United Slate, Tile and Composition Roofers

UNITED SLATE, TILE AND COMPOSITION ROOFERS 851 United Slate, Tile and Composition Roofers, Damp and Waterproof Workers Association, Local Union No. 106, AFL-CIO (Midwest Roofing and Insula- tion Co., Inc.) and Joseph A. Knight and Sherman T. Nance. Cases 25-CB-1299 and 25-CB-1405 April 3, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On August 1, 1972, Administrative Law Judge i Eugene F. Frey issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting brief and the General Counsel filed limited exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein. The Administrative Law Judge found that the Respondent Union had violated Section 8(b)(1)(B) both by its refusal to readmit Joseph A. Knight, as a supervisor, to membership because he had worked for a struck employer, and by its refusal to permit Knight, as a supervisor, to work with the tools of the trade in accordance with the instructions of his employer. We agree with the Administrative Law Judge that the refusal to permit Knight to work with tools was violative of the Act, but we do not agree that the Respondent Union was obligated to readmit Knight to membership. As set forth more fully in the Administrative Law Judge's Decision the Respondent Union repeatedly refused to permit Knight to work with tools of the trade because he was not a member of Respondent Union. The proscriptions against Knight in his use of tools were applied whether Knight was employed in his capacity as a nonworking supervisor or in his function as a supervisory working foreman. The Union enforced its proscriptions by repeated threats to close down jobs on which Knight had been employed. This culminated in a strike and picketing of Midwest's shop which was terminated only by Midwest's capitulation to the Respondent Union's demand by completely removing Knight from the roofing trade and assigning him to the job of yardman at less than half the pay of a journeyman roofer. Section 8(b)(1)(B) of the Act prohibits restraint and coercion of an employer, by a labor organization in the employer's selection of representatives for bar- gaining purposes or the adjustment of grievances. Supervisors are, of course, representatives of the employer for such purposes and a labor organization therefore may not compel the employer to take punitive action against a supervisor which will have the necessary effect of diluting or destroying the loyalty of the supervisory representative to which the employer is entitled.2 It is clear, in this case, that Knight was not permitted to use the tools of the trade in his supervisory capacities because he was not a member of the Respondent Union and, by thus refusing to permit him to do so, by threats to close down jobs, picketing, and striking, the Respondent Union was coercing and restraining Midwest in its selection of its bargaining representative. This conduct of the Respondent Union, as the Administrative Law Judge found, was plainly violative of Section 8(b)(1)(B) of the Act. The Administrative Law Judge further concluded, however, that the Respondent Union had also violated Section 8(b)(1)(B) of the Act by its refusal to readmit Knight to union membership. He found that the refusal had its genesis in July 1970 when Knight had been expelled from membership in the Respon- dent Union because he had worked as a supervisor for Midwest at a time when the Respondent Union was conducting a strike against that company. He held that use of the evidence of Knight's expulsion in July 1970 did not contravene the provisions of Section 10(b) although the expulsion antedated the beginning of the 10(b) period by some 10 months 3 and that such an imposition of union discipline on a representative of an employer was clearly interdicted by the provisions of Section 8(b)(1)(B). We do not adopt the Administrative Law Judge's conclusion with respect to Respondent's refusal to readmit Knight to union membership. However illegal Respondent's initial expulsion of Knight from membership may have been, that occurred in July 1970, far beyond the 10(b) period. No timely charge was filed with respect thereto. The Charging Party may not nullify the effects of the 10(b) bar by thereafter reapplying for membership, and then filing a charge based on Respondent's more recent action, since this action was in essence merely a reaffirma- tion of Respondent's earlier, time-barred conduct. I The title of "Trial Examiner" was changed to "Administrative Law AFL-CIO (Wisconsin Electric Power Company), 192 NLRB No. 16, and Judge" effective August 19, 1972 cases cited therein 2 Local Union No 2150, International Brotherhood of Electrical Workers, 3 The charge was filed on October 22, 1971 202 NLRB No. 127 852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We therefore find no violation in Respondent's refusal to readmit Knight to membership.4 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge as modified below and hereby orders that Respondent, United Slate , Tile and Composition Roofers, Damp and Waterproof Workers Association , Local Union No. 106, AFL-CIO, Evansville , Indiana, its officers, agents, and representatives , shall take the action set forth in the Administrative Law Judge 's recommend- ed Order, as so modified: 1. Substitute the following for paragraph 1(a) of the recommended Order: "(a) Restraining and coercing Midwest Roofing and Insulation Co., Inc., in the selection of represent- atives for the purposes of collective bargaining or the adjustment of grievances , by preventing such repre- sentatives by threats of work stoppage or other reprisals from working with tools as and when required by their employer, by threatening to strike and actually striking said Employer at its main place of business or at any of its jobsites because any such representatives work with tools as required by their Employer, or by causing said Employer to reassign such representatives to nonworking supervisory jobs or work not covered by the contract between said Employer and Respondent, or to discharge such representatives." 2. Substitute the attached notice for the Adminis- trative Law Judge's notice. 4 In the section of his Decision entitled "The Remedy" the Administra- tive Law Judge inadvertently stated that Knight had sustained loss of earnings from April 22, 1972, rather than from April 22, 1971 This inadvertence is hereby corrected Member Jenkins does not rely on the reasoning set forth in this paragraph and would adopt the Administrative Law Judge's Decision APPENDIX NOTICE TO MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT restrain or coerce Midwest Roofing and Insulation Co., Inc., in the selection of representatives for purposes of collective bargaining or adjustment of grievances, by preventing such representatives by threats of work stoppages or other reprisals from working with tools as and when required by their Employ- er, by threatening to strike and actually striking their Employer at its main place of business or any of its jobsites because any such representa- tives work with tools as required by their Employer, or by causing their Employer to reassign such representatives to nonworking supervisory jobs, or to work not covered by the contract between said Employer and our organi- zation, or to discharge such representatives. WE WILL NOT in any other manner restrain or coerce the above-named Employer or any other employer in the selection of its representatives for purposes of collective bargaining or the adjust- ment of grievances. WE WILL notify Midwest Roofing and Insula- tion Co., Inc., in writing that we have no objection to its employment of Joseph A. Knight as a supervisor working with tools at its main place of business in Evansville, Indiana, or on any of the projects of said Employer within or outside our territorial jurisdiction, and we will send a copy of said notice to Joseph A. Knight. WE WILL make Joseph A. Knight whole for any loss of earnings he may have suffered since April 22, 1971, as a result of our unlawful conduct. UNITED SLATE, TILE AND COMPOSITION ROOFERS, DAMP AND WATERPROOF WORKERS ASSOCIATION, LOCAL UNION No. 106, 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 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, 614 ISTA Center, 150 W. Market Street, Indianapolis, Indiana 64204, Telephone 317-633-8921. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE EUGENE F. FREY, Trial Examiner: This case was tried before me at Evansville, Indiana, on May 16 and 17, 1972, UNITED SLATE, TILE AND COMPOSITION ROOFERS with all parties participating through counsel, after pretrial procedures conducted in accordance with the National Labor Relations Act, as amended, 29 U.S.C. Sec. 151, et seq. (herein called the Act). The issues raised by the pleadings' are whether Respondent, the above-named Union, has coerced and restrained Midwest Roofing and Insulation Co., Inc. (herein called the Employer), in its selection of representatives for purposes of collective bargaining and adjustment of grievances, by (1) denying the application of Joseph A. Knight, a working supervisor employed by the Employer, for reinstatement to member- ship in the Union because he worked for the Employer during a strike, thereby denying him certain benefits of members of the Union and restricting his right to work with tools like other supervisors of the Employer who are members of the Union, and (2) causing a strike at the Employer's plant to force it to reassign Knight to a nonworking supervisory job or to discharge him, for the above conduct and/or because of lack of membership in the Union, in violation of Section 8(b)(1)(A), (B), and (2) of the Act. At close of the testimony, I reserved decision on motions of General Counsel for "judgment on the record" and of Respondent for dismissal of the complaint on the merits; both motions are disposed of by my findings and conclusions herein. Respondent presented brief oral argument, but all other parties waived that right. All parties filed written briefs which have been carefully considered by me in preparation of this Decision which was signed and released by me on July 28, 1972, for distribution to the parties in the usual course.2 Based on a review of the entire record, observation of demeanor of witnesses on the stand, and analysis of the briefs submitted, I make the following: FINDINGS OF FACT 1. JURISDICTION AND LABOR ORGANIZATION Respondent is a labor organization within the meaning of Section 2(5) of the Act. At the pertinent times mentioned below, Bobby R. Williams was the business agent of Respondent, and Felix Goins was its president and a member of its executive board. The Employer is an Indiana corporation with its principal office and place of business at Evansville, Indiana, where it is and has been engaged as a roofing and insulation contractor in the construction industry. During the year prior to issuance of the complaint, the Employer had direct inflow of goods and materials valued in excess of $50,000, and in the same period performed services valued in excess of $50,000 in States other than Indiana. I find that the Employer is now and at all material times herein has been an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. ' The issues arise on a complaint issued April 17, 1972, by the Regional Director for Region 25, after Board investigation of charges filed in Case 25-CB-1299 on October 22, 1971, by Joseph A Knight, and in Case 25-CB-1405 on March 9, 1972, by Sherman T Nance, and answer of Respondent denying the commission of any unfair labor practices 2 A motion of General Counsel, filed June 12, 1972, for correction of the II. THE ALLEGED UNFAIR LABOR PRACTICES A. The Basic Facts 853 Since August 10, 1970, Midwest has been operating under a collective-bargaining agreement between the Union and Associated General Contractors of America, Evansville Chapter, of which Midwest is a member. This is the latest in a series of similar contracts under which Midwest has operated. Joseph A. Knight was hired by Midwest in 1958 and worked continuously for it as a journeyman roofer and at times working foreman at an hourly rate under the above contract until the Union struck AGC and its members, including Midwest, on May 1, 1970. Knight took part in the strike several weeks after May 1, then quit Midwest to work for a local gasoline service station until June 20. The strike continued until August 10, 1970. However, Knight returned to work for Midwest during the strike and worked as supervisor of a Midwest job in Paducah, Kentucky, which was manned by a roofing crew of six or seven journeymen including a working foreman, all procured from Paducah Local 802 of the Association.3 As supervisor at Paducah, Knight was paid a straight salary for a 40-hour week, and had authority to hire roofers through the union hiring hall, discharge them, lay them off, and fully supervise their operations. When he took over the job, Knight discussed Respondent's strike against Midwest with the business agent of Local 802, who said he would supply men, as his local was not on strike. Several days after the job began, when Knight was assisting roofers in rolling out base felt sheets, Williams and the then president of the Union came to the site, and Williams told Knight that he should not be working on the job while the Union was on strike against Midwest, and that if he did not stop he might lose his membership in the Union. Williams asked Knight to close the job down within an hour. Knight refused. Williams then said they would give him until that night to shut it down, and would say nothing about it if he did, but if he did not Williams would file charges against him in the Union. Knight replied he would have to do that, as Knight would not shut it down. Late in June, Williams filed a charge against Knight with the Union for violation of article IX, section 6, paragraph (m) of the Union's constitution which provided for charges against any member who knowingly worked for or remained in the employment ' of an employer whose men were on strike or locked out, unless he had permission of the Union or the Association. On due notice to Knight, a hearing on the charge was held July 7, 1970, before the membership of the Union Knight did not appear and was expelled from the Union and his card revoked on July 13, 1970. At the same time, two other Midwest employees, Bobby Renfrow and Basil Embry, were expelled for the same reason. Thereafter, Respondent refused to accept dues from Knight, either by checkoff or otherwise. record in certain respects, has not been opposed by other parties, and is hereby granted, the record is corrected accordingly, and the original motion is marked as G C Exh 16 3 The parent labor organization of which Respondent is a local will be called herein the Association 854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Paducah job finished late in July, and Knight then worked on several other Midwest jobs in the Olney, Illinois, area, with the same supervisory duties, which included assignment of men to various tasks on a job, transferring them from task to task , giving them overtime when necessary, and controlling the quality of their work. In doing this, he received no personal or direct supervision from Midwest officers . He then worked at the Midwest shop as a working foreman working with tools until the employees refused to work with him because he was nonunion Knight quit Midwest about October 1, 1970, and worked about a year for a concern in Owensboro, Kentucky. In October 1971, he returned to work for Midwest as a nonworking supervisor with the duty of securing men for jobs and travelling daily from job to job, checking performance, equipment, etc. on each . In that capacity, he was paid a weekly salary of $222, which was paid 52 weeks a year regardless of the availability of jobs. At first, he personally supervised a schoolhouse job in November and December 1971, and after that went from job to job checking the work and quality, and making sure men were kept busy. On these jobs, Prentice West was usually the working foreman . West worked with tools, Knight did not, but gave orders to West on all these j obs . The crews varied from 6 to 10 men. On one of them, Knight once picked up a broom to sweep rock because it was cold , and he wanted to keep warm West told him he could not do that . Knight said he was cold. West said he did not care if he was, he must put the broom down, or the men would walk out if he did not. Knight acquiesced . On this job, which ran into January 1972, Knight acted as working foreman for about the last week, along with West, but with no change in his salary. He still gave orders to West, as well as the crew directly, while using the tools. After this job, Knight handled jobs in and around Evansville as working foreman, supervising crews and assigning them to jobs from the start in the same way as above ; he often switched men in tasks on the job to make them work better. He handled all complaints on the job as in the past, and let men go home on sick leave as necessary. He collected the timecards on the crew daily and made out foremen's timesheet listing all with their work hours. He was also responsible for all company tools, materials, and property on each job , and to see that all machinery was in working order. He also enforced safety rules on the job . He was the top company boss on each job, unless President Sherman T. Nance or Superintendent Frederick E. Triplett came on the job for a visit. Early in May 1971, Knight sent a written plea to the Association for assistance in getting reinstatement in the' Union citing his desperate need for employment to support a large family , yet the Union refused to accept his dues, though he still had his card He received a reply dated May 10, 1971, advising that he had been expelled by the Union on July 13, 1970, and that since he did not appeal that action to the executive board of the Association within 30 days as required by its constitution and bylaws, the Association would take no action on it. After he returned to work for Midwest in October 1971, Knight had several talks with Williams about reinstate- ment to membership in the Union . On a job in Morgan- field, Knight asked him in the presence of Union President Goins if there was any chance of getting his union card back . Williams said he did not know , but the Union needed men like him, and he would do everything he could to get his card back . Later Williams told him he brought the matter before the union committee several times, but they turned down his application and would not talk about it. Once, when talking to Knight, Williams said Bobby Renfrow would also want his card back if Knight got his. Knight replied Renfrow did not want his , as he got hurt on a fall from a roof and quit the roofing game . Williams indicated there were others who had been expelled about the same time who would want their cards back. On a job in early 1972, where he supervised a crew of five, with West as foreman, Knight picked up a broom and swept a few rocks . As he did Steward John Funk quit work and left the jobsite ; Knight assumed he was going to call Williams, so threw down the broom . Funk returned to the job shortly, and then Williams came onto the site and approached Knight, who told Williams he had swept a few rocks to keep from getting so cold. Williams said he had several complaints about Knight, but felt it did not amount to anything, yet the men kept calling him about Knight. Knight again asked about his card, and Williams replied he did not know, "they" kept turning it down , and he did not know whether Knight would ever get it back, that if it was up to him he would get it, but it was up to the union committee. On February 29, 1972, Williams told President Nance in the latter's office that he would have to file a grievance against Midwest under the contract because Knight was working On March 1, the Union filed the grievance, claiming Midwest violated articles 1 and 5 of the contract by having Knight, as a supervisor , do bargaining unit work when nonsupervisory employees were not working, and was thus hiring employees without giving the Union the required 16 hours' notice of need for workmen. At a March 3 meeting of the joint board created to consider the grievance , Williams contended that Knight should not do journeyman's work with tools, but could be used only as a nonworking supervisor because he was not a member of the Union , that the Union had j ourneymen who were without work, and that Midwest should have given the requisite 16 hours' notice before using Knight on journeyman's work. Nance admitted lack of notice, but argued Knight had been transferred to personal work for Nance, hence the notice rule did not apply. He also argued that he needed Knight as a working foreman to work with tools, not as a nonworking supervisor . In the discussion, one board member suggested that the Union accept Knight's application for reinstatement , and hold the problem in abeyance "until settlement by the NLRB." Williams replied only the executive board of the Union could make that decision; when another board member asked Williams if the Union would admit Knight to membership if he applied, Williams said "No," but gave no reasons. After private discussion, the joint board dead- locked and took no action. Shortly after this, Williams told Nance that if he continued to let Knight work with tools he was violating UNITED SLATE, TILE AND COMPOSITION ROOFERS 855 the contract, since Knight was a "superintendent," and that the Union would have to put up pickets again. On March 9; 1972, the Union began picketing the Midwest shop, with a sign announcing that Midwest was violating its contract. Midwest employees did not cross the picket line to work; and, as working foremen Prentice West and Harvey Embry were doubtful about crossing the picket line, Triplett and Nance also sent them home. Nance sent Knight to his own home to do work for him. When the picket line was first set up, Foreman Willie Alexander told Knight that as long as he worked there, the men would not work. On the second day of the picketing, Triplett asked Williams, who was in his car near the picket line with Shop Steward John Funk and Foreman Alexander, if the strike was still on or if the men would work . Williams replied that the Union was not on strike, that it was only an "informational" picket to show the type of people the Union had to deal with, and that the Union was not preventing anyone from working for Midwest. Triplett then asked Funk and Alexander in the presence of Williams if they would go to work, and both said "No." Thereafter, no union members worked. The picketing was stopped on April 29, 1972, after a settlement following a preliminary hearing on application for an injunction before the United States District Court in Indianapolis, Indiana. Knight apparently stayed on the Midwest payroll until April 28, 1972, but since that date has worked only at odd jobs personally for Nance at a low rate of pay. Nance held conferences with Williams and the union attorney on March 18 and 20, to try and settle the strike amicably. On March 20, when Williams asked Nance to put his settlement proposal in writing for submission to the Union's executive board, Williams commented "if you get rid of the s.o.b., your troubles are over." Nance replied that Knight was not an "s.o.b." and he would not get rid of him. That night Williams presented the Midwest settlement proposed to the executive board, and the next morning told Triplett that the Board had turned it down, that "they did not want Knight working" as they were afraid that if they gave him his card back, it would set a precedent, so the Union would continue to picket. Triplett replied that Midwest would continue to work, and that day Nance, Triplett, mechanic Basil Embry, and Knight continued a roofing job which had been shut down by the strike, doing the work themselves while a union picket paraded at the site None of the four were members of the Union. After meetings of the Joint Board on April 3 and 14 to consider a resubmission of the Knight grievance as suggested by a judge of the United States District Court, the Board found both Midwest and the Union in violation of sections I and V of the contract, directed both to comply strictly with those clauses in the future, but ruled that Midwest had a right to recall an employee who has worked for it after notifying the Union. On April 8, 1972, Knight made formal written applica- tion at the union hall for a membership card. On April 16, he applied in writing to Williams at the hall for placement on the waiting list for roofer's employment , pursuant to article V of the contract. Williams told him he could not get on the list as he was a supervisor , so there was no use his trying it. Triplett, who accompanied Knight, asked "you are never going to let him get in?" and Williams replied "No." The Union never made any formal reply to Knight's two applications. In a discussion on April 24, Williams and Steward Funk asked Nance what he would do about Knight working, saying union roofers would return only if he did not work. After conferring with his attorney, Nance offered to lay off Knight pending the hearing on the charges before the NLRB. After discussion, Williams and Nance agreed that the roofers would return to work conditioned upon Midwest demoting Knight to yardman, doing only cleanup work and odd jobs, but no roofer work handling any roofers' equipment or materials . Since that time Knight has performed only odd jobs around the Midwest shop and at Nance's home, at a pay rate of $3.50 an hour , as contrasted with the then basic contract rate of $7.55 an hour for journeymen roofers, and the $5-an -hour rate for roofers' helpers.4 B. Contentions of the Parties, and Ultimate Findings and Conclusions Thereon The basic issue is whether Respondent violated Section 8(b)(1)(B) of the Act by refusing at various dates on and after April 22, 1971 (the earliest date included within the statutory 6-month period prior to filing of the initial charge herein), to readmit Knight to its membership after having previously expelled him from membership and enjoyment of certain rights and benefits incidental thereto because he had continued to work as a supervisor for Midwest during the 1970 strike directed at that employer, among others, and by such conduct affected his loyalty to Midwest and restricted that employer in its right to use Knight 's services as it desired . The corollary issues are (1) whether Knight was in fact a supervisor within the meaning of the Act at the time of his expulsion and during his later employment by Midwest, particularly during his unsuccessful efforts in 1971 and 1972 to regain membership in the Union, (2) whether the circumstances of the 1970 expulsion can be considered as evidence bearing on the character and legality of the Union's actions toward him on and after April 22, 1971, and (3) whether Respondent's strike against Midwest in March and April 1972 was for the purpose of forcing Midwest to reassign Knight to a nonworking supervisory status, divorcing him from roofers' work entirely, or discharging him, because he was not a member of Respondent, in violation of the Act. On the second point , Respondent argues that, as the events of 1970 are outside the 6 -month period of limitation created by Section 10(b) of the Act, they cannot be considered either for purpose of finding a violation of the Act thereon, or to illuminate or color events within the 6- month period. General Counsel concedes, and I agree, that the 1970 expulsion of Knight cannot now be the basis for a finding of violation of the Act by that conduct, but it is I The above facts are found from credited and uncontradicted testimony of witnesses called by General Counsel , including Williams , documentary evidence, and stipulated facts Respondent did not present any witnesses or other proof in support of its defenses 856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD well settled that such earlier conduct may be considered by the Board as background evidence "to shed light on the true character of matters occurring within the limitations period," where occurrences within that period in and of themselves may constitute, as a substantive matter, unfair labor practices and "for that purpose, Section 10(b) ordinarily does not bar such evidentiary use of anterior events." Local Lodge 1424, JA M, et al v. N L.R.B. (Bryan Manufacturing Co.), 362 U.S. 411, 416; N.L.R.B. v. Stafford Trucking, Inc., 371 F.2d 244 (C.A. 7). Hence, I must consider the circumstances of the 1970 expulsion, the status of Knight as a Midwest employee at the time and later, and the Union's attitude toward him after the expulsion. I find from credited testimony of Nance and Triplett, with corroboration from Knight and Williams that: Prior to his expulsion from the Union, Knight and other working foremen of Midwest (such as Harvey Embry, Prentice West, and, at times, Felix Goins) coming from the rank of the union membership had authority on jobs within the territorial jurisdiction of the Union to assign roofers in their crews to various jobs according to their abilities, to transfer them from task to task on any job, to require them to work overtime when necessary, and grant them sick leave, to see that they did their tasks properly, to adjust grievances on the job among the crew members, and effectively to recommend their employment, or their layoff or discharge for poor performance. In addition to these duties, when Knight and other working foremen at times worked as a technical "supervisors" or "superintendents" over one or more jobs in other areas (as when Knight supervised the operation in Paducah, Kentucky), they were also authorized to hire roofers directly from the hiring hall of the local union having jurisdiction in that area, and to discharge or lay workers off on their own initiative, because of the normal absence of President Nance and other top management officials from such jobs. When performing these duties Knight and at least two other working foremen (West and Embry) were paid a guaran- teed annual salary computed at $222 per week for 52 weeks each year, in contrast to the hourly union scale paid under the contract to journeymen roofers only as and when they worked Whether acting as working foreman on one job, or roving supervisor on several, these employees also worked as journeymen with tools on each job as needed. Hence, in either capacity it is clear, and I find, that Knight had authority responsibly to direct employees in their work, adjust their grievances, and effectively to recommend their layoff or termination, that in the exercise of such authority he has been required to use independent judgment, and that, whether called a "supervisor," "superintendent," or "working foreman" he has at least since the date of the 1970 strike been a supervisor within the meaning of Section 2(11) of the Act.5 In reaching this conclusion, I have also considered testimony of Nance and Knight, cited by Respondent, 5 It is well established that the existence of any one of the indicia listed in the Act is sufficient to support a finding that the one possessing it is a supervisor N L R B v Elliott- Williams Co, 345 F 2d 460, 463 (C A 7) and cases therein cited Hence, I cannot agree with Respondent that absence of a particular authority, such as the right to hire or discharge alone would deprive Knight of the status of supervisor which indicates that: Prior to the 1970 strike, Embry was the sole roofing "supervisor" for Midwest and while in that capacity he had a withdrawal card from the Union; at the same time, Knight was a working foreman and member of the Union; during the strike, the "supervisor" job was vacant, and was not filled until Midwest rehired Knight in October 1971 to fill it, on the understanding that he would be a "supervisor and could not work." After a short time in that capacity, Knight reverted to the status of working foreman. After the strike, Embry returned to work as a working foreman and regained his membership card in the Union. Knight began working with tools, as "supervisor," only after he filed his charge in this case, at which time Nance told him to start using tools. However, I view these facts only as proof that before the strike Midwest was giving pro forma recognition to the policy in the Union's constitution and working rules that when union members had the title of "supervisor" they should not work with tools and should withdraw from the Union. However, it is clear that employees still had the indicia of statutory supervisory authority found above, whether they were technically called "superintendents," "supervisors," or "working foremen," and since Nance also testified credibly that he had been shifting employees between the jobs of journeymen roofers, working foremen, and "supervisors" at will for over 30 years without notifying the Union of each change of job and without objection from it, and that he continued this practice after the strike, I must conclude that the Union's alleged policy regarding the status of "supervisors" was honored more in the breach than the observance prior to the strike, where working foremen like West, Embry, Willis, and other union members who had not violated any union principles or rules or constitutional provisions, but that it tried to enforce it strictly in the case of Knight, who had been disloyal to the Union in 1970. This disparity of treatment' further points up the motive behind the Union's treatment of Knight and its attempts to make Midwest limit its use of him in furtherance of that motive. It follows that when the Union admittedly expelled Knight from membership on July 13, 1970, because he continued to work for Midwest behind a picket line set up by the Union against that employer, and refused to accept union dues from him thereafter, his expulsion and refusal of reinstatement would have been a clear violation of Section 8(b)(1)(B) of the Act, absent the limiting provisions of Section 10(b) of the Act. Local Union No. 2150, IBEW (Wisconsin Electric Power Company), 192 NLRB No. 16; IBEW and Local 134 (Illinois Bell Telephone Co.), 192 NLRB No 17; San Francisco Typographical Union No. 21, et al (California Newspapers), 193 NLRB No. 41; IBEW System Council U-4, et al. (Florida Power & Light Co.), 193 NLRB No. 7; Local 261, Lithographers Union (Manhardt- Alexander, Inc.), 195 NLRB No. 80; Meat Cutters Union Local 81, (Safeway Stores, Inc.), 185 NLRB 884; Sheet Metals Workers' International Association (Langston & Co., It is also well settled that all persons who are "supervisors" within the meaning of Sec 2(11) of the Act are employers' "representatives for the purposes of collective bargaining or the adjustment of gnevances" within the purview of Sec 8(b)(I)(B) of the Act The Newspaper Guild, Local 187 (Times Publishing Company), 196 NLRB No 159 UNITED SLATE, TILE AND COMPOSITION ROOFERS 857 Inc), 195 NLRB No. 85; Dallas Mailers Union, Local No 143, et al (Dow Jones Company, Inc.), 181 NLRB 286, enfd. 445 F.2d 730 (C.A.D C.) The salient aspect of the Union's action against Knight, in light of the similar facts and rulings in the above cases , is that it imposed the ultimate punishment of expulsion from membership because he had committed the cardinal sin, in the eyes of members of the Union and union members in general, of working behind a picket line established by his own Union. This clearly establishes its animus against Knight personal- ly. It also colors the Union's later actions against Midwest when it continued Knight in its employ. The continuation of the Union' s animus toward Knight as a former disloyal member and a nonunion "scab" worker during 1971 and 1972 is demonstrated by: (1) the refusal of the Association on May 5, 1971, to consider Knight's plea for reinstatement and permission to pay up all back dues, or even to refer his plea to the Union; (2) Williams' report to Knight in the fall of 1971, in the presence of President Goins, that the union executive board had turned down his request for reinstatement, without either official offering any reason therefore, even though Williams appeared on the surface sympathetic to his request, and Goins was Knight's father-in-law; (3) Williams' warning to Knight, while supervising the Whirlpool job early in 1972, that the union roofers kept complaining about Knight working with tools, and that he doubted if Knight would ever get his union card back; (4) the March 1, 1972, grievance of the Union against Midwest for allowing Knight to work with tools in violation of the contract and hiring him for this without going through the hiring hall procedure, using the argument that Midwest could not allow Knight to work with tools because he was not a union member, and the Union had journeymen in good standing out of work who could be called; (5) Williams' repetition at this time that the Union would not reinstate Knight, giving no reasons; (6) Foreman Alexan- der's remark to Knight during the March 1972 strike that union roofers would not work with Knight as long as he worked for Midwest, (7) Williams' statement to Nance on March 20 regarding Knight that "if you get rid of the s.o b., your troubles are over", (8) Williams' remark to Nance on April 24 that union roofers would return to work for Midwest only if Knight did not work for it; (9) reports Knight received from various union roofers that his father- in-law, Goins, said he would "go to hell" before he would sign a membership card for Knight, which made it clear to Knight that it was useless to expect reinstatement while Goins was president and also a member of the Union's executive board, for all union cards required the signature of the president; 6 lacking any testimonial explanation by Goins of the reason for his marked animosity toward his son-in-law, I must infer that it arose only from Knight's disloyalty to the Union in working behind its picket line in 1970; and (10) Knight's credited testimony that after his expulsion there were hard feelings between union roofers and him on various jobs. The Union acted during 1971 and 1972 to implement its continuing penalty and refusal to readmit Knight to membership and associated benefits and prevent him from regaining status as a union roofer, his chosen means of earning a livelihood, by various actions designed to pressure his employer first to limit his work to that of a nonworking supervisor and then to deny him any work associated with roofing. The pattern and objective of this conduct is shown by the following sequence of conduct and events. (1) The Union's argument on the grievance of March 1, 1972, that Knight should not be allowed to work with tools because he was not a member of the Union, but should only be allowed to act as a nonworking supervisor. The alleged violations of the contract by Midwest which was the basis of the grievance was thus clearly founded on the Union's own illegal action in expelling Knight and refusing to reinstate him thereafter, so that the filing of the grievance with the above supporting argument gave Midwest clear warning that the Union would apply sanctions against Midwest for a claimed violation of the contract ansing from the Union's own illegal conduct toward Knight. The illegal coercion inherent in this procedure is also highlighted by record testimony that, while Knight was ousted from the Union for crossing a picket line, two other working foremen, West and Embry, who had not done so did not suffer this fate but worked for Midwest right up to the hearing without hindrance or objection from the Union This disparate treatment further demonstrates the Union was trying to impose sanctions upon Midwest and thereby limit its right to employ and use such supervisors as it saw fit during any labor disputes with the Union. This is clearly prohibited by Section 8(b)(1)(B) of the Act.7 (2) West's successful threat to Knight, while nonworking supervisor on a Midwest job late in 1971, that the crew would walk off if he worked with any tools. Though Williams was not present at this time, West's threat was consistent with Williams' prior attempts at Paducah to get Knight to stop work on that job and close it down, while he was a supervisor working with tools. I find that West was thus acting to carry out a union policy of trying to shut down all Midwest jobs which included Knight as a supervisor working with tools, and in so doing was trying to coerce a Midwest supervisor to work against the interests of his employer. (3) The Union's threat of picketing, and actual picketing of Midwest from March 9, 1972, to April 29, 1972, because Midwest still allowed Knight to work with tools, and even employed him at all, in alleged violation of the contract, during which picketing Midwest did not insist upon Supervisors Embry and West working because of their hesitancy to cross the picket line, and also assigned Knight to work outside the plant in other than roofing work, and was unsuccessful in getting another foreman, Alexander, to return to work although Williams said in the presence of Alexander that the Union was not preventing anyone from working for Midwest. The Union's well-known expulsion of Knight for crossing a picket line and its refusal to reinstate him were clear notice and warning to all other supervisory personnel who were members of the Union 6 These reports were elicited from Knight on cross-examination by I See cases cited above in text counsel for Respondent 858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that they might suffer the same fate if they did likewise, and this clearly inhibited Midwest in its selection and use of supervisors whose loyalty was not prejudiced by action of the Union.8 (4) Williams' comment to Nance on March 20, 1972, that his troubles would be over if "you get nd of" Knight, which clearly evinces a desire of the Union to continue pressure on Midwest to discharge him completely, and the final "settlement" worked out about April 20, 1972, in the Federal court injunction suit, in which the Union allowed roofers to return to work conditioned upon the demotion of Knight to yardman, doing only cleanup work, but no work as a roofer or with roofing equipment. This "settlement" of course, was a full victory for the Union in securing the disbarment of Knight from all roofing work as the price of ending the strike. Its effect was a clear denial to Midwest of the right to select and use Knight, an experienced roofer, as working supervisor as had been its practice with working foremen in the past. All of the above conduct, whether considered singly or together, supports a conclusion and finding that Respon- dent thereby coerced and restrained, and is continuing to coerce and restrain, Midwest since April 22, 1971, in its selection of representatives for purposes of collective bargaining and the adjustment of grievances, in violation of Section 8(b)(1)(B) of the Act. However, certain arguments presented by Respondent in defense of its conduct, in the nature of confession and avoidance, require specific consideration. Respondent's main defense is that the alleged violation here can only rest on its failure after April 22, 1971, to admit or reinstate Knight to membership, and that such action cannot support a finding of violation because of the holding of the United States Supreme Court in the Allis- Chalmers case, that matters of acquisition and retention of union membership are internal union affairs which are excepted from the prohibitions of Section 8(b)(1)(A) of the Act by the proviso that its prohibitions "shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein."9 This argument has no merit because the Board has rejected the rationale of Allis-Chalmers as a defense in Section 8(b)(1)(B) cases, saying that decision does not permit a union to interfere with an employer's right under Section 8(b)(1)(B) to select its representatives for purposes of collective bargaining or adjustment of grievances, and that the quoted proviso to Section 8(b)(1)(B). New Mexico District Council of Carpenters (A.S. Horner, Inc.), 177 NLRB 500, 503; San Francisco-Oakland Mailer's Union No. 18, ITU, 172 NLRB 2173; Local Union 1250, IBEW (Wisconsin Electric Power Company), 192 NLRB No. 16. The vice in Respondent's action here is, not that it failed to 8 Local 423, Laborers' Intl Union (Mansfield Flooring Co), 195 NLRB No 35, Communications Workers of America, Local No 2550 (American Telephone and Telegraph Company, Long Lines Department), 195 NLRB No 163 9 N L R B v Allis-Chalmers Manufacturing Co, 388 US 175, 196, Scofield v NLRB , 394 U S 423 iO It is immaterial whether Knight worked during the 1970 or 1972 strike as supervisor voluntarily or under orders of Midwest, or that the Respondent's continued retaliation against him may or may not have related to his performance of supervisory functions A violation of Sec 8(b)(l)(B) can be found if the discipline imposed upon him as late as 1972 readmit Knight to membership, but that it took coercive action against his employer and continued it because Knight had performed a disloyal act arising out of his employment as supervisor during the course of a 1970 labor dispute between his employer and Respondent. Clearly, in working with tools while a supervisor before, dunng, and after the 1970 strike, Knight was acting in furtherance of his obligations as a representative of Midwest, hence the Respondent's continuing refusal to readmit him to membership because of past acts of disloyalty, whether a continuance or repetition of the original discipline of him, and the coercion of Midwest based on his lack of membership due to Respondent's penal action against him provides the elements necessary to support a violation of Section 8(b)(1)(B). Meatcutters Union Local 81, etc (Safeway Stores, Inc.), 185 NLRB 884; cf. Painters Local 452, 183 NLRB No. 24.10 Respondent also argues that its refusal to readmit Knight to membership, as a supervisor, is not in fact or in law coercion of Midwest in violation of the Act, because its denial of admission during the 10(b) period is a legitimate internal union action under its constitution and that of the Association which prohibit employers, or any of their supervisory agents, from being members,ii and that the record fails to show that Respondent has ever admitted supervisors to membership. Credible evidence in the record supports the reverse of this claim: While there is some indication from Nance that Union Members Harvey Embry and Prentice West have at times withdrawn from the Union while acting as roving "supervisors" before the 1970 strike, that Embry was in that status at the time of that strike, that thisjob remained vacant during that strike and was filled by Knight on his return to Midwest, it is inferable that the withdrawals by Embry and West were personal decisions to comply with Respondent' s constitu- tion, and were not imposed on them by or through Midwest, and as, against this fact, it is clear from other uncontroverted proof 12 that Embry, West, Felix Goins, and other union members had been placed by Midwest over the years in supervisory status from time to time, as the needs of the Midwest operation required, that they were thus transferred back and forth between the status of journeymen, working foremen, "supervisor," and "superin- tendent," without prior notice to or clearance from the Union, and without complaint from it about the changes or action against these employees when they acted in a supervisory capacity but still handled tools. In addition, within the past 5 years U.S. Sheet Metal and Roofing Co., another roofing contractor operating as a member of AGC under a contract with Respondent similar to the Midwest contract, has employed four or five members of Respon- dent in succession as roofing "superintendents" with clear was connected in some way with the relationship between Respondent and his employer, in this case an economic dispute The Newspaper Guild, Local 187 (Times Publishing Company), supra ii Art III, sec 1(c) of the Respondent's constitution, G.C Exh 3, art 111, sec 1(c) of Association constitution, G C Exh 4. Both clauses in identical terms state that a member becoming an employer or independent contractor shall forfeit his membership. While neither mentions supervisors as such, I assume for purposes of the argument that a reasonable interpretation of "employer" includes supervisors standing in his stead i2 On this I credit testimony of Nance, Triplett, and George K Batteiger, and stipulated facts UNITED SLATE, TILE AND COMPOSITION ROOFERS 859 supervisory authority; one of them, Howard E. Wingerter, remained a union member and was also one of its officers, while acting as "superintendent"; when the last of this group, Jerry Stinchfield, became "superintendent," Busi- ness Agent Williams told him and a U.S. Sheet Metal officer that as long as Stinchfield stayed in the Union, the employer must check off his dues and make payments into the Union's health and welfare funds on his behalf, and the employer did so. There is no proof that the Union ever required these men, while supervisors, to withdraw from membership, or disciplined them if and when they worked with tools while supervisors, nor that it ever required their employers to "go through the hiring hall" by giving 16 hours' notice of their need for men under article V of their contracts with Respondent, when they transferred them between supervisory and nonsupervisory jobs. As there is no proof adduced by Respondent that any of these members were involved in strikes or crossed Respondent's picket lines while serving as supervisors, the salient fact here is that Respondent generally ignored its constitutional and contractual requirements for supervisors who appar- ently were not disloyal to its principles and working rules while in that capacity, but enforced the constitution and its working rules strictly against Knight, when he crossed its picket line as a supervisor. This glaring disparity of treatment further highlights the motive and illegality of Respondent's refusal to readmit Knight to membership with coincident pressure on his employer to demote and then discharge him. This same disparity of treatment also weighs against Respondent's argument that the strike of March 1972 was legitimate because its purpose was only to protest the Midwest violation of its contract in letting Knight as a nonworking supervisor work with tools. This contention derives pro forma support from Williams' warning to Nance in February 1972 that he would file a grievance because Knight was doing journeyman's work, the filing of the grievance on that ground, which was one of Williams' arguments at the grievance hearing, and the actual strike of March 9, with picket signs claiming a contract violation. Respondent also argues that the strike was not designed to cause the discharge of Knight because (1) he worked for Midwest for about 5 months after his return in October 1971, without objection from or strike by the Union, (2) Nance admitted that in many talks with Williams about Knight's work with tools, Williams never told him outright that he must take Knight off any job or discharge him, or threatened strike if he did not, but only complained that his work with tools violated the contract, and (3) several statements of Williams to company officials that he had no objection to Knight "working" for Midwest. However, the force of these events and remarks is overweighed by other circumstances shown in the record: (1) Knight's uncontradicted testimony that, after expul- sion from the Union, union roofers displayed hard feelings toward him on various jobs after October 1971, i.e., West's threat on one job in 1971 that the men would quit unless Knight stopped using tools, Williams' warning that roofers kept complaining to him about Knight working with tools, Williams' reports that the union executive committee, of which Knight's father-in-law, Goins, was a member, had repeatedly turned down Knight's requests for reinstate- ment, the fact that Goins had openly announced he would never sign a membership card for his son-in-law, and Alexander's warning to Knight when the 1972 strike started that roofers would not work as long as he worked at Midwest. In sharp contrast, none of these hard feelings, threats or even discipline were directed against other supervisors, like Embry and West, who had not dared to work behind the Union's picket line.13 (2) Williams' statements indicating that he had no objection to Knight working were clearly self-serving remarks "for the record" designed to exculpate himself personally from any possible liability for the Union's attitude and conduct toward Knight and Midwest. His credibility on this alone is destroyed by his remark to Nance during their attempt to settle the 1972 strike that "if you get rid of the s.o.b., your troubles are over." Although Williams may have indicated to Midwest and Knight on occasion that he had no objection to Midwest putting Knight to "work," he clearly meant menial or other work entirely unconnected with the roofer's trade, which is made clear by the one-sided "settlement" which the Union forced on Midwest in order to end the 1972 strike, under which Midwest agreed to use Knight only on menial tasks at a pay rate far below the union roofer's scale. This overriding purpose of the strike is also demonstrated by Respondent's admission in argument that one purpose of the work stoppage was to force Midwest "to reassign Knight to a non-working supervisor job" which in itself is an admission that Respondent was trying to control, limit, and thus coerce Midwest in its selection and use of supervisory personnel, contrary to its long-standing past practice which the Union had not objected to in its handling of other union working supervisors who had not been guilty of any "disloyalty" to Respondent. Respondent argues that since Knight was not a member of the Union within the 10(b) period, there can be no violation of the Act because in that period it could not and did not discipline him as a member. It also argues that failure to admit a worker to membership has never been held to be a violation of the Act Both arguments, however, ignore the gravamen of the complaint, that Respondent by various acts found above coerced his employer in selection and use of him as a supervisor because he was not a union member. While Respondent realized it could do nothing to Knight within its own organization, once it had cast him out, it still marked him for vengeance and retaliation in his normal attempts to secure a livelihood which in fact finally resulted in discharge from his normal employment, by working on him as a supervisor and "representative" of his employer, and through pressure on the employer itself, all with the purpose of affecting and disrupting the normal employer-agent relationship between the two. On all the pertinent facts and circumstances noted above, and considering all arguments pro and con, I li Aside from the facts showing that its reliance upon the alleged working with tools while a supervisor, for art Vll of the contract was an contract violation as the purpose of a strike was pure pretext, the Union's unconditional "No-Strike and No-Lockout" clause Cf Local 423, Laborers' own contract with Midwest would have outlawed a strike to protest Knight Intl Union (Mansfield Flooring Co, Inc), supra 860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conclude and find that Respondent has since April 22, 1971, coerced and restrained Midwest in its selection of representatives for purposes of collective bargaining and adjustment of grievances by refusing to readmit Joseph A. Knight, while a supervisory employee of Midwest, to membership, because he had worked for Midwest during a strike of Respondent against Midwest; by preventing Knight as supervisor from working with tools for Midwest, by threatening to strike, and striking, Midwest because it allowed Knight to work with tools, and thereby causing Midwest to reassign Knight to a nonworking supervisor job, demote him to work not covered by its contract with Midwest, and finally to discharge him, all in violation of Section 8(b)(1)(B) of the Act.14 In view of the above conclusions and the findings of violation of the Act, I deem it unnecessary to consider or decide the added claim of alleged estoppel against Knight because of his admitted failure to exhaust administrative remedies open to him under Respondent's constitution after his expulsion from membership, and the contention that Midwest was guilty of Section 8(a)(1), (2), and (5) of the Act. III THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The violation of Section 8(b)(l)(B) of the Act by Respondent as found in section II, above, occurring in connection with the business operations of Midwest described in section I, above, have a close , intimate, and substantial 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. IV. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices in violation of Section 8(b)(1)(B) of the Act I shall recommend an order that it cease and desist therefrom and take certain affirmative action which will effectuate the policies of the Act. Since Respondent used vaifous methods and techniques, directed both against Joseph A Knight as supervisor and against his employer, in such violations, I shall recommend issuance of a broad order. As it appears that Knight has suffered loss of earnings after April 22, 1972, as a result of Respondent's unlawful conduct, I recommend that Respondent make him whole therefor, with interest on any sum payable to him at 6 percent per annum. Isis Plumbing& Heating Co, 138 NLRB 716; Local 423, Laborers' International Union (Mansfield Flooring Co Inc.), 195 NLRB No 35. CONCLUSIONS OF LAW 1. Midwest Roofing and Insulation Co., Inc, is an employer engaged in commerce within the meaning of the Act. 14 Having found that Knight was at all material times a supervisor within the meaning of the Act, I make no finding that Respondent's conduct found above violated Sec 8(b)(I)(A) and (2) as alleged in the complaint, because General Counsel claims these sections were violated only if Knight should be found to be a rank-and-file employee I shall recommend dismissal of pars 8, 9, 10, and part of 12 of the complaint making such charges 2. Joseph A. Knight, a Charging Party, was at all material times herein a supervisor and "representative" of said Employer within the meaning of Section 2(11) and 8(b)(1)(B) of the Act. 3. By refusing to readmit Knight, while a supervisory employee of said Employer, to membership because he worked behind a picket line of Respondent, by preventing Knight as supervisor from working with tools for said Employer, and by threatening to strike and actually striking said Employer because it allowed Knight as supervisor and nonmember of Respondent to work with tools, thereby causing said Employer to reassign Knight to a nonworking supervisory job, to transfer him to work not covered by the contract between Respondent and said Employer, and finally to discharge him, Respondent has coerced and restrained an employer in the selection of his representatives for the purpose of collective bargaining or the adjustment of grievances, in violation of Section 8(b)(1)(B) of the Act, thereby committing an unfair labor practice affecting commerce within the meaning of Section 2(6) and (7) of the Act. 4. Respondent has not engaged in any violation of Section 8(b)(l)(A) or 8(b)(2) of the Act as alleged in the complaint. Upon the foregoing findings of fact, conclusions of law, and the entire record in the case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommend- ed: ORDER 15 Respondent, United Slate, Tile and Composition Roof- ers, Damp and Waterproof Workers Association, Local Union No. 106, AFL-CIO , its officers, agents, and representatives, shall 1. Cease and desist from (a) Restraining and coercing Midwest Roofing and Insulation Co., Inc. , in the selection of representatives for the purposes of collective bargaining or the adjustment of grievances , by refusing to readmit such representatives to membership because they worked for their Employer during a strike called by Respondent , by preventing such representatives by threats of work stoppage or other reprisals from working with tools as and when required by their Employer, by threatening to strike and actually stnking said Employer at its main place of business or at any of its jobsites because any such representatives work with tools as required by their Employer , or by causing said Employer to reassign such representatives to non- working supervisory jobs or work not covered by the contract between said Employer and Respondent, or to discharge such representatives. (b) In any other manner restraining or coercing said Employer or any other employer in the selection of its representatives for purposes of collective bargaining or the adjustment of grievances. 15 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings. conclusions, and recommended Order herein shall, as provided in Sec 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 UNITED SLATE, TILE AND COMPOSITION ROOFERS 861 2. Take the following affirmative action which will effectuate the policies of the Act- (a) Notify the representatives of Midwest Roofing and Insulation Co., Inc., in writing, that Respondent has no objection to its employment of Joseph A. Knight as a supervisor working with tools at Respondent's place of business in Evansville, Indiana, or on any of said Employer's projects within or outside the territorial jurisdiction of Respondent, and send a copy of said notice to Joseph A. Knight. (b) Make whole Joseph A. Knight, in the manner set forth in the section of this Decision entitled "The Remedy," for any loss of earnings he may have suffered as a result of Respondent's unlawful conduct. (c) Post at its business office and meeting halls copies of the attached notice marked "Appendix." 16 Copies of said notice, on forms to be provided by the Regional Director for Region 25, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by Respondent for 60 consecutive days thereafter, in conspic- uous 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) Notify the Regional Director for Region 25, in writing, within 20 days from the date of receipt of this Decision, what steps Respondent has taken to comply herewith.17 (e) Mail to the Regional Director for Region 25 signed copies of said notice for posting by Midwest Roofing and Insulation Co., Inc., if that Employer be willing, in places where notices to employees are customarily posted. Copies of said notices, on forms provided by said Regional Director, shall, after being duly signed by an authorized representative of Respondent, be forthwith returned to said Regional Director. IT IS FURTHER RECOMMENDED that the complaint herein be dismissed insofar as it alleges violations of Section 8(b)(I)(A) and (2) of the Act. 16 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " it In the event that this recommended Order is enforced by the Board after exceptions have been filed, this provision shall be modified to read "Notify the Regional Director for Region 25, in writing, within 20 days from the date of this Order , what steps the Respondent has taken to comply herewith "