Local 38, Sheet Metal Workers' International Assoc, AFL-CIO

National Labor Relations Board - Board Decisions

Jun 9, 1970

183 N.L.R.B. 110 (N.L.R.B. 1970)

110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local Union No. 38 , Sheet Metal Workers' Interna - APPENDIX
tional Association , AFL-CIO (Mid-Hudson Sheet
Metal Inc .) and Robert John Green , Jr. Case
3-CB-1295
June 9, 1970
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN
AND JENKINS
On February 9, 1970, Trial Examiner James T.
Barker issued his Decision in the above-entitled
matter, finding that Respondent had engaged in and
was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. Thereafter,
the Respondent filed exceptions to the Decision.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
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 the
entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
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 the Respondent, Local Union No. 38,
Sheet Metal Workers' International Association,
AFL-CIO, Hopewell Junction, New York, its of-
ficers, agents, and representatives, shall take the
action set forth in the Trial Examiner's Recom-
mended Order, except that the attached notice to
members shall be posted instead of the Trial Ex-
aminer's notice.
' Respondent excepted only to the Trial Examiner 's rejection of its argu-
ment that the Regional Director's dismissal of a prior charge filed by the
same individual is res judicata as to the issues in the instant proceeding
Like the Trial Examiner, and for the reasons set forth by him, we find that
the Regional Director 's administrative action , based on his view that
Robert John Green , Jr , was a supervisor , is not dispositive
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 Mid-
Hudson Highland Sheet Metal Inc. to condition
further employment of Robert John Green, Jr.,
upon payment of fines, or require said em-
ployee to pay fines as a condition of continued
employment.
WE WILL NOT in any like or related manner
restrain or coerce employees of Mid-Hudson
Highland Sheet Metal Inc. in the exercise of
their rights guaranteed in Section 7 of the Act.
WE WILL notify Robert John Green, Jr., and
Mid-Hudson Highland Sheet Metal Inc. that we
have no objection to his employment with Mid-
Hudson Highland Sheet Metal Inc. as a jour-
neyman sheet metal worker utilizing the tools
of the trade; and that WE WILL NOT unlawfully
refuse Mid-Hudson Highland Sheet Metal Inc.
permission to utilize Robert John Green, Jr.,
in said work capacity on an overtime basis.
WE WILL make Robert John Green, Jr.,
whole for any loss of straight time or overtime
earnings suffered as a result of the discrimina-
tion we have practiced against him.
LOCAL UNION No. 38,
SHEET METAL WORKERS'
INTERNATIONAL
ASSOCIATION , AFL-CIO
(Labor Organization)
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, Fourth Floor, The 120 Building,
120 Delaware Avenue, Buffalo, New York 14202,
Telephone 716-842-3100.
183 NLRB No. 13
LOCAL 38, SHEET METAL WORKERS ' INTERNATIONAL ASSOC, AFL-CIO
TRIAL EXAMINER 'S DECISION III . THE UNFAIR LABOR PRACTICES
STATEMENT OF THE CASE
JAMES T. BARKER , Trial Examiner: This matter
was heard at Poughkeepsie, New York, on
November 5, 1969, pursuant to a charge filed on
June 24, 1969, by Robert John Green, Jr. On Sep-
tember 3, 1969,' the Regional Director of the Na-
tional Labor Relations Board for Region 3 issued a
complaint and notice of hearing alleging that Local
Union No. 38, Sheet Metal Workers' International
Association, AFL-CIO, hereinafter referred to
either as the Union or the Respondent, had en-
gaged in unfair labor practices in violation of Sec-
tion 8(b)(2) and (1)(A) of the Act. The parties
timely filed briefs with me.
Upon consideration of the briefs of the parties
and upon the record of this case,2 and my observa-
tion of the witnesses , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
At all times material herein Mid-Hudson Sheet
Metal Inc. has maintained its principal office and
place of business at Hopewell Junction, New York.
During said period of time it has maintained various
other places of business, warehouses, and other
facilities and, at relevant times, has been continu-
ously engaged at said places of business and facili-
ties in providing and performing the fabrication and
installation of sheetmetal and duct work and re-
lated services.
During the calendar year immediately preceding
the issuance of the complaint herein, Mid-Hudson
performed services valued in excess of $300,000, of
which services valued in excess of $50,000 were
furnished to, among others, International Business
Machines, Inc., and Frank A. McBride Mechanical
Construction, Inc., each of which, individually and
collectively, ships goods valued in excess of
$50,000 directly out of the State where it is
located.
Upon these admitted facts, and the concession of
the Respondent made orally on the record at the
hearing, I find that Mid-Hudson has been at all
times material herein an employer engaged in com-
merce within the meaning of Section 2(6) and (7)
of the Act.
II. THE LABOR ORGAINZATION INVOLVED
Local Union No. 38, Sheet Metal Workers' Inter-
national Association, AFL-CIO, is admitted to be a
labor organization within the meaning of Section
2(5) of the Act, and I so find.
' All references herein are to the calendar year 1969 unless specifically
indicated otherwise
R Errors in the transcript have been noted and corrected
3 The firm name was subsequently changed and presently is Mid-Hudson
A. The Issues
ill
The principal issue in this proceeding is whether
the Respondent caused or attempted to cause the
Company to discriminate against Robert Green in
the assignment of overtime and ultimately to
discharge Green because Green's membership in
the Union had been terminated for his failure to
pay an intraunion disciplinary fine.
By way of affirmative defense the Respondent as-
serts that at times pertinent Green was a supervisor
within the meaning of the Act and that his union
membeship had been terminated soley by virtue of
his failure timely to tender union dues uniformly
required.
B. Pertinent Facts
1. Background facts
a. The collective -bargaining agreement
The Company commenced business on June 1,
1968, under the style and firm name of Mid-Hud-
son Sheet Metal Inc.3 At all times on and after June
1, 1968, Mid -Hudson has given effect to and abided
by Respondent 's standard form of union agreement.
In August 1969, Arthur Wigand became a signatory
to the agreement .' The agreement contained a stan-
dard 8-day union -security clause and a provision
requiring the Company to notify the Union of any
work covered by the agreement which was to be
performed outside of regular working hours during
the regular workweek or on holidays . The evidence
reveals that at all pertinent times the Respondent
and Company gave effect to this latter provision by
maintaining an arrangement or practice whereby
permission had to be obtained from the Respondent
before a sheetmetal worker could work overtime
for the Company.
b. Union rules governing fines
At all times relevant herein the Respondent's
constitution contained a provision relating to the
levy of fines which provided as follows:
SEC. 3. All fines levied in accordance with
the provisions of this Constitution shall be paid
within the time limits specified and no dues
shall be accepted from any member who
refuses, fails, or neglects to pay such fines, ex-
cept that if the fine exceeds the sum of Fifty
Dollars ($50.00) no more than Fifty Dollars
($50.00) shall be required to be paid as a con-
dition of any proper appeal from the decision
under which such fine was imposed.
Highland Sheet Metal Inc The original and successor firm shall hereinafter
be referred to as Mid-Hudson
4 The failure of Mid-Hudson to formally execute the agreement appears
to have been due to an oversight on the part of a former partner of Wigand,
and Wigand had not been aware of the oversight
112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All fines initially shall be paid to the local
union in which such member holds member-
ship and if the fine was levied by another local
union, notice of such payment shall be sent to
such local union by certified mail. If, upon
final disposition of the case, the fine is upheld
it shall be paid to the financial secretary of the
local union which imposed the fine.
c. Green's union membership and employment
history
Prior to events pertinent herein, Robert Green
had been a member of the Union for approximately
18 years. Commencing in 1958 and continuing until
October 1968, Green worked in the employ of Mc-
Creary Metals, Inc., headquartered in Albany, New
York. During the course of his employment with
McCreary, Green worked principally in the terri-
torial jurisdiction of the Union. During the last 4 or
5 years of Green's employment with McCreary,
Green worked as a journeyman sheetmetal worker
in partnership with John Versace. Versace left the
employ of McCreary approximately 6 weeks before
Green severed his employment with McCreary.
On November 21, 1968, Robert Green entered
the employ of Mid-Hudson. He worked briefly in
the shop fabricating duct and was then assigned to
the H. O. Penn job of Mid-Hudson.5 On the H. O.
Penn job, Green was assigned to work with John
Versace as a sheetmetal worker. Their tasks in-
cluded the measuring, installing, and erecting of
duct work.
d. Green's job duties with Mid-Hudson
Arthur Wigand credibly testified that when
Robert Green entered his employ in November
1968, he did so as a journeyman sheetmetal
worker. Until early March 1969 Green was com-
pensated at the same wage rate as other sheetmetal
workers in the employ of Mid-Hudson. In March
1969, at which time Mid-Hudson had in its employ
approximately six or seven sheetmetal workers,
three sheetmetal workers, including Robert Green,
were granted an increase in wages. Wigand credibly
testified that the increase was granted as compensa-
tion for their competence and skill in the face of a
short labor market and to reflect the additional
responsibilities which they carried as "leadmen."
In this latter respect, Wigand further credibly
testified that it is common practice in the sheet-
metal industry for journeymen to work in pairs and
that during the period of his employment with Mid-
Hudson Robert Green worked as a partner with
John Versace. Wigand further credibly testified
that to conduce to the efficient performance of
' There is a discrepancy between the testimony of Robert Green and that
of Arthur Wigand, president of Mid-Hudson, relating to the date of Green's
initial employment Green testified that he commenced work in the shop
on November 21 while Wigand testified that Green's employment com-
menced on November 22 Green's testimony concerning the means by
which he determined the commencement date of his employment at Mid-
work one of the pair of journeymen assigned to any
given job receives advance instructions with respect
to the specific job and has the responsibility to
measure and take the lead in the actual per-
formance of those work tasks normally associated
with the journeymen sheetmetal skills. Additionally,
under Mid-Hudson's procedures the same member
of the working partnership is designated as the con-
duit for customer complaints. Incident to this
responsibility, this individual has no authority to
make adjustments on behalf of the employer but is
permitted merely to pass the information to higher
authority.
Authur Wigand further credibly testified that
during the entire period of his employment, from
November 1968 through June 20, 1969, the duties
of Robert Green were those normally associated
with the sheetmetal industry. Specifically, Wigand
testified that Green's duties included the shop
preparation or makeup of duct or metal pieces
required for a specific job and the onsite disman-
tling or erecting of duct work.
Wigand further credibly testified that at no time
during the term of his employment did Green have
the authority to hire or discharge employees or to
make any type of effective recommendation con-
cerning them.
The evidence of record reveals that on April 10,
1969, Robert Green filed an unfair labor practice
charge in Case 3-CB-1247. The record further
establishes that on April29, 1969, the Regional
Director of the National Labor Relations Board for
Region 3 dismissed the charge, advising Green that
the investigation of the charge had disclosed that at
the time of the alleged discriminatory action he was
a supervisor within the meaning of the Act and was
thus not entitled to the protection of the Act.
e. The 1966 union charge
On August 8, 1966, a charge was filed against
Robert Green by Edward J. Salch, Jr., business
representative and recording secretary of the
Union. Salch charged Green with working overtime
without first securing a union overtime permit and
while behind in his dues. It was charged that, in the
prevailing circumstances, Green was ineligible
under union rules to work in the trade.
On September 9, 1966, the executive board of
the Union, sitting as a trial committee, heard the
charges against Green. Both Salch and Green ap-
peared at the hearing. The trial committee found
Green guilty of the charges and assessed a $100
fine. Green appealed the action of the trial commit-
tee, and Green was subsequently informed that the
International had sustained his appeal and had or-
dered recision of the fine.6
Hudson was convincing and I credit Green However the testimony of both
Wigand and Green is consistent in that, after being employed at Mid-Hud-
son, with only slight delay, Green was assigned to the H 0 Penn Job
6 John Versace worked with Green on the occasion of Green's alleged
breach of the union rule and was similarly charged and fined Versace, like
Green, successfully appealed his fine
LOCAL 38, SHEET METAL WORKERS ' INTERNATIONAL ASSOC., AFL-CIO
f. The 1968 union charge
On April 8 , 1968, Robert Green was again
charged with a violation of a union rule by working
at the Wallkill Senior High School job without noti-
fying the Union and without first resorting to the
out-of-work list of the Union . The charge was filed
by James Nixon , a business agent of the Union.
Robert Green credibly testified that in late March
he was workng in the employ of McCreary Metals,
Inc., at the Wallkill High School jobsite. Green
testified that while he was working on the jobsite he
observed James Nixon conversing with two other
individuals . He was then summoned by Nixon who
said , "Come over here ; I want to talk to you."
Green told Nixon that he had nothing to say to him
and continued to work . Thereupon , Nixon came
over to Green and said, "Let me see your union
ticket ." Green answered that he did not have the
ticket because he had mailed it to "Mr. Bradley. "7
He informed Nixon that Nixon would have to speak
to Bradley . Nixon thereupon left stating to Green,
"I will see you on Friday."
By letter dated April 1 , Nicholas J. Brennan,
business manager of the Union , advised Green that
he was being requested by Business Agent Nixon to
appear before the executive board of the Union on
April 5. Green received the letter but did not ap-
pear.
Thereafter , on April 8 , Nixon filed a formal
charge against Green alleging a violation of union
rules as found above.
The charge was initially scheduled for trial on
August 2 , 1968. However , pursuant to a timely tele-
graphic request filed by Robert Green , the August
2 hearing was postponed . In due course the trial
was rescheduled for September 6, and Edward
Salch so advised Robert Green by registered letter.
Green did not receive delivery of this letter and on
September 5 he was advised in person that the trial
was scheduled for the following day. On September
6 Green made a telephonic request of Respondent
to again postpone the trial . However , the trial was
held as scheduled and Green did not attend.8
In due course , on September 6, 1968, the April 8
charges against Robert Green were heard by the ex-
ecutive board , sitting as a trial board of the Union.
Green was found guilty of the charges filed against
' Douglas J Bradley was at pertinent times Respondent 's financial secre-
tary
° Robert Green testified that at pertinent times he maintained a post of-
fice box in Poughkeepsie and that because of marital difficulties , through
December 1968, he refused to accept delivery of registered letters He
further testified , however, that he took delivery of all regular mail Green
testified , credibly, that commencing in January 1969 and thereafter he did
not decline to take delivery of any registered or certified mail
Green conceded that during the period in which he was declining to ac-
cept delivery of registered mail there " were a few registered mails that
came to the post office" that he did not "get " He also conceded that in the
month of December 1968, it was frequently a week or two before he got to
the post office to pick up mail
° The General Counsel raises no issue with respect to the procedural
regularity of the trial proceeding The instant trial appears to have con-
formed to provisions of Respondent 's constitution governing the filing of
113
him by Nixon and was fined $ 750. The minutes of
the trial board proceedings of September 6 reflect
the finding , the amount of the fine assessed , and, in
pertinent part , also reflect the following:
The Local Union has a ruling that when men
are working for any contractor other than a
Local Union #38 contractor , they may not
transfer from one job to another . The out-of-
town contractor must man his jobs from the
Local Union out-of-work list. The company
that Robert Green , Jr., works for is the Mc-
Creary Metals Co ., who has a signed agree-
ment with Local Union #38. During the few
months preceding the charges Brother Robert
Green moved continuously from the Rotron
job in Ashokan , N.Y., to the Wallkill Senior
High School to the Kingston Vocational School
and a Cities Service Gas Station in Kingston,
N.Y., without ever notifying the Local Union;
this being contrary to the Local Union rules
and regulations.
Letters have been submitted as evidence to the
fact that Brother Green has refused to accept
any registered mail from the Local Union so as
to thwart the Trial Committee Letters under
the dates of. April 25, 1968 - June 10, 1968 -
July 2 , 1968, July 23 , 1968 - August 20, 1968,
were submitted with the envelopes that were
returned to the Local Union a statement was
also presented to the Trial Committee bearing
out the runaround that was given to two Local
Union #38 Business Agents to present the
charges to Robert Green, Jr., personally on a
job site in Ulster County.
Two copies of the minutes of the proceedings of
September 6 were dispatched to Robert Green by
registered mail. The covering letter , over the signa-
ture of Edward J . Salch , recording secretary of the
Union, requested Green to attest to the accuracy of
the minutes . The letter was dated September 9.9 It
was returned undelivered to the Union.
Thereafter, Salch endeavored to locate Green
and ultimately hand -delivered the minutes and
covering letter to Green on December 5, 1968, at
the H . O. Penn worksite of Mid-Hudson.10
charges, notice of hearing, trial procedures , and service of trial minutes and
findings
10 Robert Green testified that the delivery transpired on December 5
while Edward Salch placed the date of delivery as November 20 The
testimony of both Green and Arthur Wigand establishes that Green did not
commence his employment with Mid-Hudson until after November 20
Further, Wigand testified credibly that Salch approached him at the office
seeking to locate Green and that he informed Salch that Green was on the
H 0 Penn Job Indeed Salch himself testified that he sought out Wigand to
inquire into Green's whereabouts Finally, John Versace lends credible
support to the testimony of Green Versace testified credibly that when
Salch came to the H 0 Penn job to deliver the trial minutes , at Green's
request , he recorded the date of delivery on the envelope containing the
minutes The date he recorded was December 5 Accordingly , I am unable
to credit Salch 's testimony that the delivery occurred on November 20
114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thereafter by letter, received by the Union, Green
notified the Union that he would not attest to the
minutes because of "numerous errors and false
statements" allegedly contained therein.
On January 3, 1969, Green filed an appeal with
the International in Washington, D.C., and by the
letter of transmittal of the same date forwarded a
check in the amount of $50 to the Respondent."
This check was received in due course by the finan-
cial secretary of the Union and was transmitted to
Edward Salch.
On January 22, 1969, the International by letter
advised Green as follows:
This is in reference to your appeal on the ac-
tion taken by Local Union #38.
You are advised that your appeal cannot be
entertained as your appeal is not timely, and
you did not comply with the provisions of Arti-
cle 17, Section 3 of our International Constitu-
tion pursuant to the provisions of Article 19,
Section 2(b) and Article 19, Section 5(a) of
our International Constitution.
Subsequently, as a consequence of further com-
munication with the International, Green received a
letter dated February 3, 1969, from the general
secretary-treasurer of the International which read
as follows:
g. Suspension notice to Mid-Hudson
In the meantime, by letter dated January 7, 1969,
bearing the signature of Edward Salch, Mid-Hudson
was informed as follows:
Please be advised that the financial secretary
has notified this Local Union #38 that as of
January 1, 1969, Robert J. Green, Jr., has been
suspended from membership in Local Union #
38.
h. Wigand speaks with Green
Upon receiving Salch's letter, Arthur Wigand,
president of Mid-Hudson, called Green into his of-
fice and showed Green the letter. Green informed
Wigand that he was going to get in touch with
"Washington."
In Wigand's presence Green placed a long
distance telephone call to the International in
Washington and spoke for a few minutes with an in-
dividual. After the conversation terminated Green
stated that the person to whom he had spoken in-
formed Green that he would be in touch with Salch
and instructed Green to "stay on the job." Wigand
permitted Green to continue work.
2. The alleged unlawful conduct
This is with reference to your letter of January
27, 1969, in which you claimed you did
comply with Article 17, Section 3 of our Inter-
national Constitution within the prescribed
thirty days.
Please be advised that the records show Local
38 sent you a copy of the findings of the trial
committee September 9, 1968, which you
refused to accept and because of this same was
delivered to you in person November 20, 1968,
therefore, the $50.00 on appeal received by
Local 38 January 6, 1969, was not within the
predescribed thirty days.
You refused to accept certified mail which you
must have known was notification to you of the
outcome of the trial, and since it was your
decision to take this type of action you thereby
forfeited your right to appeal. [Emphasis sup-
plied. ]
" The Respondent 's constitution provides for appeal to the general pre-
sident of all orders and directions of the trial committee and of the local
union pertaining thereto In pertinent part the constitution provides as fol-
lows
All appeals to the general president shall be in written form, filed
with the general secretary-treasurer and a copy mailed to the opposing
party or parties within thirty (30) days from the action from which ap-
peal is taken, unless notice thereof is required by this Constitution, in
which event , the appeal must be filed and served within thirty (30)
days of the date of such notice
Should the appeal be predicated upon any action of the local union
or counsel , copies thereof shall be furnished to such local union or
a. The overtime work issue
On March 20 and 31, 1969, form overtime
authorizations were issued over the signature of
Nicholas Brennan to Robert Green and John Ver-
sace granting union authorization to them to work
overtime. These slips are issued pursuant to the ex-
isting arrangement or practice found above. Under
established procedure, either the employer or the
employee seeking permission to work overtime
makes an oral or telephonic request to office per-
sonnel of Respondent. The office employee receiv-
ing the request completes all portions of the form,
recording the essential information given by the ap-
plicant, and then presents it to Brennan for signa-
ture. In one sitting Brennan often affixes his signa-
ture to a pile of authorization forms presented to
him for approval. Brennan testified that when he
signed the authorization forms for March 20 and
March 3 1, respectively, he was not aware that they
bore the name of Robert Green.
counsel which shall be entitled to file reply thereto in the same manner
as an appellee.
Nicholas Brennan credibly testified that , consistent with requirements of
the Respondent 's constitution , under the established procedures of the
Union, when a member appeals an order of the trial committee assessing a
fine in excess of $ 50, in order to perfect his appeal the member must sub-
mit to the financial secretary of the local $50 If the appeal is sustained in
its entirety the money is returned to the member If the appeal is rejected or
not fully sustained , the $50 is applied to satisfaction of the fine in ac-
cordance with such directive as the International may issue.
LOCAL 38, SHEET METAL WORKERS' INTERNATIONAL ASSOC, AFL-CIO
After the Union dispatched its January 7 letter to
Mid-Hudson advising the Company of the suspen-
sion from membership of Robert Green, Brennan
issued instructions to his office personnel that over-
time permits should not be issued to Robert
Green. 12
In early April John Versace placed a telephone
call to the office of the Respondent and requested
issuance of an overtime permit for him to work
overtime in the employ of Mid-Hudson. The office
girl who took the call sought the names of the em-
ployees requesting the permit. Versace' informed
her that they were being requested by Robert
Green and himself. After a pause of a few minutes
the office girl stated, "I can give you a permit but I
can't give it to Bob Green, because he is no longer
a member here."
John Versace further credibly testified that later
in the month of April he again contacted the
Respondent's office and requested issuance of an
overtime permit for himself and for Robert Green.
On this occasion, according to the credited
testimony of Versace, the office girl to whom he
spoke declined to issue a permit for Green but
stated that she would give Versace a permit.
Versace further credibly testified that thereafter
he ceased requesting permits for Green and sought
and received overtime permits for himself.
b. Salch and Wigand converse
In the interim, in late March, Wigand had occa-
sion to converse with Salch concerning a need for
regular sheetmetal men. As the conversation ended
Salch inquired if Green was still employed by Mid-
Hudson and Wigand answered in the affirmative.
c. Wigand speaks with Brennan
Thereafter, in early April, Wigand spoke with
Nicholas Brennan, president and business manager
of Respondent. Wigand informed Brennan that he
needed layout men and inquired if Brennan had
any. Brennan answered, "Where will I get one?"
"Out of the dump." Wigand responded he would
take a sheetmetal man if he could get one and
Brennan asked, "Do you still have Green working
with you?" Wigand answered in the affirmative.
Brennan said, "Well, you know you're right in the
middle of this." Brennan further stated that Green
was no longer a member of Local 38. Wigand ob-
served that he had overtime permits bearing the
name of Robert Green and John Versace. Brennan
responded that the permits were a "mistake."
is Nicholas Brennan was unable to more precisely fix the date of this in-
struction
"The foregoing is based primarily on the credited testimony of Arthur
Wigand as supported , in certain respects , by the testimony of Edward Salch
and Glenn Powell While I credit the testimony of Salch to the effect that
he referred to the Board 's determination of Green as a supervisor and made
reference to the fact that supervisory personnel are not covered by the
Union's agreement , I do not find that Salch 's objection to Green 's use of
115
d. Salch instructs Wigand
On June 19, 1969, Arthur Wigand had lunch
with Edward Salch at a restaurant in Hopewell
Junction, New York. They were joined at lunch by
Glenn Powell, a sheetmetal contractor. During the
lunch they sat at a counter. Salch sat to the left of
Wigand and Powell sat to Wigand's right. The
luncheon conversation lasted approximately 1 hour
and was principally devoted to a discussion of man-
power availability. However, Wigand and Salch also
discussed Robert Green. When Wigand inquired
into the status of Green, Salch informed him that
Green had lost his " case " and that Green no longer
had a card. Salch stated that Green could no longer
work with tools of the trade. Wigand commented
that in that event Green was not of "very much
value" to him. Salch observed that Green could
work as an estimator but could not work with the
tools of the trade. Salch stated that in an earlier
Board proceeding Salch had been described as a
"supervisor" and that Wigand could use Green in a
supervisory capacity. Salch remarked that Wigand
had a "union agreement ." Wigand then inquired
how Green could get back into the Union. Salch
replied that he could do so by paying $613.39 for
reinitiation and by paying the $750 fine which was
outstanding.13
e. Green's termination
The following morning, on June 20, Wigand in-
formed Green of his conversation with Salch on the
previous day. Wigand informed Green that "if he
were not able to work with the tools" he was going
to have to let him go. Wigand suggested that Green
could work as an estimator and that he would util-
ize him in that capacity. However, Green stated
that as an estimator he could not receive unemploy-
ment benefits. Thus, Green stated that he desired
not to be employed as an estimator. Thereupon,
Wigand informed Green that he could not keep
him.
Later, on June 20, Wigand dispatched the follow-
ing letter to the Respondent:
We wish to inform you that we terminated Mr.
Green's employment Friday morning, June 20,
1969, at 9 a.m., conforming with union
requirements. Mr. Salch informed me that we
could retain Mr. Green in a supervisory capaci-
ty only, not using any tools of the sheet metal
trade.
I would state at this time we are in need of
qualified sheet metal workers. We require one
(1) shop layout man and two (2) fieldmen.
the tools of the trade , articulated during the luncheon conversation, was
premised solely upon the Board 's supervisory determination Rather, as
testified to by Wigand, I find that the reference was made in context with
Salch's separate observation that Green had lost his "case" and was no
longer a union member
I place little reliance on the testimony of Glenn Powell who, by his own
testimony , conceded that he did not closely follow the trend of the conver-
sation relating to Green
427-258 O-LT - 74 - 9
116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Approximately 2 weeks thereafter, Wigand em-
ployed Green as an estimator , in which capacity he
was working at the time of the hearing herein.
f. The union dues issue
Robert Green credibly testified that, knowing
that he was on "charges" before the Union, in early
December he mailed a check to cover dues for
November and December. He did not receive back
a dues receipt and consequently checked with his
bank to determine whether or not his dues check
had been negotiated. Finding that it had not, on
December 26, Robert Green dispatched a check in
the amount of $33 covering 2 months' dues. The
check was mailed to Douglas Bradley, financial
secretary, and was received in December in the due
course of the mails.14 Bradley handed the check to
Salch at the executive board meeting in January
1969. While Salch, in his capacity as recording
secretary, accepts all communications he does not
accept dues checks.
Article 16, section 10, of the constitution of the
Union provides as follows:
Any member who becomes two (2) months in
arrears shall be recorded suspended by the
local financial secretary and by the General
Secretary-Treasurer without notice and under
no circumstances shall any extension of time
be granted. No back dues shall be accepted
from any member suspended in accordance
with this Section and no official receipt shall
be issued to record such dues after the expira-
tion of the two (2) month limit or predated to
avoid suspension.
Douglas Bradley testified that monthly dues of
the Union at pertinent times herein were $16.50.
He further testified that on December 26, 1968,
Green's dues had been paid through October 1968.
He testified further that a $33 payment would have
paid Green's dues through December and that,
under the 2-month grace period permitted by
governing rules Green could not have been
suspended for nonpayment of dues until February
28, 1969.
By check dated March 18, 1969, Robert Green
tendered $49.50 toward the payment of dues. This
check was received by Bradley and by him marked
canceled.15 Bradley returned Green's March 18
check by mail on March 25.
Conclusions
Respondent's Contentions
It is the contention of the Respondent that, fol-
lowing an intraunion disciplinary proceeding which
resulted in the assessment of a fine against Robert
Green, Green failed to pay his union dues for the
period ending December 31, 1968, and was for this
reason automatically suspended from membership.
The Respondent asserts , in substance, that because
Green was no longer a member it had no authority
either to grant or withhold permission for Green to
work overtime.'6 Additionally, Respondent avows
that it did not suggest or request the termination of
Robert Green. Rather, contends Respondent, it
merely advised Mid-Hudson that, inasmuch as "the
Board" in a prior proceeding had held Green to be
a supervisor, the Union would expect Green to be
employed in that position. The subsequent action of
the Employer in terminating Green's employment
was, contends the Respondent, voluntary on the
part of Mid-Hudson.
By way of affirmative defense, the Respondent
further contends that the determination of the Re-
gional Director in Case 3-CB-1247 finding Green
to be a supervisor is res judicata and must stand as
against the contention of the General Counsel in
the instant case. In this regard, the Respondent
points to the fact, uncontested, that the determina-
tion of the Regional Director in Case 3-CB-1247
was not appealed.
Finally, the Respondent in its brief contends that
inasmuch as the General Counsel failed to produce
at the instant hearing affidavits taken by the
General Counsel on which the regional determina-
tion of the supervisory status of Green in Case
3-CB-1247 was based, there was a failure on the
part of the General Counsel in the instant case to
comply with the rule in Jencks v. U.S., 353 U.S.
657, and the prior determination of Green's super-
visory status must prevail.
The Affirmative Defenses Rejected
The Respondent's contention premised upon ap-
plication of the Jencks rule is without merit. The al-
leged failure of the General Counsel to comply with
Jencks was raised for the first time by Respondent
in brief of counsel. At the hearing Respondent
" The foregoing is based on the credited testimony of Robert Green and
documents in evidence I do not credit the testimony of Douglas Bradley to
the effect that he did not receive the December 26 check until early in
January Green testified that he mailed the December 26 check in an en-
velope addressed to Bradley and there are in evidence , extracted from the
records of the Respondent , a check bearing Robert Green's signature and
an envelope addressed to Bradley bearing a December 26 postmark I am
unable to accept the inference of Bradley 's testimony that this communica-
tion, dispatched from one point to another within a localized area of upper
New York State, would remain undelivered for a period in excess of 7 days
While Bradley testified his official duties required him,to close his books on
the last day of each month , I am convinced that his failure to enter, or
otherwise make official notation of, the receipt of the dues payment was his
realization that Green was in difficulties with the Union and his knowledge
that Brennan and Salch , union functionaries with whom he had "dealings,"
were officers primarily involved in the dispute with Green
" Bradley credibly testified that under procedures which he followed he
stamped "cancelled " all checks which were not to be negotiated but were
to be returned to the maker of the check
1e Nicholas Brennan, Respondent 's president and business manager, so
testified Neither in its answer nor brief did Respondent address itself
directly to this issue
LOCAL 38, SHEET METAL WORKERS' INTERNATIONAL ASSOC., AFL-CIO 117
made no contention of noncompliance on the part
of the General Counsel with Section 102.118(b) of
the Rules and Regulations of the National Relations
Board, and the record reveals no refusal on the part
of the General Counsel to make available to
Respondent affidavits of witnesses called to testify
on the supervisory issue. Rather, the record sug-
gests that three separate affidavits of Arthur
Wigand, who testified on this matter, were in the
possession of Respondent's counsel at pertinent
times during his interrogation of Wigand, and an
identical number of affidavits of Robert Green were
timely made available to Respondent's counsel,
who were accorded time to study them. The record
reveals no departure either from the literal mandate
of Section 102.118(b) nor the spirit and intend-
ment of Jencks.
Nor do I find merit in the Respondent's res ju-
dicata contention. The record reveals that the
charge in Case 3-CB-1247 was dismissed by the
Regional Director after investigation, without a
hearing, and pursuant solely to an administrative
determination that Robert Green was a supervisor.
In W. Ralston & Co., Inc., 131 NLRB 912, the
Board held the doctrine of res judicata is not ap-
plicable when a prior charge is dismissed before the
conduct of a hearing and without opportunity for
adjudication of the merits.17 Contrary to the
Respondent, as the determination of the Regional
Director arose under Section 10 of the Act, and not
under Section 9 thereof, Section 102.67(f) of the
Board's Rules and Regulations, Series 8, as
amended, is not applicable nor is precedent in-
terpreting that section of the Rules and Regulations
apposite."'
The relevant inquiry into the merits of the super-
visory issue is whether, on or about April 4 and at
all times thereafter until June 20, Robert Green was
a supervisor and not an employee within the mean-
ing of the Act. I find that he was throughout the
aforesaid period an employee and thus entitled to
the protections of the Act. The evidence adduced
at the hearing establishes that Robert Green
worked on a virtually exclusive basis with John
Versace and that his relationship to Versace was
that of a skilled craftsman to an equally or only
slightly less skilled craftsman. By virtue of com-
petence and experience Green was designated,
along with Horn and Case, in a complement of six
or seven sheetmetal craftsmen, to lead the work on
work projects requiring the performance of tasks
normally associated with the sheetmetal craft. In
carrying out, in a manner consistent with prior
directives and instructions of management, the
work in which he and Versace engaged, Green was
required to exercise the judgment possessed by a
journeyman in the application of his craft skills, but
he did not otherwise exercise discretion or indepen-
dence. The extra compensation which Green, Horn,
and Case received reflected managerial esteem for
their skills, which were coveted by Mid-Hudson in a
tight labor market. Green had no authority to affect
the employment status of Versace, or any other
sheetmetal worker in the employ of Mid-Hudson.
There is no evidence that Green possessed authori-
ty to effectively recommend personnel actions to
his Employer.
In the foregoing circumstances, I find that Robert
Green was at all relevant times an employee within
the meaning of the Act and, accordingly, I reject
the Respondent's contention that he was a super-
visor.19
The Merits
Section 8(b)(2) of the Act provides that it shall
be an unfair labor practice for a union "to cause or
attempt to cause an employer ... to discriminate
[within the meaning of Section 8(a)(3)] against an
employee with respect to whom membership in
such organization has been denied or terminated on
some ground other than his failure to tender the
periodic dues and the initiation fees uniformly
required as a condition of acquiring or retaining
membership."
As reflected in the statutory language, the
question to be determined is the reason underlying
the Respondent's demand for actions affecting the
employment status of Robert Green.20
It is of course permissible under the Act for a
labor organization to enforce the unlawful union-
security provision of a labor agreement by demand-
ing the termination of an employee who has failed
to timely tender dues uniformly required. It is un-
lawful, however, for a labor organization to cause
or attempt to cause an employer to discriminate
against an employee by reason of a violation by the
employee of an internal rule or policy relating to
the acquisition or retention of membership.21 I con-
IT See also Jersey City Welding & Machine Works, Inc , 92 NLRB 510
i" E g, Stanley Air Tools, Division of the Stanley Works, 171 NLRB 388,
Security Guard Service, Inc, 154 NLRB 8, The Ma.titell Company, 164
NLRB 713, enfd 414 F 2d 477 (C A 6)
"See Hostard Johnson Company, 174 NLRB 1217, and cases cited
therein, see also Local 25, Marine Division, International Union of Operat-
ing Engineers, AFL-CIO, 178 NLRB 292, fn I
20 See General Motors Corporation, Packard Electric Division, 134 NLRB
1107, 1 109 1 draw no adverse inferences with respect to motivation by vir-
tue of the disposition made of Green's appeal by the International Under
application of relevant law pertaining to fulfillment of service requirements
by deposit of documents in the U S mails, the requirements of the Respon-
dent's constitution relating to the service of the trial minutes , and the
findings of the trial committee appear to have been satisfied In my view of
the case, it is unnecessary to determine whether, being aware of the non-
delivery of the pertinent documents and having undertaken to hand-deliver
them, principals of equity would have required appeal time to have been
measured from the date of actual delivery
So far as the record reveals, the International had no basis for doubting
the accuracy of the Local 's assertion that delivery had been accomplished
on November 30, 1968 Thus, under that view, Green's appeal would have
been untimely While the inaccurate information pertaining to the delivery
supplied by the Local suggests an underlying hostility on the part of local
functionaries toward Green, it does not, in the circumstances of this
record, attach to the International Moreover, the record reveals that the
General Counsel does not challenge the procedural regularity of the fine
proceeding and it is clear that Green, by his own actions, contributed to the
inability of the Union to accomplish service by registered mail
Ti See A Nabakou ski Co, 148 NLRB 876, 881-882
118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
clude that the evidence preponderates in favor of a
finding that Respondent unlawfully withheld per-
mission for Robert Green to work overtime and
thereafter caused or attempted to cause his ter-
mination solely because he had failed and refused
to pay the internal union disciplinary fine which
had been assessed against him.
The evidence establishes that on January 7, when
Respondent advised Mid-Hudson that Robert
Green had been suspended from membership,
Green's membership dues had been paid through
December 31, 1968. By reason of this, Green was
not vulnerable to automatic suspension under
operation of Respondent's constitution for nonpay-
ment of dues, and would not become so until
February 28. Respondent's explanation for its
refusal to credit Green with dues tendered in
December-a tender which rendered him paid up
through December 31-arose, I find, from the
awareness of the financial secretary of the intra-
union disputation with Green and the unsatisfied
status of the fine; and the obedience of the financial
secretary to the mandates of the Respondent's con-
stitution that no tender of dues is acceptable so
long as a disciplinary fine remains unpaid. It was
this, and not Green's failure to tender dues that
brought Green's suspension from membership,
which was called to the attention of Mid-Hudson in
January.
I find no persuasive basis in the record for con-
cluding that the unsatisfied fine ceased being a
motivating consideration in the relationship
between the Respondent and Green. With respect
to the motivation of Respondent for its role leading
to the termination of Green as a journeyman sheet-
metal worker utilizing the tools of the trade on be-
half of Mid-Hudson, the evidence of record leaves
little doubt. Thus, on June 19, against a
background of prior warnings by Brennan and
Wigand concerning the potential risks of continuing
to employ Green, Salch made explicit what he and
Brennan had implicitly conveyed to Wigand earlier.
Salch pointedly called to the attention of Wigand
that Green had "lost his case," no longer had his
union card, could no longer work with the tools of
the trade, and could regain his union membership
only by paying a reinitiation fee and his outstanding
fine. Salch reminded Wigand that he had a union
agreement. The record thus establishes that matters
arising from the disciplinary proceeding involving
Green were moving considerations in the course of
action Salch was urging upon Wigand.
Additionally, the record evidence is clear that the
payment of the $750 fine outstanding against Green
was not advanced by Salch in the disjunctive but
was stated as an absolute condition of union
acquiesence in Green's continued or future employ-
ment as a craftsman using the tools of the trade. I
find that Salch's declaration implied recourse. If it
lacked the attributes of a demand it was, to be cer-
tain, an "efficacious request."22 The relationship of
cause and effect, the essential features of Section
8(b)(2), "can exist as well where an inducing com-
munication is in terms courteous or even precatory
as where it is rude and demanding. "23
It is well settled that the Act does not permit a
union to condition employment upon the payment
of a fine and that a valid union-security agreement
accords no such license.24 Moreover, the Board has
held that by conditioning the continued employ-
ment of employees upon their payment of fines,
labor organizations extract a penalty which the
statute forbids, and that the conduct constitutes an
attempt to cause an employer to discriminate
against employees in violation of Section 8(b)(2)
and (1) (A) of the Act.25
In view of the foregoing, I find that Respondent
violated Section 8(b)(2) and (1)(A) of the Act by
requiring Mid-Hudson to cease employing Robert
Green as a journeyman sheetmetal worker using the
tools of the trade. I find that Respondent acquires
no immunity from the proscriptions of the statute
merely by reason of the fact that by June, when the
Respondent efficaciously demanded Green's ter-
mination, Green's dues appear to have become
delinquent. Placing aside the concept of futility
arising from Respondent's rejection of prior dues
tenders (and Green's likely awareness of the con-
stitutional prohibition against acceptance of dues in
the face of unsatisfied fines) the Respondent, as
clearly disclosed by Salch 's statements of June 19,
was undertaking to discipline Green "not as an in-
traunion matter, but as a condition of [his] con-
tinued employment and using a condition other
than [his] failure `to tender the periodic dues and
initiation fees."'28 As found, this is proscribed by
the Act.27
A perhaps subtler question arises with respect to
the General Counsel's contention that Respondent
unlawfully deprived Green of overtime clearance in
April.
22 See San Jose Stereotypers' and Electrotypers' Union No. 120, Interna-
tional Stereotypers' and Electrotypers' Union of North America, AFL-CIO
(Dow Jones & Company, Inc ), 175 NLRB 1066, fn 3, and cases cited
therein
23NLRB v JarkaCorp,198F2d618,621(CA 3)
24 National Automotive Fibres, Inc, 121 NLRB 1358, enfd 277 F 2d 779
(C A 9), Local No 4, United Slate , Tile and Composition Roofers, Damp
and Waterproof Workers Association, AFL-CIO (Avon Sheet Metal Co ),
140 NLRB 384, 387
25 Association of Western Pulp & Paper Workers and Local 28, Association
of Western Pulp and Paper Workers (Fibreboard Paper Products Corp ), 170
NLRB 49 (TXD).
25 See Association of Western Pulp & Paper Workers and Local 28, Associa-
tion of Western Pulp and Paper Workers (Fibreboard Paper Products Corp.),
supra
27 1 am not persuaded by Respondent's claim that it sought to deprive
Green of opportunities to work with tools of the trade merely because he
was considered by the Union to be a supervisor and thus not entitled to per-
form unit work The record reveals no basis for distinguishing Green's
status during pertinent times from that of Robert Horn and Charles Case,
who like Green worked in a lead capacity . Their right to work with the
tools of the trade was not challenged nor was that of Versace when he suc-
ceeded to Green's place after Green was deposed.
LOCAL 38, SHEET METAL WORKERS ' INTERNATIONAL ASSOC., AFL-CIO
On February 28, Green fell 60 days in arrears in
the payment of dues and thus under operation of
the Respondent's constitution he was automatically
suspended. The tender of 3 months' dues-suffi-
cient to meet his dues obligation through March
31-was not accompanied by the necessary $25
reinstatement fee required under the Respondent's
constitution. Thus, abstractly, any refusal on
Respondent's part to decline issuance of an over-
time permit solely on the ground that it was outside-
Respondent's area of competence either to grant or
withhold permission, would, without more, have
been permissible under the Act.
However, the realities are that Respondent's con-
stitution precluded acceptance of dues while a fine
remained unpaid. It would have thus been futile for
Green to have tendered dues. The futility of doing
so was made more apparent to him through the
failure of the Respondent to credit him for his
December tenders. In submitting dues in March, it
may reasonably be concluded that Green recog-
nized he was merely engaging in a ritual to protect
his position. The foregoing considerations alone
suffice to foreclose as a viable defense Green's
failure to maintain a current position in the pay-
ment of dues.28 But in any event, the facts of record
are that Mid-Hudson employed only union mem-
bers and permit men referred by the Union and
union permission was an absolute prerequisite to
working overtime.29 It would be unrealistic, upon a
record revealing unlawful motive on the part of
Respondent toward Green existing prior to and
after the overtime permit declination, to find that
dues delinquency alone formulated the basis for the
Respondent's action. Clearly, in late March and
early April, times proximate to the refusal to clear
Green, Respondent's officers were seeking, through
indirection, but in context of discussion of man-
power needs, to have Mid-Hudson dispense with
Green's services. The short answer, in light of all
that had gone before, is that in denying Green
clearance to work overtime, Respondent was not
relying upon any newly found right but was acting
in continuity with the motive which marked its
January suspension notice to Mid-Hudson pertain-
ing to Green, and which carried forward in un-
broken fashion through to the successful deposing
of Green on June 20. Thus, I find that, in refusing
to grant the necessary clearance to permit Green to
work overtime, the Respondent has extracted a
penalty in the form of loss of earnings to Green in a
manner proscribed by the Act.30
29 See International Longshoremen 's and Warehousemen 's Union Local
17, International Longshoremen's and Warehousemen 's Union, and its Agent
Frank E Thompson, 172 NLRB No 227
zB The evidence is far from clear whether Respondent 's directive to the
clerical staff to withhold overtime clearance to Green preceded or followed
February 28 There is sound basis , however, for concluding that the over-
time slips issued on March 20 and 3 1, respectively , were issued through in-
advertance
119
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in sec-
tion III, above, occuring in connection with the
Company's operations described in section I,
above, have a close, intimate, and substantial rela-
tionship 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 Respondent has engaged In
certain unfair labor practices, I shall recommend
that it cease and desist therefrom and take certain
affirmative action designed to effectuate the poli-
cies of the Act.
Having found that Respondent has caused and at-
tempted to cause Mid-Hudson Sheet Metal Inc. to
deny employment to Robert John Green, Jr., in the
capacity of a journeyman sheetmetal• worker, and
having further found that Respondent denied the
request of Mid-Hudson to permit Green to work
overtime in said capacity, it is recommended that
Respondent notify Mid-Hudson and Robert John
Green, Jr., in writing, that (1) it has no objection to
the employment of Green by Mid-Hudson in a posi-
tion substantially equivalent to the one which
Green would have held with Mid-Hudson absent
Respondent's discrimination against him, without
prejudice to his seniority or other rights and
privileges; and (2) that it will not discriminatorily
deny Green permission, upon proper application, to
work overtime in the employ of Mid-Hudson.31 It
will further be recommended that Respondent
make Green whole for any loss of pay he may have
suffered by reason of its discrimination against him,
by payment to him of an amount equal to that
which he would have earned from June 20, 1969, in
the employ of Mid-Hudson as a journeyman sheet-
metal worker, until the date on which Respondent
notifies Mid-Hudson that it has no objection to
Green's employment by Mid-Hudson. In addition, it
is recommended that Respondent make Green
whole for any loss of compensation he may have
suffered by reason of its refusal to permit Green to
work overtime in the employ of Mid-Hudson in the
capacity of a journeyman sheetmetal worker. Loss
of compensation shall be computed upon a quar-
terly basis in the manner established in F. W. Wool-
worth Company, 90 NLRB 289, and shall be com-
30 See Association of Western Pulp & Paper Workers and Local 28, Associa-
tion of Western Pulp and Paper Workers (Fibreboard and Paper Products
Corp ),supra
31 As found, the record reveals that subsequent to the perpetration of
the unfair labor practices found herein , but prior to the hearing herein, the
firm name of the Company was changed to Mid-Hudson Highland Sheet
Metal, Inc , and this notification is to be directed to the new firm and rele-
vant elements of the remedy are to be applicable to that firm
120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
puted in the manner set forth in Isis Plumbing &
Heating Co., 138 NLRB 716. Net earnings during
the backpay period shall be excluded. Crossett
Lumber Company, 8 NLRB 440.
CONCLUSIONS OF LAW
1. Mid-Hudson Sheet Metal Inc. is an employer
engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
3. By causing or attempting to cause Mid-Hud-
son Sheet Metal Inc. to deny employment to Robert
John Green, Jr., and by denying Mid-Hudson per-
mission to employ Green in overtime work as a
journeyman sheetmetal worker, both because of his
failure to pay an intraunion disciplinary fine against
him, the Respondent has engaged and is engaging
in unfair labor practices within the meaning of Sec-
tion 8(b)(2) and (1)(A) of the Act.
4. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact
and conclusions of law and upon the entire record
in this case, I recommend that Local Union No. 38,
Sheet Metal Workers' International Association,
AFL-CIO, its officers, agents, and representatives,
shall:
1. Cease and desist from:
(a) Causing or attempting to cause Mid-Hudson
Sheet Metal Inc., presently doing business under
the firm name of Mid-Hudson Highland Sheet
Metal, Inc., to discriminate against Robert John
Green, Jr., in violation of Section 8(a)(3) of the
Act.
(b) In any like or related manner restraining or
coercing employees of Mid-Hudson in the exercise
of rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
32 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-
(a) Make Robert John Green, Jr., whole for any
loss of pay suffered by reason of the discrimination
against him in the manner set forth in the section
entitled "The Remedy."
(b) Notify Green and Mid-Hudson, in writing,
that Respondent has no objection to the employ-
ment of Green in the capacity of a journeyman
sheetmetal worker and that requests of Mid-Hud-
son, made upon proper application, to utilize Green
in said capacity in the performance of overtime
work will not, in the future, be withheld for unlaw-
ful reasons, both without regard to his membership
or nonmembership in the Respondent, except as
required by the valid union-security agreement in
effect between the Respondent at Mid-Hudson, and
without regard to his payment or nonpayment of
the fine outstanding against him.
(c) Post at its business office, meeting hall, or
other locations where notices to members are
customarily posted copies of the attached notice
marked "Appendix."32 [Board's notice substituted
for Trial Examiner's notice.] Copies of said notice,
on forms provided by the Regional Director for Re-
gion 3, after being duly signed by Respondent's of-
ficial representative, shall be posted by it im-
mediately upon receipt thereof, and be maintained
by Respondent 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 to
insure that said notices are not altered, defaced, or
covered by any other material.
(d) Furnish to the Regional Director for Region
3 signed copies of said notice for posting by Mid-
Hudson Highland Sheet Metal, Inc., if willing, in
places where notices to employees are customarily
posted. Copies of said notice to be furnished by the
Regional Director shall, after being duly signed by a
representative of Respondent, be forthwith
returned to the Regional Director for distribution
by him.
(e) Notify the Regional Director for Region 3, in
writing, within 20 days from the receipt of this
Decision, what steps have been taken to comply
herewith.33
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."
" 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 "