparent effort to intimidate the Explo employee union members that it cannot stand, and accordingly I will recommend that Respondent withdraw the letters of reprimand and dismiss the filed charges and strike all references, if any, to these actions from its minutes or other records. The Union defends the February 9 appointment of Kelleher as shop steward as one that was warranted by the necessities of the time. It is clear from what has been stated above that there was no necessity to have an outsider come in as shop steward because there was no demonstrated necessity of any expertise in the exercise of the stewardship. The Union also defends its actions on the basis that there was no gain to Kelleher by his moving from the VA construction job with the George A. Fuller Company to Explo. Clearly this statement is erroneous. Certainly a construction job of its very nature must come to an end and there was no superseniority as such for Kelleher at that job. Explo is the only dynamite company in the New York City construction field and as such this is a permanent job. Superseniority at that company guarantees an employee a job as long as the company remains in existence. Clearly a permanent position at the same or better wages would be a great incentive to go to Explo. Certainly the reasons for Kelleher's original appointment by Dee remained true at this time as well, that is that he wanted his son-in-law to have a high-paying job to take care of his daughter. The appointment of Kelleher to this job caused the displace- ment of two employees. These employees could have taken the matter to the Union once again, but seeing the problems caused by doing it before, they elected to go to this Board for outside help. Respondent's other argument that Kelleher had previ- ously been employed at Explo and was entitled to some seniority is erroneous. Kelleher had worked previously as set forth above, but his last steady employment at Explo had been in the boom days of 1972-73 and then returned to Austin. There was a break of more than a year in his employment (the 1974 payment was for a past vacation payment) and dual seniority at permanent establishments was not allowed. The fact that Kelleher had worked at Explo as an extra man for a few weeks prior to July 1975 would not entitle him to seniority at Explo as such except over a later employed person, but might under the contract entitle him to I day's vacation if he had the requisite time in the industry. The appointment of a shop steward with superseniority in February for the purposes of granting the appointer's son-in-law a good job, and retaliating against the Explo employee members is arbitrary, invidious, and discrimina- tory to the Explo employee union members, and violates the Union's duty of fair representation of its employee- members. As mentioned earlier, since this company is in business permanently on a year-round basis, there is no apparent reason for the outside appointment of a union steward such as would ordinarily be the case where the Union is appointing a steward at a construction project where the job may last for an indefinite period. Where the appoint- ment of a shop steward displaces employees of long- seniority standing, Respondent has a high duty of care to be sure that what is done is properly done for the benefit of its members and not for the benefit of the business agent and his son-in-law, or for vindictiveness. Accordingly, I find that Respondent through the actions of Dee and by the actions of the executive committee have violated Section 8(bXIX)(A) and (2) of the Act and I will recommend that the appointment of Kelleher as shop steward be rescinded, and that Munson and Monetti, who lost work because of that appointment, be made whole by Respondent for any lost employment opportunities at Explo. It is possible that McGrath, Steiner, and Avlin were also harmed by that appointment and if they were, they should be made whole as well. (See the Explo seniority list for 5/15/76.) Because there is a danger here of further damage to the Explo employee union members by this appointment power, I recommend that the employee union members of Explo be granted a veto power over the appointment of a shop steward by Respondent Union or in the alternative that Respondent allow the Explo employee union members to elect their shop steward. III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activity of Respondent as set forth in section II, above, and therein found to constitute unfair labor 351 DECISIONS OF NATIONAL LABOR RELATIONS BOARD practices in violation of Section 8(b)(1)(A) and (2) of the Act, occurring in connection with the business operations of Explo as set forth in section I, above, have a close, intimate, and substantial 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. IV. THE REMEDY Having found that Respondent violated Section 8(b)(1)(A) and (2) of the Act by the February 9, 1976, appointment of Kelleher as shop steward at Explo with the consequent loss of work by Munson, Monetti, and perhaps others, I recommend that Respondent make them and any other extra employees whole for the loss of pay and other benefits sustained by reason of the discrimination prac- ticed against them from February 9, 1976, until Respon- dent rescinds the stewardship of Kelleher. Backpay shall be computed as per F. W. Woolworth Company, 90 NLRB 289 (1950), with 6-percent interest as per Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Because of the animus between Respondent's agents and the Explo employee union members and for the reasons stated supra, Respon- dent shall grant to the Explo employee union members the right to veto the appointment of a union steward at their shop, or in the alternative, the right to elect their own steward. Respondent has also violated Section 8(b)(1)(A) of the Act by inviting and entertaining intraunion charges against Explo employees, holding a "hearing" thereon and issuing a reprimand and instructions to these members. It is recommended that Respondent withdraw its letters of reprimand and directions, dismiss the charges filed by Kelleher and McGrath, and strike any references to these matters from its minutes or other records. It is further recommended that Respondent notify its members that it will not act in a retaliatory manner nor seek to place relatives or friends of union officials in jobs at the expense of other union members and violate Section 8(b)(1)(A) and (2) of the Act, but that it will pursue its duty to fairly represent all members. On the basis of the foregoing findings and the record herein, I make the following: CONCLUSIONS OF LAW 1. Respondent is a labor organization within the meaning of Section 2(5) of the Act. 2. Explo, Inc., is an employer within the meaning of Section 2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. Respondent by its business agent, Dee, violated Section 8(b)(l)(A) and (2) of the Act by the February 9, 1976, appointment of Robert Kelleher as the Explo shop steward, by causing the seniority demotion and loss of 2 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 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. employment to employees Munson and Monetti, and possibly other Explo employees. 4. Respondent violated Section 8(b)(1)(A) of the Act by inviting and entertaining charges by Kelleher and McGrath against Explo employee union members, holding a "hearing" and issuing reprimands and instructions to them in retaliation for their exercising their Section 7 rights. 5. 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 basis of 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: ORDER 2 The Respondent, Building Material, Truck Drivers, Chauffeurs, and Helpers, Local No. 282, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, its officers, agents, and represen- tatives, shall: I. Cease and desist from: (a) Appointing a shop steward for the Explo shop in a retaliatory manner or in one that breaches its duty to fairly represent its members. (b) Encouraging and entertaining charges against Explo employee members, holding "hearings" thereon and issuing reprimands and directions for retaliatory purposes because said members engaged in their Section 7 rights. (c) In any like or related manner restraining or coercing any employee members in the exercise of their rights guaranteed by the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Make whole Arthur Munson, Joseph Monetti, and any other Explo employees for any loss of pay and other benefits they may have suffered by reason of the discrimi- nation against them caused by the Respondent in the manner set forth in the section of this Decision called "The Remedy." (b) Rescind the letters of reprimand and directions and dismiss the charges and expunge the records as set forth in the section of this Decision called "The Remedy." (c) Rescind the appointment of Robert Kelleher as shop steward at Explo, Inc., and provide for the appointment of a shop steward as per the recommendations set forth in the section of this Decision called "The Remedy." (d) Respondent is to post at its business offices, union halls, meeting halls, and any other place where it customar- ily posts notices to members, copies of the attached notice marked "Appendix."3 Copies of the notice shall also be posted at the Employer's place of business if the Employer is willing. Notices on forms provided by the Regional Director for Region 2, after being duly signed by both 3' 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 352 BUILDING MATERIAL, LOCAL 282 trustee and business agent, "Jackie" Dee, and by Respon- dent's president, shall be posted by the 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 said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 2, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 353