Local Union No. 110, Sheet Metal Workers

National Labor Relations Board - Board Decisions

Jun 15, 1971

191 N.L.R.B. 182 (N.L.R.B. 1971)

182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local Union No . 110, Sheet Metal Workers' Interna-
tional Association of Louisville , Kentucky, AFL-
CIO and David C. Holston, Raymond A. Robbins,
Carl E. Thomas, Terrace L. Akin and Dane Sheet
Metal, Inc. Cases 9-CB-1829-1, 9-CB-1829-2, 9-
CB-1829-3, 9-CB-1829-4, and 9-CB-1857
June 15, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On February 4, 1971, Trial Examiner Ramey Dono-
van issued his Decision in the above-entitled proceed-
ing, finding that the 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 at-
tached Trial Examiner's Decision. Thereafter, the Re-
spondent filed exceptions to the Trial Examiner's Deci-
sion 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 powers
in connection with these cases to a three-member panel.
The Board has reviewed the rulings of the Trial Ex-
aminer made at the hearing and finds that no prejudi-
cial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions and brief, and the
entire record in these cases, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Trial Examiner and hereby orders that the Re-
spondent, Local Union No. 110, Sheet Metal Workers'
International Association of Louisville, Kentucky,
AFL-CIO, its officers, representatives, and agents,
shall take the action set forth in the Trial Examiner's
recommended Order.
TRIAL EXAMINER'S DECISION,
RAMEY DONOVAN, Trial Examiner: Four individual
charges were filed by Holston, Robbins, Thomas, and Akin
on June 29, 1970, against Local Union No. 110, Sheet Metal
Workers' International Association of Louisville, Kentucky,
AFL-CIO, herein the Union or Respondent. A complaint
was issued on August 12, 1970. A charge was also filed
against the Union on August 18, 1970, by Dane Sheet Metal,
Inc., herein Dane. A complaint was issued on September 30,
1970.
With all parties represented by counsel, a consolidated
hearing was held on the above matters on November 4, 5, and
6, 1970, in Louisville, Kentucky. The complaint allegations
in issue were that the Union attempted to cause and did cause
Dane to discriminatorily discharge employees Holston, Rob-
bins, Thomas, and Akin because they were not members of
the Union, all in violation of Section 8(b)(1)(A) and (2) of the
Act; and that the Union refused to sign a contract agreed on
with an employers association representing employers includ-
ing Dane and thereby refused to bargain with Dane in viola-
tion of Section 8(b)(3) of the Act.
FINDINGS AND CONCLUSIONS
1. JURISDICTION; PARTIES
Dane, at all material times, is and has been a corporation
engaged in the sheetmetal fabrication and sheetmetal con-
tracting business from its business location in Louisville,
Kentucky. In a representative 12-month period, Dane had a
direct outflow of services in interstate commerce valued in
excess of $50,000 which it performed for customers outside
Kentucky. During the same period, Dane purchased goods
and material valued in excess of $50,000 from suppliers
located outside Kentucky and caused such goods to be
shipped in interstate commerce directly to its Kentucky loca-
tion. Dane is an employer engaged in commerce within the
meaning of the Act.
At all times material, Dane is and has been a member of
the Kentucky Sheet Metal Contractors Association, herein
the Association, which is comprised of various sheetmetal
contractors or companies in Louisville, Lexington, Paducah,
Bowling Green, and Murray, Kentucky, and which bargains
for and behalf of said contractors and companies, including
Dane, with the Respondent Union concerning wages, hours,
and conditions of employment of their employees. The Union
is a labor organization within the meaning of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
O'Neil was president of Dane. He had been a member of
the Union since 1947 and continued this status throughout
the period herein.' Dane had a contract with the Union for
about 5 years and had been a member of the Association for
3 years. As a member of the Association Dane was covered
by the Association contract with the Union. The most recent
contract was for the period August 20, 1968, to August 19,
1970. The relevant provisions of the contract provide:
Article III
Section 1.
The Employer agrees to notify the Union when addi-
tional or replacement employees are needed. The Union
agrees to furnish qualified journeymen sheet metal work-
ers upon a non-discrimmatory basis when so notified
with forty-eight (48) hours after receiving the request
from the Employer. Such qualified journeymen sheet
metal workers shall be furnished under the above condi-
tions in sufficient numbers as may be necessary to prop-
erly execute the work contracted for by the Employer in
the manner and under the conditions specified in this
agreement. The decision with regard to the hire and
tenure of all employees shall be made by the Employer.
1 As president of Dane, O'Neil did, from time to time, perform some
manual sheetmetal work on his company's projects Although he did not
work as a journeyman for other contractors, he did pay a percentage of his
earnings to the Union to maintain his union membership.
191 NLRB No. 44
LOCAL UNION NO. 110 , SHEET METAL WORKERS 183
Section 2 of this article provides:
All employees in the bargaining unit who are members
of the Union in good standing on the effective date of this
Agreement, or on the date of its execution, whichever is
the latter, must, as a condition of employment, maintain
their membership in good standing for the life of this
Agreement.
Any employee who is not a member of the Union, and
any employee who is hired on or after the effective date
of this Agreement, or the date of its execution, which-
ever is the latter, shall be required to apply for member-
ship in the Union on or after the 8th day of his employ-
ment following the effective date of this Agreement, or
the date of its execution or following the date of his
employment, whichever is the latter period. Such em-
ployees who become members of the Union must as a
condition of their employment, maintain their member-
ship for the duration of this Agreement; provided, that
if the Federal Law covering employment and union
security under this section is amended to provide that
union membership may be required as a condition of
continued employment following a grace period of less
than seven (7) days employment, thereafter the mini-
mum grace period thus provided shall apply under this
paragraph and union membership will be required of
employees covered herein immediately after the last day
of the shorter grace period.
Holston had worked for three employers as a sheetmetal
worker for a total of about 11 years prior to applying for a
job with Dane. He first applied unsuccessfully to Dane in
1968 when O'Neil told him that he, O'Neil, would have to
first call the Union to see if any man was available. O'Neil
called the Union and hired two men sent by the Union. The
second time, around the summer of 1968, when Holston ap-
plied to Dane, O'Neil, according to Holston, telephoned the
Union in Holston's presence and asked for two men, O'Neil
told Holston that he would have to wait 48 hours to allow the
Union to furnish the men. After 48 hours Holston returned
to Dane. O'Neil told him he was going to wait another 24
hours. Finally, 70 hours after the call to the Union, O'Neil
hired Holston in 1968. Holston continued to work for Dane
until his discharge on May 14, 1970.
Akin applied for a job at Dane in September 1968.2 The
person he saw at Dane was Culver, Dane's superintendent,
who was a member of the Union. A week after he had made
the aforementioned application Akin was called by Culver
and hired. He worked for Dane as a leadman until his dis-
charge on May 14, 1970.
Robbins had been a sheetmetal worker for over 30 years.
He first applied to Dane in 1967 but O'Neil told him that he
was not hiring at that time. In 1967, Robbins had also gone
to Heyser, business manager of the Union, and asked if he
could get in the Union. Heyser said that there was not a
chance but he suggested that he might get work for Robbins
in another area, Lexington, Kentucky.' Robbins was not in-
terested in the suggestion. In December 1968, approximately
a year after Robbins' initial application to Dane, O'Neil tele-
phoned Robbins. According to the latter, O'Neil said that he
needed a man and that he had been unable to secure anyone
from the Union. Robbins then came in on a Wednesday and
talked with O'Neil. O'Neil told Robbins that he had to call
the Union to make sure that the Union had no one available
and that Robbins should wait until Monday. Thereafter,
I Akin was about 26 ,years old at the time and had worked for sheetmetal
employers since 1963 according to Respondent's Exhibit 3B.
3 As distinguished from Louisville, the site of the union office and Dane's
place of business and Robbins' place of residence.
Robbins was hired and worked for Dane as a leadman or
layout man from December 1968 until his discharge on May
14, 1970. About June 1969, Robbins had asked Heyser for a
union card but Heyser said "there wasn 't a possible chance."4
Thomas had been a sheetmetal worker for about 15 years.
He knew O'Neil and some of the employees at Dane. In April
1969, he spoke to O'Neil about securing employment at
Dane. O'Neil said that he would have to check with the
Union to see if there were any union men available. A week
later O'Neil contacted Thomas and told him to come to work.
Several weeks after he had been working at Dane, Thomas
asked O'Neil if he thought that it would do any good if
Thomas went to the Union and tried to secure a union card.
O'Neil told him that he had not been with Dane long enough.
In July 1969, Thomas spoke to Heckel, financial secretary of
the Union, whom Thomas had known for sometime. Thomas
asked Heckel if he could get in the Union. He told Heckel
that he was working at Dane. Heckel said that at the present
the Union was closed and it was impossible to get in. How-
ever, Heckel said that he would contact Thomas if he heard
anything on the matter. Heckel never communicated with
Thomas thereafter. Thomas worked for Dane from April
1969 until his discharge on May 14, 1970.
O'Neil testified that before he hired Holston, Akin, Rob-
bins, and Thomas he had called the union hall for employees
and had hired the four nonunion men only when help was not
available. O'Neil stated that normally when he needed help
he hired union men who came to him soliciting work or he
would call such union men at a later time when he had a job
available. When he hired such men he would instruct them
to call the Union and inform it that they were being hired by
O'Neil to work at Dane. Heyser testified that in the 5 years
that Dane had a union contract, O'Neil never called the
Union for men. Board, a business representative of the Union,
testified that he had known O'Neil for 15-20 years and had
talked to him from time to time on the telephone. He states
that he could not recall O'Neil ever asking for men.'
After considering the testimony of O'Neil and the four
abovementioned employees, and other evidence, as well as the
testimony of Heyser and Board, we are satisfied that O'Neil
did call the union hall for men before hiring the four nonun-
ion men. The evidence, moreover, is clear that the Union was
aware that O'Neil had hired permit men (nonunion men)
beginning in 1968, and Board testified, "We knew Dane had
the permit men right along from 1968." Nothing was said to
O'Neil or anyone else about this until the latter part of Janu-
ary 1970.6 Nor did the Union advise the four employees that
° Holston had testified that after he was hired by Dane he had asked
O'Neil about becoming a union member. O'Neil said that it would probably
take a while, probably 6 weeks. Six weeks later Holston agains spoke to
O'Neil about the matter. O'Neil said that Heyser had stated that he was not
taking any new members in at the time. Also, around January 1969, Holston
heard Hellman, his leadman, who was a union member, telephone Heyser,
saying he had three men in the shop whom he wanted Keyser to come over
and talk to about getting in the Union. One of the men was Hellman's son.
Heyser did not come and a week later Hellman called Heyser again but the
latter never came.
5 The union office had a secretary and its three officials were Heyser,
business manager, Board, business representative, and Kelly, business repre-
sentative and president of the Local Union. The two business representa-
tives spent about 60 percent of their time in the field outside the office What
percentage of his time Heyser spent in the office does not appear Of the
foregoing group, Heyser and Board were witnesses at the hearing
6 Nonunion men working for contractors having a contract with the
Union were referred to in the trade by the employers, the men, and the
Union, as permit men. The existence of permit men is indicative of the fact
that there were situations when union men were not available. Thus, during
a contract negotiating session between the Association and the Union on
July 9, 1970, Heyser, after stating that the Union did not like the permit man
(Cont.)
184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they were required, under the contract, to apply for union
membership, and, in fact, when efforts were made by some of
the men, aforedescribed, to secure union membership, they
were flatly told that membership was closed.'
About January 22, 1970, according to O'Neil's credible
testimony, Heyser telephoned O'Neil and told him to lay off
the four permit men because Heyser had four union men for
O'Neil to hire. O'Neil said the men he had were his key men
and, also, that he was not sure that what Heyser wanted done
was legal. However, he said he would let Heyser know-what
he decided. Heyser called the following day and O'Neil siad
he could not lay off the men unless Heyser, in writing, ac-
cepted the responsibility for the action. Heyser threatened to
take away O'Neil's union card as well as the union card of
Culver, the Dane superintendent, and that he would see that
Dane did not get a contract when the new one was nego-
tiated.' Heyser again called O'Neil on January 26 and asked
him if he had given further thought to laying off the permit
men. O'Neil said he had and he had concluded that he could
not do it either legally or morally. Heyser again mentioned
taking O'Neil's union card away and seeing to it that he did
not get a contract. O'Neil states that in these conversations
Heyser did noy say or indicate that the four permit men were
suppose to join the Union nor that union membership was
available to them. In fact, O'Neil told Heyser that the men
were good, competent workers and asked about the possibil-
ity of their getting into the Union. Heyser said he had union
men available for work and that he could not take any more
men in the Union at that time.
Heyser testified that the reason he called on O'Neil to get
rid of the permit men was "because we had people that we
could replace them with that were union members." Heyser
also stated that if the four employees in question were mem-
bers of the Union he would have had no desire to get rid of
them. At another point, Heyser stated that, in speaking to
O'Neil about getting rid of the permit men, he simply wanted
Dane to abide by its contract with the Union. The witness'
position as to what the relationship between the Union and
the employer required is illustrated by the following portions
of Heyser's testimony:
HEYHER: We don't want him [the employer] to hire
permit men.
Q. . . . when an employer requests employees or mem-
bers from the Union, card men [men holding union
membership cards] and the union is unable to furnish
situation, observed that "the International [Union] forces us [the Local
Union] to take in 70 permit men recently [give the permit men union
membership] " In other words, situations arose where permit men were
hired by contractors, but, as the evidence reveals, the Union was not only
opposed to the hiring of permit men but once they were hired the Local
Union was opposed to allowing them to become union members (let alone
requiring them to apply for union membership under the union-shop clause
of the contract) and had to be forced by the International to offer union
membership to permit men.
' "Among the most important of labor standards imposed by the Act
... is that of fair dealing, which is demanded of unions in their dealings with
employees [citation omitted.]. The requirement of fair dealing .. is in a
sense fiduciary in nature and arises out of two factors. One is the degree of
dependence of the individual employee on the union organization, the other,
a corollary of the first, is the comprehensive power of the Union with respect
to the individual." L U.E., Frigidaire Local 801 (General Motors Corp.) v.
N.L.R.B., 307 F.2d 679 (C.A.D.C.), cert. denied 371 U.S. 936. Another
court has stated: "At the minimum, this duty requires that the Union inform
the employee of his obligation.. . " N.L.R.B. v. Hotel, Motel and Club
Employees' Union, Local 568, AFL-CIO (Philadelphia Sheraton Corp.), 320
F.2d 254 (C.A. 3).
' The record reveals that both O'Neil and Heyser were aware that a union
contract was essential for a contractor like Dane working in the building
industry in the area.
them ... then that employer is under liberty to find peo-
ple to put on his payroll.... That is true, isn't it?
A. Our employers [employers under union contract]
don't do that.
[Heyser went on to say that the union could always
furnish men].
Q. But you are saying then, that actually membership
in the Union is a condition of employment which con-
tractors know he has to be a union member before he
gets a job?
A. Yes.
And it is also apparent from Heyser's testimony that his
attempts to cause Dane to terminate the permit men and his
threats to refuse to sign a contract covering Dane were inter-
meshed elements in Respondent's view of its rights and the
obligations of employers in the industry.'
Despite the strong pressure exerted on O'Neil by Heyser in
the aforedescribed January 1970 conversations between
them, O'Neil refused to discharge the four permit men. On
February 11, 1970, Repondent's counsel wrote to the As-
sociation that the Union, because of Dane's failure to abide
by the contract, did not desire to-enter into a new contract
with Dane when the existing contract expired on August 19,
1970. It was further stated that as of August 19, 1970, the
Union disclaims any interest in representing all employees of
Dane.10
On May 4, 1970, O'Neil and his attorney, Borowitz, met
with Heyser, Kelly, Schuler, Board, and the union attorney,
Isenberg, in an effort to work out their differences. Although
Heyser apparently made a general statement to the effect that
the Union wanted O'Neil to abide by the contract, the only
specific topics were the four permit men and the steward
allegations. Heyser said that the problem was that O'Neil had
permit men that he refused to discharge and that he had given
the Union steward a hard time and had forced him to quit."
The principle discussion was about the permit men. O'Neil
said they were his key men and that he had no one to replace
them. Heyser said they had to go because he had qualified
Heyer's relevant testimony is as follows.
Q.... and that's the reason you wanted them out, the difference
between these permit men and the ones you wanted to send in, were
their membership in the Union?
A. Yes
Q. And if these men were members in the Union, you wouldn't of
had any desire to get rid of them?
A No sit.
Q. And that was your position all the way through the bargaining
sessions, is that correct?
A. It is always my position to keep union men working.
Q. Right and this was the reason you didn't want to give O'Neil a
contract was because he, apparently, was working these permit men and
not Union people
A That's true.
° Although there was a joint committee under the Association contract
with the Union that dealt with alleged breaches of contract, the Union did
not seek to cite Dane for the alleged failure to abide by the contract.
" The record is not clear as to the date of the steward matter. The only
evidence regarding the steward is as follows. McHugh, an employee of
Dane, was the union steward at Dane. At some point, Culver, Dane's super-
intendent, had transferred McHugh from welding to assembly and had
placed employee Keller in welding. McHugh complained to O'Neil. The
latter spoke to Culver who said that he had made the transfer because he
considered Keller better qualified in welding. O'Neil accepted the explana-
tion and McHugh quit. As far as appears, nothing occurred thereafter until,
on May 4, 1970, Heyser accused O'Neil of having given the union steward
a hard time.
LOCAL UNION NO. 110, SHEET METAL WORKERS 185
card men who were loafing and they could replace the key
men. He also said that an added reason for getting rid of the
permit men was that a union election was coming up . " It was
understood that O'Neil would have about 2 weeks to replace
the permit men. Regarding the steward matter, according to
Board, O'Neil said that he could not discriminate against a
union steward.
Although no specific agreement was spelled out on May 4,
it appears that O'Neil and Borowitz believed that an under-
standing had been reached and that if O'Neil discharged and
replaced the permit men with union men and did not dis-
criminate against a steward Dane would have a new contract
when the existing one expired." The parties agreed to meet
again on May 14, 1970.
At the May 14 meeting, Borowitz telephoned the Dane
office and gave or confirmed the order to discharge the four
permit men, Holston, Akin, Robbins, and Thomas and they
were discharged on that day. They were replaced by union
men. This discharge action was made known to Heyser and
the other union representatives who were present." Heyser
said that O'Neil has also done some other things that he was
not satisfied with but, admittedly, Heyser did not specify
what these other things were either on May 4 or 14 or at any
other time.15
Under date of May 14, Borowitz wrote to Isenberg, refer-
ring to the May 4 meeting and agreement. The latter, as
stated in the letter, was that, if Dane discharged the four
permit men by May 14 and agreed that any steward selected
by the Union would not be discharged because of his function
or office, Dane would be included in the new Association
contract with the Union. The letter then referred to the meet-
ing "today," May 14, at which Borowitz announced the dis-
charge of the permit men. It was further stated that it was
understood that Isenberg's letter of February 11 to the As-
sociation, above, regarding the disclaimer by the Union of
representing Dane employees, was no longer in effect and that
Dane would be included in the next contract. Written
confirmation of the foregoing was requested. Neither Re-
spondent nor its attorney ever replied to this letter.
On June 29, 1970, the four discharged men filed the instant
charges. Shortly thereafter, Heyser told O'Neil that those
men would not be given union cards but, soon after, in
another conversation with O'Neil, he asked the latter why he
did not rehire the men. O'Neil said it was Heyser who forced
him to discharge them. Heyser said it was costing too much
and, until the thing was settled, O'Neil should rehire them
11 Board testified that "perhaps there was some mention of it" [a union
election] since Board , Kelly, and Heyser were all up for election for their
union positions in June 1970.
13 After McHugh quit, there was no steward. Heyser said that he did not
designate any of the union men at Dane as steward because he did not know
if any of them would make a good steward
14 Beginning about January 1970, when Heyser first demanded that 0'-
Neil terminate the permit men, O'Neil had kept them informed of the
situation and-of his resistance to the demand and of the threats to withhold
the new contract and finally of his succumbing to the demand for their
discharge in order to secure a contract.
11 As we have seen, the only specific derelictions charged to O'Neil were
the failure to discharge the permit men and the matter of the steward this
was true on both May 4 and May 14.
At the [tearing, evidence was adduced that 2 or 3 years ago O'Neil hired
a man as a laborer. On occasion this man also performed sheetmetal work.
When the latter work ran out he was put back to laborer work. While in
Dane's employ the man joined the Union. Apparently there was some
violation of the contract involved in what had been done and O'Neil was
required to make an additional payment to the health and welfare fund,
which he did
and thus hold the cost down.16 On July 15, 1970, the Re-
spondent's attorney wrote to Dane stating that the Union
"has no objection" to the rehiring of the four men so long as
the hiring was not in violation of the contract" On July 22,
O'Neil wrote to the Union, attention of Heyser, confirming
O'Neil's verbal request of July 16 for four sheetmetal work-
ers, plus an additional request for three additional men.
Although the exact date is not entirely clear, O'Neil
rehired the dischargees around the end of July or the first part
of August 1970. About August 5, Heyser called Dane and
asked for O'Neil. Isrigg, Dane's estimator and a member of
the Union, spoke to Heyser and explained that O'Neil was on
vacation. Heyser expressed impatience at O'Neil 's absence,
saying that O'Neil had not done what Heyser had told him
to do. Heyser said that O'Neil was supposed to get the four
men to drop their lawsuit, i.e., the charges against the Union,
and, if O'Neil did not do this, Heyser said that Dane would
not get a contract with the Union. When O'Neil returned
from vacation, Isrigg gave him Heyser's message. O'Neil then
called Heyser. The latter repeated what he had told Isrigg. He
warned O'Neil that unless he saw to it that the four men
dropped the charges, Dane would not get a contract. O'Neil
protested that he had not understood that he was supposed
to do what Heyser was demanding, and he said that it was
not his place to do such a thing and he could not dictate to
the men. Heyser was unyielding and repeated his demand and
the threat about the contract.
In the interim, contract negotiations had commenced be-
tween the Association and the Union. The first meeting was
on July 9, 1970.11 Heyser stated that "the current problem"
with Dane had not been solved and "he would like to exclude
them [Dane] from these negotiations." Chairman Merrick
replied, "We are negotiating for the entire Association.""
Board stated, "We will choose after negotiations. [The Union
will make a decision about Dane after negotiations are con-
cluded]." Heyser said that although the Union would
"negotiate the contract, this does not necessarily include
Dane Sheet Metal, Inc."" Various contract matters and mat-
ters of mutual interest were then discussed, including wages
and other proposals.
Two other negotiating sessions were held on July 15 and
August 11, 1970. By the latter date, all terms of the contract
were agreed on and in the August 11 minutes the contract
articles, as agreed on, were set forth as they would appear in
the contract itself. For the first time since July 9, the August
11 minutes reflect a reference to Dane. This was at the end
of the session after all matters had been agreed on. Board
stated that "this contract would not necessarily include Dane
Sheet Metal, Inc., and that a decision on his [its] status will
be determined by August 20, 1970." Merrick replied that he
" The allusion to cost, no doubt, referred to potential backpay liability
as a result of the charges filed with the Board and rehire would stop the
running of any backpay obligation
1' Covering copies were sent to the dischargees
11 Heyser, Kelly, Board, and Burns represented the Union. Merrick,
Griffin, Wagner, and Groves represented the Association, of which, of
course, Dane was a member. Merrick chaired all the meetings.
11 At a committee meeting between the Association and the Union on
June 10, 1970, Merrick had stated that he understood that the problem
between the Union and Dane had been resolved. Heyser said the problem
still existed. Merrick replied that he desired to know the union position
regarding the fact that in the coming contract negotiations the Association
would be negotiating for its total membership , including Dane . Heyser said
"that the Union would not refuse to begin contract negotiations or to con-
tinue contract negotiations because of Dane Metal, Inc , being a member of
the KSMCA [the Association]."
10 The quotes and contents of the sessions are from the official minutes
of the meetings taken by Determann, executive secretary of the Association.
The accuracy of the minutes is not disputed.
186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had stated at the July 9 meeting that the Association was
negotiating "for the entire Association ." Board said that the
problems between the Union and Dane still exist "and unless
these problems are resolved by August 20, 1970 , the Union
would not sign a contract with Dane Sheet Metal , Inc." The
meeting then concluded.21
Determann testified without contravention that the As-
sociation has authority to negotiate a contract on behalf of its
members and the latter are bound by such contract and have
no option not to adopt the contract thus negotiated.
The customary practice of the Association and the Union
is to finalize the conclusion of negotiations by signing the
minutes and this is regarded as a formality if agreement has
been reached , as on August 11, 1970 . The Union has signed
the July 9 and 15 minutes but, at the time of the hearing, had
not signed the August 11 minutes . As soon as the last-men-
tioned minutes are signed the contract will be printed. The
new contract has been placed in effect and the parties are
operating under the new wage structure and other provisions.
According to Determann, uncontroverted , Heyser made the
statement that "everybody was working. There wasn't any
problem."
Dane has received from both the Association and the
Union a schedule of the new contract wage rates and the
amount to be paid by employers to the various funds provided
for in the Contract . 22 Dane has been paying the new wage
rates as well as the prescribed fund payments and considers
itself to be operating under the Association contract with the
Union.
Despite the foregoing facts, the Respondent is apparently
refusing to sign the final minutes of the negotiating meeting
setting forth the terms of the contract with the Association.
Both parties have recognized that such signing has been cus-
tomarily regarded as the final step in negotiations and as a
necessary prerequisite before the contract appears in printed
form. Testimony of Heyser indicates that the Respondent's
failure or refusal to sign the minutes of final agreement with
the Association is attributable to the Union 's differences with
Dane. Heyser does not dispute the fact that final agreement
had been reached with the Association and he admits that at
the time agreement was reached on August 11, 1970, his
position "was still flexible as to Dane Sheet Metal" and that
he "always had an open mind on it ." This flexibility and
openmindedness , Heyser made clear, referred to the matter
of whether the Union would or would not contract with
Dane; i.e., include or exclude Dane in or from the contract
that was being negotiated and finally had been negotiated
with the Association . However, at the instant hearing in
November 1970, Heyser went on to state that his, the
Union 's, position had changed as the result of the fact that
Dane had filed a charge against the Union,23 and, in Heyser's
words, "you don't do business with people who sue you.
[Referring to the charge and the instant litigation resulting
therefrom]."
" As appears from the description of Heyser 's conversations in August
with Isrigg and O 'Neil, it is our opinion that the "problem " that the Union
had with Dane at this stage was O'Neil 's refusal to have the discharges drop
their charges against the Union as demanded by Heyser
12 The funds include the union health and welfare fund , pension fund;
vacation fund; and industry fund.
23 One of the instant charges , filed by Dane on August 18, 1970, alleged
that the Union had refused to sign a contract with Dane although the
contract had been agreed upon with the Association of which Dane was a
member.
Conclusions
In our opinion, the evidence which we have set forth in
detail fully warrants the conclusion that Respondent at-
tempted to cause and did cause Dane to discharge Holston,
Robbins, Akin , and Thomas in violation of Section 8(b)(2)
and (1)(A) of the Act and I so find . Without reiterating the
evidence, it is clear that the four men were discharged because
they were not members of the Union and because Respondent
wanted them replaced by union members and such replace-
ment was made. Such defenses as Dane's alleged failure to
call the union or the alleged failure of the men to apply for
union membership were, in our opinion, demonstrably lack-
mg in merit . For instance, to mention one example from
abundant evidence, Heyser expressly admitted that if the four
men had been union members he would not have sought to
replace them although , presumably , they had been allegedly
hired by Dane without the latter having first called the Union.
As to the matter of application for membership in the Union
by the four men , I am satisfied that it was the fact and it was
made clear that the Union did not want them as members and
that membership was not available to them.24
Is is my opinion that the Respondent did not make a timely
and unequivocal withdrawal from the multiemployer As-
sociation unit . 25 I doubt, in fact, that there was any with-
drawal , and any purported withdrawal was certainly equivo-
cal as late as the end of the final negotiating meeting with the
Association , at which agreement on all contract terms had
been reached, on August 11, 1970. Even on that late date, the
equivocation continued , since the Union stated that the mat-
ter of its signing a contract with Dane would remain in doubt
depending on whether the Dane matter was "resolved by
August 20 , 1970." As a matter of fact, Heyser made it clear
that the purported withdrawal from the unit was at,all times
equivocal in view of his testimony that he had an open mind
regarding Dane's inclusion in the contract until Dane filed a
charge on August 18, 1970 . At that point , for the first time,
the union position became firm against Dane securing a con-
tract.
On the evidence, I find that Respondent has refused to
bargain with the Association and with Dane as a member of
the Association by refusing to complete and sign the contract
minutes and contract agreement reached with the Associa-
tion, all pursuant to its refusal to accord Dane the same
contractual status as other members of the multiemployer
bargaining unit represented by the Association . " Such con-
duct in my opinion is in violation of Section 8(b)(3) of the Act
and I so find.
2 1 Events subsequent to the discharge certainly do not alter the facts
preceding and including the actual causation of the discharges . After their
discharges, the men made further efforts to secure union membership It was
only after they wrote to the International Union and a representative of that
Union came to Louisville and, in effect; ordered the Local Union to afford
the men an opportunity to become members that there was some response
on the subject . Heyser advised the men that the local union 's coordinator
of training would give them a test to see if they were qualified sheetmetal
workers Because of various other remarks by Heyser on the matter , the men
were distrustful of the prospective test and decided not to take it and filed
the instant charges instead.
" Pacific Coast Association of Pulp and Paper Manufacturers, 163
NLRB 892
21 H. J. Heinz Co. v NLR.B., 311 U S 514, 526
LOCAL UNION NO. 110, SHEET METAL WORKERS 187
CONCLUSIONS OF LAW
1, Respondent, by attempting to cause and causing Dane
to discharge Holston, Robbins, Akin, and Thomas, because
of their nonmembership in the Union, in violation of Section
8(a)(3) of the Act, has violated Section 8(b)(2) and (1)(A) of
the Act.
2. Respondent has refused to bargain in violation of Section
8(b)(3) of the Act by refusing to complete and sign the con-
tract agreement reaching on August 11, 1970, with the As-
sociation.
THE REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices, described above, it will be recommended
that an order issue directing that Respondent cease and desist
therefrom.
In addition, certain affirmative action by Respondent is
necessary in order to remedy the effect of the unfair labor
practices. It is recommended that Respondent be ordered to
make whole Holston, Robbins, Akin, and Thomas for any
loss of earnings they may have suffered by reason of their
discharges for the period from May 14, 1970, to the date of
their reinstatement which was evidently the end of July or
early August 1970, with interest at 6 percent and in accord-
ance with the Isis formula,27
The discharged employees, all of whom have been rehired
or reinstated, are to have the seniority and other rights and
privileges as of the dates of their original employment in 1968
and 1969, respectively. Since, under the contract then in effect
until August 19, 1970, Dane, the employer, was required to
make and did make monetary payments of specified amounts
per hour worked by each employee to such contract funds as
health and welfare, vacation, and pension, and since, presum-
ably, such payments were not made for the discriminatees
from May 14 to approximately the end of July 1970, because
of their discriminatory discharge, caused by Respondent, it
will be recommended that their status in such funds be res-
tored to what it would have been but for their illegal dis-
charge, by Respondent making, if necessary, any retroactive
payments to such funds as Dane would have made on behalf
of the discriminatees but for their discharges.
With respect to the refusal to bargain, it will be recom-
mended that Respondent sign the minutes of the meeting
containing the contract agreed on by the Association and the
Union and any other contract documents which the parties
have customarily executed in past negotiations to finalize
27 F. W. Woolworth Company, 90 NLRB 289; Isis Plumbing & Heating
Co., 138 NLRB 716 Respondent's counsel advised Dane, in writing, on July
16, 1970, that the Union had no objection to Dane "employing" the four
men "so long as your hiring ... " of these men does not violate the existing
contract. Because of the latter condition, Dane, not unreasonably, evidently
felt obliged to request employees from the Union as required by the con-
tract Dane wrote to the Union on July 22, 1970, requesting four sheetmetal
workers, plus three more such workers, or a total of seven O'Neil's under-
standing was that he could then hire back the four dischargees who would
be counted as four of the seven men requested from the Union Heyser,
however, sent four men to Dane and when Dane protested that this left only
room for three of the four dischargees Heyser told him to take back the four
dischargees notwithstanding, Under these circumstances, therefore, we do
not consider July 16, 1970, the date of receipt ofthe union letter to Dane,
as the appropriate cut of date on the backpay obligation. The letter had not
stated that the Union had no objection to the immediate reinstatement of
the dischargees, which was their legal right as discriminatees, and which
statement would have tolled the running of backpay ; but, instead, it was
stated that there was no objection to Dane's employing the men as long as
they were hired in accordance with the contract. Dane then proceeded
accordingly and requested seven men from the Union pursuant to the hiring
provisions of the contract.
their contract, so that, for the contract term of August 20,
1970, to August 19, 1973, there will be in all respects a fully
executed contract between the Association on behalf of its
members, including Dane, and the Union.
The recommended Order is:29
ORDER
Local Union No. 110, Sheet Metal Workers' International
Association of Louisville, Kentucky, AFL-CIO, its officers,
agents, and representatives, shall:
1. Cease and desist from:
(a) Attempting to cause or causing Dane Sheet Metal, Inc.,
or any other employer to discriminate against an employee or
employees in violation of Section 8(a)(3) of the Act.
(b) In any like or related manner, restraining or coercing
employees in the exercise of their rights as guaranteed in
Section 7 of the Act.
(c) Refusing to bargain with Kentucky Sheet Metal Con-
tractors Association representing employers, including Dane
Sheet Metal, Inc., in an appropriate bargaining unit,
2. Take the following affirmative action to effectuate the
policies of the Act:
(a) Make whole for any loss of earnings and contract fringe
benefits, in the manner set forth in this Decision under the
caption, "The Remedy," the following employees:
David C. Holston; Carl E. Thomas; Raymond A. Robbins;
and Terrace L. Akin.
(b) Sign and execute any and all documents necessary for
the finalization of the contract between Kentucky Sheet
Metal Contractors Association and its members, including
Dane Sheet Metal, Inc., and us, for the contract period Au-
gust 20, 1970, to August 19, 1973.
(c) Post at its premises and office in Louisville, Kentucky,
copies of the attached notice marked "Appendix";29 and post
copies of the aforesaid notice at the premises of Dane Sheet
Metal, Inc., in Louisville, Kentucky, if the Company is will-
ing. Copies of the notice, on forms provided by the Regional
Director for Region 9 of the Board, after being signed by the
Respondent's authorized representative, shall be posted by it
for a period of 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees and
members are customarily posted. Reasonable steps shall be
taken by Respondent to ensure that said notices are not al-
tered, defaced, or covered by other material.
(d) Notify the aforesaid Regional Director, in writing,
within 20 days from the date of receipt of this Decision, what
steps Respondent has taken to comply therewith.30
28 In the event no exceptions are filed as provided by Section 102.46 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
29 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board "
30 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read.
"Notify the Regional Director for Region 9, in writing, within 20 days from
the date of this Order, what steps the Respondent has taken to comply
herewith."
188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found , after a trial,
in which all parties were represented by their attorneys, that
we have violated Federal Labor Law by attempting to cause
and causing Dane Sheet Metal , Inc., to discharge four em-
ployees and that we also refused to bargain with the Ken-
tucky Sheet Metal Contractors Association and Dane Sheet
Metal , Inc., by refusing to sign an agreed -upon contract.
WE WILL NOT cause or attempt to cause Dane Sheet
Metal, Inc., or any other employer to discriminate
against an employee or employees in violation of Section
8(a)(3) of the National Labor Relations Act.
WE WILL NOT, in any like or related manner, restrain
or coerce employees in the exercise of their rights as
guaranteed by the National Labor Relations Act.
WE WILL NOT refuse to bargain and to sign a contract
with Kentucky Sheet Metal Contractors Association,
representing employers in an appropriate bargaining
unit , including Dane Sheet Metal, Inc.
WE WILL pay David C. Holston, Raymond A. Rob-
bins, Carl E. Thomas, and Terrance L. Akin the amount
of earnings and benefits each of them may have lost by
reason of our causing their employer, Dane Sheet Metal,
to discharge them illegally on May 14, 1970.
WE WILL sign and execute all necessary documents
for the finalization of the contract between Kentucky
Sheet Metal Contractors Association and its members,
including Dane Sheet Metal , Inc., and us, for the con-
tract period of August 20, 1970, to August 19, 1973.
LOCAL UNION
No. 110, SHEET
METAL WORKER'
INTERNATIONAL
ASSOCIATION OF
LOUISVILLE,
KENTUCKY,
AFL-CIO
(Labor Organization)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by any-
one.
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 compliance with
its provisions may be directed to the Board's Office, Room
2407, Federal Office Building, 550 Main Street, Cincinnati,
Ohio 45202, Telephone 513-684-3686.