Sheet Metal Workers' Int'l Assn., Local 270

SHEET METAL WORKERS' INT'L ASSN., LOCAL 270 773 The Respondent was not obligated to bargain with him or his nominal union and therefore any refusal to recognize him could not constitute an unfair labor practice.8 Except for the Respondent Company, all other parties to this proceeding-the General Counsel, the Independiente, and "Local 610, AFL-CIO"-are the same as those involved in the Dorado Beach Hotel and the Miramar Charterhouse cases. And as the Respondent 's counsel, Mr. Wells, stipulated to the records of those cases, there is no question but that the Respondent is equally well informed about them, including the Trial Examiner reports which I issued in each of them .9 No purpose would be served , therefore , by restating the rationale for the inevitable conclusion compelled by the facts in the two earlier records. As the Respondent Company was under no statutory obligation to bargain with Ramos and his "Local 610," the complaint allegation of a violation of Section 8(a)5) of the Act must fail. In these circumstances , the Respondent's treatment of the Independiente , at best an invitation that it get together with Ramos to decide exactly who was to represent the casino employees , could in no event constitute a violation of Section 8(a) (2). RECOMMENDATION Upon the basis of the foregoing findings and conclusions, I recommend that the complaint herein be dismissed in its entirety. 8 Rocky Mountain Phosphates, Inc, 138 NLRB 292. U See Trial Examiner's report and recommendations on objections to election, issued in Case No. 24-RC-1726 [144 NLRB 712] on November 27, 1962, and Intermediate Report and Recommended Order issued in Case No. 24-CA-1606 [144 NLRB 728], on Decem- ber 6, 1962. Sheet Metal Workers' International Association, Local Union No. 270 and General Sheet Metal Co. Case No. 16-CB-201. September 23, 1963 DECISION AND ORDER On April 5, 1963, Trial Examiner William Seagle issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondent had not engaged in the unfair labor practices alleged in the complaint and recommending that it be dismissed in its entirety, as set forth in the attached Intermediate Report. Thereafter, the Gen- eral Counsel filed exceptions to the Intermediate Report and a sup- porting brief. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the In- termediate Report, the exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner. [The Board dismissed the complaint.] MEMBERS LEEDOM and JENKINS took no part in the consideration of the above Decision and Order. 144 NLRB No. 69. 774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon a charge duly filed on October 30, 1962, a complaint dated December 21, 1962, was issued against the Respondent, charging it with violation of Section 8(b)(1)(B) and 8(b)(3) of the Act. A hearing was held before Trial Examiner William Seagle at Tulsa, Oklahoma, on February 19, 1963, with respect to these charges. At the conclusion of the hear- ing, counsel on both sides waived oral argument but subsequently filed briefs which have been duly considered. Upon the record so made, and in view of my observation of the witnesses, I hereby make the following findings of fact: 1. THE BUSINESS OF THE EMPLOYER At all material times, General Sheet Metal Co. (hereinafter referred to as Gen- eral) has been an Oklahoma corporation, which has maintained its principal office and place of business at 1102 East Second Street, Tulsa, Oklahoma, where it has engaged in the manufacture, sale, and distribution of sheet metal products. During the past year, General, in the course and conduct of its operations, has caused to be manufactured, sold, and distributed products valued in excess of $175,000, of which products valued in excess of $50.000 were furnished to, inter aka, Warner-Lewis Company, Division of Fram Corp, Spartan Aircraft; National Tank Company; Instruments, Inc., a Division of National Tank Company; Jones-Laughlin Steel Company; Webster Engineering, Division of Midland-Ross Corporation; Sun- ray DX Oil Company; DuPont (EI) Nemours; Texaco, Inc., and International Harvester, each of which is located in the State of Oklahoma but each of which annually furnishes services or handles or ships goods valued in excess of $50,000 directly outside the State of Oklahoma. The Respondent admits that General is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that its operations meet the minimum jurisdictional standards of the Board. II. THE RESPONDENT The Respondent, Sheet Metal Workers' International Association, Local Union No. 270 (hereinafter referred to as the Union), is a labor organization within the meaning of Section 2(6) and (7) of the Act. At all material times (since January 1962), the Union has been the exclusive representative of all the employees of General at its Tulsa, Oklahoma, plant and on its building and construction jobs, exclusive of office clerical employees, guards, watchmen, and supervisors as defined in the Act, and such employees have constituted a unit appropriate for the purposes of collective bargaining. III. THE ALLEGED UNFAIR LABOR PRACTICES The principal figure in the present case, so far as General is concerned, is Joseph P. Moran, its president, who was responsible for determining the policies of the Company. The Union was represented principally by B. J. Reinhard, its business agent. The Union had represented all shop employees of General for about 16 years, having been recognized as their exclusive bargaining agent by Moran's father in 1946. General bargained with the Union through a multiemployer group, the Tulsa Sheet Metal Contractors Association (hereinafter referred to as the Association). The last contract negotiated by the Association became effective on June 1, 1959, and expired on May 31, 1961. Although Moran had been vice president of the Asso- ciation, and had twice served on its negotiating committee, Moran and his father, who was then still alive, decided to withdraw from the Association, and did so, in February 1961. Apparently, the reason for the withdrawal was that they felt that the Association was dominated by E. V. ("Red") Hunt, who, they believed, always handpicked its negotiating committee. Under date of February 27, 1961, the Union sent a notice to its contracting em- ployers of its desire to negotiate a new agreement. Attached to the notice were proposed terms of a new contract. The effect of the notice was to terminate the existing contract upon its expiration date. Under date of May 23, 1961, the Union sent a letter to General, indicating the probability of a strike, and suggesting that if the Company wished to avoid a work stoppage that it execute an interim agree- ment with the Union, pending the negotiation of a new contract to be executed between SHEET METAL WORKERS' INT'L ASSN., LOCAL 270 775 the Union and the Association . Under date of June 1, 1961 , General entered , there- fore , into an interim agreement with the Union . Moran, after reading the agreement, signed it on behalf of General, and Reinhard signed it on behalf of the Union. The interim agreement, so executed,' contained the two following provisions: 8. It is understood by the Employer , that it is contemplated by the Union to continue negotiation with the Tulsa Sheet Metal Contractors Association for a contract, which is hereby agreed by the Employer signatory hereto, will super- sede this interim agreement. 11. This interim agreement entered into on the date affixed below shall remain in effect until the Employer is presented with, and the Union receives executed copies thereof, of the negotiated agreement which shall supersede this interim agreement. At the time this interim agreement with General was signed , negotiations between the Union and the Association were already proceeding , and by June 9, 1961, ap- parently, the parties had already worked out the substance of an agreement , although drafting problems still remained. It appears that the Union also entered into interim agreements with other em- ployers in the industry who were not members of the Association One of these agreements , which is in evidence ,2 was dated June 13, 1961, and was entered into with the General Engineering Corporation . It provided as follows: 1. The undersigned Employer by affixing his signature hereto agrees to the Labor Agreement as agreed upon June 9, 1961 , by and between the Tulsa Sheet Metal Contractors Association and the Union. 2. This interim agreement shall incorporate all the terms and conditions of the above mentioned labor agreement, with the same force and effect as if set out herein in length. 3. This interim agreement shall remain in full force and effect until the Employer is presented with, and the Union receives executed copies thereof, of the above mentioned Labor Agreement with the Tulsa Sheet Metal Contractors Association , which shall supersede this interim agreement. Under dates of September 8 and 18, 1961 , the Union wrote to General, and transmitted with its letters copies of a standard form of union agreement and of an addendum , of which articles XIV, XV, XVI, and XVII contained provisions for certain fringe benefits. A trust fund was to be created by having the employers pay into it 16 cents an hour for each and every hour of employment of journeymen sheet metal workers , foremen, and apprentices , and the money so obtained was to be used for the establishment of an Apprenticeship Fund , a Health and Welfare Fund , and, finally, an Industry Fund to be known as the Sheet Metal and Air Conditioning Contractors' Industry Fund of Eastern Oklahoma ( hereinafter re- ferred to as the Industry Fund). This Industry Fund was to be used "to promote programs of industry education, training, administration of collective -bargaining agreements , research , and promotion , such programs serving to expand the market for services of the sheet metal industry , improve the technical and business skills of employers , stabilize and improve employer-union relations , and promote support and improve the training and employment opportunities for employees " It was additionally provided that no part of the fund was to be used for political or antiunion activities. It is apparent from statements in the letters of September 8 and 18 to the effect that the terms of a referral procedure still remained to be worked out that the collective-bargaining agreement between the Union and the Association had still not assumed final form . Indeed, the record indicates that as late as January 1962 the Union was asking at least one contractor in the industry to execute a special agreement under which he bound himself to adhere to the fringe benefits to which the Union had agreed in its negotiations with the Association.3 The collective-bargaining agreement between the Union and the Association seems to have been finalized by January 1962. for at this time Moran received from the Union a copy of it in its final printed form , and was asked to sign it However, although Moran made payments into the Health and Welfare Fund and into the Apprenticeship Fund , he declined to execute the final agreement , and in the following ' The agreement is in evidence as General Counsel's Exhibit No 4 2Tt is General Counsel's Exhibit No. 14 This was entitled " Sheet Metal Fringe Benefit Compliance Understanding " The record shows that such an understanding was executed by Looney' s Sheet Metal Works, another employer, under date of January 4, 1962. 776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD months, he was visited by Reinhard, the Union's business agent, who repeatedly asked Moran to sign the agreement. In the months of February and March 1962 alone, Moran received no less than 42 letters from the Grievance Committee of the Union, dunning him for payments into the Industry Fund, and in the month of July 1962, he was asked also to meet with the executive board of the Union. When he did so, pressure was put upon him to sign the agreement and make payments into the Industry Fund but he again refused to do so. The Union also threatened to file charges against General with the Board and the trustees of the Industry Fund brought suit against the Company in the Court of Common Pleas of Tulsa County 4 Finally, in October 1962, Reinhard handed Moran a letter in which the Union in- formed the latter of the Union's intention to strike his shop, and Moran's employees actually went on strike at 8 a m. on October 26, 1962. The Union called off the strike, however, on November 1, 1962, without achieving its objective. On that day, at a meeting in the union hall, Moran was handed a letter in which the Union asked for the reemployment of its members who worked for Moran, and stated the expectation of the Union that it would continue to be recognized as its bargaining agent. However, the Union did not abandon its intention of getting Moran to agree to the Industry Fund Indeed, the Union stated in the letter- "The Union expects to continue negotiations on its demands that the firm becomes a party to the Area Wide Multi-Employer Collective-Bargaining Agreement, in- cluding the five (5¢) cents per hour Industry Fund payments, now in existence and recognized by all other employers now hiring members of the Union " The next day Moran's employees returned to work. On November 6, 1962, in a meeting at a grill called the Kenosha Grill Reinhard made another, and, apparently, final at- tempt to get Moran to accept the Industry Fund. The attempt failed, and to date Moran has persisted in his refusal to make payments into the Industry Fund. The record shows that, while the idea of an industry fund was not mentioned by Reinhard to Moran when they negotiated the interim agreement between them, a proposal to set up an industry fund had been discussed at an Association meeting that Moran attended while still a member of the Association. The record also shows it was not the Union but the members of the Association who proposed the establishment of the Industry Fund in the course of the negotiation leading to its inclusion. The Union merely accepted the proposal of the members of the Association It is the General Counsel's theory of the case that the Union by calling a strike for the purpose of getting General to accept the Industry Fund restrained and coerced the Company in the selection of its collective-bargaining representatives in violation of Section 8(b)(1)(B) of the Act, and also that the Union by insisting upon the inclusion of the provision for the Industry Fund in any contract made with General refused to bargain collectively with General in violation of Section 8(b) (3) of the Act It is true that the Board has held that industry funds similar in nature to that involved in the present case are not mandatory subjects of bargaining 5 The parties may not insist to the point of impasse, therefore, upon the establishment of such funds. But the Board has also held that such industry funds are not in themselves illegal.6 They may be included, therefore, in collective-bargaining agreements if the negotiating parties agree to do so. In the Detroit Resilient Floor Decorators case, the Board held, indeed, that an employer could be estopped from objecting to an industry fund provision included in a collective-bargaining agreement with an association because of his failure to notify the union of his withdrawal from the association. A fortiori, an employer would be bound to accept an industry fund if he had agreed in advance to do so. The real issue in the present case is, there- fore, whether General by signing the interim agreement bound itself to accept whatever agreement was executed by the Union and the Association. whether or not it should include such a nonmandatory subject of bargaining as an industry fund. 4 This suit is still pending. I The Detroit Resilient Floor Decorators Local Union No 2265 of the United Brother- hood of Carpenters and Joiners of America, AFL-CIO (Mill Floor Coverivo, Inc ), 13(3 NLRB 769: and Metropolitan District Council of Philadelphia and Vicinity of the United Brotherhood of Carpenters and Joiners of America , AFL-CIO (McCloskey and Company), 137 NLRB 1583 6 See Detroit Window Cleaners Union, Local 139 , etc (Daelyte Service Coinpanu), 126 NLRB 63; Lumber and Sawmill Workers, Local No 2647 etc. (Cheney California Lumber Company). 130 NLRB 235. These decisions fallow N L.R.B. v. Wooster Division of Borg- Warner, 356 II S. 342, 349. SHEET METAL WORKERS' INT'L ASSN., LOCAL 270 777 Counsel for the General Counsel attack the validity of the interim agreement on various grounds . First, they seem to maintain that Moran had no reason to expect that any agreement reached between the Union and the Association would contain a provision for an industry fund, since no such fund had previously existed , and the Union did not include the establishment of such a fund in the proposal which it sub- mitted to employers when it reopened the existing agreement on February 27, 1961. Moran, in admitting that an industry fund had been discussed at an Association meeting while he was still one of its members, also revealed , however, that the discussion had occupied half of the meeting. That an industry fund should be dis- cussed after he withdrew from the Association could hardly come to him therefore, as a total surprise . Moran also had no reasonable basis for expecting that because the Union had not proposed an industry fund when it opened contract negotiations, it would not be proposed by members of the Association . It must surely be known to the merest tyro in collective bargaining that employers in negotiations with a labor organization do not always confine their counterproposals to the subjects brought up by that labor organization . Thus, even if the subject of an industry fund had not been mentioned at a prior Association meeting, it would be no guarantee that it would not crop up later. Secondly, counsel for the General Counsel seem to maintain that the interim agreement was ambiguous ; that extrinsic evidence bearing on the meaning and pur- pose of the agreement may, therefore , be considered ; and that this extrinsic evidence shows that an industry fund was not within the contemplation of the parties There is no adequate basis, however , for the premise of this argument It con- fuses the question of the uncertainity of the agreement which the Union might nego- tiate with the Association with the question of the ambiguity of the interim agree- ment itself. But the mere fact that the effect of an agreement may be uncertain does not establish that the agreement itself is ambiguous , or invalid . As Williston puts it, "It is not necessary that a promise should within itself be certain if it contains a reference to some document, transaction , or other extrinsic facts from which the meaning may be clear . An offer or agreement may also refer to another agreement for a definition of terms, even to a contract to be made subsequently." 7 This was precisely the situation in the present case . The interim agreement signed by Moran was perfectly clear in itself. It plainly provided that the interim agree- ment was to be superseded by whatever contract was negotiated between the Union and the Association . When that contract was negotiated , the extent of General's obligations became fixed , and among these obligations was a requirement that em- ployers make payments which were to be used to create and administer the Industry Fund. Since the interim agreement between the Union and General is not ambiguous, extrinsic evidence may not be resorted to in order to vary its terms. But, actually, even if this were permissible , it cannot be said that there is any extrinsic evidence that proves more than that the inclusion of a provision for an industry fund may not have been expected by Moran, and this would bear only on his unilateral under- standing of the meaning of the agreement. Counsel for the General Counsel stress, finally that the interim agreement which the Union asked General Engineering Corporation to sign was more explicit than the interim agreement signed by General but , even if this were assumed to be true, it would not be significant The fact that the language of two agreements may differ does not necessarily establish that the language of either of them is ambiguous. The interim agreement which Moran signed on behalf of General was not at all unique. All employers who bargain through a multiemployer group such as an association have agreed in advance to be bound by an agreement which will be negotiated by others, and which may not necessarily meet with their entire approval To be sure, Moran withdrew from the Association but, by signing the interim agree- ment, he, in effect, redelegated to the Association and the Union the power to bind him to any lawful agreement that they might negotiate. What he did was to issue a blank check to the negotiators . He who signs a blank check must be prepared to honor it. Upon the basis of the foregoing findings of fact , and upon the entire record in the case, I hereby reach the following: CONCLUSIONS OF LAW 1. The Respondent, Sheet Metal Workers' International Association . Local Union No. 270, is a labor organization within the meaning of Section 2(5) of the Act. 7 See Williston on Contracts ( 3d ed ), sec. 47, and cases there cited. 778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. General Sheet Metal Co. in as employer engaged in commerce or in an industry affecting commerce within the meaning of Section 2(6) and (7) of the Act. 3. By engaging in the activities described in section III of this report, the Re- spondent has not engaged in unfair labor practices affecting commerce within the meaning of Section 8 (b)(1)(B) and 8(b)(3) of the Act. RECOMMENDED ORDER I recommend that the Board enter an order dismissing the complaint. The Joclin Manufacturing Company and United Rubber, Cork, Linoleum & Plastic Workers of America, AFL-CIO The Joclin Manufacturing Company and United Rubber, Cork, Linoleum & Plastic Workers of America, AFL-CIO, Petitioner. Cases Nos. 1-CA-3656 and 1-RC-6506.' September 23, 1963 ORDER CONSOLIDATING CASES AND SUPPLEMENTAL DECISION, ORDER, AND DIRECTION On October 30, 1961, United Rubber, Cork, Linoleum & Plastic Workers of America, AFL-CIO,2 was certified in Case No. 1-RC-6506 as the representative of the production and maintenance employees of The Joclin Manufacturing Company 2 following an election pursuant to a Stipulation for Certification Upon Consent Election and the sub- sequent resolution of challenged ballots by the Board 4 Because it took the position that the said certification was invalid, the Respond- ent refused to bargain with the Union, and in due course the Board issued its Decision and Order in Case No. 1-CA-3656,5 affirming the Trial Examiner's conclusions that the Respondent thereby violated Section 8 (a) (5) and (1) of the Acts The Board thereafter filed a petition for enforcement of its said Order, which was denied by the United States Court of Appeals for the Second Circuit.' The court held that substantial and material factual questions existed with re- spect to the challenged ballots of Rosania, Palukis, and Rollins which should have been resolved by the Board upon a hearing, as requested 1 For the reasons hereinafter set forth , Case No. 1-RC-6506 is being consolidated with Case No. 1-cA-3656. 2 Herein called the Union. 3 Herein called the Respondent or the Company. ' Not reported in printed volumes of Board decisions. 137 NLRB 216. a The Respondent contended that two employees , Palukis and Rollins, were ineligible and their challenged ballots were improperly counted, and that two other persons, Ursini and Rosania, should have been included in the unit, and the challenges to their ballots were improperly sustained and their ballots excluded . These contentions were first raised in the representation proceeding and a hearing requested on the issues , and were reiterated in the unfair labor practice case. 7 N.L.R.B. v. The Joclin Manufacturing Company, 314 F. 2d 627 (C.A. 2), opinion modi- fied and rehearing denied at 635. 144 NLRB No. 74.