Local Union #74, Marble, Slate and Stone Polishers

National Labor Relations Board - Board Decisions

Apr 23, 1971

190 N.L.R.B. 36 (N.L.R.B. 1971)

36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local Union #74, International Association of Mar-
ble, Slate and Stone Polishers , Rubbers and Saw-
yers, Tile and Marble Setters, Helpers, and Marble
Mosaic and Terrazzo Workers' Helpers of the
United States and Canada , AFL-CIO (The Blakley
Granite, Marble & Tile Co., Inc.) and John R. Ro-
docker. Case 25-CB-983
April 23, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND BROWN
On December 21, 1970, Trial Examiner Herbert
Silberman issued his Decision in the above-entitled
case, finding that Respondent had engaged in and was
engaging in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached
Trial Examiner's Decision. Thereafter, the General
Counsel filed limited exceptions to the Trial Examiner's
Decision and a supporting brief.
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 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 and brief, and the
entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
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 the Re-
spondent , Local Union # 74, International Association
of Marble, Slate and Stone Polishers , Rubbers and Saw-
yers, Tile and Marble Setters' Helpers, and Marble
Mosaic and Terrazzo Workers' Helpers of the United
States and Canada , AFL-CIO, Indianapolis , Indiana,
its officers , agents, and representatives shall take the
action set forth in the Trial Examiner 's recommended
Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HERBERT SILBERMAN, Trial Examiner: Upon a charge
filed by John R. Rodocker on April 29, 1970, a complaint,
dated August 31, 1970, was issued alleging that the above-
named Union, the Respondent in this case, has engaged in
and is engaging in unfair labor practices affecting commerce
within the meaning of Section 8(b)(1)(A) and (2) of the Na-
tional Labor Relations Act, as amended. The complaint, in
substance, alleges that on November 24, 1969, Respondent
caused John R. Rodocker to be discharged by the latter's
employer because Rodocker had been expelled from member-
ship in the Union for reasons other than his failure to tender
the periodic dues and initiation fees uniformly required as a
condition of acquiring or retaining membership in the Union
and that thereafter Rodocker's employer was threatened that
Respondent's members would refuse to work with Rodocker.
Respondent filed an answer generally denying that it had
engaged in the alleged unfair labor practices. A hearing in this
proceeding was held on November 9, 1970, in Indianapolis,
Indiana. Thereafter, General Counsel filed a brief with me
which has been considered. General Counsel's motion to cor-
rect the transcript of record in this case is granted.
Upon the entire record in the case, I make the following:
FINDINGS OF FACT
I. JURISDICTION
The Blakley Granite, Marble & Tile Co., Inc., herein called
the Company, a corporation engaged in the business of tile
contracting in Indianapolis, Indiana, annually, in the course
and conduct of its business operations, purchases goods and
materials valued in excess of $50,000 from sources outside the
State of Indiana which goods and materials are transported
through channels of interstate commerce to the Company's
place of business in Indianapolis, Indiana. Respondent ad-
mits, and I find , that the Company is an employer, as defined
in Section 2(2) of the Act, engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
Respondent is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
During the times material hereto the Company and the
Union have been parties to a collective-bargaining agreement
which contains a union-security provision requiring member-
ship in the Union as a condition of employment. John R.
Rodocker who has worked for Blakley from time to time
during the past 10 years was last hired by the Company in
April 1969 and worked for it continuously until his termina-
tion on November 24, 1969. During this period of time Ro-
docker was employed in a classification covered by the collec-
tive-bargaining agreement and was a member of Respondent
Union.
About 7 a.m. on Monday, November 24, 1969, Robert
McPeak, Respondent's then president and business agent,
telephoned Herbert McKenzie, Blakley's field superintend-
ent, and informed McKenzie that Rodocker had been ex-
pelled from the Union the preceding Friday night and that
the Company "could not work him any longer." McKenzie
replied that he "would get hold of John Rodocker and let
them get together themselves." About a half hour later in a
telephone conversation with Rodocker, McKenzie explained
to Rodocker that McKenzie had been advised by McPeak
that Rodocker was no longer a union member and that the
190 NLRB No. 9
LOCAL UNION #74, MARBLE , SLATE AND STONE POLISHERS
Company could not "work him any more." McKenzie sug-
gested to Rodocker that the latter communicate with McPeak
and try to resolve the problem . Later the same afternoon
Rodocker informed McKenzie "that he couldn 't get together
with anybody and that apparently he was out of the union
and that he would get back with [McKenzie] if and whenever
he got straightened out." Rodocker 's employment with the
Company was effectively terminated in the morning of
November 24, 1969. McKenzie testified that Rodocker would
not then have been terminated had it not been for McPeak's
intervention.
On Thursday or Friday of the same week McPeak met with
McKenzie in the latter's office and repeated to McKenzie that
Rodocker had been expelled from the Union , that "it was
sanctioned by the International Union and that [the Com-
pany] couldn 't work [Rodocker ] under those conditions."
The same injunction against employing Rodocker was re-
peated to the Company's president , Earl A . Blakley, by
McPeak towards the end of November 1969. In the same
conversation McPeak told Blakley that the reasons for Ro-
docker's expulsion from the Union were "serious enough that
if [the Company ] were to hire Rodocker the men would not
work with [the Company] "
Respondent contends that McPeak was not specifically
authorized to demand Rodocker 's discharge . However,
McPeak 's conduct in this respect was within the scope of his
apparent and actual authority and therefore attributable to
Respondent . Based upon the foregoing , I find that on Novem-
ber 24 , 1969, Respondent caused the Company to discharge
Rodocker because the latter had been expelled from the Un-
ion for a reason other than his failure to tender the periodic
dues and initiation fees uniformly required as the condition
of acquiring or retaining membership in Respondent.'
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III, above,
occurring in connection with the Company 's operations de-
scribed in section I , above, have a close , intimate, and sub-
stantial 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 has engaged in certain
unfair labor practices , I shall recommend that it cease and
desist therefrom and that it take certain affirmative action
designed to effectuate the policies of the Act.
Having found that Respondent unlawfully caused the
Blakley Granite , Marble & Tile Co., Inc, on November 24,
1969, to discharge John R . Rodocker , I shall further recom-
mend that Respondent notify the Company and John R.
Rodocker , in writing, that it has no objection to the employ-
ment of John R. Rodocker by the Company without regard
to his membership or nonmembership in the Respondent
labor organization and that it requests the Company to offer
John R . Rodocker reinstatement to his former position and
restoration of his seniority and other rights and privileges as
they existed on November 24, 1969 I shall also recommend
that Respondent make John R . Rodocker whole for any loss
of earnings he may have suffered , by reason of the fact that
Respondent unlawfully caused the Company to discharge
him, by payment to him of a sum of money equal to the
amount he normally would have earned from November 24,
' Respondent stipulated that Rodocker was expelled for reasons un-
related to delinquency in the payment of dues or initiation fees
37
1969, the aforesaid date of his discharge , until 5 days after the
date on which the Respondent shall have notified the Com-
pany and John R. Rodocker , in writing , that it has no objec-
tion to the employment of John R . Rodocker . The loss of
earnings , as aforesaid , shall be computed in accordance with
the method prescribed in F. W. Woolworth Company, 90
NLRB 289. Interest at the rate of 6 percent per annum shall
be added to such net backpay and shall be computed in the
manner set forth in Isis Plumbing & Heating Co., 138 NLRB
716.
Upon the basis of the foregoing findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1 By causing the Blakley Granite, Marble & Tile Co., Inc.,
on November 24, 1969, to discharge its employee, John R
Rodocker , because Rodocker had been expelled from mem-
bership in Respondent for reasons other than his failure to
tender the periodic dues and initiation fees uniformly re-
quired as a condition of acquiring or retaining membership
in Respondent , Respondent has violated Section 8(b)(1)(A)
and (2 ) of the Act.
2. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act
Upon the foregoing findings of fact , conclusions of law, and
the entire record , and pursuant to Section 10(c) of the Act,
I hereby issue the following recommended.
ORDER2
Respondent , its officers, agents, and representatives , shall:
1. Cease and desist from:
(a) Causing or attempting to cause the Blakley Granite,
Marble & Tile Co., Inc., or any other employer, to discharge
or otherwise to discriminate against John R. Rodocker, or
any other employee, in violation of Section 8(a)(3) of the Act.
(b) In any like or related manner restraining or coercing
employees in the exercise of the rights guaranteed them by
Section 7 of the Act.
2. Take the following affirmative action which, I find, will
effectuate the policies of the Act:
(a) Make John R. Rodocker whole for any loss of earnings
he may have suffered since November 24, 1969, as a result of
the discrimination practiced against him in the manner set
forth in the section of this Decision entitled "The Remedy."
(b) Notify the Blakley Granite, Marble & Tile Co ., Inc.,
and John R Rodocker, in writing , that it has no objection to
the employment of John R . Rodocker by the Company with-
out regard to his membership or nonmembership in the Re-
spondent Union and that it requests the Company to offer
John R . Rodocker reinstatement to his former position and
the restoration of his seniority and other rights and privileges
as they existed on November 24, 1969, the date of his dis-
charge.
(c) Post at its business office and meeting halls in In-
dianapolis, Indiana, copies of the attached notice marked
"Appendix." ' Copies of said notice, on forms provided by the
' 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 "POST PURSUANT TO A JUDGMENT OF
(Cont)
38 DECISIONS OF NATIONAL
Regional Director for Region 25, after being duly signed by
Respondent 's authorized representative , shall be posted by
Respondent immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter , in conspicuous
places, including all places where notices to members are
customarily posted . Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered , defaced,
or covered by any other material.
(d) Mail or deliver to the Regional Director for Region 25
signed copies of the attached notice for posting by the Blakley
Granite, Marble & Tile Co., Inc., if said Company shall be
willing, at all places where notices to the Company's em-
ployees are customarily posted.
(e) Notify the Regional Director for Region 25, in writing,
within 20 days from the receipt of this Decision , what steps
have been taken to comply herewith.'
THE UNITED STATES COURT OF APPEALS ENFORCING AN OR-
DER OF THE NATIONAL LABOR RELATIONS BOARD."
' 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 said Regional Director , in writing , within 20 days from the date of
this Order , what steps Respondent has taken to comply herewith."
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT cause or attempt to cause the Blakley
Granite, Marble & Tile Co., Inc., or any other employer,
to discharge or otherwise to discriminate against John R.
Rodocker , or any other employee, in violation of Section
8(a)(3) of the National Labor Relations Act, as
amended.
WE WILL NOT in any like or related manner restrain
or coerce employees in the exercise of the rights guaran-
teed them by Section 7 of the National Labor Relations
Act, as amended.
WE WILL notify the Blakley Granite, Marble & Tile
Co., Inc., and John R . Rodocker , in writing, that we
LABOR RELATIONS BOARD
have no objection to the employment of John R. Ro-
docker without regard to his membership or nonmem-
bership in our Union and that we request his reinstate-
ment by the Company to his former position with the
restoration of his seniority and other rights and privi-
leges as they existed on November 24, 1969, the date of
his discharge.
WE WILL make John R . Rococker whole for any loss
of earnings suffered by him by reason of the unlawful
discrimination practiced against him which resulted in
his discharge on November 24, 1969.
LOCAL UNION #74,
INTERNATIONAL
ASSOCIATION OF
MARBLE, SLATE
AND STONE
POLISHERS, RUBBERS
AND SAWYERS,
TILE AND MARBLE
SETTERS' HELPERS,
AND MARBLE
MOSAIC AND
TERRAZZO WORKERS'
HELPERS OF THE
UNITED STATES
AND CANADA,
AFL-CIO (Labor
Organization)
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, 614 ISTA
Center, 150 West Market Street , Indianapolis, Indiana
46202, Telephone 317-633-8921.