H. H. Robertson Co.

ARCHITECTURAL DIVISION, H. H. ROBERTSON CO. 637 Architectural Products Division, H. H. Robertson Company and Gilbert James Local Union No. 519, Sheet Metal Workers Interna- tional Association, AFL-CIO and Gilbert James. Cases 25-CA-5826 and 25-CB-1779 July 30, 1974 DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On February 26, 1974, Administrative Law Judge Eugene E. Dixon issued the attached Decision in this proceeding. Thereafter, the Respondent Union and the Respondent Employer filed exceptions and briefs to the Administrative Law Judge's Decision and the General Counsel filed a brief in support of his Deci- sion. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board had delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached 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.2 ORDER Pursuant to 'Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent Architectural Products Division, H. H. Robertson Company, Connersville, Indiana, its officers, agents, successors, and assigns, and Respondent Local Union No. 519, Sheet Metal i The Respondent Union 's request for oral argument is hereby denied as the record, exceptions, and briefs adequately present the issues and positions of the parties. '2 Member Fanning concurs in the result reached herein . Although he believes that Respondent Union's failure to authorize the restoration of James' senionty because of his association with Dobbs constituted "restraint and coercion" in violation of Sec 8(b)(1)(A) and (2) of the Act, he does not adopt the rationale of Miranda Fuel Company, Inc, 140 NLRB 181 (1962), relied on by the administrative Law Judge, for reasons stated in his concur- ring opinion in General Truck Drivers, Chauffeurs and Helpers Union, Local No 692, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers ofAmerica (Great Western Unifreight System), 209 NLRB No. 52 (1974) In any event, Member Fanning would find that the Union's actions toward James constituted violations of Sec. 8(b)(1)(A), as part of the Union's reason for so acting was because James had threatened to, and had filed, charges against'the Union with the Board . N L R.B v. Industrial Union of Marine & Shipbuilding Workers ofAmerica, AFL-CIO, and its Local 22 [U.S Lines Co] 391 U S. 418 (1968), Local 138, International Union of Operating Engineers, AFL-CIO, 148 NLRB 679 (1964). Workers International Association, AFL-CIO, its of- ficers, agents and representatives , shall take the action set forth in the said recommended Order. CHAIRMAN MILLER, dissenting in part: I agree with my colleagues that the Respondent Union's opposition to the restoration of James' se- niority upon his return to the bargaining unit was motivated by a desire to punish him for seeking the aid of a dissident member. Accordingly, I agree that it violated Section 8(b)(1)(A) and (2) of the Act. How- ever, I disagree with my colleagues' further finding that the Respondent Employer violated Section 8(a)(1) and (3) of the Act. Respondent Employer here was faced with a prob- lem of how much seniority, if any, should be granted, for purposes of the collective-bargaining contract, to a foreman returning to the bargaining unit. Many collective agreements are specific as to this matter, but differ substantially in their treatment of it. Some agreements provide that once an employee leaves the unit to accept a supervisory position he forfeits his seniority and if he ever returns to the unit he must return as a new employee. Other agreements provide exactly the contrary-i.e., that a foreman returning to the bargaining unit returns with full seniority, includ- ing credit-for all time spent as a supervisor. In between these two extremes there are a host of variations- some providing, for example, that an employee pro- moted to supervisor has his seniority frozen as of the time he becomes a supervisor and returns to the unit only with that amount of seniority, with no credit for time spent as a supervisor. The matter is bargainable, and no provision of our law is violated, so far as I know, by any of the types of agreements above de- scribed. The instant agreement was silent on the mat- ter. In view of the agreement's silence, when Respon- dent Employer decided to permit Foreman James to return to the unit, it had a duty, under Section 8(a)(5) of our Act, to negotiate with the Union with respect to how much, if any, seniority he should be entitled to upon his return. The Union had a legal right to insist that he be given no seniority credit or to negoti- ate for however much seniority credit it believed the man should have. The Company was likewise free to advance negotiating proposals of its own., But the Em- ployer had no right unilaterally to determine how much seniority it would grant to Mr. James-unless, of course, it negotiated to impasse before so doing. A like situation had never' before arisen at this plant, and thus there was no past practice to help guide either party. The Administrative Law Judge re- gards as relevant certain agreements 'which were reached between the Company and the Union with 212 NLRB No. 90 638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD respect to persons whose employment had been termi- nated by discharge or by quit. None of those exam- ples, in my view, are at all relevant to the issue of what seniority should be granted to a supervisor returning to the unit. Indeed, if they show anything, they show only that once an employee had left the Company's employ as a bargaining unit employee any seniority granted to him was granted only by agreement be- tween the Company and the Union. But I am not sure they are relevant even in that respect, since none of the factual situations are parallel to this one. The Employer here honored its statutory duty to bargain as to this matter upon which the contract was silent and as to which past practice provided no relia- ble guidance. It attempted to negotiate the matter, stating a willingness to grant James full seniority if the Union would enter into an agreement to this effect. No such agreement was ever reached. At one time, the Respondent Employer was advised by the Respon- dent Union that the local membership had voted in favor of James' being accorded full seniority upon his return, but at the same time the Respondent Compa- ny was advised that this action by the Local was inef- fective until such time as the International had approved. At no time was the Company ever advised that the International had approved the agreement. At no time did the Local Union ever adivse the Com- pany that it was prepared to finalize an agreement to grant James full seniority. Under these circumstances, it seems plain that if Respondent Employer had unilaterally proceeded to return James to the unit with full seniority it would knowingly have been taking unilateral action in direct violation of Section 8(a)(5) of this Act. It is true that at some point Respondent Employer became aware of facts which would reasonably have led it to believe that one reason motivating the Union's failure to proceed to finalize its approval of the proposal to grant James full seniority was his asso- ciation with the dissident Dobbs. Apparently once Respondent Employer acquired such knowledge, the Administrative Law Judge and my colleagues would hold the law to be that it became Respondent Employer's duty to ignore the customary strictures of Section 8(a)(5) and unilaterally to have placed into effect a seniority proposal to which the Union had refused to agree. I believe that to be a new and ex- traordinary doctrine which I think unwise and un- sound. The potential reach of such a doctrine could, in my view, seriously undermine the institution of collective bargaining. Take, for example, the fairly typical nego- tiating situation, in which an employer is proposing a percentage wage increase in order to maintain what it believes to be a proper differentiation in pay as among the range of skills in one plant, whereas the union, as often happens, insists that only a flat cents- per-hour across-the-board increase would be accept- able to it. Now let us suppose that it comes to the employer's attention that one reason for the position taken by the union is that many of the higher paid skilled employees (who would benefit by the company's percentage increase in far greater degree than they would by an across-the-board increase) are internal union dissidents-or, perhaps, nonmembers .of the union. Does it now become the employer's right-and duty, if I understand the majority-to put into effect the percentage increase unilaterally? Or, take a situation more closely paralleling the one here. Suppose that in negotiations the company is proposing a contract clause which would permit any supervisor returning to the unit to return with full seniority credit for all years of company service, in- cluding years of service as a supervisor. Assume fur- ther that the union is resisting that proposal and claiming that supervisors should return to the unit only with such seniority as they had at the time they became supervisors. Now assume further that in the course of a negotiating meeting a naively frank bar- gaining committeeman states that one reason for the union's position is that it believes all supervisors on the employer's staff to be basically antiunion in the orientation and thus will not join the Union if they return to the unit. Is the union demand now tainted by a desire to penalize potential unit employees for exercising their statutory right to refrain from union activity? And, if so, is the employer now free to escape further bargaining on the issues and instead is it now under a legal duty to put its proposed clause into effect or else be found guilty of having violated Sec- tion 8(a)(1) and (3) of the Act? I suggest that the implications of the instant deci- sion are fraught with mischief. I think it would be much sounder merely to permit the Employer, as the law clearly does, to file a charge against the Union if it has reason to believe that a union position, either with respect to a facially valid position on a particular grievance or with respect to a facially valid position on an issue raised during contract negotiations, is in- spired by illegal motivation. Such a charge would per- mit this Agency to undertake, in a proper case, corrective action if the Employer's belief as to the alleged improper motivation proves to be well found- ed. But I do not think it wise to encourage employers to violate the traditional requirements of Section 8(a)(5) on any occasion on which they suspect-or have reason to believe-that otherwise facially valid union positions with respect to grievances or with respect to bargainable subjects may be motivated by something less than a pure heart. ARCHITECTURAL DIVISION, H. H. ROBERTSON CO. For these reasons, I would dismiss the 8(a)(1) and (3) allegations of the complaint herein. DECISION STATEMENT OF THE CASE EUGENE E. DIXON, Administrative Law Judge: This pro- ceeding brought under Section 10(b) of the National Labor Relations Act, as amended (61 Stat. 136), herein called the Act, was heard at Connersville, Indiana, December 6 and 7, 1973, pursuant to due notice. The consolidated complaint was issued October 13, 1973, by the Regional Director for Region 25 (Indianapolis, Indiana), on behalf of the General Counsel of the National Labor Relations Board, herein called the General Counsel and the Board. The complaint was based on duly served charges filed by Gilbert James against Local Union No. 519, Sheet Metal Workers Interna- tional Association, AFL-CIO (herein called the Union or Respondent Union), on September 4 in Case 25-CB-1779 and against Architectural Products Division, H. H. Rob- ertson Company (herein called the Company or Respon- dent Company), on September 18, 1973. The complaint, as later amended, alleged that Respon- dent Union caused and attempted to cause Respondent Company to deny Gilbert James seniority for past employ- ment thus causing violations of Section 8(b)(1)(A) and (2) by the Union and 8(a)(1) and (3) by the Company. In their duly filed answers Respondents denied the commission of any unfair labor practices. Upon the entire record in the case, including my observa- tion of the witnesses, I make the following: FINDINGS OF FACT I THE BUSINESS INVOLVED At all times material Respondent Company has been a corporation duly organized under and existing by virtue of the laws of the State of Indiana. Respondent Company has maintained its principal office and place of business at Pitts- burgh, Pennsylvania, and a facility at Connersville, Indiana, and at all times material has been engaged at said Conners- ville facility in the manufacture, sale, and distribution of building siding and related products. During the year pre- ceding issuance of the complaint, a representative period, Respondent Company in the course and conduct of its busi- ness operations purchased, transferred, and delivered to its Connersville facility goods and materials valued in excess of $50,000 which were transported to said facility directly from States other than the State of Indiana. At all times material Respondent Company has been an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II THE LABOR ORGANIZATION At all times material Local Union No. 519, Sheet Metal Workers International Association, AFL-CIO, has been a labor organization within the meaning of Section 2(5) of the Act. III THE UNFAIR LABOR PRACTICES 639 The undenied and credited evidence shows that for some 10 years prior to July 23, 1973,1 Gilbert James had been employed by Respondent as an hourly paid member of the Union and the bargaining unit represented by it. On July 23, after due consideration, he accepted Respondent's offer to become a foreman. The collective-bargaining agreement specifically excludes foremen from the bargaining unit. The Union's constitution, however, does not exclude' foremen from membership. About 4 weeks after he started as foreman, James in- formed Plant Superintendent Charles Hood and Manufac- turing Manager Robert K. Waldron that he was dissatisfied with the job because it bothered his nerves and created a health problem and indicated that he wanted to return to the bargaining unit. Waldron and Hood tried to convince James to remain as foreman and set up an appointment with their own doctor for him. Within the next few days James told several unit employ- ees, including Recording Secretary Jack Toole, Financial Secretary-Treasurer Denzil Crowe, and Chief Steward Gary Crowe of his desire to return to the unit with his previous seniority. All three union officials expressed the opinion that there would be no problem and Gary Crowe offered to do what he could to help James. Among those that James told of his desire to return to the unit with seniority was Sam Dobbs. Dobbs was a past plant chairman (the equivalent of the current position of presi- dent) of the predecessor local. He also was an openly out- spoken critic of the current officers of the Union (particularly Sam Johnson) 2 and had filed unfair labor practice charges against the Union the year before, which he subsequently withdrew. On August 25 the Union held its regular monthly mem- bership meeting. The first order of business was a motion to pay Union President Johnson for time lost on a discipli- nary layoff resulting from a fight on company time with another employee who had approached him in his union capacity. Dobbs not only opposed and voted against the motion but openly criticized Johnson stating, among other things, that he made a mistake in voting for Johnson as president of the Union. After the first motion was defeated, Dobbs presented a motion that would pay all employees who had lost time in disciplinary layoffs, a group which incidentally would have included Dobbs. Dobbs' motion passed. The final order of business was a second motion by Dobbs to permit James to return to the unit with full seniority. The motion was amended to provide for approval by the International and, as amended, was passed by a vote of 23 to 15. That evening, after being informed of the union action on 1 All dates are in 1973 unless otherwise noted. 2 Both Johnson and Dobbs were quite frank in their testimony regarding their mutual differences. Dobbs stated that he was "very vocal" in his criti- cism of the union administration because he did not like "the way they operate " Johnson stated that "me and Sam don't get along. We disagree with each other... . 640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD his request, James called Plant Superintendent Hood and told him that he "had been voted back into the bargaining unit with ... full seniority" and asked to be reinstated the following Monday. Hood said that it was agreeable with him and that he would check with the union president to see how "this was going to be worked out." When Hood dis- cussed the matter with Johnson he learned that it was sub- ject to International approval, which would take a few days time. To await final word before effectuating the transfer it was decided by the Company to have James take a week of accrued vacation which he did. In the meantime, on Monday, August 27, the union offi- cials contacted International Representative Roy Stringer with respect to James' seniority. Stringer informed them that the question would have to be answered by the contract and promised to come to Connersville in about a week to look into it. Whether it was in the same conversation or later, the union officials were given to understand that the James matter was a "Local matter" according to what Chief Steward Gary Crowe told union member Allan Hudson some time during the week after the August 25 union meet- ing.3 As the week passed, James faced the end of his vacation with no action having been taken on his problem. Accord- ingly, on the 29th or 30th he called International Represen- tative Stringer, who informed him that he would be in Connersville in a few days. In this conversation James told Stringer that he was going to see an attorney about the matter. Stringer told him he wished that James would not do so. On August 31 James, accompanied by Dobbs, went to Indianapolis to seek the advice of an attorney. There, the attorney wrote a letter for James addressed to Johnson ac- cusing the Union of violating the Act and threatening the filing of unfair labor practice charges. James and Dobbs then returned to Connersville and immediately went to the Company's offices where the Company and the Union were just beginning a meeting concerning the employee pension plan. Present for the Company were Waldron, Hood, and David Knight, the Company's director of industrial rela- tions; for the Union, Johnson, Denzil Crowe, and Jack Toole. From Denzil Crowe's testimony it appears that Dobbs had a manila folder from which he took and handed the Union and the Company copies of the Indianapolis attorney's letter while James laid out a money order for union dues to Crowe. Crowe refused to accept the money order. After reading the letter, according to Johnson' s testi- mony, Johnson told James that if he felt that way to go ahead and file the charges. James said, "In other words you are not letting me come back into the unit?" Johnson re- plied, "Under these conditions, no." The only important thing in dispute about this confronta- tion is James' testimony (denied by both Respondents) that he was told at this time that "we have taken the position that you can have your seniority back" and directed him to return to work September 4 "with full seniority." 4 I credit 3 That it was a Local matter was also indicated by Union President John- son when on or about September I1 James called to ask him if he had heard anything from the international. the Respondents here. On September 5 James returned to the bargaining unit as a probationary employee with seniority beginning as of that date. On September 7 James went on sick leave which lasted until October 15. On about September 12 employee Ralph Heeke, accord- ing to his undenied and credited testimony, came upon Quality Control Supervisor Ken Brock and Union Re- cording Secretary Jack Toole while they were engaged in a conversation. Heeke asked Toole "what is happening to our friend Gilbert James?" Toole answered, "well I am afraid he kind of got himself mixed up." Heeke asked how and Toole replied, "well he would have been back with his se- niority and been working if he hadn't got Sam Dobbs mixed up into this." Early the next morning Heeke informed Manufacturing Manager Waldron of his conversation with Toole. Two or three days thereafter, Arthur Walters (an employee who is an ordained minister and who was trying to help James) had a conversation with Vice President and General Manager Robert Holmgren. Walters commented to Holmgren that if Dobbs had not been in the picture, James would have been brought back to work. Holmgren replied that he was aware of the shadow that was being cast over the matter by Dobbs. Several employees testified credibly and without denial about conversations with Union Official Toole concerning the James' matter as follows: Fred Lawson Mr. Toole told me the committee got together and decided they didn't want (James) to come back because they figured Sam Dobbs had stuck his nose in Gilbert's business and got him to file charges against the Union, and for this reason they didn't want him to come back with full seniority. . . . He said the reason they didn't want him back or wasn't going to let him come back was because Dobbs had got involved and he got him to file the charges against the Union. They figured that Dobbs was after one or two things: Either he would have the opportunity to go straight time, then if he didn't like the straight time job he could come back in the Union using Mr. James' rule of him getting back, so that he could come back in the Union. Then again if he did get his job back that Dobbs would have the members of the Union thinking that he knowed more about what was going [on] than the present comittee, and he would have a chance to run for president of the Union and get elected. This they didn't want. Allan Hudson Mr. Toole told me that he wished that James wouldn't 4In this connection Respondent Company had made a statement in a letter to the Regional Office that "we were sorry to lose Mr James as a foreman but agreed to allow him to return as a bargaining unit employee with full seniority " On the witness stand Knight explained that the statement referred to an agreement between company officials that James could return with seniority provided that the Union agreed I accept this explanation ARCHITECTURAL DIVISION, H. H. ROBERTSON CO. 641 have gone ahead and filed this suit, if he hadn't he probably would have been back to work. But since it went through they had to go through with it. Robert Herron I asked him, I said "Jack, I heard you made a statement that Gib James would have got back in the unit if he hadn't brought Sam into this," and he said "yes, I did make the statement." I asked him why and he ex- plained that . . . I can't exactly recall it word-to-word but he said if he hadn't have brought Sam in that the committee would have brought him back in, but they didn't feel that he needed Sam and they could resolve it themselves if he had come down or something of that nature. In a similar vein Chief Steward Gary Crowe made a statement to James himself that if it had not been for Dobbs being involved in the matter James would be back to work with his full seniority. Respondents deny any illegality regarding their conduct in the James matter. They contend that they were motivat- ed solely by a reasonable interpretation of the collective- bargaining agreement and the past practice established be- tween the Company and the Union. As indicated, the con- tract specifically bars supervisors from inclusion in the bargaining unit. The only other contract clauses bearing on this question reads in pertinent part as follows: Section 2. Loss of Seniority The seniority of an employee shall be broken for the following reasons: a. If the employee quits or is discharged for cause. b. If for any reason the employee is absent from work for a period of three (3) working days without notifying the employer and furnishing reasonable ex- cuse for such absence. * Section 3. How applied a. An employee's seniority shall be the length of continued service with the Company since individual hiring date. Section 8. Departments a. The seniority of all employees shall be established on a departmental basis. The department seniority of employees shall include all their continuous services with the employer. At best, it appears that the contract is ambiguous. Nor does the evidence support a finding that the past practice provides a definitive answer. Indeed, it was admitted that no previous case ever arose where a supervisor attempted to return to the unit with full seniority. Moreover , three of the four cases cited to show the practice,5 in my opinion, under- cut Respondents' contention rather than support it. Thus the evidence shows that late in 1972 Shirley Fox who was an alcoholic was discharged in accordance with the terms of the contract. He was given 90 days to "take the cure" and then reinstated with full seniority. Although Johnson testified that the Union made no demand that he be put back to work and "just more or less went along with the-Company . . . on the matter," it is clear from the cir- cumstances that the Union interceded on behalf of Fox and was in accord with the restoration of his full seniority. A similar case involving employee Hoyt McKeeman arose just a few weeks before the hearing in this matter. He was also an alcoholic discharged by the Company. Here too the Union interceded on his behalf asking for the same program for McKeeman as was afforded to Fox. The Com- pany agreed to take McKeeman back if the Union could show that McKeeman was "taking the cure." The proof apparently was supplied and McKeeman was taken back after approximately a week's absence. He was placed on probation for about 4 months after which his full seniority was restored. Another employee, Chester Crawley, was absent 4 con- secutive workdays from March 29 to April 1, 1966, without any word to the Company. On April 3 a man picked up Crawley's check and informed the Company that Crawley was going to Ohio to see a doctor. A request was made to Crawley to have him send the Company the doctor's name and address. Nothing more apparently was heard from Crawley and on April 21 a notice of termination was sent to him by certified mail. On May 6 Crawley returned and asked to be reinstated. Crawley filed a grievance and the Union pleaded his case with the Company. The result was an agreement between the Union and the Company in part as follows: Mr. Crawley will be reemployed Monday, 'June 27, 1966, on a probationary period basis. The probationary period will end December 31, 1966. On completion of his probationary period, Mr. Crawley 's plant seniority will be reinstated. The only case that appears to have been in accord with Respondents' claimed interpretation of the contract and the past practice involved one Lindsey Moore, a unit em- ployee with some 3 -1/2 years seniority. He quit late in 1970 to take other employment . About 10 days later he was re- hired as a new employee at the bottom of the seniority roster. 5 Five examples of action in connection with seniority were described in the evidence One, however, occurred back in 1950 . Since none of the present union officials were involved, I deem it not germane to the problem here. In any event it (as were three of the remaining four) shows action inconsistent with the claimed contract interpretation by Respondents 642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Conclusions In my opinion the admissions by the union officers that James would have been restored to his seniority but for his association with Dobbs and his filing of unfair labor prac- tice charges and the disparity of the union handling of the James matter 6 considered in the record as a whole fully warrant the conclusion that the Union's treatment of James was motivated by a mixture of improper and illegal consid- erations ; and that those considerations were known to the Company and the Union caused and attempted to cause the Company to discriminate against James with respect to terms and conditions of his employment so as to encourage union membership , with the Union thus violating Section 8(b)(1)(A) and (2) of the Act and the Company violating Section 8(a)(1) and (3) of the Act. I so find. Miranda Fuel Company, Inc., 140 NLRB 181; Hughes Aircraft Company, 159 NLRB 1080 ; International Union, United Automobile, Aerospace and Agricultural Implement Workers, AFL-CIO and Amalgamated Local 453, 149 NLRB 482. IV THE REMEDY Having found that respondent Company has engaged in unfair labor practices violative of Section 8(a)(l) and (3) of the Act, and that Respondent Union has engaged in unfair labor practices in violation of Section 8(b)(1)(A) and 8(b)(2) of the Act, 1 shall recommend that each cease and desist from its respective unfair labor practices and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent Company discriminatori- ly failed to credit Gilbert James with his full seniority in violation of Section 8(a)(1) and (3) of the Act, and that Respondent Union caused such discrimination thereby vio- lating Section 8(b)(1)(A) and 8(b)(2) of the Act, I shall rec- ommend that Respondent Employer reinstate Gilbert James to a seniority status based on his total past service with the Company and to a work classification to which he would have been entitled by his restored seniority and make him whole for all losses incured by him by reason of layoffs, lost work opportunities, wage rate differentials, and loss of overtime as a result of his loss of seniority. The backpay obligation will include interest at the rate of 6 percent per annum with the loss of pay and the interest to be computed in accordance with the formula and method prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. CONCLUSIONS OF LAW Upon the basis of the foregoing findings of fact and upon the entire record in this proceeding I make the following conclusions of law: b it is difficult to see how restoration of broken seniority of a man ill as a result of alcoholism or otherwise is any more tolerable to the Union than one with some other emotional or physical illness 11 agree with the General Counsel that any attempt here to rely on the Collyer deferral policies is clearly misplaced Kansas Meat Packers, 198 NLRB No 2 1. Respondent Union is a labor organization within the meaning of Section 2(5) of the Act 2. Respondent Employer is an employer within the meaning of Section 2(2) of the Act. 3. By discriminating against Gilbert James as found above Respondent Employer has engaged in unfair labor practices within the meaning of Section 8(a)(3) and 8(a)(1) of the Act. 4. By attempting to and causing Respondent Employer to discriminate against Gilbert James in violation of Section 8(a)(3) of the Act as found above. Respondent Union has engaged, in unfair labor practices within the meaning of Section 8(b)(2) and 8(b)(1)(A) of the Act. 5. The aforesaid violations are unfair labor practices af- fecting comerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDERS A. Architectural Products Division, H. H. Robertson Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Encouraging membership in Local Union No. 519, Sheet Metal Workers International Association, AFL-CIO, or any other labor organization, by not crediting employees with past seniority or otherwise discriminating against em- ployees with respect to their hire or tenure of employment in a manner not authorized by membership requirement provisions of Section 8(a)(3) of the Act. (b) In any like or related manner interfering with, re- straining, or coercing any employee in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative actions which I find will effectuate the policies of the Act: (a) Reinstate Gilbert James to a seniority status based on his total past service with the Company and to a work classification to which he would have been entitled had his seniority not been broken and jointly and severally with Respondent Union make him whole for all losses incurred by him by reason of layoffs, loss of work opportunities, wage rate differentials, and loss of overtime as a result of his loss of seniority in the manner provided in the section above entitled "The Remedy." (b) Preserve and, upon request, make available to said Board and its agents, for examining and copying, all payroll records, social security records, timecards, and other re- cords that are relevant to a determination of any right of reinstatement and amount of backpay due under this order. (c) Post in conspicuous places at Respondent Company's place of business in Connersville, Indiana, including all places where notices to employees are customarily posted, copies of the notice attached hereto and marked "Appendix s In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions , and recommended Order herein shall, as provided in Section 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes ARCHITECTURAL DIVISION, H. H. ROBERTSON CO. A." 9 Copies of said notice, to be furnished by the Regional Director for Region 25, shall after being duly signed by an authorized representative of Respondent Company, be posted by it immediately upon receipt thereof and main- tained by it for 60 consecutive days thereafter in such con- spicuous places. Reasonable steps shall be taken by Respondent Company to ensure that the notice is not al- tered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 25, in writ- ing within 20 days from the date of receipt of a copy of this Decision what steps Respondent Company has taken to comply herewith. B. Respondent Union, its officers, agents, successors, and assigns shall: 1. Cease and desist from: (a) Causing or attempting to cause Architectural Prod- ucts Division, H. H. Robertson Company, to not credit seniority or otherwise to discriminate against employees with respect to their hire or tenure of employment in a manner not authorized by the membership requirement provisions of Section 8(a)(3) of the Act. (b) In any like or related manner restraining or coercing any employee in the exercise of rights guaranteed by Section 7 of the Act. 2. Take the following affirmative actions which I find will effectuate the policies of the Act: (a) Jointly and severally with Respondent Company make Gilbert James whole as provided in the section above, entitled "The Remedy." (b) Post in conspicuous places, including places where notices to members are customarily posted, and its usual membership meeting place, copies of the notice furnished herewith and marked "Appendix B."10 Copies of said notice to be furnished by the Regional Director for Region 25, shall, after being signed by a duly authorized representative of Respondent Union be posted by it immediately upon receipt thereof and maintained by it for a period of 60 consecutive days thereafter. Reasonable steps shall be taken by Respondent Union to ensure that said posted notice is not altered, defaced or covered by any other material. (c) Forthwith mail copies of said notice marked "Appen- dix B" to said Regional Director after the copies have been signed as provided above for posting by Respondent Com- pany, if it so agrees, at the places where Respondent Com- pany is required to post copies of the notice "Appendix A." (d) Notify the Regional Director for Region 25 in writing within 20 days from the date of receipt of a copy of this Decision what steps Respondent Union has taken to com- ply herewith. 9 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 " iO See fn 9 APPENDIX A NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 643 WE WILL NOT encourage membership in Local Union No. 519, Sheet Metal Workers International Associa- tion, AFL-CIO, by not crediting seniority or otherwise discriminating against employees with respect to their hire or tenure of employment in a manner not author- ized by the membership requirement provisions of Sec- tion 8(a)(3) of the National Labor Relations Act, nor interfere in any like or related manner with the rights of our employees guaranteed by Section 7 of the Act. WE WILL reinstate Gilbert James to his seniority sta- tus based on his total past service with the Company and to a work classification to which he would have been entitled by his restored seniority and, jointly and severally with said union, make him whole for all losses incurred by him by reason of layoffs, lost work oppor- tunities, wage rates differentials and loss of overtime as a result of the discrimination against him. ARCHITECTURAL PRODUCTS Di- VISION, H. H. ROBERTSON COMPANY (Employer) 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 compliance with its provisions may be direct- ed to the Board's Office, ISTA Center-6th Floor, 150 W. Market Street, Indianapolis, Indiana 46204, Telephone 317 -633-8921. APPENDIX B NOTICE To MEMBERS POSTED BY OORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT cause or attempt to cause Architectural Products Division, H. H. Robertson Company, to not credit past seniority or otherwise discriminate against employees with respect to their hire or tenure of em- ployment in a manner not authorized by the member- ship requirement provisions in Section 8(a)(3) of the National Labor Relations Act, nor interfere in any like or related manner with the rights of employees guaran- 644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD teed by Section 7 of the Act. This is an official notice and must not be defaced by WE WILL jointly and severally with Architectural anyone. Products Division, H. H. Robertson Company, make This notice must remain posted for 60 consecutive days whole Gilbert James for any loss of pay he may have from the date of posting and must not be altered, defaced, suffered as a result of the discrimination against him or covered by any other material. Any questions concerning this notice or compliance with its provisions may be direct- LOCAL UNION No 519, SHEET ed to the Board's Office, ISTA Center-6th Floor, 150 METAL WORKERS INTERNATION- W. Market Street, Indianapolis, Indiana 46204, Telephone AL ASSOCIATION AFL-CIO 317-633-8921. (Labor Organization) Dated By (Representative) (Title)