Norman Fromme Masonary Contractor

National Labor Relations Board - Board Decisions

Jun 19, 1970

183 N.L.R.B. 670 (N.L.R.B. 1970)

670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Norman Fromme , an Individual , d/b/a Norman
Fromme Masonry Contractor and Charles R. Bell,
James D. Howell and Bricklayers , Masons and
Plasterers' International Union of America
(AFL-CIO), Local No . 32, Vincennes , Indiana,
Party to the Contract
Bricklayers , Masons and Plasterers ' International
Union of America (AFL-CIO), Local No. 32 of In-
diana, and its Secretary , Clyde J. Jones, Jr. and
Norman Fromme , an Individual , d/b/a Norman
Fromme Masonry Contractor. Cases
25-CA-3403-1, 25-CA-3403-2, and
25-CB-8 89
June 19, 1970
DECISION AND ORDER
By MEMBERS MCCULLOCH, BROWN, AND JENKINS
On March 11, 1970, Trial Examiner Ivar H.
Peterson issued his Decision in the above-entitled
proceeding, finding that Respondent Employer and
Respondent Union had engaged in and were engag-
ing in certain unfair labor practices as alleged in the
complaint and recommending that they cease and
desist therefrom and take certain affirmative ac-
tion, as set forth in the attached Trial Examiner's
Decision. The Trial Examiner also found that
Respondent Union had not engaged in certain other
unfair labor practices alleged in the complaint and
recommended dismissal as to them. Thereafter,
Respondent Union filed exceptions to the Trial Ex-
aminer 's Decision and a supporting brief, and the
General Counsel filed limited exceptions to the
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 these cases to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in these cases, and
hereby adopts the findings, conclusions, and recom-
mendations ' of the Trial Examiner with the modifi-
cations noted below.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and" hereby
orders that Respondent Norman Fromme, an In-
dividual, d/b/a Norman Fromme Masonry Contrac-
tor, Jasper, Indiana , his agents, successors, and as-
signs , and Respondent Bricklayers, Masons and
Plasterers' International Union of America
(AFL-CIO), Local No. 32 of Indiana, and its
Secretary, Clyde J. Jones, Jr., and its other officers,
agents , and representatives, shall take the action set
forth in the Trial Examiner's Recommended Order
with the modifications noted below.
1. Redesignate paragraphs 1(b) and (c) of sec-
tion B of the Trial Examiner's Recommended
Order as paragraphs 1(c) and (d), respectively, and
add the following as a new paragraph 1(b):
"Interpreting or giving effect to its agreement
with Respondent Employer in any manner which
causes or attempts to cause said employer to dis-
criminate against applicants for employment in
violation of Section 8(a)(3) of the Act."
2. Delete paragraph 2(b) of section B of the
Trial Examiner's Recommended Order and
redesignate paragraphs 2(c) and (d) as paragraphs
2(b) and (c), respectively.
3. Substitute the following for the fourth in-
dented paragraph of Appendix B attached to the
Trial Examiner's Decision.
WE WILL NOT interpret or give effect to our
agreement with the above-named Employer in
any manner which causes or attempts to cause
the above-named Employer to discriminate
against applicants for employment in violation
of Section 8(a)(3) of the Act.
MEMBER BROWN, concurring in part, dissenting in
part:
Contrary to the majority, I would dismiss the
complaint insofar as it alleges that the Union
causea or attempted to cause discrimination against
Bell and Howell in violation of Section 8(b)(1)(A)
and (2) of the Act.
The Employer and Union are parties to a collec-
tive-bargaining agreement which included a lawful
clause giving unemployed bricklayers in the area a
hiring preference over nonresidents. Bell and
Howell were nonresidents who sought work in the
Union's jurisdiction while local bricklayers were
unemployed and available for work. The Trial Ex-
aminer, in finding that the Union unlawfully inter-
fered with the employment of Bell and Howell, con-
' For remedial purposes the Trial Examiner recommended that Respon-
dent Union rescind the provision in the applicable collective -bargaining
agreement which resulted in preferential treatment for members of
Respondent Union However, as that provision is lawful on its face, and the
violation we find is predicated on its unlawful application, we shall order
Respondent Union to cease and desist from interpreting or giving effect to
said provision in any manner which discriminates against employment ap-
plicants who are not members of Respondent Union Accordingly, we shall
delete those provisions of the Trial Examiner 's Recommended Order
requiring rescission of the clause in issue
183 NLRB No. 83
NORMAN FROMME MASONRY CONTRACTOR 671
cluded that the otherwise lawful "hiring
preference" clause was actually applied to afford
employment preference on the basis of union mem-
bership.
In my opinion, the General Counsel has failed to
meet his burden of proving either that the clause
was discriminatorily applied or that the interference
with the hiring of Bell and Howell was for reasons
other than their seeking work while local
bricklayers were unemployed. There is no evidence
that local unemployed bricklayers who were non-
members were ever denied employment in favor of
union members. Therefore, the clause clearly was
not applied to afford unemployed area residents a
preference based upon union membership.
Although there is evidence that the Union urged
the Employer to hire resident members before em-
ploying Bell and Howell, ambiguous evidence of
this nature is hardly sufficient to establish a prima
facie case of discrimination. For it is quite possible
that all bricklayers within the Union's jurisdiction
were members, or that those available for work
were all members, and, in such cases, the Union's
attempt to secure their employment would be per-
fectly consistent with a lawful application of the
collective-bargaining agreement and would not, as
a matter of fact, evidence a discriminatory
preference based on union membership. Ac-
cordingly, as I am not satisfied that the General
Counsel has sustained his burden of proving that
the Union's actions with respect to Bell and Howell
related to their nonmembership,2 I would dismiss
the complaint insofar as the 8(b)(I)(A) and
8(b)(2) allegations are based thereon.
' It is noteworthy that at times material to the instant proceeding at least
six nonmembers were employed as rank-and-file bricklayers within the
Union 's jurisdiction
TRIAL EXAMINER'S DECISION
Statement of the Case
tion 8(a)(3) and (1) of the Act. Thereafter, on
charges filed on July 1, 1969, by Fromme against
the Union and its secretary, Clyde Jones, Jr., the
Regional Director issued a complaint on August 13,
1969, against the Union and Jones, alleging that the
Responent Union had violated Section 8(b)(2) and
(1)(A) of the Act by causing Respondent Fromme
to discriminate against Bell and Howell , and had
further violated Section 8(b)(1)(A) by threatening
to fine Bell and Howell because they filed charges
under the Act. Also on August 13 the Regional
Director consolidated the cases for hearing.
Pursuant to notice, I conducted a hearing on the
consolidated complaints, as further amended at the
hearing, at Jasper, Indiana, on August 26, 27, and
28, 1969, and January 6, 1970. The General Coun-
sel and the Respondents were represented by coun-
sel and participated in the hearing. Posthearing
briefs filed by all parties have been carefully con-
sidered.
Upon the entire record, and from my observation
of the witnesses , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT EMPLOYER
The Respondent Employer , an individual
proprietorship, is engaged at Jasper, Indiana, and
vicinity as a masonry contractor. During 1968 the
Respondent Employer purchased goods and materi-
als valued at $34,714 which were transported to
construction sites in Indiana from outside the State
of Indiana. During the same year Fromme per-
formed work in Indiana for Peyronnin Construction
Company, of Evansville, Indiana, in the amount of
$117,500. Peyronnin during 1968 made direct
purchases from suppliers outside the State of Indi-
ana valued in excess of $134,000, which purchases
were,§hipped directly to Peyronnin's Indiana facili-
ties. I find,' contrary to the contention of Respon-
dent Union, that the Respondent Employer is en-
gaged in commerce within the meaning of the Act
and comes within the Board's' jurisdictional stan-
dards, and it will effectuate the policies of the Act
to assert jurisdiction herein.
IVAR H . PETERSON , Trial Examiner : Upon charges
filed, on May 14, 1969 , by Charles R. Bell and
James D. Howell , the General Counsel of the Na-
tional Labor Relations Board, by the Regional
Director for Region 25, issued a complaint on June
27, 1969, against Norman Fromme , an Individual,
d/b/a Norman Fromme Masonry Contractor, herein
called Fromme or Respondent Employer, alleging
in substance that pursuant to a contract arrange-
ment with Bricklayers , Masons and Plasterers' In-
ternational Union of America (AFL-CIO), Local
No. 32, Vincennes , Indiana , herein referred to as
Local 32, the Union , or the Respondent Union,
Fromme had on April 22, 1969, unlawfully denied
employment to Bell and Howell in violation of Sec-
II. THE LABOR ORGANIZATION INVOLVED
The Respondent Union, Local 32, is a labor or-
ganization within the meaning of the Act. Clyde
Jones is secretary and business agent and Fred
Shoobridge is a steward . The Respondent Union
admitted , and I find, that Jones and Shoobridge are
agents of Respondent Union within the meaning of
Section 2 (13) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background and Issues
At all times here material the Respondent Em-
ployer has been a signatory to the collective-bar-
672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gaining agreement, effective from July 1, 1967, to
April 30, 1970, between building contractors of
Knox, Pike, and Gibson Counties in Indiana and the
Respondent Union. These three counties constitute
the territorial jurisdiction of the Respondent Union.
One provision of this agreement reads as follows:
Local Employees shall be employed on all pro-
jects at all times, if local Employees are availa-
ble.
The General Counsel contends, as alleged in the
complaints, that this provision has been applied and
given effect so as to require that members of the
Respondent Union be preferred for employment
and hired if available before all others and, more
particularly, that two applicants for employment,
Charles Bell and James Howell, not members of
Local 32, were denied employment by virtue of the
application of this provision. The complaints
further alleged that the arrangement or practice
between the Respondents require membership in or
clearance by the Respondent Union as a condition
of employment of employees hired by or who per-
formed work for Respondent Employer under the
jurisdiction of the Respondent Union. Additionally,
the complaint against the Respondent Union alleges
that its admitted agent, Secretary Jones, threatened
to fine Bell and Howell because they filed charges
under the Act and refused to dispatch Bell for the
same reason .The Respondent Employer, insofar as
wrongdoing on his part is concerned, virtually ad-
mits that he did not hire Bell and Howell on April
22, although he needed men, because they were not
members of Local 32.1 The Respondent Union de-
nies that it committed any unfair labor practices.
B. The Facts
Beginning in August 1968 and continuing into
the summer of 1969 the Respondent Employer was
engaged in performing the masonry work as a sub-
contractor on the North Gibson High School in
Princeton, Indiana, which is in Gibson County and
within the territorial jurisdiction of Local 32. Fol-
lowing a shutdown in mid-December, work
resumed in January. Fromme, the Respondent Em-
ployer, testified that in January, as well as on prior
occasions, Secretary Jones told him that according
to the contractual provision quoted above Fromme
could not hire men who were not members of Local
32 so long as Local 32 members were available.
According to Fromme, in February he wished to
have Jerry Summers , an employee who had just
completed a job for Fromme in Jasper, come to the
North Gibson High School job to work as a
bricklayer. Summers was a member of Local 53 of
the Bricklayers International and in the past had
worked for Fromme on a number of occasions.
' The charge filed by Respondent Employer alleged that "on orders of
Jones" he "could not hire" Bell and Howell on April 22 "because they
were not members of Local No 32 "
Fromme discussed this proposal with Fred
Shoobridge, the steward on the North Gibson job
and an admitted agent of the Respondent Union.
Shoobridge, so Fromme testified, advised him that
10 Local 32 members were then unemployed and
the only way Summers could be put to work on the
job was as a foreman. Summers testified he talked
to Shoobridge who "said I would have to be a fore-
man" because Local 32 men were not working.'
Summers did work as a foreman on the job for
several weeks. He then called Jones and stated that
he did not wish to work as a foreman but as a
bricklayer and inquired if Local 32 men were out of
work. Jones advised him Local 32 men were unem-
ployed. Knowing that Local 32 did not want non-
members of that local working in its jurisdiction
when members were unemployed, and not wishing
to continue working as a foreman, a job he felt was
too much for him, or cause any trouble between
Jones and Fromme, Summers quit.
James Vaughn,' a member of Local 52, who had
worked as a bricklayer on the North Gibson job
prior to the mid-December shutdown, had an ex-
perience somewhat similar to that of Summers.
When work resumed Vaughn was told by Fromme
that he would be unable to use Vaughn, as there
were too many Local 32 men unemployed. Later
on, in May or June, Vaughn accompanied Fromme
to the jobsite as Fromme indicated he thought all
Local 32 men were then employed. Fromme asked
Shoobridge, the steward, if Vaughn could go to
work. Shoobridge replied that he thought eight
Local 32 men were out of work and that Jones
should be contacted. Vaughn visited Jones where
the latter was working and was told that four or five
men were out of work but as soon as they obtained
work he (Jones) would let Vaughn go to work.
Thereupon, Fromme hired Vaughn as foreman and
Fromme worked as an ordinary bricklayer. This ar-
rangement lasted 4 days and then Shoobridge sold
Vaughn a work permit and Vaughn thereafter
worked as a regular bricklayer.
Bell and Howell, the alleged discriminatees, both
members of Local 54 of the Bricklayers at Olney,
Illinois, met Jones in Vincennes, Indiana , on April 8
and inquired about the possibility of obtaining work
in the jurisdiction of Local 32. Jones replied that
there was no work available explaining , as Bell
credibly testified, "that he couldn't put on any per-
mit men because he had [Local 32] men loafing."
Howell testified to the same effect. Jones was not
questioned about this incident.
According to Fromme, Jones visited the North
Gibson project the week prior to April 22 and
asked Fromme whether he was ready to hire men,
saying that there were about eight men from Local
32 unemployed and that Fromme would have to
2 Shoobndge was not questioned about this incident
3 At some places in the transcript his name is erroneously spelled
"Bond
NORMAN FROMME MASONRY CONTRACTOR 673
hire these before he employed any others. Jones
testified he spoke to Fromme on the jobsite on
April 3 and asked if he needed any bricklayers.
Fromme replied he was not hiring until the ground
dried out. Jones then, so he testified, "informed
him that we had local men out of employment and I
would like to have him call me if he needed
bricklayers and he told me he would do this."
On April 22 Bell and Howell went to Fromme's
North Gibson job looking for work. They asked
Fromme if he had any need for men, and Fromme
replied that he needed two bricklayers badly.
Thereupon, according to Fromme's testimony on
direct examination by counsel for the General
Counsel, the following occurred:
Q. Then after there was some conversation
between Mr. Shoobridge and Mr. Howell,
didn't you ask them if they were from the Vin-
cennes Local?
A. That's correct.
Q. And one of the men told you he had
been, but was not then.
A. That's right.
Q. And the other man was not from the
Vincennes Local either, Mr. Bell.
A. That's right.
Q. Then didn't you tell these men that you
were sorry but you could not hire them?
A. Yes. A week previous to this is when
Jones came to the job site and wanted to know
whether I was ready to hire men. He said he
had about eight men loafing from that Local
and I'd have to hire these Local men before I
put on any other men.
So I passed this information on to these two
men that I'll have to hire the Local men that
are unemployed before I can hire anyone else.
The versions of the conversation as given by Bell
and Howell are not materially different.4
Following their unsuccessful effort to obtain em-
ployment with Fromme, Bell and Howell reported
their difficulty to Joseph Slichenrnyer, secretary of
their local, Local 54. They inquired why, if Local
32 could exclude members of sister locals from em-
ployment in its territorial jurisdiction, Local 54
could not do the same thing. Slichenrnyer said such
procedure would be unlawful, and offered to help
them by contacting one Shepherd , an International
officer. Later Slichenmyer, advised them that
Shepherd would get in touch with Jones in an effort
to resolve the difficulty. Thereafter, on May 14, ap-
parently acting on the advice of Slichenmyer, Bell
and Howell filed the present unfair labor practice
charges against Fromme.
On June 30 Bell and Howell applied for work at
the Prestolite Battery jobsite in Vincennes, Indiana.
They were told by the foreman that both could
have work. They then went to the union steward to
purchase work permits, but he referred them to
Jones, who was working at another project. Jones
issued a work permit to Howell, but told Bell, an
apprentice, that he would have to produce a letter
from his own local consenting to his working out-
side its jurisdiction and to appear at the next meet-
ing to be voted upon by Local 32. Actually, Bell
had a letter from the secretary of his local and of-
fered to show it to Jones, but the latter expressed
lack of interest. During the course of this incident
Jones inquired how their "claim," i.e., the charge
filed with the Board, was progressing and added
they had put Local 32 "right in the middle of it."
He also stated, according to the undenied and
credited testimony of Bell and Howell, that the
Union would file charges against them and they
would be fined $1,000 plus expenses and attorney's
fees. That day or the next day Bell telephoned
George King, the first vice president of the Interna-
tional . On July 1, King sent Bell a telegram which
stated that Jones had been telegraphed the follow-
ing message:
YOU ARE INSTRUCTED TO ISSUE PERMIT TO
APPRENTICE CHARLES BELL, I.U. NO. 3603, SO
THAT HE CAN WORK UNTIL MATTER CAN BE
GIVEN ATTENTION AT YOUR NEXT LOCAL
MEETING.
When he received this telegram Bell returned to
Prestolite to see if he still had a job, but learned
that he did not. Bell did not return to Jones to ob-
tain a permit.
About July 7 officers of Locals 32 and 54,
together with Bell and Howell, met in an effort em-
ployment with Fromme on April 22. As found
above, they were told by Fromme, in response to
their inquiry whether he needed any men, that he
did need two men at that time. However, when
Fromme found out that they were not members of
Local 32 he told them he could not hire them, as-
cribing his inability to do so to the preference he
was required to give to members of Local 32 who
were then unemployed. Without regard to whether
the contract between the Union and Fromme pro-
vided and required that members of Local 32 be
given preference over nonmembers, it seems clear
that Fromme's refusal to hire Bell and Howell
because they were not members of Local 32 was
discriminatory and had the natural consequence of
encouraging membership in Local 32, and there-
fore was violative of Section 8(a)(3) and (1) of the
Act. I so find.5
Whether the Respondent Union can be said to
have caused Fromme to discriminate against Bell
and Howell in violation of Section 9(b)(2) depends
on the construction and application given the con-
tractual provision relating to preference as between
"Local Employees" and other applicants for em-
ployment. On its face, the clause-"Local Em-
41n his brief, counsel for the Respondent Employer summarizes this
episode as follows "On April 22, 1969 , Charles Bell and James Howell ar-
rived at the job site in Princeton , Indiana , where Mr Fromme was working
They asked for employment , and he refused to hire them because of his
previous instructions in this regard from Local 32 "
3 Radio Officers' Union v N.L.R.B , 347 U S 17, 45.
674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees shall be employed on all projects at all
times , if local Employees are available"-is
susceptible of an interpretation that it refers to re-
sidents of the three-county area covered by the
contract and not to members of Local 32 as such. If
construed to give preference to residents of the
geographical area covered by the contract rather
than to members of the Respondent Union, it
would appear that no illegality would attach to the
clause even though, because of their being residents
of the area, members of Local 32 would benefit."
Upon an appraisal of the evidence in the record I
am persuaded, although the matter is not free from
doubt, that the Respondent Union equated the term
"Local Employees" with members of Local 32 and
that this construction of the contract provision,
acquiesced in by the Respondent Employer
(although reluctantly), caused Fromme on April 22
not to hire Bell and Howell, thereby violating Sec-
tion 8(a)(3).
Fromme's testimony, as quoted above, is that, in
refusing to hire Bell and Howell, he made reference
to the visit of Jones a week earlier during which
Jones stated that eight men from Local 32 were
unemployed and Fromme would have to hire these
men before he hired others. Jones, on the other
hand, places the visit as occurring on April 3 and
he testified that he told Fromme Local 32 men
were unemployed and asked Fromme to call him if
he needed any bricklayers. I was more favorably
impressed with Fromme as a witness than with
Jones, and I credit Fromme. Accordingly, I find
that Jones on that occasion said that unemployed
members of Local 32 were to be hired before
others. This is consistent with the testimony of
Fromme, which I credit, that Jones on one occasion
had called his attention to the contractual provi-
sion, underlined it with a red pencil, and said that
as long as "local employees" were available
Fromme had to hire them. Moreover, Fromme
testified without contradiction that he complained
to Jones about this limitation, and mentioned that
the contracts of other locals were less restrictive.
Jones, so Fromme credibly testified, said that was
not the situation with respect to the Local 32 con-
tract. In addition, I credit the testimony of Sum-
mers and Vaughn, as set forth above, regarding
their conversations in early 1969 with Jones, prior
to being employed by Fromme in the capacity of
foreman. As to both of them, Jones made clear that
they could not be employed by Fromme as jour-
neymen bricklayers for the reason that Local 32
members were unemployed. In sum , I conclude and
find that the Respondent Union caused the Respon-
dent Employer not to hire Bell and Howell because
they were not members of Local 32, and that it
° See Bricklayers , Masons and Plasterers' International Union ofAmerica,
etc (Plaza Builders, Incorporated ), 134 NLRB 751
' In reaching this conclusion I have not overlooked the fact that records
of the Union relating to health and welfare payments made by contractors
pursuant to the union contract show that, during April and particularly the
thereby violated Section 8(b)(2) and (1)(A) of the
Act.7
With respect to the refusal of Jones to issue Bell
a work permit on June 30 in connection with the
Prestolite Battery job, I think the evidence is too in-
substantial to warrant a finding of violation of Sec-
tion 8(b)(2). There is no showing that that em-
ployer had a contract with the Respondent Union
or had been given, by Jones the same interpretation
of the contract as Jones had given Fromme.
Moreover, Bell's contract had been with a job
foreman, not shown to have had authority to hire
Bell. Finally, it does not appear that Bell en-
deavored to ascertain whether he could go to work
without a permit. I shall therefore dismiss the al-
legation of violation of Section 8(b)(2) with
respect to this incident. However, it is undisputed
that on this occasion Jones told Bell and Howell
that, because of the charges they had filed against
Fromme, thereby involving the Union, charges
would be filed against them and they would be
fined. Thereby, I find, Bell and Howell were
restrained and coerced in the exercise of the right
guaranteed them in Section 7 of the Act, and par-
ticularly to file charges under the Act. By such
threat the Respondent Union violated Section
8(b)(1)(A) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondents set forth in sec-
tion III, above, occurring in connection with the
operations of Fromme described in section I,
above, have a close, intimate, and substantial rela-
tion 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 vio-
lated Section 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 poli-
cies of the Act.
The record shows that Bell and Howell were de-
nied employment on April 22, 1969, and that the
North Gibson High School job was not completed
at the time of the hearing in August 1969. As a
result of not being hired, Bell and Howell were
deprived of employment which they otherwise
would have had subsequent to April 22 and con-
week Bell and Howell were denied employment , several nonmembers of
Local 32 were employed within the jurisdiction of Local 32 1 am not per-
suaded that this circumstance compels a finding that Local 32 did not have
a policy of preference for its members
NORMAN FROMME MASONRY CONTRACTOR 675
tinuing until the hearing. At the outset of the hear-
ing, Respondent Employer stated he was willing to
employ Bell and Howell and the Respondent Union
stated it was interposing no objection to their em-
ployment. I shall therefore recommend that the
Respondents, jointly and severally, make Bell and
Howell whole for any loss of pay each may have
suffered between April 22 and August 26, 1969, by
reason of the discrimination against them. Backpay
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. I shall also recommend that
the Respondent Union rescind the provision in its
contract requiring that preference in employment
be given to its members.
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. Norman Fromme, an individual, d/b/a Nor-
men Fromme Masonry Contractor, is an employer
within the meaning of Section 2(6) and (7) of the
Act.
2. Bricklayers, Masons and Plasterers' Interna-
tional Union of America (AFL-CIO), Local No.
32, of Vincennes, Indiana, is a labor organization
within the meaning of Section 2(5) of the Act.
3. Respondent Employer, by refusing to employ
Charles 'Bell and James Howell because of their
nonmembership in Local 32, violated Section
8(a)(3) and (1) of the Act.
4. Kespondent Union , by causing Respondent
Employer not to employ Charles Bell and James
Howell, violated Section 8(b)(1)(A) and (2) of the
Act.
5. Respondent Union, by threatening to fine
Charles Bell and James Howell because they filed
charges with the Board against Respondent Em-
ployer, violated Section 8(b)(1)(A) of the Act.
6. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of Act.
In other respects alleged in the complaint against
it, the Respondent Union has not violated the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact
and conclusions of law and the entire record in the
case, it is recommended that:
A. Respondent Employer, Norman Fromme, an
individual, d/b/a Norman Fromme Masonry Con-
tractor, Jasper, Indiana, his agents , successors, and
assigns , shall:
1. Cease and desist from:
(a) Refusing to employ Charles Bell or James
Howell, or any other applicant for employment,
because of such applicant's nonmembership in
Local 32.
(b) In any other manner interfering with,
restraining, or coercing his employees or applicants
for employment in the exercise of the rights guaran-
teed by Section 7 of the Act.
2. Take the following affirmative action which
will effectuate the policies of the Act:
(a) Jointly and severally with Respondent Union
make whole Charles Bell and James Howell, in the
manner set forth above in the section entitled "The
Remedy," for any loss of earnings suffered by
reason of the discrimination against them.
(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, personnel records and reports,
and all other records necessary and pertinent to
compute the amount of backpay due.
(c) Post at his place of business in Jasper, Indi-
ana, copies of the attached notice marked "Appen-
dix A." Copies of said notice, on forms provided
by the Regional Directdt for Region 25, after being
duly signed by the Respondent, shall be posted im-
mediately upon receipt thereof, and be maintained
for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to em-
ployees are customarily posted. Reasonable steps
shall be taken to insure that said notices are not al-
tered, defaced, or covere4l by any other material.
(d) Notify said Regional Director, in .writing,
within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.9
B. Respondent Union, Bricklayers, Masons and
Plasters' International Union of America
(AFL-CIO), Local No. 32 of Indiana , and its
Secretary, Clyde J. Jones, Jr., and its other agents,
officers, and representatives, shall:
1. Cease and desist from:
(a) Causing or attempting to" cause Norman
Fromme, an individual, d/b/a Norman Fromme
Masonry Contractor, to refuse to employ Charles
Bell or James Howell, or any other applicant for
employment, because of such applicant's nonmem-
bership in Respondent Union.
8 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 In the event
that the Board 's Order is enforced by a Judgment of a United States Court
of Appeals , the words in the notice reading " Posted by Order of the Na-
tional Labor Relations Board" shall be changed to read " Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
9 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 "
427-258 O-LT - 74 - 44
676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Threatening to fine any employee for having
filed charges with, or otherwise resorted to the
processes of, the National Labor Relations Board.
(c) In any other manner restraining or coercing
employees in the exercise of rights guaranteed in
Section 7 of the Act.
2. Take the following affirmative action which
will effectuate the policies of the Act:
(a) Respondent Union, jointly and severally with
Respondent Employer, make whole Charles Bell
and James Howell, in the manner set forth above in
the section entitled "The Remedy," for any loss of
earnings suffered by reason of the discrimination
against them.
(b) Rescind the provision of the contract with
Respondent Employer giving preference in employ-
ment to members of Respondent Union.
(c) Post in the Respondent Union's business of-
fice and places where notices to members are
customarily posted, copies of the attached notice
marked "Appendix B."10 Copies of said notice, on
forms provided by the Regional Director for Region
25, after being duly signed by the Respondent
Clyde J. Jones, Jr. and the duly authorized
representative of Respondent Union, shall be
posted immediately upon receipt thereof, and be
maintained for 60 consecutive days thereafter.
Reasonable steps shall be taken to insure that said
notices are not altered, defaced, or covered by any
other material.
(d) Notify said Regional Director, in writing,
within 20 days from the receipt of this Decision,
what steps Respondent have taken to comply
herewith.
s
10 See fn 8, supra .,
" See fn 9,supra
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to employ Charles Bell
or James Howell, or any other applicant for
employment, because of such applicant's non-
membership in Local 32.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees or appli-
cants for employment in the exercise of the
rights guaranteed in Section 7 of the National
Labor Relations Act.
WE WILL, with Local 32, make whole
Charles Bell and James Howell for any loss of
pay suffered as a result of the discrimination
against them.
NORMAN FROMME, AN
INDIVIDUAL, D/B/A
NORMAN FROMME
MASONRY CONTRACTOR
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or com-
pliance with its provisions may be directed to the
Board's Office, 614 ISTA Center, 150 West Market
Street, Indianapolis, Indiana 46204, Telephone
317-633-8921.
APPENDIX B
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 Nor-
man Fromme, an individual, d/b/a Norman
Fromme Masonry Contractor, to refuse to em-
ploy Charles Bell or James Howell, or any
other applicant for employment, because of
such applicant's lack of membership in Local
32.
WE WILL NOT threaten to fine any employee
for having filed charges with, or otherwise
resorted to the processes of, the National
Labor Relations Board.
WE WILL NOT in any other manner restrain
or coerce employees in the exercise of the
rights guaranteed in Section 7 of the National
Labor Relations Act.
WE WILL rescind the provision in the con-
tract with the above-named Employer granting
preference in employment to members of
Local 32.
WE WILL, with the above-named Employer,
make whole Charles Bell and James Howell for
any loss of pay suffered as a result of the dis-
crimination against them.
BRICKLAYERS , MASONS
AND PLASTERERS'
INTERNATIONAL UNION OF
AMERICA (AFL-CIO),
LOCAL 32 OF INDIANA
(Labor Organization)
NORMAN FROMME MASONRY CONTRACTOR 677
Dated By This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecu-
(Representative) (Title) tive days from the date of posting and must not be
altered , defaced , or covered by any other material.
Any questions concerning this notice or com-
Dated By pliance with its provisions may be directed to the
Board 's Office, 614 ISTA Center, 150 West Market
Street , Indianapolis , Indiana 46204 , Telephone
Clyde J. Jones , Jr. 317-633-8921.