Asbestos Workers, Local 40

National Labor Relations Board - Board Decisions

Jul 30, 1970

184 N.L.R.B. 708 (N.L.R.B. 1970)

708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Association of Heat and Frost Insula-
tors and Asbestos Workers' Local No. 40,
AFL-CIO ( Robert A. Keasbey Co.) and Raymond
Morehouse . Case 3-CB-1277
July 30, 1970
DECISION AND ORDER
BY MEMBERS FANNING, MCCULLOCH, AND BROWN
On February 3, 1970, Trial Examiner Joseph I.
Nachman issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices and recommending that it cease and de-
sist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent filed exceptions to
the Trial Examiner's Decision and a supporting
brief. The General Counsel filed limited exceptions
to the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
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
Trial Examiner's Decision, the exceptions and brief,
and the entire record in the case, and hereby
adopts the findings,' conclusions,2 and recommen-
dations3 of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that the Respondent, International Associa-
tion of Heat and Frost Insulators and Asbestos
Workers' Local No. 40, AFL-CIO, Albany, New
York, its officers, agents, and representatives,
shall take the action set forth in the Trial Examiner's
Recommended Order, as modified below.
In paragraph 1(a) of the Order, and the first and
third indented paragraphs of the notice, substitute
"Armstrong Contracting & Supply Corp " for "C &
S Insulating Company."
' The Respondent's exceptions, in part, are directed to the credibility
findings made by the Trial Examiner it is the Board's established policy not
to overrule a Trial Examiner's resolutions as to credibility unless , as is not
the case here, a clear preponderance of all the relevant evidence convinces
us that they are incorrect Standard Dry Wall Produi ts, Inc , 91 NLRB 544,
enfd 188 F 2d 362 (C A 3)
t In its exceptions, the Respondent contends, inter alia, that even if it did
request the Employer to dismiss Raymond Morehouse, the request was
lawful under the collective-bargaining agreement which required member-
ship in the Respondent as a condition of employment We find no merit in
this contention Aside from other considerations, the Respondent does not
contend , and there is no evidence, that Morehouse was ever informed of
his obligation to join the Union under the contract Philadelphia Sheraton
Corporation, 136 NLRB 888, 896, enfd 320 F 2d 254 (C A 3)
' We find merit in the General Counsel's contention , in its limited excep-
tions, that the Trial Examiner's references to C & S Insulating Company
are erroneous, as the record shows the firm name as Armstrong Contract-
ing & Supply Corp We shall correct the Order and notice accordingly The
Trial Examiner, apparently inadvertently, at one point in his recitation of
the "current facts" refers to Douglas Morehouse as Donald
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOSEPH I. NACHMAN, Trial Examiner: This
proceeding tried before me at Albany, New York,
with all parties present, on November 25 and 26,1
involves a complaint2 pursuant to Section 10(b) of
the National Labor Relations Act, as amended
(herein the Act), alleging that International As-
sociation of Heat and Frost Insulators and Asbestos
Workers' Local No. 40, AFL-CIO (herein Respon-
dent or Union), caused or attempted to cause
Robert A. Keasbey Co. (herein Keasbey or Com-
pany), to discriminate against Raymond Morehouse
in regard to the tenure or terms and conditions of
his employment, in violation of Section 8(b)(2) and
(1)(A) of the Act.3 By answer, Respondent ad-
mitted certain allegations of the complaint, but de-
nied the commission of any unfair labor practice.
The critical issue for decision is whether Respon-
dent's admitted request that' Keasbey terminate
Morehouse was motivated by the fact that the latter
was not a member of the Union or was it solely to
require Keasbey to comply with its contractual
obligation to employ mechanics and helpers only in
a specified ratio. For reasons hereafter stated I find
that Respondent was motivated by the fact that
Morehouse was not a member of the Union, that its
conduct violated Section 8(b)(2) and (I )(A) of the
Act, and I recommend the usual remedial order.
At the trial the parties were afforded full oppor-
tunity to introduce relevant evidence, to examine
and cross-examine witnesses, to argue orally on the
record, and to submit briefs. Oral argument was
waived. Briefs submitted by the General Counsel
and Respondent have been duly considered. Upon
the entire record in the case, including my observa-
tion of the demeanor of the witnesses, I make the
following:
i This and all dates hereafter mentioned are 1969, unless otherwise in-
dicated
2 Issued September 29, on a charge filed May 19
No 8(a)(3) charge was filed hence no complaint issued against
Keasbey
184 NLRB No. 78
FINDINGS OF FACT4
BACKGROUND
ASBESTOS WORKERS, LOCAL 40 709
Asbestos Contractors Association of Albany
(herein Association), is an organization of four
asbestos contractors in the Albany area who em-
ploy members of the Union pursuant to a collec-
tive-bargaining agreement.' The last contract ex-
ecuted August 13, 1965, and effective through
April 30, 1970, contains the following provisions:
ARTICLE III
The ratio of Improvers may equal but not ex-
ceed a ratio of one (I) improver to Four (4)
Mechanics employed in a shop. No Improver
shall execute work unless in company with
Mechanics.
ARTICLE VII
The Employers hereby recognize the Union
as the exclusive bargaining agent for
Mechanics and Improvers who perform any of
the duties as described in Article XI hereof.
ment preference and job retention as either
Group I or Group 11 employees. Employee
shall hire and retain employees in Group I rs
preference to employees in Group II in the
same work classification. However, employers
may hire any employee in a classification
available for work. Employers shall be the sole
judge of the number of the employees necessa-
ry to properly man their jobs and will notify
the Union of the names and dates of all hirings
and lay-offs.
3. In order to assist the employers to comply
herewith, the Union shall maintain a list of
those employees in Group I and Group II who
are out of work. Any person may make appli-
cation to the Union to be placed upon the list
for which he qualifies. Upon request the Union
will notify an employer of the names of the em-
ployees listed. In the event the Union is unable
to locate any employee acceptable to the Em-
ployer, in either classification within forty-
eight (48) hours after any employer's request,
Saturday, Sunday and holidays excepted, the
employer shall be free to secure any employee.
The Union shall also maintain a list of all job
applicants who are available for work and who
do not meet the criteria of either Group I or
ARTICLE XVIII Group II and upon request will notify any em-
All Mechanics and Improvers hereunder of
the Union in the employ of the Employers shall
be members in good standing in the Union dur-
ing the extent of this contract. All Mechanics
and Improvers covered by this agreement
herein after employed by the Employers, shall
make application to the Union on the earliest
date provided by applicable Federal Law after
their employment, or the date of their agree-
ment, which ever is later.6
An addendum to the contract, providing for the
hiring practices to be followed during its term, con-
tains the following provisions:
1. Selection of applicants for referral shall
be on a non-discriminatory basis and shall not
be based on or in any way affected by Union
membership, by-laws, rules, regulations, con-
stitutional provisions, or any other aspects of
obligation of Union membership, policies, or
requirements. The Employers retain the right
to reject any job applicant referred by the
Union notwithstanding any of the conditions
set forth below....
2. In addition to the work classification of
Mechanics and Improver, employees shall be
further classified for the purpose of employ-
No issue of Jurisdiction is presented The facts set forth in pars 2 and 4
of the complaint, which Respondent admitted by its answer, establish that
Keasbey is engaged in commerce , and that the Union is a labor organiza-
tion, both within the meaning of the Act I find these facts to be as pleaded
' The four employer members of the Association are Tn-City Insulating
Company , Johns-Mansville Company , C & S Insulating Company , formerly
ployer of the names of the employees so listed.
5. The categories of the employees are as
follows:
Group I shall include any employee who has
been employed Eight Thousand (8000) hours
or more under a collective bargaining agree-
ment between the Union and Asbestos Con-
tractors Association of Albany as either a
Mechanic or an Improver, and who has passed
a Mechanics examination under the direction
of the Joint Trade Board. The examination
shall be waived for anyone employed as a
Mechanic and otherwise qualified on the effec-
tive date of the addendum .... Group II shall
include any employee who has been employed
for a period of five hundred (500) hours dur-
ing the previous two years under a contract
between the Union and Asbestos Contractors
Association of Albany or who has Eight
Thousand (8000) hours experience at the
trade in the Building and Construction indus-
try. The Trade Board will conduct examina-
known as Armstrong Company, and Keasbey The last mentioned is the
only employer directly involved in this proceeding
' The contract also provides for a trade board, to be composed of an
equal number of representatives of the Union and the Employers, with
authority to investigate and settle disputes arising with respect to the opera-
tion of the agreement
710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions quarterly. Employees shall be eligible for
examination when they satisy the time require-
ment to be classed as Group I employee.
Keasbey has been a member of Association for a
number of years and during that period has em-
ployed asbestos workers pursuant to and in ac-
cordance with the contract then in effect. In prac-
tice, when personnel was required, Keasbey asked
the Union to supply a specified number of
mechanics or improvers,' and the Union supplied
the requested men if it was able to do so. For some
time, however, the Union's membership has been
insufficient to meet the demands upon it for work-
ers. To assist it in meeting such demand, the
Union has called other locals to supply men to
work in Respondent 's jurisdiction, which it calls
"travellers," and has also referred to the employers
some nonunion employees, who sometimes referred
to in the record as "permit men." Among the "per-
mit men " employed by Keasbey were Morehouse
the Charging Party, and his son Douglas, both of
whom had worked continuously for Keasbey since
July 1963, except for illness or voluntary time off.
Both had been referred to Keasbey by Union Busi-
ness Agent Rossworm, and worked for the Com-
pany with Rossworm's full knowledge and consent.
Neither of the Morehouses paid any fees or other
charges to the Union, nor were they ever asked to
do so. Although Raymond Morehouse made no
particular effort to acquire membership in the
Union, the Union has rules requiring that applicants
for membership not be over a specified age, and
that they have a high school diploma or an
equivalency certificate. The evidence shows that
Raymond Morehouse is 53 years old and has
neither a high school diploma nor an equivalency
certificate.
At the end of December 1968, Keasbey had in its
employ 24 men, all referred to it by the Union; 16
of these were members of Respondent, one was a
traveller, and the remaining 7 were nonunion or so-
called permit men. Of the 17 union members so
employed, 12 were classified by the Union as
mechanics, and 5 as improvers. All the nonunion or
permit emplo%ees were also classified by the Union
as improvers.
Current Facts
Late in December 1968, Union Agent Rossworm
telephoned Keasbey Manager Rieth telling the
The term "improver" is synonomous with helper
"According to Union Business Agent Rossworm , all nonunion em-
ployees are improvers A union member must work 4 years as an improver
(which would give him 8 ,000 hours of work required by the union laws),
take an on-the -job test under the supervision of a union mechanic, and
otherwise comply with the Union's bylaws, to qualify as a mechanic Full
dues are paid by member mechanics , while member improvers pay only
half dues and have no vote in the affairs of the Union
" The five so terminated on January 3 were Charles Frye, Ronald Holt,
Charles Warren, Jr , Philip Winney, and Richard Willey
10 The evidence shows Ed Willey and Ed Damm, also a field superinten-
dent for Keasbey, are salaried, do not work with the tools of the trade nor
belong to the Union , assign work to the mechanics and improvers em-
latter that Union men were out of work while
Keasbey had nonunion men on the payroll, and
asked that Reith act accordingly. Although, as
Rieth testified, he needed the men, he directed that
five of the seven permit men then employed by
Keasbey be terminated on January 3,9 the two per-
mit men then retained being Raymond Morehouse
and his son Donald. Why the Morehouses were
then.retained is not articulated in the record.
Late in January Douglas Morehouse, then work-
ing in Burlington , Vermont, telephoned Keasbey's
Field Superintendent Ed Willey (not to be confused
with his brother permit man Richard Willey),
telling Willey that he and his father desired to take
a month off for a Florida vacation.10 Willey ap-
proved the request, saying that taking the time off
was a good idea because the Union was claiming
that some of its members were out of work and that
Morehouse might not be able to work all winter."
Willey told Mrehouse to call him when he returned
and was ready to work. On or about January 29,
Superintendent Damm approached Raymond
Morehouse on the job, and asked the latter if he
would be willing to start his vacation "a little ahead
of time," explaining that the Union was putting "a
little pinch" on Keasbey because union men were
out of work. Morehouse agreed, and he and his son
began their vacation the following day, January 30.
Rossworm admits that having learned that the
Morehouses had not been therefore released by
Keasbey, he called on Rieth on or about January 31
to discuss the matter, and that Rieth told him not to
be concerned because the Morehouses were on an
extended vacation. Rossworm admittedly
responded that as far as he was concerned the
Morehouses were laid off, and that he marked his
records accordingly.
Upon the return of the Morehouses from vaca-
tion about mid to late February, Douglas
Morehouse telephoned Keasbey's Field Superinten-
dent Willey and told the latter that he and his
father were back and ready to work. Willey sent
young Morehouse to a job in the Burlington, Ver-
mont, area, saying that he would try to keep him
there, but didn't know how long he could do so
because the Union was pushing him. Young
Morehouse asked about work for his father and
Willey stated that his father should stay home for a
couple of weeks, and that he (Willey) would get in
touch with him. Young Morehouse went to Ver-
mont where he worked until the week ending about
ployed by Keasbey and reprimand them for improper performance of duty,
grant time off, and have the authority to fire I find them to be supervisors
within the meaning of Sec 2(11) of the Act
" At the hearing Respondent objected to this and other testimony by the
Morehouses as to statements made to them by management officials of
Keasbey as to what the latter had been told by officials of the Union, as
hearsay and not binding on Respondent , and renews the objection in its
brief General Counsel conceded that the objections were well taken, and
that this testimony was not offered to bind Respondent , but for the limited
purpose of explaining the conduct of the parties The testimony was
received for that limited purpose , and I have not considered it in deciding
whether Respondent has engaged in an unfair labor practice
ASBESTOS WORKERS , LOCAL 40 711
March 9, at which time he received a message to
communicate with Willey. Upon doing so, young
Morehouse was told by Willey that he could no
longer work for Keasbey because the Union would
not allow permit men on the job, and that he should
tell his father the same thing, adding that both of
them should apply for unemployment compensa-
tion. Willey's statement to Douglas Morehouse was
apparently prompted by the fact, as Keasbey
Manager Rieth testified, that while young
Morehouse was working in Vermont, Rossworm
called pointing out that class I mechanics were out
of work and asked Rieth to remove young
Morehouse from the payroll. Immediately following
his conversation with Willey, young Morehouse
telephoned Business Agent Rossworm and told the
latter that he and his father were out of work and
wanted their names placed on the Union's referral
register. Rossworm's only reply was "yeah." Except
for the period between the latter part of February
and March 9, when young Morehouse worked in
Vermont, neither he nor his father has been
referred to any job by the Union, nor has either
been employed by any member of Association In
his affidavit given the Board on September 3, Ross-
worm denied that either of the Morehouses com-
municated with him after they went on vacation,
but in his testimony admitted that young
Morehouse telephoned him requesting that he and
his father be placed on the register for employment,
and that he said he would, and further admits that
although he has, since that conversation, referred
approximately six improvers to jobs of members of
Association, he has not referred either of the
Morehouses. Rossworm gave no explanation for
this fact.
Following the layoff of the permit men in Janua-
ry, the employer members of Association began
complaining to the International Union concerning
their inability to obtain enough asbestos workers to
staff their jobs.12 This complaint by the employers
resulted in a meeting of the Joint Trade Board pro-
vided for in the contract, held on April 9, which
was attended by International Vice President
Novak, admitted in the pleadings to be an agent of
Respondent, the manager of each of the four em-
ployer members of Association, as well as Statile
and Rossworm, recording secretary and business
agent, respectively of Respondent. The minutes of
this meeting, prepared by Statile and edited by
Rossworm, show that the status of permit men was a
major topic of discussion; at one point Novak stat-
ing, "I wouldn't care if you went to the N.L.R.B.
but when there are union men walking I will never
have permit men working." The minutes also show
that at one point Keasbey Manager Rieth asked
about "D. Morehouse who was working in his
shop," and that "Union officials spoke unfavorably
of him and felt he would not be a benefit to the Lo-
cal. [Novak] agrees to [g]o along with the Union
feeling on this individual." Finally Novak, who ap-
parently had been instructed by International to
dictate the course Local 40 should follow, directed
that the Local take into membership six former per-
mit men13 as of May 1, "waiving the high shcool
requirements of the Local." After some further
discussion in which the Union argued for its high
school or equivalency requirement, Novak
modified this to require that R. Holt, W. Reed, Jr.,
and C. Warren "take the high school equivalency
test within 90 days as requirement to coming into
the Local and books to be held by the Business
Agent until this is done." In addition Novak
directed that five improver members of the Local,
after taking the required test within a specified
period, be elevated to the membership classifica-
tion of mechanic. After making these decisions
Novak stated, "That should now settle the problem
of manpower and that as of now there would be no
more permit men used." Shortly after this meeting
Rossworm referred to Keasbey three men dismissed
by Rieth on January 3 (Warren, Holt, and Frye), in
response to Rieth's request the preceding week for
three men. In making this request Rieth did not
specify any individual by name.
Rossworm admits that he talked with Rieth the
latter part of December 1968, and again on January
3 1, and that on both occasions the subject of reduc-
tion in personnel by Keasbey was discussed. Ac-
cording to Rossworm, on these occasions he merely
informed Rieth that the latter had to dismiss some
improvers in order to come within the ratio of not
more than one improver to four mechanics, as pro-
vided in article III of the contract, herein above set
forth, and that at no time did he suggest, request, or
direct what individuals Keasbey should lay off to
come into compliance with the ration requirement
of the contract. Indeed, according to Rossworm, he
had no idea what individuals Keasbey would lay off.
I do not credit Rossworm's testimony in that re-
gard, but credit the contrary testimony of Rieth
that Rossworm's complaint was that nonunion men
were working while union men were not. Based on
the entire record, I find and conclude that this
request by Rossworm was meant by him and un-
derstood by Rieth to be a request that the permit
men be dismissed for the reason that they were not
members of the Union, and that the alleged out-of-
ratio employment was nothing more than af-
terthought seized upon by Rossworm to obscure the
12 Specifically , Keasbey Manager Rieth credibly testified that between
January and early April he frequently needed more men than the Union
could supply
" Initially this decision affected six permit men ( W Reed , Jr , R Holt, J
Danlorich, C Frye, C Warren, and J Stuto ), Holt, Frye, and Warren being
three of the five permit men dismissed by Keasbey on January 3 Later in
the meeting an employer representative asked if the conclusions reached
meant that H Guynup , who had been working for him, "has to be let go'"
Novak asked the Union representative if there was "any reason why
[Guynup] should not be taken into the Local " One union representative
stated that " he has only heard good of the man " Novak then directed that
Guynup "should come into the Local then with the others as a 2nd year im-
prover " Thus seven were taken into the Local at this point as improvers
712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
true reason for his request. My conclusion in this
regard is based on the following considerations:
1. To begin with, Rossworm did not impress me
as a credible witness. Not only did he deny in his
sworn affidavit to the Board that neither of the
Morehouses spoke to him about work, and as a wit-
ness admit that the contrary testimony of Douglas
Morehouse in that regard was correct, but he at
first testified before me that because he had many
conversations with employers he could not recall
what was said in his discussion with Rieth, but then
proceeded to specify that his demand was simply
that Keasbey comply with the contractual ratio.
Moreover, in the aforementioned affidavit Ross-
worm stated that the Morehouses and remaining
permit men were terminated by Keasbey for lack of
work, with no mention being made of any alleged
improper ratio. Even in the answer to the complaint
herein the same defense is made, and yet when
Rossworm testified, he admitted that he made de-
mand upon Rieth for a reduction in force and for
the first time advanced the claim that this was
necessary to bring about the contractual ratio. In
assessing Rossworm's credibility, I have also taken
into account, as I deem it appropriate to do, that in
his September 3 affidavit given the Board, he
refused to discuss or comment upon the April 9
meeting the minutes of which plainly disclose
Respondent's purpose to prevent nonunion em-
ployees from working, assigning as a reason for
such refusal that the matter "concerns something
after the fact and would be irrelevant to this
[proceeding]."
2. Rossworm admitted that when he ascertained
late in January that the Morehouses had not been
released, he "spoke with [Rieth] relative to it," and
when Rieth commented that the Morehouses were
on vacation, he stated, "Well, as far as I am con-
cerned, they're laid off," and marked his records
accordingly. It is to be noted that even Rossworm
does not contend that in this conversation he raised
the out-of-ratio issue Moreover, it is difficult to un-
derstand why, if Rossworm was interested only in
ratio of helpers to mechanics, and with knowledge
of the fact that the Morehouses would not be work-
ing, he would insist that they be laid off, as he ad-
mittedly did.
3. Even on January 31, after all the permit men,
including the Morehouses whom Rossworm insisted
were terminated, were no longer on the payroll, the
employment at Keasbey was still not within the
ratio called for by the contract. On that date
Keasbey employed 12 mechanics and 5 im-
"The mechanics were Console , Dedovich , DiMura, Fallon, Donald
Frye, Sr , Melvin Holt, Jr , Melvin Holt, Sr , LaMonte, Oliver, Stable,
Charles Warren, Sr , and Dunn The improvers were Donald Frye, Jr ,
Thomas Holt, Spinelli, Kehoe, and Markel All were members of Local 40
except Dedovich who was a traveller from a Canadian local Rossworm
testified that Oliver had quit January 7, and that Dedovich quit on January
24, but this is not borne out by Keasbey's records which I find to be correct
However, if it be assumed that Oliver and Dedovich had quit, as Rossworm
claimed, then the lack of ratio was even greater , 10 mechanics and 5 im-
provers.'" That Rossworm was aware of this fact is
plain from his own testimony that for a number of
years he made all referrals to employers and main-
tained records which disclose the place of employ-
ment of each person so referred.
4. Employment at Keasbey was also out of ratio
at the time of the Joint Trade Board meeting on
April 9, at which the Union took into membership a
number of former permit men, and became even
more out of ratio when immediately following that
meeting Rossworm referred three such men
(Charles Frye, Ronald Holt, and Charles Warren,
Jr.), to Keasbey for work as improvers.15 I deem it
highly significant that neither prior to, during, nor
subsequent to the April 9 meeting did Rossworm
make any demand on Keasbey that the latter bring
its employment within the ratio specified in the
contract.
The totality of the foregoing factors lead me to
the conclusion that Rossworm's demands upon
Keasbey were not made for the purpose of causing
Keasbey to comply with the contractual ratio of im-
provers to mechanics, but rather had the intent and
purpose of causing Keasbey to terminate the permit
men, and particularly Raymond Morehouse, solely
because they were not members of Respondent.
Having reached this conclusion it follows that by
Respondent's demands upon Keasbey for dismissal
of Raymond Morehouse it caused or attempted to
cause Keasbey to discriminate against him because
of his lack of membership in Respondent, which
membership failed to exist for reasons other than
his failure to tender the periodic dues and initiation
fees uniformly required as a condition of acquiring
or retaining such membership, and also restrained
and coerced Raymond Morehouse and other em-
ployees in the exercise of rights guaranteed by Sec-
tion 7 of the Act, and thereby violated Section
8(b)(2) and (1)(A) of the Act. United Association
of Journeymen and Apprentices of the Plumbing and
Pipe Fitting Industry of the United States and
Canada, Local 633, AFL-CIO (Plumbing Contrac-
tors of Owensboro, Kentucky), 178 NLRB 398.
On the basis of the foregoing findings of fact and
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Keasbey and the other members of Associa-
tion are employers engaged in commerce within the
meaning of Section 2(2) and (6) and (7) of the
Act.
provers I
''' On April 9, Keasbey had in its employ 20 asbestos workers referred to
it by the Union, 15 mechanics and 5 improvers Of course, with the referral
of Charles Frye, Ronald Holt, and Charles Warren, Jr , on April 9, the ratio
became 15 mechanics and 8 improvers Even if there were added the 5
mechanics hired by Keasbey between April 10 and 30 (Baleszen, Ceplon,
Cereneck, Labonte, and Morin), the ratio would be 20 mechanics and 8
improvers
ASBESTOS WORKERS , LOCAL 40
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By its demand upon Keasbey that the latter
terminate Raymond Morehouse because of his lack
of membership in Local 40, Respondent caused or
attempted to cause Keasbey to discriminate against
Raymond Morehouse in regard to his hire or tenure
of employment, because of his lack of membership
in Local 40, which membership failed to exist for
reasons other than his failure to tender the periodic
dues and the initiation fees uniformly required as a
condition of acquiring or retaining membership in
Local 40, thereby to encourage membership in
Local 40, and restrained and coerced Raymond
Morehouse in the exercise of rights guaranteed by
Section 7 of the Act, and thereby engaged in and is
engaging in unfair labor practices proscribed by
Section 8(b)(2) and (1)(A) of the Act.
4. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent engaged in and is
engaging in conduct violative of Section 8(b)(2)
and (1 )(A) of the Act, it will be recommended that
it be ordered to cease and desist therefrom, and
that it take certain affirmative action designed and
found necessary to effectuate the policies of the
Act.
Having found that Respondent unlawfully caused
Keasbey, a member of Association, to terminate the
employment of Raymond Morehouse, it will be
recommended that Respondent be required to ad-
vise Keasbey and the other three employer mem-
bers of Association in writing , with a copy to
Raymond Morehouse, that it has no objection to
the employment of Raymond Morehouse by any
member of Association as an asbestos worker in the
classification of improver, and that any such objec-
tions heretofore voiced are now withdrawn. It will
be recommended further that Respondent make
whole Raymond Morehouse for any loss of pay he
suffered by reason of the discrimination against
him, by paying to him a sum of money equal to the
wages he normally would have earned from the
time he offered to return to duty following his vaca-
tion trip, to a date which is 5 days after Respondent
advises all members of Association that it has no
objection to their employment of Raymond
Morehouse,'s less his net earnings during that
period, with interest thereon at the rate of 6 per-
cent per annum, all in accordance with the Board's
formula set forth in F. W. Woolworth Company, 90
'"This limitation is in accord with normal Board practice See The
Gabriel Division ofThe Maremont Corporation , 153 NLRB 631, 633
" In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings , conclusions , recommendations , and Recommended Order herein
shall, as provided in Section 102 48 of the Rules and Regulations, be
adopted by the Board and become its findings , conclusions , and order, and
713
NLRB 289, and Isis Plumbing & Heating Co., 138
NLRB 716.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact,
conclusions of law, and the entire record in the
case, and pursuant to Section 10(c) of the National
Labor Relations Act, as amended, it is recom-
mended that the National Labor Relations Board
order that International Association of Heat and
Frost Insulators and Asbestos Workers' Local
No. 40, AFL-CIO, its officers, agents, and
representatives, shall:
1. Cease and desist from:
(a) Causing or attempting to cause Robert A.
Keasbey Co., Tri-City Insulating Company, C & S
Insulating Company, Johns-Mansville Sales Corp.,
members of Asbestos Contractors Association of
Albany, to discriminate against Raymond
Morehouse, or any other employee, for nonmem-
bership in said labor organization if such lack of
membership is for reasons other than his failure to
tender the periodic dues and initiation fees uni-
formly required as a condition of acquiring or
retaining such membership.
(b) Iri any like or related manner restraining or
coercing employees in the exercise of rights guaran-
teed by Section 7 of the Act
2. Take the following affirmative action designed
and found necessary to effectuate the policies of
said Act:
(a) Make Raymond Morehouse whole for any
loss of pay he suffered by reason of the discrimina-
tion against him, in the manner set forth in the sec-
tion hereof entitled "The Remedy."
(b) Notify each of the aforementioned members
of Asbestos Contractors Association of Albany, in
writing, that it has no objection to the employment
of Raymond Morehouse, and that any objections
theretofore advanced are now withdrawn, and
promptly furnish a copy of such written notifica-
tions to Raymond Morehouse.
(c) Post at its business office and meeting halls
in Albany, New York, copies of the attached notice
marked "Appendix."" Copies of said notice, on
forms provided by the Regional Director for Region
3, after being duly signed by an authorized
representative, 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 its
members are customarily posted. Reasonable steps
shall be taken by it to insure that said notices are
all objections thereto shall be deemed waived for all purposes In the event
that the Board 's Order is enforced by a Judgment of a United States Court
of Appeals, the words in the notice reading "Posted by Order of the Na-
tional 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 "
714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not altered, defaced, or covered by any other
material.
(d) Sign and furnish to said Regional Director,
on forms to be supplied him, sufficient copies of the
aforesaid notice, for posting by the employer mem-
bers of Asbestos Contractors Association of Al-
bany, they being so willing, at all places where
notices to their respective employees are
customarily posted. Said copies, after being signed
by an authorized representative, shall be forthwith
returned to said Regional Director for disposition
by him.
(e) Notify said Regional Director, in writing,
within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith. iK
" In the event that 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 it has taken
to comply herewith "
APPENDIX
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a full trial in which both sides had the oppor-
tunity to present their evidence, the National Labor
Relations Board has found that we, International
Association of Heat and Frost Insulators and
Asbestos Workers' Local No. 40, AFL-CIO, vio-
lated the National Labor Relations Act, and or-
dered us to post this notice. We therefore notify
you that:
WE WILL NOT cause or attempt to cause
Robert A Keasbey Company, Tri-City Insulat-
ing Company, C & - S Insulating Company,
Johns-Mansville Sales Corp., as members of
Asbestos Contractors Association of Albany,
or any other employer, to discriminate against
Raymond Morehouse because he is not a
member of International Association of Heat
and Frost Insulators and Asbestos Workers'
Local No. 40, AFL-CIO, for reasons other
than his failure to tender the periodic dues and
initiation fees uniformly required as a condi-
tion of acquiring and maintaining membership
in our Union.
WE WILL NOT, by any like or related acts,
restrain or coerce employees in regard to their
rights under Section 7 of the Act to refrain
from engaging in union or other concerted ac-
tivities for mutual aid or protection, except to
the extent such right may be affected by an
agreement requiring membership in a labor or-
ganization as a condition of employment as
authorized by Section 8(a)(3) and (f) of the
Act.
WE WILL notify Robert A. Keasbey Com-
pany, Tri-City Insulating Company, C & S
Insulating Company, Johns-Mansville Sales
Corp., as members of Insulating Contractors
Association of Albany, in writing, with a
copy to Raymond Morehouse, that we have
no objection to the employment of Raymond
Morehouse, and that all such objections here-
tofore voiced are now withdrawn.
WE WILL make whole Raymond Morehouse
for any loss of earnings, including interest, he
may have suffered by reason of the discrimina-
tion against him as found by the National
Labor Relations Board.
INTERNATIONAL
ASSOCIATION OF HEAT
AND FROST INSULATORS
AND ASBESTOS WORKERS'
LOCAL No. 40, AFL-CIO
(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 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or com-
pliance with its provisions may be directed to the
Board's Office, Fourth Floor, The 120 Building,
120 Delaware Avenue, Buffalo, New York 14202,
Telephone 716-842-3100.