Rust Engineering Co.

RUST ENGINEERING COMPANY 649 Rust Engineering Company and Henry Franklin Wyrick and Talmadge Miller Sheet Metal Worker's International Association- Local 51 and Henry Franklin Wyrick and Tal- madge Miller. Cases 10-CA-7869, 10-CA-7870, 10-CB-1831, and 10-CB-1832 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 National 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 " TRIAL EXAMINER'S DECISION June 19, 1970 DECISION AND ORDER By MEMBERS MCCULLOCH, BROWN, AND JENKINS On February 27, 1970, Trial Examiner Bernard J. Seff issued his Decision in the above-entitled proceeding, finding that the Respondents had en- gaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative ac- tion , as set forth in the attached Trial Examiner's Decision . Thereafter, the Respondents filed joint exceptions and a supporting 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 these cases 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, the brief, and the entire record in these cases, and hereby adopts the findings, conclusions, and recom- mendations 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 Respondents, Rust Engineering Company, its officers, agents, successors, and as- signs, and Sheet Metal Worker's International As- sociation-Local 51, its officers, agents, and representatives, shall take the respective action set forth in the Trial Examiner's Recommended Order, as modified below.' ' In the attendant circumstances, however, we do not find as an admis- sion against interest Business Agent Fuller's statement to employee Wynck, "If I did have you laid off what are you going to do about it " And, contrary to the Trial Examiner, the record does not reveal the exact date of Wynck's reemployment with Respondent Rust, it does show that he was "re-instated" by Bill Smith after the latter was elected as the Union's busi- ness manager Y Amend fn 4 of the Trial Examiner's Decision to read as follows STATEMENT OF THE CASE BERNARD J. SEFF, Trial Examiner: This hearing, with all parties represented, was held on November 12 and 13, 1969,1 in Knoxville, Tennessee, on the complaint of the General Counsel issued on Sep- tember 15. The charges in each of the cases herein were filed on July 23. An order consolidating cases, complaint, and notice of hearing in this matter was issued on September 15. The complaint alleges that the above-named Respondent Union violated Sec- tion 8(b)(2) and (1)(A) by causing the above- named Respondent Rust (sometimes referred to herein as the Company) to terminate Henry Wyrick and Talmadge Miller, and that Respondent Rust violated Section 8(a)(3) and (1) by terminating Wyrick and Miller on March 5. Both Respondents in their answers deny the commission of any unfair labor practices. All parties appeared at the hearing and were given full opportunity to participate, to adduce relevant evidence, to examine and cross-ex- amine witnesses, to argue orally, and to file briefs. Briefs were filed by the General Counsel and the Respondents which were carefully considered. Upon the entire record and from my observation of the witnesses while they were testifying under oath, I make the following: FINDINGS OF FACT I. JURISDICTIONAL FACTS Respondent Rust, a Delaware corporation, is en- gaged in the engineering and construction business throughout the United States. At all times material to this case it was engaged in the construction of additions and modifications to the Atomic Energy Commission's facilities at Oak Ridge, Tennessee. Respondent Rust admits that at all times material herein it has purchased and received goods valued in excess of $50,000 directly from suppliers located outside the State of Tennessee. Respondent Rust admits in its answer and I find that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Respondent Union, Sheet Metal Worker's Inter- national Association-Local 51, is a labor organiza- tion within the meaning of the Act. ' All dates are in 1969 unless otherwise specified 183 NLRB No. 76 650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Basic Issues On March 5 Respondent Rust laid off nine sheet- metal workers, including Wyrick and Miller, mem- bers of Respondent Union, who had been actively engaged among the members'of their craft on the job in opposing the reelection of Business Agent John Fuller of Respondent Union. General Counsel contends that Wyrick and Miller were selected for layoff by Fuller because of their known opposition to Fuller and that Respondent Rust laid off the two men for this reason. Respondent Union denied that it had anything to do with the layoff of the men, in- cluding these two. Respondent Rust asserts that the layoff on March 5 was dictated by economic con- siderations. Wyrick was picked because he was the least senior man on his crew and Miller was chosen because he wandered off the job and talked too much. Respondent Rust denies that Fuller or Respondent Union had any part in the selection of the men to be laid off. B. Politicking on the Jobsite In the normal course of events Local 51 held elections for a slate of officers and other union representatives each year on or about June 27. Even though nominations were some months away and no one knew at the time who was going to run for what offices, a vigorous campaign began among the employees during January and February and came to a head in March. Fuller had been the Union's business agent for some years and while he had friends among the men he also had enemies. One employee, William Smith, had been the union steward and, for reasons which are not clear from the record, Fuller temporarily removed him from this post. Smith became so upset when he was removed that Fuller made the removal permanent. This caused a rival faction or a rump group of Smith adherents, including Wyrick and Miller, to spearhead a dissenting and vocal opposition to Fuller. There is no question that many sheetmetal workers were discussing the anticipated union elec- tion on the jobsite in favor of the candidates of their choice. It was thought that Smith would run against Fuller for the job of business agent . The business manager at that time, Grover Tittle, who lived in Chattanooga, was Fuller's boss. As it later turned out Smith did not run against Fuller but against the, then business manager . Smith won and became the ' Article V of the provision reads as follows SECTION 1 The Employer agrees to require membership in the Union, as a condition of continued employment of all employees performing any of the work specified in Article I of this Agree- ment, within eight (8) days following the beginning of such em- ployment or the effective date of this Agreement, whichever is the later, provided the Employer has reasonable ground for believing business manager. Fuller and his slate of candidates lost out. After his election at the end of June, Smith rewarded his supporters. Wyrick was rehired by Rust about July 18 and was appointed a warden of the Union. Employee C. Peace was rehired in July and was appointed by Smith as job steward. C. The Terminations of Wyrick and Miller Respondent Rust has a standard form contract with the Sheet Metal Worker's International As- sociation-Local 51, which contains a union-shop provision.2 As a result of a jurisdictional dispute award received about the first part of March, Respondent decided to curtail its sheetmetal crews. In con- sequence of this, nine sheetmetal workers, mem- bers of Respondent Union, including Wyrick and Miller, were let go on March 5. We are here con- cerned principally with the circumstances under which Wyrick and Miller were terminated. 1. Conversations between Wyrick and Moyers Ben Moyers, Wyrick's crew foreman at the time of his termination , knew that Wyrick had been campaigning against Fuller and in favor of Smith. Moyers testified that despite Wyrick's talking on the job this activity did not interfere with the per- formance of his duties. When Moyers received Wyrick's termination slip he apparently thought Wyrick was being discharged for talking on the job because it was well known to him that Wyrick was outspoken in his dislike for Fuller. The slip was brought to Moyers by Acting General Foreman William Harvey. At first Harvey told Moyers to lay off Wyrick and another employee, Calvin Turner, because these men were the last employees as- signed to the crew. Moyers thought the reason for the layoff was because Wyrick had been so openly talking on the job and he (Moyers) protested Tur- ner's layoff on the gound that Turner had not en- gaged in this activity. In the face of this objection Harvey dropped Turner from the discussion and settled on Wyrick. The basis for this selection was ostensibly that Wyrick was the last man assigned to this crew. Harvey gave conflicting testimony on this point and on cross-examination said that both men were hired last. When confronted by Moyers' statement that he could not understand how Turner was chosen because he was not a talker, Harvey readily agreed to the layoff of only Wyrick. It is clear that seniority had nothing to do with the layoff. This is that membership is available to such employees on the same terms and conditions generally applicable to other members and that membership is not denied or terminated for reasons other than the failure of the employee to tender the periodic dues and initia- tion fee uniformly required as a condition of acquiring or retaining membership RUST ENGINEERING COMPANY 651 borne out by other testimony of Moyers . It was not his idea to lay off Wyrick and it was well known that Wyrick opposed Fuller. Further that "I con- sidered that maybe somebody had figured he was doing too much talking and was causing confusion on the job, or something." Wyrick testified that when Moyers came to him with the termination slip, Moyers said, "They're gonna lay you off ... you know the reason why ." Harvey said that Moyers picked W ck. Employee Elmer Cox, whose testimony will be discussed more fully below, said that he was present when Moyers handed the termination slip to Wyrick and he overheard Moyers telling Wyrick that he did not want to lay him off-the selection for the layoff came from higher up. While Moyers denied that Harvey told him Fuller had picked Wyrick it is hard to un- derstand what all the mystery was about. It should be noted that Moyers stated unequivocally that he had never received instructions to prohibit the men from talking. The reasonable inference is that the layoff was due to Wyrick's openly expressed op- position to Fuller. 2. Conversation between Bennett and Miller Bennett, crew foreman of Miller, said Harvey came to him and told him to pick one man from his crew because there was going to be a layoff. He picked Miller on the ground that Miller wandered around and would not stay on the job to which he was assigned . On a number of occasions Bennett said he spoke to Miller concerning his not staying on his job. Miller denied he had been spoken to by Bennett. It is not denied that when Bennett gave Miller his termination slip he said he was sorry and that he (Bennett) had nothing to do with it. Em- ployee Cox testified that sometime before March 5 Fuller's hand-picked job steward, Ruel Ball, came on the job, spoke to both Cox and Miller, and warned them that if they did not stop campaigning against Fuller they would be fired. On the evening of the same day this warning was received Cox at- tended a meeting at the union hall. While there he went to see Fuller in his office. The men were alone . Fuller told Cox that he had received a telephone call from Oak Ridge (he refused to identify the caller) and that Miller and Cox were speaking against him. He warned Cox to quit this talk. Also Fuller told Cox to pass this message on to Miller. Fuller said further that unless the talk stopped both Cox and Miller would not continue working at Oak Ridge. Bennett was not an impressive witness . Miller spoke with vigor and while some of his testimony was exaggerrated I credit that part which was cor- roborated by Cox. Cox impressed me with his can- dor and directness. His corroboration covered that part of Miller's testimony concerning the warning- to both men and elaborated on to Cox when he was in Fuller's office. Fuller denied he had ever spoken to Cox in his office as related by Cox. I credit Cox. 3. Trip to Chattanooga It was not denied that some months before the layoff Bill Smith , Wyrick, and some other em- ployees took a trip to Chattanooga to see the Union's then business manager, Grover Tittle. The purpose of the trip was to complain to Tittle about the way union affairs were being conducted by Fuller and more particularly to protest the removal of Smith by Fuller from his position as job steward. 4. Miller and Wyrick speak to Graham After Wyrick and Miller received their termina- tion notices on March 5 they went to the office of Howell Graham, craft superintendent over the sheetmetal workers. They got there about 2:30 p.m. Upon arrival they found Graham with General Shop Foreman McMahan. Wyrick asked Graham why he had been laid off. Graham allegedly said he did not have anything to do with it, that Fuller had gone over his head and picked the layoff. The encounter in Graham's office took place while both Wyrick and Miller were angry and tough language was used by Wyrick . Miller had nothing to say during the conversation. Wyrick asked where Fuller was and when Graham told him that Fuller was in Respondent Rust's office in a meeting Wyrick demanded that Graham get him on the telephone. Graham got Fuller out of the meeting. Wyrick heatedly asked Fuller why he had been laid off. Fuller later confirmed that he replied he had nothing to do with the layoff and told Wyrick to go see his foreman about it. Further that if Wyrick wanted to see him, to come over to the Rust office and he (Fuller) would see him after his meeting was over. Graham testified as to the above incident as fol- lows in answer to a question by Rust's attorney on direct examination: Q. Did you tell them that your layoff was not your decision? A. If I said anything, I told them I had nothing to do with the layoff, which I didn't. Q. Did you tell them that John Fuller had anything to do with the layoff? A. No, I didn't tell them that for sure. Graham became rattled on cross-examination. He said he did not remember what happened in his of- fice, "ask Talmadge (Miller)." He said McMahan was not in the office during this confrontation- only 3 men were present: himself, Wyrick, and Miller. He attempted to explain his confusion by saying "you don't think clear when there's two fel- lows the size of him and Wyrick standing over you, redfaced." McMahan corroborated the fact that he was in Graham's office. He said Graham stated he had nothing to do with the layoff but when asked if Graham said anything about Fuller having picked the layoff McMahan said he did not recall such a statement. McMahan was not a convincing witness 652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and it is significant that he did not deny that Graham said anything about Fuller having picked the layoff but merely said he did not recall this re- mark. Miller naturally affirmed Wyrick's version of the conversation . Graham, as he recounted what took place in his office , relived his fear of Wyrick and even denied that McMahan was present during this incident. His testimony was so inconsistent and uncertain that he was an incredible witness . I credit Wyrick's version of what transpired in Graham's of- fice. 5. Wyrick and Miller confront Fuller Wyrick and Miller left Graham's office and reached the Rust personnel office shortly before 3 p.m. Upon their arrival they found a cluster of men standing outside. Approximately 10 to 12 men were there including most of the men laid off on that day. About 3 p.m. Fuller, accompanied by his job steward, Ruel Ball; Roscoe Jones, the Sheet Metal Workers International representative; and others, came out of the meeting that had taken place in Tinkham's office. This meeting concerned a ju- risdictional dispute between the Union and the IBEW which had nothing to do with the case at bar. When Fuller saw Wyrick and Miller he ap- proached them and said, "How are you doing." Miller replied, "How do you think we are doing when you just had us run off." Fuller denied he had anything to do with the layoff and told both men to see their foremen about this. At this point Miller dropped out of the conversation and a heated argu- ment developed between Wyrick and Fuller which was peppered with obscenities by both men. Wyrick accused Fuller of having had him laid off. Fuller denied he had anything to do with the layoff. Finally Wyrick said,"I don't know whether Fuller got mad or not." According to Wyrick, Fuller countered with, "If I did have you laid off what are you going to do about it?" Fuller's version of this episode is that after Miller made his opening re- mark, Wyrick took over the argument and called Fuller a "damn liar-you did have us laid off." Fuller rejoined, "I don't lay people off-I get them jobs. If you want to make something personal out of it, as far as I'm concerned, if you think I had you laid off, you can start something about it right now. f It is doubtful that in the course of a heated argu- ment Fuller's version was as cool and reasonable as he said it was. It is much more likely that he angrily retorted, "If I had you laid off what are you going to do about it." Miller testified Fuller said, "I had you laid off what are you going to do about it." Coppit, one of the men laid off who was a witness for the Respondents, testified that Fuller said, "If I did have anything to do with your layoff what the hell are you gonna do about it." Three other wit- nesses testified that Fuller prefaced his remark with the word "if." The best evidence on the point was provided by Wyrick himself who also agreed that Fuller started off with "If I had you laid off . . . . " While the testimony of all the witnesses to this in- cident concerns an event which took place 8 months before the hearing and the exact words may be blurred by the passage of time, there is no doubt that Fuller made the remark attributed to him con- cerning his part in the layoff. Even if it is assumed that Fuller was goaded into his rejoinder by the ag- gressive verbal attack made on him by Wyrick the fact remains that he lost his cool and I view his re- mark as an admission against interest which I credit. 6. Peace speaks with Graham C. O. Peace, employed as a welder by Respon- dent Rust, was presented by the General Counsel as a corroborating witness. He said Graham told him that Fuller said Peace had to be laid off. No finding has been made regarding this hearsay testimony. Peace further testified that after his layoff he gathered his tools together and about 4 p.m., after he had checked out, he was in front of the metal shop along the road waiting for his ride. The record shows that the following colloquy took place with Graham: Q. What did Graham say to you? A. He wanted to know why John Fuller was mad at me, why he was wanting me off the job and said that day that I had to be laid off. Although Graham denied he had told Peace that Fuller was responsible for the layoff, as I have al- ready found supra, Graham was an incredible wit- ness. I credit Peace. He was a forthright and candid witness. D. Respondents' Rebuttal Respondents took each of their 14 witnesses through a series of questions, the highlights of some of which will be summarized. Starting with Fred Tinkham, the general construction superintendent of the entire project and management's top super- visor, it was testified that Rust's general practice in the event of a layoff was as follows: Graham would be notified when a layoff of sheet- metal workers was to take place. He in turn notified his general foremen who passed the word down to the crew foremen. In such a case the number of men to be laid off was specified but not the names of particular employees. The employees were chosen mainly by the crew foremen and occa- sionally by the general foremen. Discretion is nor- mally vested in the crew foremen as to which in- dividuals were to be laid off. Some of Respondent Rust's supervisors (a line organization chart listing company supervisors is included in the record as a Rust exhibit) denied they were told who to lay off, denied Fuller had anything to do with selecting men for layoff, and said they did not know that campaig- ning was being conducted in favor of Smith and against Fuller. RUST ENGINEERING COMPANY 653 Much is sought to be made of the fact that Peace and Wyrick were rehired by Respondent Rust and Miller was referred by Fuller to a job with another company , Temperature Control, some weeks after he was laid off. It is the responsibility of the union business agent to send men out on jobs pursuant to the hiring hall provision of the agreement between the parties. The union election in which Smith was elected business manager took place on or about June 27 . Wyrick and Peace were rehired about July 18 as the result of being selected by Smith. Fuller was out of office by this time , had nothing to do with the rehiring of these men, and there is no evidence in the record that Respondent Rust, on its own initiative, sought out these men to offer them reemployment. There is testimony in the record detailing the time sequence of the delivery of termination slips to the men who were laid off. Fuller was in Chat- tanooga for 2 days prior to March 5. One of the purposes of this evidence was to prove that Fuller did not know some work had been taken away from the sheetmetal workers and awarded to the carpen- ters and this made a layoff of certain of his men in- evitable. This testimony is negated by Fuller's own statement on cross-examination that he knew some work had been taken away from his men a few days before the layoff took place. He had access to the telephone and had spoken many times in the nor- mal course of business to company representatives and certainly had ample opportunity to do so dur- ing a "few days" prior to March 5. Fuller also testified that he would have preferred that Wyrick and Miller had not been terminated because this gave the opposition a good propaganda weapon to use against Fuller and his slate "which they did use thoroughly." Obviously the best way to get rid of opposition is to eliminate it. Respondents at one point in the brief filed by Rust's attorney jointly on behalf of the Company and the Union, argue inter alia, that the Company had no knowledge that Wyrick and Miller were en- gaged in "protected activity" and that some of Rust's supervisors did not know such activity was going on. The same brief further on states that "all the sheet metal workers were discussing the upcom- ing union election and were talking for and against speculative candidates." The record contains a statement by Tinkham that there was so much talk- ing being done on the job that he might have found it necessary to enlist Fuller's aid in quieting the men down and this would have been proper. The fact is that Fuller testified he held two meetings, during lunch time on company property with com- pany permission , one in January and one in Februa- ry in the course of which he talked to the Com- pany's supervisors . Harvey corroborated this testimony by Fuller. In vigorous language he in- structed them to quit fighting among themselves, quit politicking on the job, and do their work in order to protect the reputation of their Union. It should be pointed out that all the Company's sheet- metal employees, including all supervisors up to and including Graham, were and are members of the Union . The activity of the dissident factions was indeed pervasive and was well known to both Rust and the Union . I find further that both Respondent Rust and Respondent Union knew that Wyrick and Miller played a conspicuous role in this activity. At another point in Respondents ' brief appears the statement that "There is no testimony as to threats by Fuller ... in the event that Miller didn't keep his mouth shut." Cox testified credibly that Fuller told him directly that if Cox and Miller did not keep their mouths shut they would not be work- ing at Oak Ridge and to pass on this word to Miller. Fuller's denial that he had such a conversation with Cox is not credited. Peace was laid off under questionable circum- stances. It is not disputed that he was both a good worker and had been employed on the project longer than any other man. He was laid off by his crew foreman, Fred Ballew . Ballew testified that Bo Peace came up to him and said , "Ballew, I hear there's going to be a layoff today, am I in it?" Bal- lew said, " Yeah, you are, Bo." Ballew explained his choice of Peace by saying that nobody likes to lay off anybody but since Peace seemed to be expect- ing a layoff Ballew's otherwise difficult task was made easy by Peace's question. It seems improba- ble that Peace, a satisfactory employee and-one of the oldest workers on the property , was chosen on the basis given by Ballew . I do not credit Ballew's explanation of the layoff especially since Ballew also told Peace in the same conversation that he hated to see him go but would lose his job if he did not do so . Ballew, according to Peace whom I credit, said he had orders to let Peace go. The fact of the matter is that Peace disliked Fuller, had made this well known on the job, and the natural inference is that Fuller caused his layoff. Peace secured a new job immediately after his layoff. He was not named in the complaint . Peace was rehired in July through Smith 's efforts and when Smith was the business manager . Peace was appointed by Smith as a union steward. Concluding Findings and Analysis There is no doubt that the employees, Respon- dent Rusk, and more particularly the Union's busi- ness agent, John Fuller, knew there was an articu- late dissident faction of the said Union engaging in rampant campaigning on the property directed against Fuller. It is also clear that the usual procedure operative on the project regarding layoffs was not followed on March 5. Furthermore the crew foremen , Ballew, Bennett , and Moyers, did not themselves pick the Charging Parties and Peace for layoff in the normal exercise of the dis- cretion vested in them . Nor did General Foreman Harvey or General Shop Forman McMahan make the decision to lay off the above employees. Most remarkably the craft superintendent over the sheet- 654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD' metal workers, Graham, admitted that he did not pick Wyrick and Miller to be laid off. There is no clear evidence to show that Timkham himself par- ticipated in the selection of the individuals to be let go on March 5. There is credible evidence that Graham knew the selection was made by Fuller because he said so on two specific occasions: once to Wyrick and Miller in his office and secondly to Peace . Iq this connection Graham 's knowledge is imputed to the Company. Standing alone the somewhat equivocal state- ment by Fuller at the time of his confrontation with Wyrick and Miller that "If I had you laid off what are you going to do about it" would not be deter- minative of this issue . But when taken together with Graham 's- remarks to the Charging Parties and then coupled with Graham 's further conversation with Peace, the pattern of discrimination comes into focus. The further corroboration by Cox that Fuller threatened to fire Miller and Cox for campaigning against him causes the threads of testimony to in- tertwine into a convincing fabric. The fact that Fuller and all Rust's supervisors de- nied that Fuller had anything to do with the layoff was not convincing . The burden of proof on General Counsel must consist of credible evidence and is not countered by the kind of cumulative evidence adduced by the Respondents ' witnesses echoing its position by denying that Fuller had any role in selecting employees to be laid off . It must be borne in mind that the testimony of Wyrick , Miller, and Peace came from unsophisticated men who spoke their piece with candor and directness. It is unreasonable to assume that they manufactured their recitals out of whole cloth . This conclusion is further borne out by the shifting reasons given by Harvey for the selection of Wyrick and by the direct testimony of Moyers . While Moyers did not explicitly name Fuller as the instigator of the ter- minations this judgment is the reasonable inference to be drawn from what he did say . How can it be otherwise explained that supervisors of the Com- pany made the statements that were made by them about Fuller. It was against their interest to so testi- fy. One of the points made by the Company in rebuttal is that Smith, the man on whose behalf Wyrick and Miller were compaigning , was not laid off. If Smith had been let go Respondent's dis- crimination would have been transparently obvious. The facts show that at the time of the events herein, Fuller thought he would be facing Smith in an upcoming union election and Wyrick and Miller were dissident members of the Union engaging in politicking in favor of Smith and against Fuller. The asserted reason for the terminations was that the Respondent Union had lost some of its work as the result of an award of this work to another union. This was pretextual because the real reason Fuller demanded the discharge of Wyrick and Miller was, to retaliate against them for being involved in the campaign against him . The evidence convinces me that Wyrick and Miller were discharged because of their union and concerted activity of protesting the manner in which Fuller was conducting the Union's affairs. Rust, at the instigation of Fuller, discharged them for this reason. Such discriminatory action by Respondent Rust encourages membership in the Union by compelling obedience to its business agent. By this conduct Respondent Union violated Section 8(b)(1)(A) and ( 2) of the Act, and Respondent Employer violated Section 8 (a)(3) and (1) of the Act when it terminated Wyrick and Miller for reasons other than the nonpayment of in- itiation fees and dues.3 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in sec- tion III, above, occurring in connection with the operations of the Respondent Company described in section I, above , have a close , intimate, and sub- stantial relationship 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 Respondents engaged in con- duct violative of the Act, I shall recommend that Respondents be ordered to cease and desist from engaging in such conduct, and take such affirmative action as appears necessary to effectuate the pur- poses of the Act. The record indicates that Henry Wyrick was rein- stated in July 1969 and presumably is presently em- ployed in the position he held at the time the unfair labor practices were committed against him. If this is not the case I shall recommend that Respondents be ordered to cease and desist from engaging in such conduct, and take such affirmative action as appears necessary to effectuate the purposes of the Act. I shall recommend that Respondent Company be required to offer Wyrick and Talmadge Miller, without prejudice to their seniority and other rights and privileges, immediate and full reinstatement to their former or substantially equivalent positions. I shall also recommend that Respondents , jointly and severally , be required to make Wyrick and Miller whole for any loss of earnings they suffered by reason of the discrimination against them , as pro- vided in F. W. Woolworth Company, 90 NLRB 289, with interest at 6 percent per annum , as provided in Isis Plumbing & Heating Company , 138 NLRB 716. As to Respondent Sheet Metal Worker 's Interna- tional Association-Local 51, it will be recom- mended that it cease and desist from threatening employees with economic harm because of their ac- Air Flow Sheet Metal, Inc, 160 NLRB 1653 RUST ENGINEERING COMPANY tivities on behalf of a dissident faction of the Union, and cease and desist from attempting to cause Respondent Rust to terminate employees or other- wise discriminate against them because they engage in activities on behalf of a dissident faction of the Union. Upon the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent Company is engaged in com- merce within the meaning of Section 2(6) and (7) of the Act and Respondent Union is a labor or- ganization within the meaning of Section 2(5) of the Act. 2. Respondent Employer and Respondent Union have a valid union-security agreement within the meaning of Section 8(a)(3) of the Act. 3. By discriminating in regard to the hire and tenure of employment of Wyrick and Miller, thereby encouraging membership in Respondent Union, Respondent Company has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(a)(3) and (1) of the Act. 4. By causing Respondent Company to dis- criminate against Wyrick and Miller in violation of Section 8(a)(3) of the Act, the Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(2) and (1)(A) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Respondent Rust, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Encouraging membership in the Respondent Union by terminating employees or in any other manner discriminating in regard to the hire or tenure of employment or any term or condition, ex- cept to the extent permitted by the proviso to Sec- tion 8(a)(3) of the Act. (b) In any like or related manner interfering with, restraining , or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which will effectuate the policies of the Act: (a) If Wyrick is not presently employed by the Company, offer Wyrick and Miller immediate rein- statement to their former or substantially ' In the event that this Recommended Order be adopted by the Board, the words "a Decision and Order " shall be substituted for the words "the Recommended Order of a Trial Examiner " in the notice In the further event that the Board 's Order be enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Ap- peals, Enforcing and Order " shall be substituted for the words "a Decision 655 equivalent positions without prejudice, and jointly and severally with Respondent Union make them whole for any loss of earnings suffered as a result of the discrimination against them in the manner and to the extent set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Recommended Order. (c) Notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (d) Post at its Knoxville, Tennessee, operation, copies of the attached notice marked "Appendix A." 4 Copies of said notice, on forms provided by the Regional Director for Region_ 10, after being duly signed by the Respondent Com- pan y's representative, shall be posted by it im- mediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent Company to insure that said notices are not altered, defaced, or covered by any other material. (e) Post at the same places and under the same conditions as set forth in (d) above, as soon as they are forwarded by the Regional Director, copies of the Respondent Union's attached notice marked "Appendix B." (f) Notify the Regional Director for Region 10, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.5 Respondent Union, Sheet Metal Worker' s Inter- national Association-Local 51, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Threatening employees with loss of jobs or attempting to cause the Company to discriminate against employees because said employees protest or oppose the conduct of the Union or its officers, or are believed to be related to or associated, allied, or sympathetic with those opposing or protesting such conduct or otherwise engage in activities pro- tected by Section 7 of the Act. (b) In any like or related manner restraining or and Order " ' 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 " 656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD coercing employees of the Company in the exercise of rights guaranteed by Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor or- ganization as authorized in Section 8(a)(3) of the Act. 2. Take the following affirmative action which will effectuate the policies of the Act: (a) Notify Rust Engineering Company, in writ- ing, that it withdraws all objection to the employ- ment of Henry Wyrick (unless he is presently em- ployed by Respondent Rust) and Talmadge Miller individually, and that it requests the Company to offer them immediate and full reinstatement to their former or substantially equivalent employ- ment. (b) Post at the Respondent Union's business of- fices and meeting halls copies of the attached notice marked "Appendix B. "s Copies of said notice, on forms provided by the Regional Director for Region 10, after being duly signed by Respon- dent Union's authorized representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its members are customari- ly posted. Reasonable steps shall be taken by Respondent Union to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 10, in writing, within 20 days from the receipt of this Decision , what steps have been taken to comply herewith.7 3. In addition, Respondent Union shall take the following affirmative action to effectuate the poli- cies of the Act: Jointly and severally with Respondent Company make Henry Wyrick and Talmadge Miller whole for any loss of pay they may have suffered by reason of the discrimination against them in the manner set forth in the section of this Decision entitled "The Remedy." e See fn 4, supra ' See fn 5, supra APPENDIX A NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government We hereby notify our employees that: WE WILL NOT interfere with, restrain, or coerce employees in regard to their rights to engage in union or other concerted activity for the purpose of collective bargaining and other mutual aid and protection. WE WILL NOT encourage membership in Sheet Metal Worker's International Associa- tion-Local 51, or any other labor organiza- tion , by discharging or laying off employees or otherwise discriminating against them or in any other manner discriminating in regard to hire or tenure of employment or any other term or condition of employment, except to the extent permitted by the proviso to Section 8(a)(3) of the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our em- ployees in the exercise of the rights guaranteed in Section 7 of the Act. WE WILL jointly and severally with Sheet Metal Worker's Association-Local 51, make whole Henry Wyrick and Talmadge Miller for any loss of pay they may have suffered as a result of the discrimination against them. WE WILL reinstate Talmadge Miller and Henry Wyrick (if he is not presently employed by us) to their former positions without preju- dice to their seniority or other rights and priveleges they previously enjoyed. RUST ENGINEERING COMPANY (Employer) Dated By (Representative) (Title) Note: We will notify Henry Wyrick and Talmadge Miller, if presently serving in the Armed Forces of the United States, of their right to full reinstate- ment upon application, in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. 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, Peachtree Building, Room 701, 730 Peachtree Street, NE., Atlanta, Georgia 30308, Telephone 404-526-5760. APPENDIX B NOTICE TO MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government We hereby notify all member of Sheet Metal RUST ENGINEERING COMPANY Worker's International Association-Local 51, that: WE WILL NOT restrain or coerce employees in regard to their rights to engage in union and other concerted activities for the purpose of collective bargaining and other mutual aid and protection, by threats of discharge and other reQriisals. WE WILL NOT cause or attempt to cause Rust Engineering Company, or any other employer, to discriminate against Henry Wyrick and Tal- madge Miller or any other employee because they campaigned against a union business agent or for any other reasons other than their failure to tender the periodic dues and initia- tion fees uniformly required as a condition of acquiring and retaining membership in our Union where they are required to tender them under a collective-bargaining contract. WE WILL NOT restrain or coerce employees by any like or related acts in regard to their rights under Section 7 of the Act to engage in union or other concerted activities for pur- poses of collective bargaining and other mutual aid or protection, except to the extent such right may be affected by an agreement requir- ing membership in a labor organization as a condition of employment as authorized by Sec- tion 8(a)(3) of the Act. WE WILL notify Rust Engineering Company 657 that we have no objection to the reinstatement of Talmadge Miller and Henry Wyrick (if he is not presently employed by Rust Engineering Company), and we will make them whole jointly and severally with Rust Engineering Company for any loss of earnings, including in- terest, they may have suffered as the result of the discrimination against them. Dated By SHEET METAL WORKER'S INTERNATIONAL ASSOCIATION-LOCAL 51 (Labor Organization) (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, Peachtree Building , Room 701, 730 Peachtree Street, NE., Atlanta, Georgia 30308, Telephone 404-526-5760.