Airtron, Inc.

National Labor Relations Board - Board Decisions

Sep 29, 1972

199 N.L.R.B. 372 (N.L.R.B. 1972)

372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Barwise Sheet Metal Co., Inc ., a Division of Airtron,
Inc.; American Air Conditioning Co., Inc.; Fahnes-
tock, Inc., a Division of Airtron Inc.; and Airtron
Inc., as Joint and Successor Employers and Sheet
Metal Workers International Association Local Un-
ion No. 29, affiliated with the Sheet Metal Workers
International Association . Case 17-CA-4792
September 29, 1972
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND PENELLO
On March 14, 1972, Trial Examiner Joseph I.
Nachman issued the attached Decision in this pro-
ceeding . Thereafter, the Respondents and the General
Counsel filed exceptions and supporting briefs, and
the Respondents 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 au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
briefs and has decided to affirm the Trial Examiner's
rulings , findings , and conclusions and to adopt his
recommended Order as modified herein.
The Trial Examiner found that Respondents viola-
ted Section 8(a)(5)by unilaterally changing the wages,
hours , and terms and conditions of employment of its
employees and by thereafter failing and refusing to
comply with the terms of its contract with the Union.
He further found that it was unnecessary to decide
whether Section 8(a)(3) was violated as alleged in the
complaint because the remedy for such a violation
would be the same as that required to remedy the
8(a)(5) violation . The General Counsel excepts, con-
tending the Trial Examiner should have ruled on that
allegation and found that Danny T. Duckett and
Gary Thompson were constructively discharged and
that the eight employees who took nonunion jobs with
Barwise were discriminated against by a reduction of
their rate of pay by the Respondents , in violation of
Section 8(a)(3) of the Act. We find merit in the Gener-
al Counsel's exceptions.
The essential facts upon which the General Coun-
sel bases the alleged violations of Section 8(a)(3) are
fully set forth in the Trial Examiner 's Decision (begin-
ning with the second full paragraph of his section enti-
tled "Current Facts"). In late March or early April
1971,' Gary Thompson and Dan Duckett asked Julius
Marvel , superintendent of Respondents , about cer-
tain rumors concerning Respondents ' "going nonun-
1 All dates refer to 1971 unless otherwise indicated.
ion." Marvel said he had heard the rumors but did not
know for sure. A month later Marvel visited Thomp-
son at a jobsite and told him he had to make a deci-
sion as to whether he (Thompson) was going to "stay
in" the Union or stay with the Company. Thompson
said he would retain his membership in the Union and
quit Respondents. Shortly thereafter Duckett tele-
phoned Marvel to seek confirmation as to whether the
Respondents were going nonunion. Marvel con-
firmed Respondent would be nonunion and told
Duckett he had to decide if he would stay with the
Union or stay with the Company. Duckett indicated
that because he had secured union employment in
Kansas City and would be fined by the Union if he
worked in a nonunion shop he did not seek further
employment with Respondents. Duckett went to
Kansas City and remained there. Thompson also
went to Kansas City but returned after 1 week (for
family reasons) and asked Marvel for a union job.
Marvel gave him a union job at a Wichita location.
Thompson eventually left Respondents after the job
was completed because he knew there was no more
union work available and he had elected to stay with
the Union.
The eight employees who remained to work for the
nonunion company, Barwise, likewise were faced with
the decision to stay with the Union or the Respon-
dents. They chose to work for Barwise under nonun-
ion conditions which included substantial reductions
in their wage rates, but which would assure them of
a full week's work. Accordingly, at Marvel's request
they wrote out and gave him resignations from their
employment at American. Marvel, according to two
of the employees, would not accept the resignations
from the Union they offered him but rather insisted
their resignations be resignations from American.
Shortly thereafter the employees were assigned work
at Barwise. At Barwise they performed substantially
the same work they did for American and Marvel
continued to be their supervisor, as he had been when
they worked for American.
We agree with the General Counsel that Respon-
dents violated Section 8(a)(3) by constructively dis-
charging Thompson and Duckett and discriminating
with respect to wages and other terms of employment
against the eight employees who were transferred to
the Barwise payroll in early June. The record clearly
demonstrates that Respondents' motive in closing Re-
spondent American's operations and creating Barwise
was to rid themselves of the Union and escape from
being bound by the labor agreement and the obliga-
tions inherent in the collective-bargaining relation-
ship with the Union. Respondents admitted, in fact,
that they felt the Union and its contract with Ameri-
can had accounted for the Respondents' financial
problems which prompted it to form a nonunion com-
199 NLRB No. 64
BARWISE SHEET METAL CO.
pany. Respondents may also have had some eco-
nomic justification for their action, but that is no
defense for outright discrimination prohibited by Sec-
tion 8(a)(3). Part and parcel of Respondents' design
were their efforts to force out unit employees who
wished to retain their union membership and retain
only those who would drop their union affiliation.
Thus, Thompson's and Duckett's decisions to quit
their jobs at American were directly inspired by
Marvel's telling them the Respondents were going
nonunion and demanding that they decide between
the Union and further employment under nonunion
conditions. The warning was clear; Respondent
would no longer offer union work. This conduct clear-
ly establishes discrimination based on antiunion con-
siderations in violation of Section 8(a)(3).2
Those employees who quit the Union in order to
work on the Barwise payroll suffered discrimination
with respect to wages and other conditions of employ-
ment because of the Respondents' antiunion conduct.
(One unit employee, Elmer Pretschner, remained in
the Union and was retained on the payroll of Ameri-
can for the sake of appearance; he was paid the higher
wage rate in accordance with the union contract.
However, Pretschner performed the same unit work
as the Barwise employees were doing.) Such disparate
wage treatment by an employer based solely upon
union considerations is "inherently destructive of em-
ployee rights" and violates Section 8(a)(3)3 Accord-
ingly, we find that the Respondents' conduct as set
forth above was also violative of Section 8(a)(3) and
shall amend the Trial Examiner's findings, conclu-
sions, and recommendations accordingly.
ADDITIONAL CONCLUSION OF LAW
9. By constructively discharging Gary Thompson
and Dan Duckett and by discriminating with respect
to wages and other terms of employment against Roy
Affleck, Dan Flores, Owen Gould, Gary Highfill,
James D. Merchant, Michael D. Morrow, James B.
Savage, and Robert Scantin, the Respondents en-
gaged in unfair labor practices in violation of Section
8(a)(3) and (1) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Trial Examiner as modified below and
hereby orders that Respondents, Barwise Sheet Metal
Co., Inc., a Division of Airtron, Inc.; American Air
Conditioning Co., Inc.; Fahnestock, Inc., a Division
of Airtron, Inc.; and Airtron Inc., Wichita, Kansas,
their respective officers, agents, successors, and as-
373
signs, shall take the action set forth in the Trial
Examiner's recommended Order as so modified:
1. Insert the following as paragraph 1(a) and relet-
ter the following paragraphs accordingly.
"(a) Unlawfully terminating employees or other-
wise unlawfully discriminating in regard to their wag-
es and terms and conditions of employment."
2. Substitute the attached notice for the Trial
Examiner's notice.
2 AAA Electric, Inc and Simms Electric Co., 190 NLRB No. 23; Kamminga
& Roodvoets, Inc, 198 NLRB No. 37.
3 See N L R B v. Great Dane Trailers, Inc, 388 U.S. 26.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a full trial in which all sides had the opportunity
to present their evidence, the National Labor Rela-
tions Board has found that we violated the National
Labor Relations Act, and has ordered us to post this
notice. We intend to carry out the order of the Board,
the judgment of any court, and abide by the follow-
ing:
As the Board has found that we violated the law
when we unilaterally changed the wages, hours, and
working conditions of our employees in a unit com-
posed of all sheet metal employees, journeymen, ap-
prentices and foremen, with respect to which
employees we had entered into a contract with Sheet
Metal Workers Union Local 29, to remedy the viola-
tion of law so found:
WE WILL revoke and cease to give effect to the
changes we unilaterally instituted, except in such
particulars as Local 29 may request that a
particular change not be revoked.
WE WILL restore and place in effect all terms
and conditions of our contract with Local 29,
dated August 1, 1970.
WE WILL make all payment to the vacation,
welfare, and pension funds on behalf of those
employees in the unit for whom we previously
made contributions, and for whom such contri-
butions would have continued had we fully com-
plied with our contract of August 1, 1970, with
Local 29.
WE WILL, upon request, recognize and bargain
collectively with Local 29, as the representative
of the employees in the aforesaid unit, with re-
spect to rates of pay, wages, hours of work, and
374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other terms and conditions of employment. Dated By
WE WILL in all respects comply with the con-
tract of August 1, 1970, according to its tenor and
legal effect.
WE WILL offer Gary Thompson and Dan
Duckett their old jobs back, if the same exist, or
if not, to a substantially equivalent job, and WE
WILL make up to them as well as Roy Affleck,
Dan Flores, Owen L. Gould, Gary Highfill,
James D. Merchant, Michael D. Morrow, James
B. Savage, and Robert Scantlin, the pay they lost
by reason or failure to comply with our contract
of August 1, 1970, with Local 29, together with
6-percent interest.
Section 7 of the National Labor Relations Act
gives all employees these rights:
To organize themselves
To form, join, or help unions
To act together for collective bargaining or
other mutual air or protection
To refuse to do any or all of these things.
WE WILL NOT unlawfully discharge employees
or otherwise discriminate against them because
they are union members.
WEWILLNOT do anything to interfere with our
employees in the exercise of the aforementioned
rights.
WE WILL NOT tell our employees in the afore-
said unit that we have no work for them unless they
agree to work under conditions we unilaterally
impose, instead of the conditions provided in a
union contract by which we are bound.
BARWISE SHEET METAL CO., INC.,
A DIVISION OF AIRTRON, INC
(Employer)
Dated By
(Representative) (Title)
AMERICAN AIR CONDITIONING
Co., INC.
(Employer)
Dated By
Dated By
(Representative) (Title)
FAHNSTOCK, INC.
A DIVISION OF AIRTRON, INC.
(Employer)
(Representative) (Title)
AIRTRON INC.
(Employer)
(Representative) (Title)
We will notify Gary Thompson and Dan Duckett if
presently serving in the Armed Forces of the United
States, of the right to full reinstatement, upon applica-
tion after discharge from the Armed Forces, in ac-
cordance with the Selective Service Act and the
Universal Military Training and Service Act.
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, 610 Federal Building, 601 East 12th
Street, Kansas City, Missouri 64106, Telephone 816-
375-5181.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOSEPH I. NACHMAN, Trial Examiner: This proceeding
tried before me at Wichita , Kansas, on November 30 and
December 1,1 with all parties present and duly represented,
involves a complaint Z pursuant to Section 10(b) of the Na-
tional Labor Relations Act, as amended (herein the Act),
which alleges that Barwise Sheet Metal Co., a Division of
Airtron, Inc.; American Air Conditioning Co., Inc.; Fah-
nestock, Inc., a Division of Airtron, Inc.; and Airtron Inc.
(herein respectively called Barwise , American, Fahnestock
and Airtron, and collectively called Respondents), violated
Section 8(a)(5) and (1) of the Act by unilaterally changing
the terms and conditions of employment fixed by a collec-
tive-bargaining agreement in effect with Sheet Metal Work-
ers International Association Local Union No. 29 (herein
called Union), the collective-bargaining representative of
the employees involved in an appropriate unit and by pass-
ing the Union and bargaining directly with employees in the
unit regarding their wages, and other terms and conditions
of employment; violated Section 8(a)(3) and (1) of the Act
by discriminating against employees in the unit because of
their membership in, adherence to, and activities on behalf
of the Union; and independently violated Section 8(a)(1) of
the Act by interrogating employees concerning their sup-
port of the Union, threatening employees that the Company
would go nonunion and that the employees would have to
get out of the Union or hunt for another job, and by solic-
iting employees in the unit to withdraw from the Union. For
reasons hereafter stated I find and conclude that violations
of Section 8(a)(5) and (1) of the Act are established by the
record with respect to which an appropriate remedial order
should issue, and that it is unnecessary to decide whether
Section 8(a)(3) was violated or not because in either event
1 This and all dates herein are 1971, unless otherwise indicated.
2 Issued October 28 on a charge filed August 11 and, amended October 21.
BARWISE SHEET METAL CO. 375
the remedy for such a violation would be the same as that
required to remedy the 8(a)(5) violation.
At the trial all parties were afforded full opportunity to
introduce relevant and material evidence, to examine and
cross-examine witnesses , to argue orally on the record, and
to submit briefs. Oral argument was waived. Briefs submit-
ted by the General Counsel and Respondent, respectively,
have been duly considered.3 Upon the pleadings, stipula-
tions of counsel, the oral evidence, including my observa-
tion of the demeanor of the witnesses while testifying, and
the entire record in the case, I make the following:
FINDINGS OF FACT 4
IBACKGROUND
For some years prior to 1969, Fahnestock was engaged at
Wichita, Kansas, in the operation of a sheet metal shop
and the installation of sheet metal products. In the main its
work was performed on residential and small commercial
projects. It had no contract with any union. In 1969, the
school board for school district #353 was receiving bids for
the construction of a new school, known as the Wellington
Elementary School. Although the job was much larger than
any he had previously performed, E. G. (Ted) Fahnestock,
Jr., president and chief executive officer of Fahnestock,
decided to bid on the school job, and apparently was being
seriously considered for the award of a contract. Learning
of Fahnestock' s interest in the project, the Union communi-
cated to the school board, its intention to picket and engage
in any other conduct it considered appropriate to impede or
prevent completion of the building if the contract was
awarded to Fahnestock. The school board apparently com-
municated the Union's views to E. G. Fahnestock, Jr. The
latter, apparently in an effort to satisfy both the Union and
the school board, had some conferences with Union Agent
Weems, and, as a result, on July 8, 1969, E. G. Fahnestock,
Jr., addressed the following letter, on the letterhead of
American, to Union Agent Weems:
American Air Conditioning Company, Inc. has been
formed to perform as a total mechanical contractor,
including plumbing and sheetmetal . It is our desire to
operate a union sheetmetal shop and as we discussed,
phase out the Fahnestock, Inc. sheetmetal shop. As we
discussed, this will require approximately fourteen to
sixteen months to complete our present contracts. At
the conclusion of this period we will operate within the
3 On January 12, I directed a letter to all counsel pointing out that the
subject of appropriate remedy had not been discussed in the beefs, and I
requested the parties , and particularly the General Counsel, to file a further
brief dealing with that question , assuming that a violation of the Act was
found . The General Counsel filed a supplemental brief, including a proposed
order, which has likewise been fully considered . As hereafter more fully
indicated , in his proposed order the General Counsel does not request relief
with respect to some of the allegations in the complaint.
4 Although Respondents deny that Fahnestock, American , Airtron, and
Barwise constitute a single integrated enterprise , or successor or joint em-
ployers, the allegations of the complaint with respect to the nature and extent
of the business conducted by the several Respondents are not denied and
accordingly stand admitted I find these facts to be as pleaded and that they
are sufficient to establish the Board 's Jurisdiction, and I so find In fact
Respondents admitted in their answer that each is engaged in commerce
within the meaning of the Act The allegation in the complaint that the Union
is a labor organization is also admitted by the answer, and I so find.
scope of your local #29.
This letter is to acknowledge our intent and request
that you prepare whatever applications are necessary
for us to become affiliated with your association.
We look forward to many years of successful relation-
ship with you.
Pursuant to this letter, Weems and E. G. Fahnestock, Jr.,
met and agreed upon a contract, which the later executed
on behalf of American, on August 1, 1969.1 The contract
referred to was the standard form contract negotiated by the
Union and Sheet Metal Contractors Association of Greater
Wichita, which was in effect from May 1, 1968, through
April 30, 1970.6 The evidence shows that at no time material
was Fahnestock or American a member of the Association,
or in any way bound by its actions. In addition to signing
the form contract, E. G. Fahnestock, Jr., on behalf of Amer-
ican, and the Union, also on August 1, 1969, executed two
documents by way of addenda to the form contract. The
first of these provided that American would, upon written
authorization from an employee, deduct from the wages of
that employee union dues and a specific amount on account
of initiation fees until the initiation fee was fully paid, and
remit the amounts so withheld to the Union.' The second
addenda provided that the contract would not apply to
specific jobs therein listed, but that all other jobs would be
performed in accordance with the labor conditions set forth
in said contract. When the 1969 contract expired, a renewal
contract was executed by American on August 5, 1970,
effective from May 1, 1970, to April 30, 1972, and thereafter
from year to year unless terminated by a 90-day notice.
Although neither the 1969 nor the 1970 contract con-
tained a specific "Recognition" clause, both provide for the
Union's territorial jurisdiction, define the scope of the unit,8
provide restrictions on subcontracting, provide that " .. .
none but QUALIFIED journeymen and REGISTERED
apprentice sheet metal workers shall be employed on any
work" subject to the contract, state that the employer will
obtain workers only through the Union's hiring hall which
is to be operated in a nondiscriminatory manner; and pro-
vide a union-security clause pursuant to which the employer
will require membership in the Union as a condition of
continued employment within 8 days following the com-
mencement of employment, or the effective date of the con-
tract, whichever is later.
Following the execution of the contract in 1969, as the
jobs excepted from the contract under addendum two were
5 Respondent contended at the trial that the contract executed in 1969 was
improperly received in evidence because the signature thereon of E. G.
Fahnestock , Jr., was not properly authenticated . E. G Fahnestock's signa-
tures on the letter of July 8 and the renewal contract executed in August 1970
are admitted to be genuine; the signature on the 1969 contract I find to be
the same. Based on this finding, and the fact that counsel was informed that
he would be permitted to adduce evidence that the signature on the contract
was not genuine (E. G. Fahnestock, Jr., having died on March 19 , 1971), and
failed to do so, even though he called William Fuchs, a close business associ-
ate of E G. Fahnestock, Jr, for more than 15 years, and who must be familiar
with his signature , I find and conclude that the contract of August 1, 1969,
was adequately authenticated.
6 Union Agent Weems admitted that when he signed this contract Amen-
can had no employees who were members of the Union
7 According to Union Agent Weems, the checkoffs were to cease when the
employees had fully paid their initiation fees, and did in fact cease in June
or July 1971
s The unit is defined as " . all sheet metal employees , journeymen,
apprentices and foreman"
376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
completed, the sheet metal workers employed by Fahnes- Il THE CORPORATE ENTITIES INVOLVED
tock joined the Union and were transferred from the latter's
payroll to that of American, and thereafter worked under
the terms and conditions of the contract in effect between
the Union and American." There is some variance in the
testimony as to circumstances under which the employees
became members of the Union, but in my view of the case
no resolution of any seeming discrepency need be made.10
It is sufficient to note that the testimony is uncontradicted
that after Fahnestock employees were transferred to
American's payroll, they continued to perform the same
work, out of the same shop, and under the general supervi-
sion of Superintendent Marvel, just as they had while em-
ployed by Fahnestock.
9 At or about the time it executed the contract with Sheet Metal Workers,
American also began the operation of a plumbing shop and entered into a
contract with the Plumbers Union The plumbing operation is not involved
in this proceeding.
10 Employee Thompson testified that no one told him he had to join the
Union ; that Superintendent Marvel, an admitted supervisor , asked if he
would like to do so and he did , that Marvel gave him the necessary papers
and he signed them in Marvel's office . Employee Duckett testified that when
he switched employment from Fahnestock to American , Marvel told him it
was time for him to join the Union so he signed the necessary papers he had
previously obtained from Union Agent Weems, and that such signing took
place on a construction job with only Weems and another union representa-
tive present. Employee Morrow testified that when he finished with the
excepted jobs he was working on , and as American was going union, he knew
that it was his turn to go into the Union so he Just signed the necessary papers.
Employee Savage testified that when he switched from Fahnestock to Amen-
can in October 1969, he joined the Union , signing the necessary papers in
the private office of E G . Fahnestock , Jr., the latter , Union Agent Weems,
and Elmer Pietschner, whose status is hereafter discussed , all being present,
after he had been told that he was wanted in E. G. Fahnestock 's office, that
no one told him he had to join the Union , it being his understanding that
as the Company was going union , he would have to Join, if he wanted to work
there . Employee Scantlm testified that it was his understanding that when he
ceased working on the excepted jobs he would have to become an employee
of American and Join the Union or look for work elsewhere, that when
Superintendent Marvel told him , about August 1970 , that it was time for him
to join the Union he did so; that he really did not want to join and asked
Marvel why the men could not vote on it; and that the latter replied that he
could not see why the men would not want the Union . Employee Affleck
testified that no one told him he had to join the Union ; that when it came
time for him to go into the Union , someone told him that Union Agent
Weems was in the office and if he wanted to sign up he could, that it was
his understanding that American was to be a closed shop and that he could
not work there unless he joined the Union , and for that reason did so
Employee Flores testified that he learned from a fellow employee that he
would have to join the Union , that about July 1970, when he ceased working
on the excepted jobs, he became an employee of American , and was told, by
Marvel he thought , that he had to join the Union if he wished to work for
American , and did so. Employee Gould testified that he learned from fellow
employees that the whole company was going union and that he had to join
if he wanted to work there ; that when he ceased working on the excepted
jobs, he was called into Marvel 's office where Union Agent Weems and
several other employees were present , that he had theretofore obtained an
application for membership in the Union from Weems , while on one of the
jobs, and that he signed such application in Marvel 's office . Employee High-
fill testified that when he became an employee of American in the summer
of 1970 , he signed the necessary papers to join the Union ; that before signing
them, Superintendent Marvel telephoned him on the job and stated that he
had some papers for him to sign ; that the papers were brought to the jobsite
by a driver for American ; that he signed them on the job and returned them
to Marvel by the driver that brought them . The only testimony in the record
bearing on the circumstances under which employee Merchant Joined the
Union is one question put by counsel for Respondent , namely, "Marvel was
the one that helped you to get into the Union in the first place , wasn't he?
to which Merchant replied, "Really I don 't know that Marvel had too much
to do with it, going in or out, either one."
As heretofore stated, Fahnestock has operated in the
Wichita area for some years, and in 1969, American was
formed to operate as a total mechanical contractor. Accord-
ing to the letter written by E. G. Fahnestock, Jr., to the
Union on July 8, 1969, his purpose was to "phase out the
Fahnestock, Inc., sheetmetal shop," when American came
into full operation after the completion of the contractually
excepted jobs. At all times material, and at least until the
appearance of Airtron on the scene, which occurred about
March 1970, E. G. Fahnestock, Jr., was president and direc-
tor of Fahnestock and American and the final voice in all
matters affecting either of them. Airtron was organized with
the purpose of merging a number of other corporations
engaged in sheet metal work into it. In June 1970 Fahnes-
tock was merged into Airtron, and thereafter operated as a
division of the latter, and American operated as a wholly
owned subsidiary of the Fahnestock Division of Airtron. 1
At the formation of Airtron, its officers were:
E. G. Fahnestock, Jr., chairman of the board of direc-
tors
Ralph J. Link, president
Arthur D. Bogen, vice president
Richard Mills, secretary
William Fuchs, assistant secretary
Floyd M. Thompson, treasurer
With some exceptions not here material, these persons held
office in Airtron until shortly after the death of E. G. Fahne-
stock, Jr., on March 19, 1971. Upon the latter's death, the
office of chairman of the Board apparently ceased to exist,
and Airtron's other officers were:
Ralph J. Link, president
Richard E. Mills, executive vice president
Robert F. Tanner, vice president and secretary
Robert M. Borschow, treasurer and assistant secre-
tary 12
The evidence also shows that from the time of the merger
with Airtron in June 1970, until the death of E. G. Fahnes-
tock, Jr., the latter was not only an officer and director of
Airtron, but general manager in charge of all its operations
in the Wichita area, which would include Fahnestock and
American, and as such made all policy decisions with re-
spect to such operations. The parties stipulated that as of
August 1971, the Fahnestock family owned 8-1/2 percent of
the Airtron stock.13
III CURRENT FACTS
About mid-1970, it became apparent that American was
operating at a substantial loss. Although the extent of such
loss for the fiscal year due to end May 31, 1971, could not
then be known, steps were taken to diminish the loss, but
by the end of the aforementioned fiscal year, American had
sustained an operating loss of $239, 317.14 According to the
11 Airtron has a number of divisions located in various cities , mostly east
of the Mississippi
12 Arthur D Bogen and William C Fuchs who had therefore been officers
ceased to be such , but continued as members of the Board of Directors.
13 The findings in this section are based on the stipulations of counsel and
the uncontradicted testimony of William C. Fuchs.
14 The amount of $166,637 of this loss was sustained by the plumbing shop,
which American also operated , and the remaining $72,680 by the sheet metal
BARWISE SHEET METAL CO. 377
uncontradicted testimony of William C. Fuchs, who, at the
time of the trial, had become general manager of the Fahne-
stock Division of Airtron, the major factors leading to the
loss were (1) that commercial construction in the Wichita
area experienced a substantial reduction in volume, so that
there were fewer jobs to bid on; and (2) the advent of a
number of new sheet metal shops that operated nonunion
made bids on a union basis noncompetitive. When the full
extent of American's losses for the fiscal year became ap-
parent, which was about the time of the death of E. G.
Fahnestock, Jr., Airtron directed that the Wichita operation
be made profitable or be closed. To comply with this direc-
tive it was decided (1) to cease operating the plumbing shop
and lay off its employees; (2) keep American in existence so
that it could perform any union work that might be ob-
tained;15 and (3) to establish a new sheet metal shop that
would operate nonunion. For the last mentioned purpose,
Barwise was organized on June 9, 1971. According to
Fuchs, the decision that Barwise would operate nonunion
was made by Airtron, the parent company. With the forma-
tion of Barwise, it was established in the quarters formerly
occupied by American, with Marvel, who had therefore
supervised the operations of American, supervising the op-
erations of Barwise , and American was moved to smaller
quarters approximately a block away from where it for-
merly operated.
Also, about this time it became generally known among
the employees of American that the latter was in bad finan-
cial condition, and was giving consideration to operating as
a nonunion employer. The rumors gained strength by rea-
son of Superintendent Marvel's statements to some employ-
ees of American that the Company was going nonunion,
and while making it clear that he was not urging that the
men abandon their union affiliation, he asked whether they
preferred to stay in the Union, or work with the Company
in a nonunion shop. The testimony shows that by the middle
or end of June virtually all the employees theretofore em-
ployed by American (approximately 13 in number) ceased
to be so employed. In alleging that the aforementioned
employees were discriminated against in violation of Sec-
tion 8(a)(3) and (1) of the Act, the complaint divides them
into two categories. Paragraph 9(a) alleges that five employ-
ees 16 were constructively discharged, and paragraph 9(b)
alleged that the remaining eight 17 were discriminated
against by a reduction in their rate, and in each instance the
discrimination occurred because of the employee's member-
ship in, adherence to, and activities on behalf of the Union.
By answer, Respondents denied all allegations of paragraph
9, and asserted that the employees terminated their employ-
ment with American because there were insufficient em-
ployment opportunities.
With respect to the first category, employees Clark, Mor-
gan and Reed did not testify, and there is no evidence in the
record as to the circumstances under which their employ-
shoj.
Fuchs testified that after about June or July 1971, the Wichita operation
received no new contracts that had to be performed under union conditions.
16 These are Danny T. Duckett, Gary Thompson , Howard R Clark, Bill
R. Morgan and Charles Reed.
17 Ray Affleck, Don Flores , Owen L. Gould, Gary Highfill, James D.
Merchant , Michael D Morrow , James B. Savage, and Robert Scantilm.
ment ceased, or that they did not voluntarily quit, as alleged
in Respondents' answer. Duckett testified that in the late
winter and spring of 1971, work at American was slow with
some employees working 1 day a week or less , and that he
began to hear rumors that American "was getting out of the
Union"; that he telephoned Superintendent Marvel, asked
if the rumor he had heard was true, and received an affirma-
tive reply; that Marvel also told him he (Duckett) had to
make a decision either to stay with the Union and rely upon
such employment as the latter might provide, or stay with
the Company which would operate nonunion; that because
he secured better employment with an employer in Kansas
City, and his understanding that he would be fined by the
Union if he worked in a nonunion shop, he did not seek
further employment from American or Barwise . Thompson
testified that after the death of E. G. Fahnestock, Jr., he
began hearing rumors that "we were getting out of the Un-
ion," and that about a month later while talking with Mar-
vel, he asked the latter if this rumor was true ; that Marvel
replied that he had heard rumors that it was Airtron that
wanted to get out of the Union, but that he knew nothing
for sure; that several weeks later Marvel came to a jobsite
where he was working, and said he had to have a decision
as to whether he (Thompson) "wanted to stay in the union
or stay with Fahnestock; that he replied that he would "stay
in the Union," that he and Duckett had jobs in Kansas City
to go to; that the following day he left for Kansas City, and
after 1 week, for family reasons and because he did not like
the working conditions there, he returned to Wichita; that
about a week later he went to shop where American had
operated to ask Marvel about work; that everything ap-
peared to be about the same , except that the name Ameri-
can had been removed and there now appeared the name
Barwise; that Marvel told him about the Kiva job being
finished by American under union conditions, and that he
might be able to put him on it; that a week or so later Marvel
assigned him the Kiva job where he worked until its comple-
tion about September 1; that for this work he was paid
union scale by check drawn on American; that when the
Kiva job was completed he just left because he knew there
was no more union work available and he had elected to
stay with the Union; and that he was, at the time of the trial,
unemployed.
The eight employees in the second category fall pretty
much into the same pattern. They testified, in substance,
that in the late winter and early spring of 1971, they had
been getting few hours of work, and had also heard rumors
that the Company was going to get out of the Union; that
Marvel also told them that they had had to make a decision
as to whether they wanted to stay with the Union, or work
for the Company under nonunion conditions, the chief
change in condition being that their hourly wage rate would
be $5.50 instead of the union scale of about $8.25; that
knowing there was an abundance of unemployed sheet met-
al workers at the union hall, they concluded that it would
be to their advantage to accept the reduced rate for a full
workweek, rather than insist on the higher rate for fewer
hours of work, and accordingly, at Marvel's request for
some kind of document, wrote out and gave him resigna-
tions from their employment at American; that shortly
thereafter they were assigned work at Barwise where they
378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were employed at the time of the trial; that at Barwise they
performed the same work that they did for American except
that they got to do some work that was theretofore reserved
to the plumbers; and that Marvel continued to be their
supervisor, as he was when they worked for American.18
IV CONTENTIONS AND CONCLUSIONS
A. The 8(a)(5) Allegations
It is now well settled that an employer who, in the midst
of a contract term, unilaterally changes the wages, hours,
and terms and conditions of employment of the employees
covered by that contract thereby violates Section 8(a)(5)
and 8(d) of the Act; N.L.RB. v. Crompton Highland Mills,
Inc., 337 U.S. 217. Respondents argue, however, that on the
facts of the instant case the aforementioned rule is inappli-
cable because (1) American, the only Respondent signatory
to the contract with the Union, no longer has employees to
whom the contract is applicable, and that the remaining
Respondents are under no legal obligation to comply with
said contract; (2) When the initial contract was entered into
on August 1, 1969, American had no employees, and the
Union did not at any time thereafter acquire an uncoerced
majority. Rather, it is urged, that such majority as the Union
did in fact acquire was obtained because of Respondents'
assistance and coercion; (3)the unit described in the contract
and pleaded in the complaint, is inappropriate, because it
included "foremen," who are supervisors as defined in Sec-
tion 2(11)of the Act; and (4) that the contract involved con-
tains provisions which are or could be illegal, and in any
event unforceable because against public policy. I treat with
these defenses in the order stated.
1. The legal obligations of the several Respondents
The contention that neither Fahnestock, Airtron, nor
Barwise , being corporations that are seperate from Ameri-
can, have any responsibility for unfair labor practices that
may have been committed by the latter, I must and do
reject. The Board, with court approval, has uniformally
held, not only for jurisdictional purposes, but for the pur-
poses of liability as well, that separate and distinct corporate
entities may be regarded and dealt with as a single employ-
er, if they are in fact an intergrated enterprise. Local 1264
International Brotherhood of Electrical Workers v. Broadcast
Service of Mobile, Inc., 380 U.S. 255; Playtime Kiddie Wear,
184 NLRB No. 41. For the purpose of deciding whether
separate corporate entities constitute a single intergrated
enterprise the Board considers (1) interrelation of opera-
tions ; (2) centralized control of labor relations; (3) common
management ; and (4) common ownership or financial con-
trol. Although the Board has not held any one of these
factors to controlling, it has emphazised interrelation of
operations, common management , and centralized labor
relations, particularly the latter, as indicating intergration of
such a degree as to warrant piercing the corporate fiction
and regarding them as single employer in legal content-
18 The findings in this section are based on a composite of the uncontrad-
icted and credited testimony of Duckett, Thompson, Merchant, Morrow,
Savage, Scanthn, Affleck, Flores, Gould, and Highfill.
plation . Metco Plating Company, 110 NLRB 613, 616; Pizza
Products Corporation and G & W Food Products, 153 NLRB
1265, 1267-68, enforcement denied on other grounds 369
F.2d 431 (C.A. 6).
In the instant case the evidence shows that E. G.
Fahnestock , Jr., controlled and was the individual who
made all policy decisions with respect to the operations of
Fahnestock . He was responsible for the formation of Amer-
ican and operated it as a wholly owned subsidiary, of Fahne-
stock . Even after the formation of Airtron and the transfer
to it of all the assets of Fahnestock and American, the
Wichita operation functioned as a division of Airtron with
E. G. Fahnestock , Jr., until his death in March 1971, as the
general manager of that division , and the individual who
made all policy decisions including those involving matters
of labor relations . And after the death of E. G. Fahnestock,
Jr., Airtron designated first Bramer and then Fuchs to serve
as general manager of all its Wichita operations , with the
same authority theretofore exercised by E. G. Fahnestock,
Jr., and as Fuchs admitted , it was Airtron that made the
d eci s ion that Barwise should be organized and that when
organized , it should operate as a nonunion shop.
Upon the foregoing facts , and in light of the principles
above stated, I find and conclude that Fahnestock, Amen-
can, Airtron, and Barwise constitute a single intergrated
enterprise, and that such enterprise has the duty of reme-
dying those unfair labor practices that may be found herein.
How the separate corporate entities will apportion the resul-
tant liability among themselves is a matter for them to de-
cide, but has no effect upon their legal obligation to comply
with the Board 's Order.
2. The alleged lack of majority
The evidence is very clear that when the initial contract
between the parties was executed on August 1, 1969, the
Union did not represent any of the employees involved, and
Union Agent Weems admitted that at that time he had
made no effort to organize them. Although such lack of
majority status would ordinarily render the contract unlaw-
ful, that result does not follow in the instant case because
of the provisions of Section 8(f) of the Act; the employer
being engaged primarily in the building and construction
industry, and the contract being with a union of which
building and construction employees are members. Because
of this fact, Respondents argue, they may at this time ques-
tion the majority status of the Union, notwithstanding the
general rule that as recognition was granted more than 6
months prior to the filing of the charge, because of the
limitation provisions of Section 10(b) of the Act, the defense
is not now available to overcome the presumption of majori-
ty status raised by a contract valid on its face, Dayton Mo-
tels, Inc., 192 NLRB No. 112. Local Lodge No. 1424
International Association of Machinists [Bryan Mfg. Co.] v.
N.L.R.B., 362 U.S. 411.
I deem it unnecessary to consider whether a presumption
of majority may appropriately be drawn here from the exe-
cution of the 1970-72 contract. Assuming that it may not,
the evidence is clear that all 13 employees on American's
payroll had become members of the Union well before Re-
spondents changed the terms and conditions of employ-
ment, and the latter checked off union dues pursuant to
BARWISE SHEET METAL CO. 379
authorization from each employee, and in addition a provi-
sion in the contract obligated the employer to require mem-
bership in the Union as a condition of continued
employment of all employees within 8 days after employ-
ment or the effective date of the contract, whichever is later.
See article V of the contract.19
Accordingly, I find and conclude that the Union was the
majority collective-bargaining representative of the employ-
ees here involved, and that Respondents were legally ob-
ligated to bargain with said Union unless, as Respondents
contend, the Union's majority was coerced, the unit was
inappropriate, or perhaps because the 1970-72 contract was
for some other reason invalid. I turn now to those defenses.
3. The alleged coercion
The evidence upon which Respondents rely in support of
the contention that the Union's majority was coerced is
summarized supra, fn. 10. The contention, however, is one
that I find unnecessary to decide. Assuming without decid-
ing that the conduct referred to does constitute coercion, it
is unlawful coercion practices by E. G. Fahnestock, Jr.,
himself and his next level of supervision, Superintendent
Marvel. It is an elementary proposition of law that no one
may assert a defense predicted on his own unlawful con-
duct. For this reason, I find and conclude that Respondents
are estopped from asserting in this proceeding that the
Union's majority status was one which they coerced.
4. The alleged inappropriate unit
The argument that the unit described in the contract (art.
1, sec. 1), and pleaded in the complaint (paragraph 5), is
inappropriate is predicated on the contention that "fore-
men" is synonomus with "supervisor" as that term is de-
fined in Section 2(11) of the Act.20 It is settled, of course,
that in applying the statutory definition of "supervisor,"
mere titles are meaningless, it being the actual authority
possessed by the alleged supervisor which is controlling.
N.L.R.B. v. Southern Bleacheries & Print Works, 257 F.2d
19 This fact of actual majority distinguishes the instant case from R, J
Smith Construction Co., 191 NLRB No 135, upon which Respondents so
strongly rely, for in that case the lack of actual majority was conceded by
the General Counsel , and the Board noted that at least a rebuttable presump-
tion of majority might well apse from an 8(f) contract that contained a
union-secunty provision that has been enforced . R J Smith Construction Co,
supra, fn. 5. Additionally, the Board has held that Sec. 8(f) had no application
to a contract which is a renewal of a prior contract executed pursuant to that
section, as is the situation here , and that in the case of a renewal contract
the test to be applied in determining whether the bargaining obligations of
the parties have been fulfilled "are those generally used under Section 8(a)(5)
and 8(b)(3) ... of the Act. Bricklayers & Masons International Union Local
No. 3 (Eastern Washington Builders), 162 NLRB 476, 477-478. Although the
contract in R J. Smith, supra, appears to have been a renewal contract , albeit
with a hiatus, and the Trial Examiner cited and relied on Bricklayers &
Masons, supra, the Board made no comment regarding that case According-
ly, I assume the holding in Bricklayers & Masons, supra, is still Board law.
20 Section 2(11) of the Act defines "supervisor" as
. any individual having authority , in the interest of the employer,
to hire , transfer , suspend, layoff, recall, promote, discharge, assign, re-
ward, or discipline other employees, or responsibly to direct them, or to
adjust their grievances , or effectively to recommend such action, if in
connection with the foregoing the exercise of such authority is not of a
merely rountine or clerical nature, but requires the use of independent
judgment
935, 939 (C.A. 4), cert. denied 359 U.S. 911. Likewise, in the
instant case, as it is Respondents who assert the supervisory
status of the "foremen," the burden rests with them to pro-
duce evidence to establish that the "foremen" involved were
supervisors within the meaning of the Act, and not rank-
and-file employees properly included in the unit. McCor-
mick Concrete Company of S.C. Inc., 153 NLRB 1507, 1513,
enfd. 371 F.2d 149 (C.A. 4); The Detroit Edison Company
123 NLRB ,225, 230; Riss & Company, 127 NLRB 1327,
1330.
The only testimony developed in this record dealing with
the supervisory status of the "foreman," may be summarized
as follows:
1. The contract between the parties provides, in addition
to the unit description set forth in fn. 8, supra, the following:
(a) In each shop, the employer will designate a "shop
foreman" who "shall have supervision" over the employees,
and receive pay of 7 percent above the journeyman rate if
there are fewer than 15 men in the shop, or 10 percent above
if there are 15 or more men in the shop.
(b)That on erection work in the field, the employer will
designate a "Job foreman" on each job where three or more
men regularly report, who will be paid 5 percent above the
journeymen rate if fewer than 15 men report to that job, or
10 percent above if 15 or more men so report.
2. One Elmer Pietschner was "shop foreman" at
American's shop during the relevant period, and worked
under the supervision of Superintendent Marvel. Pietschner
did not testify, and no management witness gave any testi-
mony regarding Pietschner's duties or authority. Although
all the employees who testified stated that Marvel super-
vised them, several also referred to Pietschner as their "su-
pervisor," and stated that he gave them "orders," and
"assigned them work." There is no testimony, however,
from which it can be determined whether Pietschner's "or-
ders" or "work assignments," were merely of a routine na-
ture, or whether, in the language of Section 2(11), the "use
of independent judgment" was required.
3. Donald Flores testified that while employed by
American he worked on an apartment project at Hutchin-
son, Kansas, some 55 miles from Wichita, where approxi-
mately eight other journeymen were employed; that he was
the foreman on this job except at such times as Pietschner
was present, and at those times the latter was foreman; that as
foreman he received extra pay in the amount of 25 cents an
hour; had shop plans and blueprints available to him; that he
had to plan the work and decide what work to give to a
particular employee; that while the men knew their job and
knew what to do, it was his duty to direct them if any direction
was needed, and to correct a man if he was not doing his job
properly. Although Flores claimed that he had absolute au-
thority to fire a man if he thought it necessary, I regard this as
"puffing" in view of his admission that he never discharged a
man, and that he "would really have to call the shop supervisor
before I did this."
Upon consideration of the foregoing evidence, which is
all the record contains with respect to the authority of the
"foremen," I find and conclude that, Respondents, who, as
I have found, have the burden of establishing that the "fore-
men" here involved had the requisite authority to make
them supervisors within the meaning of the Act, failed to
380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
adduce sufficient evidence to establish that fact. On the
contrary, the evidence indicates that such directions as the
"foremen" may have given other employees, was merely
routine in nature and did not require the exercise of inde-
pendent judgment. Iroquis Telephone Corporation, 169
NLRB 344; Northern Virginia Steel Corporation, 132 NLRB
714, 715. That Congress never intended those having such
limited authority as the "foremen" here involved to be em-
braced by the term "supervisor," is made plain by the Sen-
ate Report on the bill which was thereafter enacted 21
Accordingly, on the entire record, I find and conclude
that the inclusion of the "foremen" in the unit here involved
did not render the same inappropriate for the purposes of
the 8(a)(5) case contended for by the General Counsel.
5. Other contract provisions allegedly illegal
or unenforceable
Respondents argue (brief, p. 31), that certain provi-
sions in their contract with the Union are, or could be,
enforced in such manner as to probably be violative of the
Act, or contrary to public policy. The provisions Respon-
dents point to are:
1. Article XXI of the contract provides in substance
that the employer will not render assistance to any other
employer involved in a strike or lockout against any local
of the International Union, and that no employee subject to
the contract will be asked or required to handle the products
of any employer involved in such strike or lockout, with
exceptions not here material. The evidence shows that on
December 12, 1969, the Union circulated all employers un-
der contract with it that the Union regarded the products
of a named employer as "unfair," and that article XXI of
the contract would be applied with respect to the products
of such employer. Respondents argue that this was an at-
tempt by the Union to "expand the area of industrial con-
flict," and therefore unlawful under the Supreme Court's
holding in National Woodwork Mfgr. Assn. v. N.L.R.B., 386
U.S. 612.
2. Article XIX, section 3, of the contract provides in
substance that if any employer enters into an individual
agreement with any employee which undercuts the contract,
such individual contract would be regarded by the Board as
invalid, and that-in such case the employer will discharge
the employee involved. Respondent argues that as the Gen-
eral Counsel has alleged in paragraph 8(b) of the complaint
that Respondents bargained directly and individually with
the employees in the unit, Respondents are required by the
contract to discharge such employees, and that such dis-
charges would be clear violations of Section 8(a)(3) and
8(b)(2).
3. Article XIX, section 2, of the contract provides in
substance, that if an employer is found by the grievance
committee to have willfully and knowingly violated any
terms of the contract, such committee shall, in addition to
21 S R. 105, 80th Cong ., 84, where it is stated:
The Committee has not been unmindful of the fact that certain employ-
ees with minor supervisory duties have problems which may justify their
inclusion in the Act. It has therefore distinguished between straw bosses,
leadmen , set-up men , and other minor supervisory employees, on the
one hand , and the supervisor vested with such genuine management
prerogatives as the right to hire or fire , discipline, or make effective
recommendations with respect to such action.
restitution, assess against the employer liquidated damages,
payable to the apprentice fund, in an amount sufficient to
discourage future contract violations. Respondent argues
that this provision is punitive in nature , and hence unen-
forceable.22
In my view it is unnecessary, indeed inappropriate, to
decide any of these contentions in this proceeding. Suffice
it to say that as there is no allegation in the complaint, nor
in the charge upon which the complaint is predicated, alleg-
ing that any of the matters referred to violate the Act, the
Board is without authority to make any adjudication with
respect thereto. It will be time enough to make such adjudi-
cation if and when a valid and timely charge in that regard
is filed, and a complaint issues thereon.
Accordingly, I find and conclude that the objections
urged by Respondents do not raise a defense to the 8(a)(5)
allegation of the complaint.
B. The 8(a)(1) Allegations
The complaint herein alleges that in the period from
about mid-April to mid-June, Respondents independently
violated Section 8(a)(1) of the Act by interrogating employ-
ees about their support for the Union; threatened employ-
ees that they would be required to drop out of the Union
or seek employment elsewhere; promised benefits to take
effect after the Company went nonunion; and solicited em-
ployees to withdraw from their union membership. The only
testimony bearing on the aforementioned allegations was
that given by 10 of the 13 employees, who, as I have found,
testified, in substance, that Superintendent Marvel talked
with them separately, and not in a group and told them that
a new company was being formed which would operate on
a nonunion basis, and that he (Marvel) had to have a deci-
sion from each employee whether he wanted to "stay with
the Union" and rely on such work opportunities as the latter
might provide, or "stay with the Company," and work un-
der the conditions of employment which Respondents uni-
laterally established.
Although I regard the evidence as insufficient to estab-
lish that Respondents violated Section 8(a)(1) precisely in
the manner alleged in the complaint, I find and conclude
that in the circumstances of this case, Marvel's statement
was coercive and hence violative of Section 8(a)(1) of the
Act. In practical effect what Marvel was saying to the em-
ployees was that unless they were willing to forego the labor
conditions obtained for them by the Union, as provided by
the contract then in effect, Respondents would have no
work for them. As the employees and Marvel knew that they
.could not work in a nonunion shop and retain the status of
union members, Marvel was requiring them to elect whether
they should forego the work Respondents were offering in
order to retain their union membership, or abandon their
union membership in order to obtain the work Respondents
were offering. In this sense, Marvel's statement coerced the
22 At the trial Respondents adduced evidence that the Union had written
a letter and telephoned the school board , threatening to picket and/or hand-
bill the school project if the contract was awarded to Fahnestock as a nonun-
ion contractor. Presumably , Respondent was contending that the Union's
conduct violated Section 8(b)(4)(u)(B) of the Act. However, the point is not
discussed in Respondent 's brief , and I assume it has been abandoned.
BARWISE SHEET METAL CO. 381
employees in the exercise of their Section 7 rights. I so find
and conclude.
C. The 8(a)(3) Allegations
The complaint alleges that the five employees who
elected not to accept work under the nonunion conditions
unilaterally established by Respondents were constructively
discharged . As heretofore stated , this allegation was denied
by the answer which avers that said employees themselves
terminated their employment because of lack of work. I
have also heretofore indicated that three of the five employ-
ees referred to in this paragraph of the complaint did not
testify, and there is no testimony to establish when they left
Respondents' employment , or under what circumstances, 3
The General Counsel does contend , however, that Duckett
and Thompson , who did testify , as well as the eight who
accepted employment at Barwise under the terms and con-
ditions of employment unilaterally imposed by Respon-
dents , be found to have been discharged in violation of
Section 8(a)(3), and that Respondents be directed to offer
them reinstatement, and make them whole for the wages
they lost. In my view the 8 (a)(3) question need not be decid-
ed here, because having found that Section 8 (a)(5) was vio-
lated, the proper relief under that section will include all the
relief that could be given for an 8 (a)(3) violation , assuming
that it occurred , including specifically reinstatement and
backpay for the 10 employees for whom the General Coun-
sel requests such relief . See Miller Trucking Service, Inc., 176
NLRB No. 7624
Upon the,foregoing findings of fact and the entire rec-
ord in the case , I state the following:
CONCLUSIONS OF LAW
1. Fahnestock, American, Airtron, and Barwise consti-
tute a single intergrated operation, which is an employer
within the meaning of Section 2(2) of the Act, that is en-
gaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. All sheet metal employees, journeymen, apprentices,
and foremen employed by Respondents in the operation of
23 It may be noted at this connection that neither in his briefs nor in his
proposed order submitted to me does the General Counsel suggest or request
a finding that the three men who did not testify be found to have been
terminated in violation of Section 8(aX3), nor does he request that any
reinstatement or make whole remedy be provided on their behalf.
24 I am not unmindful of the fact that the United States Court of Appeals
for the Tenth Circuit refused to enforce that portion of the Board's Order
which provided for reinstatement and backpay to the employees there in-
volved. See N.LR.B. v. Miller Trucking Service, Inc, 445 F.2d 927. As I
understand the court's decision in that case, it merely held that the remedy
of reinstatement and backpay was inappropriate under the facts of that case.
It did not hold that reinstatement might not be ordered in an appropriate case
to remedy an 8(aX5) violation , even though no violation of Section 8(a)(3)
occurred In any event, and even if I have incorrectly interpreted the court's
holding, the Board's decision in that case clearly holds that reinstatement and
backpay may be provided to remedy an 8(a)(5) violation , and it is my duty
to follow the decisions of the Board until such time as the Board either
changes its position , or the Supreme Court holds to the contrary. Insurance
Agents International Union, 119 NLRB 768, 773; Iowa Beef Packers, Inc., 144
NLRB 615, 616.
its enterprise at Wichita, Kansas, but excluding office-cleri-
cal employees, professional employees, guards and supervi-
sors as defined in the Act, constitute a unit appropriate for
the purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
4. At least since on or about May 1, 1970, the Union
has been the collective-bargaining representative of the em-
ployees in the aforementioned appropriate unit, and by vir-
tue of Section 9(a) of the Act, has been, and is, the exclusive
representative of all employees in said unit for purposes of
collective bargaining with respect to rates of pay, wages,
hours of employment, and other terms and conditions of
employment.
5. On or about August 1, 1970, Respondent recognized
and entered into a collective-bargaining agreement with the
Union as the exclusive collective-bargaining representative
of the employees in the aforesaid unit, retroactive to May
1, 1970, and to be effective until April 30, 1972.
6. By unilaterally changing on or about June 1, 1971,
the wages, hours, and terms and conditions of employment
of the employees in the aforesaid unit, and thereafter failing
and refusing to comply with the terms of the contract of
August 1, 1970, with respect to the employees in the afore-
said unit, Respondents engaged in and are engaging in un-
fair labor practices proscribed by Section 8(a)(5) and (1) of
the Act.
7. By requiring its employees to elect between fore-
going their rights under the union contract or foregoing
employment with Respondents, Respondents coerced and
restrained said employees in the exercise of rights guaranteed
them by Section 7 of the Act, and thereby engaged in and are
engaging in unfair labor practices proscribed by Section
8(a)(1) of the Act.
8. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that Respondents have engaged in un-
fair labor practices , it will be recommended that they cease
and desist therefrom and take certain affirmative action set
forth below , designed and found necessary to effectuate the
policies of the Act.
Having found that Respondents coerced and re-
strained their employees in the exercise of rights guaranteed
them by Section 7 of the Act, and in view of the nature of
the other violations herein found, which go to the very heart
of the Act , I conclude from the totality of such unlawful
conduct that Respondents should be required to cease and
desist from in any manner interfering with , restraining, or
coercing their employees in the excercise of their rights guar-
anteed them by Section 7 of the Act. N.L.R.B. v. Entwistle
Mfg. Co., 120 F.2d 532 (C.A. 4); California Lingerie, Inc.,
129 NLRB 912, 915.
Having found that Respondents unilaterally changed
the wages, hours, and terms and conditions of employment
of its employees in an appropriate unit, and refused to com-
ply with the terms and collective -bargaining agreement ne-
gotiated with the Union as the bargaining representative of
the employees in said unit , it will be recommended that Re-
spondents be required to comply with said contract according
382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to its terms and legal effect, and upon request bargain with the
Union as the collective -bargaining representative of the em-
ployees in an appropriate unit. It will be further recom-
mended that Respondent be required to offer Danny T.
Duckett and Gary Thompson immediate, full and uncondi-
tional reinstatement to their former or substantially equiva-
lent positions, without prejudice to their seniority or other
rights, privileges, or working conditions, and that they, as
well as Ray Affleck, Don Flores , Owen L. Gould, Gary
Highfill, James D. Merchant, Michael D. Morrow, James B.
Savage, and Robert Scantlin be made whole for any wages
they lost by reason of Respondents' failure to comply with
the contract executed August 1, 1970,25 by paying to each
of them a sum of money equal to the amount they would
have earned as wages had Respondents fully complied with
their contract obligation, less the amount they actually
earned in the period when Respondents did not apply the
contract to them.26 The backpay herein recommended shall
be computed in the manner set forth in F. W. Woolworth
Company, 90 NLRB 289, with interest at the rate of 6 per-
cent per annum, as provided in Isis Plumbing & Heating Co.,
138 NLRB 716. It will also be recommended that Respon-
dents be required to preserve and, upon request, make avail-
able to authorized agents of the Board, all records necessary
or useful in determining compliance with this recommended
Order, or in computing the amount of backpay due.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:27
ORDER
Respondents Barwise Sheet Metal Co., Inc., a Division
of Airtron, Inc.; American Air Conditioning Co., Inc.,
Fahnestock, Inc., a Division of Airtron Inc.; and Airtron
Inc., Wichita, Kansas, their respective officers, agents, suc-
cessors, and assigns, shall:
1. Cease and desist from:
(a) Failing or refusing to give full effect to and to fully
comply with the contract between American Air Condition-
ing Co., Inc., and Sheet Metal Workers International Asso-
ciation , Local 29, executed August 1, 1970, retroactive to
May 1, 1970, according to its tenor and effect, with respect
to the employees in the unit set forth in said contract.
The unit is all sheet metal employees, journeymen, ap-
prentices, and foremen employed by Respondents.
(b) Failing or refusing, on request, to bargain collec-
tively with the aforesaid labor organization as the exclusive
collective-bargaining representative of the employees in the
aforesaid unit.
25 As heretofore indicated , the General Counsel in his briefs and proposed
order submitted to me does not seek a reinstatement and make whole remedy
with respect to employees Howard R . Clark, Bill R . Morgan, and Charles
Reed Accordingly, I do not recommend such an order with respect to them
26 1 have made no determination as to what hours the aforesaid employees
would have severally worked during the backpay period Such issues can best
be determined at the compliance stage of this proceeding
27 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.
(c) Unilaterally changing the wages and other terms
and conditions of employment of the employees in the afor-
esaid unit without prior consultation with the aforesaid la-
bor organization as the exclusive collective-bargaining rep-
resentative of said employees.
(d) Bargaining directly and individually with any em-
ployee in the aforesaid unit.
(e) Coercing or restraining employees in the aforesaid
unit by telling them that they could work for Respondents
only if they would agree to work under the terms and condi-
tions of employment unilaterally established by Respon-
dents, rather than under the terms and conditions
established by the aforesaid contract, or by any other state-
ment of similar purport.
(f) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their right to self-
organization, to form, loin, or assist labor organizations, to
bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the pur-
pose of collective bargaining or other mutual aid or protec-
tion as guaranteed by Section 7 of the Act, or to refrain from
any or all such activities.
2. Take the following affirmative action designed and
found necessary to effectuate the policies of the Act:
(a)Upon request recognize and bargain collectively
with the aforesaid labor organization as the exclusive collec-
tive-bargaining representative of the employees in the afore-
said appropriate unit, with respect to rates of pay, wages,
hours of work, and other terms and conditions of employ-
ment.
(b) Revoke and cease to comply with the changes in
wages and other working conditions unilaterally instituted
by Respondents following the formation of Barwise Sheet
Metal Co., Inc., except for such changes as the aforesaid
labor organization shall request not be revoked.
(c) Restore and place in effect all terms and conditions
of employment provided for by the aforesaid contract of
August 1, 1970, which were unilaterally changed by Re-
spondents, except in the particulars embraced by the pro-
ceeding paragraph.
(d) Make such vacation, welfare, and pension payment
on behalf of those employees in the unit for whom such
contributions were previously made and would have contin-
ued to be made had Respondents not ceased to comply with
the contract executed on August 1, 1970.
(e) Offer Gary Thompson and Dan Duckett imme-
diate, full, and unconditional reinstatement to their former
or substantially equivalent positions, without prejudice to
their seniority or other rights and privileges, and make each
of them, as well as Roy Affleck, Dan Owen L. Gould, Gary
Highfill, James D. Merchant, Michael D. Morrow, James B.
Savage, and Robert Scantlin, whole for any loss of wages
suffered by reason of Respondents' conduct, as provided in
the section hereof entitled "The Remedy"
(f) Notify immediately Gary Thompson and Dan
Duckett, if presently serving in the Armed Forces of the
United States, of their right fo full resinstatement, upon
application after discharge from the Armed Forces, in ac-
cordance with the Selective Service Act and the Universal
Military Training and Service Act.
(g) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
BARWISE SHEET METAL CO. 383
records , social security payment records , timecards , person-
nel records and reports, and all other records necessary or
useful in determining compliance with this Order, or in
computing the amount of backpay due, as herein provided.
(h) Post at each of their sheet metal shops located in
Wichita, Kansas , copies of the attached notice marked "Ap-
pendix."28 Copies of said notice , on forms provided by the
Regional Director for Region 17, Kansas City, Missouri,
shall , after being signed by an authorized representative of
each Respondent, be posted as herein provided immediately
upon receipt thereof, and be so maintained for a period of
60 consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken to insure that
said notices are not altered, defaced or covered by any other
material.
(i) Notify the aforesaid Regional Director in writing,
within 20 days from the date of receipt of this Decision,
what steps they have taken to comply herewith 29
28 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 29 In the event that this recommended Order is adopted by the Board after
Order of the National Labor Relations Board " shall be changed to read exceptions have been filed , this provision shall be modified by deleting the
"Posted Pursuant to a Judgment of a United States Court of Appeals Enforc- words "receipt of this Decision ," and substituting therefore the word "this
mg an Order of the National Labor Relations Board ." Order "