Bricklayers, Local Union No. 6

National Labor Relations Board - Board Decisions

Sep 28, 1970

185 N.L.R.B. 756 (N.L.R.B. 1970)

756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bricklayers and Stone Masons, Local Union No.
6, Bricklayers, Masons & Plasterers ' International
Union of America , AFL-CIO and Linbeck Con-
struction Corporation
Bricklayers and Stone Masons, Local Union No. 6,
Bricklayers, Masons & Plasterers ' International
Union of America , AFL-CIO ( Dee Brown
Masonry, Inc.) and Richard A. Arentz. Cases
16-CB-467 and 16-CB-492
September 28, 1970
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND BROWN
On April 21, 1970, Trial Examiner David S. David-
son issued his Decision in the above-entitled proceed-
ing, finding that Respondent had engaged in and
was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. Thereafter, the
General Counsel filed exceptions to the Trial Examin-
er's Decision, and a supporting brief, and the Respond-
ent filed exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor. Relations Act, as amended, the
National 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 here-
by affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the briefs, and
the entire record in this case, and hereby adopts
the findings, conclusions and recommendations of
the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the Recommended
Order of the Trial Examiner, and orders that the
Respondent, Bricklayers and Stone Masons, Local
Union No. 6, Bricklayers, Masons & Plasterers' Inter-
national Union of America, AFL-CIO, Denton, Tex-
as, its officers, agents, and representatives, shall take
the action set forth in the Trial Examiner's Recom-
mended Order, as herein modified:
1. Insert as paragraph 1(b) the following and reletter
existing paragraph 1(b) to read 1(c).
"(b) Threatening employees with fines for working
with a suspended member of the Union."
2. Insert the following as the second indented para-
graph of the Appendix:
WE WILL NOT threaten employees with fines
for working with a suspended member.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
DAVID S. DAVIDSON, Trial Examiner: Pursuant to a
charge in Case 16-CB-467 filed on July 15, 1969, by
Linbeck Construction Corporation against Bricklayers and
Stone Masons, Local Union No 6, Bricklayers, Masons
& Plasterers' International Union of America, AFL-CIO,
a complaint issued on September 30, 1969, alleging that
Respondent violated Section 8(b)(2) and 8(b)(1)(A) of the
Act by threatening employees of Linbeck with imposition
of fines if they continued to work for Linbeck and by
causing or attempting to cause Linbeck to discriminate
in regard to the employment of Richard Arentz because
of his failure to discharge his membership obligations to
Respondent. On October 21, 1969, the charge in Case
16-CB-492 was filed by Arentz against Respondent. There-
after an order consolidating cases and consolidated com-
plaint issued restating the allegations of the original com-
plaint and adding a further allegation that Respondent
further violated Section 8(b)(2) and 8(b)(1)(A) of the Act
by causing or attempting to cause Dee Brown Masonry,
Inc, to discriminate against Arentz because of his nonmem-
bership in the Union. In its answer Respondent denies
the commission of any unfair labor practices.
A hearing was held before me on December 18 and
19, 1969, at Denton, Texas. At the close of the hearing
oral argument was waived and the parties were given leave
to file briefs. Briefs have beeii received from the General
Counsel, Linbeck Construction Corporation, and Respond-
ent.
Upon the entire record in this case including my observa-
tion of the witnesses and their demeanor I make the follow-
ing:
FINDINGS OF FACT
I THE BUSINESS OF THE EMPLOYER
Linbeck Construction Corporation, is a Texas corporation
engaged in the construction industry with general offices
in Houston, Texas In the 12 months prior to the hearing
in this case, a representative period, Linbeck purchased
supplies and materials outside the State of Texas, which
were shipped directly into the State of Texas and were
valued in excess of $50,000.
Dee Brown Masonry, Inc., is also a Texas corporation
engaged in the construction industry with its principal
business office in Dallas, Texas. In the 12-month period
prior to the hearing in this case, a representative period,
185 NLRB No. 94
BRICKLAYERS, LOCAL UNION NO 6
Brown purchased supplies and materials outside the State
of Texas, which were shipped directly into the State of
Texas and were valued in excess of $50,000. I find that
Linbeck and Brown are employers engaged in commerce
within the meaning of the Act.
ii. THE LABOR ORGANIZATION INVOLVED
Bricklayers and Stone Masons, Local Union No. 6, Brick-
layers, Masons & Plasterers' International Union of
America, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
IiI. THE FACTS
A. Case 16-CB-467
1 The facts
At all times material Linbeck was engaged in a construc-
tion project at Denton, Texas, referred to as the North
Texas State Library job The value of the job was approxi-
mately $2,600,000 Linbeck directly employed bricklayers
at the jobsite to perform required masonry work. As a
member of the Associated General Contractors Linbeck
operated pursuant to an agreement between the Associated
General Contractors and Respondent. The agreement con-
tained no union-security provisions.
On April 21, 1969,' Richard A Arentz was hired by
Linbeck to work as a bricklayer on the library job. He
worked part of that day but left because of back trouble
and did not return until April 28. Arentz at that time
was a member in good standing of Local 5, a sister local
affiliated with the same International Union as Respondent.
On the day of his return to the library job, Respondent's
steward, Pnse, spoke to Arentz about the need for payment
of so-called foreign dues to Local No 6 and obtaining
a work permit. Arentz took the position that he wished
to transfer from Local 5 to Respondent rather than follow
the course mentioned by Prise. The details as to the ensuing
conduct of Arentz and Respondent with respect to the
payment of foreign dues and Arentz' right to transfer
are in dispute but are not material to the resolution of
the issues in this case It is clear that Respondent took
the position that Arentz would have to obtain a work
permit for the month of April before he could transfer
his membership, while Arentz insisted that he was entitled
to transfer his membership as of his start on the job
As a consequence of Arentz' refusal to pay foreign dues
and obtain a permit, charges were filed with Respondent
against Arentz and a union trial was held in May. As
a result Arentz was fined $25 and required to obtain
permits and pay foreign dues to Respondent for the months
of April and May 1969.
Arentz complied with the decision of the trial board,
but thereafter he refused to pay additional foreign dues
for the months of June and July , again on the grounds
that he was entitled to transfer to Respondent. Respondent
' Unless otherwise indicated all dates mentioned below fell in 1969
757
apparently disputed his right to transfer at that time because
Arentz had become delinquent in payment of his dues
to Local 5. As a consequence of Arentz' refusal to pay
the foreign dues for June and July, he was again charged.
On the night of July 7, Respondent held a second trial.
Arentz did not appear for the trial, and Respondent found
him guilty as charged in default.
On the morning of July 8, Respondent's business repre-
sentative, James Gurley, came to the library jobsite at
approximately 7 30 At that time Linbeck employed approxi-
mately 16 to 17 bricklayers at the jobsite, and a substantial
amount of masonry work remained to be performed on
the job.
Upon his arrival at the jobsite, Gurley Went to the
trailer used as an office by Linbeck and conversed casually
for about 20 minutes with Job Superintendent A. J. Strobel
and Bricklaying Foreman L. A Berguron and Roy
Kruemcke As Berguron left the trailer to arrange to get
mortar on the scaffold for the start of work, Gurley followed
him out of the trailer mentioning as he left that there
was a problem or trouble on the job that morning.'
Gurley then went to the yard outside the trailer where
most of the bricklayers were gathered waiting to start
work. He waited there with them for Arentz to arrive
on the job. When Arentz arrived, Gurley spoke to him
with most of the other bricklayers standing nearby behind
Gurley.
Gurley informed Arentz of the trial and the fine and
asked Arentz if he was going to pay the fine and dues
Arentz reaffirmed his view that Respondent was treating
him improperly and said that he would not pay Gurley
told Arentz that he was delinquent . Arentz asked Gurley
if he was telling him that he could not work. Gurley
told Arentz to be his guest and congratulated Arentz for
having the longest one-man job in the country. Gurley
then turned to other bricklayers who had been listening
to his conversation with Arentz and who started to ask
questions. He told them that he was not there to tell
them whether they could or could not work, but that
they knew the bylaws as well as he did.' The bylaws
' Both Strobel and Berguron testified that Gurley said that they had
a problem or trouble on the job that morning According to Gurley
the subject came up when in response to some teasing about his appearance
at the jobsite that early in the morning he replied that he had a problem
and might have trouble According to Gurley as he had not yet conveyed
to Arentz the outcome of the trial the previous night he did not know
what Arentz' response would be and therefore did not know whether
he had a problem or not Nonetheless I find it more likely that the
version of Strobel and Berguron is accurate as Gurley knew Arentz
had taken an adamant position with respect to the payment of dues
to Respondent despite his previous trial and fine and Arentz had not
appeared for the trial on the previous night.
' Six witnesses, including Arentz and Gurley, testified as to what
was said at this time Although Arentz testified that Gurley told him
he could not work and told the other bricklayers that they were not
allowed to work with Arentz , his testimony on this regard was corroborated
only by that of Howard , who is hard of hearing , and was contradicted
by that of Foreman Berguron as well as that of Respondent's witnesses
Moreover, Arentz also testified that he could not recall Gurley's exact
words but that Gurley implanted the notion that the other bricklayers
could not work with a "conglomeration " of words I have credited
Gurley in these circumstances. The testimony is also in dispute as to
whether Gurley went beyond a general reference to the bylaws and
(cont'd)
758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to which Gurley referred provided that a fine of $25 shall
be levied against any member in good standing found
guilty of working with a suspended member.
After talking with Arentz and the other bricklayers,
Gurley spoke further with Foreman Berguron and returned
to the trailer to speak with Superintendent Strobel.' Gurley
told Strobel that he had a delinquent man on the job
and that the bricklayers would not go to work because
they were union men and knew they would be automatically
fined $25 if they worked with a delinquent member.' Strobel
asked who the delinquent member was, and Gurley replied
that it was Arentz. Strobel asked Gurley to try to get
the matter straightened out and suggested that he seek
assistance from an International Union representative
because all the bricklayers were at the jobsite, Linbeck
was behind schedule, and he wanted the matter settled
as soon as possible. Gurley placed a call to an International
Union representative from Strobel's telephone, but apparent-
ly failed to reach him. Gurley then left the trailer and
the jobsite.
At the normal starting time for the bricklayers only
Arentz went up on the scaffold to start work. The other
bricklayers remained standing in the yard. Berguron
informed Strobel that only Arentz was ready to work.
Strobel decided it was not practical to work with a single
man, and instructed Berguron to call Arentz off the scaffold
and to have the laborers remove the mortar from the
scaffold before it set .' There was a total of 15 bricklayers,
other than Arentz, who reported to the jobsite that morning
but did not work.' No bricklaying was done on the job
that day
stated that there would be a $25 fine for any bricklayer who worked
with Arentz , as Arentz , Berguron , and Howard testified Although the
conflict in this regard is more substantial, it is apparent that all the
bricklayers were aware that there was a $25 fine for working with
a delinquent member, and I am persuaded that the witnesses who testified
that Gurley specifically mentioned a fine were giving their interpretation
of Gurley's reference to the bylaws rather than the precise words which
Gurley used In addition , there was one further conflict in the testimony
According to Arentz , Gurley told Steward Trotter to record the names
of any bricklayers who worked with Arentz Gurley and Trotter specifically
denied that this instruction was given, and no witness corroborated
Arentz I have credited the denials In sum, I have concluded that ,
the testimony of Gurley and Respondent 's other witnesses as to what
Gurley said at the jobsite is essentially accurate However, I do not
accept as equally accurate Gurley's self-serving and argumentative explana-
tions during his testimony as to what was in his mind or his reasons
for his visit to the jobsite that morning
Although Berguron testified to a further conversation with Gurley,
Strobel , and Kruemcke before Arentz' arrival at the jobsite, both Strobel
and Gurley placed their further conversation after Gurley's talk with
Arentz and the other bricklayers I find that it occurred at that time
In substance, however, the statements attributed to Gurley by Berguron
differ little from those attributed to him by Strobel Gurley's testimony
as to his further conversation with Strobel was brief, and he testified
that he did not recall exactly what was said at that time I have credited
Strobel 's testimony as to their second conversation
Gurley testified that there was no such thing as an automatic fine
since charges and a trial were required before a fine could be levied
Nonetheless, as the provisions of the bylaws dealing with working with
delinquent members were clear, I find that Gurley used the term "auto-
matic" in the sense that the bylaws clearly stated the offense and the
penalty for it
The laborers had previously put mortar in place for the bricklayers
to use
One of them, Crow, testified that he came to the jobsite only
to inform Linbeck that he was leaving the job to start work on another
From Wednesday, July 9, through Friday, July 11, a
number of bricklayers reported to the jobsite each day
Arentz also appeared each day, and no work was performed
by the bricklayers. On each day some of the bricklayers
asked Berguron if Arentz had appeared and if anything
had been settled Each time Berguron told them that he
heard nothing and the situation was the same. No records
were kept of the identity or number of those who came
to the jobsite but Berguron estimated that on July 9 eight
or nine bricklayers came, on July 10 five or six appeared,
and on July 11 four or five appeared. They remained
at the site for varying lengths of time from an hour up
to the whole morning but then left.
On Monday, July 14, five bricklayers came to the jobsite
at the start of the workday. Arentz did not appear, and
Strobel told the foremen, Berguron and Kruemcke, to start
work because Arentz was not on the job. The five bricklay-
ers, including Steward Trotter, then started work. At or
around 3 in the afternoon Arentz appeared at the jobsite
and also started to work. The other five bricklayers, includ-
ing Steward Trotter, continued to work with him until
4:30, the normal quitting time.
On July 15 Arentz reported for work at the start of
the workday The five bricklayers who had worked the
previous day also reported, but only two of them went
to work with Arentz Trotter informed Berguron that he
was not going to work. He told Berguron that he had
gone to the union hall the night before and had been
told that he should have left the previous day when Arentz
appeared and could not work with Arentz.e Trotter took
his tools and left the jobsite. He did not return to work
for Linbeck until early in August. The remaining two
bricklayers stayed at the jobsite but did not start work.
Arentz worked for approximately 3 hours. During the
morning, Arentz approached Berguron and told him that
it looked as if Linbeck could not go on the way things
were and that he would be willing to enter into an agreement
to the effect that if Arentz were right in his dispute with
the Union Linbeck would pay him for wages lost and
that if he were wrong Linbeck would owe him nothing.'
Berguron told Arentz he lacked authority to make any
agreement with Arentz, and then informed Strobel of
Arentz's suggestion. Strobel asked to see Arentz, and Bergu-
ron brought him to the office. Arentz told Strobel that
the job couldn't go on the way it was and that Linbeck
would not be able to man the job as long as he was
on it. He said that it was unfair to him and the other
bricklayers who were losing a lot of time and that Linbeck
was falling behind schedule. Arentz volunteered to leave
the job if Strobel would sign a statement. Strobel replied
that he would sign a statement if Arentz would stay away
job However , there is no indication that any of the other bricklayers
who reported but did not work that morning had any intention of
leaving the job until the problem with Arentz arose
' Although Trotter testified that he had no contact with union officials,
between the time he left work on July 14 and the morning of July
15, he also testified that he could not recall whether he attended the
union meeting on the night of July 14 1 have credited Berguron as
to this conversation
' Arentz' testimony is vague as to the source of this proposal, but
both Berguron and Strobel testified that it originated with Arentz, and
Iso find
BRICKLAYERS, LOCAL UNION NO. 6
from the jobsite during working hours, but that he was
not laying Arentz oflff.'°
Arentz then left the job to prepare a statement for
Strobel to sign . He returned later with the statement which
Strobel signed, adding a notation that it was subject to
approval by Linbeck's attorney. 11 The statement as signed
provided:
I, Richard A. Arentz, in the interest of prudence,
equity and good conscience, subject to the laws of
the fair labor standards act and the state right to
work laws, submit to the demands of local #6 of Texas
and enter this agreement with Linbeck Construction
Company.
No 1
Arentz to cease to frequent the job site from 7 a.m.
to 5 p.m. Monday thru Friday.
No. 2
Linbeck to place in escrow by the 15th of each succeed-
ing month any unpaid earnings of the preceding month,
from the 8th day of July 1969 to the conclusion
and disposal of this matter.
No. 3
Arentz to supply Linbeck, in Houston with a statement
of earnings and transportation cost less five dollars
each month by the 10th of each succeeding month.
Although the statement does not set forth the ultimate
disposition to be made of the money placed in escrow,
it appears from Arentz' testimony that it was to be given
him if he prevailed in his dispute with Respondent on
appeal and otherwise not. At some point either at the
time Arentz volunteered to leave the job or earlier, Strobel
asked Arentz to pay the fine and dues under protest so
that the other bricklayers could work, but Arentz refused.
At 12:30 after Arentz left the job, the two remaining
bricklayers at the jobsite joined the two who were working.
and worked for the rest of the day. On the next day
six bricklayers reported and worked. By the start of the
next week there were nine bricklayers working regularly
on the job, and the complement slowly increased thereafter.
There were no further interruptions to the job
2. Concluding findings
The General Counsel and Linbeck contend that Respond-
ent caused and attempted to cause Linbeck to discharge
Arentz because of his dispute with Respondent over payment
of foreign dues thereby violating Section 8(b)(2) of the
Act. The complaint does not attack Respondent' s rules
pertaining to work with suspended members, but it attacks
their enforcement through a work stoppage and threats
of a work stoppage, which the General Counsel and Linbeck
would attribute to Respondent, as a means of forcing Arentz'
removal from the job. Respondent contends that the work
stoppage was merely the result of the decisions of individual
1° Strobel also testified that he told Arentz he would not give him
his money or pay him off In view of the statement which Strobel
signed , I construe that to mean that he would not pay him anything
until his dispute with Respondent was resolved and then would pay
him only if Arentz ' position was sustained
" In the absence of evidence to the contrary, it is assumed herein
that the statement was approved
759
bricklayers to abide by Respondent's bylaws and that it
engaged in no unlawful conduct.
Section 8(b)(2) makes it an unfair labor practice for
a labor organization to cause or attempt to cause an empiJy-
er to discriminate against an employee in regard to hire
or tenure of employment or any term or condition of
employment to encourage or discourage membership in
any labor organization. An exception is provided for the
enforcement of membership obligations pursuant to a valid
union-security agreement , but is not relevant here in the
absence of such an agreement. Section 8(b)(1)(A) of the
Act makes it an unfair labor practice for a labor organization
to restrain or coerce employees in the exercise of the
rights guaranteed by Section 7 of the Act, "Provided, That
this paragraph shall not impair the right of a labor organiza-
tion to prescribe its own rules with respect to the acquisition
or retention of membership therein."
The quoted proviso to Section 8(b)(1)(A) has been held
to insulate the maintenance and enforcement of bylaws
similar to that involved here from the reach of Section
8(b)(1)(A).12 However, when a union involves an employer
in its efforts to enforce its bylaws by causing or attempting
to cause the employer to discriminate against an employee
because of his failure to comply with his membership obliga-
tions, the union's efforts cease to be internal and violate
Section 8(b)(2). In distinguishing between lawful efforts
to enforce bylaws and unlawful efforts to cause discrimina-
tion the United States Court of Appeals for the Second
Circuit stated:"
However, in order for union conduct to violate Section
8(b)(2), as opposed to Section 8(b)(1)(A), there must
be some direct approach to the employer, or some
conduct aimed at him, for the purpose of causing
the employer to discriminate by implementing the union
bylaw through his hiring practices or otherwise. . .
Undoubtedly, petitioners as union members have
been acutely aware of the bylaw's existence and of
the rigorousness of enforcement within the Federation.
However, on the present record the 'Board was free
to find that petitioners, have not shown any pattern
of action by the Federation aimed at them as employers.
Here, the evidence shows that on July 8, before Arentz
appeared at the jobsite, Gurley told Strobel and Berguron
that there was a problem or trouble on the job that morning
When Arentz asked Gurley in the presence of the other
bricklayers whether Gurley was telling him he could not
work, Gurley told Arentz to be his guest and congratulated
Arentz for having the longest one-man job in the country.
Then, when the other bricklayers started to question Gurley,
he told them that he was not there to tell whether they
could or could not work, but that they knew the bylaws
as well as he did. Thereafter, when Gurley again spoke
to Strobel, he told Strobel that he had a delinquent man
-' American Federation of Musicians, AFL-CIO (Don Glasser), 165
NLRB 798, affd sub nom Glasser et al v N L R B , 395 F 2d 401 (C A 2),
Associated Musicians of Greater New York, Local 802, A FM, AFL-CIO
(Joe Carroll Orchestras), 176 NLRB No 46
11 Glasser et a! v . N.LR B., supra, 395 F 2d at 406, quoted with
approval in Associated Musicians of Greater New York, Local 802, AFM,
AFL-CIO (Joe Carroll Orchestras), supra.
760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on the job and that the bricklayers would not go to work
because they were union men and knew they would be
fined if they worked with Arentz.
In these circumstances, I cannot credit Gurley's testimony
that he visited the jobsite merely as a messenger to convey
to Arentz the decision of the trial board on the previous
night, nor can I accept the contention that what ensued
was the mere consequence of individual actions of the
other bricklayers. Here there was a direct approach to
Linbeck and conduct aimed at Linbeck. The time and
place chosen by Gurley to communicate the results of
the trial to Arentz indicate that Gurley was interested
not only in informing Arentz but also in informing the
other bricklayers before they could perform any further
work on the job. While Gurley was careful in the language
he used in the presence of the bricklayers, he left little
doubt that what he sought was a work stoppage by the
other bricklayers as long as Arentz remained on the job'
and delinquent. Thus his statement congratulating Arentz
for having the longest one-man job in the coutry was
a clear signal to the other bricklayers that they were not
to work. Although Gurley prefaced his statement to the
other bricklayers with a disclaimer that he was there to
tell them whether they could or could not work, in the
next breath he made it clear that they were not to work,
telling them that they knew the bylaws as well as he
did. Thus, I find that Gurley induced the other bricklayers
to stop work because of Arentz' refusal to comply with
the decision of the trial board and that Respondent is
responsible for the work stoppage.
Nor did Gurley's efforts stop there. When Gurley spoke
to Strobel before Arentz' arrival, Gurley stated that there
was a problem or trouble on the job. However general
that comment, in his later conversation with Strobel Gurley
was explicit and told Strobel that because of the delinquency
of Arentz the other bricklayers would not work. Thus,
Gurley bolstered the refusal of the other bricklayers to
work with the implied threat that the work stoppage would
last as long as Arentz was on the job.14 While Gurley
was never explicit in stating to Strobel what Linbeck could
do to end the work stoppage, there were only two foreseeable
actions which could end it One was the payment of the
fine and fees by Arentz, which Arentz had already refused
to make. The other was the removal of Arentz from the
job. Only the latter was within Linbeck's control.
While it is thus clear that Respondent attempted to
cause Linbeck to discriminate against Arentz, the question
remains whether Respondent caused such discrimination.
The immediate consequence of the work stoppage was
that Linbeck decided to suspend all bricklaying operations,
and, despite Arentz' availability for work, no bricklaying
was performed on July 8-11. Although it is apparent that
one bricklayer could not make substantial progress on a
job which had been employing 17, the record does not
reveal whether the absence of the other bricklayers made
the continuation of work by Arentz so inefficient or infeasible
as to render his utilization on the job impossible as a
practical matter .15 That Linbeck could operate with less
than a full complement is indicated by the performance
of work on July 15 and during the slow buildup of employ-
ment thereafter In these circumstances, I find that Respond-
ent caused Linbeck to deny Arentz work during the period
of July 8-11 because of his failure to pay the fine and
foreign dues demanded of him.
As set forth, when Arentz did not appear at the jobsite
on July 14, the next regular workday, work resumed with
the small group of bricklayers who reported. They did
not leave when Arentz arrived to work in the middle
of the afternoon, and, the next morning, two of them
joined Arentz at work, while two did not, and one, Respond-
ent's steward, Trotter, took his tools and left the job.
With this background, Arentz approached his foreman and
job superintendent, Strobel, to seek an agreement under
which he could leave the job and establish a right to
be paid for lost work in the event that he prevailed in
his dispute over the union fine and his membership rights.
Thus, it appears that Arentz' departure from the job
was initiated by Arentz. Yet while Strobel did not lay
Arentz off, neither did Arentz quit unconditionally, and
it is beyond dispute that Arentz broached the subject of
his departure because of the evident impact of the work
stoppage on the job. While there was bricklaying work
being performed when Arentz left, there was no indication
that the stoppage had ended permanently. Thus, two brick-
layers who had worked with Arentz the previous day
refused to work with him on July 15, and Trotter left
the job indicating to both Arentz and Berguron that he
was under pressure from Respondent for having not left
the job when Arentz started work the previous day.
The question to be decided on these facts is whether,
by entering into the arrangement with Arentz which resulted
in Arentz' departure from the job, Linbeck discriminated
against Arentz. I find that it did. Arentz did not simply
quit, but rather sought some protection as a condition
of leaving. By acquiescing to Arentz' proposal, Linbeck
became a party to Arentz' departure from the job with
less than the complete protection against reprisal to which
Arentz was entitled under the Act. It is true that the
arrangement proposed by Arentz, as a practical matter,
must have been virtually irresistible to Linbeck, and it
may well be that if the issue were whether Linbeck should
be jointly responsible with Respondent for remedying the
discrimination against Arentz, the circumstances would pro-
vide cause for relieving Linbeck of such liability. But in
answering the question whether Respondent caused Linbeck
to discriminate against Arentz, I find that Arentz' departure
from the job was a consequence of a discriminatory arrange-
ment with Linbeck into which he and Linbeck entered
as a consequence of Respondent's unlawful pressure and
that Respondent therefore caused Linbeck to discriminate
against Arentz. Accordingly, I find that Respondent violated
Section 8(b)(2) of the Act. As its conduct went beyond
internal enforcement of its bylaws, I find further that by
Gurley's conduct inducing the work stoppage by an implied
,4 Local 120, Laborers . International Union of North Amenca,AFL-, 15 Cf Associated Musicians of Greater New York, Local 802, A FM
CIO (Edward J. DeBartolo Corporation), 174 NLRB No_ 150 AFL-CIO (Joe Carroll Orchestras), 176 NLRB No 46
BRICKLAYERS , LOCAL UNION NO. 6
threat of fines to the other bricklayers Respondent restrained
and coerced Arentz and the other employees in violation
of Section 8(b)(1)(A) of the Act 16
B. Case 16-CB-492
I The facts
On September 29 Lloyd Hock, brick foreman for Dee
Brown Masonry, hired Arentz to work as a bricklayer
on a project known as the Six Flags Mall in Arlington,
Texas, within Respondent's jurisdiction
When Arentz started to work, Hock asked him to check
in with Eugene Thornton, Respondent's steward on the
job. Arentz went to Thornton and told him he was going
to work on the job " Thornton asked him if he was the
man who was having trouble with Respondent. Arentz
said that he was, and Thornton asked if it had been settled.
Arentz replied that it was not. Thornton asked Arentz
what he was going to do about paying dues to Respondent,
and Arentz told him that he could not pay them while
the dispute lasted Thornton told Arentz that he would
not be allowed to work on the job without a permit.
Arentz left Thornton and started to work, and Thornton
called Hock to where he was working. Thornton told
Hock that Arentz would have to pay working dues, and
Hock agreed that the payment was required under Respond-
ent's rules. Hock asked what the problem was, and Thornton
replied that Arentz did not want to pay working dues.
Thornton mentioned that Arentz had had problems at
Denton and told Hock that "he might have trouble on
his job over the same situation."te Hock asked what the
problem was, and Thornton described to him what he
knew of the two cases in Denton, with reference to Arentz'
initial and later refusals to pay working dues there Although
Thornton testified that he did not know whether he told
Hock that there had been a shutdown on the job at Denton,
he conceded that he had heard that there had been a
shutdown at Denton and testified that he told Hock there
had been trouble and what kind of trouble they had.
Hock told Thornton that he would talk to Arentz about
it.
Hock then went to Arentz and asked him if he would
pay working dues so that Brown would not have any
problem on the job. Arentz replied that he could not
do so because he was in the midst of a dispute over
the transfer of his book. Hock told Arentz that he knew
nothing about the dispute and was not taking sides but
wanted the job done without a shutdown, so that, if Arentz
did not want to pay working dues, he would have to
leave the job. Arentz then left the job. Two days later,
16 Unlike N.L.R.B. v Allis-Chalmers Mfg Co, 388 US 175, here
the threat of fines did not merely restrain or coerce employees to join
in lawful concerted activity See also Scofield, et al v NL R B., 394
U S 423
" Unless otherwise indicated , my findings as to conversations between
Arentz, Hock, and Thornton are based on a composite of their testimony
which for the most part is not in conflict
" Hock testified that Thornton said they would have trouble or a
shutdown but could not recall which word Thornton used Thornton
testified that he spoke of trouble but not a shutdown In view of Hock's
uncertainty, I have credited Thornton
761
Arentz started work on another job for Brown located
outside Respondent's jurisdiction.
2. Concluding findings
An initial question with respect to the allegations concern-
ing this incident is whether Respondent is responsible for
the acts of its job steward Thornton. The evidence establishes
that as a job steward, Thornton received money from
members, issued receipts to members for dues collected,
and signed up employees as members of the Union. Respond-
ent's constitution and bylaws provide that stewards shall
inspect the working cards of members and see that they
are current. They provide that upon starting work on
a job, a member shall locate the steward and show his
dues book for inspection They provide further for reports
by stewards at membership meetings on the names and
membership status of those members working on the job,
with an explanation of the reason any member is not
paid up.
Thornton's conversation with Arentz occurred in the
course of the performance of the duties with which he
was specifically charged While the bylaws imposed no
further obligation upon him to intercede with his foreman
on the basis of what he discovered, his conversation with
Hock was in furtherance of Respondent's interests and
within the scope of his general authority to enforce union
membership obligations on the jobsite. I find that Thornton
was an agent of Respondent and that Respondent is answera-
ble for his conduct with respect to Arentz at the Arlington
jobsite.19
There is no question that Arentz was removed from
the Six Flags Mall job because of his dispute with Respond-
ent following Thornton's conversation with Hock The only
question is whether Respondent through Thornton caused
Brown to remove Arentz within the meaning of Section
8(b)(2). I find that it did. Thornton made a direct approach
to Hock, raising the issue with Hock and threatening trouble
on the job because Arentz did not want to pay working
dues. Although Thornton testified that he did not threaten
a shutdown, he conceded that he referred to the trouble
on the library job and told Hock what kind of trouble
they had. Whether or not Thornton mentioned a shutdown
in so many words, there can be little doubt from his
testimony as a whole, as well as that of Hock, that Thornton
conveyed to Hock that he would have "trouble on the
job" in the form of a work stoppage, and not merely
that there was an internal dispute between Respondent
and Arentz I find that Thornton threatened that there
would be a work stoppage if Arentz remained on the
job without paying his working fees and that Hock removed
Arentz from the job as a consequence of that threat.20
Accordingly, I find that Respondent attempted to and
'9 International Association of Bridge, Structural and Ornamental Iron-
workers, Local 600 (Bay City Erection Company, Inc), 134 NLRB 301,
306-307, Hampton Merchants Association, eta!, 151 NLRB 1307
30 As it appears that Arentz started work on another job for Brown
2 days later, it is not clear whether Arentz was discharged by Brown
or simply transferred to another job In either case, his removal from
the job amounted to discrimination
762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
did cause Brown to discriminate against Arentz in violation
of Section 8(b)(2) and 8(b)(1)(A) of the Act.31
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activites of the Respondent set forth above, occurring
in connection with the operations of the employers described
in section I, above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several
States and tend to lead to labor disputes burdening and
obstructing commerce and the free flow thereof.
V. THE REMEDY
As I have found that Respondent caused Linbeck Con-
struction Corporation and Dee Brown Masonry, Inc, to
discriminate against Richard A. Arentz because he was
not a member of the Respondent in good standing, I
shall also recommend that it be ordered to notify Linbeck
Construction Corporation and Dee Brown Masonry Inc.,
in writing, with copies to Arentz, that it has no objection
to the hiring of Arentz by these employers without regard
to membership in or payment of permit fees to Respondent,
I shall further recommend that Respondent be ordered
to make Arentz whole for any loss of pay he may have
suffered by reason of the discrimination against him by
payment to him of the amounts he normally would have
earned as wages from July 8, 1969, to the date 5 days
after Respondent serves the written notices required above,
less net earnings, to which shall be added interest at the
rate of 6 percent per annum, in accordance with the formula
set forth in F. W. Woolworth Company, 90 NLRB 289,
and Isis Plumbing & Heating Co., 138 NLRB 716.
The General Counsel asks as a further remedy that
Respondent be ordered to rescind the fine assessed against
Arentz and reimburse him for moneys already paid Respond-
ent as fines or working dues, and that Respondent be
ordered to make whole all of its members or other employees
who lost work due to its threat to fine any member who
worked with Arentz. With respect to the fine levied against
Arentz and the working dues, their legality was not placed
in issued by the allegations of the complaint, they were
imposed upon Arentz as a member of Respondent, and
the authorities relied on by the General Counsel are not
apposite. With respect to the loss of work by other persons,
there is no allegation or showing that Respondent caused
Linbeck or Brown to discriminate against any employee
other than Arentz.32 Accordingly, I decline to recommend
the further relief requested by the General Counsel.
As Respondent engaged in similar conduct with respect
to two employers, I shall recommend that Respondent
be ordered to refrain from engaging in similar conduct
with respect to the employees of any employer.
21 Local 120, Laborers International Union of North America, AFL-CIO
(Edward J DeBartolo Corporation), supra
22 See United Steelworkers of America, AFL-CIO, et a! (Inspiration
Consolidated Copper Co ), 174 NLRB No 34, American Guild of Variety
Artists, AFL-CIO ( Fontainebleau Hotel), 163 NLRB 457 , 458, and cases
cited therein
Upon the basis of the above findings of fact and the
entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. Bricklayers and Stone Masons, Local Union No. 6,
Bricklayers, Masons & Pasterers' International Union of
America, AFL-CIO is a labor organization within the
meaning of Section 2(2), (6), and (7) of the Act.
2. Linbeck Construction Corporation and Dee Brown
Masonry, Inc., are engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
3. By attempting to cause and causing a work stoppage
because Linbeck Construction Corporation employed a sus-
pended member of Respondent, by threatening Linbeck
and Dee Brown Masonry, Inc., with work stoppages because
they employed a suspended member, by causing both
employers to discriminate against Richard A. Arentz
because he was a suspended member of Respondent, and
by threatening other employees with fines if they continued
to work with Arentz, Respondent has engaged in and
is engaging in unfair labor practices affecting commerce
within the meaning of Section 8(b)(2) and 8(b)(1)(A) and
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER23
Upon the basis of the foregoing findings of fact and
conclusions of law and pursuant to Section 10(c) of the
Act, I hereby recommend that Respondent, Bricklayers
and Stone Masons, Local Union No. 6, Bricklayers, Masons
& Plasterers' International Union of America, AFL-CIO,
its officers, agents and respresentatives, shall:
1. Cease and desist from:
(a) Causing or attempting to cause Linbeck Construction
Corporation, Dee Brown Masonry, Inc., or any other
employer to descriminate against Richard A. Arentz or
any other employee because of failure to satisfy membership
obligations to or nonmembership in Bricklayers and Stone
Masons, Local Union No. 6, Bricklayers, Masons & Plaster-
ers' International Union of American, AFL-CIO.
(b) In any like or related manner restraining or coercing
employees in the exercise of rights guaranteed by Section
7 of the Act.
2. Take the following affirmative action, which is neces-
sary to effectuate the policies of the Act:
(a) Notify Linbeck Construction Corporation and Dee
Brown Masonry, Inc., in writing, that it has no objection
to the employment of Richard A. Arentz and furnish
said employee with copies of such notification.
(b) Make Richard A. Arentz whole for any loss of
pay he may have suffered as a result of the discrimination
against him in the manner set forth in the section of
this Decision entitled "The Remedy."
23 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 all objections thereto shall be deemed waived for all purposes
BRICKLAYERS, LOCAL UNION NO 6
(c) In the event that Richard A Arentz is presently
serving in the Armed Forces of the United States, notify
him, in writing, that it has no objection to his employment
in accordance with the Selective Service Act and the Univer-
sal Military Training and Service Act, as amended, after
discharge from the Armed Forces
(d) Post at its offices, copies of the attached notice
marked "Appendix."" Copies of said notice, on forms pro-
vided by the Regional Director for Region 16, after being
duly signed by Respondent's 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 members are
customarily posted. Reasonable steps shall be taken by
the Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Deliver to the Regional Director for Region 16,
signed copies of the said notice in sufficient number to
be posted by Linbeck Construction Corporation and Dee
Brown Masonry, Inc., the employers willing, in all places
where notices to employees are customarily posted.
(f) Notify said Regional Director, in writing, within
20 days from the receipt of this Decision, what steps
have been taken to comply herewith.29
" 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 Order of the National Labor Relations
Board "
" 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 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 Linbeck
Construction Corporation, Dee Brown Masonry, Inc.,
763
or any other employer to discriminate against Richard
A Arentz or any other employee because of failure
to satisfy membership obligations to or nonmembership
in Bricklayers and Stone Masons, Local Union No.
6, Bricklayers, Masons & Plasterers' International
Union of America, AFL-CIO.
WE WILL NOT in any like or related manner restrain
or coerce employees in the exercise of their rights
guaranteed in Section 7 or the Act.
WE WILL notify Linbeck Construction Corporation
and Dee Brown Masonry, Inc., in writing, that we
have no objection to the employment of Richard A.
Arentz and we shall furnish him with copies of such
notification.
WE WILL make whole Richard A. Arentz for any
loss of pay he may have suffered by reason of the
discrimination against him.
Dated By
BRICKLAYERS AND STONE
MASONS, LOCAL UNION No. 6
BRICKLAYERS , MASONS
& PLASTERERS'
INTERNATIONAL UNION OF
AMERICAN, AFL-CIO
(Labor Organization)
(Representative)
(Title)
This is an official notice and must not be defaced
by anyone.
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, 8A24 Federal Office Building, 819 Taylor Street,
Fort Worth, Texas 76102, Telephone 817-334-2921.