Glaziers & Glassworkers Local 513

National Labor Relations Board - Board Decisions

Nov 30, 1972

200 N.L.R.B. 617 (N.L.R.B. 1972)

GLAZIERS & GLASSWORKERS LOCAL 513 617
Glaziers and Glassworkers Local Umon No 513,
affiliated with International Brotherhood of Paint-
ers and Allied Trades, AFL-CIO (Joseph J
Cermak, d/b/a Southern Glass Company) and
Alan Profancik Case 14-CB-2278
November 30, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
On June 29, 1972, Administrative Law Judge'
Thomas D Johnston issued the attached Decision in
this proceeding Thereafter, the General Counsel
filed limited exceptions and a supporting brief
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 brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order with the additions
and modifications noted below 2
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 herein, and hereby orders that Respondent,
Glaziers and Glassworkers Local Union No 513,
affiliated with International Brotherhood of Painters
and Allied Trades, AFL-CIO, its officers, agents,
and representatives, shall take the action set forth in
the said recommended Order, as so modified
1 Delete paragraph 1(c) of the Order and
substitute therefor the following
"In any other manner restraining or coercing
employees of Joseph J Cermak, d/b/a Southern
Glass Company, or any other employer, in the
exercise of the rights guaranteed in 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 in
accordance with Section 8(a)(3) of the Act "
2 Substitute the following for paragraph 2(c) of
the Order
"Make Joseph J Cermak whole for any losses he
may have suffered by reason of Local Union No
513's refusing to accept his tender of dues and restore
all rights and benefits to which he was entitled before
the unlawful disciplinary action was taken against
him "
3 Insert the following as paragraph 2(d) of the
Order and renumber the subsequent paragraphs
accordingly
"Notify Joseph J Cermak, in writing, that it has
taken the action required in 2(a), (b), and (c), above "
4 Substitute the attached Appendix for the
Administrative Law Judge's Appendix
1 The title of Trial Examiner was changed to Administrative Law
Judge effective August 19 1972
2 We find merit in the General Counsel s exceptions to the breadth of the
Order insofar as he contends that Respondent should be ordered to restore
Joseph Cermak an employer -member to full membership rights Accord-
ingly , the Order has been modified to effect such a remedy See Sheet Metal
Workers International Association Local Union No 361 (Langston and Co
Inc) 195 NLRB No 65 and International Brotherhood of Electrical Workers
System Council U-4 (Florida Power & Light Company), 193 NLRB No 7
Further in view of the nature of the unfair labor practices committed
which primarily were directed at causing Cermak and other employers to
discriminate against nonmembers in employment and in order to prevent
the commission of other unfair labor practices we shall order that the
Respondent cease and desist from infringing in any manner upon the rights
guaranteed in Section 7 of the Act Cf Barnwell Garment Company Inc a
subsidiary of Colonial Corporation 163 NLRB 51
In view of the breadth of our remedial order we need not pass upon the
General Counsels specific request for a provision precluding Respondent
Union from demanding payment of back dues As the record does not
disclose whether such a demand on the part of Respondent would constitute
an extension of the unlawful conduct against Cermak this issue is best left
to resolution during the compliance stages of this proceeding
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT cause or attempt to cause Joseph
J Cermak, d/b/a Southern Glass Company, to
discriminate against Alan Profancik in violation
of Section 8(a)(3) of the National Labor Relations
Act, as amended
WE WILL NOT maintain or enforce article
XXIV, section 3, of our bylaws and trade rules
prohibiting members of our Union from working
at glazing with other than members of the
International union against Joseph J Cermak, or
other employer-members, thereby causing or
attempting to cause them to discriminate against
nonunion employees in violation of Section
8(a)(3) of the National Labor Relations Act, as
amended
WE WILL NOT in any other manner restrain or
coerce employees of Joseph J Cermak, d/b/a
Southern Glass Company, or any other employer,
in the exercise of the rights guaranteed in 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 condi-
200 NLRB No 85
618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion of employment in accordance with Section
8(a)(3) of the Act
WE WILL make Joseph J Cermak whole for any
losses he may have suffered by reason of Local
Union No 513's refusing to accept his tender of
dues and restore all rights and benefits to which
he was entitled before the unlawful disciplinary
action was taken against him
WE WILL notify Joseph J Cermak, d/b/a
Southern Glass Company, in writing, that we
have no objection to the Company's employment
of Alan Profancik to perform glazing work, and
we will furnish Alan Profancik with a copy of
such notification
GLAZIERS AND
GLASSWORKERS LOCAL
UNION No 513,
AFFILIATED WITH
INTERNATIONAL
BROTHERHOOD OF
PAINTERS AND ALLIED
TRADES, AFL-CIO
(JOSEPH J CERMAK,
D/B/A SOUTHERN GLASS
COMPANY)
(Labor Organization)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 210 North 12th Boulevard, Room
448, St Louis, Missouri 63101, Telephone 314-
622-4167
TRIAL EXAMINER' S DECISION
STATEMENT OF THE CASE
THOMAS D JOHNSTON, Trial Examiner This case was
heard at Centralia, Illinois, on March 28, 1972, pursuant to
a charge filed by Alan Profancik, an individual, on July 16,
1971,1 and a complaint issued on January 6, 1972, and
amended on February 82 and March 20, 1972
The complaint alleges that Glaziers and Glassworkers
Local Union No 513, affiliated with International Brother-
hood of Painters and Allied Trades, AFL-CIO (herein
referred to as the Respondent), violated Section 8(b)(1)(A)
1 All the dates referred to are in 1971 unless otherwise stated
2 The amendment to the complaint issued on February 8 1972 was
orally amended at the hearing to delete certain jurisdictional allegations
3 These initials apparently refer to the Brotherhood of Painters
and (2) of the National Labor Relations Act, as amended
(herein referred to as the Act), by maintaining against its
employer-members, including Joseph J Cermak, a provi-
sion under its bylaws and trade rules prohibiting members
of Respondent from working at glazing with other than
members of the B of P D & P of A 3 thereby causing or
attempting to cause them to discriminate against their
employees in violation of Section 8(a)(3) of the Act or to
discriminate against their employees with respect to whom
membership in Respondent had been denied on some
ground other than their failure to tender the periodic dues
and the initiation fees uniformily required as a condition of
acquiring or retaining membership therein, by enforcing
this provision of the bylaws and trade rules against its
employer-member, Joseph J Cermak, thereby causing or
attempting to cause him to discriminate against his
employees in violation of the Act, and by discriminatorily
causing Joseph J Cermak, d/b/a Southern Glass Compa-
ny (herein referred to as the Company), to relieve employee
Alan Profancik of his duties as a glazier or glazier's helper
because he was not a member of Respondent Respondent
in its answer to the complaint filed on January 12, 1972,
and amended answers filed on February 10 and March 22,
1972, denied having violated the Act
The issues involved in determining whether Respondent
violated the Act as alleged are whether Respondent
maintained or enforced the aforementioned bylaw against
its employer-members, including Joseph J Cermak, and
whether Respondent discriminatorily caused the Company
to relieve Alan Profancik of his glazing duties because he
was not a member of Respondent
Upon the entire record in the case and from my
observation of the witnesses, and after due consideration of
the oral argument made by Respondent's counsel and of
the brief filed by General Counsel, I hereby make the
following
FINDINGS OF FACT
I THE BUSINESS OF THE EMPLOYER
Joseph J Cermak, d/b/a Southern Glass Company, with
its office and place of business located at Centralia,
Illinois, is engaged in business as a glazing contractor
During 1971, a representative period, the Company
purchased goods and materials valued in excess of $50,000
which were delivered directly to it in Centralia, Illinois,
from places located outside the State of Illinois or from
other enterprises located in Illinois which in turn had
received these goods and materials from outside the State
of Illinois
Based upon the foregoing evidence I find that the
Company is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act
Decorators and Paperhangers of America which according to the Directory
of National and International Labor Unions in the United States is the
former name of the International Brotherhood of Painters and Allied
Trades AFL-CIO (herein referred to as the International union)
GLAZIERS & GLASSWORKERS LOCAL 513 619
II THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that it is a labor
organization within the meaning of Section 2(5) of the Act
III THE UNFAIR LABOR PRACTICES
A Background
Joseph J Cermak is the sole owner of the Company His
daughter Ruth Profancik, her husband Albert Profancik,
and her son Alan Profancik are also employed there Ruth
Profancik is the secretary-bookkeeper Albert Profancik,
who holds no official or supervisory position with the
Company, works as a glazier as does the owner Joseph J
Cermak Alan Profancik began work for the Company in
January as an apprentice glazier following his discharge
from the United States Navy Both Joseph J Cermak and
Albert Profancik are members of Respondent and have
been members for many years Although in January Alan
Profancik submitted an application for admission to
Respondent's apprenticeship training program to become a
glazier he is not a member of Respondent 4 No apprentices
have been taken into Respondent's apprenticeship training
program since October 1970 because of a large amount of
unemployment in the trade and a practice of not taking in
apprentices while such conditions exist
The Company has maintained a bargaining relationship
with Respondent for many years and the most recent
collective-bargaining agreement between them expired
around November 1971 5 Although not required to do so
the Company whenever it needed additional glaziers hired
them through Respondent The evidence does not establish
whether the collective-bargaining agreement which was not
offered into evidence contained union-security provisions
Respondent's bylaws and trade rules under article
XXIV, section 3, provide as follows
Members are prohibited from visiting or communicat-
ing with glazing contractors who have not signed the
agreement except when delegated by the Union to do
so Any member found guilty of working at glazing
with other than members of the B of P D & P of A,
shall be punished by fine or expulsion as the Trial
Board may decide, after charges, and if found guilty by
the Trial Board
B Respondent's Enforcement of its Bylaw against
Joseph J Cermak and Discriminatorily Causing a
Change in Alan Profancik's Duties
On March 12 the Company was performing work on a
school addition located at Red Bud, Illinois Between 10
and 10 30 that morning Robert McMillan, a member of
Respondent but who holds no office or position, ap-
proached Joseph J Cermak and Alan Profancik while they
were working on the jobsite performing glazing work and
requested them to show him their work cards 6 Cermak
4 The apprenticeship committee which is comprised of representatives
from Respondent and glazing employers notified Profancik in March 1972
the committee was meeting and he should attend
5 A new agreement had not been executed at the time the hearing was
held
6 A work card is a card sent out quarterly by Respondent to its members
who knew McMillan showed him his card However, upon
being informed Profancik did not have a card, McMillan
told Cermak he was working with a nonunion man and he
couldn't work with him When McMillan advised Cermak
he would have to prefer charges against him Cermak
replied it was his privilege As they walked out to the
Company's truck Cermak attempted to explain that
Profancik had applied for membership, was married, had a
wife to support and needed a job McMillan told Profancik
if he were him he would j ust sit in the truck 7
Alan Profancik did not perform any more work that day
but waited in the truck until around 4 30 p in while
Cermak completed the Company's work on the jobsite by
himself Around 2 p in while waiting for Cermak,
Profancik asked McMillan who had come to the truck if he
thought it would hurt his chances of getting into the Union
McMillan laughed and replied it wasn't going to help any
While they were talking the superintendent for the general
contractor,8 Wolff Construction Company, came out and
McMillan informed him Profancik didn't have a card The
superintendent 's response was as far as he was concerned if
Profancik walked back in the building he was going home
The above findings are based on the undemed testimo-
nies of both Cermak and Alan Profancik which I credit
McMillan although present in the courtroom during the
hearing did not testify
According to Respondent Business Representative Ron-
ald Brown, who also holds the positions of recording
secretary and treasurer, on either March 13 or 14
McMillan reported the incident to him whereupon he
informed McMillan such conduct violated that section of
Respondent's bylaws prohibiting members of the Union
from working with employees who were not members of
the International Union, and that since McMillan had
observed the violation he could file charges Thereafter,
charges were filed against Cermak and on March 18
Respondent notified him by letter he was charged with
violating section 3, article XXIV, of Respondent's bylaws
and trade rules with respect to the March 12 incident on
the Red Bud jobsite He was also instructed to appear
before a trial committee of Respondent on May 4
On April 28, Cermak advised Respondent by letter due
to prior commitments he would be unable to appear on
May 4 as directed He further denied having violated the
bylaws contending the man he was charged with working
with was working on a 30-day trial to determine whether to
make the glazier trade his career In addition, Cermak
pointed out he had received legal advise that under the law
the man had 30 days to join the Union and the Union was
doing the man an injustice and causing him hardship by
refusing to allow him to work at the glazier's trade to make
a living for his wife and child Notwithstanding his
response a trial was held by Respondent on May 4 during
which Business Representative Brown admitted he sat as a
member of the Trial Board
On June 1, Respondent by letter notified Cermak he had
showing their dues are paid up
7 Although Profancik testified Cermak agreed with McMillan that he
should wait in the truck in view of Cermak s failure to corroborate his
testimony in this respect I am not persuaded by the evidence Cermak
agreed
11 The identity of the superintendent was not further established
620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
been found guilty of violating section 3, article XXIV, of
Respondent's bylaws and trade rules and had been fined
the sum of $600 which was to be paid to the financial
secretary9 before the financial secretary would be allowed
to collect any dues from him Although Cermak did not
appeal Respondent's decision 10 several letters were written
to the president of the International umon who advised
him the matter had been turned over to a former union
business representative, Adrian Floyd, to handle Although
Floyd contacted Cermak 5 or 6 months prior to the hearing
in this case and promised to look into the matter no further
action has been taken
Cermak has refused to pay the fine and Respondent has
refused to send him his work card When Cermak
attempted to pay his dues in June by mailing Respondent
his check as was his usual practice, the check was returned
with a note signed by Respondent Financial Secretary
Schlemmer" informing him he was unable to accept
Cermak's dues until the $600 fine was paid and that he was
not allowed to work until such payment was made
Following the March incident on the Red Bud jobsite,
Cermak instead of assigning Alan Profancik glazing work
as previously assigned him duties of driving a truck and
working around the shop This continued for about a
month until the State of Illinois approved an apprentice-
ship training program for the Company's shop whereupon
Alan Profancik began receiving training under the pro-
gram to become a glazer and subsequently resumed
performing such work on various jobsites
With the exception of working 2 or 3 days to help out
Cermak has not worked at the trade since June However
his reasons for not doing so in addition to Respondent's
failure to accept his dues and prohibiting him from
working was because he had been busy performing
estimating work for the Company
On or about July 20 Respondent President Ray Raftery
inquired of Albert Profancik whether his son would drop
the unfair labor practice charge if the Union agreed to
accept him When Albert Profancik indicated he would,
Raftery told him to call the next day
The following day Financial Secretary Schlemmer visited
the Company and informed Albert Profancik he wasn't
allowed to work with his son, Alan Profancik, either in or
out of the shop or he would be liable for charges When
Albert Profancik replied Alan Profancik wasn't working
himself but only watching him work Schlemmer inquired
how Alan Profancik could learn to be a glazier just by
watching Albert Profancik's response was that was why
they wanted to get him a card so he could work and learn
the trade Upon being told the shop had been approved by
the State and the Veterans Administration to train Alan
Profancik and that another employee had previously been
trained Schlemmer replied he didn't think the shop was
9 The financial secretary s name was Vernon Schlemmer
10 The constitution of the International umon under sec 285 provides
that appeals from the local union shall be taken to the district council where
one exists and sec 286(a) requires such appeals be filed in writing within 30
days from the date of the decision and failure to take a timely appeal shall
be grounds for disallowing the appeal by the appellate body Further Sec
287 of the constitution requires in pertinent part that members against
whom charges have been preferred or disciplinary or adverse actions have
been taken shall exhaust their remedies provided for in the constitution
before resorting to any other court or tribunal and failure to do so subjects
qualified and should not have been approved Schlemmer
also informed him Respondent did not recognize the
State's training program Schlemmer rejected Albert
Profancik's suggestion if Respondent wanted to give Alan
Profancik an apprenticeship card the Company would pay
him as a glazier
The next day when Respondent President Raftery again
inquired about dropping the unfair labor practice charge
Albert Profancik indicated Respondent would have to give
Alan Profancik a card, drop the charge against Cermak,
and reinstate him in good standing
The following day Albert Profancik received a letter
from Respondent informing him he had been charged with
violating the constitution 12 According to Respondent
Business Representative Brown, President Raftery pre-
ferred the charge against Albert Profancik and a trial was
held at which he was found guilty and told to attend a
union meeting to be reprimanded from the floor Albert
Profancik stated when he attended the meeting to be
reprimanded President Raftery informed him he had been
fined $500 13 Raftery did not testify According to Albert
Profancik, the reason he was fined was for having violated
different articles of the constitution for instigating trouble
Although Albert Profancik has not paid his alleged fine
Respondent has continued to accept his dues and no
demands have been made upon him for payment Since
July he has been working at the trade with his son, Alan
Profancik, on various construction jobs without further
action having been taken against him by Respondent
C Analysis and Conclusions
Counsel for General Counsel contends Respondent
violated Section 8(b)(1)(A) and (2) of the Act by maintain-
ing the bylaw against employer-members, including Joseph
J Cermak, enforcing the bylaw against Cermak, and by
discriminatorily causing the Company to relieve Alan
Profancik of his glazing duties because he was not a
member of Respondent Respondent's counsel while
denying the Act was violated further contends the Board
lacks jurisdiction since Cermak failed to exhaust his
internal union remedies and that because of Alan Profan-
cik's relationship to the Company's owner he was not an
employee within the meaning of the Act Disposing of the
latter issues first, a union member is not required to
exhaust his internal union remedies before resorting to the
Board's processes N L R B v Industrial Union of Marine &
Shipbuilding Workers, 391 U S 418 With respect to Alan
Profancik's relationship as a grandson to the owner of the
Company, such relationship is not a basis upon which to
deprive him of his protection as an employee under the
Act
Section 8(b)(1)(A) of the Act prohibits a union from
them to disciplinary action
11 The signature of Schlemmer who did not testify was identified by
Albert Profancik whom I credit
12 The evidence does not establish as General Counsel contends in his
brief that the charge against Albert Profancik was for working with his son
It was the bylaw rather than the constitution which prohibited such
conduct
13 Although Business Representative Brown denied Albert Profancik
was fined I do not find it necessary to resolve this conflict in their
testimonies as it is not an issue in the case
GLAZIERS & GLASSWORKERS LOCAL 513 621
restraining or coercing employees in the exercise of the
rights guaranteed in Section 7 of the Act However, the
proviso to that section gives a union the right to prescribe
its own rules with respect to the acquisition or retention of
membership
Section 8(b)(2) of the Act prohibits a union from causing
or attempting to cause an employer to discriminate against
employees because of their nonmembership in a union
The bylaw in the instant case which prohibits Respon-
dent's members from working at glazing with other than
members of the International union by subjecting them to
either fine or expulsion is insofar as it prohibits a member
from working with a nonmember a valid bylaw with
respect to the acquisition or retention of membership and
to that extent is protected by the proviso of Section
8(b)(1)(A) 14 However, a union by maintaining a bylaw
against employer-members prohibiting them from working
with nonunion employees by subjecting them to penalties
violates Section 8(b)(2) and (1)(A) of the Act 15
The Board has cited with approval16 for determining the
kind of evidence necessary to establish a violation of
Section 8(b)(2) of the Act the following language used by
the United States Court of Appeals for the Second
Circuit 17
However, in order for union conduct to violate Section
8(b)(2), as opposed to Section 8(b)(1)(A), there must be
some direct approach to the employer, or some conduct
aimed at him, for the purpose of causing the employer
to discriminate by implementing the union bylaw
through his hiring practices or otherwise undoubt-
edly, petitioners as union members have been acutely
aware of the bylaw's existence and of the rigorousness
of enforcement within the Federation However, on the
present record, the Board was free to find that
Petitioners have not shown any pattern of action by the
Federation aimed at them as employers [Emphasis
supplied]
The undisputed evidence in the instant case establishes
and I find that Respondent enforced its bylaw against
Cermak because he was performing glazing work with
Alan Profancik who was not a member of Respondent or
the International union and that Respondent caused the
Company to relieve Alan Profancik of his glazing duties
because he was not a member of Respondent or the
International union Although General Counsel contends
McMillan was acting as Respondent's agent when he
threatened to being charges against Cermak, such a finding
is unnecessary since Respondent itself immediately initiat-
ed action against Cermak by notifying him of the charge
and by subsequently trying, fining, and prohibiting hun
from working until such fine was paid While Alan
Profancik's cessation of work on March 12 was not
attributable to any instructions by Cermak but only upon
McMillan's directions which Alan Profancik obeyed the
Company's relieving him of his glazing duties for approxi-
mately a month thereafter was directly caused by Respon-
dent's action taken against Cermak That Respondent's
14 See Associated Musicians of Greater New York Local 802 AFM
AFL-CIO (Joe Carroll Orchestras) 176 NLRB No 46
15 American Federation of Musicians AFL-CIO (Don Glasser) 165
NLRB 798 enfd 395 F 2d 401 (C A 2)
action had accomplished the effect intended of depriving
Alan Profancik of work was clearly conveyed to Respon-
dent by Cermak' s letter in response to the filing of the
charge wherein Respondent was informed it was causing
Alan Profanclk a hardship by refusing to allow him to
work at the glazier's trade Despite such protest Respon-
dent preceded with its disciplinary action against Cermak
Under these circumstances the evidence more than meets
the test for determining whether the Act was violated
Therefore I find based on a preponderance of the evidence
that Respondent violated Section 8(b)(1)(A) and (2) of the
Act by maintaining and enforcing article XXIV, section 3,
of its bylaws and trade rules prohibiting members of
Respondent from working at glazing with other than
members of the International union against Joseph J
Cermak, an employer-member, thereby causing and
attempting to cause him to discriminate against his
employees in violation of Section 8(a)(3) of the Act and by
discriminatorily causing the Company to discriminate
against Alan Profancik in violation of Section 8(a)(3) of the
Act by relieving him of his glazing duties because he was
not a member of Respondent or the International union In
making this finding, I do not consider it necessary to
consider those conversations between Albert Profancik
and Respondent's officials as urged by General Counsel in
his brief as further evidence of the violations
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, found to constitute unfair labor practices occurring
in connection with the operations of Joseph J Cermak,
d/b/a Southern Glass Company, described 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 thereof
CONCLUSIONS OF LAW
1 Joseph J Cermak, d/b/a Southern Glass Company,
is an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act
2 Glaziers and Glassworkers Local Union No 513,
affiliated with International Brotherhood of Painters and
Allied Trades, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act
3 By maintaining and enforcing article XXIV, section
3, of its bylaws and trade rules prohibiting members of
Respondent from working at glazing with other than
members of the International union against Joseph J
Cermak, an employer-member of Respondent, by preceed-
ing with charges against him, trying, fining, and prohibit-
ing him from working thereby causing and attempting to
cause him to discriminate against employees within the
meaning of Section 8(a)(3) of the Act, Respondent violated
Section 8(b)(1)(A) and (2) of the Act
16 See Associated Musicians of Greater New York supra
17 395 F 2d 401 (C A 2) enfg the Board s Order in American Federation
of Musicians supra
622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4 By causing Joseph J Cermak, d/b/a Southern Glass
Company, to discriminate against Alan Profancik within
the meaning of Section 8(a)(3) of the Act by assigning him
work other than glazing work because he was not a
member of Respondent or the International Union,
Respondent violated Section 8(b)(1)(A) and (2) of the Act
5 The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act
THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices within the meaning of Section 8(b)(1)(A)
and (2) of the Act, I shall recommend that it be ordered to
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act
Accordingly, Respondent shall be ordered to cease and
desist from maintaining or enforcing against Joseph J
Cermak and its employer-members article XXIV, section 3,
of its bylaws and trade rules and withdraw its objection to
the Company employing Alan Profancik to perform
glazing work Inasmuch as no loss of pay was suffered by
Alan Profancik as a result of the discrimination against
him no make-whole order is required
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended 18
ORDER
Respondent, Glaziers, and Glassworkers Local Union
No 513, affiliated with International Brotherhood of
Painters and Allied Trades, AFL-CIO, its officers, repre-
sentatives, and agents, shall
1 Cease and desist from
(a) Maintaining or enforcing article XXIV, section 3, of
its bylaws and trade rules prohibiting members of
Respondent from working at glazing with other than
members of the International union against Joseph J
Cermak and other employer-members of Respondent by
subjecting them to penalties thereby causing or attempting
to cause them to discriminate against employees within the
meaning of Section 8(a)(3) of the Act
(b) Causing or attempting to cause Joseph J Cermak,
d/b/a Southern Glass Company, to discriminate against
Alan Profancik within the meaning of Section 8(a)(3) of
the Act by assigning him work other than glazing work
(c) In any like or related manner restraining or coercing
employees of Joseph J Cermak, d/b/a Southern Glass
18 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
19 In the event that the Boards Order is enforced by a Judgment of a
United States Court of Appeals the words in the notice reading Posted by
Company, or any other employer, in the exercise of the
rights guaranteed in 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 in accordance with Section
8(a)(3) of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Rescind the $600 fine imposed against Joseph J
Cermak
(b) Expunge from Respondent's records all references to
the charges, trial, fine, and other action taken against
Joseph J Cermak for violating article XXIV, section 3, of
its bylaws and trade rules
(c) Notify Joseph J Cermak in writing that it has taken
the action required in subparagraphs (a) and (b), above
(d) Notify Joseph J Cermak, d/b/a Southern Glass
Company, in writing, that Respondent has no objection to
Alan Profancik performing glazing work for the Company
and furnish Alan Profancik with a copy of such notifica-
tion
(e) In the event Alan Profancik is presently serving in the
Armed Forces of the United States, notify him, in writing,
that it has no objection to his employment with the
Company as a glazier, in accordance with the Selective
Service Act, and the Universal Military Training and
Service Act, as amended, after discharge from the Armed
Forces
(f) Post at its business office and union hall copies of the
attached notice marked "Appendix " 19 Copies of said
notice, on forms provided by Region 14, after being duly
signed by an authorized representative of Respondent,
shall be posted by it immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
members are customarily posted Reasonable steps shall be
taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material
(g) Furnish the Regional Director for Region 14, signed
copies of such notice for posting by Joseph J Cermak,
d/b/a Southern Glass Company, if willing, in places where
notices to employees are customarily posted
(h) Notify the Regional Director for Region 14, in
writing, within 20 days from the date of this Decision, what
steps Respondent has taken to comply herewith 20
IT IS FURTHER ORDERED that the complaint be, and it
hereby is, dismissed insofar as it alleges unfair labor
practices not found herein
Order of the National Labor Relations Board shall be changed to read
Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board
20 In the event that this recommended Order is adopted by the Board
after exceptions have been filed this provision shall be modified to read
Notify the Regional Director for Region 14 in wasting within 20 days
from the date of this Order what steps the Respondent has taken to comply
herewith