Jack Welsh Co., Inc.

National Labor Relations Board - Board Decisions

Jun 22, 1987

284 N.L.R.B. 378 (N.L.R.B. 1987)

378 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Jack Welsh Company, Inc. and United Brotherhood
of Carpenters and Joiners of America, Local
Union 690. Case 26-CA-7844
22 June 1987
DECISION AND ORDER
BY MEMBERS JOHANSEN, BABSON, AND
STEPHENS
On 26 March 1980 Administrative Law Judge
Robert Cohn issued the attached decision. The
General Counsel and the Respondent filed excep-
tions and supporting briefs.
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
conclusions as modified, to modify his remedy,'
and to adopt the recommended Order as modified.2
The facts are more fully set forth in the judge's
decision. The Respondent is an employer engaged
in the residential and commercial construction busi-
ness. The Respondent is owned by Jack Welsh. In
1973 Welsh decided to go into business for himself
and formed the Respondent. He determined to op-
erate his business with union carpenters. Accord-
ingly, he advised the Union of his desires, and the
Union presented him with a contract to sign. The
contract was the 1973-1976 agreement which the
Union had with the Associated General Contrac-
tors. The Respondent adopted that contract in Oc-
tober 1973. Thereafter, the Respondent operated its
business by hiring carpenters through the Union. In
In accordance with our decision in New Horizons for the Retarded,
283 NLRB 1173 (1987), interest will be computed at the "short-term Fed-
eral rate" for the underpayment of taxes as set out in the 1986 amend-
ment to 26 U.S.0 § 6621
Because the provisions of employee benefit fund agreements are vari-
able and complex, the Board does not provide for the addition of a fixed
rate of interest on unlawfully withheld fund payments at the adjudicatory
stage of a proceeding. We leave to the compliance stage the question
whether the Respondent must pay any additional amounts into the benefit
funds in order to satisfy our "make-whole" remedy. Depending on the
circumstances of each case, these additional amounts may be determined
by reference to provisions in the documents governing the funds at issue
and, where there are no governing provisions, by evidence of any losses
directly attributable to the unlawful withholding, which might include
the loss of return on investment of the portion of funds withheld, addi-
tional administrative costs, etc., but not collateral losses. Mertyweather
Optical Co., 240 NLRB 1213 fn. 7 (1979).
2 We note that the judge provided a broad cease-and-desist order re-
quirmg the Respondent to cease and desist from violating the Act "in any
other manner." However, a broad cease-and-desist order is warranted
only where it is shown that a respondent has a proclivity to violate the
Act or has engaged in such egregious or widespread misconduct as to
demonstrate a general disregard for employees' fundamental statutory
rights. We do not find that the broad injunctive language is warranted in
this case. Accordingly, we shall substitute the narrow cease-and-desist
language, requiring the Respondent to cease and desist from violating the
Act "in any like or related manner" for the provision recommended by
the judge. See Hickmott Foods, 242 NLRB 1357 (1979).
284 NLRB No. 43
1976 the Respondent signed a second collective-
bargaining agreement with the Union, effective by
its terms from 1 May 1976 until 30 April 1979. The
Respondent adhered to the terms and conditions of
that contract until about March 1979 when it uni-
laterally ceased making contractually required con-
tributions to various union trust funds. About 1
May 1979 the Union mailed the Respondent a new
collective-bargaining agreement, effective from 1
May 1979 until 30 April 1982. On 31 May 1979
Welsh returned the unsigned agreement to the
union office and stated that he did not intend to
sign it and that he was "getting out of the Union."
Uncontroverted evidence in the record establishes
that thereafter Welsh went to a jobsite where Gary
Welsh, his nephew and an employee of the Compa-
ny, was working. Jack Welsh told Gary that he
was "going open shop." Gary responded that he
"would have to leave him [Jack Welsh]" because
Gary "belonged to a local union." Jack Welsh then
went to another jobsite where three carpenter em-
ployees, Bobby Berry, Charles Douglas, and
Howard Neal were working under Joe Berry, an
undisputed supervisor. Welsh told Joe Berry that
he was "getting out of the Union" and gave Berry
the final checks for Berry and the three carpenter
employees. The evidence establishes that Berry
thereafter distributed the checks to the carpenter
employees telling them that "Jack [Welsh] was let-
ting all of us go; that he [Welsh] had subbed all the
work out to go open shop." After 31 May the Re-
spondent hired new employees but did not pay
them the wage rate provided in the unsigned agree-
ment. Thereafter, about 26 June 1979, the Respond-
ent, by letter, offered reinstatement to the dis-
charged employees "under the same terms and con-
ditions as existed on 30 May 1979." None of the
employees accepted the offers of reinstatement.
The judge found that "assuming for the sake of
discussion" the original contract entered into by
the Respondent with the Union in 1973 was a Sec-
tion 8(1) contract, the bargaining relationship be-
tween the parties thereafter "ripened into a Section
9(a) bargaining relationship," and that therefore the
Respondent violated Section 8(5) and (1) of the
Act when it unilaterally ceased paying contractual-
ly required fringe benefits in early 1979, and when
it ceased to recognize the Union as the collective-
bargaining representative of its carpenter employ-
ees in May 1979. The judge also found that as of
31 May 1979 the Respondent had determined to
operate its business as an open shop and had unilat-
erally decided to lay off or terminate its carpenter
employees because they were members of the
Union. He thus concluded that the termination of
four carpenter employees on 31 May 1979 was ef-
JACK WELSH CO. 379
fectuated in order to discourage membership in the
Union, in violation of Section 8(a)(3) and (1) of the
Act. He also found that the discharge of Supervi-
sor Joe Berry was violative of Section 8(a)(1) of
the Act as the termination formed an "integral part
of a pattern of conduct aimed at penalizing em-
ployees for their union activities."
In John Deklewa & Sons, 282 NLRB 1375 (1987),
the Board overruled R. J. Smith Construction Co.,
191 NLRB 693 (1971), en!'. denied sub nom. Oper-
ating Engineers Local 150 v. NLRB, 480 F.2d 1186
(D.C. Cir. 1973), abandoned the conversion doc-
trine, and modified unit scope rules in Section 8(f)
cases. As set forth more fully in Deklewa, supra at
1337, the Board decided to apply the following
principles in Section 8(f) cases:
(1) a collective-bargaining agreement permit-
ted by Section 8(1) shall be 'enforceable
through the mechanisms of Section 8(a)(5) and
Section 8(b)(3); (2) such agreements will not
bar the processing of valid petitions filed pur-
suant to Section 9(c) and Section 9(e); (3) in
processing such petitions, the appropriate unit
normally will be the single employer's employ-
ees covered by the agreement; and (4) upon
the expiration of such agreements, the signato-
ry union will enjoy no presumption of majori-
ty status, and either party may repudiate the
8(f) bargaining relationship.
The Board also noted, at footnote 41 of Deklewa,
that it will require the party asserting the existence
of a Section 9(a) relationship to prove it.
Under Deklewa, we find that the General Coun-
sel, while asserting that the Respondent is bound to
recognize the Union under Section 9(a), has failed
to establish that the relationship between the Re-
spondent and the Union is anything other than a
relationship governed by Section 8(1) of the Act.
Thus, as the evidence shows that the Respondent is
engaged in the construction industry and that it en-
tered into its contractual relationship with the
Union at a time when the Union's majority status
had not been established, we find that the relation-
ship between the Respondent and the Union is gov-
erned by Section 8(1) of that Act. Further, apply-
ing Deklewa, we agree with the judge's conclusion
that the Respondent violated Section 8(a)(5) and
(1) of the Act in March 1979 when, during the
term of an existing collective-bargaining agreement,
it ceased making contractually required contribu-
tions to the union trust funds on behalf of its em-
ployees. 3 We find, however, that the Respondent's
3 Although the complaint alleges that the unlawful unilateral changes
commenced in May 1979 rather than in March 1979, we note that the
withdrawal of recognition from the Union on 31
May 1979, subsequent to the expiration of the col-
lective-bargaining agreement, was permissible
under the principles of Deklewa.4 Accordingly, we
conclude that the Respondent did not violate Sec-
tion 8(a)(5) and (1) by withdrawing recognition
from the Union.5
With regard to the judge's further finding that
the Respondent violated Section 8(a)(3) and (1) of
the Act when it discharged four of its carpenter
employees because. of their membership in the
Union, we agree with the judge's findings only
with respect to employees Bobby Berry, Charles
Douglas, and Howard Nea1. 6 Contrary to the
judge, we conclude that the evidence does not sup-
port a finding that employee Gary Welsh was dis-
charged. Rather, as noted above, the evidence es-
tablishes that on 31 May 1979, after the expiration
of the 1976-1979 collective-bargaining agreement
between the Respondent and the Union, and after
Jack Welsh had gone to the Union's offices and
stated that he and the Company were no longer
going to operate as a union shop, he went to a job-
site where Gary Welsh was working. During that
visit, Jack Welsh told Gary that the Company was
going "open shop." Gary Welsh immediately stated
that he would have to leave because he "belonged
to a local union." As the Respondent's actions in
going "open shop" were legally permissible, and in
view of Gary Welsh's response to Jack Welsh, we
find that Gary Welsh voluntarily quit his employ-
ment with the Respondent, unlike the other alleged
discriminatees who, as the judge found, were
"never given an opportunity to quit." Accordingly,
we do not fmd that the Respondent violated Sec-
tion 8(a)(3) and (1) concerning its actions toward
Gary Welsh
As noted above, the judge also found that the
Respondent violated Section 8(a)(1) of the Act by
discharging Supervisor Joe Berry. We find merit in
the Respondent's exceptions to this conclusion. In
Parker-Robb Chevrolet, 262 NLRB 402 (1982),
issued subsequent to the judge's decision, we held
violation found was fully litigated at the hearing and its factual basis was
admitted by the Respondent.
4 In this regard, we note the judge's finding, at fn. 15 of his decision,
that the parties did not intend the 1976-1979 collective-bargaining agree-
ment to automatically renew itself according to its terms in the absence
of the exchange of written notification and that no exceptions were filed
to this fmding of the judge.
4 In view of our finding herein we find no merit to the General Coun-
sel's exception to the judge's failure to find that the Respondent violated
Sec. 8(a)(5) and (1) by unilaterally changing wages of employees in May
1979 subSequent to the expiration of the contract.
In finding that these discharges violated Sec. 8(a)(3), we emphasize
that the employees were discharged solely because of their membership
m the Union. We further note that these employees, through Supervisor
Berry, were given their final paychecks and were told that Jack Welsh
was "letting them go."
380 DECISIONS OF 1HE NATIONAL LABOR RELATIONS BOARD
that the protection of the Act does not extend to
supervisors who are disciplined or discharged as a
result of their participation in union or concerted
activity. In so doing, we overruled Krebs & King
Toyota, 197 NLRB 462 (1972), on which the judge
relied in fmding Supervisor Berry's discharge un-
lawful, and similar cases to the extent that those
cases held that a violation is established when the
discipline or discharge of supervisors is an "integral
part" of an employer's pattern of unlawful conduct
directed against employees. Accordingly, we con-
clude, for the reasons fully set forth in Parker-
Robb, that there is no basis for finding the dis-
charge of Supervisor Berry unlawful.7
Finally, the judge found that the discharged em-
ployees declined valid offers of reinstatement made
to them by the Respondent by letters dated 26 June
1979. He therefore did not include in his recom-
mended Order a provision requiring the Respond-
ent to offer them reinstatement. The General Coun-
sel excepts to the judge's finding that the offers
constituted valid offers of reinstatement. As we
have found that the Respondent was free to with-
draw recognition from the Union subsequent to the
expiration of the collective-bargaining agreement
on 30 April 1979, we also find that it subsequently
was entitled to establish terms and conditions of
employment without bargaining with the Union.
Thus, we find that the letters sent by the Respond-
ent dated 26 June 1979, offering the employees re-
instatement "under the same terms and conditions
as existed on May 30, 1979" contained no unlawful
conditions and constituted valid offers of reinstate-
ment. Accordingly, we find no merit to the Gener-
al Counsel's exception.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act.
2. The Charging Party is a labor organization
within the meaning of Section 2(5) of the Act,
3. All carpenters and apprentice carpenters, ex-
cluding all other employees, guards, and supervi-
sors as defined in the Act, constituted an appropri-
ate unit of the Respondent's employees for the pur-
pose of collective bargaining under the Act.
4. By unilaterally ceasing to make contractually
required contributions to the Union's health and
welfare, pension, and apprenticeship funds during
the term of a valid collective-bargaining agreement
7 We find that the circumstances surrounding the discharge of Supervi-
sor Berry are clearly distinguishable from the factual situation m Pioneer
Drilling Co., 162 NLRB 918 (1967), enfd in pertinent part 391 F.2d 961
(10th Cir. 1968). See Parker-Robb, supra at 403.
under Section 8(f) of the Act, the Respondent vio-
lated Section 8(a)(5) and (1) of the Act.8
5. By terminating, and thereafter failing and re-
fusing for a certain period of time, above-described,
to reinstate Howard Neal, Charles Douglas, and
Bobby Berry, the Respondent violated Section
8(a)(3) and (1) of the Act.
6. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified and set out in full below and
orders that the Respondent, Jack Welsh Company,
Inc., North Little Rock, Arkansas, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing or refusing to bargain collectively and
in good faith with the Union by unilaterally ceas-
ing to make contractually required contributions on
behalf of the unit employees to the Union's health
and welfare fund, pension fund, and apprenticeship
fund during the term of a valid collective-bargain-
ing agreement with the Union entered into pursu-
ant to Section 8(f) of the Act.
(b) Terminating or otherwise discriminating
against employees because of their membership in
or activities on behalf of the Union.
(c) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Make whole the unit employees by making
contributions on their behalf to the Union's health
and welfare, pension, and apprenticeship funds, for
the period from March 1979 through 30 April
1979, and by reimbursing them for expenses in-
curred due to the failure to make such contribu-
tions in accord with Kraft Plumbing, 252 NLRB
891 (1980).
(b) Make whole Bobby Berry, Howard Neal, and
Charles Douglas for any loss of wages or other
benefits suffered by reason of the Respondent's un-
lawful termination of them, in the manner set forth
in the remedy section of the judge's decision.
s The parties' 1976-1979 collective-bargaining agreement also provided
for employer contributions to an industry advancement fund. Inasmuch
as industry advancement funds are permissive, nonmandatory subjects of
bargaining, it is not an unfair labor practice for an employer unilaterally
to discontinue its contributions to such a fund. See F. M. L. Supply, 258
NLRB 604 fn. 3 (1981); Finger Lakes Plumbing Co., 254 NLRB 1399
(1981). Accordingly, we shall not require the Respondent to -make contri-
' butions to that fimd.
JACK WELSH CO. 381
(c) Post at its facility in North Little Rock, Ar-
kansas, copies of the attached notice marked "Ap-
pendix."9 Copies of the notice, on forms provided
by the Regional Director for Region 26, after
being signed by the Respondent's authorized repre-
sentative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consec-
utive days in conspicuous places including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
9 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these
rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT fail or refuse to bargain collec-
tively and in good faith with United Brotherhood
of Carpenters and Joiners of America, Local Union
690, by unilaterally ceasing to make contractually
required contributions to the Union's health and
welfare, pension, and apprenticeship funds during
the term of a valid collective-bargaining agreement
entered into with the Union, pursuant to Section
8(1) of the Act. The appropriate unit is:
All carpenters and apprentice carpenters, ex-
cluding all other employees, guards and super-
visors as defined in the Act.
WE WILL NOT unlawfully terminate employees
or otherwise discriminate against them because
they are members of the Union.
WE WILL NOT in . any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL make all contributions to the Union's
health and welfare, pension, and apprenticeship
funds on behalf of the unit employees which were
owing for the period from March 1979 through the
expiration of the collective-bargaining agreement
on 30 April 1979, and WE WILL reimburse the unit
employees for any expenses incurred due to our
failure to make such contributions, plus interest.
WE WILL make Bobby Berry, Howard Neal, and
Charles Douglas whole for any loss of wages or
other benefits they may have suffered as a result of
our unlawful termination of them, plus interest.
JACK WELSH COMPANY, INC.
Beverly F. Druitt, Esq., for the General Counsel.
Russell Gunter, Esq. and William Dean Overstree4 Esq.
(House, Holmes & Jewell), of Little Rock, Arkansas, for
the Respondent.
Michael Hamilton, Esq. (Kaplan, Brewer & Bilheimer), of
Little Rock, Arkansas, for the Charging Party.
DECISION
STATEMENT OF THE CASE
ROBERT COHN, Administrative Law Judge. This case
came on for hearing before me in Little Rock, Arkansas,
on November 27, 1979, on due notice. The principal
issues presented for decision are: (1) Whether Jack Welsh
Company, Inc. (the Company or Respondent) violated
Section 8(a)(5) of the National Labor Relations Act (the
Act) when it unilaterally changed certain working condi-
tions of its employees and withdrew its recognition of
the Charging Party' as collective-bargaining representa-
tive; (2) whether Respondent violated Section 8(a)(3) of
the Act when it terminated the employment of four of its
employees; and (3) whether the Respondent violated
Section 8(a)(1) of the Act when it terminated the em-
ployment of its supervisor, Joe Berry.z
Subsequent to the hearing, counsel for all parties filed
helpful posthearing briefs, which have been duly consid-
ered.
On the entire record, including arguments of counsel
and my observation of the demeanor of the witnesses, I
make the following
United Brotherhood of Carpenters and Joiners of America, Local
Union 690
2 The original charge was filed by the Charging Party on June 1, 1979,
amended June 27, 1979. The complaint issued July 13, 1979, and the Re.
spondent's answer was filed July 26, 1979.
382 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
FINDINGS AND CONCLUSIONS
I. JURISDICTION
The Respondent, an Arkansas corporation with head-
quarters and principal place of business in North Little
Rock, Arkansas, has been at all times material engaged in
the residential and commercial construction business.
During the past 12 months, a representative period, the
Respondent, in the course and conduct of its business op-
erations, performed services valued in excess of $50,000
for other enterprises within the State of Arkansas, in-
cluding Kentucky Fried Chicken of North Little Rock,
Inc., and Wyatt Cafeterias, Inc., all of whom meet the
applicable Board jurisdictional standards for assertion of
jurisdiction.
The Respondent stipulated that it is engaged in com-
merce within the meaning of the Act and is subject to
the jurisdiction of the National Labor Relations Board.
IL THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find
that at all times material the Charging Party (the Union
or Local 690) has been a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
For many years prior to the events giving rise to the
issues in this case, Jack Welsh, owner of the Respondent,
has been a skilled carpenter and a member of the Charg-
ing Party, having joined that organization in 1956. In
1973, he decided to go into business for himself, and
formed the Respondent. Thereafter, apparently because
Welsh remained a member of Local 690, he determined
to operate his business with union carpenters. According-
ly, he advised Local 690 of his desires, and the Charging
Party presented him with a contract to sign, which was
the 1973-1976 contract which Local 690 had with the
Associated General Contractors. The record shows that
the Respondent adopted that contract on October 29,
1973, and apparently lived up to its provisions during its
term. 5 Thereafter, the Respondent operated its business
by the hiring of carpenters through Local 690, but hired
laborers from independent sources. The record reflects
that the Respondent employed carpenters and laborers
on a one-to-one ratio, generally. The record also reflects
that the Respondent employed, on a rather continuous
basis, a regular core of approximately three to four car-
penters, although at periods of more business activity, it
would sometimes employ as many as eight or nine car-
penters.
In 1976, the Charging Party mailed to the Respondent
a new contract between Local 690 and the Associated
General Contractors, which provided for raises in wage
rates and other improvements in benefits for the classifi-
cations of employees covered. The term of that agree-
3 The contract provides wage rates and other terms and conditions of
employment for classifications of journeymen carpenters and floormen
(and their foremen), as well as millwrights and piledrivers (and their fore-
men).
ment was from May 1, 1976, until April 30, 1979, "and
shall continue in full force and effect from year to year
thereafter, unless written notice of change is given not
less than sixty (60) days prior to the expiration date of
the contract period."4 Jack Welsh testified that he signed
the aforesaid agreement and mailed it back to the Union.
For aught, the record shows the Respondent continued
to live up to the terms and conditions of that contract
until the latter part of 1978 and the first part of 1979, as
hereafter detailed.
It was apparently in the latter part of 1978 that Jack
Welsh reached a determination that he would attempt to
operate "open shop," i.e., without the confinements and
restrictions of his contract with the Union. He testified
that he did not believe that the union carpenters were
justifiying their wages and fringe benefits. It was in No-
vember that he had a conversation with his foreman, Joe
Berry, in which he told Berry that he was contemplating
"getting out of the Union," and asked Berry if the latter
would work for him under those conditions. Berry re-
plied that he would not.
The record reflects that shortly thereafter in March
1979 Welsh ceased paying contributions, pursuant to the
contract, into various of the Union's health and welfare
funds. There is no dispute that this action was taken
without prior notice to or consultation with the Union.
About May 1, 1979, the Charging Party mailed to
Welsh a copy of the new contract between the Charging
Party and the Associated General Contractors, which
had been executed April 30, 1979, and was effective from
May 1, 1979, until April 30, 1982. Welsh testified that
about May 1, 1979, he instituted the new wage increases
provided in the contract to the carpenter employees, but
did not sign the contract. Rather, he determined during
that month that for economic reasons he would not at-
tempt to operate as he had in the past, i.e., under a con-
tract with the Charging Party. Accordingly, about May
31, he went to the union hall in Little Rock, advised the
secretary that he did not intend to sign the contract that
the Union had presented to him, and handed it unsigned
tö her. On the same day, he advised Foremen Joe Berry
that it was costing Welsh too much money to operate in
the manner in which he had been doing business, and
that Welsh was "getting out of the Union." At that time,
Welsh had made up the final checks for Joe Berry and
carpenter employees Bobby Berry, Charles Douglas,
Howard Neal, and Gary Welsh. He instructed Berry to
give the men their checks and to tell them that "he was
not going to have a union anymore—that he dropped
union membership." Berry performed as instructed, and
the carpenters shortly thereafter gathered their tools and
left the jobsite.5
4 See R Exh. 1, sec 13. It is further provided in that section that:
If the said written notice is given, this agreement shall automatically
terminate at he expiration date of the contract period within which
said wntten notice was given. If the said written notice is not given,
this agreement shall continue m full force and effect as above speci-
fied.
5 Gary Welsh, a nephew and employee of Jack Welsh, was working at
a different location that day. Jack Welsh went to that location and told
Gary Welsh that Jack Welsh was going open shop; Gary Welsh advised
that he would have to leave because he belonged to a local union.
JACK WELSH CO. 383
After May 31, 1979, Jack Welsh hired about seven or
eight new employees, none of whom were members of
the Charging Party. He did not pay these new employ-
ees the wage rate prescribed under the proposed agree-
ment mailed to him by the Charging Party.
Threafter, about June 26, 1979, by letter, the Respond-
ent offered reinstatement to Gary Welsh, Charles Doug-
las, Howard Neal, and Bobby Berry, such offer not
being conditioned in any way upon settlement of the
charges in this case, and stipulating that reinstatement
would be "under the same terms and conditions as exist-
ed on May 30, 1979." The same offer was made on July
13, 1979, to Foreman Joe Berry. As far as the record
shows, none of the persons named accepted the offers of
reinstatement.
B. Analysis and Concluding Findings
1. The alleged 8(a)(5) violation
Assuming a regular and valid collective-bargaining re-
lationship between Local 690 and the Respondent, it is
well established that the unilateral ceasing of payment of
fringe benefits by the Respondent in early 1979 constitut-
ed a violation of Section 8(a)(5) of the Act. The Re-
spondent appears to defend its conduct on this aspect of
the case by claiming that the original contract between
the Respondent and the Charging Party was a prehire
contract under Section 8(f) of the Act, and therefore the
Respondent was immune from an 8(a)(5) violation be-
cause the original 8(1) relationship "never ripened into a
Section 9(a) bargaining relationship." This is because,
claims the Respondent, "there is no evidence that the
Union ever attained majority status among Respondent's
permanent employees."6
I am unable to agree with this analysis. Assuming for
the sake of discussion that the original contract between
the Respondent and the Charging Party was an 8(1) con-
tract, the evidence shows that the relationship so estab-
lished became a permanent one, and the parties executed
a second contract in 1976; that the bargaining unit cov-
ered by the contract was one limited to carpenters that
the Respondent hired solely (with one exception—a rela-
tive) through the Charging Party. Accordingly, by the
time of the alleged wrongful unilateral action, the bar-
gaining relationship between the parties had extended for
a period of 5 to 6 years covering two collective-bargain-
ing agreements, under which the Respondent had hired
almost exclusively union carpenters.7
Under all the foregoing circumstances, I find that the
bargaining relationship between the Respondent and the
Charging Party had, indeed, ripened into a 9(a) bargain-
6 See R. Br. 14.
7 At one point in its brief (R. Br. 14), the Respondent appears to argue
that a unit of carpenters only would not be appropriate at the Respond-
ent, and that the only appropriate unit would be a unit comprised of all
the Respondent's permanent employees: carpenters and laborers. At the
same time, "Respondent recognizes that a unit of carpenters generally is
an appropriate unit in the construction industry" (R. Br. 14). This is a
correct statement of the law, as the Board has recognized that carpenters
are skilled craftsmen and may, if they so desire, constitute separate craft
units, despite a history of collective bargaining on a broader basis. See,
e.g., it Mfg. Co., 100 NLRB 1298, 1300 (1951); Sinclair Rubber, 96
NLRB 220, 224 (1951).
ing relationship, and therefore, Respondent violated Sec-
tion 8(a)(5) of the Act when it committed the unilateral
change in working conditions above-described, and when
it ceased to recognize the Union as the collective-bar-
gaining representative of its carpenter employees in May
1979.8
2. The alleged 8(a)(3) violation
There can be no question but that as of May 31, 1979,
the Respondent had determined to operate its business as
an "open shop," and had unilaterally decided to lay off
or terminate its carpenter employees because they were
members of the Charging Party. The Respondent de-
fends its conduct on this aspect of the case on the
grounds that, based on his prior knowledge and experi-
ence in the construction industry and being a union
member himself, Jack Welsh was well aware that the
carpenter employees would not work for him under
"open shop" conditions; thus, according to the Respond-
ent, Welsh "in effect accepted their resignations before
they were offered."
I cannot accept this analysis. Assuming, as previously
stated, that Welsh was aware that the carpenter employ-
ees would not work under open shop conditions, it was
incumbent upon him to make known his decision to
change their employment conditions, i.e., to terminate
them, and to at least give them an opportunity to make a
decision to continue or to cease working for him prior to
his summarily and unilaterally making it for them. Under
all circumstances, I agree with the contention of the
General Counsel that "Welsh never gave the carpenters
an opportunity to quit," and that their terminations were
effectuated in order to discourage membership in the
Union, in violation of Section 8(a)(3) of the Act."
3. Whether the discharge of Supervisor Joe Berry
constituted an 8(a)(1) violation
There is no question but that at the time of his termi-
nation on May 31, 1979, Joe Betty was a supervisor
under Section 2(11).
Normally, therefore, any termination or layoff effectu-
ated by the Respondent as respects him would not be
protected under Section 7 of the A ga, as such protection
is afforded only to nonsupervisory employees. However,
the Board has, in the past, noted several exceptions to
that general rule, Krebs & King Toyota, 197 NLRB 462,
464 (1972) (dissenting opinion):
Thus an employer has been found to have violated
Section 8(a)(1) by discharging a supervisor because
he refused to engage in unfair labor practices at the
behest of the employer," or because the supervisor
8- See Irvin-McKelvy Co„ 194 NLRB 52, 53 (1971).
9 R. Br. at 6.
I ° The Respondent argues that there is no evidence of antiunion moti-
vation on the part of Welsh, with which contention I agree. However,
the United States Supreme Court held long ago that "specific proof of
intent is unnecessary where employer conduct inherently encourages or
discourages union membership [and] is but an application of the common
law rule that a man is held to intend forseeable consequences of his con-
duct." (Radio Officers v. NLRB, 347 U.S. 17 (1954); see also NLRB a
Great Dane Trailers, 388 U.S. 26 (1967).)
384 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
gave testimony adverse to the employer in a Board
proceeding," or because the employment of rank-
and-file employees was dependent on the employ-
ment of the supervisor and the employer discharged
the supervisor not because of his own prounion ac-
tivities but in order to get at the prounion rank-and-
file employees."
" IV.L.R.B. v. Talladega Cotton Factory, 213 F.2d 209 (CA. 5).
11 Oil City Brass Works V. NLRB, supra; NLRB. v. Better
Monkey Grip Company, 243 F.2d 836 (CA. 5), cert. denied 353
U'S. 864.
12 Pioneer Drilling Co., Inc. v. N.L.RB., 391 F.2d 961 (C.A.
10).
The record here reflects that the Respondent terminat-
ed Foreman Joe Berry along with the other carpenter
employees because of Jack Welsh's determination to op-
erate 7 his business as an open shop. Accordingly, in my
view; such termination formed "an integral part of a pat-
tern of conduct aimed at penalizing employees for their
union activities," and was therefore violative of Section
8(a)(I) of the Act."
On the foregoing fmdings anc conclusions, I make the
following
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce' within the meaning of Section 2(6) and (7) of the
Act.
2. The Charging Party is a labor organization within
the meaning of Section 2(5) of the Act.
3. All carpenters and apprentice carpenters, excluding
all other, employees, guards and supervisors as defined in
the Act, constitute an appropriate unit of the Respond-
ent's employees for the purpose of collective bargaining
within the meaning of Section 9(b) of the Act.
4. By withdrawing recognition from the Union and by
instituting certain unilateral changes in working condi-
tions without prior consultation or bargaining with the
Union in the manner described above, the Respondent
violated Section 8(a)(5) and (1) of the Act.
5. By terminating, and thereafter failing and refusing
for a certain period of time, above-described, to reinstate
the following named employees, the Respondent violated
Section 8(a)(3) and (1) of the Act: Howard Neal, Charles
Douglas, Bobby Berry, Gary Welsh.
11 Krebs & King Toyota, supra at fn. 4.
6. By terminating, and thereafter for a certain period
of time, above-described, failing and refusing to reinstate
Joe Berry, the Respondent violated Section 8(a)(1) of the
Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent engaged in, and is
engaging in, certain unfair labor practices, it will be rec-
ommended that it cease and desist therefrom and take
certain affirmative action necessary to effectuate the poli-
cies of the Act.
Having found that the Respondent terminated its car-
penter employees and the carpenter foreman, in the
manner described above, I will recommend that Re-
spondent be ordered to make them whole for any loss of
earnings they may have suffered by reason of such termi-
nations. 1 2 Any ,backpay found to be due shall be com-
puted in accordance with the formula set forth in F. W.
Woolworth Co.,. 90 NLRB 289 (1950), and Florida Steel
Corp., 231 NLRB 651 (1977).13
Having found that the Respondent unilaterally discon-
tinued payments to the Union's health and welfare fund,
pension fund, apprenticeship fund, and industry advance-
ment fund, in the manner above-described, it will be rec-
ommended that the Respondent make such contributions
on behalf of those employees in the above unit for whom
such contributions were not previously made that would
have continued , to be made had the Respondent not
ceased to have-recognized the Union on and after May 1,
1979, as above-described."
[Recommended Order omitted from publication.]
12 Since unconditional offers of reinstatement were subsequently made
to all the individuals, which were refused, I will not recommend that the
Respondent be ordered to again offer reinstatement to them.
13 See generally Isis Plumbing Co., 138 NLRB 716 (1962).
14 Although it might be argued that the 1976 contract between the Re-
spondent and the Chargmg Party renewed itself according to its terms in
the absence of the exchange of written notification, it is apparent that nei-
ther party mtended for the contract to so renew itself. Also, I note from
the brief of counsel for the General Counsel that it is not requested that
an order issue requiring the Respondent to continue to live up to the
terms of that contract, but rather an order is requested 'only requiring the
Respondent to meet with the Union and bargain in good faith with re-
spect to rates of pay, wages, hours of employment, and other terms and
conditions of employment. (Br. G.C. Exh. 9.)