Bricklayers, Local 11

National Labor Relations Board - Board Decisions

Jan 6, 1967

162 N.L.R.B. 668 (N.L.R.B. 1967)

668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. At all times since December 29, 1965, the Union has been the representative
for the purposes of collective bargaining of a majority of the employees in the
aforesaid bargaining unit, and, by virtue of Section 9(a) of the Act , has been and
is now, the exclusive representative of all the employees in the aforesaid bargaining
unit for the purposes of collective bargaining in respect to rates of pay, wages,
hours of employment , or other terms and conditions of employment.
5. The Respondent has not engaged in any unfair labor practices affecting com-
merce within the meaning of Section 8(a)(5), (3 ), and (1 ) of the Act, as alleged
in the complaint.
RECOMMENDED ORDER
In view of my findings of fact and conclusions of law, I recommend that an order
be entered dismissing the complaint in its entirety.
Bricklayers , Masons & Plasterers ' International Union of Amer-
ica, Local 11 , AFL-CIO ( Wilmorite Construction Inc., Chloris
Associates Ltd., and John Luther & Sons Company Inc.) and
Eugene McClain. Case 3-CB-909. January 6, 1967
DECISION AND ORDER
On August 24, 1966, Trial Examiner John P. von Rohr issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices, and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Exam-
iner's Decision. Thereafter, the Respondent filed exceptions.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Jenkins and Zagoria].
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 the entire record in this
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
[The Board adopted the Trial Examiner's Recommended Order
with the following modifications : Add the following as paragraphs
2(b) and 2(c) to the Trial Examiner's Recommended Order, and
reletter the present paragraphs 2 (b) and 2 (c) as 2 (d) and 2 (e) :
[" (b) Make Eugene McClain whole for any loss of pay he may
have suffered as a result of the discrimination against him, in the
manner set forth in the section above, entitled `The Remedy.'
[" (c) Preserve and, upon request, make available to the Board or
its agents , for examination and copying, all records and reports and
162 NLRB No. 58.
BRICKLAYERS , LOCAL 11 669
all other documents necessary to analyze the amount of backpay due
under the terms of this Recommended Order."]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed on February 14, 1966 , the General Counsel for the National
Labor Relations Board, for the Regional Director of Region 3 (Buffalo, New York),
issued a complaint on March 25, 1966, against Bricklayers , Masons & Plasterers'
International Union of America, Local 11, AFL- CIO, herein called the Respondent
or the Union , alleging that it had engaged in certain unfair labor practices affect-
ing commerce within the meaning of Section 8 (b) (1) (A) and (2) of the National
Labor Relations Act, as amended , 61 Stat. 136, herein called the Act. The
Respondent thereafter filed an answer denying the commission of any unfair labor
practices.
Pursuant to notice, a hearing was held in Rochester , New York, on May 16
and 17, 1966, before Trial Examiner John P. von Rohr. All parties were repre-
sented by counsel and were afforded opportunity to adduce evidence , to examine
and cross -examine witnesses , and to file briefs.'
Upon the entire record in this case , and from my observation of the witnesses,
I hereby make the following:
FINDINGS OF FACT AND CONCLUSIONS
1. THE BUSINESS OF THE COMPANIES INVOLVED
John Luther & Sons Company Inc., herein called Luther, is a New York corpo-
ration with its principal office and place of business located at Rochester, New
York, where it is engaged as a general contractor in the building and construction
industry. The parties stipulated that during the last year Luther purchased and
received goods and materials valued in excess of $50,000 which were shipped and
transported to it from points and places located outside of the State of New York.
Wilmorite Construction Inc., herein called Wilmorite , is a New York corpora-
tion with its principal office and place of business located in Rochester , New York,
where it is engaged as a general contractor in the building and construction indus-
try. The parties stipulated that during the last 12 months , Wilmorite purchased
and received goods and materials valued in excess of $50 ,000 which were trans-
ported and shipped to it from points and places located outside of the State of
New York.
Chloris Associates Ltd. herein called Chloris , is a New York corporation with
its principal office and place of business located in Rochester , New York, where
it is engaged as a masonry and concrete contractor in the building and construc-
tion industry. Thomas E. Kelley, secretary and office manager of John Luther &
Sons Company Inc., credibly testified that during the period April 30, 1965, to
April 26, 1966, Chloris performed services for Luther valued at $29,330.06.2
I find that Luther, Wilmorite, and Chloris are engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent Bricklayers , Masons & Plasterers ' International Union of America,
Local 11 , AFL-CIO, is a labor organization within the meaning of Section 2(5)
of the Act.
' The General Counsel 's unopposed motion to correct the record Is hereby granted The
motion reflecting these corrections is contained In the formal files of this proceeding.
'The above includes the total value of goods and services furnished by Chloris to
Luther. Kelley testified that approximately 10 percent of the above amount is withheld
until the completion of the various jobs. However, during the above period, Kelley credibly
testified that Luther paid Chloris by check the sum of $25,759 56 The invoices upon which
Kelley based his testimony were available at the hearing for examination In addition to
the foregoing , William Wilson , the president of Chloris , credibly testified that during the
period mentioned above Chloris performed services for Luther valued in excess of $25,000.
Wilson testified that he arrived at this figure by multiplying the amount he charges per
square foot times the total amount of square footage he performed for Luther during the
above period.
670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR PRACTICES
A. The issues; background
The complaint alleges that the Respondent violated Section 8(b)(1)(A) and (2y
of the Act by causing or attempting to cause an employer to discharge employee
Eugene McClain on January 14, 1966, and by causing or attempting to cause an
employer to refuse to hire this employee on January 25, 1966.
McClain is a cement finisher by occupation and has been employed in this
capacity by Chloris Associates Ltd. since 1952. Preliminarily, I shall dispose of
the question raised by the Respondent as to McClain's possible status as a super-
visor within the meaning of the Act. The only evidence in this regard is testi-
mony reflecting that on occasion McClain is assigned to "oversee" a job when
William Wilson, the president of Chloris, is temporarily off the jobsite. However,
the evidence reflects that on these occasions McClain's function is limited to rou-
tine direction of the work, such as telling the men where to start. Of the five to
eight masons employed by Chloris, at least three others (Barkley, James Minter,
and Paul Minter) are 'utilized by Wilson to oversee jobs in the same manner as
McClain .3 Aside from this routine direction of work, there is no evidence to reflect
that McClain is vested with any of the supervisory indicia as provided in Section
2(11) of the Act. Indeed, McClain is paid at the same hourly rate as the other
masons, this as provided in the current collective-bargaining agreement between
Chloris and Respondent Local 11. In view of all the foregoing, it is clear, and I
find, that McClain is an employee, not a supervisor within the meaning of the Act.
McClain became a member of the Respondent Union in 1962. An incident which
resulted in McClain's losing his membership in the Union occurred on October 21,
1965, during the course of an argument between McClain and James Burke, the
Respondent 's business , agent . The argument concerned a dispute as to the amount
of money owed by a partnership, of which McClain had been a partner, to the
Union's pension fund.4 It is undisputed that this argument culminated with McClain
striking Burke with his fist For this he was ultimately found guilty of third
degree assault . In addition, however, three members of the Union filed charges
against McClain at a union meeting held on October 22, 1965. A union proceed-
ing based upon these charges was held on November 12, 1965, and at this time
the Respondent imposed a fine upon McClain in the sum of $1,000. McClain did
not pay the fine and he was dropped from the membership of the Respondent in
about the middle or latter part of December 1965.5
B. The discrimination against McClain at the Towne House Motel project
During the period relevant hereto, Wilmorite Construction Inc., was the general
contractor on a construction project of the Towne House Motel in Rochester, New
York. Chloris was engaged by Wilmorite as a subcontractor for installation of the
flat cement. As a member of the Building Trades Employers Association of Roches-
ter, Wilmorite is party to a collective-bargaining agreement between the Associa-
tion and the Respondent Union. Chloris is a party to the same agreement .6
The alleged violation on January 14, 1965, occurred when McClain on this date
reported to work (for the first time) at the Towne House project. Since there is
some variation as to exactly what was said by the various participants to the dispute
which occurred at this time, I turn first to the version given by Bruce Bart, the
Respondent's job steward on this job. Bart testified that when he arnved on the job
about 8 a.m. the bricklayers and masons, members of the Respondent, told him
that they would not go to work because McClain, who was not a member of the
Respondent, was on the job. Bart said that he advised the men to start work and
that he would try to "straighten out" the trouble. Continuing, Bart said that he there-
8 The uncontroverted and credited testimony of Wilson.
* McClain testified that this partnership became defunct in 1960 or 1961.
i Burke, who testified concerning this matter, did not give the exact date on which Mc-
Clain was dropped from membership. He testified that "he was dropped from the rolls of
Local 11 . . . 35 to 40 days after his trial." McClain did not attend the November 12
meeting.
G The undisputed testimony of Wilson, president of Chloris. Wilson did not indicate
whether or not Chloris was a member of the Association or whether Chloris became a party
to the contract by private agreement with the Respondent. The contract is effective from
May 1, 1964 to April 30, 1967, and it contains a union-security clause which is not at
issue herein
BRICKLAYERS, LOCAL 11 671
upon made two telephone calls, the first to James Burke, the Respondent' s business
agent, and the other to the International Union at Washington, D.C., but that he
did not succeed in reaching either of the parties . Bart testified that he then went up
to each of four or five groups of the employees, who were standing in groups of
two, and advised them of his telephone efforts. Bart said that the employees in each
group told him that they still did not want to work with McClain but that they
would use up the mortar until noon . Bart then spoke to Fred Russell, the general
superintendent for Wilmorite. According to Bart, he told Russell that "the men
chose not to work on the same job with Mr. McClain, because he was not a mem-
ber of Local 11." Pressed further about this conversation, Bart added that he also
told Russell that he had called the Local and the International Union . . . and that
the men would use their mortar until noon , then they would go home.
Concerning the above conversation, Russell testified that he sought out Bart after
the mason superintendent reported to him that there was a problem with the brick-
layers. According to Russell, he located Bart and Bart told him that "he (Bart) had
been in touch with the International and Local Union and that he was under orders
to notify Wilmorite that [the bricklayers] would use the mortar that was on the job
and work until noon, because Mr. McClain was on the job and he was no longer
considered a member of the Union . . . he said that McClain had been fined by the
Union and he had to pay his fine." 7
From my observation of the witnesses, I am inclined to credit Russell's version of
the above conversation over that of Bart. Although Bart testified that he advised
Russell that he made telephone calls to the Local and to the International, he did
not testify that he also told Bart that he did not complete either of these calls. I
have no doubt that Bart also advised Russell that the men would not work with
McClain for the reasons indicated. However, and in any event, I am convinced and
find that Bart did not impart to Russell the message that the men's refusal to work
with McClain was predicated upon the individual decision of each of these employ-
ees. Rather, I am persuaded and find that Bart simply made it known to Russell
that McClain had been fined, that he was no longer a member of the Union, and
that a work stoppage would ensue unless McClain was removed from the job.
It is undisputed that Russell and Bart spoke to McClain after the above conver-
sation. Although there is some variance in the testimony as to the sequence of
events which followed (i.e., whether Russell spoke to McClain before Bart entered
the conversation) there is no substantial dispute as to the essence of what tran-
spired. McClain impressed me as a credible witness and his testimony concerning
this matter was more detailed than that of Bart and Russell. Having considered all
the testimony, and from my observation of the witnesses, I am persuaded that
McClain had the best recollection and I credit his version. Thus, McClain testified
that about 9 a.m. he was asked to report to Russell, who was in another room in the
basement of the building where the men were working. Russell began by asking if
he was having trouble with the Union in regard to his payment of dues. McClain
replied that his dues were paid to December 31 and gave evidence of this fact by
displaying his union book to Russell. When Russell thereupon stated, "Well, some-
thing is wrong," McClain suggested that he call Bart. Russell did so and Bart
appeared. McClain said that he asked Bart "what was the trouble." Bart responded
that he had been fined by the International and the Local, that he had not paid the
fine, and that he could not work on the job. Bart added, according to McClain, that
he was "just doing his job." According to the credited testimony of McClain, Rus-
sell thereupon asked that he leave the job until he got "straightened out" with the
Union.a Upon being so advised, McClain left the area and sought out William Wil-
son, the president of Chloris, who was on the job. McClain related the entire con-
versation which he had had with Bart and Russell, including the fact that Russell
7 On cross-examination Bart acknowledged advising Russell that McClain had been fined.
He said, "I told him that's what the men based their reason for not wanting to work."
8 Russell testified that at this point he told McClain "I don't like this. Why don't you
go and get it straightened out." Concerning the same aspect of this conversation, it was
Bart's testimony that Russell told :McClain, "Gene, I wish you would get this straightened
out." As indicated, I credit McClain's version as set forth above. However, even accepting
the version of either Russell or Bart, my ultimate conclusions herein would not be effected.
Thus, assuming that Russell merely told McClain to go and get the matter straightened
out, I would still find, under all the circumstances herein, that any such statement effec-
tively conveyed to employee -McClain the message that lie was not to remain on the job
until he cleared his difficulties with the Union.
672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had asked him to leave the job. Wilson responded by saying that it was best that
he leave and McClain promptly left the premises . He was at no time thereafter
employed at the Towne House project.
C. Discussion and conclusions
Although the Respondent has not explicated its defense to the allegations in the
complaint , I gather from statements of Respondent's counsel at the hearing that
apparently it is Respondent's contention that Bart, the Union's steward, lacked the
authority to demand McClain 's removal from the job. In finding no merit to this
defense , I turn now to the testimony of Kurt Keller, the latter also a job steward of
the Respondent Union. Keller proved to be a recalcitrant witness, particularly when
queried by the General Counsel with respect to statements made by Business Agent
Burke at a union meeting held in January, 1966. He was finally confronted with his
pretrial affidavit in which he made the following statement:
At the regular Union meeting, I think it was in January, James Burke, Business
agent , read us a letter from the International Union. Burke told us that McClain
had hit him and McClain had been thrown out of the Union. He stated that he
had sued McClain for a thousand dollars and had thrown him out of the union.
He told us that as soon as McClain came on the job that none of us, the
Masons, should work. I was left with the understanding that if McClain came
on the job, I was supposed to pull the men off. [Emphasis supplied.]
Although Keller at first gave evasive and confusing answers when queried about
the above statement , he finally conceded: (1) that the statement set forth above in
fact was the statement which he gave to the Board agent who took the affidavit, and
(2) that the statement in fact was his recollection of the events related therein at
the time he gave the affidavit to the Board agent. In view of all the foregoing, includ-
ing my observation of Keller, and the further significant fact that Burke did not
deny having made the statements thus attributed to him by Keller,9 I am satisfied
and find that Burke, at a union meeting held in January 1966, instructed the
Respondent membership to engage in a work stoppage, or to threaten to take such
action, at any time that McClain became employed on a project on which the
Respondent member-employees were working. In view of these instructions by
Burke, it is abundantly clear that the Respondent must be held responsible for the
threatened refusal to work unless McClain was removed from the lob. Not only did
the Union thereby authorize and sanction the action of Job Steward Bart,10 but
indeed it thereby cannot disassociate itself from any refusal by the employees them-
selves not to work with McClain 11 One further point is in order. Keller did not
give the exact date of the union meeting which was held in January 1966. Thus the
General Counsel has not established that this meeting in fact was held prior to Jan-
uary 14, 1966. However, even if it be assumed that the meeting was held subse-
quent to the incident in question , it is clear that Burke's statements and conduct at
this meeting ratified and adopted the action of the steward and the employee-
members which led to McClain's removal from the Towne House job.12
There remains for consideration the question as to whether the Union instigated
termination of McClain was unlawful under the Act. McClain's membership dues
were paid up to December 31, 1965. On January 25, 1966, McClain sent a letter
9 Burke was called as a witness by the Respondent after Keller had testified
10 Even absent Burke's instructions to the membership at the January meeting the law
is settled that a union is bound by the actions of a steward who has apparent authority,
even if he does not have real authority, to act. N L R B v International Brotherhood of
Teamsters, Local 249, 249 F 2d 292-294 (C A 3) ; N L R B v International Brotherhood
of Teamsters, Local 182, 228 F 2d 83, 84 (C A. 2). See also New Power Wire and Electric
Co v N L R B., 340 F 2d 71 (C A. 2). That the Respondent's stewards performed the cus-
tomary duties and possessed the usual authority of union job stewards is evident from
the following testimony of Steward Keller, who said "I had the right to check the job.
I am steward for everything on that day." The Board has held that such authority is suf-
ficient to establish the stewards as responsible agents of the Union which they represent.
Local No. 511, International Brotherhood of Carpenters f Joiners of America, AFL-CIO
(New Mexico General Contractors), 120 NLRB 1658.
11 Cf Local 315, United Association of Journeymen and Apprentices, et al. (Grover
Transitubes of Michigan, Inc ), 146 NLRB 1134.
12 See Local 299, International Brotherhood of Teamsters (Roadway Express), 150
NLRB 43.
BRICKLAYERS, LOCAL 11 673
to the Respondent enclosing a check for the full amount of his dues. The Respond-
ent refused to accept this tender and returned his check. McClain testified without
contradiction that union members are permitted a 60-day grace period within which
to pay dues. Accordingly, it is clear that McClain was not delinquent when he ten-
dered his dues to the Respondent on January 25, 1966. Moreover, Burke conceded
that McClain's expulsion from union membership was not at all related to union
dues, but was based solely upon the fact that McClain had not paid the fine which
the Union had imposed on him. It is well settled that it is unlawful for a union to
cause or attempt to cause an employer to discriminate against an employee by rea-
son of a violation by an employee of an internal rule or policy relating to the acqui-
sition or retention of membership.13 "The Act will not countenance any form of
discrimination in the hire, tenure, or other term or condition of employment which
turns on the union membership status of the employee involved, except by operation
of valid union-security provisions in the parties' contract." Roadway Express, Inc.,
150 NLRB 43. Accordingly, I find that by causing Chloris to terminate McClain's
employment at the Towne House job, the Respondent violated Section 8(b)(1) (A)
and (2) of the Act.14
D. The discrimination against McClain at the Strong Memorial Hospital job
There is no dispute as to the material facts relating to the allegation that the
Respondent caused an employer to discriminatorily deny employment to McClain
on a job involving the construction of an addition to the Strong Memorial Hospital
at the University of Rochester. John Luther & Sons Company Inc. was the general
contractor on this job. As a member of the Building Trades Employer Association
of Rochester, Luther also was party to the heretofore mentioned collective-
bargaining agreement with the Respondent Union.
Preliminarily, it may be noted that although McClain normally worked as an
employee of Chloris, there were occasions when Luther hired McClain (and appar-
ently other of Chloris' employees) as its own employee. On these occasions McClain
was paid directly by Luther at the regular hourly rate.
Several days prior to January 25, 1966, Joseph Panello, the job superintendent for
Luther, requested McClain to report to the Strong Memorial job, stating that he had
some rubbing work for him to do. McClain reported to the jobsite on the morning
of January 25 for the purpose of obtaining this employment. The events which tran-
spired when McClain arrived on the jobsite were admitted by Kurt Keller, the union
steward on this job. Thus, Keller testified that upon observing McClain on the job
he sought out the other mason employees, members of the Respondent Union, and
told them "Listen, McClain is on the job. Let's clean up the job and go in the
shanty." Keller said that he thereupon telephoned Business Agent Burke, advised
him of the action he had taken, and that Burke responded by saying, "You did the
right thing."
As soon as Job Superintendent Panello learned that the masons had walked off
the job he went up to Keller and asked for an explanation. Keller testified that he
responded by telling Panello, "McClain is on the job. I took the masons off." Pan-
ello said that he thereupon found McClain and told him, "You better leave the job
to avoid a lot of this trouble." McClain then departed. The violation by the Respond-
ent in this instance is so clear that no elaboration is necessary. Accordingly, and for
the same reasons set forth with respect to the violation found in the preceding sec-
tion,15 I find that the Respondent caused Luther to refuse to employ McClain at
the Strong Memorial Hospital job on January 25, 1966, in violation of Section
8(b)(1)(A) and (2) of the Act.
13A. Nabakouski Co., 148 NLRB 876
14I recognize that Bart spoke to Russell, the general superintendent of Wiimorite, rather
than to Wilson, the president of Chloris who was McClain's employer. However, under all
of the circumstances herein, including the fact that McClain promptly apprized Wilson of
his conversation with Bart and Russell and that Wilson acquiesced in Russell's direction
that McClain remove himself from the job, I find that Respondent thereby effectively caused
Chloris to terminate McClain in violation of the Act.
11 In addition to Burke's statements at the January union meeting (which admittedly
was held prior to January 25) the Union's responsibility in this instance was clearly
manifested by Burke's statement to Keller that he did "the right thing" by pulling the
men off the job as soon as McClain appeared.
264-047-67-vol. 1G2------44
674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of Wilmorite, Luther, and Chlons, set forth in section I,
above, have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States and such of them as have been found to constitute unfair
labor practices tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices within the
meaning of Section 8(b) (1) (A) and (2) of the Act, it will be recommended that
Respondent be ordered to cease and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act.
Having found that the Respondent Union unlawfully caused Wilmorite and
Chloris to discharge Eugene McClain, and having further found that the Respondent
unlawfully caused Luther to refuse to employ McClain, I shall recommend that
Respondent be required to notify Wilmorite, Chlons, and Luther, in writing, that it
has no objection to the employment of Eugene McClain and that it simultaneously
serve copies of such notices on McClain. In addition, I recommend that Respondent
be required to make McClain whole for any loss of earnings he may have suffered
by reason of the discrimination against him by payment to him of a sum of money
equal to that which he normally would have earned in the employ of the companies,
absent any discrimination, less his net earnings during the periods he would have
been so employed. Backpay shall be computed with interest on a quarterly basis in
the manner prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289
and Isis Plumbing & Heating Co., 138 NLRB 716.
Because of the character and scope of the unfair labor practices engaged in by
the Respondent, I will recommend that it cease and desist from in any other manner
interfering with, restraining, and coercing employees in the exercise of the rights
guaranteed in Section 7 of the Act.16
Upon the basis of the foregoing findings of fact and upon the entire record in this
case, I make the following:
CONCLUSIONS OF LAW
1. Wilmorite, Chloris, and Luther are employers engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. Respondent Union is a labor organization within the meaning of Section 2(5)
of the Act.
3. By causing Wilmorite and Chloris to discharge Eugene McClain because of his
union membership status, and by causing Luther to refuse to employ Eugene
McClain because of his union membership status, the Respondent has violated
Section 8(b)(1)(A) and (2) of the Act.
4. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the entire record in this case, and pursuant to Section 10(c) of the National
Labor Relations Act, as amended, I recommend that Respondent Bricklayers,
Masons & Plasterers' International Union of America, Local 11, AFL-CIO, its
officers, agents, and representatives, shall:
1. Cease and desist from:
(a) Causing or attempting to cause Wilmorite Construction Inc., John Luther
& Sons Company Inc., and Chloris Associates Ltd., or any other employer, to
discriminate against Eugene McClain, or any other employee, with respect to his
hire, tenure, or any other term or condition of his employment for reasons related
to his membership status in Respondent Union.
(b) In any like or related manner restraining or coercing employees in the
exercise of the rights guaranteed in Section 7 of the Act, except to the extent that
1"In recommending this broad cease and desist Order I have also noted that the Board
has previously found the Respondent to have engaged In similar unfair labor practices.
Local 11, Bricklayers, Masons and Plasterers International Union of America, AFL-CIO
(Cooper and Craib, Inc ), 144 NLRB 373
BRICKLAYERS, LOCAL 11 675
such rights may be affected by an agreement requiring membership in a labor
organization as a condition of employment as authorized in Section 8(a)(3) of
the Act.
2. Take the following affirmative action which is necessary to effectuate the
policies of the Act:
(a) Notify Wilmorite Construction Inc., John Luther & Sons Company Inc.,
Chloris Associates Ltd., respectively , in writing, that it has no objection to the
employment of Eugene McClain. Copies of said notices are to be simultaneously
served on McClain.
(b) Post at its offices and meeting halls in Rochester , New York, copies of the
attached notice marked "Appendix." 17 Copies of such notices, to be furnished by
the Regional Director for Region 3 , after being duly signed by an authorized repre-
sentative of the Respondent , shall be posted immediately upon receipt thereof, and
maintained by it for a period of 60 consecutive days thereafter , in conspicuous
places, including all places where notices to its members are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure that said notices are
not altered , defaced, or covered by any other material.
(c) Notify the said Regional Director, in writing , within 20 days from the date
of this Decision and Recommended Order, what steps Respondent has taken to
comply herewith.18
17 In the event that this Recommended Order is adopted by the Board , the words "a
Decision and Order " shall be substituted for the words "the Recommended Order of a
Trial Examiner " in the notice . In the further event that the Board ' s Order is enforced
by a decree of a United States Court of Appeals, the words, "a Decree of the United States
Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision
and Order."
"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 the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL MEMBERS OF BRICKLAYERS , MASONS & PLASTERERS'
INTERNATIONAL UNION OF AMERICA, LOCAL 11, AFL-CIO
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act , as amended , we hereby notify you that:
WE WILL NOT cause or attempt to cause Wilmorite Construction Inc., John
Luther & Sons Company Inc., Chloris Associates Ltd., or any other employer,
to discriminate against Eugene McClain, or any other employee, in violation
of Section 8(a)(3) of the National Labor Relations Act.
WE WILL NOT in any other manner restrain or coerce employees in the
exercise of rights guaranteed by Section 7 of the Act, except to the extent that
such rights may be affected by an agreement requiring membership in a labor
organization as a condition of employment , as authorized by Section 8(a)(3)
of the Act.
WE WILL make Eugene McClain whole for any loss of pay he may have
suffered as a result of the discrimination against him.
WE WILL notify Wilmorite Construction Inc., John Luther & Sons Company
Inc., and Chloris Associates Ltd. that we have no objection to the employment
of Eugene McClain, and WE WILL serve him a copy of such notice.
BRICKLAYERS , MASONS & PLASTERERS ' INTERNATIONAL
UNION OF AMERICA, LOCAL 11, AFL-CIO,
Labor Organization.
Dated- ------------------ By-------------------------------------------
(Representative ) (Title)
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.
If members have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board's Regional Office, Fourth
Floor, The 120 Building, 120 Delaware Avenue , Buffalo, New York 14202, Tele-
phone 842-3100.