Air Flow Sheet Metal, Inc.

National Labor Relations Board - Board Decisions

Oct 7, 1966

160 N.L.R.B. 1653 (N.L.R.B. 1966)

AIR FLOW SHEET METAL, INC. 1653
NoTm.-Notify Harold Wheeler , Lester Kosechata , James E. Clark, Douglas
Lena, Melvin Ross , and William Martin if presently serving in the Armed Forces
of the United States of their right to full reinstatement upon application in accord-
ance with the Selective Service Act and the Universal Military Training and Serv-
ice Act, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of post-
ing, and must not be altered , defaced , or covered by any other material.
If employees have any questions concerning this notice or compliance with its
provisions , they may communicate directly with the Board 's Regional Office, Sixth
Floor , Meacham Building , 110 West Fifth Street , Fort Worth, Texas 76102, Tele-
phone 335-4211 , Extension 2145.
Air Flow Sheet Metal , Inc. and Billy J. Milligan
Local Union No. 156, Sheet Metal Workers' International Asso-
ciation , AFL-CIO (Air Flow Sheet Metal , Inc.) and Billy J.
Milligan . Cases 25-CA-423 and 25-CB-634. October 7, 1966
DECISION AND ORDER
On July 5, 1966, Trial Examiner James F. Foley issued his Deci-
sion in the above-entitled proceeding, finding that Respondents had
engaged in and were engaging in certain unfair labor practices and
recommending that they cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion . Thereafter, the Respondent Employer and Respondent Union
filed exceptions to the Trial Examiner's Decision and supporting
briefs.
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 [Members Fanning, Brown, and Zagoria].
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 this case,' and hereby adopts the findings,' conclusions, and recom-
mendations of the Trial Examiner, as modified below.
1. We agree with the Trial Examiner that Respondent Union vio-
lated Section 8 (b) (1) (A) and (2) of the Act by causing the Employer
to discharge and refuse to reinstate employee Milligan because he had
not taken the Union 's entrance examination and was accordingly not
'The Respondents Employer and Union have requested oral argument. The requests are
hereby denied because the record, the exceptions, and the briefs adequately present the
issues and the positions of the parties.
2 The Trial Examiner, no doubt through inadvertence, found that a union meeting was
held on June 17, 1966, when in fact that meeting was held on January 17, 19G6. We
hereby correct his Decision to reflect the proper date.
160 NLRB No. 136.
1654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a member of Respondent Union; and that Respondent Employer vio-
lated Section- S (a) (1) and (3) by discharging and refusing to rein-
state Milligan for reasons other than the nonpayment of initiation
fees and dues.
However, in affirming the Trial Examiner' s 8 (a) (3 ) and (1) find-
ings. it is unnecessary, for purposes of this case, to pass` on his rea-
soning that an employer, in the context presented here, violates the
Act even where it has no knowledge of the union's motivation for
causing discrimination against an employee. For, in our view, by vir-
tue of both the incident involving Quarles and Thomas on the RCA
project and through events involving its Agents Shaw, Ehrman, and
Butler, Respondent Employer had sufficient knowledge of the Union's
discriminatory motivation to render its conduct unlawful herein.
Thus, with respect to the RCA job, the record shows that Thomas,
the Employer's project manager, and Quarles, its job superintendent,
were in the presence of Union Business Agent Krock when the latter
told Milligan he would have to take the examination. It also appears
that Thomas-after Krock turned toward Thomas and Quarles and
stated that "Milligan would have to lay off until he took the exami-
nation"-himself informed Milligan that "he [Thomas] was going to
have to let him go." The evidence surrounding this incident, includ-
ing the admitted concern of Quarles and Thomas for solution of dif-
ficulties threatening continued work on the RCA job and •Krock's tes-
timony that he informed both Quarles and Thomas that Milligan
would have to lay off until he took the examination, strongly suggests
that Quarles and Thomas were fully aware of the Union's grounds
for seeking Milligan's termination when it was , decided to "let him
go." Moreover, the Employer's knowledge of the basis of the Union's
dispute with Milligan is further demonstrated by the events follow-
ing Milligan 's transfer to the Bluffton job. Thus, the record shows,
and the Trial Examiner found, (1) that Shaw, Milligan's supervisor
on the Bluffton project,3 was present when Krock rejected Milligan's
tender of the balance of his initiation fee, (2) that Shaw was aware of
the contents of the Union's letter dated January 20, 1966, (3) that
Ehrman, the Employer's operations manager, was shown that letter,
and (4) that Butler, one of the Employers superintendents, was
requested by the Union and did accompany Milligan to the union
meeting where Milligan's application was rejected by a' membership
vote. In this connection, it is significant that the Union's letter of Jan-
uary 20, of which employer representatives had knowledge, requested
Milligan to take the Union's entrance examination and appear at a
3 Although Shaw was not in the direct employ of Respondent Employer , the record shows
that Shaw 's employer , Treber Sheet Metal, Inc., and Respondent Employer were engaged
in a joint venture on the Bluffton job, and that Shaw directed and could remove employees
of Respondent Employer from the job.
AIR FLOW SHEET METAL, INC. 1655
union meeting where his application would-be submitted to vote of the-
membership. The'plain import of the letter was that Milligan would
be eligible for membership upon satisfactory completion of these con-
ditions, neither of which would be available to an applicant in default
as to initiation fees. In our opinion, Respondent Employer's knowl-
edge of the letter's content and possession of information that Milli-
gan's admission depended on a vote of the membership furnished
Respondent Employer with a reasonable basis for belief that Milli-
gan's difficulties were not based upon his breach of any financial com-
mitment to Respondent Union. Accordingly, for the above reasons, we
find, in affirming the Trial Examiner's conclusion that the discharge
of Milligan violated Section 8(a) (3) and (1), that Respondent,
Employer knew, or at the very least, had a reasonable basis for belief,
that the Union objected to Milligan's continued employment for rea-;
sons other than the nonpayment of dues or initiation fees.
2. The Trial Examiner relied on the transfer of Milligan frarri',the'
RCA job to the Bluffton project in finding -additional 8(b) (1) (A)
and (2) violations'against the Union, and 8(a) (3) and (1) violations
against the Employer. However, as the complaint against the Union
failed to refer to the transfer, and, since the General Counsel, at the
hearing, without opposition deleted the allegations concerning, the
transfer from the complaint against the Employer, we find that the
validity of the transfer was not litigated in -this; proceeding, and"
accordingly, we do not adopt the Trial Exaininers's findings, thereon.,
For similar reason, we do 'not adopt the Trial Examiner's findings
that the Union violated Section 8 (b) (1) (A) and (2) by denying'Mil-
ligan membership and causing Respondent to refuse to reinstate him-
because he had filed charges with the' Board, -and that the Employer
violated Section 8(a) (4) by discriminating against Milligan for said,
reason. As neither complaint referred to the facts on which the Trial
Examiner relied, and as neither the General Counsel nor Charging
Party presented any views, arguments, or theories in support of such
a violation, we find that the issue presented was not litigated herein
and hence is not properly before us for determination.' -
ORDER
Pursuant to Section 10 (c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby orders that :
1. Respondent Air Flow Sheet Metal, Inc., its officers, agents, succes-
sors, and assigns, shall:
A. Cease and desist from :
1. Encouraging membership in Respondent Local Union No. 156,
Sheet Metal Workers' International Association, AFL-CIO, by dis-
charging employee Billy J. Milligan, or any other employee, because'
1656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not a member of the Respondent Union and failing to take or pass then
examination given to applicants for membership in Respondent
Union, or by discriminating against Milligan, or any other employee,
in any other manner in regard to wages, hours, or other terms or con-
ditions of employment, for any reason other than nonpayment of peri-
odic dues and initiation fees uniformly required as a condition of
maintaining or acquiring membership in Respondent Union.
2. Engaging in like or related conduct that interferes with, coerces,
and restrains employees with respect to. their right to refrain from
engaging in union or other concerted activity for mutual aid or pro-
tection guaranteed them in Section 7 of the Act, except to the extent
that such right may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment as author-
ized by Section 8 (a) (3) and (f) of the Act.
B. Take the following action which will effectuate the policies of
the Act :
1. Offer Billy J. Milligan, without prejudice to his seniority and
other rights and privileges, immediate and full reinstatement to his
former or substantially equivalent position.
2. Notify the above-named employee if presently serving in the,
Armed Forces of the United States of his right to full reinstatement'
upon application in accordance with the Selective Service Act and
the Universal Military Training and Service Act, as amended, after
discharge from the Armed Forces.
3. Make Billy J. Milligan whole, jointly and severally with
Respondent Local Union No. 156, for any loss of pay he may have
suffered by reason of the discrimination against him, in the manner
set forth in the section of the Trial Examiner's Decision entitled "The
Remedy."
4. Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social secu-
rity payment records, timecards, personnel records and reports, and
all others relevant and material to Respondent Air Flow's compliance
with the provisions of this Order.
5. Post at its plant in Fort Wayne, Indiana, copies of the attached
notice marked "Appendix A."' Copies of said notice, to be furnished
by the Regional Director for Region 25, after being duly signed by an
authorized representative of Respondent Air Flow, shall be posted
by the Company upon receipt thereof, and be maintained by it for
60 consecutive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted. Reasonable
• In the event that this Order is enforced by a decree of a United States Court of
Appeals, the words "a Decision and Order" shall be substituted for the words "a Decree
of the United States Court of Appeals Enforcing an Order."
AIR FLOW SHEET METAL, INC. 1657
steps shall be taken by the Company to insure that said notices are not
altered, defaced, or covered by any other material.
6. Notify the Regional-Director for Region 25, in writing, within
10 days from the date of this Order, what steps the Respondent Air
Flow has taken to comply herewith.
II. Local Union No. 156, Sheet Metal Workers' International Asso-
ciation, AFL-CIO, its officers, agents, and representatives, shall :
A. Cease and desist from :
1. Causing or attempting to cause Respondent Air Flow to discrim-
inate against employees by discharging employee Milligan, or any
other employee, because not a member of the Respondent Union and
failure to take or pass the examination given to applicants for mem-
bership in Respondent Union or by in any other manner engaging in
discrimination for reasons other than the failure of Milligan or any
other employee to tender the periodic dues and initiation fees uni-
formly required as a condition of acquiring or retaining membership
in the Union.
2. By any like or related acts, restraining or coercing employees in
regard to their right to refrain from engaging in union or other con-
certed activity for mutual aid or protection guaranteed them in Sec-
tion 7 of the Act, except to the extent such right may be affected by
an agreement requiring membership in a labor organization as a con-
dition of employment as authorized by Section 8 (a) (3) and (f) of
the Act.
B. Take the following affirmative action which will effectuate the
policies of the Act: -
1. Notify Respondent Air Flow Sheet Metal, Inc., and mail a copy
to Billy J. Milligan, that it has no objection to the employment of
Billy J. Milligan and will not oppose his reinstatement.
2. Make Billy J. Milligan whole, jointly and severally with
Respondent Air Flow, for any loss of pay he may have suffered by
reason of the discrimination against him, in the manner set forth in
the section of the Trial Examiner's Decision entitled "The Remedy."
3. Post at its business office in Fort Wayne, Indiana, copies of the
attached notice marked Appendix B.5 Copies of said notice, to be
furnished by the Regional Director for Region 25, after -being duly
signed by an official representative of Respondent Union, shall be
posted by Respondent Union 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 Respondent Union to
5 In the event that this Order is enforced by a decree of a United States Court of Appeals,
the words "a Decision and Order" shall be substituted for the words "a Decree of the
United States Court of Appeals Enforcing an Order.",
1658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
insure that said notices are not altered, defaced, or covered by any
other material.
4. Mail to the Regional Director for Region 25 signed copies of the
attached notice Appendix B, for posting by the Employer, if willing,
at the office and places of business of Respondent Air Flow -where
Appendix A is placed.
5. Notify the Regional Director for Region 25, in writing, within
10 days from the date of this Order, what, steps Respondent Local
Union No. 156 has taken to comply herewith.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT encourage membership in Local Union No. 156,
Sheet Metal Workers' International Association, AFL-CIO, by
discharging them because they are not members of that Union,
and have not taken or passed the examination it gives to appli-
cants for membership in it ; by refusing to reinstate employees
because they are not members of that Union or by discriminating
against employees in any manner for reasons other than the non-
payment of periodic dues or initiation fees uniformly required
as a condition of acquiring and retaining membership in the
Union.
WE WILL NOT engage in like or related conduct that interferes
with, coerces, and restrains employees with respect to their right
to refrain from engaging in union or other concerted activity for
mutual aid or protection guaranteed them in Section 7 of the Act,
except to the extent that such right may be affected by an agree-
ment requiring, membership in a labor organization as a condi-
tion of employment as authorized by Section 8(a) (3) and (f) of
the Act.
WE WILL offer Billy J. Milligan, without prejudice to his
seniority and other rights and privileges, immediate and full rein-
statement to his former or substantially equivalent position, and
make him whole, jointly and severally with Local Union No. 156,
for any loss of earnings, including interest, he may have suffered
from the discrimination against him.
AIR FLOW SHEET METAL, INC.,
Employer.
Dated---------------- By--------------------------------------
(Representative ) ( Title)
AIR FLOW SHEET METAL, INC. 1659
NOTE:.-Notify Billy J: Milligan if 'presently serving in the Armed
Forces of the United States of his right to full reinstatement upon
application, in accordance with the Selective Service Act and the
Universal Military Training and Service Act, as amended, after dis-
charge from the Armed Forces.
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.
If employees have any question concerning this notice or compli-
ance with its provisions, they may communicate directly with the
Board's Regional Office, 614 ISTA Center, 150 West Market Street,
Indianapolis, Indiana 46204, Telephone 633-8921.
APPENDIX B
NOTICE TO ALL MEMBERS OF LOCAL UNION No. 156, SHEET METAL
WORKERS' INTERNATIONAL ASSOCIATION, AFL-CIO
Pursuant to a Decision and Order of the National Labor Relations
Board and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT cause, or attempt to cause, Air Flow Sheet Metal
Inc., or any other employer, to discriminate against Billy J. Mil-
ligan, or any other employee, because he is not a member of Local
Union-No. 156, Sheet Metal Workers' International Association,
AFL-CIO, for reasons other than his failure to tender the peri-
odic dues and initiation fees uniformly required as a condition
of acquiring and retaining membership in our Union.
WE WILL NOT restrain or coerce employees by any like or related
acts in regard to their rights under Section 7 of the Act to refrain
from engaging in union or other concerted activity for mutual
aid or protection, except to the extent such right may be affected
by an agreement requiring membership in a labor organization
as a condition of employment as authorized by Section 8(a) (3)
and (f) of the Act.
WE WILL notify Air Flow Sheet Metal, Inc., that we have no
objection to reinstatement of Billy J. Milligan and WE WILL make
him whole, jointly and severally with Air Flow Sheet Metal, Inc.,
for any loss of earnings, including interest, he may have suffered
from the discrimination against him.
LOCAL UNION No. 156, SHEET METAL WORKERS'
INTERNATIONAL ASSOCIATION, AFL-CIO,
Labor Organization.
Dated-------------- - BY-------- -------------
(Repr(!sentatwe ) ( Title)
1660 DECISIONS. OF NATIONAL LABOR RELATIONS BOARD
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.
If members have any question concerning this notice or compliance
with its provisions, they may communicate directly with the'Board's
Regional Office, .614 ISTA Center, 150 West Market Street, Indian-
apolis, Indiana 46204, Telephone 633-8921.
TRIAL. EXAMINER'S DECISION
STATEMENT OF THE CASE
These Cases 25-CA-2423 and 25-CB-634, were brought before the National
Labor Relations Board (herein called the Board), under Section 10(b) of the
National Labor Relations Act, as amended ( 61 Stat . 136, 73 Stat. 519), herein
called the Act, against Respondent Air Flow Sheet Metal Inc. (herein called Air
Flow), and Respondent Local Union No. 156, Sheet Metal Workers' International
Association, AFL-CIO (herein ,called the Union), on complaints issued March 9,
1966, against Respondent Air Flow and Respondent Union by the Board's Regional
Director for Region 25.
The complaint against Respondent Air Flow alleges that in violation of Section
8(a)(1) and (3) of the Act it interfered with, restrained , or coerced employees
in the exercise of rights guaranteed them in Section 7 of the Act, and discriminated
against employees in regard to hire or tenure of employment or terms or con-
ditions of employment to encourage membership in the Union , by transferring on
or about January 19, 1966 , employee Billy Milligan, the Charging Party, from
his job at Marion , Indiana, to another job, and terminating his employment on or
about January 19 or 20, 1966, and refusing to reinstate him thereafter , because
he was not a member of the Union, he criticized the Union, and refused to take
an examination given by the Union, the Union's objection to and refusal to grant
clearance or approval for his employment by Air Flow, and the Union 's demand
that Air Flow engage in the conduct against Milligan that it took against him
on January 19 or 20, 1966.
The complaint against Respondent Union alleges that in violation of Section
8(b)(1)(A) and (2 ) of the Act, Respondent Union restrained or coerced employ-
ees with respect to rights guaranteed them in Section 7 of the Act, and caused,
and attempted to cause, Respondent Air Flow to discriminate against its employees,
in violation of Section 8(a)(1) and (3) of the Act, by causing , and attempting to
cause, Air Flow to terminate Charging Party Billy Milligan 's employment at
Marion and Bluffton , Indiana, because he was not a member of the Union, he
criticized the Union , and failed to take an examination given by the Union, and
because he did not obtain clearance or approval from the Union for his employ-
ment by Respondent Air Flow. On March 9, 1966 , the Regional Director , pursuant
to Section 102.33 of the Board 's Rules and Regulations , Series 8 , as amended,
consolidated the complaints for the purposes of hearing and other disposition.
Each Respondent filed an answer on March 17, 1966, in which it denied the
illegal conduct alleged in the complaint against it.
A hearing on the complaints and answers was held before Trial Examiner James
F. Foley, on May 5 and 6 , 1966 , at Fort Wayne , Indiana. General Counsel,
Respondent Air Flow, and Respondent Union were represented at the hearing. All
parties were afforded an opportunity to offer evidence , make oral argument, and
file briefs. General Counsel, Respondent Air Flow , and Respondent Union filed
briefs after the close of the hearing.
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT AIR FLOW
Respondent Air Flow , an Indiana corporation , with its principal place of business
and office in Fort Wayne, Indiana, is a contractor engaged in the installation of
sheet metal products in the construction industry. During the year preceding
March 9, 1966 , Respondent Air Flow purchased and had transferred and delivered
AIR FLOW SHEET METAL, INC. 1661
to its place of business in Fort Wayne, Indiana, and jobsites in Indiana, from
sources outside the State of Indiana , goods and materials valued in excess of
$50,000 . Respondent Air Flow has been at all times material herein engaged in
commerce within the meaning of Section 2(6) and (7) of the Act, and assertion
of jurisdiction will effectuate the purposes of the Act.
H. THE LABOR ORGANIZATION INVOLVED
Respondent Union is a labor organization within the meaning of Section 2(5)
of the Act.
M. THE UNFAIR LABOR PRACTICES
A. Evidentiary findings
Charging Party Billy J. Milligan, a sheet metal worker, was employed by
Respondent Air Flow starting September 1, 1965. He was hired on that date by
R. S. Butler, superintendent of the work Air Flow was doing on the construction
for Delco Remy Division of General Motors at Kokomo, Indiana. Milligan worked
on this project until on or about October 1, 1965, when he was transferred to
work Air Flow was doing at St. Joseph's Hospital in Kokomo, Indiana. Butler
was also Air Flow's superintendent on that job. He worked at this job until Novem-
ber 1, 1965, and on this date was transferred to work Air Flow was doing as
part of the construction of a factory building for RCA at Marion, Indiana. Air
Flow's work on the construction at Marion, herein called the RCA job, was in
charge of William Thomas, who had the title of project manager. Next in charge
for Air Flow at the RCA job was David L. Quarles, who had the title of super-
intendent. The alleged discriminatory conduct against Milligan by Respondents
began on January 19, 1966, on the RCA job when Milligan was employed there.'
Milligan applied for membership in Respondent Union on or about September 15,
1965, when he was working on the Delco Remy job, by mailing an application
for membership, in duplicate, on that date to Krock, as business representative
of Respondent Union. He placed a money order for $50, representing a down-
payment on the initiation fee of $442, in the envelope in which he mailed
the application. The form on which application was made was prepared by
Respondent Union as an application-for-membership form. R. S. Butler, Air Flow's
superintendent on the Delco Remy job at the time, furnished the copies of the
form, and personally, in Milligan's presence, typed in the information called for
by the printed matter on the form. Butler and Marcus R. Simmons affixed their
signatures, in Milligan's presence, in the blanks on the form aside the words: "We
believe that the above named applicant is duly qualified and we recommend him
for membership." Butler and Simmons were obviously members of Respondent
Union, and I so find. While Milligan did not sign the form, his name and address
were typed on the form next to blanks for "Name" and "Address," and it is
undisputed that Krock on behalf of Respondent Union considered it as an appli-
cation for membership from Milligan, and on behalf of Respondent Union retained
the money order for $50. Krock testified that in October 1965, he notified Milli-
3 Charging Party Milligan, Robert C Ehrman, operations manager for Air Flow, and
Edmund L. Krock, business representative of Respondent Union, testified for General
Counsel. Ehrman and Krock were subpenaed. Thomas, Quarles, Ehrman, and Orly C W
Shaw testified for Respondents. Respondents contend that Milligan should be discredited
per se as a witness because of his court record The evidence shows that Milligan on two
occasions was convicted of assault and battery, a misdemeanor, and served 6 months on
the State farm of Indiana for one conviction, and received a 10-day suspended sentence
and,a fine of $50 for the other conviction. Milligan was also convicted of a misdemeanor
for Aigking misrepresentations to the Indiana Employment Securities Commission to obtain
unemployment compensation. Upon consideration of his oral and demeanor testimony, and
these convictions, I find him to be a credible witness I do not discredit Milligan pei se
Crown Corrugated Container, Inc, 123 NLRB 318. Testimony in evidence given by Mil-
ligan is considered along with the other evidence of record The oral and demeanor testi-
mony of each witness has been evaluated in relation to the context of the record as a whole
and the testimony of other witnesses, and the documentary evidence My evidentiary find-
ings are the result of the evaluation of all the evidence See N L R R v United Brother-
hood of Carpenters, Local 517, 230 F.2d 256, 259 (C A 1) and N L R B v Unit ersal
Camera Corp, 179 F.2d 749, 754 (C.A. 2), reversed on other grounds 349 U S 479
1662 DECISIONS. OF NATIONAL LABOR RELATIONS BOARD
gan, by card , to report . to the union hall in Fort Wayne to take an examination
which the Union gives to an applicant for membership as a journeyman sheet metal
worker , and which the applicant must pass in order to be eligible , for membership.
Milligan denied ever receiving such a card.
At the regular meeting of the Union on Monday , June 17 , 1966 , Paul Beatty,
steward for the Union on the RCA job since November 1965, where Milligan
was then working, stated that Milligan said while on the RCA job that he did
not belong to the Union , and did not have to belong to have a job .2 On Janu-
ary 19, 1966, Krock visited the RCA job about 10 to 10:30 a m., and told Proj-
ect Manager Thomas and Superintendent Quarles that he wished to talk to
Milligan .3 Thomas ,,Quarles, .Krock , and Union Steward -Beatty went to the second
floor where Milligan was working on monitor 1, and Krock engaged Milligan in
a conversation in the presence of Thomas , Quarles, and Beatty. Krock asked Milli-
gan why he did not appear (at the union hall) for an examination , and the latter
said he did not know he had to take an examination ( to be a member of the Union).
Krock said he had sent him a card notifying him of the examination , but Milligan
replied that he never received it. Krock then asked Milligan about his saying to
employees that he had not joined the Union , and did not have to join . Milligan
denied he made these statements . Krock asked him why he had not been paying
on his initiation fee. Milligan answered that he had 1 year to pay.the balance
of the fee,, and there was no requirement to pay some of it every month. Krock
then said that "he'd have to take his examination and get straightened around because
he was causing trouble and the fellows were all going to quit if he didn 't belong
to the Union which he was supposed to do." 4
At this point , " Thomas and Quarles, who had been discussing Milligan and were
not listening to the conversation Krock was having with Milligan , turned toward
Krock and Milligan , and listened to Krock as he said that Milligan would have to
lay off until he took the examination . Thomas then said to Milligan that "he was
going to have to let him go." Thomas and Quarles had decided in the side con-
versation to discharge Milligan . Thomas also said to Milligan that "there was
too much confusion , and we wasn't getting anything done on the job , the job was
almost at a standstill, and we had strict dates we had to meet and we was getting
chewed out continuously on these dates we had to meet, and we just couldn't
put up with the stoppage on the job , we just couldn 't put up with , it" He also told
him that "they had a lot, of men that was going to quit the job , they were just
going to walk in and want their checks, they were going to quit." Finally, Thomas
told Milligan that he was not valuable enough to take the place of as many men
as were dissatisfied and were ready to quit on account of him.5
At the hearing , Quarles testified that the work had practically come to a stand-
still, that the men were standing around talking instead of working.6 He also
testified ,that Thomas and he knew that the dissatisfaction of the employees arose
from a problem that Milligan was having with the Union , but that they did not
know what the problem was? Quarles testified he overheard only the part of
Air Flow is a member of Fort Wayne Area Sheet Metal Contractors Association which
has a collective-bargaining contract' (he- rein called the Contract), with Respondent Union
for the period June 1, 1965, through May 31 , 1968 The contract , provides that employer
members of the Association require as a condition of continued employment membership
in the Union within 8 days following the beginning of employment with employer -members
of the Association or following the effective date - of the contract , June 1,-1965, whichever.
Is later. Milligan 's,employment,by ,Air Flow, beginning September 1, 1965, was his-first
employment by any employer -member of the Association . The union -security provision,' in
the Contract, as stated, is a legal provision within the meaning - of Section 8(f)"of:,the
Act. Indiana has repealed its right -to-work law.
3 Krock visited each construction project on which members of the Union were employed
approximately once a week. This visit on Wednesday , January 19 , 1966; was apparently his
weekly visit to the project
* These findings are premised on the testimony of Krock and Milligan,,
5'This is the testimony of Superintendent Quarles. '
a Air Flow had 30 to 35 employees on the RCA job. There were a total of 350 men work-
ing on the job.
Thomas corroborated Quarles' testimony that they did not know what Milligan 's prob-
lem with the Union was. ,
'
AIR FLOW SHEET METAL, INC. 1663
Krock's conversation. with Milligan that related to his paying the initiation fee,
but that he and Thomas had heard enough of the conversation to know that the
trouble Milligan was having with the Union was not going to end there. Quarles
testified that employees had complained to him and Thomas about their dissatis-
faction with Milligan. He identified only Union Steward Beatty as an employee
who had made a complaint. He said that Beatty was aware of what the situation
was. He testified that Beatty said to him and Thomas "that Milligan was causing
trouble," and "they were going to have some manpower problem if things wasn't
straightened out." He also testified that Beatty informed him that " the men had
made up their minds that they- was quitting if B. J . Milligan stayed on the job,"
and that "he was almost certain that they would quit,if he stayed on the job."
Quarles then testified that Thomas and he "just couldn't take that chance." 8
Quarles said to Thomas that they ought to make Milligan's check out, and
then told Milligan to pick up his tools, and come down to the office, and he would
have his check for him. Milligan collected his tools from where he had been work-
ing at monitor 1 prior to the beginning of the conversation with Krock, and
went to the office. He received two checks from Thomas about noon on this
Wednesday, January 19, 1966, which was a payday. One was for the pay period
ending Friday, January 14 or 15, 1966, and the other check was for the 3 or 4
days in the new pay period including all day Wednesday, January 20. Milligan left
at the RCA project the helmet and other tools he had been using, which belonged
to Respondent Air Flow. He took with him tools which were his personal property.
Milligan went to his home in Marion and telephoned Ehrman, the operations man-
ager for Air Flow, at his office in Fort Wayne. Milligan said to Ehrman he had
been fired, and "unduly terminated." Ehrman said to Milligan to call him back in
in an hour, and in the meantime he would try to find out from the RCA job
"what these things were all about." Milligan called Ehrman again about an hour
and a half later. Ehrman said he had not been fired, that he was still on the pay-
roll at 4 p.m., and instructed him to report the following morning to Air Flow's
Corning Glass job at Bluffton, Indiana. Ehrman testified at the hearing that he also
told Milligan that he could not get hold of any one at the RCA job, and was try-
ing to get hold of Krock.
I credit Milligan's testimony that he asked Ehrman for- permission to return to
the RCA job to pick up the equipment he left there after he was paid off, and that
Ehrman gave him permission to do so .9 I credit Milligan's testimony that he
returned to the RCA job and went to the place where he had left the equipment,
and talked to Quarles and Thomas and the journeyman and helper he had been
working with. Milligan told the two employees that he had not been fired but
transferred. What he said to them may have been overheard by two other employ-,
ees. When Milligan returned, the workday had not ended, and the men were still
working. I credit Quarles' testimony that when he and Thomas saw Milligan walk-
ing to the place where the equipment he had been using was stored, he 'asked him'
s Quarles testified that Milligan had trouble with an employee Vincent Peck , but also
testified that he "didn't know what the outcome was or what it even started over," and
"he just heard about it, that's all ." Milligan testified that he and Peck had heated words
after he accused Peck of saying things about him off the job, but that nothing resulted
from the discussion .' Milligan, on cross-examination testified he had a pocketknife in his
possession while working on the RCA job. I do not consider this testimony as disclosing
he had an illegal weapon at that time in his possession , and so find.
e Ehrman testified that Milligan said to him that he wanted to go back to the RCA job,
and gloat a little, and he told him that under no circumstances was he to go back to the
RCA job because there was enough trouble there, and that he did not want any more
stirred up. Ehrman also testified that Milligan mentioned he had some tools on the job,
and he said to Milligan he would try to make arrangements for the tools to be brought off
the job , but in no way was he to go back to the job and cause any more trouble . "Milligan
denied that Ehrman refused him permission to return to the RCA job and obtain his equip-
ment, and that he said he wished to return to the job to gloat a little. I find from evalua-
tion of all testimony including demeanor testimony that Ehrman 's testimony of his denial
of permission to Milligan to return to the job to be what Ehrman wished he had said to
Milligan, but contrary to what he, did say. It is obviously part. of an attempt to justify
Milligan ' s discharge. "
1664 DECISIONS 'OF NATIONAL LABOR RELATIONS BOARD
what he was doing there, and Milligan replied thatihe had'-come back to get his
welding hood and' stinger, and had not been fired but transferred.io
The next morning, January 20, 1966, Milligan reported to.the Corning Glass" job
in Bluffton,- Indiana. Air Flow had the contract for- the sheet. metal work, but had
subcontracted part of it to Treber Sheet Metal, Inc (herein called Treber). All the
work under the contract was supervised by Treber. Treber's • employees did the
work, but Air• Flow would from time to time assign employees to work on the proj-
ect under Treber's direction. Air Flow, however, hired and fired its own employ-
ees, paid them, and handled all other administrative functions of an employee as
well. Orley C. W. Shaw, an employee of Treber, was the project superintendent
under Air Flow's contract for the -sheet metal work. Shaw had been a member of
the Union for 7 years, and- became acquainted with Krock 1 years before when the
latter became a business representative of Respondent Union. Milligan reported to
Shaw, and informed him he had been assigned to the job by Ehrman. Treber had
six rank-and-file employees working. Milligan was the only employee of Air Flow
on the project on January 20. Shaw put Milligan to work. About noon, Shaw and
the seven employees descended from the roof of the building where they were
working. Kroc_k was waiting there, and handed Milligan a letter signed by him. The
letter was on the letterhead of the Union, dated January 20, 1966, and addressed
to Milligan. The letter is:
Dear Sir:
This letter is too inform you that as of January 19, 1966 you are suspended
by Local Union 156 Ft. Wayne, Ind. and are requested to appear at 2329
Winter Street, Fort Wayne, Ind. at 7:30 P.M. to take examination before the
examining board, and to have the vouchers of your application, Mr. Russel
Butler, and Mr. Marcus Simmons to appear at the regular meeting of L. U.
156 at 8:00 P.M. Feb. 7, 1966 when your application for membership will be
voted on by the members of L. U. 156.
Sincerely,
(S) E. L. Krock
B.A.L.U. 156 it
Earlier that morning, Air Flow's employees on the RCA job had gone to Project
Manager Thomas' office and demanded their checks. Thomas informed them they
would have to wait until the next payday. When the men demanded their checks,
Union Steward Beatty said to Thomas that the men had made up their minds that
they were quitting. The employees were on strike on Thursday, January 20 and
Friday, January 21, 1966. After the employees asked for their checks, Thomas tele-
phoned Krock, and the latter prepared the letter he handed Milligan, and set out
for the Corning Glass job, and was waiting when the men descended the ladder at
noon. When Krock handed Milligan the letter on January 20, 1966, he said to,
Milligan he could not work until he came in to the Union and had taken his exam-
ination, and he was approved by the membership.12 Milligan thereupon pulled a roll
of bills out of his pocket, and offered to pay the $407 of the initiation fee that was
10I credit Quarles' testimony that some employees came to him and said that Milligan
told employees that he had not been fired, but transferred, with a day's vacation with pay,
and "was out roaming on the job, and saying things to get the employees riled up." How-
ever, I do not give any weight to it as far as disclosing that Milligan engaged in such
conduct, as it is sheer hearsay, and self-serving to the employees attempting to influence
Air Flow against Milligan because of his dispute with Respondent Union Quarles testi-
fied that he did not see Milligan talking to other employees. I credit Milligan's testimony
that he talked to the two employees with whom he had been working, and that it Ras
possible two others may have overheard what he said to them, which was that he had
been transferred but not fired In view of the threats that the union members had already
made to -Quarles and Thomas, the union members were ready to continue their pievious
unrest upon learning that Milligan had not been fired after all Gloating by Milligan was,
not necessary to the resumption of this unrest, once the union members learned that Mil-
ligan had not been fired.
ri The date of January 25, 1966, when he was to appear to take the, examination was
omitted from the letter. To remedy the omission, Krock nailed to him later in the day
another letter substantially the same as the one he handed Milligan, except that the date
of January 25, 1966, when he was to appear at the address of Respondent Union to take
the examination was inserted, and the notice of suspension was not included
1! Brock testified that the Union objected to Milligan working because he had not
passed the examination.
AIR FLOW SHEET METAL, INC. 1665
unpaid. Krock refused to take the money. He said to Milligan that he would have
to take the examination and be approved- first. Milligan said to Krock that he was
going to file charges against him with the Board , and Krock replied that if he did
he would never receive a membership in the Union. Milligan asked Shaw, who was
standing by while Krock was talking to Milligan, what he should do, and Shaw
replied there was nothing he could do about it, that he could not work with the
union suspension . Milligan then asked Shaw if he should wait until someone
brought his check from Fort Wayne, and without waiting for an answer, Milligan
said he would go to Fort Wayne as he wanted to see Ehrman anyway, and asked
Shaw to telephone Ehrman and inform him he was coming to Fort Wayne. Shaw
said it would be the best thing to do.13
Milligan and Ehrman testified regarding what was said by them in the Air Flow
office in Fort Wayne on January 20, 1966, when Milligan appeared there shortly
after talking to Krock at the Corning Glass job. The testimony of both Ehrman
and Milligan discloses that Milligan arrived at Air Flow 's office , and was sitting,
unknown to Ehrman, in an anteroom to Ehrman's office when Ehrman appeared
from his office with a check made out to Milligan for a full day's pay for Janu-
ary 20 . Milligan testified that Ehrman said that "you sure stirred up a hornets nest
down at Marion," and said, "here is your check B. J.," he showed Ehrman the
letter that Krock gave him, and asked him if he had a job after he was straightened
out with the Union, and Ehrman replied that he had, that this was all Ehrman
said, and he left . Ehrman testified that he had talked with Thomas about the strike
at the RCA job ; told Milligan in response to his question about a job , that he had a
job if all these things and charges against him were false ; gave him the check, after
Milligan implied he came for the check ; and he then asked Milligan if he returned
to the RCA job the prior afternoon after he had talked to him , Milligan said he had,
and he said, "Well, you cut your own throat."
I find no conflict in this testimony except in regard to Ehrman 's reply to Mil-
ligan's question whether he had a job when he was straightened out with the
Union . Milligan testified he answered yes, while Ehrman testified he said to Milli-
gan, yes if these things and charges against him were false . According to Ehrman,
"charges" meant Milligan 's visit to the RCA job the prior afternoon after he told
him not to go to the job and stir up anymore trouble . Ehrman's further testimony
is that Milligan answered he had , and Ehrman then said he had cut his own throat.
Milligan testified on direct examination that Ehrman said nothing else after he said
he had a job if he got straightened out with the Union. In effect, he denied that
Ehrman said anything in regard to the RCA job. Milligan was not asked when he
testified on rebuttal whether the colloquy between him and Ehrman about his visit
to the RCA job took place . Milligan testified on direct examination he told Ehrman
that what was being done was not right, that a few people in -Fort Wayne were
running Respondent Union and the International , and should be stopped , and Ehr-
man agreed something should be done, and that he also said to Ehrman be was
going to file unfair labor practice charges against Respondent Union for suspend-
ing him. Ehrman's testimony for Respondent Air Flow is silent with respect to this
testimony of Milligan.
I have credited Milligan's testimony (supra, footnote 9) that Ehrman permitted him
to return to the RCA job on the afternoon of January 19, 1966, to obtain equip-
ment he would need on the job at Bluffton the next day , and that he did not
request permission from Ehrman to return to the job to "gloat " a little . From,a
consideration of all the evidence , oral, demeanor , and documentary , I find that
Ehrman, after talking to Thomas, decided that the only way to get the men back
to work on the RCA job was to terminate Milligan , and he thereupon prepared a
check for a full day's pay, and was on his way to Bluffton to give it to Milligan,
13 Krock testified Shaw was standing at the place where he talked to Milligan, but his
recollection was that Shaw did not say anything . Shaw testified that he stood by with
an employee named Bailey , but did not pay any attention to what Krock said to Milligan,
although he saw Krock hand Milligan a letter, and Milligan pull a sum of money from his
pocket and offer it to Krock. He denied he said anything'to Brock or Milligan about the
matter. He testified that he said to Krock and Milligan that he was going to'dinner and
left, and fully expected ' Milligan to resume working atter the noon recess for dinner.
I do' not credit the testimony of Shaw-or Krock regarding the part Shaw played here.
I credit the testimony of Milligan. Shaw was a member of Respondent Union, and, more-
over,'project superintendent. It is inconceivable that he would not pay'attention to a con-
versation that had such substantial interest -for him ' as project superintendent.
257-551-67-vol. 16 0-10 6
1666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and by this act, or by specific notice, inform Milligan he was terminated, when he
saw Milligan sitting in the anteroom of his office. Apparently, he had not received
a telephone call from,Shaw informing him that Milligan was on his way to see
him at his office.
I do not credit Ehrman's testimony that he asked Milligan if he returned to the
RCA job the prior afternoon, and after Milligan said he had, he said to him that
he ;bad- cut his own; throat. He knew he had returned to that job after talking to
Thomas, and, as I have found, he had given him permission to do so. As I have
found, the strike and unrest on the RCA job were due to Ehrman's decision not to
fire Milligan but to transfer him to the Corning Glass job at Bluffton. Quarles' tes-
timony corrobates Milligan's testimony that he did not stir up any trouble when
he returned to,the RCA job to pick up the equipment. I credit Milligan's testimony
that he told Ehrman that what the Union was doing was not right, that it ought to
be stopped, that Ehrman agreed the Union ought to be stopped, and that Milligan
told Ehrman' he was going to, file charges against the Union, and asked him if he
had a job after he was straightened out with the Union, and Ehrman said he had.
Milligan filed unfair labor practice charges with the Board against both Respond-
ent Air Flow and Respondent Union on January 24, 1966. On January 25, 1966,
he appeared at the Union's hall in Fort Wayne, and took the required examination,
in accordance with the letter Krock mailed to him on January 20, 1966. Butler and
Simmons, who endorsed Milligan for membership, accompanied Milligan, in
accordance with Krock's January '20 letter. Milligan successfully passed the exam-
ination. While Butler and,Simmons were at the union hall, Krock told them he did
not think that,Milligan would be accepted in the Union after filing charges with
the. Board.
The members of the ,Union considered Milligan's application for membership at
the Union's regular meeting on February 7, 1966. They rejected it after the execu-
tive board of the Union recommended that it not be accepted. Krock, a member
of the executive board, testified he communicated with the probation officer in
Kokomo, Indiana, and was informed by him that Milligan had a police record.
Krock further testified that on receiving this information, he did not think that
Milligan was a person of good moral character, a condition precedent to accept-
ance,into membership,of the Union. Krock so informed the other members of the
executive board. Milligan who had appeared at the union hall at the time of the
meeting on February 7, with Butler and Simmons, was informed of the action of
the union membership . His down payment of $50 on the initiation fee was returned
to him.
Respondent Air Flow has never offered to reinstate Milligan. Milligan has not
applied for reinstatement because he has not straightened out his problems with
Respondent Union.
Analysis and Concluding Findings
On the above evidentiary findings, I make the following findings and conclusions.
On January 19, 1966, the employees of Respondent Air Flow on its RCA job
in Marion, Indiana, who were members of Respondent, were doing hardly any
work. On the morning of Wednesday, January 19, 1966, or on the prior Monday
or Tuesday, employee Beatty, Respondent Union's steward on the RCA job,
informed'Thomas and Quarles, Respondent Air Flow's project manager and super-
intendent, respectively, on the RCA job, that employee Milligan was causing trou-
ble on , the job , and that the employees had made up their minds they were quit-
ting if Milligan stayed on the job , and were almost certain that they would quit
if he,stayed on the job. Quarles and Thomas knew the trouble arose 'from the
fact 'that Milligan continued to work on the' RCA job although the Union was
having a dispute with him . They did not know the nature of the dispute . Quarles'
and Thomas listened to enough of Business Agent Krock's conversation with
Milligan on the RCA job on the morning of January 19, 1966, to believe that the
dispute the Union was having with Milligan would' not be settled at that' time, and
the preoccupation of the employees with the dispute, and their disinterest in'work-
ing because of it , would continue . As a result , Thomas, on the recommendation
of Quarles, fired Milligan. He was paid off in full, receiving a full day's pay for
January 19, although he worked only half a day.
By the quick action of Ehrman, operations manager of Air >Flow, the discharge
was converted to a transfer of Milligan to 'Air Flow's Corning Glass project at
,Bluffton , Indiana. However, the transfer, like the initial - discharge , was because
the:-members of the Union were doing very little work 'in view-of their preoccu-
AIR FLOW SHEET METAL, INC. 1667
pation with a resentment , fanned by Union Steward Beatty, against Milligan for
working on the RCA job while the Union had a dispute with him, and the threat
of a strike by the Union, made by Beatty, if Air Flow continued to permit Milli-
gan to work in spite of the dispute.14
On the morning of Thursday, January 20, 1966, which was after the union mem-
bers on the RCA job learned that Milligan had not been fired but transferred to
the Corning Glass job, they refused to work, and asked for the wages due them.
Air Flow told them they would have to wait until the regular payday, which' was
the following Wednesday. Union Steward Beatty informed Project Manager Thomas,
at the time the men demanded their checks, that the men made up their minds
that they were quitting. They returned to work either on Saturday, January 22,
1966, or Monday January 24, 1966, when Milligan was no longer working.
At noon on January 20, 1966, Krock ordered Milligan to cease working on the
Coming Glass lob in the presence of Project Superintendent Shaw, a member of
the Union, until he had taken and passed the Union's examination given to appli-
cants for membership in the Union as a journeyman member, and had been accepted
into the Union as a member. Krock refused at this time to take from Milligan the
unpaid balance of the initiation fee Milligan had to pay to be a union member. Shaw
must have been aware of the contents of the letter which Krock had signed and
handed to Milligan at the time he ordered him to stop working . In effect, the letter
stated to Milligan that he was suspended from any status he had in the Union until
he had taken and passed the examination and had been favorably voted in by the
membership of the Union. Shaw told Milligan that in view of his suspension by the
Union, he could not work on the Corning Glass job. This statement by Shaw pre-
supposes knowledge of the letter.
When Ehrman learned from Thomas on the morning of January 20, 1966, of
the strike on the RCA job, he and Thomas agreed that the only way to have the
strike end was to fire Milligan. Ehrman made out a check to Milligan for a full
days' pay, and was about to embark from his office for the Corning Glass job to
pay off Milligan, when he encountered him in the anteroom of his office. I credit
Milligan's testimony that Ehrman said to him that he had raised up a hornets'
nest on the RCA job, and said "Here's your check, B. J." Ehrman, at this time,
discharged Milligan.
At the -time Ehrman gave Milligan' his check, and Milligan showed him the let-
ter handed him by Krock at noon on the Coming Glass job, Ehrman answered
yes to Milligan's question whether he would have his job back after he got straight-
ened out with the Union. I have rejected Ehrman's testimony that he asked Milli-
gan if he returned to the RCA job the prior afternoon, and when Milligan said
he had, he 'told him he had cut his own throat, and have rejected Ehrman's testi-
mohy that in his conversation with Milligan on the prior afternoon he denied Mil-
ligan permission to return to the RCA job that afternoon to pick up tools he
would need the following morning on the Corning Glass job. On the other hand,
I have found that Ehrman gave him permission to return, that Milligan did not
stir up trouble when he returned and picked up the tools, and that the resumption
of the slowdown by the employees, and their preoccupation with their resentment
against Milligan, began when they learned Milligan had not been fired but trans-
ferred. When Ehrman told Milligan on the afternoon of January 19 that he had
been transferred to the Corning Glass job and Milligan asked if he could pick up
the tools on the RCA job, Ehrman had not talked to Thomas, Quarles, or Krock
about Milligan's discharge by Thomas. So he did not know of the desire of these
three men to keep Milligan away from the RCA job altogether, regardless of the
reason.
The Union caused Air Flow to transfer and discharge Milligan because he was
not a member, of the Union, and because he had not taken or passed the examina-
tion the Union gave to applicants for membership as journeymen members. This is
clear from Krock's conversations with Milligan, his letters to Milligan, his testi-
mony, and, his refusal to accept from Milligan the unpaid amount of the initiation
fee.,Milligan did not have to pay dues until he was accepted as a member. He is -
still being denied membership. In causing Air Flow to transfer and discharge Mil-
ligan for the above reasons, the Unioq misapplied its contract with Air Flow to
14 This type of conduct has the power to cause or, attempt to cause discrimination within
the meaning of Section 8(b)(2) of the Act, and to. restrain or coerce within the meaning
of Section 8(b) (1) (A) of the Act. Bricklayers Union Local No. 18 (Ferguson Tile and
Marble Co ), 151 NLRB 160; A. Nabakowski Co, 148 NLRB 876, epfd. 359 F.2d 46 (CA. 6).
1668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cause the latter to transfer and discharge for reasons other than the payment of
dues or an initiation fee. This conduct violates Section 8(b)(1)(A) and (2) of the
Act.15
I also find that Respondent Union has violated Section 8(b)(1)(A) and (2) of
the Act by denying Milligan membership in it because he filed unfair labor prac-
tice charges with the Board, and has caused Respondent Air Flow to deny rein-
statement to Milligan for this reason.16 The Board will not interfere with the inter-
nal affairs of a union, except, as in this case, it interferes with the statutory right
of an employee to engage in or refrain from engaging in the union or other con-
certed activity guaranteed him in Section 7 of the Act, his statutory right to use
the processes of the Board, and his statutory right to be free of union discrimina-
tory action in regard to his employment proscribed by Section 8(b)(2) of the
Act.17 Respondent Union's denial of membership to Milligan because be filed
charges against it on January 24, 1966, is apparent from Krock' s statement on
January 25, 1966, the day he passed the examination, to Butler and Simmons,
the two union members who were his vouchers, that he did not think Milligan
would be accepted in the Union because of the filing, Krock's admission that be
made the statement to Butler and Simmons, and Krock's sudden efforts prior to the
February 7, 1966, meeting of the Union to unearth evidence showing that Milli-
gan was not a person of good moral character.
Respondent Air Flow contends that it is not liable under the Act because it
did not have knowledge of the nature of the dispute the Union had with Milligan,
even though it transferred and discharged Milligan because the Union was having
the dispute with him. By transferring and discharging Milligan because of the
dispute without knowledge of the nature of the dispute, it adopted as its own
reasons for the transfer and discharge the reasons the Union had for the dispute.
Its conduct is illegal if the reasons of the Union when related to this conduct
make it illegal. That is the risk it took.18 Therefore, Respondent Air Flow trans-
ferred Milligan on January 19, 1966, from its RCA job in Marion, Indiana, to
its Corning Glass job in Bluffton, Indiana, and discharged him on January 20,
1966, because Milligan was not a member of Respondent Union, and had not
taken or passed the examination the Respondent Union gives to applicants for
membership with journeyman status. Respondent Air Flow has refused to rein-
state Milligan because he is not a member of Respondent Union, and filed unfair
labor practice charges with the Board against Respondent Union on January 24,
1966 This conduct violates Section 8(a)(1), (3), and (4) of the Act.19
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above, occurring in
connection with the operations of Respondent Air Flow described in section 1,
above, have a close,- intimate, and substantial relation to trade, traffic, and com-
merce 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 Respondents engaged in conduct violative of the Act, I shall
recommend that Respondents be ordered to cease and desist from engaging in
such conduct , and take such affirmative action as appears necessary to effectuate
1a Union Starch & Refining Company (Grain Processors' Independent Union, Local No.
1), 87 NLRB 779, enfd. 186 F.2d 1008 (C.A. 7), cert. denied 324 U.S. 815; A. Nabakowski
Co., 148 NLRB 876, enfd. N.L R.B. v. Sheet Metal Workers' International Association
(AFL-CIO), Local No. 65, 359 F.2d 46.
18 Galveston Maritime Association , Inc., 122 NLRB 692, 697, 139 NLRB 352, 353, Local
138, Internetiorial Union of Operating Engineers. AFL-CIO (Charles S. Skura), 148 NLRB
679; Cannery Workers Union of The Pacific, 159 NLRB 843.
17 Union Starch, supra, footnote 15; A. Nabakowski Co , supra, footnote 15
18N.L.RB, v. Remington Rand, Inc, 94 F.2d 862, 869 (C.A 2), cert. denied 304
U.S. 576. -
19 Union Starch and Refining Company, and Grain Processors Independent Union,' Local
No .1, supra; Brunswick Corporation, 135 NLRB 574, enfd. 318 F 2d 419 (C A. 3) ;
Galveston Maritime Association, Inc, supra, footnote 16.
TANNER MOTOR LIVERY, LTD. 1669
the purposes of the Act. I shall recommend that Respondent Air Flow be required
to offer Milligan , without prejudice to his seniority and other rights and privileges,
immediate and full reinstatement to his former or substantially equivalent position.
I shall also recommend that Respondents be required , jointly and severally, to
make Milligan whole for any loss of earnings he suffered by reason of the dis-
crimination and other illegal conduct against him, as provided in F. W . Woolworth
Company, 90 NLRB 289 , with interest at 6 percent per annum , as provided 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. Respondent Air Flow Sheet Metal, Inc., is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act, and Respondent Local Union No.
156, Sheet Metal Workers' International Association , AFL-CIO, is a labor organi-
zation within the meaning of Section 2(5) of the Act.
2. Respondent Air Flow and Respondent Union have a valid union-security
agreement within the meaning of Section 8(a)(3) and (f) of the Act.
3. By transferring employee Billy J. Milligan from one job to another , and then
discharging him, because he was not a member of the Respondent Union, and
had not taken or passed the examination given by the Union that applicants for
membership must take and pass in order to be journeymen members of the Union,
and refusing to reinstate Milligan because he was not a member of the Union
and filed unfair labor practice charges against the Union, Respondent Air Flow
violated Section 8 ( a)(1), (3), and (4) of the Act.
4. By denying Milligan membership in Respondent Union because he filed unfair
labor practice charges against it, Respondent Union violated Section 8 (b)(1)(A)
of the Act.
5. By causing Respondent Air Flow to transfer and discharge employee Milli-
gan because he was not a member of Respondent Union, and had not taken or
passed the examination given by the Respondent Union to applicants for member-
ship in Respondent Union with journeymen status, Respondent Union violated Sec-
tion 8 (b)(1)(A) and (2) of the Act.
6. By causing Respondent Air Flow to refuse to reinstate Milligan because he
was not a member of the Respondent Union, and filed unfair labor practice charges
with the Board against it , Respondent Union has violated Section 8(b) (1) (A)
and (2 ) of the Act.
7. These unfair labor practices affect commerce within the meaning of Section
2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
'Tanner Motor Livery, Ltd . and Chauffeurs Union , Local No. 640,
International Brotherhood of Teamsters , Chauffeurs, Ware-
housemen & Helpers of America; Teamsters Automotive Work-
ers, Local No. 495 , International Brotherhood of Teamsters,
Chauffeurs , Warehousemen & Helpers of America ; Interna-
tional Association of Machinists , AFL-CIO, Lodge No. 1186;
and Office Employees International Union , Local No. 30,
AFL-CIO. Case 31-CA-40. October 7, 1966
DECISION AND ORDER
On February 28, 1966, Trial Examiner James R. Hemingway
issued his Decision in the above-entitled case, finding that the
160 NLRB No. 127.