Local 80, Sheet Metal Workers, et al.

LOCAL 80, SHEET METAL WORKERS, ET AL. 229 been behind Respondent's actions with respect to them is immaterial ." Id. The strikers having lost their status as employees and the protections of Section 8(a), Respondent's conduct in soliciting them to return to work, all of which occurred after the strike, was not violative of Section 8(a)(1). United Elastic Corporation, 84 NLRB 768, 774; Mackay Radio and Telegraph Company, Inc., 96 NLRB 740, "743-744. 25 The result reached is undoubtedly harsh, but ita lex scripta. RECOMMENDED ORDER Accordingly, I recommend that the complaint herein be dismissed in its entirety. ' Having found that Respondent engaged in no unfair labor practices, it follows, con- trary to the General Counsel's contention, that it did not unlawfully prolong the strike in which the Union was engaged. Local 80, Sheet Metal Workers International Association, AFL- CIO, and its Agents, Sheet Metal Workers Local Union No. 80 Insurance Trust Fund and its Trustees ; Sheet Metal Workers Local Union No. 80 Pension Trust Fund and its Trustees; Sheet .Metal Workers Local Union No. 80 Vacation Trust Fund and its Trustees ; Sheet Metal Workers Local Union No. 80 Sup- plemental Unemployment Benefit Trust Fund and its Trustees; Sheet Metal Workers Local Union No. 80 Apprenticeship Fund .and its Trustees ; and Sheet Metal Employers Industry Pro- motion Fund and its Trustees and Turner-Brooks, Inc. and Sheet Metal Employers Association of Detroit , Party in Inter- est. Cases 7-CB-1313 and 1349. October 21, 1966 DECISION AND ORDER Upon charges duly filed by Turner-Brooks, Inc., herein called T-B, the General Counsel of the National Labor Relations Board by the Regional Director for Region 7, on October 5, 1965, issued an order consolidating cases, complaint and notice of hearing, alleging that Local 80, Sheet Metal Workers International Association, AFL-CIO, herein called Respondent Local 80, and its agents, certain named trust funds, had engaged in and were engaging in unfair labor prac- tices within the meaning of Section 8 (b) (3), 8(b) (1) (B), and 8 (d), and 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charges and the order consolidating cases, complaint and notice of hearing were duly served upon Respondent Local 80, the named trust funds, T-B, and Sheet Metal Employers Association of Detroit, party in interest, herein called the Association. The complaint alleges, in substance, that Respondent Local 80 vio- lated Section 8 (b) (3) of the Act by insisting, as a condition prece- dent to entering into a collective-bargaining contract with T-B, that such contract contain provisions for an industry promotion fund and by thereafter refusing, through its agents , the trust funds named in 161 NLRB No. 7. 230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the complaint, to accept any payments to the various other trust funds established by the contract because T-B had not at the same time con- tributed to the industry promotion fund. The complaint further alleges that Respondent Local 80, by its insistence that T-B agree to an industry promotion fund, in the administration of which T-B would play no role, thereby restrained and coerced T-B in the selec- tion of its representative for the purpose of collective bargaining in violation of Section 8(b) (1) (B) of the Act. Finally, the complaint alleges that Respondent Local 80 has insisted upon T-B's adherence to industry fund provisions made inoperative by operation of law, and thereby Respondent Local 80 is seeking to alter or modify its contract with T-B, contrary to the provisions of Section 8(d) cf (lie Act. Answers were filed by Respondent Local 80 and three of the named trust funds 1 admitting certain jurisdictional and factual alle- gations of the complaint, but denying the commission of unfair labor practices.2 On January 5, 1966, all parties to the proceeding moved to transfer this proceeding directly to the Board for findings of fact, conclusions of law, and decision and order. The parties stipulated that they have waived their rights to a hearing before a Trial Examiner and to the issuance of a Trial Examiner's Decision. They further stipulated that the charges, complaint and notice of hearing, and answers filed in these cases, together with a stipulation as to certain facts and exhibits, should constitute the entire record in this proceeding. On Janu- ary 11, 1966, the Board granted the motion, ordered the transfer of the proceedings to the Board, and granted permission to the parties to file briefs. The General Counsel, Respondent Local 80, and T-B, all filed separate briefs. A consolidated brief was filed on behalf of the Association and the trust funds. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with these cases to a three-member panel [Chairman McCulloch and Members Fanning and Jenkins]. Upon the basis of the parties' stipulation, the briefs, and the entire record in these cases, the Board makes the following: FINDINGS OF FACT 1. COMMERCE T-B, which maintains its principal office and place of business in Detroit, Michigan, is engaged in the retail and wholesale distribu- tion, sale, installation, and service of floor coverings, acoustical tile, 3 Respondent Local 80's Pension Trust Fund, Vacation Fund , and Industry Promotion Trust Fund, herein collectively referred to as the Trust Funds. 2 In view of our disposition herein, we find it unnecessary to rule on the motion to dismiss filed by the Trust Funds. LOCAL 80, SHEET METAL WORKERS, ET AL. 231 and related products. During the 1964 calendar year, T-B purchased goods and material valued in excess of $100,000, of which goods and material valued in excess of $50,000 were received directly from points outside the State of Michigan. Accordingly, we find, and the parties admit, that T-B is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that it will effectuate the policies of the Act to assert jurisdic- tion herein. II. THE LABOR ORGANIZATION INVOLVED Respondent, Local 80 is a labor organization within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES On June 12, 1964, Respondent Local 80 entered into a collective- bargaining agreement with the Association which is effective until April 30, 1967. By a subsequent addendum to this contract, which is also effective from June 12, 1964, to April 30, 1967, Respondent Local 80 and the Association agreed to the establishment of various trust funds, including an industry promotion fund, and in section 3 of the addendum provided as follows : Section 3. Standard And Uniform Contract A. This Agreement shall be the Standard And Uniform Written Labor Agreement embodying the terms and conditions of employment, of appren- tices and journeymen by all members of the Association and other Employers performing sheet metal work in the building and construction industry, excluding production shop work. Respondent Local 80 is also the bargaining representative for all journeymen sheet workers and apprentices employed by T-B. Com- mencing on or about January 8, 1965, Respondent Local 80 sought to obtain T-B's agreement to be bound by the terms and conditions of the collective-bargaining contract between it and the Association. From the outset, T-B objected to the inclusion of the Industry Pro- motion Fund provisions in its contract. However, as stipulated by the parties, Respondent Local 80 insisted upon the inclusion of these provisions as a condition precedent to entering into a contract with 'i-B. On March 26, 1965, T-B signed the identical contract negotiated between Respondent Local 80 and the Association; however, T-B expressly indicated that its agreement to the inclusion of the Indus- try Promotion Fund provisions in the contract was under protest. By the terms of the contract, T-B was required to make periodic pay- ments to the several trust funds provided for in the contract.' T-13 8 The parties agreed to the establishment of an insurance trust fund, a pension trust fund, a vacation trust fund, a supplemental unemployment benefit trust fund, an ap- prenticeship fund, and an industry promotion fund. 232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD made the required payments until June 15, 1965, at which time it cease making payments to the Industry Promotion Fund. Although, on June 15 and thereafter, T-B attempted to make payments to all the Trust Funds, except the Industry Promotion Fund, these pay- ments have been refused by the depository bank named by the Trust Funds. It is stipulated by the parties that the Trust Funds' refusal, by their depository bank, to accept payments by T-B to any of the funds was caused by T-B's failure to make payments to the Industry Promotion Fund. Respondent Local 80, the Trust Funds, and the Association contend that the justification for the Trust Funds' re- fusal to accept T-B's payments in these circumstances is to be found in the following provisions of T-B's collective-bargaining contract with Respondent Local 80: Section 11(G). The parties agree that under no circumstances shall any of the Trustees of the Joint Funds accept payments from any Employer, who is subject to a construction trades agreement as provided for herein, where such employer has not accepted each and every term, obligation and condition of this Agreement. Section 12(C). The bank depository will not receive any partial payments of the negotiated fund contributions, i.e., the Joint Funds and the Industry Promotion Fund. A partial payment of the amount due all said funds to the bank depository shall con- stitute a delinquency to all the funds. The General Counsel contends that violations of Section 8(b) (3) of the Act are manifested by Respondent Local 80's insistence upon the inclusion of the Industry Promotion Fund provisions in the T-B contract and,by the refusal to accept any of T-B's contributions to the various Trust Funds because T-B would not also contribute to the Industry Promotion Fund. The General Counsel also contends that by requiring T-B to accept an Industry Promotion Fund with T-B would have no role in administering, Respondent Local 80 restrained and coerced T-B in the selection of its representative for the purposes of collective bargaining and thereby violated Section 8(b) (1) (B) of the Act. The General Counsel further alleges that by forcing T-B to adhere to contractual provisions which were inoperative as a matter of law because of the illegal manner in which they were obtained, Respondent Local 80 is seeking to alter or modify a contract, in vio- lation of Section 8(d) of the Act. T-B adopts the position expressed by the General Counsel, but, in addition, it argues that in its bargain- ing with T-B, Respondent Local 80 adopted a "take it or leave it" LOCAL 80, SHEET METAL WORKERS, ET AL. 233 attitude which the Board has found evidences bad-faith bargaining,' and that Respondent Local 80 acted unlawfully by agreeing with the Association that it would not enter into any contract with any other employer which did not contain the identical provisions of the Asso- ciation contract.5 Respondent Local 80, its alleged agents, the Trust Funds, and the Association as party-in-interest, admit the factual allegations of the complaint, set forth above, but deny the commission of any unfair labor practices. Also Respondent Local 80, the Trust Funds, and the Association deny that an agency relationship exists between Respond- ent Local 80 and the Trust Funds and, as discussed infra, question certain of the remedial action requested by the General Counsel. With respect to the unfair labor practices alleged in the complaint, we make the following determinations. We agree with the General Counsel's contention that Respondent Local 80 violated Section 8(b) (3) of the Act by insisting upon the inclusion of the Industry Promotion Fund provision in a collective-bargaining contract with T-B. In prior cases e the Board has expressly ruled that industry pro- motion funds are nonmandatory subjects of bargaining which may be proposed by the parties during negotiations, but not insisted upon as a condition to entering into a collective-bargaining agreement. Accordingly, we find that Respondent Local 80 violated Section 8(b) (3) of the Act by requiring T-B to accept the Industry Promo- tion Fund provisions as a condition precedent to reaching agreement on a collective-bargaining contract. We next turn to a consideration of whether the subsequent refusal by the Trust Funds, through their depository bank, to accept pay- ments from T-B to the various funds without also contributing to the Industry Promotion Fund is a violation of Section 8 (b) (3) charge- able to Respondent Local 80. In making such a determination, the threshold question is whether, as alleged in the complaint, the Trust Funds were acting as agents of Respondent Local 80 in refusing to accept T-B's contributions. The trust funds exist by virtue of the current collective- bargaining agreement between Respondent Local 80 and the Association, which agreement was subsequently accepted by T-B. By the terms of this contract, the parties agree to the creation of the individual trust T-B cites General Electric Company, 150 NLRB 192, in support of this proposition. United Mine Workers v. Pennington, 381 U.S. 657, is cited to support this. 6Metropolitan District Council of Philadelphw., etc. (McCloskey and Company), 137 NLRB 1583; Operative Plasterers, etc., Local No. 2 (Arnold M. Hansen), 149 NLRB 1264; and Southern California District Council, etc. (Swimming Pool Gunite Contractors Group), 144 NLRB 978; Detroit Resilient Floor Decorators Local 2265 (Mall Floor Covering , Inc.), 136 NLRB 769, enfd. 317 F. 2d 269 ( C.A. 7). 234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD funds which are to be administered by trustees appointed under writ- ten declarations of trust. The contract further provides that the trus- tees for the Industry Promotion Fund shall all be appointed by the Association, whereas in the case of the other funds, it is provided that an equal number of trustees shall be appointed by the Associa- tion and the Union. From an examination of the contract and the individual trust agreements, it is clear that the trustees of each of the funds derive their authority from and are bound by the terms of the collective- bargaining agreement between Respondent Local 80 and the Associa- tion. As set forth above, section 11(G) and 12(C) of the contract prohibit the trustees of these funds from accepting any payments which are less than the amount due under all the funds established by the contract. Accordingly, the trustees of the various funds were not free to exercise their discretion in refusing, by their depository, to accept the payments tendered by T-B, but rather were acting pur- suant to a specific limitation of authority contained in the contract. Therefore, we believe the trustees of these funds must be deemed to be the agents of the joint principals, Respondent Local 80 and the Association, when, as here, they are acting pursuant to a specific man- date of the contract. The fact that all of the trustees of the industry promotion fund and half of the trustees of the other funds were appointed by the Association, which is not charged as a respondent, does not cause us to reach a different result. Because certain of the trustees are appointed by the Association and others by Respondent Local 80, it does not follow that the individual trustee is the agent solely of and responsible only to the one principal. Neither the Asso- ciation nor Respondent Local 80 has exercised any power, including the appointment of trustees, which is not derived from the joint agreement of both, as expressed in the collective-bargaining agree- ment. Accordingly, we find that all trustees of the individual funds, whether they be appointed by the Association or Respondent Local 80, are agents of both.' In view of our finding that the trustees, by their bank deposi- tory, were acting as agents of Respondent Local 80 in refusing to accept payments tendered by T-B, we must determine whether by such conduct, Respondent Local 80 violated Section 8(b) (3) of the Act. Elsewhere in this Decision, we have found that Respondent Local 80 violated Section 8(b) (3) by insisting upon the inclusion of the Industry Promotion Fund provision' as a condition precedent to entering into a ,contract with T-B. Because of the illegal manner in which agreement to such provision was obtained, we are constrained 7 Cf. J. J. Hagerty, Inc., 139 NLRB 633, enfd. in relevant part 321 F.2d 130, 137 (C.A. 2). LOCAL 80, SHEET METAL WORKERS, ET AL. 235 to find that the Industry Promotion Fund provision contained in the contract with T-B is invalid and inoperative as a matter of law. The justification then, if such exists, for Respondent Local 80's attempt to enforce this invalid condition must be found elsewhere than in its contract with T-B. It is the position of the Association and the trus- tees that such justification is to be found in the contract between Respondent Local 80 and the Association. They argue that in refus- ing T-B's contributions, the trustees were acting pursuant to a valid and enforceable contract between Respondent Local 80 and the Asso- ciation and therefore T-B could be barred from participating if it did not choose to accept the terms and conditions governing partici- pation in these funds. While we do not question the right of parties to establish funds upon which there are attached conditions for par- ticipation, it suffices to say that private rights must give way when they are utilized in a manner so as to deny a public right. By refusing to accept T-B's payments to the funds unless it would also contribute to the Industry Promotion Fund, Respondent Local 80 was attempt- ing to force T-B's adherence to contractual provisions upon which it had unlawfully insisted as a condition to agreement and which were therefore invalid and inoperative in law, as stated above. Respondent Local 80's conduct in this respect constituted, in effect, a continuing reflection of its earlier unfair labor practice. The fact that such action was taken pursuant to the terms of a valid contract with the Associa- tion cannot serve as justification for its illegal conduct. Accordingly, we conclude that Respondent Local 80, by its agents the trustees, vio- lated Section 8(b) (3) of the Act by refusing to accept any payments by T-B to the funds, until T-B agreed to contribute to the Industry Promotion Fund. We do not agree, however, with the General Counsel's contention that Respondent Local 80 also violated Section 8(b) (1) (B) of the Act by requiring T-B to accept an Industry Promotion Fund in which T-B would play no role in its administration. Admittedly, Respondent Local 80 insisted upon T-B's acceptance of these pro- visions however, mere insistence is not to be equated with the restraint and coercion required by the statute to establish an 8(b) (1) (B) vio- lation.' Although the complaint alleges that Respondent Local 80 threatened to call a strike and did strike in support of its demand that T-B agree to the Industry Promotion Fund, the answers and stipulation admit only that Respondent Local 80 insisted upon the inclusion of these provisions in its contract with T-B. Thus, on the 8 Section 8(b) (1) (B ) provides as follows : (b) It shall be an unfair labor practice for a labor organization or its agents- to restrain or coerce . . . (B) an employer in the selection of his representatives for the purposes of collective bargaining or the adjustment of grievances. 236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD record before us, there is no evidence that Respondent Local 80 restrained and coerced T-B and, accordingly, we shall dismiss this allegation of the complaint, without reaching the question of whether the Respondent's insistence upon the Industry Promotion Fund, if shown to have been accompanied by restraint and coercion, would have constituted conduct within the interdiction of 8(b) (1) (B). In view of our finding that Respondent Local 80 violated Section 8 (b) (3), of the Act, we find it unnecessary to consider whether, as was alleged by the General Counsel, Respondent Local 80's insistence upon T-B's adherence to the illegal Industry Promotion Fund provi- sions of the contract constituted an alteration or modification of its contract with T-B prohibited by Section 8 (d) of the Act. Even were we to find that Respondent Local 80's conduct in this regard was prohibited by Section 8(d) and as a consequence constituted a fur- ther violation of Section 8(b) (3), our Order remedying the unfair labor practices would not in any way be affected. Accordingly, we shall dismiss this allegation of the complaint.' Finally, Respondent Local 80, the Trust Funds, and the Associa- tion contend that the Board does not have the power to remedy the violations in the manner requested by the General Counsel. Specifi- cally, they challenge the Board's authority to fashion an order run- ning against the trustees of the various funds and to take any action which- would invalidate any of the provisions in the collective- bargaining agreement between Respondent Local 80 and the Associa- tion. As to the first point, we think it is clear that by virtue of our finding that the trustees were acting as agents of Respondent Local 80, in commission of certain -of the unfair labor practices found herein, the Board is empowered to direct its Order.against not only Respondent Local 80, but also against parties acting as its agents in the commission of these unfair labor practices. With respect to the second point, we do not view the, remedy sought by the General Counsel as a request that certain provisions of the Association con- tract be invalidated. In any event, our Order will not be directed toward any of the provisions in the Association contract, but rather it will have application only to the contract between Respondent Local 80 and T-B, and will specifically be directed against the enforce- ment of section 5, the Industry Promotion Fund provisions and sections 11(G) and 12(C) of this agreement .10 We also make no unfair labor practice findings upon the grounds separately urged by T-B because such matters are beyond the purview of the complaint and the stipulation of the parties. '° Respondent Local 80's contention that sections 11 (G) and 12 ( C) of the T-B contract should in no way be impaired by our Order because T-B accepted these provisions without protest has no merit. In order to properly remedy the violations found herein, our Order will prohibit Respondent Local 80 and its agents from enforcing sections 11(G) and 12 (C) of the T-B contract in a manner designed to compel T-B to make payments to the Industry Promotion Fund. LOCAL 80, SHEET METAL WORKERS, ET AL. 237 CONCLUSIONS OF LAW 1. Turner-Brooks, Inc., is engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act. 2. Respondent Local 80 is a labor organization within the meaning of Section 2 (5) of the Act. 3. All journeymen sheet metal workers and apprentices employed by Turner-Brooks, Inc., excluding all other employees, office clerical employees, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Respondent Local 80, at all times material herein, has been, and is, the exclusive representative of all employees in the aforesaid appropriate unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, and other conditions of employment. 5. By conditioning its agreement to a collective-bargaining con- tract with Turner-Brooks, Inc., upon the latter's acceptance of the Industry Promotion Fund provisions, a nonmandatory subject of bargaining, Respondent Local 80 has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b) (3) of the Act. 6. By refusing through its agents, the trustees, to accept payments tendered by Turner-Brooks, Inc., to the various funds because Turner-Brooks, Inc., would not also contribute to the Industry Pro- motion Fund, Respondent Local 80 has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b) (3) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 8. Respondent Local 80 has not engaged in any other unfair labor practices as alleged in the complaint. THE REMEDY Having found that Respondent Local 80 and its agents, the trustees of the funds, have engaged in certain unfair labor practices, we shall Corder them to cease and desist therefrom and take certain affirmative .action designed to effectuate the policies of the Act. Inasmuch as Turner-Brooks, Inc., and Respondent Local 80 have .already entered into a current contract containing the Industry Pro- motion Fund provisions which Turner-Brooks, Inc., agreed to only 'under protest, we shall order Respondent Local 80 and its agents to cease and desist from insisting that Turner=Brooks, Inc., make con- -tributions to the Industry Promotion Fund or otherwise comply with 238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD these provisions of the contract. We shall also order Respondent Local 80 and its agents to cease and desist from enforcing sections 11(G) and 12(C) of its contract with Turner-Brooks, Inc., insofar as they relate to the failure of Turner-Brooks, Inc., to make payments to the Industry Promotion Fund. Affirmatively, we shall require that Respondent Local 80 and its agents reimburse Turner-Brooks, Inc., for contributions made by it to the Industry Promotion Fund under the terms of the current collective-bargaining contract, by the repay- ment of these moneys, together with interest at 6 percent per annum. We shall also require that Respondent Local 80 notify the Association and the bank depository that it will not insist upon the enforceability of section 11(G) and 12(C) of its contract with Turner-Brooks, Inc., insofar as they apply to the Industry Promotion Fund, and that Respondent Local 80, and its agents, post notices and take whatever steps are necessary to comply with the provisions of our Order. ORDER Pursuant to Section 10(e) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Local 80, Sheet Metal Workers International Associa- tion, AFL-CIO, Detroit, Michigan, and its agents, Sheet Metal Workers Local Union No. 80 Insurance Trust Fund and its Trustees ; Sheet Metal Workers Local Union No. 80 Pension Trust Fund and its Trustees; Sheet Metal Workers Local Union No. 80 Vacation Trust Fund and its Trustees; Sheet Metal Local Union No. 80 Sup- plemental Unemployment Benefit Trust Fund and its Trustees; Sheet Metal Local Union No. 80 Apprenticeship Fund and its Trustees; and Sheet Metal Employers Industry Promotion Fund and its Trustees, their officers, agents, representatives, successors, and assigns, shall: 1. Cease and desist from : (a) Refusing to bargain with Turner-Brooks, Inc., as the repre- sentative of its employees in the unit found appropriate herein, by insisting upon the inclusion of an industry promotion fund provision as a condition precedent to entering into a collective-bargaining con- tract with Turner-Brooks, Inc. (b) Refusing to bargain with Turner-Brooks, Inc., by insisting that Turner-Brooks, Inc., make contributions to the Industry Promo- tion Fund or otherwise comply with these provisions of the collective- bargaining contract between Turner-Brooks, Inc., and Respondent. (c) Enforcing sections 11(G) and 12(C) of its collective-bargain- ing contract with Turner-Brooks, Inc., insofar as these provisions are relevant to the failure of Turner-Brooks, Inc., to make payments to the Industry Promotion Fund. LOCAL 80, SHEET METAL WORKERS, ET AL. 239 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Notify Sheet Metal Employers Association of Detroit, and the Trust Funds' bank depository, City National Bank of Detroit, in writing, that it will not insist upon contributions by Turner-Brooks, Inc., to the Industry Promotion Fund, and that it will not enforce sections 11(G) and 12(C) of its contract with Turner-Brooks, Inc., insofar as these provisions are relevant to the failure of Turner- Brooks, Inc., to make payments to the Industry Promotion Fund. (b) Reimburse Turner-Brooks, Inc., for all contributions made by it to the Industry Promotion Fund under the terms of the current collective-bargaining contract, by repayment to Turner-Brooks, Inc., of a sum equal to the amount of these payments, together with inter- est at the rate of 6 percent per annum. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all records and reports and all other -documents necessary to analyze the amount of repayment due Turner-Brooks, Inc. (d) Post in Respondent's business offices and meeting places in Detroit, Michigan, copies of the attached notice marked "Appen- dix." 11 Copies of said notice, to be furnished by the Regional Direc- tor for Region 7, after being duly signed by the representative of Respondent, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respond- ent to insure that said notices are not altered, defaced, or covered by any other material. (e) Mail to the Regional Director for Region 7 copies of said notice for posting by Turner-Brooks, Inc., alid the Sheet Metal Employers Association of Detroit, they being willing, in places where notices to employees are customarily posted. Copies of said notice, to be furnished by the Regional Director for Region 7, after being duly signed by Respondent's official representative, shall be forthwith returned to the Regional Director. (f) Take whatever other steps may be necessary to comply with this Decision and Order. (g) Notify the Regional Director for Region 7, in writing, within 10 days from the date of this Decision and Order, what steps have been taken to comply herewith. n In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "a Decision and Order " the words "a Decree of the United States Court of Appeals Enforcing an Order." 240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO ALL OUR MEMBERS Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that : WE WILL NOT refuse to bargain with Turner-Brooks, Inc., as the representative of its employees in a unit of journeymen sheet metal workers and apprentices, excluding all other employees, office clerical employees, guards, and supervisors, by insisting upon the inclusion of an industry promotion fund provision as a condition precedent to entering into a collective-bargaining con- tract with Turner-Brooks, Inc. WE WILL NOT refuse to bargain with Turner-Brooks, Inc., by insisting that it make contributions to the Industry Promotion Fund or otherwise comply with these provisions of the contract between Turner-Brooks, Inc., and Respondent. WE WILL NOT enforce sections 11 (G) and 12 (C) of our contract with Turner-Brooks, Inc., in a manner which would deny Turner- Brooks, Inc., the right to make payments to the various trust funds without also contributing to the Industry Promotion Fund. WE WILL reimburse Turner-Brooks, Inc., for all contributions made by it to the Industry Promotion Fund under the terms of the current contract by repayment to Turner-Brooks, Inc., of a sum equal to the amount of these payments, together with inter- est at the rate of 6 percent per annum. LOCAL 80, SHEET METAL WORKERS INTERNATIONAL ASSOCIATION, AFL-CIO, AND ITS AGENTS, SHEET METAL WORKERS LOCAL UNION No. 80 INSURANCE TRUST FUND AND ITS TRUSTEES; SHEET METAL WORKERS LOCAL UNION No. 80 PENSION TRUST FUND AND ITS TRUSTEES; SHEET METAL WORKERS LOCAL UNION No. 80, VACATION TRUST FUND AND ITS TRUSTEES SHEET METAL WORKERS LOCAL UNION No. 80 SUPPLEMENTAL UNEMPLOYMENT BENEFIT TRUSTEES; SHEET METAL WORKERS LOCAL UNION No. 80 APPRENTICESHIP FUND AND ITS TRUSTEES; AND SHEET METAL WORKERS INDUS- TRY PROMOTION FUND AND ITS TRUSTEES, Labor Organization and its Agents. Dated---------------- By------------------------------------- (Representative ) ( Title) CHANTICLEER, INC. 241 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. If members have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 500 Book Building , 1249 Washington Boulevard, Detroit, Michigan 48226, Telephone 226-3200. Chanticleer, Inc. and Meat Cutters, Packinghouse Workers & Food Handlers District Union Local #657, Amalgamated Meat Cutters & Butcher Workmen of North America , AFL--CIO. Cases 12-CA.-3267 and 3323. October 21, 1966 DECISION AND ORDER On March 2, 1966, Trial Examiner Owsley Vose issued his Deci- sion in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion. He further found that Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recom- mended dismissal as to them. Thereafter, the General Counsel and Respondent filed exceptions to the Trial Examiner's Decision and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with these cases to a three-member panel [Chairman McCulloch and Members Fanning and Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in these cases, and finds merit in certain of the exceptions filed. We therefore adopt the Trial Examiner's findings, conclusions, and recommendations, with the following additions and modifications.' 1 In view of our conclusions herein, we find that the Respondent's withdrawal of the discount meat-buying privilege, the change of employee Dozier's reporting time, and the change of employee Rams' work shift, violated Section 8( a) (5), as well as Section 8(a) (1), of the National Labor Relations Act, as amended. 161 NLRB No. 19. 264-188-67-vol. 161-17