Johnson Sheet Metal, Inc.

National Labor Relations Board - Board Decisions

Nov 19, 1969

179 N.L.R.B. 644 (N.L.R.B. 1969)

644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Johnson Sheet Metal , Inc. and Local No. 29, Sheet
Metal Workers International Association,
AFL-CIO. Case 17-CA-3664
November 19, 1969
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND ZAGORIA
On April 11, 1969, Trial Examiner Marion C.
Ladwig issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices in violation of the National Labor
Relations Act, as amended, and recommending that
it cease and desist therefrom and take certain
affirmative action, as set forth in the Trial
Examiner's Decision. Thereafter, General Counsel
filed exceptions to the Decision and a supporting
argument, which were adopted by the Charging
Party, and the Respondent filed exceptions to the
Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case' to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner, with the following modifications.
We find, in agreement with the Trial Examiner,
that those employees who were on strike on August
16, 1968, when the economic strike against the
Respondent was converted into an unfair labor
practice strike, and who had not been permanently
replaced at that date, are entitled to reinstatement
upon application, discharging if, and as necessary,
persons hired on or after that date. In addition, we
shall order that those strikers who-were on strike on
August 16, and had been permanently replaced
before that date, be offered, upon application,
reinstatement as their former positions become
available, before hiring new employees, in
conformity with the policy laid down in The
Laidlaw Corporation, 171 NLRB No. 175.'
'Member Brown, unlike his colleagues, would find merit in the General
Counsel's contention that under the circumstances here the strikers are
entitled to an offer of reinstatement by the Respondent, rather than being
required to make application therefore, and are entitled to backpay from
September 17, 1968 (for those unreplaced as of the date it became an
unfair labor practice strike). or the date their jobs became available
thereafter (for replaced economic strikers) It is thus apparent, in his view,
that if this Respondent had not refused unlawfully to sign the
multiemployer contract on September 17, the unreplaced strikers would
have returned to work on September 17 when all other, striking employees
of the multiemployer group returned, and the replaced economic strikers
would have applied for reinstatement at that time
We further find,. in agreement with the Trial
Examiner, that the Respondent violated Section
8(a)(5) and (1) of the Act by its untimely, withdrawal
from the multiemployer bargaining without the
consent of the Union after the commencement of
negotiations for a new contract, and by its refusal to
adhere to the new contract thereafter negotiated by
Gilliland, attorney for the employer group, and the
Union. Accordingly, we shall order the Respondent
to remedy its unfair labor practices by giving
retroactive effect to all the terms and conditions of
the September 16, 1968 Hutchinson Contract from
its effective date.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the Respondent, Johnson Sheet
Metal, Inc., Hutchinson, Kansas, its officers, agents,
successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order,
with the following modifications;
1. Delete the period at the end of paragraph 2(a)
and add the following:
"and give retroactive effect thereto from its
effective date."
2. Insert the following as paragraph 2(c), and
reletter present paragraphs (c) and (d) of the
Recommended Order as paragraphs (d) and (e):
"(c) Offer, upon application, to all employees
participating in the strike on August 16, 1968, who
had been permanently replaced before that date,
reinstatement to their former or substantially similar
positions, as such positions become available, before
hiring new employees to fill these positions."
3. Delete the period at the end of the first
indented paragraph of the notice and add the
following:
and give retroactive effect to the terms and
conditions of said agreement from its effective
date.
4. Add, as a third indented paragraph of the
notice the following.
WE WILL offer, upon , application, full
reinstatement to our employees who were on
strike on August 16, 1968, and had been
permanently replaced before then, as their former
or substantially similar positions become
available, and before hiring new employees to fill
these positions.
TRIAL EXAMINER ' S DECISION
STATEMENT OF THE CASE
MARION C LADWIG, Trial Examiner This case wasl
tried at Hutchinson , Kansas, on February 17, 1969,
179 NLRB No. 104
JOHNSON SHEET METAL, INC. 645
pursuant to a charge filed on September 5, 1968,1 by
Local No. 29, Sheet Metal Workers International
Association, AFL-CIO, herein called the Union, and
pursuant to a complaint issued on January 9, 1969. The
primary issue is whether the Respondent, Johnson Sheet
Metal, Inc.,' herein called the Company or Johnson,
illegally refused to bargain by withdrawing from joint
negotiations during a strike, in violation of Section 8(a)(5)
and (1) of the National Labor Relations Act, as amended
Upon the entire record,3 including my observation of
the demeanor of the witnesses, and after due consideration
of the briefs filed by the General Counsel and the
Company, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY AND THE UNION
INVOLVED
The Company, a Kansas corporation, is engaged in
contract sheet metal installation in Hutchinson , Kansas,
where it annually receives materials valued in excess of
$50,000 directly from outside the State. The Company
does not deny, and I find, that it is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act. The
Union is a labor organization within the meaning of
Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Agreement to Negotiate Jointly
Until 1966, Johnson operated as a nonunion contractor
in Hutchinson. About April of that year, the Union (with
headquarters in Wichita) organized all of Johnson's sheet
metal workers. Because of the labor shortage and the loss
of journeymen to union contractors, Johnson recognized
the Union without an election. Through its attorney,
Robert J. Gilliland, Johnson negotiated certain changes in
the Union's Wichita contract (between the Union and the
Sheet Metal Contractors Association of Greater Wichita).
The Johnson agreement was made effective from May I,
1966, until April 30, 1968 (the last 2 years of the 3-year
Wichita contract).
Shortly after the Johnson agreement was signed, the
Union signed a similar agreement with Owston Sheet
Metal, a smaller nonunion contractor in Hutchinson. The
following year, in October 1967, the Union negotiated
with Attorney Gilliland extensions of the Union's
agreements with Stevens, Inc., and Modern, a Division of
Building Industries, Inc., the two other union contractors
in Hutchinson. The agreements were extended to July 1,
1968 (2 months after the expiration date of the Wichita
contract).
In 1968, before negotiations for new agreements in
Hutchinson began, Union Business Representative Ron
Weems conferred with Attorney Gilliland concerning
whether the upcoming negotiations should be conducted
separately or jointly. On March 21 (at a time when
Attorney Gilliland represented only the three larger
contractors, Johnson, Stevens, and Modern),
Representative Weems wrote Gilliland a letter, confirming
Weems' March 15 request by telephone, that Gilliland
'All dates, unless otherwise indicated , are in 1968
'The name of the Respondent was corrected at the trial
'The parties' Stipulation Correcting Transcript , filed March 24, 1969, is
hereby approved , and the transcript is corrected accordingly
"investigate possibilities of negotiating with Stevens, C. E.
Johnson, Owston and Modern at one time." Subsequently,
Owston retained Gilliland to represent it in negotiation.
Gilliland thereafter obtained the signatures of Johnson
and Owston on extension agreements - extending the
Johnson and Owston agreements from April 30 (the
expiration date of the Wichita contract), until July 1 (the
expiration date of the Stevens and Modern agreements).
Representative Weems countersigned these extension
agreements in a meeting with Attorney Gilliland on April
24. Also in that meeting, Gilliland and Weems agreed to
engage in joint negotiations for a Hutchinson contract -
provided the Union would' agree that any contract reached
in the Hutchinson area would not be ratified by the entire
membership of the Wichita local, but by employees living
in the Hutchinson area and normally working for the
Hutchinson contractors. There was no association of sheet
metal contractors in Hutchinson.
Shortly after this April 24 meeting, Attorney Gilliland
and Representative Weems confirmed in writing their
agreement concerning joint negotiations . On April 26,
Gilliland wrote Weems (with a copy to each of the four
union contractors in Hutchinson):
Reference is made to our conference on Wednesday,
April 24, 1968, in which you asked for a letter and I
asked for a letter from you in regard to the
negotiations toward a new contract to commence July
1, 1968.
This is to advise that Johnson Sheet Metal, Inc.,
Modern, Owston Sheet Metal and Stevens, Inc. will
negotiate jointly with a view to signing separate but
uniform contracts with Local No. 29 for a term
commencing July 1, 1968 to replace the existing
contracts each of them have with your local. [Emphasis
supplied.]
On May 8, Representative Weems responded, writing
Gilliland, "Re: Hutchinson Contract Negotiations":
As per your request Ratification of contracts in the
Hutchinson area will be by vote of employees living in
the area and normally working for involved employers.
B Joint Negotiations
In the joint negotiations which ensued, the attorney (or
his partner on two occasions) was the sole representative
for the four Hutchinson contractors. No employer official
attended any of the 8 or 10 negotiation meetings which
were held between May 8 and the July I strike.
At the May 8 meeting, Attorney Gilliland presented to
the Union a joint proposal, entitled "Proposal Submitted
by Johnson, Owston, Modern and Stevens," and stating
that "the employers propose to enter into a contract
which would be the same as the present Modern-Stevens
contract," except for several listed changes. (Emphasis
supplied.) Two of these proposed changes were to make
accommodations for the differences between Johnson's
operations and the others. One was to delete the reference
to "No. 10 U.S. guage" (slightly over 1/8 inch) sheet
metal, "the same as in present Johnson contract" - to
allow for heavier metal (up to 3/16 inch) which the
Johnson shop was equipped to use. The second was to
include "residential supplement provisions" (containing a
lower journeyman wage rate for residential work) "the
same as present Johnson agreement" - to make
Johnson's substantial amount of residential work more
competitive with the work of several nonunion contractors
in Hutchinson. During the negotiations which followed,
the attorney and the union negotiators discussed a third
646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
matter of particular interest to Johnson i e , a provision
for production rates to be paid if Johnson expanded its
operations and produced certain stock items in its shop
In the "Hutchinson contract" which the Union finally
reached with Stevens and Modern on September 16 in
negotiations with Attorney Gilliland, provisions were
included on all three of these matters The reference to
No. 10 U S gauge was not deleted, but a new provision
was negotiated, covering "plastics and other materials"
when used "in lieu of sheet metal." (The Union contended
that this new provision was sufficient to cover Johnson's
use of heavier metal, and that there was no jurisdictional
problem with the iron workers ) In lieu of the residential
supplement, a provision on "Residential Work" was
negotiated, permitting an unlimited number of apprentices
on residential work, to cope with the nonunion
competition. (Before the July I strike, the Union had
agreed to give Johnson such "an unlimited number of
apprentices for residential work " Stevens and Modern
were not doing residential work A third provision was
included, stating that "production wage rates" could be
paid on certain listed items if "manufactured for sale to
the trade" - the production rates to be negotiated.
(Neither Stevens nor Modern produces such stock items
for sale ) As discussed below, Johnson announced its
withdrawal from the joint negotiations on August 16
However Attorney Gilliland, who negotiated these and
other provisions in the September 16 Hutchinson contract,
continued to represent Johnson, and appeared on
Johnson's behalf in the present proceeding, in which
Johnson was charged on September 5 with refusing since
August 16 to bargain with the Union The evidence does
not reveal what, if any, part Johnson took in consulting
with the attorney after August 16 concerning the contents
of these and other provisions in the Hutchinson contract
C The Strike
As previously indicated, the four Hutchinson
agreements were scheduled to expire on July I, A short
time before this, as recited by Johnson in its brief,
"employer Owston advised that he was selling his
company and would no longer be a party to the
negotiations',' On an undisclosed date, Owston sold the
business to one of its three employees The new owner, a
member of the Union, did not retain Attorney Gilliland to
represent him in the joint negotiations Neither Gilliland,
nor any of the three remaining contractors (employing a
total of about 18 union members), objected to Owston's
withdrawal. The joint negotiations continued, but no
agreement was reached.
On July 1, the Union went on strike against Johnson,
Stevens, and Modern. That same morning, the new owner
of Owston signed - without change - the new Wichita
contract (which had been executed in Wichita about the
middle of June, after a 6-week strike), and promised to
work under the Hutchinson contract if one was reached,
in order to avoid being struck. There were still no
objections by Attorney Gilliland, nor by any of the three
larger contractors, to Owston's withdrawal from the joint
negotiations, and no objections to Owston's new owner
signing a separate agreement covering his two sheet metal
workers r
On July 9, the Union wrote Attorney Gilliland a letter,
"Re- Hutchinson Contract Negotiations, Modern,
Johnson and Stevens," stating that the Union wished to
withdraw all concessions previously made in negotiations
and "to revert to Union's original proposal." Gilliland did
not respond, and the strike continued until the middle of
August before either party contacted the other
D Announced Withdrawal from Joint Bargaining
On' August 15, 6 1/2 weeks after the strike began,
Attorney Gilliland sent the Union a telegram, requesting a
meeting the next day "regarding Hutchinson contract
negotiations " On August 16, Gilliland met with the union
representatives and presented to them a letter, advising
that "on behalf of Stevens, Inc , Modern, Inc., and
Johnson Sheet Metal; Inc," all' prior proposals were
withdrawn The letter concluded with a paragraph stating,
"You are further advised that Johnson Sheet Metal, Inc
is no longer a participant in the negotiations "
Attorney Gilliland, who testified on Johnson's behalf
(with the consent of the General Counsel and the Union),
admitted that Union Business Representative Weems
immediately objected to Johnson's withdrawal, stated that
he did not think Johnson could withdraw, and stated that
the Union "could not accept" the withdrawal. Weems
credibly testified that "we objected to Johnson's
withdrawal" and "told them we didn't think he could do
it " On cross=examination by company counsel, Weems
further credibly testified that "in our August 16th'meeting
when we were informed that Johnson was pulling out and
didn't intend to negotiate with us any more," Attorney
Gilliland made the statement "that he did not believe they
[Johnson] were right, that they could not do it, but
nevertheless, their client wanted out regardless." (When
Gilliland was asked on cross-examination if it were not
true that in the meeting on August 16 "you informed Mr
Weems that you believed that the Johnson Company
could not legally withdraw from the negotiations,"
Gilliland gave the somewhat equivocal answer, "No, I
don't think I made such a statement " He did not appear
to have a clear recollection of the conversation, and I
discredit his denials )
E Decision to Operate Nonunion
When describing Johnson's position concerning
bargaining thereafter with the Union, Attorney Gilliland
testified that it "was a big part of their thinking" that
Johnson's 1966-1968 agreement with the Union was a trial
arrangement , for only the 2 years, but "that was not my
thinking." (Gilliland testified that he did think at the time
that he could support a theory that inasmuch as the
Union was not certified, it was,recognized contractually
only for the purpose of that contract.) At another point,
when Gilliland was questioned about Johnson's failure to
bargain separately, he mentioned the fact that "some of
the striking employees had returned " (On July 1, all
seven of Johnson's sheet metal workers were members of
the Union Arne Johnson, a Johnson officer, testified that
one of the striking employees returned to work about
August .1, that another returned about August 15, and
that three new employees were working on,August 16.) 1
also note that Johnson was still a party to the joint
negotiations when Gilliland wrote the first paragraph of
the August 16 letter to the Union, withdrawing all prior
proposals "on behalf of Stevens, Inc, Modern, Inc, and
Johnson Sheet Metal, Inc." (Emphasis supplied.) The
second paragraph, stating that Johnson "is no longer a
participant in the negotiations," was apparently added on
Johnson's instructions.
Upon considering this evidence, Johnson's conduct
thereafter, Attorney Gilliland's difficulty on the stand in
JOHNSON SHEET METAL, INC.
explaining why he failed to answer the Union's offer to
bargain separately with Johnson, and all the
circumstances, I find that at the time Attorney Gilliland
added the withdrawal statement to the August 16 letter,
Johnson had made the decision to return to its previous
nonunion status
The Union's offer to bargain separately with Johnson
was contained in the Union's August 20 letter, in which it
stated, "this Union does not recognize your right to
withdraw from joint negotiations in this fashion."
However the Union, "reserving the right to object" to the
August 16 withdrawal, stated its willingness to bargain
separately, and asked to be advised, "in writing by return
mail the time,-place and date of meeting in the immediate
future." Johnson never responded to this letter
In the meantime, Attorney Gilliland continued to meet
with the Union upon behalf of Stevens and Modern An
agreement was reached on September 16 It was entitled
"Hutchinson Contract," and was between the Union and
"Modern, a Division of Building Industries, Inc and
Stevens, Inc , `hereinafter referred to as the
EMPLOYER," for a contract term from September 16,
1968 through July 1, 1970 It was prepared for signature
by each of the employers separately, but both Stevens and
Modern signed the same copy. Apparently relying on its
refusal-to-bargain charge, the Union did not present the
Hutchinson contract to Johnson for signature. However,
Attorney Gilliland testified that Johnson refused to 'sign it,
as proposed in a settlement agreement on December 18.
Gilliland then offered, through the Board agent, to
bargain separately with the Union (and the offer was
repeated at the trial.) By December, two former strikers
and seven new employees were 'working At the time of
the trial, 5 strikers remained on strike, and a total of 10
employees were working at the Johnson shop. (The
evidence does not disclose whether the new employees
were permanent replacements.)
When asked why he never answered the Union's August
20 letter or contacted the Union in response to the letter,
Attorney Gilliland testified
I don't know Between the date of that exhibit and
the time I received the charge which would be about
September 5 or 6, I can't give any specific reason I
might have been out of town part of the time, I'm not
sure, but from the date the charge was filed, I felt that
we were into a Board matter and then the conversation
with the Board office was September 12, 1 know that,
and from that point on for quite some time I thought
we'll wait until an investigator comes out here, then
we'll be talking with the Board about this matter of
bargaining between Johnson and Local 29 1 can
account for it from that time on
When asked if waiting for the Board agent was the only
reason for not accepting the Union's offer to bargain
separately, Gilliland answered "No, it's the main reason,"
and then testified-
I don't know of any other particular reasons It was
just a state where nothing was going on between the
parties A strike was going on, picketing was going on,
some of the striking, employees had returned too,
anyway, I think . . . In my mind, it was a Board
matter and we were going to be talking to the Board
about it and I'm very sincere Of course, from
September 12 until December is quite a span of time
but I did think all of that time that someone from the
Board office would be out here and we would be talking
about the matter of bargaining between Johnson and
Local 29. I'm sincere about that .... Well, I felt that
647
would start something one way or the other . . Start
a line of communication and there was none at that
time between the parties.
Gilliland appeared to be in error when testifying that
waiting for the Board agent was the main reason for the
4-month delay. If Johnson had been willing for Gilliland
to engage in separate bargaining with the Union, Gilliland
undoubtedly would have so advised the union
representatives, with whom he was bargaining (on behalf
of Stevens and Modern) through September 16 Instead,
Johnson's position at that time (as later revealed) was that
its "trial arrangement" with the Union was over
Under all the circumstances, I find that Johnson was
determined since August 16 to operate without a union I
further find that-Johnson's offers to bargain (made in the
December settlement discussions and at the trial, after it
had succeeded in hiring a full staff of employees) were
made with the realization that as a practical matter,
bargaining then could not affect its nonunion status
F. Concluding Findings
1. Multiemployer bargaining
Johnson contends that the Union in its March 21 letter
merely requested to negotiate "'at one time," that the
evidence clearly shows that the subsequent meetings "were
for the ' convenience" of the Union, and that the
"Meetings held at one time did not constitute `multi-unit
bargaining on a joint basis."' I find, however, that when
Business Representative Weems met on April 24 with
Attorney Gilliland '(who was then representing the four
union contractors in Hutchinson), they reached a decision
which went further than the Union's original request.
As confirmed by Gilliland's April 26 and Weems' May
8 letters, Gilliland and Weems did not agree on April 24
simply to meet at one time to negotiate separate contracts
for the four contractors They extended the Johnson and
Owston agreements until July I (the expiration date of the
Stevens and Modern agreements), and agreed to
"negotiate jointly" with a view of signing separate "but
uniform" contracts, which would be ratified by only the
Hutchinson employees. The attorney was to be the sole
'representative of the contractors in the negotiations At
the first bargaining session on May 8, he-submitted, on
behalf of the four contractors, a joint proposal to enter
into "a contract," combining features of the previous
separate agreements, with other changes. Thereafter, the
attorney and the union representatives sought agreement
on uniform provisions which would accommodate the
needs of the different operations. Then when the smallest
of the four contractors `went out of business, and the new
owner failed to retain the attorney (and dealt separately
with the Union without objection), the • three larger
contractors continued to combine their bargaining
strength, in defense of the economic strike conducted by
the Union against them The Union continued to deal
jointly with Johnson; Stevens, and Modern when it
corresponded with Attorney Gilliland on July 9, and
Gilliland acted on behalf of all three of them when he
wrote the first paragraph of the August 16 letter to the
Union. A month later; after several additional bargaining
sessions, Gilliland reached agreement with the Union on
the September 16 "Hutchinson Contract" ' - that
contained provisions which did not concern the operations
of Stevens and Modern (who signed the "uniform"
contract), but which had been sought by Gilliland, before
Johnson's withdrawal from the joint negotiations,
648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
particularly to accommodate Johnson's needs
The General Counsel contends that Johnson "definitely
was a member of a multiemployer group committed to
joint negotiations." Johnson, on the other hand, quoting
language used by the dissent in Kroger Co , 148 NLRB
569,.577 (1964), that the "group bargaining as took place
was for the convenience of the employers and unions
involved, and was not undertaken with the intention. of
establishing a multiemployer unit," contends that that was
precisely the bargaining situation here
Whether or not there was a multiemployer bargaining
relationship depends on the intention of the parties As
stated by the majority in the Kroger Co case, 148 NLRB
at 573, "What is essential is that the employer member
has indicated from the outset an intention to be bound in
collective bargaining by group rather than by individual
action." Similarly stated in Electric Theatre, etc , 156
NLRB 1351, 1352 (1966), "it is settled that to establish a
multiemployer unit, the Board requires a controlling
history of collective bargaining on such basis, or an
unequivocal agreement of the parties to bind themselves to
a course of group bargaining in the future." (Emphasis
supplied ) Here, the contractors authorized the same
attorney to be their representative in group bargaining
There was therefore no question - as there would have
been if a separate employer association had been
authorized to do the bargaining - whether the
representatives of other employers had the authorization
to bind a particular employer Johnson, as well as each of
the other contractors, was represented in the group
bargaining by its own attorney, whose approval was
necessary before agreement could be reached on a uniform
contract , for Hutchinson. I find, that when this sole
representative of the contractors agreed in writing that the
contractors would "negotiate jointly" with the Union,
with a view of signing "separate but uniform contracts,"
upon the Union's agreement to have the new contract
ratified by Hutchinson members only, the parties reached
an unequivocal agreement to be bound by group
bargaining, and Johnson,thereby indicated from the outset
of bargaining an intention to be bound in collective
bargaining by group rather than by individual action. I
also find that this intent and agreement to establish a
multiemployer bargaining relationship were demonstrated
by the joint actions thereafter taken by the contractors
and the Union in negotiations and the strike, and by
Attorney Gilliland's statement to the union representatives
at the time of Johnson's announced withdrawal, that
Gilliland did not think Johnson had the right to withdraw
but that the client "wanted out regardless " I further find
that the sale of Owston to one of its three employees, the
failure of the new owner to join in the multiemployer
bargaining, and the new owner's separate dealing with the
Union - without any objection on the part of Attorney
Gilliland, Johnson, Stevens, or Modern - did not affect
the multiemployer bargaining between the Union and the
three, larger contractors Anderson Lithograph Co., 124
NLRB 920 (1959), enfd. sub nom N.L R.B v. Jeffries
Banknote Co., 281 F 2d 893 (C.A. 9, 1960); Sewanee
Coal Operators' Assn , 152 NLRB 663, 670 (1965)
2. Untimely Withdrawal
Johnson's attempt on August 16 to withdraw from the
multiemployer bargaining occurred during the strike,
months after the prestrike bargaining began, and on the
first day of the resumed bargaining which resulted in an
agreement This attempted withdrawal after negotiations
had begun and before agreement had been reached - over
the strong, repeated objections by the Union - was
clearly untimely and ineffectual Sheridan Creations, Inc ,
148 NLRB 1503, 1505 (1964), enfd. 357 F 2d 245 (2 Cir
1966), cert denied 385 U S 1001 (1967) For several
months, Johnson had received the benefits of
multiemployer bargaining The April 24 agreements to
extend Johnson's separate contract from April 30 to July
1, and to engage in joint negotiations for a Hutchinson
contract, had prevented a separate strike against Johnson
at the time the Union struck the Wichita contractors
about May 1 Also, Johnson benefited from the combined
efforts, and increased bargaining power, of the Hutchinson
contractors (a) in obtaining meaningful bargaining apart
from the Wichita negotiations, (b) in eliminating any
competitive disadvantage among themselves from
dissimilar separate agreements in Hutchinson, and (c) in
seeking a Hutchinson contract on the best possible terms
"One may not, seek the benefits of joint bargaining
without risking exposure " Retail Clerks Union (Kroger
Co) v. NLRB , 330 F.2d 210, 215 (D C. Cir. 1964).
,Johnson contends in its brief that the Union acquiesced
in the withdrawal when the Union offered on August 20 to
bargain separately, citing C & M Construction Co., 147
NLRB 843, 845 (1964) However, in that case, the union
"interposed no objection but simply asked for written
confirmation of the withdrawal." Here, the Union
objected orally and in writing, and when making the offer
to bargain separately, specifically reserved the right to
object to the August 16 withdrawal. Furthermore, about 2
weeks later when Johnson had failed to respond to the
offer, the Union filed the charge herein, alleging a refusal
to bargain since August 16. There clearly was no
acquiescence in the attempted withdrawal, and Johnson
continues to refuse to sign the September 16 Hutchinson
contract (contending in its brief that the only bargaining
order should be for separate bargaining)
Accordingly, I find that Johnson has refused to bargain
since August 16 by its attempted untimely withdrawal
from the multiemployer bargaining, and by its refusal to
sign the Hutchinson agreement, in violation of Section
8(a)(5) and (1) of the Act. I also find that Johnson's
refusal since August 16 to continue in the multiemployer
bargaining prolonged the economic strike against Johnson
and converted it into an unfair labor practice strike In
view of these findings, I do not deem it necessary to rule
on whether Johnson also refused to bargain separately
with the Union as alleged in the complaint
CONCLUSIONS OF LAW
By attempting untimely to withdraw from joint
negotiations on August 16, by refusing thereafter to
continue. in the multiemployer bargaining, and by refusing
to sign the September 16 Hutchinson contract, the
Company engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(5) and (1)
and Section 2(6) and (7) of the Act
THE REMEDY
Having found that the Respondent has committed
certain unfair labor practices, I shall recommend that it
be ordered to cease and desist from such conduct and
from any like or related invasion of its employees' Section
7 rights, and to take certain affirmative action, which I
find necessary to remedy and to remove the effect of the
unfair labor practices and to effectuate the policies of the
JOHNSON SHEET METAL, INC.
Act.
The economic strike against the Respondent having
been converted into an unfair labor practice strike on
August 16, 1968, 1 shall recommend that the Respondent
be ordered, on application, to .reinstate employees who
were then engaged in the strike and who had not been
permanently replaced before that date, to positions they
held at the time they went on strike, without prejudice to
their seniority and other rights and privileges, discharging
if, and as, necessary persons hired on and after that date,
and to make the applicants whole for any loss of pay
suffered by reason of its refusal, if any, to reinstate them,
by payment to each of them a sum of money equal to that
which they normally would have earned less their net
earnings, during the period from 5 days after the date on
which they apply or have applied for reinstatement to the
date of Respondent's offer of reinstatement Such backpay
shall be computed in the manner set forth in F W
Woolworth Company, 90 NLRB 289, plus interest at 6
percent per annum as prescribed in Isis Plumbing &
Heating Co, 138 NLRB 716
Accordingly, on the basis of the foregoing findings and
conclusions, and on the entire record, I recommend,
pursuant to Section 10(c) of the Act, issuance of the
following.
ORDER
Respondent , Johnson Sheet Metal, Inc , its officers,
agents, successors , and assigns, shall
I Cease and desist from
(a) Refusing to sign the September 16, 1968 through
July 1, 1970 "Hutchinson Contract" between Hutchinson,
Kansas, sheet metal contractors and Local No. 29, Sheet
Metal Workers International Association , AFL-CIO
(b) In any like or related manner interfering with,
restraining , or coercing employees in the exercise of their
rights under Section 7 of the Act.
2 Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Forthwith sign the September 16, 1968, Hutchinson
Contract
(b) Offer, upon application , to all employees
participating in the strike on August 16, 1968; and who
had not been permanently replaced, reinstatement to their
former or substantially similar positions , without prejudice
to their seniority and other , rights and privileges, and
make the applicants whole for any loss of pay they may
have suffered by reason of its refusal, if any, to reinstate
them by payment to each of them a sum of money equal
to that which they normally would have earned less their
net earnings , during the period from 5 days after the date
of which they apply or have applied for reinstatement to
the date of Respondent ' s offer of reinstatement, in the
manner set forth in the section of the Trial Examiner's
Decision entitled "The Remedy "
(c) Notify the above-mentioned employees if presently
serving in the Armed Forces of the United States of their
right to full reinstatement upon application in accordance
with the Selective Service Act and Universal Military
Training and Service Act , as amended , after discharge
from the Armed Forces.
(d) Preserve and, upon request , make available to the
Board or its agents, for examination and copying, all
payroll records , social security payment records,
timecards , personnel records and reports, and all records
necessary to analyze the amount of backpay due under the
terms of this Order.
649
(e) Post at its shop in Hutchinson, Kansas, copies of
the attached notice marked "Appendix "d Copies of the
notice, on foims provided by the Regional Director for
Region 17, after being duly signed by an authorized
representative of the Respondent, shall be posted by the
Respondent immediately' upon receipt thereof, and be
maintained for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by the Respondent to ensure that the notices are
not altered, defaced, or covered by any other material
(f) Notify the Regional Director for Region 17, in
writing, within 20 days from the date of the receipt of this
Decision, what steps the Respondent has taken to comply
herewith 5
IT IS ALSO ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not specifically
found herein
In the event that this Recommended Order is adopted by the Board, the
words "This Notice is Posted by Order" shall be substituted for the words
"Pursuant to the Recommended Order of a Trial Examiner" in the notice
In the further event that the Board's Order is'enforced by a decree of a
United States Court of Appeals, there shall be added after the words "An
Agency of the United States Government" the words "as Enforced by the
United States Court of Appeals "
'In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 17, in writing, within 10 days from the date of this Order, what
steps the Respondent has taken to comply herewith
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended 'Order of a Trial
Examiner of the National Labor Relations Board, as
amended, an Agency of the United States Government
WE WILL forthwith sign the September 16, 1968
Hutchinson Contract which was negotiated by our
attorney in multiemployer bargaining with Sheet Metal
Workers Local 29
WE WILL offer, upon application, full reinstatement
to our employees who were on strike August 16, 1968,
and not permanently replaced before then, and will give
backpay to any of . them unlawfully denied
reinstatement from 5 days after their application to
return to work.
Dated By
JOHNSON SHEET METAL,
INC
(Employer)
(Representative) (Title)
Note If any person mentioned above is presently
serving in the Armed Forces, of the United States we will
notify him that he will be reemployed if he applies after
his discharge
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice may be directed to
the Board's Regional Office, 610 Federal Building, 601 E.
12th St , Kansas City, Missouri 64106, Telephone
816-374-5282