J. Willis & Son Masonry

National Labor Relations Board - Board Decisions

Jul 1, 1971

191 N.L.R.B. 872 (N.L.R.B. 1971)

872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
J. Willis & Son Masonry and Eugene D. Bernard and TRIAL EXAMINER'S DECISION
Builders' Association of Kansas City
Bricklayers and Masons International Union No. 18,
Kansas, and Joseph Moore, as Agent and Eugene D.
Bernard and Builders' Association of Kansas City.
Cases 17-CA-4338 and 17-CB-791
July 1, 1971
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND KENNEDY
On January 29, 1971, Trial Examiner Paul E. Weil
issued his Decision in the above-entitled proceeding,
finding that Respondents had engaged in and were en-
gaging in certain unfair labor practices, and recom-
mending that they cease and desist therefrom and take
certain affirmative action, as set forth in the attached
Trial Examiner's Decision. Thereafter, Respondent
Union filed exceptions to the Trial Examiner's Decision
and a supporting brief, the General Counsel filed a
cross-exception to the Decision, a supporting brief, and
an answering brief, and Respondent Union filed an
answer to the cross-exception.
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 proceeding to a three-member
panel.
The Board has reviewed the rulings of the Trial Ex-
aminer made at the hearing and finds that no prejudi-
cial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions, cross-exception,
briefs, and answer, and the entire record in this pro-
ceeding, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner as
modified below.'
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Trial Examiner and hereby orders that Respond-
ents J. Willis & Son Masonry, Kansas City, Missouri,
its officers, agents, successors, and assigns, and Brick-
layers and Masons International Union No. 18, Kansas
City, Kansas, and Joseph Moore, as agent, and its other
agents, officers, and representatives, shall take the ac-
tion set forth in the Trial Examiner's recommended
Order.
' In view of the Trial Examiner's inadvertence in failing to rule on the
General Counsel's unopposed motion to correct the transcript, we hereby
grant said motion
STATEMENT OF THE CASE
PAUL E. WEiL, Trial Examiner: On June 19, 1970;' Eugene
D. Bernard, an individual, filed with the National Labor
Relations Board, hereinafter called the Board, in its Kansas
City, Missouri, Regional Office a charge alleging that Brick-
layers and Masons International Union No. 18, Kansas, here-
inafter called Respondent Union, and Joseph Moore, its
agent, violated Section 8(b)(1)(A) and (2) of the Act by caus-
ing Bernard's employer to terminate his employment for dis-
criminatory reasons. Thereafter on June 19 Bernard filed a
charge with the same Regional Office alleging that J. Willis
& Son, Masonry, hereinafter called Respondent Employer,
discriminatorily discharged him in violation of Section
8(a)(3) and (1) of the Act. On August 31, 1970, the Regional
Director for Region 17 (Kansas City, Missouri) issued on
behalf of the General Counsel an order consolidating cases
and a complaint alleging that Respondent Employer violated
8(a)(3) and (1) by discharging Bernard because he was not a
member of Respondent Union, that Respondent Union vi-
olated Section 8(b)(1)(A) and (2) by causing Bernard's dis-
charge and that additionally Respondent Union violated Sec-
tion 8(b)(1)(A) by threatening employee Bernard with
discipline for filing the charges in the instant case, and by
threatening Respondent Employer's employees with fines if
they worked for the Respondent Employer during his dispute
with the Union. By an amended complaint dated September
29, 1970, the General Counsel additionally alleges violation
of Section 8(b)(1)(A) and (2) by Respondent Union in enter-
ing into a collective-bargaining agreement which has at all
times material been discriminatorily interpreted, 'imple-
mented and enforced by the Union. By answers duly filed
both Respondents denied the commission of any unfair labor
practices although admitting the jurisdictional facts.
On the issues thus joined, the matter came on for hearing
before me in Kansas City, Missouri, on November 23 and 24.
All parties' were present and had an opportunity to examine
and cross-examine witnesses, adduce relevant, material evi-
dence, and argue on the record and file briefs. Although the
Charging Party was present and testified, he did not file an
appearance. At the hearing the General Counsel moved to
further amend the complaint by alleging that Respondent
Union additionally violated Section 8(b)(1)(A) by threatening
to institute and instituting disciplinary proceedings against J.
Willis, the employer, and fining him pursuant thereto because
J. Willis filed a charge against the Union. The motion was
granted. The Respondent Union moved for a continuance to
enable it to investigate the circumstances alleged. I required
the parties to come forward with their evidence at that time
and conditionally closed the record, giving the Respondent
Union a period of 2 weeks in which to investigate further if
it so desired and to inform me if it wanted the hearing re-
opened to adduce further evidence with regard to the second
amendment to the complaint. Respondent Union did not so
move and the conditional closing of the hearing became final.
Upon the entire record of the case, from my observation of
the witnesses, and in consideration of the briefs, I make, the
following:
All dates herein are in the year 1970 unless otherwise noted.
Although Builders' Association of Kansas City was named a party, it did
not appear The record reveals no basis on which it had any interest in the
proceedings Presumably it was named because it was signatory to a contract
with Respondent Union, the exact terms of which were adopted in a con-
tract between Respondent Union and Respondent Employer.
191 NLRB No. 128
J WILLIS & SON MASONRY 873
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENT EMPLOYER
Respondent Employer is an unincorporated proprietorship
maintaining an office in Harrisonville, Missouri , engaged in
the business of masonry contracting. Respondent Employer
annually performs services valued in excess of $50,000 for
customers located outside of the State of Missouri, or for
customers who themselves, in turn, directly perform services
valued in excess of $50,000 in States other than the State
wherein their office is located.
Respondent Employer is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
11 THE LABOR ORGANIZATION INVOLVED
The Respondent Union is a labor organization within the
meaning of Section 2(5) of the Act. William J. Moore is the
business agent of Respondent Union and an agent thereof
within the meaning of Section 2(13) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background and Issues
On March 2, Respondent Employer entered into a contract
with Aztec, Inc., to perform some bricklaying on a project in
Kansas City, Kansas. On March 9, John K. Willis, the pro-
prietor of Respondent Employer, signed a contract stipula-
tion with Business Agent Moore on behalf of Local 18 pursu-
ant to which he adopted the terms and conditions set forth
in the then existing contract between Respondent Union and
Builders' Association of Kansas City. Sometime thereafter,
on a date not clear in the record, Willis posted a bond with
the Union assuring performance of the welfare and pension
plan provisions of the Local 18 contract. Work was com-
menced on the project near the end of April or early May,
with Respondent Employer using its regular crew of bricklay-
ers, members of Local 4, a sister local to which Willis himself
belonged. A week or so after posting the bond, Willis had a
conversation' with Moore in Moore's office in which Moore
referred to an article of the contract which Respondent Em-
ployer had adopted which provides as follows:
(32) On all jobs within the area of this agreement, a fair
proportion of Kansas bricklayers if available should be
employed.
Moore stated that that provision meant that 50 percent of
"my men" will be on the job. Willis told Moore that if he had
room for them he would put Local 18 men on the job. Noth-
ing more was said.
In the last week of May Respondent Moore came to the
jobsite and pointed out to the foreman that he was not work-
ing a proportionate number of Local 18 men on the job. On
this occasion Moore told the foreman, Martin, to have Willis
call him at his office. According to Moore's testimony Willis
called him 2 days later and during the telephone conversation
Moore insisted that there had to be 50 percent Local 18
members on the job. Willis answered that he did not have
room for any additional men and that in order to achieve a
50-50 ratio he would have to lay off a member of his regular
crew. Moore said he was not asking Willis to lay off anyone,
just to even up the 'crew and pointed out that the Kansas
people were paying the taxes for the urban renewal in Kansas
and were not getting a fair shake of the income and he threat-
ened to go to the city hall and complain. At this point Willis
hung up.
On May 13 Willis went to the Regional Office of the Board
and filed a charge (17-CB-782) alleging that Respondent
Union through Moore threatened to picket the job unless half
the bricklayers employed on the project were members of
Local 18. When Moore was served with the charge he went
out to the jobsite and called the bricklayer employees together
and told them that Willis had filed an unfair labor practice
charge against Local 18 and that there was a dispute on the
job. He then read them article 4, section 4 of the constitution
of the Bricklayers International Union' which provides that
"No member shall commence or cause to be commenced or
aid any person or body or subordinate union in commencing
any action against any subordinate union or this Interna-
tional Union in any court of law or equity, until all of the
reasonable remedies provided by this Constitution shall have
been exhausted" and further read them article 23, section 4
of the constitution and working rules of Respondent Union
which provides for fines of $25 and $50 for any member who
refuses to stop work when ordered by the Union or accepts
work where members quit by order of their union. Addition-
ally he "possibly" told the employees they could finish work-
ing that day.
The employees got the message and ceased working on the
job. A week or so later Moore testified he visited the job and
no bricklayers were then working. Thereafter the attorney for
Aztec called Moore and asked him what it would take to get
the job started again . Moore responded that the charge ought
to be withdrawn and that the entire dispute was over the
minimum 50-percent ratio.
On May 19 Aztec's lawyer sent Willis a letter reminding
him that their contract provided that in case of any stoppage
of work due to union conflict caused by a subcontractor's
workman, Aztec, after 10 days' written notice, could relet the
work. The letter further notified Respondent Employer that
in accordance with the contract if the dispute was not fully
resolved within 10 days the masonry work would be relet.
The letter further stated
We understand from speaking with your attorney, Mr.
Tom Walsh, and with Mr. Joe Moore of the Brick Lay-
ers and Masons Local Union # 18 of Kansas, that your
entire labor dispute can be resolved by your withdrawal
of the unfair labor practices complaint filed with the
NLRB and by your utilizing 50% of the men on the job
from Kanas.
Attorney Granger urged Respondent Employer to take the
necessary steps to resolve the dispute.
In the meantime on May 22 Moore had informed Willis by
letter that by filing a charge with the Board he had violated
article 4, section 4 of the constitution of the International and
article 17, section 16 of the Local 18 constitution which pro-
vides "All masonry contractors, whether members of the
Union or not, shall be subject to all the working rules of this
Union" and directed Willis to appear before the Local 18 trial
committee on June 6. The trial committee duly met and fined
Willis, who was not present, a total of $250.
On June 8 Respondent Employer 's Foreman Martin called
Moore at 8 in the morning and told him he was commencing
work. Moore answered "We still have a grievance." Martin
said that he had the withdrawal slip in his pocket and Moore
told him to bring it to Moore's office. Martin stated that he
had four or five men to start to work and Moore insisted that
he come to his office. Martin refused to do so and Moore said
"If you are going to play it the hard way I can't get there until
9 o'clock." At 9 o'clock Martin started the men working and
Moore showed up a few minutes later . Willis was also
present. Moore told Willis that he wanted a 50-50 ratio of
employees on the job. Willis said that he would have to lay
off someone and hire another man to balance it out. Moore
said he did not care how Willis ran his business but wanted
' Bricklayers , Masons and Plasterers' International Union of America,
AFL-CIO.
874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the 50-50 ratio. As a result of the conversation Moore agreed
to send a man to the job and Willis discharged the Charging
Party giving him 'a letter stating that his work was satisfac-
tory and that he was discharged because Local 18 insisted on
the 50-50 proportion. Somewhat later that day a Local 18
member, Terrance Bunkers, appeared on the job and was put
to work at 12:30 p.m.°
After his discharge Bernard went immediately to the Board
and filed a charge against Respondent Union . On June 12
Respondent Moore advised Bernard that he was charged
under article 4, section 4 of the constitution of the Bricklayers
International because he filed a charge with the Board against
Local 18 and Business Agent Moore. He was directed to
appear on June 27 before the Local 18 trial and investigating
committee.' The trial was held on June 27; Bernard was not
present. He was fined $200 under the International constitu-
tion for violation of article 4, section 4 and an additional $50
under the constitution of Local 18 for contempt for failing to
appear before the trial committee.
b. Discussion
1. The General Counsel first contends that by entering into
the contract containing the provision recited above the Re-
spondent Employer violated Section 8(a)(3) and (1) and the
Respondent Union violated Section 8(b)(1)(A) and (2) of the
Act. The General Counsel argues that since the quoted lan-
guage is ambiguous and lends itself to an unlawful interpreta-
tion, and was in fact unlawfully interpreted by Respondent
Union and Respondent Moore, the language itself should be
invalidated and an order should issue so declaring. Contracts
which provide for priority in dispatch or hire based on ter-
ritorial considerations are not per se unlawful.' The language
with which we are here concerned can be construed to give
preference to residents of the geographical area covered by
the contract rather than to members of the Respondent
Union and in fact the term "Kansas Bricklayers" can only be
construed to impose a limitation other than geographical by
a torturing of the language. The term "a fair proportion" is
vague and ambiguous but no construction of the terminology
would operate to render the contract unlawful under the Act.
No greater illegality would attach to the contract if it pro-
vided that all employees should be Kansas Bricklayers. The
Board in the above-cited case also dealt with the argument
raised by the General Counsel in the instant case with regard
the rescission of the provision which resulted in the preferen-
tial treatment'and reversed the Trial Examiner's Recom-
mended Order that the provision be rescinded as that provi-
sion is unlawful on its face and the violation was predicated
on its unlawful application . In the instant case the same
considerations exist. Accordingly I shall recommend that the
complaint be dismissed insofar as it alleges that by entering
into the contract containing the disputed paragraph 'both
Respondent violated the Act.
2. The General Counsel contends that the Employer vi-
olated the Act by discharging the Charging Party because he
was not a member of the Respondent Union. The Employer
admits that this was the reason he discharged Bernard.
Whether the Union caused the discharge is a separate issue.
Without regard to the provisions of the contract, Willis, act-
ing under the impression that he was required by the Union
to even out his work force so that the Respondent Union
would have at least 50 percent members on the job and being
financially unable to man the job with more employees than
he already had,' had no alternative but to discharge an em-
ployee in order to hire a member of Local 18 to comply with
Respondent Union's demand. Accordingly Willis' discharge
of Bernard because he was not a member of Local 18 was
discriminatory and had the natural consequence of encourag-
ing membership in Local 18 and therefore was violative of
Section 8(a)(3) and (1) of the Act, I so find.' Also by such
action Respondent Employer has interfered with, restrained
and coerced employees in the exercise of the rights protected
by Section 7 of the Act in violation of Section 8(a)(1) of the
Act.
3. With regard to the Union the General Counsel contends,
even as with the Employer, that by entering into the contract
the Union violated Section 8(b)(1)(A) and (2). The same
considerations set forth above with regard to the Employer
apply with regard to the Union. Accordingly I find no viola-
tion of the contract and dismiss the complaint insofar as it
refers thereto.
4. Additionally the General Counsel contends that by its
interpretation of the contract the Respondent Union and
Respondent Moore violated Section 8(b)(1)(A) and (2). The
cases cited above are again diapositive. There can be no ques-
tion that Respondent Moore in his relationship, with Re-
spondent Employer at all times equated the contract language
"Kansas Bricklayers" to mean members of Local 18. Al-
though he argued to Willis that as Kansas money was being
used for the project the Kansas taxpayers should have a right
to a job, which argument was reiterated by Respondent
Union's counsel at the hearing, it is clear that this was not the
basis of Moore's consideration. The record reveals that two
of the Respondent Union' s members furnished by Moore to
Respondent Employer were residents of Missouri although
members of the Kansas local. Moore testified without equivo-
cation that he told both Willis and his foreman, Martin, that
the work stoppage resulted from the fact that there were not
50 percent of "Local 18 people" on the job. I find that by its
discriminatory interpretation and the implementation and
enforcement of its interpretation of the contract language
Respondent Union and Respondent Moore violated Section
8(b)(1)(A) and (2) of the Act.
5. General Counsel next contends that by causing the dis-
charge of Bernard because he was not a member of Respond-
ent Union Moore and Respondent Union violated Section
8(b)(2)and (1)(A) of the Act. On the record before me there
can belittle doubt that Moore insisted at all times on the
50-50 ratio as he interpreted it and that in support of his
insistence he threatened Respondent Employer with a work
stoppage. When Respondent Employer filed a charge so alleg-
ing, a work stoppage immediately ensued. It cannot profit
Respondent Union to argue that the work stoppage resulted
from the filing of the charge rather than from its insistence
on the 50-50 ratio; both in conversations with Willis and his
foreman and with Aztec's lawyer he admitted that part of the
price for permitting the employees to return to work was the
enforcement of the 50-50 ratio and the other part was the
withdrawal of the charges filed, with the Board by Willis.
When Willis withdrew the charges Moore attempted to con-
tinue the work stoppage until he achieved his other goal and
engaged in a debate at the worksite with Willis and Foreman
Martin which resulted in the discharge of Bernard. Under
these circumstances it is clear that the discharge of Bernard
' The withdrawal referred to was obviously a letter of withdrawal to the ' Willis testified without contradiction that he had neither the financial
Regional Director of the charges filed by Willis against Respondent Union. resources nor the physical space in which to use more bricklayers at this
Bernard is a member of Local 4 of the same International time.
Bricklayers, Masons, and Plasterers' International Union of America 6 Radio Officers' Union of the Commercial Telegraphers Union, AFL (Bull
(Plaza Builders, Inc.), 134 NLRB 751 Steamship Company) v. NL.R.B., 347 U.S 17, 45.
J. WILLIS & SON MASONRY 875
resulted from Moore's unlawful enforcement of the 5.0-50
ratio. To the extent that scienter is an element of Section
8(b)(2), it is clear that Moore was aware that there was no
room on the job for additional employees so that the only way
to balance the ratio to his satisfaction was for Willis to dis-
charge a Local 4 member. It does not avail Respondent to
argue that the ratio could have been achieved by augmenting
the crew of bricklayers with additional Local 18 members.
The imposition of an additional payroll of this nature is no
less coercive on an employer than a work stoppage in my
opinion and obviously in Willis' opinion. Accordingly I find
that Respondent Union and its agent, Respondent Moore,
violated Section 8(b)(2) and (1)(A) by causing the discharge
of Bernard.
6. The General Counsel contends that Respondent Union
and its agent, Moore, violated Section 8(b)(l)(A) by threaten-
ing disciplinary proceedings and consummating them against
Bernard because he filed a charge with the Board. The record
is clear that the Respondent Union charged Bernard on June
12, 1970, with a violation of the constitution of the Interna-
tional Union by filing charges with the Board and on June 27
found him guilty and fined him $200. Additionally Bernard
was fined $50 for contempt for failure to appear before the
Local 18 trial committee.
In N.L.R.B. v. Industrial Union of Marine & Shipbuilding
Workers of America, AFL-CIO, 391 U.S. 418, the Supreme
Court had occasion to examine the legality of a union rule
which penalizes a member for filing an unfair labor practice
charge with the Board and found that as a matter of public
policy the proviso in Section 8(b)(1)(A) that unions may
design their own rules respecting "the acquisition or retention
of membership" may not be construed to give the union
power to penalize a member who invokes the protection of
the Act for a matter that is in the public domain and beyond
the internal affairs of the union, and concluded under the
facts of that case that the failure of union members to resort
to any intraunion grievance procedure is not grounds for
explusion from the union. In the instant case it cannot be said
that the imposition of an unlawful hiring preference based
upon union membership is a legitimate internal affair of the
Union. Accordingly under the authority of the Shipbuilding
Workers case I find that the imposition of penalties on Ber-
nard for filing charges against the Union was violative of
Section 8(b)(1)(A) of the Act in that it was clearly designed
to coerce employees, especially including Bernard, to refrain
from filing charges against the Union with the Board. Inas-
much as the imposition of such a penalty is unlawful the
threat to impose such a penalty is equally unlawful as alleged
by the General Counsel and the additional penalty levied for
Bernard's failure to appear at the Union's hearing on the
matter is as coercive as the hearing itself. Accordingly I find
that by threatening to impose a penalty and by imposing such
a penalty against Bernard, Respondent violated Section
8(b)(1)(A) of the Act.
7. The General Counsel also contends that by filing charges
against John Willis, the Employer, because he filed charges
against the Union with the Board and by imposing a penalty
against him Respondent also violated Section 8 (b)(1)(A) of
the Act. The additional element appears here that Willis was
not and had not for 3 years been an employee entitled to the
protection of the Act, but this argument may not avail Re-
spondent Union in the instant case. The record reveals that
Willis is and at all times has been a member of Local 4, the
sister local to Respondent Union, and obviously proposes to
retain his membership therein. While there are many cases in
which the Board has been apprised of the fact that in the
construction business individuals may be employers at one
time and employees at another, I do not believe that this is
necessarily dispositive of the issue. A more immediate effect
on employees of the filing of such charges is to be found in
the fact that Respondent Moore admittedly read the charges
to the members of the Union in an open meeting of the Union
and the trial committee, consisting of members of the Union,
found him guilty after a trial The imposition of the sanctions
against Willis , as well as the imposition of similar sanctions
against Bernard, must have brought to the immediate atten-
tion of employee members of Local 18 that as far as the
Respondent Union is concerned members, whether employee
or employer, must relinquish the protection afforded them by
the Board or face the displeasure of their union. I find that
this is additionally coercive to employees and that the imposi-
tion of penalties on Willis was unlawful equally with the
imposition of penalties on Bernard.
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of Re-
spondent Employer described in section I, above, have a
close, intimate, and substantial relationship to trade, traffic,
and commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and the
free flow of commerce.
V. THE REMEDY
Having found that the Respondent Employer violated Sec-
tion 8(a)(3) and (1) of the Act and that the Respondent Union
violated Section 8(b)(2) and (1)(A) of the Act, it will be
recommended that they cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of
the Act.
The record reveals that Charging Party Bernard was dis-
charged on June 8, 1970, by the Respondent Employer and
was reemployed on some date early in November 1970. Un-
der normal circumstances I should recommend that the Re-
spondents jointly and severally should make him whole for
any loss of pay he may have suffered between June 8 and the
date of his rehire by reason of the discrimination against him.
The General Counsel however contends under the authority
of Bulletin Company, 181 NLRB No. 95 (see also Zoe Chemi-
cal Co., Inc. 160 NLRB 1011), that primary monetary liabil-
ity should be assessed against the Respondent Union leaving
only a contingent liability against Respondent Employer. Un-
der the circumstances of this case I agree with the General
Counsel. It is clear that the Respondent Employer did not
voluntarily discharge Bernard; on the contrary he attempted
to proceed without affecting a discharge to the point at which
he was threatened with a work stoppage by Respondent
Moore. Then he attempted to protect his rights by filing a
charge with the Board and the work stoppage ensued and
continued until he agreed to conform with Moore's require-
ments. This was at a time when he was on the verge of losing
his contract with Aztec because of the work stoppage. It is
undenied that as a small contractor with resources to run
only one job at a time Respondent Employer had no other
place to put Bernard. On the discharge of Bernard Respond-
ent Employer informed him of his rights, did what he could
in the discharge letter to support him in any assertion of his
rights that Bernard chose to make, and throughout the pro-
ceedings before me cooperated in attempting, to ,rectify the
unlawful action . Under all these circumstances I agree that
primary liability should be laid at the door of the Respondent
Union and I shall so recommend.
The record reveals that Willis paid the fine assessed against
him by the Union but that Bernard did not. I shall recom-
mend that the Union cease and desist from imposing discipli-
876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nary fines on its members for filing charges with the Board
and expunge from its records any mention of the fines levied
against either Bernard or Willis and make no further attempt
to collect the illegal fine levied against Bernard. Inasmuch as
Willis has already paid the fine levied against him, I shall
recommend that Respondent Union remit the fine to him.
The backpay for Bernard shall be determined in accordance
with the formula prescribed in F W. Woolworth Company, 90
NLRB 289, including interest thereon at 6 percent per annum
in accordance with Isis Plumbing & Heating Co., 138 NLRB
716.
The General Counsel contends that by threatening the
employees of Willis with the imposition of fines if they con-
tinued to work for Willis during the existence of a dispute,
i.e., the continued existence of the charges filed by Willis with
the Labor Board, the Respondent Union violated Section
8(b)(1)(A) of the Act. I have found that the work stoppage
had a dual purpose, both to cause Willis to withdraw the
charges and to compel him to agree to the 50-50 ratio of
employees. There can be little doubt that causing a work
stoppage for the latter purpose, under the circumstances of
the case, is violative of Section 8(b)(1)(A).9 I find no authority
however for the former. It is well established that access to
the Board's processes is jealously guarded by the Board and
by the Courts. The filing of an unfair labor practice charge
is a matter that is in the public domain, and beyond the
internal affairs of a union so that the proviso in 8(b)(1)(A) is
not so broad as to, give the union power to penalize a member
who invokes the protection of the Act in that way.10
I have found that Respondent Union violated the Act by
fining Willis for filing the charge; I find it no less violative for
the Union to cause a work stoppage to force the withdrawal
of the charge by the expedient of threatening employees with
fines for working for him during the pendency of the charge
he filed. I shall recommend an order requiring it to cease and
desist from this practice.
Upon the basis of the foregoing findings of fact and the
entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent Employer is an employer within the mean-
ing of Section 2(6) and (7) of the Act.
2. Respondent Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. Respondent Moore is an agent of Respondent Union
within the meaning of Section 2(13) of the Act.
4. Respondent Employer by discharging Eugene Bernard,
its employee, because of his nonmembership in Respondent
Union violated Section 8(a)(3) and (1) of the Act.
5. Respondent Union by causing Respondent Employer to
discharge Eugene Bernard violated Section 8(b)(1)(A) and (2)
of the Act.
6. Respondent Union by unlawfully enforcing a rule re-
quiring employment of its members violated Section
8(b)(1)(A) and (2) of the Act.
7. Respondent Union , by threatening to fine employee Eu-
gene Bernard and 'Employer John Willis and by implement-
ing such threat by trial procedure and imposition of fines
against said Bernard and Willis because they filed charges
with the Board against Respondent Union violated Section
8(b)(1)(A) of the Act.
' Bricklayers and Stone Masons, Local Union No. 6 etc. (Linbeck Con-
struction Corporation, 185 NLRB No. 94.
to N.L.R.B. v Industrial Union ofMarine and Shipbuilding Workers of
America, 319 U.S. 418
8. Respondent Union, by threatening to fine employees for
working for Respondent Employer while a charge filed by
him with the Board was pending, violated Section 8(b)(1)(A)
of the Act.
9. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act. In other respects alleged in the
complaint against them Respondent Employer and Respond-
ent Union have not violated the Act.
Upon the basis of the foregoing findings of fact, and conclu-
sions of law, and upon the entire record in the case, I hereby
issue the following recommended:"
ORDER
A. Respondent Employer, J. Willis & Son Masonry, its
officers, agents, successors and assigns, shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against Eu-
gene Bernard or any other employee because of his nonmem-
bership in Bricklayers and Masons International Union No.
18, Kansas, or any other labor organization.
(b) In any other manner interfering with, restraining, or
coercing his employees in the exercise of the rights guaran-
teed in Section 7 of the Act.
2. Take the following affirmative action which will effectu-
ate the policies of the Act:
(a) In conjunction with the Respondent Union, with the
Respondent Union primarily liable, make whole the above-
named employee for any loss of earnings suffered by him from
the date of his termination until the date of his rehire by the
Respondent Employer as provided in the section entitled
"The Remedy" of this Decision.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this
recommended Order
(c) Post at its place of business in Harrisonville, Missouri,
and at all places where notices to employees are ordinarily
posted copies of the attached notice marked "Appendix A."12
Copies of said notice on forms provided by the Regional
Director for Region 17, after being duly signed by Respond-
ent, shall be posted immediately upon receipt thereof, and be
maintained for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken to ensure
that said notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director for Region 7, in writing,
within 20 days from the date of the receipt of this Decision,
what steps Respondent Employer has taken to comply here-
with."
" 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, 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 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 NATIONAL LABOR RELATIONS BOARD"
shall be changed to read "POSTED PURSUANT TO A JUDGMENT OF
THE UNITED STATES COURT OF APPEALS ENFORCING AN OR-
DER OF THE NATIONAL LABOR RELATIONS BOARD "
1' In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read:
"Notify the Regional Director for Region 17, in writing,. within 20 days from
J. WILLIS & SON MASONRY 877
B. Respondent Union, Bricklayers and Masons Interna-
tional Union No. 18, Kansas, and Joseph Moore, as agent,
and its other agents, officers and representatives, shall:
1. Cease and desist from:
(a) Enforcing or maintaining any rule pursuant to which
priority in employment is based on membership in Respond-
ent Union.
(b) Causing or attempting to cause J. Willis & Son Ma-
sonry to discharge Eugene Bernard or any other employee
because of his nonmembership in Respondent Union.
(c) Threatening to fine any employee or employer for hav-
ing filed charges with or otherwise resorted to the processes
of the National Labor Relations Board.
(d) Threatening employees with fines for working for an
employer who filed charges against Respondent Union dur-
ing the pendency of said charges.
(e) In any other manner restraining or coercing its mem-
bers in the exercise of rights guaranteed in Section 7 of the
Act.
2. Take the following affirmative action which will effectu-
ate the policies of the Act:
(a) In conjunction with Respondent Employer, with Re-
spondent Union primarily liable, make whole Eugene Ber-
nard for any loss of pay he may have suffered by reason of
the discrimination against him between June 8, 1970, and the
date on which he was reemployed by Respondent Employer
as provided in "The Remedy" section of this Decision.
() Remit to John Willis the fines levied against him and
paid by him as a result of his having resorted to the processes
of the National Labor Relations Board.
(c) Expunge from its records and the records of any sister
local or the International Union of which it is part any
materials relating to the imposition of fines against Eugene
Bernard and John Willis for having filed charges with or
otherwise resorted to the processes of the National Labor
Relations Board.
(d) Post in Respondent Union's business office and places
where notices to its members are customarily posted, copies
of the attached notice marked "Appendix B. "I' Copies of said
notice on forms provided by the Regional Director for Region
17, after being duly signed by the Respondent Joseph Moore
and the duly authorized representative of Respondent Union
if he shall no longer at that time be a duly authorized repre-
sentative of Respondent Union, shall be posted immediately
upon receipt thereof, and be maintained for 60 consecutive
days thereafter. Reasonable steps shall be taken to ensure that
said notices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director for Region 17, in writing,
within 20 days from the date of the receipt of this Decision,
what steps the Respondent has taken to comply herewith.15
the date of this Order, what steps the Respondent has taken to comply
herewith "
18 Supra fn. 12
Supra fn. 13.
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all parties has an opportunity to
present evidence the National Labor Relations Board has
found that we have violated the National Labor Relations
Act and has ordered us to post this Notice.
WE WILL NOT discharge Eugene Bernard or any other
employee because of his nonmembership in Bricklayers
and Masons International Union No. 18, Kansas.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of rights
guaranteed in Section 7 of the National Labor Relations
Act.
WE WILL in conjunction with Local 18, with said Lo-
cal 18 primarily liable, make whole Eugene Bernard for
any loss of earnings suffered by him by reason of our
discrimination against him.
J. WILLIS &
SON MASONRY
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by any-
one.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced, or
covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, 610
Federal Building, 601 East 12th Street, Kansas City, Mis-
souri 64106, Telephone 816-374-5181.
APPENDIX B
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all parties had an opportunity to
present evidence the National Labor Relations Board has
found that we have violated the National Labor Relations
Act and has ordered us to post this Notice.
WE WILL NOT cause or attempt to cause J. Willis &
Son Masonry or any other contractor to discharge Eu-
gene Bernard or any other employee because of his lack
of membership id Bricklayers and Masons International
Union No. 18, Kansas.
WE WILL NOT threaten to fine any employee or em-
ployer for having filed charges with or otherwise re-
sorted to the processes of the National Labor Relations
Board.
WE WILL NOT threaten employees with fines for
working for an employer who filed charges against the
Union during the pendency of said charges.
WE WILL NOT in any other manner restrain or coerce
employees in the exercise of rights guaranteed in Section
7 of the National Labor Relations Act.
WE WILL NOT maintain or enforce any rule providing
that any employer must give preferment in employment
to members of Local 18.
WE WILL in conjunction with the above-named Em-
ployer, with ourselves primarily liable, make whole Eu-
gene Bernard for any loss of pay suffered by him by
reason of the discrimination against him between June
8, 1970, and the date on which he was rehired by said
Employer.
WE WILL repay John Willis the fines levied against
him because he filed charges with the National Labor
Relations Board.
WE WILL expunge from our records and the records
of any sister local or the International Union of which
we are part any materials relating to the imposition of
878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fines against Eugene Bernard and John Willis for having
filed charges with or otherwise resorted to the processes
of the National Labor Relations Board.
BRICKLAYERS AND
MASONS INTERNATIONAL
UNION No. 18,
KANSAS, AND
JOSEPH MOORE,
AS AGENT
(Labor Organization)
This is an official notice and must not be defaced by any-
one.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced, or
covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board 's Office, 610
Federal Building, 601 East 12th Street, Kansas City, Mis-
souri 64106 , Telephone 816-374-5181.
Dated By
(Representative) (Title)