Sheet Metal Workers, Local No. 11

National Labor Relations Board - Board Decisions

Jul 9, 1971

192 N.L.R.B. 32 (N.L.R.B. 1971)

32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sheet Metal W orkers International Association, Local
Union No. 11 and Corrugated Asbestos -Contrac-
tors, . Inc. and International Association of Bridge,
Structural and Ornamental Iron Workers,
AFL-CIO : and International Association of Bridge,
Structural . and Ornamental Iron Workers, Local
Union No. 58, AFL-CIO
Sheet Metal Workers International Association, Local
,,Union No. 11 and , Corrugated Asbestos Contrac-
tors, Inc. Cases 15-CD-127 and 15-CB-994
July 9,` 1971
DECISION-AND ORDER
BY CHAIRMAN MILLER AND MEMBERS BROWN
AND., JENKINS
On January 6, 1971, Trial, Examiner Alvin Lieber-
man issued a Decision in-the above-entitled proceed-
ing, finding that .'Respondent had engaged in and was
engaging in certain unfair labor practices,alleged in
the, complaint and recommending that it cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Decision.
Thereafter, Respondent filed exceptions to the Deci-
sion and a brief in support thereof, The General
Counsel also filed exceptions to the decision together
with a, brief in, support of the exceptions and in
support. of, that part of the Trial Examiner's Decision
not excepted to. The Charging Party filed a brief in
support of the Trial Examiner's Decision.'
Pursuant, to,the- provisions of Section 3(b) of the
National Labor `Relations Act, as amended, the
National Labor Relations Board has delegated its
powers _ in, connection with these cases to a three-
member panel.
The -Board, ,has reviewed the rulings of the Trial
Examiner made, at the hearing and, finds that no
prejudicial, error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the briefs, and
the entire record in these cases and -finds merit in
Respondent's, exceptions. It therefore adopts the Trial
Examiner's, findings of fact with certain, exceptions
noted below, but rejects his conclusions and recom-
mended Order.
The _ complaint, alleged that Respondent, Sheet
Metal Workers International Association, Local
Union No. 11, violated Section 8(b)(4)(D) of the Act
by its refusal to enter into a collective-bargaining
agreement or to bargain with the Charging Party,
Corrugated Asbestos Contractors, Inc., in order to
force Corrugated to assign the work in dispute to its
1 Respondent also filed a motion for oral argument. The motion is
hereby denied because the record, exceptions, and briefs adequately
members contrary to the Board's jurisdictional award„
to members of .International Association of Bridge,
Structural and Ornamental Iron Workers, ; Local
Union No. 58, AFL-CIO. The complaint further
alleged that by the same' acts Respondent violated
Section 8(b)(3). The Trial Examiner found that
Respondent violated Section 8(b)(4)(D) and ordered
it to enter into a collective-bargaining agreement with
Corrugated. He did not decide the merits of the
8(b)(3) allegation because he considered that the
remedy for such violation would-be the same as for
the violation found.
The case arises in connection, with a ' work assign-
ment jurisdictional dispute. On February 13, the
Board issued its Decision and Determination of
Dispute which is reported at 181 NLRB No. 27. The
Board found that, there was "reasonable cause to
believe" that Respondent, had violated Section
8(b)(4)(D) , of the Act . Itfoundthat Respondent Local
1I had refused to renew its collective-bargaining
contract with Corrugated upon the contract's expira-
tion on May 31, 1969; told its members not,to ,work
for that Company without a contract; and refused to
continue to supply workers,, all as a means of
requiring Corrugated to assign certain disputed work
to members of locals of Sheet Metal Workers
International Association. The Board; then deter-
mined the merits of the dispute and found that
Corrugated's "employees who are representedby .., .
[Iron Workers] .... are _ entitled, to the ; work, of
installing Reynolds V-beam siding having five inches
or more between corrugations." It ,also found that
Respondent is not entitled by means,proscribed by
Section 8(b)(4)(D)' of the Act to force or require
Corrugated to assign ,such work to employees, repre
sented by Sheet Metal Workers International Associ-
ation or any of its locals. The Board accordingly
directed that-
Within 10 days from the date of this Decision and
-Determination of Dispute, [Respondent] shall
notify the Regional. Director, for Region, 15, in
writing, whether or, not it will refrain from forcing
or requiring [Corrugated ],by means proscribed .by
Section 8(b)(4)(D), to assign the work in dispute in
,a manner -inconsistent with the above determina-
tion. [181 NLRB No. 27, section entitled Determi-
nation of Dispute.]
Within a few days after-the,Board issued its Decision,
Respondent notified the Regional Director, in writ-,
ing, "in accordance with the Board's Decision and
Determination of Dispute . . . Local 11 will refrain
from forcing or requiring [Corrugated] . . . by means
proscribed by Section 8(b)(4)(D) to assign the work
[in dispute . . . to members or employees represented
present the issues and the positions of the parties.
192 NLRB No. 8
SHEET METAL WORKERS, LOCAL NO. 11
by Sheet Metal Workers International Association or
any Local thereof."
Shortly thereafter Corrugated, which in past years
had executed the same collective-bargaining agree-
ment that Respondent had previously negotiated with
Sheet Metal Contractors Association of New Orleans,
Inc., offered to enter into a collective-bargaining
agreement with Respondent identical with that which
the Association had recently executed with Respon-
dent. Respondent's business manager, Sidney Le-
Blanc , answered in writing that "... Local I1
herewith renounces and disclaims any interest what-
soever in representing any of your employees engaged
in the fabrication or installation of sheet metal
materials or employed for any other purpose by your
company."
Respondent's members who were employees of
Corrugated have returned to work and have remained
at work. Respondent has not further interfered with
Corrugated's work assignments. Relying on the
advice of its attorney, Respondent,has continued to
receive members' dues from Corrugated's employees
and employer contributions for fringe benefits in their
behalf. However, Respondent has persisted ' in its
refusal to enter into a collective-bargaining contract
with Corrugated.
The Trial Examiner found that "regardless of the
good faith of Respondent's disclaimer," the Board's
Decision and Determination of Dispute required
Respondent to sign the collective-bargaining agree-
ment as requested by Corrugated. Assuming, arguen-
do, that a good-faith disclaimer would be a defense to
the 8(b)(4)(D) allegation, the Trial Examiner found
that it was not made in good faith. He, relied on the
factors that Corrugated's employees continued to be
dues-paying members of Respondent; Corrugated
continued to contribute, and Respondent to receive,
fringe benefit contributions on behalf of these
employee-members; and, most significantly, that
Respondent's Business Manager LeBlanc admitted
that the disclaimer was prompted by the work
assignment dispute that was the subject of the 10(k)
hearing . The Trial Examiner rejected Respondent's
assertion that it continued to receive employer fringe
benefit contributions on the advice of its attorney that
such receipt was necessary to comply with a ' court
injunction issued preliminary to the Board hearing in
the 10(k) proceeding. He interpreted LeBlanc's
seeming admission at the ' hearing that, but for the
Kan sas.City dispute, he would have had no reason to
disclaim as a statement that Respondent would not
have refused to enter into the contract had Corrugat-
ed assigned the disputed work to Respondent's
members.
Respondent contends that it has complied with the
Order issued in the 10(k) proceeding: that the Board's
33
Order does not require it to sign a collective-bargain-
ing agreement which forces it to'represent employees
it no longer desires to represent . It argues that, in good
faith, it disclaimed representation of Corrugated's
employees and such disclaimer is a defense to the
complaint allegation of refusal to bargain. We agree.
The Trial Examiner assumed that the Determina-
tion of Dispute in the 10(k) proceeding required
Respondent to execute a collective-bargaining agree-
ment with Corrugated . This' assumption is not
justified by the terms of the Determination which only
required Repsondent to "notify the Regional Director
... in writing , whether or not' it will refrain from
forcing or requiring [Corrugated] by means pro-
scribed by Section 8(b)(4)(D),' to assign the work in
dispute in a manner inconsistent with the above
determination ." Respondent has taken the necessary
steps to effect compliance with that directive. Since
the date of the 10(k) determination, it has not engaged
in any strike, refusal to refer employees, or any other
action to force or require Corrugated to assign the
disputed work to its members . Respondent has
refrained, and notified the Regional Director in
writing that it would refrain , from prohibited conduct.
Accordingly, we conclude that Respondent has
complied with the 10(k) determination . It. has there-
fore not violated Section 8 (b)(4)(D) of the ct.
The Trial Examiner did not decide Whether Respon-
dent's refusal ' to execute `a collective-bargaining
agreement with Corrugated violated Section 8(b)(3) of
the Act, as alleged in the complaint , because he
considered that the remedy for such violation would
be the same as for the violation ' of
8(b)(4)(D)-execution of a collective -bargaining con-
tract. He found that, in any event , Respondent's
disclaimer of representation was not made in good
faith . As we hold that the terms of our 10(k)
determination did not require execution of a contract,
we examine the other surrounding circumstances to
determine whether the disclaimer was in good faith.
The Trial Examiner found that Business Manager
LeBlanc's testimony, that Respondent would not
have disclaimed but for the 10(k) , dispute, was
inconsistent with a good-faith intent to disclaim. The
Trial Examiner's inference is not warranted. Le-
Blanc's testimony indicates that Respondent dis-
claimed its representative interest in Corrugated's
employees because the 10(k) hearing revealed that
Corrugated was employing members of the Iron
Workers Union to install not ' only the disputed
Reynolds V-beam sheeting but also other sheetmetal
products . LeBlanc said that such work, similar to the
disputed work, would involve -his Union in like
jurisdictional- problems and he therefore , felt that
under the circumstances representing, Corrugated's
few employees was not worth the trouble. The record
i
34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the 10(k) hearing, bears out LeBlanc's statement:
Corrugated was employing Iron Workers members
for much sheetmetal, work that Respondent believed
overlapped its own jurisdiction. The fact that Respon-
dent acknowledged that it would not have abandoned
its claim to representation but for the 10(k) dispute is
not inconsistent with a good-faith intent to disclaim
representative status. It is congruent with the view
that Respondent was prepared to represent Corrugat-
ed's handful of employees if there was no trouble, but
not if Respondent was thereby to be involved in
numerous jurisdictional disputes.
The Trial Examiner found that Respondent's
continuing to treat Corrugated's employees as mem-
bers and 'accepting Corrugated's contributions cover-
ing employee-members' benefits was also inconsistent
with a good-faith- disclaimer. The' Trial Examiner
rejected Respondent's reason for such actions, that it
relied on its attorney's advice in order to comply with
the outstanding court injunction, because the Trial
Examiner thought that the injunction did not require
such action. We cannot say, however, that the terms
of the court injunction were so clear that those bound
by it could not reasonably conclude that it required a
continuation of the same employment relationships.
As the evidence' does not reflect adversely on
Respondent's good faith in' disclaiming representa-
tion, we find that its disclaimer is a'defense to the
allegation of refusal to bargain in volation of Section
8rox3).?
We have found that Respondent has complied with
the terms of 10(k) determination and that Respondent
has not refused to bargain in violation of Section
8(b)(3), We shall therefore dismiss the complaint in its
entirety.
ORDER
It is hereby ordered that the complaint herein be,
and it hereby is, dismissedin its entirety.
2 The decision in, Texhie Inc., 119 NLRB 1792, enfd.,266 F.2d 349 (C.A.
5), on which the Trial Examiner relied , does not fit the facts of this case.
Respondent union in Texlite continued to insist , even as of the time of the
hearing, that it was willing to sign a contract with the employer if the
employer would but accede to its unlawful condition , recognizing it for a
unit in which another union had been certified . Respondent Union's agent
in this case has been adamant in his disclaimer at all times,'including the
hearing in this case.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ALVIN LIEBERMAN, Trial -Examiner:, The trial in this
proceeding, with all parties except the parties to the dispute
in 15-CD-127 represented, was held before me in New
Orleans, Louisiana, on October 6, 1970, upon the General
Counsel's complaint based on charges filed by Corrugated
Asbestos Contractors, Inc. (herein called Corrugated) on
May 29 and June 5, 1969,1 and respondent's answer.The
principal issue in this case is whether respondent violated
Section 8(b)(4)(D) of the National Labor Relations Act; as
amended (hereinafter called the Act).2 In this regard, the
particular questions for decision are as follows:
1. Has respondent complied with the Decision, and
Determination of Dispute made pursuant to Section 10(k)
of the Act by the . National Labor Relations Board
(hereinafter called the Board)?
2. Has 'respondent engaged in conduct described in
Section 8(bX4) of the Act for an object proscribed by
subsection (d) thereof?
Upon the entire record,s my observation of the witnesses
and their demeanor while testifying, and the briefs
submitted by the parties who appeared in this proceeding,4
I make the following:
FINDINGS OF FACT
1. JURISDICTION
Corrugated,a Louisianacorporationwhose principaloffice
and place of business is located in New Orleans, Louisiana,
is, engaged in the business of engineering, finishing,
fabricating, and installing industrial , sheeting and accesso-
ries. Corrugated annually purchases and receives goods and
materials valued at more than $50,000 which are shipped
directly to it from points outside the State of Louisiana.
Accordingly I find that Corrugated is engaged in commerce
within the meaning of the Act and that= the assertion of
jurisdiction over this matter by the Board is warranted.
Corrugated Asbestos Contractors, Inc., 181 NLRB No.- 27;
Siemons Mailing Service, 122 NLRB 81, 85.
H. THE LABOR ORGANIZATIONS INVOLVED
Respondent and International Association of"Bridge,
Structural and Ornamental Iron Workers, AFL-CIO (herein
i The charge filed on June 5,, 1969, alleged that respondent , violated
Section 8(b)(4)(D) of the National Labor Relations Act, as amended. A
proceeding pursuant to Section 10(k) of that Act was conducted on this
charge and resulted in the issuance by the National Labor Relations Board
of a Decision and Determination of Dispute dated February 13,,,1970 (181
NLRB No. 27).
2 An issue also raised by the pleadings, but which need not be resolved
because of the result I reach as to respondent's, violation of Section
8(bX4)(D) of the Act, is whether respondent infringed upon Section 8(b)(3)
by canceling, and refusing to renew , a collective-bargaining contract with
Corrugated. As will appear, it is my conclusion that respondent in this
manner , as well as in,other respects , violated Section 8(bX4XD). To remedy
this my recommended Order will require respondent to accept Corrugated's
offer to enter into a trade -agreement containing' terms and conditions
consonant with their past practice . In view of the foregoing it is
unnecessary to decide the issue concerning respondent 's contravention of
Section 8(bX3).
3 The parties agreed to incorporate into, the record of this case the
record of the proceeding instituted under Section 10(k) of the,Act (see
footnote'1 , above);'as well as the'record of an earlier related proceeding
brought in accordance with Section 10('1) of the Act which resulted in the
issuance of an injunction against respondent (304 F.Supp . 684,,E.D. La.).
These were received as General Counsel 's Exhibits (G.C. Exhs.) 3 and 2,
respectively.
4 Although all the arguments of the parties and the authorities , cited by
them, whether appearing in their briefs or made orally during the trial, may
not be discussed in this Decision , each has been 'carefully. weighed and
studied.
SHEET METAL WORKERS, LOCAL NO. 11 35
called Iron, Workers Union), are labor organizations within
the meaning of, Section 2(5) of the Act.
and Determination of Dispute and that, therefore, the
complaint should be dismissed.?
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
Briefly,, this case concerns itself with events which
followed a demand by a sister local of respondent that
Corrugated assign certain work to its members rather than
to employees represented by Iron ' Workers Union. These
included a work -stoppage by respondent' s members in
Corrugated's employ-which terminated upon the issuance
of an injunction in a proceeding brought pursuant to
Section 10(1); of the Act; respondent's refusal to continue a
longstanding contractual relationship with Corrugated, and
the issuance by the Board of a Decision and Determination
of Dispute under Section 10(k) awarding the work in
question to employees represented by Iron Workers Union.
The General .,,Counsel and Corrguated contends that
respondent induced the work stoppage by Corrugated's
employees and canceled; and refused to renew, its contract
with Corrugated in order to force Corrugated to assign the
work in dispute to. its members. The General Counsel
further contends that by its continuing refusal to renew its
contract with Corrugated respondent has not complied with
the Board's Decision and Determination of Dispute.
Accordingly the General Counsel argues, respondent has
violated-Section8(b)(4)(D) of the Act .6
Respondent's defense is that the evidence does not show
that its conduct after the issuance of the Board's Decision
and Determination of Dispute was for an object proscribed
by Section 8(b)(4)(D) of the Act. In other words,
respondent's position is that it complied with the Decision
s As the contentions of the General Counsel and Corrugated are, in the
main, similar, they will be referred to hereinafter as the General Counsel's
contentions.
6 Set forth below- are the provisions of the several sections of the Act
mentioned in the text insofar as pertinent.
Sec. 8(b) It shall be an unfair labor practice for a labor organization
or its agents-
(4) (i) to engage ' in, or to induce or encourage any individual employed
by any person engaged in commerce or in an industry affecting
commerce to engage in, a strike or a refusal in the course of his
employment to use, manufacture, process, transport , or otherwise
handle or work on any goods, articles, materials, or commodities or to
perform any services; or (ii) to threaten, coerce, or restrain any person
engaged in commerce or in an industry affecting commerce, where in
either case an object thereof is:,
(D) forcing or - requiring any employer to assign particular work to
employees in a particular labor organization or in a particular trade,
craft, or class rather than to employees in another labor organization
or in another trade, craft, or,class, unless . such employer is failing to
conform to an order or , certification of the Board determining the
bargaining representative for employees performing such work:
Sec. - 10(k) whenever it is'charged that any person has engaged in
an unfair labor practice within the meaning of paragraph (4) (D) of
section 8(b), the Board is empowered and directed to hear and
determine the dispute out of which such unfair labor practice shall
have arisen, unless, within ten days` after notice that such charge has
been filed, the parties to such dispute submit to the Board- satisfactory
evidence that" they have adjusted, or agreed upon methods for the
voluntary adjustment of, the dispute . Upon compliance by the parties
to the dispute with the decision of the Board or upon such voluntary
adjustment of the dispute , such charge shall be dismissed.
Sec. 10(1) Whenever it is charged that any person has engaged in
an unfair labor practice within the meaning of paragraph (4) (A), (B),
B. Preliminary Findingss
1. Corrugated's operations, its employees, and
their affiliation with labor organizations
In part, Corrugated's business consists of fabrication
sheetmetal building components. This operation is carried
on at its shop in New Orleans. To do this work Corrugated,
at all material times, has , employed four members of
respondent.
Corrugated also installs sheetmetal siding on buildings
under construction all over the country. In the performance
of this work Corrugated employs people who'are members
of, or represented by, locals of Iron ' Workers Union.
Respondent has never been certified by the Board as the
representative of any of Corrugated's employees engaged in
installation work, nor has the Board issued any order
directing Corrugated to bargain with respondent as the
representative of employees performing such work.
2. The relationship between Corrugated and
respondent
Sheet Metal Contractors Association of New Orleans,
Inc. (herein called Association), is, as its name implies, a
trade association composed of employers engaged in the-
sheetmetal contracting business. On behalf of its constitu-
ents" who employ members of-respondent the Association
regularly bargains, and enters into collective agreements,
with respondent. ,
Although not a member of the Association, Corrugated
has agreed with respondent to accept whatever contracts
or (C) of section 8(b), or section 8(e) or section 8(b)(7), the preliminary
investigation of such charge shall be made forthwith and given priority
over all other cases except cases of like character in the office where it
is filed or to which it is referred. If, after such investigation, the officer
or regional attorney to whom the matter may be referred' has
reasonable cause to believe such charge is true and that a complaint
should issue, he shall, on behalf of the Board, petition any district
court of the United States (including the District-Court of the United
States for the District of Columbia) within any -district where the
unfair labor practice in question has occurred , is alleged to have,
occurred, or wherein such person resides or transacts business, for
appropriate injunctive relief pending the final adjudication of the
Board with respect to such matter. -Upon the filing of any- such
petition the district court shall have jurisdiction to grant such
injunctive relief or temporary restraining order as it deems just and
proper, notwithstanding any other provision of law: .... , In
situations where such relief is appropriate the procedure specified
herein shall apply to charges with respect to section ,8(bX4)(D). -
7 Concerning respondent's defense, Section 102.91,of the Board's Rules
and Regulations provides in relevant part:
If, after issuance of the determination by the Board [in the proceeding
conducted pursuant to Section 10(k) of the Act], the parties submit to
the regional director satisfactory evidence that they have complied
with the determination, the regional director shall ,dismiss 'thecharge.
If no satisfactory evidence of compliance is submitted, the regional
director shall proceed with the charge under paragraph 4(D)"of
Section 8(b) ... of the act ...
8 The purpose of these findings is to furnish a frame of reference within,
which to consider the facts relating to respondent's alleged unfair labor
practices. To the extent that the contentions of the parties relate
specifically to the findings made here they will be treated here, although
they, as well as the findings, may again be considered in other contexts.
36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respondent bargained out with the 'Association without
further negotiation. In accordance with this ' practice
Corrugated and respondent , from 1953 until 1966, have
entered into contracts with- each other covering respon-
dent's shop employees upon terms and conditions -identical
with those contained in respondent's agreements with the
Association.
On, May 31 , 1969 , respondent's then existing contracts
with the Association and with Corrugated expired . About 2
months-, 'later,- . upon the, termination of a strike by
respondent against members of the Assocation , respondent
and the Association executed their current collective-
bargaining agreement. -however, as will be more fully set
forth 'below, since May 31, 1969, respondent has refused to
enter` into a contract with Corrugated, notwithstanding its
past practice in this regard.9
The work in dispute and the cancellation of
respondent's. contract with Corrugated
In 1967 Corrugated was awarded a contract to install a
type of corrugated metal sheeting known as Reynolds V-
beam siding on a, building, under construction in Kansas
City, Missouri . As was its custom, Corrugated assigned this
work to employees who were represented by Iron Workers
Union.
Because the corrugations- in the siding involved in
Corrugated's Kansas City contract were more than 5, inches -
apart,- a,sister' local of respondent, ,Sheet Metal Workers'-
International Association, Local Union No. 2 (herein called -
Local 2), headquartered'^,in Kansas City, felt,,that,^ the
installation of this material fell within its work jurisdiction.
Accordingly; Local 2 demanded that Corrugated rescind its
previous assignment of this work (herein called the work in
dispute) and assign the work to its members. Upon
Corrugated's refusal 'to accede to this demand Local 2 filed
a grievance against Corrugated `with the Kansas City Joint
Adjustment Board for the Sheet, Metal ' IndustryI (herein
called Kansas City Adjustment Board)., This , body, on
January, X10, 1968, sustained the grievance. It ruled that
Corrugated had violated its contract with respondent by
not assigning the work to members of Local 210 and
assessed damages against , Corrugated in the amount of
$12,733.20.
Corrugated filed an appeal from- this decision to the
National Joint, Adjustment. Board for the Sheet Metal
Industry (herein called the. National Adjustment Board).
On June 27; 1968,4he National Adjustment Board affirmed
the decisionof the Kansas City Adjustment Board except
with respect to, the amount of damages, which it reduced to
$2,000. It also decided that in the future Corrugated should
assign all erection work of the type in dispute to employees
represented by locals of, the' Sheet Meta[ Workers'
s As has ,already.been noted, it is the General Counsel's,posi'tion that
respondent's original refusal to renew i$s contract with, Corrugated was for
an- object proscribed by. Section 8(b)(4)(D) of the Act and that its
continuing refusal to contract with Corrugated after the issuance of, the
Board's Decision,and Determination of Dispute constitutes respondent's
noncompliance with that-decision.
10 The contract then, in,force between Corrugated and respondent (G.C.
Exh. 3A) provided that, its coverage extended to "the rates of pay, rules and
Working conditions of all employees of,[Corrugated] engaged in but not
limited to the (a) ... erection land] installation ... of all ferrous or
International Association (herein called International). The
National Adjustment Board further ruled that, unless
Corrugated complied with its decision, Corrugated's
contract with' respondent "shall stand automieally
cancelled." 11
Corrugated refused to abide by the decision of the
National Adjustment Board, which thereupon entered an
order directing that the contract between'respondent and
Corrugated be canceled. On May 8, ' 1969, respondent
notified Corrugated , that - their "contract is herewith,
cancelled as, of, 31, 1969„ [its expiration date], and will
not be renewed until the direction of the National Joint
Adjustment Board is complied with." 12
At the same time Sidney LeBlanc, respondent's business
manager, ;informed -Alvin Childress, Corrugated's presi-
dent,,as the latter testified, that respondent "would not .. .
refer any of [its] ' members ' to [Corrugated's ] shop." In
addition, LeBlanc told respondent's members in Corrugat-
ed's employ that upon the `contract's expiration they could
no longer work for Corrugated.
LeBlanc's order to Corrugated's employees was obeyed.
As,a . result, between May 31 and September 8, 1969, on
which date Respondent's members returned to -work for
Corrugated,13 Corrugated was required to subcontract the
sheetmetal, fabrication work formerly performed by these
employees in its shop.
On May 27, 1969, a meeting of sheetmetal contractors,
was held in New Orleans., Among those, present were -
Childress, Corrugated's president, Edward Carlough, Jr., an
official of the International, and LeBlanc. Carlough and
LeBlanc discussed with the contractors the kind of work
which they felt fell within the jurisdiction of theInterna
tional. In this connection, Carlough remarked, as Childress
testified, that "a contractor [who] did not abide by the
jurisdictional demands of the union .. might very readily
find himself in a position to have his contract cancelled."
Emphasizing this, LeBlanc , respondent's business manager,
informed the contractors, as' Childress further testified, of
the presence at the meeting of "an individual [Childress ]
who represented a company whose contract had been .. .
cancelled."
4. The 1( (1) proceeding
In accordance with the authorization contained in
Section 10(1) of the Act,. the Director of the-Board's Region
15 (herein called the Regional Director) instituted a
proceeding in the United States District Court for, the
Eastern District of ' Louisiana'for a temporary injunction to
restrain respondent from continuing to:-engage in the
conduct set forth in the charge alleging its violation of
nonferrous metal work of U.S. No. 10 gauge or its equivalent or„fighter
gauge and all other materials used in lieu thereof ..- . and (d), all-other
work included in the jurisdictional claims , of Sheet Metal • Workers'
International Association:' The contract, further provided that "none-but
journeyman and apprentice sheet metal workers shall be employed on any
work described [above]."
11 G.C. Exh. 2, Attachment 1.
12 G.C. Exh. 2, Attachment 3.
13 This followed the granting of an injunction pursuant to Section 10(1)
of the Act, the issuance of which will be more fully discussed below.
SHEET METAL WORKERS, LOCAL NO. 11
Section 8(b)(4)(D). Concluding that there was reasonable
cause to believe that the violation charged had occurred,14
the court on September 4, 1969, issued an injunction,15
which by its terms is to remain in effect "pending the final
dispostion of the matters involved pending before the
National Labor Relations Board" enjoining respondent
from,
In, any manner or by any means, including picketing,
work stoppages,. refusal to refer employees upon
request, . orders, directions, instructions, requests - or
appeals, however given, made or imparted, or by any
like or related acts or conduct, or permitting any such to
remain in existence or effect, engaging in, inducing or
encouraging any individual employed by Corrugated
Asbestos Constr'actors, Inc., 'or any other person
engaged in ' 'commerce, or in an industry affecting
commerce,`'to engage in a strike or refusal in the course
of his employment, to use, manufacture, process,
transport, or otherwise handle or work on any goods,
articles, materials, or commodities, or to-perform any
service, or in any manner or by any means threatening,
coercing, or restraining Corrugated Asbestos Contrac-
tors, Inc., or any other person engaged in commerce or
in an industry affecting commerce, where in either case
., an, object thereof 'is to force, or require Corrugated
Asbestos Constructors, Inc., to assign the work of
'installing Reynolds V-beam siding to employees who
are' members,- of, or represented by, Respondent Sheet
Metal Workers International Association, Local Union
No. -11, rather than to employees who are members of,
or represented by, the International Association of
Bridge, Structural and - Ornamental Iron Workers,
AFL-CIO, or to employees who are not members of, or,
represented` by, 'Respondent Sheet Metal Workers
International Association, Local Union No. 11.
5. The 10(k) proceeding -
As required in cases such as this by Section 10(k) of the
Act the Board conducted a hearing to "determine the
dispute" which gave rise to'the charge alleging respondent's
violation, of Section 9(b)(4)(D). On the record there made i6
the Board, on February 13, 1970, issued its Decision and
Determination of Dispute (181 NLRB No. 27).
As there set- forth, the Board found "that [respondent's]
contract 'cancellation and refusal to continue supplying
Sheet Metal Workers [to Corrugated"] for any purpose were
to be used as a,means of requiring [Corrugated] in the
future to assign the disputed work to employees' represented
by Sheet Metal Workers." Upon these findings the Board
concluded "that there is reasonable cause to believe that
[respondent] engaged in . . . action [proscribed by Section
8(b)(4XD) of the Act] with an object of forcing
14 The court's opinion is reported at 304 F.Supp 684. As earlier noted,
the record of the proceeding here being discussed was received in evidence
as G.C. Exh. 2.
15, Respondent's Exhibit (Resp. Exh.) 1.
16 This record , as has already been noted, was received in evidence as
G.C. Exh. 3.
17 On the basis of what was said by Edward Carlough, Jr., an official of
the International, and Sidney LeBlanc, respondent's business manager, at
the May 27, 1969, meeting of sheetmetal contractors, which has been
described at length earlier in this Decision , I share the view expressed by
37
[Corrugated ] to assign work to; employees who are members
of or, represented by Sheet Metal Workers , International
Association or its Locals, rather than the Iron' Workers?'
14a.ving arrived at this conclusion , the Board, considered
the merits of the dispute and awarded the disputed work to,
Corrugated's employees represented by Iron Workers
Union. Concomitantly, the Board determined'that respon-
dent "is not entitled, by means proscribed by Section
8(b)(4)(D) of the Act,- to force or require [Corrugated] to,
assign the [disputed] work to members or-,employees
represented by Sheet Metal Workers International Associa-'
tion or any Local thereof." Finally, the- Board, directed
respondent, within 10 days, to notify,the Regional Director
"in writing, whether or not it will refrain, from forcing or
requiring [Corrugated], by means proscribed by Section,
8(b)(4XD), to assign the work i i,. dispute in a manner
inconsistent with[its] determination."
C. Facts Concerning Respondent's Alleged"" Violation
of Section. 8(b)(4)(D) of the Act
1. Respondent's conduct and object,,
I have already made findings concerning, respondent's
conduct preceding the issuance of'the injunction and the
Board's Decision and Determination of Dispute . In sum,
these included: _
1. Respondent's cancellation of its ' contract with-
Corrugated which expired on May 31, 1969-
2. Respondent's notice to Corrugated, that it would not
again enter into contracts with" Corrugated or refer its
members- to Corrugated for employment until Corrugated
agreed to assign the "disputed work to .employees represent-
ed by respondent- or its sister locals rather `than to
employees represented by Iron Workers Union.'
3. Respondent's order to its members to stop working
for Corrugated.
I further find that an object of respondent's foregoing
conduct, especially its cancellation of, and,refusal to renew,,
Corrugated's contract,'7 was to force orrequire Corrugated
to assign the disputed "work to employees represented by
respondent or its sister locals" rather than to employees
represented by Iron Workers Union.18-
2. Events following the issuance- of the injection
and the Decision, and" Determination of: Dispute=
The employees who stopped working for Corrugated
when ordered to do so by, Sidney' LeBlanc, respondent's
business manager, returned `to " their jobs in Corrugated's
fabrication shop a few days-after the injunction was issued.
The conditions under which-they havewoiked sin& their
and their rates of pay conformed to those set forth in
respondent's presently 'effective `collective-barging
the Board in its Decision and Determination of Dispute, "that [the]
contract cancellation [was Ito be used as a means ofTreguiring [Corrugated ]
in the future to assign the disputed work to employees represented by Sheet
"Metal Workers.
is The proof in` support , of my findings as to respondent's conduct and
object is contained in the rec̀ords' of the-pi oceedings instituted under
Section 10(k) and 10(1) of the Act, both of which were received in evidence
pursuant to agreement of the parties .. Nothing was adduced at the instan
trial to warrant different findings.
38 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
agreement - with the Association. Both, before, ' and since,
their work stoppage these employees were, and-have been,
members in good standing of respondent,' and respondent
has accepted dues from -them since their return to work for
Corrugated.
The current contract between respondent and the
Association requires, members of, the Association to
contribute to,health,and welfare, pension,and retirement',
vacation„industry;,and apprenticeship funds (herein called
fringe-benefit . funds). Since at, . least; October 1969,
respondent has accepted Corrugated's contributions, in the
required amounts, to, these' funds. In this, connection,
respondent has been furnishing Corrugated with forms on
which to report its contributions.'9
On February 24, 1970,20 within the time prescribed for
doing so in the Board's Decision and Determination of
Dispute, respondent notified the Regional Director, in
writing, that it "will refrain from forcing or requiring
[Corrugated] by means proscribed by Section 8(b)(4)(D) to
assign the [disputed work] - to members or employees
representedby,Sheet Metal Workers International Associa-
tion or any Local thereof." 21,,
Four days later Corrugated offered to "sign a contract
with [respondent] on the same terms and conditions as
others in the New Orleans area."22 Respondent refusedto
accept this proposal. Instead, on March 30 respondent sent
a letter to Corrugated stating that it "renounces and
disclaims any interest whatsoever in' representing any of
your employees "23 ,On at least two subsequent occasions
Corrugated repeated its offer, to enter into a contract with
respondent, but respondent has persistedin its refusal to do
so_.-
LeBlanc, respondent's business manager, testified that
respondent accepted Corrugated's contributions to the
fringe ' benefit funds after the issuance of the injunction
because respondent's lawyer' advised him that the injunc-
tion required this of respondent: Although LeBlanc did not
testify concerning respondent's reason for , accepting dues
from its members who resumed their employment with
Corrugated after the-injunction, respondent, in its brief,
advances essentially , the same reason for this as LeBlanc
gave regarding respondent's acceptance of Corrugated's
contributions to the fringe benefit funds.'
Respecting the disclaimer" letter LeBlanc stated that a
reason for sending it was his feeling that it was "not worth
[his] time, trouble or efforts or' :the cost to [respondent] to
be involved , with an independent contractor, [who
emplpyed] just ... four people." Testifying further in,this
regard, LaBlanc acknowledged that if the dispute had not
arisen in Kansas City respondent would not-have had "any
reason to disclaim interest in representing 'Corrugated's
employees," and would not have 'done so ' "unless
[respondent] had problems here locally", which, LeBlanc
stated, had not been the, case "up until that time."
19 See &C. Exhs. 7A through 7S.
20' All dates subsequently mentioned without stating a year fall within
1970.
D. Contentions and Concluding Findings Concerning
Respondent 's Alleged Violation of Section 8(b)(4)(D)
of the Act
I have found that an object of respondent's conduct in
causing a work stoppage among Corrugated 's employees,
canceling and refusing to renew its contract with Corrugat-
ed which expired on May 31 , 1969 , and notifying
Corrugated that it would not again enter into contracts` with
Corrugated or refer its members - to"' "Corrugated for
employement was to force or require Corrugated to assign
the work in dispute to employees represented by,respon-
dent or its sister locals rather than , to employees represented
by Iron Workers Union. Upon, these findings theK,conclu-
sion that respondent violated Section 8(b)(4)(D) o(the Act
appears inescapable, and respondent does not, make a
contrary argument.
But this does . not - complete the inquiry . What must
further be determined is whether -respondent complied with
the Board's Decision and Determination of Dispute. If it
has, this ends the matter and complaint must be dismissed.
If it has, not, the complaint must be sustained and, an
appropriate remedial order, entered. Texas Contracting
Company et al, 166 NLRB 869, 8,70, enfd . 409 1.2d 709
(C.A. 5); New York .Times Company, 154 NLRB 1122,1124.
Respondent argues that by notifying , the Regional
Director , that it "will refrain from forcing or, requiring
[Corrugated ] by means. proscribed by' Section 8(b)(4XD) to
assign the , [disputed work], to members or employees
represented by Sheet Metal Workers International Associa-
tion or any Local thereof," and by refraining from such
conduct, it did all it was, required to, do, byway of
compliance with the Decision and Determination of
Dispute . Respondent contends further that its disclaimer of
interest in representing Corrugated's-'employees , which it
urges , on brief, "was bona fide . . . and effected a
termination of the pre-existing bargaining relationship
between [respondent and Corrugated]' justified its refusal'
to enter into a collective-bargaining contract-with Corru-'L
gated in accordance with , their past practice . I do not agree
with either contention . Nor do I agree that the disclaimer
was "bona fide."
Inits Decision and Determination of Dispute the Board
expressed the opinion , in which I concur, that , respondent's
cancellation of its, contract with Corrugated was `,'used as a
means of requiring [Corrugated ] in the future to assign the
disputed work to employees represented-by, Sheet Metal.
Workers." Accordingly, regardless of the good faith of
respondent's disclaimer, in order for respondent to come
into full compliance , with the Board's Decision and
Determination of Dispute it would have had to _ accept
Corrugated's offer to "sign a contract with [respondent] on
the same terms and conditions as others in'the New Orleans
area." By rejecting this offer and by persisting in its refusal
to enter into a contract with Corrugated.. on terms and
conditions identical with those contained in its' current
agreement with the Association in accordance with past
21 Resp. Exh. 3.'
22 G.C. Exh. 4.
23 G.C. Exh.'5.
SHEET METAL WORKERS , LOCAL NO. 11
practice, respondent -has failed to comply with the Board's
Decision and Determination of Dispute.
Despite my foregoing conclusion , I will assume, though I
do, not so decide; that had respondent effectively dis-
claime&a representative interest in' Corrugated's employ-
ees,'this, even -in°'f,he. 'circumstances present here, would
have excused ,r'espondent's refusal to enter into a collective-
bargaining agreement with Corrugated and respondent's
failure,thereby, to; comply fully with the Decision and
Determination of Dispute . I find, however , that the
effectiveness of respondent's disclaimer is belied by its
conduct.;
"[Al disclaimer to be , effective must be unequivocal and
must have been made in, good , =faith. A union's `bare
statement', of, disclaimer is not sufficient to establish that it
has abandoned its claim to representation if the surround-
ing circumstances justify, an' inference , to the contrary.'The
union's conduct must not be',`inconsistent' with its alleged
disclaimer." Texlite, Inc., 1.19aNLRB 1792, 1798-99„ enfd.
266 F .2d 349 (C.A. 5). (Footnotes ommitted.)
In Texlite the' Board found that the disclaimer there
under consideration "was a tactical maneuver and not a
good-faith renunciation of its representation rights." 24
This, because notwithstanding the disclaimer the employees
concerned continued to be members of the union, the union
continued to receive contributions to its welfare fund in
behalf of those employees from the employer involved, and
the union had indicated a willingness to contract with the
employer under conditions laid down by the union. These
elements , and more , are present here and show , like the
disclaimer in Texlite, that respondent's disclaimer was not
"a good-faith renunciation of its representation rights," but
a mere "tactical maneuver" to avoid compliance with the
Board's Decision and Determination of Dispute.
Thus, Corrugated's shop employees , upon returning to
work after the work stoppage induced by respondent,
continued to be members of respondent . Respondent
accepted , and continues to accept , Corrugated's contri-
butions to the fringe benefit funds in behalf of these
employees . Finally, as Sidney LeBlanc, respondent's
business manager , testified, respondent would have been
willing to contract with Corrugated had the Kansas City
work assignment problem not arisen . In other words,
respondent would not have refused to enter into an
agreement with Corrugated if Corrugated had accepted the
conditions contained in respondent's contract cancellation
notice ; namely, Corrugated's compliance with the decision
of the National Adjustment Board requiring Corrugated to
assign the work in dispute to members of respondent or its
sister locals.
There are, in addition, other factors present which
likewise indicate that respondent 's disclaimer lacked good
faith . These consist of respondent 's acceptance of dues
from its members who returned to work for Corrugated and
respondent's furnishing of forms to Corrugated for its use
in reporting its contributions to the fringe benefit funds.
Tracking testimony given by LeBlanc , respondent's
24 119 NLRB 1799.
25 Nowhere within the four corners of the injunction is it made to
appear that respondent is obliged to do more than to refer employees to
Corrugated on request ; to refrain from coercion , picketing, or striking; and
39
business manager, concerning information which he
received from respondent 's lawyer,-, respondent seeks to
explain away its acceptance of dues from itsmembers who
went back to work , for Corrugated,, its acceptance of
Corrugated's contributions to the fringe benefit funds, and
its furnishing of fringe benefit reporting forms to Corrugat-
ed by arguing that - its was advised by its lawyer .that the
injunction required it to do these things . So clear, however,
are the provisions of the injunction thatrsuch advice seems
to have been unwarranted .m This being so , respondent is
accountable for conduct inconsistent with its disclaimer
notwithstanding that its lawyer, moved, obviously, by an
abundance of caution , counseled respondent to act in this
manner. Cf. N.L.R B. v. Keystone Floors,,Inc., etc ., 306 F.2d
560, 564 (C.A.3).
Concerning the disclaimer letter itself„ LeBlanc testified it
was sent because Corrugated employed only four people
who would be covered by a contract and that for this , reason
"to be_ involved" with Corrugated was ,"not worth [his]
time, trouble or efforts or the cost to [respondent]."
Nevertheless and despite the few people employed by
Corrugated LeBlanc stated , in almost his very next breath,
that respondent would have had no reason to disclaim had
the work assignment dispute not arisen in Kansas City,
Regardless of anything else, this persuades me that
respondent did not disclaim in good faith, but merely as a
"tactical maneuver" to evade complying with the Board's
Decision and Determination of Dispute.
Accordingly, I conclude that respondent's disclaimer of
interest in representing Corrugated 's employees was invalid
and did not excuse respondent's refusal to enter into a
collective-bargaining agreement with Corrugated and its
failure, to this extent , to comply with the Board 's Decision
and Determination of Dispute.
IV. THE EFFECT OF RESPONDENT 'S UNFAIR LABOR
PRACTICES UPON COMMERCE
Respondent's unfair labor practices , as found above,
occurring in connection with Corrugated 's operations
described in section I, above, have a close, intimate, 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 of
commerce.
V. THE REMEDY
Having found that respondent engaged in unfair labor
practices within the meaning of Section 8(bX4)(D) of the
Act, my recommended Order will require respondent to
cease and desist therefrom and to take such affirmative
action as will effectuate the purposes of the Act.
In committing the foregoing unfair practices respondent,
among other things, canceled, and refused to renew, its
contract with Corrugated which expired on May 31, 1969.
To remedy this my recommended Order will obligate
respondent to accept Corrugated's offer to enter into a
to refrain further from encouraging employees to strike, where an object of
any such conduct falls within the proscription of Section 8(b)(4)(D) of the
Act.
40 DECISIONS OF NATIONAL: LABOR RELATIONS BOARD
collective-bargaining agreement- .which, if Corrugated so
requests; will be, in-accordance with^the past practice of the
parties,- in, all respects identical with the contract in force
between respondent and the Association on the effective
date of-my recommended Order.
'Upon- the basis of tthe fore-gougfindings of fact and upon
the entire record innthis case, I make the following:'
CONCLUSIONS `OF LAW
1. Corrugated is an, employer within the meaning of
Section 2(2) of the Act:and: is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. Respondent and Iron Workers Union are labor
organizations within the meaning of Section 2(5)-of the Act.
3s The;w'â–ºrork in dispute consists of the erection and
installation of material known; as Reynolds V-beam metal
sheeting or siding -with corrugations in excess of 5 inches
apart.
4. Respondent has not .complied with the Decision and
`determination of Dispute issued by the Board on February
13, 1970 (181 NLRB No. 27).
5. < By noncomplying with_ the Decision and -Determina-
tion- of Dispute, as set forth in Conclusion^of, taw 4, above,
by causing ^ work, stoppages and strikes among Corrugated's
employees, by canceling its collective-bargaining agree-,
ment with Corrugated, by notifying' Corrugated that it`
would not again enter into collective-bargaining' agree
ments with Corrugated or refer its members ' toCOnugated
for employment, and by refusing-to enter into a, collective-
bargaining agreement with Corrugated, in"order to`forceor'
require Corrugated to=° assign the` work "described in
Conclusion of Law 3, above, to employees represented by
respondent or' its sisteri"466AIS rather than `to employees
represented by Iron Workers Union, respondent 'has
engaged," and is engaging , in unfair labor practices within
the meaning of Section 8(bX4)(i) and (ii)(D) of the Act.
6.; The unfair labor practices engaged in by respondent
as set forth in Conclusion of Lave 5; above, affect commerce
within the meaning of Section 2(6) and°(7)6fthe tact.
[Recommended Order omitted from publication.]