New Brunswick General Sheet Metal

National Labor Relations Board - Board Decisions

Aug 27, 1998

326 N.L.R.B. 915 (N.L.R.B. 1998)

NEW BRUNSWICK GENERAL SHEET METAL WORKS 915
New Brunswick General Sheet Metal Works and
Sheet Metal Workers International Association,
Local Union 27. Cases 22–CA–19959 and 22–
CA–20215
August 27, 1998
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX
AND HURTGEN
The major issues presented in this case1 are (1)
whether the Union established itself as an exclusive bar-
gaining representative pursuant to Section 9(a) of the
Act; (2) whether the Respondent violated Section 8(a)(5)
by insisting on the presence of counsel in negotiations,
by withdrawing recognition from the Union, and by uni-
laterally implementing new terms of employment; (3)
whether a strike by employees was an unfair labor prac-
tice strike; and (4) whether the Respondent violated Sec-
tion 8(a)(3) by failing promptly to reinstate the strikers
after they unconditionally offered to return to work and
by offering the strikers reinstatement at terms which had
been implemented unilaterally.
The Board has considered the decision and the record
in light of the exceptions2 and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions and
to adopt the recommended Order as modified.
The Respondent and the Union entered into a contrac-
tual relationship in 1991. The 1991 contract was due to
expire on May 31, 1994.3 On March 30, the Union and
the Respondent, which had withdrawn from the signatory
multiemployer association, met and exchanged proposals
for a successor agreement. According to credited testi-
mony, the Union thereafter suspended contract talks
pending multi-employer negotiations.
The next contact between the parties was a May 26 re-
quest by Union Business Representative Kohler for
negotiations on May 27. Respondent’s President Gry-
walski phoned Kohler and told him that a scheduling
conflict precluded this meeting. In their conversation,
Kohler stated that Union President Stapleton would ac-
company him at the next meeting. Kohler suggested that
Grywalski also “bring somebody with [him].” Grywalski
said that he would bring his attorney, John Craner. Koh-
ler replied “no labor attorney.”
Kohler and Grywalski spoke again just prior to the
scheduled May 31 bargaining session. When Grywalski
confirmed his intent to bring Craner, Kohler again re-
sponded “no labor attorney” and said that “we wouldn’t
meet” if Grywalski brought his attorney. The parties did
not meet on May 31.

1 On September 28, 1995, Administrative Law Judge D. Barry Mor-
ris issued the attached decision. The Respondent, General Counsel, and
Charging Party each filed exceptions and a supporting brief. The Re-
spondent and the General Counsel filed answering briefs. The Charg-
ing Party filed a reply brief.
2 There are no exceptions to the judge’s finding that the Respondent
did not unlawfully give unlawful assistance to the solicitation of em-
ployee resignations from the Union.
3 All subsequent dates are in 1994, unless otherwise stated.
In correspondence between the parties on June 6–8, the
Respondent reviewed its contract proposals and repeated
its willingness to meet for negotiations. The Union re-
peated its refusal to meet if Craner was present on the
Respondent’s behalf, stated that negotiations were dead-
locked, and indicated that it would file for interest arbi-
tration under the expired contract. The Respondent’s
letters, proceeding on the mistaken view that the parties
had a Section 8(f) relationship that could be repudiated
upon expiration of the contract, also declared that “there
is no longer a collective-bargaining relationship in exis-
tence.”
Soon thereafter, the Union did file for interest arbitra-
tion. The Respondent refused to participate. On June
17, Grywalski met with Kohler and Shop Steward Pre-
vite and handed them copies of the aforementioned cor-
respondence. Grywalski stated that he would implement
the Respondent’s contract proposals on June 20 in light
of the parties’ bargaining deadlock. Previte and Kohler
requested that Grywalski forestall implementation until
the interest arbitration panel ruled, but Grywalski refused
stating that he “no longer consider[ed him]self in the
union.” Previte, without objection by Kohler, then sug-
gested that the Grywalski gather the employees and in-
form them of his plans.
The meeting was held later in the day. Previte at-
tended. Grywalski distributed copies of the June 6–8
correspondence and announced his intention to imple-
ment the Respondent’s contract proposals on June 20.
On that date, the employees commenced a strike.
On September 12, the Union made an “unconditional
application to return to work” on behalf of all striking
unit employees. The Respondent did not reply. The Un-
ion sent a second letter on September 20. The Respon-
dent again did not answer. Finally, on January 25, 1995,
the Respondent sent one of the eight strikers a letter of-
fering him reinstatement on the basis of unilaterally im-
plemented terms. It sent similar reinstatement letters to
five other strikers on April 11, 1995.
The judge dismissed the allegation that the Respondent
violated Section 8(a)(5) by failing to bargain with the
Union and by unilaterally implementing its proposals.
He noted that the parties had exchanged proposals at
their initial March 30 meeting and at no time thereafter
did the Respondent state that it refused to meet with the
Union. The judge found that the Union’s refusal, since
May 27, to negotiate in the presence of the Respondent’s
attorney had precluded the possibility of good faith bar-
gaining and excused the Respondent from normal bar-
gaining requirements prior to implementation of its pro-
posals on June 20. See, e.g., Louisiana Dock Co., 293
NLRB 233, 235–236 (1989).
326 NLRB No. 77
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 916
The judge further found, however, based on statements
in the early June correspondence and by Grywalski on
June 17, that the Respondent had unlawfully withdrawn
recognition from the Union. He also found that this
8(a)(5) violation was a contributing cause of the June 20
strike.4 Consequently, the judge defined the strike as an
unfair labor practice strike from its inception, so the
strikers were entitled to immediate reinstatement upon
their September 12 unconditional offer to return to work.
By refusing to offer reinstatement to two strikers and by
delaying until January 25 and April 11, 1995, to offer the
remaining strikers reinstatement, the Respondent violated
Section 8(a)(3). Based on the judge’s finding that the
Respondent lawfully implemented new terms of em-
ployment on June 20, however, he found that reinstate-
ment offers, when finally made, were valid.5
For the reasons set forth in the judge’s decision, a ma-
jority of the panel (Chairman Gould and Member Fox)
finds that the Respondent recognized the Union as the
exclusive representative of unit employees under Section
9(a) of the Act and that the Respondent unlawfully with-
drew recognition of the Union’s 9(a) status in violation
of Section 8(a)(5). For the reasons set forth in their sepa-
rate opinions, a majority of the panel (Chairman Gould
and Member Hurtgen) further agrees with the judge that
the Respondent did not violate Section 8(a)(5) by unilat-
eral changes or by direct dealing with unit employees.
ORDER6
The National Labor Relations Board orders that the
Respondent, New Brunswick General Sheet Metal
Works, Highland Park, New Jersey, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Refusing to recognize and bargain with the Union
as the exclusive representative of its employees in the
appropriate unit with respect to wages, hours, working
conditions, and other terms and conditions of employ-
ment.
(b) Refusing to reinstate unfair labor practice strikers
to their former, or substantially equivalent positions, of
employment.
(c) In any like or related manner, interfering with, re-
straining, or coercing employees in the exercise of their
rights under Section 7 of the Act.

4 In adopting this finding, we rely on undisputed evidence that em-
ployees received copies of the June 8 letter from the Respondent’s
president to the Union during the employee meeting conducted by
Grywalski 3 days before the strike.
5 In exceptions and in a motion for reconsideration, the Respondent
challenges the judge’s finding that the evidence is insufficient to show
that it made offers of reinstatement to two former strikers. We deny the
motion, but note that the Respondent has raised a remedial issue that
can be litigated and resolved in the compliance stage of this proceeding.
6 We shall modify several provisions of the judge’s recommended
Order in accordance with our decision in Indian Hills Care Center, 321
NLRB 144 (1996).
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, recognize and bargain collectively with
the Union as the exclusive representative of the employ-
ees in the following appropriate unit, and, upon request,
embody in a signed agreement any understanding
reached. The appropriate unit is:

The employees of Respondent who are engaged in the
manufacture, fabrication, and assembly of sheet metal,
as described in Section 1 of the collective-bargaining
agreement between the Union and the Association, ef-
fective June 1, 1991 through May 31, 1994.

(b) Within 14 days from the date of this Order, offer
Ronald Belloff and Arthur Nelson full reinstatement to
their former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to their
seniority or any other rights or privileges previously en-
joyed.
(c) Make whole Ronald Belloff, Arthur Nelson, Albert
Previte, Dennis Bardsley, Norman Young, Rocco Met-
aldo, Norbert Siedentop, and Joseph McHose for any loss
of earnings and other benefits suffered as a result of the
discrimination against them, in the manner set forth in
the remedy section of the judge’s decision.
(d) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all
other records necessary to analyze the amount of back-
pay due under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its facility in Highland Park, New Jersey, copies of the
attached notice marked “Appendix.”7 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 22, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since June 16,
1994.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
7 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
NEW BRUNSWICK GENERAL SHEET METAL WORKS 917
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
IT IS FURTHER ORDERED that those allegations as to
which no violations have been found are dismissed.

CHAIRMAN GOULD, concurring.
Contrary to Member Fox, I agree with the administra-
tive law judge’s dismissal of the 8(a)(5) unilateral change
and direct-dealing allegations. The Respondent’s unlaw-
ful declaration that it was withdrawing recognition of the
Union, even though it preceded the actual implementa-
tion of unilateral changes, had no impact on the parties’
negotiations. The Union’s bad-faith refusal to permit the
Respondent to choose a member of its own bargaining
team had already created and sustained what the Union
itself declared to be a deadlock in bargaining. Further-
more, the Respondent remained willing to negotiate with
the Union, albeit in the context of a perceived voluntary
8(f) relationship rather than under the statutory mandate
of Section 8(d) and Section 9(a).
Finally, I agree with the judge that Grywalski’s meet-
ing with employees on June 17 cannot reasonably be
described as direct dealing. Union Steward Previte re-
quested the meeting and defined its purpose. Union
Business Representative Kohler voiced no objection to
Previte’s proposal. Previte attended the meeting. In
sum, the meeting took place with the full participation
and approval of the Union.

MEMBER HURTGEN, dissenting in part.
I would dismiss the complaint in its entirety.
My colleagues conclude that the 1991 agreement be-
tween the Respondent and the Union establishes 9(a)
status. I conclude that the agreement does not establish
9(a) status. Accordingly, the Respondent was privileged
to withdraw recognition after the expiration of that con-
tract, and to make unilateral changes. It follows that the
strike to protest this conduct was not an unfair labor
practice strike.
With respect to the issue of 9(a) vs. 8(f) status, I have
set forth my views on this matter in Oklahoma Installa-
tion, 325 NLRB 741 (1998). In the instant case, as in the
cited case, there is no showing that the Union had major-
ity status at any relevant time, i.e., at the time of the 1991
contract or at the time of alleged recognition in 1988.
Nor does the contract clearly state that there was such a
showing. In this latter regard, the contract says that the
Union “represents” a majority. However, “representa-
tion” is as true of 8(f) relationships as it is of 9(a) rela-
tionships. Similarly, although the contract speaks of
“proof,” it fails to say what was proved, i.e., it fails to
say that the Union proved that it had been chosen by a
majority of the employees. Finally, the contract says that
the Union is the “exclusive” representative. However,
“exclusivity” is as true of 8(f) relationships as it is of 9(a)
relationships.
Concededly, the instant contract may be subject to a
construction that 9(a) status was intended and that major-
ity status was shown. However, for the reasons set forth
in Oklahoma Installation, I would require clarity of lan-
guage. At least in the absence of such clarity, I would
entertain evidence as to whether there was in fact a dem-
onstration of majority status. There is no such evidence
here. Indeed, the Respondent sought to show the oppo-
site, i.e., that there was no majority status. The Respon-
dent was not permitted to show this.
In sum, there is no showing of a 9(a) relationship. Ab-
sent such a showing, there is no violation.

MEMBER FOX, dissenting in part.
I agree with the judge’s findings that: (1) the Union
was the 9(a) representative of the unit employees; (2) the
Respondent’s June 19941 unlawful withdrawal of recog-
nition from the Union was a contributing cause of the
strike which began on June 20, thereby rendering the
work stoppage an unfair labor practice strike; and (3) the
Respondent unlawfully refused to reinstate the strikers
immediately upon their unconditional offer to return to
work. I disagree, however, with my colleagues’ adoption
of the judge’s finding that the Respondent did not breach
its bargaining obligation by meeting directly with unit
employees and by unilaterally implementing changes in
unit employees’ wages and benefits. I find that these
actions not only violate Section 8(a)(5), but that they also
render invalid the Respondent’s offers of reinstatement
to the former strikers.
As stated above, the judge found that the Respondent
unlawfully withdrew recognition from the Union. In
reaching this finding, he relied upon a June 8 letter from
the Respondent’s counsel to the Union asserting that
“there is no longer a collective bargaining relationship in
existence,” as well as a June 17 statement from the Re-
spondent’s president to a shop steward that he no longer
considered the company “in the Union.” The judge de-
termined that the Respondent’s 8(a)(5) conduct was a
contributing cause of the ensuing strike and that the
strike therefore was an unfair labor practice strike from
its inception.
As the judge and my colleagues acknowledge, the Un-
ion’s insistence that the Respondent attend negotiation
sessions without its attorney did not extinguish the Un-
ion’s status as the employees’ 9(a) representative, and
therefore does not justify or render lawful the Respon-
dent’s withdrawal of recognition from the Union. Simil-
iarly, the Union’s conduct does not justify the Respon-
dent’s unilateral actions subsequent to the withdrawal of
recognition, which followed from the unlawful with-
drawal and were expressly undertaken in derogation of
the collective-bargaining process and the Union’s status
as bargaining representative. I do not dispute that under
settled law, once it was clear that the Union was refusing

1 Dates refer to 1994 unless noted otherwise.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 918
to meet unless the Respondent excluded its lawyer, who
was one of its selected bargaining representatives, from
the negotiations, the Respondent would have been free to
declare an impasse in the negotiations, implement its
final offer, and advise the employees of what it was do-
ing. See Louisiana Dock Co., 293 NLRB 233, 235–236
(1989), enfd. in relevant part 909 F.2d 281, 286–287 (7th
Cir. 1990) (employer acted lawfully in implementing
final offer and announcing it to employees, where union
had conditioned its agreement to negotiations on bargain-
ing in a unit other than the recognized unit); General
Drivers & Helpers Local 554 v. Young & Hay Transpor-
tation Co., 522 F.2d 562, 566–567 (8th Cir. 1975), affg.
214 NLRB 252 (1974) (same). But the Respondent did
not follow this lawful course, which would have required
that it continue to recognize the Union and remain ready
to resume bargaining should the Union drop its demand
that the Respondent’s lawyer be excluded. Instead, the
Respondent first withdrew recognition from the Union
and then announced its unilateral changes to employees
at a meeting at which it gave them copies of its letter to
the Union stating that “there is no longer a collective-
bargaining relationship in existence” and advised them
that if they came to work the following Monday under
the new wage rates they would be “out of the Union.”
The implementation of the new terms was thus inter-
twined with, and fatally tainted by, the Respondent’s
unlawful withdrawal of recognition.2 See Central Metal-
lic Casket Co., 91 NLRB 572, 572–575 & fn. 13 (1950).
(even assuming valid impasse had been reached, em-
ployer’s unilateral implementation of proposed wage
plan violated Sec. 8(a)(5) where, on account of em-
ployer’s conduct in disparagement of union’s role, im-
plementation “necessarily represented” to employees that
employer no longer recognized union’s right to represent
them).
“[A] bargaining impasse does not relieve an employer
from the continuing duty to take no action which the em-
ployees may interpret as a ‘disparagement of the collec-
tive bargaining process’ or which amounts in fact to a
withdrawal of recognition of the union’s representative
status or to an undermining of its authority.” Central
Metallic Casket Co., 91 NLRB at 573, quoting NLRB v.
Crompton-Highland Mills, Inc., 337 U.S. 217, 224

2 Contrary to Chairman Gould, I view the fact that the Respondent
may have been willing, on a “voluntary” basis, to negotiate with the
Union for an 8(f) agreement, as beside the point. The Respondent’s
statutory obligation was to continue to recognize and bargain with the
Union as the exclusive 9(a) representative of its employees. In contrast
to its obligations when dealing with a 9(a) representative, an employer
which engages in bargaining with a union for an 8(f) agreement is not
recognizing the union as the majority representative of its employees
and retains the unilateral right to terminate the negotiations at any tme.
I know of no authority that suggests that an employer can unlawfully
withdraw recognition from its employees’ 9(a) representative and nev-
ertheless be found to be engaged in good-faith bargaining because it
has offered to bargain with the representative on an 8(f) basis.
(1949). In my view, it is clear that both the announce-
ment to the employees about the implementation and the
implementation itself violated Section 8(a)(5). Accord-
ingly, I would also find that the Respondent’s offers of
reinstatement to former strikers during January and April
1995 at the unlawfully implemented rates were not offers
of full reinstatement to which the employees were enti-
tled, and that the Respondent has therefore also violated
Section 8(a)(3). See Brooks, Inc., 228 NLRB 1365, 1368
(1977).
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT refuse to recognize and bargain with
Sheet Metal Workers International Association, Local
Union 27 as the exclusive representative of our employ-
ees in the appropriate unit with respect to wages, hours,
working conditions, and other terms and conditions of
employment.
WE WILL NOT refuse to reinstate former unfair labor
practice strikers to their former, or substantially equiva-
lent, positions of employment.
WE WILL NOT in any like or related manner, interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you under Section 7 of the Act.
WE WILL, on request, recognize and bargain collec-
tively with the Union as the exclusive representative of
the employees in the following appropriate unit, and, on
request, embody in a signed agreement any understand-
ing reached. The appropriate unit is:

Our employees who are engaged in the manufacture,
fabrication and assembly of sheet metal, as described in
Section 1 of the collective-bargaining agreement be-
tween the Union and the Association, effective June 1,
1991 through May 31, 1994.

WE WILL, within 14 days from the date of the Board’s
Order, offer Ronald Belloff and Arthur Nelson full rein-
statement to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without
NEW BRUNSWICK GENERAL SHEET METAL WORKS 919
prejudice to their seniority or any other rights or privi-
leges previously enjoyed.
WE WILL make Ronald Belloff, Arthur Nelson, Albert
Previte, Dennis Bardsley, Norman Young, Rocco Met-
aldo, Norbert Siedentop, and Joseph McHose whole for
any loss of earnings and other benefits resulting from our
failure to reinstate them, less any net interim earnings,
plus interest.

NEW BRUNSWICK GENERAL SHEET METAL
WORKS
Richard E. Fox, Esq., for the General Counsel.
John A. Craner, Esq. (Craner, Nelson, Satkin & Scheer), of
Scotch Plains, New Jersey, for the Respondent.
Robert F. O’Brien, Esq. (Tomar, Simonoff, Adourian, O’Brien,
Kaplan, Jacoby & Graziano), of Haddonfield, New Jersey,
for the Charging Party.

DECISION
STATEMENT OF THE CASE
D. BARRY MORRIS, Administrative Law Judge. This case
was heard before me in Newark, New Jersey, on June 7 and 8,
1995. Upon charges filed on June 16 and October 12, 1994,1 a
consolidated complaint was issued on November 4, alleging
that New Brunswick General Sheet Metal Works (Respondent)
violated Section 8(a)(1), (3), and (5) of the National Labor
Relations Act (the Act). Respondent filed an answer denying
the commission of the alleged unfair labor practices.
The parties were given full opportunity to participate, pro-
duce evidence, examine and cross-examine witnesses, argue
orally, and file briefs. Briefs were filed by the parties on July
28, 1995.
On the entire record of the case, including my observation of
the demeanor of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation with an office and place of busi-
ness in Highland Park, New Jersey, has been engaged in the
manufacture of sheet metal. It has been admitted, and I find,
that Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act. In addition,
it has been admitted and I find, that Sheet Metal Workers Inter-
national Association, Local Union 27 (the Union) is a labor
organization within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The issues in this proceeding are:
1. Is the Union the exclusive collective-bargaining represen-
tative of the unit employees, pursuant to Section 9(a) of the
Act?
2. Did Respondent fail to bargain with the Union and unlaw-
fully withdraw recognition?
3. Did Respondent bypass the Union, deal directly with the
unit employees and make unlawful unilateral changes?

1All dates refer to 1994 unless otherwise specified.
4. Did Respondent solicit employees to withdraw from the
Union by rendering unlawful assistance to them?
5. Did Respondent unlawfully fail to reinstate striking em-
ployees?
B. The Facts
1. Section 9(a) relationship
On October 1, 1991, Respondent’s president, John J. Gry-
walski, signed an agreement binding Respondent to the terms
and conditions of the collective-bargaining agreement between
the Union and Sheet Metal Contractors Association of Central
& Southern New Jersey and Associated Roofers (the Associa-
tion). Article XXV of the collective-bargaining agreement
states that:

Inasmuch as the Union has submitted proof and the
employer is satisfied that the Union represents a majority
of its employees in the bargaining unit described herein,
the employer recognizes the Union as the exclusive collec-
tive bargaining agent for all employees within that bar-
gaining unit, on all present and future jobsites within the
jurisdiction of the Union, unless and until such time as the
Union loses its status as the employees’ exclusive repre-
sentative as a result of an NLRB election requested by the
employees. The employer agrees that it will not request an
NLRB election and expressly waives any right it may have
to do so.

In Hayman Electric, 314 NLRB 879, 884 (1994), the Board
stated:

[S]ince Deklewa2 the Board has stated that a party can prove
the existence of a 9(a) relationship either through a Board-
conducted representation election, or a union’s express de-
mand for, and an employer’s voluntary grant of, recognition
to the union based on a contemporaneous showing of union
support among a majority of the employees in an appropriate
unit.

Respondent argues that an 8(f) relationship existed and that
the Union never became a 9(a) representative. Citing J & R
Tile, 291 NLRB 1034, 1036 (1988), Respondent argues that
there must be evidence that the Union unequivocally demanded
recognition as the employees’ 9(a) representative and that the
employer unequivocally accepted it as such, before a 9(a) rela-
tionship is established.
The parties stipulated that article XXV first appeared in the
1988 agreement. Respondent attempted to adduce evidence
concerning the negotiations leading up to the 1988 agreement,
whether a demand for recognition was made by the Union at
that time and whether Respondent was furnished with proof of
majority status. Citing Hayman Electric, supra, General Coun-
sel and counsel for the Charging Party strenuously objected to
the receipt of such evidence arguing that it was time barred. I
sustained counsel’s objections.
Article XXV, which first appeared in the 1988 collective-
bargaining agreement, states, in pertinent part, that “Inasmuch
as the Union has submitted proof and the employer is satisfied
that the Union represents a majority of its employees . . . the
employer recognizes the Union as the exclusive collective-
bargaining agent.” Seven years after entering into that agree-
2John Deklewa & Sons, 282 NLRB 1375 (1987), enfd. 843 F.2d 770
(3d Cir. 1988).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 920
ment, Respondent urges that I should have permitted evidence
concerning whether, in fact, in 1988 the Union represented a
majority of its employees in the bargaining unit. In this connec-
tion, in Casale Industries, 311 NLRB 951, 953 (1993), the
Board stated:

[T]he challenge to majority status came 6 years after Section
9 recognition was extended and accepted. The parties reached
agreement on three successive contracts during that period.
The issue before us is whether to permit a challenge to major-
ity status after 6 years of stability in a multiemployer relation-
ship.
We will not permit the challenge. Our conclusion . . .
is based on the proposition that a challenge to majority
status must be made within a reasonable period of time af-
ter Section 9 recognition is granted. . . .
. . . .
These same principles would be applicable in the con-
struction industry. In Deklewa, the Board said that unions
in the construction industry should not be treated less fa-
vorably than those in nonconstruction industries. As
shown above, parties in nonconstruction industries, who
have established and maintained a stable Section 9 rela-
tionship, are entitled to protection against a tardy attempt
to disrupt their relationship. Parties in the construction in-
dustry are entitled to no less protection. Accordingly, if a
construction industry employer extends 9(a) recognition to
a union, and 6 months elapse without a charge or petition,
the Board should not entertain a claim that majority status
was lacking at the time of recognition. [Fns. omitted.]

See also Hayman Electric, supra, 314 NLRB at 885–886.
It has been admitted that the Association and the Union en-
tered into a collective-bargaining agreement effective from
June 1, 1991, through May 31, 1994. On October 1, 1991,
Grywalski signed an agreement stating: “I, the undersigned
responsible officer for the below company hereby agree to the
terms and conditions” of the Association collective-bargaining
agreement. As mentioned above, article XXV of the collective-
bargaining agreement acknowledges that the Union has submit-
ted proof that it represents a majority of the employees in the
bargaining unit and that the employer recognizes the Union as
the exclusive collective-bargaining agent for the unit employ-
ees. Pursuant to Casale Industries, supra, and Hayman Electric,
supra, I conclude that Respondent is barred from challenging
the Union’s majority status, and, I find, that at all times mate-
rial herein, the Union has been the exclusive collective-
bargaining representative of the employees in the appropriate
unit, pursuant to Section 9(a) of the Act.
2. Failure to bargain
The Association agreement was due to expire on May 31.
Thomas Kohler, the Union’s business representative, testified
that on March 30 he met with Grywalski, and the Union and
Respondent “exchanged proposals.” Grywalski, who appeared
to me to be a credible witness, also testified that both sides
exchanged proposals. Grywalski testified that soon after the
March 30 meeting he contacted Kohler. Kohler told him that
the Union was negotiating with the Association and “wanted to
get a lot of details worked out . . . and then they would get back
to me.” The next communication took place on May 26, when
Kohler wrote Grywalski to “please be advised that I would like
to request a second meeting on Friday, May 27, 1994 at 1:00
p.m. for the purpose of negotiating a new agreement.” In re-
sponse to the letter, Grywalski contacted Kohler, and credibly
testified:

I asked him what the procedure was. . . . The first
meeting we had was at my shop between myself and Tom
Kohler. But the second meeting they wanted to have that
at the union hall. Tom Kohler explained to me that how he
would go about is there would be two people from the un-
ion, probably himself and Tom Stapleton. So I said what
do I do. He said, well you bring somebody with you. So I
said okay. I’ll bring a labor attorney with me, John Craner.
And he said I’ll have to get back to you.
Q. Did he subsequently call you back?
A. I believe he did . . . .
Q. What was his response about your having me with
you at the meeting?
A. No labor attorney.

On May 27 Kohler sent another letter to Grywalski, which
stated, “As per our telephone conversation Thursday, May 26,
1994, you expressed to me that the meeting time was unaccept-
able due to scheduling conflicts. Please be advised that I would
like to request a second meeting, Tuesday, May 31, at 1 p.m.,
for the purpose of negotiating a new agreement. The meeting
will take place at the Local 27 Union hall.” Grywalski again
called Kohler, and credibly testified:

Q. . . . Did you call him back and talk to him about that
meeting on the 31st?
A. Yes. We tried to set up the meeting so that you
would be available, which I believe you were available, I
would be available, so we’d be able to go down to the
meeting.
Q. And what was his response?
A. No labor attorney.
Q. . . . Did he say if he was willing to meet; if he and
Stapleton were willing to meet with you without a lawyer?
A. Oh yes.
Q. What did he say specifically about your meeting
with them with a lawyer?
A. That we wouldn’t meet.

On June 6 Craner sent a letter to Stapleton, president of the
Union, detailing Respondent’s proposals. The letter stated “my
client and I are prepared to meet with representatives of Local
27 at any reasonable time and place to discuss these proposals.”
On June 7, Stapleton wrote to Grywalski, as follows:

Your previous demands of having an attorney present
during negotiations are not a situation I wish to get into.
This has never been a practice here before, and I don’t
want to start at the eleventh hour of negotiations. You
have also refused to discuss any of the Union demands of-
fered for consideration. Therefore, I am informing you that
I now consider negotiations at deadlock. Our office will
prepare the necessary paperwork for a submission to the
National Joint Adjustment Board, to be scheduled for a
hearing in July.

On June 8 Craner sent a letter to Stapleton which stated, in
pertinent part:

You recently wrote a letter to my client, dated June 7,
1994, in which you make it clear that you do not want to
negotiate with my client with myself present. That is your
choice and if you do not want to negotiate any further . . . I
NEW BRUNSWICK GENERAL SHEET METAL WORKS 921
think you should make it clear to either my client or my-
self that that is the case, at which point I will advise my
client to unilaterally implement the proposal forwarded to
you on June 6, 1994.

Stapleton testified that soon thereafter he “exercised at the
time what I thought was the proper thing to do and filed a Na-
tional Joint Adjustment Board set of paperwork to have the
contract sent out there.” Stapleton testified that he specifically
relied on section 8(A) of the collective-bargaining agreement,
which states, in pertinent part:

Should the negotiations for a renewal of this agree-
ment or negotiations regarding a wage/fringe reopener be-
come deadlocked in the opinion of the Union representa-
tive(s) or of the employer(s) representative(s), or both, no-
tice to that effect shall be given to the National Joint Ad-
justment Board.

The complaint alleges that since June 1 Respondent has
failed to bargain with the Union. Indeed, Charging Party’s brief
states, “New Brunswick’s refusal to negotiate in good faith is
evidenced in part by their insistence on the presence of counsel
during negotiations.” I find that General Counsel has not
proven that Respondent has failed to bargain with the Union
and no showing has been made that Respondent refused to
negotiate in good faith. The record is clear that Grywalski re-
quested that John Craner, Respondent’s attorney, be present at
the negotiations. The Union refused this request. I credit Gry-
walski’s testimony that Kohler told him that the Union would
be willing to meet with him without a lawyer, but that it would
not meet with Respondent’s attorney present. Stapleton’s letter
to Grywalski of June 7 substantiates this testimony. As stated in
88 Transit Lines, 300 NLRB 177, 178 (1990), Respondent’s
president “had every right to choose who would be on its nego-
tiating committee just as the Union selected its own commit-
tee.” Respondent had the right to have its attorney, John Craner,
present at the negotiations. The parties exchanged proposals
and at no time did Respondent state that it refused to meet with
the Union. Its only request was that the negotiations be con-
ducted with its attorney present. This the Union refused. I find
that General Counsel has not proven that Respondent failed to
bargain with the Union and no showing has been made that
Respondent refused to negotiate in good faith. See Louisiana
Dock Co., 293 NLRB 233, 235–236 (1989), enf. denied on
other ground 909 F.2d 281 (7th Cir. 1990).
3. Bypassing the Union and unilateral changes
Albert Previte appeared to me to be a credible witness. He
was the union shop steward at Respondent’s facility. He testi-
fied that on June l7 he and Kohler met with Grywalski. Gry-
walski showed Previte and Kohler several letters, including the
June 6 letter from Craner to Stapleton. This letter contained
Respondent’s wage and benefit proposals. Grywalski told them
that the new wage rates and benefits would be implemented the
following Monday morning. Previte told Grywalski that he
would like to have a meeting with the employees to tell them of
the new arrangement. Previte contacted the employees and a
meeting took place later that morning. Grywalski advised the
employees of the new wage rate that would go into effect the
following Monday morning. Previte testified that Kohler did
not object to the employees having a meeting with Grywalski.
Similarly, Kohler testified that he did not object to there being a
meeting or to Grywalski speaking with the employees. Kohler
also testified that he was never told that he could not be present
at that meeting.
On June 20 Respondent implemented the changes in wages
and benefits that it had proposed to the Union. The complaint
alleges that at its meeting on June 17, Respondent bypassed the
Union and dealt directly with its employees by advising them
of changes in the terms and conditions of their employment.
The complaint also alleges that on June 20 Respondent unlaw-
fully implemented changes in its wage rate and benefits.
In Louisiana Dock Co., supra, 293 NLRB at 235, the Board
stated:

As the Respondents did not act unlawfully in refusing
to bargain over the unit insisted on by the Union, we find
that the Respondents’ unilateral implementation of previ-
ously proposed changes in job classifications, wage rates,
benefit plans, attendance policies, and other matters...did
not constitute a violation of Section 8(a)(5) and (1). The
Union rejected the Respondents’ offers to bargain, insist-
ing on negotiating only in the multisite unit. Thus, as the
Board noted in Young & Hay Transportation Co.,3 “the
Union cannot be heard to protest the Respondent’s unilat-
eral actions, insasmuch as it was the Union’s own acts
which foreclosed effective negotiations.”

The Board further stated (id. at 236):

In these circumstances, we also find that the Respon-
dents’ announcement to its employees of the implementa-
tion of the unilateral changes was not unlawful direct deal-
ing. Faced with the Union’s refusal to bargain, the Re-
spondents had no choice but to correspond directly with
their employees concerning these changes.

As noted above, I have found that Respondent was not nego-
tiating in bad faith because it requested to have its attorney
present at negotiations. To the contrary, the Union did not have
the right to insist that Respondent’s attorney not be present at
the negotiations. As stated by the Board in Young & Hay
Transportation Co., supra, 214 NLRB 253, “the Union cannot
be heard to protest the Respondents’ unilateral actions inas-
much as it was the Union’s own acts which foreclosed effective
negotiations.” In addition, as stated in Louisiana Dock Co.,
supra, 293 NLRB at 236, “Respondents’ announcement to its
employees of the implementation of the unilateral changes was
not unlawful direct dealing.” Both Previte, the shop steward,
and Kohler were told of the proposed changes and Previte re-
quested that Grywalski inform the employees of the changes.
Previte was present at the meeting when Grywalski informed
the employees of the changes and Kohler did not object to that
meeting taking place. Accordingly, the allegations that Respon-
dent bypassed the Union and dealt directly with the employees
on June 17 and unlawfully implemented the changes to the
wage rate and benefits on June 20 are dismissed.
4. Unlawful assistance
The complaint alleges that on June 27 Grywalski solicited
employees to withdraw from the Union by assisting these em-
ployees in the typing and faxing of their letters of resignation.
The record shows that on June 27 George Davison and Randy
Jogan submitted letters of resignation to the Union. Respon-
dent’s attorney conceded that “a secretary in the office typed up

3 214 NLRB 252 (1974), affd. 522 F.2d 562 (8th Cir. 1975).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 922
their resignation letters and allowed the employees to fax them
over to Local 27.” No showing has been made that Grywalski
or any supervisor was involved with the typing and faxing of
the letters of resignation. Instead, the only evidence is the letter
of Respondent’s attorney which states that “a secretary” in the
office typed the letters and allowed the employees to fax them
to the Union. I find that no showing has been made that the
secretary was a supervisor or an agent of Respondent “to war-
rant vicarious liability of Respondent” for her actions. See
Knogo Corp., 265 NLRB 935, 936 (l982), enf. granted in part
and denied in part, on other grounds, 727 F.2d 55 (2d Cir.
1984). Accordingly, the allegation is dismissed.
5. Withdrawal of recognition and failure to reinstate
The complaint alleges that Respondent unlawfully withdrew
its recognition of the Union as the exclusive collective-
bargaining representative of the employees in the appropriate
unit. In Craner’s letter to Stapleton dated June 8, speaking on
behalf of Respondent, the letter states “there is no longer a
collective-bargaining relationship in existence.” In addition,
Previte credibly testified that in his meeting with Grywalski on
June 17 Grywalski told him that he no longer considered him-
self in the Union. I have already found that a 9(a) relationship
existed between Respondent and the Union. I conclude, there-
fore, that the statement by Respondent’s attorney that there is
“no longer a collective-bargaining relationship in existence”
and the statement by Grywalski that he no longer considers
himself in the Union constitute the unlawful withdrawal of
recognition of the Union as the exclusive collective-bargaining
representative of the employees in the appropriate unit.
A strike by Respondent’s employees commenced on June 20.
The complaint alleges that the strike was caused by Respon-
dent’s unlawful labor practices. A strike will be considered to
be an unfair labor practice strike if the record establishes that an
unfair labor practice was a “contributing cause” of the strike.
See Massachusetts Coastal Seafoods, 293 NLRB 496 (1989);
National Management Consultants, 313 NLRB 405, 408
(1993). I have found that Respondent unlawfully withdrew
recognition from the Union as the exclusive collective-
bargaining representative prior to the commencement of the
strike. I deem this to be a “contributing cause” of the strike and,
accordingly, I find that the strike which began on June 20 was
an unfair labor practice strike at its inception.
On September 12, Stapleton, by letter and telegram, wrote to
Grywalski as follows:

On behalf of all members of the bargaining unit repre-
sented by Local 27 who have been on strike, we wish to
advise you that we hereby make unconditional application
to return to work. Since these are unfair labor practice
strikers, we would expect you to reemploy them immedi-
ately.

Grywalski did not respond. On September 20 Stapleton again
wrote to Grywalski stating that “the Local removed our picket
line after September 9 and I wrote you a letter indicating our
wish to return to work.” Again, there was no response from
Respondent.
On January 25, 1995, Respondent sent a letter to Arthur Sie-
dentop stating “I am pleased to offer you a position with New
Brunswick General Sheet Metal Works as a mechanic, with a
gross pay rate of $22.00 per hour.” Similar letters were sent on
sent on April 11, 1995, to Rocco Metaldo, Albert Previte, Den-
nis Bardsley, Norman Young, and Joseph McHose.4
I find that the Union on behalf of the striking employees
made an unconditional offer for them to return to work on Sep-
tember 12. As was stated in Airport Parking Management, 264
NLRB 5, 11 (1982):

It having been established that the employees were un-
fair labor practice strikers, it follows that Respondent was
obligated to immediately reinstate the unfair labor practice
strikers to their former positions of employment upon their
unconditional offer to return to work, discharging, if nec-
essary, any employees hired as replacements during the
strike.

Since I have found the strikers in the instant proceeding to be
unfair labor practice strikers, upon the receipt of the September
12 communication, Respondent had an obligation to immedi-
ately reinstate the employees to their former positions, dis-
charging, if necessary, any replacements.
The General Counsel and the Charging Party argue that the
offers of reinstatement on January 25 and April 11, 1995, were
invalid because they specified that the wage rate would be $22
per hour. I have already found that the implementation of the
$22 wage rate on June 20 was not unlawful. Accordingly, I find
that Respondent’s offers of reinstatement dated January 25 and
April 11, 1995, were valid offers of reinstatement.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. The employees of Respondent who are engaged in the
manufacture, fabrication, and assembly of sheet metal, as de-
scribed in section 1 of the collective-bargaining agreement
between the Union and Sheet Metal Contractors Association of
Central & Southern New Jersey, which was effective from June
1, 1991, through May 31, 1994, constitute a unit appropriate for
the purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
4. At all material times the Union has been the exclusive
collective-bargaining representative of the employees in the
appropriate unit within the meaning of Section 9(a) of the Act.
5. By withdrawing recognition from the Union as the exclu-
sive collective-bargaining representative of its employees in the
appropriate unit Respondent has violated Section 8(a)(1) and
(5) of the Act.
6. The strike which commenced on June 20, 1994, was an
unfair labor practice strike at its inception.
7. By failing and refusing to reinstate the unfair labor prac-
tice strikers upon their unconditional offers to return to work on
September 12, 1994, Respondent violated Section 8(a)(1) and
(3) of the Act.
8. The aforesaid unfair labor practices constitute unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.

4 The record does not contain copies of any offers of reinstatement to
Ronald Belloff and Arthur Nelson. While Grywalski testified that he
“believes” he sent them offers as well, I conclude that the evidence is
insufficient to show that offers of reinstatement were made to Belloff
and Nelson.
NEW BRUNSWICK GENERAL SHEET METAL WORKS 923
9. Respondent did not violate the Act in any other manner
alleged in the complaint.
THE REMEDY
Having found that Respondent has engaged in certain unfair
labor practices, I find it necessary to order Respondent to cease
and desist therefrom and to take certain affirmative action de-
signed to effectuate the policies of the Act.
Having unlawfully withdrawn recognition from the Union, I
shall order Respondent to recognize and bargain collectively
with the Union as the exclusive representative of the employees
in the appropriate unit. I shall also order Respondent to offer
Ronald Belloff and Arthur Nelson5 immediate reinstatement to

5 As noted above, I have found that valid offers of reinstatement
were made to the other six striking employees.
their former positions or, if such positions are no longer in exis-
tence, to substantially equivalent positions, without prejudice to
their seniority or other rights and privileges, discharging if
necessary any replacements. Respondent shall be required to
make whole all of the striking employees for any loss of earn-
ings they may have suffered from September 12, 1994, until the
date of Respondent’s offers of reinstatement. Backpay shall be
computed in accordance with the formula approved in F. W.
Woolworth Co., 90 NLRB 289 (l950), with interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987).6
[Recommended Order omitted from publication.]
6 Under New Horizons, interest is computed at the “short-term Fed-
eral rate” for the underpayment of taxes as set out in the 1986 amend-
ment to 26 U.S.C § 6621.