Harlan E. Moore & Co.

TWIN CITY ROOFING Twin City Roofing, a Division of Harlan E. Moore & Co. and Ronald D. Hoover. Local Union No. 230 , Sheet Metal Workers International Association , AFL-CIO and Ronald D. Hoover. Cases 38-CA-200, 38-CB-11-2, and 38-CB-44. May 31,1967 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZAGORIA On January 23, 1967, Trial Examiner David London issued his Decision in the above-entitled proceeding, finding that Respondent Employer and Respondent Union had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent Employer and Respondent Union filed exceptions to the Trial Examiner's Decision and Respondent Union filed a brief in support of its exceptions. The General Counsel filed a brief in support of the Trial Examiner's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner 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. 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, Twin City Roofing, a Division of Harlan E. Moore & Co., Champaign, Illinois, its officers, agents, successors, and assigns, and Respondent Local Union No. 230, Sheet Metal Workers International Association, AFL-CIO, its officers, agents, and representatives, shall take the action set forth in the Trial Examiner's Recommended Order. ' The charge in Case 38-CA-200 was filed April 6 , 1966, in Cases 38-CB- 11-2 and 38-CB-44, they were filed April 28, 1965, and March 30, 1966, respectively 2 The unopposed motion of General Counsel , dated October 14, TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE 151 DAVID LONDON, Trial Examiner: This proceeding, with all parties duly represented, was heard before me, in Champaign, Illinois, on and between August 23, 1966, and September 1, 1966, on the consolidated complaint of the General Counsel, as amended, and separate answers of Twin City Roofing, a Division of Harlan E. Moore & Co., hereinafter referred to as Respondent Twin City, and Local Union No. 230, Sheet Metal Workers International Association, AFL-CIO, hereinafter referred to as Respondent Union.' The issues litigated were whether Respondent Twin City had violated Section 8(a)(3) and (1) of the National Labor Relations Act, as amended, hereinafter referred to as the Act, and whether Respondent Union had violated Section 8(b)(1)(A) and (2) thereof. Since the close of the hearing, the General Counsel and both Respondents filed briefs which have been duly considered. Upon the entire record,' and my observation of the witnesses that testified, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE EMPLOYERS Respondent Twin City is, and has been at all times material herein, an Illinois corporation with its principal office and place of business located at Champaign, Illinois, where it is a roofing and sheet metal contractor engaged in the installation of roofing and sheet metal products. During the year preceding the filing of the complaint herein, Respondent Twin City, in the course and conduct of its business operations within the State of Illinois, received goods and materials valued in excess of $50,000 directly from points located outside the State of Illinois The Robert Irsay Co., herein called Irsay, is, and has been at all times material herein, an Illinois corporation with its principal office and place of business located in Skokie, Illinois, where it is engaged as a ventilating contractor in the fabrication and installation of sheet metal duct work and related equipment. Since at least September 1, 1964, and continuing until about November 10, 1965, Irsay was engaged as a contractor on a construction project known as the Material Research Laboratory job in Urbana, Illinois. During the year preceding the filing of the consolidated complaint herein, Irsay, in the course and conduct of its business operations within the State of Illinois, received goods and materials valued in excess of $50,000 directly from points located outside the State of Illinois. Respondent Twin City and Irsay are, and at all times material herein have been, employers 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 1966, attached to his brief, seeking to make 34 specified corrections in the transcript of testimony herein, is hereby granted 165 NLRB No. 16 152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD herein , a labor organization within the meaning of Section 2(5) of the Act. III. THE STATUS OF THE CONSOLIDATED PROCEEDING (On April 28, 1965, Ronald D. Hoover, the Charging Party herein, filed a charge in Case 38-CB-11-2 alleging that Respondent Union, in violation of Section 8(b)(1)(A) and (2) of the Act , attempted to cause, and caused , Irsay to discharge him because he was not a member of Respondent Union. On November 8, 1965, Respondent Union and Hoover entered into a settlement agreement pertaining to that charge which settlement was approved by the Board's Officer-in-Charge of Subregion 38 on November 17, 1965. That agreement provided , inter alia, that Respondent Union would thereafter not cause, or attempt to cause, Irsay to discharge , refuse to hire, or otherwise discriminate against Hoover or any other employee or applicant for employment in violation of Section 8(a)(3) of the Act. On March 30, 1966, Hoover filed another charge against Respondent Union , Case 38-CB-44, alleging, inter alia, that Respondent Union on or about March 28, 1966, had again violated Section 8(b)(1)(A) and (2) of the Act by attempting to cause, and causing, another employer, Respondent Twin City, to refuse to hire Hoover because he was not a member of Respondent Union. Upon investigation thereof, the aforesaid Board's Officer-in- Charge, on June 2, 1966, revoked and set aside his approval of the settlement agreement in Case 38-CB-11-2. On April 6, 1966 , Hoover filed the charge in Case 38-CA-200 alleging that on or about March 28, 1966, Respondent Twin City had violated Section 8(a)(1) and (3) of the Act by refusing to hire him because he was not a member of Respondent Union. Pursuant to all the foregoing , the aforesaid Officer-in- Charge, on June 16, 1966 , consolidated the three proceedings mentioned above and , on the same day, in behalf of the Board's General Counsel , issued his consolidated complaint herein. In substance, that complaint , as amended at the hearing, alleges that (a) since on or about March 29, 1965, Respondent Union attempted to cause, and caused , Irsay to refuse to employ or rehire Hoover and thereafter again attempted to cause, and caused , Irsay to discharge him, all because he was not a member of Respondent Union , and/or for reasons other than his failure to tender the periodic dues and initiation fees that may uniformly be required as a condition of acquiring or retaining membership in Respondent Union, (b) since on or about March 18, 1966, Respondent Union, with the knowledge and acquiescence of Respondent Twin City, has administered an exclusive hiring arrangement or practice granting members of Respondent Union discriminatory preference over nonmembers of Respondent Union, and (c) pursuant to the above arrangement or practice , Respondent Twin City on or about March 29, 1966, refused to hire Hoover because he had not been cleared for employment by Respondent Union and because he was not a member of that organization . By their separate answers, both Respondents denied the commission of any unfair labor practice. With respect to the liability of the Respondent Union herein , it is now well established that independent or continuing violations of the Act by that Respondent constitute a breach of its prior settlement agreement justifying an order setting it aside, and permitting prosecution of the consolidated complaint charging unlawful conduct occurring both before and after execution of the settlement agreement . Wallace Corporation v. N.L.R.B., 323 U.S. 248, 253-255; Intl. Brotherhood of Teamsters, Local 554 (Clark Bros. Transfer Co.) v. N.L.R.B., 262 F.2d 456,459-461 (C.A.D.C.). Though findings of unfair labor practices pertaining to presettlement conduct can properly be made only where there is evidence of substantial unlawful conduct following the settlement , "or unless the alleged unfair labor practices have been continued in such a way that it seems necessary to the Board to go behind its agreement in order to effectuate the policies of the Act,"3 the Board has recently sanctioned "the use of presettlement conduct as background evidence establishing the motive or object of a Respondent in its postsettlement activities ." Northern California District Council of Hod Carriers (Joseph's Landscaping Service), 154 NLRB 1384, footnote 1; Bangor Plastics, Inc., 156 NLRB 1165. For that purpose, and in light of my ultimate conclusion that Respondent Union engaged in postsettlement violations of the Act, consideration will first be given to the presettlement conduct involving the Respondent Union's activities at the Irsay Company job. IV. THE UNFAIR LABOR PRACTICES A. The Events at Irsay In 1964, before Irsay began performance of its contract on the Material Research Laboratory job in Urbana, Illinois, Loren Trimby , Irsay's then superintendent, and James Salisbury , his assistant , met with Ralph Scott, business agent of Respondent Union. Trimby, who was a member of another Sheet Metal Workers local, showed Scott his union card and informed him that Irsay would need about 25 sheet metal workers. Scott assured the two men that they would have no "problem getting help." Thereafter, Irsay received from Respondent Union an unexecuted copy of an agreement , dated April 20, 1964, covering terms and conditions of employment of sheet metal workers in Urbana during the period May 1 , 1964, to April 30,1966. In addition to specifying wages and other terms and conditions of employment , the document also provided that Respondent Union would supply the employer with "duly qualified journeymen and apprentice sheet metal workers in sufficient numbers as may be necessary to properly execute work contracted for by the Employer." Though the record does not disclose that this contract was signed either by Irsay or Respondent Union , the testimony is undisputed that Irsay abided by its terms , and that a copy thereof was kept on the Material Research jobsite during the performance of Irsay's contract. Irsay began its work on that job in September 1964, at which time Trimby hired Virgil Colback as foreman. Before hiring him, however, Trimby, who was unaware of Colback's union status, "told him he had to clear with Mr. Scott." During the 2 months Trimby remained on the job as superintendent, only three employees had been hired by Irsay and all "came from the union hall." Trimby was succeeded as superintendent by Gerald L. Weaver who remained in that capacity for about 6 months during which time Scott supplied all the sheet metal workers that were hired . Salisbury , who succeeded Weaver as superintendent , admitted that when work on ' Wooster Brass Co , 80 NLRB 1633 TWIN CITY ROOFING the job began, several men "walked off the street" and asked him for the job. In accordance with a "verbal agreement with Scott," he referred these men to Respondent Union. On December 4, 1964, Ronald D. Hoover, the Charging Party herein, who was then employed on another job, was informed by a friend that the Union was in need of sheet metal workers and suggested that he contact Scott. Hoover called Scott, told him he was a sheet metal worker with experience and interested in "going to work out of the local ... on a permit." Scott informed him that his local did not "have any such thing as permit men," that Hoover would have to be either an applicant for membership in his local or a member thereof. He further informed Hoover that if he was "serious" about employment through the Union, to quit his present job and then call Scott again. Hoover called his then employer, terminated that employment, and again called Scott and advised him of what he had done. Scott thereupon told him to report to Weaver on the following Monday, December 7, 1964, that he would be earning $169 per week and that he would have to pay 10 percent thereof "towards [his] card," the cost of which was $422.50, and when the card was fully paid, he "would be admitted into the local." Hoover reported as directed by Scott, identified himself to Weaver, and informed him that he had been sent there by Scott. Weaver expressed satisfaction and introduced him to Foreman Colback, following which Hoover commenced his employment for Irsay. During the same morning, Scott appeared on the jobsite and, in the presence of Colback, informed Hoover that he would have to come to Scott's home on Monday evenings and pay on his card. Hoover complied with Scott's instructions and on every Monday following his first payday, until March 8, 1965, went to Scott's home, where he maintained the Union's office, paid him $17 on each occasion, and got a receipt for his payment. On each Tuesday morning during the period aforementioned, Skip Dunham, the union steward, asked Hoover to display Scott's receipt. On March 8, 1965, when Hoover appeared at Scott's home to make his payment, Scott told him he was going to do him a favor, that he would give him 9 months "to study for [his] examination" before he would have him "tested," a subject concerning which more will be said later. He also informed Hoover that he would no longer give him receipts for his payments. Though Hoover protested that this practice would not enable him to deduct the amount of these payments in computing his income tax, Scott nevertheless remained adamant. Hoover then asked whether he could make his payments by check, money order, or bank draft, so that he would have some proof of payment. Scott denied that request stating that "receipts got [them] into trouble before," and that the only payment he would except was cash and if Hoover did not "like it" he would have him "tested right now." Scott further told Hoover that evening that if he wanted "to continue to work out of this local, he had better pass that test," but if he did not pass the test, the money for which he had receipts would be refunded less $7 a month for dues, but the payments for which he had no receipts "would be forfeited to the local." Hoover nevertheless continued making his payments to Scott until his employment by Irsay was terminated, but got no receipts therefor. Scott appeared on the jobsite the following morning, March 9, and, in a manner described by Hoover as 153 "screaming and yelling," said to him: "God damn, Hoover, if you don't like the way I'm running things, I will send the letter out and have you tested right now." When Hoover asked why there was such a big change in his attitude, Scott told him he was "just too goddamn nosey and asked too many goddamn questions." Three weeks later, on March 29, 1965, Salisbury, the job coordinator, came to Hoover and told him that the work crew was being reduced and that he was being laid off. Hoover went to the basement to pick up his tools and met Colback, his foreman, who told him that he was sorry to lay him off, adding "but that is the way it goes." He further told Hoover that he had also laid off Dan Hardy and Bill Lunger, both of whom were members of Respondent Union. Hardy, he told Hoover, was laid off because he "wouldn't work," Lunger, because "he wouldn't show up half the time, [but] in order to get rid of those two fellows and keep everybody happy" he was required to terminate Hoover's employment. Hoover returned to the jobsite on the following morning and asked Salisbury whether the reason assigned by him was really the reason for his termination. Salisbury conceded it was not, and that, "just between" themselves, the reason he had to let Hoover go was that he "could not put up with Hardy and Lunger any longer, ... that [he] laid Hardy off before and kept [Hoover] on the job, and the Union got all up in the air about laying off a card man and keeping a permit man on the job; that he would like to keep [Hoover because] his work was good ... [and that he] laid him off [only] so he wouldn't lose his whole crew." Salisbury testified, without contradiction, that when Hardy was terminated for incompetence on an earlier occasion, during the week of February 21, 1965, Scott told him that he "had laid off a card-carrying mechanic and had permit men on the job, ... that if Mr. Hardy wanted his job back, ... [Salisbury] would have to do one of two things, either rehire him or lay off the permit men, .. . [otherwise] it would be a possibility all the men would walk off the job." Shortly thereafter Hardy was rehired. Following his layoff on March 29, 1965, Hoover went to Scott's home that evening and asked him whether there was other work available to him. Receiving a negative reply, Hoover asked whether he could hold off making his payment and again received a negative reply with the added warning that unless he made the payment, Scott "wouldn't even consider calling" him if work was available. Hoover, after cashing his paycheck, returned to Scott's home and made the payment. Between the following day, March 30, and April 9, Hoover called Scott 4 to 5 times and on each occasion was told there was no job for him. On April 6, he went to Scott's home and again was told there was no job for him. Hoover reminded him that Longer and Hardy were working on other jobs, a fact that was undenied, and accused Scott of purposely withholding a job referral to him. When Hoover informed Scott that if he would only call the Irsay job, Hoover could "go to work for them this minute," Scott replied: "Hoover, I got [sic] cardmen out of work and I'm going to put them to work before I do you." Hoover thereupon demanded a receipt for the money he had previously paid and of which he had no proof. Scott after addressing him as a "goddamn hardhead," gave him a receipt for $71 and added: "Get the hell out of here and don't come around here looking for a job again. If I have a job for you I will call you." When Hoover returned to his home that evening he found a letter 154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD from Respondent Union, signed by Scott, directing him to appear on April 8 and 15, 1965, for examination "for membership" in Respondent Union, the examination to be conducted by three members of Respondent Union. When Hoover called Scott on April 9 and received a negative reply to his inquiry about a job, he asked Scott if he, Hoover, found his own job with Irsay, which he was sure he could, whether Scott "would come out and have [him] run off the job." Scott replied that if Irsay wanted to rehire him, "that is up to Irsay." Hoover went immediately to the Irsay jobsite, met Weaver and Salisbury and informed them that Scott had just told him that if they wanted to rehire him, "it was up to them." Weaver replied that was "alright, fine," instructed him to get his tools and to begin work immediately. Salisbury, however, cautioned Weaver against such hasty action and instructed Hoover to have Scott call Irsay and "give [them] the okay." Hoover went to an adjoining laborers' shack, called Scott and told him that he had been hired by Irsay, "but they wanted him to call the trailer and give them the okay." Scott replied that he would "see." Hoover returned to the trailer and after waiting for about 45 minutes without a call from Scott, again called him and told him that he had "to get to work," that Scott was holding him up, and once more requested that he call Irsay. Scott replied: "Goddamn, Hoover, get off my back and leave me alone; I have more people to worry about than you; I told you I would get in touch with you," and hung up. Hoover returned to the trailer, gave Weaver his home telephone number, and told him he would await his call. After waiting at home for about 1-1/2 hours without the expected call from Weaver, Hoover telephoned him and asked if Scott had called. When Weaver replied that he had not received such a call , but that Scott had personally come to the job, Hoover asked when he would go to work. Weaver replied that all that he could say was that he "just" did not have any more work for him. Hoover asked whether Scott had threatened to "pull the men off the job or see that [Irsay] never would get anymore men if [they] hired" Hoover, Weaver replied: "Yes, something like that. '14 On April 12, 1965, Hoover accompanied by Buddy Miller, who had previously been employed by Irsay on the Material Research job, went to that )obsite seeking employment. Present also were two other men who identified themselves as "permit men." After Foreman Colback handed Miller a W-2 form, he asked him whether Scott had sent him there. When Miller answered in the negative, Colback told him he was sorry and took back the W-2 form. Miller asked Salisbury, who was present, whether he still needed men and was told that he needed them "badly." Miller next asked why he and Hoover could not be hired and Salisbury answered: "You know the reason just as well as I do. Ralph Scott would pull every man off the job if he hired" them.5 Miller and Hoover went into the building and met Foreman Colback. When Miller asked why he had withdrawn the W-2 form and denied employment to himself and Hoover, Colback replied that he "just couldn't" hire them and that if he would, the three of them would have been the only sheet metal workers on the job, the Scott would have arranged to place all the remaining 4 Weaver testified that when Scott came to the job on this occasion and he asked him "what about Hoover." Scott answered . " Between you and I [sic], Hoover can go to hell " 5 In a pretrial statement he gave to a Board agent and which, he workers "somewhere else, [even] if he would have to bleed them off, one at a time." As previously indicated, Hoover, on April 6 received Scott's notice requiring him to take his examination `for membership" in Respondent Union on April 8 and 15, 1965. Hoover was examined by Respondent Union's committee and, on April 23, was notified by Scott that he had failed that examination. On April 28 Hoover filed his charge in Case 38-CB-11-2, charging that Respondent Union attempted to cause, and caused, Irsay to refuse him employment because he was not a member of Respondent Union On November 17, 1965, that proceeding was the subject of the settlement agreement noted in section III, supra. B. The Events at Respondent Twin City On March 28, 1966, while Hoover was in search of employment, he went to the premises of Respondent Twin City, the Respondent in Case 38-CA-200 herein, and was referred to George Carleton, its manager. Hoover introduced himself as a sheet metal worker who had recently been so employed at the nearby Civil Engineering job and that he had heard that Carleton needed sheet metal workers. Carleton asked him if he "was working through the Union, or through Scott." Hoover answered affirmatively and showed Carleton the union receipt Scott had given him for $7, described therein as his "periodic dues" for the month of March 1966. Carleton thereupon told him that he had an apprentice leaving in the morning to go into the military service, and that he also needed two men for a job at Rantoul and that if Hoover "could clear through" Scott, he could report for work the following morning. Hoover went to Scott's home and as he approached the house, observed Mrs. Scott looking at him from a window and then suddenly turn to the rear part of the house. Hoover rang the doorbell and, after a wait of 3 to 4 minutes, Mrs. Scott opened the door. Before Hoover "had a chance to say anything," she told him that Scott was busy. When Hoover told her that he had obtained a job and "was there to get [Scott's] clearance to go to work," she answered that she was sorry, that Scott was busy, and "just closed the door [in] his face." During the same evening, Hoover called Scott's home on the telephone. When Mrs. Scott answered the call, Hoover asked to speak to Scott. She inquired of him who was calling and, when Hoover identified himself, she hung up. Hoover returned to the premises of Respondent Twin City early the following morning and told Carleton that he was unable to get in touch with Scott. Carleton said he would himself call Scott and did so. Carleton told Scott that he had sent Hoover to see him the previous evening and that Hoover had just reported that he "couldn't get hold" of Scott. The latter replied: "that is funny, I was home all evening." Carleton told Scott that Hoover was then in his office and asked Scott whether he would see Hoover if Carleton sent him there; Scott replied that he would. After Carleton closed his conversation with Scott he told Hoover that Scott had told him that Hoover had filed charges against Respondent Union. Hoover acknowledged that fact but informed Carleton that he had testified, truthfully reported the facts, Salisbury admitted that he told Miller he had "to clear through Scottie in order" to put him to work TWIN CITY ROOFING "dropped the charges ... and was under the impression that the hatchet was buried," a reference, undoubtedly, to the settlement described in section III, supra. Carleton then informed Hoover that Scott would be home until 9 a.m., that he would still have to see Scott "and clear through him" but, if he did not, Carleton could not hire him. Hoover went immediately to Scott's home and arrived there about 8:15 a.m. Mrs. Scott answered his ring of the doorbell, told him it was her house and property, and ordered him to leave the premises. Hoover informed her that it was also "a place of business"s and that he had reason to be there. Scott came to the door and said: "Goddamn, Hoover, get off my property before I punch you on the goddamn nose." Hoover remonstrated that he had been told by Carleton that Scott wanted him to come there whereupon Scott again cursed him and said he was "sick and tired" of him. Mrs. Scott then slammed the door. Hoover returned to the premises of Respondent Twin City and informed Carleton that Scott would not clear him for the job. Carleton expressed regret but again stated that, without clearance from Scott, he could not hire him but that he would try to work it out. After Hoover left, Carleton telephoned Scott and told him that he had been informed by Hoover that he could not get in touch with him. Scott replied that Hoover "threatened to kick the door in," that he had filed charges against the Union, and that he had taken and failed his examination . Carleton told Scott that he needed help and Scott said he would try to find somebody for him. Hoover was never hired by Respondent Twin City. The foregoing findings pertaining to the need for Hoover to secure clearance from Respondent Union in order to obtain and maintain employment at both Irsay and Respondent Twin City, and his failure to obtain that clearance as well as the reasons assigned therefore,-are based on the composite credited testimony of Hoover, Miller, Weaver, Salisbury, Carleton, and Fosnaugh, Respondent Twin City's bookkeeper, much of which remains undenied. All of the foregoing witnesses impressed me favorably as witnesses who were seeking to tell the truth. Though their testimony does not jibe in every detail, the material substance thereof constitutes the basis for the finding entered above. Scott, on the other hand, did not at all impress me as a truthful witness. Not only was he arrogant and evasive while testifying, but he also impressed me as an extemely vindictive union business agent determined to deny Hoover employment and willing to resort to any testimony which would result in a dismissal of this proceeding. CONCLUDING FINDINGS On the entire record I find that during all times relevant herein, Respondent Union and Respondent Twin City maintained and enforced an arrangement, understanding, or practice, whereby Respondent Twin City called upon and obtained its employees through Respondent Union and required clearance or approval by the Union as a 6 In its brief, Respondent Union concedes that Scott conducted the Union's business at his home ' While counsel for Respondent Union did not, before me, predicate Scott's refusal to clear Hoover for employment based upon his failure to pass the examination for membership in Respondent Union, it should be recalled that Scott advised Carleton on March 29, 1966, that Hoover had failed that 155 necessary condition of employment. Thus, with respect to Respondent Twin City, whenever Carleton is in need of a sheet metal worker, he calls Scott and asks him if he has anyone available; if he does, Scott sends him; if he does not, Carleton testified, he gets along "without, ... that is about the only thing [he] can do." When asked whether he had ever hired anyone who has not been referred by the business agent of Respondent Union, Carleton mentioned only two incidents. The first occurred "6, 7, or 8 years ago" when a couple of men came to him at a time when he was in need of sheet metal workers and he put them to work. The other incident occurred "the other day, ... Friday," presumably a short time before or during the instant hearing at which his employer was defending itself against a charge of unlawful hiring practices, when a journeyman sheet metal worker, who had worked for Respondent Twin City approximately 6 or 7 years ago and who "is a member of the Union," applied for and was put to work. Also to be considered in determining the full relationship between the parties is the fact that Respondent Union and Respondent Twin City have been parties to a collective-bargaining agreement since 1950; that under the contract covering the period with which we are concerned, Respondent Union obligated itself, upon request, to furnish Respondent Twin City duly qualified journeymen and apprentice sheet metal workers who would, however, be required to become members of Respondent Union pursuant to a valid union-security clause. In any event, I have no hesitation in finding that, at least with respect to Hoover, clearance by Scott was imposed by Carleton as a condition of employment by Respondent Twin City and failing to obtain that clearance, he was denied employment. No other conclusion can be drawn from Carleton's direction to Hoover on two occasions to see Scott for the sole purpose of obtaining clearance, and Carleton's refusal of employment only upon being informed that clearance could not be obtained. Turning now to the reason or motive that prompted Scott to deny clearance to Hoover, the facts heretofore found and other evidence spread through the lengthy record herein abundantly establish Scott's vindictive attitude and determination to punish Hoover. This determination, I am convinced, was engendered a year earlier when Hoover adamantly insisted on his right to a receipt for money paid by him for dues and a union card. It was intensified, as Scott told Carleton, by the charge Hoover filed in Case 38-CB-11-2, which case Respondent Union settled as earlier described. It was for both of these reasons that Scott denied clearance to Hoover on March 29, 1966, thereby violating Section 8(b)(1)(a) and (2) of the Act.7 Local Union No. 592, United Brotherhood of Carpenters (Brunswick Corp.), 135 NLRB 999; International Union of Operating Engineers, Local 624 A-B (D.S. McClanahan & Son), 141 NLRB 615; Hoisting and Portable Engineers, Local 302 (West Coast Steel Works), 144 NLRB 1449, 1452; International Association of Heat and Frost Insulators, Local No. 84 (Edward R. examination , presumably in the hope that it would influence Carleton in honoring Scott's refusal to clear Hoover. Assuming arguendo, that this was one of the reasons that motivated both Scott and Carleton, the Board has held, with court approval, that this does not constitute a valid defense A. Nabokowstk Co , 148 NLRB 876, enfd sub nom N.L R B v Sheet Metal Workers International Association, Local No 65, 359 F 2d 46 (C.A 6). 156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hart Co.), 146 NLRB 660; Local Union No. 742, United Brotherhood of Carpenters and Joiners of America (Y.L. Simmons Co.), 157 NLRB 451. By withholding employment and refusing to hire Hoover on March 29, 1966, because he had not secured clearance from Scott, which Carleton knew was occasioned, at least in part, by Hoover's charge filed against Respondent Union, Respondent Twin City violated Section 8(a)(1) and (3) of the Act. Lummus Company v. N.L.R.B., 339 F.2d 728 (C.A.D.C.). Having concluded that Respondent Union by its conduct with respect to the events at Respondent Twin City, violated the Act and breached its settlement in Case 38-CB-2, it now becomes incumbent upon me to make findings with respect to the allegations of the consolidated complaint pertaining to the role played by Respondent Union with respect to Hoover's loss of employment at Irsay. Accordingly, I find that during all times relevant, Respondent Union and Irsay maintained and enforced an arrangement , understanding , or practice , whereby Irsay called upon and obtained its employees through Respondent Union and requiring membership in, or clearance or approval by, Respondent Union as a necessary condition of employment. I further find that Respondent Union, on March 29, 1965, caused Irsay to discharge Hoover because he was not a member of Respondent Union, and on and after April 9, 1965, caused Irsay to deny him employment because he had not secured clearance or approval by that Union. By both actions, Respondent Union violated Section 8(b)(1)(A) and (2) of the Act. Local Union No. 742, United Brotherhood of Carpenters (J. L. Simmons Co.), 157 NLRB 451. Upon the foregoing findings of fact and the entire record in the case , I make the following: CONCLUSIONS OF LAW 1. Respondent Twin City and Irsay are employers engaged in commerce , and Respondent Union is a labor organization , all within the meaning of the Act. 2. By causing Respondent Twin City to deny employment to Hoover, Respondent Union violated Section 8(b)(1)(A) and (2) of the Act. 3. By refusing to hire Hoover because he had not been cleared or approved by Respondent Union, Respondent Twin City violated Section 8(a)(1) and (3) of the Act. 4. By causing Irsay to discharge Hoover, and thereafter causing Irsay to deny him employment, Respondent Union violated Section 8(b)(1)(A) and (2) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that both Respondents engaged in certain unfair labor practices , it is recommended that they be ordered to cease and desist therefrom , and that they take certain affirmative action which I deem necessary to remedy and remove the effects of the unfair labor practices and to effectuate the policies of the Act: Having found that Respondent Union caused Irsay to discharge Hoover and thereafter caused Irsay and Respondent Twin City not to hire him because Respondent Union had not cleared him for employment, I recommend that Respondent Union notify Irsay and Respondent Twin City, in writing, with a copy thereof to Hoover, stating that it withdraws its objections to his employment by each of said employers. It is also recommended that Respondent Union be ordered to make Hoover whole for any loss of pay suffered by reason of the discrimination against him by payment to him of a sum of money equal to the amount he normally would have earned as wages at Irsay from March 29, 1965, to March 28, 1966, or until his employment would sooner have been terminated for lawful reasons, whichever first occurs. It is further recommened that Respondent Union and Respondent Twin City be ordered, jointly and severally, to make Hoover whole for any loss of pay suffered by reason of their discrimination against him by payment to him of a sum of money equal to the amount he would normally have earned from March 29, 1966, until his employment at Respondent Twin City would have been terminated for lawful reasons. The loss of earnings is to be computed in accordance with the formula approved in F. W. Woolworth Company, 90 NLRB 289, with interest computed in the manner and amount prescribed in Isis Plumbing & Heating Co., 138 NLRB 716,717-721. Upon the foregoing findings and conclusions and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following: RECOMMENDED ORDER A. Local Union No. 230, Sheet Metal Workers International Association , AFL-CIO, its officers, agents, and representatives , shall: 1. Cease and desist from: (a) Causing, or attempting to cause, Irsay, Respondent Twin City, or any other employer over whom the Board would assert jurisdiction , to discharge, or deny employment to, Hoover or any other employee or applicant for employment, because he is not a member of Respondent Union, or has not been granted clearance or approval by said Union, or otherwise discriminate against him in violation of Section 8(a)(3) of the Act. (b) In any like or related manner, restraining or coercing employees or applicants for employment of Irsay, Respondent Twin City, or any other employer over whom the Board would assert jurisdiction, in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Make Hoover whole for any loss of earnings he may have suffered by reason of the discrimination against him at Irsay as set forth in the section of this Decision entitled "The Remedy." (b) Jointly and severally with Respondent Twin City make Hoover whole for any loss of earnings he may have suffered by reason of the discrimination against him at Respondent Twin City as set forth in the section of this Decision entitled "The Remedy." (c) Notify Irsay and Respondent Twin City, in writing, with copies to Hoover, that it has no objections to Hoover's employment. (d) Post at its office wherever maintained, and its meeting hall, copies of the attached notice marked TWIN CITY ROOFING 157 "Appendix A."e Copies of said notice, to be furnished by the Officer-in-charge for Subregion 38, after being duly signed by Respondent Union's authorized representative, shall be posted by Respondent Union immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent Union to insure that said notices are not altered, defaced, or covered by any other material. (e) Additional copies of Appendix A attached hereto shall be signed by an authorized representative of Respondent Union and shall be returned forthwith to the Officer-in-Charge of the Board's Subregion 38 for posting by Irsay and Respondent Twin City at their business offices and construction projects within the State of Illinois, where notices to employees are customarily posted. (f) Notify the Officer-in-Charge of the Board's Subregion 38, in writing, within 20 days from the date of receipt of this Decision, what steps it has taken to comply herewith .9 B. Twin City Roofing, a Division of Harlan E. Moore & Co., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Maintaining, enforcing, or otherwise giving effect to any understanding, arrangement, or practice requiring Hoover, or any other applicant for employment, to secure clearance or approval from Respondent Union, or any other labor organization , as a condition of employment. (b) In any like or related manner interfering with, restraining, or coercing employees or applicants for employment in the exercise of their rights guaranteed by Section 7 of the National Labor Relations Act, as amended. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Notify Hoover that it will no longer require clearance or approval of him by Respondent Union as a condition of employment. (b) Jointly and severally with Respondent Union make Hoover whole for any loss of earnings he may have suffered by reason of the discrimination against him as set forth in the section of this Decision entitled "The Remedy." (c) Post at its premises at Champaign, Illinois, copies of the attached notice marked "Appendix B."10 Copies of said notice, to be furnished by the Officer-in-Charge of the Board's Subregion 38, after being duly signed by its representative, shall be posted by Respondent Twin City immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent Twin City to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the aforesaid Officer-in-Charge of the Board's Subregion 38, in writing, within 20 days from the date of receipt of this Decision, what steps the Respondent Twin City has taken to comply herewith. I I " 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 " ' ° In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Officer-in-Charge , in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith ° Seefn 8,supra " Seefn 9,supra APPENDIX A NOTICE To ALL MEMBERS OF LOCAL UNION No. 230, SHEET METAL WORKERS INTERNATIONAL 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: WE WILL NOT cause, or attempt to cause, The Robert Irsay Company, Twin City Roofing, a Division of Harlan E. Moore & Co., or any other employer engaged in commerce, to discharge or deny employment to Ronald D. Hoover, or any other employee or applicant for employment, because he is not a member of our Union, or any other labor organization, or has not received clearance or approval from the undersigned Union. WE WILL NOT in any like or related manner restrain or coerce employees, or applicants for employment, of The Robert Irsay Company. Twin City Roofing, a Division of Harlan E. Moore & Co., or any other employer engaged in commerce, in the exercise of their rights guaranteed in Section 7 of the above described Act. WE WILL in part ourselves, and in part jointly and severally with Twin City Roofing, a Division of Harlan E. Moore & Co., make whole Ronald D. Hoover for any loss of earnings he may have suffered as a result of the discrimination against him. WE WILL notify The Robert Irsay Company and Twin City Roofing, a Division of Harlan E. Moore & Co., that we have no objection to the employment of Ronald D. Hoover. LOCAL UNION No. 230, SHEET METAL WORKERS INTERNATIONAL 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 Subregional Office, Fourth Floor Citizens Building, 225 Main Street, Peoria, Illinois 61602, Telephone 673-9061, Extension 287. 158 DECISIONS OF NATIONAL APPENDIX B 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 maintain , enforce, or otherwise give effect to any understanding, arrangement, or practice requiring Ronald D. Hoover, or any other applicant for employment, to secure clearance or approval from Local Union No. 230, Sheet Metal Workers International Association, AFL-CIO, or any other labor organization, as a condition of employment. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees, or applicants for employment, in the exercise of their rights guaranteed in Section 7 of the Act. WE WILL jointly and severally with Local Union No. 230, Sheet Metal Workers International Association, AFL-CIO, make Ronald D. Hoover whole for any loss LABOR RELATIONS BOARD of earnings he may have suffered by reason of the discrimination against him. WE WILL notify Ronald D . Hoover that we no longer require clearance or approval by Local Union No. 230, Sheet Metal Workers International Association, AFL-CIO, or any other labor organization, as a condition of employment. TWIN CITY ROOFING, A DIVISION OF HARLAN E. MOORE& CO. (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 Subregional Office, Fourth Floor Citizens Building, 225 Main Street, Peoria, Illinois 61602, Telephone 673-9061, Extension 287.