J. D. Industrial Inslation Co.

J. D. INDUSTRIAL INSULATION CO. J. D. Industrial Insulation Company, Inc. and Asbes- tos Workers Local Union No. 28. Case 27-CA- 5261 January 10, 1978 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On August 10, 1977, Administrative Law Judge Russell L. Stevens issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief, and the General Counsel and the Charging Party filed briefs in answer to Respondent's exceptions. Pursuant to Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions 2 of the Administrative Law Judge, as modified herein, to modify his remedy so that interest on backpay and other monetary benefits is to be computed in the manner proscribed in Florida Steel Corporation, 231 NLRB 651 (1977),3 and to adopt his recommended Order. We agree with the Administrative Law Judge that, due to Respondent's having engaged in a course of conduct consistent with membership in the Western Insulation Contractors Association (WICA), it was estopped from avoiding the responsibilities of associ- ation membership. In so doing, however, we disavow the Administrative Law Judge's finding, as reflected in his Conclusions of Law, that Respondent's pay- ment of dues to the Association from January through March 1976 specifically initiated its obliga- tions as an association member as of January 1, 1976. Rather, we rely on Respondent's entire course of conduct as set forth by the Administrative Law Judge,4 including its payment of dues as a factor, in finding that Respondent held itself out as an associa- tion member to other members of the Association and to the Union and was bound by the WICA t Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibili- ty unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc.. 91 NLRB 544 (1950). enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. 2 In support of his conclusion that Donald Remick was discharged in violation of Sec. 8(aX3), the Administrative Law Judge stated that there was no evidence in the record corroborating the assertion of Respondent's president, Dee J. Byrnes, that work on the Average Packing Company job was completed by February 4, 1977. The record shows, to the contrary, that Donald Remick himself testified that that job was "basically finished" at the 234 NLRB No. 14 union contract at all times material herein. See, particularly, Vin James Plastering Company, 226 NLRB 125 (1976). AMENDED CONCLUSIONS OF LAW Substitute the following Conclusions of Law for the Administrative Law Judge's Conclusions of Law 4, 5, 6, and 7: "4. At all times material herein and continuing to date, the Union has been the representative for the purposes of collective bargaining of the employees in the unit described above, and by virtue of Section 9(a) of the Act, has been, and now is, the exclusive representative of all of the employees in said unit for the purposes of collective bargaining with respect to rates of pay wages, hours of employment, and other terms and conditions of employment. "5. At all times material herein and continuing to date, the Union has requested, and continues to request, Respondent to bargain collectively with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment as the exclusive collective-bargaining representative of all the employees in the aforesaid appropriate unit. "6. At all times material herein and continuing to on or about February 4, 1977, Respondent recog- nized and bargained collectively with the Union as the exclusive collective-bargaining representative of the employees in the appropriate unit. "7. Since on or about February 4, 1977, Respon- dent has violated Section 8(a)(5) and (1) of the Act by refusing to bargain collectively with the Union, by bargaining directly and individually with employees in the unit, and by withdrawing recognition from the Union and thereafter changing wage rates, employee benefits, and other terms and conditions of employ- ment." ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Rcspondent, J. D. Industrial Insulation Company, Inc., Wheat Ridge, Colorado, time of his discharge on February 4. In agreeing with the Administrative Law Judge's finding of this violation, we rely on the fact that Donald Remick's discharge occurred under similar circumstances and on the same date as the unlawful discharges of Respondent's Cheyenne employees, who were later replaced by nonunion employees. We further particularly rely on the record evidence showing that Byrnes indicated an intention to transfer Remick to Cheyenne prior to his discharge. s See, generally, Isis Plumbingd Heating Co., 138 NLRB 716 (1962). 4 We additionally rely on the fact that the reports submitted by Respondent to the Union concerning fnnge benefits were designated: "For Use by [Employers] Under the Asbestos Workers Local Union No. 28 Collective Bargaining Agreement." 163 DECISIONS OF NATIONAL LABOR RELATIONS BOARD its officers, agents, successors, and assigns, shall take the action set forth in said recommended Order, except that the attached notice is substituted for that of the Administrative Law Judge. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government Section 7 of the National Labor Relations Act gives all employees these rights: To organize themselves To form, join, or help unions To act together for collective bargaining or other mutual aid or protection To refuse to do any or all of these things WE WILL NOT refuse to give effect to, and fully comply with, the agreement of September 27, 1975, with respect to the employees in the appropriate unit represented by Asbestos Work- ers Local Union No. 28. The appropriate unit is: All mechanics, improvers and trainees em- ployed by Respondent at its Wheat Ridge, Colorado plant, but excluding office clerical employees, and all guards, professional em- ployees and supervisors as defined in the Act. WE WILL NOT unilaterally change the wages and other terms and conditions of employment of the employees in the above unit without prior consultation with the above-named labor organi- zation as the exclusive collective-bargaining rep- resentative,of said employees. WE WILL NOT bargain directly and individually with any employee in the aforesaid unit. WE WILL NOT unlawfully discharge employees or otherwise discriminate against them because they are union members. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL revoke and cease to give effect to the changes we unilaterally instituted, except in such particulars as Asbestos Workers Local Union 28 may request that a particular change not be revoked. 1 All dates hereinafter are in 1977, unless stated to be otherwise. 2 As amended at hearing, pursuant to written notice by General Counsel and with leave of the Administrative Law Judge. WE WILL restore and place in effect all terms and conditions of the aforesaid contract. WE WILL make all payments to pension, wel- fare, and other funds, plus interest, on behalf of those employees in the unit for whom we previ- ously made contributions and for whom such contributions would have continued had we fully complied with said contract of September 27, 1975. WE WILL make whole all our employees for wages, plus interest, they would have earned if we had fully complied with said contract. WE WILL, upon request, recognize and bargain collectively with Asbestos Local Union No. 28 as the representative of the employees in the afore- said unit, with respect to rates of pay, wages, hours of work, and other terms and conditions of employment. WE WILL in all respects comply with said contract of September 27, 1975, according to its tenor and legal effect. WE WILL offer Thomas Gardner, John Comp- ton, Howard Remick, Robert Remick, Donald Remick, and Stan Wernet reinstatement to their former jobs or, if such jobs no longer exist, to substantially equivalent jobs, without prejudice to their seniority or other rights and privileges and make each of them whole for any wages lost, plus interest, by reason of our failure to comply with said contract of September 27, 1975. J. D. INDUSTRIAL INSULATION COMPANY, INC. DECISION STATEMENT OF THE CASE RUSSELL L. STEVENS, Administrative Law Judge: This matter was heard at Denver, Colorado, on June 23 and 24, 1977.1 The complaint,2 issued March 31, is based upon a charge filed March 2 by Asbestos Workers Local Union No. 28 (the Union). The complaint alleges that J. D. Industrial Insulation Company, Inc. (Respondent) violated Section 8(aX)(1), (3), and (5) of the National Labor Rela- tions Act, as amended, (the Act). All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-examine witnesses, to argue orally, and to file briefs. Briefs, which have been carefully considered, were filed on behalf of General Counsel, Respondent, and the Charging Party. Upon the entire record of the case, and from my observation of the witnesses and their demeanor, I make the following: 164 J. D. INDUSTRIAL INSULATION CO. FINDINGS OF FACT I. JURISDICTION Respondent is now, and at all times material herein has been, a corporation duly organized under and existing by virtue of the laws of the State of Colorado, and maintains its principal office and place of business at 7150 West 38th Avenue, Wheat Ridge, Colorado. Respondent is engaged at Wheat Ridge, Colorado, and elsewhere in mechanical insulation. Respondent, in the course and conduct of its business operations, annually sells and ships goods and materials, and performs services, valued in excess of $50,000 directly to points and places outside the State of Colorado. Respondent's gross annual volume of business exceeds $500,000. 1 find that Respondent is now, and at all times material herein has been, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Asbestos Workers Local Union No. 28 is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES Background 3 Dee J. Byrnes (Byrnes) is Respondent's president. Byrnes has worked as an insulator approximately 18 years. He established Respondent approximately in 1963 and prior to that time had worked as a member of the Union. He signed a union withdrawal card when he organized Respondent and has not been a union member since that time. During the time he has owned Respondent, Byrnes has used the Union's hiring hall to obtain employees, has always paid union scale wages or higher to union employees, has complied with provisions of union agreements (discussed, infra), and has paid union benefits and trust fund obliga- tions on all wages paid to union members who worked for Respondent. However, during the time he has owned Respondent, Byrnes has not abided by the terms of union contracts in some ways. He has installed insulation himself, on about half the jobs Respondent has completed, in disregard of union contractual provisions, and he has employed employees who were not union members. Re- spondent has completed approximately 2,000 insulation jobs, of which approximately half were small jobs on which Byrnes and nonunion employees worked. Approximately 90 or 95 percent of his employees on the total of all jobs were union members, but he has not worked on jobs with union members because the latter refused to work with nonunion employees. Western Insulation Contractors Association (WICA) is a national association of insulation installers, which has a 3 This background summary is based upon credited testimony that is not in controversy. I Tom O'Neill was an employee at Cheyenne but was laid off prior to February 4. and is not involved in this controversy. I Howard, Robert, and Donald Remick (Donald is discussed, infra) are brothers. Colorado chapter (WICA-CC). WICA is authorized in its bylaws to bargain with the Union for its member-contrac- tors, and to bargain for nonmembers if the latter execute appropriate agreements authorizing WICA to so act. At all times relevant herein, WICA and the Union have been parties to a collective-bargaining agreement. Respondent was a member of WICA's predecessor, Midwest Insulation Contractors Association. A principal issue is whether Respondent at relevant times herein was a member of WICA. General Counsel contends that Respon- dent was such a member; Respondent contends it was not a member. The issue is resolved, infra. Approximately in January 1976, Respondent obtained a job for Warren Air Force Base in Cheyenne, Wyoming. The starting crew at Cheyenne consisted solely of union employees. That crew was replaced by other union employ- ees for several reasons prior to and in November 1976. Charles Kingsley (Kingsley), who had worked intermittent- ly as an insulator for Respondent since 1965 or 1966, was placed in charge of the Cheyenne job as superintendent. Thomas Gardner (Gardner), who had worked for Respon- dent since about October 1975, went to the Cheyenne job as foreman, approximately November 1, 1976. By the end of 1976, employees on the Cheyenne job 4 were John Compton (Compton), who had worked for Respondent since November 1968; Howard Remick, who had worked for Respondent since approximately November 1975; Robert Remick,s who had worked for Respondent since September 1975; and Stan Wernet (Wernet), who had worked for Respondent since November 1975. Donald Remick, who had worked for Respondent since approxi- mately February 1975, declined to go to Cheyenne when asked but went to the job for about 2 weeks on one occasion in March 1976 "to help out." 6 As of February 4, Donald Remick was working for Respondent at Average Packing Company. All the aforesaid employees were union mer.bers at the end of 1976; all were being paid above union scale wages as of February 4. As of February 4, and on all jobs prior thereto when union employees were employed, Respondent paid wages, benefits, and living allowances in at least the amounts, and in the manner, provided in current contracts between WICA and the Union. On February 4, the aforesaid six employees were terminated by Respondent, and those terminations are alleged by General Counsel to have been made in violation of the Act. The Cheyenne job was not finished when the employees were terminated. The job later was completed by Byrnes, his son Dan, Kingsley, and two other employ- ees, none of whom was a union member and none of whom was referred to the job through the Union's hiring hall. No payments were made by Respondent to the Union for work done at the Cheyenne job after February 4, but on about February 23 a check in the sum of $5,700 was sent to the Union for fringe benefit payments accrued as of February 4. Since February 4 Respondent has complied with no terms of the contract between WICA and the Union. s All employees on the Cheyenne job (except Kingsley) originally were referred to Respondent by the Union. It is found that those original referrals, and later intermittent work by the same employees for Respondent without additional renewals. were in accord with the usual practice of WICA and the Union under their bargaining agreements. 165 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. Termination of the Six Employees7 Byrnes testified that, approximately 2 weeks prior to February 4, he met with Howard Remick, Robert Remick, Compton, and Gardner, in his Denver office. Byrnes testified that the four employees stated in the meeting that it would require 10 men 5 months to complete the Cheyenne job; that Respondent never would complete the job; and that it would be better if Byrnes breached the contract and filed a petition in bankruptcy. No action was taken at the meeting relative to termination, but the four employees agreed with Byrnes that they would alternate taking a week's leave each in order to prevent a layoff of all employees at that time. That arrangement was followed until February 4. About a week prior to February 4, Byrnes went to the job and discovered that the work was being done too slowly. He decided to fire the employees because "the production wasn't very much." Further, the employ- ees "didn't want to work up there," and Robert Remick "got a job driving a truck and I decided I'd just go up and do the job myself . . . because I didn't have a signed contract." Robert Remick told Byrnes he had quit Respon- dent about a week prior to Byrnes' visit to the Cheyenne worksite. Byrnes terminated all six employees on February 4. When he fired the employees, he gave them no reason other than saying there was no more work for them. Donald Remick was on the Average Packing Company job prior to February 4, but the job was finished by that date. He was discharged because the Average Packing Company job was finished; Donald Remick earlier declined to work at the Cheyenne job; Byrnes had decided to do the Cheyenne job himself; and Byrnes then had no other jobs to which he could recall Donald Remick. Kingsley8 testified that he was present during part of the January meeting between Byrnes and the employees; he arrived after the meeting started. Kingsley said the employ- ees told Byrnes that he "might as well quit business if you have to put in the drain. You might as well close the doors and file bankruptcy." Kingsley said enough materials were on hand to keep employees busy at Cheyenne. Gardner testified that he attended the January meeting between Byrnes and the employees, and that nothing was said during the meeting about needing more employees for the Cheyenne job. He said the employees agreed to alternate time off in order to avoid a mass layoff. Gardner testified he talked on the telephone twice with Byrnes on February 4. He stated: Once about ten o'clock I called in once for material and he indicated to me that if he didn't get a check that we were to bring our tools because there would be nobody on the job the following week. He said to call back at noon and he called back and he said that he didn't receive a check from U. S. Engineering and for us to bring all the tools and to secure the job down because he was going up Monday and pick everything up off the job and that's the last I heard. Q. Did he tell you at ,hat time you were dis- charged? I Although Gardner was designated as foreman of the Cheyenne crew, there is no evidence that he was a supervisor as that term is defined in the Act. He is found to have been a leadman and not a supervisor. A. No. Q. Did he give you any other reason for going back down from Cheyenne? A. No, he just said he was going to put pressure on U. S. Engineering because he couldn't meet his ac- counts payable and he didn't have enough money for the payroll. Gardner said he was unable to obtain materials from Byrnes, to keep the Cheyenne job going. Compton testified that he attended the January meeting, and that there was no discussion about the number of men required for the Cheyenne job. He said the employees voluntarily agreed to take alternate weeks off because "we didn't want to see Mr. Byrnes go down the tube," and that there were "suggestions" about bankruptcy. Compton testified that Byrnes called to Cheyenne on the telephone February 4 to close the job down, that Byrnes and Kingsley came by his house that evening to give him his final check, and that Bvrnes said: A. He said he's through and he couldn't do no more and that he was shutting up the shop and he was going to take the three trucks up Monday and pick up the material. Q. Did he say anything else to you regarding the reason for discharge? A. No more than he couldn't make it. Donald Remick testified that Kingsley brought his final check to him on February 4 and said Byrnes "was closing up the doors and he didn't have enough money to make the payroll anymore." Howard Remick testified that he attended the January meeting and that the employees agreed to take alternate time off. He stated: Q. Were you advocating that he go bankrupt? A. No, I was saying if he was going to lay off all the men and I took an extra week off because he didn't have any material, if everything is boiling down to nothing, why didn't he just quit. I just made a remark. I wasn't advocating anything. Wernet testified that Byrnes paid him off on February 4 and said "he was hurting for money and he was going to shut her down"; that he was even considering bankruptcy. Robert Remick testified that he attended the January meeting and that bankruptcy was mentioned "if he couldn't furnish the -aterial and stuff." He said the man- hour requirements to finish the job were not mentioned. Robert Remick further testified that the week prior to February 4 he asked Byrnes for a layoff because of lack of materials to work with, and Byrnes offered him work on the Betasso job in Boulder; that he refused to take the job because the work already done on the project was substan- dard; and that he took no truckdriving or other job prior to his termination on February 4. Robert Remick testified 8 Kingsley's union card was revoked because he worked during a union strike in 1975; the card was not restored. 166 J. D. INDUSTRIAL INSULATION CO. that shortage of materials frequently, and particularly the week prior to February 4, was a problem with Respondent. Discussion Testimony concerning the January meeting is conflicting, even among General Counsel's witnesses. However, some things are agreed upon by all witnesses or otherwise reasonably can be inferred. First, Byrnes met with at least five employees in January-Kingsley, Gardner, Compton, Howard Remick, and Robert Remick. Second, they dis- cussed the fact that the Cheyenne job was in jeopardy and that a possible mass layoff was imminent. Third, the employees (except Kingsley, the superintendent) agreed to take alternate week leaves in order to avoid a mass layoff and to keep the job alive. After the January meeting the employees took alternate leaves, but the job continued to be precarious. By February 4 Respondent no longer could sustain work on the Cheyenne job and was required to take some kind of action. Byrnes had alternatives available to him: (a) he could breach the contract by lack of performance and be subject to legal action; (b) he could breach the contract and file a petition in bankruptcy; (c) he could (possibly) refinance the project and keep his union crew;9 or (d) he could dismiss his union crew, do some of the work himself, and recruit employees who would work for less than union pay in order to keep the project alive. It is quite clear that Byrnes adopted alternative (d). That conclusion is impelled by the nature of the January meeting and by the unreliabil- ity of Byrnes' testimony concerning alleged reasons for the terminations of February 4. First, Byrnes testified that poor production was a cause for the terminations, yet he acknowledged that all the terminated individuals were good employees. Further, Byrnes and Kingsley acknowl- edged that Byrnes occasionally and Kingsley frequently visited the Cheyenne job, but they did not complain to the employees about low production. Second, Byrnes testified that the employees did not want to work in Cheyenne, but there is nothing in the record to support that testimony. Further, their high wages, plus living expenses, create an inference contrary to Byrnes' testimony. Third, Byrnes acknowledged that when he terminated the employees he only told them no work was available; he gave no other reason for the terminations. Fourth, Byrnes testified that the Average Packing Company job (where Donald Remick was working) was completed on February 4, but that testimony is suspicious on its face and is without support in the record. Fifth, Byrnes testified that Robert Remick quit to accept a truckdriving job, prior to February 4, but that testimony also is suspicious because of its self-serving and 9 Byrnes credibly testified that the Cheyenne job was not a "union" job; that voluntarily, and for his own reasons, he hired an all-union crew. '0 Andrea St. Peter testified that in January she heard Robert Remick tell Byrnes he had a truckdnving job when Byrnes offered Remick a job at Betasso. However, that testimony was not pursued by either party and is ambiguous. Robert Remick testified that he reported to work at Cheyenne the week prior to February 4, and that testimony was not contradicted. i" Called a "short form" agreement, which is executed by nonmembers of WICA to appoint WICA as their bargaining representative. L2 Byrnes executed a "maintenance agreement" with the Union several years ago, which is irrelevant herein. 13 Fletcher Scott (Scott), one of the Union's business agents, testified that unsupported nature and, further, because Robert Remick's denial of Byrnes' statement is credited.10 Finally, Donald Remick, who was an impressive witness, credibly testified that Kingsley brought him his check on February 4 and stated that Byrnes "was closing up the doors and he didn't have enough money to make the payroll anymore." Kingsley did not deny that testimony. However, even though it is clear that Byrnes was required to take some kind of action by February 4, other questions remain. Any action he decided to take could be restricted, if at all, only by law or by contract. B. Alleged Contract Between Respondent and the Union Respondent could be bound to the Union by an express contract or by an implied contract, through contract with WICA, or through contract directly with the Union. 1. Byrnes' testimony that he did not, by written agreement," appoint WICA as Respondent's bargaining representative or contract directly with the Union 12 is not in dispute. 2. A principal issue is whether Byrnes was a member of WICA at times relevant herein and thereby bound to the collective-bargaining agreement between WICA and the Union. Byrnes contends that he never has been a member of WICA; that the only time he was associated with WICA was for a period of 3 months, when he paid dues in January, February, and March, 1976; and that, therefore, the termination of the six employees was his prerogative. Byrnes' testimony that he never filed an application with WICA for membership; that he never paid the standard $100 initiation fee; and that he never paid dues to WICA other than for the 3 months in 1976 was corroborated by Andrea St. Peter, a highly credible and impressive witness. Further, Rex Bowie (Bowie), secretary of WICA-CC and a member of the WICA board of directors, testified that he is custodian of the records of WICA-CC, and that the organization's minutes and records are in accord with Byrnes' testimony so far as that testimony relates to the matters of no membership application, no paid initiation fee, and only 3 months' paid dues. The record permits only one finding on this point: Respondent is not at the present time, was not at the time the relevant WICA-Union contract was negotiated in 1975 and signed effective September 27, 1975, and (except possibly the period January, February, and March, 1976, discussed, infra) never has been, a formal member of WICA.13 The threshold question, therefore, is whether, by paying WICA dues for 3 months, Respondent thereafter was the Union does not have a list of WICA members and has no specific knowledge of those contractors with whom the Union has a contract by reason of the WICA-Union agreement. He said those contractors are known, but he did not explain, upon close questioning, how they become known. He also said he assumes all insulation contractors are WICA members unless and until the Union receives 'official notification" that a member has withdrawn. Scott was a singularly unconvincing witness. He was evasive in his answers and appeared ill at ease and defensive while testifying. He did not give the impression of a forthright witness, and his testimony on this point simply was not believable. Ultimately, he conceded that the Union has no evidence of Respondent's membership in WICA. 167 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bound by the WICA-Union contract during its full term. An antecedent issue is whether Respondent became a member of WICA for those 3 months. So far as WICA membership is concerned, it may well be, as argued by Respondent, that General Counsel was unable to prove formal membership. However, much more than that techniciality is involved. Clearly Byrnes engaged in a course of conduct over a long period of time that was inconsistent with nonmembership. That conduct includes: a. Respondent was a member of WICA's predeces- sor, MICA. b. Since WICA was organized, Respondent has used the Union's hiring hall, has made trust fund payments, has paid at least union wages,"4 and regular- ly has submitted monthly reports to the Union to show compliance with terms of the WICA-Union agreement. c. 95 percent of Respondent's work over the years has been for contractors who required a union work- force. d. In October of 1974 the Union filed charges against Respondent, with the Joint Trade Board estab- lished by the WICA-Union contract. Byrnes appeared at the board's hearing, was found guilty of a contract violation, was fined, and paid the fine. e. Byrnes attended WICA meetings and discussed proposed contract terms, prior to execution of the WICA-Union contract in September of 1975. f. Byrnes attended WICA meetings after Septem- ber of 1975, and participated therein.15 g. Byrnes accepted a WICA membership plaque in early 1976, and was introduced to WICA members on March 19, 1976 as a "new member" of WICA.' 6 h. Byrnes attended a special Joint Trade Board meeting on September 2, 1976 as a WICA representa- tive, to hear charges brought by the Union against an individual. In view of the foregoing indicia of membership, Respon- dent's reliance upon the facts that it never filed an application for membership, or paid an initiation fee, or appeared on any membership list is misplaced. Clearly Byrnes led other members of WICA and the Union to believe that he was a WICA member when it was to his advantage or to his liking to be considered a member. It would be an injustice now to permit Respondent to avoid the responsibilities of membership on the basis of a technicality. Respondent is estopped by its actions from engaging in such inconsistent conduct.17 Byrnes testified that, on a date he does not remember, he told Scott and Fred Burns (Burns), who is secretary of the Joint Trade Board, "I was no longer a member of Western Insulation or never wanted to be and I went to a couple of meetings, but I didn't want to be." There is no evidence that Respondent paid dues to WICA for any period other than January, February, and March 1976. However, there is no question that Respondent was a member of WICA for 14 General Counsel contends that the WICA-Unior. scale of wages is a minimum scale; that Respondent was free to pay more if it so desired. There is no apparent impediment to such above-scale payments in the WICA- Union agreement or in any other evidence. 15 C.P. Exh. 2 shows Byrnes' attendance at, and active participation in, a Joint Trade Board meeting of April 13, 1976. at least 3 months, and that such membership was held with full knowledge of the responsibilities thereby incurred. Byrnes said he never received a copy of, or read, WICA's bylaws. However, by being a member of WICA, Respon- dent is charged with knowledge of its bylaws. They read, in part: ARTICLE VIII - LABOR COMMITTEE i. A Labor Committee of the Association, in such numbers and of such composition as from time to time may be determined by the Board of Directors, shall have the authority to negotiate with one or more labor organizations, as selected by the Board of Directors, in regard to wages, hours, working conditions and other labor contract provisions on behalf of all Regular Members of the Association. 2. Each Regular Member of the Association, by his acceptance and/or maintenance of Regular Member- ship in this Association, hereby assigns his or its bargaining rights to said Labor Committee to negotiate in his or its behalf with said selected labor organiza- tions. 3. Notwithstanding the termination of a Regular Member's membership in this Association by resigna- tion or otherwise, all bargaining authorizations as hereinabove described shall remain in full force and effect during the term of any collective bargaining agreement so negotiated and consummated by the Labor Committee. During the term of each such collective bargaining agreement or agreements so nego- tiated and consummated by the Labor Committee, each Regular Member shall authorize the Labor Com- mittee to interpret, enforce, settle and clarify ambigui- ties and disputes which may arise from such collective bargaining agreement or agreements, notwithstanding termination of Regular Membership in the Association for any reason occurring prior to the expiration date or dates of such collective bargaining agreement or agree- ments. The foregoing authorizations shall not authorize any reopening of negotiations relating to wages and hours other than as may be specifically provided by the terms and provisions of the collective bargaining agreement or agreements so negotiated and consum- mated by the Labor Committee. Any Regular Member whose membership in the Association has been with- drawn or which shall have been terminated for any reason prior to the expiration date or dates of such collective bargaining agreement or agreements negoti- ated and consummated by the Labor Committee shall be deemed to have withdrawn automatically his or its authorization to said Labor Committee forthwith, upon expiration of the effective term of said collective bargaining agreement or agreements. Respondent argues that it was not a member of WICA when the current contract was signed by WICA and the 16 G.C. Exh. 9. lT Marquis Elevator Company, Inc., 217 NLRB 461 (1975); Homer Gale and Howard Gale, Co-Partners, d/b/a America Sign & Neon Company, 176 NLRB 1049 (1969). 168 J. D. INDUSTRIAL INSULATION CO. Union in September 1975, and, further, that Byrnes notified Scott and Burns that Respondent had withdrawn its membership; thus, Respondent is not bound by the 1975 contract. However, that argument ignores WICA's bylaws, quoted above, which clearly bind Respondent to the 1975 contract for the full term thereof. Any withdrawal from WICA's membership during the term of the contract, which expires July 31, 1978, is immaterial. Respondent argues that Scott asked Byrnes to sign a short-form agreement, used by employers who are not WICA members, and that Byrnes refused to sign. Scott testified that he sent the form to Byrnes at the latter's request. However, that contradiction need not be resolved since it is clear that Respondent became a member of WICA in January 1976 and thereby became bound by the W1CA-Union contract. Respondent argues that the Union knew about, and condoned, Byrnes' work in violation of contractual provi- sions. However, it was Respondent's burden to prove that defense, and the burden was not met. Byrnes testified that 95 percent of Respondent's work was done for union contractors who wanted union employees on the job; that from 90 to 95 percent of his employees have been union members; that he was tried by the Joint Trade Board in 1974 for a contract violation, was fined, and that he paid the fine; that he never notified the Union that Respondent did not believe the contract applied to it; that he and Scott discussed nonunion employees working at Cheyenne and as a result, the Union picketed the site for 3 days; that he never notified the Union that he and other nonunion employees did work for Respondent; and that no union representative ever visited one of his nonunion jobs. Respondent relies for its defense upon Byrnes' statement that it was common knowledge in the trade that Respon- dent did nonunion work. That defense is not adequate to overcome the clear import of Byrnes' other testimony, summarized, supra. Clearly Byrnes made every attempt to preclude the Union's discovery of his nonunion work, and there is nothing persuasive to show that his attempt failed. Kingsley emphasized this conclusion when he testified that Scott talked with him on the telephone in November or December 1976 and asked about the Betasso job, saying "he [Scott] thought some hanky panky was going on," referring to nonunion work. Kingsley said he did not tell Scott that he and Byrnes had worked on the job; that he only told Scott to talk with Byrnes about the matter. This defense is without merit. Respondent cites Johns-Manville Products Corporation, 223 NLRB 1317 (1976), for the proposition that nonunion employees may be substituted for union employees in special situations, including economic crisis. In Johns- Manville, the employer was faced with sabotage and economically disruptive employee tactics. Following a lockout, the employer hired some temporary and nonunion employees transferred from other plant branches during contract negotiations, and the Board found that was not a violation of the Act. That is not this case. A part of Johns- Manville not relied upon by Respondent, however, is of relevance herein. The Board stated, inter alia: We agree with the Administrative Law Judge, for the reasons more fully set forth in his Decision, that Respondent's unilateral act of hiring permanent re- placements on April 8, 1974, "without consulting or notifying the Union or the employees of such intention . . . rendered more than a slight adverse effect upon the employees' protected rights, as compared with Respondent's legitimate business purpose in its lockout bargaining leverage" and this conduct violated Section 8(aX3) of the Act. The permanent replacement of all unit employees was also a violation of Section 8(aX5), as it completely destroyed the bargaining unit. In the circumstances herein and in the complete absence of any unfair labor practices on the part of the Union, the employees and/or their lawfully designated representa- tive have the right, as a matter of law, to engage in effective and responsible negotiations over their terms and conditions of employment. When Respondent elected to replace them permanently, without any warning, consultation, or negotiation, such action destroyed that very right itself, and constituted a withdrawal of recognition of their duly designated bargaining representative in violation of Section 8(aX5) and (1) of the Act. Royal Packing Co., et al., 198 NLRB 1060 (1972), also was relied upon by Respondent but it, too, is inapposite since there a question of cessation of unit work was involved. Here, the work admittedly was not completed when the terminations were effected. It is clear from the foregoing that Respondent discharged the six named union members in order to replace them with nonunion employees in violation of Section 8(aX3) and (1) of the Act. Possibly Respondent's alternative courses of action were not palatable or economically feasible, but at least the Union was entitled to notice and to an opportunity to bargain about the matter. That opportu- nity was not given. Respondent's actions thus clearly constituted a violation of Section 8(aX5) of the Act. CONCLUSIONS OF LAW I. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. All mechanics, improvers, and trainees employed by Respondent at its Wheat Ridge, Colorado, plant, but excluding office clerical employees, and all guards, profes- sional 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. Since on or about January 1, 1976, and continuing to date, the Union has been the representative for the purposes of collective bargaining of the employees in the unit described above, and by virtue of Section 9(a) of the Act, has been, and now is, the exclusive representative of all of the employees in said unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. 5. Commencing on or about January 1, 1976, and continuing to date, the Union requested and continues to request Respondent to bargain collectively with respect to 169 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rates of pay, wages, hours of employment, and other conditions of employment as the exclusive collective-bar- gaining representative of all the employees in the aforesaid appropriate unit. 6. On or about January 1, 1976, and continuing to on or about February 4, Respondent recognized and bar- gained collectively with the Union as the exclusive collec- tive-bargaining representative of the employees in the appropriate unit. 7. Since February 4, Respondent has violated Section 8(a)(5) and (1) of the Act by refusing to bargain collectively with the Union, by bargaining directly and individually with employees in the unit, and by withdrawing recogni- tion from the Union and thereafter changing wage rates, employee benefits, and other terms and conditions of employment. 8. By discharging Thomas Gardner, John Compton, Howard Remick, Robert Remick, Donald Remick, and Stan Wernet, Respondent has engaged in unfair labor practices in violation of Section 8(aX3) and (1) of the Act. 9. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirmative action set forth below, designed and found necessary to effectuate the policies of the Act. Respondent will be required to cease and desist from further violations, to revoke its unilateral changes, and to give retroactive effect to all the terms and conditions of the WICA-Union agreement of September 27, 1975, from the date of the Respondent's rejection of said agreement on February 4, 1977, and to make whole its employees for any loss of wages or other benefits they may have suffered as a result of Respondent's unlawful refusal to bargain. Re- spondent also will be ordered to offer reinstatement to Thomas Gardner, John Compton, Howard Remick, Rob- ert Remick, Donald Remick, and Stan Wernet and to make them whole for wages and other benefits lost. The backpay herein recommended shall be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest at the rate of 6 percent per annum, as provided in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). It will also be recommended that Respondent be required to preserve and, upon request, make available to authorized agents of the Board, all records necessary or useful in determining compliance with this Order, or in computing the amount of backpay due. Upon the foregoing findings of fact, conclusions of law and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 'I In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board. the findings, conclusions, and recommended Order herein shall, as provided in Sec. ORDER S The Respondent, J. D. Industrial Insulation Company, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Failing or refusing to give full effect to, and fully to comply with, the agreement between Western Insulation Contractors Association and the Union, effective Septem- ber 27, 1975, to July 31, 1978, according to its tenor and effect, with respect to the employees in the unit set forth above. (b) Failing or refusing, on request, to bargain collectively with the aforesaid labor organization as the exclusive collective-bargaining representative of the employees in the aforesaid unit. (c) Unilaterally changing the wages and other terms and conditions of employment of the employees in the afore- said unit without prior consultation with the aforesaid labor organization as the exclusive collective-bargaining representative of said employees. (d) Bargaining directly and individually with any em- ployee in the aforesaid unit. (e) Unlawfully terminating employees or otherwise mn- lawfully discriminating in regard to their wages and terms and conditions of employment. (f) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self- organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection as guaranteed by Section 7 of the Act, or to refrain from any or all such activities. 2. Take the following affirmative action designed and found necessary to effectuate the policies of the Act: (a) Upon request, recognize and bargain collectively with the aforesaid labor organization as the exclusive collective- bargaining representative of the employees in the aforesaid appropriate unit, with respect to rates of pay, wages, hours of work, and other terms and conditions of employment. (b) Restore and place in effect all terms and conditions of employment provided by the aforesaid contract of September 27, 1975, which were unilaterally changed by the Respondent. (c) Make such pension, welfare, and other payments on behalf of those employees in the unit for whom such contributions were previously made, and would have continued to be made, had the Respondent not ceased to comply with the aforesaid contract. (d) Offer Thomas Gardner, John Compton, Howard Remick, Robert Remick, Donald Remick and Stan Wernet full and unconditional reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges and make each of them whole for any loss of wages suffered by reason of the Respondent's conduct, as provided in the section hereof entitled "The Remedy." 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 170 J. D. INDUSTRIAL INSULATION CO. (e) Preserve and, upon request, make available to authorized agents of the Board, for examination and copying, all payroll records, social security payment rec- ords, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (f) Post at its office in Wheat Ridge, Colorado, copies of the attached notice marked "Appendix." 19 Copies of said notice, on forms provided by the Regional Director for Region 27, after being duly signed by the Respondent's is In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted representative, shall be posted by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (g) Notify the Regional Director for Region 27, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 171