Local 11, Bricklayers, Masons and Plasterers, Etc.

National Labor Relations Board - Board Decisions

Sep 4, 1963

144 N.L.R.B. 373 (N.L.R.B. 1963)

LOCAL 11, BRICKLAYERS, MASONS & PLASTERERS, ETC. 373
Local 11, Bricklayers, Masons and Plasterers International Union
of America, AFL-CIO [ Cooper and Craib, Inc.] and Walter A.
Love. Case No. 3-CB-632. September 4, 1963
DECISION AND ORDER
On May 2, 1962, Trial Examiner Sidney Sherman issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had, engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Intermediate
Report. Thereafter, the Respondent filed exceptions to the Interme-
diate Report and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Members Leedom, Fanning, and Brown].
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 Interme-
diate Report, the exceptions and brief, and the entire record in this
case, and hereby adopts the Trial Examiner's findings,2 conclusions,
and recommendations, with the following modifications.
1. We agree with the Trial Examiner, for the reasons set forth in
the Intermediate Report, that the Respondent Union violated Section
8(b) (2) and (1) (A) of the Act by attempting to cause Cooper and
Craib, Inc., hereinafter also called the Company, to discharge Walter
A. Love in violation of Section 8 (a) (3) of the Act.
2. We also agree with the Trial Examiner's conclusion that the Re-
spondent Union engaged in unfair labor practices within the meaning
of Section 8(b) (2) and (1) (A) of the Act by causing the Company,
on December 27, 1962,3 to discharge Love in violation of Section
8 (a) (3) of the Act. However, in so finding, we rely only on the
following reasons.
Walter Love was employed as a bricklayer by the Company early
in October 1962. Although a member of the Respondent, Love was
then delinquent in his dues and, in November, his membership was
terminated for that reason. On December 26, the Respondent's busi-
1 Since no exceptions were filed to rulings of the Trial Examiner on procedural matters,
we need not consider them
s The Respondent has excepted to credibility findings made by the Trial Examiner As
it is the Board 's established policy not to overrule a Trial Examiner's resolutions with
respect to credibility unless, as is not the case here , the clear preponderance of all the
relevant evidence convinces us that the resolutions were incorrect, we find insufficient
basis for disturbing the Trial Examiner's credibility findings. Standard Dry Wall Prod-
ucts, Inc., 91 NLRB 544, enfd. 188 F. 2d 362 (C.A 3)
3 Unless otherwise specified , all dates are in 1962.
144 NLRB No. 40.
374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ness agent, Burke, delivered a letter to the Company's president, Craib,
which stated that Love had been dropped by the Respondent for
failure to pay his dues and, as a nonmember, "he does not belong on
the job. If your company continues to employ this man, our union is
not responsible for the actions of its members." 4 Craib refused to
discharge Love, and when Love appeared on the job the following
day, Respondent's steward, LaSpina, told Bierschmitt, the Company's
mason foreman,5 that the bricklayers refused to work unless Love were
discharged. Thereupon, Bierschmitt terminated Love's employment
and the other bricklayers returned to work.
While the actual discharge was prompted by the bricklayers' refusal
to work with Love, we agree with the Trial Examiner that the Re-
spondent was responsible for inducing the work stoppage. Respond-
ent's letter of December 26 to the Company clearly expressed a threat
of unlawful conduct unless Love were removed from the job.' At the
same time, Burke verbally warned Craib that the bricklayers might
quit work if Love remained on the job, and this warning was coupled
with a threat that if Craib took no action with regard to Love,
Burke would attend to the matter in his own way. Both Burke and
LaSpina admitted that in a telephone conversation on December 26,
Burke informed LaSpina about the letter which he had just delivered
to Craib. Furthermore, on that same day, LaSpina told Love that
Burke had enjoined him (LaSpina) and the other bricklayers from
working if Love appeared for work on the next day. Also, late on
December 26, LaSpina intimated to Bierschmitt that the men would
not work with Love on the 27th.
On these facts we find that the Respondent, acting through Burke
and LaSpina, effectively caused the Company to discharge Love.
Burke's telling the steward about the letter he had given Craib clearly
amounted to an instruction to the steward not to work with Love and
so to instruct the employees; and LaSpina, as steward, could reason-
ably have been expected to have transmitted this message.' Further-
more, LaSpina's statement to Love confirmed Burke's instruction.
Under these circumstances, we reject the Respondent's contention
that the decision not to work with Love was a voluntary act of the
employees.8
4 The agreement between the Respondent and the Company did not contain a union-
security provision.
5 Although Bierscbmitt was also a member of the Respondent, it is not disputed that he
was acting as an agent of the Company at all material times
9 Associated General Contractors of Minnesota, Inc., 129 NLRB 399, 400.
7 Cf H. E. Doyle and Jno . W. Russell, d/b/a Doyle and Russell , 125 NLRB 571, 573.
8In view of the events of December 20, LaSpina 's statement to the other employees on
December 27 that he was walking off the job "as an individual" is insufficient to establish
that he was not acting as an agent of the Respondent . It would be unrealistic to suppose
that after the instruction of the preceding day, the other bricklayers would disassociate
T.aSpina's action as an individual from his action as a steward . Cf. Doyle and Russell,
supra.
LOCAL 11, BRICKLAYERS, MASONS & PLASTERERS, ETC.
ORDER
375
The Board adopts as its Order the Recommended Order of the Trial
Examiner, except that paragraph 2 (d) thereof is modified to read : I
"(d) Promptly (nail to said Regional Director signed copies of the
Appendix for posting, the Company willing, at its jobsite at the
Rochester School for the Deaf, St. Paul Boulevard, Rochester, New
York."
U As the conduct in issue here occurred solely at the Company's jobsite at the Rochester
School for the Deaf, St. Paul Boulevard, Rochester, New York, and there is no indication
that employees at the Company's other jobsites were aware of Respondent's unfair labor
practices, we shall not require posting at the other jobsites. Lawler's Cafeteria cf Catering
Company, 138 NLRB 352, footnote 2.
INTERMEDIATE REPORT
The charge herein was served upon the Respondent on December 26, 1962,1 the
complaint issued February 25, 1963, and the case was heard before Trial Examiner
Sidney Sherman in Rochester, New York, on April 3, 1963. The only issue litigated
was whether the Respondent had violated Section 8(b)(1)(A) and (2) of the Act
by attempting to cause, and causing, the discharge of Love. After the hearing a
brief was filed by the Respondent.
Upon the entire record 2 and my observation of the witnesses, I adopt the following
findings.
I. THE BUSINESS OF THE COMPANY
Cooper and Craib, Inc., hereinafter called the Company, a New York corporation
engaged in the construction business, during the 12-month period ending April 3,
1963, caused to be transported from out-of-State points to jobsites within New York
State goods and materials valued in excess of $50,000. It is found that the Company
is engaged in commerce within the meaning of the Act, and that it will effectuate
the policies of the Act to assert jurisdiction herein.
II. THE RESPONDENT
Local 11, Bricklayers , Masons and Plasterers International Union of America,
AFL-CIO, herein called the Respondent , is a labor organization within the meaning
of the Act.
III. THE UNFAIR LABOR PRACTICES
The complaint alleges that on or about December 27, Respondent violated Sec-
tion 8(b)(1)(A) and (2) of the Act by attempting to cause, and by causing, the
Company to discharge Love because he failed to maintain membership in Respondent.
A. Sequence of events
On May 20, 1962, the Company became a party to a 2-year contract with Re-
spondent. This contract contained no union-security provision. In August, Love,
who had been a member of Respondent since 1946, gave the Respondent a check to
cover 12 months' dues which were then owing. The check was not honored, and it
1 All events herein occurred in 1962, unless otherwise stated.
2 The transcript of testimony taken herein is hereby ordered corrected as follows:
1. Page 16, line 2-Change this line to read: "refused to approve the discharge of
Love on".
2 Page 26, line 18-Change "assume" to "ask you".
3 Page 52, line 9-Change "he" to "the union".
4 Page 53, line 16-Change "You" to "He".
5 Page 59, line 14--Change "now" to "not"
6. Page 60, line 14-Change "did" to "didn't".
7 Page 79, line 4-Insert "neither" after "that".
8. Page 112, line 19-Change "he" to "you".
9 Page 162, line 12-Change "reserved" to "reversed".
10. Page 163, line 11-Strike "territory".
376 DECISIONS OF NATIONAL LABOR RELAT IONS BOARD
is undisputed that the Respondent never received the proceeds of the check and
considered Love to be delinquent in his dues at all times here material, and that in
November his union membership in Respondent was terminated for that reason.
Meanwhile, early in October Love had been hired by the Company as a bricklayer,
and until his discharge on December 27, was so employed in connection with the
construction of a school building in Rochester . On December 18, Craib, the
Company's president , received a telephone call from Burke, Respondent 's business
agent, who asked for the telephone number of the job on which Love was employed,
and told Craib that Love had given a bad check for his dues . The next day Burke
called the job and spoke to Bierschmitt , the Company 's mason foreman , and Love's
immediate supervisor , notifying him of Love's loss of union membership . There is
conflicting testimony , which will be considered in detail later , as to whether Burke
at that time asked Bierschmitt to discharge Love. At any rate it is clear that on
the same day Bierschmitt reported this conversation to Love and Craib. Between
December 20 and 26,3 Love voluntarily absented himself from work pending efforts
to regain his union membership.
On December 21, Bierschmitt asked Craib what to do if Love reported for work
on December 26 (the next workday ) .4 Craib answered that Love should be per-
mitted to work unless the other bricklayers refused to work with him. Although
unsuccessful in his efforts to regain his good standing as a member of the Respond-
ent, Love returned to work on December 26. Bierschmitt reported this fact to
Burke, who later that day handed Craib a letter signed by Burke, reading as follows-
COOPER & CRAM CO.
DEAR SIRS : Mr Walter Love gave a bad check for his dues and the results
are that after waiting some time for him to straighten this matter out he was
dropped for nonpayment of dues. It has always been an understanding between
the contractors and our union that if a man is a nonmember or a dropped
member , he does not belong on the job. If your company continues to employ
this man , our union is not responsible for the actions of its members.
Conflicting evidence as to the ensuing discussion of this letter between Burke and
Craib will be considered below. However, it is agreed that on December 26, Craib
took no action pursuant to that letter but , when Love reported for work the next
day, Bierschmitt discharged him, in compliance with Craib's prior instructions, be-
cause of the refusal of the other bricklayers to work with Love.
B. Discussion
Attempt To Cause
Burke admitted that on December 26, he handed Craib the letter, quoted above,
announcing Love's ouster by Respondent , citing an alleged understanding between
contractors and Respondent that nonmembers of Respondent did "not belong on
the job," and disclaiming responsibility for the actions of Respondent 's members if
the Company continued to employ Love. While Burke denied that he was seeking
thereby to cause Craib to discharge Love, he was unable to offer any other plausible
explanation of his reason for delivering such a letter to Craib.5
Craib testified that, after reading the letter , he announced that he could not
discharge Love, whereupon Burke retorted that he would "go at it [his] way ." Burke,
however, denied that there was any such interchange.
It was patent from Burke 's testimony and demeanor that he was attempting by
equivocation to avoid the plain language and meaning of the letter , which to anyone
in Craib's position could have. constituted nothing other than a request for Love's
discharge ( and I credit Craib's testimony that he so regarded it). Even if one were
to credit Burke that he did not intend such a request , there is no evidence that such
intention was conveyed to Craib. Obviously , the fact that Burke may have enter-
tained some secret , unexpressed intent contrary to the plain language of the letter
cannot avail to alter its legal effect . In any event , I do not credit Burke either as to
3 There were only two workdays during that period-December 20 and 21 . Decem-
ber 22 and 23 fell on Saturday and Sunday , respectively . There was no work on De-
cember 24 and 25 because of the holiday.
4 See preceding footnote.
5 Burke testified that his purpose In delivering the letter was only to "avoid any trouble
on the job," explaining that he anticipated that the other bricklayers might refuse to work
with Love because of his dues delinquency , and that he so informed Craib. When pressed
to state what he wanted Craib to do to avoid such a contingency , Burke answered only
that "as an employer that would be [Craib 's] decision "
LOCAL 11, BRICKLAYERS, MASONS & PLASTERERS, ETC. 377
the purpose of the letter or as to the ensuing discussion thereof, and find that the
purpose and effect of the letter was to exert pressure on Craib to discharge Love be-
cause of his loss of membership in Respondent, and that, when Craib refused to yield
to this pressure, Burke warned that he would attend to the matter in his own way.6
I find further that by the foregoing conduct Burke attempted to cause Love's dis-
charge for discriminatory reasons, and that the Respondent thereby violated Section
8(b) (1) (A) and (2) of the ACt.7
There remains to be considered another alleged attempt by Respondent to cause
Love's discharge. Bierschmitt testified that on December 19 Burke, after notifying
him of Love's loss of membership in Respondent, declared that Bierschmitt (who
was a member of Respondent) and other members of Respondent should not work
with Love and demanded that he be laid off.8 While Burke somewhat equivocally 9
denied making such a demand, he admitted that he told Bierschmitt on December 19
of Love's membership status; that when Bierschmitt asked Burke what to do about
it, he replied, "I think you know what you should do"; and that, when Bierschmitt
asked whether he should lay Love off, Burke replied that it was up to Bierschmitt.
Even if I were to credit Burke, I would find here at least an implied request for
Love's discharge. In any case, in view of the equivocal nature of Burke's contra-
diction of Bierschmitt, and in view of Burke's deficiencies as a witness, and as I have
already found that only a week later he requested Craib to discharge Love, I credit
Bierschmitt la rather than Burke, and find that on December 19 Burke expressly
requested Love's discharge and that the Respondent thereby violated Section
8(b)(1)(A) and (2) of the Act.
C. The discharge
There was no contradiction of the testimony of Bierschmitt, and I find, that he
discharged Love on December 27 because of the refusal of the other bricklayers to
work with him, and it is conceded by Respondent that such refusal was due to Love's
failure to maintain his good standing as a member of Respondent. It follows that,
by discharging Love for such a reason (absent any union-security clause in its con-
tract), the Company violated Section 8(a)(3) of the Act, and that the Respondent
must be deemed to have violated Section 8(b)(1) (A) and (2) of the Act if re-
sponsibility for the work stoppage which precipitated the discharge may be imputed
to it. The determination of this point depends on the resolution of conflicting testi-
mony concerning certain events immediately preceding, and directly related to,
Love's discharge. As already related, Love, after several days' leave, returned to
work on December 26. Bierschmitt testified that on the same day LaSpina, the
Respondent's steward on the school job, asked him what he intended to do about
e In refusing to credit Burke, I rely on demeanor considerations as well as the inherent
i ,plausibility and confusion of much of his testimony Moreover, no reason was .eng-
gested why Craib would want to testify falsely against the interest of Respondent So
far as appe.u•s, he had no stake in the outcome of this proceeding or any animus toward
the Respondent.
7f'ositinental Baking Company, Inc., 128 NLRB 337. respondent contends in its brief
that there is no proof that Burke was authorized to request Love's discharge However,
Burke admitted that it was one of his duties to deal with disputes relating to the member-
ship status of employees on a particular job, and that It was his purpose in delivering the
letter, and his "duty," to prevent any "trouble" that might develop because of Love's
membership status. Aioreover, article VI, section Ii, of the Respondent's constitution ein-
powers business agents to deal with "any grievance" that arises on a job in any e-,cnt,
ac there is no eizdence that Craib was put on notice that Burke's authority as business
agent did not extend to requesting the discharge of nonnienibers of Respondent, he was
Justified in inferring that Burke was acting within his authority
8It is not disputed that Bierschmitt had the power to discharge Love.
9 When asked whether he requested Bierschmitt to lay Love off, Burke anesmered only
that he did not "recollect" making such a request.
10 Respondent attacks Blei'ehmitt'- credibility on the ground that he sdmittmlly was a
"friend" of Lore's. However, he was a15o a member of Hesponderit and La Spina, a wit-
ne..s for Respondent, testified that several day, before Love's discharge Bierschmitt sug-
gested that L aSpina, in his capacity as job steward, cause a work stoppage to force the
discharge of Love. -Moreover, Bierschmitt admitted that on Dccenther 26 he reported to
Burke the fact that Love had come to work, which, under the circiinistances, could hardly
he regarded as a friendly act Under all the circumstances, I do not believe that liier-
schmitt's friendly feelings toward Love transcended his loyalty to Respondent. Moreover,
even if it be assumed that they did, I would still credit Bierschmitt against Burke, far the
reasons set forth in the text, above.
378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Love and told him that LaSpina did not think the other bricklayers would work with
Love the next morning, and Love testified that on December 26, LaSpina told him
that Burke had enjoined LaSpina and the other bricklayers from working with Love
on the 27th . According to both Love and Bierschmitt , when Love appeared about
8 the next morning, the bricklayers did in fact refuse to begin work , and LaSpina
informed Bierschmitt that they would not do so unless Love was discharged , where-
upon Bierschmitt terminated Love's employment.
LaSpina denied that on December 26 he indicated that there would be a work
stoppage if Love came to work the next day. While admitting that on December 27
he told Bierschmitt that the other bricklayers refused to work with Love, he ex-
plained that this action was the culmination of the following events:
Shortly before the time for starting work ( 8 a.m.), the other bricklayers asked
LaSpina what to do about Love. When he answered that "as an individual" he
would not work with Love, the others indicated that they were of the same mind, and
authorized him so to inform Bierschmitt , which he did.
Both LaSpina and Burke denied that Burke instructed LaSpina not to work with
Love. Bo, a bricklayer on the school job, and a member of Respondent , ii testified
that on December 27, pursuant to an agreement reached the day before , he and the
other bricklayers refused to work when Love appeared on the job and they learned
from LaSpina that Love had not been restored to good standing as a union member.
In elaboration of the foregoing , Bo testified that: LaSpina was requested by the
bricklayers on December 26 to ascertain Love's union status; LaSpina reported
shortly before 8 o'clock the next day at the school job that Love was still delinquent;
Bo thereupon announced that he was not going to work; when LaSpina asked all the
bricklayers 12 whether they were going to work , they voted not to work; and they
refused to comply with Bierschmitt 's order that they go to work.
Bianchi, another of the bricklayers involved, testified that : on December 26, hav-
ing learned from LaSpina of Love's delinquency , he told the other bricklayers and
Bierschmitt that he would not work the next day with Love; on December 27 there
was no discussion of the matter among the men; on that day they all reported to "the
shanty" 13 a few minutes before 8, and at 8 o'clock ( the regular starting time ), in re-
sponse to Bierschmitt 's direction , started out of the shanty to go to the jobsite, and,
seeing that Love was not going with them, they continued on to the jobsite; but if
Love had joined the other bricklayers , the witness would have refused to work.
Thus, there were presented by these three witnesses as many different versions of
the December 27 stoppage. According to LaSpina , he was consulted on December 27
by the others about his intentions , and, when he announced that he would not work
with Love, the others agreed and authorized him so to inform Bierschmitt . However,
according to Bo, it was LaSpina who consulted the others about their intentions , rather
than the contrary, and according to Bianchi there was no consultation at all on
December 27, but only on December 26. Moreover , Bianchi, unlike the other two
witnesses , would not even admit that the bricklayers manifested to Bierschmitt on
December 27 their refusal to work with Love.14 According to him, such refusal
had already been communicated to Bierschmitt the preceding day, and on the 27th
all that happened was that the bricklayers left their headquarters in the shanty at
their regular starting time and continued on to their work stations when they saw
that Love was not with them.15
It is clear from the foregoing that Bianchi, in his zeal to exonerate the Respondent,
was unwilling to concede matters which were freely acknowledged by Respondent's
other witnesses . Accordingly , I can place no reliance on his testimony . As for Bo,
I do not credit his testimony insofar as it controverts LaSpina's admission that on
December 27 the other bricklayers consulted him as to what action he proposed to
take with regard to Love, and I credit LaSpina in this regard, as such testimony
was less favorable to the Respondent , whose witness he was.
The question remains what weight to give to LaSpina's alleged disclaimer to the
bricklayers that in refusing to work with Love, he was acting in his capacity as job
steward . Assuming that he made such disclaimer , it would be unrealistic to suppose
11 It is undisputed, and I find, that all the bricklayers on the school job, other than
Love, were on December 27 members of Respondent in good standing.
12 Presumably, not including Love.
13 This was the place where the men regularly reported before starting work
14 LaSpina's admission that he told Bierschmitt that the bricklayers would not work
with Love was corroborated by Dnistran, the Company's "carpenter superintendent" and
a member of a carpenters' union.
1s Bianchi would not even admit at first that his decision not to work with Love was
related to his dues delinquency.
LOCAL 11, BRICKLAYERS , MASONS & PLASTERERS , ETC. 379
that the other bricklayers would disassociate LaSpina's action as an individual from
his action as a steward, when such action, as here, fell within the area of his duties as
steward. Paragraph 21 of the contract then in effect between the Respondent and the
Company provides as follows:
The job steward shall blow a whistle at starting and quitting time. The steward
shall blow the whistle and men shall leave the shanty at starting time.
There is no evidence that on December 27 LaSpina gave the other bricklayers any
signal to start work, and, under the circumstances the inference is warranted that he
did not. Moreover, even if he did, his own announced refusal to start work, whether
professing to act in his individual or official capacity, would effectively countermand
any such signal.
Accordingly, even if one accepts LaSpina's version of the events of December 27,
the conclusion would be inescapable that, by reason of his authority as job steward,
LaSpina's refusal to work with Love was necessarily regarded by the other brick-
layers as union, rather than individual, action, and that the Respondent was therefore
responsible for the work stoppage.16
There is, moreover, ample basis for inferring that LaSpina or Burke expressly
instructed the other bricklayers not to work with Love. The basis for such inference
consists in (1) Burke's admitted warning to Craib on December 26 that the bricklayers
might quit work if Love remained on the job, coupled with his threat that, if Craib
took no action with regard to Love, Burke would attend to the matter in his own way;
(2) Love's testimony that on December 26 LaSpina told him that Burke's orders were
that if Love came to work the next day, LaSpina and the other men were not to
work with him; and (3) Bierschmitt's testimony that on the same day LaSpina
intimated to him that the men would not work with Love on the 27th. I credit (2) and
(3), notwithstanding LaSpina's denials, since his demeanor did not impress me as
favorably as that of Love and Bierschmitt, and since (2) and (3) are consistent
with each other and with (1), which is not controverted. Accordingly, I find that
LaSpina on December 27, pursuant to Burke's instructions, not only, as he admitted,
announced his own refusal to work, but also directed the other bricklayers not to
work with Love.
It is concluded, therefore, that Respondent caused Love to be discharged on
December 27 because of his ouster as a member of Respondent, and that Respondent
thereby violated Section 8 (b) (1) (A) and (2) of the Act.
Procedural Matters
At the close of the hearing the Respondent moved to dismiss the complaint on the
grounds, inter alia, that (1) there was a fatal variance between the charge and the
complaint, and (2) the charge was prematurely filed in that it antedated Love's dis-
charge. I denied these motions and, as no reference thereto is made in Respondent's
brief, they have presumably been abandoned. However, it may not be inappropriate
to set forth the reasons for my rulings.
The charge recites that the Respondent violated Section 8(b)(1)(A) and (2)
of the Act in that "on or about December 19" it caused the Company to discharge
Love because his membership in Respondent was "terminated for reasons other than
his failure to tender the periodic dues and the initiation fees uniformly required as a
condition of membership" in the Respondent. The charge further alleges illegal
restraint and coercion of employees by the foregoing and "other acts and conduct."
The complaint alleges in effect that the Respondent violated Section 8(b)(1)(A) and
(2) of the Act in that since on or about December 27, it has caused and attempted
to cause the Company to discharge Love, and refuse to reinstate him, because "he
failed to maintain membership in Respondent." While the complaint, unlike the
charge, does not specify the reason for Love's loss of membership, that fact does not
16 Even the mere fact that LaSpina condoned the decision of the other bricklayers would
suffice to implicate the Respondent. Section 4 of the agreement between Respondent and
the Company prescribes a procedure for resolving any differences between the parties and
provides that "all work shall continue without interruption" pending resort to such pro-
cedure As such procedure had not been invoked here, it is clear that the work stoppage
of December 27 was in breach of the foregoing clause, and it was the responsibility of
Respondent and its agents to prevent or terminate such stoppage Accordingly, LaSpina's
admitted acquiescence in the stoppage, coupled with the failure of the Respondent to dis-
avow or repudiate it, would in itself suffice to establish Respondent's responsibility there-
for See D L Harrison Company, 134 NLRB 776, 785; Combustion Engineering, Inc,
130 NLRB 184; South Texas Building Company, 129 NLRB 971.
380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
render the complaint fatally inconsistent with the charge. Insofar as the record
shows that the reason for Love's ouster from the Respondent was his dues delinquency,
there was at most here a variance between the proof and the allegation in the charge
that Love's membership was terminated for reasons other than dues delinquency.
However, as there was no applicable union-security clause here, the reason for Love's
loss of union membership was immaterial, and the reason given in the charge was
therefore mere surplusage. In view of this, and, in any event, in view of the limited
function of the charge,17 I find no fatal variance here.
As for Respondent's contention that the charge was premature, it is true that it was
dated December 22, and filed on December 26, and alleged that Love had already been
discharged "on or about December 19," whereas he was not in fact discharged until
December 27, the day after he filed the charge. However, on December 19, Burke,
as found above launched a campaign to secure Love's discharge. The issue thus
posed is whether a charge alleging the unlawful causing of a discharge and "other
acts" of illegal restraint and coercion, which is filed after the initiation of efforts to
cause such discharge, but I day before the actual discharge, is a premature allegation
of unlawfully causing a discharge. In the Fant Milling case, supra,ia the Court held
that it was proper for the Board to adjudicate unfair labor practices which were
not alleged in the charge, but which were (1) related to the unfair labor practices
alleged in the charge and (2) grew out of them while the proceeding was pending
before the Board. Here, there is no difficulty in finding that the allegation in the
complaint of a union-caused discharge is sufficiently related to the charge. This
is true even if one disregards the fact that the complaint alleges the same sort of
violation as is recited (albeit prematurely) in the charge, since it is proper to view
the language of the charge (including the "other acts and conduct" clause mentioned
above) as broad enough to encompass any action by the Respondent tending to coerce
Love in the exercise of his right not to maintain his membership in the Respondent,
including any efforts by Respondent to secure his discharge. Thus viewed, the
charge, with its implicit allegation of an unlawful attempt to cause a discharge on
December 19, would seem to bear sufficient kinship to the complaint, with its allega-
tion of the accomplishment of such discharge a week later, as to meet the "relationship"
test of the Fant Milling case. Moreover, as the December 27 discharge was the
foreseeable culmination of the campaign launched on December 19 by Burke to secure
such discharge, I find that the unfair labor practices alleged in the complaint "grew
out of" the events of Deember 19, at which the charge is manifestly directed.19
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 the Company described in section I, above, have a
close, intimate, and substantial relation 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.
V. THE REMEDY
It having been found that the Respondent engaged in unfair labor practices in
violation of Section 8(b)(1) (A) and (2) of the Act, it will be recommended that
the Respondent cease and desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act.
17A charge is not a pleading, its sole function being to set in motion the Board's in-
vestigative machinery. See N L R B. v Pant Milling Company, 360 U S 301
1s See, also, Alto-Gravure, 124 NLRB 1027, footnote 1 ; Jamel, Inc, 129 NLRB 1191,
1197, footnote 11.
1e Although Respondent's brief makes no reference to, the motion discussed in the text
above, it does cite the erroneous reference in the charge to a discharge "on or about Decem-
ber 19," as militating against Love's credibility. However, at the time of the execution
of the charge (December 22), Love knew that Burke was seeking his discharge, had taken
leave from his job, and had made unsuccessful efforts to placate the Respondent He may
well have believed on December 22 that he would not be allowed to return to work on
December 26, the next working day. While this particular fear proved unjustified, the
events of that day, especially LaSpina's warning of a stoppage If he worked the next day,
could only have served to confirm his apprehensions. Moreover, the Board's file indicates
that the charge was filed early in the morning of December 26, presumably before Love
reported for work and learned that he would be permitted to work that day.
Under all the circumstances, I am not convinced that Love acted in bad faith or from
any malicious motive
LOCAL 11, BRICKLAYERS, MASONS & PLASTERERS, ETC. 381
It has been found that the Respondent unlawfully caused Love to be discharged
on December 27, 1962. I shall recommend that the Respondent:
1. Notify the Company forthwith in writing that it has no objection to Love's
employment, and simultaneously serve a copy of such notice on Love.
2. Make Love 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 Company, absent any
discrimination, less his net earnings (Crossett Lumber Co., 8 NLRB 440, 497-498)
during said period. Such net backpay shall be computed on a quarterly basis in
the manner established by the Board in F. W. Woolworth Co, 90 NLRB 289, to-
gether with interest at 6 percent per annum as provided in Isis Plumbing & Heating
Co., 138 NLRB 716.
As the Respondent's unfair labor practices found herein go to the heart of the
Act, it will be recommended that the order contain a broad injunction against any
form of restraint or coercion by the Respondent.
Upon the basis of the above findings of fact, and upon the entire record, I adopt
the following:
CONCLUSIONS OF LAW
1. Cooper and Craib, Inc., is an employer engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act.
2. Respondent is a labor organization within the meaning of Section 2(5) of the
Act.
3 At all times material herein James Burke and Guy LaSpina were agents of
the Respondent, within the meaning of Section 2(13) and Section 8(b) of the Act.
4. By attempting to cause, and causing, the Company to discharge Walter Love
for discriminatory reasons, in violation of Section 8(a) (3) of the Act, the Respond-
ent has 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.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, it is
recommended that Local 11, Bricklayers, Masons and Plasterers International Union
of America, AFL-CIO, its agents, officers, representatives, successors, and assigns,
shall:
1. Cease and desist from:
(a) Causing or attempting to cause Cooper and Craib, Inc., to discriminate against
Walter Love or any other employee in violation of Section 8(a)(3) of the Act.
(b) In any other manner restraining or coercing employees in the exercise of their
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, as authorized by Section 8(a)(3) of the Act.
2. Take the following affirmative action, which is deemed necessary to effectuate
the policies of the Act:
(a) Make Walter Love whole for any loss of earnings he may have suffered
because of the discrimination against him, in the manner set forth in the section of
the Intermediate Report entitled "The Remedy."
(b) Notify Cooper and Craib, Inc., immediately, in writing, that Respondent has
no objection to the employment of Walter Love, and simultaneously serve a copy
of such notice upon Love.
(c) Post at Respondent's office and meeting hall in Rochester, New York, copies
of the attached notice marked "Appendix." 20 Copies of such notice, to be fur-
nished by the Regional Director for the Third Region, shall, after being duly signed
by an authorized representative of the Respondent, be posted immediately upon
receipt thereof, and be maintained by it for a period of 60 consecutive days there-
after in conspicuous places, including all places where notices to its members are
customarily posted. Reasonable steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered by any other material.
(d) Promptly mail to said Regional Director signed copies of the Appendix for
posting, the Company willing, at its jobsites in Rochester, New York.
211f 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."
382 DECISIONS CF NATIONAL LABOR RELATIONS BOARD
(e) Notify the Regional Director for the Third Region , in writing , within 20 days
from the date of the receipt of this Intermediate Report, as to what steps the
Respondent has taken to comply herewith 21
21 If 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 LOCAL 11, BRICKLAYERS, MASONS AND PLASTERERS
INTERNATIONAL UNION OF AMERICA, 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 Labor Management
Relations Act, we hereby notify our employees that:
WE WILL NOT cause or attempt to cause Cooper and Craib, Inc., to discrimi-
nate against Walter Love or any other employee , in violation of Section 8(a) (3)
of the Labor Management Relations Act.
WE WILL NOT in any other manner restrain or ;oerce employees in the exer-
cise of the rights guaranteed by Section 7 of the aforenamed 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 Sec-
tion 8 (a) (3) of that Act.
WE WILL make Walter Love whole for any loss of pay he may have suffered
as a result of the discrimination against him.
WE WILL notify Cooper and Craib, Inc., that we have no objection to the
employment of Walter Love, and we will serve him with a copy of such notice.
LOCAL 11, BRICKLAYERS , MASONS AND PLASTERERS
INTERNATIONAL UNION OF AMERICA, 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.
Employees may communicate directly with the Board's Regional Office, Fourth
Floor, The 120 Building, 120 Delaware Avenue, Buffalo, New York, Telephone
No. TL 6-1782, if they have any question concerning this notice or compliance with
its provisions.
The Boeing Company and International Brotherhood of Electri-
cal Workers, Local 217, AFL-CIO, Petitioner. Case No. 27-RC-
2317. September 5, 1963
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Hearing Officer Clinton M.
Elges.l The Hearing Officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Upon the entire record in this case the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
1 The petition was filed on September 4, 1962 , but was administratively dismissed by the
Regional Director The dismissal was timely appealed to the Board by the Petitioner, and
on February 7, 1963, the Board directed the Regional Director to hold a hearing to resolve
certain factual Issues raised by the appeal . After the hearing was held, the Regional
Director referred the case to the Board for decision.
144 NLRB No. 47.