Siebler Heating & Air Conditioning, Inc., et al.

National Labor Relations Board - Board DecisionsAug 14, 1975

219 N.L.R.B. 1124 (N.L.R.B. 1975)

1124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Siebler Heating & Air Conditioning, Inc., et al.;' Sle- bier Heating & Air Conditioning, Inc., et al.;2 Sle- bieer Heating & Air Conditioning, Inc.; Frazier- Schurkamp, Inc.; and Nelson Heating & Air Condi- tioning Co. and Sheet Metal Workers ' International Association, Local No. 3. Cases 17-CA-6104, 17- CA-6130, 17-CA-6145, 17-CA-6156, and 17- CA-6194 August 14, 1975 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND PENELLO On March 26, 1975, Administrative Law Judge James S . Jenson issued the attached Decision in this proceeding . Thereafter, Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three -member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings , findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondents , Siebler Heating & Air Conditioning , Inc.; Interstate Sheet Metal, Inc.; Donovan Brothers , Inc.; Schneiderwind Heating & Air Conditioning Co.; Walt Coziahr Heating & Air Conditioning, Inc.; Fisher Heating & Air Condition- ing Co .; Nelson Heating & Air Conditioning Co.; Roberts Sheet Metal Co ., and Frazier-Schurkamp, Inc.; their officers , agents, successors , and assigns, shall take the action set forth in the said recommend- ed Order. ' Includes, in addition to Siebler, Interstate Sheet Metal , Inc.; Donovan Brothers , Inc.; Schneiderwind Heating & Air Conditioning Co.; Walt Co- ziahr Heating & Air Conditioning, Inc.; Fisher Heating & Air Conditioning Co.; Nelson Heating & Air Conditioning Co.; and Roberts Sheet Metal Co. 2 Includes Frazier-Schurkamp, Inc., in addition to those eight companies listed in fn. 1. r Inasmuch as Respondent Frazier-Schurkamp timely withdrew from SMACNA, it did not violate Sec. 8 (axl) and (5) of the Act in that respect, nor was it alleged or found. Nevertheless, we agree with the Administrative Law Judge that Frazier-Schurkamp did violate Sec . 8(a)(l) and (3) of the Act by threatening a lockout of, and locking out, its employees in order to pressure the Union into bargaining with Respondent in a multiemployer unit for which the Union had not agreed to bargain . In this respect Frazier- Schurkamp authorized a newly formed multiemployer association , Metro- politan Residential Contractors Association, to bargain on its behalf and in a letter addressed to its employees it threatened a lockout unless the Union met and bargained with Metropolitan by July 1, 1974. We also agree with the Administrative Law Judge that Respondents Sie- bler, Nelson, and Frazier-Schurkamp's change in the application of the resi- dential wage rate without first bargaining with the Union violated Sec. 8(a)(5). DECISION STATEMENT OF THE CASE JAMES S . JENSON, Administrative Law Judge: These cases were tried before me in Omaha , Nebraska, on October 23 and 24, 1974. The complaints in 17-CA-6104 and 17- CA-6130 were issued on July 26, 1974,' and consolidated for hearing on July 29. The complaint in 17-CA-6104 al- leges, in substance , that Siebler , Interstate , Donovan, Schneiderwind , Coziahr, Fisher, Nelson, and Roberts un- timely withdrew from multiemployer bargaining , and sub- sequently refused to sign the collective-bargaining agree- ment reached between Sheet Metal and Air Conditioning Contractors' National Association of Omaha-Council Bluffs, herein called SMACNA, the multiemployer associ- ation , and the Union in violation of Section 8(a)(1) and (5) of the Act. The complaint in 17-CA-6130 alleges , in sub- stance, that following their untimely withdrawal from mul- tiemployer bargaining , the eight Respondents in Case 17- CA-6104, together with Frazier-Schurkamp2 formed a new multiemployer association, Metropolitan Residential Contractors ' association, herein called Metropolitan, and threatened, and thereafter engaged in a lockout of their employees in order to force the Union to bargain collec- tively with Metropolitan, all in violation of Section 8(a)(1) and (3) of the Act. The complaints in Case 17 -CA-6145, 17-CA-6156 and 17-CA-6194 were issued on August 23, September 23, and September 24, respectively , and allege respectively that Siebler, Frazier-Schurkamp , and Nelson each made unilateral changes in wage scales and job classi- fications of employees represented by the Union , in viola- tion of Section 8(axl) and (5) of the Act . Respondents admit that , on or about April 2, negotiations commenced on an agreement to replace the collective-bargaining agree- ment expiring on June 30, 1974 ; that, on April 23 and 30, they notified the Union they were no longer represented by SMACNA for the purposes of collective bargaining; and that they had formed Metropolitan through which they would bargain with the Union . Respondents further admit that on June 19 they each notified the Union that, unless it recognized and bargained with Metropolitan by July 1, ' All dates herein are 1974, unless otherwise stated. 2 The Employers herein are respectively called Siebler , Interstate, Dono- van, Schneiderwind , Coziahr, Fisher, Nelson, Roberts, and Frazier-Schur- kamp, and collectively called Respondents. Notice with respect to Siebler, Interstate , Coziahr, Fisher, Nelson, and Roberts was given the Union on April 23 ; notice with respect to Schneider- wind and Donovan was given on April 30. Frazier-Schurkamp notified the Union on April 23 that it was willing to join the other Respondents in negotiaions. 219 NLRB No. 180 SIEBLER HEATING & AIR CONDITIONING, INC. they would engage in a lockout of their employees. They contend the lockout was lawful since the Union refused to bargain with Metropolitan . Respondents contend their withdrawals from SMACNA were "timely and effective for the reason that it was made at the time when it became apparent those in control of SMACNA had no intention to fairly and properly represent the Respondents , and that such conflict of interest and the malicious purpose of those controlling SMACNA was sufficient to constitute an 'un- usual circumstance ' justifying withdrawal." Nelson , Frazi- er-Schurkamp , and Siebler , each contends that it was not obligated to obtain the approval of the Union for any changes in wage scales and job classifications since the Union had refused to meet and bargain with them either individually or through Metropolitan. All parties were given full opportunity to appear, to in- troduce evidence , examine and cross-examine witnesses, to argue orally, and to file briefs . Briefs were filed by the General Counsel , Respondents, and the Union and have been carefully considered. Upon the entire record in the case ,4 and from my obser- vation of the demeanor of the witnesses , I make the follow- ing: FINDINGS OF FACT 1. JURISDICTION Each of the Respondents is engaged in the heating, air conditioning, and sheet metal business , and, with the ex- ception of Frazier-Schurkamp , has been a participating employer-member of SMACNA, a multiemployer associa- tion which exists , in part, for the purpose of representing its employer-members in collective bargaining on an associa- tionwide basis . Each of the Respondents annually purchas- es materials and supplies valued in excess of $50 ,000 direct- ly and/or indirectly from suppliers located outside the respective States in which their respective principal places of business are located . Upon these facts and the admis- sions of the Respondents , it is found that , at all times mate- rial herein , SMACNA and each Respondent has been an employer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED Sheet Metal Workers' International Association, Local No. 3, is a labor organization within the meaning of Sec- tion 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Each of the Respondents is engaged in the heating, air conditioning , and sheet metal business in the Omaha- Council Bluffs area . For a number of years prior to 1973, each of the Respondents has been represented in collective 4 The General Counsel's motion to correct I. 12, p. 208 , of the transcript to read $9 . 1 I" is granted. 1125 bargaining with the Union by SMACNA. In 1973, Frazier- Schurkamp withdrew from SMACNA and executed a con- tract on an individual employer basis. All other Respon- dents continued as members of SMACNA and authorized it to bargain on their behalf on a multiemployer basis. The 1972-73 contract, to which all Respondents were a party, was effective from July 1, 1972, to June 30, 1973, and pro- vided, inter alia, for a split wage rate for journeymen when they performed residential work.5 The residential work provision was excluded from the 1973-74 agreement upon the Union's assurance that it would make a study of the residential situation in the Omaha-Council Bluffs area and make a proposal which would make SMACNA members more competitive with nonunion shops in the area per- forming residential work.6 Thereafter, Don Lahr, an Inter- national representative of the Union, went to Omaha to make the study and draft a new residential addendum. He met with SMACNA representatives, including Donald Sie- bler, president of Respondent Siebler. After discussing the problem at length, Lahr stated he would meet with the Union's executive committee and return with a proposal. On February 12, union representatives met with represen- tatives of SMACNA, including Don Siebler, and presented their proposal. It was explained by the Union that the pro- posal, entitled "Residential Addendum," provided for a new "lower rate residential installer" classification that was to be paid a minimum of 75 percent of the journeyman rate; that employees in the new classification were to be obtained from the Union's hiring hall; and that the Union contemplated securing employees to fill the new job classi- fication from nonunion shops in the area. It was further pointed out the employer would have the right to reject anyone referred as not qualified; that neither journeymen nor apprentices would suffer a reduction in wages or bene- fits or be replaced by a "lower rate residential installer"; and that, in the event of a layoff, no "lower rate residential installers" would be hired until after both journeymen and apprentices shall have had an opportunity to be rehired in the same classification and rate of pay as before the layoff. The employer representatives agreed to take the proposal back to the membership. On February 14, a second meeting was held between the parties. The employer representatives included Siebler and Richard Schurkamp of Respondent Frazier-Schurkamp. Schurkamp, on behalf of the employers, proposed two changes to which the Union agreed. The employer repre- sentatives then agreed to take the proposal back to the SMACNA membership. At the end of that meeting, Schur- kamp informed a union representative "that Frazier-Schur- kamp could agree with that addendum, that they could accept it." On February 18, the signatory contractor-mem- bers of SMACNA met, "a vote was taken and unanimous approval was given to the Residential Addendum." 7 The S Journeymen received approximately 96 percent of journeymen scale when performing residential work , while apprentices continued to receive the apprentice scale on both residential and commercial work . It appears that residential work included work on single family dwellings, including apartments and condominiums. e The 1973-74 agreement was signed August 20, 1973, effective July 1, 1973, to July 30, 1974 7 Don Siebler made the motion to approve the addendum . Representa- Continued 1126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union was notified on February 19. The residential adden- dum states that it "shall become effective on the 1st day of April 1974, and remain in force and effect until the 31st day of March 1977...." Siebler and Roberts signed cop- ies of the addendum on April 1 and 5, respectively .8 B. Withdrawal from Established Multiemployer Bargaining The 1973-74 collective-bargaining contract was effective until June 30, and from year to year thereafter unless re- opened at least 90 days prior to the expiration date. Ac- cordingly, on March 22, the Union notified SMACNA, its members and the independent contractors with whom it had agreements, that it wished "to renegotiate all Articles, Sections, Sub-Sections and attached Addendums contained in the present agreement which expires June 30, 1974." [Emphasis supplied.? By letter dated March 26, SMACNA notified the Union that its membership agreed "to the re- opening" and proposed April 2 as the first meeting date. By letter dated March 29, the Union agreed to meet on April 2, "to exchange proposals and agree on ground rules for upcoming negotiations." The parties held eight negotia- tion meetings , on April 2, 9, 16, and 23, and May 1, 3, 7, and 14.10 SMACNA's negotiating committee during the first three meetings consisted of Hooker, Siebler, Olson, and Furey, the latter two being officials of two other em- ployer-members of SMACNA. At the April 2 meeting, the parties agreed on the ground rules and exchanged propos- als. The Union, noting that SMACNA was proposing to change the residential addendum, took the position that they had already reached agreement and that the Union was not willing to change it.l t Between the April 2 and 9 meetings, Hooker prepared the "black book" which con- sisted of objectives the employers hoped to achieve during negotiations. One of those objectives was to negotiate a new residential addendum which would include as residen- tial work, work on condominiums and apartments. Anoth- er objective was a service addendum permitting service work at 75 percent of journeymen scale . Neither item was discussed during the April 9 negotiating meeting. Follow- ing that meeting, the SMACNA labor committee went to tives of Schneiderwind , Donovan , Coziahr, and Frazier-Schurkamp were also present. t while SMACNA was authorized to bargain on behalf of its employer- members, it was customary for the employer -members to attach their signa- tures to contracts. 9 Art. XIII, Sec. 1, provides in part that "in the event such notice is served, this agreement shall continue in force and effect until conferences relating thereto have been terminated by either party." 10 Prior to both the reopening letter and to his signing the new residential addendum , Siebler discussed with Schurkamp whether the new residential addendum was workable . Siebler testified that he called Hooker, SMACNA's executive director, and another member of the negotiating committee , and determined that it was their opinion the new residential addendum was open for negotiation . He then requested that he be placed on SMACNA's negotiating committee. 11 As noted, infra agreement had been reached in February on the resi- dential addendum providing for an effective date of April 1, 1974, until March 31, 1977, and Siebler had signed the addendum on April 1, the day prior to the first negotiating meeting . Bernard Preis , the Union's business manager, testified that the residential addendum had been negotiated early in the hopes that a fight could be avoided during the regular negotiations and to enable the employers to use the new residential installer wage scale in bidding for work in the forthcoming building season. dinner together. Siebler's testimony regarding the dinner conversation follows: A. I can recall at that meeting, I said that I would just as soon on June 30, and of course I am a layman, not a lawyer, so I may have been in error when I said this, but I said, on June 30, the termination of the contract, I would just as soon terminate the agreement and then the commercial contractors would sign their contract and the residential contractors would be off the hook and negotiate their own contract. And we had quite a healthy discussion about that. Q. Who entered into that discussion? A. Mr. Olson and I, primarily. Q. And what do you recall Mr. Olson saying in par- ticular, if anything? A. He didn't agree with me. He thought we ought to stay united, and I said "I can't see where we are going to solve anything together." And he wasn't sure we could but he wasn't sure we couldn't, either. Q. Did he make any particular statement that you recall with reference to the position of the organiza- tion? A. He made a statement to the fact that he was going to have to let the majority rule, whether or not it was for the good of the whole industry or not. That, necessarily, the opinion of the labor committee wouldn't be taken to the general membership as the opinion of the labor committee unless it was unani- mous in the labor committee. In other words, a major- ity vote in the labor committee would not be presented to the general membership as an opinion. On April 10, at a luncheon meeting of some of the SMACNA members regarding "the air conditioning code," the subject of negotiations was brought up.12 After the others had left, the two Olsons, Hooker, and Siebler dis- cussed the prior night's negotiations, Siebler testified that "... Mr. Hooker posed the question to Mr. Milt Olson, what would you do to settle the contract now, and he said, I would give them 85 cents an hour now and just leave the contract as is and forget anything else. And, Don [Olson] said amen , or something to that effect, that he would go along with that. At that point, it appeared to me that our Residential Addendum and everything else was down the drain . . . if that was the attitude of the large commercial contractor, I felt the Residential Addendum and other things that were important in the contract were not going to get negotiated." On an undisclosed date after April 10, Siebler informed Hooker and Don Olson that he was going to call an unoffi- cial meeting of the contractors "and tell them my story, what I felt." Olson suggested they hold an "official meet- ing" instead and explain the negotiations to the member- ship. Accordingly, a meeting for that purpose was sched- uled for April 22. In the meantime, Siebler attended the April 16 negotiating meeting as a member of the 12 Precisely who was present is not clear from the testimony. It appears, however, that Mr. Burbndge, one of the attorneys representing the Respon- dents, Furey, the chairman of the SMACNA negotiating committee, Milt and Don Olson of Olson Bros., Inc., Hooker, Don Siebler, and possibly some others attended. SIEBLER HEATING & AIR CONDITIONING, INC. SMACNA negotiating committee . Neither the residential nor service addenda were discussed. There was a heavy turnout for the April 22 meeting of the SMACNA membership . Siebler presented , and Dick Schurkamp of Frazier-Schurkamp seconded, the following motion: That the Association adopt the following resolution which shall be binding on the Association at all times hereafter and which shall hereafter be irrevocable and not subject to change or amendment except by majori- ty vote of all signatory members of the Association. At all times it should be the bargaining position of the Association through the Labor Committee that no col- lective bargaining agreement shall be agreed to or signed with Local #3 of the SMWIA which does not contain the following propositions without change or substitution . The following propositions are: Residential Addendum: 1. Delete all reference to the January 1974 Mokan Report and 2. Include wording that would make the addendum cover con- dominiums and apartments. Service Addendum: That 75% of journeymen wages be paid on all service work. Following "extensive discussion," a vote was taken. There were 4 votes in favor , and 11 against , the motion.13 The minutes of the meeting disclose that "a motion was then made by Leonard Lewis and seconded by Milton Olson that the Negotiating Committee go on record to make ev- ery effort to secure a workable Residential Addendum. Motion carried." On the following morning , Siebler called Soren Jensen, one of the Respondent 's counsel, and " . . . various people that I talked to in February and March about the Residen- tial Addendum , and asked them if they . . . wanted to take some action on behalf of that Residential Addendum." He testified, "Most of them said yes, so from there we decided to do what we did , which was withdraw from the associa- tion . . . and hopefully negotiate a contract of our own." 14 At the April 23 negotiating meeting , Union Representa- tive Preis was handed the following letter: This is to advise you that the following employers formerly represented for collective bargaining with the Union by Sheet Metal and Air Conditioning Contrac- tors National Association-Omaha-Co. Bluffs, Inc., no longer are represented by the aforesaid association for collective bargaining purposes: Robert's Sheet Metal Siebler Heating & Air Conditioning Nelson Heating & Air Conditioning Co. Walt Coziahr Heating & Air Conditioning, Inc. Interstate Sheet Metal, Inc. Fisher Heating & Air Conditioning The undersigned is authorized to take this action on 13 Three of the four votes in favor of the motion were by Respondents Coziahr , Siebler, and Frazier-Schurkamp . One Respondent , Donovan, vot- ed against the motion . Five of the Respondents were not in attendance. Si .bier testified that he would not have resigned from SMACNA if the membership had adopted his motion at the April 22 meeting. 1127 behalf of these employers and to represent them in all future negotiations with your Union . All further con- tact or correspondence in this regard should be direct- ed to the undersigned or, in his absence , to George C. Rozmarin. The decision to terminate the relationship with the Association was made because of a failure on the part of the Association to provide fair representation to the aforesaid employers. The above-mentioned employers will continue to observe the provisions of the contract now in effect between your Union and SMACCNA, subject to any modifications which might be agreed upon or pro- posed at a subsequent negotiation meeting between these employers and your Union. In addition , we are authorized to advise you that Frazier-Schurkamp Company is willing to associate with these employers and will be present and repre- sented at a meeting between these employers and your Union when such a meeting can be arranged. We would suggest that a meeting between the above-mentioned employers and your Union be ar- ranged as quickly as possible , and we would be ready to meet with you in the late afternoon or evening of May I or May 3 . For a meeting place we would pro- pose the law offices of Swan, May, Smith & Ander- sen, 3535 Harney Street , if this meets with your ap- proval. Very truly yours, Soren S. Jensen Preis responded that Roberts, Siebler, Nelson, Coziahr, In- terstate , and Fisher were a part of the multiemployer unit, and that the Union wanted to proceed with the negotia- tions . On April 25, Preis received the following letter from Mr. Burbridge, another attorney representing Respon- dents: You have previously received a letter dated April 23, 1974, expressing the willingness of Frazier-Schur- kamp , Inc. to be a member of a bargaining group to- gether with Robert's Sheet Metal , Siebler Heating & Air Conditioning, Nelson Heating & Air Conditioning Co., Walt Coziahr Heating & Air Conditioning, Inc., Interstate Sheet Metal, Inc., and Fisher Heating & Air Conditioning. This letter will serve as confirmation of the fact that Frazier-Schurkamp , Inc. will not be bound by any agreement negotiated by SMACNA-Omaha-Council Bluffs , Inc. and will be happy to make arrangements for direct meetings with you with regard to negotiation of the independent contract either through the group outlined in the letter of April 23, 1974 or indepen- dently. On April 30, Jensen sent the following telegram to the Union: PLEASE BE ADVISED THAT SCHNEIDERWIND HEATING AND SHEET METAL AND DONOVAN BROTHERS HEATING AND COOL- ING HAVE WITHDRAWN FROM SMACNA FOR PURPOSES OF COR- RECTIVE BARGANING [SIC] AND HAVE JOINED WITH THE EM- PLOYERS PERFORMING RESIDENTIAL WORK LISTED IN OUR C* 1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD LETTER OF APRIL 23 AND WILL BARGAIN WITH YOUR ORGANI- ZATION UNDER THE TERMS SET FORTH IN THAT LETTER SOREN S JENZEN FOR SCHNEIDERWIND HEATING AND SHEET METAL AND DONOVAN BROTHERS HEATING AND COOLING Failing to receive a response to the earlier letter, on May 3, Attorney Rozmarin wrote Union Attorney Weinberg to the effect that the Respondents were reaffirming the neces- sity to withdraw from SMACNA and offering to negotiate with the Union as a separate group on those points left unsettled as of April 22, at a time and place mutually con- venient. On May 9, Preis wrote Jensen to the effect that Roberts, Siebler, Nelson, Coziahr, Schneiderwind, and Donovan had signed powers of attorney authorizing SMACNA to bargain on their behalf, and that Interstate and Fisher had been represented in negotiations by SMACNA, and that none of the eight employers had made a timely withdrawal from the association, and as a consequence, they were bound by the negotiations and any resulting agreements, and that the Union " . . . will only negotiate and attempt to consummate an agreement with the contractors repre- sentative which is SMACNA." SMACNA and the Union reached final agreement on May 14, on a collective-bargaining agreement effective July 1, 1974, through June 30, 1977. On May 23, Frazier- Schurkamp sent the Union a telegram advising that it and the residential contractors formerly represented by SMACNA were now represented by Metropolitan and that the Union should contact Jensen, as attorney for Metro- politan , to arrange a meeting . On June 3, Preis sent each of the Respondents a letter stating that an agreement had been reached between SMACNA and the Union, and that since they had not made timely withdrawal from associa- tion bargaining, the Union considered them bound by the new agreement . Copies of the new contract were enclosed for signature, with the admonition that failure to sign with- in a week after receipt would result in the Union taking the position that they had violated the Act. C. The Lockout On June 19, the following document was sent to the Union and each employee employed by the respective Re- spondents: To: Local No. 3, Sheet Metal Workers' International Association and Members of the Union Almost seventy days prior to the expiration of the present collective bargaining agreement, the under- signed eight employers advised SMACNA and Local No. 3 that they no longer would be represented by SMACNA for collective bargaining purposes because of problems involving conflicts of interest and misrep- resentation which existed in the SMACNA organiza- tion. The new group offered to meet with Local No. 3 in an attempt to work out a new agreement . It is usual- ly considered that sixty days is sufficient time for ne- gotiation of a new contract. To date, Local No. 3 has refused to respect its bar- gaining obligation and has refused even to meet in a preliminary way with the representatives of the Metro- politan Residential Contractors' Association. If we do not have the opportunity to meet and dis- cuss our mutual problems, the only result is going to be confrontation and the likelihood of work stoppag- es, expensive lawsuits and polarization of the positions of both parties. Most members of the Union are famil- iar with the problems of protected and expensive liti- gation as a result of the recently concluded lawsuit involving the pension. It is really a very simple matter . . . Local No. 3 should agree to meet with the representatives of the Metropolitan Residential Contractors' Association and bargain in good faith for the purpose of coming up with a new agreement. If the Union will agree to do this, all of the litigation, the unfair labor practice charges, and all of these problems, expenses and de- lays will be eliminated. Also, we've heard the statement made by employees in some of the shops that if there is no contract, there will be no work; or unless the contract is agreed to in full, only commercial work will be done by those who are members of the Union. The problem here is that the employers' group, which has been recently formed, must stick together and cannot allow any whipsawing by the Union or by SMACNA. We cannot afford the uncertainty caused by individual work stoppages. All this leads us to this unfortunate conclusion. Al- though there are now pending litigation and unfair labor practice charges before the National Labor Re- lations Board, these avenues do not provide real and lasting solution to the problems we now have. This solution will come only from good faith negotiations at the bargaining table. In most situations, it is the Union who is complain- ing about refusal to meet or lack of good faith in nego- tiations. Here the Union refuses to meet with the em- ployers' association. Therefore, this is to advise you that unless Local No. 3 agrees to recognize, meet with, and bargain with repre- sentatives of the Metropolitan Residential Contractors' Association by July 1, 1974, effective on that date, and continuing until the Union agrees to meet with the repre- sentatives of the Association, there will be no work avail- able for members of the bargaining unit. Emergency work and service calls will be handled by supervisory and management personnel. If the Union agrees to meet with representatives of the Association, it would be most likely that members of the Association would agree to make any increases retroactive and effective to July 1, 1974. We have not gone into all the causes and reasons for the position that we are taking here. Let it be said, however, that we are reluctant to take this step, but believe that it is the only reasonable solution at this time. If the Union does not agree to meet with the em- ployer, employees should remove all of their personal items from the shops on June 28 or June 29, whichever is their last day of work. SIEBLER HEATING & AIR CONDITIONING, INC. 1129 The following "clarification" was also sent to the Union and hand delivered to each employee: CLARIFICATION We, as a member of the Residential Contractors Asso- ciation, are not opposed to the raise negotiation by Local #3 and SMACA, and we'll give the same raise on July 1st. However, other conditions of the contrac- tor cause problems with our non-union competitor. That is what we want to negotiate, and that is why we are demanding a meeting with Local #3. On June 21, Don Siebler called a meeting of his employ- ees and informed them that if the Union didn't recognize and bargain with Metropolitan, there would be a lockout on July 1. On July 1, all nine Respondents locked out their sheet metal employees. When Siebler's employees reported for work that morning a sign was posted on the shop door reading "No Negotiations, No Work, Effective July 1, 1974." On July 9, Preis received the following telegram from Jensen: EXTRAORDINARY WEATHER CONDITIONS REQUIRE THAT CUS- TOMERS BE ACCOMODATED. WORK STOPPAGE CALLED OFF EF- FECTIVE IMMEDIATELY. WORK WILL BE AVAILABLE AT EM- PLOYERS PLACES OF BUSINESS AT ONCE. EMPLOYERS WILL NOT SIGN AGREEMENT NEGOTIATED BY SMACNA. METROPOLITAN RESIDENTIAL CONTRACTORS ASSOCIATION STILL WILLING TO NEGOTIATE NEW CONTRACT. FURTHER ACTION IN SUPPORT OF OUR RIGHT TO RECOGNITION WILL BE FORTHCOMING AT LAT- ER DATE. Preis immediately forwarded the following telegram to each of the Respondents: SHEET METAL WORKERS' INTERNATIONAL ASSOCIATION, LOCAL NO. 3 HAS RECEIVED INFORMATION THAT YOUR COMPANY, EF- FECTIVE IMMEDIATELY, HAS CALLED OFF ITS LOCK-OUT OF JULY I, 1974, OF EMPLOYEES REPRESENTED BY OUR UNION. EM- PLOYEES REPRESENTED BY OUR UNION ARE AVAILABLE FOR WORK UPON THE REQUEST OF YOUR COMPANY AND HAVE BEEN READY, WILLING AND ABLE TO WORK SINCE JULY 1, 1974 THE UNION'S POSITION IS THAT YOU ARE BOUND BY AN AGREE- MENT NEGOTIATED AND EXECUTED BY YOUR COLLECTIVE BAR- GAINING AGENT, SMACNA, AND EXPECT YOUR COMPANY TO ABIDE BY ALL TERMS AND PROVISIONS OF THIS AGREEMENT. On July 10, the Sheet Metal Workers returned to work. D. Changes in Wage Scales and Job Classifications Upon reporting for work on July 10, Frazier- Schurkamp's journeymen sheet metal workers were in- formed that when they worked on commercial buildings they would be paid at the journeyman rate, and when they worked on residential buildings they would receive 75 per- cent of journeymen scale . Thereafter, when those employ- ees worked on single family dwellings, duplexes, apartment houses, and condominiums, all of which Frazier-Schur- kamp classified as residential work, they received the "low- er residential installer" rate of 75 percent of journeyman scale as set forth in the residential addendum.15 15 Sec 2 of the residential addendum provided , in pertinent part, that On July 10, Siebler's shop foremen handed journeymen sheet metal workers Blohm, Muth, Caudill, and Doty the following notice: "Effective July 10, 1974, your job classifi- cation will be Residential Installers; therefore, your rate of pay is 75% of Commercial Journeymen." Thereafter, these four men received 75 percent of journeymen's wages for both residential and commercial work. Gene Butterfield had been employed by Nelson as an apprentice sheet metal worker from 1971 to mid-April 1974, when he left because the work was slow, and thereaf- ter commenced working for Siebler. On July 10, he learned that work had picked up at Nelson's, so instead of return- ing to Siebler, he went to Nelson's and talked to Larry Allen, Jr., Nelson's vice president. Allen told Butterfield that the Company had lost a lot of residential work and, if he put Butterfield back to work, which he wanted to think about, Butterfield would be paid at journeyman's rate for commercial work, and 75 percent of journeyman's rate for residential work.16 Two days later, Allen called Butterfield to report for work. Thereafter, Butterfield received jour- neyman rate for commercial work and 75 percent of journeyman's rate when he did residential work. E. Analysis 1. Case 17-CA-6104 In Retail Associates, Inc., 120 NLRB 388 (1958) the Board pointed out that " ... mutual consent of the union and employers involved is a basic ingredient supporting the appropriateness of a multiemployer bargaining unit [and] the stability requirement of the Act dictates that reason- able controls limit the parties as to the time and manner that withdrawal will be permitted from an established mul- tiemployer bargaining unit." The Board then set forth rules governing the withdrawal of an employer or union from multiemployer bargaining. The Board stated that, prior to the beginning of negotiations, withdrawal could only be effected by an unequivocal written notice expressing a sin- cere intent to abandon, with relative permanency, the mul- tiemployer unit, and to pursue negotiations on an individu- al employer basis. However, once negotiations had actually begun, withdrawal could only be effected on the basis of "mutual consent" or when "unusual circumstances" were present. An essential element to be considered in determining if an employer is part of a multiemployer bargaining unit is whether the employer has indicated an intention to be bound by group rather than by individual action. The Kro- ger Co., 148 NLRB 569, 573 (1964). And, a multiemployer unit is appropriate even where the association members have not specifically delegated to the association authority to represent them in collective bargaining, or given the as- sociation the power" to execute final and binding agree- ments on their behalf, or where some of the contracts have not been signed by all of the group. Krist Gradis, et al, 121 NLRB 601 (1958). It is evident, therefore, that the histori- work covered by this Addendum shall be confined to Single Family houses only -11 16 Butterfield attained journeyman status on July I 1130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cal pattern of collective bargaining in the instant case war- rants the conclusion that each of the eight Respondents in Case 17-CA-6104, intended to be bound by the results of group negotiation and that the appropriate unit for the purpose of collective bargaining consists of all sheet metal workers, including journeymen, apprentices, and appren- tice trainees , employed by the participating employer- members of SMACNA, but excluding office clerical em- ployees, guards, and supervisors as defined in the Act. Having so found, I further find that each of the eight Re- spondents were parties to the 1973-74 collective-bargain- ing agreement between the Union and SMACNA, and to the residential addendum which was unanimously ap- proved by the SMACNA membership of February 18, and which is effective on its face from April 1, 1974, to March 31, 1977. The next question to be considered is whether the Re- spondents effectively withdrew from the SMACNA mul- tiemployer bargaining group. The 1973-74 collective-bargaining contract provided for a 90-day written notice of reopening. Timely notice was given by the Union on March 22, and negotiations com- menced on April 2. As negotiations had commenced on the multiemployer basis, Respondents' withdrawal after April 2 could be effected only on the basis of "mutual consent" or when "unusual circumstances" were present. Clearly, the Union refused to consent to the withdrawal of any of the eight Respondents from the multiemployer bargaining. The Union contends the eight Respondents are bound by the contract reached between SMACNA and the Union on May 14. The eight Respondents contend there were "un- usual circumstances" which warrant their withdrawal from the multiemployer unit. Those "unusual circumstances," argue the Respondents, are based on an alleged,breach of promise or trust by SMACNA representatives that a new residential addendum would be negotiated and deadlocked if necessary. They contend that authorizations for SMACNA to bargain on their behalf were based on those assurances, and that it subsequently became evident that the leadership of SMACNA never had any intention to negotiate and deadlock if necessary. on a new residential addendum. Hence, it is argued, the withdrawal of Respon- dents was based on a breach of promise, and the conse- quent conflict of interest between the majority commercial contractors and the minority residential contractors. "All of this must be viewed," the Respondents contend, "against the background of the serious economic situation faced by Respondents. Nonunion contractors were obtain- ing increasing amounts of residential work, including mul- tiple-family dwellings and service work . . . Respondents simply would have been unable to `live' with a 3-year con- tract giving them no relief to enable them to be competi- tive." The crux of this case is the residential addendum. The Respondents, having negotiated a residential addendum in February with an effective date of April 1, 1974, until March 31, 1977, want out from under that agreement. The Union contends the residential addendum was negotiated early (1) in an effort to avoid a conflict which might later bog down negotiations on the balance of the contract and result in a strike, and (2) to afford the employers the bene- fit of using the new residential work rate in computing bids on work for the approaching building season . That the Re- spondents sought to reap the benefits of the new residential addendum by applying the lower residential worker wage rate is clear from the evidence in Cases 17-CA-6145, 6156, and 6194, discussed hereafter. One of the objectives, it ap- pears, in seeking to void the April 1, 1974, to March 31, 1977, residential addendum and to negotiate another resi- dential addendum was to redefine "residential work" to include work on multiple dwelling single family units, i.e., apartments and condominiums. 17 The evidence shows that Don Siebler had belonged to SMACNA since it had been organized, and had been pres- ident of the organization and on the board of directors for the past 5 years. Furthermore, he had been on SMACNA's negotiating committee each year since 1969.18 He partici- pated in the negotiations which culminated in the residen- tial addendum, which he signed on April 1, and which clearly states in the body thereof that it is effective from April 1, 1974, until March 31, 1977. Regarding the alleged breach of promise or trust alluded to by Respondents, Don Siebler testified as follows: I called Mr. Furey and Mr. Hooker and requested that they come out to my office and I would like to talk to them. Which they did. I-then we talked on the resi- dential addendum to some extent and I got their opin- ion and their opinion was pretty much expressed as mine was, that it was open for negotiation, the resi- dential addendum was. And then I requested that I be put on the labor committee and that I would give him a letter of authorization and would serve on the labor committee, if we had an understanding that we could negotiate the residential addendum, which, after that, Mr. Olson called me and we had lunch and I was put on the labor committee. And after that I signed the residential addendum and I gave them a letter of au- thorization. Thus, it is seen that it was the "opinion" of all three men-Furey, an employer representative on the SMACNA negotiating committee; Hooker, the executive director of SMACNA; and Siebler-that the residential addendum negotiated in February and effective from April 1, 1974, until March 31, 1977, was open for negotiations. Whether in fact the recently executed residential addendum was sus- ceptible to renegotiation at that time depended, of course, not on the opinion or understanding among the SMACNA negotiating committee, but on the consent of the parties to the residential addendum, one being the Union. Neither Furey nor Hooker did any more than express an opinion, which appears to have coincided with that of Siebler; moreover, it is noted that none of the "Bargaining Agent Authorizations" executed by the Respondents contains any condition limiting the authority of SMACNA to bargain on their behalf with the Union. Moreover, while the record 17 The new residential addendum provided that the lower residential in- staller rate applied only to work on single family houses and not to work on apartments and condominiums 18 He had been a member of the negotiating committee when the 1972 residential and service addendum was negotiated, which covered apart- ments and condominiums SIEBLER HEATING & AIR CONDITIONING, INC does not disclose the date Coziahr signed an authorization, Roberts and Donovan each signed authorizations on Janu- ary 15, Schneiderwind on January 16, Siebler on March 7, and Nelson on March 19 . Thus, it is clear that three of the Respondents had signed SMACNA authorizations long before Siebler became a member of the 1974 negotiating committee . Moreover , it was not shown that any Respon- dent , with the exception of Siebler , sought to limit the au- thorization . In these circumstances , I find that the Respon- dents have failed to establish a breach of promise or trust by SMACNA representatives , or that the SMACNA au- thorizations were based on assurances which the leadership of SMACNA had no intention of fulfilling. Citing N.L.R.B. v. Unelko Corporation, 478 F.2d 1404 (C.A. 7, 1973), Respondents contend the SMACNA negoti- ations involved a "significant conflict of interest within its membership . . . [and consequently ] it is clear that Re- spondents had a right to withdraw from the negotiations after they had commenced .. .." It is argued that "Re- spondents in good faith relied on assurances that their in- terests would be protected and authorized SMACNA, and therefore the majority membership , to bargain on their be- half. When it came to the Respondents ' attention that the SMACNA leadership had no intention to fulfill these as- surances , they in good faith raised the issue at the special meeting on April 22, 1974." The facts reveal , however, that the SMACNA membership was acutely aware of the inter- ests of the residential contractors when , on April 22, they rejected Siebler 's intransigent motion and voted instead "to make every effort to secure a workable Residential Adden- dum." This action on the part of the membership does not reveal a conflict of interest ; instead , it is an acknowledg- ment of the problem and shows a willingness to negotiate towards a satisfactory resolution of the problem. The "conflict of interest" argument appears to be grounded in the fact the SMACNA membership is com- posed of both large commercial contractors , who allegedly control SMACNA, and smaller residential contractors, some of whom are Respondents . However , the record does not establish a "conflict of interest " like that found in the Unelko case . In Unelko, a supplemental agreement negoti- ated between the Union and four members of the Associa- tion provided for a lesser wage rate for employees of the four favored members of the Association. In those circum- stances, the court concluded the employer could have with- drawn after multiemployer bargaining commenced, if it had acted promptly and decisively after it became aware of the posture of the negotiations. Like the Trial Examiner in Unelko,19 I find the instant case more akin to N.L.R B. v. Tulsa Sheet Metal Works, Inc., 367 F.2d 55 (C.A. 10, 1966), where the court stated, at page 58 : "However , to allow withdrawal from the multi- employer bargaining unit because negotiations are appre- hended by one of the group members to be progressing toward an agreement which would be economically bur- densome insofar as it is concerned , would be disruptive to the stability of the group collective -bargaining process. As the Trial Examiner observed , ' . . some responsibility 19 195 NLRB 236 (1972) 1131 must rest upon the employer who invokes the advantages of group bargaining to assess and assume the responsibili- ties and limitations inherent therein.' " I conclude , therefore , that the Respondents have failed to establish "unusual circumstances" which would justify their untimely withdrawal from the multiemployer bar- gaining between SMACNA and the Union , and their refus- al to accept the renewal contract . Such conduct violates Section 8 (a)(5) and ( 1) of the Act . See, for example, Hi- Way Billboards, Inc., 206 NLRB 22 (1973); Central Plumb- ing Company, 198 NLRB 925 (1972); Retail Associates, Inc., supra. 2. Case 17-CA-6130 I have previously found that the eight Respondents in Case 17-CA-6104 unlawfully withdrew from the SMACNA multiemployer bargaining unit on or about April 23. The General Counsel alleges, and the Respon- dents , including Frazier -Schurkamp, admit that Metropoli- tan was formed for the purpose of representing them in collective bargaining and that they each notified their em- ployees and the Union that, unless the Union bargained with Metropolitan , they would lock out their sheet metal workers on July 1. The evidence shows that when the Union declined to bargain with the new multiemployer as- sociation the nine Respondents in fact locked out their sheet metal employees from July 1 until July 10. The pur- pose of the lockout is clear-to force the Union to bargain collectively with Metropolitan as the representative of the Respondents. Mutual consent of the Union and employers involved is a basic ingredient to multiemployer bargaining . Here, the Respondents have sought to withdraw, albeit unlawfully, from one multiemployer unit , and to form a new one. In the circumstances of this case , such action could be effect- ed lawfully only with the consent of the Union in both instances . Consent was declined . The withdrawal from the established mutiemployer bargaining unit being untimely and unlawful, it follows that the threat to engage in a lock- out, and the attempt through coercive pressure on the em- ployees to compel union acquiescence in the Respondent's unlawful restriction on the scope of bargaining, violated Section 8 (a)(1) and (3) of the Act, respectively. An appro- priate remedy will require each of the Respondents to reimburse their sheet metal workers for wages and benefits lost as a result of the unlawful lockout. See, for example, American Stores Packing Co., Acme Markets, Inc., 158 NLRB 620 (1966). 3. Cases 17-CA-6145, 6156, and 6194 The evidence establishes that each of the Respondents in these three cases was a party to the residential addendum reached between SMACNA and the Union in February. Accordingly, their conduct in unilaterally reclassifying their employees and reducing their wages without first bar- gaining with the Union constituted a refusal to bargain in violation of Section 8(a)(5). N.L.R.B. v. Benne Katz, etc., d/b/a Williamsburg Steel Products Co., 369 U.S. 736 (1962); Red Cab, Inc., 194 NLRB 279, 290 (1971); Nelson- 1132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hershfield Electronics, 188 NLRB 26, 48 (1971). In addition to revoking said unilateral changes, it is appropriate that the Respondents be ordered to restore the affected employ- ees to their appropriate classifications and to pay them the difference between the wages actually paid them and the amount they would have received had the unlawful unila- teral reduction in wage rates not occurred. Such order shall include reimbursement for other benefits in accordance with the collective-bargaining agreement. Cascade Employ- ers Association, Inc., 126 NLRB 1014 (1960). IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section III, above , occurring in connection with the operations of the Respondents and SMACNA described in section 1, above, have a close , intimate , and substantial relation to trade, traffic , and commerce among the several States and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY Having found that the Respondents have engaged in, and are engaging in, certain unfair labor practices, I shall recommend that they cease and desist therefrom and take certain affirmative action designed to effectuate the poli- cies of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in this proceeding, I make the fol- lowing: CONCLUSIONS OF LAW 1. Respondents and SMACNA, and each of them, are employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. All sheet metal workers, including journeymen, ap- prentices, and apprentice trainees, employed by participat- ing employer-members of SMACNA, but excluding office clerical employees, guards and supervisors as defined in the Act, and all other employees, constitute a unit appro- priate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. The Union is now, and at all times material herein has been, the exclusive representative of all employees in the aforesaid appropriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. The Union is now, and at all times material herein has been, the exclusive representative of all sheet metal workers (including journeymen, apprentices, and appren- tice trainees) employed by Frazier-Schurkamp, excluding office clerical employees, guards, and supervisors as de- fined in the Act, and all other employees. 6. By repudiating the agreement that SMACNA had made on their behalf in negotiations with the Union in said multiemployer bargaining unit and by untimely withdraw- ing from that multiemployer bargaining unit, Respondents Siebler, Interstate, Donovan, Schneiderwind, Coziahr, Fisher, Nelson, and Roberts have violated Section 8(a)(5) and (1) of the Act. 7. By threatening to lock out the employees represented by the Union, each of the Respondents has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act, in violation of Section 8(a)(l) of the Act. 8. By locking out the employees represented by the Union, each of the Respondents has discriminated in re- gard to the hire and tenure of employment of their employ- ees, thereby discouraging membership in the Union in vio- lation of Section 8(a)(3) and (I) of the Act. 9. By unilaterally changing job classifications and re- ducing wage scales, Siebler, Frazier-Schurkamp, and Nel- son have engaged in and are engaging in unfair labor prac- tices in violation of Section 8(a)(5) and (1) of the Act. Upon the basis of the foregoing findings of fact, conclu- sions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommend- ed: ORDER 20 A. Respondents, Siebler, Interstate, Donovan, Schneid- erwind, Coziahr, Fisher, Nelson, and Roberts, their offi- cers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with the Union as the exclusive representative of Respondents' employees in the appropriate unit described above, with respect to wages, hours, and other terms and conditions of employ- ment. (b) Refusing to acknowledge that they are bound by the terms of the collective-bargaining agreement between the Union and SMACNA effective July 1, 1974. 2. Take the following affirmative action which is neces- sary to effectuate the policies of the Act: (a) Bargain collectively with the Union by acknowledg- ing that they are bound by the terms of the collective-bar- gaining agreement executed by the Union and SMACNA effective July 1, 1974. B. Each of the aforementioned Respondents and Frazi- er-Schurkamp, their officers, agents, successors, and as- signs, shall: 1. Cease and desist, from threatening to lock out, or locking out, any of their respective employees in order to force the Union to bargain collectively with Metropolitan Residential Contractors' Association at a time when the Union is not lawfully bound to bargain collectively with said Association. _ 2. Take the following affirmative action which is neces- sary to effectuate the policies of the Act: make whole all the employees represented by the Union for any loss of pay they may have suffered as a result of the unlawful lockout from July l to July 10, and pay into the benefit funds 20 In the event no exceptions are filed as provided by Sec . 102 46 of the Rules and Regulations of the National Labor Relations Board , the findings, conclusions , and recommended Order herein shall , as provided in Sec. 102 48 of the Rules and Regulations , be adopted by the Board and become its findings, conclusions , and Order, and all objections thereto shall be deemed waived for all purposes SIEBLER HEATING & AIR CONDITIONING, INC. provided for in the contract, such sums as would have been paid into said funds on behalf of such employees, absent the illegal lockout. Interest of said sums shall be computed at the rate of 6 percent per annum. C. Respondents , Siebler, Frazier-Schurkamp and Nel- son, their officers , agents, successors , and assigns , shall: 1. Cease and desist from refusing to bargain with the Union as the representative of their employees , by effectu- ating unilateral changes in wage scales and classifications of employees. 2. Take the following affirmative action which is neces- sary to effectuate the policies of the Act: (a) Revoke the unilateral changes instituted on July 10, including the wage decreases and changes in job classifica- tions, and restore to the affected employees their appropri- ate job classifications and wage scales. (b) Make whole said employees for any loss of pay they may have suffered by reason of the unilateral changes in job classifications and wage scales, and pay into the benefit funds provided for in the contract , such sums as would have been paid into said funds on behalf of such employ- ees, absent the illegal unilateral changes . Interest on said sums shall be computed at the rate of 6 percent per annum. D. Each of the Respondents , their officers, agents, suc- cessors , and assigns , shall: 1. Cease and desist from in any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed by Section 7 of the Act. 2. Take the following further affirmative action which is necessary to effectuate the policies of the Act: (a) Preserve and, upon request, make available to the Board or its agents, for examination and copying , all pay- roll records , social security payment records, timecards, personnel records and reports, and all other records neces- sary for determination of the amount of backpay due em- ployees and the amount of the sums to be paid into the benefit funds provided for in the aforementioned contract. (b) Post at their respective offices copies of the applica- ble notices attached hereto and marked "Appendixes 1 through 3." 21 Copies of said notices , to be furnished by the Regional Director for Region 17, after being duly signed by a representative of the respective Respondents , shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter , in con- spicuous places, including all such places where notices to employees in the appropriate unit are customarily posted. Reasonable steps shall be taken by the respective Respon- dents to insure that said notices are not altered , defaced, or covered by any other material. (c) Notify the Regional Director for Region 17, in writ- ing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 21 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals , the words in the notice reading "Posted by Order of the National 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 I 1133 NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government We hereby notify you that: WE WILL NOT refuse to bargain collectively with Sheet Metal Workers' International Association, Lo- cal No. 3, by repudiating the agreement made on our behalf of the Sheet Metal and Air Conditioning Con- tractors' National Association of Omaha-Council Bluffs, Inc., in the following multiemployer bargaining unit: All sheet metal workers, including journeymen, apprentices , and apprentice trainees , employed by participating employer-members of SMACNA, but excluding office clerical employees, guards and su- pervisors as defined in the Act, and all other em- ployees. WE WILL NOT withdraw from said multiemployer bargaining unit except upon adequate written notice given prior to the date set by the contract for modifi- cation , or to the agreed-upon date to begin the mul- tiemployer negotiations ; or except at such other time we may lawfully withdraw. WE WILL honor and abide by any collective-bargain- ing contract executed by said Association on our be- half in said multiemployer bargaining unit. WE WILL NOT threaten to lock out, or lock out, any of our employees in order to force Sheet Metal Workers' International Association, Local No. 3, or any other labor organization , to bargain collectively with Metro- politan Residential Contractors' Association, at a time when we are lawfully bound by collective-bargaining negotiations between said Union and SMACNA. WE WILL make whole all the employees represented by said Union for any loss of pay they have suffered as a result of our unlawful lockout. WE WILL NOT in any like or related manner interfere with, restrain , or coerce employees in their rights guar- anteed them by Section 7 of the Act. INTERSTATE SHEET METAL, INC. DONOVAN BROTHERS, INC. SCHNEIDERWIND HEATING & AIR CONDITIONING Co. WALT COZIAHR HEATING & AIR CONDITIONING, INC. FISHER HEATING & AIR CONDITIONING CO. ROBERTS SHEET METAL CO. 1134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX 2 NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government We hereby notify you that: WE WILL NOT refuse to bargain collectively with Sheet Metal Workers' International Association, Lo- cal No . 3, by repudiating the agreement made on our behalf of the Sheet Metal and Air Conditioning Con- tractors' National Association of Omaha-Council Bluffs, Inc., in the following multiemployer bargaining unit: All sheet metal workers , including journeymen, apprentices , and apprentice trainees , employed by participating employer-members of SMACNA, but excluding office clerical employees , guards and su- pervisors as defined in the Act, and all other em- ployees. WE WILL NOT withdraw from said multiemployer bargaining unit except upon adequate written notice given prior to the date set by the contract for modifi- cation, or to the agreed-upon date to begin the mul- tiemployer negotiations ; or except at such other time we may lawfully withdraw. WE WILL honor and abide by any collective-bargain- ing contract executed by said Association on our be- half in said multiemployer bargaining unit. WE WILL NOT threaten to lock out, or lock out, any of our employees in order to force Sheet Metal Workers' International Association , Local No . 3, or any other labor organization , to bargain collectively with Metro- politan Residential Contractors ' Association , at a time when we are lawfully bound by collective-bargaining negotiations between said Union and SMACNA. WE WILL make whole all the employees represented by said Union for any loss of pay they have suffered as a result of our unlawful lockout including payment into the benefit funds provided for in the contract such sums as would have been paid into said funds absent the illegal lockout. WE WILL NOT change the job classifications or reduce the wage scales of any of our employees in the unit set forth above without first bargaining with the Union. WE WILL revoke the unilateral changes in job classi- fications and wage scales which we instituted on or about July 1, 1974, and restore to the affected employ- ees their appropriate job classifications and wage scales, and we will make them whole for any loss of pay they may have suffered as a result of the unilateral pay cut on July 1, 1974, including payment into the benefit funds provided for in the contract, such sums as would have been paid into said benefit funds on behalf of said employees had the unilateral changes not been made. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in their rights guar- anteed them by Section 7 of the Act. SIEBLER HEATING & AIR CONDITIONING, INC. NELSON HEATING & AIR CONDITIONING CO. APPENDIX 3 NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government We hereby notify you that: WE WILL NOT refuse to bargain with Sheet Metal Workers' International Association, Local No. 3, as the exclusive representative of our employees in the following unit: All sheet metal workers, including journeymen, apprentices, and apprentice trainees , but excluding office clerical employees , guards and supervisors as defined in the Act, and all other employees. WE WILL NOT threaten to lock out, or lock out, any of our employees in order to force Sheet Metal Workers' International Association , Local No. 3, or any other labor organization , to bargain collectively with Metro- politan Residential Contractors' Association , at a time when said labor organization is not lawfully bound to bargain collectively with said Association. WE WILL make whole all the employees represented by said Union for any loss of pay they have suffered as a result of our unlawful lockout , including payment into the benefit funds provided for in the contract, such sums as would have been paid into said funds absent the illegal lockout. WE WILL NOT change the job classification or reduce the wage scales of any of our employees in the unit set forth above without first bargaining with the Union. WE WILL revoke the unilateral changes in job classi- fications and wage scales which we instituted on or about July 1, 1974, and restore to the affected employ- ees their appropriate job classifications and wage scales, and we will make them whole for any loss of pay they may have suffered as a result of the unilateral pay cut on July 1, 1974, including payment into the benefit funds provided for in the contract , such sums as would have been paid into said benefit funds on behalf of said employees had the unilateral changes not been made. WE WILL NOT in any like or related manner interfere with , restrain , or coerce employees in their rights guar- anteed them by Section 7 of the Act. FRAZIER-SCHURKAMP, INC.