Operative Plasterers' and Cement Finishers', Etc.

National Labor Relations Board - Board Decisions

Oct 25, 1954

110 N.L.R.B. 463 (N.L.R.B. 1954)

OPERATIVE PLASTERERS' AND CEMENT FINISHERS', ETC. 463
fusal in the course of their employment to perform any services for their em-
ployers, where an object thereof is to force or require any employer or person
to'cease doing business with Pittsburgh Plate Glass Company.
BROTHERHOOD OF PAINTERS , DECORATORS , AND PAPER-
HANGERS OF AMERICA, LOCAL No. 193, AND DIS-
TRICT COUNCIL No. 38 OF BROTHERHOOD OF PAINT-
ERS, DECORATORS , AND PAPERHANGERS OF AMERICA,
AFFILIATED WITH A F. OF L.,
Labor Organization.
Dated---------------- By----------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof , and must not
be altered , defaced , or covered by any other material.
OPERATIVE PLASTERERS' AND CEMENT FINISHERS' INTERNATIONAL AS-
SOCIATION, LOCAL 555, AFL and LEE E. PARKER. Case No. 36-CB-
90. October 25,1954
Decision and Order
On June 8, 1954, Trial Examiner James R. Hemingway issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices in violation of Section 8 (b) (1) (A) and 8 (b) (2) of the
Act, and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the copy of the Intermediate
Report attached hereto. Thereafter, the Respondent filed exceptions
to the Intermediate Report and a supporting brief.
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate'Report, the exceptions and brief, and the entire record in this case,
and hereby adopts the Trial Examiner's findings, conclusions,' and
recommendations.a
Order
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent , Operative Plasterers' and
Cement Finishers ' International Association , Local 555, AFL, its
officers, representatives , agents, successors , and assigns , shall:
'We find, as did the Trial Examiner, that Respondent unlawfully prompted the dis-
crimination against employee Lee it Parker. However, in reaching this conclusion, we
deem it unnecessary to pass upon the existence of an illegal "tacit undeistanding" between
Respondent and Teller Construction Co
2 We shall , without passing upon the propriety of the Trial Examinei 's recommended
order, substitute therefor the Board' s usual older in this type case. See, e. g, Local 257„
Brotherhood of Painters, Decorators aoid Paperhangers of America, etc, 109 NLRB 821.
110 NLRB No. 79.
464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from :
(a) Causing or attempting to cause Teller Construction Co., its
officers, agents, successors, or assigns, or any other employer, in viola-
tion of Section 8 (a) (3) of the Act, to discriminate in regard to the
hire and tenure of employment or any term or condition of employ-
ment of Lee E. Parker, or any other employee, because lie is not a
member of the Respondent.
(b) In any other manner restraining or coercing employees of
Teller Construction Co., its successors or assigns, or of any other eln-
ployer, in the exercise of their right to engage in, or to refrain from
engaging in, concerted activities, as guaranteed in Section 7 of the
Act, except to the extent that such right may be affected by an agree-
ment 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 the Board finds will
effectuate the policies of the Act :
(a) Notify Lee E. Parker and Teller Construction Co., in writing,
that it has no objection to the employment of Lee E. Parker as a cement
finisher if, as, and when the said Teller Construction Co. may have
work within the territorial jurisdiction of the Respondent.
(b) Make Lee E. Parker whole for any loss he may have sustained
as a result of the discrimination against him in the manner set forth
in the Intermediate Report.
(c) Post at its business offices and meeting halls in Portland, Ore-
gon, copies of the notice attached to the Intermediate Report and
marked "Appendix." 3 Copies of said notice, to be furnished by the
Regional Director for the Nineteenth Region, shall, after having been
duly signed by an official representative of the Respondent, be posted
by it immediately upon receipt thereof and maintained by it for a
period of sixty (60) consecutive days in conspicuous places, includ-
ing all places where notices to members are customarily posted.
Reasonable steps shall be taken by the Respondent to insure that the
notices are not altered, defaced, or covered by any other material.
(d) Mail to the Regional Director for the Nineteenth Region
signed copies of the above notice, for posting, the Company willing,
at the place of business and construction projects of Teller Construc-
tion Co., in places where notices to its employees are customarily
posted.
(e) Notify the Regional Director for the Nineteenth Region, in
writing, within ten (10) days from the date of this Order, what steps
have been taken to comply herewith.
s This notice shall be modified by substituting the words "A Decision and Order" for
the words "The Recommendations of a Trial Examiner ." In the event that this Order is
enforced by a decree of a United States Court of Appeals , there shall be substituted for
the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order."
OPERATIVE PLASTERERS' AND CEMENT FINISHERS', ETC. 465
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Lee E. Parker, an individual, hereinafter called Parker, filed a charge on October
12, 1953, against Operative Plasterers' and Cement Finishers' International Asso-
ciation, Local 555, AFL, herein called the Respondent, on the basis of which charge
a complaint was duly issued alleging that the Respondent had engaged in and was
engaging in unfair labor practices affecting commerce within the meaning of Section
8 (b) (1) (A) and (2) of the National Labor Relations Act, as amended, 61 Stat.
136, herein called the Act. Copies of the complaint, charge, and notice of hearing
were duly served on the Respondent and Parker.
In substance the complaint, issued January 26, 1954, alleged that on or about July
1, 1953, the Respondent caused Parker's employer, Teller Construction Co., herein
called Teller, to change Parker's employment from the job of cement finisher to that
of laborer because Parker was not a member of the Respondent and for reasons
other than his failure to tender periodic dues and initiation fees, thereby causing
Teller to discriminate against Parker in regard to hire and tenure of employment and
to encourage membership in the Respondent in violation of Section 8 (a) (3) of
the Act; and that the Respondent restrained and coerced employees in the exercise of
the rights guaranteed in Section 7 of the Act. The Respondent's answer, dated Feb-
ruary 13, 1954, denied the commission of the unfair labor practices alleged.
Pursuant to notice, a hearing was held at Portland, Oregon, on February 15 and
16, 1954, before me as the duly designated Trial Examiner. The General Counsel
for the National Labor Relations Board (the latter being herein called the Board)
and the Respondent were represented by counsel, and counsel for Teller appeared
as an observer. The parties were afforded full opportunity to examine and cross-
examine witnesses and to introduce relevant evidence. At the conclusion of the
General Counsel's case, Respondent's counsel moved to dismiss the complaint on
grounds of commerce as well as on the merits. The motion was denied. At the
conclusion of the hearing, the Respondent renewed its motion to dismiss and ruling
was reserved thereon. It is now denied. Oral argument was waived by the parties
but, on request, a date was fixed for the filing of briefs. A brief was filed only by the
Respondent.
From my observation of the witnesses, and upon the entire record in the case, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF TELLER
Teller is a partnership formed in 1940 and having its principal place of business
in Portland, Oregon. It is engaged in the construction of various types of commer-
cial structures. During 1953, it engaged in such business in the States of Oregon,
Washington, California, and Montana. During that period it was performing work
on fish hatcheries in the State of Washington for Federal Fish and Wild Life under
two contracts with the United States, for a combined sum of $110,000.1 Likewise in
that period, it performed repair and construction work for the Standard Oil Com-
pany of California, at various locations in the State of Washington, having a value of
from $10,000 to $15,000. In Montana, in 1953, Teller constructed a concrete spill-
way for Federal Fish and Wild Life having a value of about $30,000. In California,
in 1953, Teller constructed a station for the Standard Oil Company having a value
of about $10,000. In the performance of its out-of-State contracts Teller transported
by its own trucks from Oregon tools and such supplies as bolts, nails, and forms,
having a value of about $5,000, and it caused to be shipped in interstate commerce to
jobs in the State of Washington about $5,000 worth of reinforcing steel and to Mon-
tana about $1,000 worth of reinforcing steel. Most of the lumber and cement used
were purchased near the location of the work and certain equipment was hired lo-
cally on an hourly basis. Laborers for the work would be hired locally except for
the foreman and on some jobs a cement finisher, and 1 or 2 others who were
specialists in their work.
During 1953 Teller performed construction work in the State of Oregon for the
Standard Oil Company of California, having a value of $400,000; for the Oregon
State Highway Commission, having a value of $80,000; for the Union Pacific Rail-
'One contract, for $50,000, was half completed in 1952 and was finished in 1953.
A $60.000 contract was performed entirely in 1953.
338207-55-vol 110-31
466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
road , having a value of $75,000; and smaller contracts with the Shell Oil Company
and Signal Oil Companies , having a combined value of $25,000.
The Respondent denies that Teller is engaged in commerce within the meaning of
the Act. On all the evidence, however, I find that the activities of Teller do sub-
stantially affect interstate commerce and that it would effectuate the policies of the
Act to assume jurisdiction in this case.2
IL THE LABOR ORGANIZATION INVOLVED
The Respondent admits that it is a labor organization as defined in the Act. It
admits to membership cement finishers , some of whom Teller employs.
III. 1HE UNFAIR LABOR PRACTICES
The Discrimination Caused by Respondent
1. Parker's employment history
Lee E. Parker sad been a member of the Respondent until, in 1951, he was ex-
pelled. Parker had first worked for Teller as a cement finisher in 1950 and had
thereafter been used by Teller on various jobs in the same capacity. Teller had
always found his work to be satisfactory.
In the latter part of May 1953, Parker telephoned Theodore Johnson, one of
the partners in Teller, and asked for a job as cement finisher. Johnson asked
Parker if he was "straight" with the Respondent yet. Parker replied that he was
as straight as he ever would be. Johnson, knowing that Parker was not then a
member of the Respondent, told Parker he would call him back in a couple of days.
Parker said he needed work immediately and that he was not above doing a laborer's
work. Johnson asked if he could get a laborer's card (i. e., membership card in
the Laborers' union). Parker said he thought he could, and Johnson told him to
come in the next morning. Parker was employed by Teller on May 27, 1953, as
a laborer. After working on several projects as a laborer, he was put on the Stand-
ard Oil office building project. Parker told Willis Saucerman, the foreman on the
job, that he was a cement finisher working as a laborer. Saucerman told Parker
that there was no finishing to be done at that time but that Parker would be put on
that work when they started stripping (removing forms after concrete had set).
About July 1, Parker was given work normally done by cement finishers. Most of
the work he did during the remainder of his time on that project was on grinding,
an abrasive process by means of a power tool to remove the roughness left on the
surface of the hardened cement after the forms are removed. Although this is classi-
fied by the American Federation of Labor as a cement finisher's work as distin-
guished from a laborer's work, the cement finishers find it a disagreeable type of
work because of the dust created, which can be injurious to health, and when they
do the work they normally rotate on it. Teller was using laborers on this work
during July 1953. It is not entirely clear whether Teller used these laborers on
the grinding work because of a belief that it was a laborer's work or because of a
shortage of cement finishers. Of the laborers doing grinding work only Parker
received pay at the cement finisher's rate of $2.60. The laborer's rate was $2 or
$2.10, but some laborers were given 25 cents more while on grinding. Johnson
explained Parker's receipt of the cement finisher's rate by saying that it was a pre-
mium rate for laborers: "He [Parker] put it down on his time slip, and we thought
he was earning it. So, we paid it." Foreman Willis Saucerman testified that Parker
got a higher rate because he was more experienced on that work than the others.
Although deeming Parker qualified as a cement finisher, Johnson testified that he
did not classify Parker as a cement finisher because he did not have a membership
card in the Respondent. But before an objection raised by the Respondent, as here-
inafter related, Teller did give Parker such cement finishing work as was available.
In the summer of 1953, cement finishers were in short supply, and Teller had a
standing order in with the Respondent for men When the Respondent was unable
to supply men, it did not object to Teller's use of laborers on cement finishing work,
including the grinding job.3
3 Cement Masons Local No 555, 102 NLRB 1408; Paul W. Speer, Inc, 94 NLRB 317.
3 Foreman Saucerman testified that he hired cement finishers only through the Respond-
ent, but that when the Respondent was unable to furnish men, the Employer could use
laborers, carpenters, steel men, or anybody else on cement finishing. He testified it was
"standard practice" to classify a man as a cement finisher only if he was a member of
the Respondent.
OPERATIV1 PLASTERERS' AND CEMENT FINISHERS', ETC. 467
Toward the latter part of July, as a result of a request by Teller for cement fin-
ishers, Carroll Keller, the Respondent's business agent, dispatched two cement fin-
ishers named Joe Mangogna and Ed Boone. Keller in his testimony, did not identify
the person who telephoned him for finishers. Leo Reichel, finisher foreman,4 had
also recently come on this project. Boone and Reichel worked at grinding on either
side of Parker for a short while, but Boone was discharged after a few days. Man-
gogna continued for a while, but on July 24, 1953, Mangogna and Reichel both
became uneasy about working with Parker. Mangogna told Parker that he could
not work with him as he knew he would be fined, as Reichel once had been, and
that he would rather quit and buck the hall than take a chance on a fine.
On a date not fixed but which I find was about Monday, July 27, 1953, Reichel
telephoned Keller and, among other things, told Keller that he had had doctor's
orders not to run the grinder and asked Keller to issue permits to laborers to do the
work. Keller said that he had no authority to issue a permit to anyone unless he
was accepted as a member or potential member of the Respondent, that grinding
was a cement finisher's work, and that Reichel should use cement finishers on it.
He suggested that they should rotate the work so that they would not have to stay
on the job too long at a time.
At about the same time or perhaps a little before Reichel's conversation with
Keller, Mangogna went to the Respondent's hall, told Keller that Parker was on the
job, and that he did not think that he, himself, would go back on the job because
he thought there would be a little trouble. Keller denied that Mangogna told him
what kind of work Parker was doing but he admitted that Mangogna told him that
laborers were doing grinding work. Keller told Mangogna not to let laborers do
grinding work, that it was a finisher's work, and that they should rotate it.
After his telephone conversation with Keller, Reichel told Foreman Saucerman
that he had had a telephone conversation with Keller, that grinding was a finisher's
work, and that laborers were not to be doing it .5 As a result of this notice Saucer-
man, who knew that Parker was not then a member of the Respondent, therefore 6
took him and his brother, who was also a laborer, off the job and told them to go
to Teller's shop. When Parker asked why, Saucerman said that there had been a
little stink, that Parker should take a broken grinder to the shop for repair and take
his brother with him, that Johnson had some finishing for him to do in the shop.
Parker asked if the Respondent had anything to do with his being taken off the job.
Saucerman answered noncommittally that he could not put himself on a limb and
that Johnson had some work in the shop anyway. Parker and his brother arrived at
the shop at about 10 a. m. that morning, and when they reported to Johnson, the
latter, according to Parker's credited tesimony, laughed and said, "Well, they finally
caught up with us, didn't they?" Johnson then assigned them to work at the shop.
Parker worked at the shop until the next morning and was paid the finisher's
rate of $2.60. Then he was sent to work on a high school building as a labor
foreman at the rate of $2.25 per hour. He unsuccessfully applied for work on that
project as a cement finisher and quit the job on August 9 as a result of dissatisfaction
with his earnings.
2. Concluding findings
The Respondent contends that the Union did not attempt to cause discrimination
against Parker, that it was interested only in protecting its scale of pay for finishers
by asserting its proper jurisdiction over cement grinding, and that its requirement
that cement grinding be done by finishers was based merely on job classification
and not on union membership; so that Parker's removal from the job was occasioned
by the fact that he was a laborer and not on the fact that he was not a member of
the Respondent.
With respect to the contention that the Respondent was concerned only with seeing
that workmen capable of doing cement finishing should receive the scale of pay
for such work, I note that laborers were doing the grinding and apparently were
doing it to Teller's satisfaction; that Keller made no effort to learn what they were
being paid or whether they were sufficiently skilled; and that, without any such
investigation, Keller told Mangogna not to let laborers do grinding work, as it was
a finisher's work, and told Foreman Reichel that he should use finishers on that
work. I find no merit in this contention of the Respondent.
4 See the earlier case involving Parker and Respondent, 102 NLRB 1408, where Reichel,
as foreman, played a part in Parker's discharge.
5 On July 29, Johnson telephoned Keller to verify this and Keller confirmed it.
6 Saucerman testified that he does not transfer a man from the classification of laborer
to that of cement finisher unless he holds a Cement Finisher's card.
468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent contends that Keller used the words "laborer" and "finisher" in
a generic sense and not as meaning members of one union or another. The evidence
does not support this contention. It is true that if the Respondent was unable, on
request, to furnish cement finishers, it made no objection to the employment of
others for that work. But Keller testified that whoever wanted to do cement finishing
would have to make application to join the Respondent; that if cement finishers
were available, the Respondent would ask the Employer to have them do the work;
and that the Respondent would not furnish men to a contractor who did not live
up to the Respondent's rules and regulations. I am convinced and find by this
and all the evidence in the case that when Keller told Foreman Reichel that grinding
was a cement finisher's work and that Reichel should use cement finishers on that
work, he used the term "cement finishers" as synonymous with "member" of the
Respondent.
The Respondent also contends that no discrimination was intended because the
working rules involved in the earlier case 7 were amended and that with the expira-
tion of its contract with employers at the end of 1952, the rules became ineffective
and that there was no contract and there were no rules in effect in 1953. Keller
testified that after the order of the Board in the earlier case, the Respondent told
its members not to abide by the rules that "had been held illegal." The date of the
Board's order was February 17, 1953. If, in fact, there were no rules in effect
in 1953, there would be no reason to give such instructions.8 No notice was given
to Teller that the Respondent's rules were not operative in 1953. Johnson apparently
assumed that they were. He testified that Teller followed the Respondent's rules
as its own but that Teller did not always know what they were until told by the
Respondent.
Although working rules are apparently designed to supplement a collective-
bargaining agreement and, in the absence of a contract in 1953, were not formally
in effect during that time, I am convinced by the evidence in this case that certain
rules of the Respondent were expected by it to be followed by contractors even in
the absence of a collective-bargaining agreement, that among these rules was one
that required the contractor to give preference to the Respondent's members, when
available for work, on all work characterized as cement finishing, that failure on the
part of a contractor to give effect to such rule would result in the Respondent's
refusal to honor the contractor's requests for cement finishers when they were
needed, and that Teller so understood. It follows that whether or not formal rules
were in existence in 1953, the Respondent and Teller had a tacit understanding and
maintained conditions of employment giving illegal preferential hiring rights to the
Respondent's members .9
The Respondent seems to assume that, because the AFL awarded it "jurisdiction"
over cement grinding, it was entitled to require employers to give effect to that award
and to require them to employ only cement finishers on cement grinding work.
As no employee was recognized by the Respondent or by Teller as a cement finisher
unless he was a member of the Respondent, the latter was claiming a preferential
right to such work for its members. In the absence of a lawful union-security
contract, the Respondent had no right to enforce its jurisdiction over cement
grinding.10
As in the earlier case, the Respondent claimed that it had no intention of causing
a discharge or change in rate of pay for Parker and that it had frequently informed
the membership that they should not refuse to work with Parker." It is immaterial
whether or not the Respondent intended to affect the employment status of any
specific employee when it insisted that grinding was work to be done by its members,
7 Cement Masons Local No 555, 102 NLRB 1408.
8It may be that Keller confused the Board's order and the Intermediate Report of the
Trial Examiner The latter was issued on April 15, 1952 On October 8, 1952, the
Respondent revised its rules to omit those which had been discussed in the Intermediate
Report. Among the rules which were not mentioned in that Intermediate Report and which
reappeared in the revised rules is the following:
Sec. 21. All screeds for top surfacing, such as floors, ground floors, curbs and gutters,
porch steps and sidewalks must be set by a Cement Mason who is a member of this
Local
N L R B. v. Construction Specialties Co. and Int'l. Ass'n. of Heat and Frost Insulators
and Asbestos Wkrs, Local No 28, A F. L., 208 F. 2d 170 (C. A. 10)
10 South Texas Chapter, Associated General Contractors of America, Inc., 107 NLRB 965.
11 There is reason to believe that these instructions were understood by members of the
Respondent to mean that they should not refuse to work on the same construction project
with Parker when Parker was not doing finishing work.
OPERATIVE PLASTERERS' AND CEMENT FINISHERS', ETC. 469
when available, to the exclusion of others.12 The fact that Teller was amenable
to the Respondent's direction is likewise immaterial. Absent the Respondent's
insistence that grinding be done by cement finishers and Teller's compliance there-
with, Parker would not have been taken off the grinding job on the Standard Oil
job and would have been used as a cement finisher so long as there was need for
any, which Johnson testified was until November 1953. It follows, therefore, and
I find that the Respondent did cause Parker's Employer to discriminate against
him because he was not a member of the Respondent and that the Respondent
restrained and coerced employees in the exercise of their rights guaranteed in Sec-
tion 7 of the Act, in violation of Section 8 (b) (1) (A) and (2) of the Act.
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 Teller 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
Having found that the Respondent has engaged in unfair labor practices within
the meaning of Section 8 (b) (1) (A) and 8 (b) (2) of the Act, I shall recommend
that it cease and desist therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
As it has been found that the Respondent caused Teller to remove Parker dis-
criminatorily from cement finishing work in violation of Section 8 (a) (3) of the
Act, I shall recommend that the Respondent make Parker whole for any loss of pay
he may have suffered because of the discrimination against him. As it appears that
cement finishers were employed by Teller until November 1953 on the Standard Oil
project, Parker would in all probability have continued on the job until then but for
the discrimination against him. He should therefore be reimbursed for loss of
pay for that period. The precise termination date in November may be determined
in the compliance stage of this proceeding. I shall, accordingly, recommend that
the Respondent pay Parker a sum of money equal to the amount he would normally
have earned as wages on cement finishing work from July 27, 1953, to the date in
November 1953 when cement finishers ceased to be needed on the Standard Oil
project.
Upon the foregoing findings of fact, and the entire record in the case, I make the
following:
CONCLUSIONS OF LAW
1. Operative Plasterers' and Cement Finishers' International Association, Local
555, affiliated with the American Federation of Labor, is a labor organization within
the meaning of Section 2 (5) of the Act.
2. Teller Construction Co. is an Employer within the meaning of Section 2 (2)
of the Act.
3. By causing Teller Construction Co. to discriminate in regard to the nature and
tenure of employment of Lee E. Parker in violation of Section 8 (a) (3) of the
Act, the Respondent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (b) (2) of the Act.
4. By restraining and coercing employees employed by Teller Construction Co.
in their exercise of the rights guaranteed in Section 7 of the Act, the Respondent has
engaged in and is engaging in unfair labor practices within the meaning of Section
8 (b) (1) (A) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
(Recommendations omitted from publication.]
'a Sub Grade Engineering Compancy, 93 NLRB 406
Appendix
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our members that:
WE WILL NOT cause or attempt to cause Teller Construction Co., or any
other employer, except in accordance with the provisions of Section 8 (a) (3)
470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the Act , to discriminate in regard to the hire and tenure of employment or
any term or condition of employment of Lee E . Parker or of any other em-
ployee because he is not a member of this labor organization.
WE WILL NOT in any other manner restrain or coerce employees of Teller
Construction Co. in the exercise of their right to engage in or to refrain from en-
gaging in concerted activities as guaranteed in Section 7 of the Act , except to
the extent that such right may be affected by an agreement requiring membership
in a labor organization as a condition of employment , as authorized in Section
8 (a) (3) of the Act.
WE WILL make Lee E . Parker whole for any loss of pay he may have suffered
as a result of the discrimination against him.
OPERATIVE PLASTERERS ' AND CEMENT FINISHERS'
INTERNATIONAL ASSOCIATION , LOCAL 555, AFL,
Labor Organization.
Dated---------------- By------------------------------------ ---------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered , defaced , or covered by any other material.
SHIRLINGTON SUPERMARKET , INC., AND ITS SUBSIDIARIES, SHIRLEY
FOOD STORE No. 1, INC., SHIRLEY FOOD STORE No. 2, INC., SHIRLEY
FOOD STORE No. 5, INC., SHIRLEY FOOD STORE No. 6, INC., AND WEST-
MONT SUPERMARKET , INC. and LOCAL 1501 , RETAIL CLERKS INTER-
NATIONAL ASSOCIATION, AFL. Case No. 5-CA-775. October 25,
1954
Order Denying Motion for Review
On July 19, 1954, the Board issued an Order herein denying the
Respondent's motion for reconsideration of the Board's Decision and
Order dated April 29, 1954. On August 6, 1954, the Respondent filed
a motion for review of the Board's Order denying the motion for
reconsideration.
In its motion for reconsideration, the Respondent contended, inter
alia, that the second election held among the Respondent's employees I
was conducted after speeches by both the Respondent and the Union
on company time to massed assemblies of employees within 24 hours
of the election, and therefore that that election should be set aside
under the Peerless Plywood rule? In its Order denying the motion
for reconsideration, the Board found that this contention was a newly
raised objection to conduct affecting the results of the second election,
and as it had not been filed within 5 days of that election as required
by the Board's Rules and Regulations, it was untimely. Accordingly,
the Board did not pass upon the merits of this contention. The Re-
spondent now contends that, despite the fact that this objection was
not timely filed, the Board should nevertheless consider such objec-
tion on the merits, because the Peerless Plywood rule was not then
available as the basis for an objection to that election . In support of
this contention, the Respondent points to cases in which it alleges that
i Case No. 5-RC-1095.
z See Peerless Plywood Company , 107 NLRB 427.
110 NLRB No. 76.