Cox Corp.

National Labor Relations Board - Board Decisions

Oct 13, 1976

226 N.L.R.B. 384 (N.L.R.B. 1976)

384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cox Corporation and Local No. 48 , Sheet Metal
Workers International Association , AFL-CIO.
Case 10-CA-11676
October 13, 1976
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND WALTHER
On June 30, 1976, Administrative Law Judge Hen-
ry L. Jalette issued the attached Decision in this pro-
ceeding. Thereafter, Respondent filed exceptions and
a supporting 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 at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Cox Corporation,
Huntsville, Alabama, its officers, agents, successors,
and assigns, shall take the action set forth in the said
recommended Order.
DECISION
STATEMENT OF THE CASE
HENRY L. JALETTE, Administrative Law Judge: This pro-
ceeding was initiated by a charge filed by the above-cap-
tioned Union on December 5, 1975.1 Pursuant thereto,
complaint issued on January 29, 1976, alleging that the
above-captioned Respondent had violated Section 8(a)(1)
and (5) of the Act by refusing to execute a collective-bar-
gaining agreement negotiated on its behalf by a multiem-
ployer association. On March 25, 1976, hearing was held in
Huntsville, Alabama.
Upon the entire record, including my observation of the
witnesses, and after consideration of the briefs of the par-
ties, I hereby issue the following:
i Unless otherwise indicated, all dates hereinafter are in 1975
FINDINGS OF FACT
1. THE ALLEGED UNFAIR LABOR PRACTICES
1. The Facts
Respondent is engaged in the fabrication and installa-
tion of air-conditioning and heating systems with an office
and place of business in Huntsville, Alabama.'
Mechanical Contractors Association of Birmingham, Al-
abama, Inc., hereinafter referred to as MCA, is a trade
association which admits to membership employers en-
gaged in the building and construction industry as sheet
metal fabricators, and exists in part for the purpose of rep-
resenting its members in collective bargaining with the
Union through the negotiation and execution of collective-
bargaining agreements. Respondent has never been a
member of MCA, nor has it ever participated in group
negotiations. However, both in 1973 and 1974, after the
Union and MCA had negotiated a collective-bargaining
agreement covering sheet metal workers employed by the
employers who were members of MCA, Respondent exe-
cuted the same agreement for its sheet metal worker em-
ployees.
The 1974 contract had an expiration date of June 1,
1975, with automatic renewal from year to year absent
written notice of reopening not less than 90 days prior to
the expiration date. On February 24, the Union gave timely
notice of reopening to MCA. No notice was sent to Re-
spondent. Thereafter, beginning on April 1, MCA and the
Union entered into negotiations.
On April 7, Respondent, by its president, Douglas Cox,
Jr., sent to MCA a bargaining agent authorization wherein
it expressly authorized MCA to act as its bargaining agent
in negotiations with the Union and agreed to be bound by
any agreement entered into between MCA and the Union.
Cox testified that the authorization was sent to him by
MCA and that from conversations with one Carl Morton,
president of MCA, he understood the reason for the writ-
ten authorization was to forestall whipsawing tactics used
by the Union in prior negotiations.
About May 1, Morton called Cox to ask him to talk to
other contractors to persuade them not to break down ne-
gotiations and sign individually with the Union. Cox
agreed, but he told Morton he was considering not renego-
tiating his contract with the contractors of north Alabama,
meaning apparently that he was considering not being
bound by the contract negotiated by MCA.
In the latter part of June, Cox inquired of Howard Ellett,
another contractor who was one of the MCA negotiators,
about the progress of negotiations. Cox told Ellett that he
was planning to send a letter to the Union notifying it he
would not renew the new contract.
On June 27, Respondent notified the Union, in writing,
that it would not sign a new agreement when the existing
agreement expired.
In the meantime, during April and May, MCA and the
Union had been engaged in negotiations. On June 3, pur-
z Jurisdiction is not in issue I find that Respondent meets the Board's
direct inflow standard for the assertion of jurisdiction.
226 NLRB No. 70
COX CORP.
suant to provisions of the existing agreement, the parties
submitted the unresolved issues over a new agreement for
decision by the National Joint Adjustment Board for the
Sheet Metal Industry (hereinafter referred to as NJAB). On
June 28, the NJAB issued its decision, and sometime there-
after MCA and the Union executed a new agreement effec-
tive June 1, 1975, to June 1, 1977.
There is no evidence in the record that the Union ever
requested Respondent to execute a contract conforming to
the contract negotiated with MCA, but Respondent's an-
swer admits-that it has failed and refused to execute or be
a party to such an agreement.
On or about July 10, Respondent's sheet metal employ-
ees went on strike. The record does not expressly so indi-
cate, but it appears that the strike was in progress at the
time of the hearing.
Analysis and Conclusions
General Counsel contends that the record supports a
finding that Respondent had indicated a clear and un-
equivocal intention to be bound in collective bargaining by
group rather than individual action and that it is therefore
bound by the collective-bargaining agreement negotiated
by MCA. Respondent has presented several arguments
against a finding that it violated the Act. Respondent's ar-
guments will be taken up below, but before doing so it
seems appropriate to set forth the situation that existed
prior to April 7, 1975.
Among the arguments of General Counsel in support of
his assertion that Respondent was bound by the action of
MCA is the historical pattern of bargaining. He has not,
however, articulated what in that historical pattern evi-
dences an intention to be bound by any contract negotiat-
ed by MCA. The record indicates clearly that Respondent
has never been a member of MCA and has never partici-
pated in negotiations on a multiemployer basis. Further-
more, there is no evidence that, prior to 1975 Respondent
ever delegated to MCA the authority to bargain on its be-
half 3 All that appears is that in 1973, and again in 1974,
Respondent agreed to a contract identical in terms with
that negotiated between MCA and the Union. In effect,
Respondent adopted the MCA contract in those 2 years
and Respondent rightly points out that:
The Board has consistently held that the adoption by
an employer of contracts negotiated by a multiem-
ployer group does not, in itself, justify treating the em-
ployer's employees as part of the multiemployer unit.
It is necessary, in addition, that such employer partici-
pate in the group negotiations, either personally or
through an authorized representative. Stamford Wall
Paper, Inc., 92 NLRB 1173, 1176 (1951).
3It is true that in a preheanng affidavit Respondent President Cox re-
ferred to the 1973 and 1974 contracts "that had been negotiated for the Cox
Corporation by the Mechanical Contractors Association of Birmingham,"
but he testified at the hearing that such wordage was incorrect. Cox ex-
plained how Respondent happened to adopt the 1973 and 1974 agreements
negotiated by MCA and his explanation negates a finding that he had dele-
gated authority to MCA in those years to negotiate a contract on behalf of
Respondent. His testimony was uncontradicted and I credit it.
385
Under the circumstances, I conclude that prior to April
7, 1975, Respondent had not agreed to be bound by the
MCA negotiations. Accordingly, if Respondent is to be
held to have agreed to be bound by group negotiations in
1975 it must be by reason of its conduct in 1975. This
brings us to Respondent's defenses.
B. The April 7 Authorization to MCA
The April? authorization executed by Cox is ,a clear and
unequivocal designation of MCA as bargaining agent for
Respondent, including an express agreement to be bound
by any contract negotiated by MCA. Respondent contends
that the authorization is a nullity because it was' an offer to
create an agency relationship which was never accepted by
MCA. This contention is predicated on the fact that the
bargaining agent authorization form signed by Cox pro-
vides at the bottom thereof for - the signature of MCA's
president signifying acceptance of the authorization. I find
no merit in Respondent's contention.
We are not here dealing in formal matters of agency and
contract law of offer and acceptance; rather, our inquiry is
directed to a determination whether or not Respondent in-
dicated an unequivocal intention to be bound by group
action. The written delegation of April 7 is evidence of
such an unequivocal intention, and while the form used in
connection therewith provided for acceptance by MCA
there is no evidence that the parties ever intended the dele-
gation to be dependent on an express acceptance. To the
contrary, Cox's testimony indicates that MCA solicited the
delegation of authority and that Respondent submitted it
only because of such solicitation. Moreover, about 3 weeks
later, when MCA's president spoke to Cox he did not men-
tion Respondent's authorization; he did not say he was
rejecting it; to the contrary, he urged Cox to urge others to
maintain a united front. In the circumstances, it would be
to exalt form over substance to declare the authorization a
nullity because of the lack of evidence of formal accep-
tance.
C. The Union's Knowledge of Respondent's Authorization to
MCA
The record is clear that the Union was never notified by
Respondent that it had executed the authorization of April
7, 1975, and there is no evidence that MCA notified the
Union. Respondent argues that such notification was an
essential element for the establishment of multiemployer
bargaining. Respondent rightly points out that multiem-
ployer bargaining is based on the mutual consent of a
group of employers and a union. It argues from this that
there can be no mutual consent where there is n1 commu-
nication of the fact of delegation of authority.
As with its preceding argument, Respondent'is relying
on a formalism to avoid the consequences of its unequivo-
cal delegation of authority to MCA. In N.L.R.1. v. Bagel
Bakers Council of Greater New York, 434 F.2d 8$4 (C.A. 2,
1970), the court adverted to a similar proposition and con-
tended that it was an "undue formalism" when the record
as a whole was considered. Similarly here, when the record
as a whole is considered, it is clear that the Union implied-
386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ly consented to Respondent's joinder as a party to the
MCA negotiations. As a matter of fact, the Union's con-
duct demonstrates that it has always considered Respon-
dent to be bound by- the MCA contract. Thus, at no time
has the Union offered to negotiate separately with Respon-
dent. To the contrary, after the contract had been negotiat-
ed with MCA, and after notice from Respondent on June
27 that it would not sign a new agreement, the Union did
not seek to negotiate with Respondent; rather, it undertook
to call a strike and, ultimately filed the charge in the in-
stant case. Under these circumstances, it may fairly be
said, and I find, that the Union had impliedly consented to
Respondent's being part of the multiemployer group repre-
sented by MCA.
As to the cases cited by Respondent,- I note that in Ko-
matz Construction, Inc. v. N.L.R.B., 458 F.2d 317 (C.A. 8,
1972), the basis of the court's finding that the employer was
not bound by a contract negotiated by a multiemployer
association was that the employer had not agreed to be
bound. The issue of mutual consent was not presented.
While that issue was presented in Sheet Metal Workers In-
ternational Association, AFL-CIO,` Local Union #25 (North
Texas Contractors Association and Dallas Sheet Metal Con-
tractors Association), 220 NLRB 500 (1975), the circum-
stances of the case belied any inference that the union
knew of, and had acquiesced in, bargaining on a multiem-
ployer basis. In my judgment, the circumstances -herein
compel a finding that the Union imphedly consented to
Respondent's bargaining through MCA, and actual notice
of the April? delegation was not essential. -
D. The Morton-Cox Conversation of May 1
As noted earlier, Cox had a conversation with MCA
President Morton on or. about May 1, in which Morton
asked Cox to persuade other contractors not to sign indi-
vidually with the Umon and Cox agreed. Respondent con-
tends that this conversation did not evidence an unequivo-
cal delegation of bargaining authority by Respondent to
MCA. I agree, but that is actually of little avail to Respon-
dent. Its obligation to honor the contract negotiated by
MCA is based on the unequivocal delegation of bargaining
authority of April 7. The May 1 conversation confirms the
fact of that delegation. That Cox was having second
thoughts about the matter is of no legal sigmficance.
E. The Union's Failure To Give Notice of Contract
Termination
As noted above, the 1974 contract between the Union
and Respondent provided for automatic renewal absent
90-day notice. Such notice was served on MCA, but not on
Respondent. As Respondent's contract with the Union was
an individual contract and as Respondent was not a mem-
ber of MCA, Respondent contends that the contract was
automatically renewed when the Union failed to give it
notice. I find no merit to this contention.
In General Maintenance Service Company, Inc., 182
NLRB 819 (1970), the Board indicated that the notice re-
quirements of a contract renewal provision may be waived
by the parties. Whether there has been a waiver depends
on all the circumstances. In that case, which involved an
untimely notice, the Respondent had never notified the
Umon that it considered the contract automatically re-
newed and raised no objection until it utilized the argu^
merit as a defense at the Board hearing. Here, the facts are
even stronger: Not only did Respondent never notify the
Union it considered the contract to have automatically re-
newed, but also, knowing of the fact that negotiations were
to begin on a new contract between MCA and the Union,
on which its two prior contracts had been based, Respon-
dent authorized MCA to act as its bargaining agent on
April 7, after its contract with the Union could have been
deemed automatically renewed. Thereafter, even when Re-
spondent knew from Cox's conversation with Howard El-
lett, in the latter part of June, that a new contract was
impending as a result of MCA's negotiations with the
Union, Respondent did not raise any question of automat-
ic renewal; rather, on June 27, it undertook to withdraw
from MCA's negotiations. Under all these circumstances, I
find that Respondent waived the requirement of direct no-
tice to it of the Union's desire to modify the 1974 contract,
F. The Strike
The record indicates that in July 1975 the employees of
Respondent went on strike . Respondent contends that by
virtue of such action the employees lost, their status as em-
ployees because of the Union's failure to comply with the
notice requirements of Section 8(d): namely, ( 1) 60 days'
written notice of proposed termination or modification of
the old contract ; (2) offer to meet and confer with Respon-
dent to negotiate a new contract ; and (3) notify Federal
Mediation and Conciliation Service of the existence of a
dispute with Respondent at least 30 days before the strike.
I find no merit to this contention . I have found,that
Respondent had designated MCA as its bargaining agent
and as of July when the strike began a contract had been
finalized between MCA and the Union which Respondent
was obligated to sign and honor- On June 27 , Respondent
had notified the Union it would not sign the new agree-
ment. The July strike therefore was an unfair labor practice
strike not subject to the proscriptions of Section 8(d) of the
Act. Mastro Plastics Corp. v. N.L.R. B., 350 U.S. 270, 284-
289 (1956).
G. The Unit
The complaint alleges that the appropriate unit is a unit
of "all journeymen and apprentice sheet metal workers em-
ployed by members of MCA, including Respondent, ex-
cluding all other employees, guards and supervisors as de-
fined in the Act." Respondent contends that General
Counsel failed to prove the existence of such a unit.
Respondent's argument on this point is not entirely
clear. If the argument is aimed at the multiemployer scope
of the unit alleged, it must fail upon a finding that Respon-
dent had delegated authority to bargain to MCA and thus
voluntarily acquiesced in a multiemployer unit.
One clear contention is that the unit is inappropriate
because it is limited to employees in only 47 Alabama
counties, the area over which the Union has jurisdiction,
COX CORP.
and Respondent has a job in Pulaski, Tennessee, which it
services with employees from Huntsville. In support of its
position, Respondent adverts to cases wherein petitions for
election were dismissed because the unit was based on the
extent of the union's jurisdiction. However, we are not con-
cerned here with a direction of election, we are concerned
with the appropriateness of a unit to which the parties have
consented. There is nothing which is contrary to the provi-
sions of the Act or repugnant to its policies in a unit based
on the extent of the union's jurisdiction. As the MCA and
the Respondent had consented to such a unit by the terms
of their agreement, Respondent may not defend its refusal
to sign the agreement on the ground the unit was inappro-
priate.
The contract negotiated by MCA on behalf of Respon-
dent contains provisions respecting rates of pay and the
employment of foremen and general foremen. Respondent
contends foremen and general foremen are supervisors
within the meaning of Section 2(11) of the Act and that by
virtue of Section 14(a) of the Act 4 it may not be compelled
to sign a contract which would require it to deem its super-
visors as employees. I disagree. As Respondent concedes,
there is nothing illegal about such a contract. Inasmuch as
Respondent had delegated authority to negotiate a con-
tract to MCA, it may not defend its refusal to sign the
agreement on the ground that MCA voluntarily agreed to
provisions relating to supervisors.
H. Respondent's Withdrawal
As noted earlier, Respondent sent a letter to the Union
on June 27 stating "This is your Formal Notice that I will
not sign a New Agreement with your Local when the pres-
ent Agreement expires." Respondent contends this was a
timely withdrawal. I disagree. The attempted withdrawal
occurred long after negotiations had started, as a matter of
fact, at a time when a new contract was almost finalized.
1. The Union's Acquiescence
Respondent contends that if its withdrawal was untimely
it was nevertheless effective because the Union acquiesced
in it. The evidence does not support the assertion. In the
first place, the letter of June 27 said nothing about a with-
drawal from MCA or revocation of MCA's bargaining au-
thority. All it said was that Respondent would not sign a
new agreement. Such a notice speaks of an outright rejec
tion of the collective-bargaining principle on any basis
whether as a separate employer or as part of a multiem-
ployer association. The fact that the Union picketed with a
sign stating that Respondent had no contract with the
Union is of minor, and not controlling, significance. (Al-
though such a fact was adverted in C & M Construction
Company, 147 NLRB 843 (1964), it was only one of several
4 Sec. 14(a) provides
(a) Nothing herein shall prohibit any individual employed as a super-
visor from becoming or remaining a member of a labor organization,
but no employer subject to this Act shall be compelled to deem individ-
uals defined herein as supervisors as employees for the purpose of any
law, either national or local, relating to collective bargaining
387
factors supporting a finding of acquiescence.) More signifi-
cant is the fact that the Union never sought to- bargain
individually with Respondent. Rather, it filed the charges
in the instant case (belatedly, but evidently only when self-
help had failed) and met with Respondent on one occasion
after the instant complaint had issued. Then, according to
the testimony of Respondent''s own counsel, the Union's
counsel stated that the only contract they would sign was
the standard one which MCA had negotiated or had en-
tered into. In short, the record does not support- a finding
of acquiescence.
J. MCA's Authority to Bind Respondent
Respondent contends that MCA had no authority to
bind it to a contract with the Union because of limitations
of MCA's authority contained in its articles of reincorpora-
tion and bylaws. I reject the contention. The issue is not
MCA's authority vis-a-vis its members, or -any employers
other than Respondent,-and, as to Respondent, MCA's au-
thority was established by the express authorization given
to it by Respondent on April 7.
K. The Alleged Illegality of Provisions of the Contract
Respondent asserts that certain provisions of the con-
tract are illegal.
Article XI of the contract negotiated by MCA provides
for the addition of 10 cents per hour to the wage scale,
which 10 cents is to be deducted and remitted to the Union
for the purpose of continuing its building and administra-
tion fund, provided the employee signs a proper authoriza-
tion. By its terms, the authorization is irrevocable until the
termination of the current collective-bargaining agreement.
A provision for employer payments to a union such as
described in article XI is unlawful under Section 302(a)
and (b) of the Act unless the payments provided for therein
fall under one of the exceptions in Section 302(c). The only
exception that appears to be of possible applicability to the
payments provided for in article XI is "(4) with respect to
money deducted from the wages of employees in payment
of membership dues in a labor organization." General
Counsel contends there is nothing unlawful about a provi-
sion which earmarks dues for institutional expenses, citing
Detroit Mailers Union No 40, International Typographical
Union, AFL-CIO, 192 NLRB 951 (1971). The difficulty
with this contention is that it assumes the 10 cents provided
for in article XI is dues. Unlike the Detroit Mailers case,
which contained a valid union-security clause requiring the
payment of membership dues uniformly required as a con-
dition of membership, the contract in this case is'silent on
the subject of dues. Article XI itself contains no reference
to dues. Apart from the contract, the record contains no
evidence whatsoever to explain the nature of the 10-cent
payment. In short, there is no record support for a finding
that the 10-cent payment in article XI constituted dues,
and payments thereunder would be violative of Section
302.5 In addition, since the 10-cent payment is made only if
5 The authorization for deduction does not conform to the provisions for
revocability in the proviso to Sec 302(c)(4) Whether such failure can be
Continued
388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees authorize deduction and the authorization for
deduction purports to be voluntary, it appears the provi-
sion creates a discriminatory wage structure as between
those employees who authorize deduction and those who
do not.
The conclusion that article XI is unlawful does not mean
that Respondent is not required to sign the contract negoti-
ated by MCA. Respondent's refusal to sign the contract
was predicated on an outright rejection of its bargaining
obligation, not on the presence of an unlawful provision in
the contract. Accordingly, the order that Respondent sign
the MCA contract shall be conditioned on the deletion of
article XI. Tulsa Sheet Metal Works, Inc., 149 NLRB 1487
(1964).
Article X, section 8, contains what is known as an inter-
est arbitration provision which Respondent contends vio-
lates Section 8(b)(1)(B) of the Act. The contention lacks
merit. An interest arbitration provision is not unlawful. It
falls in the category of nonmandatory subjects of bargain-
ing 6 and here, Respondent's agent, MCA, agreed to the
continuation of such a provision in the new contract.
Respondent also contends that the contract, by virtue of
an interpretation of its provisions by the NJAB in a deci-
sion of February 5, 1976, contains an unlawful subcon-
tracting provision. The record does not support the conten-
tion.
In summary, after careful consideration of Respondent's
arguments (including those not expressly mentioned
above), I conclude that it was obligated to execute the
MCA contract and by refusing to do so it violated Section
8(a)(1) and (5) of the Act.
II. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth above, occurring
in connection with its operations described above, have a
close, intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and tend to
lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
III. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1) and (5) of the
Act, I shall recommend that it be ordered to cease and
desist therefrom and to take appropriate affirmative action
designed to effectuate the policies of the Act, in particular,
that Respondent execute and honor the collective-bargain-
ing agreement containing all of the provisions of the collec-
tive-bargaining agreement entered into between Mechani-
cal Contractors Association and the Union as a result of
the 1975 negotiations, provided that article XI of such
agreement shall have been deleted.
said to render art. XI unlawful is, in my judgment, a doubtful proposition
and one which need not be decided in view of my finding that art XI
violates Sec 302
6 The Columbus Printing Pressmen & Assistants' Union No 252, Subordi-
nate To IP & GCU (The R W Page Corporation), 219 NLRB 268 (1975)
It is not clear from the record whether employees of
Respondent have suffered any loss of earnings or- other
benefits, by reason of Respondent's failure to sign the
above-mentioned agreement. If such be the case, it is here-
by recommended that Respondent make its employees
whole for any loss of earnings they may have suffered, to
be computed in accordance with the-formula set forth in
F. W. Woolworth Company, 90 NLRB 289 (1950), with in-
terest at the rate of 6 percent per annum in accordance
with Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
In addition, Respondent shall make all payments to trust
funds provided for in said agreement. N.L.R.B. v. Joseph T.
Strong, d/b/a/ Strong Roofing & Insulation Co., 393 U.S.
357 (1969).
CONCLUSIONS OF LAW
1. Cox Corporation is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. Local No. 48, Sheet Metal Workers International As-
sociation, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. All journeymen and apprentice sheet metal workers
employed by members of Mechanical Contractors Associa-
tion of Birmingham, Alabama, Inc., and by Cox Corpora-
tion, excluding all other 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. Local No. 48, Sheet Metal Workers International As-
sociation, AFL-CIO, has been, at all times material herein,
and is now, the representative of a majority of the employ-
ees in the aforesaid unit and, by virtue of Section 9(a) of
the Act, has been, and is, the exclusive representative of all
employees in said unit for the purposes of collective bar-
gaining.
5. By failing and refusing to execute or become party to
the collective-bargaining agreement negotiated in 1975 be-
tween Mechanical Contractors Association of Birming-
ham, Alabama, Inc., and Local No. 48, Sheet Metal Work-
ers International Association, AFL-CIO, Respondent has
engaged in and is engaging in unfair labor practices within
the meaning of Sections 8(a)(1) and (5) and 2(6) and (7) of
the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this case, and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
ORDER7
Respondent, Cox Corporation, Huntsville, Alabama, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
7 In the event no exceptions are filed as provided by Sec. 10246 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Section
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
COX CORP.
(a) Refusing to bargain with Local No. 48, Sheet Metal
Workers International Association , AFL-CIO, as the ex-
clusive representative of its employees in the unit described
above , by failing and refusing to execute or become party
to the collective-bargaining agreement negotiated in 1975
between Mechanical Contractors Association of Birming-
ham, Alabama , Inc., and Local No. 48, Sheet Metal Work-
ers International Association , AFL-CIO.
(b) In any like or related manner interfering with, re-
straining , or coercing its employees in the exercise of their
rights to self-organization , to form , join or assist the above-
named labor organization, or any other labor organization,
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 to ef-
fectuate the policies of the Act:
(a) Forthwith execute and honor the 1975 agreement ne-
gotiated by Mechanical Contractors Association of Bir-
mingham, Alabama, Inc., and Local No. 48 , Sheet Metal
Workers International Association , AFL-CIO, provided
that article XI of such agreement shall have been deleted.
(b) Make its employees whole for any loss of earnings or
other benefits they may have suffered by reason of
Respondent 's failure and refusal to execute and abide by
the aforesaid agreement , in the manner set forth in the
section entitled "The Remedy."
(c) Pay to the appropriate source any fringe benefits
provided for in the aforesaid agreement.
(d) Post at its Huntsville , Alabama, facility, copies of
the attached notice marked "Appendix." 8 Copies of said
notice , on forms provided by the Regional Director for
Region 10, after being duly signed by Respondent's au-
thorized representative , shall be posted by it immediately
upon receipt thereof , and be maintained by it for 60 con-
secutive days thereafter , in conspicuous places, including
all places where notices to employees are customarily post-
ed. Reasonable steps shall be taken by Respondent to en-
sure that said notices are not altered, defaced, or covered
by any other material.
8In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
389
(e) Notify the Regional Director for Region 10, in writ-
mg, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively with Lo-
cal No. 48, Sheet Metal Workers International Associ-
ation, AFL-CIO, by failing and refusing to execute
and honor the 1975 agreement ' negotiated with said
Union by Mechanical Contractors Association of Bir-
mingham, Alabama, Inc.
The appropriate bargaining unit is:
All journeymen and apprentice sheet metal workers
employed by members of Mechanical Contractors
Association of Birmingham, Alabama, Inc., and by
Cox Corporation , excluding all other employees,
guards, and supervisors as defined in the Act, con-
stitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b)
of the Act.
WE WILL NOT in any like manner interfere with, re-
strain, or coerce employees in the exercise of their
rights guaranteed in Section 7 of the Act.
WE WILL forthwith execute and honor the 1975
agreement negotiated by Mechanical Contractors As-
sociation of Birmingham , Alabama, Inc., and Local
No. 48, Sheet Metal Workers International Associa-
tion , AFL-CIO , provided that article XI shall have
been deleted.
WE WILL make our employees whole for any loss of
earnings or other benefits they may have suffered by
reason of our failure and refusal to execute and abide
by the aforesaid agreement.
WE WILL pay to the appropriate source any fringe
benefits provided for in the aforesaid agreement.
COX CORPORATION