Concord Metal, Inc.

National Labor Relations Board - Board Decisions

Jul 11, 1990

298 N.L.R.B. 1096 (N.L.R.B. 1990)

1096 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Concord Metal, Inc. and Sheet Metal Workers
International Association, Local 9, AFL-CIO.
Cases 27-CA-10261, 27-CA-10261-2, 27-CA-
10316-2, and 27-CA-10316-4
July 11, 1990
SUPPLEMENTAL DECISION AND
ORDER
BY MEMBERS CRACRAFT, DEVANEY, AND
OVIATT
On December 20, 1989, Administrative Law
Judge James M. Kennedy issued the attached deci-
sion on remand. The Charging Party filed excep-
tions and a supporting brief. The Respondent filed
an answering brief and a motion to reconsider the
remedy in the earlier Decision, 295 NLRB 912
(1989).
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
I The Charging Party has excepted to some of the judge's credibility
findings. The Board's established policy is not to overrule an administra-
tive law judge's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect . Standard
Dry Wall Products, 91 NLRB 544 ( 1950), enfd . 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for re-
versing the findings.
We adopt the judge's findings that the Respondent's unilateral failure
to pay the fringe benefit funds after the Union's certification on Septem-
ber 21, 1987, was not a motivating factor in the Union's decision to
engage in the December 9, 1987 strike, and his further finding that the
December 9 strike was an economic , rather than an unfair labor practice
strike, as alleged . In doing so , we rely primarily on the conclusions that
the judge drew from the credibility resolutions he made concerning the
events at the November 24, 1987 membership meeting. The judge cred-
ited the testimony of employees Vonderheide and Pech regarding what
they were told as to the purpose of the strike. Vonderheide testified that
the purpose of the strike was to "get leverage" against the Company, and
Pech testified that the purpose of the strike was to put pressure on the
Company to get it to sign a contract . Neither employee recalled any ref-
erence to the strike as an "unfair labor practice strike." They agreed that
there was some discussion of the fringe benefit money, but said that it
was in the context of employees asking where the money was.
The judge set forth additional reasons for finding that the strike was
not caused by the Respondent's unfair labor practices Although we
agree with the judge that the evidence showing that the Union knew that
the money due to the fringe benefit funds was being escrowed is a factor
to be considered in determining whether the Respondent's failure to
make the payments to the funds caused the strike, we do not agree with
his suggestion that the Union was unconcerned about the payment of the
money or thought the Respondent might not be obligated to make the
payments. Nor do we rely on the judge's conclusion that the Union's ref-
erence to the June strike vote, which authorized an economic strike, must
be considered an "admission" that the December 9, 1987 strike's purpose
was economic . We also do not rely on the judge's conclusion that the
Union's suit against employee Pech for violating his June agreement to
strike by not participating in the December 9 strike was a further "admis-
sion" that the December 9 strike was for economic reasons Neither the
June strike vote nor the suit against Pech in any way indicates whether
the consensus decision to strike, made at the November 24 meeting, was
the result of the Respondent's unfair labor practices
conclusions2 and to adopt the recommended
Order.
In his decision, the judge stated that because the
Board had previously found that there was no con-
tractual relationship between the Respondent and
the Union after July 1, 1987, there was the possibil-
ity that the Board's proposed remedy for the un-
lawful unilateral changes was too broad. The
Board's remedy requires that the Respondent remit
to the appropriate trust funds the payments unlaw-
fully withheld after September 21, 1987.
The judge stated that the trusts' own rules, as
well as Section 302(a) and (c)(5)(B) of the Act, re-
quire an active writing of some kind so that the
Respondent can lawfully make, and the trusts can
lawfully accept, such payments. The judge stated
that the Board has never before ignored the re-
quirements of Section 302 for an active writing,
and that in doing so here, the Board has ordered a
remedy that contravenes congressional policy. In
short, the judge suggested that the Board reconsid-
er the remedy insofar as it requires the Respondent
to make the trusts whole.
Contrary to the judge's suggestion, the Board
has consistently held that an expired contract,
under which the obligation to make payments to
the fringe benefit funds arose, is sufficient to meet
the "written agreement" requirement of Section
302(c)(5)(B). Wayne's Dairy, 223 NLRB 260, 264
(1976); Turnbull Enterprises, 259 NLRB 934, 940
(1982); Imperial House Condominium, 279 NLRB
1225, 1239 (1986), enfd. 831 F.2d 999 (11th Cir.
1987). Here, the Respondent and ' the Union were
parties to a collective-bargaining agreement which
expired June 30, 1987. Under this agreement, the
Respondent was required to, and did, make pay-
ments to the the Union's pension plan. As discussed
more fully in our earlier decision in this case, the
Respondent repudiated its collective-bargaining re-
lationship with the Union, but continued to make
the fringe benefit contributions to the fringe benefit
funds in July and August for employees working
on projects covered by the resolution 78 agree-
ments. On September 10, 1987, the Union was cer-
tified as the exclusive bargaining representative for
the Respondent's unit employees. Thereafter, the
Respondent unlawfully unilaterally changed the ex-
isting working conditions without affording the
Union an opportunity to bargain. In these circum-
2 In our original decision, 295 NLRB 912, we stated that the Respond-
ent gave notice by letter dated January 6, 1987, that it was withdrawing
from the multiemployer association. By way of clarification , we note that
in the January 6 letter, the Respondent was merely withdrawing its as-
signment of bargaining rights and thus any commitment it had to the
multiemployer bargaining unit . The Respondent continued to be a
member of the association.
298 NLRB No. 167
CONCORD METAL
stances, where the Respondent voluntarily contin-
ued making payments to the union fringe benefit
funds that had been contractually required, even
after the expiration of the contract and the repudi-
ation of the bargaining relationship, we find that
the "written agreement" requirement has been met.
Further, there is no indication in the present case
that the union trust funds are unwilling or unable
to accept the payments from the Respondent. The
judge stated in his decision on remand that Union
Business Manager Stephens testified "that the trusts
required a contract before they could accept pay-
ment . . . ." This is a misreading of Stephens' testi-
mony. Stephens only testified that it was the
Union's position that the Respondent was bound
under the resolution 78 agreements to make pay-
ments to the fringe benefit funds. He also testified
that the relationship between the local trust funds
and the Union exists "because of the contractual
obligation underneath the collective bargaining
agreement." This testimony merely establishes' that
the Union thought the Respondent was bound by a
contract to make trust fund payments. Nothing in
Stephens' testimony demonstrates that the fringe
benefit funds would not be able to accept payments
from the Respondent unless the Respondent was
currently bound by either the resolution 78 agree-
ments or the interest arbitration award.
The judge may have meant to refer to the Gen-
eral Counsel's Exhibit 22, a letter from the legal
counsel for the Union and' the trust funds to the
Respondent, which states that "Trust Fund contri-
butions can only be legally accepted from an em-
ployer if they are based upon a written obligation
.... This statement is not inconsistent with the
Board's position that an expired contract can meet
the requirements of Section 302 for a written
agreement. Accordingly, we affirm our original
remedy requiring that the Respondent make whole
the fringe benefit funds and we deny the Respond-
ent's motion to reconsider the remedy.3
s As stated in our original decision , we leave to the compliance stage
of these proceedings the determination of the extent of the Respondent's
liability. As part of this determination , the compliance proceedings will
take into account the extent to which the Respondent has already paid
certain amounts to the employees which may have been forwarded to the
funds, in order to avoid a situation where the fringe benefit funds would
benefit from a double payment. The Union's December 11, 1987 letter to
the city of Denver regarding the canopy renovation project at the Staple-
ton International Airport appears to suggest that the amounts in question
be paid directly to the employees workiag on that project. We leave to
the compliance stage the determination of what payments were made to
employees pursuant to that demand and the affect those payments have
on the Respondent's liability to the fringe benefit funds. Further, we note
that after July 1, 1987 , the Respondent was only making , payments to the
fringe benefit funds for the work performed on resolution 78 agreement
projects by the employees it employed before that time, and its liability
to the funds is so limited.
ORDER
1097
The recommended Order of the administrative
law judge is adopted and that portion of the con-
solidated complaint alleging violations of Section
8(a)(3) and (1) of the National Labor Relations Act
is dismissed.
DECISION ON REMAND
JAMES M. KENNEDY, Administrative Law Judge. My
original decision in this matter was issued on December
14, 1988. In that decision I recommended that the com-
plaint be dismissed in its entirety. Thereafter, on June 30,
1989, the Board issued its Decision and Order in which it
adopted portions of my original decision, but remanded
the matter for additional findings.' Specifically, the
Board found that Respondent had committed two viola-
tions of the Act: It violated (1) Section 8(a)(5) and (1) of
the Act by unilaterally changing its payment of fringe
benefit contributions after a Board election without pro-
viding the Union with an adequate opportunity to bar-
gain over those changes; (2) Section 8(a)(1) of the Act
by telling an employee that he would not receive holiday
pay because the employees had voted for union represen-
tation.
Observing the General Counsel's complaint alleged
that a strike which began on December 5 (actually De-
cember 9), 1987,2 was caused by and/or prolonged3 by
those two unfair labor practices (as well as a third allega-
tion which the Board dismissed), the Board directed me
to make credibility resolutions and determine whether
the December 9 strike was an economic or an unfair
labor practice strike and whether Respondent's treatment
of strikers following their unconditional offers to return
as of January 5, 1988, violated Section 8(a)(3) and (1) of
the Act.
1. FACTUAL SYNOPSIS
As tried, the complaint alleged that Respondent had
unlawfully repudiated certain contracts, known as resolu-
tion 78 agreements, which were alleged to be independ-
ent collective-bargaining contracts. I found, and the
Board agreed, that the resolution 78 agreements were
only addenda to the master collective-bargaining con-
tract which permitted Respondent, or any other employ-
er signatory to the Union's master agreement, to pay an
approved "targeted" wage scale, often significantly less
than that mandated by the master. It also contained a
clause, perhaps unnecessary, for the Union never offered
to reduce the contribution rate, requiring resolution 78
signers to pay the standard fringe benefits as set forth in
the master collective-bargaining contract. Insofar as the
Act is concerned, there is no evidence in this record
(though several can be fairly surmised) regarding wheth-
er any or all of these fringe plans are mandatory subjects
of bargaining. The Board has left that determination to
1295 NLRB 912.
2 All dates are 1987 unless noted otherwise.
9 There is no evidence that the strike was prolonged by the unlawful
unilateral change in fringe plan payments.
1098 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the compliance stage . See footnote 7 of its decision. The
master collective-bargaining contract expired on June 30,
1987. At that time Respondent, which had been bound
by that contract but which was no longer a member of
the multiemployer association, lawfully repudiated the
collective-bargaining relationship under Section 8(f) of
the Act pursuant to the Board's decision in John Deklewa
& Sons.4
On July 1, Respondent's owner, Rudy Tezak, substi-
tuted new terms and conditions of employment. At that
time he had two types of projects in progress: The first
were projects which had not been targeted under resolu-
tion 78 and for which he had never signed a resolution
78 agreement; the second were projects for which reso-
lution 78 contracts had been signed. In a memo (G.C.
Exh. 24), he told his employees, all of whom were at
that moment union members, that he would honor his
commitment to pay the resolution 78 wage rate (which
in his case was only slightly less than the former jour-
neymen rate) and would pay the fringe benefits called
for in the resolution 78 contracts. These, in turn, referred
to the plans contained in the expired collective-bargain-
ing contract. However, with respect to nonresolution 78
projects he implemented a wage scale based on experi-
ence which was somewhat less than the former union
journeyman rate; he also instituted two fringe benefit
plans which were different from those set forth in the ex-
pired collective-bargaining contract. These included a
Blue Cross/Blue Shield health insurance plan and a
profit-sharing plan. These are set forth in some detail in
General Counsel's Exhibit 24. Certain matters such as va-
cation pay and sick leave were left to be crystallized at a
later date. Some matters, such as apprenticeship training
payments, were not mentioned at all. Still others in-
volved a 90-day waiting period before they became ef-
fective.
It may be fairly inferred from the circumstances that
all the employees were soon to be phased into the com-
pany plan, for as the resolution 78 projects ended, no
new resolution 78 agreements would be signed. All new
work would be paid under the new plan. Thus, Tezak's
decision to continue the previously existing wage plan
for a while did not constitute a firm wage/benefit pay-
ment system. It was clearly in a "sunset" mode. That it
was in place at all was due to Tezak's desire to honor an
implied promise he had made to his workmen when he
successfully bid those jobs using a resolution 78 target.
(Public works jobs were governed by prevailing wage
laws in any event.)
Also part of General Counsel's Exhibit 24 is a list of
25 resolution 78 projects which were at varying stages of
completion. By September 21, Respondent had complet-
ed 10 of those 25 resolution 78 projects. To implement
this pay plan, Tezak caused a dual timecard system to be
implemented, one time card for resolution 78 projects
and the other for non-resolution 78 projects. These time-
cards were used to keep records for the purpose of hon-
oring his implied promise.
4 282 NLRB 1375 (1987), enfd. sub. nom . Ironworkers Local 3 v. NLRB,
843 F.2d 770 (3d Cir. 1988), cert. denied 488 U.S . 889 (1988)
In early July one employee, Jack Van Pelt, quit and
Respondent hired five new employees.5 One of the new
employees, Kurtzer, stayed for only a little over 2 weeks
leaving in early July; another, Everson, was employed
for only 5 weeks, leaving at the end of August. At the
end of August a number of "old" employees began to
depart: Donald Raia on August 28; Walter Baggett on
September 4; Patrick Mares on September 25; Donald
Powers, discharged on September 30; Frank DiSimone
left on October 2; Todd Paulson on October 23; Jack
David on November 19; and David Haas on November
20.
On December 1 and 7 Respondent hired two new em-
ployees, Robert Eden and Thomas Kagan, respectively.
The strike began on December 9.
The six individuals who struck that day were longtime
employees Ronald Schaefer (hired 1978) and Gary Gist
(hired 1984); two employees who had been hired a
month or two before the collective-bargaining contract
expired, Gard (early May) and Davidson (early June);
and the two apprentices who had been hired in early
June, Ford and Gallegos.6 Thus, on the date the strike
began, Respondent had 12 bargaining unit employees
(omitting Roberts and Kress as supervisors). These in-
cluded the six strikers, and the following nonstrikers:
longtime employees David Vonderheide (hired 1980) and
Jim Pech (hired 1982); two July hires, Glenn Chapman
(Tezak's son-in-law, a union apprentice whose appren-
ticeship was later challenged because of his direct hire
by Respondent) and Art Dumas; and the two early De-
cember hires, Eden and Kagen.7
II. EVENTS LEADING TO THE DECEMBER STRIKE
Although we are scrutinizing the December 9 strike,
there is significant evidence in the record demonstrating
that its roots extended back 6 months to June 3. At that
time the Union was in negotiations with SMACNA to
renew the master agreement.8 It was aimed at not only
SMACNA members, but also employers who had been
bound by compliance agreements . Many of these expir-
ing contracts contained an interest arbitration clause in
their expiring agreements (art. 10 , sec. 8) (the 10-8
clause). Respondent, a former SMACNA member had,
some 6 months before, withdrawn from SMACNA and
had advised the Union that it intended to negotiate sepa-
rately. Despite that communication, the Union's business
manager, Bill Stephens, and his staff took the view that
Respondent was bound by the interest arbitration provi-
sion. On June 3, the Union held a membership meeting at
which time a strike vote was taken authorizing the
Union to strike against the SMACNA group as well as
5 A list of Respondent's employees from June through the end of De-
cember 1987 has been submitted as a postremand stipulation, A. Exh. 1. It
sets forth the status of each employee on the staff dung that period I
have placed A. Exh. 1 in a separate folio and hereby direct counsel for
the General Counsel to do the same with his copy.
6 Ford and Gallegos had initially been hired in early June and at that
time were members of the union-SMACNA apprenticeship program.
Their situation will be discussed in greater detail below.
7 Kagen left a week later on December 16.
8 Known in the industry as the "Standard Form of Union Agreement"
or "SFUA."
CONCORD METAL 1099
those who were bargaining independently. In an effort to
guarantee support for the strike, Respondent also asked
its members to sign so-called "strike agreements." Those
agreements required the member to honor the strike and
if he failed to do so, subjected him to some sort of
breach of contract action. Many of Respondent's em-
ployees who were members attended the June 3 meeting
and some, including Pech, signed that agreement.
When the SFUA expired on June 30, the Union, deem-
ing Respondent to be bound by a 10-8 clause, chose not
to strike Respondent. Simultaneously, Respondent, pur-
suant to the Board's decision in Dekiewa, withdrew rec-
ognition. To some extent this forced the Union's hand. It
could either let Respondent go, enforce the 10-8 clause,
or attempt to achieve exclusive status under Section 9(a)
of the Act. It chose the latter two. On July 7 it filed an
election petition with the Board. On September 2 an
election was conducted among Respondent's shop and
field employees. The Union won and on September 10
the Board issued its certification of representative to the
Union as the 9(a) representative of those employees. It
later sought to enforce its theory that Respondent was
bound by a 10-8 clause.9
Between the issuance of the certification and the De-
cember 9 strike, Respondent and the Union met on three
occasions to attempt to negotiate a collective-bargaining
contract. The first such session was held on October 29.
According to Union Business Manager Stephens, the
meeting principally involved going over the bargaining
ground rules and discussing what he described as an out-
of-date company proposal-apparently something which
they had discussed prior to the expiration of the
SMACNA contract in June. He also said the Union pro-
posed the current SMACNA contract to Tezak at that
meeting. Despite the fact that the Union was aware that
Respondent was no longer paying into the trust funds,
Stephens said he did not mention that matter to Re-
spondent's president, Rudy Tezak, during this negotia-
tion session. He said that the only fringe benefit matter
which was discussed was the fact that the Union wanted
Respondent to sign the new master SMACNA SFUA
which continued to have terms providing for fringe ben-
efit contributions. He says that he made no clear, com-
plaint to Tezak regarding Respondent's discontinuance of
payments to those trusts although he testified he "could
have" said that the fringes were required to be paid only
on resolution 78 projects. It seems to me unclear wheth-
er he made such a statement or not, but if he did it
would have been quite odd, for at that time the Union
was still taking the position, despite its certification, that
Respondent was bound to the new SMACNA contract
through the 10-8 clause. Indeed, it was proceeding in a
separate forum to enforce that contention. If so, there
was no reason why he would limit his demand for pay-
ments to resolution 78 projects; instead, it seems to me,
he would have demanded payments for all projects-
after all, the Union believed it represented all of Re-
spondent's sheet metal workers at all locations. The reso-
lution 78 projects were simply modifications of the gen-
eral rule.
In any event, on November 6 another negotiation
meeting was conducted Stephens said the Union asked
Tezak for information regarding the health and profit-
sharing plans which Respondent had instituted. He said
he had no real complaint about them but needed infor-
mation for bargaining purposes. Again he says there was
no discussion regarding the fact that Tezak had discon-
tinued paying into the trusts. The third meeting was held
on November 24. Stephens said that at this meeting Re-
spondent had provided the information requested earlier
and the parties spent part of the meeting discussing it.
There is no direct evidence that the parties discussed the
discontinuance of payments to the trusts. They also went
very carefully over the proposed SFUA. Business Agent
Salazar contends Tezak insisted on going over it line by
line. That testimony seems odd, for Tezak well knew
what the SFUA contained. Such an analysis would not
have been necessary.
Stephens agrees that the Union's fringe plans exist only
because of the contractual relationship between the par-
ties. From his point of view he thought there was a con-
tractual relationship because of his contention that the
10-8 clause of the expired 8(f) contract would result in a
contract. He said he had received a legal opinion (vague-
ly described as having been received sometime between
July I and September 16) that the trusts could continue
to accept Respondent's contributions because from the
Union's point'of view Respondent was still considered to
be under contract. On October 13, Union (and Trust) At-
torney Valentine had written Respondent a letter saying
that the trusts would continue to accept such payments.
Nevertheless, Stephens implied before me that it was
proper for the trusts to do so only when there was a
contractual obligation.
III. THE NOVEMBER 24 UNION MEETING
9 On July 1, Stephens wrote Respondent asserting it was bound by a
10.8 clause On July 3, Tezak replied it was not and said it would not
comply with any decision of the permanent disputes board, the NJAB. In
early June the Union had included Respondent, in a list of contractors,
asking the NJAB to intervene . On July 24, the Union filed a grievance
with Respondent under the SFUA asserting that Respondent had unilat-
erally changed the wages and working conditions of its employees. It
sought $100,000 as redress The grievance does not state with any partic-
ularity what the offending changes were or when they occurred. On No-
vember 3, little more than '3 months later, the Union transmitted the
grievance to the NJAB for resolution. In late January 1988, the NJAB
ordered an audit of the funds and assessed a $5000 penalty (to be sus-
pended if the amounts were paid within 30 days). All of this conduct was
consistent with the Union's belief that Respondent was bound to a 10-8
clause. A lawsuit to enforce the award was filed later.
A few hours after the November 24 collective-bargain-
ing meeting between Respondent and the Union, the
Union conducted a meeting of its members. Approxi-
mately 10 or 11 employees attended. Six of them gave
testimony with regard to what transpired. Union Busi-
ness Agent Mike Salazar testified that the purpose of that
meeting was to inform the employees of the progress of
negotiations. He said specifically that he was reporting to
them regarding where the Company stood on three mat-
ters: fringe benefits as paid on resolution 78 jobs, the pre-
1100 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
vailing wage at the Stapleton Airport job, and allowing
nonunion members to work on resolution 78 jobs. 10
With respect to the first matter, it appears from the
general consensus of the testimony that Salazar's report
caused employees to be concerned with where the
money, previously earmarked for the trusts, was going
and where the vacation money could be found. The
question was whether the health and welfare and pension
trusts were credited to the employees' accounts.
Salazar reports that the two apprentices, Ford and
Gallego, specifically raised the question of what was
happening to their status as apprentices. He said they
were afraid they would receive no credit toward com-
pletion of their apprenticeship if they were not credited
for their hours of summer work and would be dropped
from the program. They also contended that if they were
not being credited with apprenticeship hours they should
be paid as journeymen on the city of Denver project at
Stapleton International Airport. Salazar said the employ-
ees, after listening to his report, and to each other, said
they wanted the fringe benefits supposedly being earned
at the Stapleton job to either be paid to the trusts or di-
rectly placed on their paychecks.
He went on to say that he told them one of the things
which needed to be decided that evening was whether
the employees should strike. He said he explained to
them that it would be best if they framed the strike as an
unfair labor practice strike so they would not lose their
jobs. Eventually they reached a consensus that they
should strike and decided they needed to determine the
most favorable time to strike.
Salazar asserts the reasons the employees decided to
strike were because they were unhappy that the fringe
benefit contributions were not being submitted and be-
cause the resolution 78 jobs were being worked by non-
union people. However, Salazar admits that at the No-
vember 24 meeting neither the Union nor the employees
knew for sure whether Respondent had made payments
for the September hours for the fringes at Stapleton. He
said those payments were not due until a few days later,
the end of October. Furthermore, he claims he was un-
aware that Respondent actually had made payments for
June and July. His testimony on that last point is not be-
lievable. Respondent's September 16 letter strongly as-
serted that these payments had been made and the trust
records confirm it. The only thing he said the group
knew for sure was that in September some of these pay-
ments for August had been made directly to the employ-
ees, and concluded, properly, that they had not been sub-
mitted to the trusts for that month. There is also evi-
dence, discussed below, that they knew Tezak had
"escrowed" the fringe payments.
Gary Gist, a journeyman sheet metal worker, testified
that at the November 24 meeting Salazar explained that
employees would be able to strike as unfair labor prac-
tice strikers over the issue of the nonpayment of fringe
contributions and dishonoring the 10- 8 clause. Both Gist
10 It will be recalled from discussion in the previous decision that the
resolution 78 agreements contain language which might be considered to
establish an illegal closed shop , limiting employment on those projects to
union members only.
and Gallegos contend that a vote was taken with respect
to whether or not they would strike. Gallegos testified
that the vote consisted of a show of hands. Even Salazar
would not agree that such a vote was taken and none of
the other employees who testified corroborate these two.
Indeed, fellow apprentice Ford denies that such a vote
occurred, as do employee Vonderheide and Pech. Those
employees assert that some sort of "consensus" was
reached and there seems to be little doubt about that.
Indeed, Gist admits to having discussed the issue of the
unfair labor practice strike with other union members
shortly before the hearing and it seems likely that his tes-
timony, and perhaps others', has been enhanced. Gist's
affidavit omits any reference to the unfair labor practice
strike issue as being part of the meeting. When asked
why he had done so, he said he had "chosen" to omit it
for reasons he refused to explain. His testimony on this
issue is quite strange.
Gist also testified that in late October he and fellow
employee Ronald Schaefer had a conversation with
Tezak. They asked him what was happening to the
money normally paid to the fringe funds. Gist said Tezak
told them he "couldn't afford to pay them twice if we
lose the case on unfair labor practice, and we are putting
your benefits [sic] [contributions] in escrow." It is clear
that Tezak was setting the money aside. It is equally
clear that either from information provided by Gist and
Schaefer or from Tezak, both Stephens and Salazar
knew of the arrangement almost immediately.
The two employees called by Respondent who attend-
ed the meeting, Vonderheide and Pech, gave testimony
somewhat contrary to that of the witnesses called by the
General Counsel. Vonderheide and Pech said the princi-
pal issue, which was discussed at the November 24 meet-
ing, was where the Union stood with Respondent-how
contract negotiations were going. Vonderheide remem-
bers Salazar asking whether it was time to "pull the em-
ployees" because there appeared to be "higher caliber"
jobs in progress, suggesting they could affect the Compa-
ny's negotiating stance by slowing projects down, per-
haps causing the penalty provisions in some of the con-
struction agreements to be invoked. He remembers the
Union needed to have "good leverage." He said he
cannot recall any reference to a discussion involving the
term "unfair labor practice strike." He does agree that
fringe benefit matters were discussed, but said the em-
ployees themselves were not particularly concerned with
the fringe benefit issues. In his view, Salazar and Ste-
phens were the ones most concerned about those mat-
ters. Vonderheide also remembers some discussion of
whether it was proper for nonunion employees to be
working alongside union members.
He said not only was no vote taken about striking but
he remembers being told by Salazar that they were
bound by the strike vote of early June. He remembers
the incident very well because he could not accept that
contention, thinking it was inappropriate and unfair be-
cause he was not given an opportunity to oppose it. He
even remembers a discussion of the Deklewa decision,
something he never quite understood.
CONCORD METAL 1101
Pech testified he was somewhat late to the meeting.
All seem to agree that he was a little late; some think the
meeting was delayed until he arrived. Pech does not be-
lieve he heard the entire meeting, in part because he ig-
nored some portions of it as of no interest. Nonetheless,
he testified the union officials told the group that they
were to "walk out on Rudy" in order "to put pressure
on him to sign a contract ." Pech asserts he heard no dis-
cussion regarding the nature of the strike. He did not
hear the phrase "unfair labor practice strike" or the
phrase "economic strike."
He, too, was annoyed at the Union for not giving him
a real opportunity to determine whether he should strike.
After the meeting, and aware of the consensus to strike
which had been reached, he decided to resign his union
membership. He did so the following day and never par-
ticipated in the strike. In addition, Pech testified that he
had been one of the union members who in early June
had signed the agreement to strike. When he refused to
strike in December, the Union sued him for breach of
that agreement.
IV. TODD PAULSON
In its decision the Board found Shop Foreman Mike
Roberts' statement to Todd Paulson that Respondent's
president, Rudy Tezak, was angry because the employ-
ees had voted for the Union and was not going to pay
any holiday pay, to be an unfair labor practice. I found
Tezak had made an honest effort to repudiate Roberts'
statement, supplying Paulson with more accurate infor-
mation, but the Board concluded that Tezak's effort to
cure the force of Roberts' statement failed under its rule
set forth in Passavant Memorial Hospital, 237 NLRB 138
(1978). The Board's remand order directs me to deter-
mine what causal effect, if any, this unfair labor practice
had on the strike in December.
I note first of all that the election took place on Sep-
tember 2 and the testimony was that the offending con-
versation occurred about a week later, apparently Sep-
tember 9. Paulson left Respondent's employ on October
23 and did not attend the November 24 union meeting.
He was therefore unable to testify about the impact, if
any, the incident had on the decision to strike. Indeed,
no employee who attended the meeting testified that the
Paulson incident had any affect on the "consensus" to
strike.
Although the tone of his testimony conclusively dem-
onstrates that Paulson had become embittered with Re-
spondent, that attitude stemmed not from Respondent's
decision to cease payments to the fringe benefit plans,
but instead found its genesis in the fact that Respondent
had repudiated the Union altogether in July. He had
been a foreman (whose statutory supervisory status is in
doubt) and remained a foreman until 3 weeks before he
left in October. He initially believed, as a union member,
that he was entitled to work only on resolution 78
projects and only with other union members. He testified
that , Union Business Manager Stephens had instructed
him to insist on that. At,one point Tezak asked him to
work on' a non-resolution 78 project in Greeley, Colora-
do, but he declined. Later he did so but became disen-
chanted with the lower pay rate. Ultimately he even
worked with a nonunion employee, Art Dumas. They
worked on some resolution 78 projects. Even then Paul-
son's attitude toward Respondent seems less than admira-
ble for he admits on one occasion allowing Dumas to
work (apparently on a roof) even though Dumas was in-
toxicated. He was not concerned with the safety hazard
that situation presented.
I think it is fair to conclude that Paulson, after Re-
spondent's July repudiation of the Union, became quite
disenchanted with Respondent. His attitude may have
been affected as well by the death of his father, Re-
spondent's superintendent, in late July. Whatever attitude
Paulson may have harbored toward Respondent, howev-
er, it would be difficult to attribute it to the September 9
unfair labor practice which was at least partially tem-
pered by Tezak's effort to disavow Roberts' mistake.
Indeed, Tezak met three of the five criteria for curing an
unfair labor practice as set forth in the Passavant case.
He only failed to give Paulson an assurance that no in-
terference with his Section 7 rights `would occur in the
future and failed to issue the repudiation in a context free
of other illegal conduct. Even the latter finding is not
particularly strong,' for the unilateral changes which the
Board found to be the other illegal conduct did not
begin to crystalize until about 2 weeks later.
Thus, I conclude that the holiday pay threat which
Roberts uttered to Paulson had no impact on the em-
ployees' November 24 decision to strike. That unfair
labor practice was minor in the overview, was nearly
cured, and there is no evidence that it was spread to the
employees who attended the meeting. Furthermore, at
the meeting not a single employee testified that the inci-
dent was even brought up, much less utilized as a justifi-
cation for the strike.
V. FURTHER FINDINGS AND CONCLUSIONS
The principal issue the Board has directed me to
decide is whether, based on all the evidence, including
credibility findings, the strike of December 9 was an
unfair labor practice strike or whether it was simply an
economic strike designed to obtain a new collective-bar-
gaining agreement.' In my initial decision I stated that
there was significant evidence suggesting the matter to
be the case. I remain of that view.
It is true that there is evidence supporting the conten-
tion that the strike was at least in part a response to the
unfair labor practices which the employees perceived.
The difficulty with the evidence supporting that claim is
that it is in collective disarray.
The Board found that the principal unfair labor prac-
tice which Respondent had committed was the unilateral
failure to pay .the fringe benefit funds after September 21.
And, while I think it may fairly be argued in the unique
circumstances of this case , that those changes were
either not unfair labor practices or were unfair labor
practices of minor impact, such an argument would miss
what I consider to be the salient point. That is the ques-
tion of whether the unilateral changes occurring after the
election had any real impact on the collective-bargaining
process. Did it impede the Union's ability to negotiate
1102 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
what must now be considered an initial collective-bar-
gaining contract? I must conclude that it did not.
Of course these parties were not without a collective-
bargaining history. As early as June, when Respondent
was considered to be an individual signatory contractor,
the Union had sought the assistance of the NJAB to
impose a new SFUA.11
During October and November, the Union became
aware that even though moneys had not been paid to the
trusts for September, the money was still available,
having been placed in the "escrow" account created by
Tezak. The Union's officials were not particularly con-
cerned with its loss . For that reason they did not choose
to protest directly the nonpayment for that month.
Indeed, based on Business Manager Stephens' testimony,
it appears that aside from his 10-8 clause and resolution
78 theories he did not believe there was an enforceable
agreement which obligated Respondent to pay into those
funds. Instead , he asked for, and received, information
about the current plans which Tezak had put in place.
At all times during those negotiations the Union's pro-
posal was the SFUA containing the wage rates and
fringe benefit plans as negotiated earlier with SMACNA.
It was not interested in any counteroffer made by Re-
spondent.
Thus, neither side had any great desire to move from
the positions initially taken. That being the case, it is
clear that the strike was virtually inevitable. The Union's
biggest difficulty in this situation was to determine the
most effective time to strike. At the November 24 meet-
ing Salazar asked the members to tell him which of the
projects were the most vulnerable. They initially decided
to strike on the Monday following Thanksgiving, but
when Salazar realized Pech had resigned as a member,
he concluded that Pech would inform Tezak about the
timing of the strike and the Union would lose the ele-
ment of surprise. Accordingly, he changed the date to
December 9.
As Salazar said, the purpose of the November 24
meeting was to advise the membership of the progress of
negotiations and determine what to do. He knew that
short of a strike Respondent was not about to change its
bargaining stance. He also knew that an economic strike
in that circumstance would put the employees' jobs at
risk, at least to the extent that Respondent might be able
permanently to replace any strikers. He said he therefore
11 The Board is aware that the SFUA is the only collective-bargaining
contract signed by construction locals of the International Association of
Sheet Metal Workers in the United States . That proposal was at some
point signed by the remaining members of SMACNA. It was also the
same proposal which the Umon had given Respondent during the first
collective-bargaining meeting on October 29. Tezak was well aware of its
terms and told Stephens that he was not prepared to sign that agreement
He had, only months before, established an entirely new employee pay
package which had cut the journeyman rate (though the reduction was
consistent with some "targeted" rates the Union had allowed under reso-
lution 78) and had put in place both health insurance and profit-sharing
plans. He had not experienced the massive loss of employees which
might have been expected when he did so. Futhermore, he discovered a
competitive advantage which he had not enjoyed before. He was not
ready to abandon his pay package without a fight, although he did make
two counterproposals to the Union . In each case, he said, they recoun-
tered with the SFUA. He believed he was in a sufficiently strong eco-
nomic posture to withstand a strike over the issue.
told the membership that the best way to approach the
strike was to try to characterize it as an unfair labor
practice strike for that would be the best way for them
to protect their jobs. He knew the difference between an
economic and an unfair labor practice strike and he
admits he orchestrated this strike in such a way as to
make it appear that the unfair labor practices , at least as
he viewed them to exist, were the cause of the strike.12
He was aware that Respondent had not paid the fringe
benefit funds for September, but did not know what Re-
spondent intended to do for October, as the supposed
due date for those payments had not yet arrived by the
date of the meeting . He no doubt suspected they would
be "escrowed." There was a great deal of discussion re-
garding where the money was. Some employees were
more concerned about the vacation fund money, which
they had been receiving on their paychecks, than they
were about the more important funds, the health and
welfare and pension plans. Two of the employees appear
to have been primarily concerned over the loss of their
apprenticeship credits. Accordingly, he focused on those
issues.
However, there are a number of factors which, when
weighed together, lead to the conclusion that the unilat-
eral change found to be an unfair labor practice was not
a cause of the strike. The first is that the bargaining itself
had come to a virtual standstill. The Union was demand-
ing that Respondent sign the SFUA. It would not
modify its position on that; simultaneously , Respondent
believed its pay package was sufficiently attractive to its
employees to withstand any economic action the Union
might take. Neither party was ready to blink.
Second, there is the Union's own conduct. On Decem-
ber 11, 2 days after the strike, Salazar wrote a letter to
the city of Denver's auditor, complaining that Respond-
ent was not complying with those portions of the munic-
ipal code requiring that the prevailing wages be paid at
the city's Stapleton International Airport project. In the
third paragraph of that letter he said "[Respondent]' is
currently withholding fringe benefits which should be
paid directly to their employees." (Emphasis added.) (R.
Exh. 21).
Although this statement contradicts Stephens and Sala-
zar's testimony elsewhere that they never told the city
that the money should be paid directly to-the employees,
I view it principally as an admission that the Union was
unconcerned with the unpaid fringe money as a cause of
the strike. If it had truly wanted the money to go to the
funds, Salazar would have asked the city to require Re-
spondent to pay it directly to the funds. Instead, he
asked the city to require Respondent to pay that money
directly to the employees. Taking the Union at its word,
the city directed Respondent to do just that, and it did
so, using the money which had been "escrowed."1$
12 The picket signs can be interpreted to be a protest against unfair
labor practices.
13 Stephens ' observation that a contract is required is significant, He
sits as a trustee on most of the trusts in question and has an excellent un-
derstanding of their rules. Since the Board has previously found that
there was no contractual relationship between Respondent and the Umon
after July 1-specifically it found that the repudiation was lawful and
Continued
CONCORD METAL 1103
Also in the category of the Union's conduct is the use
of its own rules in calling the December strike, in par-
ticular, the Union's invocation of the June strike vote as
the appropriate vehicle. The June vote was clearly aimed
at the expiration of both the multiemployer (SMACNA)
SFUA as well as those SFUA's binding individual con-
tractors. There is no question that the July strike was an
economic strike at its inception or that the employees in
June gave the Union the authority to call an economic
strike. Six months passed before the Union struck Re-
spondent and it is clear from the testimony of Vonder-
heide and Pech (who are credited below), that Salazar
told them the June strike vote was the authority to call
the strike against Respondent. Its conduct must also be
considered as an admission that the strike's purpose was
economic.
Moreover, the Union later sued Pech for breaking his
June agreement to strike when he declined to join the
December strike. Without doubt, that agreement had
been induced by the Union in its economic pursuit of
new contracts. I am compelled, therefore, to regard the
Union's suit against Pech as yet another admission tend-
ing to show that the December strike against Responsent
was an economic strike, although I would also say that it
is hardly dispositive by itself.
Third, there is the comparable credibility of the vari-
ous witnesses. Witnesses for both sides seem to agree
that the initial purpose of the November 24 union meet-
ing was to report the progress of negotiations to the
membership. After that, the versions diverge, and the
that the resolution 78 agreements had no life after the expiration of the
master on June 30-it may be that the remedy proposed by the Board for
the unilateral changes is too broad. The Board's remedy requires Re-
spondent to make the trusts whole for the unilateral changes made after
September 21. However, by their own Rules, as well as by Sec. 302(a)
and (c)(5)(B) of the Act, it appears that Respondent is barred from
paying and the trusts are incapable of lawfully accepting any moneys
from Respondent for that period of time. The trusts cannot be equated
with ordinary insurance plans insofar as participation eligibility is con-
cerned. Both the Rules and Sec . 302 require a writing of some kind-the
trusts, a collective-bargaining contract, and Sec. 302, some sort of active
document. In this case, neither of those requirements exist. Thus, it
would appear to me that the Board has ordered a remedy which contra-
venes congressional policy. I recognize that Respondent apparently paid
the trusts on behalf of certain of its employee union members who
worked on resolution 78 projects from July 1 through sometime in Sep-
tember. Those payments were apparently based on the Union's and the
trust's opinion that there was some sort of contractual ' arrangement in
place (the 10-8 clause) which would surely result in a contract . Another
alternative was that the resolution 78 agreements had life during that
period. The Board has determined that the matter was not the case and,
of course, the 10-8 clause matter is outside the Board's cognizance. Sheet
Metal Workers Local 38, (Elmsford Sheet Metal), 231 NLRB 699 (1977),
enfd . 575 F 2d 394 (2d Cir. 1978); Columbus Printing Pressmen, 219
NLRB 268 (1975), enfd . 543 F.2d 1161 (5th Cir. 1976); Graphic's Arts
Local 23 v. Newspapers, Inc., 585 F.2d 19 (7th Cir 1978); American Metal
Products Y. Sheet Metal Workers Local 104, 794 F.2d 1452 (9th Cis. 1986).
It would therefore appear that the Board 's remedial order under Sec.
10(c) of the Act requiring Respondent to pay the trusts gives the trusts
something to which they are not entitled under any theory of contract
law. The only cases of which I am aware where the Board ordered trusts
to break their own rules are those requiring them to accept remedial pay-
ments . See Carpenters Local 1913 (Fixtures Unlimited), 213 NLRB 363
(1974), enfd. 531 F.2d 424 (9th Cir. 1976), and its progeny . Those cases,
however, are distinguishable as there was always a contractual basis for
the remedy The Board has never before ignored the requirements of
Sec. 302 that an active writing be in existence . Therefore, I suggest the
Board reconsider the remedy insofar as it requires Respondent to make
the trusts whole . Its cease-and-desist order should be adequate.
Union's witnesses display some splaying inconsistency.
After stating the meeting's purpose, Salazar initially
spoke of matters not relating to bargaining at all, but to
Respondent's conduct and policies: the fringe benefits on
resolution 78 jobs, prevailing wages at Stapleton, and uti-
lizing nonmembers on resolution 78 jobs. Gist said Sala-
zar spoke about Respondent's nonpayment of fringe con-
tributions and its dishonoring the 10-8 clause. Gist also
omitted those matters from his pretrial affidavit saying
he had deliberately chosen to do so, refusing to explain
why. He and Gallegos claim, contrary to Salazar and the
others, that a vote was taken to strike over these matters.
Gallegos said, without great elaboration, that they voted
to strike over "unfair labor practices," apparently the ap-
prentice fund and pension issues . His lack of specificity
struck me as odd. Curiously, he is the only one who
mentioned the pension plan. His apprentice colleague,
Ford, who also had difficulty describing the meeting,
said the issues were nonpayment to the funds and non-
members working on resolution 78 jobs.
While a common thread in their testimony is the refer-
ence to the unpaid fund money, the remainder of their
testimony is scattershot. The only one who would con-
cede that the status of negotiations was discussed was Sa-
lazar, and he, only when pressed. His testimony on that
point attacks Respondent's good-faith bargaining. He
claims he told the employees, that Tezak wanted to go
over the Union's SFUA proposal line by line. No one
else testified he said any such thing and it appears inher-
ently unlikely that would have occurred since Tezak was
already intimately familiar with the SFUA; Tezak's only
real concern would have been the cost of wages and
fringe benefit items.' 4
On the other hand, Vonderheide's and Pech's testimo-
nies clearly and sensibly describe the meeting. Neither
Pech's late arrival nor his lack of attention on other mat-
ters detract from the issues he clearly did recollect. Von-
derheide specifically remembers the purpose of the strike
was "to get leverage" against the Company. Similarly,
Pech testified Salazar said the purpose of the strike was-
to put pressure on Tezak to get him ' to sign a contract.
Neither of them recalled any reference to the strike as an
"unfair labor practice" strike. They agree that there was
some discussion of the fringe benefit money, but said it
was in the context of employees asking where the money
was. At this point it can be fairly inferred from the
record that Stephens and Salazar knew Tezak had
"escrowed" the money. Certainly, Gist and Schaefer
knew it-Tezak had told them-and they had undoubt-
edly told Stephens and Salazar. Indeed, since Tezak was
not keeping it a secret, it is likely he had told them him-
self during the negotiations, Stephen's testimony notwith-
standing. No one had any doubt as of November 24 that
14 Called by the General Counsel, Supervisor Chuck Kress' testimony
does not support the Union. He did say the union officials said nonpay-
ment of fringes was an unfair labor practice and the employees "could
strike over that," but also said Salazar told them this was not the tune or
place to discuss strikes . Kress then became uncomfortable and left the
meeting. He cannot 'say what transpired thereafter, but waited outside
and observed the meeting end 3-5 minutes later.
1104 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Tezak had "escrowed" the money and was continuing to
do so.
It follows then, that neither Stephens nor Salazar was
particularly concerned about that money. They knew it
would not be lost. They still believed it would be ob-
tained one way or another-either by a newly negotiated
SFUA, by the 10-8 clause claim , or by direct payment.
Indeed, based on Stephens' testimony that the trusts re-
quired a contract before they could accept payment, it is
entirely likely that he did not confidently expect any-
thing but a direct payment to the employees. It would
therefore be no great loss to the trusts if the city ordered
Respondent to pay the money directly to the employees
as Salazar's letter asked.
I note Gist's testimony to the effect that he and other
union members had discussed the November 24 meeting
shortly before testifying in this hearing. Given their
varied testimony here it seems most probable that the
"unfair labor practice" protest is made of whole cloth. It
seems to me that someone created a script for these wit-
nesses to follow. They followed the script insofar as the
unpaid fringe contributions were concerned, but were
unable to maintain consistency with respect to other mat-
ters. The reason neither Vonderheide nor Pech could
recall any reference to an "unfair labor practice" strike
was because no reference was actually made. The omis-
sion from Gist's affidavit strongly supports that conclu-
sion . He did not tell the Board investigator because it
had not happened. When called on to explain the omis-
sion after he had testified to it, he had no explanation
except to admit he had lied. He could not do that, so he
just clammed up.
Accordingly, I find, based on objective factors strong-
ly supported by credibility factors, that the December 9
strike was not caused by Respondent's decision to
"escrow" these funds. Had that been the case, the Union
would not have acted as it did nor would there have
been the testimonial inconsistencies . Most importantly, I
have no difficulty in concluding that the nonpayment of
these funds had no impact on the bargaining positions of
the parties. The General Counsel has not adduced any
evidence to that effect; neither may it be inferred, for the
Union has not claimed it is in any worse position for it.
Even though it was "escrowed," the money had been
"spent" and Respondent was in no better economic posi-
tion than it would have been had it paid it to the funds.
Nor was the Union any weaker. It had great doubts that
the money was ever owed to the trusts and acted ac-
cordingly. It told the city to have the money distributed
to the employees and was happy with that disposition.
Therefore, I am compelled to conclude that the sole
purpose of the December 9 strike was to obtain a collec-
tive-bargaining contract and not, in truth, to protest any
unfair labor practices. Accordingly, the six strikers were
economic strikers, entitled to the rights of economic
strikers and not to the rights of unfair labor practice
strikers. Since it is conceded that Respondent treated
them as economic strikers and did not discriminate
against them when they applied for reinstatement in Jan-
uary, the 8(a)(3) and (1) portion of the complaint alleging
them to be unfair labor practice strikers should be dis-
missed. Accordingly, I make the following
CONCLUSIONS OF LAW
The General Counsel has failed to prove by a prepon-
derance of the evidence that the Union's strike against
Respondent which occurred on December 9, 1987, was
caused or prolonged by any unfair labor practice which
may have been committed by Respondent.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
edis
ORDER
That portion of the consolidated complaint alleging
violations of Section 8(a)(3) and (1) of the National
Labor Relations Act is dismissed.
is If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses