Universal Insulation Corp.

National Labor Relations Board - Board Decisions

Dec 8, 1964

149 N.L.R.B. 1397 (N.L.R.B. 1964)

UNIVERSAL INSULATION CORPORATION 1397
WE WILL NOT in any other manner restrain or coerce employees of the said
Company in the exercise of the rights guaranteed in Section 7 of the Act.
LOCAL 819, INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS , WAREHOUSEMEN AND HELPERS OF AMERICA,
Labor Organization.
Dated------------------- By-----------'--------------------------------
(Representative ) ( Title)
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.
Employees may communicate directly with the Board's Regional Office, 745 Fifth
Avenue, New York , New York, Telephone No. Plaza 1-5500 , if they have any ques-
tion concerning this notice or compliance with its provisions. ,
Universal Insulation Corporation and International Association
of Heat and Frost Insulating and Asbestos Workers, Local
No. 46. Cases Nos. 10-CA-5301 and 10-CA-5504. December 8,
1964
DECISION AND. ORDER
On May 28, 1964, Trial Examiner Morton D. Friedman issued his
Decision in the above-entitled proceeding, finding that Respondent
had engaged in and was engaging in certain unfair labor practices
alleged in the complaint and recommending that it cease and desist
therefrom and take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. The Respondent filed excep-
tions to the Trial Examiner's Decision and a brief in support thereof.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
these cases to a three-member panel [Members Leedom, Brown, and
Jenkins].
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 entire
record in these cases, including the Trial Examiner's Decision and the
exceptions thereto, and hereby adopts the Trial Examiner's findings,
conclusions, and recommendations, with the following additions.
Respondent contends, inter alia, that on November 13, 1962, while
negotiations for a new contract were in progress, Respondent with-
drew from multiemployer bargaining and that the Union acquiesced
in Respondent's alleged withdrawal from the unit.
In support of its claim that the Union acquiesced in its withdrawal
from multiemployer bargaining, Respondent cites the testimony of
Union Representative Poole concerning a telephone conversation
149 NLRB No. 124.
1398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
between Poole and Respondent's President, Kilby, on November 13,
as follows :
I told him [Kilby] I understood that he was anticipating
pulling out of the Masters . . . I said, well, can I sign you up on
an individual agreement, but he said that he couldn't go along
with any wage increase whatsoever-his customers just couldn't
stand it.
It is obvious that Poole's statement did not constitute acquiescence
in Respondent's withdrawal from multiemployer bargaining, but
indicated only that the Union might not object to Respondent's with-
drawal from the unit in the event Respondent elected to bargain on
an individual, rather than a group, basis. We agree with the Trial
Examiner , however, that Respondent did not unequivocally withdraw
from multiemployer bargaining on November 13, but in effect stated
that Respondent would remain in the Association and accept the con-
tract negotiated by the Association if the contract did not contain a
wage increase . It is well settled that such conduct does not constitute
an unequivocal withdrawal from multiemployer bargaining and is,
therefore, ineffective to prevent Respondent from incurring the obli-
gations attendant upon bargaining on a multiemployer basis.' Plainly,
a union's statement during the course of bargaining that it may be
willing to bargain with a member of the association on an individual
basis, cannot be held in reserve by the member as an option to be
exercised in the event the member is dissatisfied with the agreement
finally reached by the association. Thus, even assuming, arguendo,
that Respondent could have withdrawn from the Association on
November 13, it nonetheless did not unequivocally withdraw from
multiemployer bargaining at that time. Respondent thus became
bound by the agreement which was concluded on November 21, and,
therefore, violated Section 8(a) (5) and (1) of the Act by refusing to
execute that agreement .2
We also agree with the Trial Examiner that Respondent violated
the Act by refusing to reinstate those striking employees who made
unconditional requests for reinstatement on the dates set forth in the
Trial Examiner's Decision. In its brief to the Board, Respondent
concedes that Fred Campbell, who appears to have been a super-
visor, was the only employee notified to return to work, although
work was available and performed by replacement employees.
Respondent claims that with the exception of Campbell the striking
employees were formerly employed only on an as-needed basis, and
therefore, that Respondent had no duty to resume using their services.
1 Anderson Lithograph Company, Inc . and Jeffries Banknote Company, 124 NLRB 920,
enfd. sub nom. , N.L R.B. v. Jeffries Banknote Company, 281 F. 2d 893 (C.A. 9).
2 Anderson Lithograph, supra.
UNIVERSAL INSULATION CORPORATION 1399
Kilby admitted, however, that most of the striking employees were
part of a pool of men frequently utilized by Respondent prior to the
strike.3 Despite the fact that the striking employees worked for
Respondent on an intermittent basis they were employees within the
meaning of the Act and entitled, following their unconditional
requests for reinstatement, to the same opportunity to work that they
enjoyed prior to the strike.4
Respondent's further contention that the employees were not
entitled to reinstatement because they worked for other employers
during the strike also lacks merit. There is no evidence that by
working for other employers the employees were not following the
usual practice of employees in the building and construction trades
of working for whatever contractor had work available. Thus, such
employment for other employers even at a higher rate of pay, cannot
be viewed in the circumstances herein as indicating the employees'
abandonment of their employee status with Respondent or their
intent to refuse work from Respondent in the event such work were
offered to them.5
Respondent also claims that the employees were economic strikers
who had been permanently replaced. We agree with the Trial
Examiner that on November 21, 1962, the employees became unfair
labor practice strikers, and, therefore, Respondent was obligated to
offer them reinstatement unless they had previously been replaced .6
Respondent concedes in its brief that it did not hire any replacement
employees until November 21, 1962. Accordingly, we find that
Respondent violated Section 8(a) (3) and (1) of the Act by refusing
to reinstate those striking employees who made unconditional requests
for reinstatement on the dates set forth in the Trial Examiner's
Decision.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the Board hereby adopts, as its Order, the Order recom-
mended by the Trial Examiner, with the following additions, and
orders that Respondent, Universal Insulation Corporation, its officers,
agents, successors, and assigns,, shall take the action set forth in the
Trial Examiner's Recommended Order, and in addition :
3 Kilby also testified that James J. Starnes , Billy J. Starnes , and Jack Loudy had only
worked for Respondent on one or two occasions prior to the strike.
* Cf. Local 1566 , International Longshoremen 's Association ( Maritime Ship Cleaning
and Maintenance Co.), 122 NLRB 967, enfd., in relevant part, 278 F . 2d 883 ( C.A. 3).
5 Fred Campbell refused Respondent 's offer of reinstatement , and James Young requested
a termination slip. Campbell is not included in the reinstatement order. In Young's
case, however , the record does not show when Young asked for the termination slip.
Therefore , Young is included in the reinstatement order in the event he requested termina-
tion subsequent to his request for reinstatement . Member Jenkins would not order the
reinstatement of Staten , Loudy, and Young.
9 See N L R .B. v. Fitzgerald Mills Corporation, 313 F. 2d 260 , cert. denied 375 U.S.
834; Barney's Supercenter, Inc., 128 NLRB 1325, 1330 , enfd. 296 F . 2d 91 ( C.A. 3).
1400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"We will notify the above-named employees, if presently serving in
the Armed Forces of the United States of their right to full reinstate-
ment upon application in accordance with the Selective Service Act
and the Universal Military Training and Service Act of 1948, as
amended, after discharge from the Armed Forces."
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed in Case No. 10-CA-5301 on April 15, 1963, and a charge filed
in"Case No. 10-CA-5504 on October 17, 1963, and an amended charge in Case No.
10-CA-5504 on November 21, 1963, by International Association of Heat and Frost
Insulating and Asbestos Workers, Local No. 46, herein referred to as the Union, the
Regional Director for Region 10 of the National Labor Relations Board, herein called
the Board, issued a consolidated complaint on behalf of the General Counsel of the
Board against Universal Insulation Corporation, hereinafter referred to as the
Respondent or the Company, on December 3, 1963, and an amendment to said com-
plaint on December 16, 1963, alleging violations of Section 8(a)(1), (3), and _(5) of
the National Labor Relations Act, as amended (29 U.S.C. Sec. 151 et seq ), herein
called the Act. In its duly filed answer to the aforesaid complaint and amendment
thereto, the Respondent, while admitting certain of the allegations thereof, denied the
commission of any unfair labor practices.
Pursuant to notice, a hearing was held before Trial Examiner Morton D. Friedman
in Johnson. City, Tennessee, on January 20, 1964. All parties were represented and
afforded full opportunity to be heard, to introduce relevant evidence, to present oral
argument, and to file briefs. Oral argument was waived. Briefs were filed by the
Respondent and by counsel for the General Counsel.
Upon consideration of the entire record in this case, including the briefs of the
parties, and upon my observation of the demeanor of each of the witnesses testifying
before me, I make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a Tennessee corporation maintaining its office and principal place
of business at Johnson City, Tennessee, is engaged in industrial insulation contracting.
During the 12-month period immediately preceding the issuance of the complaint
herein, a representative period, the Respondent purchased and caused to be shipped
directly to its establishment in Johnson City, Tennessee, from points outside the State
of Tennessee, goods and materials of a value in excess of $50,000.
It is admitted, and I find, that the Respondent is engaged in commerce within the
meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is conceded, and I find, that the Union is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ISSUES
The principal issues with which we are here faced are:
1. Did the Respondent make a timely and effective withdrawal from the multi-
employer bargaining association so as to render nonviolative its refusal to sign the
Association agreement with the Union?
2. Did the Respondent unlawfully refuse to reinstate its employees after they had
gone on strike and had made an unconditional offer to return to work?
IV. THE UNFAIR LABOR PRACTICES
A. The withdrawal from multiemployer bargaining
1. The facts
S
Masters Insulators Association of Knoxville, Tennessee, herein called the Associa-
tion, is a trade association admitting to membership employers engaged in the building
and construction industry as insulating contractors. Part of the function of this organ-
ization is the representing of its members in collective bargaining with labor organiza-
UNIVERSAL INSULATION CORPORATION 1401
tions. It participates through designated representatives in the negotiation , execution,
and administration of collective-bargaining agreements on behalf of its members with
the Union.1
The Association has a rather amorphus structure , having neither a constitution nor
bylaws or any written rules or regulations . As noted above, the Association has
negotiated for some time with the Union as the bargaining representative of the
employees of the Association 's members . The earliest Union-Association agreement
noted in the record was entered into November 16, 1960 , for a period of 2 years and
expired on November 15, 1962. This was the contract which was in effect when the
Respondent became a member of the Association on July 2, 1962. Prior to that time,
the Respondent had not been a member of the Association and had not been bound
by any Association contract or agreement with any labor organization . However,
the Respondent had been paying union scale and had also been making periodic
contributions to the Union 's welfare fund.2
On August 13, 1962, approximately a month after the Respondent had become a
member of the Association , the Union , in writing , notified the Association that the
contract then in effect between the Association and the Union would expire at mid-
night on November 15, 1962, and requested that representatives of the Association
meet with representatives of the Union to negotiate a new agreement . There followed
a series of meetings between representatives of the Association and the Union but no
agreement was reached by the expiration date of Thursday, November 15, 1962. As a
result, employees of the members of the Association , including the Respondent's
employees , failed to report to work on the following Monday, November 19, 1962.
On November 21, 1962, an agreement was signed and the employees of all of the
members of the Association with the exception of the Respondent returned to work.
During the period of negotiations , the Respondent 's representative , C. V. Kilby,
attended at least one of the negotiation sessions and participated therein. Evidently,
at a bargaining session which took place about November 13, 1962, the employer-
members of the Association , with the exception of the Respondent which did not have
a representative present , decided to offer a wage increase to the Union in an attempt to
settle the dispute over wages which then existed between the Union and the Associa-
tion . In order to bring the Respondent up to date , on November 13, Thomas L. Gann,
the Association 's president , called the Respondent 's C. V. Kilby on the telephone and
informed him of the Association 's proposed offer of a 7-cent wage increase to the
Union.
According to Gann, Kilby told him during that telephone conversation "If there was
going to be a wage increase-[the Respondent]-would have to withdraw from the
Association ." Gann immediately told Leon Poole , the Union' s business representa-
tive , of the Respondent's reaction to the wage increase offer. Poole, later in the same
day, called Kilby and Kilby repeated to him , in substance , what he had told Gann
about the Respondent 's withdrawal from the Association if the renewed agreement
provided for a wage increase .3 According to Kilby, during the telephone conversation
with Gann on November 13 he told Gann that the Respondent could not go along with
the increase . He told Gann that his customers would not go for a raise in pay and
that if the Respondent raised its employees pay the customers would hire their own
men to do the work which ordinarily would have been contracted to the Respondent
and Respondent would be out of business . When Gann told him that the Association
would give the raise he told Gann that "We would just have to withdraw" effective at
that time . Kilby further testified that when Poole called later in the same day he gave
Poole , in substance , the same information.
I find that the testimony of Gann and Poole is more reliable than the Kilby version
of the telephone conversations for the reason that later developments support the
Gann and Poole versions . Accordingly, I find that what Kilby told Gann and Poole
in effect was that if the wage increase went through the Respondent would withdraw
from the Association and would refuse to sign the agreement , inferring that if no
increase was granted, the Respondent would remain in the Association and become a
party to the renewal agreement.
On November 21 the Association reached an agreement with the Union which
agreement provided an increase in the hourly rate paid the employees of the Associa-
tion members . Gann again called Kilby to inform him of this matter before the
actual execution of the agreement took place . Kilby advised Gann in this latter tele-
phone conversation that he could not go along with any wage increase and advised
1 From the admitted complaint allegation and the uncontroverted testimony of Thomas
L. Gann, the Association's president, and C. V. Kilby, the Respondent's secretary-treasurer.
2 From the credited testimony of Gann and Kilby.
3 From the credited testimony of Gann and Poole.
1402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
both Gann and Poole that he was withdrawing from the Association and that Gann
had no authority to sign for the Respondent Company. Two days later Kilby con-
firmed, in writing, this resignation from the Association.
Since November 21, 1962, the Respondent has consistently refused to honor or
abide by the terms of the renewal agreement and has refused to deal with the Union
under the terms thereof. In fact, it has not dealt with the Union at all. Moreover,
it has consistently maintained that since that date it has not been a member of the
Association.
2. Concluding findings with regard to the withdrawal
The Respondent contends that by the conversations between Kilby and Gann and
Kilby and Poole on November 13 and the withdrawal on November 21 of the author-
ity of Gann to bind the Respondent, the Respondent made a timely withdrawal from
the Association; that, therefore, the Respondent is not a member of the Association
and is under no legal obligation to honor the Association's November 21, 1962,
agreement with the Union nor is the Respondent bound by its terms. I do not find
merit in this contention.4
At first blush it may seem somewhat inequitable to hold that the Respondent's
attempted withdrawal was ineffectual and that the Respondent is still bound by the
Association agreement with the Union under the facts of this case because the
Respondent had hardly become a member of the Association when the contract in
effect at the time the Respondent became a member had expired and the Respondent
was faced with the prospect of being bound by an Association contract which the
Respondent claimed it could ill-afford. The question could well be asked, "When
did the Respondent have an opportunity to leave the Association before negotiations
toward the new contract began when at the time negotiations began the Respondent
had been a member for only a month?" The answer to that question lies in the facts
surrounding the attempted withdrawal.
As noted above, the Respondent was apprised in August 1962 that the then current
bargaining agreement was due to expire on November 15 of that year. This knowl-
edge cannot be denied because Kilby attended and participated in at least one bargain-
ing meeting in which the terms of the renewal contract were being negotiated. Kilby
thereafter permitted approximately 3 months to elapse from the date on which the
Union gave notice that the contract would expire until, on November 13, 1962, after
many negotiation sessions had taken place, he expressed to Gann and to Poole his
displeasure with the turn the negotiations had taken. Then, even at that late date, he
did not unequivocally withdraw from multiemployer bargaining but rather indicated,
in effect, that the Respondent would remain in the Association and accept its contract
if it was suitable to the Respondent but would not go along with the Association if
the contract required a wage-rate increase. Finally it was only on November 21, the
day that agreement was reached between the Union and Association representatives
granting the wage-rate increase, that Kilby announced that Respondent was unequivo-
cally withdrawing from the Association.
I find that the foregoing withdrawal was not timely. While the Board has long
recognized the consensual nature of multiemployer bargaining, in the interest of
fostering and maintaining stability in bargaining relationships it has wisely required
that the right to withdraw from such relationship be exercised at an appropriate time.5
Clearly, a withdrawal after all of the bargaining sessions had been completed, and
only on the day of final agreement on all of the issues in dispute was reached, cannot,
under any Board precedent,° be regarded as timely. As noted above, this was the cir-
cumstance under which the Respondent finally withdrew here.
4 The Respondent also contends that a decision of a State chancery court which held
that the Union does not represent any of the Respondent's employees and that, therefore,
the Union had no right to act as bargaining representatives of the Respondent's employees
is res judicata with regard to the issues in this case The merits of the State court de-
cision aside, the determination of whether the Respondent violated the Act is exclusively
the Board's and the State court decision cannot therefore be res yudicata of the issues
presented in this proceeding. See Section 10(a) of the Act. Also, see Denver Building
and Construction Trades Council, et al. (The Grauman Company), 82 NLRB 93, 94.
- 5 Fairbanks Dairy, Division of Cooperdale Dairy Company, Inc., 146 NLRB 893 ; Cos-
mopolitan Studios, Inc, 127 NLRB 788, 789; Anderson Lithograph Company, Inc., et I,
124 NLRB 920, enfd. sub nom., N L.R.B v. Jeffries Banknote Company, 281 F. 2d 893, 896
(CA 9) ; see also Retail Associates, Inc., 120 NLRB 388, 393, 395.
6 See footnote 5, supra.
UNIVERSAL INSULATION CORPORATION 1403
Nor does the possibility that the November 21, 1962, agreement could result in a
hardship to the Respondent be considered a sufficient reason for withdrawal at such a
date from multiemployer bargaining . The Respondent must certainly have been
aware when it became a member of the Association that group bargaining is, at best,
the consensus of all of the members of the Association and the terms of any agree-
ments which might be reached by the Association and the Union could not possibly
be completely satisfactory in all respects to all of the members of the Association. To
permit-this as a reasonable basis for withdrawal at so late a date would subject all
group bargaining to individual approval and thus destroy any stability of bargaining
relationships which would otherwise exist. Moreover , the Respondent 's claim that it
would lose its customers if it entered into an agreement which required a higher wage
rate was not supported by any corroborative evidence to the effect that the contract
would have a deleterious effect upon the Respondent 's business welfare.
Accordingly , I find and conclude that by its refusal to join in the Association agree-
ment and to consider itself bound by the terms thereof, or to deal with the Union as its
employees representative after November 21, 1962, the Respondent unlawfully refused
to bargain in good faith with the Union and thereby violated Section 8 (a) (5) and (1)
of the Act.
3. The appropriate unit
By reason of the history of collective bargaining on an associationwide basis, I
find and conclude that all mechanics , improvers , and applicators employed by
employer members of the Association excluding all office clerical and professional
employees , guards, and supervisors , as defined in the Act , constitutes a unit appropriate
for the purpose of collective bargaining within the meaning of Section 9 ( b) of the Act.
4. The bargaining representative and majority status
As heretofore noted the Respondent before and after it became a member of the
Association and until November 16, 1962, made regular , periodic contributions to
the welfare fund of the Union. Since this was done only for members of the Union
and the Respondent did this for all its employees , I find that at all times material
herein the employees of the Respondent were members of the Union . I further find
that by reason of the associationwide bargaining that at all times material herein, the
Union has been, and is, the representative of a majority of the employees in the unit
hereinabove described as appropriate for the purposes of collective bargaining and by
virtue of Section 9(a) of the Act has been and is the exclusive representative of all the
employees in the unit for the purposes of collective bargaining.
B. The refusal to reinstate striking employees
1. The facts
As above related, the Association and the Union were unable to reach agreement
by midnight Thursday , November 15, 1962. The employees of the Association's
members refused to work without a contract and, as a result, on the following Monday,
November 19, all of the employees of the Association , including the Respondent,
failed to report to work. On November 21, after the Union and the Association had
reached an agreement and a contract had been executed , the employees of all of the
employer-members of the Association , with the exception of the Respondent , returned
to work.
Respondent claims that it was unaware of the reason that the Respondent's
employees did not work subsequent to the expiration of the contract term. According
to Kilby, and I credit him in this respect because it is uncontroverted , the last day of
work under the old contract was November 16, a Friday . On Saturday morning,
November 17, four or five employees came to the Respondent's shop. They were
Billy J . Starnes, James Young, Fred Campbell, and others . Billy J. Starnes told Kilby
on that occasion that he had a better job to go to and wanted his money. None of
the other employees spoke but he gave all of the employees present the money that
was owed them for the work they had performed for the Respondent . None of the
employees at that time , according to Kilby, said anything to him or to any other
representative of the Company about not working because the Union did not have a
contract . As far as Kilby knew , all of the men went to other jobs. James Young, one
of the employees , at a time not related to the record , asked for and received a termina-
tion slip which stated that he was terminated for lack of work.
On Thursday of the week beginning November 19, the Respondent put two non-
union replacements on the payroll for some work that had to be done and since that
time has employed other individuals , none of whom have been members of the Union.
1404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kilby admits that at one time in the period subsequent to the attempted withdrawal
from the Union he did offer a job to James Young and Young said that he would not
go to work for the Respondent because there was no contract with the Union
At any rate matters continued without the Respondent 's making any offer to ask the
men to return to work, with the exception of James Young . None of the men offered
to return to work for the Respondent until June 15, 1963 , a Saturday , when a number
of the striking employees visited the Respondent 's shop and offered unconditionally
to return to work. The men who made this visit were James J. Starnes, Jesse James
Starnes, Billy J . Starnes, J. Fred Campbell , James A. Young, and Billy Jack Barlow.7
C. V. Kilby, the individual who has been referred to at all times hereabove , was not
present. However , present was his brother , Darwin Kilby , the bookkeeper of the firm.
The men told Darwin Kilby that they were ready to go back to work . Darwin
Kilby gave them applications which they promptly filled out and left with him. None
of the men have ever been notified to return to work with the exception of Fred
Campbell, who was a foreman and evidently a supervisor . Campbell refused rein-
statement
According to C. V. Kilby, who testified without contradiction , the work at the
Respondent 's plant was intermittant .8 The only permanent employee, according to
Kilby, was Fred J. Campbell , and all the other men who are mentioned in this Deci-
sion were merely part of a pool of employees upon whom the Respondent would call
from time to time as they were needed for work as jobs came into the Respondent's
shop . Most of the work of the mechanics and improvers were performed on jobs
away from the Respondent 's plant, and as in most other building and construction
trades, the men worked when there was work and did not work when there was no
work for them on construction projects. According to Kilby, the only employees who
were considered part of this regular pool of employees from whom the Respondent
made selections as needed were, in addition to Campbell, Jess Staten , James E.
Young, Billy Joe Barlow, and Jesse James Starnes . However, Kilby maintained that
James J. Starnes , Billy J . Starnes, and Jack Loudy were not members of that regular
pool as they only worked for the Respondent upon one or two occasions, whereas the
other men were called in quite frequently.
2. Conclusions as to the refusal to reinstate
The Respondent contends that the employees who failed to work after November 16,
1962 , were, at best , economic strikers who were replaced and therefore were not
entitled to reinstatement . The Respondent further contends that in any event the
only regular employee that the Respondent had was Fred Campbell who refused rein-
statement and, therefore , the Respondent need not offer reinstatement or backpay to
any of these individuals . I do not agree.
With regard to the status of these individuals , as noted heretofore , the Respondent
refused to sign the November 21, 1962, agreement between the Association and the
Union . Since the Respondent did not effectively or timely withdraw from multi-
employer bargaining, its refusal to sign or be bound by the associationwide agreement
was, as heretofore found, an unfair labor practice within the meaning of Section
8 (a) (5) of the Act. Accordingly, I conclude and find that on and after November 21,
1962, the employees of the Respondent , who refused to report to work on Novem-
ber 19, 1962, became unfair labor practice strikers and I find further that the strike
was prolonged by the Respondent 's unfair labor practices.
With regard to the employees status of these individuals , I note that although they
may have gone to other jobs, there is no showing that the men , with the exception of
Young and Campbell, would have refused reinstatement by the Respondent had such
reinstatement been offered . I further note that the employees, with the possible
exception of James J. Starnes , Billy J. Starnes, and Jack Loudy were admittedly
members of the regular pool of employees from whom the Respondent would
normally select its employees .9 The Respondent had also further admitted, through
C. V. Kilby, that from time to time other nonunion employees were hired to do the
work which these employees would have performed had there not occurred the inter-
vening events.
7 There is no direct evidence in the record as to when Jess Staten or Jack Loudy made
application for reinstatement.
s This was admitted by employee Billy Jack Barlow, a witness for the General Counsel
e With regard to these three, there is no showing that the Respondent would not have
called them back had there been work for them had it not been for the intervening events.
UNIVERSAL INSULATION CORPORATION 1405
Accordingly, I find that when these employees made application for reinstatement,10
the Respondent refused to reinstate them because they were active members of the
Union. I shall, accordingly, recommend that they be reinstated and be given backpay.
I further find that the refusal to reinstate constitutes a discriminatory refusal within
the meaning of Section 8(a) (3) and (1) of the Act.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The operations of the Respondent, described in section I, above, occurring in con-
nection with the unfair labor practices described in section IV, 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 commerce and
the free flow of commerce.
VI. THE REMEDY
Having found that the Respondent has committed certain unfair labor practices, I
shall, pursuant to Section 10(c) of the Act, recommend that the Respondent cease
and desist from engaging in such unfair labor practices. I shall also recommend that
the Respondent take affirmative action to remedy the unfair labor practices it has
committed.
As the Respondent had attempted to withdraw at an inappropriate time from 1962
contract negotiations between the Union and the Association with the intention of not
being bound by any agreement concluded as a result of such bargaining, I shall recom-
mend that the Respondent, upon the Union's request, execute with the Union a copy
of the consummated agreement or indicate to the Union and the Association, in writ-
ing, that the Respondent is obligated and bound by the terms of the said agreement
and has become a party to it.
Also, having found that the Respondent has unlawfully refused to reinstate the
employees who made unconditional application for reinstatement namely James
Young, Bill Barlow, Jesse James Starnes, James J. Starnes and Billy J. Starnes, I
shall recommend that the Respondent reinstate each of them to their former or sub-
stantially equivalent positions, without prejudice to their seniority and other rights
and privileges, discharging, if necessary, any persons hired since November 21, 1962,
and make them whole for any loss of earnings they may have suffered because of the
discrimination against them by payment of a sum of money equal to the amount each
normally would have earned as wages from the date of their unconditional offer to
return to work until the actual date of reinstatement," less their net earnings during
the said period with backpay computed on a quarterly basis in the manner established
by the Board in F. W. Woolworth Company, 90 NLRB 289, 291, 294. I shall also
recommend that the Respondent pay to them, and be included in any backpay award
given to them, interest at the rate of 6 percent per annum in accordance with Isis
Plumbing & Heating Co., 138 NLRB 716.
In view of the nature of the unfair labor practices committed, the commission of
other unfair labor practices reasonably may be anticipated. I shall therefore recom-
mend that the Respondent cease and desist from in any manner infringing upon rights
guaranteed to its employees by Section 7 of the Act.
CONCLUSIONS OF LAW
1. Universal Insulation Corporation is an employer engaged in commerce within
the meaning of the Act.
2. International Association of Heat and Frost Insulating and Absestos Workers,
Local No. 46, is a labor organization within the meaning of the Act.
3. By failing and refusing to be a party to, and be bound by, the terms and condi-
tions of the collective-bargaining agreement executed by the Association and by the
Union on November 21, 1962, the Respondent unlawfully refused to bargain within
the meaning of Section 8(a) (5) and (1) of the Act.
10 June 15 in the case of all the employees with the exception of Jack Loudy who made
application on June 22.
11 With regard to Jess Staten and Jack Loudy, as heretofore noted, there is no direct
record evidence as to when or if they made application for reinstatement. -However, the
complaint alleges that- Staten made application on June 15, 1963, along with the others
and that Loudy made application on June 22, 1963. It would seem probable that they did
make such application but,the testimony as to that was inadvertently omitted. - I shall,
therefore, recommend that they be reinstated with backpay, the date of backpay to com-
mence as established in the compliance stage of this proceeding.
1406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. That the employees who went on strike on November 19, 1963, were economic
strikers until November 21, 1963, after which, by reason of the Respondent's refusal
to bargain with the Union, the said strikers became unfair labor practice strikers.
5. By failing and refusing to reinstate the employees, who had made, an uncondi-
tional offer to return to work, because of their membership and activities on behalf
of the Union, the Respondent violated Section 8(a) (3) and (1) of the Act.
6: The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and upon
the entire record in this proceeding I recommend that Universal Insulation Corpora-
tion, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to sign the agreement negotiated in 1962 and entered into between
Masters Insulators Association of Knoxville, Tennessee, and International Association
of Heat and Frost Insulating and Asbestos Workers, Local No. 46, on November 21,
1962.
(b) Failing and refusing to bargain with the above-named labor organization as
the exclusive representative of all mechanics, improvers, and applicators employed by
the Respondent at its Johnson City, Tennessee, shop, excluding all office clerical and
professional employees, guards, and supervisors, as defined in the Act, concerning
rates of pay, wages, hours of employment, grievances, and other conditions of
employment.
(c) Discouraging membership in and activities on behalf of the above-named labor
organization, or any other labor organization of its employees, by refusing to rein-
state Jess Staten, James Young, Bill Barlow, Jess J. Starnes, James J. Starnes, Billy J.
Starnes, and Jack Loudy, or any of its former employees, or in any other manner
discriminating in regard to their hire and tenure of employment or any term or con-
dition of employment.
(d) In any other manner interfering with, restraining, or coercing its employees
in the exercise of their rights to self-organization to form a labor organization, to join
or assist International Association of Heat and Frost Insulating and Asbestos Work-
ers, Local No. 46, or any other labor organization of their employees, to bargain
collectively through representatives of their own choosing, or to engage in other
concerted activities for the purposes of collective bargaining or other mutual aid or
protection, or to refrain from engaging in such activities.
2. Take the following affirmative action which is necessary to effectuate the policies
of the Act:
(a) Upon request, execute with the above-named Union as the exclusive repre-
sentative of its employees the collective-bargaining agreement dated November 21,
1962, and negotiated between the Association and the Union described above to suc-
ceed their agreement which expired on November 15, 1962.
(b) Upon request, bargain collectively with the above-named Union as the
exclusive representative of all its employees set forth above concerning rates of pay,
wages, hours of employment, grievances, and other conditions of employment.
(c) Offer to Jess Staten, James Young, Bill Barlow, Jesse James Starnes, James J.
Starnes, Billy J. Starnes, and James Loudy immediate and full reinstatement to their
former or substantially equivalent positions without prejudice to their seniority or
other rights and privileges, discharging if necessary any persons hired since Novem-
ber 21, 1962, and make them whole for any loss of earnings they may have suffered
as a result of the discrimination against them, as provided in the section of this
Decision entitled "The Remedy."
(d) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security records, timecards, per-
sonnel records and reports, and all other records necessary to analyze the amount
-of backpay and interest due.
(e) Post at its plant at Johnson City, Tennessee, copies of the attached notice
marked "Appendix." 12 Copies of the notice, to be furnished by the Regional Director
s' If this Recommended Order is adopted by the Board, the words "a Decision and
Order" shall be substituted for the words "the Recommended Order of a Trial Examiner"
in the notice . If the Board's Order is enforced by a decree of a United States Court of
Appeals, the notice will be further amended by the substitution of the words "a Decree
of the United States Court of Appeals, Enforcing an Order" for the words "a Decision
and Order."
UNIVERSAL INSULATION CORPORATION 1407
for Region 10, shall after being duly signed by the Company's representative, be posted
by the Company immediately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps shall be taken by Respondent
to insure that said notices are not altered, defaced, or covered by any other material.
(f) File with the Regional Director for Region 10, in writing, within 20 days of
the date of the service of this Trial Examiner's Decision and Recommended Order,
what steps have been taken to comply herewith.13
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL, upon request, execute with International Association of Heat and
Frost Insulating and Asbestos Workers, Local No. 46, as the exclusive repre-
sentative of our employees, the collective-bargaining agreement dated Novem-
ber 21, 1962, which the said union has previously negotiated with Masters
Insulators Association of Knoxville, Tennessee, of which we are a part, to succeed
our bargaining agreement that expired on November 15, 1962. The employees
included in the appropriate unit are:
All mechanics, improvers, and applicators, excluding all office clerical and
professional employees, guards, and supervisors, as defined in the Act.
WE WILL, upon request, bargain collectively with the above-named union as
the exclusive representative of our employees concerning rates of pay, wages,
hours of employment, grievances, and other conditions of employment.
WE WILL offer to Jess Staten, James Young, Bill Barlow, Jesse James Starnes,
James J. Starnes, Billy J. Starnes, and Jack Loudy, immediate and full reinstate-
ment to their former or substantially equivalent positions without prejudice to
their seniority or other rights and privileges, and make them whole for any loss
of earnings they may have suffered as a result of the discrimination against them.
WE WILL preserve and, upon request, make available to the Board or its agents
for examination and copying all payroll records, social security records, time-
cards, personnel records and reports, and all other records necessary to analyze
the amount of backpay due to the above-named employees.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their rights to self-organization, to form, join, or
assist International Association of Heat and Frost Insulating and Asbestos
Workers, Local No. 46, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in other concerted
activities for the purposes of collective bargaining or mutual aid or protection,
or to refrain from any or all such activities.
All our employees are free to become, remain, or refrain from becoming or remain-
ing members of any labor organization.
Dated-------------------
UNIVERSAL INSULATION CORPORATION,
Employer.
By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify the above-named 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 the Universal Military Training
and Service Act of 1948, as amended, after discharge from the Armed Forces.
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.
Employees may communicate directly with the Board's Regional Office, 528
Peachtree-Seventh Building, 50 Seventh Street N.E., Atlanta, Georgia, Telephone No.
Trinity 6-3311, Extension 5357, if they have any questions concerning this notice or
compliance with its provisions.
n If this Recommended Order is adopted by the Board, this provision shall be modified
to read : "Notify the Regional Director for Region 10, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith."