I C Refrigeration Service, Inc.

National Labor Relations Board - Board Decisions

Dec 1, 1972

200 N.L.R.B. 687 (N.L.R.B. 1972)

I C REFRIGERATION SERVICE 687
I C Refrigeration Service , Inc and Sheet Metal
Workers Union No 495, Sheet Metal Workers'
International Association , AFL-CIO
Tenny A Norquist, Inc and Sheet Metal Workers
Union No 495, Sheet Metal Workers' Internation-
al Association, AFL-CIO
Saunders Sheet Metal and Sheet Metal Workers
Union No 495 , Sheet Metal Workers' Internation-
al Association , AFL-CIO
Valley Air Cond Eng , Inc and Sheet Metal Workers
Union No. 495, Sheet Metal Workers ' Internation-
al Association, AFL-CIO Cases 20-CA-6406,
20-CA-6407,20-CA-6408, and 20-CA-6409
December 1, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
On March 31, 1972, Administrative Law Judge'
Stanley Gilbert issued the attached Decision in this
proceeding Thereafter, the Respondents filed excep-
tions and supporting briefs, and the General Counsel
filed limited exceptions and a supporting brief, and a
brief in support of the Administrative Law Judge's
Decision
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order, only to the
extent consistent herewith
The consolidated complaint alleges, and the Ad-
ministrative Law Judge found, inter aha, that
Respondents violated Section 8(a)(5) and (1) of the
Act by refusing to abide by the 1970 collective-
bargaining agreement and the residential addendum
thereto between the Union and the Sheet Metal and
Air Conditioning Contractors National Association,
Inc, Yosemite Area Chapter (herein referred to as
the Association), and by refusing to execute a copy
of the agreement as requested by the Union In so
finding, the Administrative Law Judge concluded
that Respondents did not unequivocally withdraw
from multlemployer bargaining prior to execution of
the agreement, and that following execution of the
agreement the Union did not acquiesce in Respon-
dents' attempted withdrawal, but merely negotiated
with Respondents in an attempt to settle this case
While we agree with the Administrative Law Judge
that Respondents' attempts to withdraw from mul-
tiemployer bargaining prior to execution of the
contract were ineffective, we find, in agreement with
the contentions of Respondents, that thereafter the
Union acquiesced in Respondents' abandonment of
multlemployer bargaining
There is no dispute over the critical facts The four
Respondents were members of the Association
during the term of the 1967-70 agreement and at the
commencement of negotiations for the contract
involved herein Unlike most association members,
Respondents primarily are engaged in residential,
rather than commercial, construction Since the costs
and rates of pay on nonunion residential jobs are
significantly lower than commercial costs and rates,
Respondents are at a competitive disadvantage with
nonunion residential contractors To offset this
disadvantage, the Association, in behalf of its
residential contractor-members, unsuccessfully had
sought to include a "residential clause" 2 in the
1967-70 contract
Events Prior to Execution of Agreement
Negotiations for a new contract commenced on
May 13, 1970 3 At the May 25 and June 10
negotiating sessions, the association negotiators
stated that it would be necessary to have a residential
clause "in order to hold on to some of our
contractors" The Union refused to consider the
clause because no such concession had been made by
any other union, and its members had instructed the
negotiators not to consider such a clause At the June
15 negotiating session , the Association presented a
contract from an Ohio local which contained a
residential clause, but the Union refused to consider
it because it would "open up a can of worms "4 On
July 1, the old contract expired and the Union struck
the association members, including Respondents
Between July 10 and 15, all four Respondents
submitted letters of resignation to Peterson, the
Association's executive director At the July 16
meeting, Peterson displayed four envelopes and
stated that they contained the resignation of four
1 The title of Trial Examiner was changed to `Administrative Law
Judge effective August 19 1972
2 A residential clause is one which allows firms doing work on
residential jobs to pay a lower rate than is paid for comparable work on
commercial projects
3 All dates are 1970 unless otherwise indicated
4 The record contains conflicting testimony as to the date the Ohio
contract was first presented However the exact date is not critical and the
June 15 date serves as a convenient point of reference
200 NLRB No 107
688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
members who "were in fact going to resign" unless
they got a residential clause 5 The Union did not
protest the right of members to resign, nor did the
Union contend that the resignees would be bound by
the contract The Union continued to refuse to
consider a residential clause At the July 27 meeting,
Hilts, the union business manager, objected to sitting
across the table, from a "scab," apparently referring
to Saunders, one of the Respondents and a member
of the negotiating committee Saunders replied that
he did not want to be a nonunion shop, but that he
could not sign a contract without a residential clause
Saunders offered to resign from the negotiating
committee, but was persuaded by Peterson to stay
On August 18, the Union was given copies of the
letters of resignation, with the admonition that unless
the contract contained a residential clause, some of
the members would not sign the contract Again, the
Union did not protest the right of members to resign,
nor did it state its assent However, the Union did
express a willingness to study the Ohio contract, and
on August 20, the Union proposed a residential
clause, which the Association accepted, subject to
ratification by the union membership The member-
ship later rejected the proposal, but the Union's
executive board agreed to take the proposal back to
the members when the Association made it clear that
the four Respondents would not sign a contract
without a residential clause However, the members
refused to reconsider the proposal or any other
residential proposal, and the Association was so
notified on August 25 At that point the Respondents
informed the Association not to hold out any further
for their benefit, stating that they simply could not
sign any contract without a residential clause
On August 30 or 31, the union and association
negotiators reached agreement and the strike ended
On September 2, Saunders told Hilts that he could
not sign the contract without a residential clause, but
that if one could be agreed to perhaps "we could
work something out " At an association meeting on
September 3, all of the members, except Respondents
(who attended as "guests"), agreed to sign the
contract 6 Respondents indicated that they would
not sign any contract without a residential clause
Saunders then resigned from the negotiating commit-
tee and other association offices Later that day,
Peterson and Hilts met and signed the contract,
effective September 1 Peterson informed Hilts that
he was not signing for the four Respondents Hilts
replied that he did not think that they were serious
and that their refusal to sign would "probably
necessitate him taking economic action "
Events Subsequent to Execution of Agreement
In mid-September Hilts again asked Saunders to
sign the association contract Saunders stated his
position had not changed In response to Saunders'
question concerning an attempt to work something
out, Hilts replied that he expected someone from the
International within 3 to 6 months to try to resolve
the residential problem and that perhaps something
could be worked out at that time
On October 9, the Union mailed to each of the
Respondents a copy of the association-union con-
tract, together with a letter stating that "inasmuch as
you were a member of the Association at the
time the contract was negotiated, and Local 495
received no information from you to the contrary,
please sign and return our copy by October 20,
1970 " None of the Respondents signed or returned
the contract, nor are they operating under its terms
On November 4, the Union filed the charges
herein
On December 18, Hilts again asked Saunders
whether the matter couldn't be resolved other than
through the charges Saunders replied he could not
sign without a residential rate Hilts informed
Saunders that he still expected the International to
send someone to "talk to some of the nonunion
shops," including Respondents, to "see if they
couldn't work out some type of residential agree-
ment " On January 6, 1971, Hilts and Saunders met
by accident in the presence of Wade, a Board
"investigator," and Hawkins, an International repre-
sentative Wade asked if the parties couldn't get
together and resolve their problems and "get the
charges dropped " Saunders replied that a solution
might be found "if there was some type of residential
agreement " Hilts affirmed that he still expected
someone to come into the area to try to work
something out
On June 16, 1971, Hawkins visited Saunders and
Respondent Norquist in their respective shops and
left them with a tentative proposal for a residential
rate worked out by the International, with the
understanding that he was not prepared to negotiate
at that time, he first had to get authorization from
the Local to negotiate with Respondents for a
residential rate
Twice in early September, 1971, counsel for the
General Counsel suggested to Roche, the Union's
new business agent, that a settlement of the case was
possible if the Union and Respondents could reach
satisfactory terms on a residential clause Roche
indicated that his "goal" was to "get these people
5 A, this time the Union was not told the identity of the four alleged enter into an agreement it was the Association s policy to make the
resignees and the Union regarded the resignations as a bluff members aware of the final contract terms
6 Although the association negotiating committee was authorized to
I C REFRIGERATION SERVICE 689
back in the Union and drop these charges " Thereaf-
ter, Roche called Saunders and said that he wanted to
discuss a proposal Saunders referred Roche to
Foster, Respondents' new representative As a result,
a meeting took place on September 7, 1971, among
Foster, the Respondents, Roche, and Hawkins After
the Union ascertained that Respondents were acting
individually, Roche said that he had authority to
attempt to negotiate a residential clause and that he
was meeting with them in an attempt to settle the
matter before it went to hearing However, the
meeting terminated when Roche stated that he did
not have the authority to reach a final agreement
In late September, 1971, Roche informed Foster
that he had obtained full authority to negotiate, that
he was going to attempt to discuss a residential
clause with the Association, and that he would
contact Respondents if the Association agreed to a
clause Foster stated that he was not sure that
Respondents could agree to the same terms as the
Association, Roche replied that there would still be
time to work out any differences On September 29,
1971, the Union advised the Respondents that it was
meeting on October 4, 1971, with the Association to
consider a residential clause addendum to the
association contract, and it suggested they contact
the Association if they wanted to be represented at
the meeting Respondents did not attend
On October 11, 1971, Roche and Hawkins met with
Respondents and Foster and presented two propos-
als (1) the residential proposal rejected by the union
membership in August 1970, and (2) a proposal
drafted by the International There was some
discussion about certain changes suggested by the
Union, and the meeting ended with the Union's
agreeing to give Respondents time to study the
proposal and make counterproposals
On October 19, 1971, Respondents presented a
counterproposal The Union then presented the
proposal it had made to the Association on October
4, 1971, which was pending ratification by the union
members Respondents rejected this proposal and
Hawkins left the meeting, but Roche continued
unsuccessfully to attempt to reach an agreement
On November 2, 1971, the Association and Union
reached agreement on a residential addendum,
effective November 1, 1971 Roche called Norquist
and Saunders to see if they were interested in
r Anderson Lithograph Company Inc 124 NLRB 920 enfd 281 F 2d 893
(C A 9) Universal Insulation Corporation 149 NLRB 1397, enfd 361 F 2d
406 (C A 2) The Kroger Co 148 NLRB 569 affd 330 F 2d 210 Service
Roofing Company 173 NLRB 321
8 Retail Associates Inc 120 NLRB 388 Service Roofing Company supra
Joseph C Collins & Co Inc 184 NLRB No 113 Tulsa Sheet Metal Works
Inc 149 NLRB 1487 enfd 367 F 2d 55 (C A 10) Sheridan Creations Inc
148 NLRB 1503 enid 357 F 2d 245 (C A 2)
9 The John J Corbett Press Inc 163 NLRB 221 C & M Construction
"participating in that agreement " However, no
agreement was reached with Respondents by the
opening of the hearing on November 4, 1971
As indicated above, Respondents contend, inter
alga, that assuming arguendo the correctness of the
Administrative Law Judge's finding that they did not
unequivocally withdraw from the Association prior
to execution of the agreement, nonetheless, the
Union's subsequent conduct in undertaking individ-
ual negotiations with Respondents while bargaining
separately and simultaneously with the Association
over a residential rate evidences the Union's acquies-
cence in Respondents' abandonment of multiem-
ployer bargaining, notwithstanding that such mdivid-
ual bargaining may have been, in part, for the
purpose of settling the case For the following
reasons, we find merit in Respondents' contentions
In determining the effectiveness of an attempt to
withdraw from the multiemployer bargaining, the
Board first requires that the employer's conduct
unconditionally and unequivocally evidence an
intent to abandon multiemployer bargaining 7 In
addition, once negotiations have commenced, with-
drawal will not be permitted absent either "unusual
circumstances" 8 or consent by the union And
although consent may be implied from the union's
conduct, such conduct usually must involve a course
of affirmative action "clearly antithetical" to the
union's claim that the employer has not withdrawn
from multiemployer bargaining 9 In this regard, the
Board will examine the totality of the union's
conduct to determine whether by that conduct, the
union has consented to, or acquiesced in, the
employer's attempted withdrawal
A prime indicator of a union's consent or acquies-
cence, and clearly a determinative factor in the
present case, is a union' s willingness to engage in
individual bargaining with the employer seeking to
abandon multiemployer bargaining While individual
bargaining may not, in every instance, result in a
determination that the union has acquiesced,l° the
Board repeatedly has found that such individual
bargaining demonstrates a union's acceptance of the
employer's withdrawal The difficult determination
in this area, however, is whether a union has, under
the specific facts of each case, engaged in individual
bargaining or merely has attempted to persuade a
recalcitrant employer to return to the multiemployer
Company 147 NLRB 843 Atlas Sheet Metal Works Inc 148 NLRB 27
10 See The Kroger Co supra and Springfield Electrotype Service Inc
166 NLRB 647 wherein the Board stated that the individual bargaining on
limited matters of peculiar concern to individual employers does not
constitute abandonment of multiemployer bargaining where the parties
mutually understand that individual variances in agreements can be
negotiated by individual parties Cf Central Plumbing Company 198 NLRB
No 135
690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fold Thus, where a union expresses its willingness to
meet and discuss terms peculiar to an individual
employer's operation, and listen to counterproposals,
the Board has found that such conduct evidences
acquiescence in an otherwise untimely withdrawal,
even though the union ultimately insisted that the
employer could sign only the association contract
Publicity Engravers, Incorporated, 161 NLRB 221 In
so finding, the Board interpreted the union's ultimate
demand not as a demand that the employer be
bound by the association contract, but rather that
those terms were the only ones acceptable to the
union
Recently, the Board reaffirmed the concept that
acquiescence exists where a union engages in
separate negotiations with a withdrawing employer,
listens to counterproposals, and agrees to make
certain concessions not offered the association
Hartz-Kirkpatrick Construction Co, Inc, 195 NLRB
No 154 In that case, the Board agreed that no
acquiescence would have been found had the union
met with the employer in an effort to win back the
employer into the association by having it abrogate
its withdrawal and execute the association contract
However, the umon went further, and offered the
employer terms not contained in the association
contract By bargaining for different terms and
conditions, the union demonstrated its acceptance of
the employer's separate bargaining status and ap-
proved the employer's withdrawal 11
Thus, the Board has recognized that parties may
bargain individually over limited matters of peculiar
concern to individual employers where the parties
mutually understand that individual variances are
permitted, and that a union may meet with an
employer subsequent to its attempted withdrawal for
the purpose of attempting to convince the employer
to abrogate the withdrawal and accept the associa-
tion contract But, when the union abandons its
insistence on acceptance of the association contract,
as such, and, instead, negotiates different terms or
expresses its willingness to consider counterpropo-
sals, the Board readily has found that the umon has
acquiesced in the employer's abandonment of mul-
tiemployer bargaining
Applying these principles to the facts of the present
case, we cannot agree with the Administrative Law
11 A case which further demonstrates the difficulty in determining
whether a union is engaging in individual bargaining or merely attempting
to get an employer to return to the association fold is Joseph C Collins &
Co Inc supra In Collins the union sought to get the withdrawing
employer to sign the Indianapolis settlement and nothing less, although
ultimately the union did offer a compromise
In finding union acquiescence in the employers withdrawal the Trial
Examiner placed the problem in proper perspective by pointing out the
difficulty in determining whether the union was trying to get the employer
to sign the association contract or a contract exactly like the one the
association had signed As the Trial Examiner indicated it may very well
Judge's conclusion that the Union never abandoned
its position that Respondents were bound by the
association agreement On the contrary, we believe
that the facts adequately demonstrate the Union's
acquiescence in Respondent's withdrawal
In this regard, we note that dunng the December
18, 1970, conversation, Hilts indicated to Saunders
that an International representative was going to talk
to the nonunion shops, including Respondents, to
attempt to work out a residential proposal Sigmfi-
cantly, there were no plans to discuss residential
proposals with the Association at that time, nor in
January, when Hilts reiterated the plan Also, both
Saunders and Norquist were approached by Hilts
and presented a residential proposal in June 1971-3
months prior to the time the Umon initiated
discussion of any such proposal with the Association
In early September 1971, Roche stated that part of
his goal as business agent was to get Respondents
back into the Union While such a statement may be
interpreted as meaning that Roche merely sought to
get Respondents to abide by the association contract,
it is equally indicative of Roche's belief that
Respondents were no longer association members,
especially when considered in conjunction with his
call to Saunders, immediately thereafter, during
which Roche stated that he wanted to meet with
Saunders to discuss a proposal, again at a time when
no such proposal had been offered to the Associa-
tion
Further indication that the Umon regarded Re-
spondents as other than association members is the
Union's willingness to meet, on September 7, 1971,
with Respondents and their "new representative"
-Foster-during which meeting, in answer to a
question by Hawkins, the Union was assured that
Respondents were acting as individuals, whereupon
Roche announced that the executive board had
authorized him to negotiate a residential proposal
Again, at this time, no such proposal had been
offered to the Association
Once the Umon did commence postcontract
negotiations with the Association on a residential
addendum, its conduct belied its contention that it
regarded Respondents as members Thus, when
Foster was notified that the Umon and the Associa-
tion were negotiating and he expressed doubt that
be that the union was not sure at least in the beginning , what it wanted
especially since the union indicated that it made no difference whether the
employer signed the area settlement or an individual contract on the same
basis That dilemma notwithstanding , the Trial Examiner correctly
concluded that the union had engaged in individual bargaining indicative of
acquiescence But see Johnson Sheet Metal Inc 179 NLRB 644 wherein
clearly individual bargaining was found not to constitute acquiescence
where prior to and during the bargaining the union objected orally and in
writing to the employer s right to withdraw and when making the offer to
bargain separately specifically reserved the right to object to the
withdrawal
I C REFRIGERATION SERVICE 691
Respondents could agree to the same terms as the
Association, Roche replied that "there would still be
time to work out any differences " When a meeting
was arranged with the Association, the Umon
notified Foster to see if Respondents wanted to
attend, although the Union did not so notify other
employers
Indeed, while the Umon was engaged in negotia-
tions with the Association, it engaged in simultane-
ous separate negotiations with Respondents, present-
ed different proposals than those offered to the
Association, amended its own proposals, and ex-
pressed a willingness to consider, and did consider
Respondents' counterproposals And when the Un-
ion and the Association finally reached agreement on
a residential addendum, although an 8(a)(5) charge
was then pending, the Umon did not otherwise make
a specific claim that Respondents were bound by the
addendum Rather, the Union "offered" that propos-
al to Respondents and asked Saunders if he was
"interested in participating in that agreement "
Thus, while some of the discussions between the
Union and Respondents following execution of the
initial contract may support General Counsel's
contention that such discussions were merely an
effort to get Respondents to reconsider and sign the
association contract, we find that the Umon aban-
doned that attack and thereafter undertook to
negotiate with Respondents as individual employers
rather than association members
In the present case, we find that the Union's total
course of conduct following execution of the agree-
ment, including the fact that it was willing to, and
did, engage in separate negotiations with Respon-
dents on terms and conditions different from those
agreed to by the Association, listened to Respon-
dents' counterproposals, and at no time insisted that
Respondents were bound by the association agree-
ment, clearly evidences its intention to reach agree-
ment on terms beyond the framework of multiem-
ployer bargaining, notwithstanding the fact that the
Union also manifested its interest in avoiding the
present litigation Thus, we conclude that the Umon
did, in fact, acquiesce in Respondents' withdrawal
from multiemployer bargaining subsequent in time
to the execution of the contract with the Associa-
tion 12
12 Nor do we agree with the Admimstrative Law Judge s conclusion that
the discussions between Respondent and the Umon following execution of
the agreement constituted nothing more than an attempt to settle the
litigation and cannot be held to be evidence of acquiescence It is
uncontroverted that dunng many of the discussions the Umon expressed its
desire to reach agreement before a hearing and its willingness to drop the
charges in the event an agreement could be reached However unlike the
Administrative Law Judge we shall not as a matter of law invoke the
evidentiary proscriptions applicable to settlement discussions thereby
precluding the Board from considering facts highly relevant to the question
of acquiescence Where the concessions clearly evidence an intention to
Accordingly, we find that Respondents did not
violate Section 8(a)(5) and (1) of the Act by refusing
to execute or abide by the terms of the 1970
collective-bargaining agreement between the Umon
and the Association Accordingly, we shall dismiss
the complaint insofar as it alleges that Respondents
unlawfully refused to bargain
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent
Saunders Sheet Metal, Modesto, California, its
officers, agents, successors , and assigns, shall
1 Cease and desist from
(a) Promising benefits to its employees to induce
them to abandon their membership in Sheet Metal
Workers Union No 495, Sheet Metal Workers'
International Association, AFL-CIO, or any other
labor organization
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
rights under Section 7 of the Act
2 Take the following affirmative action which is
designed to effectuate the policies of the Act
(a) Post at its place of business in Modesto,
California, copies of the attached notice marked
"Appendix "13 Copies of said notice, on forms
provided by the Regional Director for Region 20,
after being duly signed by Respondent Saunders'
representative, shall be posted by Respondent
Saunders immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where
notices to its employees are customarily posted
Reasonable steps shall be taken by Respondent
Saunders to insure that said notices are not altered,
defaced, or covered by any other material
(b) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith
MEMBER FANNING, dissenting
I would affirm the Decision of the Administrative
Law Judge in this case For the reasons stated by
him, I do not believe the record will support an
inference that the Union acquiesced in the Respon-
reach agreement beyond the scope of multiemployer bargaining and the
settlement discussions themselves seek solutions on an individual employer
basis the mere fact that such concessions were made dunng settlement
discussions will not preclude a finding of acquiescence See Joseph C Collins
& Co Inc supra compare Johnson Sheet Metal Inc supra
13 In the event that 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 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
692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dent's untimely withdrawal from the Association and
I would find Respondent in violation of Section
8(a)(5) and (1) of the Act, as alleged in the complaint
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT promise benefits to our employ-
ees to induce them to abandon their membership
in Sheet Metal Workers Union No 495, Sheet
Metal Workers ' International Association,
AFL-CIO, or any other labor organization
WE WILL NOT in any like or related manner
interfere with , restrain , or coerce employees in the
exercise of rights under Section 7 of the Act
SAUNDERS SHEET METAL
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 13018 Federal Building, Box 36047,
450 Golden Gate Avenue, San Francisco, California
94102, Telephone 415-556-0335
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
STANLEY GILBERT, Trial Examiner Based upon charges
filed on November 4, 1970, by Sheet Metal Workers Union
No 495, Sheet Metal Workers' International Association,
AFL-CIO, hereinafter referred to as the Union, in Cases
20-CA-6406, -6407, -6408, and -6409, the consolidated
complaint herein was issued on March 2, 1971 The said
complaint alleges that Respondents I C Refrigeration
Service, Inc, Tenny A Norquist, Inc, Saunders Sheet
Metal, and Valley Air Cond. Eng, Inc, violated Section
8(a)(5) and (1) of the Act and that Respondent Saunders
also violated Section 8(a)(1) of the Act Respondents, by
their answers, not only deny that they committed the
unfair labor practices alleged in the complaint, but also
deny allegations in the complaint that they were, at the
time material herein, members of Sheet Metal and Air
Conditioning Contractors National Association, Inc,
Yosemite Area Chapter, hereinafter referred to as the
Association or SMACNA Therefore, they further deny
that the jurisdictional standards of the Board have been
met
Pursuant to notice , a hearing was held in Stockton,
California , on November 4 and 5 , 1971, before the
duly designated as Trial Examiner Appearances
were entered on behalf of General Counsel and
Respondents , and briefs were received from said parties on
January 7, 1972
Upon the entire record 1 in this proceeding and my
observation of the witnesses as they testified, I make the
following
FINDINGS OF FACT
I THE BUSINESSES OF RESPONDENTS
At all times material herein , Respondent I C Refrigera-
tion , a California corporation with a place of business in
Modesto, California , has been engaged in business as a
plumbing, steamfitting , air conditioning, refrigeration, and
sheet metal contractor
At all times material herein , Respondent Norquist, a
California corporation with a place of business in Modesto,
California , has been engaged in business as a heating, air
conditioning, and sheet metal contractor
At all times material herein , Ewell F Saunders and
Doyle Saunders have been partners doing business under
the trade name of Saunders Sheet Metal with a place of
business in Turlock, California, where the Respondent
partnership is engaged in the business of a sheet metal
contractor
At all times material herein , Respondent Valley, a
California corporation with a place of business in Modesto,
California , has been engaged in business as an air
conditioning and sheet metal contractor
It is alleged in the complaint that, at all times material
herein, all four Respondents have been members of the
aforesaid Association , a voluntary association of employ-
ers engaged in business as heating , plumbing, air condi-
tioning , and sheet metal contractors and that, at all times
material herein, said Association has existed for the
purpose, inter alra, of representing its employer -members,
including Respondents , in collective bargaining and
negotiating and administering collective -bargaining agree-
ments with various labor organizations, including the
Union (the Charging Party herein) As is set forth more
fully hereinbelow , the aforesaid allegations have been
sustained
During the year preceding the issuance of the complaint,
employer-members of the Association within the State of
California, including Respondents , in the course and
conduct of their business operations collectively purchased
and received goods and materials valued in excess of
$50,000 which were shipped to them directly from suppliers
located outside the State of California
Therefore , it is concluded that at all times material
herein the Association and its employer-members, includ-
ing Respondents , have constituted an employer engaged in
1 The General Counsel s unopposed motion to correct the transcript of
the proceedings in certain respects is granted
I C REFRIGERATION SERVICE 693
commerce and in operations affecting commerce within
the meaning of Section 2(2), (6), and (7) of the Act 2
II THE LABOR ORGANIZATION INVOLVED
The Umon is, and has been at all times material herein, a
labor organization within the meaning of Section 2(5) of
the Act
III THE UNFAIR LABOR PRACTICES
There is little or no dispute as to the material facts in this
proceeding, but rather the dispute is as to what appropriate
inferences may be drawn therefrom The principal issue is
whether or not the Respondents effectively withdrew from
the multiemployer bargaining group (consisting of mem-
bers of the Association) during the course of negotiations
which eventually led to an agreement between the
Association and the Union for the period 1970 to 1972
Respondents concede that they were members of the
multiemployer bargaining group with respect to the
1967-70 agreement and that they were members of said
group at the commencement of the negotiations in 1970
However, they contend that they effectively withdrew from
said group by tendering their so-called "resignations" to
the Association and by the Union's acquiescence to their
withdrawal The General Counsel contends that it cannot
be inferred from the facts that the Union did acquiesce to
their said withdrawal
It appears that the Respondents are primarily engaged in
work on residential construction and in an area where their
competitors are nonunion It further appears that generally
residential construction costs are lower than the costs of
commercial or industrial construction, and consequently
residential contractors cannot readily afford the rates of
pay granted by commercial contractors Therefore, during
the negotiations in 1967 and again during the negotiations
in 1970, the Association sought to have the Union agree to
concessions with respect to residential construction em-
bodied in a provision of the contract which is frequently
referred to in the record as a "residential clause " Although
there was no residential clause in the 1967-70 agreement, it
appears that the Union did indicate that it would attempt
to work out some provisions for residential construction,
but nothing was accomplished with respect thereto prior to
the commencement of the 1970 negotiations
The 1967-70 agreement was effective from July 17, 1967,
to June 30, 1970 The negotiations on what eventually
became the 1970-72 agreement commenced on May 13,
1970 Numerous negotiating meetings were held between
the representatives of the Union and of the Association
until an agreement was reached effective as of September
1, 1970 One of the major issues in the negotiations was
with respect to the inclusion of a residential clause At the
beginning of the negotiations, the spokesman for the
Association stated that it would be necessary to have a
residential clause "in order to hold on to some of our
contractors," and, on the other hand, the Union opposed
the inclusion of a residential clause , stating that it did not
want to be the first in the country to incorporate such a
concession in its contract While progress was made on the
other issues during the course of the negotiations, no
progress was made with respect to the matter of a
residential clause, each side adhering to its position 3 At
the expiration of the 1967-70 agreement the Union called a
strike commencing July 1, 1970 , against all members of the
Association including the Respondents, refusing to have its
members work without a contract The strike ended on
September 1, 1970
During the period between July 10 and July 15, 1970,
each of the Respondents sent a letter to the Association
which, in effect, stated that because of economic consider-
ations they wished to be released from any obligations to
the Union arising from the pending negotiations At the
bargaining session of July 16, 1970, Webb Peterson,
executive director of the Association, held up four
envelopes ostensibly containing the aforementioned letters
and stated that they were resignations from members of the
Association and that "unless" the contract contained a
residential clause the members whose letters he held "would
be going non-union " A representative of the Union asked
to see the letters, but Peterson refused the request, stating
that they were "Association business and not Union
business " It appears that the union representatives did
learn the names of the members to whom Peterson was
referring by seizing an opportunity to look at the envelopes
which had been left on the table C Lorne Hilts, business
manager of the Union, stated that he did not want to sit
across the table from anyone "who intended to be a
scab 114 However, Peterson stated that he could not tell the
association members "how they should structure their
committee "
At either the July 16 meeting or a subsequent meeting
the association representatives presented to the union
representatives a contract which had been executed by a
sister local in Ohio which included a residential clause, and
the union representatives stated they would consult with
their International representative about the propriety of
including a residential clause At a meeting sometime in
August the union representatives were given copies of the
aforementioned letters of resignation At a meeting on
August 20 the Union proposed a residential clause which
was accepted by the Association It was understood,
however, that the clause was subject to ratification by
union membership By a vote taken of the union
membership the proposed clause was rejected After a
discussion between association representatives and the
executive board of the Union, the executive board stated
that it would take the proposed clause back to the
membership However, the membership voted not to
reconsider its action in rejecting the residential clause and
this fact was reported to the Association
On August 25 the Association held a meeting at which it
relayed said report to its members At this point, to quote
Respondent's brief, "Respondents informed the members
2 The record will not support a finding that the jurisdictional standards reached an impasse
of the Board would have been met even if said Respondents had not been 4 It appears that he was referring to Doyle Saunders who was a member
found to be members of the Association within the time material herein of the association committee
3 There is no basis for a finding however that the bargaining at any time
694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the Association not to hold out any longer on their
behalf since Respondents could not agree to a contract
without a residential rate" On September 1 the member-
ship of the Union ratified the proposed agreement which
had been negotiated (without the inclusion of a residential
clause) On September 3 the Association held a meeting of
its members to which there is testimony Respondents were
invited "as guests " A poll was taken and apparently all
those present, except Respondents, indicated that they
were willing to accept the agreement without a residential
clause Respondents indicated at the meeting that they
would not sign the agreement without a residential clause
Thereafter Peterson and Hilts met to execute the
agreement (which was effective as of September 1, 1970)
At that point Peterson informed Hilts that Respondents
would not sign without a residential rate to which Hilts
responded that he thought they were "bluffing" and that if
they did not he would have to "take economic action "
Respondents, in their brief, assert that at no time did the
Union representatives make a statement to the effect that
the Respondents could not withdraw from the multiem-
ployer bargaining group The record supports this asser-
tion
On September 2, 1970, Hilts called Saunders and told
him that the union membership had ratified the agreement
with the Association and asked if the Union could dispatch
their men He questioned whether Saunders was going to
sign the 1970 agreement Saunders informed Hilts that his
position had not changed and that if they could do
something about a residential clause they "could work
something out " Two weeks later Saunders and Hilts again
met and again Hilts asked him to sign the association
contract and again Saunders stated his position had not
changed "simply because there hadn't been any residential
agreement " Saunders asked if anything was being done
about it, that he had heard that some work was going to be
done with regard to it Hilts informed him that he expected
someone, apparently from the International, would come
into the area to see if the residential problem could be
resolved
The Union sent to each of the Respondents a letter,
dated October 9, 1970, which reads as follows
Enclosed are copies of the new contract between
SMACNA-Yosemite Chapter and Sheet Metal Work-
ers Local No 495
Inasmuch as you were a member of the Contractors'
Association at the time the contract was negotiated,
and Local No 495 received no information from you to
the contrary, please sign and return our copy by
October 20, 1970
If you have any questions regarding this contract
please call me
Then, when Respondents did not comply with the above
request, the Union filed charges in these proceedings on
November 4, 1970, as stated hereinabove
On December 18, Hilts and Saunders again had a
conversation to which Saunders credibly testified, as
follows
A I believe he mentioned something to me about
the fact that, "Isn't there some way we can resolve this
without having to have charges against you7"
And, couldn't we sign a contract We had some of
the same conversation I just mentioned about, "No, it
was about the residential rate " And I asked him again
if there was anything being done about the residential
rate, and he said to his knowledge, there was supposed
to be somebody in in about a month, an International
Organizer, and the intent of that was to try to talk to
some of the non-union shops and ourselves, and
various others, and see if they couldn't work out some
type of residential agreement that could be made
available to us at that time
On January 6, Hilts and Saunders met accidentally and
held a conversation at which an investigator of the
National Labor Relations Board and a representative of
the International Union were also present The NLRB
investigator asked if there was any way the parties could
get together to solve their problems and "get the charges
dropped," to which Saunders replied, "Well, I'm not sure
there isn't, but perhaps if there was some type of residential
agreement " Saunders asked Hilts whether or not anything
more had been done about such an agreement and Hilts
responded that he expected somebody, ostensibly from the
International, would come into the area some time in the
future "to try to do something about it "
In June of 1971, a representative of the International met
with Saunders and Norquist and left with them a proposal
for a residential rate On September 7, October I1 and
October 19 the Union met with Respondents to attempt to
negotiate a residential clause, but were unsuccessful On
September 29, 1971, the Union sent a letter to Respondents
notifying them of a meeting with the Association on
October 4, 1971, to consider a residential addendum to the
1970-72 agreement and suggested that if Respondents
wished to be represented at the meeting to contact the
Association It appears that Respondents did not attend
the October 4 meeting Shortly before the hearing in this
matter the Association and the Union agreed to a
residential addendum to the 1970-72 agreement
The Respondents contend that it is appropriate to infer
from the conduct of the parties that the Respondents
effectively withdrew from the multiemployer bargaining
unit with the acquiescence of the Union and, therefore,
were not bound by the 1970-1972 agreement It is well
established that an employer's untimely withdrawal from a
multiemployer bargaining group may nevertheless be
effective if it is based on mutual consent, and that the
Union's consent may be implied from its course of
conduct Joseph C Collins & Co, Inc, 184 NLRB No 113
While this principle is well established, an examination of
the cases discloses that the facts vary so much from case to
case that it is difficult to perceive definitive guidelines as to
what constitutes acquiescence to an employer's withdraw-
al, and the facts in none of the cases cited in the briefs filed
herein or other cases examined are sufficiently similar to
the facts in the instant proceeding to permit reliance upon
any of said cases as precedent The Trial Examiner is of the
opinion, however, that the record in this case will not
support a finding that the Union did acquiesce to the
Respondents' withdrawal from the multiemployer bargain-
ing unit and thereby waived the obligation of the
I C REFRIGERATION SERVICE 695
Respondents to be bound by the agreement negotiated
between the Union and the Association
It is inferred from an analysis of the record with respect
to the negotiations that the Respondents did not unequivo-
cally notify the Union of their withdrawal but that the
Association merely notified the Union that the four
Respondents would refuse to be bound by the bargaining
negotiations unless the contract contained a residential
clause The only comment that the Union made in reply
was that one of its representatives stated that he objected
to sitting across the table from anyone "who intended to be
a scab " It is evident from the record that, at least until the
meeting of the Association on August 25 (when Respon-
dents informed the other members "not to hold out any
longer on their behalf"), the Respondents considered that
the association committee was bargaining on their behalf
It further appears that the Union considered the above-
stated intention of Respondents (not to be bound by the
negotiations unless the Union agreed to a residential
clause) was a "bluff" to force the Union to accept a
residential clause
Respondents argue that it can be inferred from the
Union's conduct after the Association and the Union had
reached an agreement that the Union had acquiesced to
the withdrawal of the Respondents from the bargaining
unit It is true that after Respondents indicated that they
would not execute or abide by the aforesaid agreement the
Union offered to try to work out a residential addendum
and did in June, September, and October 1971 negotiate
with them, though unsuccessfully, with respect to a
residential clause However, it is found that the Union's
aforesaid conduct will not support a finding that the Union
had acquiesced to the Respondent's withdrawal from the
bargaining unit It does not appear that the Union ever
abandoned its position that Respondents were bound by
the agreement negotiated with the Association and it is the
Trial Examiner's opinion that its attempt to resolve the
problem of Respondents' insistence on a residential clause
with the view of disposing of the charges filed in this
proceeding constituted nothing more than an attempt to
settle the litigation and cannot, in the circumstances, be
held to be evidence of abandonment of its position or of
acquiescence to the withdrawal of the Respondents from
the bargaining unit 5
Consequently, it is concluded that by refusing to abide
by the 1970-72 agreement negotiated by the Union and the
Association and to execute a copy thereof, as requested by
the Union, Respondents violated Section 8(a)(5) and (1) of
the Act
credited testimony with respect to the first conversation is
as follows
A Well, Doyle had mentioned they had thought
about possibly going non-union, and just different
things they would try to do for the men that stayed with
him
Q What did he say about the different tnmgs he
would try to do?
A As far as wages, he didn't really mention any
specific wages, but said they would try to come up with
a medical plan, something comparable to what the
Union could offer
His credited testimony as to the second conversation is as
follows
A Well, he just came over to the house, and asked
me whether I had thought anymore about what we
talked about , and I said I was going to stay in the
Union
It appears from the above -credited testimony that
McClellan reasonably understood that Saunders promised
economic benefits if he would agree to abandon the Union
Such conduct constitutes interference , restraint, and
coercion within the meaning of Section 8(a)(1) of the Act
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The unfair labor practices of the Respondents set forth
in section III , above , occurring in connection with their
operations set forth in section 1, above , have a close,
intimate and substantial relation to trade , traffic and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof
V THE REMEDY
It having been found that Respondents have engaged in
conduct violative of Section 8(a)(5) and (1) of the Act and
that Respondent Saunders also engaged in other conduct
violative of Section 8(a)(1) of the Act, it will be recom-
mended that they be ordered to cease and desist therefrom
and take certain affirmative action designed to effectuate
the policies of the Act
Upon the basis of the foregoing findings of fact and
upon the entire record in this proceeding , I make the
following
CONCLUSIONS OF LAW
The Violation of Section 8(a)(1) by Saunders
It is alleged that Respondent Saunders Sheet Metal, by
Doyle Saunders, violated Section 8(a)(1) of the Act on or
about July 2 and 9, 1970, by promising economic benefits
to employees to induce them to terminate their member-
ship in the Union One of Saunders' employees, James
McClellan, testified to conversations he had with Doyle
Saunders on or about the aforementioned dates His
5 Also, it is noted that an employer may still be considered to be a
member of a multiemployer bargaining unit even though he negotiates
modifications of a multiemployer bargaining agreement individually with
1 At all times material herein Respondents , and each
of them, have been members of the Sheet Metal and Air
Conditioning Contractors National Association, Inc,
Yosemite Area Chapter, herein called the Association, a
voluntary association of employers engaged in business as
heating, plumbing, air conditioning, and sheet metal
contractors
2 At all times material herein, the Association has
existed for the purpose , inter aha, of representing its
the Union Teamsters Local No 70 (Granny Goose Foods et a1 ) 195 NLRB
No 102
696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employer-members, including Respondents , in collective
bargaining and in negotiating and administering collective-
bargaining agreements with various labor organizations
including the Union
3 At all times material herein, the Association and its
employer-members, including Respondents , have consti-
tuted an employer engaged in commerce and in operations
affecting commerce within the meaning of Section 2(2), (6),
and (7) of the Act
4 On or about July 2 and 9, 1970, Respondent
Saunders , by Doyle Saunders, at the home of its employee,
James McClellan, interfered with, restrained, and coerced
its employees in the exercise of rights guaranteed in Section
7 of the Act by promising economic benefits to him to
induce him to terminate his membership in the Union in
violation of Section 8(a)(1) of the Act
5 All sheet metal workers employed by the Associa-
tion's employer-members, including Respondents, but
excluding professional employees, guards and supervisors
as defined in the Act constitute, and at all times material
herein have constituted , a unit appropriate for the purposes
of collective bargaining within the meaning of Section 9(b)
of the Act
6 For a number of years, and at all times material
herein, continuing to date, the Union has represented a
majority of the employees in the unit described above in
paragraph 5 and, by virtue of the provisions of Section 9(a)
of the Act, has been the exclusive representative of all the
said employees for the purpose of collective bargaining
with respect to rates of pay, wages, hours of employment,
and other terms and conditions of employment
7 On or about September 1, 1970, the Union and the
Association reached complete agreement on all the terms
of a collective-bargaining contract covering the employees
in the unit described above
8 Commencing on or about September 3, 1970, and at
all times thereafter, Respondents , and each of them, did
refuse, and continue to refuse , the Union's request to sign a
written collective-bargaining contract embodying the terms
of the collective-bargaining contract reached by the Union
and the Association as described above, in violation of
Section 8(a)(5) and (1) of the Act
9 Commencing on or about September 3, 1970, and at
all times thereafter , Respondents, and each of them, by
their agents, did refuse and continue to refuse to accept, be
bound by, or give full force and effect to the terms and
conditions of the collective-bargaining contract reached by
the Union and the Association as described above, in
violation of Section 8(a)(5) and (1) of the Act
[Recommended Order omitted from publication ]