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

110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local Union No. 38, Sheet Metal Workers' Interna- APPENDIX tional Association, AFL-CIO (Mid-Hudson Sheet Metal Inc.) and Robert John Green, Jr. Case 3-CB-1295 June 9, 1970 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On February 9, 1970, Trial Examiner James T. Barker issued his Decision in the above-entitled matter, finding that Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Decision.' Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner and hereby orders that the Respondent, Local Union No. 38, Sheet Metal Workers' International Association, AFL-CIO, Hopewell Junction, New York, its of- ficers, agents, and representatives, shall take the action set forth in the Trial Examiner's Recom- mended Order, except that the attached notice to members shall be posted instead of the Trial Ex- aminer's notice. ' Respondent excepted only to the Trial Examiner 's rejection of its argu- ment that the Regional Director's dismissal of a prior charge filed by the same individual is res judicata as to the issues in the instant proceeding Like the Trial Examiner, and for the reasons set forth by him, we find that the Regional Director's administrative action , based on his view that Robert John Green, Jr , was a supervisor , is not dispositive NOTICE TO MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT cause or attempt to cause Mid- Hudson Highland Sheet Metal Inc. to condition further employment of Robert John Green, Jr., upon payment of fines, or require said em- ployee to pay fines as a condition of continued employment. WE WILL NOT in any like or related manner restrain or coerce employees of Mid-Hudson Highland Sheet Metal Inc. in the exercise of their rights guaranteed in Section 7 of the Act. WE WILL notify Robert John Green, Jr., and Mid-Hudson Highland Sheet Metal Inc. that we have no objection to his employment with Mid- Hudson Highland Sheet Metal Inc. as a jour- neyman sheet metal worker utilizing the tools of the trade; and that WE WILL NOT unlawfully refuse Mid-Hudson Highland Sheet Metal Inc. permission to utilize Robert John Green, Jr., in said work capacity on an overtime basis. WE WILL make Robert John Green, Jr., whole for any loss of straight time or overtime earnings suffered as a result of the discrimina- tion we have practiced against him. LOCAL UNION No. 38, SHEET METAL WORKERS' INTERNATIONAL ASSOCIATION , AFL-CIO (Labor Organization) Dated By (Representative ) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or com- pliance with its provisions may be directed to the Board's Office, Fourth Floor, The 120 Building, 120 Delaware Avenue, Buffalo, New York 14202, Telephone 716-842-3100. 183 NLRB No. 13 LOCAL 38, SHEET METAL WORKERS ' INTERNATIONAL ASSOC, AFL-CIO TRIAL EXAMINER 'S DECISION III . THE UNFAIR LABOR PRACTICES STATEMENT OF THE CASE JAMES T. BARKER , Trial Examiner: This matter was heard at Poughkeepsie, New York, on November 5, 1969, pursuant to a charge filed on June 24, 1969, by Robert John Green, Jr. On Sep- tember 3, 1969,' the Regional Director of the Na- tional Labor Relations Board for Region 3 issued a complaint and notice of hearing alleging that Local Union No. 38, Sheet Metal Workers' International Association, AFL-CIO, hereinafter referred to either as the Union or the Respondent, had en- gaged in unfair labor practices in violation of Sec- tion 8(b)(2) and (1)(A) of the Act. The parties timely filed briefs with me. Upon consideration of the briefs of the parties and upon the record of this case,2 and my observa- tion of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER At all times material herein Mid-Hudson Sheet Metal Inc. has maintained its principal office and place of business at Hopewell Junction, New York. During said period of time it has maintained various other places of business, warehouses, and other facilities and, at relevant times, has been continu- ously engaged at said places of business and facili- ties in providing and performing the fabrication and installation of sheetmetal and duct work and re- lated services. During the calendar year immediately preceding the issuance of the complaint herein, Mid-Hudson performed services valued in excess of $300,000, of which services valued in excess of $50,000 were furnished to, among others, International Business Machines, Inc., and Frank A. McBride Mechanical Construction, Inc., each of which, individually and collectively, ships goods valued in excess of $50,000 directly out of the State where it is located. Upon these admitted facts, and the concession of the Respondent made orally on the record at the hearing, I find that Mid-Hudson has been at all times material herein an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGAINZATION INVOLVED Local Union No. 38, Sheet Metal Workers' Inter- national Association, AFL-CIO, is admitted to be a labor organization within the meaning of Section 2(5) of the Act, and I so find. ' All references herein are to the calendar year 1969 unless specifically indicated otherwise R Errors in the transcript have been noted and corrected 3 The firm name was subsequently changed and presently is Mid-Hudson A. The Issues ill The principal issue in this proceeding is whether the Respondent caused or attempted to cause the Company to discriminate against Robert Green in the assignment of overtime and ultimately to discharge Green because Green's membership in the Union had been terminated for his failure to pay an intraunion disciplinary fine. By way of affirmative defense the Respondent as- serts that at times pertinent Green was a supervisor within the meaning of the Act and that his union membeship had been terminated soley by virtue of his failure timely to tender union dues uniformly required. B. Pertinent Facts 1. Background facts a. The collective-bargaining agreement The Company commenced business on June 1, 1968, under the style and firm name of Mid-Hud- son Sheet Metal Inc.3 At all times on and after June 1, 1968, Mid-Hudson has given effect to and abided by Respondent's standard form of union agreement. In August 1969, Arthur Wigand became a signatory to the agreement.' The agreement contained a stan- dard 8-day union-security clause and a provision requiring the Company to notify the Union of any work covered by the agreement which was to be performed outside of regular working hours during the regular workweek or on holidays . The evidence reveals that at all pertinent times the Respondent and Company gave effect to this latter provision by maintaining an arrangement or practice whereby permission had to be obtained from the Respondent before a sheetmetal worker could work overtime for the Company. b. Union rules governing fines At all times relevant herein the Respondent's constitution contained a provision relating to the levy of fines which provided as follows: SEC. 3. All fines levied in accordance with the provisions of this Constitution shall be paid within the time limits specified and no dues shall be accepted from any member who refuses, fails, or neglects to pay such fines, ex- cept that if the fine exceeds the sum of Fifty Dollars ($50.00) no more than Fifty Dollars ($50.00) shall be required to be paid as a con- dition of any proper appeal from the decision under which such fine was imposed. Highland Sheet Metal Inc The original and successor firm shall hereinafter be referred to as Mid-Hudson 4 The failure of Mid-Hudson to formally execute the agreement appears to have been due to an oversight on the part of a former partner of Wigand, and Wigand had not been aware of the oversight 112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All fines initially shall be paid to the local union in which such member holds member- ship and if the fine was levied by another local union, notice of such payment shall be sent to such local union by certified mail. If, upon final disposition of the case, the fine is upheld it shall be paid to the financial secretary of the local union which imposed the fine. c. Green's union membership and employment history Prior to events pertinent herein, Robert Green had been a member of the Union for approximately 18 years. Commencing in 1958 and continuing until October 1968, Green worked in the employ of Mc- Creary Metals, Inc., headquartered in Albany, New York. During the course of his employment with McCreary, Green worked principally in the terri- torial jurisdiction of the Union. During the last 4 or 5 years of Green's employment with McCreary, Green worked as a journeyman sheetmetal worker in partnership with John Versace. Versace left the employ of McCreary approximately 6 weeks before Green severed his employment with McCreary. On November 21, 1968, Robert Green entered the employ of Mid-Hudson. He worked briefly in the shop fabricating duct and was then assigned to the H. O. Penn job of Mid-Hudson.5 On the H. O. Penn job, Green was assigned to work with John Versace as a sheetmetal worker. Their tasks in- cluded the measuring, installing, and erecting of duct work. d. Green's job duties with Mid-Hudson Arthur Wigand credibly testified that when Robert Green entered his employ in November 1968, he did so as a journeyman sheetmetal worker. Until early March 1969 Green was com- pensated at the same wage rate as other sheetmetal workers in the employ of Mid-Hudson. In March 1969, at which time Mid-Hudson had in its employ approximately six or seven sheetmetal workers, three sheetmetal workers, including Robert Green, were granted an increase in wages. Wigand credibly testified that the increase was granted as compensa- tion for their competence and skill in the face of a short labor market and to reflect the additional responsibilities which they carried as "leadmen." In this latter respect, Wigand further credibly testified that it is common practice in the sheet- metal industry for journeymen to work in pairs and that during the period of his employment with Mid- Hudson Robert Green worked as a partner with John Versace. Wigand further credibly testified that to conduce to the efficient performance of ' There is a discrepancy between the testimony of Robert Green and that of Arthur Wigand, president of Mid-Hudson, relating to the date of Green's initial employment Green testified that he commenced work in the shop on November 21 while Wigand testified that Green's employment com- menced on November 22 Green's testimony concerning the means by which he determined the commencement date of his employment at Mid- work one of the pair of journeymen assigned to any given job receives advance instructions with respect to the specific job and has the responsibility to measure and take the lead in the actual per- formance of those work tasks normally associated with the journeymen sheetmetal skills. Additionally, under Mid-Hudson's procedures the same member of the working partnership is designated as the con- duit for customer complaints. Incident to this responsibility, this individual has no authority to make adjustments on behalf of the employer but is permitted merely to pass the information to higher authority. Authur Wigand further credibly testified that during the entire period of his employment, from November 1968 through June 20, 1969, the duties of Robert Green were those normally associated with the sheetmetal industry. Specifically, Wigand testified that Green's duties included the shop preparation or makeup of duct or metal pieces required for a specific job and the onsite disman- tling or erecting of duct work. Wigand further credibly testified that at no time during the term of his employment did Green have the authority to hire or discharge employees or to make any type of effective recommendation con- cerning them. The evidence of record reveals that on April 10, 1969, Robert Green filed an unfair labor practice charge in Case 3-CB-1247. The record further establishes that on April29, 1969, the Regional Director of the National Labor Relations Board for Region 3 dismissed the charge, advising Green that the investigation of the charge had disclosed that at the time of the alleged discriminatory action he was a supervisor within the meaning of the Act and was thus not entitled to the protection of the Act. e. The 1966 union charge On August 8, 1966, a charge was filed against Robert Green by Edward J. Salch, Jr., business representative and recording secretary of the Union. Salch charged Green with working overtime without first securing a union overtime permit and while behind in his dues. It was charged that, in the prevailing circumstances, Green was ineligible under union rules to work in the trade. On September 9, 1966, the executive board of the Union, sitting as a trial committee, heard the charges against Green. Both Salch and Green ap- peared at the hearing. The trial committee found Green guilty of the charges and assessed a $100 fine. Green appealed the action of the trial commit- tee, and Green was subsequently informed that the International had sustained his appeal and had or- dered recision of the fine.6 Hudson was convincing and I credit Green However the testimony of both Wigand and Green is consistent in that, after being employed at Mid-Hud- son, with only slight delay, Green was assigned to the H 0 Penn Job 6 John Versace worked with Green on the occasion of Green's alleged breach of the union rule and was similarly charged and fined Versace, like Green, successfully appealed his fine LOCAL 38, SHEET METAL WORKERS ' INTERNATIONAL ASSOC., AFL-CIO f. The 1968 union charge On April 8 , 1968, Robert Green was again charged with a violation of a union rule by working at the Wallkill Senior High School job without noti- fying the Union and without first resorting to the out-of-work list of the Union . The charge was filed by James Nixon , a business agent of the Union. Robert Green credibly testified that in late March he was workng in the employ of McCreary Metals, Inc., at the Wallkill High School jobsite. Green testified that while he was working on the jobsite he observed James Nixon conversing with two other individuals . He was then summoned by Nixon who said, "Come over here ; I want to talk to you." Green told Nixon that he had nothing to say to him and continued to work . Thereupon , Nixon came over to Green and said, "Let me see your union ticket." Green answered that he did not have the ticket because he had mailed it to "Mr. Bradley. "7 He informed Nixon that Nixon would have to speak to Bradley . Nixon thereupon left stating to Green, "I will see you on Friday." By letter dated April 1 , Nicholas J. Brennan, business manager of the Union , advised Green that he was being requested by Business Agent Nixon to appear before the executive board of the Union on April 5. Green received the letter but did not ap- pear. Thereafter, on April 8 , Nixon filed a formal charge against Green alleging a violation of union rules as found above. The charge was initially scheduled for trial on August 2 , 1968. However, pursuant to a timely tele- graphic request filed by Robert Green , the August 2 hearing was postponed . In due course the trial was rescheduled for September 6, and Edward Salch so advised Robert Green by registered letter. Green did not receive delivery of this letter and on September 5 he was advised in person that the trial was scheduled for the following day. On September 6 Green made a telephonic request of Respondent to again postpone the trial . However, the trial was held as scheduled and Green did not attend.8 In due course , on September 6, 1968, the April 8 charges against Robert Green were heard by the ex- ecutive board , sitting as a trial board of the Union. Green was found guilty of the charges filed against ' Douglas J Bradley was at pertinent times Respondent 's financial secre- tary ° Robert Green testified that at pertinent times he maintained a post of- fice box in Poughkeepsie and that because of marital difficulties , through December 1968, he refused to accept delivery of registered letters He further testified , however, that he took delivery of all regular mail Green testified , credibly, that commencing in January 1969 and thereafter he did not decline to take delivery of any registered or certified mail Green conceded that during the period in which he was declining to ac- cept delivery of registered mail there "were a few registered mails that came to the post office" that he did not "get " He also conceded that in the month of December 1968, it was frequently a week or two before he got to the post office to pick up mail ° The General Counsel raises no issue with respect to the procedural regularity of the trial proceeding The instant trial appears to have con- formed to provisions of Respondent 's constitution governing the filing of 113 him by Nixon and was fined $750. The minutes of the trial board proceedings of September 6 reflect the finding, the amount of the fine assessed , and, in pertinent part , also reflect the following: The Local Union has a ruling that when men are working for any contractor other than a Local Union #38 contractor , they may not transfer from one job to another . The out-of- town contractor must man his jobs from the Local Union out-of-work list. The company that Robert Green , Jr., works for is the Mc- Creary Metals Co ., who has a signed agree- ment with Local Union #38. During the few months preceding the charges Brother Robert Green moved continuously from the Rotron job in Ashokan , N.Y., to the Wallkill Senior High School to the Kingston Vocational School and a Cities Service Gas Station in Kingston, N.Y., without ever notifying the Local Union; this being contrary to the Local Union rules and regulations. Letters have been submitted as evidence to the fact that Brother Green has refused to accept any registered mail from the Local Union so as to thwart the Trial Committee Letters under the dates of. April 25, 1968 - June 10, 1968 - July 2 , 1968, July 23 , 1968 - August 20, 1968, were submitted with the envelopes that were returned to the Local Union a statement was also presented to the Trial Committee bearing out the runaround that was given to two Local Union #38 Business Agents to present the charges to Robert Green, Jr., personally on a job site in Ulster County. Two copies of the minutes of the proceedings of September 6 were dispatched to Robert Green by registered mail. The covering letter, over the signa- ture of Edward J . Salch, recording secretary of the Union, requested Green to attest to the accuracy of the minutes . The letter was dated September 9.9 It was returned undelivered to the Union. Thereafter, Salch endeavored to locate Green and ultimately hand-delivered the minutes and covering letter to Green on December 5, 1968, at the H .O. Penn worksite of Mid-Hudson.10 charges, notice of hearing, trial procedures , and service of trial minutes and findings 10 Robert Green testified that the delivery transpired on December 5 while Edward Salch placed the date of delivery as November 20 The testimony of both Green and Arthur Wigand establishes that Green did not commence his employment with Mid-Hudson until after November 20 Further, Wigand testified credibly that Salch approached him at the office seeking to locate Green and that he informed Salch that Green was on the H 0 Penn Job Indeed Salch himself testified that he sought out Wigand to inquire into Green's whereabouts Finally, John Versace lends credible support to the testimony of Green Versace testified credibly that when Salch came to the H 0 Penn job to deliver the trial minutes , at Green's request , he recorded the date of delivery on the envelope containing the minutes The date he recorded was December 5 Accordingly , I am unable to credit Salch 's testimony that the delivery occurred on November 20 114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thereafter by letter, received by the Union, Green notified the Union that he would not attest to the minutes because of "numerous errors and false statements" allegedly contained therein. On January 3, 1969, Green filed an appeal with the International in Washington, D.C., and by the letter of transmittal of the same date forwarded a check in the amount of $50 to the Respondent." This check was received in due course by the finan- cial secretary of the Union and was transmitted to Edward Salch. On January 22, 1969, the International by letter advised Green as follows: This is in reference to your appeal on the ac- tion taken by Local Union #38. You are advised that your appeal cannot be entertained as your appeal is not timely, and you did not comply with the provisions of Arti- cle 17, Section 3 of our International Constitu- tion pursuant to the provisions of Article 19, Section 2(b) and Article 19, Section 5(a) of our International Constitution. Subsequently, as a consequence of further com- munication with the International, Green received a letter dated February 3, 1969, from the general secretary-treasurer of the International which read as follows: g. Suspension notice to Mid-Hudson In the meantime, by letter dated January 7, 1969, bearing the signature of Edward Salch, Mid-Hudson was informed as follows: Please be advised that the financial secretary has notified this Local Union #38 that as of January 1, 1969, Robert J. Green, Jr., has been suspended from membership in Local Union # 38. h. Wigand speaks with Green Upon receiving Salch's letter, Arthur Wigand, president of Mid-Hudson, called Green into his of- fice and showed Green the letter. Green informed Wigand that he was going to get in touch with "Washington." In Wigand's presence Green placed a long distance telephone call to the International in Washington and spoke for a few minutes with an in- dividual. After the conversation terminated Green stated that the person to whom he had spoken in- formed Green that he would be in touch with Salch and instructed Green to "stay on the job." Wigand permitted Green to continue work. 2. The alleged unlawful conduct This is with reference to your letter of January 27, 1969, in which you claimed you did comply with Article 17, Section 3 of our Inter- national Constitution within the prescribed thirty days. Please be advised that the records show Local 38 sent you a copy of the findings of the trial committee September 9, 1968, which you refused to accept and because of this same was delivered to you in person November 20, 1968, therefore, the $50.00 on appeal received by Local 38 January 6, 1969, was not within the predescribed thirty days. You refused to accept certified mail which you must have known was notification to you of the outcome of the trial, and since it was your decision to take this type of action you thereby forfeited your right to appeal. [Emphasis sup- plied. ] " The Respondent 's constitution provides for appeal to the general pre- sident of all orders and directions of the trial committee and of the local union pertaining thereto In pertinent part the constitution provides as fol- lows All appeals to the general president shall be in written form, filed with the general secretary-treasurer and a copy mailed to the opposing party or parties within thirty (30) days from the action from which ap- peal is taken, unless notice thereof is required by this Constitution, in which event, the appeal must be filed and served within thirty (30) days of the date of such notice Should the appeal be predicated upon any action of the local union or counsel , copies thereof shall be furnished to such local union or a. The overtime work issue On March 20 and 31, 1969, form overtime authorizations were issued over the signature of Nicholas Brennan to Robert Green and John Ver- sace granting union authorization to them to work overtime. These slips are issued pursuant to the ex- isting arrangement or practice found above. Under established procedure, either the employer or the employee seeking permission to work overtime makes an oral or telephonic request to office per- sonnel of Respondent. The office employee receiv- ing the request completes all portions of the form, recording the essential information given by the ap- plicant, and then presents it to Brennan for signa- ture. In one sitting Brennan often affixes his signa- ture to a pile of authorization forms presented to him for approval. Brennan testified that when he signed the authorization forms for March 20 and March 3 1, respectively, he was not aware that they bore the name of Robert Green. counsel which shall be entitled to file reply thereto in the same manner as an appellee. Nicholas Brennan credibly testified that, consistent with requirements of the Respondent 's constitution , under the established procedures of the Union, when a member appeals an order of the trial committee assessing a fine in excess of $50, in order to perfect his appeal the member must sub- mit to the financial secretary of the local $50 If the appeal is sustained in its entirety the money is returned to the member If the appeal is rejected or not fully sustained , the $50 is applied to satisfaction of the fine in ac- cordance with such directive as the International may issue. LOCAL 38, SHEET METAL WORKERS' INTERNATIONAL ASSOC, AFL-CIO After the Union dispatched its January 7 letter to Mid-Hudson advising the Company of the suspen- sion from membership of Robert Green, Brennan issued instructions to his office personnel that over- time permits should not be issued to Robert Green. 12 In early April John Versace placed a telephone call to the office of the Respondent and requested issuance of an overtime permit for him to work overtime in the employ of Mid-Hudson. The office girl who took the call sought the names of the em- ployees requesting the permit. Versace' informed her that they were being requested by Robert Green and himself. After a pause of a few minutes the office girl stated, "I can give you a permit but I can't give it to Bob Green, because he is no longer a member here." John Versace further credibly testified that later in the month of April he again contacted the Respondent's office and requested issuance of an overtime permit for himself and for Robert Green. On this occasion, according to the credited testimony of Versace, the office girl to whom he spoke declined to issue a permit for Green but stated that she would give Versace a permit. Versace further credibly testified that thereafter he ceased requesting permits for Green and sought and received overtime permits for himself. b. Salch and Wigand converse In the interim, in late March, Wigand had occa- sion to converse with Salch concerning a need for regular sheetmetal men. As the conversation ended Salch inquired if Green was still employed by Mid- Hudson and Wigand answered in the affirmative. c. Wigand speaks with Brennan Thereafter, in early April, Wigand spoke with Nicholas Brennan, president and business manager of Respondent. Wigand informed Brennan that he needed layout men and inquired if Brennan had any. Brennan answered, "Where will I get one?" "Out of the dump." Wigand responded he would take a sheetmetal man if he could get one and Brennan asked, "Do you still have Green working with you?" Wigand answered in the affirmative. Brennan said, "Well, you know you're right in the middle of this." Brennan further stated that Green was no longer a member of Local 38. Wigand ob- served that he had overtime permits bearing the name of Robert Green and John Versace. Brennan responded that the permits were a "mistake." is Nicholas Brennan was unable to more precisely fix the date of this in- struction "The foregoing is based primarily on the credited testimony of Arthur Wigand as supported , in certain respects , by the testimony of Edward Salch and Glenn Powell While I credit the testimony of Salch to the effect that he referred to the Board 's determination of Green as a supervisor and made reference to the fact that supervisory personnel are not covered by the Union's agreement, I do not find that Salch 's objection to Green 's use of 115 d. Salch instructs Wigand On June 19, 1969, Arthur Wigand had lunch with Edward Salch at a restaurant in Hopewell Junction, New York. They were joined at lunch by Glenn Powell, a sheetmetal contractor. During the lunch they sat at a counter. Salch sat to the left of Wigand and Powell sat to Wigand's right. The luncheon conversation lasted approximately 1 hour and was principally devoted to a discussion of man- power availability. However, Wigand and Salch also discussed Robert Green. When Wigand inquired into the status of Green, Salch informed him that Green had lost his " case " and that Green no longer had a card. Salch stated that Green could no longer work with tools of the trade. Wigand commented that in that event Green was not of "very much value" to him. Salch observed that Green could work as an estimator but could not work with the tools of the trade. Salch stated that in an earlier Board proceeding Salch had been described as a "supervisor" and that Wigand could use Green in a supervisory capacity. Salch remarked that Wigand had a "union agreement." Wigand then inquired how Green could get back into the Union. Salch replied that he could do so by paying $613.39 for reinitiation and by paying the $750 fine which was outstanding.13 e. Green's termination The following morning, on June 20, Wigand in- formed Green of his conversation with Salch on the previous day. Wigand informed Green that "if he were not able to work with the tools" he was going to have to let him go. Wigand suggested that Green could work as an estimator and that he would util- ize him in that capacity. However, Green stated that as an estimator he could not receive unemploy- ment benefits. Thus, Green stated that he desired not to be employed as an estimator. Thereupon, Wigand informed Green that he could not keep him. Later, on June 20, Wigand dispatched the follow- ing letter to the Respondent: We wish to inform you that we terminated Mr. Green's employment Friday morning, June 20, 1969, at 9 a.m., conforming with union requirements. Mr. Salch informed me that we could retain Mr. Green in a supervisory capaci- ty only, not using any tools of the sheet metal trade. I would state at this time we are in need of qualified sheet metal workers. We require one (1) shop layout man and two (2) fieldmen. the tools of the trade, articulated during the luncheon conversation, was premised solely upon the Board 's supervisory determination Rather, as testified to by Wigand, I find that the reference was made in context with Salch's separate observation that Green had lost his "case" and was no longer a union member I place little reliance on the testimony of Glenn Powell who, by his own testimony , conceded that he did not closely follow the trend of the conver- sation relating to Green 427-258 O-LT - 74 - 9 116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Approximately 2 weeks thereafter, Wigand em- ployed Green as an estimator, in which capacity he was working at the time of the hearing herein. f. The union dues issue Robert Green credibly testified that, knowing that he was on "charges" before the Union, in early December he mailed a check to cover dues for November and December. He did not receive back a dues receipt and consequently checked with his bank to determine whether or not his dues check had been negotiated. Finding that it had not, on December 26, Robert Green dispatched a check in the amount of $33 covering 2 months' dues. The check was mailed to Douglas Bradley, financial secretary, and was received in December in the due course of the mails.14 Bradley handed the check to Salch at the executive board meeting in January 1969. While Salch, in his capacity as recording secretary, accepts all communications he does not accept dues checks. Article 16, section 10, of the constitution of the Union provides as follows: Any member who becomes two (2) months in arrears shall be recorded suspended by the local financial secretary and by the General Secretary-Treasurer without notice and under no circumstances shall any extension of time be granted. No back dues shall be accepted from any member suspended in accordance with this Section and no official receipt shall be issued to record such dues after the expira- tion of the two (2) month limit or predated to avoid suspension. Douglas Bradley testified that monthly dues of the Union at pertinent times herein were $16.50. He further testified that on December 26, 1968, Green's dues had been paid through October 1968. He testified further that a $33 payment would have paid Green's dues through December and that, under the 2-month grace period permitted by governing rules Green could not have been suspended for nonpayment of dues until February 28, 1969. By check dated March 18, 1969, Robert Green tendered $49.50 toward the payment of dues. This check was received by Bradley and by him marked canceled.15 Bradley returned Green's March 18 check by mail on March 25. Conclusions Respondent's Contentions It is the contention of the Respondent that, fol- lowing an intraunion disciplinary proceeding which resulted in the assessment of a fine against Robert Green, Green failed to pay his union dues for the period ending December 31, 1968, and was for this reason automatically suspended from membership. The Respondent asserts , in substance, that because Green was no longer a member it had no authority either to grant or withhold permission for Green to work overtime.'6 Additionally, Respondent avows that it did not suggest or request the termination of Robert Green. Rather, contends Respondent, it merely advised Mid-Hudson that, inasmuch as "the Board" in a prior proceeding had held Green to be a supervisor, the Union would expect Green to be employed in that position. The subsequent action of the Employer in terminating Green's employment was, contends the Respondent, voluntary on the part of Mid-Hudson. By way of affirmative defense, the Respondent further contends that the determination of the Re- gional Director in Case 3-CB-1247 finding Green to be a supervisor is res judicata and must stand as against the contention of the General Counsel in the instant case. In this regard, the Respondent points to the fact, uncontested, that the determina- tion of the Regional Director in Case 3-CB-1247 was not appealed. Finally, the Respondent in its brief contends that inasmuch as the General Counsel failed to produce at the instant hearing affidavits taken by the General Counsel on which the regional determina- tion of the supervisory status of Green in Case 3-CB-1247 was based, there was a failure on the part of the General Counsel in the instant case to comply with the rule in Jencks v. U.S., 353 U.S. 657, and the prior determination of Green's super- visory status must prevail. The Affirmative Defenses Rejected The Respondent's contention premised upon ap- plication of the Jencks rule is without merit. The al- leged failure of the General Counsel to comply with Jencks was raised for the first time by Respondent in brief of counsel. At the hearing Respondent " The foregoing is based on the credited testimony of Robert Green and documents in evidence I do not credit the testimony of Douglas Bradley to the effect that he did not receive the December 26 check until early in January Green testified that he mailed the December 26 check in an en- velope addressed to Bradley and there are in evidence , extracted from the records of the Respondent, a check bearing Robert Green's signature and an envelope addressed to Bradley bearing a December 26 postmark I am unable to accept the inference of Bradley 's testimony that this communica- tion, dispatched from one point to another within a localized area of upper New York State, would remain undelivered for a period in excess of 7 days While Bradley testified his official duties required him,to close his books on the last day of each month , I am convinced that his failure to enter, or otherwise make official notation of, the receipt of the dues payment was his realization that Green was in difficulties with the Union and his knowledge that Brennan and Salch , union functionaries with whom he had "dealings," were officers primarily involved in the dispute with Green " Bradley credibly testified that under procedures which he followed he stamped "cancelled " all checks which were not to be negotiated but were to be returned to the maker of the check 1e Nicholas Brennan, Respondent 's president and business manager, so testified Neither in its answer nor brief did Respondent address itself directly to this issue LOCAL 38, SHEET METAL WORKERS' INTERNATIONAL ASSOC., AFL-CIO 117 made no contention of noncompliance on the part of the General Counsel with Section 102.118(b) of the Rules and Regulations of the National Relations Board, and the record reveals no refusal on the part of the General Counsel to make available to Respondent affidavits of witnesses called to testify on the supervisory issue. Rather, the record sug- gests that three separate affidavits of Arthur Wigand, who testified on this matter, were in the possession of Respondent's counsel at pertinent times during his interrogation of Wigand, and an identical number of affidavits of Robert Green were timely made available to Respondent's counsel, who were accorded time to study them. The record reveals no departure either from the literal mandate of Section 102.118(b) nor the spirit and intend- ment of Jencks. Nor do I find merit in the Respondent's res ju- dicata contention. The record reveals that the charge in Case 3-CB-1247 was dismissed by the Regional Director after investigation, without a hearing, and pursuant solely to an administrative determination that Robert Green was a supervisor. In W. Ralston & Co., Inc., 131 NLRB 912, the Board held the doctrine of res judicata is not ap- plicable when a prior charge is dismissed before the conduct of a hearing and without opportunity for adjudication of the merits.17 Contrary to the Respondent, as the determination of the Regional Director arose under Section 10 of the Act, and not under Section 9 thereof, Section 102.67(f) of the Board's Rules and Regulations, Series 8, as amended, is not applicable nor is precedent in- terpreting that section of the Rules and Regulations apposite."' The relevant inquiry into the merits of the super- visory issue is whether, on or about April 4 and at all times thereafter until June 20, Robert Green was a supervisor and not an employee within the mean- ing of the Act. I find that he was throughout the aforesaid period an employee and thus entitled to the protections of the Act. The evidence adduced at the hearing establishes that Robert Green worked on a virtually exclusive basis with John Versace and that his relationship to Versace was that of a skilled craftsman to an equally or only slightly less skilled craftsman. By virtue of com- petence and experience Green was designated, along with Horn and Case, in a complement of six or seven sheetmetal craftsmen, to lead the work on work projects requiring the performance of tasks normally associated with the sheetmetal craft. In carrying out, in a manner consistent with prior directives and instructions of management, the work in which he and Versace engaged, Green was required to exercise the judgment possessed by a journeyman in the application of his craft skills, but he did not otherwise exercise discretion or indepen- dence. The extra compensation which Green, Horn, and Case received reflected managerial esteem for their skills, which were coveted by Mid-Hudson in a tight labor market. Green had no authority to affect the employment status of Versace, or any other sheetmetal worker in the employ of Mid-Hudson. There is no evidence that Green possessed authori- ty to effectively recommend personnel actions to his Employer. In the foregoing circumstances, I find that Robert Green was at all relevant times an employee within the meaning of the Act and, accordingly, I reject the Respondent's contention that he was a super- visor.19 The Merits Section 8(b)(2) of the Act provides that it shall be an unfair labor practice for a union "to cause or attempt to cause an employer ... to discriminate [within the meaning of Section 8(a)(3)] against an employee with respect to whom membership in such organization has been denied or terminated on some ground other than his failure to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership." As reflected in the statutory language, the question to be determined is the reason underlying the Respondent's demand for actions affecting the employment status of Robert Green.20 It is of course permissible under the Act for a labor organization to enforce the unlawful union- security provision of a labor agreement by demand- ing the termination of an employee who has failed to timely tender dues uniformly required. It is un- lawful, however, for a labor organization to cause or attempt to cause an employer to discriminate against an employee by reason of a violation by the employee of an internal rule or policy relating to the acquisition or retention of membership.21 I con- IT See also Jersey City Welding & Machine Works, Inc , 92 NLRB 510 i" E g, Stanley Air Tools, Division of the Stanley Works, 171 NLRB 388, Security Guard Service, Inc, 154 NLRB 8, The Ma.titell Company, 164 NLRB 713, enfd 414 F 2d 477 (C A 6) "See Hostard Johnson Company, 174 NLRB 1217, and cases cited therein, see also Local 25, Marine Division, International Union of Operat- ing Engineers, AFL-CIO, 178 NLRB 292, fn I 20 See General Motors Corporation, Packard Electric Division, 134 NLRB 1107, 1 109 1 draw no adverse inferences with respect to motivation by vir- tue of the disposition made of Green's appeal by the International Under application of relevant law pertaining to fulfillment of service requirements by deposit of documents in the U S mails, the requirements of the Respon- dent's constitution relating to the service of the trial minutes, and the findings of the trial committee appear to have been satisfied In my view of the case, it is unnecessary to determine whether, being aware of the non- delivery of the pertinent documents and having undertaken to hand-deliver them, principals of equity would have required appeal time to have been measured from the date of actual delivery So far as the record reveals, the International had no basis for doubting the accuracy of the Local 's assertion that delivery had been accomplished on November 30, 1968 Thus, under that view, Green's appeal would have been untimely While the inaccurate information pertaining to the delivery supplied by the Local suggests an underlying hostility on the part of local functionaries toward Green, it does not, in the circumstances of this record, attach to the International Moreover, the record reveals that the General Counsel does not challenge the procedural regularity of the fine proceeding and it is clear that Green, by his own actions, contributed to the inability of the Union to accomplish service by registered mail Ti See A Nabakou ski Co, 148 NLRB 876, 881-882 118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD clude that the evidence preponderates in favor of a finding that Respondent unlawfully withheld per- mission for Robert Green to work overtime and thereafter caused or attempted to cause his ter- mination solely because he had failed and refused to pay the internal union disciplinary fine which had been assessed against him. The evidence establishes that on January 7, when Respondent advised Mid-Hudson that Robert Green had been suspended from membership, Green's membership dues had been paid through December 31, 1968. By reason of this, Green was not vulnerable to automatic suspension under operation of Respondent's constitution for nonpay- ment of dues, and would not become so until February 28. Respondent's explanation for its refusal to credit Green with dues tendered in December-a tender which rendered him paid up through December 31-arose, I find, from the awareness of the financial secretary of the intra- union disputation with Green and the unsatisfied status of the fine; and the obedience of the financial secretary to the mandates of the Respondent's con- stitution that no tender of dues is acceptable so long as a disciplinary fine remains unpaid. It was this, and not Green's failure to tender dues that brought Green's suspension from membership, which was called to the attention of Mid-Hudson in January. I find no persuasive basis in the record for con- cluding that the unsatisfied fine ceased being a motivating consideration in the relationship between the Respondent and Green. With respect to the motivation of Respondent for its role leading to the termination of Green as a journeyman sheet- metal worker utilizing the tools of the trade on be- half of Mid-Hudson, the evidence of record leaves little doubt. Thus, on June 19, against a background of prior warnings by Brennan and Wigand concerning the potential risks of continuing to employ Green, Salch made explicit what he and Brennan had implicitly conveyed to Wigand earlier. Salch pointedly called to the attention of Wigand that Green had "lost his case," no longer had his union card, could no longer work with the tools of the trade, and could regain his union membership only by paying a reinitiation fee and his outstanding fine. Salch reminded Wigand that he had a union agreement. The record thus establishes that matters arising from the disciplinary proceeding involving Green were moving considerations in the course of action Salch was urging upon Wigand. Additionally, the record evidence is clear that the payment of the $750 fine outstanding against Green was not advanced by Salch in the disjunctive but was stated as an absolute condition of union acquiesence in Green's continued or future employ- ment as a craftsman using the tools of the trade. I find that Salch's declaration implied recourse. If it lacked the attributes of a demand it was, to be cer- tain, an "efficacious request."22 The relationship of cause and effect, the essential features of Section 8(b)(2), "can exist as well where an inducing com- munication is in terms courteous or even precatory as where it is rude and demanding. "23 It is well settled that the Act does not permit a union to condition employment upon the payment of a fine and that a valid union-security agreement accords no such license.24 Moreover, the Board has held that by conditioning the continued employ- ment of employees upon their payment of fines, labor organizations extract a penalty which the statute forbids, and that the conduct constitutes an attempt to cause an employer to discriminate against employees in violation of Section 8(b)(2) and (1) (A) of the Act.25 In view of the foregoing, I find that Respondent violated Section 8(b)(2) and (1)(A) of the Act by requiring Mid-Hudson to cease employing Robert Green as a journeyman sheetmetal worker using the tools of the trade. I find that Respondent acquires no immunity from the proscriptions of the statute merely by reason of the fact that by June, when the Respondent efficaciously demanded Green's ter- mination, Green's dues appear to have become delinquent. Placing aside the concept of futility arising from Respondent's rejection of prior dues tenders (and Green's likely awareness of the con- stitutional prohibition against acceptance of dues in the face of unsatisfied fines) the Respondent, as clearly disclosed by Salch's statements of June 19, was undertaking to discipline Green "not as an in- traunion matter, but as a condition of [his] con- tinued employment and using a condition other than [his] failure `to tender the periodic dues and initiation fees."'28 As found, this is proscribed by the Act.27 A perhaps subtler question arises with respect to the General Counsel's contention that Respondent unlawfully deprived Green of overtime clearance in April. 22 See San Jose Stereotypers' and Electrotypers' Union No. 120, Interna- tional Stereotypers' and Electrotypers' Union of North America, AFL-CIO (Dow Jones & Company, Inc ), 175 NLRB 1066, fn 3, and cases cited therein 23NLRB v JarkaCorp,198F2d618,621(CA 3) 24 National Automotive Fibres, Inc, 121 NLRB 1358, enfd 277 F 2d 779 (C A 9), Local No 4, United Slate, Tile and Composition Roofers, Damp and Waterproof Workers Association, AFL-CIO (Avon Sheet Metal Co ), 140 NLRB 384, 387 25 Association of Western Pulp & Paper Workers and Local 28, Association of Western Pulp and Paper Workers (Fibreboard Paper Products Corp ), 170 NLRB 49 (TXD). 25 See Association of Western Pulp & Paper Workers and Local 28, Associa- tion of Western Pulp and Paper Workers (Fibreboard Paper Products Corp.), supra 27 1 am not persuaded by Respondent's claim that it sought to deprive Green of opportunities to work with tools of the trade merely because he was considered by the Union to be a supervisor and thus not entitled to per- form unit work The record reveals no basis for distinguishing Green's status during pertinent times from that of Robert Horn and Charles Case, who like Green worked in a lead capacity . Their right to work with the tools of the trade was not challenged nor was that of Versace when he suc- ceeded to Green's place after Green was deposed. LOCAL 38, SHEET METAL WORKERS ' INTERNATIONAL ASSOC., AFL-CIO On February 28, Green fell 60 days in arrears in the payment of dues and thus under operation of the Respondent's constitution he was automatically suspended. The tender of 3 months' dues-suffi- cient to meet his dues obligation through March 31-was not accompanied by the necessary $25 reinstatement fee required under the Respondent's constitution. Thus, abstractly, any refusal on Respondent's part to decline issuance of an over- time permit solely on the ground that it was outside- Respondent's area of competence either to grant or withhold permission, would, without more, have been permissible under the Act. However, the realities are that Respondent's con- stitution precluded acceptance of dues while a fine remained unpaid. It would have thus been futile for Green to have tendered dues. The futility of doing so was made more apparent to him through the failure of the Respondent to credit him for his December tenders. In submitting dues in March, it may reasonably be concluded that Green recog- nized he was merely engaging in a ritual to protect his position. The foregoing considerations alone suffice to foreclose as a viable defense Green's failure to maintain a current position in the pay- ment of dues.28 But in any event, the facts of record are that Mid-Hudson employed only union mem- bers and permit men referred by the Union and union permission was an absolute prerequisite to working overtime.29 It would be unrealistic, upon a record revealing unlawful motive on the part of Respondent toward Green existing prior to and after the overtime permit declination, to find that dues delinquency alone formulated the basis for the Respondent's action. Clearly, in late March and early April, times proximate to the refusal to clear Green, Respondent's officers were seeking, through indirection, but in context of discussion of man- power needs, to have Mid-Hudson dispense with Green's services. The short answer, in light of all that had gone before, is that in denying Green clearance to work overtime, Respondent was not relying upon any newly found right but was acting in continuity with the motive which marked its January suspension notice to Mid-Hudson pertain- ing to Green, and which carried forward in un- broken fashion through to the successful deposing of Green on June 20. Thus, I find that, in refusing to grant the necessary clearance to permit Green to work overtime, the Respondent has extracted a penalty in the form of loss of earnings to Green in a manner proscribed by the Act.30 29 See International Longshoremen 's and Warehousemen 's Union Local 17, International Longshoremen's and Warehousemen 's Union, and its Agent Frank E Thompson, 172 NLRB No 227 zB The evidence is far from clear whether Respondent 's directive to the clerical staff to withhold overtime clearance to Green preceded or followed February 28 There is sound basis , however, for concluding that the over- time slips issued on March 20 and 3 1, respectively , were issued through in- advertance 119 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in sec- tion III, above, occuring in connection with the Company's operations described in section I, above, have a close, intimate, and substantial rela- tionship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY • Having found that Respondent has engaged In certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the poli- cies of the Act. Having found that Respondent has caused and at- tempted to cause Mid-Hudson Sheet Metal Inc. to deny employment to Robert John Green, Jr., in the capacity of a journeyman sheetmetal• worker, and having further found that Respondent denied the request of Mid-Hudson to permit Green to work overtime in said capacity, it is recommended that Respondent notify Mid-Hudson and Robert John Green, Jr., in writing, that (1) it has no objection to the employment of Green by Mid-Hudson in a posi- tion substantially equivalent to the one which Green would have held with Mid-Hudson absent Respondent's discrimination against him, without prejudice to his seniority or other rights and privileges; and (2) that it will not discriminatorily deny Green permission, upon proper application, to work overtime in the employ of Mid-Hudson.31 It will further be recommended that Respondent make Green whole for any loss of pay he may have suffered by reason of its discrimination against him, by payment to him of an amount equal to that which he would have earned from June 20, 1969, in the employ of Mid-Hudson as a journeyman sheet- metal worker, until the date on which Respondent notifies Mid-Hudson that it has no objection to Green's employment by Mid-Hudson. In addition, it is recommended that Respondent make Green whole for any loss of compensation he may have suffered by reason of its refusal to permit Green to work overtime in the employ of Mid-Hudson in the capacity of a journeyman sheetmetal worker. Loss of compensation shall be computed upon a quar- terly basis in the manner established in F. W. Wool- worth Company, 90 NLRB 289, and shall be com- 30 See Association of Western Pulp & Paper Workers and Local 28, Associa- tion of Western Pulp and Paper Workers (Fibreboard and Paper Products Corp ),supra 31 As found, the record reveals that subsequent to the perpetration of the unfair labor practices found herein , but prior to the hearing herein, the firm name of the Company was changed to Mid-Hudson Highland Sheet Metal, Inc , and this notification is to be directed to the new firm and rele- vant elements of the remedy are to be applicable to that firm 120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD puted in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. Net earnings during the backpay period shall be excluded. Crossett Lumber Company, 8 NLRB 440. CONCLUSIONS OF LAW 1. Mid-Hudson Sheet Metal Inc. is an employer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 2. Respondent is a labor organization within the meaning of Section 2(5) of the Act. 3. By causing or attempting to cause Mid-Hud- son Sheet Metal Inc. to deny employment to Robert John Green, Jr., and by denying Mid-Hudson per- mission to employ Green in overtime work as a journeyman sheetmetal worker, both because of his failure to pay an intraunion disciplinary fine against him, the Respondent has engaged and is engaging in unfair labor practices within the meaning of Sec- tion 8(b)(2) and (1)(A) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in this case, I recommend that Local Union No. 38, Sheet Metal Workers' International Association, AFL-CIO, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Causing or attempting to cause Mid-Hudson Sheet Metal Inc., presently doing business under the firm name of Mid-Hudson Highland Sheet Metal, Inc., to discriminate against Robert John Green, Jr., in violation of Section 8(a)(3) of the Act. (b) In any like or related manner restraining or coercing employees of Mid-Hudson in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: 32 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings , conclusions, recommendations, and Recommended Order herein shall, as provided in Section 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes In the event that the Board 's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the Na- (a) Make Robert John Green, Jr., whole for any loss of pay suffered by reason of the discrimination against him in the manner set forth in the section entitled "The Remedy." (b) Notify Green and Mid-Hudson, in writing, that Respondent has no objection to the employ- ment of Green in the capacity of a journeyman sheetmetal worker and that requests of Mid-Hud- son, made upon proper application, to utilize Green in said capacity in the performance of overtime work will not, in the future, be withheld for unlaw- ful reasons, both without regard to his membership or nonmembership in the Respondent, except as required by the valid union-security agreement in effect between the Respondent at Mid-Hudson, and without regard to his payment or nonpayment of the fine outstanding against him. (c) Post at its business office, meeting hall, or other locations where notices to members are customarily posted copies of the attached notice marked "Appendix."32 [Board's notice substituted for Trial Examiner's notice.] Copies of said notice, on forms provided by the Regional Director for Re- gion 3, after being duly signed by Respondent's of- ficial representative, shall be posted by it im- mediately upon receipt thereof, and be maintained by Respondent for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Furnish to the Regional Director for Region 3 signed copies of said notice for posting by Mid- Hudson Highland Sheet Metal, Inc., if willing, in places where notices to employees are customarily posted. Copies of said notice to be furnished by the Regional Director shall, after being duly signed by a representative of Respondent, be forthwith returned to the Regional Director for distribution by him. (e) Notify the Regional Director for Region 3, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.33 tional Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." " In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order , what steps Respondent has taken to comply herewith "