Constructive Sheet Metal, Inc.

National Labor Relations Board - Board Decisions

May 19, 1987

283 N.L.R.B. 1069 (N.L.R.B. 1987)

CONSTRUCTIVE SHEET METAL
Constructive Sheet Metal, Inc. and Sheet Metal
Workers' International Association, Local
Union No. 410, AFL-CIO and Harry Joe Wal-
ters. Cases 7-CA-23493, 7-CA-24227; and 7-
CA-23718
19 May 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
BABSON AND STEPHENS
On 14 April 1986 Administrative. Law Judge
Benjamin Schlesinger issued the attached decision.
The Respondent filed exceptions and a supporting
brief.'
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings,2 and
conclusions3 and to adopt the recommended
Order.
ORDER
The National Labor Relations Board adopts the
recommended- Order of the administrative law
judge and -orders that the Respondent, Construc-
tive Sheet Metal, Inc., Grand Rapids, Michigan, its
1 The 'Respondent has requested oral argument. The request is denied
as the -record, exceptions, and beef adequately present the issues and the
positions of the parties.
2 The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cuv. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
We correct the judge's inadvertent error in fn. 4 of his decision in re-
ferring to "the delay between 3 May and 5 July ", the phrase
should read, "the delay between 31 May and 5 July. .." We also cor-
rect the judge's inadvertent error in stating in the third to last paragraph
before the remedy section of his decision, "Furthermore, when Walters
was paid off on 3 October ...."• the phrase should read, "Furthermore,
when Walters was paid off on 3 August. ..."
3 In adopting the judge's conclusion that the Respondent violated Sec.
8(a)(5) and (1),of the Act by implementing unilateral changes in terms
and conditions of employment without bargaining with the Union, we ad-
ditionally find that the Respondent faded to give sufficient notice to the
Union of the changes prior to their implementation See Stone Boat Yard,
264 NLRB 981 (1983), enfd. 715 F.2d 441, 444-445 (9th Cu. 1983).
We also adopt the judge's conclusion that the Respondent violated Sec.
8(aXl) by discharging employee Walters. In so doing, we find that the
General Counsel has established a prima facie case by showing that Wal-
ters' complaint under the' collective-bargaining agreement that he was not
paid for his overtime work led to his discharge . We further conclude,
based on our agreement with the judge's findings of fact concerning the
Respondent's asserted defense that Walters was discharged for working
on his toolbox on company time, and the judge's rejection of that de-
fense, that the Respondent has not met its burden of establishing that it
would have discharged Walters in the absence of his protected concerted
activity. Wright Line, 251 NLRB 1083 (1980), enfd 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S 989 (1982), approved in NLRB v. Transporta-
tion Management Corp., 462 U.S. 393 (1983)
1069
officers, agents, successors , and assigns , shall, take
the action set forth in the Order.
Howard M. Dodd, Esq., for the General Counsel.
Anthony P. Gauthier, Esq., of Grand Rapids, Michigan,
for the Respondent.
John R. Van Noller, of Grand Rapids, Michigan, for the
Union.
Harry Joe Walters, of Wyoming, Michigan, pro se.
DECISION
BENJAMIN SCHLESINGER, Administrative Law Judge.
This proceeding involves one alleged discharge in viola-
tion of Section 8(a)(3) and (1) of the National Labor Re-
lations Act, 29 U.S.C. § 151 et seq., and alleged viola-
tions of Section 8(a)(5) by unilateral changes and, reduc-
tions of terms and conditions of employment and failure
to execute a written contract embodying a collective-bar-
gaining agreement . The relevant docket, entries are as
follows: The charge in Case 7-CA-23494 was filed by
Charging Party Sheet Metal Workers' International As-
sociation, Local Union No. 410, AFL-CIO (Union) on
31 May 1984 and in Case 7-CA-24227 on 28 January
1985. The charge in Case 7-CA-23718 was filed by
Charging Party Harry Joe Walters on 6 August 1984. A
complaint in Case 7-CA-23493 issued on 26 June 1984;
an amended consolidated complaint issued on 25 Septem-
ber 1984, consolidating Case 7-CA-23718; and on 30
April 1985 a second amended consolid'ated' complaint
issued , consolidating Case 7-CA-24227. The hearing was
held in Grand Rapids, Michigan, on 4 December 1985.
I find, as Respondent admits, that Respondent Con-
structive Sheet Metal, Inc., a corporation duly organized
and existing by virtue of the laws of the State of Michi-
gan, maintains its principal office and place of business in
Grand Rapids, Michigan, where it is engaged in the man-
ufacture, sale, and distribution of fabricated sheet metal
products for industry. During the year ending 31 De-
cember 1984, a representative period, Respondent pur-
chased and caused to be transported and delivered to its
Grand Rapids facility, sheet metal and other goods and
materials valued in excess of $50,000, of which goods
valued in excess of $50,000 were transported and deliv-
ered to its Grand Rapids facility directly from points lo-
cated outside Michigan. I conclude that Respondent is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act. I further conclude,
as Respondent admits, that the Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act. The
Union represents the following unit, which is appropriate
for the 'purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All employees of Constructive Sheet Metal, Inc.
engaged in but not limited to the (a) manufacture,
fabrication, assembling, handling, erection, installa-
tion, dismantling , conditioning, adjustment, alter-
ation, repairing, and servicing of all ferrous or non-
ferrous metal work and all other material used in
lieu thereof and of all air-veyor systems and air han-
dling systems regardless of material used including
283 NLRB No. 159
1070 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the setting of all equipment and all reinforcements
in connection therewith; (b) all lagging over insula-
tion and all duct lining; (c) testing and balancing of
all air-handling equipment and duct work; (d) the
preparation of all shop and field sketchs used in fab-
rication and erection, including those taken from
original architectural and engineering drawings or
sketches; and (e) all other work included in the ju-
risdictional claims of Sheet Metal Workers' Interna-
tional Association.
For approximately 20 years prior to the fall of 1983,
Respondent was a member of, the Sheet Metal Employ-
ers Association of Western Michigan (Association).' As
a result, Respondent and the Union were parties to suc-
cessive collective-bargaining agreements, the last of
which (before the agreement in dispute), dated 1 May
1980, expired by its terms on 1 May 1984. On 21 Novem-
ber- 1983 the Association, wrote to its Michigan members,
including Respondent,, enclosing a form authorizing it to
bargain for the membership for signature. The record
does not indicate that Respondent replied to this letter.
When the Association sent another authorization form to
Respondent by letter dated 17 February 1984,? Anthony
P. Gauthier, Respondent's attorney wrote back on 1
March 1984 returning the unsigned form and advising
that:
Ray Lantz and Vern Johnson have retained us to
negotiate a new contract with the union . Accord-
ingly , Constructive Sheet Metal, Inc. ' will not be
represented by SMACNA in the upcoming negotia-
tions.
No copy of this letter was sent to the Union, which had
notified the Association on 4 January of its intent to
reopen the contract. But the Union was informed by
Gauthier in a letter dated 28 February that:
Vern Johnson and Ray Lantz have asked us to
respond to your letter of January 4, 1984 concern-
ing reopening the contract between Constructive
Sheet Metal, Inc. and your Union. Constructive
Sheet Metal also desires to reopen the contract for
wages, hours and other conditions of employment,
and will be pleased to meet with you to negotiate
these issues.
We will contact you within the next few weeks
to arrange for meeting dates and times.
Gauthier again wrote to the Union on 30 March after ne-
gotiations between the Union and SMACNA for a new
contract had commenced, as follows:
I am writing on behalf of Constructive Sheet
Metal, Inc. to restate our willingness to negotiate a
new contract with your Union. As Ltold you today
during our phone conversation, Constructive Sheet
i The Association (referred to in one letter quoted below as SMEA) is
the Michigan Chapter of the Sheet Metal and Air Conditioning, Contrac-
tors, National Association, referred to in some of the correspondence
quoted below as SMACNA I have treated both as the Association.
2 All dates hereinafter set forth refer to the year 1984, unless otherwise
stated.
Metal, Inc. has informed -SMACNA that it will par-
ticipate in the multi-employer bargaining., - I trust
that your Union will honor -my client's right and de-
cision to withdraw from the multi-employer bar-
gaining , and consider yourself on notice of that de-
cision.
In other words, Constructive Sheet Metal, Inc.
will not consider itself bound to any new agreement
negotiated between SMACNA and Local 410. If
your Union desires to negotiate a new contract with
Constructive Sheet Metal, Inc., please contact me at
your earliest convenience concerning the time, loca-
tion and subject matter of the proposed contract.
The Association refused to permit Respondent to with-
draw from it; and it represented to the Union that Re-
spondent was still a member, for which the Association
was bargaining. In a letter dated 20 April, the Associa-
tion's attorney stated that Respondent's purported 1
March withdrawal was untimely because it had to be
made 60 days prior to the commencement of contract ne-
gotiations, stated in the letter as 6 March, and improper
because it had been mailed to the executive director of
the Association, rather than the president, as required.
Reacting to that letter, Gauthier wrote to the Union on
25 April, as follows:
As you know, we have beeen retained by Con-
structive Sheet -Metal, Inc. to represent them' in
contract negotiations with Local 410. As you also
know, we have withdrawn from SMEA and
SMACNA their authority to bargain for Construc-
tive Sheet Metal, Inc., and I am writing to restate
my client's willingness to enter into contract negoti-
ations with your Union acting on behalf of my cli-
ent's employee members.
On the same day, Gauthier wrote to the Association and
complained that its 20 April letter was the first response
to Respondent's notice of withdrawal and that it could
not "justify waiting to object to our withdrawal until the
day they submit their, final offer to the Union." On 10
May the Association decided not to contest Respondent's
withdrawal.
In the meantime, on 1 May Respondent implemented
unilaterally the following changes in the terms and con-
ditions of employment of its employees: it reduced the
hourly wage of its employees to $11:49 per hour and
ceased making payments to the pension, vacation and
savings, national training , educational, SMACNA indus-
trial, and life insurance funds-a savings of $5-labor costs
per hour for each employee. Those changes were an-
nounced for the first time in a letter to the Union dated
30 April. On 5 May the Union filed in response an unfair
labor practice charge in Case 7-CA-23418 complaining
that Respondent "failed to give adequate written notice
within the time perscribed in the existing contract for
withdrawal from negotiations." In that charge, the
Union's business manager, John Van Noller, stated:
"Constructive Sheet Metal- Company advised Sheet
Metal Workers' Local Union No. 410, through its attor-
neys on February 28, 1984, that it would not participate
CONSTRUCTIVE SHEET METAL
in multi-employer negotiations with the Sheet Metal Em-
ployers of Western Michigan and Sheet Metal Workers'
Local Union No. 410."
In light of this statement, "true to the best of [Van
Noller's] knowledge and,belief," I find that Van Noller
understood that Respondent was withdrawing the Asso-
ciation's bargaining authority. Gauthier's letter of 1
March to the Association withdrew from the Association
the authority to bargain on Respondent's behalf: The
return of the • unsigned authorization form and the state-
ment in the letter that Gauthier's law firm was retained
to negotiate the contract could hardly have been inter-
preted as, anything but a withdrawal. The last two sen-
tences of Gauthier's 28 February letter to the Union state
that Respondent desired separate negotiations with the
Union, asking to meet with the 'Union to negotiate, and
promising to contact the Union to arrange for meeting
dates and times. Thus, Respondent sought to negotiate
with the Union separate from, multiemployer negotia-
tions. Fairly read, the Association was not to represent
Respondent. Of equal significance, the unfair labor prac-
tice charge ' demonstrates that the Union, knew on '28
February that Respondent had withdrawn from the mul-
tiemployer negotiations.3
Under the 'Board's rule in Retail Associates, 120 NLRB
388, 394 (1958), "The decision to withdraw must con-
template a sincere abandonment, with relative permanen-
cy, of the multiemployer unit and the embracement of as
different course of bargaining on an individual-employer
basis." Respondent timely withdrew from the' Associa-
tion. Its notice to the Union was in writing and was
made prior to 23 March, when the Association and the
Union first exchanged bargaining proposals. Although
the notice may, not have been as clear and unequivocal
as might be desired, the letter to the Union was intended.
to be read by Van Noller, and he read it, as the clear and
unequivocal notice that Gauthier was attempting to send.
His objection appeared to be only that Respondent did
not give 90 days' notice, as required by the expiring col-
lective-bargaining agreement,, an objection that the Gen,
eral Counsel has not pursued in this proceeding.
Therefore, despite the fact that the complaint alleges
that the Association reached full and complete agree-
ment on a new contract on 20 June, Respondent-was not
bound by those negotiations and did not violate the Act
when it refused the Union's request of 20 , December to
execute the Association contract. In addition, accepting
this allegation of the complaint as true, the charge in
Case 7-CA-24227 is barred by Section 10(b) of the Act.
Preston if. Haskell Co., 238 NLRB 943 fn. 1 (1978), en£
denied on other grounds 616 F.2d 136 (5th Cir. 1980),
holds that the 6-month limitation period for the refusal of
an employer to execute an agreement through multieni
3 The cases cited by the General Counsel are distinguishable. In North-
ern Petroleum Equipment Co, 244 NLRB685 (1979), the employer's letter
to the union merely stated that he had retained counsel and asked that
future correspondence be sent to him No request for separate bargaining
was made, In Players Restaurant, 246 NLRB 63 (1979), enfd. sub nom
NLRB v. Hoover, 639 F.2d 789 (9th Cir. 1981), the employer notified the
union only that it wished to terminate the association contract at its expi-
ration. It indicated no intention "to act contrary to the multi-employer
council." Id. In Groton Piping Corp., 24,6"NLRB 99 (1979), no notice was
sent to the union I ,
1071
ployer bargaining must relate back to the date that the
new agreement was, reached. The agreement, was
reached on 20 June 1984 and the charge was not filed
until 28 January 1985. The charge is, therefore, barred
by Section 10(b).4
However, there is simply nothing here that entitled
Respondent to change its terms and conditions of em-
ployment on I May. If it was still a member of the Asso-
ciation, the Association was still engaged in bargaining
on that date and no impasse had been reached. If Re-
spondent was not a member of the Association for bar-
gaining purposes, then it had a duty to bargain with the
Union, -a duty that it has implicitly conceded by its filing
of 8(b)(3) charges against the Union. The duty to bargain
in good "faith, protected under Section 8(a)(5) of the Act,
is defined by Section 8(d) as the duty "to meet . .. and
confer in good faith with respect to wages, hours, and
other terms and conditions of employment." "[A]n em-
proyer's unilateral change in conditions of employment
under negotiation is . . . 'a_ violation of Section 8(a)(5),
for it is a circumvention, of the duty to negotiate."
NLRB v. Katz, 369 U.S. 736, 743 (1962). It is axiomatic
that an employer violates Section 8(a)(5) by unilaterally
implementing a change " while negotiations are still in
progress and impasse -has not been reached. See, e.g.,
Winn-Dixie Stores, 243 NLRB 972 (1979).
There are exceptions to this rule. In Stone Boat Yard,
264 NLRB 981, 982 (1982), the Board wrote:
[I]t is true that when an employer has diligently and
earnestly sought to engage in, bar-gaining and the
union has continually avoided or delayed bargain-
ing, the employer is justified under certain circum-
stances in implementing unilateral changes in the
terms and conditions of employment. See, e.g., AAA
4 For this reason, it is unnecessary to decide Respondent 's other 10(b)
defense, which presents some weighty issues. I merely note that the Re-
gional Director in Case 7-CA-23418, which was timely filed, found that
Respondent 's withdrawal was timely and unequivocal and dismissed the
charge. (Contrary to the contention of the General Counsel, an untimely
attempt to withdraw , from a multiemployer group may constitute an
unfair labor practice Teamsters Local 378 (Capitol Chevrolet Co.), 243
NLRB 1086 (1979)) Respondent then allegedly requested repeatedly that
the Union bargain with it, but the Union refused to bagain, so Respond-
ent filed an 8(b)(3) charge against the Union in Case 7-CB-6218 The Re-
gional Director found that ttie Union had not bargained because the As-
sociation insisted that Respondent was still its member When Case 7-
CA-23418 was dismissed, the Union then realized that it was obligated to
bargain with Respondent and on 5 July contacted Respondent to set up a
date for bargaining and 26 July was agreed on as'the date to begin. Re-
spondent's charge was dismissed, the delay between'3 May and 5 July
being "not so substantial" in light of the Union's willingness to meet on
26 July; and bargaining did commence and continued for several months.
(In light of these peculiar 'circumstances , I do not conclude that the
Union waived its position that Respondent had not properly withdrawn
from multiemployer negotiations. It was forced into individual bargaining
by reason of the Regional Director's disposition of these unfair labor
practice charges. It also took that action because Respondent agreed to
restore the wages and benefits it had unilaterally reduced. See fn. 5.) For
some reason, which I do not understand, Respondent filed another unfair
labor practice charge in Case 7-CB-6328 on 29 October, which again al-
leged that the Union failed to bargain in good faith between 31 May and
5 July Again, the, Regional Director dismissed the charge, but this time
he reconsidered his earlier, position and found that Respondent never
gave a proper notice that it was withdrawing from the Association to
begin with That dismissal on 29 November prompted the filing of the
charge in Case 7-CA-24227.
1072 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Motor Linea Inc., 215 NLRB 793 (1974).2 However,
one -of the circumstances which the Board insists
upon in such cases is that the employer's unilateral
change must be consistent with the employer's pre-
vious proposal to the union of changes in the ex-
pired contract. Ace Galvanizing Inc., 217 NLRB
144, 146 (1975); Allen W. Bird-ll, Receiver for Cara-
velle Boat Company, a Corporation, and Caravelle
'Boat Company, 227 NLRB 1335, 1358 (1977). Here,
Respondent never provided the Union any type of
written or detailed proposal of changes` in the ex-
pired contract. As the _ Union and Respondent did
not reach a bargaining impasse, and the Union did
not waive its right to bargain about the changes
which were implemented, and Respondent did not
implement changes which were consistent with any
previously rejected offer, Respondent's implementa-
tion on July 1 of the changes in terms and condi-
tions of employment violated its duty to bargain.
Dial Tuxedos, Inc., 250 NLRB 476 (1980); cf. AAA,
supra at 794.3 Accordingly, we hold that Respond-
ent-has violated Section 8(05) and (1) of the Act
since July 1, 1980, by ceasing to make contributions
to the union health and welfare and pension fund
and by implementing the company-funded medical
insurance plan.
2 In AAA, the employer in April timely notified the union of its
intention to terminate the contract and submitted its proposed con-
tract to the union along with a request to commence bargaining.
For 2-1/2 months thereafter , the union refused to meet or bargain
with the employer. Upon expiration of the contract, the employer
unilaterally, implemented changes in terms and conditions of em-
ployment. All the changes were consistent with the employer's de-
tailed contract proposal, which the union had in its possession for
2-1/2 months. -
2 Our dissenting colleague does not question the long line of
-Board decisions holding that any"changes unilaterally implemented
by an employer following contract expiration must, inter alia, be
consistent with the prior proposal made by the employer during
bargaining . See cases cited in the text herein, plus Peerless Roofing
Co., Ltd, 247 NLRB 500, 503-504 (1980) In light of that principle,
we are at a loss to understand our dissenting colleague's analysis.
In effect, he ywould find that an employer had unlawfully made a
unilateral change that is consistent with its prior proposal though it
has made no prior proposal It is this internal contradiction that
causes us to reject our colleague 's analysis.
Additionally, our decision serves to foster and promote stable
labor relations The important functions of informing the union
what changes in the contract are sought by the employer and put-
ting the union on notice that after a reasonable period of time
union inaction might result in the employer's unilateral implemen-,
tation of these proposed changes have led the Board, and leads us,
to require that an employer provide a union, with a written copy of
its proposed contract changes prior to unilaterally implementing
them. Peerless Roofing, supra at 503; Allen W Bird, supra at 1358;
M & M Building and Electrical Contractors Inc., d/b/a M & M
Contractors, 262 NLRB 1472 (1982).
Despite Gauthier's letter that he would telephone to
set up meetings, there is no evidence that he ever did so.
Only 2 months had lapsed between Respondent's notice
to the Union that it desired to bargain and` the unilateral
reductions. No bargaining had taken place. No proposals
had been made. There was no impasse by '1 May and no
impasse through the period ending 14 July, after which
Respondent restored the prior terms of employment. 5
Without an impasse , and with Respondent's duty to bar-
gain, either through the Association or by individual bar-
gaining, there is no excuse for Respondent's unilateral
change of conditions of employment without a prior pro-
posal, without discussion of union rejection, and without
union waiver. I conclude that Respondent violated Sec-
tion 8(a)(5) and (1) of the Act.
The final alleged violation concerns employee Harry
Joe Walters, who was fired' from his job on 3 August
1984 at 11:45 a.m. David Lantz, then shop foreman,6 tes-
tified that he took Walters outside the door and told him
that he no longer worked there. Walters testified to
something vastly different, that Lantz told him that
Lantz was getting rid of him because he was a "trouble
causer . . . everytime [he] went on a job [he] was caus-
ing trouble over overtime,pay." Lantz said, "[Y]ou're
paid until noon, get your tools and get the' hell off my
property." Walters said fine, but asked Lantz whether he
worked for his overtime. -Lantz said, "[Y]es"; and Wal-
ters said, "I want my damn money." At some point in
the conversation, Lantz said that he had men who
worked for Respondent for years and did overtime work
for straight-time pay. It is this conflict that gives rise to
the instant dispute, whether Walters was discharged for
grieving about Respondent's failure to pay him overtime
pursuant to the union contract.
I find that Respondent violated the Act. I am con-
vinced that Walters accurately related his- conversation
with Lantz on August 3. I am equally convinced that
Lantz would not merely have told Walters when he ter-
minated him that he no longer worked there. Some
reason would have been given for firing Walters in the
middle of the day, but Lantz stated none. Instead,. he
relied at the hearing on events that allegedly occurred
that morning, that Walters was constructing a toolbox,
which was personal work and was- not allowed to be
performed on company time. Although Lantz said he
saw Walters performing his work all:morning, on six sep-
arate occasions, Lantz testified that he become angrier
and angrier,' but he never said anything to or warned
Walters. That is most strange, if indeed Walters was ac-
tually doing it. Yet, no one other than Lantz said he
was.7 Walters said that he was performing his assigned
work, and that testimony was corroborated by Robert
Veenstra, who was in charge of a crew, which included
Walters, welding a hood. Veenstra did not see, Walters
doing anything but his assigned work.
There is no doubt that Respondent had a rule that an
employer could not work on personal projects during
company time. That, rule, however,' was breached from
time to time,by employees, including Lantz' son, without
5 On 7 and 8 May Gauthier advised the Union's attorney that as soon
as the Union agreed to bargain in good faith for a new contract with Re-
spondent, the wages and benefits would be restored. The Union's attor-
ney promised to and did convey this message to the Union.
6 His father was co-owner of Respondent. At the time of the hearing,
Lantz was a co-owner of Respondent.
7 Walters candidly admitted that he sheared two small clips during
working hours that morning, while he was otherwise engaged in Re-
spondent's work Lantz testified that he never saw Walters doing this
work
CONSTRUCTIVE SHEET METAL
their being fired. Even Lantz admitted that he had per-
formed some layout work on employees' personal equip-
ment during working hours. Furthermore, Walters ad-
mitted working on a toolbox the day before or the, day
that he was fired, but he did so only before work and
during breaks, when there is no question that he could
properly do so. His testimony was corroborated by an-
other employee, Robert Howard, who helped Walters
bend metal to make trays and to prepare corner clips.
Lantz' testimony, to the contrary, was uncorroborated;
and I found his testimony concerning when he saw Wal-
ters building his toolbox so vague and at times so argu-
mentative and brusque that I do not credit him.
Accordingly, I conclude that at the end of July, Wal-
ters and Bruce Felton left Grand Rapids at 5 a.m. for an
assigned job in Petosky, Michigan, and returned at 2 a.m.
the following day. Walters was not paid off overtime and
complained to Respondent's bookkeeper. Getting no sat-
isfaction, he complained to Van Noller, who agreed to
look into the matter. Shortly after that,-Walters and em-
ployee Louis Phillips were assigned to work at Westing-
house, where they had to work nights after the day shift
had gone home. Walters, called Van Noller to find out
how they were,supposed to be paid. Van Noller said that
there was straight time, time-and-a-half, and double time,
but the employees were paid only 10 hours for 8 hours
worked. Later, during the week before he was fired,
Walters told Van Noller that he had not been paid ac-
cording to the contract. Van Noller told Phillips to make
sure that Walters received his money. Phillips said that
Respondent had never paid it before and was not going
to start then. Walters said that he wanted his "damn
money" within earshot of Lantz' office. Van Noller pur-
sued both complaints with Respondent's co-owner on 26
July and raised 'the matters with Gauthier on 1 August.
Gauthier agreed to consult Respondent about them.
Accordingly, Lantz, despite his denials, must have
become aware of Walters' overtime complaints because
he mentioned them to Walters as the reason for Walters'
termination. Furthermore, when Walters was paid off on
3 October, he was paid the overtime on the Petosky job
that was due to him. I do not credit Lantz' denial that he
was wholly unaware of any overtime dispute, a denial I
found feigned.8 There is nothing in this record that justi-
fies Walters' discharge, other than his complaint under
the collective-bargaining agreement that he was not, paid
for his overtime work. I conclude that Respondent vio-
lated Section 8(a)(1) of the Act. Interboro Contractors,
157 NLRB 1295 (1966), enfd. 388 F.2d 495 (1967), ap-
proved in NLRB v. City Disposal Systems, 465 U.S. 822
(1984).9
On 27 December, the Union began a strike and picket-
ing against Respondent, and the strike and picketing con-
tinued up to the date of the parties' stipulation dated 31
July 1985. The General Counsel contends that the strike
was an unfair labor practice strike, but Van Noller testi-
8 Lantz denied knowing about any overtime dispute until after Walters
had left. When Lantz was initially asked whether he ever knew that Wal-
ters had complained that he was not paid overtime, Lantz answered, "I
don't really pay a whole lot of attention to pay."
9 In light of this finding, it is unnecessary to consider whether Walters'
discharge also violated Sec 8(a)(3) of the Act
1073
fled that the sole reason that the strike was called was
because of Respondent's failure to execute the Associa-
tion's collective-bargaining agreement. Because I have
found that Respondent's refusal to execute that agree-
ment was not a violation of the Act, I conclude that the
strike was not called to protest the existence of unfair
labor practices. That I have found other violations of the
Act is immaterial . There has been no proof of a causal
connection between that illegal conduct and the strike.
Amber Delivery Service, 250 NLRB 63, 72 (1980), enfd. in
relevant part 651 F.2d 57 (1st Cir. 1981); Walker Die
Casting, 255 NLRB 212, 216 (1981), enfd. as modified
682 F.2d 592 (6th Cir. 1982),
The unfair labor practices found above, occurring in
connection with Respondent's business, have a close, in-
timate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof within the meaning of Section 2(6)
and (7) of the Act.
THE REMEDY
Having concluded that Respondent unlawfully en-
gaged in unfair labor` practices, I shall recommend that it
cease and desist therefrom and take certain affirmative
action. Specifically, I shall order Respondent to offer
Harry Joe Walters full and immediate reinstatement to
his former' position or, if that position no longer-exists to
a substantially equivalent position of employment, with-
out prejudice to his seniority or other rights and privi-
leges, and make him whole for any loss of wages or
other rights and benefits he may have suffered as the
result. of the discrimination against him in accordance
with the formula prescribed in F W. Woolwoth, 90
NLRB 289 (1950), with interest as provided for in Flori-
da Steel Corp., 231 NLRB 651 (1977). 10 1 shall also order
Respondent to remove from its records any reference to
Walters' unlawful discharge and notify him in writing
that this has been done and that evidence of his unlawful
discharge will not be used against him in any way.
- Having found that Respondent, from 1 May to 14 July
1984, violated Section 8(a)(5) and (1) of the Act by ceas-
ing to make contributions on behalf of its bargaining unit
employees to the various funds, I shall order Respondent
to make the required contributions to the respective
funds and to transmit to the appropriate fiends the contri-
butions it has I failed to make, for the period of its unlaw-
ful cessation of payments.I I In addition, I shall order Re-
is See generally Isis Plumbing Co., 138 NLRB 716 1(1962).
11 Because the provisions of employee benefit fund agreements are
variable and complex, the Board does not provide at the adjudicatory
stage of the proceeding for the addition of interest at a fixed rate on un-
lawfully withheld fund payments I leave to the compliance stage the
question whether Respondent must pay any additional amounts to the
funds in order to satisfy this "make-whole" remedy These additional
amounts may be determined, depending on the circumstances of each
case, by reference to provisions in the documents governing the funds at
issue and, when there are no governing provisions , to evidence of any
loss directly attributable to the unlawful withholding action, which might
include the loss of return on investment of the portion of fund withheld,
additional administrative costs, etc., but not collateral losses. Merry-
weather Optical Co, 240 NLRB 1213 (1979)
1074 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
spondent to make whole the employees in the unit for
the loss of wages they suffered due to Respondent's uni-
lateral reduction of their wages, with interest computed
as set forth above.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed12
ORDER
The . Respondent, Constructive Sheet Metal, Inc.,
Grand Rapids, Michigan, its officers, agents , successors,
and assigns, shall
1. Cease and desist from
(a) Refusing to bargain in good faith with Sheet Metal
Workers' International Association, Local Union No.
410, AFL-CIO by unilaterally reducing the hourly
wages of its employees and discontinuing payments to
the pension, vacation and savings, national training, edu-
cation, SMACNA industrial, and life insurance funds,
without bargaining with the Union as the exclusive rep-
resentative of its employees in the following appropriate
unit:
All employees of Constructive Sheet Metal, Inc.
engaged in but not limited to the (a) manufacture,
fabrication, assembling , handling, erection , installa-
tion, dismantling, conditioning, adjustment, alter-
ation, repairing, _and servicing of all ferrous or non-
ferrous =metal work and all other materials used in
lieu thereof and of all air-yeyor systems and air han-
dling systems regardless of material used including
the setting of all equipment and all reinforcements
in connection therewith; (b) all lagging over insula-
tion and all duct lining; (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, including those taken from
original architectural and engineering drawings, or
sketches; and (e) all other work included in the ju-
risdictional claims of Sheet Metal Workers' Interna-
tional Association.
(b) Failing and refusing to make contributions on
behalf of its employees in the above-described unit to the
pension, vacations and savings, national training , educa-
tional, SMACNA industrial, and life insurance funds, as
required by its expired agreement with the Union:
(c) Unilaterally reducing the hourly wages of its 'em-
ployees in the' above-described unit.
(d) Discharging or otherwise discriminating against its
employees because they engage in concerted and pro-
tected activities by filing grievances or complaining
about their rate of,pay.
(e) In any like or related manner interfering with, re-
straining, or coercing any employees in the- exercise of
the rights guaranteed them by Section 7 of the Act.
13 If no exceptions are filed as provided by Sec 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided' in Sec . 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request of the Union, bargain collectively with
it as the exclusive representative of the employees in the
above-described unit with respect to wages and other
terms and conditions of employment and, if an under-
standing is reached, embody such understanding in a
signed agreement.
(b) On request of the Union, rescind the unilateral re-
duction of hourly wages and make payments of such
amounts to the employees who were not paid, with inter-
est as provided in the remedy section, and make pay-
ments to the pension, vacation and savings, national
training , educational, SMACNA industrial, and life insur-
ance funds, as required by its expired agreement with the
Union, all for the period from 1 May to 14 July 1984.
(c) Offer immediate reinstatement to Harry Joe Wal-
ters to his former position or, if that position no longer
exists, to a substantially equivalent position of employ-
ment, without prejudice to his seniority or other rights
and privileges, and make him whole for any loss of pay
or any other benefits he may have suffered as a result of
the discrimination against him in accordance with the
provisions set forth above in the remedy section.
(d) Remove from its files any reference to "the unlaw-
ful discharge of Harry Joe Walters and notify him in
writing that this has been done and that evidence of his
unlawful discharge will not be used against" him in any
way,
(e) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze ,the amount of backpay due under the
terms of this Order.
(f) Post at its Grand -Rapids, Michigan facility copies
of the attached notice marked "Appendix."' 3 Copies of
the notice, on forms provided by the Regional Director
for Region 7, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(g) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dis-
missed insofar as it alleges violations of the Act not spe-
cifically found.`
13 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
CONSTRUCTIVE SHEET METAL 1075
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain in good faith with
Sheet Metal Workers' International Association, Local
Union No. 410, AFL-CIO by unilaterally reducing the
hourly wages of our employees and discontinuing pay-
ments to the pension, vacation and savings, national
training, educational, SMACNA industrial, and life insur-
ance funds, without bargaining with the Union as the ex-
clusive representative of our employees in the following
appropriate unit:
All employees of Constructive Sheet Metal, Inc.
engaged in but not limited to the (a) manufacture,
fabrication, assembling, handling, erection , installa-
tion, dismantling, conditioning, adjustment, alter-
ation, repairing, and servicing of all ferrous or non-
ferrous metal work and all other materials used in
lieu thereof and of all air-veyor systems and air han-
dling systems regardless of material used including
the setting of all equipment and all reinforcements
in connection therewith; (b) all lagging over insula-
tion and all duct lining; (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, including those taken from
original architectural and engineering drawings or
sketches; and (e) all other work included in the ju
risdictional claims of Sheet Metal Workers' Interna-
tional Association.
WE WILL NOT fail and refuse to make contributions on
behalf of our employees in the above-described unit to
the pension, vacations and savings, national training, edu-
cational, SMACNA industrial,, and life insurance funds,
as required by our expired agreement with the Union.
WE WILL NOT unilaterally reduce the hourly wage of
our employees in the above-described unit.
WE WILL NOT discharge or otherwise discriminate
against our employees because they engage in concerted
and protected activities by filing grievances or complain-
ing about their rate of pay.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
rights guaranteed them by Section 7 of the Act.
WE WILL, on request of the Union, bargain collective-
ly with it as the exclusive representative of our employ-
ees in the above-described unit with respect to wages
and other terms and conditions of employment and, if an
understanding is reached, embody such understanding in
a signed agreement.
WE WILL, on request of the Union, rescind the unilat-
eral reduction of hourly wages and make payments of
such amounts to our employees who were not paid, with
interest, and make payments to the pension, vacation and
savings, national training , educational, SMACNA indus-
trial, and life insurance funds, as required by our expired
agreement with the Union, all for the period from I May
to 14 July 1984.
WE WILL offer immediate reinstatement to Harry Joe
Walters to his former position or, if that position no
longer exists, to a substantially equivalent position of em-
ployment, without prejudice to his seniority or other
rights and privileges, and make him whole for any loss
of pay or any other benefits he may have suffered as a
result of the discrimination against him , with interest.
WE WILL remove from our files any reference to the
unlawful discharge of Harry Joe Walters and notify him
in writing that this has been done and that evidence of
his unlawful discharge will not be used against him in
any way.
CONSTRUCTIVE SHEET METAL, INC.