S & M Sheet Metal, Inc.

National Labor Relations Board - Board Decisions

Nov 30, 1972

200 N.L.R.B. 634 (N.L.R.B. 1972)

634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
S & M Sheet Metal, Inc and Sheet Metal Workers,
Local 9, AFL-CIO Case 27-CA-3373
Upon the entire record in the case, and from my
observation of the witnesses, I make the following
November 30, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
KENNEDY AND PENELLO
On May 16, 1972, Administrative Law Judge'
Martin S Bennett issued the attached Decision in
this proceeding Thereafter, the Charging Party and
General Counsel filed exceptions and supporting
briefs, and Respondent filed an answering brief
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 2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby is,
dismissed in its entirety
i The title of Trial Examiner was changed to Administrative Law
Judge effective August 19 1972
2 In affirming the Administrative Law Judge s dismissal of the 8(a)(5)
and (1) allegations based on Respondents withdrawal from a statewide
multiemployer unit we note that in the special circumstances of this case
Respondents action was lawful despite the absence of notification to the
Union The withdrawal occurred prior to the commencement of negotia
tions and there was no history of bargaining in the newly established
statewide unit Accordingly unlike the situation that prevails in the case of
established multiemployer units (Retail Associates Inc 120 NLRB 388, 391)
we would not here require notice to the Union of an intent not to participate
in or be bound by bargaining which had not yet commenced in a newly
established multiemployer unit
Member Kennedy does not join in the observations contained in this
footnote
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MARTIN S BENNETT, Trial Examiner This matter was
heard at Denver, Colorado, on March 21 and 22, 1972 The
complaint, issued November 30, 1971, later amended, and
based on a charge filed October 28, 1971, by Sheet Metal
Workers, Local 9, AFL-CIO, herein the Union, alleges
that Respondent, S & M Sheet Metal, Inc, had engaged in
unfair labor practices within the meaning of Section 8(a)(5)
and (1) of the Act Briefs have been submitted by the
General Counsel and Respondent
200 NLRB No 94
FINDINGS OF FACT
I JURISDICTIONAL FINDINGS
S & M Sheet Metal, Inc, a Colorado corporation
maintaining its principal office and place of business at
Colorado Springs, Colorado, is engaged in the sale and
service of heating and air-conditioning equipment It
annually purchases and directly receives goods and
materials valued in excess of $50,000 from enterprises
located within the State of Colorado which in turn receive
said goods and materials directly from points outside that
State I find that the operations of Respondent affect
commerce within the meaning of Section 2(6) and (7) of
the Act
II THE LABOR ORGANIZATION INVOLVED
Sheet Metal Workers, Local 9, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act
III THE UNFAIR LABOR PRACTICES
A Introduction, the Issues
Respondent is a small sheet metal contractor in
Colorado Springs, Colorado Bargaining for the industry in
this State has heretofore been carried out by the Union
with a number of employer associations In Colorado
Springs, this entity is Sheet Metal and Air Conditioning
Contractors Association of Colorado Springs, herein
Springs Interest developed among a number of contractors
in bargaining on a statewide basis and a new statewide
association, Colorado Association of Sheet Metal and Air
Conditioning Contractors, herein Colorado, was formed
On March 30, 1971, Respondent signed a membership
agreement with Colorado which authorized the latter to
represent it in statewide collective bargaining The circum-
stances under which this was signed are attacked by
Respondent herein Thereafter, in September, after negoti-
ations had commenced on April 28, a statewide agreement
was executed retroactive to July 1
The General Counsel alleges that Respondent attempted
to withdraw from statewide collective bargaining at an
inappropriate time, namely, after the commencement of
negotiations on April 28, and, therefore, unlawfully refused
to recognize the Union as the representative of its
employees under this new statewide agreement He further
alleges that Respondent unlawfully bargaimned directly
with his own employees Respondent contends that it
effectively rescinded its bargaining authorization prior to
the commencement of bargaining, and further urges that
there are distinct and unusual circumstances present in this
case which warrant dismissal N L R B v Spun Jee Corp,
385 F 2d 379 (C A 2), and US Lingerie Corp, 170 NLRB
750 A history of the respective organizations and Respon-
dent's participation, or lack thereof, in them is of interest
S & M SHEET METAL, INC 635
B History of Springs and Colorado
Springs was formed in 1957 and its membership has
ranged from 7 to 10 Respondent went into business
sometime in 1965 and thereafter joined Springs Van
Mundy, president of Respondent, initially attended almost
all meetings, but uncontrovertedly testified that he never
paid any initiation fee or annual dues The parties also
stipulated that he never paid any dues from 1967 through
March 1971 As of January 1971, the dues were $120 per
annum and the initiation fee was $50 for a new applicant
There is no evidence that Respondent was pressed for
payment of these sums and the inference is warranted on
this record that this was overlooked in order to keep
Respondent, a small shop, active in Springs
The most recent contract between Springs and the Union
covered the period from July 1, 1969, through June 30,
1971, and Mundy was on the employer negotiating
committee Mundy, who operated under a previous
contract, was brought a copy to sign, did so, and lived up
to its terms, including payment of fringe benefits to
appropriate funds through June 30 This contract covered
work in I1 named counties in the State, manifestly far less
than a statewide unit, and apparently was one of a number
of such agreements in the State between the Union and
employer associations
Mundy testified that he lost interest in Springs because
he deemed its decisions to be tailored to the larger
employers in the area Also, because of poor business, he
became interested in going open shop and this, to some
extent, paralleled the formation of Colorado i
As for Colorado, two leading proponents thereof in
Colorado Springs were Secretary Richard Steward and
President George Peacore of Springs, both sheet metal
contractors in the area Thus, in December 1970, Steward
wrote to members of Springs and invited them to a January
12, 1971, meeting in Colorado Springs Mundy was notified
thereof and did attend It was agreed to meet with a sister
employer group in Denver to explore statewide bargaining
on wages and fringes, and also the concept of bargaining
locally on local working conditions A three-man commit-
tee, including Van Mundy and Steward, was appointed for
this purpose The committee met with Denver employers
but Mundy did not make the trip
Springs held its next meeting on March 9, and the two
representatives ,who went to Denver reported that all was
progressing well, Mundy was in attendance on this
occasion On March 13, the constitution and bylaws of
Colorado were signed by all the employer associations in
the State, some seven to nine in number including Springs,
and on May 5 the Union was sent a list of employers who
had signed authorizations to join Colorado and be bound
by it for the purposes of collective bargaining Respondent
was included on this list and this, of course, is predicated
upon the March 30 authorization form it executed which is
treated below As noted, bargaining started on April 28
It may be noted that Springs sent in a dues check in
behalf of all its members to Colorado and this was paid
from its treasury, as did other associations Employers not
represented by an association individually sent in checks
based on the number of employees on their payrolls One
can only assume that the Springs check covered Respon-
dent There is no evidence that other members of Springs
did not pay their dues and, as stated, Springs made this
payment from its treasury
C The March 30 Application
Peacore visited Mundy on March 30 at his shop and
persuaded him to join Colorado Peacore had held
previous discussions with Mundy over the previous 9 to 12
months and was aware Mundy had in mind going open
shop As Peacore testified, in the fall of 1970 Mundy
opined that he would resign from Springs because he was
not operating profitably and Springs was dominated,
allegedly, by the larger shops Peacore had tried, prior to
March 30, to sell Mundy on the merits of statewide
bargaining and Mundy had expressed reluctance to remain
in Springs 2
The form signed on March 30 states as follows
MEMBERSHIP AGREEMENT
Colorado Association of Sheet Metal and Air Condi-
tioning Contractors
As a member in good standing of Colorado SMACC, I
hereby agree to abide by the following conditions of
membership
1 To accept and comply with the Constitution and
By-laws of this Association
2 To pay full dues in the amount provided by the
Board of Directors
3 Hereby to become and remain a member of the
Colorado statewide multi-employer bargaining unit
represented by this Association for the purpose of
collective bargaining with local unions having junsdic-
tion of sheet metal work in our working area Without
in any way detracting from the foregoing warrant for
statewide collective bargaining, it is understood that
the undersigned firm may or may not be a member of a
local association of employers engaged in the sheet
metal industry and that the right is reserved to bargain
individually or as a member of such local association
with the local union in our working area relative to
local conditions which may appropriately supplement a
statewide agreement The undersigned firm agrees to be
bound by the determination of the Association as to
the subjects which are appropriate for such local
supplemental agreements without conflicting with a
statewide preferential contract clause (This paragraph
shall not apply where a member does not recognize or
his employees are not represented by local unions for
the purpose of collective bargaining)
4 To conscientiously live up to the standards and
ethics maintained by the Association This membership
agreement shall continue in effect from year to year
unless and until (i) terminated by either the under-
i As will be set forth there is testimony that his three journeymen
proposed to him that he operate in this manner and they are now his
superv sors in a drastically changed open shop
2 As noted Mundy s ostensible membership in Springs is clouded by the
absence of dues payments for a number of years
636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
signed firm or the Association, upon written notice at
least ninety (90) days prior to the anniversary date of
the working agreement with the Union, or (u) the
undersigned firm discontinues active operations in the
business of sheet metal and air conditioning contract-
ing
5 I am presently a member of the following sheet
metal contractors association
Sheet Metal and Air Conditioning Contractors, Assoc of
Colorado Springs
In evidence of this agreement, I hereby affix my
signature
Dated this 30 day of March, 1971
Firm S & M Sheet Metal
By /s/ Van A Mundy, Jr, Pres
COLORADO ASSOCIATION OF SHEET METAL AND AIR
CONDITIONING CONTRACTORS
By /s/ R G Steward
Authorized Agent 3
On Respondent's version, Mundy was hard at work
preparing a bid due that day and was pressured to sign by
Peacore Mundy is corroborated herein by his secretary at
the time According to Peacore, he persisted in overcoming
Mundy's admitted reluctance to sign and was present in
Mundy's office for approximately one-half hour Mundy
placed the time as 15 to 25 minutes and his secretary,
Patricia Ballensky, estimated that 15 or 20 minutes was the
length of the visit
While Respondent's testimony is to the general effect
that Mundy yielded to the solicitation in order to get rid of
Peacore and was uncertain what he was signing, I find that
he knew what was going on This is particularly so as
Mundy had been present during the formative steps in
Colorado Springs airected toward bargaining through
Colorado and had been appointed to a committee to go to
Denver for this purpose Moreover, Mundy was manifestly
not an unintelligent witness
According to Peacore, he stressed the desirability of a
statewide association and Mundy again stated his reluc-
tance to do so because he might be going open shop
Peacore admittedly knew of Mundy's reluctance to join a
statewide association He denied telling Mundy that he
could sign and get out at any time
Mundy testified that Peacore said he wanted his
signature as a favor to strengthen agreements with the
Union and Mundy responded that he did not belong to the
"Association " Peacore assured him that he could with-
draw later if he changed his mind To Mundy, his reference
to the association was to Springs According to Mundy's
secretary, Peacore had told Mundy that his signature was
needed, that the forms were not binding, and that he could
later reverse his decision She did endeavor to portray
Mundy as not reading the form, but a consideration of her
testimony reveals that she, although close by, was not in
too good a position, physically, to observe what was going
on
I find that Mundy was preoccupied with the preparation
of his bid, but did give general attention to and read what
was being presented to him, doing more than merely
signing the form to get rid of Peacore Stated otherwise, I
find that the truth runs between both versions 4
D The April 7 Resignation
As found, Peacore had been aware of Mundy's desire to
go open shop for some time and, in fact, Mundy had so
expressed himself on March 30 before signing the member-
ship application for Colorado Mundy and then employee
and now Supervisor Ogden agree that around the first of
April Ogden spoke with Mundy Ogden stated that he was
aware of the precarious financial position of Respondent,
that he had spoken with his two coworkers, and that they
all suggested going open shop According to Mundy's
uncontroverted testimony, the other two employees, Finch
and Brant, approached him later that day to the same
effect Mundy agreed to operate on this basis in the future
but only if the men became partners and financially
involved This was tailored to action after June 30 when
the Springs contract expired It is clear, and I find, that this
led to the step Mundy next took
Mundy and his then secretary, Ballensky, agreed that
shortly after March 30 Mundy directed Ballensky to
prepare a letter wherein he resigned from the "associa-
tion " Ballensky then drafted the following letter on
Respondent's letterhead, a carbon copy of which is in
evidence
April 7, 1971
Sheet Metal Contractors Association Colorado Springs,
Colorado
Attention Mr George Peacore
Dear Sir
I Van A Mundy Jr am sending this letter informing
you that I am resigning from the Sheet Metal
Contractors Association This is your official notice
and will take effect as of the date of this letter
Sincerely yours,
/s/ Van A Mundy, Jr
Later that day, Ballensky asked Mundy where to send
the letter and she complied with his instructions to send it
to Peacore at Weather Engineers, the firm Peacore headed
Ballensky duly mailed the letter to the address of the latter
firm, directed to the attention of Peacore Receiving no
reply to the letter Mundy, as he testified, telephoned
Peacore approximately I week or 10 days later 5
It is obvious that the contact by his employees triggered
this move by Mundy Indeed Mundy told Peacore that he
3 Mundy was uncertain whether the name of Springs was on the form at
the time he signed although Peacore thought that it was Steward s
signature was affixed at a later date apparently as an agent for Colorado It
should also be noted that the printed form is in blue type and that the name
of Springs is an insertion by typewriter
4 This is deemed not unlike the reluctant signature of a union
authorization card
5 Mundy also testified at one point that this call was placed on April 8 a
manifest inconsistency On the other hand Peacore was very vague in this
area He recalled only a call from Mundy that he had resigned But he
admitted herein that he contacted Secretary Steward of Springs to ascertain
whether the latter had received the letter Steward had not
S & M SHEET METAL, INC 637
had thought the matter over and that the men had
approached him with the concept of leaving the Union 6
Mundy told Peacore he had sent him a letter about
resigning and Peacore stated he had not received it Mundy
asked Peacore to check and the latter said he would check
with Secretary Steward Mundy told Peacore that in the
letter he had said he was "resigning any obligation" or that
"I want out " Peacore again agreed to contact Steward and
said there would be no problem
Not having heard from Peacore, Mundy telephoned
Steward and told him that he had written a resignation
letter Steward said he was unaware of any letter and told
him not to worry, but did say there was a "time limit" in
getting out of the association Steward agreed to contact
Mundy but never did Mundy telephoned Steward a
second time around the first of May or May 5 and inquired
as to any developments Steward replied that Mundy was
in trouble because there was a 90-day notice clause in the
agreement 7
Steward recalled that Peacore called him sometime in
May and asked if he had received a letter from Mundy
resigning from Springs Steward replied that he had not
and said that negotiations had commenced (on April 28) I
credit Mundy herein as to the dates The situation is a close
one because, on Steward's testimony, Mundy may have
been a little late in the day On the other hand, Peacore's
vague testimony leads me to credit Mundy as to the time of
his contacts of the former A manufactured carbon copy of
the letter is readily capable of production, but it is
uncontroverted that Mundy put Peacore on notice as to his
action and, on this record , timely so
Mundy was asked if by this letter he intended to get out
of Springs He replied only that he wanted to tell Peacore
that he wanted out of whatever he was bound to and he
assumed it was the local association This was not an
unreasonable procedure President Peacore of Springs had
been the basic contact of Mundy in connection with the
formation of Colorado and Secretary Steward of Springs,
together with Peacore, were the primary local motivating
factors Also, Mundy knew no Colorado officials Stated
otherwise, Mundy attempted to and ultimately did contact
the only two persons he knew to be involved in the new
bargaining group which was in the formative stages
E Subsequent Developments
On May 5, Steward, as chairman of the negotiating
committee for Colorado, sent the Union a list of the
contractors who had authorized Colorado to bargain for
them, the list included Respondent
On June 28, documents were prepared setting up a new
business format at Respondent These made each of the
three employees a supervisor with the right to hire and fire
and were executed early in July by each employee and
Mundy Each of the three was given a small stock interest
6 Although the three men did hedge their bets by continuing union
membership through the end of the year
1 This would seem to be item 4 which maintains membership in
Colorado from year to year absent a 90-day written notice prior to the
anniversary date of the union contract or the employer discontinuance of
business I deem this not pertinent herein
8 On July 15 the three employees of Respondent had written to the
and, at the end of the year , 10 percent of net profits was to be
assigned for the purpose of purchasing each an interest in
the business Each of the three now has a staff of
employees varying in number , and is assigned to a segment
of the business Mundy also advised Business Agent
Easom of the Union at this time that he was going open
shop
Mundy was still uncertain of his legal position Being
invited by Peacore to attend a meeting of Springs on July
22, he did so after contacting counsel He delivered the
following letter to the meeting on this occasion and
promptly departed
July 22, 1971
Colorado Association of Sheet Metal and Air Condi-
tioning Contractors
Gentlemen,
I Van A Mundy Jr of S & M Sheet Metal Inc 3608
North Stone Ave Colorado Springs, Colorado, do
hereby respectfully submit my resignation to the
Colorado Association of Sheet Metal and air condition-
ing contractors
Due to the fact that all union personell of S & M
Sheet Metal have requested withdrawall card from the
local union
Thus it is apperant that I shall not be able to abide
by the conditions set forth in the membership agree-
ment [Sic]
Sincerely yours,8
After the execution of the Colorado contract in Septem-
ber, Respondent was asked to sign , and refused on the
basis that he did not recognize that contract He has since
refused to honor or comply with it
F Analysis and Conclusions
As stated, Respondent did attempt to get out of the
Colorado bargaining picture prior to April 28 when
bargaining commenced On this record, his April 7 letter
went astray, but I find that the local representatives of
Colorado, namely Peacore and Steward, were on notice of
the content of the letter and timely so prior to the start of
bargaining To ignore this letter and the ensuing telephone
communications , the latter not disputed , and to thus fault
Respondent on the basis of lack of timely withdrawal
would, in my view , elevate form over substance
While Respondent was not an innocent babe -in-the-
woods, the fact is that he had long expressed himself to
Peacore in favor of going open shop and, indeed , had done
so on March 30, at the time he had reluctantly signed the
authorization form I find, therefore, that Respondent
withdrew from Colorado prior to the start of bargaining
and shall recommend dismissal of this allegation of the
complaint 9
As for the allegation that Respondent negotiated directly
Union pointing out that they had become financially involved in business
and requested withdrawal cards as well as vacation fund payments As
noted they did hedge and later in the year made dues payments to cover
them through the calendar year
9 Respondents answer disputes majority representation of the Union
among the members of Colorado I doubt that the May 5 notification to the
Union by Colorado of the firms it represented constitutes adequate proof of
(Continued)
638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with his employees on June 28, this, too, must fall The
contract was executed after the expiration of the Springs
contract on June 30 with employees who had been made
supervisors The record is silent as to the union affiliation,
if any, of new hires Stated otherwise, the presumption of
continuing majority would not seem to exist under the
circumstances of this case
Assuming it did apply here, it could support a refusal to
bargain allegation for the Union based on a unit of
Respondent's employees only But the complaint is
phrased solely in terms of a refusal to bargain as part of the
statewide unit, and there was not an attempt by the Union
to seek bargaining on a local basis only
Stated differently, I do not have before me an allegation
that the Union attempted to bargain with Respondent
individually which conceivably it might have done by
seeking a contract similar to the Colorado contract I find
therefore that Respondent has not engaged in unfair labor
majority representation of the employees of the members of Colorado for
the purposes of Section 9(a) of the Act This record discloses only the union
membership of Respondent s employees In any event in view of the above
disposition I deem it unnecessary to treat with this point
10 In view of this disposition I deem it unnecessary to treat with
Respondents contention that the Colorado contract is invalid under the
Colorado Labor Peace Act because a referendum for a union-security
practices within the meaning of Section 8 (a)(5) and (1) of
the Act 10
CONCLUSIONS OF LAW
I S & M Sheet Metal, Inc, is an employer whose
operations affect commerce within the meaning of Section
2(6) and (7) of the Act
2 Sheet Metal Workers, Local 9, AFL-CIO, is a labor
organization within the meaning of Section 2 (5) of the Act
3 Respondent has not engaged in unfair labor prac-
tices within the meaning of Section 8(a)(5) and ( 1) of the
Act
Upon the foregoing findings of fact , conclusions of law,
and the entire record , and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended 11
ORDER
The complaint is dismissed in its entirety
agreement had not been conducted
ii In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board the findings,
conclusions and recommended Order herein shall as provided in Sec
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