Building Material, Local 282

National Labor Relations Board - Board Decisions

Apr 29, 1977

229 N.L.R.B. 347 (N.L.R.B. 1977)

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.
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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.
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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
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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
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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