Wer-Coy Fabrication Co.

National Labor Relations Board - Board Decisions

Feb 14, 1984

268 N.L.R.B. 907 (N.L.R.B. 1984)

WER-COY FABRICATION CO.
Wer-Coy Fabrication Company and Local 292, Sheet
Metal Workers' International Association,
AFL-CIO. Case 7-CA-18588
14 February 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 17 February 1982 Administrative Law Judge
Arline Pacht issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, ' and
recommendations 2 and to adopt the recommended
Order as modified.
The judge found that Supervisor Colling's dis-
charge was "an essential part of Respondent's un-
lawful pattern of conduct designed to discourage
and prevent any employee from seeking enforce-
ment of his contractual rights or otherwise engag-
ing in concerted activity," and concluded, on the
basis of then existing precedent,3 that the Respond-
ent violated Section 8(a)(1) of the Act. In its recent
decision in Parker-Robb Chevrolet, 262 NLRB 402
(1982), the Board overruled the cited cases and an-
nounced that henceforth termination of supervisors
for their own union or concerted activity will not
be found unlawful whether they have engaged in
such activity by themselves or in alliance with
rank-and-file employees. Applying Parker-Robb to
these circumstances, we shall reverse the judge's
finding and dismiss the 8(a)(1) violation based on
Colling's discharge.
I The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products,
91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have careful-
ly examined the record and find no basis for reversing her findings.
I With respect to the Respondent's contention that a union-sponsored
strike on I June 1980 was in breach of a no-strike provision in the collec-
tive-bargaining agreement and thereby relieved the Respondent from any
further obligation to honor it, the judge found that the said strike could
not be relied on as grounds for rescission because the Association opted
for a judicial resolution of that controversy which precludes the Re-
spondent from claiming a second bite of the apple. In view of the fact
that agreement and execution of the successor agreement did not occur
until 18 June which reveals the absence of a no-strike provision in effect
on I June we find it unnecessary to pass on the judge's judicial resolution
finding.
3 Brothers Three Cabinets, 248 NLRB 828 (1980); Krebs & King Toyota,
197 NLRB 462 (1972).
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusion of Law
7:
"7. By discharging Anthony Dubich on 5 August
1980 Respondent violated Section 8(a)(3) and (1) of
the Act."
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Wer-Coy Fabrication Company, Warren,
Michigan, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order as
modified. 4
1. Delete from paragraph 2(d) any reference to
Frank Coiling.
2. Insert the following as paragraph 2(e) and re-
letter the subsequent paragraphs.
"(e) Expunge from its files any reference to the
unlawful discharge of Anthony Dubich on 5
August 1980 and notify him in writing that this has
been done and that evidence of this unlawful dis-
charge will not be used as a basis for future person-
nel actions against him."
3. Substitute the attached notice for that of the
administrative law judge.
' We shall modify the recommended Order by incorporating a provi-
sion requiring the Respondent to expunge from its files any reference to
the unlawful discharge of Anthony Dubich, and to notify the said em-
ployee in writing that Respondent has taken such action and that evi-
dence of the unlawful discharge will not be used as a basis for future per-
sonnel actions against him. See Sterling Sugars, 261 NLRB 472 (1982).
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to recognize and bargain
collectively with Local 292, Sheet Metal Workers'
International Association, AFL-CIO, as the exclu-
sive representative of our employees in the follow-
ing appropriate unit:
All full-time and regular part-time employees
employed by the Association engaged in sheet
metal work but excluding all office clerical
employees, guards and supervisors as defined
in the Act.
WE WILL NOT refuse to acknowledge that we
are bound by the terms of the collective-bargaining
agreement executed by the Union and the Metal
Fabricators and Engineers Association effective on
268 NLRB No. 124
907
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1 June 1980 which agreement expires by its terms
on 31 May 1985.
WE WILL NOT discourage membership in or ac-
tivities on behalf of the Union, or any other labor
organization, by terminating employees because
they engaged in union or other concerted activity
or by discriminating against them in any other
manner with respect to their hire, tenure, or any
other terms or conditions of employment.
WE WILL NOT in any manner interfere with, re-
strain, or coerce our employees in the exercise of
their right to self-organization; to form, join, or
assist labor organizations; to bargain collectively
through representatives of their own choosing; to
engage in concerted activities for the purposes of
collective bargaining or other mutual aid or protec-
tion as guaranteed by Section 7 of the National
Labor Relations Act, or to refrain from all such ac-
tivities.
WE WILL forthwith implement the above-de-
scribed agreement and give retroactive effect there-
to from I August 1980.
WE WILL recognize and bargain with the Union
as the exclusive bargaining representative of our
employees in the above appropriate unit.
WE WILL make whole our employees for any
loss of pay or other employment benefits owing
which they may have suffered by reason of our re-
fusal to implement the aforesaid agreement from 1
August 1980, with interest.
WE WILL adhere to the collective-bargaining
agreement when making job assignments, will
allow the Union to conduct an audit of our books
and payroll records to determine if any contribu-
tions are owing to benefit funds, and will utilize the
contractual employment referral procedures.
WE WILL offer reinstatement to employee An-
thony Dubich to his former position or, if it no
longer exists, to a substantially equivalent position,
without prejudice to his seniority or other rights
and privileges, dismissing, if necessary, replacement
employees hired by us on or after 5 August 1980
and WE WILL make Dubich whole for any loss of
earnings he may have suffered by reason of our
discrimination against him, with interest.
WE WILL expunge from our files any reference
to the unlawful discharge of Anthony Dubich on 5
August 1980 and WE WILL notify him in writing
that this has been done and that evidence of the
unlawful discharge will not be used as a basis for
future personnel actions against him.
WER-COY FABRICATION COMPANY
DECISION
STATEMENT OF THE CASE
ARLINE PACHT, Administrative Law Judge: Upon a
charge filed on November 28, 1980, by Local 292, Sheet
Metal Workers' International Association, AFL-CIO
(hereinafter Local -292 or the Union), a complaint issued
on January 15, 1981, and was amended on January 27,
charging that Wer-Coy Fabrication Company, the Re-
spondent, had engaged in unfair labor practices affecting
commerce within the meaning of Section 8(aXl), (3), and
(5) of the National Labor Relations Act, herein called
the Act. In substance, the complaint alleges that the Re-
spondent repudiated its contractual obligations to the
Charging Party and discharged employees Dubich and
Coiling for engaging in union activity. By timely answer,
the Respondent denied any wrongdoing. A hearing at
which all parties were represented was held in Detroit,
Michigan, on October 29 and 30, 1981.
Upon the entire record, and my observation of the de-
meanor of the witnesses and consideration of post-hear-
ing briefs, I make the following
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent, a Michigan corporation with its sole
office and place of business at 8646 Nine Mile Road,
Warren, Michigan, is engaged in custom metal fabrica-
tion. During the year ending December 31, 1980, a rep-
resentative period, the Respondent in the course and
conduct of its business operations purchased and caused
to be transported and delivered to its Warren plant vari-
ous metals and other goods and materials valued in
excess of S100,000 of which goods and materials valued
in excess of $50,000 were transported and delivered to its
plant directly from points outside the State of Michigan.
Upon the foregoing facts, the General Counsel alleges,
the Respondent admits, and I find that the Respondent is
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Charging Party, Local 292, is and has been at all
times material herein a labor organization within the
meaning of Section 2(5) of the Act.
111. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Parties' Collective-Bargaining History
On May 24, 1979, Oscar Werden, the Respondent's
president, executed a power of attorney authorizing the
Metal Fabricators and Engineers Association (hereinafter
the Association) to engage in collective-bargaining nego-
tiations on its behalf with Local 292.1 A few months
later, on August 25, Wer-Coy became a member of the
Association and thereby bound itself to the current col-
lective-bargaining agreement effective from June 1, 1978,
I The Respondent joined 19 other employer-members of the Associa-
tion.
908
WER-COY FABRICATION CO.
to May 31, 1980. In early September, the Respondent's
employees joined the Union and were assigned by
Werden to one of the three categories covered by the
contract; that is, journeymen, apprentice journeymen,
and production workers. 2
In April or May 1980, shortly before the negotiations
were to commence for a new collective-bargaining
agreement, Werden confided to employee Anthony
Dubich, who then was serving as shop steward, that he
wanted to be rid of the Union and return to the policies
and procedures the Company had followed before it
joined the Association. Notwithstanding this expression
of dissatisfaction, Werden did not withdraw from the As-
sociation. To the contrary, he participated in a number
of bargaining sessions until a somewhat violent incident
put an end to his attendance.3
The events which led to Werden's removal from the
negotiations stemmed from an unannounced tour of the
Respondent's facility by a Federal health and safety in-
spector who was accompanied by Local 292's president,
Willie Shoemaker. The inspector left a three-page letter
of alleged violations with the shop foreman, Charlie
Hahn, who transmitted it to Werden. Apparently en-
raged by these intrusions, Werden told Hahn, "[Y]ou tell
that son-of-a-bitch Shoemaker if he ever shows his fuck-
ing face in here I'm gonna shoot him." With this,
Werden drew a handgun from his desk drawer and
pointed it out of his office window.
When Shoemaker learned of this threat, he refused to
participate in negotiations until Werden was ousted from
the Association's bargaining panel. Whether Werden was
asked to resign or, as he contended, did so voluntarily
because he was "continually upset" with the Union, the
upshot was that he ceased attending the bargaining meet-
ings. Thereafter, a new agreement was executed, effec-
tive from June 1, 1980, to May 31, 1985. 4
Werden's dissatisfaction with the Union apparently
continued for in July he again expressed his desire to be
rid of union interference to his shop foreman, Frank
Colling, who also held journeyman status with Local
292. At the same time, he asked Coiling whether he
would remain in the Respondent's employ if the Union
were eliminated. As an inducement, Werden offered
Colling a raise from $32,000 to $40,000 if he would quit
the Union. A week later, Coiling declined Werden's
offer, indicating that he preferred to stay with the Union.
Soon after this conversation, Coiling and shop steward
Dubich, the only journeymen remaining in the Respond-
ent's work force at that time, were fired.
In mid-August, Werden sought out Donaldson and
told him that, since he was a small businessman with few
employees engaged in construction work, he wished to
be relieved of his obligation under the contract. Donald-
a These categories, based on differences in the workers' level of skill
and experience, determine the wage scale and benefits which the employ-
ees will receive.
3 Adam Donaldson, Local 292's business agent and member of the
Union's negotiating committee, recalled that Werden attended two meet-
ings. Werden believed he attended approximately 12 to 15 bargaining
meetings.
4 A memorandum of understanding was executed between the parties
extending the labor contract's termination date from May 31, 1982, to
May 31, 1985.
son suggested that Werden contact the Association with
respect to his problem. Subsequently, the Association's
president called Donaldson and asked if he had agreed to
the Respondent's withdrawal as Werden reported to him.
Donaldson emphatically denied having given such assent.
Nevertheless, in August, the Respondent ceased sub-
mitting reporting forms and payments to various fringe
benefit funds as required by the collective-bargaining
agreement. Further, although admitting that a number of
new employees have been hired since August, the Re-
spondent failed to refer them to the Union or to submit
the requisite benefit reports for them. Because of these
delinquencies, the Association authorized an audit of the
Respondent's payroll records by a certified public ac-
countant. Although the accountant attempted to conduct
an audit in 1980 and again in 1981, Werden refused to
make the company records available. Consequently, in
April 1981, the Respondent was suspended from the As-
sociation.
B. The Alleged Contract Breaches
The Respondent contends that the Union and its mem-
bers engaged in strikes and work stoppages in violation
of the no-strike provision of the collective-bargaining
agreement. 5 Specifically, the Respondent points to the
following five events in support of its contention.
According to Werden, the first incident occurred in
mid-November 1979, when the then shop steward pro-
tested the assignment of production employees to work
on certain equipment-a shear and nibbler-which he be-
lieved were reserved for journeymen. As a result of this
protest, the production employees were sent home for 1
or 2 days.
The record is vague as to how many employees were
involved or how this problem ultimately was resolved.
However, at the hearing, Werden asserted that the as-
signment of the production workers to the machines in
question was justified on two grounds. First, he main-
tained that many, but not all, of the items fabricated in
his shop came within the scope of work specifically re-
served for production employees under an appendix to
the collective-bargaining agreement. Alternatively,
Werden claimed that he was permitted to use production
employees for journeymen's work under section l(c) of
the labor contract which provides:
All shop fabrication work may be performed by
production workers . . . as long as 300 resident
journeymen (defined as members of Local 292), are
offered jobs of some manner in the industry, i.e.,
field or shop work.
Donaldson testified that in administering this provision
Local 292 maintains a list of all journeymen who cur-
rently are employed in the industry whether in field con-
struction or in the shops. An employer wishing to assign
a production employee to journeymen's work must con-
Art. X of the contract provides for grievance and arbitration machin-
ery and in sec. 3 states: "There shall be no cessation of work by strike or
lockout during the pendancy of the procedures provided for in this Arti-
cle."
909
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tact the Association to determine whether the require-
ment of section l(c) of the collective-bargaining agree-
ment is fulfilled. If 300 journeymen are not currently em-
ployed at that time, the employer then has 30 days to
substitute a journeyman for the production employee.
Werden conceded that he had not contacted the Associa-
tion to determine whether or not 300 journeymen were
currently employed.
Another incident, similar to the first, occurred a
month later on December 21 when the steward again
protested the assignment of a production employee to
the shear. On this occasion, Donaldson intervened and
resolved the matter by entering into an agreement
whereby Werden paid that employee a dollar over the
contract scale for production workers.
The third incident, occurring on May 23, 1980 while
collective-bargaining negotiations were underway, in-
volved a half-day work stoppage by an unspecified
number of the Respondent's employees. Werden testified
that the steward told him such walkouts were a common
tactic designed to bring pressure on members of the bar-
gaining committee.
Shortly thereafter, the Respondent's employees as well
as employees of several other Association members took
unauthorized vacations of I or 2 weeks. The Association
promptly brought an action against the Union in Federal
District Court. On or about June 8, 1980, an order issued
which, inter alia, enjoined the Union from encouraging
or inducing work stoppages under the guise of vacations.
The fifth and final act which the Respondent alleges
constituted both an unlawful strike and cause for dis-
charging two employees will be discussed in greater
detail below.6
C. The Discharges
Frank Coiling began working for the Respondent in
1966 and in the years thereafter held a variety of posi-
tions from welder to working foreman. 7 Although he
had no opportunity to lay off or hire employees during
the latter months of his employment, there were occa-
sions in the past when he had done so. Coiling also was
responsible for distributing jobs to the various employees
at the start of the shift and assigning any overtime which
might become available. He punched a timeclock and
took the same lunchbreaks as did the other employees,
but as working foreman, he earned 50 cents an hour over
the scale for other journeymen and also received a
yearly bonus. Both before becoming foreman and while
he occupied that position, he also served as a salesman
for the Company.
Dubich was employed by the Respondent in Novem-
ber 1979 and was classified as a journeyman. On August
1, 1980, on completion of a construction job in the field,
the Respondent laid off a crew of journeymen with the
exception of Dubich. However, on the same day,
s These same allegations form the basis for a breach of contract action
the Respondent commenced in 1981 against the Union. In that case,
which is pending in a Federal District Court, the Respondent seeks com-
pensatory and punitive damages as well as cancellation of the contract.
7 From time to time, the Respondent hired other employees who re-
placed Colling as foreman. However, he had resumed the position of
foreman several months prior to his discharge.
Werden warned Dubich that he might have to dismiss
him too because he was costing the Company too much
money. This forewarning became a reality several days
later.
Witnesses for the General Counsel and the Respondent
offered widely divergent accounts of the events leading
up to the discharge of these two men. Dubich testified
that he devoted a portion of the morning to assisting two
production employees, Eddie Werden and Simeon Geor-
gievski,8 to move steel sheets from the yard to the shop.
When a piece of equipment which they were using
stalled, Dubich attended to its repair. Then, at CoIling's
direction, Dubich performed a small task that took an-
other 45 minutes to I hour. During the latter part of the
morning, Coiling received a telephone order for a job to
be completed by the end of the day. He began laying out
drafting patterns while Dubich gathered together the
various metal sheets that would be needed for the oper-
ation. Next, the men began lifting 5-by-10 foot sheets
weighing approximately 200 pounds onto the shearing
table where Dubich cut them to specification. After a
lunch break of one-half hour, they resumed this work,
cutting in toto some 38 sheets. At approximately 1 p.m.,
Werden approached them and asked "is that all you've
done today?" Dubich attempted to explain what other
work he had accomplished, but Werden interjected,
"You're on strike." When Dubich protested that he was
neither striking nor quitting, Werden told him he was
fired. Coiling, who took no immediate role in this en-
counter, corroborated Dubich in all important respects
adding only that at some point Werden asked Dubich if
he intended to prevent him from using production work-
ers wherever he pleased. Dubich responded to this:
"Well, you haven't done anything yet, so there is noth-
ing for me to stop." At Werden's insistence, Dubich left
the plant to telephone the Union. While he was gone,
Coiling indicated to Werden that he did not wish to
work without a steward on the job. At this, Werden
fired Coiling too. Both men then were issued paychecks
covering 7 hours of work and received termination slips
which offered no reason for the discharges.9 Subsequent-
ly, at Donaldson's request, identical official separation
notices were prepared and signed by Werden which re-
cited as the cause of the discharges: "Fired-was not
working. Failed to work to normal capacity-Employer
considered worker to be on strike."
According to Werden, on the day preceding the dis-
charges, Dubich cautioned him that since the construc-
tion crew had been laid off the previous week no pro-
duction workers could perform journeyman's work.
Werden stated that he tried to arrange a meeting to re-
solve this problem with Donaldson for the following
morning. When Donaldson failed to appear, Werden
went on to the floor shop at approximately 11 a.m. and
told Dubich that the production workers were going to
work. I 0
8 Ed Werden is Oscar Werden's son. On August 5, three production
workers were in the Respondent's employ.
9 The August 5 timecards for Dubich and Coiling showed that they
worked 7 hours and received an additional hour's wages to which they
were entitled under the union contract.
10 Donaldson contended that he had no knowledge of an August 5
meeting with Werden.
910
WER-COY FABRICATION CO.
Werden further testified that at some point in the
morning he instructed his son Edward and Georgievski
to begin producing pipe on the rolling machine using the
metal sheets which Dubich had cut. On seeing this,
Dubich left the shear, approached Werden who was
standing near another piece of equipment, a pull-max,
and expressed concern for the safety of the production
workers who, he contended, were not sufficiently experi-
enced to work on the rolling machine. Werden respond-
ed that his son and Georgievski were competent to per-
form their assigned tasks and ordered Dubich back to
work. Werden related that he warned Dubich his con-
duct was tantamount to a strike and that unless he re-
sumed working Werden would regard him as having
quit. When Dubich retorted the only way Werden would
get rid of him would be to fire him, Werden fired him on
the spot. Werden recalled that during this exchange Coil-
ing was 12 feet away.
To the extent that Ed Werden recalls the events of
August 5, he corroborates the discharged employees in
certain respects and his father in others. Thus, he con-
firmed that he had worked with Dubich for much of the
morning, and agreed that Dubich had cut at least 20 to
24 sheets on the shear. In fact, he indicated that the
work which Dubich had produced that morning was suf-
ficient to keep him and his coworker occupied for the
balance of the day. However, he supported Oscar Wer-
den's testimony with respect to his and Georgieviski's as-
signment to work on the rolling machine. He further ob-
served a confrontation between his father and Dubich at
the pull-max machine which he thought occurred at ap-
proximately 11:30 a.m. not I p.m. He also had no recol-
lection of Dubich working on the shear immediately
prior to the encounter nor could he recall where Coiling
was during the exchange. Although he was unable to
hear what was said, he stated that, after Dubich left the
plant, his father said to him, "Oh, another strike" but
failed to mention that he had just fired both men or the
reason for their discharges. Shortly after this event, Ed
Werden testified that he ceased paying his union dues,
believing that he should cast his lot with his father.
IV. DISCUSSION
A. The Respondent Unlawfully Repudiated the
Collective-Bargaining Agreement
As the facts set forth above show, the Respondent was
a member of the Association since August 1979 and
bound by that organization's current collective-bargain-
ing agreement with Local 292. At no time did the Re-
spondent submit a written notice of withdrawal prior to
the commencement of multiemployer negotiations in
June 1980. Consequently, absent unusual circumstances
which might justify the Respondent's failure to abide by
the terms of that agreement, a finding that the Respond-
ent violated Section 8(a)(5) and (1) is warranted. See
Charles D. Bonanno Linen Service v. NLRB, 454 U.S. 404
(1982); Retail Associates, Inc., 120 NLRB 388 (1958).
Unusual circumstances have been interpreted consist-
ently by the Board and the courts to apply to those situ-
ations in which an employer has been faced with dire
economic circumstances in which its very existence as a
viable business entity has ceased or is about to cease. See
Charles D. Bonanno Linen Service v. NLRB, supra;
Custom Sheet Metal Co., 243 NLRB 1102, 1110-11
(1979).
During the hearing in this matter, Werden referred
vaguely to business losses which he implied were caused
by deliberate employee work stoppages or slowdowns.
However, the Respondent made no effort to document
or substantiate a claim of extreme financial loss which
might otherwise justify a failure to comply with its con-
tractual obligations. Instead, the Respondent defended its
conduct by arguing that the Union's material breaches of
the no-strike provision in the labor contract relieved it
from observing the terms of that agreement. In support
of this position, the Respondent relies principally on
Marathon Electric Mfg. Co., 106 NLRB 1171 (1953), enfd.
223 F.2d 338 (D.C. Cir. 1955), cert. denied 350 U.S. 981
(1956). In that case, a union demanded modification of
the collective-bargaining agreement without complying
with Section 8(d) of the Act and supported its demand
by calling a strike of 18 days' duration involving all em-
ployees, in violation of a no-strike clause in the contract.
Consequently, having no notification of the strike's ter-
mination, the employer discharged the striking employ-
ees and canceled the contract. The Board held that "In
these circumstances, we find Respondent's unilateral can-
cellation of the contract did not constitute a violation of
Section 8(aX5) and (1)."
Subsequent cases cast some doubt on the continued vi-
tality of the Marathon principle and suggest that a
union's breach of a no-strike clause is not automatically
sufficient to nullify the entire contract. See, e.g., State
Electric Service, 198 NLRB 595 (1972), enfd. 477 F.2d
749 (5th Cir. 1973); Williams Enterprises, 212 NLRB 880,
886-887 (1974). However, it is unnecessary to determine
whether the Marathon doctrine is applicable to the facts
of the instant case, for here, there are other reasons why
the employer's argument cannot prevail. Even assuming
that work stoppages occurred on November 13 and 14,
December 21, May 23, and June 1, 1980, in violation of
the no-strike provision of the collective-bargaining agree-
ment, these episodes happened during the term of the
Association's former contract with Local 292."1 When
that contract expired, the Respondent continued its mem-
bership in the Association after it executed a new agree-
ment. Accordingly, the Respondent waived any claim of
previous breaches and may not resurrect them now as
breaches of the superseding contract for purposes of re-
scission. Of course, the Respondent could seek other
remedies such as damages if proof is available. But it
may not be discharged of its obligations under the
present contract for alleged breaches of a contract which
has ceased to exist.
There is an additional reason why the Respondent may
not rely on the strike which commenced June 1, 1980, as
I' With the exception of the June 1 strike, there is no evidence that
these incidents were prompted or endorsed by the Union. Rather, they
appear to have been spontaneous acts of a small number of employees.
Thus, the Respondent might have sought timely, appropriate relief
against the participants, but could not hold the Union liable for the inde-
pendent acts of some of its members.
911
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
grounds for rescission. That was the only episode cited
by the Respondent which clearly had union sponsorship.
However, the Association promptly elected to obtain a
judicial resolution of that controversy. Having obtained
the advantages of injunctive relief, the Respondent may
not now claim a second bite of the apple.
The only event which the Respondent mentioned as an
alleged breach of the current contract is the purported
work stoppage on August 5, 1980. As I find below, how-
ever, Dubich was simply attempting to correct what he
viewed as the Respondent's violation of a term in the
collective-bargaining agreement. Therefore he was en-
gaged in protected concerted activity which in no way
violated the no-strike provision of the contract. Even if I
were to find that the employees were involved in an ille-
gal work stoppage, as the Respondent contended, such
conduct by only two employees which was of such short
duration would fall far short of the magnitude required
to effect a suspension of the Respondent's duty to fulfill
its contractual undertaking. See Sheet Metal Workers
Local 418, 227 NLRB 300, 302 (1976). If the Respondent
believed that its employees were engaged in an illegal
work stoppage, then its proper course of action was to
invoke the grievance machinery to seek a final and bind-
ing construction of the contract. See Williams Enter-
prises, Inc., supra at 886-887; NLRB v. State Electric Serv-
ice, 477 F.2d 749, 752 (1973). By failing to seek a peace-
ful resolution, the Respondent revealed that it had decid-
ed to seize this opportunity to rid itself of the Union.
In view of the foregoing considerations, I conclude
that the Respondent unlawfully repudiated its collective-
bargaining agreement with the Union and unilaterally al-
tered the terms and conditions of employment of unit
members in violation of Section 8(a)(5) and (1) of the
Act.
B. The Discharges Were Unlawful
The General Counsel contends that the discharges of
Colling and Dubich must be viewed as an integral part
of the Respondent's stratagem to evade the responsibil-
ities imposed by the collective-bargaining agreement.
The Respondent counters that the employees brought
the dismissals on themselves by refusing to work and en-
gaging in an unlawful strike. In addition, the Respondent
contends that Coiling was a supervisor and therefore was
unprotected by the Act. The General Counsel denies
Colling's supervisory status, but submits alternatively
that even if he were a supervisor his termination violated
Section 8(a)(1) of the Act. I find merit in the General
Counsel's contentions.
The discharges of Dubich and Coiling must be set in
the context of the Respondent's increasing antipathy
toward the Union. Thus, on several occasions he ex-
pressed his displeasure with the economic consequences
imposed by his membership in the Association and also
made plain his desire to be rid of his contractual obliga-
tions. No more vivid demonstration of his hostility
toward the Union can be found than in the gun-slinging
episode which occurred during contract negotiations in
1980. Several weeks before the discharge, he tried to un-
dermine Colling's loyalty to the Union with an $8,000
raise. Within days of the dismissal, he threatened Dubich
with termination because of the costs involved with his
wage level.
On August 1, the Respondent was in a position to lay
off all but two of the journeymen in his shop for legiti-
mate business reasons. Then, on August 5, Werden seized
on a relatively minor event as a ruse to remove from the
plant the last two journeymen in the shop and the only
persons who might hold him to account for flouting the
terms of the collective-bargaining agreement.
An examination of the shifting reasons offered for
these terminations exposes the pretextual nature of the
Respondent's asserted defense. Thus, initially, the termi-
nation notices implied that Dubich and Coiling were ter-
minated for being nonproductive over the course of the
morning. However, at the hearing, Werden offered dif-
ferent provocations as grounds for the discharges. There,
he testified that when Dubich objected to production
employees performing journeymen's work and Coiling
refused to work without a shop steward, both men were
engaged in an unlawful strike. Where an employer vacil-
lates in offering a rational and consistent account of its
actions, an inference may be drawn that the real reason
for its conduct is not among those advanced. See Electro-
Plating Specialties, 236 NLRB 534 (1978); Steve Aloi Ford,
179 NLRB 229 (1964). Such an inference is warranted
here.
Moreover, neither of the excuses the Respondent ten-
dered as grounds for the terminations has any validity.
Werden's first assertion that the men did not work to ca-
pacity on the morning of the discharge is flatly contra-
dicted by the record. Timecards introduced into evi-
dence establish that the confrontation between Dubich
and Werden did not occur until approximately I p.m.
Prior to that time, both Dubich and Coiling were com-
pletely attentive to their tasks. The record also shows,
contrary to the Respondent's contention, that Dubich's
activity on the date of his discharge was too brief in du-
ration to rise to the level of a strike or work stoppage.
See Anheuser-Busch, Inc., 239 NLRB 207 (1978). By
Werden's own account, Dubich was fired within minutes
of the time he left his work station and approached him
at the pull-max machine. Werden never testified that
Dubich refused to return to work. The most that can be
said, even accepting Werden's version of the encounter,
is that Dubich put a temporary halt to his work in an
effort to enforce the labor contract. 12 By seeking to
obtain compliance with the collective-bargaining agree-
ment, Dubich was serving a concerted purpose in the in-
terest of all employees, and by so doing is guaranteed the
protections of the Act. Key City Mechanical Contractors,
227 NLRB 1884, 1857 (1957); Interboro Contractors, 157
NLRB 1295 (1966), enfd. 388 F.2d 495 (2d Cir. 1967).
Whether or not Dubich correctly construed the 300 jour-
neyman rule is immaterial "for even when an employee's
construction of a contract is wrong, his efforts in enforc-
12 Although Dubich did not remember having challenged the perform-
ance of journeymen's work by production employees on the date in ques
tion, Coiling did recall some discussion of that issue. He did not, howev-
er, hear any exchange having to do with safety. Coiling impressed me as
a trustworthy witness. Therefore, based on his testimony, I find that
Dubich did not object to the production employees' inexperience in oper-
ating the equipment.
912
WER-COY FABRICATION CO.
ing the agreement are nonetheless protected." Maryland
Shipbuilding & Dry Dock Co., 256 NLRB 410 (1981).
The varying reasons offered by the Respondent for
Colling's discharge are as spurious as those it gave for
Dubich's termination. I am convinced that Coiling was
dismissed because he, too, posed a threat to Werden's re-
pudiation of the labor contract. Notwithstanding this
conclusion, separate questions arise as to whether Coiling
was a supervisor and, if so, whether he is thereby denied
the benefits of the Act.
A fine line often must be drawn in determining wheth-
er a senior employee such as Coiling is merely imple-
menting decisions of a routine nature or genuinely exer-
cising authority calling for independent judgment. While
it is a close question, the evidence leads to the conclu-
sion that Coiling was a supervisor within the meaning of
Section 2(11) of the Act. It is true that CoIling shared
some of the same terms and conditions of employment
applicable to the rank-and-file employees: he punched a
timeclock, was hourly paid, took the same lunch hour,
and spent most of his time on the shop floor as a work-
ing foreman. Moreover, he clearly did not view himself
as arm of management when he allied himself with the
Union's cause on August 5. On the other hand, it is
equally true that he had the authority to hire and fire
even if that authority was not recently exercised. Fur-
ther, he earned more than the other employees and even
received a bonus on at least one occasion. Significantly,
he was responsible for assigning tasks to the other em-
ployees, for setting up the fabricating jobs on the ma-
chines and for insuring that specifications were met.
Indeed, on the day of his discharge, with Werden absent
for most of the morning, Coiling alone was responsible
for assuring that a job was completed by the end of the
day. In sum, his duties called for the exercise of inde-
pendent judgment, a hall mark of supervisory status. See
Johnson Bronze Co., 232 NLRB 845 (1977).
Although I conclude that Coiling was a supervisor, it
does not follow that he is altogether deprived of relief
under the Act. The general rule is, of course, that super-
visors are not per se protected from discharge or other
discipline for engaging in union or concerted activity.
The Board has carved out certain exceptions to the rule,
however, where the discipline imposed on a supervisor
infringes on the employees' Section 7 rights. The ration-
ale underlying one such exception is well stated in Broth-
ers Three Cabinets, 248 NLRB 828, 828-829 (1980),
where the Board observed that:
[T]he evidence may be sufficient to warrant a find-
ing that the employer's conduct, as a whole, includ-
ing the action taken against its supervisors, was mo-
tivated by a desire to discourage union activities
among its employees in general and thus constitutes
what the Board has characterized as a pattern of
conduct aimed at coercing employees in the exer-
cise of their Section 7 rights. By such acts the em-
ployer has exceeded the bounds of legitimate con-
duct intended to discourage union activity among
its supervisors. And, more importantly, it has inten-
tionally created an atmosphere of coercion in which
employees cannot be expected to perceive the dis-
tinction between the employer's right to prohibit
union activity among supervisors and their right to
engage freely in such activity themselves.
In the present case, the evidence fully supports the Gen-
eral Counsel's contention that Werden viewed the dis-
charges of both Coiling and Dubich as necessary to his
scheme to extricate himself from the economic conse-
quences of unionization. It may well be that the Re-
spondent was incensed that Coiling, an employee of
more than 15 years' standing, would align his interests
with those of the Union by refusing to work without a
shop steward. But the summary dismissal of a long-term
and evidently trusted employee because he momentarily
resists his employer's command is not an act borne out of
"a legitimate desire to assure the loyalty of its manage-
ment personnel" nor is it "reasonably adapted" to that le-
gitimate end. Id. at 828. Rather, Coiling fell victim to
Werden's antipathy to the Union and his desire to
remove any person who might oppose his antiunion ma-
neuvers. The Respondent was not simply ridding itself of
another union adherent. Rather, Colling's discharge was
an essential part of the Respondent's unlawful pattern of
conduct designed to discourage and prevent any employ-
ee from seeking enforcement of his contractual rights or
otherwise engaging in concerted activity. See Brothers
Three Cabinets, supra; Krebs & King Toyota, 197 NLRB
462 (1972); Pioneer Drilling Co., 162 NLRB 918 (1967),
enfd. in material part 391 F.2d 961-963 (10th Cir. 1968).
Indeed, the Respondent's scheme had its intended effect,
for after the discharge, at least two employees ceased
paying union dues and no new employee contacted
Local 292 thereafter.
Based on all of the above, it is clear that Colling's dis-
missal violated Section 8(aXl) and Dubich's termination
Section 8(aX3) and (1) of the Act.
CONCLUSIONS OF LAW
1. Wer-Coy Fabrication Company is an employer
within the meaning of Section 2(2) of the Act, engaged
in operations affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Local 292, Sheet Metal Workers' International As-
sociation, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. At all times material herein the Associated Metal
Fabricators and Engineers has been an organization com-
posed of employers in the construction industry which
exists for the purpose, inter alia, of representing its mem-
bers in negotiating and administering collective-bargain-
ing agreements with Local 292.
4. All full-time and regular part-time employees em-
ployed by the members of the Association who are en-
gaged in sheet metal work, but excluding all office cleri-
cal employees, guards and supervisors as defined in the
Act constitute a unit appropriate for the purposes of col-
lective bargaining within the meaning of Section 9(b) of
the Act.
5. At all times material herein, the Association has
been authorized by the Respondent to bargain collective-
ly on its behalf with the Union concerning wages, hours,
913
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and other terms and conditions of employment of the
Respondent's employees in the above-described unit.
6. At all times material herein, the Respondent has
been and is now an employer-member of the Association
described above in paragraph 3. Since on or about
August 5, 1980, the Respondent by its agent, Oscar
Werden, has refused to abide by and has repudiated its
obligations under the collective-bargaining agreement be-
tween the Association and Local 292 in violation of Sec-
tion 8(a)(5) and (1) of the Act by (a) not adhering to the
terms of the contract when making job assignments; (b)
failing to contribute to the benefit funds established by
the collective-bargaining agreement; (c) not permitting
the Charging Party to audit its books to determine the
contributions owing, if any, to the contractual benefit
funds; and (d) failing to utilize the contractual employ-
ment referral procedures.
7. By discharging Anthony Dubich on August 5, 1980,
the Respondent violated Section 8(a)(3) and (1) of the
Act and, by discharging Frank Coiling on the same date,
the Respondent violated Section 8(a)(1) of the Act.
8. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent engaged in unfair
labor practices proscribed in Section 8(a)(5), (3), and (1)
of the Act, I shall recommend that it cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act, including recognizing
the Union as the exclusive collective-bargaining repre-
sentative of its employees in the appropriate unit de-
scribed above and complying with the terms and provi-
sions of the collective-bargaining agreement effective
June 1, 1980, to May 31, 1985, between the Association
and Local 292. Further, having found that the Respond-
ent has unlawfully failed and refused to comply with the
terms and provisions of the collective-bargaining agree-
ment negotiated by its duly designated multiemployer
bargaining representative, I shall recommend that the
Respondent comply therewith retroactive to August 1,
1980, and continuing from that date. Interest shall be
paid on any wages or fringe benefit contributions13
which may be owed to employees hired since August 5,
1980, in accordance with Florida Steel Corp., 231 NLRB
651 (1977). 14
In addition, having found that the Respondent unlaw-
fully terminated employees Coiling and Dubich, it will
be required to offer them immediate reinstatement to
their former positions of employment or, if such posi-
tions no longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights and
privileges, dismissing if necessary anyone who may have
been assigned or hired to perform the work that either
Dubich or Coiling performed prior to their terminations
on August 5, 1980. Further the Respondent will be re-
a3 Because the provisions of employee benefit fund agreements are
variable and complex, such matters shall be resolved at the compliance
rather than the adjudicatory stage for the imposition of interest at a fixed
rate on unlawful withheld fund payments. See Hayden Electric, Inc., 256
NLRB 601 (1981).
14 See generally Isis Plumbing Co., 138 NLRB 716 (1962).
quired to make Dubich and Coiling whole for any loss of
earning they may have suffered by reason of their unlaw-
ful terminations on August 5, 1980, with backpay to be
computed on a quarterly basis, making deductions for in-
terim earnings, and with interest to be paid on the
amounts only and to be computed in the manner pre-
scribed in F. W. Woolworth Co., 90 NLRB 289 (1950),
and Florida Steel Corp., 231 NLRB 651 (1977).
Finally because of the egregious nature of the viola-
tions found herein; that is, the Respondent's wholesale
repudiation of its collective-bargaining obligations, and
discharge of the shop steward and foreman, I shall rec-
ommend a broad cease-and-desist order. Hickmott Foods,
242 NLRB 1357 (1979).
On these findings of fact and conclusions of law and
on entire record, I issue the following recommended
ORDER '
The Respondent, Wer-Coy Fabrication Company,
Warren, Michigan, its officers, agents, successors, and as-
signs, shall
I. Cease and desist from
(a) Refusing to acknowledge that it is bound by the
terms of the collective-bargaining agreement executed by
Local 292 and the Metal Fabricators and Engineers As-
sociation effective on June 1, 1980, which agreement ex-
pires by its terms on May 31, 1985.
(b) Refusing to recognize or bargain collectively with
Local 292, Sheet Metal Workers' International Associa-
tion, AFL-CIO, as the exclusive representative of its em-
ployees in the following appropriate unit:
All full-time and regular part-time employees em-
ployed by the Respondent engaged in sheet metal
work but excluding all office clerical employees,
guards and supervisors as defined in the Act.
(c) Discouraging membership in or activities on behalf
of the Union or any other labor organization, by dis-
charging employees and refusing to reinstate them or by
discriminating against them in any other manner with re-
spect to their hire, tenure, or any terms or conditions of
employment because they have engaged in union or con-
certed activities.
(d) Unilaterally changing any of the terms and condi-
tions of employment of the employees in the unit herein
found appropriate, without bargaining with the Union.
(e) In any other manner interfering wit h , restraining,
or coercing employees in the exercise of their rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action which will ef-
fectuate the policies of the Act.
(a) Recognize and bargain with the Union as the ex-
clusive bargaining representative of its employees in the
above appropriate unit.
"' If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
914
WER-COY FABRICATION CO.
(b) Forthwith implement the above-described agree-
ment and give retroactive effect thereto from August 1,
1980, including adhering to the contractual job assign-
ment and employment referral procedures.
(c) Make whole its employees for any loss or disparity
of pay or loss of other employment fringe benefits which
they may have suffered by reason of the Respondent's
refusal to implement the aforesaid agreement since
August 5, 1980, with interest in the manner set forth in
the section of this Decision entitled "The Remedy."
(d) Offer to Frank Coiling and Anthony Dubich im-
mediate and full reinstatement to their former position
or, if those positions no longer exist, to substantially
equivalent positions, without prejudice to their seniority
and other rights and privileges, dismissing, if necessary,
any replacement employees hired on or after August 5,
1980, and make Dubich and Coiling whole for any loss
of earnings they may have suffered by reason of the dis-
crimination against them, in the manner described in the
section of this Decision entitled "The Remedy."
(e) Preserve and, on request, make available to the
Board or its agents and to the Charging Party for exami-
nation and copying, all payroll records, social secruity
payment records, timecards personnel records and re-
ports and all other records necessary or useful in analyz-
ing the amount of backpay and other contributions
which may be owing to benefit funds due under the
terms of this Order.
(f) Post at its Warren, Michigan plant copies of the at-
tached notice titled "Appendix."1 6 Copies of said notice
on forms provided by the Regional Dirctor for Region 7,
after being duly signed by the Respondent's authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive
days in conspicuous places including all places where no-
tices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that
said notices are not altered, defaced, or covered by any
other material.
(g) Notify the Regional Director within 20 days from
the date of this Order what steps the Respondent has
taken to comply.
'" If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
915