Local 80, Sheet Metal Workers, et al.

National Labor Relations Board - Board Decisions

Oct 21, 1966

161 N.L.R.B. 229 (N.L.R.B. 1966)

LOCAL 80, SHEET METAL WORKERS, ET AL. 229
been behind Respondent 's actions with respect to them is immaterial ." Id. The
strikers having lost their status as employees and the protections of Section 8(a),
Respondent's conduct in soliciting them to return to work, all of which occurred
after the strike , was not violative of Section 8(a)(1). United Elastic Corporation,
84 NLRB 768 , 774; Mackay Radio and Telegraph Company, Inc., 96 NLRB 740,
"743-744. 25 The result reached is undoubtedly harsh, but ita lex scripta.
RECOMMENDED ORDER
Accordingly, I recommend that the complaint herein be dismissed in its
entirety.
' Having found that Respondent engaged in no unfair labor practices, it follows, con-
trary to the General Counsel's contention , that it did not unlawfully prolong the strike
in which the Union was engaged.
Local 80, Sheet Metal Workers International Association, AFL-
CIO, and its Agents , Sheet Metal Workers Local Union No. 80
Insurance Trust Fund and its Trustees ; Sheet Metal Workers
Local Union No. 80 Pension Trust Fund and its Trustees; Sheet
.Metal Workers Local Union No. 80 Vacation Trust Fund and
its Trustees ; Sheet Metal Workers Local Union No. 80 Sup-
plemental Unemployment Benefit Trust Fund and its Trustees;
Sheet Metal Workers Local Union No . 80 Apprenticeship Fund
.and its Trustees ; and Sheet Metal Employers Industry Pro-
motion Fund and its Trustees and Turner-Brooks, Inc. and
Sheet Metal Employers Association of Detroit , Party in Inter-
est. Cases 7-CB-1313 and 1349. October 21, 1966
DECISION AND ORDER
Upon charges duly filed by Turner-Brooks, Inc., herein called T-B,
the General Counsel of the National Labor Relations Board by the
Regional Director for Region 7, on October 5, 1965, issued an order
consolidating cases, complaint and notice of hearing , alleging that
Local 80, Sheet Metal Workers International Association, AFL-CIO,
herein called Respondent Local 80, and its agents , certain named
trust funds, had engaged in and were engaging in unfair labor prac-
tices within the meaning of Section 8 (b) (3), 8(b) (1) (B), and 8 (d),
and 2(6) and (7) of the National Labor Relations Act, as amended.
Copies of the charges and the order consolidating cases , complaint
and notice of hearing were duly served upon Respondent Local 80,
the named trust funds, T-B, and Sheet Metal Employers Association
of Detroit, party in interest, herein called the Association.
The complaint alleges, in substance, that Respondent Local 80 vio-
lated Section 8 (b) (3) of the Act by insisting, as a condition prece-
dent to entering into a collective-bargaining contract with T-B, that
such contract contain provisions for an industry promotion fund and
by thereafter refusing, through its agents , the trust funds named in
161 NLRB No. 7.
230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the complaint, to accept any payments to the various other trust funds
established by the contract because T-B had not at the same time con-
tributed to the industry promotion fund. The complaint further
alleges that Respondent Local 80, by its insistence that T-B agree to
an industry promotion fund, in the administration of which T-B
would play no role, thereby restrained and coerced T-B in the selec-
tion of its representative for the purpose of collective bargaining in
violation of Section 8(b) (1) (B) of the Act. Finally, the complaint
alleges that Respondent Local 80 has insisted upon T-B's adherence
to industry fund provisions made inoperative by operation of law,
and thereby Respondent Local 80 is seeking to alter or modify its
contract with T-B, contrary to the provisions of Section 8(d) cf (lie
Act. Answers were filed by Respondent Local 80 and three of the
named trust funds 1 admitting certain jurisdictional and factual alle-
gations of the complaint, but denying the commission of unfair labor
practices.2
On January 5, 1966, all parties to the proceeding moved to transfer
this proceeding directly to the Board for findings of fact, conclusions
of law, and decision and order. The parties stipulated that they have
waived their rights to a hearing before a Trial Examiner and to the
issuance of a Trial Examiner's Decision. They further stipulated that
the charges, complaint and notice of hearing, and answers filed in
these cases, together with a stipulation as to certain facts and exhibits,
should constitute the entire record in this proceeding. On Janu-
ary 11, 1966, the Board granted the motion, ordered the transfer of
the proceedings to the Board, and granted permission to the parties
to file briefs. The General Counsel, Respondent Local 80, and T-B,
all filed separate briefs. A consolidated brief was filed on behalf of the
Association and the trust funds.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with these cases to a three-member
panel [Chairman McCulloch and Members Fanning and Jenkins].
Upon the basis of the parties' stipulation, the briefs, and the entire
record in these cases, the Board makes the following:
FINDINGS OF FACT
1. COMMERCE
T-B, which maintains its principal office and place of business in
Detroit, Michigan, is engaged in the retail and wholesale distribu-
tion, sale, installation, and service of floor coverings, acoustical tile,
3 Respondent Local 80's Pension Trust Fund , Vacation Fund , and Industry Promotion
Trust Fund , herein collectively referred to as the Trust Funds.
2 In view of our disposition herein, we find it unnecessary to rule on the motion to
dismiss filed by the Trust Funds.
LOCAL 80, SHEET METAL WORKERS, ET AL. 231
and related products. During the 1964 calendar year, T-B purchased
goods and material valued in excess of $100,000, of which goods and
material valued in excess of $50,000 were received directly from
points outside the State of Michigan.
Accordingly, we find, and the parties admit, that T-B is engaged in
commerce within the meaning of Section 2(6) and (7) of the Act
and that it will effectuate the policies of the Act to assert jurisdic-
tion herein.
II. THE LABOR ORGANIZATION INVOLVED
Respondent , Local 80 is a labor organization within the meaning of
Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
On June 12, 1964, Respondent Local 80 entered into a collective-
bargaining agreement with the Association which is effective until
April 30, 1967. By a subsequent addendum to this contract, which is
also effective from June 12, 1964, to April 30, 1967, Respondent Local
80 and the Association agreed to the establishment of various trust
funds, including an industry promotion fund, and in section 3 of the
addendum provided as follows :
Section 3. Standard And Uniform Contract A. This Agreement
shall be the Standard And Uniform Written Labor Agreement
embodying the terms and conditions of employment, of appren-
tices and journeymen by all members of the Association and other
Employers performing sheet metal work in the building and
construction industry, excluding production shop work.
Respondent Local 80 is also the bargaining representative for all
journeymen sheet workers and apprentices employed by T-B. Com-
mencing on or about January 8, 1965, Respondent Local 80 sought to
obtain T-B's agreement to be bound by the terms and conditions of
the collective-bargaining contract between it and the Association.
From the outset, T-B objected to the inclusion of the Industry Pro-
motion Fund provisions in its contract. However, as stipulated by
the parties, Respondent Local 80 insisted upon the inclusion of these
provisions as a condition precedent to entering into a contract with
'i-B. On March 26, 1965, T-B signed the identical contract negotiated
between Respondent Local 80 and the Association; however, T-B
expressly indicated that its agreement to the inclusion of the Indus-
try Promotion Fund provisions in the contract was under protest. By
the terms of the contract, T-B was required to make periodic pay-
ments to the several trust funds provided for in the contract.' T-13
8 The parties agreed to the establishment of an insurance trust fund, a pension trust
fund, a vacation trust fund , a supplemental unemployment benefit trust fund, an ap-
prenticeship fund, and an industry promotion fund.
232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
made the required payments until June 15, 1965, at which time it
cease making payments to the Industry Promotion Fund. Although,
on June 15 and thereafter, T-B attempted to make payments to all
the Trust Funds, except the Industry Promotion Fund, these pay-
ments have been refused by the depository bank named by the Trust
Funds. It is stipulated by the parties that the Trust Funds' refusal,
by their depository bank, to accept payments by T-B to any of the
funds was caused by T-B's failure to make payments to the Industry
Promotion Fund. Respondent Local 80, the Trust Funds, and the
Association contend that the justification for the Trust Funds' re-
fusal to accept T-B's payments in these circumstances is to be found in
the following provisions of T-B's collective-bargaining contract with
Respondent Local 80:
Section 11(G). The parties agree that under no circumstances
shall any of the Trustees of the Joint Funds accept payments
from any Employer, who is subject to a construction trades
agreement as provided for herein, where such employer has not
accepted each and every term, obligation and condition of this
Agreement.
Section 12(C). The bank depository will not receive any partial
payments of the negotiated fund contributions, i.e., the Joint
Funds and the Industry Promotion Fund. A partial payment of
the amount due all said funds to the bank depository shall con-
stitute a delinquency to all the funds.
The General Counsel contends that violations of Section 8(b) (3)
of the Act are manifested by Respondent Local 80's insistence upon
the inclusion of the Industry Promotion Fund provisions in the T-B
contract and,by the refusal to accept any of T-B's contributions to
the various Trust Funds because T-B would not also contribute to the
Industry Promotion Fund. The General Counsel also contends that
by requiring T-B to accept an Industry Promotion Fund with T-B
would have no role in administering, Respondent Local 80 restrained
and coerced T-B in the selection of its representative for the purposes
of collective bargaining and thereby violated Section 8(b) (1) (B) of
the Act. The General Counsel further alleges that by forcing T-B to
adhere to contractual provisions which were inoperative as a matter
of law because of the illegal manner in which they were obtained,
Respondent Local 80 is seeking to alter or modify a contract, in vio-
lation of Section 8(d) of the Act. T-B adopts the position expressed
by the General Counsel, but, in addition, it argues that in its bargain-
ing with T-B, Respondent Local 80 adopted a "take it or leave it"
LOCAL 80, SHEET METAL WORKERS, ET AL. 233
attitude which the Board has found evidences bad-faith bargaining,'
and that Respondent Local 80 acted unlawfully by agreeing with the
Association that it would not enter into any contract with any other
employer which did not contain the identical provisions of the Asso-
ciation contract.5
Respondent Local 80, its alleged agents , the Trust Funds, and the
Association as party-in-interest, admit the factual allegations of the
complaint, set forth above, but deny the commission of any unfair
labor practices. Also Respondent Local 80, the Trust Funds, and the
Association deny that an agency relationship exists between Respond-
ent Local 80 and the Trust Funds and, as discussed infra, question
certain of the remedial action requested by the General Counsel.
With respect to the unfair labor practices alleged in the complaint,
we make the following determinations. We agree with the General
Counsel's contention that Respondent Local 80 violated Section
8(b) (3) of the Act by insisting upon the inclusion of the Industry
Promotion Fund provision in a collective-bargaining contract with
T-B. In prior cases e the Board has expressly ruled that industry pro-
motion funds are nonmandatory subjects of bargaining which may be
proposed by the parties during negotiations, but not insisted upon as
a condition to entering into a collective-bargaining agreement.
Accordingly, we find that Respondent Local 80 violated Section
8(b) (3) of the Act by requiring T-B to accept the Industry Promo-
tion Fund provisions as a condition precedent to reaching agreement
on a collective-bargaining contract.
We next turn to a consideration of whether the subsequent refusal
by the Trust Funds, through their depository bank, to accept pay-
ments from T-B to the various funds without also contributing to the
Industry Promotion Fund is a violation of Section 8 (b) (3) charge-
able to Respondent Local 80. In making such a determination, the
threshold question is whether, as alleged in the complaint, the Trust
Funds were acting as agents of Respondent Local 80 in refusing to
accept T-B's contributions.
The trust funds exist by virtue of the current collective- bargaining
agreement between Respondent Local 80 and the Association, which
agreement was subsequently accepted by T-B. By the terms of this
contract, the parties agree to the creation of the individual trust
T-B cites General Electric Company, 150 NLRB 192, in support of this proposition.
United Mine Workers v. Pennington, 381 U.S. 657 , is cited to support this.
6Metropolitan District Council of Philadelphw., etc. (McCloskey and Company), 137
NLRB 1583; Operative Plasterers, etc., Local No. 2 (Arnold M. Hansen ), 149 NLRB 1264;
and Southern California District Council , etc. (Swimming Pool Gunite Contractors Group),
144 NLRB 978; Detroit Resilient Floor Decorators Local 2265 ( Mall Floor Covering , Inc.),
136 NLRB 769, enfd . 317 F. 2d 269 ( C.A. 7).
234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
funds which are to be administered by trustees appointed under writ-
ten declarations of trust. The contract further provides that the trus-
tees for the Industry Promotion Fund shall all be appointed by the
Association, whereas in the case of the other funds, it is provided
that an equal number of trustees shall be appointed by the Associa-
tion and the Union.
From an examination of the contract and the individual trust
agreements, it is clear that the trustees of each of the funds derive
their authority from and are bound by the terms of the collective-
bargaining agreement between Respondent Local 80 and the Associa-
tion. As set forth above, section 11(G) and 12(C) of the contract
prohibit the trustees of these funds from accepting any payments
which are less than the amount due under all the funds established
by the contract. Accordingly, the trustees of the various funds were
not free to exercise their discretion in refusing, by their depository,
to accept the payments tendered by T-B, but rather were acting pur-
suant to a specific limitation of authority contained in the contract.
Therefore, we believe the trustees of these funds must be deemed to
be the agents of the joint principals, Respondent Local 80 and the
Association, when, as here, they are acting pursuant to a specific man-
date of the contract. The fact that all of the trustees of the industry
promotion fund and half of the trustees of the other funds were
appointed by the Association, which is not charged as a respondent,
does not cause us to reach a different result. Because certain of the
trustees are appointed by the Association and others by Respondent
Local 80, it does not follow that the individual trustee is the agent
solely of and responsible only to the one principal. Neither the Asso-
ciation nor Respondent Local 80 has exercised any power, including
the appointment of trustees, which is not derived from the joint
agreement of both, as expressed in the collective-bargaining agree-
ment. Accordingly, we find that all trustees of the individual funds,
whether they be appointed by the Association or Respondent Local
80, are agents of both.'
In view of our finding that the trustees, by their bank deposi-
tory, were acting as agents of Respondent Local 80 in refusing to
accept payments tendered by T-B, we must determine whether by
such conduct, Respondent Local 80 violated Section 8(b) (3) of the
Act. Elsewhere in this Decision, we have found that Respondent
Local 80 violated Section 8(b) (3) by insisting upon the inclusion of
the Industry Promotion Fund provision' as a condition precedent to
entering into a ,contract with T-B. Because of the illegal manner in
which agreement to such provision was obtained, we are constrained
7 Cf. J. J. Hagerty, Inc., 139 NLRB 633, enfd. in relevant part 321 F.2d 130, 137 (C.A. 2).
LOCAL 80, SHEET METAL WORKERS, ET AL. 235
to find that the Industry Promotion Fund provision contained in the
contract with T-B is invalid and inoperative as a matter of law. The
justification then, if such exists, for Respondent Local 80's attempt
to enforce this invalid condition must be found elsewhere than in its
contract with T-B. It is the position of the Association and the trus-
tees that such justification is to be found in the contract between
Respondent Local 80 and the Association. They argue that in refus-
ing T-B's contributions, the trustees were acting pursuant to a valid
and enforceable contract between Respondent Local 80 and the Asso-
ciation and therefore T-B could be barred from participating if it
did not choose to accept the terms and conditions governing partici-
pation in these funds. While we do not question the right of parties
to establish funds upon which there are attached conditions for par-
ticipation, it suffices to say that private rights must give way when
they are utilized in a manner so as to deny a public right. By refusing
to accept T-B's payments to the funds unless it would also contribute
to the Industry Promotion Fund, Respondent Local 80 was attempt-
ing to force T-B's adherence to contractual provisions upon which it
had unlawfully insisted as a condition to agreement and which were
therefore invalid and inoperative in law, as stated above. Respondent
Local 80's conduct in this respect constituted, in effect, a continuing
reflection of its earlier unfair labor practice. The fact that such action
was taken pursuant to the terms of a valid contract with the Associa-
tion cannot serve as justification for its illegal conduct. Accordingly,
we conclude that Respondent Local 80, by its agents the trustees, vio-
lated Section 8(b) (3) of the Act by refusing to accept any payments
by T-B to the funds, until T-B agreed to contribute to the Industry
Promotion Fund.
We do not agree, however, with the General Counsel's contention
that Respondent Local 80 also violated Section 8(b) (1) (B) of the
Act by requiring T-B to accept an Industry Promotion Fund in
which T-B would play no role in its administration. Admittedly,
Respondent Local 80 insisted upon T-B's acceptance of these pro-
visions however, mere insistence is not to be equated with the restraint
and coercion required by the statute to establish an 8(b) (1) (B) vio-
lation.' Although the complaint alleges that Respondent Local 80
threatened to call a strike and did strike in support of its demand
that T-B agree to the Industry Promotion Fund, the answers and
stipulation admit only that Respondent Local 80 insisted upon the
inclusion of these provisions in its contract with T-B. Thus, on the
8 Section 8(b) (1) (B ) provides as follows :
(b) It shall be an unfair labor practice for a labor organization or its agents-
to restrain or coerce . . . (B) an employer in the selection of his representatives for
the purposes of collective bargaining or the adjustment of grievances.
236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
record before us, there is no evidence that Respondent Local 80
restrained and coerced T-B and, accordingly, we shall dismiss this
allegation of the complaint, without reaching the question of whether
the Respondent's insistence upon the Industry Promotion Fund, if
shown to have been accompanied by restraint and coercion, would
have constituted conduct within the interdiction of 8(b) (1) (B).
In view of our finding that Respondent Local 80 violated Section
8 (b) (3), of the Act, we find it unnecessary to consider whether, as
was alleged by the General Counsel, Respondent Local 80's insistence
upon T-B's adherence to the illegal Industry Promotion Fund provi-
sions of the contract constituted an alteration or modification of its
contract with T-B prohibited by Section 8 (d) of the Act. Even were
we to find that Respondent Local 80's conduct in this regard was
prohibited by Section 8(d) and as a consequence constituted a fur-
ther violation of Section 8(b) (3), our Order remedying the unfair
labor practices would not in any way be affected. Accordingly, we
shall dismiss this allegation of the complaint.'
Finally, Respondent Local 80, the Trust Funds, and the Associa-
tion contend that the Board does not have the power to remedy the
violations in the manner requested by the General Counsel. Specifi-
cally, they challenge the Board's authority to fashion an order run-
ning against the trustees of the various funds and to take any action
which- would invalidate any of the provisions in the collective-
bargaining agreement between Respondent Local 80 and the Associa-
tion. As to the first point, we think it is clear that by virtue of our
finding that the trustees were acting as agents of Respondent Local
80, in commission of certain -of the unfair labor practices found
herein, the Board is empowered to direct its Order.against not only
Respondent Local 80, but also against parties acting as its agents in
the commission of these unfair labor practices. With respect to the
second point, we do not view the, remedy sought by the General
Counsel as a request that certain provisions of the Association con-
tract be invalidated. In any event, our Order will not be directed
toward any of the provisions in the Association contract, but rather
it will have application only to the contract between Respondent
Local 80 and T-B, and will specifically be directed against the enforce-
ment of section 5, the Industry Promotion Fund provisions and
sections 11(G) and 12(C) of this agreement .10
We also make no unfair labor practice findings upon the grounds separately urged by
T-B because such matters are beyond the purview of the complaint and the stipulation of
the parties.
'° Respondent Local 80 's contention that sections 11 (G) and 12 ( C) of the T-B contract
should in no way be impaired by our Order because T-B accepted these provisions without
protest has no merit . In order to properly remedy the violations found herein, our Order will
prohibit Respondent Local 80 and its agents from enforcing sections 11(G) and 12 (C) of
the T-B contract in a manner designed to compel T-B to make payments to the Industry
Promotion Fund.
LOCAL 80, SHEET METAL WORKERS, ET AL. 237
CONCLUSIONS OF LAW
1. Turner -Brooks , Inc., is engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. Respondent Local 80 is a labor organization within the meaning
of Section 2 (5) of the Act.
3. All journeymen sheet metal workers and apprentices employed
by Turner-Brooks, Inc., excluding all other employees, office clerical
employees, guards, and supervisors 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. Respondent Local 80, at all times material herein, has been, and
is, the exclusive representative of all employees in the aforesaid
appropriate unit for the purposes of collective bargaining in respect
to rates of pay, wages, hours of employment, and other conditions of
employment.
5. By conditioning its agreement to a collective-bargaining con-
tract with Turner-Brooks, Inc., upon the latter's acceptance of the
Industry Promotion Fund provisions, a nonmandatory subject of
bargaining, Respondent Local 80 has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(b) (3) of
the Act.
6. By refusing through its agents, the trustees, to accept payments
tendered by Turner-Brooks, Inc., to the various funds because
Turner-Brooks, Inc., would not also contribute to the Industry Pro-
motion Fund, Respondent Local 80 has engaged in and is engaging
in unfair labor practices within the meaning of Section 8(b) (3) of
the Act.
7. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2(6) and (7) of
the Act.
8. Respondent Local 80 has not engaged in any other unfair labor
practices as alleged in the complaint.
THE REMEDY
Having found that Respondent Local 80 and its agents, the trustees
of the funds, have engaged in certain unfair labor practices, we shall
Corder them to cease and desist therefrom and take certain affirmative
.action designed to effectuate the policies of the Act.
Inasmuch as Turner-Brooks, Inc., and Respondent Local 80 have
.already entered into a current contract containing the Industry Pro-
motion Fund provisions which Turner-Brooks, Inc., agreed to only
'under protest, we shall order Respondent Local 80 and its agents to
cease and desist from insisting that Turner=Brooks , Inc., make con-
-tributions to the Industry Promotion Fund or otherwise comply with
238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
these provisions of the contract. We shall also order Respondent
Local 80 and its agents to cease and desist from enforcing sections
11(G) and 12(C) of its contract with Turner-Brooks, Inc., insofar
as they relate to the failure of Turner-Brooks, Inc., to make payments
to the Industry Promotion Fund. Affirmatively, we shall require that
Respondent Local 80 and its agents reimburse Turner-Brooks, Inc.,
for contributions made by it to the Industry Promotion Fund under
the terms of the current collective-bargaining contract, by the repay-
ment of these moneys, together with interest at 6 percent per annum.
We shall also require that Respondent Local 80 notify the Association
and the bank depository that it will not insist upon the enforceability
of section 11(G) and 12(C) of its contract with Turner-Brooks, Inc.,
insofar as they apply to the Industry Promotion Fund, and that
Respondent Local 80, and its agents, post notices and take whatever
steps are necessary to comply with the provisions of our Order.
ORDER
Pursuant to Section 10(e) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby orders that the
Respondent, Local 80, Sheet Metal Workers International Associa-
tion, AFL-CIO, Detroit, Michigan, and its agents, Sheet Metal
Workers Local Union No. 80 Insurance Trust Fund and its Trustees ;
Sheet Metal Workers Local Union No. 80 Pension Trust Fund and
its Trustees; Sheet Metal Workers Local Union No. 80 Vacation
Trust Fund and its Trustees; Sheet Metal Local Union No. 80 Sup-
plemental Unemployment Benefit Trust Fund and its Trustees; Sheet
Metal Local Union No. 80 Apprenticeship Fund and its Trustees; and
Sheet Metal Employers Industry Promotion Fund and its Trustees,
their officers, agents, representatives, successors, and assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain with Turner-Brooks, Inc., as the repre-
sentative of its employees in the unit found appropriate herein, by
insisting upon the inclusion of an industry promotion fund provision
as a condition precedent to entering into a collective-bargaining con-
tract with Turner-Brooks, Inc.
(b) Refusing to bargain with Turner-Brooks, Inc., by insisting
that Turner-Brooks, Inc., make contributions to the Industry Promo-
tion Fund or otherwise comply with these provisions of the collective-
bargaining contract between Turner-Brooks, Inc., and Respondent.
(c) Enforcing sections 11(G) and 12(C) of its collective-bargain-
ing contract with Turner-Brooks, Inc., insofar as these provisions are
relevant to the failure of Turner-Brooks, Inc., to make payments to
the Industry Promotion Fund.
LOCAL 80, SHEET METAL WORKERS, ET AL. 239
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Notify Sheet Metal Employers Association of Detroit, and the
Trust Funds' bank depository, City National Bank of Detroit, in
writing, that it will not insist upon contributions by Turner-Brooks,
Inc., to the Industry Promotion Fund, and that it will not enforce
sections 11(G) and 12(C) of its contract with Turner-Brooks, Inc.,
insofar as these provisions are relevant to the failure of Turner-
Brooks, Inc., to make payments to the Industry Promotion Fund.
(b) Reimburse Turner-Brooks, Inc., for all contributions made by
it to the Industry Promotion Fund under the terms of the current
collective-bargaining contract, by repayment to Turner-Brooks, Inc.,
of a sum equal to the amount of these payments, together with inter-
est at the rate of 6 percent per annum.
(c) Preserve and, upon request, make available to the Board or
its agents, for examination and copying, all records and reports and
all other -documents necessary to analyze the amount of repayment
due Turner-Brooks, Inc.
(d) Post in Respondent's business offices and meeting places in
Detroit, Michigan, copies of the attached notice marked "Appen-
dix." 11 Copies of said notice, to be furnished by the Regional Direc-
tor for Region 7, after being duly signed by the representative of
Respondent, shall be posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where notices to members
are customarily posted. Reasonable steps shall be taken by Respond-
ent to insure that said notices are not altered, defaced, or covered by
any other material.
(e) Mail to the Regional Director for Region 7 copies of said
notice for posting by Turner-Brooks, Inc., alid the Sheet Metal
Employers Association of Detroit, they being willing, in places where
notices to employees are customarily posted. Copies of said notice, to
be furnished by the Regional Director for Region 7, after being duly
signed by Respondent's official representative, shall be forthwith
returned to the Regional Director.
(f) Take whatever other steps may be necessary to comply with
this Decision and Order.
(g) Notify the Regional Director for Region 7, in writing, within
10 days from the date of this Decision and Order, what steps have
been taken to comply herewith.
n In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "a Decision and Order " the words "a
Decree of the United States Court of Appeals Enforcing an Order."
240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL OUR MEMBERS
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT refuse to bargain with Turner-Brooks, Inc., as
the representative of its employees in a unit of journeymen sheet
metal workers and apprentices, excluding all other employees,
office clerical employees, guards, and supervisors, by insisting
upon the inclusion of an industry promotion fund provision as a
condition precedent to entering into a collective-bargaining con-
tract with Turner-Brooks, Inc.
WE WILL NOT refuse to bargain with Turner-Brooks, Inc., by
insisting that it make contributions to the Industry Promotion
Fund or otherwise comply with these provisions of the contract
between Turner-Brooks, Inc., and Respondent.
WE WILL NOT enforce sections 11 (G) and 12 (C) of our contract
with Turner-Brooks, Inc., in a manner which would deny Turner-
Brooks, Inc., the right to make payments to the various trust
funds without also contributing to the Industry Promotion Fund.
WE WILL reimburse Turner-Brooks, Inc., for all contributions
made by it to the Industry Promotion Fund under the terms of
the current contract by repayment to Turner-Brooks, Inc., of a
sum equal to the amount of these payments, together with inter-
est at the rate of 6 percent per annum.
LOCAL 80, SHEET METAL WORKERS INTERNATIONAL
ASSOCIATION, AFL-CIO, AND ITS AGENTS, SHEET
METAL WORKERS LOCAL UNION No. 80 INSURANCE
TRUST FUND AND ITS TRUSTEES; SHEET METAL
WORKERS LOCAL UNION No. 80 PENSION TRUST
FUND AND ITS TRUSTEES; SHEET METAL WORKERS
LOCAL UNION No. 80, VACATION TRUST FUND
AND ITS TRUSTEES SHEET METAL WORKERS LOCAL
UNION No. 80 SUPPLEMENTAL UNEMPLOYMENT
BENEFIT TRUSTEES; SHEET METAL WORKERS
LOCAL UNION No. 80 APPRENTICESHIP FUND AND
ITS TRUSTEES; AND SHEET METAL WORKERS INDUS-
TRY PROMOTION FUND AND ITS TRUSTEES,
Labor Organization and its Agents.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
CHANTICLEER, INC. 241
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.
If members have any question concerning this notice or compliance
with its provisions , they may communicate directly with the Board's
Regional Office , 500 Book Building , 1249 Washington Boulevard,
Detroit, Michigan 48226, Telephone 226-3200.
Chanticleer, Inc. and Meat Cutters, Packinghouse Workers &
Food Handlers District Union Local #657, Amalgamated Meat
Cutters & Butcher Workmen of North America , AFL--CIO.
Cases 12-CA.-3267 and 3323. October 21, 1966
DECISION AND ORDER
On March 2, 1966, Trial Examiner Owsley Vose issued his Deci-
sion in the above-entitled proceeding, finding that Respondent had
engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. He further found that Respondent had not engaged in certain
other unfair labor practices alleged in the complaint and recom-
mended dismissal as to them. Thereafter, the General Counsel and
Respondent filed exceptions to the Trial Examiner's Decision and
supporting briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with these cases to a three-member
panel [Chairman McCulloch and Members Fanning and Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in these cases, and finds merit in certain of the exceptions filed. We
therefore adopt the Trial Examiner's findings, conclusions, and
recommendations, with the following additions and modifications.'
1 In view of our conclusions herein, we find that the Respondent's withdrawal of the
discount meat-buying privilege, the change of employee Dozier's reporting time, and the
change of employee Rams' work shift, violated Section 8(a) (5), as well as Section
8(a) (1), of the National Labor Relations Act, as amended.
161 NLRB No. 19.
264-188-67-vol. 161-17