United Sheet Metal Co., Inc.

National Labor Relations Board - Board Decisions

Jun 23, 1967

166 N.L.R.B. 1 (N.L.R.B. 1967)

UNITED SHEET METAL CO.
United Sheet Metal Co., Inc. and William W.
Mackie , An Individual
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
United Sheet Metal Co., Inc. and Donald J. Lantz,
Jr., An Individual
Sheet Metal Workers' International Association,
Local No. 98, AFL-CIO and William W. Mackie,
An Individual
Sheet Metal Workers' International Association,
Local No. 98, AFL-CIO and Donald J.Lantz, Jr.,
An Individual. Cases 9-CA-4063, 9-CA-4149,
9-CB-1348, and 9-CB-1371
June 23,1967
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On April 17, 1967, Trial Examiner Arthur M.
Goldberg issued his Decision in the above-entitled
proceeding, finding that the Respondents had not
engaged in the unfair labor practices alleged in the
complaint and recommending dismissal of the com-
plaint, as set forth in the attached Decision.
Thereafter, the General Counsel filed exceptions
and a supporting brief, and the Respondent Union
filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
brief, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner. I
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner, and hereby
orders that the complaint herein be, and it hereby is;
dismissed in its entirety.
I The General Counsel excepts to certain credibility findings made by
the Trial Examiner . Under the Board's established policy not to overrule
a Trial Examiner 's credibility findings unless a clear preponderance of all
the relevant evidence convinces us that they were incorrect , we find no
basis for distrubing the credibility findings made by the Trial Examiner in
this case . Standard Dry Wall Products , Inc., 91 NLRB 844, enfd. 188
F.2d 362 (C A. 3).
ARTHUR M. GOLDBERG, Trial Examiner: Upon
charges filed on October 3, 1966, by William W. Mackie,
an individual, the consolidated complaint herein issued on
November 23, 1966, alleging that Sheet Metal Workers'
International Association, Local No. 98, AFL-CIO
(herein called the Union or Sheet Metal Workers), in
violation of Section 8(b)(1)(A) and (2) of the National
Labor Relations Act, as amended (herein called the Act),
caused United Sheet Metal Co., Inc. (herein called the
Employer or United), to discharge Mackie and Vore' in
violation of Section 8(a)(3) and (1) of the Act. In addition,
United was alleged to have violated Section 8(a)(1) of the
Act by threatening employees on two occasions if they
did not accept a proposed collective-bargaining agree-
ment. United admitted the discharges but denied any
violation of the Act. The Union denied all material allega-
tions of the consolidated complaint.
At the opening of the hearing General Counsel moved
to consolidate with the consolidated complaint allegations
raised by charges filed that day by Donald J. Lantz, Jr.,
an individual, asserting that United had discharged him
together with Mackie and Vore for the same unlawful
purpose.2 Respondents amended their answers to deny
the additional allegations.
All parties participated at the hearing conducted by
Trial Examiner Arthur M. Goldberg at Columbus, Ohio,
on January 10, 11, and 12, 1967, and were afforded full
opportunity to be heard, to introduce evidence, to ex-
amine and cross-examine witnesses, to present oral argu-
ment, and to file briefs. Oral argument was waived and
briefs were filed by all parties. Motions made by Re-
spondent's at the close of General Counsel's case to dis-
miss the consolidated complaint in whole or part, on
which I reserved ruling until issuance of this Decision,
are disposed of in accordance with my findings below.
Upon the entire record in the case, on my reading of the
briefs, and from my observation of the witnesses and their
demeanor, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT EMPLOYER
The complaint alleged, the answers did not controvert,
and I find that United Sheet Metal Co., Inc., is and has
been at all times material herein an Ohio corporation,
with a place of business at Westerville, Ohio, among
other.places, where it is engaged in the manufacture of
sheet metal products. Only the Westerville location is in-
volved in this proceeding. During a representative 12-
month period United had a gross volume of business in
excess of $500,000. During the same representative
period United purchased goods and materials valued in
excess of $50,000, which were shipped directly to its
Westerville place of business from points outside the
State of Ohio.
The spelling of Vore's name was corrected by amendment made at the
hearing.
s Upon General Counsel's representations that the facts to establish
Lantz's case were the same in major respect as those pertaining to Mackie
and Vore, the motion to amend was granted as falling within the scope of
Section 102.17 of the Board 's Rules and Regulations , Series 8, as
amended. Cf. Russell-Newman Mfg. Co. v. N.L.R.B., 370 F.2d 980 (C. A.
5), rehearing denied at 987
166 NLRB No. 13
2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent Employer is, and has been at all times
material herein, an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act and meets
the Board's standards for asserting jurisdiction.
11. THE LABOR ORGANIZATION INVOLVED
from these its products are sold to sheet metal contrac-
tors. United and Metalbestos do not compete in the same
product market.5
The collective-bargaining agreement between Metal-
bestos and the Union is, as in the case of United's
packing, shipping, and warehouse employees, a Produc-
tion Contract.
Sheet Metal Workers' International Association, Local
98, AFL-CIO, is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
1. United's operations
United operates five plants, four in Ohio and one in
California. Only the Westerville, Ohio, plant is involved
in this proceeding. All of the 200 employees at the plant
are covered by collective-bargaining agreements with the
Sheet Metal Workers. The employees who are engaged
in fabrication of United's products for use with high
velocity air-conditioning equipment work under the terms
of the contract negotiated between the Union and the
Mechanical Contractors Association of Central Ohio,
Inc. This agreement referred to as the Standard Form of
Union Agreement, provides, inter alia, that only jour-
neymen and apprentice sheet metal workers shall be em-
ployed in this fabrication.
Terms and conditions of employment for those em-
ployees who work in United's packing, shipping, and
warehouse departments are provided in a separate agree-
ment negotiated directly by United and the Union. This
collective-bargaining agreement is referred to as the
Production Agreement.3
During the summer of 1966,' United had approximate-
ly 160 employees engaged in fabrication work. Some 100
of these were employed on the first shift from 7 a.m.
until 3:30 p.m. The balance of 60 fabrication employees
worked the second shift from 4 p.m. until 12:30 a.m.
In addition to the fabrication employees, United's out-
side erection crews work under the Standard Form of
Union Agreement. During 1966 between 20 and 30 of the
day-shift fabrication employees were used as well on out-
side erection work.
As developed by General Counsel in examination of
Union Business Agent Harrison, to work in the United
shop employees must be very qualified in the sheet metal
trade.
2. Metalbestos' operations
The Wallace-Murray Corporation, Metalbestos Divi-
sion of the William Wallace Division (herein called
Metalbestos) employs approximately 100 members of the
Union at its plant in Logan, Ohio. Metalbestos began
operations in Logan about June 1959 and has maintained
contractual relations with the Union since September of
that year.
Metalbestos manufactures venting equipment, primari-
ly for use in residential heating. Its employees perform all
of their work in the Metalbestos factory. The company
maintains a warehouse system across the country and
See section 111, A, 3, infra entitled "The Union's operations"
Unless otherwise indicated all dates are in 1966.
This description of the Metalbestos operation is based on the uncon-
tradicted and credited testimony of Union Business Agent Harrison
3. The Union 's operations
The Union , a local of the Sheet Metal Workers' Inter-
national Association , AFL-CIO (herein called the Inter-
national), includes among its members journeymen sheet
metal workers, apprentice sheet metal workers, and
production workers.
Production members are those employed in industrial
establishments on work not traditionally within the build-
ing trades jurisdiction . While production members may
perform some of the tasks normally performed by jour-
neymen and may possess some of a journeyman 's skills,
they are workers who have not demonstrated their ability
in the broad gamut of functions a journeyman must per-
form.
Journeymen may work at repetitious work such as the
fabrication of high velocity pipe and fittings at United.
However , at the average sheet metal shop a journeyman
is handed a blueprint and must then lay out the work him-
self and fabricate it there or go out and erect the assigned
work at the construction site. On another occasion a jour-
neyman may measure at the worksite a job to be done,
return to the shop to lay out and fabricate the work, and
then return to the jobsite and there install what he has
fabricated.
In addition to Metalbestos, the Union has production
contracts with employers manufacturing store show-
cases, kitchen equipment , and metal signs in quantity.
Production members' monthly dues are $5.25, while jour-
neymen pay $11.25. However , all members, journeyman
or production, are eligible to run for union office and all
cast the same ballot.
Lincoln Baird , business manager and financial secreta-
ry, is the Union's chief officer . Baird helps to service the
Columbus area which includes Westerville and the
United plant. Robert Harrison, business agent for the
Metalbestos plant , has no connection with United.
The International has appointed George Dowler as its
representative in the area serviced by the Union. In the
course of his duties Dowler investigates complaints and
disputes which may arise within the International and its
affiliates in the area he serves.
Regular meetings of the Union are held in Columbus.
Meetings of the Metalbestos employees are held in Logan
as the need arises. However , the Union 's members at
Metalbestos do not constitute an officially recognized
body within the Union 's organizational structure.6
4. The roads to journeyman status
Two means are provided for achieving sheet metal
journeyman status. A young man between the ages of 18
and 23 may enter the apprenticeship program from which
he will emerge after 4 years as a journeyman. Otherwise,
a person who believes he possesses the requisite skills to
perform journeyman work may take an examination
6 This description of the Union's operation is based on a synthesis of
the uncontradicted and credited testimony of Baird, Harrison, and
Dowler
UNITED SHEET METAL CO. 3
prepared and administered by the Union' s Examining
Committee. Journeyman status is acquired by passing
such a test and payment of the current initiation fee of
$439 (100 times the present journeyman hourly rate of
$4.39).
As Baird credibly explained, a young man wishing to
enter the apprenticeship program registers with the Joint
Apprentice Committee and then must take an aptitude
test given by the State of Ohio. The State in turn reports
the results of this test to the Joint Apprentice Committee.
After an interview by the Committee the man is assigned
to a sheet metal shop where he works at the trade for 4
years and attends classes 2 nights each week. Upon suc-
cessful completion of this program the apprentice gradu-
ates as a journeyman.?
Experienced sheet metal workers who believe them-
selves capable of performing journeyman tasks may
demonstrate their proficiency by applying for and passing
a test administered by the Union's Examining Commit-
tee. Such a person is known as an applicant. The appli-
cant fills out a standard application at the Union's office,
indicating, among other things, his five last places of em-
ployment. Thereafter, the applicant is interviewed and, if
he appears on the basis of his application and the inter-
view to possess the necessary experience to qualify, is
referred to a sheet metal shop where he works at the trade
until a sufficient group of applicants is on hand to warrant
administration of an examination. While so employed the
applicant each day pays $3 which is applied to the initia-
tion fee in the event he passes the examination. The ex-
amination given covers all phases of sheet metal work in-
cluding field erection, shop fabrication, and the use of dif-
ferent types of equipment. During the examination the
applicant is given a drawing which he must scale down,
lay out the work to be performed, and make it up with
paper supplied. This part of the test involves the use of a
drawing board and ancillary equipment.
Journeyman status cannot be achieved short of satisfy-
ing the apprenticeship program or passing the examina-
tion. General Counsel eschews any allegation that there
is a violation of the Act in either the matter of the Union's
maintaining the two types of membership , journeyman
and production, or in the manner or method provided for
the acquisition of journeyman status.
B. The Metalbestos Strike
1. The strike begins on June 30
The Union's contract with Metalbestos expired at mid-
night June 30. That evening a meeting of the Metalbestos
employees was held in Logan. Present were Baird, Har-
rison, and International Representative Dowler. The
union officials recommended rejection of the Company's
offer of 7 cents per hour for each of 3 years. However,
they asked that the contract be extended for a 2-week
period to permit further negotiations without loss of
work. After the employees rejected this proposal, the
union officials suggested that the collective agreement be
extended for I day so that the employees who worked on
July 1 would be eligible for holiday pay for the July 4th
holiday, which fell that year on the following Monday, the
next regularly scheduled day of work. The Union had no
9 During the hearing various witnesses referred to journeymen as those
holding Building Trades cards. Additionally the practice appears to be to
refer to journeymen as holders of "Class A" cards and to production
members of the Union as "Class B" cardholders. While the use of the
designations "Class A" and "Class B" is widespread in the industry, no
strike fund and the International had refused to authorize
strike benefits for a local strike. Baird, Harrison, and
Dowler proposed that with the 2 days' pay a fund could
be started to pay benefits to the striking Metalbestos em-
ployees. This proposal, too, was rejected by the assem-
bled employees.
At the June 30 meeting a number of employees asked
why the Union could not obtain building trades wages of
$4.39 an hour at Metalbestos . Baird explained that Metal-
bestos' products did not sell in what is considered the
building trades industry and that its competitors did not
pay building trades wages. However, Baird said he did
not think it would be necessary to accept a new contract
which provided less than a 15-cent-per-hour increase.
The union officials told the Metalbestos employees
they would attempt to secure work for the strikers with
building trades employers in the area.
The strike commenced that night and did not end until
September 26.8
Thereafter the Union placed a telephone at the picket
line which was used , in part , as a means of notifying the
striking employees when and where work was available
to them.
2. United hires Metalbestos strikers
At the time of the Metalbestos strike Baird had
requests from a number of employers , including United,
that he refer sheet metal journeymen to them , if available.
Shortly after commencement of the strike, Baird called
James D. McGill, United's president, to ask if the
Respondent Employer would employ some striking
Metalbestos employees , explaining that they would
receive journeyman wages. McGill left the decision to
Plant Superintendent Richard Horton. Horton agreed to
try some of the Metalbestos employees after Baird ex-
plained there were certain phases of the work at Metal-
bestos which were comparable to some operations at
United.
Thereupon Baird telephoned the picket line and
directed that 12 strikers , the number Horton had agreed
to take, be sent to United. Baird gave directions on how
to get to the United plant and to whom the employees
were to report. Although Baird did not specify which of
the strikers were to be sent , he did direct that men with
certain job skills be selected.
As a result of Baird 's arrangement with Richard Hor-
ton, United employed about 30 Metalbestos strikers.
These employees came to United in several groups. No
commitments were made to them as to length of employ-
ment.
Two Metalbestos employees , William Mackie and
Leon Kieffer, came to United after first abandoning a job
with another sheet metal contractor. Wayne Manufactur-
ing Company in McConnelsville had asked the Union for
two men to help erect a metal building . Mackie and
Kieffer were sent. After 1 day they decided they would
prefer to work at United and without notice to Wayne
went the next day to the Respondent Employer where
they were put to work.
In addition to United, a number of other sheet metal
employers hired Metalbestos strikers. During the course
such identification appears on the Union 's dues receipt , which is the only
evidence of membership issued.
8 The account of the June 30 meeting is based on a synthesis of the
credited testimony of Baird, Harrison, Dowler, and Orley Vote.
4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the strike about 60 of the approximately 90 strikers
were, from time to time, employed at journeyman wages.
3. The strike goes on
The picket line at Metalbestos went well for the Union
until about August 1. Approximately two-thirds of the
strikers had been placed on other jobs and it fell to the
remaining 30 strikers to maintain the picket line. Addi-
tionally, money to pay the pickets was not forthcoming
from those for whom the Union had obtained employ-
ment. A meeting of the Metalbestos people was called in
Logan on August 7.
While it appears that the main purpose of this meeting
was to increase employee contributions to the strike fund,
the state of negotiations with Metalbestos was discussed
as well.
The union officials first suggested that those employed
contribute to the strike fund the difference between their
normal wages at Metalbestos and what they were earning
in sheet metal shops. After this was rejected it was then
proposed that each employed striker contribute $3 per
day. This idea also was voted down. Finally it was left to
each to decide what he would give.
However, as a result of this pressure a number of
Metalbestos employees, including Mackie, who had not
theretofore contributed to the strike fund, began to help.
Thereafter, Mackie wrote to the general president of the
International complaining about the lack of strike
benefits. This letter was referred to International
Representative Dowler for investigation.9
C. The Events of September 1
By the end of August the Union and the Metalbestos
negotiating committee had received an offer from Metal-
bestos which they wished to submit to the membership.
Accordingly, a meeting of the Metalbestos employees
was called for 7:30 p.m. on September 1 in Logan . It is al-
leged that the Union, through Richard Horton, United's
plant manager, brought pressure on the Metalbestos em-
ployees working at United, by means of unlawful threats,
to accept Metalbestos' wage offer.
1. Richard Horton's alleged threats
As noted, United maintains a two-shift operation.
Some of the Metalbestos employees had been placed on
the day shift, others worked the second shift.
Lantz testified that the day before the scheduled Sep-
tember I meeting, Charles (Chuck) Horton, Richard's
brother and night-shift foreman, said he would have to lay
off Lantz. Chuck Horton explained, Lantz testified, that
Lincoln Baird had called and said to lay off all the Metal-
bestos men. Horton is alleged to have concluded by
telling Lantz they might as well go ahead and accept the
proposed contract as they had no jobs at United.
Orley Vore recalled that Foreman Moore had told him
on September 1 that Richard Horton had said to pass the
word that Friday (September 2) would be the last day of
work for the Metalbestos strikers. At the end of his shift
that day, Vore took his tools with him, although he
usually left them at work.
Leon Kieffer testified that Moore had said Friday, Sep-
tember 2, was their last day of work but if United worked
overtime on Saturday, September 3, the Metalbestos men
could come in that day as well.
General Counsel's final witness on the point, Mackie,
attributed to Richard Horton the statement that the
Metalbestos men might as well vote for the Metalbestos
contract as they would be laid off on Friday. However,
Mackie recalled as well that Horton had said they could
work on Saturday if United operated that day.
Lantz and Mackie added that at the September 1 meet-
ing a fellow employee, Stover, had accused the Union of
causing the layoff at United and that Lantz had accused
United of using the layoff to force the employees to ac-
cept the Metalbestos offer.
The Respondents deny that any threats were made.
Baird testified that in a telephone conversation he had ad-
vised Richard Horton of the scheduled meeting to con-
sider the contract proposal. His concern, Horton stated,
was losing all of the Metalbestos people at one time.
Chuck Horton, night-shift foreman, testified that rather
than laying off employees, he was told by them they
would not be in because they had to pass on the contract
proposal.
I find that General Counsel has failed to prove the al-
leged threat. While I am loathe to accept or reject
testimony solely upon a witness' demeanor while testify-
ing, with Lantz and Mackie I have no such reluctance.
Both appeared most anxious to "nail" the Respondents.
When, for example, Lantz was called as a rebuttal wit-
ness, he recalled an occasion in late August when he had
happened on a meeting of Metalbestos employees at
United with a man in a white shirt who Lantz claimed he
later learned was Baird. Lantz claimed to have attacked
the Union and Harrison vigorously at that time , using ripe
language in the process. Only later did he learn that the
man in the white shirt was Baird. But Lantz admitted he
had attended the union meetings on June 30 and August
7 and had known Baird then. At this point Lantz shifted
the occasion when he claimed to have attacked the Union
and Harrison to a point in time before the two union
meetings. I conclude that Lantz' story of the confronta-
tion with Baird was cut from the whole cloth but was con-
sonant with his general demeanor. Mackie displayed an
all consuming desire to earn journeyman wages though he
did not evidence a willingness to meet the qualifying stan-
dards. Whereas Vore expressed surprise that he was paid
as a journeyman at United, Mackie's reaction was that he
had been cheated when not paid as a journeyman by
Metalbestos. Further Mackie's confused efforts to retain
his job at United is evidenced by his purchase of 13
shares of stock in that company, which he believed would
help guarantee his employment by United. I do not find
Lantz or Mackie worthy of belief.
We are left then with Vore's and Kieffer's testimony
that Foreman Moore had advised them that Friday, Sep-
tember 2, was their last day, other than possible overtime
on Saturday. Rather than a threat and pressure to accept
the Metalbestos proposal, I find this a natural reaction to
notification from the Union that the striking employees,
after 2 months of picketing, were to vote on a new wage
proposal. It was eminently reasonable for United's
management to expect that the contract would be ap-
proved and that the Metalbestos strikers would thereafter
leave United and return to their regular place of employ-
" Unless otherwise indicated this narrative and that which follows is
based on a synthesis of substantially uncontradicted testimony
UNITED SHEET METAL CO.
ment . Equally consistent with such an expectation was
Vore's removal of his tools from United.
2. The meeting on September 1
At a meeting of the Metalbestos employees in Logan
on September 1, a wage offer of 1 I cents , per hour for
each of 3 years of a new contract was rejected by a 62
"no" to 28 "yes" vote of the employees.
Employee Phil Carter , seconded by Leon Kieffer, at-
tempted to block any vote at all that night, claiming the
Union had not given adequate notice for the meeting.
Carter , in particularly lurid language , questioned the
Union's actions and warned that they had to be watched.
Baird was not present in Logan that night as he was at-
tending the graduation of a class of apprentices in Colum-
bus. Business Agent Harrison and International
Representative Dowler were the union officials present.
Two employee members of the negotiating committee felt
that the 11-cent offer was the best that could be had,
while the third employee member favored rejecting the
offer in the belief that more could be gotten from Metal-
bestos. In the discussion , Vore recalled Baird 's earlier
statement that he felt the minimum for a new contract
would be 15 cents an hour.
As noted , Lantz testified that he and Stover accused
the Union and United of laying off the Metalbestos
strikers working at United to pressure them into accept-
ing the proposed settlement.
Mackie suggested a motion to throw the Union out and
permit it to return to Metalbestos if the employees were
reorganized as sheet metal journeymen with Class A
cards. At this point Dowler attempted to report on his in-
vestigation of Mackie's complaint to the International
concerning the lack of strike benefits. Dowler got as far
as noting that Mackie had earned over $700 when Orley
Vore cut Dowler off and the discussion ended.
After the meeting Dowler met Baird in Columbus, ad-
vised him that the proposed strike settlement had been re-
jected and told him of Mackie 's remarks . Baird counseled
Dowler to forget the matter in view of the source. As
Baird would be away the next day he asked Dowler to
stop at United and tell Horton of the rejection of the set-
tlement and the continued availability of the Metalbestos
strikers for work at United . This Dowler did.
The Metalbestos employees working at United
returned and, with the exception of the four discharged on
September 7, continued at United until the strike was set-
tled.
D. The Discharges
On September 7 United discharged four of the Metal-
bestos strikers it had employed. Vore and Mackie had
been working the day shift, while Lantz and Fred Weis
had been on the second shift. General Counsel alleges
that the Union caused United to discharge Mackie, Vore,
and Lantz1 ° because those employees opposed the
Union's policies and endeavored to achieve journeyman
status. The Union denies that it played any role in
United 's selection of the employees for discharge . United
10 Weis did not file a charge and neither Mackie nor Lantz saw fit to in-
clude Weis in the charges they brought
11 Lantz testified that at the time Chuck Horton notified him of his
layoff Horton said, "He heard we done some talking down at that Union
meeting and he got his ass chewed out for it He was going to lay [Lantz]
5
asserts that it terminated the four Metalbestos men
because applicants for journeyman status, prepared to
take the qualifying examination , became available for em-
ployment . I find no evidence in the record to support a
finding or even an inference that the Union caused the
discharges or that United was motivated in selecting out
these particular employees by any consideration other
than their demonstrated expendibility.
Sometime prior to September 7 the Union had been en-
gaged in an effort to organize the employees who con-
structed the white metal stores which are the trademark
of the White Castle Company. In the course of this or-
ganizing campaign four employees , qualified sheet metal
mechanics who cooperated with the Union , expressed the
desire to achieve journeyman status and to work in a
union shop . They subsequently completed their applica-
tions for the qualifying examination and Baird notified
Horton he was sending the four applicants to United.
Richard Horton selected Mackie and Vore for layoff
from the day shift based on his own observation of their
working ability and on advice from Foreman Moore.
Chuck Horton selected Lantz" and Weis after Richard
Horton asked that he select from his shift those he
thought were making the least contribution. Chuck Hor-
ton limited his choices for layoff to Metalbestos men
because, from the beginning , United had realized the
strikers would leave when a contract had been agreed to
with their employer. 12
As noted earlier the collective-bargaining agreement
between the Union and United specifies that only jour-
neymen and apprentices may perform fabrication work.
Similiarly noted were the nondiscriminatory procedures
provided for achieving journeyman status. General Coun-
sel suggests no impropriety in either this requirement of
the contract or in the apprenticeship or testing procedure
for demonstrating journeyman ability.
The alleged discriminatees are not journeyman sheet
metal workers . At no time have the alleged discriminatees
taken the necessary steps to secure such standing. It was
eminently reasonable therefore for the Hortons to prefer
as employees applicants for the qualifying examination,
whose tenure of employment was not limited by their own
inadequacies , to any of the Metalbestos strikers who,
under the contract , could not be employed permanently.
Moreover , there is nothing in the record to challenge the
Hortons' evaluation of the relative abilities of the alleged
discriminatees and their fellows. Finally, the record is
equally devoid of any evidence linking the Union to the
selecting out process.
A word must be directed to General Counsel 's conten-
tion that a finding of union animosity toward these three
employees can be based on their opposition to union poli-
cies and their efforts to secure "Class A" cards. The
record reveals that opposition `to the Union 's position was
widespread at Metalbestos. Thus, two union suggestions
to extend the contract prior to the strike were rejected
and the proposed settlement submitted on September 1
was turned down by a better than 2-to-1 vote. As to in-
dividuals expressing their views , Mackie, Lantz, and
Vore were joined on September 1 with equal vigor by
Carter and Stover. Indeed , Carter and Kieffer attempted
entirely to prevent any vote that evening.
off." As noted I did not find Lantz to be a credible witness . In the absence
of corroboration I do not credit this testimony.
11 This evidence from Baird and the Hortons is uncontradicted on the
record. -
308-926 0-70-2
6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Concerning the employees ' efforts to obtain "Class A"
cards, it should be noted that here again the alleged dis-
criminatees were in the ranks of many seeking the same
goal. Indeed , Carter went on to take and fail the examina-
tion . The facts establish that the Metalbestos employees,
other than Carter, either never understood or were not
willing to abide by the requirements for achieving jour-
neyman status, although they were aware of the examina-
tion procedure . Mackie was willing to pay money for a
"Class A" card and offered to do so after being laid off by
United . Not having applied to take the nondiscriminatory
qualifying test , Mackie's offer to buy a card properly was
refused by Business Agent Harrison . Lantz and Vore did
not even try to buy their way into journeyman ranks.
Vore, when asked if he would have been interested in a
permanent job at United as a production worker replied,
"If I could determine what a production employee is
there. Did they-is it like you say, in production you
manufacture something, is that a Journeyman ?" Lantz
displayed equal ignorance of his own status at Metal-
bestos and the standards ajourneyman must meet. 13
However, the issue is not whether the employees un-
derstood or attempted to follow the approved course to a
journeyman level. Nor is the issue whether the Union im-
properly denied journeyman standing to these employees.
The question presented is whether the Union , to retaliate
against them for their misdirected efforts to secure the
benefits of a "Class A" card without qualifying therefore
and their opposition to certain union policies , caused
United to discharge Mackie, Vore, and Lantz. In all the
circumstances , including the total absence of evidence
linking the Union to the selecting out process , the uncon-
13 Lantz stated , as follows, his understanding of the difference between
"Class A" and "Class B" workers and the reasons for his own standing as
a production worker at Metalbestos " up at United I guess they are all
supposed to be able to do everything and they consider them Class A
Which as far as I can see, I have never been , but all it amounts to is two
different pay scales "
14 On September 23 the employees, by a narrow margain , accepted
Metalbestos ' offer of 12 cents per hour for the first year and I I cents per
hour for each of the next 2 years, I cent over the proposed rejected on
September I The strike ended on September 26 Except for a mere hand-
ful, all Metalbestos employees , including all who worked at United during
the strike , returned to their jobs with Metalbestos
11 General Counsel requests that I take official notice of an Inter-
tradicted and convincing evidence that among the Metal-
bestos employees working for United those discharged
were the least satisfactory , and their failure to undertake
the steps necessary to qualify themselves for employment
as journeymen , I cannot find that because they, among
others, spoke against certain union positions , Mackie,
Lantz, and Vore were selected from all others to be sub-
jected to discriminatory treatment 14
On the basis of the foregoing findings of fact and upon
the entire record's in the case , I make the following:
CONCLUSIONS OF LAW
I United Sheet Metal Co., Inc., is engaged in and dur-
ing all times material has been engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Sheet Metal Workers ' International Association,
Local No. 98 , AFL-CIO, is, and at all times material has
been , a labor organization within the meaning of Section
2(5) of the Act
3 Respondent Employer has not engaged in unfair
labor practices within the meaning of Section 8(a)(1) and
(3) of the Act.
4 Respondent Union has not engaged in unfair labor
practices within the meaning of Section 8(b)(I)(A) and (2)
of the Act.
5. The complaint should be dismissed in its entirety.
RECOMMENDED ORDER
It is recommended that the Board enter an Order
dismissing the complaint in its entirety.
mediate Report and Recommended Order issued on June 6, 1960, by
Trial Examiner Bisgyer finding that United had violated Section 8(a)(1)
and (3 ) of the Act No exceptions were filed to the Trial Examiner 's Deci-
sion General Counsel's motion is granted However , that Decision
covers matters in 1959, 7 years before the events herein , at a time when
United 's plant superintendent and supervisory staff and the Union 's busi-
ness manager were other than the present incumbents and United is now
represented by other counsel Most important , in that case there was
evidence of violation , in this there is none Accordingly , for all of the
reasons stated , I have afforded no weight to that case in reaching my deci-
sion herein N L R B v Park Edge Sheridan Meats, In( , 341 F 2d 725
(C A 2)