Johnson Sheet Metal, Inc.

644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Johnson Sheet Metal , Inc. and Local No. 29, Sheet Metal Workers International Association, AFL-CIO. Case 17-CA-3664 November 19, 1969 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND ZAGORIA On April 11, 1969, Trial Examiner Marion C. Ladwig issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices in violation of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the Trial Examiner's Decision. Thereafter, General Counsel filed exceptions to the Decision and a supporting argument, which were adopted by the Charging Party, and the Respondent filed exceptions to the Decision and a supporting brief. 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 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 and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following modifications. We find, in agreement with the Trial Examiner, that those employees who were on strike on August 16, 1968, when the economic strike against the Respondent was converted into an unfair labor practice strike, and who had not been permanently replaced at that date, are entitled to reinstatement upon application, discharging if, and as necessary, persons hired on or after that date. In addition, we shall order that those strikers who-were on strike on August 16, and had been permanently replaced before that date, be offered, upon application, reinstatement as their former positions become available, before hiring new employees, in conformity with the policy laid down in The Laidlaw Corporation, 171 NLRB No. 175.' 'Member Brown, unlike his colleagues, would find merit in the General Counsel's contention that under the circumstances here the strikers are entitled to an offer of reinstatement by the Respondent, rather than being required to make application therefore, and are entitled to backpay from September 17, 1968 (for those unreplaced as of the date it became an unfair labor practice strike). or the date their jobs became available thereafter (for replaced economic strikers) It is thus apparent, in his view, that if this Respondent had not refused unlawfully to sign the multiemployer contract on September 17, the unreplaced strikers would have returned to work on September 17 when all other, striking employees of the multiemployer group returned, and the replaced economic strikers would have applied for reinstatement at that time We further find,. in agreement with the Trial Examiner, that the Respondent violated Section 8(a)(5) and (1) of the Act by its untimely, withdrawal from the multiemployer bargaining without the consent of the Union after the commencement of negotiations for a new contract, and by its refusal to adhere to the new contract thereafter negotiated by Gilliland, attorney for the employer group, and the Union. Accordingly, we shall order the Respondent to remedy its unfair labor practices by giving retroactive effect to all the terms and conditions of the September 16, 1968 Hutchinson Contract from its effective date. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, and hereby orders that the Respondent, Johnson Sheet Metal, Inc., Hutchinson, Kansas, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, with the following modifications; 1. Delete the period at the end of paragraph 2(a) and add the following: "and give retroactive effect thereto from its effective date." 2. Insert the following as paragraph 2(c), and reletter present paragraphs (c) and (d) of the Recommended Order as paragraphs (d) and (e): "(c) Offer, upon application, to all employees participating in the strike on August 16, 1968, who had been permanently replaced before that date, reinstatement to their former or substantially similar positions, as such positions become available, before hiring new employees to fill these positions." 3. Delete the period at the end of the first indented paragraph of the notice and add the following: and give retroactive effect to the terms and conditions of said agreement from its effective date. 4. Add, as a third indented paragraph of the notice the following. WE WILL offer, upon , application, full reinstatement to our employees who were on strike on August 16, 1968, and had been permanently replaced before then, as their former or substantially similar positions become available, and before hiring new employees to fill these positions. TRIAL EXAMINER 'S DECISION STATEMENT OF THE CASE MARION C LADWIG, Trial Examiner This case wasl tried at Hutchinson , Kansas, on February 17, 1969, 179 NLRB No. 104 JOHNSON SHEET METAL, INC. 645 pursuant to a charge filed on September 5, 1968,1 by Local No. 29, Sheet Metal Workers International Association, AFL-CIO, herein called the Union, and pursuant to a complaint issued on January 9, 1969. The primary issue is whether the Respondent, Johnson Sheet Metal, Inc.,' herein called the Company or Johnson, illegally refused to bargain by withdrawing from joint negotiations during a strike, in violation of Section 8(a)(5) and (1) of the National Labor Relations Act, as amended Upon the entire record,3 including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel and the Company, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY AND THE UNION INVOLVED The Company, a Kansas corporation, is engaged in contract sheet metal installation in Hutchinson , Kansas, where it annually receives materials valued in excess of $50,000 directly from outside the State. The Company does not deny, and I find, that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The Union is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Agreement to Negotiate Jointly Until 1966, Johnson operated as a nonunion contractor in Hutchinson. About April of that year, the Union (with headquarters in Wichita) organized all of Johnson's sheet metal workers. Because of the labor shortage and the loss of journeymen to union contractors, Johnson recognized the Union without an election. Through its attorney, Robert J. Gilliland, Johnson negotiated certain changes in the Union's Wichita contract (between the Union and the Sheet Metal Contractors Association of Greater Wichita). The Johnson agreement was made effective from May I, 1966, until April 30, 1968 (the last 2 years of the 3-year Wichita contract). Shortly after the Johnson agreement was signed, the Union signed a similar agreement with Owston Sheet Metal, a smaller nonunion contractor in Hutchinson. The following year, in October 1967, the Union negotiated with Attorney Gilliland extensions of the Union's agreements with Stevens, Inc., and Modern, a Division of Building Industries, Inc., the two other union contractors in Hutchinson. The agreements were extended to July 1, 1968 (2 months after the expiration date of the Wichita contract). In 1968, before negotiations for new agreements in Hutchinson began, Union Business Representative Ron Weems conferred with Attorney Gilliland concerning whether the upcoming negotiations should be conducted separately or jointly. On March 21 (at a time when Attorney Gilliland represented only the three larger contractors, Johnson, Stevens, and Modern), Representative Weems wrote Gilliland a letter, confirming Weems' March 15 request by telephone, that Gilliland 'All dates, unless otherwise indicated, are in 1968 'The name of the Respondent was corrected at the trial 'The parties' Stipulation Correcting Transcript , filed March 24, 1969, is hereby approved, and the transcript is corrected accordingly "investigate possibilities of negotiating with Stevens, C. E. Johnson, Owston and Modern at one time." Subsequently, Owston retained Gilliland to represent it in negotiation. Gilliland thereafter obtained the signatures of Johnson and Owston on extension agreements - extending the Johnson and Owston agreements from April 30 (the expiration date of the Wichita contract), until July 1 (the expiration date of the Stevens and Modern agreements). Representative Weems countersigned these extension agreements in a meeting with Attorney Gilliland on April 24. Also in that meeting, Gilliland and Weems agreed to engage in joint negotiations for a Hutchinson contract - provided the Union would' agree that any contract reached in the Hutchinson area would not be ratified by the entire membership of the Wichita local, but by employees living in the Hutchinson area and normally working for the Hutchinson contractors. There was no association of sheet metal contractors in Hutchinson. Shortly after this April 24 meeting, Attorney Gilliland and Representative Weems confirmed in writing their agreement concerning joint negotiations . On April 26, Gilliland wrote Weems (with a copy to each of the four union contractors in Hutchinson): Reference is made to our conference on Wednesday, April 24, 1968, in which you asked for a letter and I asked for a letter from you in regard to the negotiations toward a new contract to commence July 1, 1968. This is to advise that Johnson Sheet Metal, Inc., Modern, Owston Sheet Metal and Stevens, Inc. will negotiate jointly with a view to signing separate but uniform contracts with Local No. 29 for a term commencing July 1, 1968 to replace the existing contracts each of them have with your local. [Emphasis supplied.] On May 8, Representative Weems responded, writing Gilliland, "Re: Hutchinson Contract Negotiations": As per your request Ratification of contracts in the Hutchinson area will be by vote of employees living in the area and normally working for involved employers. B Joint Negotiations In the joint negotiations which ensued, the attorney (or his partner on two occasions) was the sole representative for the four Hutchinson contractors. No employer official attended any of the 8 or 10 negotiation meetings which were held between May 8 and the July I strike. At the May 8 meeting, Attorney Gilliland presented to the Union a joint proposal, entitled "Proposal Submitted by Johnson, Owston, Modern and Stevens," and stating that "the employers propose to enter into a contract which would be the same as the present Modern-Stevens contract," except for several listed changes. (Emphasis supplied.) Two of these proposed changes were to make accommodations for the differences between Johnson's operations and the others. One was to delete the reference to "No. 10 U.S. guage" (slightly over 1/8 inch) sheet metal, "the same as in present Johnson contract" - to allow for heavier metal (up to 3/16 inch) which the Johnson shop was equipped to use. The second was to include "residential supplement provisions" (containing a lower journeyman wage rate for residential work) "the same as present Johnson agreement" - to make Johnson's substantial amount of residential work more competitive with the work of several nonunion contractors in Hutchinson. During the negotiations which followed, the attorney and the union negotiators discussed a third 646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD matter of particular interest to Johnson i e , a provision for production rates to be paid if Johnson expanded its operations and produced certain stock items in its shop In the "Hutchinson contract" which the Union finally reached with Stevens and Modern on September 16 in negotiations with Attorney Gilliland, provisions were included on all three of these matters The reference to No. 10 U S gauge was not deleted, but a new provision was negotiated, covering "plastics and other materials" when used "in lieu of sheet metal." (The Union contended that this new provision was sufficient to cover Johnson's use of heavier metal, and that there was no jurisdictional problem with the iron workers ) In lieu of the residential supplement, a provision on "Residential Work" was negotiated, permitting an unlimited number of apprentices on residential work, to cope with the nonunion competition. (Before the July I strike, the Union had agreed to give Johnson such "an unlimited number of apprentices for residential work " Stevens and Modern were not doing residential work A third provision was included, stating that "production wage rates" could be paid on certain listed items if "manufactured for sale to the trade" - the production rates to be negotiated. (Neither Stevens nor Modern produces such stock items for sale ) As discussed below, Johnson announced its withdrawal from the joint negotiations on August 16 However Attorney Gilliland, who negotiated these and other provisions in the September 16 Hutchinson contract, continued to represent Johnson, and appeared on Johnson's behalf in the present proceeding, in which Johnson was charged on September 5 with refusing since August 16 to bargain with the Union The evidence does not reveal what, if any, part Johnson took in consulting with the attorney after August 16 concerning the contents of these and other provisions in the Hutchinson contract C The Strike As previously indicated, the four Hutchinson agreements were scheduled to expire on July I, A short time before this, as recited by Johnson in its brief, "employer Owston advised that he was selling his company and would no longer be a party to the negotiations',' On an undisclosed date, Owston sold the business to one of its three employees The new owner, a member of the Union, did not retain Attorney Gilliland to represent him in the joint negotiations Neither Gilliland, nor any of the three remaining contractors (employing a total of about 18 union members), objected to Owston's withdrawal. The joint negotiations continued, but no agreement was reached. On July 1, the Union went on strike against Johnson, Stevens, and Modern. That same morning, the new owner of Owston signed - without change - the new Wichita contract (which had been executed in Wichita about the middle of June, after a 6-week strike), and promised to work under the Hutchinson contract if one was reached, in order to avoid being struck. There were still no objections by Attorney Gilliland, nor by any of the three larger contractors, to Owston's withdrawal from the joint negotiations, and no objections to Owston's new owner signing a separate agreement covering his two sheet metal workers r On July 9, the Union wrote Attorney Gilliland a letter, "Re- Hutchinson Contract Negotiations, Modern, Johnson and Stevens," stating that the Union wished to withdraw all concessions previously made in negotiations and "to revert to Union's original proposal." Gilliland did not respond, and the strike continued until the middle of August before either party contacted the other D Announced Withdrawal from Joint Bargaining On' August 15, 6 1/2 weeks after the strike began, Attorney Gilliland sent the Union a telegram, requesting a meeting the next day "regarding Hutchinson contract negotiations " On August 16, Gilliland met with the union representatives and presented to them a letter, advising that "on behalf of Stevens, Inc , Modern, Inc., and Johnson Sheet Metal; Inc," all' prior proposals were withdrawn The letter concluded with a paragraph stating, "You are further advised that Johnson Sheet Metal, Inc is no longer a participant in the negotiations " Attorney Gilliland, who testified on Johnson's behalf (with the consent of the General Counsel and the Union), admitted that Union Business Representative Weems immediately objected to Johnson's withdrawal, stated that he did not think Johnson could withdraw, and stated that the Union "could not accept" the withdrawal. Weems credibly testified that "we objected to Johnson's withdrawal" and "told them we didn't think he could do it " On cross=examination by company counsel, Weems further credibly testified that "in our August 16th'meeting when we were informed that Johnson was pulling out and didn't intend to negotiate with us any more," Attorney Gilliland made the statement "that he did not believe they [Johnson] were right, that they could not do it, but nevertheless, their client wanted out regardless." (When Gilliland was asked on cross-examination if it were not true that in the meeting on August 16 "you informed Mr Weems that you believed that the Johnson Company could not legally withdraw from the negotiations," Gilliland gave the somewhat equivocal answer, "No, I don't think I made such a statement " He did not appear to have a clear recollection of the conversation, and I discredit his denials ) E Decision to Operate Nonunion When describing Johnson's position concerning bargaining thereafter with the Union, Attorney Gilliland testified that it "was a big part of their thinking" that Johnson's 1966-1968 agreement with the Union was a trial arrangement, for only the 2 years, but "that was not my thinking." (Gilliland testified that he did think at the time that he could support a theory that inasmuch as the Union was not certified, it was,recognized contractually only for the purpose of that contract.) At another point, when Gilliland was questioned about Johnson's failure to bargain separately, he mentioned the fact that "some of the striking employees had returned " (On July 1, all seven of Johnson's sheet metal workers were members of the Union Arne Johnson, a Johnson officer, testified that one of the striking employees returned to work about August .1, that another returned about August 15, and that three new employees were working on,August 16.) 1 also note that Johnson was still a party to the joint negotiations when Gilliland wrote the first paragraph of the August 16 letter to the Union, withdrawing all prior proposals "on behalf of Stevens, Inc, Modern, Inc, and Johnson Sheet Metal, Inc." (Emphasis supplied.) The second paragraph, stating that Johnson "is no longer a participant in the negotiations," was apparently added on Johnson's instructions. Upon considering this evidence, Johnson's conduct thereafter, Attorney Gilliland's difficulty on the stand in JOHNSON SHEET METAL, INC. explaining why he failed to answer the Union's offer to bargain separately with Johnson, and all the circumstances, I find that at the time Attorney Gilliland added the withdrawal statement to the August 16 letter, Johnson had made the decision to return to its previous nonunion status The Union's offer to bargain separately with Johnson was contained in the Union's August 20 letter, in which it stated, "this Union does not recognize your right to withdraw from joint negotiations in this fashion." However the Union, "reserving the right to object" to the August 16 withdrawal, stated its willingness to bargain separately, and asked to be advised, "in writing by return mail the time,-place and date of meeting in the immediate future." Johnson never responded to this letter In the meantime, Attorney Gilliland continued to meet with the Union upon behalf of Stevens and Modern An agreement was reached on September 16 It was entitled "Hutchinson Contract," and was between the Union and "Modern, a Division of Building Industries, Inc and Stevens, Inc , `hereinafter referred to as the EMPLOYER," for a contract term from September 16, 1968 through July 1, 1970 It was prepared for signature by each of the employers separately, but both Stevens and Modern signed the same copy. Apparently relying on its refusal-to-bargain charge, the Union did not present the Hutchinson contract to Johnson for signature. However, Attorney Gilliland testified that Johnson refused to 'sign it, as proposed in a settlement agreement on December 18. Gilliland then offered, through the Board agent, to bargain separately with the Union (and the offer was repeated at the trial.) By December, two former strikers and seven new employees were 'working At the time of the trial, 5 strikers remained on strike, and a total of 10 employees were working at the Johnson shop. (The evidence does not disclose whether the new employees were permanent replacements.) When asked why he never answered the Union's August 20 letter or contacted the Union in response to the letter, Attorney Gilliland testified I don't know Between the date of that exhibit and the time I received the charge which would be about September 5 or 6, I can't give any specific reason I might have been out of town part of the time, I'm not sure, but from the date the charge was filed, I felt that we were into a Board matter and then the conversation with the Board office was September 12, 1 know that, and from that point on for quite some time I thought we'll wait until an investigator comes out here, then we'll be talking with the Board about this matter of bargaining between Johnson and Local 29 1 can account for it from that time on When asked if waiting for the Board agent was the only reason for not accepting the Union's offer to bargain separately, Gilliland answered "No, it's the main reason," and then testified- I don't know of any other particular reasons It was just a state where nothing was going on between the parties A strike was going on, picketing was going on, some of the striking, employees had returned too, anyway, I think . . . In my mind, it was a Board matter and we were going to be talking to the Board about it and I'm very sincere Of course, from September 12 until December is quite a span of time but I did think all of that time that someone from the Board office would be out here and we would be talking about the matter of bargaining between Johnson and Local 29. I'm sincere about that .... Well, I felt that 647 would start something one way or the other . . Start a line of communication and there was none at that time between the parties. Gilliland appeared to be in error when testifying that waiting for the Board agent was the main reason for the 4-month delay. If Johnson had been willing for Gilliland to engage in separate bargaining with the Union, Gilliland undoubtedly would have so advised the union representatives, with whom he was bargaining (on behalf of Stevens and Modern) through September 16 Instead, Johnson's position at that time (as later revealed) was that its "trial arrangement" with the Union was over Under all the circumstances, I find that Johnson was determined since August 16 to operate without a union I further find that-Johnson's offers to bargain (made in the December settlement discussions and at the trial, after it had succeeded in hiring a full staff of employees) were made with the realization that as a practical matter, bargaining then could not affect its nonunion status F. Concluding Findings 1. Multiemployer bargaining Johnson contends that the Union in its March 21 letter merely requested to negotiate "'at one time," that the evidence clearly shows that the subsequent meetings "were for the ' convenience" of the Union, and that the "Meetings held at one time did not constitute `multi-unit bargaining on a joint basis."' I find, however, that when Business Representative Weems met on April 24 with Attorney Gilliland '(who was then representing the four union contractors in Hutchinson), they reached a decision which went further than the Union's original request. As confirmed by Gilliland's April 26 and Weems' May 8 letters, Gilliland and Weems did not agree on April 24 simply to meet at one time to negotiate separate contracts for the four contractors They extended the Johnson and Owston agreements until July I (the expiration date of the Stevens and Modern agreements), and agreed to "negotiate jointly" with a view of signing separate "but uniform" contracts, which would be ratified by only the Hutchinson employees. The attorney was to be the sole 'representative of the contractors in the negotiations At the first bargaining session on May 8, he-submitted, on behalf of the four contractors, a joint proposal to enter into "a contract," combining features of the previous separate agreements, with other changes. Thereafter, the attorney and the union representatives sought agreement on uniform provisions which would accommodate the needs of the different operations. Then when the smallest of the four contractors `went out of business, and the new owner failed to retain the attorney (and dealt separately with the Union without objection), the • three larger contractors continued to combine their bargaining strength, in defense of the economic strike conducted by the Union against them The Union continued to deal jointly with Johnson; Stevens, and Modern when it corresponded with Attorney Gilliland on July 9, and Gilliland acted on behalf of all three of them when he wrote the first paragraph of the August 16 letter to the Union. A month later; after several additional bargaining sessions, Gilliland reached agreement with the Union on the September 16 "Hutchinson Contract" ' - that contained provisions which did not concern the operations of Stevens and Modern (who signed the "uniform" contract), but which had been sought by Gilliland, before Johnson's withdrawal from the joint negotiations, 648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD particularly to accommodate Johnson's needs The General Counsel contends that Johnson "definitely was a member of a multiemployer group committed to joint negotiations." Johnson, on the other hand, quoting language used by the dissent in Kroger Co , 148 NLRB 569,.577 (1964), that the "group bargaining as took place was for the convenience of the employers and unions involved, and was not undertaken with the intention. of establishing a multiemployer unit," contends that that was precisely the bargaining situation here Whether or not there was a multiemployer bargaining relationship depends on the intention of the parties As stated by the majority in the Kroger Co case, 148 NLRB at 573, "What is essential is that the employer member has indicated from the outset an intention to be bound in collective bargaining by group rather than by individual action." Similarly stated in Electric Theatre, etc , 156 NLRB 1351, 1352 (1966), "it is settled that to establish a multiemployer unit, the Board requires a controlling history of collective bargaining on such basis, or an unequivocal agreement of the parties to bind themselves to a course of group bargaining in the future." (Emphasis supplied ) Here, the contractors authorized the same attorney to be their representative in group bargaining There was therefore no question - as there would have been if a separate employer association had been authorized to do the bargaining - whether the representatives of other employers had the authorization to bind a particular employer Johnson, as well as each of the other contractors, was represented in the group bargaining by its own attorney, whose approval was necessary before agreement could be reached on a uniform contract , for Hutchinson. I find, that when this sole representative of the contractors agreed in writing that the contractors would "negotiate jointly" with the Union, with a view of signing "separate but uniform contracts," upon the Union's agreement to have the new contract ratified by Hutchinson members only, the parties reached an unequivocal agreement to be bound by group bargaining, and Johnson,thereby indicated from the outset of bargaining an intention to be bound in collective bargaining by group rather than by individual action. I also find that this intent and agreement to establish a multiemployer bargaining relationship were demonstrated by the joint actions thereafter taken by the contractors and the Union in negotiations and the strike, and by Attorney Gilliland's statement to the union representatives at the time of Johnson's announced withdrawal, that Gilliland did not think Johnson had the right to withdraw but that the client "wanted out regardless " I further find that the sale of Owston to one of its three employees, the failure of the new owner to join in the multiemployer bargaining, and the new owner's separate dealing with the Union - without any objection on the part of Attorney Gilliland, Johnson, Stevens, or Modern - did not affect the multiemployer bargaining between the Union and the three, larger contractors Anderson Lithograph Co., 124 NLRB 920 (1959), enfd. sub nom N.L R.B v. Jeffries Banknote Co., 281 F 2d 893 (C.A. 9, 1960); Sewanee Coal Operators' Assn , 152 NLRB 663, 670 (1965) 2. Untimely Withdrawal Johnson's attempt on August 16 to withdraw from the multiemployer bargaining occurred during the strike, months after the prestrike bargaining began, and on the first day of the resumed bargaining which resulted in an agreement This attempted withdrawal after negotiations had begun and before agreement had been reached - over the strong, repeated objections by the Union - was clearly untimely and ineffectual Sheridan Creations, Inc , 148 NLRB 1503, 1505 (1964), enfd. 357 F 2d 245 (2 Cir 1966), cert denied 385 U S 1001 (1967) For several months, Johnson had received the benefits of multiemployer bargaining The April 24 agreements to extend Johnson's separate contract from April 30 to July 1, and to engage in joint negotiations for a Hutchinson contract, had prevented a separate strike against Johnson at the time the Union struck the Wichita contractors about May 1 Also, Johnson benefited from the combined efforts, and increased bargaining power, of the Hutchinson contractors (a) in obtaining meaningful bargaining apart from the Wichita negotiations, (b) in eliminating any competitive disadvantage among themselves from dissimilar separate agreements in Hutchinson, and (c) in seeking a Hutchinson contract on the best possible terms "One may not, seek the benefits of joint bargaining without risking exposure " Retail Clerks Union (Kroger Co) v. NLRB , 330 F.2d 210, 215 (D C. Cir. 1964). ,Johnson contends in its brief that the Union acquiesced in the withdrawal when the Union offered on August 20 to bargain separately, citing C & M Construction Co., 147 NLRB 843, 845 (1964) However, in that case, the union "interposed no objection but simply asked for written confirmation of the withdrawal." Here, the Union objected orally and in writing, and when making the offer to bargain separately, specifically reserved the right to object to the August 16 withdrawal. Furthermore, about 2 weeks later when Johnson had failed to respond to the offer, the Union filed the charge herein, alleging a refusal to bargain since August 16. There clearly was no acquiescence in the attempted withdrawal, and Johnson continues to refuse to sign the September 16 Hutchinson contract (contending in its brief that the only bargaining order should be for separate bargaining) Accordingly, I find that Johnson has refused to bargain since August 16 by its attempted untimely withdrawal from the multiemployer bargaining, and by its refusal to sign the Hutchinson agreement, in violation of Section 8(a)(5) and (1) of the Act. I also find that Johnson's refusal since August 16 to continue in the multiemployer bargaining prolonged the economic strike against Johnson and converted it into an unfair labor practice strike In view of these findings, I do not deem it necessary to rule on whether Johnson also refused to bargain separately with the Union as alleged in the complaint CONCLUSIONS OF LAW By attempting untimely to withdraw from joint negotiations on August 16, by refusing thereafter to continue. in the multiemployer bargaining, and by refusing to sign the September 16 Hutchinson contract, the Company engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act THE REMEDY Having found that the Respondent has committed certain unfair labor practices, I shall recommend that it be ordered to cease and desist from such conduct and from any like or related invasion of its employees' Section 7 rights, and to take certain affirmative action, which I find necessary to remedy and to remove the effect of the unfair labor practices and to effectuate the policies of the JOHNSON SHEET METAL, INC. Act. The economic strike against the Respondent having been converted into an unfair labor practice strike on August 16, 1968, 1 shall recommend that the Respondent be ordered, on application, to .reinstate employees who were then engaged in the strike and who had not been permanently replaced before that date, to positions they held at the time they went on strike, without prejudice to their seniority and other rights and privileges, discharging if, and as, necessary persons hired on and after that date, and to make the applicants whole for any loss of pay suffered by reason of its refusal, if any, to reinstate them, by payment to each of them a sum of money equal to that which they normally would have earned less their net earnings, during the period from 5 days after the date on which they apply or have applied for reinstatement to the date of Respondent's offer of reinstatement Such backpay shall be computed in the manner set forth in F W Woolworth Company, 90 NLRB 289, plus interest at 6 percent per annum as prescribed in Isis Plumbing & Heating Co, 138 NLRB 716 Accordingly, on the basis of the foregoing findings and conclusions, and on the entire record, I recommend, pursuant to Section 10(c) of the Act, issuance of the following. ORDER Respondent , Johnson Sheet Metal, Inc , its officers, agents, successors , and assigns, shall I Cease and desist from (a) Refusing to sign the September 16, 1968 through July 1, 1970 "Hutchinson Contract" between Hutchinson, Kansas, sheet metal contractors and Local No. 29, Sheet Metal Workers International Association , AFL-CIO (b) In any like or related manner interfering with, restraining , or coercing employees in the exercise of their rights under Section 7 of the Act. 2 Take the following affirmative action necessary to effectuate the policies of the Act. (a) Forthwith sign the September 16, 1968, Hutchinson Contract (b) Offer, upon application , to all employees participating in the strike on August 16, 1968; and who had not been permanently replaced, reinstatement to their former or substantially similar positions , without prejudice to their seniority and other, rights and privileges, and make the applicants whole for any loss of pay they may have suffered by reason of its refusal, if any, to reinstate them by payment to each of them a sum of money equal to that which they normally would have earned less their net earnings , during the period from 5 days after the date of which they apply or have applied for reinstatement to the date of Respondent ' s offer of reinstatement, in the manner set forth in the section of the Trial Examiner's Decision entitled "The Remedy " (c) Notify the above-mentioned employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and Universal Military Training and Service Act , as amended , after discharge from the Armed Forces. (d) Preserve and, upon request , make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards , personnel records and reports, and all records necessary to analyze the amount of backpay due under the terms of this Order. 649 (e) Post at its shop in Hutchinson, Kansas, copies of the attached notice marked "Appendix "d Copies of the notice, on foims provided by the Regional Director for Region 17, after being duly signed by an authorized representative of the Respondent, shall be posted by the Respondent immediately' upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material (f) Notify the Regional Director for Region 17, in writing, within 20 days from the date of the receipt of this Decision, what steps the Respondent has taken to comply herewith 5 IT IS ALSO ORDERED that the complaint be dismissed insofar as it alleges violations of the Act not specifically found herein In the event that this Recommended Order is adopted by the Board, the words "This Notice is Posted by Order" shall be substituted for the words "Pursuant to 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, there shall be added after the words "An Agency of the United States Government" the words "as Enforced by the United States Court of Appeals " 'In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify the Regional Director for Region 17, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended 'Order of a Trial Examiner of the National Labor Relations Board, as amended, an Agency of the United States Government WE WILL forthwith sign the September 16, 1968 Hutchinson Contract which was negotiated by our attorney in multiemployer bargaining with Sheet Metal Workers Local 29 WE WILL offer, upon application, full reinstatement to our employees who were on strike August 16, 1968, and not permanently replaced before then, and will give backpay to any of . them unlawfully denied reinstatement from 5 days after their application to return to work. Dated By JOHNSON SHEET METAL, INC (Employer) (Representative) (Title) Note If any person mentioned above is presently serving in the Armed Forces, of the United States we will notify him that he will be reemployed if he applies after his discharge 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. Any questions concerning this notice may be directed to the Board's Regional Office, 610 Federal Building, 601 E. 12th St , Kansas City, Missouri 64106, Telephone 816-374-5282