Sheet Metal Workers Int'l Assn., Local 141, Etc.

National Labor Relations Board - Board Decisions

Jun 25, 1965

153 N.L.R.B. 537 (N.L.R.B. 1965)

SHEET METAL WORKERS INT'L ASSN., LOCAL 141, ETC. 537
APPENDIX 1
NOTICE TO ALL MEMBERS
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby give notice that:
WE WILL NOT induce or encourage individuals employed by Lantz Construc-
tion Co., or by any other person engaged in commerce or in an industry affecting
commerce, to engage in a strike, or a refusal to perform any services, where an
object thereof is to force or require Lantz Construction Co., or any other person
to cease doing business with Bob & Don Plumbing & Heating Co.
WE WILL NOT threaten, coerce, or restrain Lantz Construction Co., or any
other person engaged in commerce or in an industry affecting commerce, for
any object set forth in the preceding paragraph.
PLUMBERS & STEAMFITTERS LOCAL No. 347, UNITED ASSOCIATION
OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPE
FITTING INDUSTRY OF THE U.S. AND CANADA, AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
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 employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, 612
Lincoln Building, 208 SW. Fifth Avenue, Portland, Oregon, Telephone No. 226-
3361.
APPENDIX 2
NOTICE TO ALL MEMBERS
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby give notice that:
WE WILL NOT induce or encourage individuals employed by McGilchrist and
Sons, or by any other persons engaged in commerce or in an industry affecting
commerce to engage in a strike, or a refusal to perform any services, where an
object thereof is to force or require Lantz Construction Co., or any other per-
sons to cease doing business with Kizer Sheet Metal.
WE WILL NOT threaten, coerce, or restrain McGilchrist and Sons, or any other
persons engaged in commerce or in an industry affecting commerce for any
object set forth in the preceding paragraph.
SHEET METAL WORKERS INTERNATIONAL ASSOCIATION
LOCAL No. 16, AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
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 employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, 612
Lincoln Building, 208 SW. Fifth Avenue, Portland, Oregon, Telephone No. 226-
3361.
Sheet Metal Workers International Association , Local No. 141,
AFL-CIO, and its agent , Raymond Bickers and the American
Sign Company. Case No. 9-CB-1200. June 25, 1965
DECISION AND ORDER
On April 2, 1965, Trial Examiner Samuel Ross issued his Decision
in the above-entitled proceeding, finding that Respondent had engaged
153 NLRB No. 50.
538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in and was engaging in certain unfair labor practices and recommend-
ing that it cease and desist therefrom, and take certain affirmative
action, as set forth in the attached Trial Examiner's Decision. There-
after, the Respondent filed exceptions to the Decision, and the Charg-
ing Party 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 powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Decision,
the exceptions, the brief, and the entire record in this case, and hereby
adopts the findings,' conclusions, and recommendations of the Trial
Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Recommended Order of the Trial Examiner, and orders that
Respondent Sheet Metal Workers International Association, Local No.
141, AFL-CIO, its officers, agents, and representatives, and Raymond
Bickers, its agent, shall take the action set forth in the Trial Exam-
iner's Recommended Order.2
'Member Brown joins in this Decision and Order to the extent that it finds that Re-
spondent failed to comply with Section 8(d) (2) of the Act
The telephone number for Region 9, appearing at the bottom of the Appendix attached
to the Trial Examiner's Decision, is amended to read Telephone No. 684-3627.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed on June 23, 1964, by the American Sign Company, herein
called the Company, the General Counsel of the National Labor Relations Board
issued a complaint dated August 4, 1964, against the Respondents , Sheet Metal Work-
ers International Association, Local No. 141, AFL-CIO, herein called the Union,
and Raymond Bickers, its agent, alleging that Respondents had engaged in and are
engaging in unfair labor practices within the meaning of Section 8(b) (3) and Section
2(6) and (7) of the National Labor Relations Act, as amended, herein called the
Act. In substance the complaint alleges that the Union represents a unit of the
Company's employees for the purposes of collective bargaining, and that the Respond-
ents struck and picketed the Company to modify the terms of an existing collective-
bargaining agreement without first serving the written notices to the Company and
to the Federal and State mediation services required by Section 8(d) of the Act.
The Respondents filed an answer denying the substantive allegations of the com-
plaint and the commission of unfair labor practices.
Pursuant to due notice, a hearing was held before Trial Examiner Samuel Ross on
October 5 and 22, 1964, at Cincinnati, Ohio. All parties were represented at the
hearing by counsel and were afforded full opportunity to be heard, to introduce
evidence, to examine and cross -examine witnesses , to present closing oral arguments,
and to file briefs Oral argument was waived by all the parties. On December 7,
1964, only the Company and the Respondents filed briefs, and they have been care-
fully considered.
SHEET METAL WORKERS INT'L ASSN., LOCAL 141, ETC. 539
Upon the entire record in the case, and from my observation of the witnesses and
their demeanor, I make the following:
FINDINGS OF FACT
1. COMMERCE
The American Sign Company, an Ohio corporation whose principal office and
place of business is located in Cincinnati, Ohio, is engaged in the manufacture of
custom neon and plastic signs During the past 12 months, a representative period,
the Company sold and shipped products valued in excess of $50,000 directly from
its plants in Ohio to places outside the State of Ohio. During the same period, the
Company also purchased and received goods and materials valued in excess of
$50,000 which were sent to its plants in Ohio directly from points outside the said
State. On the foregoing admitted facts, it is found that the Company is engaged in
commerce and in operations affecting commerce within the meaning of Section 2(6)
and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
The Respondents admit and I find that the Union is a labor organization within
the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The bargaining history of the Company
The facts in this case are for the most part uncontroverted-only the legal conse-
quences flowing therefrom are in dispute.
For the past 16 to 18 years, the Union has represented a unit of about eight sheet
metal workers employees of the Company who fabricate and install large custom-
made signs. The terms and conditions of employment of these employees have been
covered by successive separate and individual collective-bargaining agreements
between the Company and the Union 1 These agreements were never the result of
direct negotiations between the Company and the Union. Whenever its current
"standard" contract was about to expire, the Union negotiated the terms of the suc-
cessor agreement with the Sheet Metal Contractors Association, a division of Allied
Construction Industries, which is an organization composed of employers primarily
engaged in the building and construction industry. Upon the completion of its
negotiations with the Association, the Union presented to the Company for signature
its new "standard form" of union agreement, and prior to the events alleged herein
as unfair labor practices, the Company always signed the new agreement in the
form of a separate and individual agreement with the Union.2
The Company is not a member of either Allied Construction Industries or its
division, the Sheet Metal Contractors Association,3 it has never authorized that Asso-
ciation to bargain on its behalf, and the Union admittedly was never advised that
the Sheet Metal Contractors Association was the Company's representative for the
negotiation of contracts. On the other hand, for the past 15 years the Company has
been a member of the Greater Cincinnati Sign Contractors Association, an employer
organization, which negotiates labor contracts for the Company and other employers
with the unions which represent its painters and electricians.
B. The current events
The last collective-bargaining agreement between the Company and the Union
was for a term of 3 years expiring on June 1, 1964 Like the preceding contracts
between them, this agreement provided, inter alia, that it would-
continue in force from year to year thereafter unless written notice of reopening
is given not less than ninety (90) days prior to the expiration date.
'The Company also employs electricians who wire signs and assist in the installation
of the large custom-made signs, other sheet metal workers who work in another plant of
the Company where they fabricate smaller mass produced sign,,, and painters who paint
the signs Each of these groups of employees aie represented by labor organizations other
than the Respondent Union
2 The Respondents' contention that these agreements were countersigned by the Asso-
elation is not supported by the contracts in elidencc, and therefore is rejected
3 On July 1, 1957, the Company applied and was accepted for "general membership"
in Allied Construction Industries, but this membership specifically exclude(] participation
in the Association's "collective-bargaining processes" (General Counsel's Exhibit No 6).
The Company resigned from even that limited membership on October 5, 1959
540 DECISION S OF NATIONAL LABOR RELATIONS BOARD
As in the case of previous contracts, no such written notice of reopening was given
,either by the Union to the Company, or vice versa, before the expiration date of this
agreement. Instead, in accordance with its customary past practice, on January 22,
27, and February 24, 1964, the Union notified respectively the Federal Mediation and
Conciliation Service, Howard Knauf, the manager of Sheet Metal Contractors Asso-
ciation, and The Industrial Commission of Ohio, that "our contract expires on
May 31, 1964," and that it wanted to start negotiations "for a new agreement."
According to Respondent's agent, Bickers, these notices admittedly referred only to
the Union's agreement with the members of the Sheet Metal Contractors Association.
Notwithstanding that it received no written notice of termination of its agreement,
the Company quite apparently was aware of the fact that the Union was negotiating
for a new agreement with the Sheet Metal Contractors Association. In this respect
the record discloses that in March 1964, Jack Kaufmann, the Company's vice presi-
dent, asked John Wondrely, a business representative of the Union, whether the
Company could be represented on the Association's negotiating committee, and was
advised to take up the matter with Knauf, the Association's manager. There is no
evidence that Kaufmann followed this suggestion. However, on May 28, 1964, the
Greater Cincinnati Sign Contractors Association, with the Company's knowledge and
approval, wrote the following letter to the Union:
Local Union No. 141
Sheet Metal Workers Union
1015 Vine Street
Cincinnati, Ohio
Gentlemen: At a special meeting of the Greater Cincinnati Sign Contractors
Association on Thursday, May 28th, it was unanimously agreed by all member
companies that due to the following reasons we are hereby notifying Local No.
141 of the Sheet Metal Workers Union that the Greater Cincinnati Sign Con-
tractors Association and its individual members will not honor any contract
settled between the Union and The Sheet Metal Contractors Association (a
division of Allied Construction Industries) of Cincinnati, Ohio
(1) Neither the Gieater Cincinnati Sign Contractors Association nor any
member received any notification in writing of the termination of the present
agreement.
(2) Neither The Greater Cincinnati Sign Contractors Association nor any
member have had any negotiations whatsoever with the Union pertaining to a
new contract or any changes to be made to the present agreement.
We request a meeting of a committee of your members that are now employed
by the member companies of the Greater Cincinnati Sign Contractors Associa-
tion for the purpose of drafting a seperate (sic) contract that will be com-
patible with the sign industry in lieu of The Building Trades Industry.
Your prompt reply to our request is awaited.
Respectfully yours,
THE GREATER CINCINNATI SIGN CONTRACTORS ASSOCIATION
GEORGE MORANO, President.
On June 1, 1964, the Union called a strike of its members against the Company
and all of the latter's employees represented by the Union walked out in concert.
When the strike first began there was no picketing of the Company's premises.
On or about June 3, 1964, representatives of the Union met with representatives
of the Sign Contractors Association, including the Company's vice president, Kauf-
mann. The latter asked the Union's representatives to negotiate a separate contract
with the Sign Contractors Association. The Union refused.
On June 10, 1964, at 8 a.m., the Company's striking employees "came in the
door" of the plant but did not go to work, because as they stated, they "wanted to
find out what contract [they] were going to be under and just what's what " At Kauf-
mann's suggestion, Respondent Bickers was called and came to the plant a little
after 10 a.m. Bickers asked Kaufmann what the Company was "going to dog"
Kaufmann asked, "What do you mean7" Bickers replied, "Are we going under the
new contract or what?" Kaufmann responded "Well, you did not send us notice
[of termination]. I have a contract that runs for another year." Bickers rejoined,
"Well, maybe I goofed and didn't send you the notice, but are you going under the
new [contract] or the old?" Kaufmann replied, "Under the old." Bickers thereupon
said, "That's it," walked out of the door, and told the men to leave with him and
to take their tools.
The following day, June 11, the Union commenced picketing the Company's plant,
but it withdrew the pickets on June 15 when the Company presented a grievance to
SHEET METAL WORKERS INT'L ASSN., LOCAL 141, ETC. 541
the Union.4 However, except for one "nonproductive shop foreman," none of the
other strikers (7) employed by the Company have returned to work for it, and they
are presently working for other employers who have contracts with the Union.5
C. Contentions of the parties and concluding findings
As previously noted, the complaint alleges that the Union engaged in unfair labor
practices within the meaning of Section 8(b) (3) of the Act 6 by engaging in a strike
against the Company "for the purpose of inducing a termination or modification of
the existing contract" without first serving the written notices upon the Company,
the Federal Mediation and Conciliation Service, and the State agency established
to mediate and conciliate disputes, required by Section 8(d) of the Act.7
As previously noted, the contract involved in this case discloses on its face that
it was between the Union and the Company. Accordingly, under the provisions of
Section 8(d)(1), it was incumbent on the Union, if it wished to terminate or modify
that contract, to serve notice thereof upon the Company, "the other party to the con-
tract," 60 days prior to the expiration date thereof. Admittedly, no such notice was
served upon the Company. Moreover, as noted above, the notices served by the
Union on the Federal Mediation and Conciliation Service and the Industrial Com-
mission of Ohio admittedly referred only to the Union's contracts with the members
of the Sheet Metal Contractors Association, which did not include the Company.
1. The appropriate unit
At the hearing, the Respondents asserted that they had complied with the notice
requirements of Section 8 (d) (1) and (3) of the Act, that the Company was "a part
6 The grievance asserted that the Union's strike constituted an attempt by the Union to
change the rates of pay of the existing contract which, because of lack of notice of
termination , had been extended until June 1, 1965. Subsequently , on June 24 , the Com-
pany requested that further consideration of the grievance be postponed until after the
Board 's resolution of the charges in this case.
8 On June 12 , the Company and two other sign manufacturers filed a joint petition in
the State court of Ohio to enjoin the Union 's strike against the three of them. The Union
successfully demurred to the petition , but following the filing of an amended petition by
the plaintiffs , no action was taken by any of the parties to bring the suit to bearing.
° Section 8 (b) (3) of the Act provides as follows:
SEc. 8(b ) It shall be an unfair labor practice for a labor organization or its agents-
(3) to refuse to bargain collectively with an employer , provided it is the repre-
sentative of his employees subject to the provisions of section 9(a)
7 Section 8 (d) of the Act provides as follows:
SEc. 8 ( d) For the purposes of this section, to bargain collectively is the perform-
ance of the mutual obligation of the employer and the representative of the employees
to meet at reasonable times and confer in good faith with respect to wages , hours,
and other terms and conditions of employment , or the negotiation of an agreement,
or any question arising thereunder , and the execution of a written contract incor-
porating any agreement reached if requested by either party, but such obligation
does not compel either party to agree to a proposal or require the making of a
concession : Provided , That where there is in effect a collective-bargaining contract
covering employees in an industry affecting commerce, the duty to bargain collec-
tively shall also mean that no party to such contract shall terminate or modify such
contract, unless the party desiring such termination or modification-
(1) serves a written notice upon the other party to the contract of the proposed
termination or modification sixty days prior to the expiration date thereof, or in the
event such contract contains no expiration date, sixty days prior to the time it is
proposed to make such termination or modification ;
(2) offers to meet and confer with the other party for the purpose of negotiating
a new contract or a contract containing the proposed modifications ;
(3) notifies the Federal Mediation and Conciliation Service within thirty days after
such notice of the existence of a dispute, and simultaneously therewith notifies any
State or Territorial agency established to mediate and conciliate disputes within the
State or Territory where the dispute occurred , provided no agreement has been reached
by that time ; and
(4) continues in full force and effect, without resorting to strike or lockout, all
the terms and conditions of the existing contract for a period of sixty days after such
notice is given or until the expiration date of such contract , whichever occurs later:
542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the [Sheet Metal Contractors] Association for bargaining purposes," and of the
"multiple employer association" unit, that the Respondents "never received any
notification of their [the Company's] withdrawal" therefrom, and that therefore,
"proper notice was given [by the Union] both to the duly designated agent [of the
Company] for receipt of notice" and to the appropriate Federal and State mediation
and conciliation agencies.
These contentions are regarded as without merit. The uncontroverted record
discloses that the Company never was a member of the Sheet Metal Contractors Asso-
ciation, never authorized that Association to bargain on its behalf and never par-
ticipated in the contract negotiations between the Association and the Union.
Moreover, although the Company customarily adopted the contract negotiated by
the Association and the Union, it always executed separate individual agreements with
the Union. Under well established Board principles, the foregoing practice of the
Company did not make it a part of the multiemployer association unit 8 There was,
therefore, no obligation on the part of the Company to notify the Union of its
withdrawal from the Association or unit of which it never was a part.
In view of the above, it is found that at all times material herein, the Union was
the collective-bargaining representative of the Company's employees in the following
single-employer unit:
All employees of the Employer employed at the Evans Street, Cincinnati, plant
of the Employer, engaged in the manufacture, fabrication, assembly and han-
dling, erection, installation, dismantling, reconditioning, adjustment, alteration,
preparing and servicing, of all ferrous or nonferrous sheet metal work of No.
10 U S. gage or its equivalent, or lighter gage, and all other materials used in
lieu thereof, all shop and field sketches used in fabrication and erection, includ-
ing those taken from original architectural and engineering drawings or sketches,
and all other work included in the jurisdictional claims of Sheet Metal Workers
International Association, but excluding all electricians, neon glass workers, sign
hangers, maintenance men, helpers and carpenters, and all painters .9
2. The contention that Sheet Metal Contractors Association was the
Company's agent for the receipt of notices of termination
In their brief, the Respondents further contend that by not previously requesting
or insisting on separate notice of termination to it, the Company has in effect "clothed"
the Sheet Metal Contractors Association "with apparent authority to receive for it
the 8 (d) (1) notices [which] the Union sent over the years "
This contention is likewise rejected as without merit. The Union had never been
advised that the Association was an agent of the Company for any purpose, and
therefore, it had no reasonable basis for believing that the Association was authorized
to receive contract termination notices for the Company. Moreover, there is no evi-
dence in the record that the Company knew of or acquiesced in the Union's service
of prior notice of contract terminations upon the Association, and none that it
regarded such service as binding on it. Accordingly, the mere failure of the Com-
pany to complain or object to the failure of the Union to properly notify it of prior
contract terminations, did not establish or create an agency on the part of the
Association to receive such notices for it.10
For all the foregoing reasons it is concluded that the Respondent Union failed to
comply with the notice requirements of Section 8(d)(1) and (3) of the Act in
respect to its contract with the Company.
8 Pacific Metals Company, Ltd, et al, 91 NLRB 696, 700, Block Cut Manufacturers,
Inc, 111 NLRB 265, 266, 267; Highway Transport Associattion of Upstate New York, Inc,
et al, 117 NLRB 1718, 1720-1721 ; Molinells, Santoni & Freyter, S. en C, d/h/a Panaderia
La Requladora, etc., 118 NLRB 1010, 1013-1014; Northern Nevada Chapter, etc, 131
NLRB 550, 552
0 The foregoing unit description was stipulated by the parties to be appropriate in the
event that the Trial Examiner found that the Company's employees had been represented
by the Union in a single-employer unit.
10 The Board's decision in Metropolitan Millieork, Inc, 138 NLRB 1482, relied on by
Respondents to support this contention, is regarded as inapposite and distinguishable on
the facts.
SHEET METAL WORKERS INT'L ASSN., LOCAL 141, ETC. 543
3. The Respondent's failure and refusal to meet and confer with the
Company for the negotiation of proposed modifications
As noted above, the a'nion's failure to comply with the reopening notice provision
of its contract with the Company was called to the Union's attention on May 28,
1964, before the expiration date of its last contract with the Company, by the letter
of the Greater Cincinnati Sign Contractors Association. In that letter, the Union
also was requested to bargain with the Company and other unnamed members of the
Sign Contractors Association "for a separate contract . compatible with the sign
industry." Since there was no prior history of bargaining between the Union and
the Sign Contractors Association on a multiemployer basis, the Union obviously
had no legal obligation to comply with the request for such new multiemployer
bargaining. However, as the collective-bargaining representative of the Company's
employees, if the Union desired to terminate or modify its contract with the Com-
pany, it was required by Section 8(d) of the Act, not only to serve the notices required
by subsections (1) and (3), but also to meet and confer with the Company regarding
a new contract or the proposed modifications (Section 8(d)(2), and to continue
the terms of the existing contract for 60 days after such notices were given without
resorting to a strike (Section 8(d)(4)). As previously found, the Union failed and
refused "to meet and confer" with the Company regarding its proposed modifications
to the existing contract, but instead demanded that the Company agree to and sign
the new agreement which the Respondents had negotiated with the Sheet Metal Con-
tractors Association. Moreover, when the Company, contending that their contract
had been extended for a year, refused to comply, the Respondent struck the Company
on June 1, 1964. By so doing, the Respondent clearly failed to comply with the
requirements of Section 8(d) (2) and (4) of the Act.
Accordingly, I find and conclude that by failing to comply with any of the require-
ments of Section 8(d) of the Act, the Respondents thereby engaged in unfair labor
practices within the meaning of Section 8(b) (3) of the Act.
4. The contentions that the strike has terminated and the matter is moot
The Respondents contend nevertheless that "since the strike is over, this case is
moot" (brief, p. 10). This contention is bottomed on the fact that Respondents
withdrew their picket line from the Company's plant on June 15, 1964, and that all
of the striking employees, with the exception of one foreman who returned to work
for the Company, are presently working for other employers who have current con-
tracts with the Respondent Union.
These contentions also are regarded as devoid of merit and rejected by me for
the following reasons:
Picketing and striking are not synonymous. The Respondents admittedly struck
the Company between June 1 and 10, 1964, without picketing. Accordingly, the
termination of the picketing, absent the return of the strikers, does not establish that
the strike is over. Nor does the fact that the Company's employees who struck are
now working elsewhere establish that the strike has ended. As previously noted,
these employees last left the Company's plant pursuant to the instruction of Union
Agent Bickers that they leave with him and take their tools. There is no evidence
that these employees of the Company have been ad\ ised that they were free to
return to work for the Company without fear of disciplinary action or other reprisal.
Nor is there any evidence that the Respondents have ever advised the Company that
the strike was over. Absent such evidence, the record is insufficient to support a
conclusion that the strike has terminated.
But even assuming, arguendo, that the strike was over, that conclusion would not
render these proceedings moot. Concededly, the Respondents engaged in and
induced the employees of the Company to engage in a strike between at least June 1
and 15, 1964. That strike has been found above to constitute an unfair labor prac-
tice within the meaning of Section 8(b)(3) of the Act because of the failure of the
Respondents to comply with the requirements of Section 8(d) of the Act. There is
no assurance that Respondents will not again strike or picket the Company. More-
over, under Section 8(d) (4) the Respondents are required to continue "the existing
contract" in "full force or effect" for a period 60 days after notice is given or until
the expiration date of the contract, whichever is later. There is no evidence that
the Respondents have complied with the notice requirements since the strike allegedly
ended, or that they will so comply in the future. Under the circumstances, it is
544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fairly obvious that this matter is not moot. In any event , "the discontinuance of
unfair labor practices does not dissipate their effect and does not obviate the need
for a remedial order." 11
5. The contention that the Board should defer to the grievance procedure
The Respondents finally contend that the Company 's "resort to the grievance and
arbitration procedure 12 [of their contract ] should induce the NLRB to withhold
action" in this matter . I do not agree for the reasons set forth below.
Obviously , the Board's power to adjudicate unfair labor practices is not restricted
by the availability of contractual or other means for the settlement of disputes.13
Nevertheless , the Board voluntarily withholds its undoubted authority where in its
judgment Federal labor policy would best be served by leaving the parties to other
processes of the law.14
In Dubo Manufacturing Corporation , 15 the Board stated:
The Board policy is to effectuate , wherever possible, the intent of Congress
expressed in Section 203(d ) of the 1947 Labor Management Relations Act,
namely, "Final adjustment by a method agreed upon by the parties is hereby
declared to be the desirable method for settlement of grievance disputes arising
over the application or interpretation of an existing collective bargaining
agreement.
In the instant case, the very existence of such agreed -upon methods for the resolu-
tion of their dispute is disputed by both parties, albeit for different reasons. Thus, the
Union has contended and still contends that there was no "existing collective bargain-
ing agreement" when it struck , and the Company , although it originally invoked the
grievance , shortly thereafter challenged the jurisdiction of the Sheet Metal Local
Joint Adjustment Board, before it acted thereon , to determine "whether [a] contract
exists " 16 Under the circumstances , it could hardly effectuate the Board 's policy to
withhold its acknowledged jurisdiction to determine the issues presented herein
An additional reason for the above conclusion is that the instant case involves a
purely statutory unfair labor practice , and not "the interpretation or enforcement"
of the last contract between the Union and the Company.17 In this regard the
Board said , at 1415:
The contract subjects to its arbitration procedures only such disputes as con-
cern "the interpretation or application of the terms of this Agreement ." But in
the instant case, the precise . . . claim , which is the subject of the complaint
before us , does not relate to the meaning of any established term or condition
of the contract . . . [but] is directed instead at Respondent's denial to it of a
statutory right guaranteed by Section 8(d) of the Act , namely, the right to be
notified and consulted in advance , and to be given an opportunity to bargain,
about substantial changes in the working conditions of unit employees. . . .
As the particular dispute between the Union and the Respondent now before us
thus involves basically a disagreement over statutory rather than contractual
obligations , the disposition of the controversy is quite clearly within the com-
petency of the Board , and not of an arbitrator who would be without authority
to grant ... the particular redress ... which we provide below in our remedial
order.
In view of the above , it is concluded that no valid reason exists for the Board to
withhold the exercise of its authority and jurisdiction over this matter.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above , occurring in con-
nection with the operations of the Company described in section I, above, have a close,
11 Che fs, Cooks, Pastry Cooks and Assistants, Local 89, et at. (Stork Restaurant, Inc.),
130 NLRB 543, 546.
12 See footnote 4, supra.
13 Section 10 ( a) of the Act expressly so provides
11 See International Harvester Co., 138 NLRB 923, 927
16142 NLRB 431, 432 ; The Flintkote Company , 149 NLRB 1561.
16 Respondent's Exhibit No. 6.
Article X of the last contract between the Company and the Union limited grievances
to those "arising out of interpretation or enforcement of this Agreement ." ( General
Counsel's Exhibit No. 5.)
17 Cloverleaf Division of Adams Dairy Co., 147 NLRB 1410.
SHEET METAL WORKERS INT 'L ASSN., LOCAL 141, ETC. 545
intimate , and substantial relation to trade, traffic , and commerce among the several
States and tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that the Respondents have engaged in certain unfair labor practices,
I will recommend that they cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Sheet Metal Workers International Association , Local No. 141 , AFL-CIO, is
a labor organization within the meaning of Section 2 ( 5) of the Act.
2. The said Union at all times material herein has been and is the exclusive col-
lective -bargaining representative within the meaning of Section 9(a) of the Act,
of the employees of American Sign Company in the following appropriate event:
All employees of the Employer employed at the Evans Street, Cincinnati , plant of
the Employer , engaged in the manufacture , fabrication , assembly and handling, erec-
tion , installation , dismantling , reconditioning , adjustment , alteration , preparing, and
servicing , of all ferrous or nonferrous sheet metal work of No . 10 U.S. gage or its
equivalent , or lighter gage , and all other materials used in lieu thereof , all shop and
field sketches used in fabrication and erection , including those taken from original
architectural and engineering drawings or sketches , and all other work included in
the jurisdictional claims of Sheet Metal Workers International Association , but exclud-
ing all electricians , neon glass workers, sign hangers, maintenance men, helpers and
carpenters , and all painters.
3. By engaging in a strike , and inducing , by means of picketing , instructions, and
otherwise , the employees of American Sign Company to engage in a strike for the
purpose of modifying or terminating the collective -bargaining agreement with that
Company, without first serving the notices upon the American Sign Company, the
Federal Mediation and Conciliation Services , and the appropriate State agency,
required by Section 8(d) (1) and ( 3) of the Act , and without meeting and conferring
with the Company for the purpose of negotiating a new contract or proposed con-
tract changes , as required by Section 8(d) (2) of the Act, the Respondent Union,
and its agent , Respondent Raymond Bickers , have failed and refused to bargain
collectively with the Company, and thereby have engaged in and are engaging in
unfair labor practices within the meaning of Section 8 ( b)(3) of the Act.
4. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and ( 7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in this case , I hereby recommend that the Respondent Sheet Metal
Workers International Association , Local No. 141 , AFL-CIO, its officers, agents,
successors , and assigns , and its agent , Respondent Raymond Bickers, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with American Sign Company, by failing to
serve written notice upon the Company of proposed modification or termination of
an existing collective -bargaining contract, as required by Section 8(d)(1) of the Act,
or by failing to meet and confer with the Company for the purpose of negotiating
a new contract or a contract containing proposed modifications , as required by
Section 8 (d)(2) of the Act, or by failing to notify the Federal Mediation and Con-
ciliation Service and the appropriate State agency of the existence of a dispute within
30 days after service of the written notice on the Company , as required by Section
8(d)(3) of the Act, provided , however, that no such notice under Section 8(d)(3)
shall be required if an agreement is reached within 30 days following service of the
notice upon the Company of proposed termination or modification.
(b) Engaging in or inducing , by means of orders, instructions , picketing , or other
means, or by permitting any such to remain in existence or effect, the employees of
American Sign Company to engage in, a strike for the purpose of modifying or
terminating a collective -bargaining contract , without first having complied with the
requirements of Section 8(d) of the Act.
796-027-66-vol . 15 3-3 6
546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action to effectuate the policies of the Act-
(a) Notify , in writing , the employees of American Sign Company who participated
in the strike which commenced on June 1 , 1964, and have not since returned to work
for the Company , that they are free to resume work for it, without fear of dis-
ciplinary action or reprisal by the Respondents
(b) Post at the business offices, meeting halls, and all other places where notices
of the Respondent Union to members are customarily posted , copies of the attached
notice marked "Appendix ." 18 Copies of said notice to be furnished by the Regional
Director for Region 9, shall , after being duly signed by the Respondents , be posted
by them immediately upon receipt thereof, and be maintained by them for a period of
60 consecutive days thereafter , in conspicuous places, including all places where
notices to members and employees are customarily posted. Reasonable steps shall
be taken by the Respondents to insure that said notices are not altered , defaced, or
covered by any other material
(c) Furnish to the Regional Director for Region 9, signed copies of said notice
for posting by The American Sign Company , if willing, in places where notices to
employees are customarily posted . Copies of said notice , to be furnished by the
Regional Director , shall, after being signed by the Respondents , be forthwith
returned to the Regional Director for disposition by him.
(d) Notify the Regional Director for Region 9, in writing , within 20 days from
the date of the receipt of this Decision and Recommended Order, what steps they
have taken to comply herewith.19
11 In the event that this Recommended Order be adopted by the Board , the words, "a De-
cision and Order " shall be substituted for the words "the Recommended Order of a Trial
Examiner" In the notice . In the further event that the Board ' s Order be enforced by a
decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals , Enforcing an Order" shall be substituted for the words "a Decision
and Order".
19In the event that this Recommended Order be adopted by the Board , this provision
shall be modified to read: "Notify said Regional Director , in writing, within 10 days from
the date of this Order , what steps the Respondents have taken to comply herewith "
APPENDIX
NOTICE TO ALL MEMBERS AND EMPLOYEES OF AMERICAN SIGN COMPANY
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the Labor Management
Relations Act, we hereby give notice that:
WE WILL NOT refuse to bargain collectively with American Sign Company,
by failing to serve written notices upon it of proposed modification or termina-
tion of an existing collective -bargaining contract , by failing to meet and confer
with the Company for the purpose of negotiating a new contract or a contract
containing proposed modifications , or by failing to notify the Federal Mediation
and Conciliation Service and the appropriate State agency of the existence of a
dispute, all as required by Section 8(d) of the Act; provided , however , that the
latter notices under Section 8(d) (3) shall not be required if an agreement is
reached within 30 days following service of the notice upon the Company of
proposed termination or modification
WE WILL NOT engage in a strike, or induce by means of orders , instructions,
picketing, or other means , the employees of American Sign Company to engage
in a strike , for the purpose of modifying or terminating a collective -bargaining
contract , without first having complied with the requirements of Section 8(d)
of the Act.
SHEET METAL WORKERS INTERNATIONAL ASSOCIATION,
LOCAL No. 141, AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
Dated------------------- By-------------------------------------------
RAYMOND BIeRmis
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.
PUGET SOUND DISTRICT COUNCIL, ETC. 547
Employees or members may communicate directly with the Board's Regional Office,
Room 2023, Federal Office Building, 550 Main Street, Cincinnati, Ohio, Telephone
No. Main 1-4465, if they have any question concerning this notice of compliance
with its provisions.
Puget Sound District Council , Lumber & Sawmill Workers,
United Brotherhood of Carpenters and Joiners of America,
AFL-CIO; and Lumber & Sawmill Workers ' Union, Local 2767,
affiliated with United Brotherhood of Carpenters and Joiners
of America, AFL-CIO and United States Plywood Corporation,
Kosmos Division . Case No. 19-CC-^?50. June 25, 1965
DECISION AND ORDER
On April 14, 1965, Trial Examiner Howard Myers issued his Deci-
sion in the above-entitled proceeding, finding that Respondents had
engaged in certain unfair labor practices and recommending that they
cease and desist therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. Thereafter,
Respondents filed exceptions to the Trial Examiner's Decision and sub-
mitted copies of their brief to the Trial Examiner in support of their
exceptions.
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 this case to a three-member
panel [Chairman McCulloch and Members Fanning and Jenkins].
The Board has considered the Trial Examiner's Decision, the excep-
tions and brief, and the entire record in the case, and hereby adopts
the Trial Examiner's findings,' conclusions, and recommendations.
'The complaint herein does not allege a violation of Section 8(e) of the Act; the Trial
Examiner's conclusions of law finds no such violation ; and the Trial Examiner's Recom-
mended Order provides no remedy for any such violation. The last sentence in section
III C of the Trial Examiner's Decision states, however, that "section 1(a) of article A(1)
of the collective-bargaining agreement between the parties-to the extent that said sec-
tion, as construed and interpreted by Respondent-falls within the proscription of Sec-
tion 8(e) . . We disagree with this dictum. The natural reading of the contract
clause in question does not bring it within the prohibition of Section 8(e) and the clause
was administered in accordance with its natural meaning. The fact that Respondents
contended at times that the clause meant something which would be within the prohibition
of Section 8(e) is relevant to the Section 8(b) (4) (A) issue, but does not support a finding
that the clause violated Section 8(e). Meat and Highway Drivers, Dockmen, etc., Local
710 (Wilson & Co.) v. N.L.R.B., 335 F. 2d 709, 716 (C.A.D.C.).
Respondents' exceptions are directed toward the issue of whether the coercion and
threats of coercion that Respondents directed at United States Plywood were lawful
primary activity aimed at preserving unit work. The record clearly demonstrates that
Respondent's pressures upon United States Plywood were secondary in nature and violated
Section 8(b) (4) (ii) (A) and (13) of the Act. In the absence of an exception to the Trial
Examiner's finding that Respondents' conduct also constituted inducement or encourage-
ment of United States Plywood's employees to engage in a work stoppage proscribed by
subsection (i) of Section 8(b) (4), we adopt pro forma the Trial Examiner's finding that
Respondents also violated Section 8(b) (4) (i) (A) and (B) of the Act.
153 NLRB No. 56.