Sheet Metal Workers, Local No. 11

32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sheet Metal W orkers International Association, Local Union No. 11 and Corrugated Asbestos -Contrac- tors, . Inc. and International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO :and International Association of Bridge, Structural. and Ornamental Iron Workers, Local Union No. 58, AFL-CIO Sheet Metal Workers International Association, Local ,,Union No. 11 and , Corrugated Asbestos Contrac- tors, Inc. Cases 15-CD-127 and 15-CB-994 July 9,` 1971 DECISION-AND ORDER BY CHAIRMAN MILLER AND MEMBERS BROWN AND., JENKINS On January 6, 1971, Trial, Examiner Alvin Lieber- man issued a Decision in-the above-entitled proceed- ing, finding that .'Respondent had engaged in and was engaging in certain unfair labor practices,alleged in the, complaint and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, Respondent filed exceptions to the Deci- sion and a brief in support thereof, The General Counsel also filed exceptions to the decision together with a, brief in, support of the exceptions and in support. of, that part of the Trial Examiner's Decision not excepted to. The Charging Party filed a brief in support of the Trial Examiner's Decision.' 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. 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 these cases and -finds merit in Respondent's, exceptions. It therefore adopts the Trial Examiner's, findings of fact with certain, exceptions noted below, but rejects his conclusions and recom- mended Order. The _ complaint, alleged that Respondent, Sheet Metal Workers International Association, Local Union No. 11, violated Section 8(b)(4)(D) of the Act by its refusal to enter into a collective-bargaining agreement or to bargain with the Charging Party, Corrugated Asbestos Contractors, Inc., in order to force Corrugated to assign the work in dispute to its 1 Respondent also filed a motion for oral argument. The motion is hereby denied because the record, exceptions, and briefs adequately members contrary to the Board's jurisdictional award„ to members of .International Association of Bridge, Structural and Ornamental Iron Workers, ; Local Union No. 58, AFL-CIO. The complaint further alleged that by the same' acts Respondent violated Section 8(b)(3). The Trial Examiner found that Respondent violated Section 8(b)(4)(D) and ordered it to enter into a collective-bargaining agreement with Corrugated. He did not decide the merits of the 8(b)(3) allegation because he considered that the remedy for such violation would-be the same as for the violation found. The case arises in connection, with a ' work assign- ment jurisdictional dispute. On February 13, the Board issued its Decision and Determination of Dispute which is reported at 181 NLRB No. 27. The Board found that, there was "reasonable cause to believe" that Respondent, had violated Section 8(b)(4)(D) , of the Act . Itfoundthat Respondent Local 1I had refused to renew its collective-bargaining contract with Corrugated upon the contract's expira- tion on May 31, 1969; told its members not,to ,work for that Company without a contract; and refused to continue to supply workers,, all as a means of requiring Corrugated to assign certain disputed work to members of locals of Sheet Metal Workers International Association. The Board; then deter- mined the merits of the dispute and found that Corrugated's "employees who are representedby .., . [Iron Workers] .... are _ entitled, to the ; work, of installing Reynolds V-beam siding having five inches or more between corrugations." It ,also found that Respondent is not entitled by means,proscribed by Section 8(b)(4)(D)' of the Act to force or require Corrugated to assign ,such work to employees, repre sented by Sheet Metal Workers International Associ- ation or any of its locals. The Board accordingly directed that- Within 10 days from the date of this Decision and -Determination of Dispute, [Respondent] shall notify the Regional. Director, for Region, 15, in writing, whether or, not it will refrain from forcing or requiring [Corrugated ],by means proscribed .by Section 8(b)(4)(D), to assign the work in dispute in ,a manner -inconsistent with the above determina- tion. [181 NLRB No. 27, section entitled Determi- nation of Dispute.] Within a few days after-the,Board issued its Decision, Respondent notified the Regional Director, in writ-, ing, "in accordance with the Board's Decision and Determination of Dispute . . . Local 11 will refrain from forcing or requiring [Corrugated] . . . by means proscribed by Section 8(b)(4)(D) to assign the work [in dispute . . . to members or employees represented present the issues and the positions of the parties. 192 NLRB No. 8 SHEET METAL WORKERS, LOCAL NO. 11 by Sheet Metal Workers International Association or any Local thereof." Shortly thereafter Corrugated, which in past years had executed the same collective-bargaining agree- ment that Respondent had previously negotiated with Sheet Metal Contractors Association of New Orleans, Inc., offered to enter into a collective-bargaining agreement with Respondent identical with that which the Association had recently executed with Respon- dent. Respondent's business manager, Sidney Le- Blanc, answered in writing that "... Local I1 herewith renounces and disclaims any interest what- soever in representing any of your employees engaged in the fabrication or installation of sheet metal materials or employed for any other purpose by your company." Respondent's members who were employees of Corrugated have returned to work and have remained at work. Respondent has not further interfered with Corrugated's work assignments. Relying on the advice of its attorney, Respondent,has continued to receive members' dues from Corrugated's employees and employer contributions for fringe benefits in their behalf. However, Respondent has persisted ' in its refusal to enter into a collective-bargaining contract with Corrugated. The Trial Examiner found that "regardless of the good faith of Respondent's disclaimer," the Board's Decision and Determination of Dispute required Respondent to sign the collective-bargaining agree- ment as requested by Corrugated. Assuming, arguen- do, that a good-faith disclaimer would be a defense to the 8(b)(4)(D) allegation, the Trial Examiner found that it was not made in good faith. He, relied on the factors that Corrugated's employees continued to be dues-paying members of Respondent; Corrugated continued to contribute, and Respondent to receive, fringe benefit contributions on behalf of these employee-members; and, most significantly, that Respondent's Business Manager LeBlanc admitted that the disclaimer was prompted by the work assignment dispute that was the subject of the 10(k) hearing. The Trial Examiner rejected Respondent's assertion that it continued to receive employer fringe benefit contributions on the advice of its attorney that such receipt was necessary to comply with a ' court injunction issued preliminary to the Board hearing in the 10(k) proceeding. He interpreted LeBlanc's seeming admission at the ' hearing that, but for the Kan sas.City dispute, he would have had no reason to disclaim as a statement that Respondent would not have refused to enter into the contract had Corrugat- ed assigned the disputed work to Respondent's members. Respondent contends that it has complied with the Order issued in the 10(k) proceeding: that the Board's 33 Order does not require it to sign a collective-bargain- ing agreement which forces it to'represent employees it no longer desires to represent . It argues that, in good faith, it disclaimed representation of Corrugated's employees and such disclaimer is a defense to the complaint allegation of refusal to bargain. We agree. The Trial Examiner assumed that the Determina- tion of Dispute in the 10(k) proceeding required Respondent to execute a collective-bargaining agree- ment with Corrugated . This' assumption is not justified by the terms of the Determination which only required Repsondent to "notify the Regional Director ... in writing, whether or not' it will refrain from forcing or requiring [Corrugated] by means pro- scribed by Section 8(b)(4)(D),'to assign the work in dispute in a manner inconsistent with the above determination." Respondent has taken the necessary steps to effect compliance with that directive. Since the date of the 10(k) determination, it has not engaged in any strike, refusal to refer employees, or any other action to force or require Corrugated to assign the disputed work to its members. Respondent has refrained, and notified the Regional Director in writing that it would refrain, from prohibited conduct. Accordingly, we conclude that Respondent has complied with the 10(k) determination. It. has there- fore not violated Section 8(b)(4)(D) of the ct. The Trial Examiner did not decide Whether Respon- dent's refusal ' to execute `a collective-bargaining agreement with Corrugated violated Section 8(b)(3) of the Act, as alleged in the complaint, because he considered that the remedy for such violation would be the same as for the violation ' of 8(b)(4)(D)-execution of a collective-bargaining con- tract. He found that, in any event, Respondent's disclaimer of representation was not made in good faith. As we hold that the terms of our 10(k) determination did not require execution of a contract, we examine the other surrounding circumstances to determine whether the disclaimer was in good faith. The Trial Examiner found that Business Manager LeBlanc's testimony, that Respondent would not have disclaimed but for the 10(k) , dispute, was inconsistent with a good-faith intent to disclaim. The Trial Examiner's inference is not warranted. Le- Blanc's testimony indicates that Respondent dis- claimed its representative interest in Corrugated's employees because the 10(k) hearing revealed that Corrugated was employing members of the Iron Workers Union to install not ' only the disputed Reynolds V-beam sheeting but also other sheetmetal products. LeBlanc said that such work, similar to the disputed work, would involve -his Union in like jurisdictional- problems and he therefore , felt that under the circumstances representing, Corrugated's few employees was not worth the trouble. The record i 34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the 10(k) hearing, bears out LeBlanc's statement: Corrugated was employing Iron Workers members for much sheetmetal, work that Respondent believed overlapped its own jurisdiction. The fact that Respon- dent acknowledged that it would not have abandoned its claim to representation but for the 10(k) dispute is not inconsistent with a good-faith intent to disclaim representative status. It is congruent with the view that Respondent was prepared to represent Corrugat- ed's handful of employees if there was no trouble, but not if Respondent was thereby to be involved in numerous jurisdictional disputes. The Trial Examiner found that Respondent's continuing to treat Corrugated's employees as mem- bers and 'accepting Corrugated's contributions cover- ing employee-members' benefits was also inconsistent with a good-faith- disclaimer. The' Trial Examiner rejected Respondent's reason for such actions, that it relied on its attorney's advice in order to comply with the outstanding court injunction, because the Trial Examiner thought that the injunction did not require such action. We cannot say, however, that the terms of the court injunction were so clear that those bound by it could not reasonably conclude that it required a continuation of the same employment relationships. As the evidence' does not reflect adversely on Respondent's good faith in' disclaiming representa- tion, we find that its disclaimer is a'defense to the allegation of refusal to bargain in volation of Section 8rox3).? We have found that Respondent has complied with the terms of 10(k) determination and that Respondent has not refused to bargain in violation of Section 8(b)(3), We shall therefore dismiss the complaint in its entirety. ORDER It is hereby ordered that the complaint herein be, and it hereby is, dismissedin its entirety. 2 The decision in, Texhie Inc., 119 NLRB 1792, enfd.,266 F.2d 349 (C.A. 5), on which the Trial Examiner relied , does not fit the facts of this case. Respondent union in Texlite continued to insist, even as of the time of the hearing, that it was willing to sign a contract with the employer if the employer would but accede to its unlawful condition , recognizing it for a unit in which another union had been certified. Respondent Union's agent in this case has been adamant in his disclaimer at all times,'including the hearing in this case. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE ALVIN LIEBERMAN, Trial -Examiner:, The trial in this proceeding, with all parties except the parties to the dispute in 15-CD-127 represented, was held before me in New Orleans, Louisiana, on October 6, 1970, upon the General Counsel's complaint based on charges filed by Corrugated Asbestos Contractors, Inc. (herein called Corrugated) on May 29 and June 5, 1969,1 and respondent's answer.The principal issue in this case is whether respondent violated Section 8(b)(4)(D) of the National Labor Relations Act; as amended (hereinafter called the Act).2 In this regard, the particular questions for decision are as follows: 1. Has respondent complied with the Decision, and Determination of Dispute made pursuant to Section 10(k) of the Act by the . National Labor Relations Board (hereinafter called the Board)? 2. Has 'respondent engaged in conduct described in Section 8(bX4) of the Act for an object proscribed by subsection (d) thereof? Upon the entire record,s my observation of the witnesses and their demeanor while testifying, and the briefs submitted by the parties who appeared in this proceeding,4 I make the following: FINDINGS OF FACT 1. JURISDICTION Corrugated,a Louisianacorporationwhose principaloffice and place of business is located in New Orleans, Louisiana, is, engaged in the business of engineering, finishing, fabricating, and installing industrial, sheeting and accesso- ries. Corrugated annually purchases and receives goods and materials valued at more than $50,000 which are shipped directly to it from points outside the State of Louisiana. Accordingly I find that Corrugated is engaged in commerce within the meaning of the Act and that= the assertion of jurisdiction over this matter by the Board is warranted. Corrugated Asbestos Contractors, Inc., 181 NLRB No.- 27; Siemons Mailing Service, 122 NLRB 81, 85. H. THE LABOR ORGANIZATIONS INVOLVED Respondent and International Association of"Bridge, Structural and Ornamental Iron Workers, AFL-CIO (herein i The charge filed on June 5,, 1969, alleged that respondent, violated Section 8(b)(4)(D) of the National Labor Relations Act, as amended. A proceeding pursuant to Section 10(k) of that Act was conducted on this charge and resulted in the issuance by the National Labor Relations Board of a Decision and Determination of Dispute dated February 13,,,1970 (181 NLRB No. 27). 2 An issue also raised by the pleadings, but which need not be resolved because of the result I reach as to respondent's, violation of Section 8(bX4)(D) of the Act, is whether respondent infringed upon Section 8(b)(3) by canceling, and refusing to renew, a collective-bargaining contract with Corrugated. As will appear, it is my conclusion that respondent in this manner, as well as in,other respects, violated Section 8(bX4XD). To remedy this my recommended Order will require respondent to accept Corrugated's offer to enter into a trade -agreement containing' terms and conditions consonant with their past practice. In view of the foregoing it is unnecessary to decide the issue concerning respondent 's contravention of Section 8(bX3). 3 The parties agreed to incorporate into, the record of this case the record of the proceeding instituted under Section 10(k) of the,Act (see footnote'1 , above);'as well as the'record of an earlier related proceeding brought in accordance with Section 10('1) of the Act which resulted in the issuance of an injunction against respondent (304 F.Supp. 684,,E.D. La.). These were received as General Counsel's Exhibits (G.C. Exhs.) 3 and 2, respectively. 4 Although all the arguments of the parties and the authorities , cited by them, whether appearing in their briefs or made orally during the trial, may not be discussed in this Decision, each has been 'carefully. weighed and studied. SHEET METAL WORKERS, LOCAL NO. 11 35 called Iron, Workers Union), are labor organizations within the meaning of, Section 2(5) of the Act. and Determination of Dispute and that, therefore, the complaint should be dismissed.? III. THE ALLEGED UNFAIR LABOR PRACTICES A. Introduction Briefly,, this case concerns itself with events which followed a demand by a sister local of respondent that Corrugated assign certain work to its members rather than to employees represented by Iron ' Workers Union. These included a work -stoppage by respondent's members in Corrugated's employ-which terminated upon the issuance of an injunction in a proceeding brought pursuant to Section 10(1); of the Act; respondent's refusal to continue a longstanding contractual relationship with Corrugated, and the issuance by the Board of a Decision and Determination of Dispute under Section 10(k) awarding the work in question to employees represented by Iron Workers Union. The General .,,Counsel and Corrguated contends that respondent induced the work stoppage by Corrugated's employees and canceled; and refused to renew, its contract with Corrugated in order to force Corrugated to assign the work in dispute to. its members. The General Counsel further contends that by its continuing refusal to renew its contract with Corrugated respondent has not complied with the Board's Decision and Determination of Dispute. Accordingly the General Counsel argues, respondent has violated-Section8(b)(4)(D) of the Act .6 Respondent's defense is that the evidence does not show that its conduct after the issuance of the Board's Decision and Determination of Dispute was for an object proscribed by Section 8(b)(4)(D) of the Act. In other words, respondent's position is that it complied with the Decision s As the contentions of the General Counsel and Corrugated are, in the main, similar, they will be referred to hereinafter as the General Counsel's contentions. 6 Set forth below- are the provisions of the several sections of the Act mentioned in the text insofar as pertinent. Sec. 8(b) It shall be an unfair labor practice for a labor organization or its agents- (4) (i) to engage'in, or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services; or (ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is:, (D) forcing or - requiring any employer to assign particular work to employees in a particular labor organization or in a particular trade, craft, or class rather than to employees in another labor organization or in another trade, craft, or,class, unless .such employer is failing to conform to an order or, certification of the Board determining the bargaining representative for employees performing such work: Sec. - 10(k) whenever it is'charged that any person has engaged in an unfair labor practice within the meaning of paragraph (4) (D) of section 8(b), the Board is empowered and directed to hear and determine the dispute out of which such unfair labor practice shall have arisen, unless, within ten days` after notice that such charge has been filed, the parties to such dispute submit to the Board- satisfactory evidence that" they have adjusted, or agreed upon methods for the voluntary adjustment of, the dispute. Upon compliance by the parties to the dispute with the decision of the Board or upon such voluntary adjustment of the dispute, such charge shall be dismissed. Sec. 10(1) Whenever it is charged that any person has engaged in an unfair labor practice within the meaning of paragraph (4) (A), (B), B. Preliminary Findingss 1. Corrugated's operations, its employees, and their affiliation with labor organizations In part, Corrugated's business consists of fabrication sheetmetal building components. This operation is carried on at its shop in New Orleans. To do this work Corrugated, at all material times, has , employed four members of respondent. Corrugated also installs sheetmetal siding on buildings under construction all over the country. In the performance of this work Corrugated employs people who'are members of, or represented by, locals of Iron ' Workers Union. Respondent has never been certified by the Board as the representative of any of Corrugated's employees engaged in installation work, nor has the Board issued any order directing Corrugated to bargain with respondent as the representative of employees performing such work. 2. The relationship between Corrugated and respondent Sheet Metal Contractors Association of New Orleans, Inc. (herein called Association), is, as its name implies, a trade association composed of employers engaged in the- sheetmetal contracting business. On behalf of its constitu- ents" who employ members of-respondent the Association regularly bargains, and enters into collective agreements, with respondent. , Although not a member of the Association, Corrugated has agreed with respondent to accept whatever contracts or (C) of section 8(b), or section 8(e) or section 8(b)(7), the preliminary investigation of such charge shall be made forthwith and given priority over all other cases except cases of like character in the office where it is filed or to which it is referred. If, after such investigation, the officer or regional attorney to whom the matter may be referred' has reasonable cause to believe such charge is true and that a complaint should issue, he shall, on behalf of the Board, petition any district court of the United States (including the District-Court of the United States for the District of Columbia) within any -district where the unfair labor practice in question has occurred, is alleged to have, occurred, or wherein such person resides or transacts business, for appropriate injunctive relief pending the final adjudication of the Board with respect to such matter. -Upon the filing of any- such petition the district court shall have jurisdiction to grant such injunctive relief or temporary restraining order as it deems just and proper, notwithstanding any other provision of law: .... , In situations where such relief is appropriate the procedure specified herein shall apply to charges with respect to section,8(bX4)(D). - 7 Concerning respondent's defense, Section 102.91,of the Board's Rules and Regulations provides in relevant part: If, after issuance of the determination by the Board [in the proceeding conducted pursuant to Section 10(k) of the Act], the parties submit to the regional director satisfactory evidence that they have complied with the determination, the regional director shall ,dismiss 'thecharge. If no satisfactory evidence of compliance is submitted, the regional director shall proceed with the charge under paragraph 4(D)"of Section 8(b) ... of the act ... 8 The purpose of these findings is to furnish a frame of reference within, which to consider the facts relating to respondent's alleged unfair labor practices. To the extent that the contentions of the parties relate specifically to the findings made here they will be treated here, although they, as well as the findings, may again be considered in other contexts. 36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD respondent bargained out with the 'Association without further negotiation. In accordance with this ' practice Corrugated and respondent, from 1953 until 1966, have entered into contracts with- each other covering respon- dent's shop employees upon terms and conditions -identical with those contained in respondent's agreements with the Association. On, May 31 , 1969, respondent's then existing contracts with the Association and with Corrugated expired. About 2 months-, 'later,- . upon the, termination of a strike by respondent against members of the Assocation, respondent and the Association executed their current collective- bargaining agreement. -however, as will be more fully set forth 'below, since May 31, 1969, respondent has refused to enter` into a contract with Corrugated, notwithstanding its past practice in this regard.9 The work in dispute and the cancellation of respondent's. contract with Corrugated In 1967 Corrugated was awarded a contract to install a type of corrugated metal sheeting known as Reynolds V- beam siding on a, building, under construction in Kansas City, Missouri. As was its custom, Corrugated assigned this work to employees who were represented by Iron Workers Union. Because the corrugations- in the siding involved in Corrugated's Kansas City contract were more than 5, inches - apart,-a,sister' local of respondent, ,Sheet Metal Workers'- International Association, Local Union No. 2 (herein called - Local 2), headquartered'^,in Kansas City, felt,,that,^ the installation of this material fell within its work jurisdiction. Accordingly; Local 2 demanded that Corrugated rescind its previous assignment of this work (herein called the work in dispute) and assign the work to its members. Upon Corrugated's refusal 'to accede to this demand Local 2 filed a grievance against Corrugated `with the Kansas City Joint Adjustment Board for the Sheet, Metal ' IndustryI (herein called Kansas City Adjustment Board)., This , body, on January, X10, 1968, sustained the grievance. It ruled that Corrugated had violated its contract with respondent by not assigning the work to members of Local 210 and assessed damages against ,Corrugated in the amount of $12,733.20. Corrugated filed an appeal from- this decision to the National Joint, Adjustment. Board for the Sheet Metal Industry (herein called the. National Adjustment Board). On June 27; 1968,4he National Adjustment Board affirmed the decisionof the Kansas City Adjustment Board except with respect to, the amount of damages, which it reduced to $2,000. It also decided that in the future Corrugated should assign all erection work of the type in dispute to employees represented by locals of, the' Sheet Meta[ Workers' s As has ,already.been noted, it is the General Counsel's,posi'tion that respondent's original refusal to renew i$s contract with, Corrugated was for an- object proscribed by. Section 8(b)(4)(D) of the Act and that its continuing refusal to contract with Corrugated after the issuance of, the Board's Decision,and Determination of Dispute constitutes respondent's noncompliance with that-decision. 10 The contract then,in,force between Corrugated and respondent (G.C. Exh. 3A) provided that, its coverage extended to "the rates of pay, rules and Working conditions of all employees of,[Corrugated] engaged in but not limited to the (a) ... erection land] installation ... of all ferrous or International Association (herein called International). The National Adjustment Board further ruled that, unless Corrugated complied with its decision, Corrugated's contract with' respondent "shall stand automieally cancelled." 11 Corrugated refused to abide by the decision of the National Adjustment Board, which thereupon entered an order directing that the contract between'respondent and Corrugated be canceled. On May 8, ' 1969, respondent notified Corrugated , that - their "contract is herewith, cancelled as, of, 31, 1969„ [its expiration date], and will not be renewed until the direction of the National Joint Adjustment Board is complied with." 12 At the same time Sidney LeBlanc, respondent's business manager, ;informed -Alvin Childress, Corrugated's presi- dent,,as the latter testified, that respondent "would not .. . refer any of [its] ' members ' to [Corrugated's ] shop." In addition, LeBlanc told respondent's members in Corrugat- ed's employ that upon the `contract's expiration they could no longer work for Corrugated. LeBlanc's order to Corrugated's employees was obeyed. As,a . result, between May 31 and September 8, 1969, on which date Respondent's members returned to -work for Corrugated,13 Corrugated was required to subcontract the sheetmetal, fabrication work formerly performed by these employees in its shop. On May 27, 1969, a meeting of sheetmetal contractors, was held in New Orleans., Among those, present were - Childress, Corrugated's president, Edward Carlough, Jr., an official of the International, and LeBlanc. Carlough and LeBlanc discussed with the contractors the kind of work which they felt fell within the jurisdiction of theInterna tional. In this connection, Carlough remarked, as Childress testified, that "a contractor [who] did not abide by the jurisdictional demands of the union .. might very readily find himself in a position to have his contract cancelled." Emphasizing this, LeBlanc, respondent's business manager, informed the contractors, as' Childress further testified, of the presence at the meeting of "an individual [Childress ] who represented a company whose contract had been .. . cancelled." 4. The 1( (1) proceeding In accordance with the authorization contained in Section 10(1) of the Act,. the Director of the-Board's Region 15 (herein called the Regional Director) instituted a proceeding in the United States District Court for, the Eastern District of ' Louisiana'for a temporary injunction to restrain respondent from continuing to:-engage in the conduct set forth in the charge alleging its violation of nonferrous metal work of U.S. No. 10 gauge or its equivalent or„fighter gauge and all other materials used in lieu thereof ..- . and (d), all-other work included in the jurisdictional claims , of Sheet Metal • Workers' International Association:' The contract, further provided that "none-but journeyman and apprentice sheet metal workers shall be employed on any work described [above]." 11 G.C. Exh. 2, Attachment 1. 12 G.C. Exh. 2, Attachment 3. 13 This followed the granting of an injunction pursuant to Section 10(1) of the Act, the issuance of which will be more fully discussed below. SHEET METAL WORKERS, LOCAL NO. 11 Section 8(b)(4)(D). Concluding that there was reasonable cause to believe that the violation charged had occurred,14 the court on September 4, 1969, issued an injunction,15 which by its terms is to remain in effect "pending the final dispostion of the matters involved pending before the National Labor Relations Board" enjoining respondent from, In, any manner or by any means, including picketing, work stoppages,. refusal to refer employees upon request, . orders, directions, instructions, requests - or appeals, however given, made or imparted, or by any like or related acts or conduct, or permitting any such to remain in existence or effect, engaging in, inducing or encouraging any individual employed by Corrugated Asbestos Constr'actors, Inc., 'or any other person engaged in ' 'commerce, or in an industry affecting commerce,`'to engage in a strike or refusal in the course of his employment, to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities, or to-perform any service, or in any manner or by any means threatening, coercing, or restraining Corrugated Asbestos Contrac- tors, Inc., or any other person engaged in commerce or in an industry affecting commerce, where in either case ., an, object thereof 'is to force, or require Corrugated Asbestos Constructors, Inc., to assign the work of 'installing Reynolds V-beam siding to employees who are' members,- of, or represented by, Respondent Sheet Metal Workers International Association, Local Union No. -11, rather than to employees who are members of, or represented by, the International Association of Bridge, Structural and - Ornamental Iron Workers, AFL-CIO, or to employees who are not members of, or, represented` by, 'Respondent Sheet Metal Workers International Association, Local Union No. 11. 5. The 10(k) proceeding - As required in cases such as this by Section 10(k) of the Act the Board conducted a hearing to "determine the dispute" which gave rise to'the charge alleging respondent's violation, of Section 9(b)(4)(D). On the record there made i6 the Board, on February 13, 1970, issued its Decision and Determination of Dispute (181 NLRB No. 27). As there set- forth, the Board found "that [respondent's] contract 'cancellation and refusal to continue supplying Sheet Metal Workers [to Corrugated"] for any purpose were to be used as a,means of requiring [Corrugated] in the future to assign the disputed work to employees' represented by Sheet Metal Workers." Upon these findings the Board concluded "that there is reasonable cause to believe that [respondent] engaged in . . . action [proscribed by Section 8(b)(4XD) of the Act] with an object of forcing 14 The court's opinion is reported at 304 F.Supp 684. As earlier noted, the record of the proceeding here being discussed was received in evidence as G.C. Exh. 2. 15, Respondent's Exhibit (Resp. Exh.) 1. 16 This record, as has already been noted, was received in evidence as G.C. Exh. 3. 17 On the basis of what was said by Edward Carlough, Jr., an official of the International, and Sidney LeBlanc, respondent's business manager, at the May 27, 1969, meeting of sheetmetal contractors, which has been described at length earlier in this Decision, I share the view expressed by 37 [Corrugated ] to assign work to; employees who are members of or, represented by Sheet Metal Workers , International Association or its Locals, rather than the Iron' Workers?' 14a.ving arrived at this conclusion, the Board, considered the merits of the dispute and awarded the disputed work to, Corrugated's employees represented by Iron Workers Union. Concomitantly, the Board determined'that respon- dent "is not entitled, by means proscribed by Section 8(b)(4)(D) of the Act,- to force or require [Corrugated] to, assign the [disputed] work to members or-,employees represented by Sheet Metal Workers International Associa-' tion or any Local thereof." Finally, the- Board, directed respondent, within 10 days, to notify,the Regional Director "in writing, whether or not it will refrain, from forcing or requiring [Corrugated], by means proscribed by Section, 8(b)(4XD), to assign the work i i,. dispute in a manner inconsistent with[its] determination." C. Facts Concerning Respondent's Alleged"" Violation of Section. 8(b)(4)(D) of the Act 1. Respondent's conduct and object,, I have already made findings concerning, respondent's conduct preceding the issuance of'the injunction and the Board's Decision and Determination of Dispute . In sum, these included: _ 1. Respondent's cancellation of its ' contract with- Corrugated which expired on May 31, 1969- 2. Respondent's notice to Corrugated, that it would not again enter into contracts with" Corrugated or refer its members- to Corrugated for employment until Corrugated agreed to assign the "disputed work to .employees represent- ed by respondent- or its sister locals rather `than to employees represented by Iron Workers Union.' 3. Respondent's order to its members to stop working for Corrugated. I further find that an object of respondent's foregoing conduct, especially its cancellation of, and,refusal to renew,, Corrugated's contract,'7 was to force orrequire Corrugated to assign the disputed "work to employees represented by respondent or its sister locals" rather than to employees represented by Iron Workers Union.18- 2. Events following the issuance- of the injection and the Decision, and" Determination of: Dispute= The employees who stopped working for Corrugated when ordered to do so by, Sidney' LeBlanc, respondent's business manager, returned `to " their jobs in Corrugated's fabrication shop a few days-after the injunction was issued. The conditions under which-they havewoiked sin& their and their rates of pay conformed to those set forth in respondent's presently 'effective `collective-barging the Board in its Decision and Determination of Dispute, "that [the] contract cancellation [was Ito be used as a means ofTreguiring [Corrugated ] in the future to assign the disputed work to employees represented by Sheet " Metal Workers. is The proof in` support , of my findings as to respondent's conduct and object is contained in the re`cords' of the-pi oceedings instituted under Section 10(k) and 10(1) of the Act, both of which were received in evidence pursuant to agreement of the parties.. Nothing was adduced at the instan trial to warrant different findings. 38 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD agreement- with the Association. Both, before, ' and since, their work stoppage these employees were, and-have been, members in good standing of respondent,' and respondent has accepted dues from -them since their return to work for Corrugated. The current contract between respondent and the Association requires, members of, the Association to contribute to,health,and welfare, pension,and retirement', vacation„industry;,and apprenticeship funds (herein called fringe-benefit . funds). Since at, . least; October 1969, respondent has accepted Corrugated's contributions, in the required amounts, to, these' funds. In this, connection, respondent has been furnishing Corrugated with forms on which to report its contributions.'9 On February 24, 1970,20 within the time prescribed for doing so in the Board's Decision and Determination of Dispute, respondent notified the Regional Director, in writing, that it "will refrain from forcing or requiring [Corrugated] by means proscribed by Section 8(b)(4)(D) to assign the [disputed work] - to members or employees representedby,Sheet Metal Workers International Associa- tion or any Local thereof." 21,, Four days later Corrugated offered to "sign a contract with [respondent] on the same terms and conditions as others in the New Orleans area."22 Respondent refusedto accept this proposal. Instead, on March 30 respondent sent a letter to Corrugated stating that it "renounces and disclaims any interest whatsoever in' representing any of your employees "23 ,On at least two subsequent occasions Corrugated repeated its offer, to enter into a contract with respondent, but respondent has persistedin its refusal to do so_.- LeBlanc, respondent's business manager, testified that respondent accepted Corrugated's contributions to the fringe' benefit funds after the issuance of the injunction because respondent's lawyer' advised him that the injunc- tion required this of respondent: Although LeBlanc did not testify concerning respondent's reason for , accepting dues from its members who resumed their employment with Corrugated after the-injunction, respondent, in its brief, advances essentially , the same reason for this as LeBlanc gave regarding respondent's acceptance of Corrugated's contributions to the fringe benefit funds.' Respecting the disclaimer" letter LeBlanc stated that a reason for sending it was his feeling that it was "not worth [his] time, trouble or efforts or' :the cost to [respondent] to be involved , with an independent contractor, [who emplpyed] just ... four people." Testifying further in,this regard, LaBlanc acknowledged that if the dispute had not arisen in Kansas City respondent would not-have had "any reason to disclaim interest in representing 'Corrugated's employees," and would not have 'done so ' "unless [respondent] had problems here locally", which, LeBlanc stated, had not been the, case "up until that time." 19 See &C. Exhs. 7A through 7S. 20' All dates subsequently mentioned without stating a year fall within 1970. D. Contentions and Concluding Findings Concerning Respondent's Alleged Violation of Section 8(b)(4)(D) of the Act I have found that an object of respondent's conduct in causing a work stoppage among Corrugated's employees, canceling and refusing to renew its contract with Corrugat- ed which expired on May 31, 1969, and notifying Corrugated that it would not again enter into contracts` with Corrugated or refer its members - to"' "Corrugated for employement was to force or require Corrugated to assign the work in dispute to employees represented by,respon- dent or its sister locals rather than, to employees represented by Iron Workers Union. Upon, these findings theK,conclu- sion that respondent violated Section 8(b)(4)(D) o(the Act appears inescapable, and respondent does not, make a contrary argument. But this does . not - complete the inquiry. What must further be determined is whether -respondent complied with the Board's Decision and Determination of Dispute. If it has, this ends the matter and complaint must be dismissed. If it has, not, the complaint must be sustained and, an appropriate remedial order, entered. Texas Contracting Company et al, 166 NLRB 869, 8,70, enfd. 409 1.2d 709 (C.A. 5); New York .Times Company, 154 NLRB 1122,1124. Respondent argues that by notifying, the Regional Director , that it "will refrain from forcing or, requiring [Corrugated ] by means. proscribed by' Section 8(b)(4XD) to assign the , [disputed work], to members or employees represented by Sheet Metal Workers International Associa- tion or any Local thereof," and by refraining from such conduct, it did all it was, required to, do, byway of compliance with the Decision and Determination of Dispute. Respondent contends further that its disclaimer of interest in representing Corrugated's-'employees, which it urges, on brief, "was bona fide . . . and effected a termination of the pre-existing bargaining relationship between [respondent and Corrugated]' justified its refusal' to enter into a collective-bargaining contract-with Corru-'L gated in accordance with, their past practice. I do not agree with either contention. Nor do I agree that the disclaimer was "bona fide." Inits Decision and Determination of Dispute the Board expressed the opinion, in which I concur, that , respondent's cancellation of its, contract with Corrugated was `,'used as a means of requiring [Corrugated ] in the future to assign the disputed work to employees represented-by, Sheet Metal. Workers." Accordingly, regardless of the good faith of respondent's disclaimer, in order for respondent to come into full compliance, with the Board's Decision and Determination of Dispute it would have had to _ accept Corrugated's offer to "sign a contract with [respondent] on the same terms and conditions as others in'the New Orleans area." By rejecting this offer and by persisting in its refusal to enter into a contract with Corrugated.. on terms and conditions identical with those contained in its' current agreement with the Association in accordance with past 21 Resp. Exh. 3.' 22 G.C. Exh. 4. 23 G.C. Exh.'5. SHEET METAL WORKERS, LOCAL NO. 11 practice, respondent -has failed to comply with the Board's Decision and Determination of Dispute. Despite my foregoing conclusion, I will assume, though I do, not so decide; that had respondent effectively dis- claime&a representative interest in' Corrugated's employ- ees,'this, even -in°'f,he. 'circumstances present here, would have excused ,r'espondent's refusal to enter into a collective- bargaining agreement with Corrugated and respondent's failure,thereby, to; comply fully with the Decision and Determination of Dispute. I find, however, that the effectiveness of respondent's disclaimer is belied by its conduct.; "[Al disclaimer to be ,effective must be unequivocal and must have been made in, good, =faith. A union's `bare statement', of, disclaimer is not sufficient to establish that it has abandoned its claim to representation if the surround- ing circumstances justify, an' inference , to the contrary.'The union's conduct must not be',`inconsistent' with its alleged disclaimer." Texlite, Inc., 1.19aNLRB 1792, 1798-99„ enfd. 266 F.2d 349 (C.A. 5). (Footnotes ommitted.) In Texlite the' Board found that the disclaimer there under consideration "was a tactical maneuver and not a good-faith renunciation of its representation rights." 24 This, because notwithstanding the disclaimer the employees concerned continued to be members of the union, the union continued to receive contributions to its welfare fund in behalf of those employees from the employer involved, and the union had indicated a willingness to contract with the employer under conditions laid down by the union. These elements, and more, are present here and show, like the disclaimer in Texlite, that respondent's disclaimer was not "a good-faith renunciation of its representation rights," but a mere "tactical maneuver" to avoid compliance with the Board's Decision and Determination of Dispute. Thus, Corrugated's shop employees, upon returning to work after the work stoppage induced by respondent, continued to be members of respondent . Respondent accepted, and continues to accept, Corrugated's contri- butions to the fringe benefit funds in behalf of these employees. Finally, as Sidney LeBlanc, respondent's business manager, testified, respondent would have been willing to contract with Corrugated had the Kansas City work assignment problem not arisen. In other words, respondent would not have refused to enter into an agreement with Corrugated if Corrugated had accepted the conditions contained in respondent's contract cancellation notice; namely, Corrugated's compliance with the decision of the National Adjustment Board requiring Corrugated to assign the work in dispute to members of respondent or its sister locals. There are, in addition, other factors present which likewise indicate that respondent's disclaimer lacked good faith. These consist of respondent's acceptance of dues from its members who returned to work for Corrugated and respondent's furnishing of forms to Corrugated for its use in reporting its contributions to the fringe benefit funds. Tracking testimony given by LeBlanc , respondent's 24 119 NLRB 1799. 25 Nowhere within the four corners of the injunction is it made to appear that respondent is obliged to do more than to refer employees to Corrugated on request; to refrain from coercion, picketing, or striking; and 39 business manager, concerning information which he received from respondent's lawyer,-, respondent seeks to explain away its acceptance of dues from itsmembers who went back to work, for Corrugated,, its acceptance of Corrugated's contributions to the fringe benefit funds, and its furnishing of fringe benefit reporting forms to Corrugat- ed by arguing that- its was advised by its lawyer .that the injunction required it to do these things . So clear, however, are the provisions of the injunction thatrsuch advice seems to have been unwarranted .m This being so, respondent is accountable for conduct inconsistent with its disclaimer notwithstanding that its lawyer, moved, obviously, by an abundance of caution, counseled respondent to act in this manner. Cf. N.L.R B. v. Keystone Floors,,Inc., etc., 306 F.2d 560, 564 (C.A.3). Concerning the disclaimer letter itself„ LeBlanc testified it was sent because Corrugated employed only four people who would be covered by a contract and that for this ,reason "to be_ involved" with Corrugated was ,"not worth [his] time, trouble or efforts or the cost to [respondent]." Nevertheless and despite the few people employed by Corrugated LeBlanc stated, in almost his very next breath, that respondent would have had no reason to disclaim had the work assignment dispute not arisen in Kansas City, Regardless of anything else, this persuades me that respondent did not disclaim in good faith, but merely as a "tactical maneuver" to evade complying with the Board's Decision and Determination of Dispute. Accordingly, I conclude that respondent's disclaimer of interest in representing Corrugated's employees was invalid and did not excuse respondent's refusal to enter into a collective-bargaining agreement with Corrugated and its failure, to this extent, to comply with the Board's Decision and Determination of Dispute. IV. THE EFFECT OF RESPONDENT'S UNFAIR LABOR PRACTICES UPON COMMERCE Respondent's unfair labor practices, as found above, occurring in connection with Corrugated's operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic , and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that respondent engaged in unfair labor practices within the meaning of Section 8(bX4)(D) of the Act, my recommended Order will require respondent to cease and desist therefrom and to take such affirmative action as will effectuate the purposes of the Act. In committing the foregoing unfair practices respondent, among other things, canceled, and refused to renew, its contract with Corrugated which expired on May 31, 1969. To remedy this my recommended Order will obligate respondent to accept Corrugated's offer to enter into a to refrain further from encouraging employees to strike, where an object of any such conduct falls within the proscription of Section 8(b)(4)(D) of the Act. 40 DECISIONS OF NATIONAL: LABOR RELATIONS BOARD collective-bargaining agreement- .which, if Corrugated so requests; will be, in-accordance with^the past practice of the parties,- in, all respects identical with the contract in force between respondent and the Association on the effective date of-my recommended Order. 'Upon- the basis of tthe fore-gougfindings of fact and upon the entire record innthis case, I make the following:' CONCLUSIONS `OF LAW 1. Corrugated is an, employer within the meaning of Section 2(2) of the Act:and: is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent and Iron Workers Union are labor organizations within the meaning of Section 2(5)-of the Act. 3s The;w'►rork in dispute consists of the erection and installation of material known; as Reynolds V-beam metal sheeting or siding -with corrugations in excess of 5 inches apart. 4. Respondent has not .complied with the Decision and `determination of Dispute issued by the Board on February 13, 1970 (181 NLRB No. 27). 5. < By noncomplying with_ the Decision and -Determina- tion- of Dispute, as set forth in Conclusion^of, taw 4, above, by causing ^ work, stoppages and strikes among Corrugated's employees, by canceling its collective-bargaining agree-, ment with Corrugated, by notifying' Corrugated that it` would not again enter into collective-bargaining' agree ments with Corrugated or refer its members ' toCOnugated for employment, and by refusing-to enter into a, collective- bargaining agreement with Corrugated, in"order to`forceor' require Corrugated to=° assign the` work "described in Conclusion of Law 3, above, to employees represented by respondent or' its sisteri"466AIS rather than `to employees represented by Iron Workers Union, respondent 'has engaged," and is engaging, in unfair labor practices within the meaning of Section 8(bX4)(i) and (ii)(D) of the Act. 6.; The unfair labor practices engaged in by respondent as set forth in Conclusion of Lave 5; above, affect commerce within the meaning of Section 2(6) and°(7)6fthe tact. [Recommended Order omitted from publication.]