Duron Maguir Eastern Corp.

National Labor Relations Board - Board Decisions

Jul 26, 1979

243 N.L.R.B. 712 (N.L.R.B. 1979)

712 D CISIONS OF NATIONAL
Boston Cement Masons and Asphalt Layers Union
No. 534, a/w Operative Plasterers and Cement Ma-
sons International Association AFL-CIO (Duron
Maguire Eastern Corp.) and Peter Frattaroli and
Enrico P. Ventresca. Cases I -CB 2377 and I-CB-
2386
July 26. 1979
SECOND SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN FANNING ANI) MfMBERS JNKINS
ANI PNH I I(
On April 10, 1978, the National Labor Relations
Board issued a Supplemental Decision and Order' in
this proceeding. The Board found that the General
Counsel had failed to establish that Respondent vio-
lated Section 8(b)(1)(A) or 8(b)(2) of the Act and
therefore reaffirmed its initial Order in its entiret. 2
Thereafter, on December 28. 1978. the United
States Court of Appeals for the First Circuit issued a
decision' in which it granted the Charging Parties'
petition for review and remanded the case to the
Board for the limited purpose of considering what
relief is appropriate. In its decision, the court fund,
contrary to the Board, that since the Uinion was oper-
ating a referral system for members only and not an
exclusive hiring hall the fee sought from Ventresca
and Frattaroli by the Union was not legitimate and
the Union violated Section 8(hb(1)(A) and (2).
The Board, having accepted the remand, respect-
fully recognizes the court's opinion as binding for the
purpose of deciding this case.
On March 16. 1979, the Board notified the parties
that it had decided to accept the remand and invited
each party to file a statement of position. Pursuant to
this notice, Respondent and the Charging Parties filed
statements.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record as a whole
the decision of the United States Court of Appeals for
1235 NLRB 826.
2 As descnribed in more detail at 235 NLRB 826. supra, the Board had
earlier issued a Decision and Order reported at 216 NLRB 568 (1975)
Thereafter. on December 18. 1975. the United States Court of Appeals for
the First Circuit issued a decision in which it granted the Charging Parties'
petition lir review, vacated the Order of the Board therein. and remanded
the case for further proceedings. The Supplemental Decisln and Order re-
ported at 235 NLRB 826 followed from the earlier remand h) the First
Circuit.
3590 F.2d 5.
I.ABOR RELATIONS BOARD
the First Circuit remanding the proceedings. and the
statement of position filed by each party.
As indicated above, the remand to the Board is for
the limited purpose of considering what relief is ap-
propriate. The C(harging Parties contend that the ap-
propriate remedy is the remedy ordered by the Ad-
ministrative Law Judge in his initial decision reported
at 216 NLRB 568. 574. Thus, the Charging Parties
assert that Frattaroli and Ventresca should be made
whole for loss of pay and benefits since July 16. 1973.
Respondent contends, however, that the make-whole
period should encompass only the period from July
16, 1973. to April 30, 1974. Respondent predicates
this limitation on alleged changes in the terms of the
collective-bargaining agreement governing relations
between Respondent and Duron Maguire Eastern
Corp. In the alternative. Respondent contends that
the make-whole order should not extend beyond
Duron Maguire Eastern's involvement in the Shaw-
mut Bank construction project. Finally. Respondent
contends that the make-whole order must reflect the
intermittent nature of' cement masons' employment.
We find it inappropriate to limit the remedy or-
dered bh the Administrative Law Judge reported at
216 N.RB 568. 574. The terms of his remedy and
Order are consistent with remedial relief granted by
the Board in other proceedings involving violations of'
Section 8(b)( I )(A) and (2) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act. as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge reported at 216
NLRB 568, 574. which is restated below, and hereby
orders that the Respondent, Boston Cement Masons
and Asphalt Layers Union No. 534, a/w Operative
Plasterers and Cement Masons International Associ-
ation. AFL CIO. Boston, Massachusetts. its officers,
agents, and representatives. shall:
I. Cease and desist from:
(a) Discriminatorily causing the termination of Pe-
ter Frattaroli and Enrico P. Ventresca from employ-
ment with Duron Maguire Eastern Corp., because of
their nonpayment of dues and fines and because of
their nonmembership in Respondent.
(b) Unlawfully exacting dues and fines from non-
members of Respondent while at the same time deny-
ing them membership in Respondent for reasons
other than nonpayment of legitimate initiation fees or
dues.
(c) In an, like or related manner restraining or co-
ercing employees, members of the Bricklayers or the
Cement Masons. in the exercise of their rights guar-
anteed in Section 7 of the Act.
243 NLRB No. 134
BOSION CEfMtENT MASONS AND ASPHALT LAYERS UNION N(). 534
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Notify Duron Maguire Eastern Corp.. in writ-
ing, with a copy to Peter Frattaroli and Enrico P.
Ventresca, that it has no objection to their employ-
ment.
(b) Make Peter Frattaroli and Enrico P. Ventresca
whole for any loss of pay or other loss such as senior-
ity, etc., which they suffered as a result of the dis-
crimination against them as set forth in the section otf
the Administrative Law Judge's Decision entitled
"The Remedy."
(c) Notify Duron Maguire Eastern Corp. and the
Associated General Contractors of Massachusetts.
Inc., and Building Trades Employers Association of
Boston and Eastern Massachusetts, Inc., that for the
duration of its present contract with them it will abide
by the interpretation of the contract phrasing "or its
equivalent" which the parties have previously used:
that journeyman status of a cement mason is the
equivalent of having passed any apprentice program:
and further that it will not attempt to unlawfully
exact "dues" or "fines" from nonmembers who are
working or seek to work in its claimed geographical
area while at the same time denying them member-
ship for reasons other than nonpayment of legitimate
initiation fees or dues.
(d) Respondent is to post at its business office.
union hall. and any other place where it customarily
posts notices to members copies of the attached no-
tice marked "Appendix." 4 Copies of the notice shall
also be posted at the Employer's place of business it
the Employer is willing. Notices on forms provided
by the Regional Director for Region I, after being
signed by an authorized representative of Respon-
dent, shall be posted by 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 the notices are not altered, defaced. or
covered by any other material.
(e) Notify the Regional Director for Region I. in
' In the event that this Order is enforced hby a Judgement of a United
States Court of Appeals. the words In the notice reading "Posted hy Order of
the National Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board."
writing, within 20 days from the date of this Order.
what steps have been taken to comply herewith.
APPENDIX[)
No)iicl To MIMHB R-KS
PosIF D BY ORDI.R () 111E
NAIIONAI. LABOR REI.AII()NS BOARI)
An Agency of the United States Government
Following a hearing at which we participated and of-
fered evidence, it has been found that we violated the
Act. We have been ordered to post this notice and we
intend to carry out the Order of the Board and abide
by the following:
Wl wIL . Nor discriminatorily cause the termi-
nation of Peter Frattaroli and Enrico P. Ven-
tresca or any other employee from employment
because of their not being members of our Union
or because they do not pay dues or other monexs
to us.
WE wII.I. NOI in any like or related manner
restrain or coerce employees in the exercise of
their rights guaranteed b Section 7 of the Act.
Wi- wiit. make Peter Frattaroli and Enrico P.
Ventresca whole ftr an\ loss of pa) suffered ars a
result of the discrimination we practiced against
them.
Wli: vwi, notif, Duron Maguire Eastern Corp.
that we have no ohiection to their hirine Peter
Frattaroli and Enrico P. Ventresca.
WtI wiii notif Duron Maguire Eastern
Corp.. and the Associated General Contractors
of Massachusetts. Inc.. and Building Trades Em-
ployers Association of' Boston and Eastern Mas-
sachusetts. Inc.. that for the duration of our con-
tract with them we will abide by the meaning we
have previously given to the phrase in our con-
tract "or its equivalent," which is that the jour-
neyman status of a cement mason is the equiv-
alent of having passed any apprentice program:
and further that we will not unlawfully try to
collect "dues" or "fines" from nonmembers who
are working or seeking work in our geographical
area while we refuse to accept them into our
Union.
BOSTON CMtNI MASONS AN) APIIAI.I
LAYIERS UNI()N No. 534. A/w Ot'lRAIIlI-
PI.ASERERS AND) CEMENI MASONS INIERNA-
TIONAI Asso('IAToN. AFL-CIO
713