Concord Metal, Inc.

912 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Concord Metal, Inc. and Sheet Metal Workers International Association, Local 9, AFL-CIO. Cases 27-CA- 10261, 27-CA-10261-2, 27-CA- 10316-2, 27-CA-10316-4 June 30, 1989 DECISION AND ORDER AND ORDER REMANDING BY MEMBERS CRACRAFT, HIGGINS, AND DEVANEY On December 14, 1988, Administrative Law Judge James M. Kennedy issued the attached deci- sion. The General Counsel and the Charging Party filed exceptions and supporting briefs . The Re- spondent filed cross-exceptions and a brief in sup- port. The General Counsel and the Charging Party filed responses to the Respondent's cross-excep- tions, and the Respondent filed a motion to strike a portion of the General Counsel's response.' The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions, cross-exceptions, and briefs and has decided to adopt the judge's rul- ings,2 findings, and conclusions only to the extent consistent with this Decision and Order, and to remand this proceeding to the judge for the pur- pose of making credibility resolutions and a deter- mination of whether the December 9, 1987 strike was an economic or unfair labor practice strike. Specifically, we adopt the judge's findings that the "Resolution 78" agreements are not independ- ent collective-bargaining agreements and that the Respondent did not violate the Act by photograph- ing the employees on the picket line during the strike. We disagree with his findings, however, that the Respondent did not violate the Act when it made a postcertification unilateral change and when the Respondent's supervisor told an employ- ee that the employee would not receive holiday r This motion to strike is denied because the statements at issue in the General Counsel's reply brief do not affect the outcome of the case. 2 The Respondent contends that the amended charge in Case 27-CA- 10261 is untimely because it is based on events that occurred outside the 10(b) period and therefore should be dismissed. The Respondent further argues that the allegations in the amended charge are not closely related to the allegations in the earlier, timely filed charge. The judge, finding no violations in this case , did not address this issue. We find that the allegations in the amended charge that the Respond- ent unilaterally ceased making contractual fringe benefit fund payments on Resolution 78 projects are closely related to those of the original charge that alleged that the Respondent unlawfully repudiated its collec- tive-bargaining agreement. Both charges allege a violation of Sec 8(a)(5) and both charges anse from the Respondent's unilateral change in the unit employees' terms and conditions of employment in September 1987. See Redd-I, Inc., 290 NLRB 1115 (1988). Accordingly, we find no merit in the Respondent's contention that the allegations in the amended charge should be dismissed. pay because employees had voted for the Union. In addition, in light of our finding that the postcertifi- cation unilateral change was unlawful, we remand to the judge for credibility resolutions, factual de- terminations, and legal conclusions on the issues of whether the strike was an unfair labor practice or economic strike and whether the Respondent's treatment of strikers following their unconditional offers to return to work violated the Act. 1. THE UNILATERAL CHANGE The Respondent and the Union were parties to a master 8(t) collective-bargaining agreement that ex- pired on June 30, 1987.3 On January 6 the Re- spondent gave notice that it was withdrawing from the multiemployer association which had bargained for and entered into the master agreement with the Union on the Respondent's behalf and that it in- tended to terminate the contract on its expiration. On July 1 the Respondent withdrew recognition from the Union and set forth its own policies with respect to wages and other terms and conditions of employment. For the reasons fully discussed by the judge, the Respondent continued to make fringe benefit contributions to the trust funds in July and August for employees working on projects covered by Resolution 78 as required by the expired master collective-bargaining agreement. An election was held on September 2 among the Respondent's employees and on September 10 the Union was certified as the exclusive bargaining rep- resentative. On September 16 the Respondent's president, Rudy Tezak, wrote a letter to Union Business Manager William Stephens questioning whether he should continue to make fringe benefit contributions to the trust funds as set forth in the contract. Tezak indicated that if he did not hear from the Union by September 21, he would cease making payments to the trust funds and would in- stead pay the fringe benefits directly to the em- ployees. On September 18 the Union sent a tele- gram to the Respondent informing it that Stephens would not be in the office until September 22, and that he was the only person who could respond to the Respondent's inquiry. Despite this response from the Union, the Re- spondent changed its existing policy on September 25 and paid the fringe benefits directly to the em- ployees who were working Resolution 78 jobs. On October 13 an attorney for the Union wrote to the Respondent noting the change of policy and indi- cating that the Respondent had a continuing obli- gation to make payments to the trust funds, and that the trust funds might not credit the Respond- 8 All dates are in 1987 unless otherwise noted 295 NLRB No. 94 CONCORD METAL ent for fringe benefit contributions paid to the em- ployees. Thereafter, the Respondent stopped making the contributions to the employees and began making payments into an escrow account. The judge stated that in light of John Deklewa & Sons,4 the Respondent was free to withdraw recog- nition from the Union and set its own terms and conditions of employment as of the expiration of the master 8(f) collective-bargaining agreement on June 30, 1987. The judge then found that because the Respondent was under no obligation to pay the previously agreed-to fringe benefit contributions after the expiration of the master agreement, it committed no violation when it paid the employees directly for the equivalents. We disagree. This analysis does not consider the change in the parties' positions that occurred as of September 2, 1987, the date that the Union was selected by the Re- spondent's employees as their exclusive bargaining representative. Regardless of what changes the Re- spondent was privileged to make after it repudiated its bargaining relationship with the Union in July, once the Union was selected as the representative of its employees, the Respondent was under an ob- ligation to bargain with the Union prior to making any changes in the employees' terms and conditions of employment.5 The Respondent's notice to the Union on Sep- tember 16 that it was considering a change with re- spect to the trust fund payments was insufficient to meet its obligation to bargain with the Union. By insisting that the Union reply by September 21, the Respondent did not afford the Union a reasonable amount of time in which to respond.6 Further, the Respondent was notified that the Union would be unable to bargain prior to that date because its business manager would not be in the office until after the response date proposed by the Respond- ent. Accordingly, we find that the Respondent vio- lated Section 8(a)(5) and (1) by unilaterally chang- ing its payment of fringe benefit contributions with- out providing the Union an adequate opportunity to bargain.7 II. THE HOLIDAY PAY QUESTION Employee Todd Paulson testified that about 1 week after the representation election, he tele- 4 282 NLRB 1375 (1987), enfd. sub nom. Iron Workers Local 3 v. NLRB, 843 F.2d 770 (3d Ca. 1988), cert. denied 488 U S 889 (1988). See NLRB v. Katz, 369 U.S. 736 (1962). See also Fugazy Continental Corp., 265 NLRB 1301 (1982), enfd. 725 F.2d 1416 (D.C. Cir. 1984). 6 See M & M Building Contractors, 262 NLRB 1472 (1982). 7 We note that in order for a remedy to the Respondent 's failure to pay the fringe benefit funds to be appropriate, the fund must be a mandatory subject of bargaining as defined by Sec . 8(d). See Fox Painting Co., 263 NLRB 437 (1982), enfd. 732 F 2d 554 (6th Cir 1984). We leave to the compliance stage of this proceeding the determination of which , if any, of the funds fail to meet this criteria 913 phoned the Respondent's office from his worksite at Cub Foods. He asked Shop Foreman Mike Rob- erts if Paulson had been paid for the Labor Day holiday. Paulson testified that Roberts stated, "Rudy [Tezak, Respondent's president] had got pissed off because the vote went for the union. So he wasn't going to pay us." Roberts testified that he told Paulson, "The way I [see] it, seeing as how the election had been held on September 2, they had voted for the union's package, not Rudy's which had included it." Roberts then reported this conversation to Tezak. Prompted apparently by this conversation, Tezak later that day visited Paulson at another job- site. Tezak told Paulson that there was a 90-day waiting period that had to pass before holiday pay was awarded and that Labor Day was within the 90-day period . When further questioned by Paulson with respect to the fact that Paulson was a long- time employee, Tezak explained that the waiting period began with the institution of Tezak's poli- cies on July 1. The judge found that even from Roberts' own testimony, it was clear that Paulson had been told that the holiday pay had been denied him because the crew voted for union representation. The judge then found that by seeking Paulson out and ex- plaining the policy to him, Tezak promptly dis- avowed Roberts' coercive statement and substitut- ed correct information . Accordingly, the judge rec- ommended that this allegation be dismissed. Contrary to the judge, we find that Tezak's statements to Paulson did not "cure" the coercive statements by Roberts. Tezak's attempt to disavow the implications in Roberts' statements fell short of the Board's standards for effective repudiation of coercive conduct. In Passavant Memorial Hospital,8 the Board held that an effective denial must be timely, unambiguous, specific in nature to the coer- cive conduct, free from other proscribed illegal conduct, adequately published to the involved em- ployees, and should give assurances to employees that no interference with their Section 7 rights will occur in the future . In addition, the Board held that there must be no proscribed conduct by the employer after the publication. Here, Tezak's comments to Paulson provided no assurances against future coercive conduct, and thus did not serve as an effective disavowal of the prior coercive statement . Moreover, we note that the denial did not occur in an atmosphere free from other proscribed conduct . In these circum- stances, we find that the Respondent violated Sec- tion 8(a)(1) of the Act by telling Paulson that he 8 237 NLRB 138 at 138-139 (1978) 914 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD was not receiving holiday pay because the employ- ees voted for union representation. III. THE STRIKE On December 9, six of the Respondent's employ- ees engaged in a strike. On January 5, 1988 , the six striking employees made unconditional offers to return to work. The Respondent placed them on a preferential hiring list and at the time of the hear- ing none of these employees had returned to work for the Respondent. The judge stated that because the Respondent had not violated the Act, the strike was an economic strike. As discussed above, we find that the Respondent has committed certain unfair labor practices. Having found that the Respondent engaged in these unfair labor practices, it is necessary to deter- mine whether these actions were a cause of the strike or whether the decision to strike was made for purely economic reasons, and whether the Re- spondent's treatment of the strikers following their unconditional offers to return to work violated Section 8(a)(3) of the Act. Accordingly, we remand this proceeding to the judge for a determi- nation of these issues, including the making of any necessary credibility resolutions , and the issuance of a supplemental decision. AMENDED CONCLUSIONS OF LAW 1. By failing and refusing to bargain with the Union over the change in the payment of fringe benefit contributions after the Union was selected as the employees' collective-bargaining representa- tive, the Company engaged in unfair labor prac- tices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. 2. By telling employee Todd Paulson that holi- day pay was being withheld because employees voted for union representation, the Company vio- lated Section 8(a)(1). 3. The General Counsel failed to prove that the Resolution 78 agreements were binding contracts surviving the expiration of the master collective- bargaining agreement on June 30, 1987, or that the Respondent violated the Act by failing to comply with these agreements. 4. The General Counsel failed to prove that the Respondent violated the Act by photographing strikers on the picket line. REMEDY Having found that the Respondent has engaged in certain unfair labor practices, we shall order it to cease and desist and to take certain affirmative action necessary to effectuate the policies of the Act. To remedy the Respondent's unlawful unilateral change in the payment of fringe benefit contribu- tions, we shall order it to remit to the appropriate funds the payments unlawfully withheld.9 We shall also order the Respondent to make whole all af- fected unit employees for losses they incurred by virtue of its unilateral change in fringe benefit pay- ments.1 ° This shall include reimbursing employees for any contributions they themselves have made for the maintenance of any fund after the Respond- ent made its unlawful unilateral change, with inter- est as computed in New Horizons for the Retard- ed. 11 ORDER The National Labor Relations Board orders that the Respondent, Concord Metal, Inc., Aurora, Col- orado, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Unilaterally changing its payment of fringe benefit contributions. (b) Telling employees that holiday pay is being withheld because employees voted for union repre- sentation. (c) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Remit to the appropriate funds payments it has unlawfully withheld , reinstate the prior insur- ance coverage for unit employees, and reimburse its employees for any losses or expenses incurred because of its failure to maintain such insurance, all in the manner set forth in the remedy section of this decision. (b) Preserve and, on request , make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment 9 Because the provisions of the fringe benefit fund agreements are vari- able and complex, the Board does not provide for interest at a fixed rate on fund payments due as part of a "make-whole" remedy It is therefore left to the compliance stage of these proceedings the question of any ad- ditional amounts the Respondent must pay into the funds in order to sat- isfy the "make-whole" remedy These additional amounts may be deter- mined, depending on the circumstances of each case , by reference to pro- visions in the documents governing the fund at issue and , where there are no governing provisions, to evidence of any loss directly attributable to the unlawful action, which might include the loss of return on investment of the portion of the funds withheld, additional administrative costs, etc., but no collateral losses. See Merryweather Optical Co., 240 NLRB 1213, 1216 fn. 7 (1979). 10 Kraft Plumbing & Heating, 252 NLRB 891 fn. 2 (1980), enfd. 661 F.2d 940 (9th Cir. 1981). 11 283 NLRB 1173 (1987) CONCORD METAL records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its Aurora, Colorado facility copies of the attached notice marked "Appendix." 12 Copies of the notice, on forms provided by the Regional Director for Region 27, after being signed by the Respondent's authorized representative , shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to employees are customarily posted . Reason- able steps shall be taken by the Respondent to ensure that the notices are not altered , defaced, or covered by any other material. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. IT IS FURTHER ORDERED that this proceeding is remanded to Administrative Law Judge James M. Kennedy for credibility resolutions and a determi- nation of whether the December 9 strike was an economic or unfair labor practice strike and wheth- er the Respondent's treatment of strikers following their unconditional offers to return to work violat- ed Section 8(a)(3) of the Act. IT IS FURTHER ORDERED that the judge prepare and serve on the parties a supplemental decision setting forth findings and conclusions concerning whether the December 9 strike was an unfair labor practice strike. Copies of the supplemental decision shall be served on all the parties, after which the provisions of Section 102.46 of the Board's Rules and Regulations shall apply. is If 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 Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT make unilateral changes in the pay- ment of fringe benefit contributions. WE WILL NOT tell you that holiday pay is being withheld because you voted for union representa- tion. 915 WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL remit to the appropriate funds pay- ments we have unlawfully withheld, reinstate the prior insurance coverage for you, and reimburse you for any losses or expenses incurred because of our failure to maintain such insurance, plus interest. CONCORD METAL, INC. Michael J. Belo, for the General Counsel. Robert R. Miller (Stettner, Miller & Cohn), of Denver, Colorado, for the Respondent. Dennis E. Valentine (Brauer & Buescher), of Denver, Col- orado, for the Charging Party. DECISION STATEMENT OF THE CASE JAMES M. KENNEDY, Administrative Law Judge. This case was tried before me on August 10-12, 1988, in Denver, Colorado, on a consolidated complaint issued by the Regional Director for Region 27 of the National Labor Relations Board on April 27, 1988. The complaint is based upon charges filed by Sheet Metal Workers International Association, Local 9, AFL-CIO (the Union) on various dates between October 13, 1987,1 and January 6, 1988. The complaint alleges that Concord Metal, Inc. (Respondent) has engaged in certain viola- tions of Section 8(a)(1), (3), and (5) of the National Labor Relations Act. Issue Although the case presents several issues, the corner- stone controversy centers around the interpretation of a series of documents entitled "Competitive Bidding Agreement Under Resolution 78." The General Counsel and the Union contend that each of these documents, signed by representatives of both the Union and Re- spondent, constitute enforceable "project only" collec- tive-bargaining agreements. Respondent contends that they are, at best, multiple addenda to a master collective- bargaining agreement and expired simultaneously with the master. Assuming the General Counsel's position to be correct, the case then presents issues involving certain unilateral changes which may have resulted in an unfair labor practice strike. Respondent admittedly treated the strik- ers as economic strikers and accorded them preferential rehire status, but did not reinstate them upon their un- conditional offer to return to work. If Respondent is cor- rect, it becomes unnecessary to reach those issues for Re- spondent would be entitled to set its own terms and con- ditions of employment because the master agreement which expired was executed pursuant to Section 8(f) of the Act, not Section 9(c). In addition , the complaint al- ' All dates are 1987 unless otherwise noted 916 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD leges that Respondent committed two independent viola- tions of Section 8(a)(1). All parties were given full opportunity to present evi- dence, to examine and cross-examine witnesses, to argue orally, and to file briefs . 2 All parties have filed briefs and they have been carefully considered . Based upon the entire record, including an assessment of the relative credibility of the witnesses , I make the following FINDINGS OF FACT 1. JURISDICTION Respondent admits it is a corporation headquartered in Aurora, Colorado, where it is engaged in the building and construction industry as a sheet metal contractor. In the course of its business it operates a fabrication shop and installs the product it has fabricated (whether in the shop or in the field) at construction sites . It further admits that it annually purchases goods, materials, and services valued in excess of $50,000 directly from sources outside Colorado. Accordingly, it admits it is an employ- er engaged in commerce and in an industry affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION Respondent admits the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Since 1978 when the Company was formed, Respond- ent has had an 8(f) collective-bargaining relationship with the Union. During that time Respondent, through its membership in a multiemployer association, SMACNA-Colorado, was bound by several master col- lective-bargaining contracts . The duration of the most recent agreement was from July 1, 1983, through June 30, 1986, but extended by mutual agreement to June 30, 1987. On January 6, 1987, Respondent advised the Union and SMACNA by letter that it was withdrawing from multiemployer bargaining for the 1987 negotiations. It also gave notice, pursuant to Section 8(d) of the Act, that it intended to terminate the contract upon its expira- tion on June 30 . Although it had decided to bargain sep- arately with the Union Respondent nonetheless stayed aware of the progress of the SMACNA bargainers. Its president, Rudy Tezak, attended SMACNA meetings and also met separately with the Union's representatives. Despite continued efforts by both the Union and SMACNA, on June 30, no new agreement had been reached and a strike ensued. On July 1, the first day of the strike, Respondent, by letter, withdrew recognition of the Union pursuant to the Board's decision in John Deklewa & Sons, 282 NLRB 1375 (1987). Simultaneously, it instituted a substitute policy setting forth wages and other terms and condi- tions of employment. 2 The General Counsel 's unopposed motion to correct the transcript is granted B. Resolution 78 and Local 9 Early in the life of the 1983-1986 master agreement, the Union's parent International Association was faced, on a national level, with the problem of nonunion com- petition. It had determined that large amounts of con- struction work, previously performed by union contrac- tors, were being lost to nonunion competitors. This meant, of course, that members of its affiliated local unions, such as Local 9, were losing employment oppor- tunities. To meet this problem the International Association at its September 1983 national convention unanimously passed a measure, known as Resolution 78. The directive which the International sent to its locals to implement the resolution describes the program as follows: The Resolution urges all local unions to adopt various addendums [sic], specialty agreements, such as industrial and residential, and light commercial agreements, including additional flexible conditions on particular jobs known as pin pointing, all of which have been designed by the International Association in cooperation with Local Unions to recapture our work jurisdiction for the membership. The Resolution further authorizes business manag- ers to expand on all of these addendumsand agree- ments to the degree necessary to meet the challenge which is increasingly eroding work opportunities for the membership. [Emphasis added.] Recognizing the need for such relief, Local 9 imple- mented the resolution by developing a procedure by which certain construction jobs were to be "pin pointed" or "targeted" for special treatment. It set certain guide- lines for targeting eligibility . For example, in an undated letter issued in August 1986 (apparently August 11) Local 9's business manager, Bill Stephens listed the re- quirements : (1) bids must be a direct quotation to either the 'prime mechanical contractor or to the general con- tractor; (2) the jobs must be properly logged (on union- required forms); (3) jobs were to be reviewed monthly at the Labor-Management Committee meeting; (4) jobs in- eligible for targeting were those where the sheet metal work was valued at more than $ 1 million, where they were covered under a project agreement , where it was a Rocky Mountain Investor financed project, where it was union-financed, or where the job was bid on time and material. If those criteria were met, at least as of that date, con- tractors were free to target the job at the wage rate of $14.50 per hour for journeymen (as opposed to the con- tract rate of about $18). In addition, the program modi- fied the crew ratio to require one apprentice and one preapprentice for each journeyman . It also required that "full fringe benefits" be paid. Moreover, the letter put specific limits on the program, apparently regarded as a pilot program . It stated that during the 6-month period from its inception, the Union could cancel it upon 2 weeks' notice (although allowing previously targeted jobs to proceed as bid). CONCORD METAL 917 About 6 months later, Stephens modified the program, threatening to end it if the contractors did not improve their reporting. Apparently, the contractors were not re- porting lost jobs, only those which had been successfully bid. Stephens believed he was unable to properly assess the nonunion competition without that information. On June 2, Stephens canceled the blanket $14.50 blanket target, assertedly because of some noncompliance by SMACNA and its president, Steve Larson of Climax Metals. In view of the fact that the contract's expiration was less than 30 days away and because bargaining was not going well, it seems likely that another motive may have been to put pressure on the SMACNA contractors to agree to a new contract . Supporting that view is a paragraph in the letter stating that the Union would con- tinue to provide targets upon request to contractors who signed interim agreements (promising to abide by the outcome of negotiations) or who were bound by the ver- sion of the master agreement which contained an inter- est-arbitration clause . That clause was, in most of those contracts, labeled "Article X, Section 8," commonly re- ferred to as "10-8." Whether that is an accurate assess- ment is not particularly important to this case; its signifi- cance is that it demonstrates that the Resolution 78 pro- gram was obviously subject to modification at the sole direction of the Union . In a very real sense SMACNA and the other employers had no control over the pro- gram-either how it was to be implemented or even if it was to be implemented. However, the program itself must be distinguished from its applicability to specific jobs . Even the documen- tation from Stephens suggests that the Union would not cancel an existing target once the project was actually bid successfully. In this regard the Union provided a form of agreement which each successful bidder was ob- ligated to sign in order to take advantage of the "target rate." The document is a two-page form entitled "Com- petitive Bidding Agreement Under Resolution 78." First used in 1984, its preamble and second sentence read: This agreement is intended to make Sheet Metal Contractors competitive on the named Construction Project so that he may be successful in securing the work for his Company and to create work for the members of Sheet Metal Workers International As- sociation Local Union #9. The terms of this agreement shall be for the dura- tion of the named project. Although the document contains blapks for filling in the commencement and completion dates for the project, it is clear that those dates were intended only as esti- mates and were not deadlines which, if unmet, would trigger some sort of sanction, such as loss of the target rate. The form also provides fora short description of the nature of the work to be performed. It then states that the Contractor "agrees to implement this agreement as follows :" A list of items is set forth in- cluding the target wage rate as set by the Union "plus fringe benefits as contained in the current Collective Bar- gaining Agreement." Item 5 states: "The shop and field work set out . . . shall be performed in its entirety in the jurisdiction and by members of Sheet Metal Workers Local Union #9 only." (Emphasis added .) It also states that "extra" work (i.e., work not covered by the target de- scription) shall be at the wage rate set forth in the cur- rent master collective-bargaining agreement. Aside from these references to the master agreement, the Resolution 78 form contains no other language incor- porating the master. Thus, such matters normally seen in collective-bargaining contracts such as the bargaining unit description, hiring hall provisions, antisubcontract- ing rules, antidiscrimination clauses, union security, job safety, steward rights, and grievance -arbitration proce- dures are missing . It can be discerned from the testimony of Stephens and the three owners who testified that they all considered those matters to be governed by the master contract; yet there is no explicit language to that effect. Even the duration of a Resolution 78 agreement is unclear. It has no specific beginning or end; its life ap- pears to be governed only by an act or declaration of the contractor-when he begins or ends the job. C. Respondent's Practice after the Expiration of the Master Agreement When the master contract expired on June 30, Re- spondent had both Resolution 78 and ordinary jobs un- derway. It might be observed here that Respondent had only recently begun, in 1987, to avail itself of the Resolu- tion 78 wage differential . Moreover, except for one job, it only utilized the program to avoid , with the Union's tacit agreement, a contractually required wage increase from $18 to $ 18.53 at the beginning of the year. It never used the $14.50 target and only on its Windsor Can plant job did it use a specially targeted rate, $16. That job was not scheduled to begin until sometime after June 1, al- though the Resolution 78 contract was signed in March. When the strike began on July 1, there was some ini- tial confusion over which employers should be struck. It appears to be undisputed that the Union chose not to strike employers which had signed (or in one case, orally agreed to) an interim agreement. In addition, the Union chose not to strike those contractors which it believed were bound to 10-8 clauses . It did not strike Respond- ent, although clearly it had not signed an interim agree- ment. There is, however, separate litigation over wheth- er Respondent is bound by a 10-8 clause. Because it had manpower during the strike, Respond- ent naturally proceeded to perform its construction con- tracts. There seems to have been some initial confusion on the part of its sheet metal workers regarding whether they were to perform Resolution 78 work, but that was quickly resolved in favor of performance. For the most part, it appears, the Union did not provide workmen for the in-progress Resolution 78 jobs of struck contractors. Not only did the Union permit Respondent's employees to work on its jobs, Respondent's president, Rudy Tezak, told the employees the Union was obligated to man them. In his July 1 policy statement, Tezak stated "Local No. 9 must man this work or be in breach of contract. We expect all employees to continue on with this work without interruption . We, of course, will continue to pay 918 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the wages and fringe benefits set out in the project agreement." The Union responded to Tezak's Deklewa repudiation by filing a representation petition with the Board's Re- gional Office in mid-July. In the meantime, Respondent directly hired some additional employees and began paying them in accordance with its July 1 wage rate. It also set up a dual timecard system to keep track of Reso- lution 78 jobs and non-78 jobs. In this way Respondent paid its old employees, union members, the targeted rate for 78 jobs and the July 1 rate for non-78 jobs. It also made payments to the fringe benefit funds for the work performed on 78 jobs by union members, at least until September 21. On September 15 or 16 Tezak learned that the Union's apprenticeship program was suing one of his employees, Glenn Chapman. The suit was to foreclose a loan the ap- prenticeship program had made to Chapman to pay for his training. Chapman, who was also Tezak's son-in-law, had been hired after the strike began and, although a union member, had not been referred to Respondent by the Union. He was working under Respondent's July 1 policy. In the lawsuit, the apprenticeship trust contended that Chapman was working for an employer who was not submitting fringe benefits to the proper funds, thus triggering a right to repayment of the loan. Tezak, perhaps not understanding the narrow reach of the union's contention, became concerned enough to write Stephens a letter contending that Respondent was indeed paying fringe benefits on Resolution 78 contracts and was remitting them to the apprenticeship fund. Indeed, it appears to be quite true that it was submitting such payments on behalf of at least two apprentices, Ford and Gallegos. Those two were working on a city of Denver job at Stapleton International Airport. That job was subject to a prevailing wage requirement and Tezak feared that if his apprentices were not being cred- ited with the fringes, he might end up paying them a second time. He wished to clarify the situation and de- manded to know from the Union by September 21 if he should continue to pay those amounts to the trust funds or whether he should put those amounts on the employ- ees' checks. Because the Union did not immediately answer his question, he did change the way those amounts were to be paid. He withheld those amounts for a time and then issued separate checks to the employees for the proper amount. Later he put those amounts directly on their paychecks; still later, he decided that he did not know what to do, because the trusts still might make him pay twice, so he put the amounts into a separate company ac- count, calling it an "escrow." Eventually, the Union complained to the city of Denver which found merit to its prevailing wage conten- tion. In turn, the city threatened to stop paying the project's general contractor; he, predictably, threatened to oust Respondent from the job. The city also insisted that Respondent make additional payments, not only of the fringe benefit moneys (which the city asked be paid directly to the employees) but also, due to the Charging Party's demand, that Ford and Gallegos be paid the jour- neyman rate even though they were only (or had been until the master agreement expired) apprentices.3 Curiously, in its argument to the city, the Union con- tended, contrary to its contention here, that Respondent was not a signatory contractor. Here, of course, it con- tends that Respondent was bound by the Resolution 78 agreement and that it is a collective-bargaining contract independent of reference to any other document, such as the expired master agreement or its replacement.4 D. Alleged Restraint and Coercion The complaint alleges that Respondent has committed two independent violations of Section 8(a)(1) by telling an employee he had lost the holiday pay benefit because the employees had voted for representation by the Union in the NLRB election on September 2. It also alleges that Respondent, through Tezak, coercively surveyed employees when, during the strike which commenced on December 9, Tezak on two separate occasions, took pho- tographs of pickets holding their placards. Respondent asserts that both allegations are without merit. With re- spect to the former, it contends that the employee in question misunderstood the thrust of what was being said, and moreover, Tezak's subsequent explanation cured the error made by a supervisor, Mike Roberts. As for the latter, Respondent contends that it asked the -pickets to pose with their signs and that they agreed to do so and in that circumstance the conduct was noncoer- cive. Furthermore, it observes, the Union had failed ade- quately to identify itself on the signs and the photogra- phy was simply to preserve that fact in the event the matter became litigable. 1. The holiday pay question The representation election was conducted on Septem- ber 2; the Union easily won. Labor Day occurred on September 7. According to Tezak, Respondent either on or shortly after July 1 had implemented various employ- ment policies. The July 1 memo is silent about holiday pay, but his testimony shows that the holiday pay benefit was granted about that time. He testified that it included a 90-day waiting period for it (and apparently some other undescribed benefits) to become effective. Sheet metal worker Todd Paulson, a 10-year employ- ee, and son of Respondent's recently deceased superin- tendent, testified that about a week after the NLRB elec- tion he telephoned the office from his job at Cub Foods. 8 In view of the fact that Respondent and the Union were in the midst of a labor dispute at the time the city made its assessment , February 1988, it is quite possible that the city acted in a manner which improperly im- pacted the parties' relative bargaining positions On September 10, 1987, the Union had become the certified bargaining representative of Re- spondent's employees and was doing what it could to obtain a contract. The city's decision could only cause mischief to that end, for the threat- ened ouster from the job as well as double payments on behalf of the employees, rather than leading to an agreement, may well have hardened Respondent's bargaining stance . Certainly it changed the parties' bargain- ing strengths. See Golden State Transit Y. City of Los Angeles, 475 U.S. 608, 618 (1986), see also the Ninth Circuit's review of the district court's decision after remand in that case 110 S Ct. 444 (1988) 4 It will be recalled that the union is also contending , in another forum, that Respondent is bound to interest arbitration through a 10-8 clause and is thus bound to the successor master contract. CONCORD METAL He asked Shop Foreman Mike Roberts if he had been paid for Labor Day. As Roberts paused to answer, he asked if "Rudy" intended to pay him for that day. Paul- son says Roberts replied saying, "Rudy had got pissed off because the vote went for the union . So he wasn't going to pay us." Roberts' version is only a little differ- ent. He says when Paulson called him to ask about holi- day pay for Labor Day he told Paulson, "The way I see it, seeing as how the election had been held on Septem- ber 2, they had voted for the union's package, not Rudy's which had included it. So far as I know , Rudy's package has been rejected." Despite his belief, Roberts nonetheless told Paulson he would check with Tezak. Roberts then reported his conversation with Paulson to Tezak. Prompted by what Roberts had apparently said, Tezak, later that day visited Paulson at another job- site, the Federal Detention Center. Paulson testified that Tezak told him that a recently hired coworker, Art Dumas, would have to be employed for 90 days before getting the holiday pay benefit. When Paulson asked about his own eligibility, he says Tezak told him, "As long as [you] are affiliated with the union, they can take care of [you]." Tezak essentially denies Paulson's ver- sion. He says he simply told Paulson that there was a 90- day waiting period which had to pass and Labor Day was within the 90-day period . He says he told Paulson that the first holiday for which he would be eligible would be Thanksgiving. Therefore, under company policy, "It wasn't due yet." 2. The photography According to fab shop employee Gary Gist, on either December 9 or 10, the first or second day of the strike, he was picketing outside the company office in Aurora. At some point Tezak came out of the office and "took a couple of pictures. Not everyone was grouped together, you know, for a picture, just pictures in general of ev- eryone." Gist says that another picket, Ron Schaeffer, asked Tezak if the pictures were "for evidence," but Tezak replied they were for his "scrapbook." Gist says that about a week later the scene played again. Tezak again took photographs and Schaeffer repeated his earli- er question and Tezak repeated his earlier answer. Schaeffer was not called as a witness. Tezak acknowledges taking pictures on both the first and second days of the strike. He says on the first day he told a picket he needed to take a picture of the sign. The picket then posed for him. He says Schaeffer then asked if he was taking the picture for his scrapbook and he re- plied, "No. This is for information." Tezak says he went on to say that it was a shame that Schaeffer was not more proud of Local 9 than to have its name on the sign. Schaeffer told him the Union's name was on the sign and pointed to some ordinary typing on the sign's lower right-hand corner. On the second day, Tezak says a steel delivery truck attempted to enter the yard but could not because the pickets were standing in the driveway . Accordingly, he took some pictures showing the pickets standing beside the driveway. After a few minutes the driveway cleared and the truck backed in with the delivery. 919 Union Business Agent Mike Salazar testified that all the picket signs contained the same language . However, the photographs show several different placards, includ- ing "Concord Metal Inc. has committed unfair labor practices-Violates federal laws-Concord Metal Inc. violates federal law-Workers rights are human rights"; and "Caution Rat Busters at Work ." The last two do not show Respondent's name and none of the signs display the Union's name. IV. ANALYSIS AND CONCLUSIONS I have not discussed in the facts section of this deci- sion those matters relating to the alleged unlawful refusal to reinstate strikers. The General Counsel did adduce evidence tending to show that the strike was caused by conduct which she has claimed are unfair labor practices, specifically Respondent's admitted failure to pay the fringe benefit trust funds beginning in September . Frank- ly, I have doubts that her conclusions in that regard are valid. However, it is unnecessary to discuss that issue be- cause it is clear to me that the General Counsel has failed to demonstrate that the Resolution 78 agreements are anything other than addenda to the master collective- bargaining contract which expired on June 30. When the master 8(f) contract expired , so did the addenda. Under the Deklewa doctrine Respondent, which had caused the master agreement to expire , was free to implement sub- stitute terms on its repudiation of recognition . In that cir- cumstance, Section 8(d) of the Act does not operate to require the maintenance of previous terms pending the negotiation of a new agreement as it would in 9(a) exclu- sive recognition situations. Furthermore , I find that the incidents alleged to be violative of Section 8(a)(1), even if unfair labor practices, did not cause or prolong the December 9 strike. Indeed, it is my opinion that the inci- dents are not even unfair labor practices. A. The Resolution 78 Agreements Are Not Independent Collective-Bargaining Agreements The two-page form which is at issue here was created with a specific purpose-to provide a vehicle whereby unionized sheet metal contractors could effectively bid on jobs which they could not otherwise obtain. The policy behind Resolution 78 was the International Asso- ciation's effort to obtain traditional work which -other- wise would fall to nonunion contractors. Its local unions had succeeded in negotiating master agreements with ex- cellent wage and fringe benefit packages . Unfortunately, the labor costs which contractors were obligated to pay put them at a severe disadvantage with respect to lower cost competition which was not bound to pay the same wages or benefits. Local 9 was no different from other local unions in that regard . To implement the work re- capture strategy mandated by the International Associa- tion, Local 9 decided, as no doubt did other locals else- where, to provide a means of waiving some of the con- tractual obligations set forth in its master contract. That waiver took the form of the Resolution 78 agreement. The International had even suggested that the waiver take the form of "addendum [sic]" to the master agree- ments. 920 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD I do not agree with Respondent that the 78 agreements are illusory contracts or unilateral waivers, although they do approach the latter. I think it is clear that they are supported by contractual consideration and are, to some extent, enforceable, at least during their life. (Even their enforceability under the Act is subject to some doubt due to their applicability to "union members only.")5 However, I am compelled to conclude that they have no life without reference to the master agreement. As noted above, they contain allusions to the master and require the contractor to comply with at least those pro- visions of the master relating to fringe benefits . Because it is silent with respect to a general incorporation by ref- erence, I am unwilling to speculate which specific terms of the master they do incorporate aside from the obliga- tion to pay the fringe benefits. 6 What does appear mani- fest, however, is that the 78 agreements cannot stand without at least some reference to the master; i .e., they are later-negotiated addenda to the master, not independ- ent agreements. I reach this conclusion because of several factors. The first is the document's title-"Competitive Bidding Agreement." If it were a collective-bargaining agreement it would have said so. Instead it sets forth a wage rate below that set by the collective-bargaining contract, one which is designed to assist a union contractor to gain work which it might not otherwise have obtained. Second, although it covers fringe benefits , it only does so by reference to the master . Other terms and conditions normally seen in collective-bargaining contracts are omitted. It is a terribly short document , only 1-1/2 pages long. In my experience, "project only" collective-bar- gaining agreements are usually full-blown contracts, no different than ordinary collective-bargaining contracts, but limited by its recognition or bargaining unit clauses to a named project . In contrast, this document contains no recognition clause or bargaining unit description. Indeed, project only contracts are usually the product of 8(f) bargaining between a construction industry union and a contractor who has some special need, such as skilled workmen for a contractor intending to perform a single project in the union's geographical area . Occasion- ally they take the form of a standard "me too" or "com- pliance" agreement. In both of those situations incorpo- ration, by reference clauses are invariably found as a criti- S In general, see Kansas Power & Light Co., 64 NLRB 915 (1945); Cru- cible Steel Castings Co., 90 NLRB 1843 (1950), Appalachia Shale Products, 121 NRLB 1160 (1958); Ron Wiscombe Painting & Sandblasting Co., 194 NLRB 907 (1972). In addition, it may be reasonable to conclude that the language under scrutiny establishes an illegal closed shop. 6 It should be observed here that even if a breach of the bargaining obligation did occur with respect to the failure to pay the fringe benefit funds, the Board would not necessarily make all of the funds whole. In order to be eligible for a remedy the fund would have to meet the crite- ria of a mandatory bargaining subject as defined by Sec. 8 (d) See gener- ally Fox Painting Co., 263 NLRB 437 (1982), and cases cited therein. The industry promotion fund would probably not qualify and other funds such as SASMI, the apprentice and training funds , and the national (not local) pension funds, would warrant close scrutiny on the point. More- over, the health and welfare levels may have been maintained by a substi- tute plan, if coverage under the substitute was the same as under the union plan, it might qualify as proper self-insurement. See Triangle Sheet Metal, 267 NLRB 650 (1983), and Service Roofing Co., 200 NLRB 1015 (1972). cal part of the contract, usually in the first paragraph after the identification of the parties, immediately fol- lowed by a recognition clause limiting its application to the named project. Nothing of that nature is seen here. Not only is there no recognition clause, there is no union-security clause. For a collective-bargaining con- tract drafted in full by a labor union, to be used to pro- vide critical employment for its members, to omit those matters seems most unlikely unless the union knew or be- lieved that they were governed by another document. Here I believe that document must be the master con- tract in effect at the time the 78 agreements were signed. The same can be said of other clauses . Can one really be- lieve that a union which has negotiated a hiring hall, a grievance-arbitration clause, subcontracting limitations, antidiscrimination clauses, steward clauses, overtime rules, and travel pay/subsistence coverage would fail to include at least some of those matters in the "project agreement" if that is what it is. I do not think so. With respect to the incorporation by reference issue, I note that paragraph 9-4 of the master agreement is a typ- ical "most-favored-nations clause"7 requiring the Union to grant to the employers bound by that contract and lower wage or fringe rates it might negotiate with an- other employer. I think it is fair to say that the 78 agree- ments were designed to do just that . They really are nothing more than a narrow application of the most-fa- vored-nations clause. Its principal feature was to allow any of its signatory contractors to take advantage of those rates to enhance the probability that the project would fall to a union contractor. This, too, leads to the conclusion that the Union intended the 78 agreement to be something less than an independent collective-bargain- ing contract. It is true that at least for a time Respondent acted in a manner consistent with one who believed he was bound by a contract. Tezak paid the wages and the fringe bene- fits as set forth in the 78 agreement for some time. And, Tezak made assertions to the effect that the Union was bound to honor the 78 rates and to supply manpower to perform the jobs. At the same time, however, the Union was acting as if the 78 agreements had expired . For the most part it refused to man 78 jobs for contractors who had not signed interim agreements or which it believed were bound to interest arbitration. It knew that Respond- ent had directly hired one of its members, Chapman, in apparent breach of the hiring hall clause. Yet, it did nothing to oust him from the job. It clearly had the right to do so (see Operating Engineers Local 452 (Ralph A. Marino), 151 NLRB 497, 500 (1965)), but did not. Instead it chose to sue the man instead . 8 Had the Union believed the 78 contract was in force, it would have taken the easy, direct action of demanding his ouster; it would not have taken the more expensive route of a lawsuit . Its fail- 7 In the contract, par 9-4 is actually entitled "Preferential Clause." 8 I am not impressed with the argument that the suit against Chapman was by the Apprenticeship Trust rather than Local 9. Business Manager Stephens sits as a trustee of the apprenticeship program and can, no doubt, easily influence it, particularly if a former signatory contractor has gone nonunion. The contractor trustees have no incentive to disagree, for it is to their benefit if a nonunion contractor is caused difficulty. CONCORD METAL 921 ure to do so suggests that it knew full well that the 78 agreement had expired with the master and that the hiring hall clause was unavailable as an enforcement device. There remains for consideration the meaning of the second full sentence of the 78 agreement. It seems to be unambiguous: "The terms of this agreement shall be for the duration of the named project ." Yet, is it truly unam- biguous? I think not. It seems to me to be most ambigu- ous in its application, if not its actual language. In con- text, the language has problems which are not discernible from the words themselves. I believe this sentence suf- fers from classic latent ambiguity . It seems to be clear, but when applied to a real situation , is not. It only makes sense when the phrase "so long as a master collective bargaining contract is in effect" is implied as conclusion- ary phrase . If it did not have that limitation , the docu- ment would take on an absurdity which would make no sense in a labor-management context . The Union would not allow a minicontract such as this to control the terms of a subsequent master having a most-favored-nations clause, for it would immediately undercut the terms of the new master contract . That is the result which would occur if the 78 agreements were deemed to have sur- vived on their own after the expiration of the 1983- 1986(7) contract. Accordingly, I have little difficulty in concluding that the Resolution 78 agreements are not "project only" collective-bargaining contracts as con- tended by the General Counsel , but are simply addenda to the expired master. B. The Unilateral Changes Were Privileged Because of the Deklewa decision, Respondent, as an 8(f) contractor, on July 1, 1987, was absolutely free to withdraw recognition of the Union and set its own terms and conditions as of that date . Whether it did so straight- forwardly or with a "white lie" such as Tezak uttered does not change the bargaining rights of either party. He set them then and they stood until after the Certification of Representative when the parties began negotiating for a new contract. So far as this record shows, the parties are still negotiating, although bargaining seems to have been temporarily halted as the Union turned its attention to matters it deemed to be of higher priority. At any rate, this complaint does not address postcertification ne- gotiations. Insofar as the postcertification unilateral change allegations are concerned, since Respondent was under no obligation to pay the fringe benefit contribu- tions to the trusts after June 30, it committed no viola- tion of the Act when it paid the employees directly for the equivalents. C. Alleged Restraint and Coercion There remains for consideration the claim that Re- spondent violated Section 8(a)(1) of the Act with respect to the statements made to Todd Paulson regarding holi- day pay and Tezak's photographing picket signs. Insofar as the holiday pay question is concerned, I think it is quite clear, from Supervisor Mike Roberts' own testimony, that he told Paulson that in his opinion the holiday pay had been denied him because the crew had voted for union representation. Tezak, however, almost immediately sought out Paulson at a jobsite and told him something different . Paulson says Tezak told him Dumas would get holiday pay after a 90-day waiting period, but that Paulson as a union member, or a proun- ion voter, would have to let the union take care of him. Tezak's version is that he had realized from what Rob- erts had reported, that Roberts had given Paulson some misinformation (which Tezak appears to have recognized might constitute an unfair labor practice ) and had gone to the site to correct the error. He says he simply told both Paulson and Dumas that the holiday pay benefit had a 90-day waiting period and the first holiday after the 90 days was Thanksgiving, not Labor Day. Paulson even partially corroborates Tezak when he allows that Tezak mentioned the 90-day waiting period to him with respect to Dumas. Given the fact that Tezak was making a special effort to try to correct Roberts' misstatement, it seems unlikely that he would have then compounded it further by antagonizing a longtime employee (and son of a recently deceased and highly respected supervisor) by making such a statement. Based on probabilities , as well as the fact that Paulson seemed to at least partially mis- understand, I credit Tezak here. Accordingly, the Gener- al Counsel has failed to prove that Tezak uttered an im- proper threat. Moreover, although Roberts seems to have made a coercive statement, it was couched, even in Paulson's version, as personal opinion . In any event it was promptly disavowed and correct information substi- tuted. In my view this allegation should be dismissed as well. The photography evidence is also unimpressive. It is true that there are situations in which photographing pickets can be seen as a direct restraint on an employee's right to strike. I do not see that as having occurred here. The Union was picketing Respondent at at least two lo- cations, the shop and Stapleton International Airport, with signs which did not identify the Union by name. At least one of the signs did not name Respondent as a pri- mary picketing target. As Stapleton was a common situs, it does not seem coercive for Respondent to take a limit- ed number of pictures for the purpose of preserving evi- dence of what the sign said or did not say , for secondary boycott charges are always a distinct possibility when a picket line is established . Moreover, there was at least one incident within the first day or so where a delivery was delayed by pickets blocking an entrance . Again, preservation of proof is a good defense to this charge. It, too, should be dismissed. As the General Counsel has failed to prove by a pre- ponderance of evidence that Respondent has committed any unfair labor practices worthy of a remedy, it follows that the December 9 strike was not an unfair labor prac- tice strike. Indeed, there is evidence in the record, which I have not discussed , which could easily lead one to the conclusion that the strike was not even triggered by the incidents alleged as unfair labor practices, but was in- stead a simple economic strike to obtain a new contract. When the strike was abandoned and the employees sought reinstatement, Respondent placed them or a pref- erential rehire list. The General Counsel has not alleged 922 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD their treatment as economic strikers to have been im- proper. Accordingly, the allegations relating to failing to recall the strikers should be dismissed. On the foregoing findings of fact and the entire record in this case I make the following CONCLUSIONS OF LAW 1. Respondent Concord Metal, Inc. is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Sheet Metal Workers International Association, Local No. 9, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act. 3. The General Counsel has failed to prove that Re- spondent has engaged in any violations of the Act as al- leged. [Recommended Order for dismissal omitted from pub- lication.]