Petition — Authorized Air Conditioning Co. v. National Labor Relations Board
Supreme Court brief1980
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FILED
JAN 14 1980
IN THE
Supreme Court of the Uni | DAK, JR., CLERK
October Term, 9 ea ] 0 9 4
PN eokic ecuiciccds
AUTHORIZED AIR CONDITIONING Co., INC.,
“ Petitioner,
vs *
NATIONAL LABOR RELATIONS BOARD,
Respondent.
Petition tor 2 Writ of Certiorari to the United States
Court of Appeals for the Ninth Circuit.
JOHN W. PRAGER, JR.,
DwiGHT L. ARMSTRONG,
One Wilshire Boulevard, Suite 2000,
Syaet _ Los Angeles, Calif. 90017,
(213) 629-7878,
Attorneys for Petitioner.
Parker & Son, Inc., Law Printers, Los Angeles. Phone 724-6622
SUBJECT INDEX
Page
En TAS LEE IN IRS NOTTS ERSTE: 1
Fo ie SERRA PCIE ERE LE NSA 2
Chmemeines Preeaiiee (ii Sie ik aia 2
Statutory Provisions Involved .....................-.0--ee0e-+++ =
RUM OE TG Cuneo eins 4
Reasons for Granting the Writ ................2..2.2........- 7
1. The Decision Below Conflicts With This
Court’s Decision in NLRB v. Iron Workers,
Local 103 (Higdon Contracting), 434 U.S.
v5 RES eS Can RA RRM dae Rey A Paes toate ot aS 7
2. The Decision Below Conflicts With Deci-
sions of Other United States Circuit Courts
OE FONE ions ccise Rinentnnsteoventherosiianaabioanss 10
3. This Case Presents Novel and Heretofore
Unanswered Questions Under the National
Labor Relations Act Concerning the Proper
Application of Section 8(a)(5) and Sec-
tion 8(f) Principles in a Multi-Employer
Collective-Bargaining Unit Context ............ 12
SRN ii pian ntinicnatapchoriestnaicchnentemieincnatoannsdagosantoll. 15
Appendix A. Opiniote oic0i105....... App. p. 1
Appendix B. Decision and Order ................. Tilocans 18
il.
TABLE OF AUTHORITIES CITED
Cases
Alton-Wood River Building and Construction Trades
Council (Kopp-Evans Const. Co.), 144 N.L.R.B.
fA 2 Be RRA Ria RP tae ai OLED pel ea COO
Page
Dancker & Sellew, Inc., 140 N.L.R.B. 824 (1963), .
enforced sub nom., NLRB v. Int'l Bro. Team-
sters, Local 210, 330 F.2d 46 (2d Cir. 1964) ....
Davenport™ Insulation, Inc., 184 N.L.R.B. 9890
DNS ieee ee la Se bate ee
Dee Cee Floor Covering, Inc., et al., 232 N.L.R.B.
MAA EUR Dy sheik dite - Fate Dewi boc Fe the 9,
G. M. Masonry, 245 N.L.R.B. No. 54 (1979) ..
Mohawk Business Machines Corp., 116 N.L.R.B.
Fae a SARA Ag eat SRR SORE Lane et OO
NLRB v. AAA Electric Inc., 472 F.2d 444 (6th
ae) alin oh PB 1 SEN OURS ce or eR 10,
NLRB vy. Iron Workers, Local 103 (Higdon Con-
eecney, 494 US. “335° (1978). Be ..
RRB Ia a Ce de Laut EVE 49°, 9,10, - 42. 13,
NLRB vy. Irvin-McKelvy, 475 F.2d 1265 (3d Cir.
Lac! fMRI 5 Se 5 tea S SPM aROT CALA MDE eh 8, 10
(1979)
Miscellaneous
NLRB Guidelines on Construction Pre-Hire Agree-
Sete. Cave), 800 TR 27 ooo cic 14,
NLRB Guidelines on Construction Pre-Hire Agree-
ments (1979), 101 L.R.R. 51
Statutes Page
National Labor Relations Act, Sec. 8(a)(1) ........ 6
National Labor Relations Act, Sec. 8(a)(5) ........
PAS IN ARN a RAGS MA J HEE 6, 8, 9, 10, 11, 12, 14, 15
National Labor Relations Act, Sec. 8(f) -~.............
RGAE Gis Ren EON EG EES 2:5: 7; $; 9, 10, 11, 12, 13, 14, 15
United States Code, Title 28, Sec. 1254(1) .......... 2
United States Code, Title 29, Sec. 157 ................ a 38
United States Code, Title 29, Sec. 158(a)(1) ..3, 6
United States Code, Title 29, Sec. 158(a)(5) ..3, 6
United States Code, Title 29, Sec. 158(f) ..2, 3, 4, 5
United States Code, Title 29, Sec. 159(a) ............ 3
United States Code, Title 29, Sec. 160(e) ............ 2
United States Code, Title 29, Sec. 160(f) .......... ; ee |
- Oe Ay AT
IN THE :
(oe Supreme Court of the United States
: October Term, 1979
Pee as, ak
AUTHORIZED AIR CONDITIONING Co., INC.,
Petitioner,
VS.
NATIONAL LABOR RELATIONS BOARD,
Respondent.
Petition for a Writ of Certiorari to the United States
Court of Appeals for the Ninth Circuit.
Petitioner, Authorized Air Conditioning Co., Inc.,
respectfully prays that a writ of certiorari issue to
review the judgment and opinion of the United States
Court of Appeals for the Ninth Circuit entered in
this proceeding on October 19, 1979.
Opinion Below.
The opinion of the Court of Appeals, Authorized
Air Conditioning Co., Inc. v. NLRB, 606 F.2d 899
(1979), appears as Appendix A. The Decision and
: Order of the National Labor Relations Board
(“Board”), 236 N.L.R.B. No. 24 (1978), which was
reviewed by the Court of Appeals pursuant to a Peti-
| tion for Review, 29 U.S.C. § 160(f), appears as Ap-
| pendix B.
ck, Soe
Jurisdiction.
The judgment of the Court of Appeals for the Ninth
Circuit was entered on October 19, 1979. No petition
for rehearing was filed.
This Court’s jurisdiction is invoked under 28 U.S.C.
§ 1254(1). See 29 U.S.C. § 160(e) and (f).
Questions Presented.
1. Whether a construction industry employer’s in-
dividual “pre-hire” collective-bargaining agreement with
a minority union, which was lawful under Section
8(f) of the National. Labor Relations Act, 29 U.S.C.
§ 158(f), endows the union with a presumption of
majority status sufficient to permit the Board to merge
that employer into a multi-employer bargaining unit
and bind it to the results of future multi-employer col-
lective bargaining.
2. Whether a “pre-hire” collective-bargaining agree-
ment with a minority union is enforceable under the
National Labor Relations Act on other than a project-
by-project basis.
Statutory Provisions Involved.
United States Code, Title 29:
§ 157.
“Employees shall have the right to self-organiza-
tion, to form, join, or assist labor organizations,
to bargain collectively through representatives of
their own choosing, and to engage in other concert-
ed activities for the purpose of collective bargain-
ing or other mutual aid or protection, and shall
also have the right to refrain from any or all
of such activities except to the extent that such
So se eR Ee:
wien
right may be affected by an agreement requiring
membership in a labor organization as a condition
of employment as authorized in section 8(a)(3).”
§ 158(a)(1) and (5).
“It shall be an unfair labor practice for an
employer—
“(1) to interfere with, restrain, or coerce em-
ployees in the exercise of the rights guaranteed
in section 7 [§ 157];
6s
“(5) to refuse to bargain collectively with the
“representatives of his employees, subject to the
provisions of section 9(a) [§ 159(a)].”
§ 159(a).
“Representatives designated or selected for the
purposes of collective bargaining by the majority
of the employees in a unit appropriate for such
purposes, shall be the exclusive representatives
of all the employees in such unit for the purposes
of collective bargaining in respect to rates of pay,
wages, hours of employment, or other conditions
of employment... .” i
§ 158(f). |
“It shall not be an unfair labor practice under
subsections (a) and (b) of this section for an
employer engaged primarily in the building and
construction industry to make an agreement cover-
ing employees engaged (or who, upon their em-
ployment, will be engaged) in the building and
construction industry with a labor organization
of which building and construction employees are
members (not established, maintained, or assisted
hy any action defined in section 8(a) of this
sseaslibeics
Act as an unfair labor practice) because (1)
the majority status of such labor organization has
not been established under the provisions of section
9 of this Act prior to the making of such agree-
ment... . Provided further, That any agreement
which would be invalid, but for clause (1) of
this subsection, shall not be a bar to a petition
filed pursuant to section 9(c) or 9(e).”
Statement of the Case.
Petitioner is a heating, cooling, and air-conditioning
contractor in the building and construetion industry,
operating primarily in the Southern’ California area.
At the relevant times herein, Paul Osborne was Peti-
tioner’s president and general manager.
In July, 1974, Osborne approached Paul Healy, the
business manager of Sheet Metal Workers’ International
Association, Local Union No. 509 (“Local 509”), to
discuss the possibility of employing Local 509 members.
On September 9, 1974, Osborne signed a collective-
bargaining agreement with Local 509 that consisted
of two documents: a Standard Form of Union Agree-
ment (“Standard Form”), which was a contract negoti-
ated by the Sheet Metal Workers’ International Associa-
tion (“International”) and the Sheet Metal and’ Air
Conditioning Contractors’ National Association
(“SMACCNA”), and an Addendum to the Standard
Form (“Addendum”), which was negotiated by Local
509 and the Inland Air Conditioning and Refrigeration
Contractors’ Association (“Association”). Both docu-
ments were to be effective until July 31, 1976.
ital
When Osborne signed the collective-bargaining agree-
ment, nore of Petitioner’s employees were members
of Local 509 or had otherwise authorized Local 509
to represent them. The coilective-bargaining agreements
were “pre-hire” agreements, valid under Section 8(f)
of the National Labor Relations Act (“Act”), 29 U.S.C.
§ 158(f), even though executed before the majority
status of Local 509 had been established.
Article V, Section 1, of the Standard Form contained
a “union-security” provision under which the employer
agreed to require its employees to become members
of the union within eight days of an employee’s first
day of work as a condition of continued employment.
On September 29, 1975, while the collective-
bargaining agreement was, by its terms, still in effect,
Petitioner submitted applications for membership in
the Association and its parent organization. On De-
cember 18, 1975, Petitioner was accepted as a member
thereof. When Petitioner’s applications were accepted,
a majority of the Petitioner’s employees were not mem-
bers of Local 509, and the eight-day union-security
provision in the Standard Form was not being enforced.
On February 26, 1976, Local 509 gave the Associa-
tion timely notice of its intent to reopen its agreement
with the Association, and negotiations commenced on
May 20. In late June, the Association provided Local
509 with a list of its members. Petitioner’s name was
included on that list. By August 4, the only unresolved
issue between Local 509 and the Association in the
negotiations was wages. On August 9, 1976, those
two parties, being unable to reach a‘ consensus, sub-
mitted the wage issue to a third party, the National
Joint Adjustment Board (“NJAB”), as provided in
pie
the respective Association-Local 509 agreements. On
August 11, the NJAB issued a unanimous decision
setting forth the wage increase to be included in the
new contract and providing that the contract would
be effective from August 1, 1976, through July 31,
1978. The Association and Local 509 entered into
the new collective-bargaining agreement, and Local 509
began to contact the individual members of the Associa-
tion in order to secure their signatures on the new
contract.
In late August, Local 509 contacted Osborne and
asked that Petitioner sign this new collective-bargaining
agreement negotiated by the Association and Local
509. Petitioner refused. |
The Board, in agreement with its Administrative
Law Judge, found that Petitioner had violated Sections
8(a)(1) and (5) of the Act, 29 U.S.C. §§ 158(a)(1)
and (5), by refusing to sign the new collective-bargain-
ing agreements and to abide by their terms. The Board
ordered, inter alia, that Petitioner recognize and bargain
with Local 509 as the representative of its employees,
and that it sign, implement, and give retroactive effect
to the collective-bargaining agreement.
The Court of Appeals denied Petitioner’s request
that such Order be vacated, and enforced the Board’s
Order.
Gain
REASONS FOR GRANTING THE WRIT.
1. The Decision Below Conflicts With This Court’s
Decision in NLRB v. Iron Workers, Local 103
(Higdon Contracting), 434 U.S. 335 (1978).
The pivotal question before both the Board and
the Court of Appeals was whether Petitioner could
effectively merge its employees into a multi-employer
collective-bargaining unit at a time when Local 509
was a minority union.
The Administrative Law Judge’s decision in this case
issued before this Court’s decision in NLRB v. Iron
Workers, Local 103 (Higdon Contracting), 434 US.
335 (1978). The Board itself did not expressly consider
Higdon when it affirmed the Administrative Law Judge,
even though the Board issued its decision after the
Higdon decision.
The Court of Appeals treated this Court’s Higdon
decision as determinative, but erroneously concluded
that because Local 509 once represented three of five
of Petitioner’s employees, the Section 8(f) pre-hire
agreement thereafter gave rise to a continuing presump-
tion of majority status, so as to permit Petitioner to
merge its employees into a multi-employer bargaining
unit when Local 509 was actually a minority union.
The decision below obligates Petitioner to recognize
and bargain with an admittedly minority union, which
does not represent a majority of Petitioner’s employees,
simply because the Board and the Court of Appeals
manufactured a presumption that utterly fails to mirror
reality and which is at odds with this Court’s decisions.
This Court in Higdon stated emphatically
(a) There is “no clearer abridgment of § 7 of
the Act . . . than to grant exclusive bargain-
sill et
ing status to an agency selected by a minority
of its employees, thereby impressing that agent
upon the nonconsenting majority.”; 434 U.S. at
344;
(b) “Section 8(f) is an exception to this rule,”
but is “of limited scope, for the usual rule pro-
tecting the union from inquiry into its majority
status during the terms of a collective-bargaining
contract does not apply to prehire agreements.”;
434 U.S. at 345;
(c) Section 8(f) does not “expand the duty
of an employer under § 8(a)(5) .. . to require
the employer to bargain with a union with which
he has executed a prehire agreement . . . .”; 434
U.S. at 346; and
(d) “The employer’s duty to bargain and honor
the contract is contingent on the union’s attaining
majority support at the various construction sites.”
434 US. at 345.
This Court’s view, thus, is that Section 8(f) pre-
hire contracts do not endow the contracting union
with the ability to enforce them before the Board,
absent proof that the union is the majority representative
at the employer’s various construction sites. See NLRB
v. Irvin-McKelvy, 475 F.2d 1265 (3d Cir. 1973),
cited with apparent approval in this Court’s Higdon
opinion. See 434 U.S. at 345-46.
The Court of Appeals below did not comply with this
site-by-site majority requirement. Indeed, the Board’s
General Counsel has not affirmatively established the
union’s majority status at any of Petitioner’s jobsites.
Hence, the decision below conflicts with this Court’s
Higdon decision; it expands the duty to bargain under
Section 8(a)(5) of the Act to embrace an employer’s
cis
relationship with a minority union. Petitioner had no
Section 8(a)(5) duty to bargain with Local 509 in Sep-
tember, 1974, when Petitioner executed the pre-hire con-
tract. There is no doubt that in December, 1975, when
Petitioner’s application for membership in the Associa-
tion was accepted, a majority of Petitioner’s employees
were not members of Local 509. Simply put, Petitioner
had no duty to bargain with Local 509 at that time.
The duty to bargain and honor the Section 8(f)
pre-hire contract is contingent on the union attaining,
and holding, majority status at the various construction
sites. NLRB v. Ironworkers, Local 103 (Higdon Con-
tracting), supra; see also, Dee Cee Floor Covering,
Inc., et al., 232 N.L.R.B. 421 (1977). The duty is not,
as the Court of Appeals concluded, dependent simply
upon one-time majority status.
The conflict between this Court’s decision in Higdon
and the decision of the Court of Appeals below is
clear and complete. Under Higdon, Petitioner may
be held to a Section 8(a)(5) duty to honor the Associ-
ation contract only if Local 509 had majority status
among Petitioner's employees at Petitioner’s various
construction sites. As the Court of Appeals noted,
Local 509 did not have actual majority status at the
time Petitioner’s Association membership application
was accepted. Rather, Local 509 was a minority union,
to which Petitioner owed no duty.
The Court of Appeals justified its decision by quoting
and applying one sentence, out of context, of the Hig-
don opinion:
“It is also undisputed that when the union suc-
cessfully seeks majority support, the prehire agree-
ment attains the status of a collective bargaining
pre,
agreement executed by the employer with a union
representing a majority of the employees in the
unit.” 434 U.S. at 349-50.
This comment by this Court was in passing, and
only as an answer to the position of the union in
Higdon that Section 8(f) would be rendered meaning-
less if this Court adopted the Board’s view of Section
8(f) vis-a-vis the Section 8(a){5) duty to bargain.
The Court of Appeals’ reliance upon the comment con-
flicts with the Higdon Court’s weightier statement that
the duty to honor such a contract is contingent on the
union’s majority status at the various construction proj-
ects during the contract’s term. (The two statements are
not irreconcilable, however. If the duty to bargain and
honor the contract is contingent upon the union’s ma-
jority at each project, then it follows, naturally, tiat
the pre-hire agreement’s stature matures at such projects
when the union has majority status at such projects.
See, e.g., NLRB v. Irvin-McKelvy, supra.)
The Court of Appeals’ reliance upon the above-
quoted statement to determine Petitioner’s duty to bar-
gain in the circumstances of this case led to a mis-
application of the Higdon decision and should be re-
viewed and reversed by this Court.
2. The Decision Below Conflicts With Decisions of
Other United States Circuit Courts of Appeal.
On the issue of the status of the “pre-hire” relation-
ship between Petitioner and Local 509, the Ninth Cir-
cuit’s decision below conflicts with decisions of the
Sixth and the Third Circuits. See NLRB v. AAA Elec-
tric Inc., 472 F.2d 444 (6th Cir. 1973); NLRB vy.
Irvin-McKelvy, supra.
_
ae.
In AAA Electric, the Sixth Circuit refused to enforce
an NLRB Section 8(a)(5) bargaining order where
the employer had orally entered into a Section 8(f)
pre-hire agreement with the union and the employer
utilized only union members to work at a specific
project. The employer repudiated the agreement by
its conduct, terminated the union members, and hired
a new non-union work force for the project.
The Court stated:
“The valid economic termination of all of the
employees resulted in the loss of majority status
on the part of the Union. There is no duty to
bargain with a union under these circumstances.
Accordingly, we find that the Company’s with-
drawal of recognition from the Union did not con-
stitute a violation of § 8(a)(5) of the Act.” 472
F.2d at 449.
In NLRB vy. Irvin-McKelvy, supra, the Third Circuit
enforced the Board’s Section 8(a)(5) bargaining order
which was limited only to those projects at which
the union had actual majority status.
The Court of Appeals below has, sub silentio,
adopted a different rule—that the Section 8(f) pre-
hire relationship ripens into a full Section 8(a)(5)
relationship, with all that such a relationship imports,
including “presumptions” of majority status at any point
in time or on any construction project. Such a rule
is at odds with that adopted, at least inferentially,
by other courts.
The conflict so created calls for this Court to exercise
its discretion and to resolve the question as to when
ae ie
' a construction industry empioyer has the duty to honor
a Section 8(f) “pre-hire” contract under Section 8(a)
(5) of the Act.
3. This Case Presents Novel and Heretofore Unan-
swered Questions Under the National Labor Re-
lations Act Concerning the Proper Application of
Section 8(a)(5) and Section 8(f) Principles in a
Multi-Employer Collective-Bargaining Unit Con-
text.
The proper application of Section 8(a)(5) rules
concerning “presumptions” of majority status to benefit
a minority union party to a Section 8(f) pre-hire con-
tract has never been definitively treated by this Court.
See NLRB v. Iron Workers, Local 103 (Higdon Con-
tracting), supra at n. 12.
The Board and the Court of Appeals applied a
_ “presumption” of Locai 509’s majority status to validate
the merging of Petitioner’s employees into the multi-
employer collective-bargaining unit. The Board has
never, however, except in the instant case, held that
any “presumption” can be so applied. See, e.g., Alton-
Wood River Building and Construction Trades Council
(Kopp-Evans Const. Co.), 144 N.L.R.B 260 (1963);
Davenport Insulation, Inc., 184 N.L.R.b. 980 (1970).
The Court of Appeals noted this Court’s recitation
of the possibility of a presumption of majority by
quoting this Court’s footnote in the Higdon case:
“One-time majority status, coupled with a union
security clause that has been enforced, gives rise to
a rebuttable presumption of continued majority
Status, in the Board’s view. See R. J. Smith, 191
NLRB, at 695.” 434 U.S. at 351 n. 12.
Neither the Board nor this Court in Higdon held
that the union was entitled to an overall presumption of
Pree TH
majority because of one-time such status at one project.
The Board in its decision in Higdon stated:
“{T |he Board recognized the industrial realities
of the construction industry in finding that 8(f)
contracts do not carry, even with union-security
provisions, a presumption of majority status until
such time as employees for perticular projects
have been hired.”
“SMore precisely until the provisions of the union-
security clause have taken effect at a project (usually 7
days).” 216 N.L.R.B. 45, 46 (1975).
The decision below relies upon a “presumption” of
majority status in order to circumvent the general rule
that an employer may not unilaterally and without
express or implied employee consent bind its employees
to representation in a multi-employer unit. Dancker &
Sellew, Inc., 140 N.L.R.B. 824, 825-26 (1963), en-
forced sub nom., NLRB vy. Int'l Bro. Teamsters, Local
210, 330 F.2d 46 (2d Cir. 1964); Mohawk Busi-
ness Machines Corp., 116 N.L.R.B. 248, 249 (1956);
Pepsi-Cola Bottling Co., 55 N.L.R.B. 1183, 1186-86
(1944).
The use of the “presumption” negates the Higdon
rationale, as well as the final proviso to Section 8(f)
of the Act which permits challenges to the minority
union’s representative status even during the pre-hire
agreement’s term. The application of “presumptions”
of majority to determine an employer’s duty to bargain
heretofore has been exclusively confined to non-
construction industry and non-Section 8(f) cases. The
use of such a “presumption” to bind Petitioner, a
Section 8(f) construction industry employer, and its
employees, to Local 509 fails to accord its employees
their Section 7 (29 U.S.C. § 157) right to reject union
sitll
representation, fails to reflect the reality of Local 509’s
minority status, and only serves to entrench Local 509
as a minority union with majority rights.
This type of novel factual and legal anomaly, which
has never been reviewed by this Court, calls out for
the exercise of this Court’s independent review.
Since whether Petitioner effectively “joined” the Asso-
ciation for collective-bargaining purposes is dependent
upon the appropriate application of Sections 8(f) and
8(a)(5) of the Act, and “presumptions of majority”
to this case, this Court should clarify the Act’s param-
eters of the Section 8(f) employer-union relationship.
Numerous cases recently have been decided by the
Board involving these issues without the guidance of
this Court, leading to decisions seemingly at odds with
themselves and with the Court’s Higdon decision. Com-
pare, Dee Cee Floor Covering, Inc., 232 N.L.R.B.
421 (1977), e.g., Precision Striping, Inc., 245 N.L.R.B.
No. 34 (1979) and G. M. Masonry 245 N.L.R.B.
No. 54 (1979). Indeed, the Board’s General Counsel
recently issued certain “Guidelines” for handling Section
8(f)-Section 8(a)(5) cases, which Guidelines purport
to clarify the law without the benefit of this Court’s
guidance. See NLRB Guidelines on Construction Pre-
Hire Agreements, 101 L.R.R. 27 and 101 L.R.R. 51
(1979). As former NLRB General Counsel John S.
Irving remarked in issuing the “Guidelines”:
“Today, some 20 years after its passage, Sec-
tion 8(f) of the Act continues to be source of
novel legal issues, giving rise to some uncertainty
among the Regional Offices, among labor law
practitioners, and in the construction industry in
general. Recent decisions by the Supreme Court
and the Board have begun to clarify some areas
a
——
ined Bist
but there are others where substantial doubt re-
~ mains.” 101 L.R.R. 27.
The issues in the instant matter afford this Court
an opportunity to clarify the “doubt” concerning Sec-
tion 8(f) and Section 8(a)(5) of the Act. This Court
should now examine these issues in depth, and inform
current and potential litigants in the construction in-
dustry, one of the nation’s largest and most necessary,
of their labor law obligations.
Conclusion.
For these reasons, a writ of certiorari should issue
to review the judgment and opinion of the United
States Court of Appeals for the Ninth Circuit.
Los Angeles, California.
Dated: January 11, 1980.
Respectfully submitted,
JOHN W. PRAGER, JR.,
DwiGuHuT L. ARMSTRONG,
Attorneys for Petitioner.
e APPENDIX A.
Opinion.
United States Court of Appeals for the Ninth Circuit.
Authorized Air Conditioning Co., Inc., Petitioner,
v. National Labor Relations Board, Respondent. No.
78-2427.
Filed Oct. 19, 1979.
On Petition for Review and Cross-Application for
Enforcement of an Order of the National Labor Rela-
tions Board.
Before: BARNES, BROWNING and ELY, Circuit
Judges.
ELY, Circuit Judge:
Pursuant to Section 10(f) of the National Labor
Relations Act (“the Act”), 29 U.S.C. § 160(f),
Authorized Air Conditioning, Inc. (“the Company”)
petitions for review of a final order of the National
Labor Relations Board (“the Board”). The Board
found that the Company had violated Sections 8(a) (1)
and (5) of the Act, 29 U.S.C. §§ 158(a)(1) and
(5), by the Company’s refusal to execute and abide
by a collective-bargaining agreement negotiated by a
multi-employer bargaining association ("the Multi-
Employer Association”)* of which the Company was
once a member. The Board’s Decision and Order is
reported at 236 N.L.R.B. No. 24 (1978). The Board
cross-petitions for enforcement of its Order.
The Company is a heating, cooling, and air-condition-
ing contractor in the building and construction industry,
. I{nland Air-Conditioning and Refrigeration Contractors Asso-
ciation, Inc.
" . |
mae. ee
and it operates primarily in the Southern California
area. At all relevant times herein, Paul Osborne was
its president and general manager. In July of 1974,
Osborne approached Paul Healy, the business manager
of Local 509,’ to discuss the possibility of employing
Local 509 members. On September 9, 1974, Osborne
signed on the Company’s behalf a collective-bargaining
agreement that consisted of two documents. The first
was the Standard Form of Union Agreement (“Standard
Form”), a contract negotiated by the Sheet Metal
Workers International Association and the Sheet Metal
and Air-Conditioning Contractor’s National Association
(“the National Association”)—the latter being the
parent organization of the Multi-Employer Association.
The second document was an Addenum to the Standard
Form (“Addendum”) which was negotiated by Loéal
509 and the Multi-Employer Association. Both docu-
ments, by their terms, were to be effective until J uly
31, 1976.
At the time the Company signed the collective-bar-
gaining agreement, Osborne also signed a Notice of
New Shop Contract which listed five persons as the
employees of the Company as of September 9, 1974.
At that time, none of the Company’s employees were
members of Local 509 or had otherwise authorized
the Union to represent them. The collective-bargaining
agreement was therefore a pre-hire agreement as pro-
vided in Section 8(f) of the Act, 29 U.S.C. §.158(f).
Local 509, Sheet Metal Workers International Association,
AFL-CIO (hereinafter “Local 509” or “the Union”).
*It is not an unfair labor practice for an employer engaged
imarily in the building and construction industry to enter
into a collective-bargaining agreement with a union that has
not attained majority status prior to the execution of the agree-
ment. 29 U.S.C. § 158(f); NLRB v. Iron Workers, 434 U.S.
335, 337-38 (1978).
IG, ee
Article V, Section 1 of the Standard Form contains
a closed shop provision whereby the employer agrees
to require membership in the Union within eight days
of an employee’s first day of work as a condition
of continued employment.‘ When he signed the Stand-
ard Form, however, Osborne was told by Healy that
the Company’s employees would have thirty days to
sign membership applications with Local 509. On Oc-
tober 9, 1974, four of the five employees listed on
the Notice of New Shop Contract had filled out Union
membership applications. The fifth employee was an
apprentice.°
On September 29, 1975, while the collective-bargain-
ing agreement was still in effect, the Company sub-
mitted applications for membership in the Multi-Em-
ployer Association and its parent organization, the Na-
tional Association. Both are trade associations engaged
in legislative, public relations, architectural, and labor
relations activities in the sheet metal and air-condition-
*Article V, Section 1 of the Standard Form provides:
ARTICLE V
SECTION 1. The Employer agrees to require member-
ship in the Union, as a condition of continued employment
of all employees performing any of the work specified
in Article I of this Agreement, within eight (8) days
following the beginning of such employment or the effec-
tive date of this Agreement, whichever is the later, provided
the Employer has reasonable ground for believing that
membership is available to such employees on the same
terms and conditions generally applicable to other mem-
bers and that membership is not denied or terminated
for reasons other than the failure of the re 3 to tender
the periodic dues and initiation fee uniformly required
as a condition of acquiring or retaining membership.
5Although the Company disputes the Board’s finding with
respect to both the number of employees at the Company
on October 9, 1974, and the number of those employees who
became Local 509 members, we find the Board’s finding to
be clearly supported by substantial evidence and thus reject
the Company’s contentions in this regard.
—4—
ing industry. The Multi-Employer Association is also
the exclusive collective-bargaining representative for its
members in a specified area of Southern California.
The Multi-Employer Association’s Application for Mem-
bership Form (“Application”) is a one-page document
y with the same type-face throughout. It contains only
three paragraphs of text, the latter two of which state
as follows:
The undersigned hereby applies for membership
in the INLAND AIR CONDITIONING AND
REFRIGERATION CONTRACTORS ASSOCIA-
TION INC., and in connection therewith hereby
states and agrees:
* * *
2. Tat if admitted to membership the under-
signed will abide and be bound by all the pro-
visions of the Articles of Incorporation and By-
laws of the Corporation as they now exist and
as they may be amended, and will thereby, and
also by virtue of this application, become a
party to and be bound by the existing labor agree-
ments between Sheet Metal Workers International
Association Local Union 509 AFL-CIO and/or
United Association of Journeymen and Appren-
tices of the Plumbing and Pipe Fitting Industry,
Local Unions 364 and 398 AFL-CIO and the
Inland Air Conditioning and Refrigeration Con-
tractors Association Inc. Receipt of copies of the
Articles, By-laws and labor agreements now in
force is hereby acknowledged.
3. The INLAND AIR CONDITIONING
AND REFRIGERATION CONTRACTORS AS-
SOCIATION, INC., is hereby designated as the
sole and exclusive collective bargaining represen-
vais
tative for and on behalf of the undersigned, and
the Corporation and its Officers and other desig-
nated representatives are authorized to execute
any and all labor agreements and documents which
are to be binding upon the members of the Cor-
poration in accordance with the By-laws.°
°The By-laws of the Multi-Employer Association (“By-laws”)
contain a provision that restates the requirements of Paragraph
3 of the Application. Article X of the By-laws provides
in pertinent part:
ARTICLE X
Section 1: Collective Bargaining: Each regular member
herewith appoints the Corporation and its Board of Direc-
tors or its nominee as exclusive collective bargaining agent
in dealing with any labor organization affecting the air
conditioning, refrigeration or sheet metal industry. Each
regular member grants complete and exclusive authority
to the Corporation aforesaid to do any of the following:
A. Negotiate, conclude and execute contracts which
bind the Corporation and its members, jointly and
severally.
B. Administer collective bargaining and trust agreements
and make settlements, decisions and agreements in-
terpreting and applying any agreement which action
shall be binding upon the Corporation and its mem-
bers.
C. Obtain rulings before any court or agency concerning
any tax or other aspect of any contract, agree-
ment or trust fund to which the Corporation or
any member is a party, and to comply with the
filing or reporting requirements of any State or
Federal Law with reference thereto.
Section 2: Members hereby are expressly bound to take
joint and united action in support of each other and
the Corporation in dealing with any labor organization
and each member:
A. Shall deem any economic action by any labor
organization against any member as a like action
against all members and against the Corporation,
when so declared by the Board of Directors.
B. Shall suspend or operate business or employ or
not employ employees represented by any Union
at such times and places as directed by the Board
of Directors.
(This footnote is continued on next page)
oak Se
Paragraph 2 of the Application requires the Com-
pany to be bound by one of two existing labor agree-
ments between the Multi-Employer Association and
the unions that had established bargaining relations
with it. One of these agreements was the same as
the Company’s collective-bargaining agreement with
Local 509, and thus the Company satisfied the require-
ment of Paragraph 2.
By letter dated December 18, 1975, the Company
was notified that it had been accepted as a member
of the Multi-Employer Association and its parent, the
National Association. The letter indicated that the by-
laws of both organizations were enclosed. At the time
the Company’s Application was accepted, a majority
of the Company’s employees were not members of
Local 509, «and the closed shop provision in the Stand-
ard Form was not being enforced.
On February 26, 1976, Local 509 gave the Multi-
Employer Association timely notice of its intent to
C. Shall not operate a job while other members are
shut down, when so declared by the Board of
Directors.
D. Shall not sign any Union agreement individually
with any Union with which the Corporation bargains
in behalf of its members.
E. Shall not individually or through any agent, nego-
tiate or deal separately with any Union with which
the Corporation bargains in behalf of its members.
F. Shall not entice any employees from any other mem-
ber in any manner. Payment over wage bargaining
agreements signed by the Corporation shall consti-
tute enticement.
G. Shall refer to the Corporation all disputes or prob-
lems and interpretations arising between any em-
ployee, and Union and the member in relation
to any Union.
H. Shall be bound by all decisions and interpretation
issued by the Corporation affecting the labor rela-
tions between a member and employee.
per. Sa
reopen its agreement with the multi-employer bargaining
unit. Negotiations commenced on May 20, 1976. In
late June of that year, the Multi-Employer Associa-
tion provided Local 509 with a list of its members.
The Company was included in that list. By August
4, 1976, the only remaining unresolved issue in the
negotiations was wages. On August 9, 1976, the parties,
being unable to reach a concensus, submitted the wage
issue to a third party, the National Joint Adjustment
Board (“NJAB”), as provided in the respective labor
agreements. On August 11th, the NJAB issued a unani-
mous decision setting forth the wage increase to be
included in the new contract and provided that the
contract would be effective from August 1, 1976
through July 31, 1978. The Multi-Employer Association
and Local 509 entered into the new collective-bar-
gaining agreement, and Local 509 began to contact
the individual members of the Multi-Employer Associa-
tion in order to secure their signatures on the new
contract.
In a letter dated July 14, 1976, the Company notified
the Multi-Employer Association of its intent to with-
draw from membership in the unit effective June 1,
1976.’ Article VI, Section 4(a) of the By-laws provides
that a member may not resign or withdraw within four
months prior to or after the termination date of any
collective-bargaining agreement of which the Multi-
Employer Association is a party and which covers
the members’ employees. It also provided that a mem-
ber’s resignation became effective only upon acceptance
7The Company apparently had verbally contacted the Multi-
Employer Association on a number of prior occasions beginning
in February, 1976 as to its desire to withdraw from the trade
association.
‘sini ens:
by the Board of Directors of the Multi-Employer Asso-
ciation. Because the Board of Directors found the Com-
pany’s request for withdrawal to be untimely under
the By-laws, it took no action with respect to the
Company’s letter.
In late August, 1976, the business manager for Local
509 contacted Osborne and asked that the Company
sign the new bargaining agreement negotiated by the
Multi-Employer Association. Osborne refused on the
grounds that the Company was no longer a member
of the multi-employer bargaining unit and because the
“wages are too high” in the new contract. Thereafter,
the Company failed to make any of the required pay-
ments to the health and pension funds of its employees
as were provided for in the new bargaining agreement.
The Board, in agreement with the Administrative
Law Judge, found that the Company had violated
Sections 8(a)(1) and (5) of the Act by refusing
to sign the new collective-bargaining agreements and
to abide by the terms therein. The Board’s Order
requires the Company to recognize and bargain with
the Union as the representative of its employees in
the appropriate unit, to sign and implement the new
collective-bargaining agreement and give it retroactive
effect, to make its employees whole for any losses
resulting from the Company’s refusal to bargain, and
to post appropriate notices.
Two overriding issues are presented: (1) whether
the Company was, in fact, a member of the Multi-
Employer Association during the relevant period herein,
and (If) whether Local 509 represented a majority
of the employees in the relevant unit at the time of
the Company’s refusal to sign the new collective-
bargaining agreement and to abide by its terms.
aT
I.
The Company’s Membership in the Multi-Employer As-
sociation.
The Company contends that it was not a member
of the Multi-Employer Association during the relevant
periods herein because (1) the Company did not express
an unequivocal intent to be bound by the multi-employer
unit for purposes of collective bargaining; (2) Local
509 failed to give timely consent to the Company’s
inclusion in the multi-employer unit; (3) the Company’s
employees were not effectively merged into the Multi-
Employer Association because a majority had not con-
sented to representation by Local 509; and (4) the
Company effectively withdrew from the bargaining unit.
We reject these contentions for the reasons outlined
below.
(1) Evidence of Unequivocal Intent
Paragraph 3 of the Application, quoted supra, clearly
and unequivocally states that the Mutli-Employer Asso-
ciation is “hereby designated as the sole and exclusive
collective bargaining representative for and on behalf
of the undersigned.” Likewise, Article X of the By-
laws gives the Multi-Employer Association the authority
to act as the Company’s sole representative for purposes
of collective bargaining.
Osborne claimed that he did not read the Application
before signing it. Instead, the Company asserted that
it applied for membership in the Multi-Employer Asso-
ciation merely to obtain certain trade manuals and
documents. The Administrative Law Judge found that
this testimony was not credible, and the Board adopted
that finding. This Court will not disturb credibility
resolutions unless a clear preponderance of evidence
in the record shows that they are incorrect. NLRB
cll
v. Pacific Intern. Rice Mills, Inc., 594 F.2d 1323,
1326 (9th Cir. 1979). Given the fact that the Appli-
cation was only a one-page document on which the
type is reasonably large and uniform, it is somewhat
difficult to believe that Osborne failed to notice Para-
graph 3 which rests conveniently in the center of the
page. Moreover, there was testimony that the manuals
and documents the Company allegedly sought were
already available to it with no requirement that the
Company join the Multi-Employer Association. In sum,
here is substantial evidence to support the Board’s
finding that the Company intended to become part
of the multi-employer unit and to delegate authority
to the Multi-Employer Association to negotiate on the
Company’s behalf.
(2) The Union’s Consent
The Company correctly points out that before a
particular employer can become part of an established
multi-employer unit, the “already committed parties”,
which includes the union, must agree to the newcomer’s
participation. The Hammet Co. Inc., 206 N.L.R.B.
No. 56 at 680 (1973). The Company contends that
there was no timely consent by Local 509 herein as
it was not aware of the Company’s membership in
the Multi-Employer Association until August, 1976,
after the conclusion of the negotiations for a new
collective-bargaining agreement.
No specific formalities are required to evidence an
intent by a union to accept an employer bargaining
group. See NLRB v. Bagel Bakers Council of Greater
New York, 434 F.2d 884, 886-87 (2d Cir.), cert.
denied, 402 U.S. 908 (1971). Similarly, no formal
or special evidence of acceptance is required of the
———
.
snsinlt icine
union when a new employer is added to the unit
so long as the union has an opportunity to voice
its objections to the newcomer but does not.®
In the present case, contrary to the Company’s claim,
Local 509 was given a list of the Multi-Employer
Association’s members, which included the Company,
in June of 1976. At no time herein did Local 509
object to the Company’s inclusion in the multi-employer
unit. Indeed, after the new collective-bargaining agree-
ment had been reached, the Union sought the Com-
pany’s signature on the new contract. We find, as
did the Board, that such facts evidence the necessary
consent by the Union to the Company’s inclusion within
the Multi-Employer Association. As to the Company’s
contention that the consent must be “timely,” we find
no case that discusses this requisite, if it exists at
all. The Board did not find the Union’s consent to
be untimely, and we shall not disturb that determination,
essentially factual, in the circumstances of this case.
(3) Employees Merged Into Multi-Employer Associa-
tion
Generally, an employer may not unilaterally and
without the express or implied consent of its employees
bind them to representation in a multi-employer unit.
See, e.g., Mohawk Business Machines Corp., 116
N.L.R.B. No. 28 at 249 (1956). The Company con-
tends that its employees were not effectively merged
into the Multi-Employer Association because the Union
8Cf. Fairmont Foods Co. v. NLRB, 471 F.2d 1170, 1173
(8th Cir. 1973) (where it was held that a union’s silence
as to an employer’s withdrawal from a multi-employer unit
after receiving notice thereof, coupled with its continuation of
normal relations with the remaining employers, constituted an
“implied consent” to the withdrawal).
a i a ia hia cl
oo ae
did not enjoy majority status at the time the Company
applied for membership and was accepted into the
multi-employer unit. The argument must be rejected.
As the Supreme Court noted less than two years
ago, “It is also undisputed that when the union success-
fully seeks majority support, the prehire agreement at-
tains the status of a collective-bargaining agreement
executed by the employer with a union representing
a majority of the employees in the unit.” NLRB v. Iron
Workers, 434 U.S. 335, 349-50 (1978). See also id.
at 351 n.12 (“One-time majority status, coupled with
a union security clause that has been enforced, gives
rise to a rebuttable presumption of continued majority
status, in the Board’s view. See R. J. Smith, 191
N.L.R.B., at 695.”). It is clear from the record in
this case that a majority of the Company’s employees
became Local 509 members shortly after the signing
of the pre-hire agreement and well before the Company
became a member in the Multi-Employer Association.’
Thus, once a majority of the Company’s employees
joined the Union, a rebuttable presumption of the Un-
ion’s majority status was created. We also note that
the union security clause, a part of the pre-hire agree-
ment, was enforced, at least initially, after the agreement
was entered into.
In addition, however, the Company contends that
this presumption was successfully rebutted by evidence
indicating that only a minority of its employees were
Union members when, for example, the Company’s
application for membership in the multi-employer unit
*Even the Company concedes that Local 509 members
constituted a majority of its work complement in two months
during the effective period of the bargaining agreement and
before the Company applied for and became a member in
the Multi-Employer Association.
- eg nen i
acl:
was approved in December of 1975. This evidence
alone, however, is not sufficient to rebut the presump-
tion of majority status in the circumstances of this case.
It is well established that union membership is not
always an accurate barometer of union support. NLRB
v. Tahoe Nugget, Inc., 584 F.2d 293, 307 (9th Cir.),
cert. denied, .... U.S. .... (1979); Sahara-Tahoe Corp.
v. NLRB, 581 F.2d 767, 772 (9th Cir.), cert. denied,
.... U.S. .... (1979); NLRB v. Vegas Vic, Inc., 546
F.2d 828, 829 (9th Cir.), cert. denied, 434 U.S. 818
(1978). The Board concluded that the Company did
not rebut the presumption of majority status applicable
here. We hold that the Board’s determination in this
respect is supported by the evidence.
(4) Attempt to Withdraw
Prior to the commencement of negotiations, either
the Union or the individual employer may unilaterally
withdraw from a multi-employer bargaining relationship
if adequate written notice is given that evinces an
unambiguous intent to withdraw. NLRB vy. Beck En-
graving Co., Inc., 522 F.2d 475, 481 (3rd Cir.
1975). It is well established, however, that withdrawal
from a multi-employer unit is untimely if attempted
after the commencement of bargaining negotiations.
See, e.g., McAx Sign Co., Inc. v. NLRB, 576 F.2d
62, 67-68 (Sth Cir. 1978), cert. denied, .... US. ....
(1979); NLRB v. Central Plumbing Co., 492 F.2d
1252, (6th Cir. 1974); NLRB v. Tulsa Sheet Metal
Works, Inc., 367 F.2d 55, 57 (10th Cir. 1966). “This
rule is intended to minimize disruption of the bargaining
process by preventing an employer from using the
threat of withdrawal as a ‘bargaining lever.’” McAx
Sign Co., supra, at 68. See also NLRB v. Sheridan
Creations, Inc., 357 F.2d 245, 247-48 (2d Cir. 1966).
or ee
The Company’s attempt to withdraw from the multi-
employer unit was not successful for a number of
reasons. First, the withdrawal was untimely as a matter
of law since the negotiations between Local 509 and
the Multi-Employer Association commenced on May
20, 1976, and Local 509 did not consent to the Com-
pany’s withdrawal. There was, in fact, no evidence
that the Company ever notified the Union of its intent
to withdraw prior to the time that the new collective-
bargaining agreement was finalized. We note also that
the Company failed to secure the approval of the
Multi-Employer Association’s Board of Directors as
required under Article VI, Section 4 of the By-laws.
Moreover, the withdrawal was precluded by this portion
of the By-laws which required continued membership
for four months prior to and after the termination
date of any collective-bargaining agreement covering
a member’s employees of which the Multi-Employer
Association was also a party.
(5) Impasse in Negotiations
During the course of negotiations, withdrawal from
a multi-employer bargaining unit is permissible if an
“unusual circumstance” occurs. NLRB yv. Associated
Shower Door Co., 512 F.2d 230, 232 (9th Cir.),
cert. denied, 423 U.S. 893 (1975). The only unusual
circumstance, as the term has been used by the Board
and the courts, that is raised by the Company is
an alleged impasse in negotiations.° The Courts
10The Company contends that another “unusual circum-
stance” existed in that it had merely been a nominal, non-
participating member in the, Multi-Employer Association for
a short time prior to its request to withdraw. No case support-
ing this position is cited, and we do not find that such facts
constitute sufficient reason or justification to permit a unilateral
withdrawal during negotiations.
ae, OM
of Appeals have consistently recognized an impasse
in negotiations as justification for a unilateral with-
drawal from a multi-employer unit. E.g., NLRB v.
Acme Wire Works, Inc., 582 F.2d 153, 156-57 (2d
Cir. 1978); NLRB v. Beck Engraving Co., Inc., 522
F.2d 475, 483 (3rd Cir. 1975); NLRB v. Associated
Shower Door Co., 512 F.2d 230, 232 (9th Cir.),
cert. denied, 423 U.S. 893 (1975); NLRB v. Hi-
Way Billboards, Inc., 500 F.2d 181, 182-83 (Sth Cir.
1974); Fairmont Foods Co. v. NLRB, 471 F.2d 1170,
1172-73 (8th Cir. 1972).
The Administrative Law Judge, however, found that
there was no evidence of an impasse. The Board
adopted this finding, and we cannot conscientiously
hold that the finding is not supported by substantial
evidence. The fact that an employer is not happy
with the result of group bargaining does not indicate
an impasse. NLRB v. Central Plumbing Co., 492 F.2d
1252, 1254 (6th Cir. 1974). The period between May
20, 1976 and August 9, 1976 is not alleged to have
been an overly lengthy time for the bargaining. The
Company does not claim that it was suffering economic
hardship as a result of the length of the negotiations.
Moreover, until August 5 when the deadlock as to
wages became apparent, there is little, if anything,
in the record to indicate that the negotiations had
not been proceeding in a normal fashion. Further,
the parties had previously agreed upon a binding meth-
od of resolving any deadlocks, i.e., submission of the
issue to the NJAB. While the Company contends that
the Union had threatened to strike if the NJAB itself
deadlocked, the mere threat of a strike is not an
unusual circumstance justifying withdrawal in the cir-
cumstances of this case. Finally, we note that at the
sonic
time the Company notified the Multi-Employer Associa-
tion of its intent to withdraw (July 14, 1976 letter),
there clearly was no evidence of any impasse. Cf.,
NLRB v. Johnson Sheet Metal, Inc., 442 F.2d 1056,
1060 (10th Cir. 1971) (attempt to withdraw came
after negotiations had resumed and whatever impasse
may have existed had ended).
Il.
The Union’s Majority Status at the Time of the Com-
pany’s Refusal to Sign the New Agreement.
As recently stated by our own court,
To sustain an 8(a)(5) charge, the General
Counsel must show the union represented a ma-
jority of the unit employees when the employer
refused to bargan. The Board employs two pre-
sumptions obviating an evidentiary showing of ma-
jority status. For a reasonable time, usually one
year, after certification or voluntary recognition,
majority support is irrebuttably presumed absent
“unusual circumstances.” After one year, the pre-
sumption becomes rebuttable. Absent sufficient
countervailing proof, the presumption establishes,
without more, the employer’s duty to bargain.
NLRB vy. Tesoro Petroleum Corp., 431 F.2d 95,
97 (9th Cir. 1970).
* *k *
The presumption is rebutted if the employer
shows, by clear, cogent, and convincing evidence
that the union was in the minority or that the
employer had a good faith reasonable doubt of
majority support at the time of the refusal. (foot-
notes omitted).
sind Bisse
NLRB vy. Tahoe Nugget, Inc., 584 F.2d 293, 297
(9th Cir.), cert. denied, .... U.S. .... (1979). Accord,
Sahara-Tahoe Corp. v. NLRB, 581 F.2d 767, 769
(9th Cir.), cert. denied, .... U.S. .... (1979).
The Company contends that the Union did not
enjoy a presumption of majority status at the relevant
times herein, and that even if such a presumption
did exist, the Company effectively rebutted the presump-
tion by pointing out that only a minority of its em-
ployees were Local 509 members. These arguments,
of course, parallel those made in connection with the
Company’s application for membership and acceptance
into the Multi-Employer Association. See Part I(3),
supra. We reject the Company’s arguments in this
context for similar reasons. )
The contentions presented in the Petition for Review
are rejected, and the Board’s Order will be
ENFORCED.
|
ee
APPENDIX B.
Decision and Order.
236 NL: 3 No. 24
JPM, D—3274, Pomona, Calif.
United States of America Before the National Labor
Relations Board.
Authorized Air Conditioning Co. and Sheet Metal
Workers’ International Association, Local Union No.
509. Case 21—CA—15160.
On July 29, 1977, Administrative Law Judge Earl-
dean V. S. Robbins issued the attached Decision in
this proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the National
Labor Relations Board has delegated its 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 brief and has
decided to affirm the rulings, findings, and conclusions
of the Administrative Law Judge, to modify her rem-
edy,’ and to adopt her recommended Order.”
1The Administrative Law Judge inadvertently omitted from
her remedy the manner in which backpay shall be computed.
Accordingly, we shall modify her remedy so that backpay is
computed as set forth in F. W. Woolworth Company, 90
NLRB 289 (1950), and interest thereon as prescribed in Florida
Steel Corporation, 231 NLRB No. 117 (1977). See, generally,
Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
2Respondent’s reliance on David F. Irvin and James B.
McKelvy, partners, d/b/a The Irvin-McKelvy Company, 194
NLRB 52 (1971), and other cases involving bargaining relation-
ships under Sec. 8(f) is misplaced. No question of majority
has been raised in the appropriate multiemployer unit, and
the representative status of the Union among Respondent’s em-
ployees is immaterial as those employees constitute only a
small segment of the appropriate unit.
|
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Order
of the Adminstrative Law Judge and hereby orders
that the Respondent, Authorized Air Conditioning Co.,
Pomona, California, its officers, agents, successors, and
assigns, shall take the action set forth in the said
recommended Order.
Dated, Washington, D.C. May 16, 1978
Howard Jenkins, Jr., Member
John A. Penello, Member
Betty Southard Murphy, Member
NATIONAL LABOR RELA-
TIONS BOARD
(SEAL)
JD-(SF)-159-77, Pomona, Calif.
United States of America Before the National Labor
Relations Board, Division of Judges, Branch Office,
San Francisco, California.
Authorized Air Conditioning Co. and Sheet Metal
Workers’ International Association, Local Union No.
509. Case No. 21-CA-15160.
Lana H. Parke, Esq., of Los Angeles, Calif., for
the General Counsel.
Walter C. Appling, Esq., of Richman & Garrett,
Los Angeles, Calif., for the Charging Party.
John W. Prager, Jr., Esq., of Tyre & Kamins,
Los Angeles, Calif., for the Respondent.
a, '
DECISION
Statement of the Case
EARLDEAN V.S. ROBBINS, Administrative Law
Judge: This case was tried before me in Los Angeles,
California, on May 17 and 18, 1977. The charge
was filed by Sheet Metal Workers’ International Asso-
ciation, Local Union No. 509, herein called the Union,
or Local 509, on October 26, 1976, and a copy thereof
was served on Respondent on November 8, 1976. The
complaint which issued on December 15, 1976, alleges
that Respondent violated Section 8(a)(1) and (5)
of the National Labor Relations Act. Post-trial briefs
were filed by the General Counsel and by the Respond-
ent.
The basic issue herein is whether Respondent is
bound by a collective-bargaining agreement entered into
by the Inland Air Conditioning and Refrigeration Con-
tractors Association, Inc., herein called the Association,
on behalf of its members.
Upon the entire record, including my observation
of the witnesses and after due consideration of the
briefs filed by the parties, I make the following:
Findings of Fact
I. Commerce
Respondent, a California cororation, is a heating,
cooling, and air conditioning contractor in the building
and construction industry, with an office located in
Pomona, California. The complaint alleges, and I find
as more fully set forth below, that at all times material
herein Respondent has been an employer-member of
the Inland Air Conditioning and Refrigeration Contrac-
|
tors Association, Inc., and has delegated authority to
the Association to represent it for purposes of collective
bargaining with labor organizations.
The complaint alleges, and I find, the Association
is a voluntary association of employers with its head-
quarters located in Riverside, California, which admits
to membership employers engaged in Southern Califor-
nia in the sheet metal, air conditioning and refrigeration
industry, and exists, in part, for the purpose of bargain-
ing with labor organizations concerning wages, hours,
and working conditions of einployees employed by its
employer-members, including Wright’s Manufacturing,
Incorporated. Most of its members are in the building
and construction industry.
Wright’s is a California corporation engaged in the
manufacture of sheet metal flashings, duct work, and
plenum curbs at various facilities located in the State
of California, from which it annually ships and sells
goods and products valued in excess of $50,000 directly
to customers outside the State of California.
Upon the pleading and the evidence, I find that
the Association and its employer-members, including
Respondent, are now, and have been at all times mate-
rial herein, employers within the meaning of Section
2(2) of the Act, engaged in commerce and in a
business affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
II. Labor Organization
The complaint alleges, the answer admits, and I
find that the Union is, and at all times material herein
has been, a labor organization within the meaning
of Section 2(5) of the Act.
oe, ae
III. The Alleged Unfair Labor Practices
A. Facts
Prior to July 1974, Respondent had been engaged
in the heating and air conditioning industry in the
Greater Los Angeles Area and as a consequence
thereof had some dealing with Sheet Metal Workers’
International Association, Loca] Union No. 108, herein
called Local 108. Around July 1974, Respondent’s
president, Paul Osborne, contacted Paul Healy, business
manager for Local 509, informed him that Respondent
planned to open a shop in Pomoaa and wished to
sign a collective-bargaining agreement with Local
509.
On September 9, 1974, Osborne, on behalf of Re-
spondent, signed the Standard Form of Union Agree-
ment for the sheet metal, roofing, ventilating and air
conditioning contracting divisions of the construction
industry,’ and also signed the Local 509 Addenda
to Standard Form of Union Agreement.” The standard
agreement and the addenda are both effective by their
terms until July 31, 1976.
As of September 9, 1974, none of Respondent’s
employees were members of the Union or had otherwise
authorized the Union to represent them in collective
bargaining. However, the standard agreement provides:
ARTICLE V.
SECTION 1. The Employer agrees to require mem-
bership in the Union, as a condition of continued
1This agreement is negotiated by the Sheet Metal Workers’
International Association and the Sheet Metal and Air Condition-
ing Contractors National Association.
2The addenda is negotiated by Local 509 and Inland Air
Conditioning & Refrigeration Contractors Association, Inc.
ae
employment of all employees performing any of the
work specified in Article I of this Agreement, within
eight (8) days following the beginning of such employ-
ment or the effective date of this Agreement, whichever
is the later, provided the Employer has reasonable
ground for believing that membership is available to
such employees on the same terms and conditions gener-
ally applicable to other members and that membership
is not denied or terminated for reasons other than
the failure of the employee to tender the periodic dues
and initiation fee uniformly required as a conditiyn
of acquiring or retaining membership.
At the time of the signing of the agreement, Osborne
signed a Notice of New Shop Contract which lists
five persons as the employees of Respondent as of
September 9, 1974. Healy told Osborne that Respond-
ent’s employees would have 30 days to sign applications
for membership. On October 9, 1974, four of the
five persons listed on the Notice of New Shop Contract
signed applications for membership in the Union.*
On September 29, 1975, Respondent applied for
membership in the Association and in its parent organi-
zation, Sheet Metal and Air Conditioning Contractors’
National Association, Inc., herein called SMACNA.
The Association application provides:
The undersigned hereby applies for membership in
the INLAND AIR CONDITIONING AND REFRIG-
ERATION CONTRACTORS ASSOCIATION INC.,
and in connection therewith hereby states and agrees:
1. That the undersigned is a licensed contractor
engaged in the air conditioning, refrigeration and/or
sheet metal industry within the San Bernardino and
Riverside Counties and the Pomona Trading Area.
8The fifth person was an apprentice.
agli,
2. That if admitted to membership the under-
signed will abide and be bound by all the provisions
of the Articles of Incorporation and By-laws of the
Corporation as they now exist and as they may be
amended, and will thereby, and also by virtue of this
application, become a party to and be bound by the
existingt labor agreements between Sheet Metal Workers
International Association Local Union 509 AFL-CIO
and/or United Association of Journeymen and Appren-
tices of the Plumbing and Pipe Fitting Industry, Local
Unions 364 and 398 AFL-CIO and the Inland Air
Conditioning and Refrigeration Contractors Association
Inc. Receipt of copies of the Articles, By-laws and
labor agreements now in force is hereby acknowledged.
3. The INLAND AIR CONDITIONING AND RE-
FRIGERATION CONTRACTORS ASSOCIATION.
INC., is hereby designated as the sole and exclusive
collective bargaining representative for and on behalf
of the undersigned, and the Corporation and its Officers
and other designated representatives are authorized to
execute any and all labor agreements and documents
which are to be binding upon the members of the
Corporation in accordance with the By-laws. ‘
By letter dated December 18, Respondent was noti-
fied that it had been accepted into membership both
in the Association and in SMACNA. The letter further
stated that the bylaws of both organizations were en-
closed.’ The Association bylaws provide inter alia:
ARTICLE X
Section 1: Collective bargaining: Each regular member
herewith appoints the Corporation and its Board of
4Osborne does not deny that the bylaws were enclosed but
claims he never saw them.
ate, | ih
Directors or its nominee as exclusive collective bar-
gaining agent in dealing with any labor organization
affecting the air conditioning, refrigeration or sheet
metal industry. Each regular member grants complete
and exclusive authority to the Corporation aforesaid
to do any of the following:
A. Negotiate, conclude and execute contracts which
bind the Corporation and its members, jointly
and severally.
B. Administer collective bargaining and trust agree-
ments and make settlements, decisions and
agreements interpreting and applying any agree-
ment which action shall be binding upon the
Corporation anc its members.
C. Obtain rulings before any court or agency con-
cerning any tax or other aspects of any contract,
agreement or trust fund to which the Corpora-
tion or any member is a party, and to comply
with the filing or reporting requirements of any
State or Federal Law with reference thereto.
On February 26, 1976,° the Union gave the Asso-
ciation timely notice of intent to reopen the agreement.
The first of 11 negotiating sessions was held on May
26. Some time in late June, the Association provided
the Union with a list of its members, including Re-
spondent.
By letter dated July 14, Respondent notified the
Association that it wished to withdraw its membership
effective as of June 1.° No notice was given to the
5All dates hereinafter will be 1976 unless otherwise indicated.
®According to Osborne, he told Boyer in February that
economically Respondent could not afford membership in the
Association and would have to withdraw. Boyer said he would
(This footnote is continued on next page)
pee aN
Union. Donald Boyer, executive secretary of the Asso-
ciation, creditably testified the letter was presented to
the Association’s board of directors at the next meeting
following July 14 but it was not acted upon because
it was untimely.
The association bylaws provide:
ARTICLE VI
Membership
* * K
Section 4: Termination of Membership. Any mem-
ber of the Corporation, whose dues are currently
paid and is otherwise in good standing may resign
at any time, except as hereinafter stated. Timely
resignations must be presented in writing to the
Board of Directors who shall act upon them on
or before their second meeting following their re-
ceipt. However, such resignations shall become
effective only upon acceptance by the Board of
Directors. No resignation shall be accepted if the
member resigning is indebted to the Corporation.
A. Any person, firm, or corporation becoming
a member of the Corporation shall continue
his membership during the four (4) months
periods prior to and continuing through four
(4) months after the termination date of
have Carl Johnson contact Osborne. Upon speaking to Johnson,
Osborne was dissuaded from resigning upon the representation
that valuable new manuals would soon be distributed to mem-
bers. In April, according to Osborne, he again told Boyer
Respondent was going to resign from association membership.
Boyer said he would have Johnson contact Osborne, which
Johnson did in late May. They had basically the same conversa-
tion, but Osborne insisted that Respondent was going to have
to resign its membership. However, no further step was taken
until the July 14 letter. Johnson did not testify. Boyer
testified that he recalls no such conversation.
ae, Sa
any collective bargaining contract to which
this Corporation is a party and which covers
employees of said member.
* * 86
By the August 4 negotiation session the only item
remaining in dispute was wages. Failing to resolve
this disputed item, the Union and the Association re-
ferred the dispute to the National Joint Adjustment
Board pursuant to article X, section 8 of the 1973-
1976 contract. which by its terms remain in effect
after notice of reopening has been served until all
conferences relating thereto have been terminated by
either party.
That section provides that “should the negotiations
for renewal of this Agreement become deadlocked”
notice is to be given to SMACNA and the president
of the International. Thereafter, certain conciliation
steps are to be taken at the national level in an
attempt to resolve the dispute. Should conciliation fail,
the dispute shall be submitted to the National Joint
Adjustment Board. “The unanimous decision of said
Board shall be final and binding upon the parties.
. . . There shall be no cessation of work by strike
or lockout unless and until said Board fails to reach
a unanimous decision and the parties have rece‘ved
written notification cf its failure.” It further provides
that:
Unless a different date is agreed upon mutually
between the parties or is directed by the unanimous
decision of the National Joint Adjustment Board,
all effective dates in the new agreement shall
be retroactive to the date immediately following the
expiration date of the expiring agreement.
a ee
On August 11, the National Joint Adjustment Board
issued a unanimous decision setting forth the wage
increase to be included in the contract and providing
that the contract term shall be from August 1, 1976,
through July 31, 1978. Within 2 or 3 days thereafter
the Association and the Union signed the new standard
agreement and addenda. The Union then proceeded
to secure the signature of the individual association
members on the new agreement.
According to the Union’s Business Manager Gordon
Jones, when ae asked Osborne to sign, Osborne said
his partner in Long Beach had advised him not to
sign. Jones explained the agreement had been reached
with the Association, Respondent was a member of
the Association, and the agreement had been negotiated
in good faith on behalf of the employer-members. Os-
borne said Respondent had resigned from the Associa-
tion. Jones said he had not been so notified and he
would check with the Association.
After contacting the Association and learning that
Respondent’s letter of resignation was untimely, Gordon
again requested that Osborne sign the agreement. Os-
borne again refused. Osborne admits that he refused
to sign the agreement. He testified that in August or
September Jones telephoned him and requested that
Respondent sign a new agreement. Osborne said he
was concerned that there had been some wage increases.
Jones said there had been. Osborne said he would
not sign the agreement if there had been wage increases.
Jones said Respondent was bound by the agreement
because of the Association. About a week later Jones
again telephoned Osborne. According to Osborne, Jones
expressed concern because “he wanted me as a member
of Local 509.” Osborne said his position had not
a oe
changed, he felt the wages were too high and he
did not want to sign. Jones said that as a member
of SMACNA Osborne had to sign, he had no choice.
Jones then said “I’m really sorry that you don’t want
to be a member, can I ask why.” Osborne replied,
“it’s because the wages are too high.” Jones then said
he would have to check but it was his understanding
that Respondent had no choice, that Respondent was
a member of the Association and would have to sign.
Osborne further testified that in May 1976 he asked
Jones what he thought the new contract terms would
be. Jones said he did not expect much change, that
he would try and get the membership to accept a
contract much the same as the expiring contract. Os-
borne said he did not think the market would bear
higher wages, that he knew Respondent could not.
Jones said he was certain wages would not be increased
significantly. Osborne denies méntioning a partner in
Long Beach or even having a partner in Long Beach.
Respondent ceased making payments to the health
and welfare and pension funds in April 1976, allegedly
because of clerical problems. He made no payments
under the 1976-1978 contract. :
B. Conclusion
It is clear that the Association is a multi-employer
bargaining association. Its bylaws indicate mutual assent
of its members to be bound by a collective-bargaining
agreement resulting from multi-employer bargaining.
The record establishes a history of bargaining in a
multi-employer bargaining unit since at least 1965,
and there have been successive collective-bargaining
agreements between the Union and the Association,
on behalf of its members, since at least 1965. These
a
agreements cover all employees of the employers
who perform work within the jurisdiction of Local
509, which is specifically set forth in the standard
agreement and clarified in the addenda. They contain
union-security provisions requiring eniployees to join
the Union and provisions requiring the employers to
use the hiring hall administered by the Union. Thus
employees may work for various employers within the
bargaining group. The agreements provide common
coverage for employees under health, welfare and pen-
sion plans to which the employers make contributions
and provide for uniform wage scales and working condi-
tions. There is no evidence that majority has ever
beer questioned and no evidence to overcome a pre-
sumption of majority.
In these circumstances, I find that all employees
employed by the employer-members of Inland Air Con-
ditioning and Refrigeration Contractors Association,
Inc., in the manufacture, fabrication, assembling, han-
dling, erection, installation, dismantling, conditioning,
adjustment, alteration, repairing, servicing and main«e-
nance of all types of material and equipment used in
the heating, cooling and air conditioning industry, kitch-
en equipment and cafeteria equipment industry, metal
building industry, and all other sheet metal divisions,
including all detailing used for shop fabricating, field
erection and air balancing, constitute a unit appropriate
for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act. I further find
that, since at least 1965, Local 509 has been the
exclusive majority representative for the purposes of
collective bargaining of the employees in the above-
described unit. Wayne Electric Inc.; and Electric Instal-
lation and Services, 226 NLRB No. 59.
aon} | ae
Respondent argues, however, that it never became
part of the multi-employer bargaining unit and thus
no presumption of majority status flows from the col-
lective-bargaining agreement between the Association
and Local 509. Specifically, Respondent argues that
it did not know that by joining the Association, it
was becoming a part of a multi-employer unit. I find
this argument unpersuasive. The application for mem-
bership clearly states that Respondent agrees to become
a party to and be bound by existing labor agreements
between the Association and the Union, designates
the Association as Respondent’s bargaining representa-
tive and authorizes the Association to execute any
labor agreements which are to be binding upon the
members of the Association in accordance with the
Association bylaws.
The bylaws specifically state that the Association
has authority to negotiate and execute agreements which
bind its members jointly and severally, that members
are expressly bound to take joint and united action
in dealing with any labor organization, and that mem-
bers shall not negotiate or deal separately with, or
sign any agreement individually with any union with
which the Association bargains in behalf of its mem-
bers. This evinces an unequivocal intention to be bound
in collective bargaining by group rather than individual
action. Council of Bagel and Bialy Bakeries and its
Employer Members, 175 NLRB 902, 903.
I do not credit Osborne’s testimony that he did
not read the application before signing it. It is a
one-page document and the significant portion is con-
tained in the top half page just above Osborne’s signa-
ture. Nor do I credit Osborne’s testimony that he
did not read the bylaws. The application gave clear
= em
notice that the bylaws contained something affecting
Respondent’s collective-bargaining obligations. Further-
more, it is irrelevant if he chose not to read the bylaws,
he is bound by the agreement he signed. There is
no evidence of any circumstances that might relieve
him of this obligation. I have carefully considered
the cases cited by Respondent as to intent and find
them inapposite. Those cases involved situations where
there was no actual expression of intent and the Board
looked to a course of conduct to determine whether
the employer had evinced an intent to be bound by
multi-employer bargaining.
Respondent also argues that it only joined the As-
sociation to obtain certain specification manuals. This
is refuted by the evidence. Thus, by letter dated Oc-
tober 22, 1975, Osborne sought counsel from the As-
socation concerning a potential grievance with Local
108.
Respondent also argues that its contract with the
Union was a Section 8(f) contract and that the Union
did not represent a majority of its employees at the
time of signing the cdontract, at the time of joining
the Association, nor at the time of the refusal to
sign the 1976 agreement. It is true that the Union
represented none of Respondent’s employees on Sep-
tember 9, 1974, when Respondent signed a collective-
bargaining agreement with the Union. However, such
a contract in the building and construction industry
is valid under Section 8(f) of the Act. Although it
is well established that a contract entered into pursuant
to Section 8(f) does not of itself raise a presumption
of majority status, R. J. Smith Construction Co., Inc.,
191 NLRB 693, once a majority is in fact achieved,
the normal presumption of majority that flows from
=
a collective-bargaining agreement applies thereto. David
F. Irvin and James B. McKelvy, partners, d/b/a The
Irvin-McKelvy Company, 194 NLRB 52; Fenix & Scis-
son, Inc., et al., 207 NLRB 752; Williams Enterprises,
Inc., 212 NLRB 880. The record establishes that in
November 1974 a majority of the employees employed
by Respondent were members of the Union. Thereafter,
a presumption of majority flowed from the union con-
tract which has not been rebutted. Mere lack of mem-
bership, turnover or expansion of unit is not sufficient
to rebut the presumption.
This contract was still in force at the time Respond-
ent joined the Association. Since the Union was then
the majority representative of Respondent’s employees,
Respondent was free to merge them into a multi-
employer unit.’ I have found above that the Respond-
ent, by joining the Association, evinced an intent to
pursue a course of group bargaining. By the action
of -the Association Board of Directors, the employer-
members accepted Respondent as part of the multi-
employer bargaining unit. Further, the list of members
provided by the Association to the Union in June
during the course of negotiations listed Respondent
as a member to be bound by the multi-employer bar-
gaining. The Union raised no objections. Accordingly,
I reject Respondent’s argument that Local 509 did
not consent to Respondent’s inclusion in the multi-
employer unit.
Upon the above, I find that Respondent’s employees
were effectively merged into the multi-employer bar-
gaining unit. I further find that Respondent did not
71 have considered, and reject, as unsupported by the record,
Respondent’s argument that the September 9, 1974, agreement
was a “members only” contract.
sant
timely withdraw from such unit. The association bylaws
preclude resignation during a period commencing 4
months prior to and ending 4 months after the anni-
versary date of the collective-bargaining agreement. Re-
spondent attempted to resign during this period. Fur-
ther, it is established Board law that an employer
may not withdraw from a multi-employer bargaining
unit, except on mutual consent, once negotiations have
commenced. Rerail Associates, Inc., 126 NLRB 388,
393-395. Here no mutual consent is involved and Re-
spondent’s letter of resignation is dated July 14, after
negotiations had commenced.
Respondent alternatively argues that it was privileged
to withdraw from the multi-employer bargaining unit
because an impasse had been reached during the ne-
gotations and there was a strike threat prior thereto.
N.L.R.B. v. Hi-Way Billboards, Inc., 500 F.2d 181
(C.A. 5); Fairmont Foods Company v. N.L.R.B., 471
F.2d 1170 (C.A. 8). Neither Board law nor the
facts support this argument. There was no impasse.
The parties had agreed upon a binding method of
resolving negotiation disputes—submission to the Na-
tional Joint Adjustment Board. An impasse would de-
velop only if the National Joint Adjustment Board
deadlocked, which did not occur. As to the strike
threat, the Union merely gave notice to the employers
‘that its membership had voted to strike in the event
of a National Joint Adjustment Board deadlock. The
record reveals no special circumstances which would
justify an otherwise untimely withdrawal.
Upon the above, I conclude that Respondent is bound
by the outcome of the multi-employer bargaining. Ac-
cordingly, I find that Respondent violated Section 8(a)
(1) and (5) of the Act by its refusal to execute
and abide by the terms and conditions of the 1976
agreement negotiated between the Association and the
Union.
Conclusions of Law
1. The Association, and its employer-members, in-
cluding Respondent, are employers engaged in com-
merce within the meaning of Section 2(2), (6) and
(7) of the Act.
2. Local 509 is a labor organization within the
meaning of Section 2(5) of the Act.
3. All employees employed by the employer-mem-
bers of the Association in the manufacture, fabrica-
tion, assembling, handling, erection, installation, dis-
mantling, conditioning, adjustment, alteration, repair-
ing, servicing and maintenance of all types of material
and equipment used in the heating, cooling and air
conditioning industry, kitchen equipment and cafeteria
equipment industry, metal building industry, and all
other sheet metal divisions, including all detailing used
for shop fabricating, field erection and air balancing,
constitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b)
of the Act.
4. At all times material herein, Local 509 has
been, and, is now, the exclusive representative of all
employees in the aforesaid appropriate unit for the
purpose of collective bargaining within the meaning
of Section 9(a) of the Act.
5. By failing and refusing to sign,* the 1976
collective-bargaining agreement between the Associa-
8Although the Association signs the agreement on_ behalf
of its members, it has been the practice for each member
to also sign the agreement. Further, although unclear, it appears
(This footnote is continued on next page)
nr” ela
tion, on behalf of its members, and Local 509 covering
employees of Respondent in the above-described multi-
employer bargaining unit; and by failing and refusing
to abide by the terms and conditions of said collective-
bargaining agreement, Respondent has engaged in, and
is engaging in, unfair labor practices within the meaning
of Section 8(a)(5) and (1) of the Act.
6. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7)
of the Act.
The Remedy
Having found that Respondent has engaged in certain
unfair labor practices in violation of Section 8(a)(1)
and (5) of the Act, I shall recommend that Respondent
be ordered to cease and desist therefrom and from
like or related unfair labor practices and take certain
affirmative action designed to effectuate the policies
of the Act.
I have found that Respondent has violated Section
8(a)(1) and (5) of the Act by refusing to sign
the 1976 collective-bargaining agreement negotiated be-
tween the Association on behalf of its members, and
Local 509, and by failing and refusing to abide by
the terms and coneitions of said agreement. I shall
therefore recommend that Respondent sign such agree-
ment and that it comply with the terms and conditions
of said agreement, both retroactively and for the balance
of its term, including payments to the appropriate
source of the health and welfare and pension fund
that section 48 of the addenda may contemplate that individual
employer-members sign the contract. That section provides inter
alia: “This contract is signed by the Inland Air Conditioning
& Refrigeration Contractors Association, Inc., on behalf of
its members as per the list submitted to the Union, and by
the Employer.”
ae, Weak
payments provided for therein, and making employees
whole for any loss of wages or benefits suffered as
a result of Respondent’s refusal to abide by the terms
of such agreement.
[The remaining portions of the Administrative Law
Judge’s Remedy have been omitted. |
Upon the basis of the foregoing findings of fact,
conclusions of law and the entire record in this proceed-
ing, and pursuant to Section 10(c) of the National
Labor Relations Act, as amended, I hereby recommend
the following:™*
ORDER
Respondent, Authorized Air Conditioning Co., its
officers, agents, successors and assigns, shall:
1. Cease and desist from:
(a) Refusing to sign and abide by the terms and
conditions of the collective-bargaining agreement en-
tered into by Inland Air Conditioning and Refrigeration
Contractors Association Inc. and the Union in August
1976, effective by its terms from August 1, 1976,
thorugh July 31, 1978.
2. Take the following affirmative action which will
effectuate the policies of the Act:
(a) Recognize and bargain with the Union for its
employees in the following appropriate unit, as required
by the above-described contract:
All employees employed by the employer-members
of Inland Air Conditioning and Refrigeration Con-
*4In the event no exceptions are filed as provided by Section
102.46 of the Rules and Regulations of the National Labor
Relations Board, the findings, conclusions, and recommended
Order herein shall, as provided in Section 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.
a
tractors Association Inc., in the manufacture, fab-
rication, assembling, handling, erection, installa-
tion, dismantling, conditioning, adjustment, altera-
tion, repairing, servicings and maintenance of all
types of material and equipment used in the heat-
ing, cooling and air conditioning industry, kitchen
equipment and cafeteria equipment industry, metal
building industry, and all other sheet metal di-
visions, including all detailing used for shop fabri-
cating, field erection, and air balancing.
(b) Forthwith sign the collective-bargaining agree-
ment entered into by Inland Air Conditioning and
Refrigeration Contractors Association Inc. and the
Union in August 1976, effective by its terms from
August 1, 1976 through July 31, 1978.
(c) Make whole all its employees in the appropriate
unit defined above, for any loss of wages and benefits
they incurred because of Respondent’s failure and re-
fusal to abide by the terms and conditions of the
above-described contract in the manner set forth herein
in the section entitled, Remedy.
(d) Comply with the terms and conditions of the
above-described agreement both retroactively and for
the balance of its term, including making to the appro-
priate sources the health and welfare and pension fund
payments provided for therein, with interest thereon
as provided in the Remedy section here.
(e) Preserve and, upon request, make available to
the Board or its agents for examination and copying
all payroll and other records necessary to analyze and
compute the amounts of backpay due under the terms
of this Order.
me, BR
(f) Post at its facilities in Pomona, California,
copies of the attached notice marked “Appendix.”
Copies of said notice, on forms provided by the Region-
al Director for Region 21, after being duly signed
by Respondent’s representative, shall be posted by Re-
spondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said notices
are not altered, defaced, or covered by any other
material.
(g) Notify the Regional Director for Region 21,
in writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
Dated: July 29, 1977.
/s/ Earldean V.S. Robbins
Earldean V.S. Robbins
Administrative Law Judge
*5In the event the Board’s 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
PURSUANT TO A JUDGMENT OF THE UNITED STATES
COURT OF APPEALS ENFORCING AN ORDER OF THE
NATIONAL LABOR RELATIONS BOARD.”
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.