B-Y Manufacturing, Inc.

838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B-Y Manufacturing, Inc. and Sheet Metal Workers' International Association , Local Union No. 108, AFL-CIO and Carpenters District Council of Los Angeles County; Carpenters Local 1437. Case 21-CA-7041 July 24, 1967 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On September 22, 1966, Trial Examiner James R. Webster issued his Decision in the above-enti- tled proceeding, finding that the 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 Decision. Thereafter, the General Counsel and the Charging Party filed exceptions to the Trial Examiner's Deci- sion and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. 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. the briefs, and the entire record in this proceeding, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner, except as modified herein. The Trial Examiner found that there is no current collective-bargaining agreement between Respond- ent and Sheet Metal Workers' International As- sociation, Local Union No. 108, AFL-CIO. the Charging Party and herein called Local 108. cover- ing the Respondent's overhead door installers. Although the Trial Examiner found that Respond- ent signed a new collective-bargaining agreement form with Local 108 on January H, 1966, he con- cluded that Respondent signed with the understand- ing that it would apply only to job functions generally recognized by area practice as falling within the jurisdiction of Local 108 and that it would not apply to job functions generally recog- nized by area practice as falling within the jurisdic- tion of the Carpenters' Union. which overhead door installation is asserted to be. The General Counsel and Local 108 filed exceptions to this finding. We find merit in their exceptions. The record does not show that Respondent signed the collective-bargaining agreement with the understanding that Local 108 had agreed to the qualification noted above. On the contrary, it ap- pears that Local 108 had consistently maintained, and still maintains, that the contract covers the job functions of the overhead door installer. Certainly Respondent may not rely on its entering into a con- tract with the Carpenters, an act we have found to be violative of the Act, to impute a qualification to Local 108's offer of a new agreement regardless of what Respondent may have understood its uni- lateral action in this respect to mean Thus, the evidence before us clearly shows that in early Sep- tember 1965, Local 108 made an unconditional offer of a new agreement which was not sub- sequently qualified by agreement of the parties, and that the offer was neither limited as to the time when it must be accepted nor was it ever revoked. Therefore, by signing and mailing the proposed agreement to Local 108, Respondent accepted the offer and a contract came into being. I Accordingly, we find, contrary to the Trial Examiner, that there is a current collective-bargaining agreement between Respondent and Local 108. In agreement with Local 108, we also find that the Respondent's failure to honor the agreement, which it had signed on January 11, 1966. and thereby refusing to recognize Local 108 as the ex- clusive representative of the employees in the unit found appropriate by the Trial Examiner, con- stituted a refusal to bargain within the meaning of Section 8(a)(5) of the Act.' We also find merit in the exceptions of the General Counsel and Local 108 to the Trial Ex- aminer's failure to remedy fully the violations of Section 8(a)(5) which were committed herein. The Trial Examiner's remedial order was based in part upon his conclusion that there is no current collective-bargaining agreement between Respond- ent and Local 108 covering Respondent's over- head door installers. Since we have found to the contrary and have also found the unfair labor prac- tices herein to include Respondent's refusal to honor its agreement with Local 108, we are of the view that, in order to effectuate the policies of the Act and in order to fully remedy the violations com- mitted herein, we should order the Respondent to honor its agreement and make the overhead door in- stallers whole for any losses they may have suffered by reason of its failure to honor the contract.'; We shall, accordingly, amend the Recommended Order of the Trial Examiner to fully remedy the violations found herein. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor ' See Williston on Contracts 9 90(A) (3d ed 1917) 'Gene Hvdedlb/aHvde'sSuperMarket, 145 N LRB 1252 1253.enfd 339 F 2d 568 (C A 9) ' George E Light Boat Sto"age, Inc . 153 N LRB 1209 . 1222. enfd as modified 373 F 2d 762 (C A 5), Ogle P,otect,on Serra e, Jut , andJame, L Ogle, 149 NLRB 545, 547. enfd as modified 375 F 2d 497 (C A 6) 166 N LRB No. 95 B-Y MANUFACTURING, INC. Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner, as modified below, and hereby orders that the Respondent, B-Y Manufacturing, Inc., Los Angeles. California, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recom- mended Order, as so modified: 1. Add the following as paragraph 5 of the Trial Examiner's Conclusions of Law, the present para- graph 5 and those subsequent thereto being con- secutively renumbered: "By repudiating the above collective-bargaining agreement and thereby refusing to honor it, as agreed upon January 11, 1966, Respondent has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act." 2. Delete paragraph 1(d) of the Trial Examiner's Recommended Order and substitute in lieu thereof the following: "Refusing to honor the collective-bargaining agreement signed by it with Local 108 on January 11. 1966, and otherwise refusing to recognize and bargain with Local 108 as the exclusive collective- bargaining representative of all outside construc- tion employees of Respondent, including overhead door installers and porcelain panel installers, ex- cluding office clerical employees, watchmen, guards, professional employees, and supervisors as defined in the Act." 3. Delete paragraph 2(a) of the Trial Examiner's Recommended Order and substitute in lieu thereof the following: "Recognize Local 108 as the exclusive bargain- ing representative of all outside construction em- ployees of Respondent, including overhead door in- stallers and porcelain panel installers, excluding of- fice clerical employees, watchmen, guards, profes- sional employees, and supervisors as defined in the Act, honor the collective-bargaining agreement signed by Respondent on January 11, 1966, and make whole employees for any losses suffered by reason of Respondent's failure to honor said agree- ment. " 4. Delete the fourth indented paragraph of the Appendix to the Trial Examiner's Decision. and substitute in lieu thereof the following: WE WILL`recognize Sheet Metal Workers' International Association, Local Union No. 108, AFL-CIO, as the exclusive collective- bargaining representative of all outside con- struction employees of Respondent, including overhead door installers and porcelain panel in- stallers. excluding office clerical employees, watchmen, guards, professional employees, and supervisors as defined in the Act, honor the collective-bargaining agreement signed by Respondent with Local 108 on January 11. 1966, and make whole employees for any losses suffered by reason of our failure to honor said agreement. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE 839 JAMES R. WEBSTER, Trial Examiner: This case, with all parties represented, was heard in Los Angeles, Califor- nia, on June 15, 1966, on complaint of the General Coun- sel and answer of the B-Y Manufacturing, Inc., herein called Respondent. An answer has also been filed by Car- penters District Council of Los Angeles County and Car- penters Local 1437, Parties to the Contract. The com- plaint was issued on March 1, 1966, and amended on March 10, 1966, upon a charge filed January 10, 1966, and amended on February 15, 1966. The complaint al- leges that Respondent has refused to bargain with Sheet Metal Workers' International Association, Local Union No. 108, AFL-CIO, herein called Sheet Metal Workers, Local 108; that Respondent has rendered support to Car- penters District Council of Los Angeles County and Car- penters Local 1437, herein called Carpenters Union; and that Respondent has interfered with, restrained, and coerced employees in the exercise of rights guaranteed by Section 7 of the National Labor Relations Act, as amended, herein called the Act; and that by this conduct Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1), (2), and (5) of the Act. The General Counsel, Respondent, Charging Party, and the Parties to the Contract have filed briefs herein and they have been carefully considered. Upon the entire record and the observation of the witnesses, I hereby make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is a California corporation with its prin- cipal office and place of business in Los Angeles, Califor- nia, where it is engaged in the manufacture and installa- tion of overhead doors. During the period from March to August 1965, Respondent was also engaged in the instal- lation of porcelain enamel panels. In the course and con- duct of its business operations, Respondent annually receives goods and services valued in excess of $500,000 directly from firms located outside the State of California. Respondent is an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED Sheet Metal Workers' International Association, Local Union No. 108, AFL-CIO, Carpenters District Council of Los Angeles County, and Carpenters Local 1437 are labor organizations within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Issues (1) Whether, under the circumstances of this case, Respondent has given support to the Carpenters Union in a manner proscribed by Section 8(a)(2) of the Act. (2) Whether Respondent was under obligation to con- tinue to recognize and bargain with Sheet Metal Workers, Local 108, and whether Respondent has refused to bar- 840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gain collectively with that Union, in violation of Section 8(a)(5) of the Act. (3) Whether statements made by Plant Manager Sutherland to employees and financial assistance rendered them herein constitutes interference with, and restraint and coercion of, employees in violation of Sec- tion 8(a)(1) of the Act. B. Statement of Facts The employees of Respondent at its plant, where its overhead doors are manufactured, are represented by Sheet Metal Workers Local 170. In March 1965 some of these employees also did the installation of these doors as that type of work was required, but installation of these doors was not then a full-time job. As developed by prac- tice in the Los Angeles area, members of the Carpenters Union are employed for this type of work, and it is recog- nized generally and by Respondent as a type of work falling within the jurisdiction of this Union. While Respondent's plant employees were engaged in installa- tion of overhead doors, they were paid at the rate specified by the Carpenters Union for this type of work, and while they were working in Respondent's plant they were paid at the rate specified in Respondent's agreement with Sheet Metal Workers Local 170. In March 1965 Respondent enlarged its operations to include the installation of porcelain enamel panels on gasoline stations and other buildings. A Mr. Sellmaier was employed to manage this part of Respondent's opera- tions, and according to Respondent General Manager Bullock, Sellmaier "knew" that Respondent would need members of Sheet Metal Workers Local 108 for this type of work. Bullock got in touch with Jess Frederick, busi- ness representative of Local 108, regarding an agreement with that Union covering this field of work. Frederick told Bullock that in order for Respondent to get an agree- ment with his Union, the agreement would have to cover all installers , including overhead door installers, and Frederick suggested that Respondent's overhead door in- stallers become members of Local 108. At that time Respondent had four employees - members of Sheet Metal Workers Local 170-doing overhead door in- stalling. Bullock stated that this work was Carpenters work and that the Carpenters Union should be talked to on the matter. Frederick replied that the overhead door installers would have to be members of Local 108 if Respondent were to get an agreement with that Union. Bullock testified that he had porcelain panels on hand and had commitments to customers, and in consideration of these facts and the position taken by Frederick, he acquiesced in Frederick's demand that the overhead door installers become members of, and be represented by, this Union. He told Frederick that he would instruct Plant Manager Milton Sutherland to inform the four overhead door installers of this agreement, and that they "would be obliged" to get withdrawals from Local 170 and file appli- cations for membership in Local 108. Arrangements were made with Sutherland for Frederick to speak to the four employees doing this work and to give them informa- tion about Local 108. On March 18, 1965, Respondent signed the agreement form of Local 108, which had an expiration date of June 30, 1965. The printed form con- tract sets forth that it covers the rates of pay, rules, and working conditions of "all employees of the Employer en- gaged in the manufacture, fabrication, assembly, handling, erection, installation, dismantling, recondition- ing, adjustment, alteration, repairing, and servicing of all ferrous or nonferrous sheet metal work of No. 10 U.S. gauge or its equivalent or lighter gauge, and all other materials used in lieu thereof ... and all other work in- cluded in the jurisdictional claims of Sheet Metal Wor- kers' International Association." Sutherland had a meeting with the four overhead door installers and told them that they would be required to take a withdrawal from Local 170, and transfer to Local 108 in order to continue working for Respondent as door installers; that no apprentice program would be required of them; and that the $50 initiation fee paid to Local 170 would be credited toward their $500 initiation fee to be paid to Local 108. The four employees involved became members of LQ-cal 108. Respondent hired three additional employees for the installation of porcelain enamel panels; also the overhead door installers received training in and did some of this work. About June 29, 1965, Respondent received from Local 108 a notice of a new wage rate, effective July 1, 1965, for all employees covered by agreement with that Union. Respondent paid this new rate to the three employees en- gaged in installing porcelain panels, and to the four em- ployees engaged in installing overhead doors. In August 1965 Respondent discontinued its porcelain panel opera- tions and terminated the three new employees who were employed in this work. Respondent continued to pay the four overhead door installers at the rate of pay specified in the agreement with Local 108 and in the notice of June 29, 1965. In the early part of September 1965 Respondent received from Local 108 copies of a new contract, effec- tive July 1, 1965, for signatures. In the fall of 1965 Respondent expanded its overhead door operations to include installations of overhead doors on industrial buildings. As Respondent was no longer en- gaged in installation of porcelain panels, and in anticipa- tion of hiring two or three additional men for the installa- tion of overhead doors on industrial-type buildings, Robert Bullock, vice president and general manager, con- tacted the Carpenters Union and had a meeting with Jerry Slawson, business representative of the Carpenters Dis- trict Council. Slawson told Bullock that "this [type of work] came under the Carpenters' jurisdiction" and that "if he was going to do this type of work" the Carpenters Union wanted an agreement with him. Bullock told him of his porcelain panel business and of his past contract with Local 108 and that the four overhead door installers in his employ joined that Union; and he asked how these employees could go about joining the Carpenters Union. Slawson told him that they were not interested in getting more members in the Carpenters Union and were not there to raid the Sheet Metal Workers, but if it was a question of -having no more work in the jurisdiction of Sheet Metal Workers, Local 108, and of these men being laid off, and if they chose to drop their membership in the Sheet Metal Workers and make application to the Car- penters Union, that they probably would be taken in. On November 16, 1965, Bullock signed a contract with the I The original charge was filed January 10, 1966 No unfair labor prac- tice can be found on events occurring prior to July 10. 1965, but a con- sideration of these events is material as background and to explain sut- sequent conduct of the parties. B-Y MANUFACTURING, INC. 841 Carpenters Union, which agreement, with subsequent amendments , is effective to May 1, 1967. In addition to the agreement with the Carpenters Union, Slawson had Respondent sign a contract with the Building and Construction Trades Councils covering Los Angeles. By this agreement, Respondent agreed that "all work performed within the jurisdiction of any Union af- filiated with the Councils shall be performed pursuant to an executed agreement with the appropriate Union hav- ing work and territorial jurisdiction and affiliated with the Council in the area in which the work is performed." All Unions involved in this case are members of these Trades Councils. After Slawson signed the contract with Respondent, he received a call from Frederick of Sheet Metal Workers, Local 108, inquiring about the matter. Slawson told him that the only thing the Carpenters Union was interested in was that Respondent sign a carpenters agreement and hire carpenters if it was going to do work coming under the Carpenters Union's jurisdiction. After signing the agreement with the Carpenters Union, Bullock directed Plant Manager Sutherland to in- form the overhead door installers that Respondent had signed this agreement and that he would prefer that they sign up with that Union; that as the Company was beginning to install these doors on industrial buildings, he expected to employ them as full -time installers ; that as they had been required to join Local 108 and pay an in- itiation fee of $500 to that Union, and in less than a year they were being asked to join the Carpenters Union which had an initiation fee of $200, Respondent would reimburse each of them for part of his initiation fee to Local 108 by giving each the sutri of $200. Plant Manager Sutherland told the four overhead door installers that as the Company was no longer in the porcelain panel busi- ness, he felt that they no longer needed the services of Local 108; that Local 108 could no longer sustain its right to employees in overhead door installing work; that competition was too competitive and that Respondent would use carpenters, either those employed by Respond- ent or those employed by subcontractors; that they had until November 20 as a tentative date to make up their minds as-to whether they would consider jping the Car- penters Union or whether it would be otherwise - that is, otherwise Respondent would subcontract the installation work to subcontractors employing members of the Car- penters Union; that after November 20, they would have to have Carpenters Union cards in order to work; that whether or not they joined the Carpenters Union, the trucks would roll with carpenters on them after November 20. ` The Carpenters Union agreed to accept the four over- head door installers as members without their going through an apprentice program. On December 9, 1965, Henry Ely, who recently had been employed as attorney for Respondent , wrote to Frederick of Local 108 that Respondent considered the installation of overhead doors to be the work of carpen- ters, and that Respondent had no objection to signing a contract with Local 108 with the understanding that the carpenters' craft is the proper craft to be employed on this work. A meeting date to discuss the matter was sug- gested. _ After the November 20 deadline given to employees by Sutherland, no change took place in the employment status of the four installers and they continued to do this work until two of them left the employ of Respondent on January 24, 1966, when picketing by Local 108 com- menced. In the latter part of December or early part of January 1966 Sutherland had another meeting with the four instal- lers. He told them that Respondent had been wrong in its action demanding that they join the Carpenters Union; that the choice was theirs to make; that the Company felt deeply obligated to them because they had to pay $500 in initiation fees to Local 108 , and were also asked to join the Carpenters Union, which would require an additional $200 in initiation fees -a total of $700 in initiation fees; that Respondent felt it was obligated to reimburse them at least for part of their initiation fees which they had paid to Local 108. In the latter part of December or early part of January 1966, Frederick of Local 108 came to the plant for a meeting with the installers. Two of the four were present; Sutherland also attended. Frederick objected that Suther- land had not required the other two to be present. Nothing came of the meeting. Two of the four installers joined the Carpenters Union and received $200 from Respondent ; two (Eugene Robin- son and Frank Davis) remained members of Local 108 and discontinued working for Respondent when Local 108 started picketing on January 24, 1966. One of these (Robinson) joined the Carpenters and returned to work for Respondent after the picketing was discontinued. In January 1966, Sutherland had not heard from em- ployee Davis as to whether he planned to join the Car- penters Union. He gave Davis a check for $50, which stated on the reverse side that it was partial reimburse- ment for Local 108's initiation fee. At the time , he asked Davis if he had decided to join the Carpenters Union. Through December 1965 Respondent continued to pay into the Sheet Metal Workers' pension plan the amounts appropriate under the plan on behalf of the four overhead door installers. Bullock talked to Slawson of the Carpenters District Council as to what Respondent should do regarding the new contract sent to Respondent by Local 108. Slawson advised him to sign the agreement because, pursuant to his agreement with the Building and Construction Trades Councils, if he did any work within the jurisdiction of Local 108 at any time, he was required to do it with a union affiliated with the Trades Councils and to have a contract with that union. As previously mentioned, Local 108 is a member of the Trades Councils . On January 11, 1966, Bullock signed the contract form of Local 108 and sent it to this Union. On January 20, 1966 , Hope Camp, attorney for Local 108, informed Henry Ely, attorney for Respondent, that Local 108 was threatening to call a strike unless the two installers who had joined the Carpenters Union con- tinued with Local 108. Ely informed Camp that it was the position of Respondent that the work involved was not the work of Local 108, and that Respondent would abide by the procedures set forth in its agreement with Local 108 for a determination of the proper jurisdiction of this work and whether or not the work was covered by Local 108's contract. Ely also proposed in the alternative that the question be submitted to the general presidents of the Sheet Metal Workers' International Association and of the United Brotherhood of Carpenters and Joiners of America. On January 24, 1966, Local 108 commenced picketing and the two installers of Respondent who had continued their membership in Local 108 ceased work. Respondent also proposed that the installation of over- 842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD head doors on gasoline service stations be done by Local 108 and that the installation of doors on industrial buildings be done by members of the Carpenters Union. Local 108 contends that it is the bargaining representa- tive of the overhead door installers and that it picketed because Respondent refused to give full effect to the new contract of Local 108 and was attempting to make separations between employees doing porcelain work and those doing nonporcelain work. C. Conclusions 1. Section 8(a)(1) and (2) of the Act In November 1965 Respondent 's four overhead door installers were members of Local 108. These employees had been covered by a contract between Respondent and Local 108 until it expired July 1, 1965. A new wage rate, effective July 1, 1965, was sent to Respondent by this Union and followed by Respondent . A new contract, ef- fective July 1, 1965, was forwarded to Respondent in early September 1965. In November 1965 Respondent sought to discontinue its relations with Local 108 as the representative of its overhead door installers . This action was based on the facts ( 1) that the bargaining unit of employees represented by Local 108 had been broken up by the discontinuance of the porcelain enamel business and it was the employees in this business that were in the generally recognized jurisdiction of this Union; (2) that overhead door installation is a type of work generally recognized in the Los Angeles area (based on past practice rather than any adjudication) as falling within the jurisdiction of the Carpenters Union; (3) that Respondent was expecting to expand this field of its work and to em- ploy more overhead door installers and that the Carpen- ters Union was a source of supply for employees in this category ; and (4) that Respondent had been required by Local 108, against its wishes and judgment. to include the overhead door installers in March 1965 in the unit to be represented by that Union. Respondent contends that it is willing to recognize and deal with Local 108, and has signed an agreement with it to do so, as the bargaining representative of any employees it might employ coming within the generally recognized jurisdiction of Local 108. All of this is well and good, but the law does not permit an employer to direct and interfere with the union affilia- tions of its employees as Respondent has done here. Sec- tion 8(f) of the Act permits prehire agreements with labor organizations in the building and construction industry, but once employees of an employer have become mem- bers of a particular union , the employer cannot by coer- cion, promises, or gifts to employees , or by rendering sup- port to another union , interfere with employees in the choice of their labor organization , irrespective of the em- ployer's motives. These are matters for employees to determine for themselves free from forces or pressure of this nature. I find that (1) by Plant Manager Sutherland's state- ments to employees in November 1965 that after November 20, 1965, they would have to have Carpenters Union cards in order to work , and that whether or not they joined the Carpenters Union , the trucks would roll with carpenters on them after November 20; (2) by Respondent's offering to reimburse , and by reimbursing, employees for part of their initiation fees to Local 108 as inducement for them to change their membership from Local 108 to Carpenters Union ; and (3) by executing and maintaining an agreement with the Carpenters Union as the bargaining representative of Respondent's overhead door installers at a time when they were members of and represented by Local 108, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (2) of the Act.2 2. Respondent 's refusal to bargain with Local 108 In March 1965 Respondent recognized and contracted with Local 108 as the bargaining representative for all outside construction employees ; this included porcelain panel installers and overhead door installers . Although these two categories of employees were under separate supervision and, where employed elsewhere in the Los Angeles area , were of different union affiliation, which suggests some possible lack of mutuality of interest, skills, and wages ; yet, as Respondent's outside construc- tion employees , they did constitute a "plant unit or sub- division thereof' as contemplated by Section 9(b) of the Act. I find that a unit of Respondent's outside construc- tion employees , including porcelain panel installers and overhead door installers , is an appropriate unit for bar- gaining purposes.3 In November 1965 the only outside construction em- ployees of Respondent were the four overhead door in- stallers. Each of these were members of Local 108. As set out above and for the reasons set out above, Respond- ent sought to discontinue recognition of Local 108 as the representative of its overhead door installers and to substitute the Carpenters Union as their bargaining representative. Respondent also endeavored to separate its four over- head door installers into two groups-two for employ- ment on service stations and two for employment on in- dustrial buildings . Up to this time the majority of its work had to do with the installation of overhead doors on ser- vice stations. Respondent contemplated hiring two or three additional installers for installation of doors on in- dustrial buildings . The material used on the service sta- tion doors is basically aluminum and that used on indus- trial sites is basically steel ; although on occasions it is the other way around. None of the material is heavier than ten-gauge steel . As an alternate to a complete severance of relations with Local 108 as the representative of the overhead door installers , Respondent sought to limit recognition of Local 108 to the two employees installing service station doors. Respondent cannot in this manner divest Local 108 of its representative status by an effort to split the bargain- ing unit . As one bargaining unit has been set up and recognized for these job functions , and as that unit is an appropriate one, Respondent cannot choose to deal with Local 108 for only one segment of that unit.4 1 Scharr & Finlay, inc, 149 NLRB 272, Barnes Wilkerson Construc- tion Company, 145 NLRB 704 a The Act requires that a bargaining unit be appropriate - not that it be the only or the most appropriate unit A S Berk Shoe Corporation, 92 NLRB 1457 The unit determination herein is not based on the agreement of the parties Mere agreement of the parties is not determinative of ap- propriateness of a bargaining unit Hygrade Food Products Corporation, 85 NLRB 841 " Rock River Plumbing and Piping Contractors Association, 142 NLRB 1348, fn I B-Y MANUFACTURING, INC. 843 Although Respondent signed the new contract form of Local 108 in January 1966, it did so on the understanding that it apply only to job functions generally recognized by area practice as falling within the jurisdiction of that Union and that it not apply to job functions generally recognized by area practice as falling within the jurisdic- tion of the Carpenters Union-that is, the overhead door installers. Therefore, I find that there is no current agree- ment between Respondent and Local 108 covering Respondent's overhead door installers. In November 1965 Local 108 represented all of Respondent's employees in an appropriate unit of all overhead door installers. I find that (1) by Respondent's efforts to substitute the Carpenters Union for Local 108 as the bargaining representative of these employees, (2) by its recognition and contract with the Carpenters Union as the representative of these employees, and (3) by its refusal to recognize and bargain with Local 108 as the representative of this unit of employees, Respondent has engaged in an unfair labor practice within the meaning of Section 8(a)(5) and (1) of the Act.5 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations of Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. Upon the basis of the findings of fact and the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Sheet Metal Workers Local 108 and the Carpenters Union are labor organizations within the meaning of Sec- tion 2(5) of the Act. 3. All outside construction employees of Respondent, including overhead door installers and porcelain panel in- stallers, excluding office clerical employees, watchmen, guards, professional employees, 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. At all times material herein , Sheet Metal Workers, Local 108, has been the exclusive representative of all employees of Respondent in the aforesaid appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By acts of Respondent enumerated above in para- graph III , C, Respondent did contribute support to the Carpenters Union, did refuse to bargain collectively with Sheet Metal Workers, Local 108, as the exclusive representative of the employees in the above-named ap- propriate unit, and has interfered with, restrained, and coerced employees in the exercise of rights guaranteed in Section 7 of the Act, thereby engaging in unfair labor practices within the meaning of Section 8(a)(1), (2), and (5) of the Act. 6. The aforesaid unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in unfair labor practices violative of Section 8(a)(1), (2), and (5) 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. I shall recommend that Respondent be ordered to withdraw and withhold recognition from the Carpenters Union as the representative of its overhead door instal- lers until such time as that Union may be certified by the Board as bargaining representative of said employees of Respondent. I shall also recommend that Respondent be ordered to cease giving effect to or in anywise implement- ing its contract with the Carpenters Union, or any renewal, amendments, or supplement thereof as applica- ble to Respondent's overhead door installers, and that it continue to recognize and bargain collectively with Sheet Metal Workers, Local 108, as the bargaining representa- tive of said employees, and embody any understanding reached in a signed agreement. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and pursuant to Section 10(c) of the Act, I recommend that Respondent , B-Y Manufacturing, Inc., its officers , agents, successors, and assigns, shall: 1. Cease and desist from: (a) Recognizing Carpenters District Council of Los Angeles County or Carpenters Local 1437 as the exclu- sive bargaining representative of its overhead door instal- lers, unless and until such labor organization shall have been certified by the National Labor Relations Board as the exclusive bargaining representative of said-employees in an appropriate unit. (b) Performing, enforcing, or giving effect to its con- tract with Carpenters District Council of Los Angeles County or Carpenters Local 1437, or to any extension, renewal, modification, or supplement thereof, as covering or pertaining to Respondent's overhead door installers, unless or until said Union shall have been certified by the National Labor Relations Board as the exclusive bargain- ing representative of said employees of Respondent. (c) Contributing support to said Unions by requiring employees, or by threatening to require employees, to join said Unions as a condition of continued employment, and by offering to render, or by rendering, financial assistance to employees for payment or part payment of union initiation fees. (d) Refusing to recognize and bargain with Sheet Metal Workers' International Association, Local Union No. 108, AFL-CIO, as the exclusive collective-bargain- ing representative of all outside construction employees 5 Oilfield Maintenance Co, Inc, etc., 142 NLRB 1384. There is the suggestion in the statement of Plant Manager Sutherland to employees that Respondent will have difficulty competing with other companies in this work as employees of these other companies are all members of the Carpenters Union The carpenters' rate of pay is $4.64 per hour plus 58- 1/4 cents in fringe benefits, the sheet metal workers' rate of pay as set forth in Local 108's printed contract is $5.45 per hour plus 73 cents in fringe benefits. But rates of pay for Respondent's overhead door installers are matters for the parties to resolve by collective bargaining. 844 DECISIONS OF NATIONAL of Respondent, including overhead door installers and porcelain panel installers, excluding office clerical em- ployees, watchmen, guards, professional employees, and supervisors as defined in the Act. (e) In any other manner interfering with , restraining, or coercing employees in the exercise of their rights to self-organization, to form labor organizations , to join or assist Sheet Metal Workers' International Association, Local Union No. 108 , AFL-CIO, or any other labor or- ganization, to bargain collectively through representa- tives of their own choosing , and to engage in other con- certed activities for the purpose of collective bargaining or other mutual aid or protection , and to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Upon request, bargain collectively with Sheet Metal Workers' International Association , Local Union No. 108 , AFL-CIO, as the exclusive bargaining representative of all its employees in the above-described appropriate unit, and embody in a signed agreement any understanding reached. (b) Post at its plant copies of the attached notice marked "Appendix. 116 Copies of said notice, on forms provided by the Regional Director for Region 21, after being signed by Respondent's representative, 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 employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 21, in writing, within 20 days from the date of the receipt of this Decision, what steps Respondent has taken to comply herewith.7 6 In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Ap- peals Enforcing an Order" shall be substituted for the words "a Decision and Order." ' In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Re- spondent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Ex- aminer of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our em- ployees that: WE WILL withdraw and withhold recognition from Carpenters District Council of Los Angeles County and Carpenters Local 1437, or any successor LABOR RELATIONS BOARD thereto, as the exclusive bargaining representative of our overhead door installers , unless certified by the National Labor Relations Board as the exclusive bargaining representative of said employees in an ap- propriate unit. WE WILL NOT perform, enforce, or give effect to, or implement, our contract with the aforesaid Car- penters Unions, or any extension, renewal, modifica- tion, or supplement thereof, unless said Unions shall have been certified by the National Labor Relations Board as the exclusive bargaining representative of said employees. WE WILL NOT contribute support to the aforesaid Carpenters Unions by requiring employees, or by threatening to require employees , to join said Unions as a condition of continued employment, or by offer- ing to render, or by rendering, financial assistance to employees for payment or part payment of union in- itiation fees. WE WILL, upon request, bargain collectively with Sheet Metal Workers' International Association, Local Union No. 108 , AFL-CIO, as the exclusive representative of all employees in the following described appropriate unit and will embody any un- derstanding reached in a signed agreement . The ap- propriate unit is : all outside construction employees of Respondent, including overhead door installers and porcelain panel installers, and excluding office clerical employees , watchmen, guards, professional employees, and supervisors as defined in the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization , to join or assist Sheet Metal Workers' International Association, Local Union No. 108, AFL-CIO, or any other labor or- ganization, to bargain collectively through represen- tatives of their own choosing, or to engage in other concerted activities for the purpose of collective bar- gaining or other mutual aid or protection, or to refrain from any or all such activities , except to the extent that such right may be affected by an agree- ment requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the Act. All of our employees are free to become or remain, or refrain from becoming or remaining, members of Sheet Metal Workers' International Association, Local Union No. 108, AFL-CIO, or any other labor organization, ex- cept to the extent that such right may be affected by an agreement authorized by Section 8(a)(3) of the Act. B-Y MANUFACTURING, INC. Employer Dated By (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, Eastern Columbia Building, 849 South Broadway, Los Angeles, California 90014, Telephone 688-5200.