Williams Enterprises, Inc.

National Labor Relations Board - Board Decisions

Aug 16, 1974

212 N.L.R.B. 880 (N.L.R.B. 1974)

880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Williams Enterprises , Inc. and Sheet Metal Workers'
International Association , Local Union No. 102.
Case 5-CA-6152
August 16, 1974
DECISION AND ORDER
On March 29, 1974, Administrative Law Judge
Charles W. Schneider issued the attached Decision in
this proceeding. Thereafter, The Respondent filed ex-
ceptions and a supporting brief, and the General
Counsel and the Charging Party filed briefs in support
of the Administrative Law Judge's Decision.
The Board has considered the record and the at-
tached 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.
tween the Respondent and the Union, and refused to make
certain benefit payments provided for in the contract. The
Respondent duly filed its answer denying the commission
of unfair labor practices and setting forth certain affirma-
tive defenses, discussed hereinafter.
Pursuant to notice a hearing was held before me at Wash-
ington , D.C., on various dates between August 21 and No-
vember 15, 1973. All parties appeared, were represented by
counsel, and were afforded full opportunity to be heard, to
introduce material evidence, to present oral argument, and
to file briefs. At the opening of the hearing, upon motion of
counsel for the General Counsel, the complaint was amend-
ed to allege additionally that the Respondent's conduct set
out in the complaint violated Section 8(d) of the Act, an
allegation denied by the Respondent. Briefs were filed by
the General Counsel on December 4, 1973, and by the
Charging Party and the Respondent on December 7, 1973.
Upon consideration of the entire record and the briefs,
and upon observation of the witnesses, I make the follow-
ing:
FINDINGS OF FACT
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent, Williams Enterprises, Inc., of
Merrifield, Virginia, its officers, agents, successors,
and assigns, shall take the action set forth in said
recommended Order.
i Chairman Miller reserves judgment on whether an allegation of invidious
discrimination by a labor organization is timely raised as an affirmative
defense to a refusal-to-bargain allegation, when it is not raised until the first
day of a hearing and when a respondent 's answer has not formally been
amended to present the issue as an affirmative defense In the absence of any
exceptions to the Administrative Law Judge 's ruling and as he agrees with
the disposition of the case on the merits , Chairman Miller does not reach the
procedural issue here
As they agree with the disposition of the race discrimination issue on the
merits, Members Fanning and Penello deem it unnecessary to decide, and
do not decide whether that issue was properly injected into this case
DECISION
CHARLES W. SCHNEIDER, Administrative Law Judge: On
June 7, 1973, Sheet Metal Workers' Local Union No. 102,
the Union, filed an unfair labor practice charge against
Williams Enterprises, Inc., the Respondent, alleging that the
Respondent had violated Section 8(a)(1) and (5) of the Na-
tional Labor Relations Act (29 USC. § 151, et seq.). On July
24, 1973, the Regional Director issued a complaint and
notice of hearing on the charge. Service thereof was duly
made on the Respondent and the Union.
The complaint alleged, in sum, that the Respondent re-
fused to accept or discuss grievances filed by the Union, the
collective-bargaining representative of the Respondent's
employees, cancelled a collective-bargaining agreement be-
I THE BUSINESS OF THE RESPONDENT
Williams Enterprises, Inc., is a District of Columbia cor-
poration having its offices at Merrifield, Virginia, engaged
in the business of supplying steel erection work, labor, and
materials on construction projects in various States and the
District of Columbia.
During the 12 months preceding the date of the com-
plaint, a representative period, the Respondent realized an-
nual gross revenues exceeding $50,000 for services
performed outside the Commonwealth of Virginia and it
annually receives materials from outside the Common-
wealth of Virginia valued in excess of $50,000.
At all times material herein, Respondent is and has been
an employer as defined in Section 2(2) of the Act, engaged
in commerce and in operations affecting commerce as de-
fined in Section 2(6) and (7) of the Act.
ii THE LABOR ORGANIZATION INVOLVED
Sheet Metal Workers' International Association, Local
Union No. 102, is a labor organization within the meaning
of Section 2(5) of the Act.
III THE UNFAIR LABOR PRACTICES
A. The Facts
1. Background
The Respondent is a steel erector engaged in the erection
of the steel framework of buildings and the installation of
metal floor and roof decking . For the erection of the steel
framework and the installation of the floor decking the
Respondent employe ironworkers . However, under the
terms of a written understanding reached between the Iron
Workers' International Union and the Sheet Metal Work-
ers' International Union in 1966 , implementing a 1948 deci=
212 NLRB No. 132
WILLIAMS ENTERPRISES, INC. 881
Sion of the National Joint Board for the Settlement of Juris-
dictional Disputes (the Dunlop Board), jurisdiction over the
installation of metal roof decking is divided between iron-
workers and sheetmetal workers according to the gauge:
10-gauge or lighter roof decking is installed by the sheet-
metal workers, heeavier gauges by the ironworkers.1 For
the past several years, and until June 1973, the Respondent
employed sheetmetal workers for the installation of metal
roof decking 10-gauge or lighter.
2. Labor relations in the sheetmetal industry
Labor relations in the sheetmetal industry are handled on
both a national and a local level. Nationally, employers are
organized into a Sheet Metal and Air Conditioning Con-
tractors National Association, Inc.,- known as SMACNA,
which deals with the Sheet Metal Workers' International
Association, the International Union. These two have set up
a procedure, operating through what is known as the Na-
tional Joint Adjustment Board,2 designed as an appellate
body to hear and finally determine, if possible, grievances
arising out of contracts between contractors and local sheet-
mental worker unions. The Board consists of an equal num-
ber of representatives of the Sheet Metal Contractors
National Association and of the Sheetmetal International
Union.
The procedural rules of the National Joint Adjustment
Board provide, inter alia, that a majority decision of the
board shall be a final and binding determination of the
grievance. The rules further provide, in substance, that if the
board fails to agree, the case shall revert to its status on the
local level.
On the local level, the industry is organized into area
chapters of SMACNA and locals of the International Sheet-
metal Workers Union in specified geographical areas, one
of which is the Washington, D.C., metropolitan area. On
that level collective-bargaining contracts, on a standard
form of union agreement, are negotiated between the local
employer association, or chapter, and the local union;
though the ultimate contract may be executed by the indi-
vidual- employer. Among other provisions, these contracts
provide, under article X, for a grievance procedure and for
local joint adjustment boards.
3. The contracts between the Union and the Respondent
On June 5, 1969, the Respondent and the Union executed
a standard form of union agreement, a contract which, in
intent and legal effect, acknowledged the Union's jurisdic-
tion over the installation of metal roof decking 10-gauge or
lighter, and recognized the Union as the bargaining repre-
sentative of the Respondent's employees so engaged. A suc-
cessor contract-the validity of which the Respondent
i The Dunlop Board was a body set up a number of years ago by employers
and unions in the construction industry to resolve jurisdictional claims be-
tween unions . On June 1, 1973, it was succeeded by the Impartial Jurisdic-
tional Disputes Board, having similar functions The latter board recently
reaffirmed the 1948 jurisdictional award of the Dunlop Board respecting
metal decking
2
Not to be confused with the National Joint Board for the Settlement of
Jurisdictional Disputes, the Dunlop Board.
contests (among other contentions)-was executed in 1972.
The latter agreement was unilaterally cancelled by the Re-
spondent on January 19, 1973, prior to its.expiration date,
thus giving rise to this litigation.
In addition to the usual clauses providing for wages and
benefits, and general and specific working conditions, the
1972 contract contained the following clauses pertinent to
the issues here.
(1) A coverage clause, the effect of which, in the light of
the understanding and contemplation of the parties, was to
recognize the jurisdiction of the Union in its geographical
area over the installation of metal roof decking 10-gauge or
less (article I).
(2) A provision that such work would be performed ex-
clusively by journeymen and apprentice sheetmetal workers
(article III).
(3) An agreement by the Union to furnish at the
Employer's request qualified employees in sufficient num-
bers to properly execute the work (article M.
(4) An 8-day union shop, that is, a requirement for mem-
bership in the Union as a condition of employment after 8
days of employment (article V).3
(5) A provision for payments by the Respondent to vari-
ous funds, such as welfare, pension, apprentice, vacation,
and a sheetmetal industry promotion fund referred to as
Employer's contribution trust fund (addenda 1).
(6) An article providing for recognition of jurisdictional
agreements of International unions (article XI):
Agreements, national in scope, between the Sheet Met-
al Workers' International Association and other Inter-
national Unions, covering work jurisdiction and the
assignment, allocation and division of work among em-
ployees represented for the purposes of collective bar-
gaining by such labor organizations, shall be respected
and applied by the Employer, provided such Agree-
ments have been constituted with the knowledge of and
without objection from Sheet Metal and Air Condi-
tioning Contractors National Association, Inc.
(7) A grievance procedure, article X, covering "Griev-
ances of the Employer or the Union, arising out of interpre-
tation or enforcement of this Agreement," with the
following steps:
Step 1: Direct settlement between the Employer and the
union representative.
Step 2: Submission to a local joint adjustment board
consisting of an equal number of employer and union repre-
sentatives on the local level, "to render a final and binding
determination."
Step 3: If not disposed of in step 2 because of deadlock
or failure of the board to act, appeal by either party within
a prescribed time limit to a panel consisting of one represen-
tative of the International Union and one representative of
SMACNA, the decision of the panel to be "final and bind-
ing."
Step 4: If not settled in step 3, appeal within prescribed
time limits to the National Joint Adjustment Board.
3 A provision authorized by Sec. 8(f) of the Act in the construction indus-
try
882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Under article X, an adjustment board or panel is empow-
ered to render such relief to either party "as they deem
necessary and proper, including awards of damages or other
compensation." In addition, if the adjustment board deems
it warranted, or if after final unappealed decision at any step
of the procedure a party fails to comply with the decision,
the National Joint Adjustment Board is authorized to can-
cel the contract involved, or agreements with other union
locals.
At each step of the procedure, disposition by the particu-
lar authority, followed by failure to appeal the decision,
"shall be final and binding."
4. The Respondent's contract with the Iron Workers
For a number of years the Respondent has also been
under contract with Local Union No. 5 of the International
Association of Bridge, Structural and Ornamental Iron
Workers (the Iron Workers), pursuant to agreement negoti-
ated between Local 5 and a negotiating committee of em-
ployers in the iron industry. This agreement recognizes
Local 5's jurisdiction as that provided in its charter, subject
to "trade agreements and final decisions of the AFL-CIO
as well as the decisions rendered by the National Joint
Board for the Settlement of Jurisdictional Disputes."
5. The assignment of roof decking to the ironworkers
In December 1972, dissatisfied with the performance of
the sheetmetal workers, the Respondent assigned metal roof
deck installation on several jobs to its ironworkers. Upon
the Union's learning of this, a meeting was held on January
5, 1973, to discuss the matter. Participants in the meeting
were Frank Williams, the Respondent's president, represen-
tatives of the Union, and Harry Muller. Mr. Muller, execu-
tive secretary and manager of the D.C. chapter of
SMACNA, also functions as recording secretary of the local
joint adjustment board. At this meeting the Respondent
defended its assignment to the ironworkers on the basis of
efficiency, and declined to recede from its position. Advised
that the matter should be taken through the contractual
grievance procedure, the Respondent declined to assent,
stating that it would not participate in such procedure, and
the meeting ended on that note.
6. Cancellation of the contract
Thereafter, under date of January 19, 1973, the Respon-
dent advised the Union by letter that, despite the
Respondent's justification at the January 5 meeting of its
assignment to the ironworkers, "Your representatives stead-
fastly insisted upon applying sanctions against us through
the grievance procedure contained in your existing con-
tracts." The Respondent therefore cancelled the contract
and stated that it was assigning all roof decking to the
ironworkers. Thus, the letter to the Union concluded: "We
regret that you have left us with no alternative but to cancel
our agreement with your union and officially assign all roof
decking to the iron workers. You should be aware of the fact
that we will use all legal avenues to protect this assignment."
The Union thereupon invoked the formal provisions of
the grievance procedure of the contract.
7. The local joint adjustment board proceeding
Pursuant thereto, and upon notice to the Respondent, a
meeting of the local adjustment board was called for March
9, 1973. The Respondent replied to this by letter dated
March 7 to SMACNA in which it stated that it "will not be
a party to the grievance procedure," and called attention to
the fact that in its January 19 letter the Respondent had
advised the Union that it was cancelling the agreement Due
to the absence of a quorum the adjustment board meeting
of March 9 was, upon notice to the Respondent, continued
until March 22.
On the latter date the board of adjustment met and took
evidence on the basis of which it found that the Respondent
had violated the contract by the assignment of roof decking
on 3 specific jobs to the ironworkers rather than to sheet-
metal workers, resulting in a loss of $13,488.48 in wages to
sheetmetal workers. The Board thereupon assessed that
sum against the Respondent to be paid to the Union's ap-
prentice fund.
The Respondent was duly notified of the assessment. It
has not complied. Thereafter the Respondent discontinued
making payments to the various funds due under the con-
tract, and stopped payment on outstanding checks which it
had mailed to some of those funds.
At the time of the cancellation of the contract the Re-
spondent had in its employ two members of the Union who
were engaged in installing roof decking on a new Depart-
ment of Labor building in Washington, D.C. The Respon-
dent continued to employ these two individuals until June
1973, at which time they were laid off.
B. Contentions
The complaint, as amended, alleges that the Respondent
refused to bargain in violation of Section 8(a)(1), (5), and
8(d) of the Act by (1) refusing to discuss or accept griev-
ances filed pursuant to the collective-bargaining contract,
(2) unilaterally cancelling the contract, and (3) refusing to
make the vacation, apprentice, pension, and welfare pay-
ments provided in the contract.
The Respondent admits the essential facts, namely (1) its
refusal to participate in processing through the contractual
grievance procedure the Union's grievances relating to as-
signment of roof decking to ironworkers, (2) the unilateral
cancellation of the contract, and (3) its discontinuance of
the various payments referred to.
If there was a valid 1972 contract these actions of the
Respondent would normally constitute unfair labor practic-
es as alleged in the complaint, unless excused by justifiable
circumstances . N.L.R.B. v. Gene Hyde, d/b/a Hyde's Super-
market, 339 F.2d 568 (C.A 9, 1964); N L.R.B. v. M & M
Oldsmobile, Inc, 377 F.2d 712 (C.A. 2, 1967). In justifica-
tion, the Respondent offers various defenses, which may be
summarized as follows.
That ( 1) no agreement was arrived at in 1972; (2) the 1972
contract, and the Respondent's duty to bargain with the
Union, were terminable at will; (3) the 1972 contract was
invalid under Virginia law; (4) the bargaining unit was not
WILLIAMS ENTERPRISES, INC. 883
appropriate; (5) Respondent at no time refused to bargain
with the Union; (6) no grievance was properly filed or pro-
cessed; (7) the Union-breached the contract; (8) the Union
should have submitted the dispute to the National Joint
Board For Adjustment of Jurisdictional Disputes, and the
Respondent was not required to accede to disposition of the
controversy by the adjustment boards provided by the con-
tract; (9) the Union committed unfair labor practices; (10)
the Union engaged in racially discriminatory practices and
refused to refer minority personnel to the Respondent.
We turn now to a discussion of the various issues.
Conclusions
1. Whether an agreement was arrived at in 1972
The 1969 contract, executed on June 5, 1969, had an
expiration date of August 31, 1969. It contained a clause
provided that the contract should continue in force from
year to year thereafter unless written notice of reopening
was given not less than 90 days prior to the expiration date.
Since less than 90 days intervened between the date of exe-
cution of the 1969 contract and its declared expiration date,
90 day notice could obviously not be given. However there
is no evidence or suggestion that either party gave written
notice of intent to reopen.
On May 10, 1972, the Respondent and the Union execu-
ted an "Amendment to Agreement of September I, 1969 to
August 31, 1972 for Payment of Retroactive Wages" (Em-
phasis supplied). This amendment provided for the pay-
ment of wage increases effective September 1, 1971, as
approved by the construction industry wage stabilization
committee. The amendment also contained provisions for
employer-contributions to the various benefit and industry
funds. The amendment recited that the rates therein stated
were in substitution for those "set forth in the original agree-
ment which was signed in September of 1969." It further
concluded with the following paragraph: "XI. Except as
changed herein our initial agreement as amended covering
the period September 1, 1969 to August 31, 1972 shall be
unchanged."
Under date of August 31, 1972 the Respondent and the
Union executed another standard form of union agreement
effective September 1, 1972, to August 31, 1975. This is the
agreement which the Respondent cancelled in 1973.
No basic written agreement for the period 1969 to 1972
of the kind described in the amendment of May 10, 1972,
was produced. The Union's testimony was that it could find
none in its files. During that interim period the Respondent
continued to employ sheetmetal workers to install roof
decking, and made the payments into the various funds,
welfare, etc., as required. In these circumstances I conclude
that, however it came about, whether by operation of the
automatic renewal clause in the June 1969 agreement, oral
agreement to accept the 1969-1972 contract , or oral agree-
ment to continue recognition of the Union, employment of
sheetmetal workers, and payments to the various funds,
contractual relations between the Respondent and the
Union covering the installation of metal roof decking 10-
gauge or lighter were continuously maintained from June 5,
1969, to January 19, 1973.
The Respondent asserts that there was no meeting of the
minds concerning the 1972-75 contract, and therefore no
agreement came into existence . The basis for this contention
is the fact that in the agreement which the Respondent
signed (G.C. Exh. 5), article XIII, section 1, contains a
reference to an addendum No. 2, but in the document which
the Respondent thereafter received back from the Union
signed by the Union's agent (Resp. Exh. 2), addendum 2
was stricken. Thus, the Respondent says, the Union made
a counteroffer which the Respondent did not accept, and no
agreement resulted . I do not find this position sustained.
General Counsel's Exh. 5 contains eight references to an
addendum No. 2, all but two of which (in art. XII, sec. 5 and
art. XIII, sec. 1) had been x'd out at the time the Respon-
dent signed the contract. Addendum 2 had been negotiated
by the Union with the District of Columbia chapter of
SMACNA. The Union's testimony is that it considered ad-
dendum 2 inapplicable to the Respondent, and therefore the
draft sent to the Respondent for signature,did not contain
an addendum 2, and the references thereto therein were x'd
out. However, due to stenographic inadvertence, the allu-
sions to addendum 2 in articles XII and XIII were over-
looked. When the signed contract was received from the
Respondent, the errant references were stricken, the docu-
ment was signed by the Union, and a copy was returned to
the Respondent. Since the Respondent was not aware until
the hearing of the provisions of addendum 2, it cannot be
said that they were a consideration in the Respondent's
decision to sign the 1972-75 contract. The deletion of the
two references to the addendum by the Union before sign-
ing the document and returning it to the Respondent did
not, in these circumstances , constitute a material alteration,
or a counteroffer. In any event, until it cancelled the con-
tract, the Respondent regarded it as effective and operative.
Its apparent acquiescence is therefore to be regarded as an
adoption of the contract as revised by the Union.
The Respondent also objects that the Union's contract
with SMACNA (among them addendum 2), contains provi-
sions which the Respondent's agreement does not and
which the Respondent considers valuable and would have
desired, had it been apprised of their availability. In the
absence of a showing of fiduciary relationship between the
Respondent and the Union, the fact that the Respondent
now asserts that it could have made a better deal had it been
offered more options, does not affect the validity, of the
agreement which it accepted and signed.
2. Whether the Respondent was obligated to bargain
with the Union absent a valid contract
An employer is required to bargain with a union which
represents a 'majority of his employees in an appropriate
bargaining unit, even though there may be no collective-
bargaining contract in existence. Nor is a written recogni-
tion agreement necessary. It is enough that there be a repre-
sentative of a majority of the, employees in an appropriate
bargaining unit, and a demand for recognition therein. An
employer can, of course, voluntarily recognize a union, as
the Respondent did here. Under ordinary circumstances he
is then required to continue recognition of that union until
a question concerning representation is raised-assuming
884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the appropriateness of the bargaining unit. Here no ques-
tion concerning representation is raised, unless it be in the
Respondent's contention (later discussed) that, because of
Section 8(f) of the Act, it was entitled to cancel the contract
at will. But even that eventuality does not, as we shall see,
necessarily terminate the Respondent's continuing duty to
bargain in the particular circumstances here. We therefore
turn first to the question as to whether the bargaining unit
was appropriate, which the Respondent denies.
3. The appropriate unit
The appropriate bargaining unit alleged in the complaint
is that set out in article I of the 1972-75 contract, as ampli-
fied by addendum No. 1, paragraph No. 2.4
As we have seen, the contract is a standard form of union
agreement in the sheetmetal industry. Over a period of 3
years, the Respondent signed at least two contracts contain-
ing the unit which it now contends is inappropriate. It raised
no specific contention regarding the propriety of the unit
until the institution of the present litigation. The alleged
inpropriety was therefore not a factor in the Respondent's
decision to discontinue dealing with the Union-unless it
can be inferred from the Respondent's position (dealt with
hereafter) that metal roof decking could more properly and
economically be performed by ironworkers.
The essential basis of the Respondent's contention as to
the inappropriateness of the unit is that some of the work
claimed, including that of metal roof deck installation, is
subject to jurisdictional claims by other unions. However,
what the parties contemplated in executing the contract,
and the extent of the Union demands on the Respondent,
was that the only portion of the work set out in the contract
unit which the Union claimed, vis-a -vis the Respondent, was
the installation of metal roof decking 10-gauge or lighter. In
view of the fact that the National Joint Board for Settlement
of Jurisdictional Disputes has awarded such work to the
Sheet Metal Workers' Union, and that the Sheet Metal and
the Iron Workers International Unions have agreed to that
assignment , it can scarcely be contended at this date that
such a specification in a bargaining contract results in an
inappropriate unit.
So far as the remainder of the functions described in the
contract unit are concerned, they are irrelevant to any issue
here. The fact that the unit conforms to that in the previous
contracts between the parties constitutes substantial evi-
The unit is described as follows-
All employees of the employer working within the territorial jurisdiction
of the Union engaged in but not limited to the (a) manufacture , fabrica-
tion, assembling, handling, erection , installation , dismantling, condi-
tioning, adjustment, alteration , repairing and servicing of all ferrous or
non-ferrous metal work of U S # 10 gauge or its equivalent or lighter
gauge and all other materials used in lieu thereof and of all air-veyor
systems and air handling systems regardless of material used including
the setting of all equipment and all reinforcements in connection there-
with ; (b) all lagging over insulation and all duct lining , (c) testing and
balancing of all air-handling equipment and duct work , (d) the prepara-
tion of all shop and field sketches used in fabrication and erection,
including those taken from original architectural and engineering draw-
ings or sketches , and (e) all other work included in the jurisdictional
claims of Sheet Metal Workers' International Association
dence as to its propriety. Barrington Plaza and Tragview,
Inc., 185 NLRB 962.5 That the unit is a standard one in the
sheetmetal industry also tends to support its propriety.
There is no evidence indicating that such a unit is inappro-
priate here, and no substantial ground has been advanced
for such a conclusion. I therefore find that the unit set out
in the contract and alleged in the complaint is appropriate
for the purposes of collective bargaining within the meaning
of Section 9(b) of the Act.'
4. The Union's representative status
At the time the Respondent cancelled the contract it em-
ployed persons in the appropriate unit, all of them members
of the Union, and it continued to employ them, at least on
the Labor Department job, until June 1973.
If there were any doubts as to the Union's representative
status, it is removed by the applicable precedents, for in this
situation the Union is presumed to retain its status, and that
presumption cannot be affected by any changes resulting
from the Respondent's unilateral action.7
For a contractual representative of employees, once val-
idly recognized, continues to be the representative until
clear and convincing contrary proof is shown. Thus in the
case of Ref-Chem Company, 169 NLRB 376, in rejecting a
contention that the General Counsel had failed to establish
that a contracting union was a majority representative of the
employees involved, the Board said the following at page
381:
At all times material, Local 66 was the contractual
representative of these employees and, as such, it is
presumed to be the majority representative of the em-
ployees in the unit. This is not to say that this presump-
tion of majority status cannot be overcome, but to do
so, the record must offer clear and convincing proof
that the union no longer represents a majority of the
unit employees.
This presumption continues to exist even after expiration of
the contract.
Thus as the Board further said in the Ref-Chem case at
footnote 25:
5 In that case the Board said at In 25
Though we do not adopt in all respects the Trial Examiner 's rationale
for his unit findings . we do note that the unit found appropriate by
the Trial Examiner conforms to the scope of the unit previously subject
to the 1967 contract between the Union and the predecessor employer,
Ben Hecht . On that basis, and absent evidence which would indicate
that such a unit is otherwise inappropriate , we find that the unit de-
scribed by the Trial Examiner is appropriate under Sec 9 of the Act
6 The Respondent's bid practices may also suggest the propriety of a unit
of metal roof deck installers Thus, in explaining its bid processes , President
Williams testified that, "A separate task is installing the metal roof deck and
this task is segregated from the other bid figures."
i That the Respondent at the time of cancellation had assigned ironwork-
ers to perform work within the appropriate unit does not change the cogniza-
ble composition of the unit. If the Respondent 's conduct was unlawful, it may
not be recognized as an effective modification of the legal relationships. A
tort-feasor may not take advantage of his own wrong Zidell Explorations,
Inc. 175 NLRB 887
WILLIAMS ENTERPRISES, INC.
Although the collective-bargaining agreement which
served as the basis for the Union's presumption of
majority status expired on June 30, 1965, the day be-
fore these unilateral changes [changes in the wage rates
of employees which the Board found violative of Sec.
8(a)(5) of the Act] were effected, the presumption once
properly invoked is continuing until such time as it is
overcome by proper evidence. No such evidence is to
be found in this record.
See also Barrington Plaza, supra, in accord.
Insofar as the existence of the presumption is concerned,
there is no discernible reason to distinguish between the
situation in which the termination results from expiration of
the contract, and that in which it results from cancellation.
The Union thus continued to maintain its majority mem-
bership in the appropriate unit after cancellation of the
contract.
While, in such a circumstance, it is unnecessary to decide
the question of the legality of the union-security clause un-
der Virginia law, it is found that the contract was legal in
such respects. Article V, which contained the union-security
clause, stated in section 3 that, "The provisions of this Arti-
cle shall be deemed to be of no force or effect in any State,
to the extent to which the making or enforcement of such
provision is contrary to law."
If unlawful in Virginia, the clause is inoperative there. No
contention is made that it was enforced in that State.
5. Whether the 1972 contract was an 8(f) agreement
terminable at will
The Respondent contends, however, that the 1972 con-
tract, even if it came into existence, was an initial "8(f)"
agreement, and that such agreements are terminable at will,
along with an employer's duty to continue bargaining with
the Union. In view of my determination that the Union
continued to be the bargaining representative at all material
times, whether there was a contract in existence or not, this
contention may be deemed academic. However, the contin-
ued existence of a presumption of majority arising out of a
contractual situation is to some extent dependent on the
nature of the contract.
Under Section 8(f) ofJhe Act an employer engaged in the
construction industry may make an agreement with a con-
struction union without prior proof of the union's majority,
and may require membership in the union after 7 days of
employment or the date of the contract, whichever is later.
As we have seen , both the 1969 and the 1972 contracts
contained clauses requiring union membership after 8 days
of employment.
The Board has held that an 8(f) contract carries with it
no irrebuttable presumption of representative status, and
that therefore, in the absence of specific proof of the
Union's majority representation, an employer may validly
cancel an 8(f) contract during its term. R. J. Smith Con-
struction Co., 191 NLRB 693, reversed and remanded sub
nom. Local 150, International Union of Operating Engineers,
AFL-CIO v. N.L.R.B., 480 F.2d 1186 (C.A.D.C., 1973).8
8 Cf Oilfield Maintenance Co., Inc, 142 NLRB 1384, 1387, where the
Board held an employer bound by an 8(f) contract until its termination date.
885
However there are exceptions to that general principle.
Thus, the doctrine is applicable only to initial 8(f)-agree-
ments, and not to succeeding contracts. Bricklayers & Ma-
sons International Union Local No. 3 (Eastern Washington
Builders), 162 NLRB 476, 477-479; Dallas Building and
Construction Trades Council (Dallas County, Construction
Employers' Association), 164 NLRB 938, 943.9
In the instant case, as has been seen, the 1972 contract
was not an initial 8(f) agreement. It was not therefore ter-
minable at will.
Secondly, the doctrine is not applicable where there is
independent proof of a union's majority, as here. Such proof
has been found in compliance with a valid union-security
clause in the contract. Thus, the Board has held, with judi-
cial approval, that where the members of the appropriate
unit were members of the contracting union by reason of
compliance with a union-security clause in the 8(f) contract,
the union's majority status continued and the employer was
obligated to continue to recognize and deal with it. David
F. Irvin and James B. McKelvy, partners, d/b/a The Irvin-
McKelvy Company, 194 NLRB 52, set aside 475 F.2d 1265
(C.A. 3, 1973).10 In the instant case, as we have seen, the
contract contained a valid union-security clause.
6. Whether the Respondent refused to bargain with the
Union
The Respondent contends that in no event could it have
refused to bargain with the Union, for the reason that since
January 5, 1973, there have been no requests to bargain by
9 In the Dallas Building Trades case the Board said,
Even if we assume, arguendo, that the agreements in question here were
of a type that would in other circumstances be unlawful but for the
provisions of Section 8(f), it does not follow that successive renewals of
such agreements would be subject to the second proviso to Section 8(f).
The Association 's contracts with local labor organizations here were not
initial agreements , but the latest fruits of continuing bargaining relation-
ships dating back as far as 1948. As we recently pointed out in Bricklay-
ers & Masons International Union Local No. 3 (Eastern Washington
Builders), "the legislative history of Section 8(f) reveals that the Congress
envisioned its prehire provisions as applying only to the situation where
the parties were attempting to establish a bargaining relationship for the
first time" In the Bricklayers case we held that the duty to bargain in
good faith, not applicable to initial negotiations for an 8(f) contract, was
enforceable during negotiations for a renewal. A parallel situation ob-
tains here . Under normal contract bar rules, therefore, no question
concerning representation could have been raised in this case during the
period of the agreements material herein.
See also Mishara Construction Company, 171 NLRB 471, and Island Con-
struction Co, Inc, 135 NLRB 13.
10 Thus the Board said in the Irvin case at p 53:
Although we have held that an 8(f ) contract, standing alone , creates no
presumption of majority status, in the instant case it is conceded that all
of Respondent's unit employees were members of District 50 by virtue
of compliance with the union-security clause in the contract. Therefore,
District 50 was still the representative of employees working on projects
which carried over after March 31 where District 50 had majority status,
and Respondent was thus obligated to negotiate with District 50 over
the employees on these projects It was not free at those projects to take
any unilateral action with respect to wages, hours, or conditions of
employment or to withdraw recognition and confer it on another union.
[Footnote omitted.]
886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union.
It will be recalled that at the meeting of January 5, 1973,
the Respondent refused to submit the assignment dispute to
the grievance procedure of the contract. Since the Union
was the representative of the employees, and the dispute
involved terms and conditions of employment, the Respon-
dent was obligated to negotiate the matter upon request.
The Respondent's refusal to do so on January 5 was thus
a refusal to comply with its bargaining obligation under the
Act. That the Union may have made no further request to
bargain thereafter is therefore of no significance. It had
already made its request, which the Respondent had re-
fused. There is no requirement that a rejected demand to
bargain must be reiterated before the refusal becomes un-
lawful. In any event, it is evident from the Respondent's
basic position that any further request would have been
futile. In such a circumstance, also, none is required If there
were any doubt about the matter, and the futility of any
further request by the Union, it is removed by the
Respondent's letter of January 19, 1973, in which it reiterat-
ed its refusal and cancelled the contract.
In the case of Ogle Protection Service, Inc., 149 NLRB
545, the Board, affirmed by the Court of Appeals for the
Sixth Circuit in this respect 375 F 2d 497 (C.A 6, 1967), cert.
denied 389 U.S. 843 (1967), found a violation of Section
8(a)(5) in conduct of a respondent in refusing to sign an
agreed-upon contract and thereafter refusing to process
grievances filed by the union. See also N.L.R.B. v Hyde,
supra.
7. The alleged breaches of contract by the Union;
Section 8(d) of the Act
The Respondent's letter of January 19, 1973, cancelling
the contract stated, in sum , that the Union's insistence on
applying sanctions against the Respondent through the
grievance procedures of the contract, despite the economy
and efficiency of tf.e reassignment, left the Respondent no
alternative but to cancel the agreement.
The Respondent now additionally contends that the can-
cellation was justified by various breaches of the contract
by the Union. A substantial portion of the hearing and the
evidence were directed to this issue. It has been seen that,
whatever the merit of the Respondent's grievances against
the Union, and however justified its cancellation under ba-
sic contract law, the Union at all times material continued
to be the collective-bargaining representative of the
Respondent's employees in the appropriate unit , and that
the Respondent refused to bargain with the Union by refus-
ing to negotiate grievances and by unilaterally changing the
conditions of employment. In the circumstances of this
case , at least in the absence of a breach of contract strike
by the Union (see Marathon Electric Mfg. Corp., 106 NLRB
1171), a breach of contract by the Union would not be a
defense to the Respondent's refusal to bargain.
Even if it be assumed that the Respondent validly can-
celled the contract, it does not necessarily follow that the
Respondent was authorized to bypass the procedural re-
quirements of Section 8(d) of the statute in so doing.
Section 8(d) provides, inter alia, that no party to a collec-
tive-bargaining contract shall terminate or modify such
contract unless he (1) serves written notice on the other
parties 60 days prior to the time it is proposed to make such
termination or modification, (2) offers to meet for the pur-
pose of negotiating a contract containing the proposed
modifications, (3) notifies the Federal Mediation and Con-
ciliation Service of the dispute, and (4) continues the con-
tract terms in effect for 60 days without resorting to strike
or walkout.
In the case of Pence Construction Corporation v. Hoisting
and Portable Engineers Local 450, I UOE, 484 F.2d 398 (C.A.
5, 1973) the union engaged in a strike in violation of con-
tract. In a breach of contract action brought by the employ-
er under Section 301 of the Labor Management Relations
Act, the union contended, and an arbitrator had found, that
the employer had violated the contract by discharging an
employee because of his union activities, this being the ap-
parent cause of the strike. The union argued that under
applicable state law material violation of a contract by one
party relieved the other party of any further obligation to
comply with its provisions. The court, assuming the accura-
cy of the statement, nevertheless held that this was not a bar
to effectuation of the Federal policy embodied in Section
301. The Court said (p. 401),
As indicated above, federal labor law contemplates
damage awards for strikes in violation of collective
bargaining agreements. No exception to that rule has
been established for situations involving a prior breach
of the agreement by the employer. To the contrary,
grievance procedures constitute an integral part of the
collective bargaining contract, so that a dispute over
one aspect of the agreement can be resolved without
imparing other contractual rights and obligations. In
Drake Bakeries, supra, the Supreme Court declared that
"[a]rbitration provisions, which themselves had not
been repudiated, are meant to survive breaches of con-
tract, in many contexts, even total breach." 370 U.S. at
262.
In the case of Local Union No. 721, United Packinghouse,
Food and Allied Workers v. Needham Packing Co., 376 U.S.
247, where the company discharged an employee and the
union then struck, the company opposed arbitration on the
ground that the union had "repudiated and terminated the
Labor Agreement." The Supreme Court held that the duty
to arbitrate remained in force even though the union had
violated its agreement.
There is even authority for the proposition that the
breach of a no-strike clause does not relieve the employer
of his duty to arbitrate the issue giving rise to the stoppage.
In the case of N.L.R.B. v. State Electric Service, Inc., 198
NLRB No. 77, enfd. 477 F.2d 749 (C.A. 5, 1973) the em-
ployer terminated a contract during its term, after a strike
by the union which the employer deemed in violation of
the contract. The Board and the court held that the strike
was not in violation of the contract, and that therefore the
employer's action was violative of Section 8(a)(5). Howev-
er, the court said, quoting the Needham Packing Company
case, that even if there had been a breach of the no-strike
11
WILLIAMS ENTERPRISES, INC. 887
clause that would not necessarily constitute a breach of the
entire contract. Thus, the court said:
If a breach of a no strike clause is not enough to relieve
the employer of his duty to arbitrate the issue giving
rise to the illegal work stoppage, it can certainly not
automatically be held that a breach of a no strike clause
terminates the entire contract with the union. Here,
assuming that the union did indeed breach its obliga-
tion by calling the stoppage, under the circumstances
of this case that does not seem sufficient to justify the
employer's position that the entire contract was ren-
dered void. . . . At most, it would seem the employer
only had an action against the union for any damages
growing out of the stoppage or a suit for a possible
infunction under Boys Market [Boys Markets, Inc. v.
Local 770, Retail Clerks Union, 398 U.S. 235 (1970)]. In
fact, even here there is a strong argument that the
employer's only course of action would require his fil-
ing a grievance and resorting to arbitration over wheth-
er or not this was an illegal work stoppage."
The Respondent's action in cancelling the contract with-
out complying with the procedures of Section 8(d) was
therefore contrary to the provisions of the Act.
8. Whether the Union was required to resort to the
National Joint Board for resolution of the assignment
dispute
The Respondent contends that the Union was bound to
invoke the processes of the National Joint Board for the
Settlement of Jurisdictional Disputes to determine the as-
signment dispute. The Respondent's arguments in this re-
spect are (1) the Union was bound by the International's
agreement to the procedures of the National Joint Board,
(2) article XI' of the contract provided for work assignment
disputes to be taken to that Board, (3) the Respondent had
no such right, (4) the Respondent thus had no option but
to cancel the agreement, and (5) article I of the contract, the
coverage clause (see fn. 4, supra), did not cover work assign-
ment disputes.
That the Union was bound to observe the decisions and
procedures of the National Joint Board for the Settlement
of Jurisdictional Disputes is conceded. The Respondent was
equally bound. In article XI of the contract the Respondent
agreed to respect and apply national agreements between
the Union and other international unions covering work
ii Cf. Marathon Electric Manufacturing Co., 106 NLRB 1171, enfd sub
nom. N.LR B. v . United Clerical, Radio and Machine Workers of America,
Local 1113, 223 F 2d 338 (C.A.D C, 1955) There a union demanded modifi-
cation of a' collective-bargaining contract without compliance with Sec 8(d),
and supported the demand by calling a strike in violation of a no-strike clause
in the contract . As a consequence the employer cancelled the contract The
Board and the court found no violation of Sec . 8(a)(5) and 8(d) in the
employer's recision of the contract While that determination does not ap-
pear to be wholly consistent with some of the cases cited above , it is distin-
guishable from the instant situation , because it involved a breach of a no-
strike clause preceded by a violation of Sec . 8(d) As the court said in the
Marathon Electric case . "The prevention of strikes is one of the principal
purposes of labor contracts and of the Act A no-strike provision is `The
chief advantage which an Employer can reasonably expect from a collective
agreement: "
jurisdiction and the assignment of work. As we have seen,
the National Joint Board for the Settlement of Jurisdic-
tional Disputes decided in 1948 that the work here involved
belonged to the sheetmetal workers, and in 1966 the Inter-
national unions of the Sheet Metal Workers and of the Iron
Workers entered into an agreement adopting that determi-
nation. The Respondent's position thus appears to be that
it was free to ignore its obligations under article XI of the
contract, and to make work assignments contrary to the
decisions of the National Joint Board, and that the Union's
only remedy was to appeal to the National Board for a
remedial order directed specifically at the Respondent. In
my opinion the Union was under no such obligation. That
view seems confirmed by the Board's decision in the case of
Sheet Metal Workers' International Association, Local Union
No. 49 (Los Alamos Constructors, Inc.), 206 NLRB 473
(1973), discussed more fully in section 14, infra.
However, even if there had been such obligation, there
was then no such board to whom the Union could appeal.
For at the time of this controversy the Dunlop Board had
gone out of existence.12
In any event, the Respondent had bound itself by con-
tract to assign the work of installing metal roof decking
10-gauge or lighter to the Union, and had agreed to resolve
differences through the contractual procedure. In these cir-
cumstances it was not privileged to disregard those commit-
ments.
In such a situation it would be irrelevant, if it were true,
that the Respondent had no plenary authority to take the
dispute to the National Joint Board for the Settlement of
Jurisdictional Disputes, or its successor. 13
9. Whether there was a jurisdictional dispute
The basis of the present controversy is not a dispute
between the Sheetmetal Workers Union and the Iron Work-
ers Union over the assignment of work, but the
Respondent's asserted dissatisfaction with the performance
of sheetmetal workers in the installation of metal roof deck-
ing. There is no substantial evidence that Local 5 of the Iron
Workers Union claims such work. Section 2(b) of the
Respondent's contract with Local 5 of the Iron Workers
provides that, "The parties to this Agreement are subject to
and agree to be bound by all decisions and awards made by
the National Joint Board for Settlement of Jurisdictional
Disputes with respect to all jurisdictional disputes which
may arise under this Agreement."
In addition paragraph 2(a) of that agreement provides in
sum that the work covered by the agreement is that provid-
ed in the charter of the International Iron Workers Union
"subject to trade agreements" and to "decisions rendered by
the National Joint Board for the Settlement of Jurisdic-
12 The Respondent's contention in this regard appears to contradict anoth-
er of its positions. Thus, in disavowing the binding effect on it of the reaffir-
mation, by the successor to the Dunlop Board, of the latter 's 1948 assignment
decision, the Respondent states that it had not assented to be bound by the
decisions of the successor board, Presumably, if the Union had submitted the
issue of the legitimacy of the Respondent' s assignment and had been success-
ful, the Respondent would have taken a similar position. This would raise a
question as to the Respondent's good faith
13 The evidence taken at the hearing seems to suggest that the Respondent
did have such a right, but I find the answer not altogether clear.
888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tional Disputes." Nothing in the contract between the Re-
spondent and Local 5 therefore is interpretable as claiming
that the installation of metal roof decking 10-gauge or light-
er is within the jurisdiction of Local 5.14
It appears to be true that the Respondent assigned instal-
lation of metal roof deck 10-gauge or lighter to its ironwork-
ers on a number of occasions (in addition to those in
December 1972) during the term of its contracts with the
Union. When not protested by the Union (presumably for
lack of knowledge), the work was performed by the iron-
workers It may also be true that many, perhaps most or all,
ironworkers feel that they are entitled to all roof deck instal-
lation. However, so far as the evidence reveals, on every
occasion during the term of the contracts that the Respon-
dent assigned the work to the ironworkers and the Union
protested to officials of the Iron Workers Union, the latter
ordered the work turned over to the sheetmetal workers.
There was thus no jurisdictional dispute between the two
Unions.i5
10. Whether work assignment disputes are subject to the
grievance procedure
With respect to this contention of the Respondent, two
facts are dispositive: The first is that article X, section 1, of
the contract provides that "Grievances of the Employer or
the Union, arising out of interpretation or enforcement of
this Agreement" shall be settled through the grievance pro-
cedure. The Respondent's specific claim is that the Union
breached the contract, the Union's claim is that the Respon-
dent did so. This is plainly a dispute or grievance over the
interpretation or enforcement of the agreement, and conse-
quently within the purview of the grievance procedure. Arti-
cle III of the contract provides that none but journeymen
and apprentice sheetmetal workers should be employed on
any of the work covered in article I. The uncontradicted
evidence is that local joint adjustment boards in the District
of Columbia area have handled many disputes involving
assignments of work. The statement in article I that "This
Agreement covers the rates of pay, rules and working condi-
tions" of employees in the unit is not language describing
or limiting the types of disputes subject to the grievance
procedure.
The view that an issue of this kind is properly taken to this
type of contractual grievance procedure is confirmed by the
Board's decision in the case of Sheet Metal Workers' Local
14 While the general working rules of the international Association of
Bridge, Structural and Ornamental Iron Workers claim jurisdiction over
metal roof decking , the general working rules are not incorporated in the
Respondent's contract with 'Local 5. In addition , it will be remembered that
jurisdiction over metal roof decking heavier than 10-gauge was awarded to
the Iron Workers Union by the National Joint Board for the Settlement of
Jurisdictional Disputes The jurisdictional claim in the general work rules is
therefore to be interpreted in accordance with that award If there were any
doubt, the general working rules themselves specifically provide that, "The
above claims are subject to trade agreements and decisions of the National
Joint Board for the Settlement of Jurisdictional Disputes" (Section I )
is Without suggesting that the General Counsel 's decision would bar litiga.
tion of the issue in this proceeding , I takejudicial notice of the fact that under
date of November 13, 1973, the General Counsel's office of appeals denied
an appeal by the Respondent from a refusal by the Regional Director to issue
a complaint on the Respondent 's charge that the two Unions were involved
in a jurisdictional dispute (case 5-CD-202).
49 (Los Alamos Constructors, Inc.), supra, where the Board
overruled a contention similar to the Respondent's involv-
ing the identical type of clause.
11. Whether the local joint adjustment board was biased
against the Respondent
The Respondent contends that it could not receive a fair
and unbiased hearing before the local point adjustment
board. As to this, one short answer seems dispositive. The
Respondent consented by contract to submit grievances to
that board. Under such circumstances it was obligated, as
a minimum, to submit to the jurisdiction of the board, to
present its case there, and to secure a determination. If the
conduct and the judgment of the board were without due
process of law, improper under the contract, or so biased or
prejudiced as not to merit enforcement, the Respondent
could have applied to the courts for relief. Having chosen
not to do so, the Respondent is not now in a position to
claim that had it observed its agreement, its case would not
have been fairly fudged, and that the action which it took
was the only option open to it.
Aside from what appear to be insignificant procedural
objections, the Respondent asserts that the local joint ad-
justment board could not be impartial because it was com-
posed of sheetmetal contractors and union officers, that the
contractors were competitors of the Respondent, or former
members of the Union, that none of them were steel erectors
with an incentive to defend an iron contractor, and that
both the contractors and the Union had a financial stake in
exacting fines from the Respondent for the various industry
funds, because that would reduce the need for their own
contributions.
One of the policies of the National Labor Relations Act
is to encourage parties to labor disputes to resolve such
controversies through their own resources or procedures. In
keeping with that policy the Board will, in certain circum-
stances, accept disposition of the controversy before the
Board by a decisional body established by the parties them-
selves for the resolution of differences. Spielberg Manufac-
turing Company, 112 NLRB 1080. In Collyer Insulated Wire,
192 NLRB 837, the Board established the correlative princi-
ple that it would defer processing of an unfair labor practice
charge if a reasonable probability existed that the underly-
ing dispute could be fairly and finally resolved through the
parties' procedures in a manner consistent with the Spiel-
berg case.
Of course, if a party agrees to the submission of contro-
versies to a particular forum or tribunal for final resolution,
it is with the contemplation that the resulting adjudication
will be fair. Normally, however, a party will not be heard
to attack a procedure to which he has consented. In the
instant case the considerations cited by the Respondent do
not constitute evidence of such unfairness in the localjoint
adjustment board as to warrant the Respondent to refuse to
submit its dispute to the board in accordance with the
Respondent's commitment. None of the contractor mem-
bers of SMACNA are engaged in the business of steel erec-
tion, and only a few, at most, install metal roof decking.
Thus they are not in substantial competition with the Re-
spondent, though even if they were that would not seem to
WILLIAMS ENTERPRISES, INC.
be a ground for disqualifying them from adjudicating the
Respondent's controversy under the contract. Each sheet-
metal contractor member of SMACNA is subject to the
same disability, if it be such. That, as the Respondent says,
they have no real interest in steel erection seems, in essence,
an assertion that they have no predisposition to bias in favor
of the Respondent. The absence of interest would seem
more likely to result in impartiality than the contrary. That
there are union members or union officials on the board is
scarcely a basis for attack on the mechanism since the Re-
spondent contracted for it with knowledge of that fact.
Moreover, such mixed membership is not unusual in griev-
ance procedures of this type.
I find no evidence to warrant the conclusion that the local
joint adjustment board was unqualified to determine the
controversy, biased against the Respondent, or unable or
unwilling to judge the Respondent's case fairly and impar-
tially. There is no evidence, indeed no suggestion, of person-
al bias on the part of any contractor member of the local
joint board which decided the controversy.16
12. Whether the Union breached the contract by not
supplying the Respondent with qualified workmen
Under article IX of the 1972-75 contract the Union
agreed to furnish, upon request by the Respondent, "duly
qualified journeymen and apprentice sheetmetal workers in
sufficient numbers as may be necessary to properly execute
work contracted for by the Employer in the manner and
under the conditions specified in this Agreement."
The Respondent's principal ground for cancellation of
the contract is that the Union breached the agreement by
failing to provide the qualified workmen required by article
IX.
The testimony and evidence with respect to this issue is
substantial, and in large measure in basic conflict. Fairly
appraised, if the Respondent's testimony and the opinions
of its witnesses on this subject are accepted, the sheetmetal
workers supplied the Respondent by the Union were in
large measure incompetent. If the General Counsel's and
the Union's evidence is accepted, they were skilled and
competent craftsmen.
The Respondent's position, supported by evidence, is that
the sheetmetal workers were too slow, nonproductive, un-
able to lay steel decking properly, and unable to weld with-
out burning holes through the material-these deficienceis
16 In his testimony Respondent 's president , Frank Williams, referred to a
decision by a joint adjustment board of the Sheetmetal Workers in a case
involving another Williams Company located in Georgia, of which Mr. Wil-
liams is also president . Based, apparently , on factual statements received
from staff personnel of the Georgia company , he described the proceeding
and the decision as unfair In addition the Respondent cites reports which
it had received to the effect thatjoint adjustment boards in other parts of the
country had rendered unfair decisions , and, specifically , that the Washington
area board had decided a case against another Washington contractor who
was not a member of SMACNA The gist of these reports, according to the
Respondent , is that no nonmember of SMACNA could receive a fair deal
from a joint adjustment board.
Though I find this evidence probative as to the Respondent 's motivation,
I do not find it of any substantial weight in supporting the Respondent's view
that it constituted adequate justification for the refusal to abide by the
contract terms.
11
889
resulting in labor costs exceeding the bid prices, either
through excessive labor or extensive repair, or both. The
General Counsel and the Union contend, supported by evi-
dence, that the workmanship was competent and that any
excessive costs were the result of factors beyond the sheet-
metal workers' control, such as changes in building plans,
failure of the Respondent to provide adequate accessory
equipment or assistance, deficiencies in the underpinning,
or inefficient scheduling of work by the Respondent.
No doubt there is merit in some of Respondent's observa-
tions in particular instances, though to what extent may be
problematical; others may appear implausible. Thus it may
be true that sheetmetal workers as a class are not as agile
on open steel work as are ironworkers as a class, that sheet-
metal workers as a group do not work as much at installing
decking as do ironworkers and thus may not be as profi-
cient, that the ironworker need not be as precise and time-
consuming in his measurements as is the sheetmetal worker
by habit and training, that there is a greater turnover among
sheetmetal workers when doing metal roof decking because
they preferred, and accepted, more traditional sheetmetal
work when it became available, and that there is more dead
time when sheetmetal workers are used.t"
I assume that the Respondent was sincerely dissatisfied
with the sheetmetal workers' installation of metal roof deck-
ing, in comparison with the performance of the ironworkers
at that task. In the absence of other apparent plausible
reasons, I accept the Respondent's testimony that the moti-
vation for the Respondent's dissatisfaction was that the Re-
spondent could do the job more economically with
ironworkers, or with greater convenience. Since the Respon-
dent was presumably in business for profit there seems point
in the Respondent's comment that "we could care less who
installed the materials, as long as they were done in an
economical and efficient manner." However, I have diffi-
culty accepting the hypothesis that the work of the sheet-
metal workers was as unsatisfactory as the Respondent's
evidence suggests.
In the first place, whatever the merits or demerits of sheet-
metal workers as roof decking installers, the Respondent
admittedly had ample opportunity and experience prior to
executing the 1972 contract to evaluate their competence at
installing roof decking. In addition, it seems of significance
that even after cancelling the contract the Respondent re-
tained sheetmetal workers on its payroll installing decking
until June 1973. Furthermore, the Respondent's work rec-
ords disclose that during the period 1969 through early
1973 it employed 61 sheetmetal workers who worked a total
of over 17,000 hours installing roof decking for the Respon-
dent. Over 50 percent of these hours of work were per-
formed by four men (Furlong, Bittinger, Pleger, and
Bagwell) whom the Respondent concedes to be competent.
These figures are of significance not only with respect to the
caliber of work performed, but also on the stability of the
17 Thus, being on the job, ironworkers could move directly from steel
erection to deck installation , whereas arrangements have to be made to
secure a crew of sheetmetal workers to appear for work at the proper time
In addition , if corrections or repair were required in the underpinning to
accomodate the roof decking , an ironworker could make this accommoda-
tion himself, whereas it would be necessary for a sheetmetal worker to sum-
mon the ironworker
890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's sheetmetal workers as a work force. Finally,
though President Williams testified that he continually
complained during the entire period that he used sheetmetal
workers about their competence, the Respondent signed at
least two agreements over a period of 3 years contracting for
their services.1B
It appears to me unlikely that the performance of the
sheetmetal workers was as dismal as the Respondent sug-
gests. I therefore conclude that the evidence in that regard
is exaggerated, and basically debatable opinion. In reaching
that conclusion I have taken into account my own appraisal
from the record as to the qualifications for the job of roof
decking: agility, physical strength, manual dexterity, and
welding capability. The latter two are qualifications for
sheetmetal workers. I do not find it possible to accept testi-
mony that certified welders, whose basic employment was
with light metals, were incapable of welding metal roof
decking properly.
In light of these considerations I am unable to find that
the Respondent has provided sufficeint evidence to warrant
the conclusion that the Union breached article IX of the
contract to such a material extent as to warrant the Respon-
dent in cancelling the contract prior to its termination date.
13. The Mansion House issue
The Respondent finally contends that the Union discrim-
inates against minorities under the principle of the Mansion
House case.19 More specifically, the Respondent asserts that
the Union's failure to supply minority employees, though
requested, jeopardized the Respondent's compliance status
under the "Washington Plan," and that this was part of the
Union's breach of article IX of the contract.
As we have seen from the Respondent's letter of January
19, 1973, in which the Respondent cancelled the contract,
the Respondent then stated that its assignment of the dis-
puted work to the ironworkers was made "solely on the
basis of the economy and efficiency of our operations." In
18 Thus, the testimony of Respondent's President Williams
Q (By Mr Karatinos) Now, you stated that you had complained to
the union over a period of time about the union's failure to refer you
qualified workers, is that correct'
A. Yes, sir
Q What period of time are you talking about'?
A Well, I would say over three years, over the entire time that we
used them, I was never happy, and every time I got the opportunity, I
voiced my complaints . I talked to Mr Murray [ business manager of the
Union ] about it on numerous occasions too
Q Well, when your firm entered into the agreement, the current
agreement on September the first , 1972, was it with the expectation that
the union's referral of individuals would have improved"
A I would have certainly hoped so, but I don't know
Q Based upon your previous experience"
A Based upon my previous experience , I could not honestly say that
I would have expected any improvement
19
N L R B v Mansion House Center Management Corp. 473 F 2d 471
(C.A 8, 1973).
its answer to the complaint dated August 3, 1973, the Re-
spondent made no reference to the Mansion House defense.
The matter was first alluded to in an oblique reference,
not pursued or explained, in the Respondent's opening
statement at the hearing. The Respondent first explicitly
avowed the issue in the cross-examination of Union Repre-
sentative John J. Murray, a witness for the General Counsel,
on the first day of the hearing. Objections to litigation of the
issue were overruled on the basis of the Mansion House
opinion and the Administrative Law Judge's belief as to
what he conceived Board polity to be.
Briefly stated, the holding of the court of appeals in the
Mansion House case was that a union which discriminates
in its admission policies on the basis of race is not entitled
to the benefits of an N.L.R.B. remedial order.
a. The "Washington Plan"
In 1970 the United States Department of Labor, pursuant
to Executive Order 11246, as amended, 3 C.F.R. § 402,
issued the "Washington Plan." This plan, designed to fur-
ther minority employment in the construction industry, and
applicable to Federal construction contractors and federal-
ly assisted contractors in the Washington, D.C., area, estab-
lished numerical or percentage goals of minority
employment by contractors, noncompliance with which
would subject contractors to loss of federally sponsored or
assisted projects. 41 C.F.R. § 60-5.
b. Timeliness of the claim
The General Counsel contends that the Respondent's
claim of racial discrimination is untimely and, in the ab-
sence of justification, not now appropriately raised. Thus, in
the case of N L.R.B. v. Ricks Lumber Comapny, Inc., 481
F.2d 1401 (C.A. 5, 1973), enforcing 200 NLRB 211, the
Board, with the concurrence of the court of appeals, refused
to consider such a defense when raised for the first time in
a motion for reconsideration filed after issuance of the
Board's decision and the filing of a petition for enforce-
ment. The Board denied the motion, apparently on the
ground that it was untimely. The court of appeals enforced
summarily.
It is evident from the facts that the Respondent was not
motivated in cancelling the contract and in taking the other
actions under review by the Union's racial policies, or its
failure to refer minority employees. I find that the
Respondent's addition of this defense, as a ground for its
actions, is an afterthought. At no time prior to or at the time
of the cancellation of the contract did the Respondent make
any reference to the Union's failure to furnish minority
employees or its asserted discriminatory racial policies as a
basis for the Respondent's conduct. The court's opinion in
the Mansion House case did not issue until February 12,
1973, well after the Respondent's contract cancellation.
However, I do not accept the General Counsel's conten-
tion that the Respondent' s raising of the issue was so un-
timely as to preclude its consideration. For statutory and
constitutional reasons, I deem the issue one relating to the
authority of the Board to issue an affirmative remedial or-
der. In such a context I do not consider the Respondent's
WILLIAMS ENTERPRISES, INC. 891
motivation or its good faith as necessarily controlling.
Nor do I consider the Respondent 's introduction of the
issue so untimely here as to require its rejection . There must,
of course , be some time limit . The Ricks case establishes
that the matter must be raised before the Board 's order is
entered and the jurisdiction of the court of appeals is in-
voked . Whether that is the final line must await further
adjudication.
For the purpose of this case I find that a Mansion House
issue is timely when raised on the first day of an unfair labor
practice hearing, as here . Beyond that I find it unnecessary
to go . That the Respondent did not formally amend its
answer to include the issue as an affirmative defense, I find
not controlling . Once the hearing has begun , it is my view
that an additional statement, made in the transcript of re-
cord, in the nature of an affirmative defense , is to be
deemed an amendment to the answer.
c. The merits of the claim
Since engagement in racially discriminatory employment
practices is violative of public law and policy , the Board
may be precluded, under the Mansion House principle, from
extending its remedial policies, remedies, or procedures to
a union which engages in such practices.
We turn then to a consideration of the facts.
First, as an affirmative defense, the burden of proof is on
the Respondent to establish that the Union engaged in the
prohibited practices . A large amount of evidence bearing on
the issue and the Union's policies in that regard was intro-
duced , most of it provided by the Union 20
The evidence produced by the Respondent in that regard
was testimony by President Williams to the following effect:
The Respondent was not referred any minority sheetmetal
workers by the Union. In September 1972 a compliance
officer of the United States Department of Transportation
reviewed the Respondent 's minority hiring record on a Met-
ro (subway) project in Washington, D.C21 Following his
review, the compliance officer advised President Williams
that the Respondent 's complement of sheetmetal workers
contained no minority employees, and that the Respondent
was thus subject to being cited for noncompliance with the
Washington Plan, but that in view of the Respondent's ex-
emplary record of minority hiring among the ironworkers,
he would not recommend citing the Respondent . The Re-
spondent was not cited. President Williams further testified
that he then instructed another official of the Respondent,
Pearson , to call the Union and ask for the referral of minori-
ty sheetmetal workers. According to the testimony of Presi-
dent Williams, Pearson reported later that he had contacted
Ernest Miller, a business manager for the Union who is in
charge of minority employment, who advised him that
SMACNA members were given priority in referral of mi-
norities, and that there were therefore none available for the
Respondent. Pearson did not testify.
Business Manager Miller testified , in rebuttal , that he did
not recall any such request from the Respondent . In these
20 Several days of hearing were devoted to the matter.
21 It is not explained how sheetmetal workers were involved in that project
as employees of the Respondent
circumstances I am not prepared to find that such a request
was made . However, my conclusion as to the Mansion
House issue would be the same even if I found that the
request was made.
Thus the Respondent 's evidence would show no more
than that no minority employees were referred to the Re-
spondent by the Union. Such evidence does not establish a
discriminatory membership or referral policy by the Union.
Nor, as previously indicated, can I find that the Union's
asserted failure in that regard was a factor in the
Respondent 's cancellation of the contract and the assign-
ment of metal roof decking to the ironworkers.
The Union's Minority Programs
We turn then to the evidence introduced by the Union to
determine whether there is in that substantial evidence of
discriminatory racial policies and practices . While the Re-
spondent has not met the burden of proof in this regard, the
question still remains whether, on the basis of the evidence
in the record , however sponsored , there is sufficient ground
to conclude that the Union's policies and practices were in
fact racially discriminatory . If so, accepting the Mansion
House principle as reflecting the Board's view , the Union
may not receive the benefit of an NLRB remedial order.
At the time of the inauguration of the Washington Plan
in 1970, minority representation in the Sheet Metal Workers
in the Washington , D.C., metropolitan statistical area was
1.1 percent . By September 1973, when the instant hearing
was in progress , minority membership in the Union had
increased to 12.7 percent, in substantial part as a result of
programs initiated or supported by the Union.
In 1968, prior to the institution of the Washington Plan,
the Union began to participate in programs designed to
increase minority representation in the craft . The first of
these is a program called Project Build.
Project Build is an organization established by The Fed-
eral Manpower Training and Development Act for the pur-
pose of recruiting , training , and placing minorities in the
construction trades in the Washington area with the aim of
achieving the objectives of Executive Order No. 11246 and
the Washington Plan. It is sponsored by the Greater Wash-
ington Center Labor Council, AFL-CIO, and the Washing-
ton Building and Construction Trades Council, and funded
by the United States Department of Labor, Manpower Ad-
ministration. It is governed by a board of directors com-
prised of members of the minority community , the building
and construction trades industry (both management and
union), and Federal and local government representatives.
It operates through a professional staff , and with the
cooperation and assistance of unions and employers in the
construction field . In the sheetmetal industry, Project Build
recruits and trains , among others , adult minority individu-
als who, because of their age , are ineligible for admission to
the Union's apprentice program , to achieve journeyman
status 22
In addition to the journeyman training and admissions
program, the Union's apprentice program has been re-
formed to give impetus to minority apprentice training. The
22 The apprentice program has an age limit of 25
892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union has maintained a shop and provided technical train-
ing for apprentices for many years. Admission to the ap-
prentice program is now on a 1-to-I basis, that is, half of the
openings are reserved for minorities. In addition the Union
has abandoned aptitude tests, which it previously employed,
in order to avoid builtin bias flowing from educational and
cultural factors.
Sheet metal working is a hightly developed craft requiring
a variety of skills, academic as well as manual. In addition
to the physical dexterity required in the use of tools for the
fabrication of metal products, the trade also involves some
knowledge of mathematical and physical laws, such as ge-
ometry and trigonometry and the dynamics of air pressure.
Mastery of those concepts requires capacity to comprehend
the oral and the written media in which the principles of the
concepts are expressed. Ability to read blueprints is a neces-
sity. Because of these considerations the Union requires a
high school diploma or its equivalence for admission to the
apprentice training program.
Lack of the essential academic skills can be a barrier to
absorption of minorities into the skilled crafts. If left to
himself the minority applicant who is unable to fulfill the
academic requirements may find it impossible for economic
or other reasons to enter the craft. To help overcome that
barrier, the Union has established a program, perhaps
unique in the trades, for academic training combined with
work at the craft, for individuals young enough to be eligible
for the apprentice school. This program is exclusively for
minorities. It is known as the preapprenticeship training
program.
In each of these programs, in addition to the training,
much of it provided and financed by the Union, the Union
also provides work permits to enable the trainees to be
gainfully employed in the industry while completing the
training.
Warren Johnson, vocational training director of Project
Build , testified concerning the experiences of Project Build
with the Union in the recruitment and training of minority
personnel. Director Johnson thus summed up his evaluation
of the efforts of'the Union to bring minority workers into
the sheetmetal trades:
A. At this time I can honestly say that Local 102 has
made a concerted and honest effort to work with Pro-
ject BUILD and to bring minority recruits into the
mainstream of construction, especially involving sheet-
metal.
Q. Do you feel that during the past year that sheet-
metal workers activity has been the same, that they
have not been discriminating against minority employ-
ees?
A. Well, you said the last year. I can go back be-
cause I have had the opportunity to work with Local
102 for the entire four years that I have been with
Project BUILD.
Q. And you feel that during that time they have
made their best efforts to increase in the industry the
number of minority workers?
A. In my opinion they have.
Q. Do you have any evidence that 102 has discrimi-
nated against any minority employees during this time?
A. I don' t have any evidence myself.
On the basis of these facts I conclude that there is no
substantial evidentiary basis on which to find that the
Union pursues racially discriminatory policies or practices.
It is of course true that the Union's percentage of minority
membership is only 12.1 percent. While this is substantially
smaller than the minority population proportion in the Dis-
trict of Columbia, the gap may be narrower in the Union's
total jurisdictional area? In addition it is to be noted that
over a period of 3 years the ratio of minority membership
in the Union in the Washington statistical area has in-
creased approximately 12 fold. In any event, the disparity
does not appear, on the evidence, to be ascribable to union
policies or procedures. Therefore, on this record, no finding
of discrimination by the Union on the basis of race is war-
ranted.
14. Alleged unfair labor practices by the Union, SMAC-
NA, and individual sheetmetal contractors
I find nothing in the evidence to sustain the Respondent's
contention that the Union,
SMACNA, and individual sheetmetal contractors sought to
restrain and coerce the Respondent economically into
changing work assignments, and committed unfair labor
practices by violating the terms of the collective-bargaining
agreement and by levying fines or penalties against the Re-
spondent to force the Respondent to change work assign-
ments in violation of Section 8(b)(4)(D) of the Act.
I find the Respondent's contentions in these respects re-
futed by the Board's decision in the case of Sheet Metal
Workers' International Association, Local Union No. 49 (Los
Alamos Constructors, Inc.), and International Association of
Bridge, Structural and Ornamental Iron Workers, Local
Union No. 495, 206 NLRB 473. That case involved a juris-
dictional dispute between the Sheetmetal Workers Local
and the Iron Workers Local over which of them should
remove and replace certain air blowing equipment. The
unions being unable to agree, and no one invoking the
services of the National Joint Board for the Settlement of
Jurisdictional Disputes, the employer assigned the work to
the Iron Workers. The Sheetmetal Workers then announced
their intention to institute a 301 suit in the Federal courts.
In addition Sheetmetal Workers invoked the grievance pro-
cedure in article X of their contract with the employer. That
is the identical procedure involved in the instant case. The
local joint board under the contract considered the case and
handed down a monetary award against the employer, as
here. Upon an 8(b)(4)(D) charge filed by the employer, the
Board, in action and language applicable and dispositive
here, dismissed the complaint. The Board rejected the
employer's contention that the union's announcement of its
intention to file a 301 suit, and its resort to the contractual
33 In addition to the District of Columbia, the city of Alexandria, Virginia,
and the traditional "bedroom" counties of Virginia (Arlington, Fairfax) and
Maryland (Montgomery, Prince Georges), the Union's geographical ,lunsdic-
tion includes 13 counties in Virginia (Clarke, Prince William, Rappahanock,
Rockingham, Fauquier, Culpeper, Loudoun, Page, Spottsylvania, Stafford,
Warren, Frederick, and Shenandoah), and 3 in Maryland (Charles, Freder-
ick, and St Marys)
WILLIAMS ENTERPRISES, INC.
grievance procedure, constituted coercion within the mean-
ing of Section 8(b)(4)(D). The Board said that the union had
"a lawful right" to file a grievance under the contract and
to seek judicial relief. Noting that the union's action might
have presented the employer with a "Hobson's choice," the
Board nevertheless said, "we find that it is a creature of its
own making, arising solely from the collective-bargaining
agreement it signed with the [union]." The Board likewise
dismissed an assertion by the employer that the local joint
adjustment board was an inappropriate forum for the reso-
lution of a jurisdictional dispute. That contention the Board
found contrary to the policies of the Act 24 To the extent
that the case of Sheetmetal Workers International Associa-
tion, Local Union 166 v. C & L Erectors, Inc., Wisconsin
Employment Relations Commission, Case 1, # 13038
CE-1271,'Decision #9718, June 10, 1970, cited by the Re-
spondent, is contrary to the Board's view in the Los Alamos
case , the latter are controlling.
D. Final Conclusions
On the basis of the foregoing findings I conclude that the
Respondent has engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1), (5), and
8(d), and Section 2(6) and (7) of the Act in that:
1. By assigning the installation of metal roof decking
10-gauge or lighter to ironworkers the Respondent unilater-
ally changed conditions of employment in the appropriate
unit, refused to bargain collectively with the Union, and
modified the collective-bargaining contract without compli-
ance with the requirements of Section 8(d).
2. By refusing to participate in the grievance procedure
provided by the contract in order to resolve the dispute over
the assignment of metal roof decking, the Respondent vio-
lated the terms of the collective-bargaining agreement and
refused to bargain with the Union concerning terms and
conditions of employment in the appropriate unit.
3. By unilaterally cancelling the agreement, and by dis-
continuing payments to the various funds required by the
agreement, the Respondent terminated a collective-bargain-
ing contract without compliance with the requirements of
Section 8(d).
4. By failing and refusing to deal with the Union after the
cancellation of the contract, although the Union continued
to be the exclusive representative of the Respondent's em-
ployees in the appropriate unit, the Respondent refused to
bargain collectively with the Union.
I do not find that the Respondent's refusal to utilize the
grievance procedure of the contract, although a violation of
Section 8(a)(1), (5), and 8(d) of the Act, was also an unfair
labor practice because it violated the Board's "Collyer" doc-
trine.
The Board's policy evidenced by the Collyer and the
Spielberg cases is to encourage, in accordance with the na-
24 The Board said that such a view would "render it impossible for the
[union] to seek any redress of the alleged breach of its contract in a situation,
such as this, where the alleged breach involves a question of work jurisdic-
11
893
tional labor policy, the resolution of labor disputes through
the arbitration procedures provided by the parties them-
selves. To this end the Board has, as in Spielberg, accepted
dispositions of issues through arbitration procedures, in cer-
tain instances where compatible with the statute, and has
declined to process unfair labor practice charges relating to
the same issues. In Collyer the Board established the proce-
dure of declining to process unfair labor practice charges
until voluntarily established machinery such as arbitration,
by which the dispute could likely be resolved, was utilized.
However, that is a procedural innovation, and not a change
in substantive law. No new unfair labor practice has been
created.
IV THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices I shall recommend that it cease and desist
therefrom and take certain affirmative action, in order to
effectuate the policies of the Act.
Since the Respondent unlawfully cancelled the 1972-75
collective-bargaining contract, and refused to abide by its
terms and submit disputes to the grievance procedure, it will
be recommended that the Respondent be ordered to rein-
state the contract, and to abide by its terms and the terms
of any successor contract, including the grievance proce-
dure. With respect to payments to the various funds provid-
ed in the contract, the Respondent shall resume payments.
It will also be recommended that the Respondent be or-
dered to bargain with the Union upon request as the repre-
sentative of employees in the appropriate unit.
The General Counsel and the Union request that the
order contain provision for the reinstatement of employees
who lost work as a result of repudiation of the contract, and
that they be awarded backpay. Since the Respondent's work
consists of particular jobs, and since the complement of
sheetmetal workers was not always the same from job to job,
reinstatement in the sense of restoring a sheetmetal worker
to a particular job from which he has been displaced does
not seem in order. By now any job on which a sheetmetal
worker was displaced by the assignment to the ironworkers,
if any, will no doubt have been completed. A reinstatement
order therefore appears neither practical nor required. The
requests for reinstatement are therefore denied. As to the
reimbursement of wages, the contract contains a procedure
for the securement of appropriate monetary remedies. As
we have seen, the Union has already successfully invoked
that procedure to a limited extent in this dispute .. In these
circumstances, I conclude that the Act, and the Board's
Collyer principle, will be best effectuated by leaving to reso-
lution under the contract any claims for relief beyond that
provided herein. The Crescent Bed Company, Inc., 157
NLRB 296; Osage Manufacturing Company, 173 NLRB 458.
Upon the findings and the record, and pursuant to Sec-
tion 10 of the Act, I hereby issue the following recommend-
ed:
tion This the statute did not intend to do, as such an approach would work
against the policy of encouraging amicable resolutions of junsdictional dis-
putes."
894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER 2s
Williams Enterprises, Inc., its officers, agents, successors,
and assigns, shall:
I. Cease and desist from:
(a) Refusing to recognize and bargain with Sheet Metal
Workers International Association, Local Union No. 102,
as the exclusive representative of the employees in the ap-
propriate unit described below concerning all conditions of
employment:
All our employees working within the territorial ju-
risdiction of the Union engaged in but not limited to
the (a) manufacture, fabrication, assembling, handling,
erection, installation, dismantling, conditioning, ad-
justment, alteration, repairing and servicing of all fer-
rous and non-ferrous metal work of U.S. # 10 gauge or
its equivalent or lighter gauge and all other materials
used in lieu thereof and of all air-veyor systems and air
handling systems regardless of material used including
the setting of all equipment and all reinforcements in
connection therewith; (b) all lagging over insulation
and all duct lining; (c) testing and balancing of all
air-handling equipment and duct work; (d) the prepa-
ration of all shop and field sketches used in fabrication
and erection, including those taken from original archi-
tectural and engineering drawings or sketches, and (e)
all other work included in the jurisdictional claims of
Sheet Metal Workers' International Association.
(b) Assigning to ironworkers the installation of metal
roof decking 10-gauge or lighter during the term of the
1972-75 contract without the consent of the Union ; or dur-
ing any period thereafter in which the Union is the collec-
tive -bargaining representative without bargaining with the
Union with respect thereto.
(c) Cancelling , terminating, or modifying collective-bar-
gaining contracts with the Union , or with any other labor
organization , without compliance with the requirements of
Section 8(d) of the Act.
(d) Making unilateral changes in conditions of employ-
ment within the appropriate unit.
(e) Refusing to submit to the procedure provided by col-
lective-bargaining contract grievances or disputes referrable
under the contract.
(f) Discontinuing payments or benefits required under
collective -bargaining contracts , without the consent of the
Union.
(g) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of their right
to self-organization , to form labor organizations , to join or
assist the Union , or any other labor organization , to bargain
collectively through representatives of their own choosing,
to engage in concerted activities for the purpose of collec-
25 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
tive bargaining or other mutual aid or protection, or to
refrain from any and all such activities.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Upon request of the Union, reinstate the 1972-75
collective-bargaining agreement and give full force and ef-
fect to all the terms and conditions therein provided during
the life of the said agreement.
(b) Upon the Union's request, rescind its previous action
assigning to ironworkers the installation of metal roof deck-
ing 10-gauge or lighter.
(c) Resume the payments to the various funds required
under the 1972-75 contract and continue to make such
payments as due during the terms of the contract. Interest
at the rate of 6 percent shall be paid on any sums now or
hereafter overdue.
(d) Post at its plant at Merrifield, Virginia, and at all
places where Respondent employes construction industry
employees, copies of the attached notice marked "Appen-
dix." 26 Copies of said notice, on forms provided by the
Regional Director for Region 5, shall, after having been
duly signed by an authorized representative of the Respon-
dent, be posted by the Respondent immediately upon re-
ceipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken to insure that said notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 5, in writing,
within 20 days from the date of this Decision, as to what
steps the Respondent has taken to comply herewith.
26 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."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to recognize or refuse to bargain
with Sheetmetal Workers International Association,
Local Union No. 102, as the exclusive bargaining rep-
resentative of our employees in the following appropri-
ate unit:
All our employees working within the territorial ju-
risdiction of the Union engaged in but not limited to
the (a) manufacture, fabrication, assembling, han-
dling, erection, installation, dismantling condition-
11
WILLIAMS ENTERPRISES , INC. 895
ing, adjustment, alteration , repairing and servicing
of all ferrous and non-ferrous metal work of U.S.
# 10 gauge or its equivalent or lighter gauge and all
other materials used in lieu thereof and of all air-
veyor systems and air handling systems regardless of
material used including the setting of all equipment
and all reinforcements in connection therewith; (b)
all lagging over insulation and all duct linmg; (c)
testing and balancing of all air-handling equipment
and duct work ; (d) the preparation of all shop and
field sketches used in fabrication and erection, in-
cluding those taken from original architectural and
engineering drawings or sketches , and (e) all other
work included in the jurisdictional claims of Sheet
Metal Workers ' International Association.
WE WILL NOT assign to iron workers the installation of
metal roof decking 10 gauge or lighter during the term
of the 1972-75 contract without the consent of the
Union ; or during any period thereafter in which the
Union is the collective-bargaining representative with-
out bargaining with the Union with respect thereto.
WE WILL NOT cancel , terminate , or modify collective-
bargaining contracts with the Union , or with any other
labor organization, without compliance with the re-
quirements of Section 8(d) of the Act. ,
WE WILL NOT make unilateral changes in conditions of
employment within the appropriate unit.
WE WILL NOT refuse to submit to the procedure pro-
vided by collective-bargaining contract grievances or
disputes referrable under the contract.
WE WILL NOT discontinue payments or benefits re-
quired under collective-bargaining contracts, without
the consent of the union involved.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
their right to self-organization , to form labor organiza-
tions, to join or assist the Union, or any other labor
organization , to bargain collectively through represen-
tatives of their own choosing , to engage in concerted
activities for the purpose of collective bargaining or
other mutual aid or protection , or to refrain from any
and all such activities.
WE WILL upon request of the Union reinstate our
1972-75 collective -bargaining agreement and give full
force and effect to all the terms and conditions therein
provided during the life of the said agreement.
WE WILL upon the Union 's request bargain with the
Union,
WE WILL upon the Union 's request rescind our previ-
ous action assigning to ironworkers the installation of
metal roof decking 10 gauge or lighter.
WE WILL resume the payments to the various funds
required under the 1972-75 contract and continue to
make such paymentas as due during the terms of the
contract with interest at 6 percent on any sums now, or
hereafter becoming , overdue.
WE WILL upon request by the Union submit to the
procedures of the collective contract any grievance or
dispute referrable thereunder.
Dated By
WILLIAms ENTERPRISES, INC
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other ' material . Any questions concerning
this notice or compliance with its provisions may be direct-
ed to the Board's Office, Federal Building Room 1019,
Charles Center , Baltimore , Maryland 21201, Telephone
301-962-2822.