United Slate, Tile and Composition Roofers

National Labor Relations Board - Board Decisions

Apr 3, 1973

202 N.L.R.B. 851 (N.L.R.B. 1973)

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 "