Concord Metal, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1989

295 N.L.R.B. 912 (N.L.R.B. 1989)

912 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Concord Metal, Inc. and Sheet Metal Workers
International Association , Local 9, AFL-CIO.
Cases 27-CA- 10261, 27-CA-10261-2, 27-CA-
10316-2, 27-CA-10316-4
June 30, 1989
DECISION AND ORDER AND ORDER
REMANDING
BY MEMBERS CRACRAFT, HIGGINS, AND
DEVANEY
On December 14, 1988, Administrative Law
Judge James M. Kennedy issued the attached deci-
sion . The General Counsel and the Charging Party
filed exceptions and supporting briefs . The Re-
spondent filed cross-exceptions and a brief in sup-
port. The General Counsel and the Charging Party
filed responses to the Respondent 's cross-excep-
tions, and the Respondent filed a motion to strike a
portion of the General Counsel 's response.'
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions, cross-exceptions,
and briefs and has decided to adopt the judge's rul-
ings,2 findings , and conclusions only to the extent
consistent with this Decision and Order, and to
remand this proceeding to the judge for the pur-
pose of making credibility resolutions and a deter-
mination of whether the December 9, 1987 strike
was an economic or unfair labor practice strike.
Specifically , we adopt the judge's findings that
the "Resolution 78" agreements are not independ-
ent collective-bargaining agreements and that the
Respondent did not violate the Act by photograph-
ing the employees on the picket line during the
strike . We disagree with his findings , however, that
the Respondent did not violate the Act when it
made a postcertification unilateral change and
when the Respondent 's supervisor told an employ-
ee that the employee would not receive holiday
r This motion to strike is denied because the statements at issue in the
General Counsel 's reply brief do not affect the outcome of the case.
2 The Respondent contends that the amended charge in Case 27-CA-
10261 is untimely because it is based on events that occurred outside the
10(b) period and therefore should be dismissed. The Respondent further
argues that the allegations in the amended charge are not closely related
to the allegations in the earlier, timely filed charge . The judge, finding no
violations in this case , did not address this issue.
We find that the allegations in the amended charge that the Respond-
ent unilaterally ceased making contractual fringe benefit fund payments
on Resolution 78 projects are closely related to those of the original
charge that alleged that the Respondent unlawfully repudiated its collec-
tive-bargaining agreement . Both charges allege a violation of Sec 8(a)(5)
and both charges anse from the Respondent's unilateral change in the
unit employees' terms and conditions of employment in September 1987.
See Redd-I, Inc., 290 NLRB 1115 (1988 ). Accordingly, we find no merit
in the Respondent's contention that the allegations in the amended charge
should be dismissed.
pay because employees had voted for the Union. In
addition, in light of our finding that the postcertifi-
cation unilateral change was unlawful , we remand
to the judge for credibility resolutions, factual de-
terminations , and legal conclusions on the issues of
whether the strike was an unfair labor practice or
economic strike and whether the Respondent's
treatment of strikers following their unconditional
offers to return to work violated the Act.
1. THE UNILATERAL CHANGE
The Respondent and the Union were parties to a
master 8(t) collective -bargaining agreement that ex-
pired on June 30, 1987.3 On January 6 the Re-
spondent gave notice that it was withdrawing from
the multiemployer association which had bargained
for and entered into the master agreement with the
Union on the Respondent 's behalf and that it in-
tended to terminate the contract on its expiration.
On July 1 the Respondent withdrew recognition
from the Union and set forth its own policies with
respect to wages and other terms and conditions of
employment. For the reasons fully discussed by the
judge, the Respondent continued to make fringe
benefit contributions to the trust funds in July and
August for employees working on projects covered
by Resolution 78 as required by the expired master
collective-bargaining agreement.
An election was held on September 2 among the
Respondent 's employees and on September 10 the
Union was certified as the exclusive bargaining rep-
resentative . On September 16 the Respondent's
president , Rudy Tezak , wrote a letter to Union
Business Manager William Stephens questioning
whether he should continue to make fringe benefit
contributions to the trust funds as set forth in the
contract . Tezak indicated that if he did not hear
from the Union by September 21, he would cease
making payments to the trust funds and would in-
stead pay the fringe benefits directly to the em-
ployees . On September 18 the Union sent a tele-
gram to the Respondent informing it that Stephens
would not be in the office until September 22, and
that he was the only person who could respond to
the Respondent 's inquiry.
Despite this response from the Union, the Re-
spondent changed its existing policy on September
25 and paid the fringe benefits directly to the em-
ployees who were working Resolution 78 jobs. On
October 13 an attorney for the Union wrote to the
Respondent noting the change of policy and indi-
cating that the Respondent had a continuing obli-
gation to make payments to the trust funds, and
that the trust funds might not credit the Respond-
8 All dates are in 1987 unless otherwise noted
295 NLRB No. 94
CONCORD METAL
ent for fringe benefit contributions paid to the em-
ployees . Thereafter , the Respondent stopped
making the contributions to the employees and
began making payments into an escrow account.
The judge stated that in light of John Deklewa &
Sons,4 the Respondent was free to withdraw recog-
nition from the Union and set its own terms and
conditions of employment as of the expiration of
the master 8(f) collective-bargaining agreement on
June 30, 1987 . The judge then found that because
the Respondent was under no obligation to pay the
previously agreed-to fringe benefit contributions
after the expiration of the master agreement, it
committed no violation when it paid the employees
directly for the equivalents . We disagree. This
analysis does not consider the change in the parties'
positions that occurred as of September 2, 1987,
the date that the Union was selected by the Re-
spondent 's employees as their exclusive bargaining
representative . Regardless of what changes the Re-
spondent was privileged to make after it repudiated
its bargaining relationship with the Union in July,
once the Union was selected as the representative
of its employees , the Respondent was under an ob-
ligation to bargain with the Union prior to making
any changes in the employees' terms and conditions
of employment.5
The Respondent 's notice to the Union on Sep-
tember 16 that it was considering a change with re-
spect to the trust fund payments was insufficient to
meet its obligation to bargain with the Union. By
insisting that the Union reply by September 21, the
Respondent did not afford the Union a reasonable
amount of time in which to respond.6 Further, the
Respondent was notified that the Union would be
unable to bargain prior to that date because its
business manager would not be in the office until
after the response date proposed by the Respond-
ent. Accordingly , we find that the Respondent vio-
lated Section 8(a)(5) and ( 1) by unilaterally chang-
ing its payment of fringe benefit contributions with-
out providing the Union an adequate opportunity
to bargain.7
II. THE HOLIDAY PAY QUESTION
Employee Todd Paulson testified that about 1
week after the representation election, he tele-
4 282 NLRB 1375 (1987 ), enfd . sub nom. Iron Workers Local 3 v.
NLRB, 843 F . 2d 770 (3d Ca . 1988), cert. denied 488 U S 889 ( 1988).
See NLRB v. Katz, 369 U .S. 736 (1962). See also Fugazy Continental
Corp., 265 NLRB 1301 (1982), enfd . 725 F.2d 1416 (D.C. Cir. 1984).
6 See M & M Building Contractors, 262 NLRB 1472 (1982).
7 We note that in order for a remedy to the Respondent 's failure to pay
the fringe benefit funds to be appropriate , the fund must be a mandatory
subject of bargaining as defined by Sec . 8(d). See Fox Painting Co., 263
NLRB 437 ( 1982), enfd . 732 F 2d 554 (6th Cir 1984). We leave to the
compliance stage of this proceeding the determination of which , if any,
of the funds fail to meet this criteria
913
phoned the Respondent 's office from his worksite
at Cub Foods. He asked Shop Foreman Mike Rob-
erts if Paulson had been paid for the Labor Day
holiday . Paulson testified that Roberts stated,
"Rudy [Tezak , Respondent 's president] had got
pissed off because the vote went for the union. So
he wasn 't going to pay us ." Roberts testified that
he told Paulson , "The way I [see] it, seeing as how
the election had been held on September 2, they
had voted for the union 's package, not Rudy's
which had included it."
Roberts then reported this conversation to
Tezak . Prompted apparently by this conversation,
Tezak later that day visited Paulson at another job-
site . Tezak told Paulson that there was a 90-day
waiting period that had to pass before holiday pay
was awarded and that Labor Day was within the
90-day period . When further questioned by Paulson
with respect to the fact that Paulson was a long-
time employee, Tezak explained that the waiting
period began with the institution of Tezak's poli-
cies on July 1.
The judge found that even from Roberts' own
testimony , it was clear that Paulson had been told
that the holiday pay had been denied him because
the crew voted for union representation. The judge
then found that by seeking Paulson out and ex-
plaining the policy to him, Tezak promptly dis-
avowed Roberts' coercive statement and substitut-
ed correct information . Accordingly , the judge rec-
ommended that this allegation be dismissed.
Contrary to the judge, we find that Tezak's
statements to Paulson did not "cure" the coercive
statements by Roberts . Tezak's attempt to disavow
the implications in Roberts ' statements fell short of
the Board 's standards for effective repudiation of
coercive conduct. In Passavant Memorial Hospital,8
the Board held that an effective denial must be
timely , unambiguous , specific in nature to the coer-
cive conduct, free from other proscribed illegal
conduct, adequately published to the involved em-
ployees, and should give assurances to employees
that no interference with their Section 7 rights will
occur in the future . In addition, the Board held
that there must be no proscribed conduct by the
employer after the publication.
Here, Tezak's comments to Paulson provided no
assurances against future coercive conduct, and
thus did not serve as an effective disavowal of the
prior coercive statement . Moreover , we note that
the denial did not occur in an atmosphere free
from other proscribed conduct . In these circum-
stances, we find that the Respondent violated Sec-
tion 8(a)(1) of the Act by telling Paulson that he
8 237 NLRB 138 at 138-139 (1978)
914 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
was not receiving holiday pay because the employ-
ees voted for union representation.
III. THE STRIKE
On December 9, six of the Respondent's employ-
ees engaged in a strike . On January 5, 1988 , the six
striking employees made unconditional offers to
return to work. The Respondent placed them on a
preferential hiring list and at the time of the hear-
ing none of these employees had returned to work
for the Respondent. The judge stated that because
the Respondent had not violated the Act, the strike
was an economic strike.
As discussed above, we find that the Respondent
has committed certain unfair labor practices.
Having found that the Respondent engaged in
these unfair labor practices , it is necessary to deter-
mine whether these actions were a cause of the
strike or whether the decision to strike was made
for purely economic reasons, and whether the Re-
spondent 's treatment of the strikers following their
unconditional offers to return to work violated
Section 8(a)(3) of the Act. Accordingly, we
remand this proceeding to the judge for a determi-
nation of these issues, including the making of any
necessary credibility resolutions , and the issuance
of a supplemental decision.
AMENDED CONCLUSIONS OF LAW
1. By failing and refusing to bargain with the
Union over the change in the payment of fringe
benefit contributions after the Union was selected
as the employees' collective-bargaining representa-
tive, the Company engaged in unfair labor prac-
tices affecting commerce within the meaning of
Section 8(a)(5) and (1) and Section 2(6) and (7) of
the Act.
2. By telling employee Todd Paulson that holi-
day pay was being withheld because employees
voted for union representation, the Company vio-
lated Section 8(a)(1).
3. The General Counsel failed to prove that the
Resolution 78 agreements were binding contracts
surviving the expiration of the master collective-
bargaining agreement on June 30, 1987, or that the
Respondent violated the Act by failing to comply
with these agreements.
4. The General Counsel failed to prove that the
Respondent violated the Act by photographing
strikers on the picket line.
REMEDY
Having found that the Respondent has engaged
in certain unfair labor practices, we shall order it
to cease and desist and to take certain affirmative
action necessary to effectuate the policies of the
Act.
To remedy the Respondent 's unlawful unilateral
change in the payment of fringe benefit contribu-
tions, we shall order it to remit to the appropriate
funds the payments unlawfully withheld .9 We shall
also order the Respondent to make whole all af-
fected unit employees for losses they incurred by
virtue of its unilateral change in fringe benefit pay-
ments.1 ° This shall include reimbursing employees
for any contributions they themselves have made
for the maintenance of any fund after the Respond-
ent made its unlawful unilateral change, with inter-
est as computed in New Horizons for the Retard-
ed. 11
ORDER
The National Labor Relations Board orders that
the Respondent, Concord Metal, Inc., Aurora, Col-
orado, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Unilaterally changing its payment of fringe
benefit contributions.
(b) Telling employees that holiday pay is being
withheld because employees voted for union repre-
sentation.
(c) In any like or related manner interfering
with , restraining , or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Remit to the appropriate funds payments it
has unlawfully withheld , reinstate the prior insur-
ance coverage for unit employees, and reimburse
its employees for any losses or expenses incurred
because of its failure to maintain such insurance, all
in the manner set forth in the remedy section of
this decision.
(b) Preserve and, on request , make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
9 Because the provisions of the fringe benefit fund agreements are vari-
able and complex , the Board does not provide for interest at a fixed rate
on fund payments due as part of a "make-whole" remedy It is therefore
left to the compliance stage of these proceedings the question of any ad-
ditional amounts the Respondent must pay into the funds in order to sat-
isfy the "make-whole" remedy These additional amounts may be deter-
mined, depending on the circumstances of each case , by reference to pro-
visions in the documents governing the fund at issue and , where there are
no governing provisions, to evidence of any loss directly attributable to
the unlawful action, which might include the loss of return on investment
of the portion of the funds withheld , additional administrative costs, etc.,
but no collateral losses . See Merryweather Optical Co., 240 NLRB 1213,
1216 fn. 7 (1979).
10 Kraft Plumbing & Heating, 252 NLRB 891 fn. 2 (1980), enfd. 661
F.2d 940 (9th Cir. 1981).
11 283 NLRB 1173 (1987)
CONCORD METAL
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(c) Post at its Aurora, Colorado facility copies of
the attached notice marked "Appendix." 12 Copies
of the notice, on forms provided by the Regional
Director for Region 27, after being signed by the
Respondent 's authorized representative , shall be
posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in
conspicuous places including all places where no-
tices to employees are customarily posted . Reason-
able steps shall be taken by the Respondent to
ensure that the notices are not altered , defaced, or
covered by any other material.
(d) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
IT IS FURTHER ORDERED that this proceeding is
remanded to Administrative Law Judge James M.
Kennedy for credibility resolutions and a determi-
nation of whether the December 9 strike was an
economic or unfair labor practice strike and wheth-
er the Respondent 's treatment of strikers following
their unconditional offers to return to work violat-
ed Section 8(a)(3) of the Act.
IT IS FURTHER ORDERED that the judge prepare
and serve on the parties a supplemental decision
setting forth findings and conclusions concerning
whether the December 9 strike was an unfair labor
practice strike . Copies of the supplemental decision
shall be served on all the parties, after which the
provisions of Section 102.46 of the Board's Rules
and Regulations shall apply.
is If this Order is enforced by a,judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT make unilateral changes in the pay-
ment of fringe benefit contributions.
WE WILL NOT tell you that holiday pay is being
withheld because you voted for union representa-
tion.
915
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL remit to the appropriate funds pay-
ments we have unlawfully withheld, reinstate the
prior insurance coverage for you, and reimburse
you for any losses or expenses incurred because of
our failure to maintain such insurance , plus interest.
CONCORD METAL, INC.
Michael J. Belo, for the General Counsel.
Robert R. Miller (Stettner, Miller & Cohn), of Denver,
Colorado, for the Respondent.
Dennis E. Valentine (Brauer & Buescher), of Denver, Col-
orado, for the Charging Party.
DECISION
STATEMENT OF THE CASE
JAMES M. KENNEDY, Administrative Law Judge. This
case was tried before me on August 10-12, 1988, in
Denver, Colorado, on a consolidated complaint issued by
the Regional Director for Region 27 of the National
Labor Relations Board on April 27, 1988. The complaint
is based upon charges filed by Sheet Metal Workers
International Association, Local 9, AFL-CIO (the
Union) on various dates between October 13, 1987,1 and
January 6, 1988. The complaint alleges that Concord
Metal, Inc. (Respondent) has engaged in certain viola-
tions of Section 8(a)(1), (3), and (5) of the National
Labor Relations Act.
Issue
Although the case presents several issues, the corner-
stone controversy centers around the interpretation of a
series of documents entitled "Competitive Bidding
Agreement Under Resolution 78." The General Counsel
and the Union contend that each of these documents,
signed by representatives of both the Union and Re-
spondent , constitute enforceable "project only" collec-
tive-bargaining agreements . Respondent contends that
they are, at best , multiple addenda to a master collective-
bargaining agreement and expired simultaneously with
the master.
Assuming the General Counsel's position to be correct,
the case then presents issues involving certain unilateral
changes which may have resulted in an unfair labor
practice strike . Respondent admittedly treated the strik-
ers as economic strikers and accorded them preferential
rehire status , but did not reinstate them upon their un-
conditional offer to return to work. If Respondent is cor-
rect, it becomes unnecessary to reach those issues for Re-
spondent would be entitled to set its own terms and con-
ditions of employment because the master agreement
which expired was executed pursuant to Section 8(f) of
the Act, not Section 9(c). In addition , the complaint al-
' All dates are 1987 unless otherwise noted
916 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
leges that Respondent committed two independent viola-
tions of Section 8 (a)(1).
All parties were given full opportunity to present evi-
dence, to examine and cross -examine witnesses , to argue
orally, and to file briefs . 2 All parties have filed briefs and
they have been carefully considered . Based upon the
entire record , including an assessment of the relative
credibility of the witnesses , I make the following
FINDINGS OF FACT
1. JURISDICTION
Respondent admits it is a corporation headquartered in
Aurora, Colorado, where it is engaged in the building
and construction industry as a sheet metal contractor. In
the course of its business it operates a fabrication shop
and installs the product it has fabricated (whether in the
shop or in the field) at construction sites . It further
admits that it annually purchases goods, materials, and
services valued in excess of $50,000 directly from sources
outside Colorado. Accordingly, it admits it is an employ-
er engaged in commerce and in an industry affecting
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
II. LABOR ORGANIZATION
Respondent admits the Union is a labor organization
within the meaning of Section 2 (5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Since 1978 when the Company was formed , Respond-
ent has had an 8(f) collective -bargaining relationship
with the Union. During that time Respondent , through
its membership in a multiemployer association,
SMACNA-Colorado, was bound by several master col-
lective-bargaining contracts . The duration of the most
recent agreement was from July 1, 1983, through June
30, 1986 , but extended by mutual agreement to June 30,
1987. On January 6, 1987, Respondent advised the Union
and SMACNA by letter that it was withdrawing from
multiemployer bargaining for the 1987 negotiations. It
also gave notice, pursuant to Section 8(d) of the Act,
that it intended to terminate the contract upon its expira-
tion on June 30 . Although it had decided to bargain sep-
arately with the Union Respondent nonetheless stayed
aware of the progress of the SMACNA bargainers. Its
president , Rudy Tezak, attended SMACNA meetings
and also met separately with the Union's representatives.
Despite continued efforts by both the Union and
SMACNA , on June 30 , no new agreement had been
reached and a strike ensued.
On July 1, the first day of the strike , Respondent, by
letter , withdrew recognition of the Union pursuant to the
Board's decision in John Deklewa & Sons, 282 NLRB
1375 (1987). Simultaneously , it instituted a substitute
policy setting forth wages and other terms and condi-
tions of employment.
2 The General Counsel 's unopposed motion to correct the transcript is
granted
B. Resolution 78 and Local 9
Early in the life of the 1983-1986 master agreement,
the Union 's parent International Association was faced,
on a national level, with the problem of nonunion com-
petition . It had determined that large amounts of con-
struction work , previously performed by union contrac-
tors, were being lost to nonunion competitors. This
meant, of course , that members of its affiliated local
unions, such as Local 9, were losing employment oppor-
tunities.
To meet this problem the International Association at
its September 1983 national convention unanimously
passed a measure , known as Resolution 78. The directive
which the International sent to its locals to implement
the resolution describes the program as follows:
The Resolution urges all local unions to adopt
various addendums [sic], specialty agreements, such
as industrial and residential , and light commercial
agreements , including additional flexible conditions
on particular jobs known as pin pointing , all of which
have been designed by the International Association
in cooperation with Local Unions to recapture our
work jurisdiction for the membership.
The Resolution further authorizes business manag-
ers to expand on all of these addendumsand agree-
ments to the degree necessary to meet the challenge
which is increasingly eroding work opportunities
for the membership. [Emphasis added.]
Recognizing the need for such relief, Local 9 imple-
mented the resolution by developing a procedure by
which certain construction jobs were to be "pin pointed"
or "targeted" for special treatment . It set certain guide-
lines for targeting eligibility . For example , in an undated
letter issued in August 1986 (apparently August 11)
Local 9's business manager, Bill Stephens listed the re-
quirements : (1) bids must be a direct quotation to either
the 'prime mechanical contractor or to the general con-
tractor; (2) the jobs must be properly logged (on union-
required forms); (3) jobs were to be reviewed monthly at
the Labor-Management Committee meeting; (4) jobs in-
eligible for targeting were those where the sheet metal
work was valued at more than $ 1 million, where they
were covered under a project agreement , where it was a
Rocky Mountain Investor financed project, where it was
union-financed , or where the job was bid on time and
material.
If those criteria were met, at least as of that date, con-
tractors were free to target the job at the wage rate of
$14.50 per hour for journeymen (as opposed to the con-
tract rate of about $18). In addition , the program modi-
fied the crew ratio to require one apprentice and one
preapprentice for each journeyman . It also required that
"full fringe benefits" be paid . Moreover, the letter put
specific limits on the program , apparently regarded as a
pilot program . It stated that during the 6-month period
from its inception , the Union could cancel it upon 2
weeks' notice (although allowing previously targeted
jobs to proceed as bid).
CONCORD METAL 917
About 6 months later , Stephens modified the program,
threatening to end it if the contractors did not improve
their reporting . Apparently , the contractors were not re-
porting lost jobs, only those which had been successfully
bid. Stephens believed he was unable to properly assess
the nonunion competition without that information. On
June 2, Stephens canceled the blanket $ 14.50 blanket
target, assertedly because of some noncompliance by
SMACNA and its president, Steve Larson of Climax
Metals . In view of the fact that the contract 's expiration
was less than 30 days away and because bargaining was
not going well, it seems likely that another motive may
have been to put pressure on the SMACNA contractors
to agree to a new contract . Supporting that view is a
paragraph in the letter stating that the Union would con-
tinue to provide targets upon request to contractors who
signed interim agreements (promising to abide by the
outcome of negotiations) or who were bound by the ver-
sion of the master agreement which contained an inter-
est-arbitration clause . That clause was, in most of those
contracts , labeled "Article X, Section 8," commonly re-
ferred to as "10-8 ." Whether that is an accurate assess-
ment is not particularly important to this case ; its signifi-
cance is that it demonstrates that the Resolution 78 pro-
gram was obviously subject to modification at the sole
direction of the Union . In a very real sense SMACNA
and the other employers had no control over the pro-
gram-either how it was to be implemented or even if it
was to be implemented.
However, the program itself must be distinguished
from its applicability to specific jobs . Even the documen-
tation from Stephens suggests that the Union would not
cancel an existing target once the project was actually
bid successfully . In this regard the Union provided a
form of agreement which each successful bidder was ob-
ligated to sign in order to take advantage of the "target
rate." The document is a two-page form entitled "Com-
petitive Bidding Agreement Under Resolution 78." First
used in 1984 , its preamble and second sentence read:
This agreement is intended to make Sheet Metal
Contractors competitive on the named Construction
Project so that he may be successful in securing the
work for his Company and to create work for the
members of Sheet Metal Workers International As-
sociation Local Union #9.
The terms of this agreement shall be for the dura-
tion of the named project.
Although the document contains blapks for filling in
the commencement and completion dates for the project,
it is clear that those dates were intended only as esti-
mates and were not deadlines which, if unmet, would
trigger some sort of sanction , such as loss of the target
rate . The form also provides fora short description of
the nature of the work to be performed.
It then states that the Contractor "agrees to implement
this agreement as follows :" A list of items is set forth in-
cluding the target wage rate as set by the Union "plus
fringe benefits as contained in the current Collective Bar-
gaining Agreement ." Item 5 states : "The shop and field
work set out . . . shall be performed in its entirety in the
jurisdiction and by members of Sheet Metal Workers Local
Union #9 only." (Emphasis added .) It also states that
"extra" work (i.e., work not covered by the target de-
scription) shall be at the wage rate set forth in the cur-
rent master collective-bargaining agreement.
Aside from these references to the master agreement,
the Resolution 78 form contains no other language incor-
porating the master . Thus, such matters normally seen in
collective-bargaining contracts such as the bargaining
unit description , hiring hall provisions , antisubcontract-
ing rules, antidiscrimination clauses, union security, job
safety, steward rights, and grievance -arbitration proce-
dures are missing . It can be discerned from the testimony
of Stephens and the three owners who testified that they
all considered those matters to be governed by the
master contract ; yet there is no explicit language to that
effect . Even the duration of a Resolution 78 agreement is
unclear . It has no specific beginning or end ; its life ap-
pears to be governed only by an act or declaration of the
contractor-when he begins or ends the job.
C. Respondent's Practice after the Expiration of the
Master Agreement
When the master contract expired on June 30, Re-
spondent had both Resolution 78 and ordinary jobs un-
derway . It might be observed here that Respondent had
only recently begun , in 1987, to avail itself of the Resolu-
tion 78 wage differential . Moreover , except for one job,
it only utilized the program to avoid , with the Union's
tacit agreement , a contractually required wage increase
from $18 to $ 18.53 at the beginning of the year . It never
used the $14 . 50 target and only on its Windsor Can plant
job did it use a specially targeted rate, $16 . That job was
not scheduled to begin until sometime after June 1, al-
though the Resolution 78 contract was signed in March.
When the strike began on July 1, there was some ini-
tial confusion over which employers should be struck. It
appears to be undisputed that the Union chose not to
strike employers which had signed (or in one case , orally
agreed to) an interim agreement . In addition, the Union
chose not to strike those contractors which it believed
were bound to 10-8 clauses . It did not strike Respond-
ent, although clearly it had not signed an interim agree-
ment . There is, however, separate litigation over wheth-
er Respondent is bound by a 10-8 clause.
Because it had manpower during the strike, Respond-
ent naturally proceeded to perform its construction con-
tracts . There seems to have been some initial confusion
on the part of its sheet metal workers regarding whether
they were to perform Resolution 78 work, but that was
quickly resolved in favor of performance . For the most
part, it appears , the Union did not provide workmen for
the in-progress Resolution 78 jobs of struck contractors.
Not only did the Union permit Respondent's employees
to work on its jobs , Respondent 's president , Rudy Tezak,
told the employees the Union was obligated to man
them . In his July 1 policy statement , Tezak stated "Local
No. 9 must man this work or be in breach of contract.
We expect all employees to continue on with this work
without interruption . We, of course , will continue to pay
918 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the wages and fringe benefits set out in the project
agreement."
The Union responded to Tezak's Deklewa repudiation
by filing a representation petition with the Board's Re-
gional Office in mid-July. In the meantime, Respondent
directly hired some additional employees and began
paying them in accordance with its July 1 wage rate. It
also set up a dual timecard system to keep track of Reso-
lution 78 jobs and non-78 jobs. In this way Respondent
paid its old employees, union members, the targeted rate
for 78 jobs and the July 1 rate for non-78 jobs. It also
made payments to the fringe benefit funds for the work
performed on 78 jobs by union members, at least until
September 21.
On September 15 or 16 Tezak learned that the Union's
apprenticeship program was suing one of his employees,
Glenn Chapman. The suit was to foreclose a loan the ap-
prenticeship program had made to Chapman to pay for
his training. Chapman, who was also Tezak's son-in-law,
had been hired after the strike began and, although a
union member, had not been referred to Respondent by
the Union. He was working under Respondent's July 1
policy. In the lawsuit, the apprenticeship trust contended
that Chapman was working for an employer who was
not submitting fringe benefits to the proper funds, thus
triggering a right to repayment of the loan.
Tezak, perhaps not understanding the narrow reach of
the union's contention, became concerned enough to
write Stephens a letter contending that Respondent was
indeed paying fringe benefits on Resolution 78 contracts
and was remitting them to the apprenticeship fund.
Indeed, it appears to be quite true that it was submitting
such payments on behalf of at least two apprentices,
Ford and Gallegos. Those two were working on a city
of Denver job at Stapleton International Airport. That
job was subject to a prevailing wage requirement and
Tezak feared that if his apprentices were not being cred-
ited with the fringes, he might end up paying them a
second time. He wished to clarify the situation and de-
manded to know from the Union by September 21 if he
should continue to pay those amounts to the trust funds
or whether he should put those amounts on the employ-
ees' checks.
Because the Union did not immediately answer his
question, he did change the way those amounts were to
be paid. He withheld those amounts for a time and then
issued separate checks to the employees for the proper
amount. Later he put those amounts directly on their
paychecks; still later, he decided that he did not know
what to do, because the trusts still might make him pay
twice, so he put the amounts into a separate company ac-
count, calling it an "escrow."
Eventually, the Union complained to the city of
Denver which found merit to its prevailing wage conten-
tion . In turn , the city threatened to stop paying the
project's general contractor; he, predictably, threatened
to oust Respondent from the job. The city also insisted
that Respondent make additional payments, not only of
the fringe benefit moneys (which the city asked be paid
directly to the employees) but also, due to the Charging
Party's demand, that Ford and Gallegos be paid the jour-
neyman rate even though they were only (or had been
until the master agreement expired) apprentices.3
Curiously, in its argument to the city, the Union con-
tended, contrary to its contention here, that Respondent
was not a signatory contractor. Here, of course, it con-
tends that Respondent was bound by the Resolution 78
agreement and that it is a collective-bargaining contract
independent of reference to any other document, such as
the expired master agreement or its replacement.4
D. Alleged Restraint and Coercion
The complaint alleges that Respondent has committed
two independent violations of Section 8(a)(1) by telling
an employee he had lost the holiday pay benefit because
the employees had voted for representation by the Union
in the NLRB election on September 2. It also alleges
that Respondent, through Tezak, coercively surveyed
employees when, during the strike which commenced on
December 9, Tezak on two separate occasions, took pho-
tographs of pickets holding their placards. Respondent
asserts that both allegations are without merit . With re-
spect to the former, it contends that the employee in
question misunderstood the thrust of what was being
said, and moreover, Tezak's subsequent explanation
cured the error made by a supervisor, Mike Roberts. As
for the latter, Respondent contends that it asked the
-pickets to pose with their signs and that they agreed to
do so and in that circumstance the conduct was noncoer-
cive. Furthermore, it observes, the Union had failed ade-
quately to identify itself on the signs and the photogra-
phy was simply to preserve that fact in the event the
matter became litigable.
1. The holiday pay question
The representation election was conducted on Septem-
ber 2; the Union easily won. Labor Day occurred on
September 7. According to Tezak, Respondent either on
or shortly after July 1 had implemented various employ-
ment policies. The July 1 memo is silent about holiday
pay, but his testimony shows that the holiday pay benefit
was granted about that time. He testified that it included
a 90-day waiting period for it (and apparently some
other undescribed benefits) to become effective.
Sheet metal worker Todd Paulson, a 10-year employ-
ee, and son of Respondent's recently deceased superin-
tendent, testified that about a week after the NLRB elec-
tion he telephoned the office from his job at Cub Foods.
8 In view of the fact that Respondent and the Union were in the midst
of a labor dispute at the time the city made its assessment , February 1988,
it is quite possible that the city acted in a manner which improperly im-
pacted the parties' relative bargaining positions On September 10, 1987,
the Union had become the certified bargaining representative of Re-
spondent's employees and was doing what it could to obtain a contract.
The city's decision could only cause mischief to that end, for the threat-
ened ouster from the job as well as double payments on behalf of the
employees , rather than leading to an agreement, may well have hardened
Respondent's bargaining stance . Certainly it changed the parties' bargain-
ing strengths. See Golden State Transit Y. City of Los Angeles, 475 U.S.
608, 618 (1986), see also the Ninth Circuit's review of the district court's
decision after remand in that case 110 S Ct. 444 (1988)
4 It will be recalled that the union is also contending , in another forum,
that Respondent is bound to interest arbitration through a 10-8 clause
and is thus bound to the successor master contract.
CONCORD METAL
He asked Shop Foreman Mike Roberts if he had been
paid for Labor Day. As Roberts paused to answer, he
asked if "Rudy" intended to pay him for that day. Paul-
son says Roberts replied saying, "Rudy had got pissed
off because the vote went for the union . So he wasn't
going to pay us." Roberts' version is only a little differ-
ent. He says when Paulson called him to ask about holi-
day pay for Labor Day he told Paulson , "The way I see
it, seeing as how the election had been held on Septem-
ber 2, they had voted for the union 's package, not
Rudy's which had included it. So far as I know , Rudy's
package has been rejected ." Despite his belief, Roberts
nonetheless told Paulson he would check with Tezak.
Roberts then reported his conversation with Paulson
to Tezak. Prompted by what Roberts had apparently
said , Tezak, later that day visited Paulson at another job-
site, the Federal Detention Center . Paulson testified that
Tezak told him that a recently hired coworker, Art
Dumas, would have to be employed for 90 days before
getting the holiday pay benefit . When Paulson asked
about his own eligibility, he says Tezak told him, "As
long as [you] are affiliated with the union , they can take
care of [you]." Tezak essentially denies Paulson's ver-
sion . He says he simply told Paulson that there was a 90-
day waiting period which had to pass and Labor Day
was within the 90-day period . He says he told Paulson
that the first holiday for which he would be eligible
would be Thanksgiving. Therefore, under company
policy, "It wasn't due yet."
2. The photography
According to fab shop employee Gary Gist, on either
December 9 or 10, the first or second day of the strike,
he was picketing outside the company office in Aurora.
At some point Tezak came out of the office and "took a
couple of pictures . Not everyone was grouped together,
you know , for a picture , just pictures in general of ev-
eryone ." Gist says that another picket, Ron Schaeffer,
asked Tezak if the pictures were "for evidence," but
Tezak replied they were for his "scrapbook." Gist says
that about a week later the scene played again. Tezak
again took photographs and Schaeffer repeated his earli-
er question and Tezak repeated his earlier answer.
Schaeffer was not called as a witness.
Tezak acknowledges taking pictures on both the first
and second days of the strike . He says on the first day he
told a picket he needed to take a picture of the sign. The
picket then posed for him . He says Schaeffer then asked
if he was taking the picture for his scrapbook and he re-
plied, "No. This is for information." Tezak says he went
on to say that it was a shame that Schaeffer was not
more proud of Local 9 than to have its name on the sign.
Schaeffer told him the Union 's name was on the sign and
pointed to some ordinary typing on the sign's lower
right-hand corner.
On the second day, Tezak says a steel delivery truck
attempted to enter the yard but could not because the
pickets were standing in the driveway . Accordingly, he
took some pictures showing the pickets standing beside
the driveway. After a few minutes the driveway cleared
and the truck backed in with the delivery.
919
Union Business Agent Mike Salazar testified that all
the picket signs contained the same language . However,
the photographs show several different placards, includ-
ing "Concord Metal Inc. has committed unfair labor
practices-Violates federal laws-Concord Metal Inc.
violates federal law-Workers rights are human rights";
and "Caution Rat Busters at Work ." The last two do not
show Respondent's name and none of the signs display
the Union 's name.
IV. ANALYSIS AND CONCLUSIONS
I have not discussed in the facts section of this deci-
sion those matters relating to the alleged unlawful refusal
to reinstate strikers . The General Counsel did adduce
evidence tending to show that the strike was caused by
conduct which she has claimed are unfair labor practices,
specifically Respondent 's admitted failure to pay the
fringe benefit trust funds beginning in September . Frank-
ly, I have doubts that her conclusions in that regard are
valid . However, it is unnecessary to discuss that issue be-
cause it is clear to me that the General Counsel has
failed to demonstrate that the Resolution 78 agreements
are anything other than addenda to the master collective-
bargaining contract which expired on June 30 . When the
master 8 (f) contract expired , so did the addenda. Under
the Deklewa doctrine Respondent , which had caused the
master agreement to expire , was free to implement sub-
stitute terms on its repudiation of recognition . In that cir-
cumstance , Section 8(d) of the Act does not operate to
require the maintenance of previous terms pending the
negotiation of a new agreement as it would in 9(a ) exclu-
sive recognition situations. Furthermore , I find that the
incidents alleged to be violative of Section 8(a)(1), even
if unfair labor practices , did not cause or prolong the
December 9 strike. Indeed , it is my opinion that the inci-
dents are not even unfair labor practices.
A. The Resolution 78 Agreements Are Not
Independent Collective -Bargaining Agreements
The two-page form which is at issue here was created
with a specific purpose-to provide a vehicle whereby
unionized sheet metal contractors could effectively bid
on jobs which they could not otherwise obtain. The
policy behind Resolution 78 was the International Asso-
ciation's effort to obtain traditional work which -other-
wise would fall to nonunion contractors. Its local unions
had succeeded in negotiating master agreements with ex-
cellent wage and fringe benefit packages . Unfortunately,
the labor costs which contractors were obligated to pay
put them at a severe disadvantage with respect to lower
cost competition which was not bound to pay the same
wages or benefits . Local 9 was no different from other
local unions in that regard . To implement the work re-
capture strategy mandated by the International Associa-
tion, Local 9 decided , as no doubt did other locals else-
where, to provide a means of waiving some of the con-
tractual obligations set forth in its master contract. That
waiver took the form of the Resolution 78 agreement.
The International had even suggested that the waiver
take the form of "addendum [sic]" to the master agree-
ments.
920 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
I do not agree with Respondent that the 78 agreements
are illusory contracts or unilateral waivers, although
they do approach the latter . I think it is clear that they
are supported by contractual consideration and are, to
some extent , enforceable , at least during their life. (Even
their enforceability under the Act is subject to some
doubt due to their applicability to "union members
only.")5 However , I am compelled to conclude that they
have no life without reference to the master agreement.
As noted above, they contain allusions to the master and
require the contractor to comply with at least those pro-
visions of the master relating to fringe benefits . Because
it is silent with respect to a general incorporation by ref-
erence, I am unwilling to speculate which specific terms
of the master they do incorporate aside from the obliga-
tion to pay the fringe benefits . 6 What does appear mani-
fest, however , is that the 78 agreements cannot stand
without at least some reference to the master; i .e., they
are later-negotiated addenda to the master, not independ-
ent agreements.
I reach this conclusion because of several factors. The
first is the document 's title-"Competitive Bidding
Agreement ." If it were a collective -bargaining agreement
it would have said so. Instead it sets forth a wage rate
below that set by the collective -bargaining contract, one
which is designed to assist a union contractor to gain
work which it might not otherwise have obtained.
Second , although it covers fringe benefits , it only does so
by reference to the master . Other terms and conditions
normally seen in collective -bargaining contracts are
omitted . It is a terribly short document , only 1-1/2 pages
long. In my experience , "project only" collective-bar-
gaining agreements are usually full-blown contracts, no
different than ordinary collective -bargaining contracts,
but limited by its recognition or bargaining unit clauses
to a named project . In contrast , this document contains
no recognition clause or bargaining unit description.
Indeed , project only contracts are usually the product of
8(f) bargaining between a construction industry union
and a contractor who has some special need, such as
skilled workmen for a contractor intending to perform a
single project in the union 's geographical area . Occasion-
ally they take the form of a standard "me too" or "com-
pliance" agreement . In both of those situations incorpo-
ration, by reference clauses are invariably found as a criti-
S In general , see Kansas Power & Light Co., 64 NLRB 915 (1945); Cru-
cible Steel Castings Co., 90 NLRB 1843 (1950), Appalachia Shale Products,
121 NRLB 1160 (1958); Ron Wiscombe Painting & Sandblasting Co., 194
NLRB 907 (1972). In addition , it may be reasonable to conclude that the
language under scrutiny establishes an illegal closed shop.
6 It should be observed here that even if a breach of the bargaining
obligation did occur with respect to the failure to pay the fringe benefit
funds, the Board would not necessarily make all of the funds whole. In
order to be eligible for a remedy the fund would have to meet the crite-
ria of a mandatory bargaining subject as defined by Sec. 8 (d) See gener-
ally Fox Painting Co., 263 NLRB 437 (1982), and cases cited therein. The
industry promotion fund would probably not qualify and other funds
such as SASMI , the apprentice and training funds , and the national (not
local) pension funds , would warrant close scrutiny on the point. More-
over, the health and welfare levels may have been maintained by a substi-
tute plan , if coverage under the substitute was the same as under the
union plan , it might qualify as proper self-insurement. See Triangle Sheet
Metal, 267 NLRB 650 (1983), and Service Roofing Co., 200 NLRB 1015
(1972).
cal part of the contract , usually in the first paragraph
after the identification of the parties, immediately fol-
lowed by a recognition clause limiting its application to
the named project. Nothing of that nature is seen here.
Not only is there no recognition clause, there is no
union-security clause . For a collective-bargaining con-
tract drafted in full by a labor union, to be used to pro-
vide critical employment for its members, to omit those
matters seems most unlikely unless the union knew or be-
lieved that they were governed by another document.
Here I believe that document must be the master con-
tract in effect at the time the 78 agreements were signed.
The same can be said of other clauses . Can one really be-
lieve that a union which has negotiated a hiring hall, a
grievance-arbitration clause, subcontracting limitations,
antidiscrimination clauses, steward clauses, overtime
rules, and travel pay/subsistence coverage would fail to
include at least some of those matters in the "project
agreement" if that is what it is. I do not think so.
With respect to the incorporation by reference issue, I
note that paragraph 9-4 of the master agreement is a typ-
ical "most-favored-nations clause" 7 requiring the Union
to grant to the employers bound by that contract and
lower wage or fringe rates it might negotiate with an-
other employer . I think it is fair to say that the 78 agree-
ments were designed to do just that . They really are
nothing more than a narrow application of the most-fa-
vored-nations clause. Its principal feature was to allow
any of its signatory contractors to take advantage of
those rates to enhance the probability that the project
would fall to a union contractor . This, too, leads to the
conclusion that the Union intended the 78 agreement to
be something less than an independent collective-bargain-
ing contract.
It is true that at least for a time Respondent acted in a
manner consistent with one who believed he was bound
by a contract. Tezak paid the wages and the fringe bene-
fits as set forth in the 78 agreement for some time. And,
Tezak made assertions to the effect that the Union was
bound to honor the 78 rates and to supply manpower to
perform the jobs. At the same time, however, the Union
was acting as if the 78 agreements had expired . For the
most part it refused to man 78 jobs for contractors who
had not signed interim agreements or which it believed
were bound to interest arbitration. It knew that Respond-
ent had directly hired one of its members, Chapman, in
apparent breach of the hiring hall clause . Yet, it did
nothing to oust him from the job. It clearly had the right
to do so (see Operating Engineers Local 452 (Ralph A.
Marino), 151 NLRB 497, 500 (1965 )), but did not. Instead
it chose to sue the man instead . 8 Had the Union believed
the 78 contract was in force, it would have taken the
easy, direct action of demanding his ouster; it would not
have taken the more expensive route of a lawsuit . Its fail-
7 In the contract, par 9-4 is actually entitled "Preferential Clause."
8 I am not impressed with the argument that the suit against Chapman
was by the Apprenticeship Trust rather than Local 9. Business Manager
Stephens sits as a trustee of the apprenticeship program and can, no
doubt, easily influence it, particularly if a former signatory contractor has
gone nonunion. The contractor trustees have no incentive to disagree, for
it is to their benefit if a nonunion contractor is caused difficulty.
CONCORD METAL 921
ure to do so suggests that it knew full well that the 78
agreement had expired with the master and that the
hiring hall clause was unavailable as an enforcement
device.
There remains for consideration the meaning of the
second full sentence of the 78 agreement . It seems to be
unambiguous: "The terms of this agreement shall be for
the duration of the named project ." Yet, is it truly unam-
biguous? I think not. It seems to me to be most ambigu-
ous in its application , if not its actual language . In con-
text, the language has problems which are not discernible
from the words themselves . I believe this sentence suf-
fers from classic latent ambiguity . It seems to be clear,
but when applied to a real situation , is not . It only makes
sense when the phrase "so long as a master collective
bargaining contract is in effect" is implied as conclusion-
ary phrase . If it did not have that limitation , the docu-
ment would take on an absurdity which would make no
sense in a labor-management context . The Union would
not allow a minicontract such as this to control the terms
of a subsequent master having a most-favored-nations
clause, for it would immediately undercut the terms of
the new master contract . That is the result which would
occur if the 78 agreements were deemed to have sur-
vived on their own after the expiration of the 1983-
1986(7) contract . Accordingly , I have little difficulty in
concluding that the Resolution 78 agreements are not
"project only" collective-bargaining contracts as con-
tended by the General Counsel , but are simply addenda
to the expired master.
B. The Unilateral Changes Were Privileged
Because of the Deklewa decision , Respondent, as an
8(f) contractor , on July 1, 1987, was absolutely free to
withdraw recognition of the Union and set its own terms
and conditions as of that date . Whether it did so straight-
forwardly or with a "white lie" such as Tezak uttered
does not change the bargaining rights of either party. He
set them then and they stood until after the Certification
of Representative when the parties began negotiating for
a new contract . So far as this record shows, the parties
are still negotiating , although bargaining seems to have
been temporarily halted as the Union turned its attention
to matters it deemed to be of higher priority. At any
rate, this complaint does not address postcertification ne-
gotiations . Insofar as the postcertification unilateral
change allegations are concerned , since Respondent was
under no obligation to pay the fringe benefit contribu-
tions to the trusts after June 30, it committed no viola-
tion of the Act when it paid the employees directly for
the equivalents.
C. Alleged Restraint and Coercion
There remains for consideration the claim that Re-
spondent violated Section 8(a)(1) of the Act with respect
to the statements made to Todd Paulson regarding holi-
day pay and Tezak's photographing picket signs.
Insofar as the holiday pay question is concerned, I
think it is quite clear , from Supervisor Mike Roberts'
own testimony, that he told Paulson that in his opinion
the holiday pay had been denied him because the crew
had voted for union representation . Tezak, however,
almost immediately sought out Paulson at a jobsite and
told him something different . Paulson says Tezak told
him Dumas would get holiday pay after a 90-day waiting
period , but that Paulson as a union member, or a proun-
ion voter, would have to let the union take care of him.
Tezak's version is that he had realized from what Rob-
erts had reported , that Roberts had given Paulson some
misinformation (which Tezak appears to have recognized
might constitute an unfair labor practice ) and had gone
to the site to correct the error. He says he simply told
both Paulson and Dumas that the holiday pay benefit
had a 90-day waiting period and the first holiday after
the 90 days was Thanksgiving, not Labor Day. Paulson
even partially corroborates Tezak when he allows that
Tezak mentioned the 90-day waiting period to him with
respect to Dumas . Given the fact that Tezak was making
a special effort to try to correct Roberts' misstatement, it
seems unlikely that he would have then compounded it
further by antagonizing a longtime employee (and son of
a recently deceased and highly respected supervisor) by
making such a statement . Based on probabilities , as well
as the fact that Paulson seemed to at least partially mis-
understand , I credit Tezak here. Accordingly, the Gener-
al Counsel has failed to prove that Tezak uttered an im-
proper threat . Moreover , although Roberts seems to
have made a coercive statement , it was couched , even in
Paulson 's version, as personal opinion . In any event it
was promptly disavowed and correct information substi-
tuted . In my view this allegation should be dismissed as
well.
The photography evidence is also unimpressive. It is
true that there are situations in which photographing
pickets can be seen as a direct restraint on an employee's
right to strike . I do not see that as having occurred here.
The Union was picketing Respondent at at least two lo-
cations, the shop and Stapleton International Airport,
with signs which did not identify the Union by name. At
least one of the signs did not name Respondent as a pri-
mary picketing target . As Stapleton was a common situs,
it does not seem coercive for Respondent to take a limit-
ed number of pictures for the purpose of preserving evi-
dence of what the sign said or did not say , for secondary
boycott charges are always a distinct possibility when a
picket line is established . Moreover , there was at least
one incident within the first day or so where a delivery
was delayed by pickets blocking an entrance . Again,
preservation of proof is a good defense to this charge. It,
too, should be dismissed.
As the General Counsel has failed to prove by a pre-
ponderance of evidence that Respondent has committed
any unfair labor practices worthy of a remedy, it follows
that the December 9 strike was not an unfair labor prac-
tice strike . Indeed , there is evidence in the record, which
I have not discussed , which could easily lead one to the
conclusion that the strike was not even triggered by the
incidents alleged as unfair labor practices , but was in-
stead a simple economic strike to obtain a new contract.
When the strike was abandoned and the employees
sought reinstatement , Respondent placed them or a pref-
erential rehire list. The General Counsel has not alleged
922 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
their treatment as economic strikers to have been im-
proper. Accordingly, the allegations relating to failing to
recall the strikers should be dismissed.
On the foregoing findings of fact and the entire record
in this case I make the following
CONCLUSIONS OF LAW
1. Respondent Concord Metal, Inc. is an employer en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Sheet Metal Workers International Association,
Local No. 9, AFL-CIO is a labor organization within
the meaning of Section 2(5) of the Act.
3. The General Counsel has failed to prove that Re-
spondent has engaged in any violations of the Act as al-
leged.
[Recommended Order for dismissal omitted from pub-
lication.]