Rochester Roofing and Sheet Metal Co., Inc.

National Labor Relations Board - Board Decisions

Jun 16, 1967

165 N.L.R.B. 501 (N.L.R.B. 1967)

ROCHESTER ROOFING AND SHEET METAL CO., INC.
Rochester Roofing and Sheet Metal Co., Inc.,
and Carl F. Davis.
Local Union No. 22 , United Slate, Tile
and Composition Roofers, Damp and
Waterproof Workers Association , AFL-CIO
(Rochester Roofing and Sheet Metal Co.,
Inc.) and Carl F. Davis . Cases 3-CA-3035
and 3-CB-973.
June 16,1967
DECISION AND ORDER
BY MEMBERS BROWN, JENKINS, AND ZAGORIA
On February 28, 1967 , Trial Examiner George J.
Bott issued his Decision in the above -entitled
proceedings , finding that Respondents had engaged
in certain unfair labor practices within the meaning
of the National Labor Relations Act, as amended,
and recommending that they cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner 's Decision.
Thereafter , both Respondents , Rochester Roofing
and Sheet Metal Co., Inc., and Local Union No. 22,
United Slate , Tile and Composition Roofers, Damp
and Waterproof Workers Association , AFL-CIO,
filed exceptions to the Trial Examiner's Decision
together with supporting briefs.
Pursuant to the provisions of Section 3(b) of the
Act, the National Labor Relations Board has
delegated its powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings made by the
Trial Examiner 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 the case, and hereby adopts the
findings ,' conclusions , and recommendations of the
Trial Examiner , as modified below.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the Respondent, Rochester
Roofing and Sheet Metal Co., Inc., Rochester, New
York, its officers, agents, successors, and assigns,
and the Respondent, Local Union No. 22, United
Slate, Tile and Composition Roofers, Damp and
Waterproof Workers Association, AFL-CIO, its
officers, agents, and representatives, shall take the
action set forth in the Trial Examiner's
Recommended Order, as herein modified:
1. Paragraph B, 2(d), is deleted and the following
substituted:
"(d) Deliver to the Regional Director for Region 3,
signed copies of the said notice in sufficient number
165 NLRB No. 69
501
to be posted by Rochester Roofing and Sheet Metal
Co., Inc."
2. The last indented paragraph of Appendix B
attached to the Trial Examiner's Decision is deleted
and the following substituted:
WE WILL jointly and severally with the
Rochester Roofing and Sheet Metal Co., Inc.,
make whole Carl F. Davis for loss of pay
suffered as a result of the discrimination against
him. ,
' The Respondents have excepted to certain credibility findings
made by the Trial Examiner It is the Board's established policy
not to overrule a Trial Examiner's resolutions with respect to
credibility unless the clear preponderance of all the relevant
evidence convinces us that the resolutions were incorrect
Standard Dry Wall products, Inc , 91 NLRB 544, enfd 188 F 2d
362 (C A 3) We find no such basis for disturbing the Trial
Examiner 's credibility findings in this case
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
GEORGE J. BOTT, Trial Examiner: Upon charges of
unfair labor practices filed against Respondents, called
the Company and the Union, respectively, by Carl F. Davis
on August 23, 1966, the General Counsel of the National
Labor Relations Board issued a consolidated complaint
and notice of hearing dated September 30, 1966, alleging
violations of Sections 8(a)(1) and (3) and 8(b)(1)(A) and (2) of
the National Labor Relations Act, as amended, herein
called the Act.' Respondents filed answers denying the
essential allegations of the consolidated complaint, as
amended, and a hearing was held before Trial Examiner
George J. Bott, at Rochester, New York, on November 15,
1966. Subsequent to the hearing, General Counsel filed a
brief which I have carefully considered.'
Upon the entire record in the case and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT COMPANY
In accordance with the stipulation of the parties at the
hearing, I find and conclude as follows.
Respondent Employer is, and has been at all times
material herein, a corporation duly organized under the
laws of the State of New York.
At all times material herein, Respondent Employer has
maintained its principal office and places of business in
Rochester, New York, herein called the Rochester shop,
and in Syracuse, New York, and is, and has been at all
times material herein, continuously engaged at said places
of business and facilities in the business of providing and
performing roofing and sheet metal subcontracting
services and related services in the construction industry.
The Respondent Employer's Rochester shop located in
Rochester, New York, is the only facility involved in this
proceeding.
' The complaint was amended on November 3. 1966, to state
more detail with respect to the alleged violations, but the
amendment did not basically change the legal theory of the case
t On December 13, 1966, counsel for Respondent Company
advised me by letter that he would not file a brief
299-352 0-70-33
502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
During the past 12 months, Respondent Employer, in
the course and conduct of its business operations,
performed services valued in excess of $50,000 under a
subcontract with John B. Pike & Son, Inc., herein referred
to as Pike, which enterprise during the past 12 months,
purchased, transferred, and delivered aluminum sidings,
metal roofing, and other goods and materials valued in
excess of $50,000 to its Rochester, New York, location
directly from outside the State of New York.
During the past 12 months, Respondent Employer has
been a member of the Building Trades Employers
Association of Rochester, New York, Inc., herein called
the Association.
The Association is, and has been at all times material
herein, a corporation duly organized under the laws of the
State of New York.
The Association, at all times material herein, has been
duly designated and authorized, by its employer-members
engaged in sheet metal contracting in Rochester, New
York, and vicinity, including Respondent Employer, to
engage in collective bargaining and the negotiation of
contracts with respect to rates of pay, wages, hours, and
conditions of employment, on behalf of its aforesaid
employer-members, with the Respondent Union, which
represents employees of the said employer-members, and
the Association has engaged in and is engaging in
collective bargaining and the negotiation of contracts on
behalf of its said employer-members with the Respondent
Union.
During the past 12 months, the employer-members of
the Association in the course and conduct of their business
operations, purchased, transferred, and caused to be
delivered to their places of business in the State of New
York, consti uction and building material and other goods
and materials of total value in excess of $50,000, of which
goods and materials of total value in excess of $50,000
were transported to said places of business directly from
States other than the State of New York.
Respondent Employer, Pike, and the Association are
now, and have been at all times material herein, each
individually, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act. Respondent
Employer and the Association are now, and have been at
all times material herein, collectively an employer engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent Union is, and has been at all times material
herein, a labor organization within the meaning of Section
2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issue
The issue is whether Carl F. Davis, the Charging Party
herein, was terminated by the Respondent Company at the
' It was stipulated that Davis was expelled from membership in
Respondent Union as of midnight July 31, 1966
' David C oventry , the guard who had telephoned Bianchi,
corroborated Davis He said Bianchi cashed the check, and Davis
told him he wanted to pay his union dues Bianchi said he couldn't
take the money, and it was deposited to the prisoner 's account in
the jail Bianchi did accept $7 50, however, he said
instance of the Respondent Union because Davis was not a
member in good standing of Respondent Union, or failed to
maintain such membership, and/or because Davis did not
receive clearance or the approval of Respondent Union.
B. The Facts
From November 1961 to July 31, 1966, Davis was a
member in good standing in Respondent Union." From
sometime in September 1965 until March 1966. Davis was
employed as a roofing mechanic by Respondent Company.
It appears that at least up to March 1966, Davis was
employed by Respondent Company on referral of Joseph
Bianchi , business agent of Respondent Union.
In early March 1966, Davis was injured in an automobile
accident and was unable to work. Near the end of the
month, however, he telephoned Peter Laneve,
Respondent's field superintendent, and told him that he
was able to work. Laneve told him to report for duty on
Monday, April 4, 1966. On Sunday, April 3, 1966, Davis
was arrested in Rochester and confined in the Monroe
County jail where he remained until August 5, when the
charges against him were dismissed and he was released.
While Davis was in jail in July 1966, he asked David
Coventry, a guard, to telephone Union Business Agent
Bianchi and tell him to come to the jail and bring Davis'
vacation check. Bianchi visited Davis on July 10 and
brought a check for $87 made out to Davis covering his
vacation pay Davis endorsed the check and Bianchi
cashed it. Davis then paid Bianchi $7.50 which he owed
him for January dues which Bianchi had personally
advanced to him, and he also offered to pay all his dues
owing at the time from the rest of the fund. Davis testified
credibly that Bianchi refused his tender of back dues and
told him to pay him "when he got out," but he accepted
$7.50 for the money he had advanced him for January
dues.'
Davis was released from the county jail on August 5,
1966, and on August 9 he telephoned Bianchi , told him he
was ready to go back to work, and asked Bianchi how
much he owed in back dues. Bianchi told Davis he owed
$210. Davis questioned this figure, and Bianchi explained
that it resulted from a new union ruling . Davis replied that
in that case he had the sum involved and would pay it, but
Bianchi said that Davis would still have to be approved by
the Union' s executive board and that if he had been
convicted of a felony or had not graduated from high
school he would not be accepted back into the Union.'
Davis applied for reemployment with Respondent
Company on August 12, 1966, and he talked with Peter
Laneve, the field superintendent. The import of Davis' and
Laneve's testimony is identical . Davis said Laneve asked
him if he had gotten himself "straight with Joe [Bianchi]."
Davis said he would, and Laneve said that if lie did he
could report for work Monday morning.''
Davis had to leave the city and could not report for work
on Monday, but he did on Thursday, August 18. He
explained to Laneve's satisfaction where he had been, and
5 Bianchi admitted that Davis called hint and that lie told him
there was a new rule requiring him to apply to the executive board
for reinstatement He denied, however, that Davis said he would
pay $210 if that were necessary He also said that he told Davis
there was no work available when Davis asked for referral
fi l.aneve said Davis said "okay, I'm going right over" to
Bianchi's, after tie told him to get "straightened out" and come in
to work Monday
ROCHESTER ROOFING AND SHEET METAL CO., INC.
Laneve put him to work that day. He worked again on
Friday, August 19, but on Monday, August 22, although he
reported for work, he and others were sent home because
of rain, but he was told by Laneve to return the next day.
When Davis reported on Tuesday, August 23, ready for
work, he was met by Laneve who told him he couldn't use
him because Bianchi would not allow it. Laneve and Davis
then entered an office and had a further discussion.
Laneve asked Davis how long he had been employed in the
industry and repeated that Bianchi would not permit the
Company to hire him. He said his hands were tied,
however, and noted that there was a lot of work available.
He indicated that he could use Davis and suggested that
he contact the International Union. As Davis was leaving,
Laneve told him, "get yourself straight with Joe" and you
can come back to work.
Davis left the Company's premises and went to
Bianchi's home where he saw Bianchi and asked him if he
could return to work. He said Bianchi refused to allow it
even though he again indicated a willingness to pay $210 if
that was necessary. Davis then left Bianchi's home and,
accompanied by a friend who had driven with him to
Bianchi's home, he visited the Board's Regional Office in
Buffalo. New York. and filed the instant charges.7
Davis had another conversation with Bianchi on
November 10, 1966. He was standing on a street in a
nearby community when Bianchi drove past, stopped, and
called him over. After some preliminary remarks, Bianchi
asked Davis why he hadn't been in touch with him. Davis
replied that he had tried to reach Bianchi a number of
times without success and he said Bianchi commented,
"we could have worked something out." Davis reminded
Bianchi that he had said that if an applicant had a record
of a felony conviction he could not be admitted to the
Union and he admitted that he had such a record
Nevertheless, he said, Bianchi repeated that they "could
have worked something out."' Davis then asked Bianchi
why he had not accepted his offer to pay him $210, and
Bianchi replied that he was unable to unless the Union's
executive board voted favorably on Davis' application.
Davis never applied to the Union's executive board for
reinstatement to membership and he has not worked for
Respondent Company since Laneve told him in August
1966 that Bianchi would not permit the Company to
employ him. It also appears from his undenied testimony
that a union member "would call Joe to go to work," and
that he was "familiar with the procedures within the union
when you wanted to get a job."
Joseph Bianchi is financial secretary of the Union as
well as its business representative. He admitted that Davis
offered to pay his back dues when he visited him at the
county jail in July 1966, but he said he didn't have his
"official receipts" with him and could not under the
Union's rules use any other kind of receipt. As a
consequence, he refused to accept the tender and
instructed Davis to come to his office after he was released
and "tender" his dues. He admitted, however, that he did
accept $7.50 from Davis for January dues, which he had
paid for Davis, and gave him a receipt for it.
' Cotrell Reeves went to Bianchi 's home with Davis, but he
didn ' t go in with him He went to Buffalo with Davis on August 23
and gave a statement to a Board agent Wittmue Cunningham, an
employee of Respondent Company, heard Laneve instruct Davis
to get "in touch with Joe Bianchi" as they came out of Laneve's
office on August 23
503
Contrary to Davis' version, Bianchi said he never saw
Davis again, Davis never again tendered his dues, and
never offered to pay $210, in reinstatement fees. As
indicated earlier, he admitted that Davis telephoned him
in August and told him he wanted to become a member of
the Union but that he told Davis that he must apply to the
Union's executive board. He also pointed out that the
Union's bylaws require that dues be paid at union
meetings, but he conceded that he accepts dues at his
home and at jobsites.
Peter Laneve, the Company's field superintendent,
testified that Davis had worked for him in the past and had
again applied for work in August 1966. Davis told him that
he had been in jail, but had "beaten the rap" and was
looking for work. Bianchi said he told Davis. "All right ...
come to work," but he also asked Davis how he "was
situated with the Business Agent, with Joe," and told him
he had better "Get all straightened out and you can come
back to work Monday morning." Davis promised to see the
Union immediately, he said.
Davis did not report on Monday, but he did on Thursday,
August 18, and Laneve put him to work. Laneve said he
knew that Davis had been a union member in the past and
he assumed he continued to be one in August 1966. In
addition, he did not look at Davis as a "new employee" but
as "just a returning employee."
Davis worked on Thursday and Friday, but on the
following Monday there was no work because of the
weather. On August 22, the rainy Monday, Laneve said he
reviewed his work schedules and decided that he would
need more roofers, so he telephoned Bianchi for additional
men. He said Bianchi asked him who was then employed,
and he read off the names of the roofers to Bianchi. When
he came to Davis' name, Bianchi repeated the name and
asked him how long Davis had been employed. Laneve
told him that he had Davis since the previous Thursday
and that he had just gotten out of jail. He recalled Bianchi
saying only that the Company had had trouble with Davis
in the past and asking, "how come you've got him on."
That evening after Bianchi's call Laneve spoke with
Reilly, the manager of Respondent Company, and he said
he went over the list of roofers with him. According to
Laneve, Reilly questioned him about Davis, asked how
long he had been employed, and reminded him of earlier
"problems" he had had with Davis.
One of the "problems" with Davis was that he had
walked off the job in February 1966 after an argument with
Foreman Bollin , and, according to Laneve, in September
1965, Davis had drawn a knife in an argument with
Foreman Jones. Laneve got the story from Jones, and then
he talked with Davis. He reprimanded him and transferred
him to a different foreman."
Laneve did not flatly say that Reilly told him to fire
Davis during their conversation, but he distinctly left that
impression. In any case, he testified that when Davis
reported for work on August 23, 1966, he told him that he
had been instructed by his "superior" to let Davis go
because of the "problem" the Company had with him in
the past. He said this information displeased Davis, so he
" Neither Foreman Bollin nor Foreman Jones were called as
witnesses, and neither was Manager Reilly who was present in the
hearing room
504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
told him he ought to check with Bianchi. He explained this
advice as being the usual thing he tells employees when he
lays them off.
C. Additional Findings, Analysis, and Conclusions
I do not believe Laneve's testimony that he terminated
Davis on Reilly's instructions because the Company had
"problems" with Davis during his previous employment.
Laneve rehired Davis in August 1966 after his release from
jail with full knowledge of Davis' past record, and he
admitted that he asked Davis if he was "ready to settle
down and be a good worker." When Davis said he was,
Laneve hired him on condition that he "get straight" with
the Union. The hiring itself in these circumstances clearly
indicates that any past misdeeds were forgiven and
forgotten by the Company, but it was still important to it
that Davis be cleared by the Union. The emphasis in the
conversation was on Davis' standing with the Union and
not on his work record. I consider Laneve's explanation
that he had forgotten certain past incidents in which Davis
had been involved when he hired him, and that it was
Reilly or Bianchi, or both, who reminded him of them, as
very lame indeed. He admitted that he needed employees
and was "more worried about the man power situation
than any other problem."
It also appears that the so-called knife incident had
occurred about 11 months before Davis' discharge and
Laneve did not even discuss with Davis the February 1966
incident which caused Davis to quit work. As indicated
before, Laneve merely reprimanded Davis about the knife
incident, and it also appears from Davis' testimony that
Jones had an ice pick in his hand and Davis had a sharp
tool normally used in his work. The whole affair lasted just
a matter of seconds, and, in my opinion, it and the other
incident upon which Respondent relies are inflated
afterthoughts used to cover the real reason for Respondent
Company's action in refusing Davis additional
employment.
Other circumstances indicate that Respondent's
asserted reason is pretextual and that Davis' problem
with the Union is a more likely explanation for his
termination than anything else. In the first place, the
timing is significant. The Company had no complaints
about Davis' work on Thursday or Friday, August 18 and
19, yet when Laneve told Bianchi on August 22 that Davis
was working and Bianchi, according to Laneve, mentioned
Davis' past record and expressed some question about the
wisdom of employing him," Laneve immediately took the
matter up with Reilly, the manager, and Davis was quickly
let go. Moreover, Davis was then sent back to Bianchi with
instructions to "get straight with Joe...."
I am also of the opinion that Laneve concealed the full
extent of his conversation with Bianchi on August 22. His
memory of the scope of the conversation appeared weak.
In direct examination he cut the conversation off at the
point where Bianchi asked him how long Davis had been
employed. Under cross-examination he at first couldn't
recall anything else that Bianchi said, but when pressed he
finally recalled that he told Bianchi that Davis had just
been released from jail and that Bianchi noted that Laneve
had had trouble with him before and asked why he was
rehired. I also note that there is nothing in Bianchi's
testimony about any conversation with Laneve about
11 Laneve said Bianchi asked, "how come you've got him on."
Davis on August 22. I also recall that Laneve stumbled
badly in his testimony about his conversation with Reilly
during which he said Reilly ordered him to fire Davis. His
account is involuted and vague and it was not corroborated
by Reilly who was available. I am convinced that Laneve
was not completely candid, and, in the light of the
circumstances described, I find and conclude that he
discussed Davis' membership in the Union or lack of it
with Bianchi, that he learned that Davis was not in good
standing, and that he informed Davis, as Davis credibly
testified, that he couldn't use his services any more
because Bianchi would not permit it, but that he would
reemploy him if he got himself "straight with Joe."
I also find that Davis tendered his dues to Bianchi, that
Bianchi refused to refer him to Respondent Company for
work despite Davis' tender of dues, and that he
subsequently expressed displeasure to Laneve about
Respondent's reemployment of Davis because he was not
a member in good standing of the Union.
There is no question about the tender in July 1966.
Bianchi conceded it. I also find in accord with Davis'
credible testimony that he told Bianchi, when he
telephoned him after his release to ask for work, that he
would pay $210 for reinstatement in the Union. Bianchi
also admitted that he told Davis in that conversation that
he must apply to the Union's executive board for
reinstatement and he did not deny that $210 was the sum
required of Davis, and I find, in addition, despite Bianchi's
denial, that Davis went to his home as soon as he was
discharged by Laneve, asked for work and offered to pay
the sum necessary for reinstatement, but that Bianchi
refused the tender and refused to refer him to Respondent
Company for employment. I also find that Bianchi told
Davis in November 1966, that he could not accept Davis'
tender of $210 unless the Union's executive board
approved Davis' application for reinstatement.
There is, however, no direct testimonial evidence that
Bianchi told Laneve in their August 22 telephone
conversation not to hire Davis for reasons other than the
failure to tender his required dues, but, in my opinion,
circumstantial evidence justifies the inference, which I
draw, that Bianchi told Laneve to let Davis' go. First,
Bianchi was not candid and, like Laneve, impressed me by
his demeanor as concealing the real facts and motives
involved. His stated reason for not accepting Davis' dues
when he saw him at the county jail in July was
transparently false. He gave Davis a receipt for January
dues, and not only does the law not require that dues be
tendered only when some union official happens to have
his official receipt book handy, but Bianchi embroidered
the alleged requirement by suggesting that dues should be
paid at union meetings. This would be difficult for
incarcerated individuals like Davis or for persons who
might be incapacitated or out of the area. Moreover,
Bianchi conceded that he does collect dues at home and
on the job. In my opinion, the excuse and its exaggeration
reflects adversely on Bianchi's testimony and indicates
that it was a pretext.
Bianchi also told Davis in their August telephone
conversation that there was no work available although it
appears that Respondent Company was looking for roofers
as one would expect it to in midsummer. This is additional
evidence that Bianchi has not been candid.
It also appears from Laneve's as well as Davis'
testimony that Respondent Company has a close working
arrangement with the Union and called on it for its roofers.
Laneve, as a matter of fact, said he talks with Bianchi two
ROCHESTER ROOFING AND SHEET METAL CO., INC. 505
or three times a week. Laneve's account of his
conversation with Bianchi on August 22 I have found to be
less than complete, but even if Bianchi merely raised his
eyebrows at Davis' reemployment it would have been
sufficient signal to Laneve that Davis was out of grace with
Bianchi. Moreover, Laneve hurried to higher company
officials, and after he fired Davis he sent him back to
Bianchi. These circumstances, in my view, support a
finding that Bianchi was instrumental in causing Davis to
lose his job.I"
Even where all the requirements of a valid union-
security contract are met, the Act provides that the only
ground on which an employee can be legally discharged is
for nonpayment of dues and initiation fees." Since the
Respondent Union denied the allegations of discrimination
in the complaint and the Respondent Employer not only
denied them but offered evidence purporting to show that
Respondent Employer discharged Davis for reasons
unconnected with the Union, it is difficult to assay certain
evidence the Union developed through Davis under cross-
examination to determine under what theory the Union
would excuse his termination if the Union had anything to
do with it. I have examined the evidence, however, and I
find nothing in the record which would exculpate the
Union if it were involved in Davis' discharge, as I have
found it was. I have found that even if Bianchi did not have
his official dues book with him when Davis offered to pay
his back dues in July this would not legally have excused
Respondent Union's refusal to accept the payment. In
cross-examination of Davis it was suggested and
developed through him that he did not apply to the Union's
executive board for reinstatement to membership, but
here again there is nothing in the statute which requires
such a procedure as a condition of becoming or remaining
employed under a valid agreement.
Davis did not have to be a member of the Union at all to
secure employment, because under the maximum union
security allowed under Section 8(a)(3) and (f)(2) of the Act
the statutory grace period had not expired. But even if the
statutory grace period had expired under the theory that
Laneve expected Davis to report for work on Thursday,
August 15, and discharged him on August 23, even though
he worked but 2 days during that period, there is still no
defense because Davis was never advised by anyone in
August that membership in the Union was available to him
if he did only what the Act required, namely, tender dues
and initiations fees, and, in any case, as I have found,
Davis made valid tenders in July and August in the only
amount that was ever suggested as his maximum liability.
In conclusion, I find that by discharging Carl F. Davis at
the request of Union Business Representative Bianchi,
agent of Respondent Union, the Respondent Company
discriminated against him in violation of Section 8(a)(3)
and (1) of the Act, and that by causing such discrimination
by the Respondent Company, the Respondent Union
violated Section 8(b)(2) and (1)(A) of the Act.
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 the
Respondent Company and other employers set forth in
section I, above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several
States and tend to lead to labor disputes burdening and
obstructing commerce and the free flow thereof.
V. THE REMEDY
Having found that the Respondents engaged in unfair
labor practices, it will be recommended that they cease
and desist therefrom and take certain affirmative action in
order to effectuate the policies of the Act.
It will be recommended that the Respondent Company
offer Carl F. Davis immediate and full reinstatement to his
former or substantially equivalent position, without
prejudice to his seniority or other rights and privileges;
and that Respondent Union notify Respondent Company,
in writing, and furnish a copy to Davis, that it has
withdrawn its objections to the employment of Davis by
the Respondent Company and requests the Respondent
Company to reinstate him.
Since it has been found that the Respondent Union and
Respondent Company are both responsible for the
discrimination suffered by Davis, it will be recommended
that they jointly and severally make him whole for any loss
of pay he may have suffered by reason of the
discrimination against him, by payment to him of a sum of
money equal to that which he normally would have earned
as wages from August 23, 1966, to the date of the
Respondent Company's offer of reinstatement, less his net
earnings during said period and in a manner consistent
with Board policy set out in F. W. Woolworth Company, 90
NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB
716, provided, however, that the Respondent Union's
liability shall be tolled 5 days after it serves written notice
on Respondent Company of its withdrawal of objections to
Davis' employment and its request for his reinstatement.
It is also recommended that the Company make available
to the Board, upon request, payroll and other records to
facilitate computation of the amount of backpay due.
On the basis of the foregoing findings, and upon the
entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Rochester Roofing and Sheet Metal Co., Inc., is an
employer engaged in commerce within the meaning of the
Act.
2. Respondent Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By discriminating in regard to the hire and tenure of
employment of Carl F. Davis, thereby encouraging
membership in Respondent Union, Respondent Company
has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(3) and (1) of the Act.
4. By causing the Respondent Company to discriminate
against Davis in violation of Section 8(a)(3) of the Act, the
Union has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(b)(2) and (1)(A)
of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
10 I have carefully considered the bearing that Davis ' criminal
record may have on his credibility and I have come to the
conclusion that he was a credible witness
" Radio Officers' Union (A. H Bull Steamship Company) v
N L R.B , 347 U S. 17, 40-42; Union Starch & Refining Co. v
N.L.R.B., 186 F.2d 1008 (C A 7)
506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDED ORDER
Upon the basis of the above findings of fact and
conclusions of law, and upon the entire record in the case,
it is recommended that:
A. Rochester Roofing and Sheet Metal Co., Inc., its
officers, agents, successors, and assigns , shall:
1. Cease and desist from:
(a) Encouraging membership in Respondent Union by
discharging employees or in any other manner
discriminating in regard to the hire or tenure of
employment or any term or condition, except to the extent
permitted by the proviso to Section 8(a)(3) of the Act, as
modified by the Labor-Management Reporting and
Disclosure Act of 1959.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which will
effectuate the policies of the Act:
(a) Offer Carl F. Davis immediate and full
reinstatement to his former or substantially equivalent
position, without prejudice to his seniority or other rights
and privileges, and jointly and severally with Respondent
Union make him whole for any loss of earnings suffered as
a result of the discrimination against him in the manner
and to the extent set forth in the section of this Decision
entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to compute the amount of backpay and
the right of reinstatement.
(c) Post at its Rochester, New York, shop, copies of the
attached notice marked "Appendix A."= Copies of said
notice, to be furnished by the Regional Director for
Region 3, shall, after being duly signed by the Respondent
Company's representative, be posted by it immediately
upon receipt thereof, and be maintained by it for a period
of 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
the Respondent Company to insure that said notices are
not altered, defaced, or covered by any other material.
(d) Post at the same places and under the same
conditions as set forth in (c) above, and as soon as they are
forwarded by the Regional Director, copies of the
Respondent Union's attached notice marked "Appendix
B."
(e) Notify the Regional Director for Region 3, in writing,
within 20 days from the receipt of this Decision, what steps
it has taken to comply herewith.'"
B. Respondent Union, Local Union No. 22, United
Slate, Tile and Composition Roofers, Damp and
Waterproof Workers Association, AFL-CIO, their
officers, agents, and representatives, shall.
1. Cease and desist from:
(a) Causing or attempting to cause Rochester Roofing
and Sheet Metal Co., Inc.. to discriminate against Carl F.
Davis, or any other of its employees, in violation of Section
8(a)(3) of the Act.
(b) In any like or related manner restraining or coercing
employees of Rochester Roofing and Sheet Metal Co.,
Inc., in the exercise of the rights guaranteed in Section 7
of the Act, except to the extent that such rights may be
affected by an agreement requiring membership in a labor
organization as a condition of employment in accordance
with Section 8(a)(3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which will
effectuate the policies of the Act.
(a) Notify Rochester Roofing and Sheet Metal Co., Inc.,
in writing, that it has no objection to the reinstatement of
Carl F. Davis, and furnish the said employee with a copy of
such notification.
(b) Jointly and severally with Respondent Company
make Carl F.Davis whole 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 this Decision entitled
"The Remedy."
(c) Post at its offices at Rochester, New York, copies of
the attached notice marked "Appendix B."'a Copies of
said notice, to be furnished by the Regional Director for
Region 3, after being duly signed by a representative of the
Respondent, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to its members are
customarily posted. Reasonable steps shall be taken by
the Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Deliver to the Regional Director for Region 3, signed
copies of the said notice in sufficient number to be posted
by Rochester Roofing and Sheet Metal Co., Inc., the
Employer being willing.
(e) Notify said Regional Director, in writing, within 20
days from the date of this Decision, what steps the
Respondent has taken to comply herewith.' -1
12 In the event that this Recommended Order is adopted by the
Board, the words "a Decision and Order" shall be substituted for
the words "the Recommended Order of a Trial Examiner" in the
notice In the further event that the Board's Order is enforced by
a decree of a United States Court of Appeals, the words "a Decree
of the United States Court of Appeals Enforcing an Order" shall
be substituted for the words "a Decision and Order "
11 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
" See footnote 12, supra
See footnote 13, supra
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner 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. 22 , United Slate , Tile and Composition
Roofers, Damp and Waterproof Workers Association,
AFL-CIO, or any other labor organization, by
discharging employees or in any other manner
discriminating in regard to hire or tenure of
employment or any term or condition of employment,
except to the extent permitted by the proviso to
ROCHESTER ROOFING AND
Section 8(a)(3) of the Act, as modified by the Labor-
Management and Disclosure Act of 1959.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees in
the exercise of the rights guaranteed in Section 7 of
the Act.
WE WILL jointly and severally with Local Union
No. 22, United Slate, Tile and Composition Roofers,
Damp and Waterproof Workers Association,
AFL-CIO, make whole Carl F. Davis for loss of pay
suffered as a result of discrimination against him.
WE WILL reinstate Carl F. Davis to his former
position, without prejudice to his seniority or other
rights and privileges lie previously enjoyed.
ROCHESTER ROOFING AND
SHEET METAL CO., INC
(Employer)
Dated By
(Representative) (Title)
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 compliance with its provisions, they may communicate
directly with the Board's Regional Office, 4th Floor. The
120 Building, 120 Delaware Avenue, Buffalo, New York
14202, Telephone 842-3100.
APPENDIX B
NOTICE TO ALL MEMBERS OF LOCAL UNION No 22,
UNITED SLATE , TILE AND COMPOSITION ROOFERS,
DAMP AND WATERPROOF WORKERS ASSOCIATION,
AFL CIO
Pursuant to the Recommended Order of a Trial
Examiner 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:
SHEET METAL CO., INC 507
WE WILL NOT cause or attempt to cause Rochester
Roofing and Sheet Metal Co., Inc , to discriminate
against Carl F. Davis or any other of its employees in
violation of Section 8(a)(3) of the Act.
WE WILL NOT in any like or related manner restrain
or coerce employees of Rochester Roofing and Sheet
Metal Co., Inc., in the exercise of their rights
guaranteed in Section 7 of the Act, except to the
extent that such rights may be affected by an
agreement iequiring membership in a labor
organization as a condition of employment in
accordance with Section 8(a)(3) of the Act, as
modified by the Labor-Management Reporting and
Disclosuie Act of 1959.
WE WILL notify Rochester Roofing and Sheet Metal
Co., Inc., in writing, that we have no objection to the
reinstatement of Carl F. Davis, and we shall furnish
the said employee with a copy of such notification.
WE WILL make whole Carl F. Davis for any loss
of pay he may have suffered by reason of the
discrimination against him
LOCAL UNION No. 22,
UNITED SLATE, TILE AND
COMPOSITION ROOFERS,
DAMP AND WATERPROOF
WORKERS ASSOCIATION,
AFL-CIO
(Labor Organization)
Dated By
(Representative ) (Title)
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, 4th Floor, The
120 Building, 120 Delaware Avenue, Buffalo, New York
14202, Telephone 842-3100.