Rochester Roofing and Sheet Metal Co., Inc.

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.