United Sheet Metal Co., Inc.

UNITED SHEET METAL CO. United Sheet Metal Co., Inc. and William W. Mackie, An Individual TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE United Sheet Metal Co., Inc. and Donald J. Lantz, Jr., An Individual Sheet Metal Workers' International Association, Local No. 98, AFL-CIO and William W. Mackie, An Individual Sheet Metal Workers' International Association, Local No. 98, AFL-CIO and Donald J.Lantz, Jr., An Individual. Cases 9-CA-4063, 9-CA-4149, 9-CB-1348, and 9-CB-1371 June 23,1967 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZAGORIA On April 17, 1967, Trial Examiner Arthur M. Goldberg issued his Decision in the above-entitled proceeding, finding that the Respondents had not engaged in the unfair labor practices alleged in the complaint and recommending dismissal of the com- plaint, as set forth in the attached Decision. Thereafter, the General Counsel filed exceptions and a supporting brief, and the Respondent Union filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner. I ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner, and hereby orders that the complaint herein be, and it hereby is; dismissed in its entirety. I The General Counsel excepts to certain credibility findings made by the Trial Examiner. Under the Board's established policy not to overrule a Trial Examiner's credibility findings unless a clear preponderance of all the relevant evidence convinces us that they were incorrect , we find no basis for distrubing the credibility findings made by the Trial Examiner in this case. Standard Dry Wall Products , Inc., 91 NLRB 844, enfd. 188 F.2d 362 (C A. 3). ARTHUR M. GOLDBERG, Trial Examiner: Upon charges filed on October 3, 1966, by William W. Mackie, an individual, the consolidated complaint herein issued on November 23, 1966, alleging that Sheet Metal Workers' International Association, Local No. 98, AFL-CIO (herein called the Union or Sheet Metal Workers), in violation of Section 8(b)(1)(A) and (2) of the National Labor Relations Act, as amended (herein called the Act), caused United Sheet Metal Co., Inc. (herein called the Employer or United), to discharge Mackie and Vore' in violation of Section 8(a)(3) and (1) of the Act. In addition, United was alleged to have violated Section 8(a)(1) of the Act by threatening employees on two occasions if they did not accept a proposed collective-bargaining agree- ment. United admitted the discharges but denied any violation of the Act. The Union denied all material allega- tions of the consolidated complaint. At the opening of the hearing General Counsel moved to consolidate with the consolidated complaint allegations raised by charges filed that day by Donald J. Lantz, Jr., an individual, asserting that United had discharged him together with Mackie and Vore for the same unlawful purpose.2 Respondents amended their answers to deny the additional allegations. All parties participated at the hearing conducted by Trial Examiner Arthur M. Goldberg at Columbus, Ohio, on January 10, 11, and 12, 1967, and were afforded full opportunity to be heard, to introduce evidence, to ex- amine and cross-examine witnesses, to present oral argu- ment, and to file briefs. Oral argument was waived and briefs were filed by all parties. Motions made by Re- spondent's at the close of General Counsel's case to dis- miss the consolidated complaint in whole or part, on which I reserved ruling until issuance of this Decision, are disposed of in accordance with my findings below. Upon the entire record in the case, on my reading of the briefs, and from my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT EMPLOYER The complaint alleged, the answers did not controvert, and I find that United Sheet Metal Co., Inc., is and has been at all times material herein an Ohio corporation, with a place of business at Westerville, Ohio, among other.places, where it is engaged in the manufacture of sheet metal products. Only the Westerville location is in- volved in this proceeding. During a representative 12- month period United had a gross volume of business in excess of $500,000. During the same representative period United purchased goods and materials valued in excess of $50,000, which were shipped directly to its Westerville place of business from points outside the State of Ohio. The spelling of Vore's name was corrected by amendment made at the hearing. s Upon General Counsel's representations that the facts to establish Lantz's case were the same in major respect as those pertaining to Mackie and Vore, the motion to amend was granted as falling within the scope of Section 102.17 of the Board's Rules and Regulations, Series 8, as amended. Cf. Russell-Newman Mfg. Co. v. N.L.R.B., 370 F.2d 980 (C. A. 5), rehearing denied at 987 166 NLRB No. 13 2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent Employer is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act and meets the Board's standards for asserting jurisdiction. 11. THE LABOR ORGANIZATION INVOLVED from these its products are sold to sheet metal contrac- tors. United and Metalbestos do not compete in the same product market.5 The collective-bargaining agreement between Metal- bestos and the Union is, as in the case of United's packing, shipping, and warehouse employees, a Produc- tion Contract. Sheet Metal Workers' International Association, Local 98, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background 1. United's operations United operates five plants, four in Ohio and one in California. Only the Westerville, Ohio, plant is involved in this proceeding. All of the 200 employees at the plant are covered by collective-bargaining agreements with the Sheet Metal Workers. The employees who are engaged in fabrication of United's products for use with high velocity air-conditioning equipment work under the terms of the contract negotiated between the Union and the Mechanical Contractors Association of Central Ohio, Inc. This agreement referred to as the Standard Form of Union Agreement, provides, inter alia, that only jour- neymen and apprentice sheet metal workers shall be em- ployed in this fabrication. Terms and conditions of employment for those em- ployees who work in United's packing, shipping, and warehouse departments are provided in a separate agree- ment negotiated directly by United and the Union. This collective-bargaining agreement is referred to as the Production Agreement.3 During the summer of 1966,' United had approximate- ly 160 employees engaged in fabrication work. Some 100 of these were employed on the first shift from 7 a.m. until 3:30 p.m. The balance of 60 fabrication employees worked the second shift from 4 p.m. until 12:30 a.m. In addition to the fabrication employees, United's out- side erection crews work under the Standard Form of Union Agreement. During 1966 between 20 and 30 of the day-shift fabrication employees were used as well on out- side erection work. As developed by General Counsel in examination of Union Business Agent Harrison, to work in the United shop employees must be very qualified in the sheet metal trade. 2. Metalbestos' operations The Wallace-Murray Corporation, Metalbestos Divi- sion of the William Wallace Division (herein called Metalbestos) employs approximately 100 members of the Union at its plant in Logan, Ohio. Metalbestos began operations in Logan about June 1959 and has maintained contractual relations with the Union since September of that year. Metalbestos manufactures venting equipment, primari- ly for use in residential heating. Its employees perform all of their work in the Metalbestos factory. The company maintains a warehouse system across the country and See section 111, A, 3, infra entitled "The Union's operations" Unless otherwise indicated all dates are in 1966. This description of the Metalbestos operation is based on the uncon- tradicted and credited testimony of Union Business Agent Harrison 3. The Union's operations The Union , a local of the Sheet Metal Workers' Inter- national Association , AFL-CIO (herein called the Inter- national), includes among its members journeymen sheet metal workers, apprentice sheet metal workers, and production workers. Production members are those employed in industrial establishments on work not traditionally within the build- ing trades jurisdiction. While production members may perform some of the tasks normally performed by jour- neymen and may possess some of a journeyman 's skills, they are workers who have not demonstrated their ability in the broad gamut of functions a journeyman must per- form. Journeymen may work at repetitious work such as the fabrication of high velocity pipe and fittings at United. However, at the average sheet metal shop a journeyman is handed a blueprint and must then lay out the work him- self and fabricate it there or go out and erect the assigned work at the construction site. On another occasion a jour- neyman may measure at the worksite a job to be done, return to the shop to lay out and fabricate the work, and then return to the jobsite and there install what he has fabricated. In addition to Metalbestos, the Union has production contracts with employers manufacturing store show- cases, kitchen equipment , and metal signs in quantity. Production members' monthly dues are $5.25, while jour- neymen pay $11.25. However , all members, journeyman or production, are eligible to run for union office and all cast the same ballot. Lincoln Baird , business manager and financial secreta- ry, is the Union's chief officer . Baird helps to service the Columbus area which includes Westerville and the United plant. Robert Harrison, business agent for the Metalbestos plant , has no connection with United. The International has appointed George Dowler as its representative in the area serviced by the Union. In the course of his duties Dowler investigates complaints and disputes which may arise within the International and its affiliates in the area he serves. Regular meetings of the Union are held in Columbus. Meetings of the Metalbestos employees are held in Logan as the need arises. However , the Union's members at Metalbestos do not constitute an officially recognized body within the Union 's organizational structure.6 4. The roads to journeyman status Two means are provided for achieving sheet metal journeyman status. A young man between the ages of 18 and 23 may enter the apprenticeship program from which he will emerge after 4 years as a journeyman. Otherwise, a person who believes he possesses the requisite skills to perform journeyman work may take an examination 6 This description of the Union's operation is based on a synthesis of the uncontradicted and credited testimony of Baird, Harrison, and Dowler UNITED SHEET METAL CO. 3 prepared and administered by the Union' s Examining Committee. Journeyman status is acquired by passing such a test and payment of the current initiation fee of $439 (100 times the present journeyman hourly rate of $4.39). As Baird credibly explained, a young man wishing to enter the apprenticeship program registers with the Joint Apprentice Committee and then must take an aptitude test given by the State of Ohio. The State in turn reports the results of this test to the Joint Apprentice Committee. After an interview by the Committee the man is assigned to a sheet metal shop where he works at the trade for 4 years and attends classes 2 nights each week. Upon suc- cessful completion of this program the apprentice gradu- ates as a journeyman.? Experienced sheet metal workers who believe them- selves capable of performing journeyman tasks may demonstrate their proficiency by applying for and passing a test administered by the Union's Examining Commit- tee. Such a person is known as an applicant. The appli- cant fills out a standard application at the Union's office, indicating, among other things, his five last places of em- ployment. Thereafter, the applicant is interviewed and, if he appears on the basis of his application and the inter- view to possess the necessary experience to qualify, is referred to a sheet metal shop where he works at the trade until a sufficient group of applicants is on hand to warrant administration of an examination. While so employed the applicant each day pays $3 which is applied to the initia- tion fee in the event he passes the examination. The ex- amination given covers all phases of sheet metal work in- cluding field erection, shop fabrication, and the use of dif- ferent types of equipment. During the examination the applicant is given a drawing which he must scale down, lay out the work to be performed, and make it up with paper supplied. This part of the test involves the use of a drawing board and ancillary equipment. Journeyman status cannot be achieved short of satisfy- ing the apprenticeship program or passing the examina- tion. General Counsel eschews any allegation that there is a violation of the Act in either the matter of the Union's maintaining the two types of membership, journeyman and production, or in the manner or method provided for the acquisition of journeyman status. B. The Metalbestos Strike 1. The strike begins on June 30 The Union's contract with Metalbestos expired at mid- night June 30. That evening a meeting of the Metalbestos employees was held in Logan. Present were Baird, Har- rison, and International Representative Dowler. The union officials recommended rejection of the Company's offer of 7 cents per hour for each of 3 years. However, they asked that the contract be extended for a 2-week period to permit further negotiations without loss of work. After the employees rejected this proposal, the union officials suggested that the collective agreement be extended for I day so that the employees who worked on July 1 would be eligible for holiday pay for the July 4th holiday, which fell that year on the following Monday, the next regularly scheduled day of work. The Union had no 9 During the hearing various witnesses referred to journeymen as those holding Building Trades cards. Additionally the practice appears to be to refer to journeymen as holders of "Class A" cards and to production members of the Union as "Class B" cardholders. While the use of the designations "Class A" and "Class B" is widespread in the industry, no strike fund and the International had refused to authorize strike benefits for a local strike. Baird, Harrison, and Dowler proposed that with the 2 days' pay a fund could be started to pay benefits to the striking Metalbestos em- ployees. This proposal, too, was rejected by the assem- bled employees. At the June 30 meeting a number of employees asked why the Union could not obtain building trades wages of $4.39 an hour at Metalbestos . Baird explained that Metal- bestos' products did not sell in what is considered the building trades industry and that its competitors did not pay building trades wages. However, Baird said he did not think it would be necessary to accept a new contract which provided less than a 15-cent-per-hour increase. The union officials told the Metalbestos employees they would attempt to secure work for the strikers with building trades employers in the area. The strike commenced that night and did not end until September 26.8 Thereafter the Union placed a telephone at the picket line which was used , in part, as a means of notifying the striking employees when and where work was available to them. 2. United hires Metalbestos strikers At the time of the Metalbestos strike Baird had requests from a number of employers , including United, that he refer sheet metal journeymen to them , if available. Shortly after commencement of the strike, Baird called James D. McGill, United's president, to ask if the Respondent Employer would employ some striking Metalbestos employees , explaining that they would receive journeyman wages. McGill left the decision to Plant Superintendent Richard Horton. Horton agreed to try some of the Metalbestos employees after Baird ex- plained there were certain phases of the work at Metal- bestos which were comparable to some operations at United. Thereupon Baird telephoned the picket line and directed that 12 strikers, the number Horton had agreed to take, be sent to United. Baird gave directions on how to get to the United plant and to whom the employees were to report. Although Baird did not specify which of the strikers were to be sent, he did direct that men with certain job skills be selected. As a result of Baird 's arrangement with Richard Hor- ton, United employed about 30 Metalbestos strikers. These employees came to United in several groups. No commitments were made to them as to length of employ- ment. Two Metalbestos employees, William Mackie and Leon Kieffer, came to United after first abandoning a job with another sheet metal contractor. Wayne Manufactur- ing Company in McConnelsville had asked the Union for two men to help erect a metal building. Mackie and Kieffer were sent. After 1 day they decided they would prefer to work at United and without notice to Wayne went the next day to the Respondent Employer where they were put to work. In addition to United, a number of other sheet metal employers hired Metalbestos strikers. During the course such identification appears on the Union's dues receipt, which is the only evidence of membership issued. 8 The account of the June 30 meeting is based on a synthesis of the credited testimony of Baird, Harrison, Dowler, and Orley Vote. 4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the strike about 60 of the approximately 90 strikers were, from time to time, employed at journeyman wages. 3. The strike goes on The picket line at Metalbestos went well for the Union until about August 1. Approximately two-thirds of the strikers had been placed on other jobs and it fell to the remaining 30 strikers to maintain the picket line. Addi- tionally, money to pay the pickets was not forthcoming from those for whom the Union had obtained employ- ment. A meeting of the Metalbestos people was called in Logan on August 7. While it appears that the main purpose of this meeting was to increase employee contributions to the strike fund, the state of negotiations with Metalbestos was discussed as well. The union officials first suggested that those employed contribute to the strike fund the difference between their normal wages at Metalbestos and what they were earning in sheet metal shops. After this was rejected it was then proposed that each employed striker contribute $3 per day. This idea also was voted down. Finally it was left to each to decide what he would give. However, as a result of this pressure a number of Metalbestos employees, including Mackie, who had not theretofore contributed to the strike fund, began to help. Thereafter, Mackie wrote to the general president of the International complaining about the lack of strike benefits. This letter was referred to International Representative Dowler for investigation.9 C. The Events of September 1 By the end of August the Union and the Metalbestos negotiating committee had received an offer from Metal- bestos which they wished to submit to the membership. Accordingly, a meeting of the Metalbestos employees was called for 7:30 p.m. on September 1 in Logan . It is al- leged that the Union, through Richard Horton, United's plant manager, brought pressure on the Metalbestos em- ployees working at United, by means of unlawful threats, to accept Metalbestos' wage offer. 1. Richard Horton's alleged threats As noted, United maintains a two-shift operation. Some of the Metalbestos employees had been placed on the day shift, others worked the second shift. Lantz testified that the day before the scheduled Sep- tember I meeting, Charles (Chuck) Horton, Richard's brother and night-shift foreman, said he would have to lay off Lantz. Chuck Horton explained, Lantz testified, that Lincoln Baird had called and said to lay off all the Metal- bestos men. Horton is alleged to have concluded by telling Lantz they might as well go ahead and accept the proposed contract as they had no jobs at United. Orley Vore recalled that Foreman Moore had told him on September 1 that Richard Horton had said to pass the word that Friday (September 2) would be the last day of work for the Metalbestos strikers. At the end of his shift that day, Vore took his tools with him, although he usually left them at work. Leon Kieffer testified that Moore had said Friday, Sep- tember 2, was their last day of work but if United worked overtime on Saturday, September 3, the Metalbestos men could come in that day as well. General Counsel's final witness on the point, Mackie, attributed to Richard Horton the statement that the Metalbestos men might as well vote for the Metalbestos contract as they would be laid off on Friday. However, Mackie recalled as well that Horton had said they could work on Saturday if United operated that day. Lantz and Mackie added that at the September 1 meet- ing a fellow employee, Stover, had accused the Union of causing the layoff at United and that Lantz had accused United of using the layoff to force the employees to ac- cept the Metalbestos offer. The Respondents deny that any threats were made. Baird testified that in a telephone conversation he had ad- vised Richard Horton of the scheduled meeting to con- sider the contract proposal. His concern, Horton stated, was losing all of the Metalbestos people at one time. Chuck Horton, night-shift foreman, testified that rather than laying off employees, he was told by them they would not be in because they had to pass on the contract proposal. I find that General Counsel has failed to prove the al- leged threat. While I am loathe to accept or reject testimony solely upon a witness' demeanor while testify- ing, with Lantz and Mackie I have no such reluctance. Both appeared most anxious to "nail" the Respondents. When, for example, Lantz was called as a rebuttal wit- ness, he recalled an occasion in late August when he had happened on a meeting of Metalbestos employees at United with a man in a white shirt who Lantz claimed he later learned was Baird. Lantz claimed to have attacked the Union and Harrison vigorously at that time , using ripe language in the process. Only later did he learn that the man in the white shirt was Baird. But Lantz admitted he had attended the union meetings on June 30 and August 7 and had known Baird then. At this point Lantz shifted the occasion when he claimed to have attacked the Union and Harrison to a point in time before the two union meetings. I conclude that Lantz' story of the confronta- tion with Baird was cut from the whole cloth but was con- sonant with his general demeanor. Mackie displayed an all consuming desire to earn journeyman wages though he did not evidence a willingness to meet the qualifying stan- dards. Whereas Vore expressed surprise that he was paid as a journeyman at United, Mackie's reaction was that he had been cheated when not paid as a journeyman by Metalbestos. Further Mackie's confused efforts to retain his job at United is evidenced by his purchase of 13 shares of stock in that company, which he believed would help guarantee his employment by United. I do not find Lantz or Mackie worthy of belief. We are left then with Vore's and Kieffer's testimony that Foreman Moore had advised them that Friday, Sep- tember 2, was their last day, other than possible overtime on Saturday. Rather than a threat and pressure to accept the Metalbestos proposal, I find this a natural reaction to notification from the Union that the striking employees, after 2 months of picketing, were to vote on a new wage proposal. It was eminently reasonable for United's management to expect that the contract would be ap- proved and that the Metalbestos strikers would thereafter leave United and return to their regular place of employ- " Unless otherwise indicated this narrative and that which follows is based on a synthesis of substantially uncontradicted testimony UNITED SHEET METAL CO. ment. Equally consistent with such an expectation was Vore's removal of his tools from United. 2. The meeting on September 1 At a meeting of the Metalbestos employees in Logan on September 1, a wage offer of 1 I cents, per hour for each of 3 years of a new contract was rejected by a 62 "no" to 28 "yes" vote of the employees. Employee Phil Carter, seconded by Leon Kieffer, at- tempted to block any vote at all that night, claiming the Union had not given adequate notice for the meeting. Carter, in particularly lurid language , questioned the Union's actions and warned that they had to be watched. Baird was not present in Logan that night as he was at- tending the graduation of a class of apprentices in Colum- bus. Business Agent Harrison and International Representative Dowler were the union officials present. Two employee members of the negotiating committee felt that the 11-cent offer was the best that could be had, while the third employee member favored rejecting the offer in the belief that more could be gotten from Metal- bestos. In the discussion , Vore recalled Baird's earlier statement that he felt the minimum for a new contract would be 15 cents an hour. As noted , Lantz testified that he and Stover accused the Union and United of laying off the Metalbestos strikers working at United to pressure them into accept- ing the proposed settlement. Mackie suggested a motion to throw the Union out and permit it to return to Metalbestos if the employees were reorganized as sheet metal journeymen with Class A cards. At this point Dowler attempted to report on his in- vestigation of Mackie's complaint to the International concerning the lack of strike benefits. Dowler got as far as noting that Mackie had earned over $700 when Orley Vore cut Dowler off and the discussion ended. After the meeting Dowler met Baird in Columbus, ad- vised him that the proposed strike settlement had been re- jected and told him of Mackie 's remarks. Baird counseled Dowler to forget the matter in view of the source. As Baird would be away the next day he asked Dowler to stop at United and tell Horton of the rejection of the set- tlement and the continued availability of the Metalbestos strikers for work at United. This Dowler did. The Metalbestos employees working at United returned and, with the exception of the four discharged on September 7, continued at United until the strike was set- tled. D. The Discharges On September 7 United discharged four of the Metal- bestos strikers it had employed. Vore and Mackie had been working the day shift, while Lantz and Fred Weis had been on the second shift. General Counsel alleges that the Union caused United to discharge Mackie, Vore, and Lantz1 ° because those employees opposed the Union's policies and endeavored to achieve journeyman status. The Union denies that it played any role in United's selection of the employees for discharge . United 10 Weis did not file a charge and neither Mackie nor Lantz saw fit to in- clude Weis in the charges they brought 11 Lantz testified that at the time Chuck Horton notified him of his layoff Horton said, "He heard we done some talking down at that Union meeting and he got his ass chewed out for it He was going to lay [Lantz] 5 asserts that it terminated the four Metalbestos men because applicants for journeyman status, prepared to take the qualifying examination, became available for em- ployment. I find no evidence in the record to support a finding or even an inference that the Union caused the discharges or that United was motivated in selecting out these particular employees by any consideration other than their demonstrated expendibility. Sometime prior to September 7 the Union had been en- gaged in an effort to organize the employees who con- structed the white metal stores which are the trademark of the White Castle Company. In the course of this or- ganizing campaign four employees , qualified sheet metal mechanics who cooperated with the Union , expressed the desire to achieve journeyman status and to work in a union shop. They subsequently completed their applica- tions for the qualifying examination and Baird notified Horton he was sending the four applicants to United. Richard Horton selected Mackie and Vore for layoff from the day shift based on his own observation of their working ability and on advice from Foreman Moore. Chuck Horton selected Lantz" and Weis after Richard Horton asked that he select from his shift those he thought were making the least contribution. Chuck Hor- ton limited his choices for layoff to Metalbestos men because, from the beginning , United had realized the strikers would leave when a contract had been agreed to with their employer. 12 As noted earlier the collective-bargaining agreement between the Union and United specifies that only jour- neymen and apprentices may perform fabrication work. Similiarly noted were the nondiscriminatory procedures provided for achieving journeyman status. General Coun- sel suggests no impropriety in either this requirement of the contract or in the apprenticeship or testing procedure for demonstrating journeyman ability. The alleged discriminatees are not journeyman sheet metal workers . At no time have the alleged discriminatees taken the necessary steps to secure such standing. It was eminently reasonable therefore for the Hortons to prefer as employees applicants for the qualifying examination, whose tenure of employment was not limited by their own inadequacies , to any of the Metalbestos strikers who, under the contract , could not be employed permanently. Moreover, there is nothing in the record to challenge the Hortons' evaluation of the relative abilities of the alleged discriminatees and their fellows. Finally, the record is equally devoid of any evidence linking the Union to the selecting out process. A word must be directed to General Counsel 's conten- tion that a finding of union animosity toward these three employees can be based on their opposition to union poli- cies and their efforts to secure "Class A" cards. The record reveals that opposition `to the Union's position was widespread at Metalbestos. Thus, two union suggestions to extend the contract prior to the strike were rejected and the proposed settlement submitted on September 1 was turned down by a better than 2-to-1 vote. As to in- dividuals expressing their views , Mackie, Lantz, and Vore were joined on September 1 with equal vigor by Carter and Stover. Indeed, Carter and Kieffer attempted entirely to prevent any vote that evening. off." As noted I did not find Lantz to be a credible witness. In the absence of corroboration I do not credit this testimony. 11 This evidence from Baird and the Hortons is uncontradicted on the record. - 308-926 0-70-2 6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Concerning the employees ' efforts to obtain "Class A" cards, it should be noted that here again the alleged dis- criminatees were in the ranks of many seeking the same goal. Indeed , Carter went on to take and fail the examina- tion. The facts establish that the Metalbestos employees, other than Carter, either never understood or were not willing to abide by the requirements for achieving jour- neyman status, although they were aware of the examina- tion procedure . Mackie was willing to pay money for a "Class A" card and offered to do so after being laid off by United. Not having applied to take the nondiscriminatory qualifying test , Mackie's offer to buy a card properly was refused by Business Agent Harrison . Lantz and Vore did not even try to buy their way into journeyman ranks. Vore, when asked if he would have been interested in a permanent job at United as a production worker replied, "If I could determine what a production employee is there. Did they-is it like you say, in production you manufacture something, is that a Journeyman?" Lantz displayed equal ignorance of his own status at Metal- bestos and the standards ajourneyman must meet. 13 However, the issue is not whether the employees un- derstood or attempted to follow the approved course to a journeyman level. Nor is the issue whether the Union im- properly denied journeyman standing to these employees. The question presented is whether the Union , to retaliate against them for their misdirected efforts to secure the benefits of a "Class A" card without qualifying therefore and their opposition to certain union policies , caused United to discharge Mackie, Vore, and Lantz. In all the circumstances , including the total absence of evidence linking the Union to the selecting out process , the uncon- 13 Lantz stated , as follows, his understanding of the difference between "Class A" and "Class B" workers and the reasons for his own standing as a production worker at Metalbestos " up at United I guess they are all supposed to be able to do everything and they consider them Class A Which as far as I can see, I have never been , but all it amounts to is two different pay scales " 14 On September 23 the employees, by a narrow margain , accepted Metalbestos ' offer of 12 cents per hour for the first year and I I cents per hour for each of the next 2 years, I cent over the proposed rejected on September I The strike ended on September 26 Except for a mere hand- ful, all Metalbestos employees , including all who worked at United during the strike , returned to their jobs with Metalbestos 11 General Counsel requests that I take official notice of an Inter- tradicted and convincing evidence that among the Metal- bestos employees working for United those discharged were the least satisfactory , and their failure to undertake the steps necessary to qualify themselves for employment as journeymen , I cannot find that because they, among others, spoke against certain union positions , Mackie, Lantz, and Vore were selected from all others to be sub- jected to discriminatory treatment 14 On the basis of the foregoing findings of fact and upon the entire record's in the case , I make the following: CONCLUSIONS OF LAW I United Sheet Metal Co., Inc., is engaged in and dur- ing all times material has been engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Sheet Metal Workers' International Association, Local No. 98 , AFL-CIO, is, and at all times material has been , a labor organization within the meaning of Section 2(5) of the Act 3 Respondent Employer has not engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. 4 Respondent Union has not engaged in unfair labor practices within the meaning of Section 8(b)(I)(A) and (2) of the Act. 5. The complaint should be dismissed in its entirety. RECOMMENDED ORDER It is recommended that the Board enter an Order dismissing the complaint in its entirety. mediate Report and Recommended Order issued on June 6, 1960, by Trial Examiner Bisgyer finding that United had violated Section 8(a)(1) and (3 ) of the Act No exceptions were filed to the Trial Examiner 's Deci- sion General Counsel's motion is granted However , that Decision covers matters in 1959, 7 years before the events herein , at a time when United 's plant superintendent and supervisory staff and the Union's busi- ness manager were other than the present incumbents and United is now represented by other counsel Most important, in that case there was evidence of violation , in this there is none Accordingly , for all of the reasons stated , I have afforded no weight to that case in reaching my deci- sion herein N L R B v Park Edge Sheridan Meats, In( , 341 F 2d 725 (C A 2)