Appendix — Road Sprinkler Fitters Local Union No. 669 v. American Automatic Sprinkler Systems, Inc.

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Supreme Court, US.

2) ; FILED

98 1988 JUN 1 0 1999

No.

a rrr tt rn

IN THE

Supreme Court of the United States

OCTOBER TERM, 1998

ROAD SPRINKLER FITTERS LOCAL UNION NO. 669, UNITED

ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE

PLUMBING AND PIPE FITTING INDUSTRY OF THE UNITED

STATES AND CANADA, A.F.L.-C.L.O.,

Petitioner,

Vv.

AMERICAN AUTOMATIC SPRINKER SYSTEMS, INC.

AND

NATIONAL LABOR RELATIONS BOARD,

Respondents.

Petition for a Writ of Certiorari to the

United States Court of Appeals

For the Fourth Circuit

APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI

WILLIAM W. OSBORNE, JR.,

(Counsel of Record)

MARGUERITE GRAF

One Thomas Circle, N.W.

Washington, D.C. 20005

(202) 955-3800

LAURENCE GOLD,

1000 Connecticut Avenue, N.W.

Washington, D.C. 20036

ENOL ALONE ERNE OLEEL NET ALEC LLL ALO LED ELL LLL AE LILLIE LA IOS LAL

9 eX

Le. aaa

INDEX OF APPENDICES

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APPENDIX A

UNITED STATES COURT OF APPEALS FOR THE

FOURTH CIRCUIT

Nos. 97-1821; 97-2014

AMERICAN AUTOMATIC SPRINKLER SYSTEMS,

INCORPORATED, Petitioner,

Vv.

NATIONAL LABOR RELATIONS BOARD, Respondent,

and

ROAD SPRINKLER FITTERS LOCAL UNION NO. 669,

U.A., AFL-CIO, Intervenor.

NATIONAL LABOR RELATIONS BOARD, Petitioner,

AMERICAN AUTOMATIC SPRINKLER SYSTEMS,

INCORPORATED, Respondent,

and

ROAD SPRINKLER FITTERS LOCAL UNION NO. 669,

U.A., AFL-CIO, Intervenor.

—— —_—.-- -

On Petition for Review and Cross-Application for

Enforcement of an Order of the National Labor Relations

Board

Argued September 23, 1998 Decided December 17, 1998

JUDGES: Before WIDENER and LUTTIG, Circuit Judges, and

MAGILL, Senior Circuit Judge of the United States Court of

Appeals for the Eighth Circuit, sitting by designation. Judge

Luttig wrote the opinion, in which Judge Widener and Senior

Judge Magill joined.

COUNSEL: ARGUED: Lawrence Edward Dube, Jr., DUBE &

GOODGAL, P.C., Baltimore, Maryland, for American

Automatic.

Steven B. Goldstein, NATIONAL LABOR RELATIONS

BOARD, Washington, D.C., for Board. William W. Osborne,

Jr., OSBORNE LAW OFFICES, P.C., Washington, D.C., for

Intervenor.

ON BRIEF: Frederick L. Feinstein, General Counsel, Linda

Sher, Associate General Counsel, Aileen A. Armstrong, Deputy

Associate General Counsel, Margaret Ann Gaines, Supervisory

Attorney, NATIONAL LABOR RELATIONS BOARD,

Washington, D.C., for Board. Marc D. Keffer, OSBORNE

LAW OFFICES, P.C., Washington, D.C., for Intervenor.

LUTTIG, Circuit Judge:

Petitioner American Automatic Sprinkler Systems, Inc.,

petitions for review of a decision and order of the National

Labor Relations Board concluding that American violated

section 8(a)(1), (a)(3), and (a)(5) of the National Labor

Relations Act, 29 U.S.C. section 158(a)(1), (a)(3), and (a)(5),

by, inter alia, failing to bargain in good faith with the union

locals upon the expiration of collective-bargaining agreements,

unilaterally changing working conditions, and discriminating

against certain individuals on the basis of union membership.

The NLRB cross-petitions for enforcement of its decision and

order. For the reasons that follow, we conclude that American

did not have a legal obligation to negotiate with or recognize its

collective-bargaining partners upon the expiration of their

respective agreements, and thus did not violate section 8(a)(5)

or (a)(l1) by unilaterally changing the conditions of

employment. However, because we conclude that the Board's

findings of unlawful discrimination against union members in

violation of section 8(a)(3) and (a)(1) are supported by

substantial evidence in the record as a whole, we enforce the

Board's order as to these findings. Accordingly, we grant in

part and deny in part American's petition for review, grant in

part and deny in part the Board's cross-petition for enforcement

of its order, and remand the case to the NLRB for entry of an

appropriate remedial order.

American is an Owing Mills, Maryland, firm engaged in

the fabrication, installation, and servicing of fire sprinkler

systems. Road Sprinkler Fitters Local Union No. 669, U.A.,

A.F.L.-C.LO. is a sprinkler fitters' union with near nationwide

geographic jurisdiction. Road Sprinkler Fitters Local Union

No. 536 has jurisdiction over Baltimore, Maryland, and

surrounding areas.

Since it began operations in 1974, American has been a

party to successive collective-bargaining agreements with

Local 669 and Local 536 by virtue of its membership in a

multiemployer bargaining association, the National Fire

Sprinkler Association ("NFSA" or "the Association"). These

negotiated collective-bargaining agreements established the

terms and conditions of employment for American's

journeymen and apprentice sprinkler fitter employees employed

in the respective territorial jurisdictions of Locals 669 and 536.

In 1987, American signed a form recognition agreement

acknowledging Local 669 as the exclusive bargaining

representative of its sprinkler fitter employees working in Local

669's jurisdiction. The agreement, which was accompanied by

fringe benefit forms demonstrating majority union membership,

stated:

[American] . . . has, on the basis of objective

and reliable information, confirmed that a clear

majority of the sprinkler fitters in its employ

have designated, are members of, and are

represented by . . . Local 669 . . . for purposes

of collective bargaining. [American] therefore

unconditionally acknowledges and confirms

that Local 669 is the exclusive bargaining

representative of its sprinkler fitter employees

pursuant to Section 9(a) of the National Labor

Relations Act.

American signed another such recognition agreement with

Local 669 in 1988 that stated as follows:

[American] hereby freely and unequivocally

acknowledges that it has verified the Union's

status as the exclusive bar gaining

representative of its employees pursuant to

Section 9(a) of the National Labor Relations

Act.

And, in 1991, NFSA, which was then American's bargaining

representative, negotiated a collective-bargaining agreement

with Local 669 that included a similar recognition clause. That

agreement took effect April 1, 1991, and expired on March 31,

1994. NFSA also negotiated a collective-bargaining agreement

on behalf of its members, including American, with Local 536.

This agreement, which was effective from June 1, 1991, to May

31, 1994, included an identical recognition clause to that in the

Local 669 agreement:

The National Fire Sprinkler Association for and

on behalf of its contractor members .. .

recognizes [Local 536] as the sole and exclusive

bargaining representative for all journey men

sprinkler fitters and apprentices in the employ

of said employers [working in the City of

Baltimore and its 10 sur rounding miles}, . . .

pursuant to section 9(a) of the National Labor

Relations Act.

In late January, 1994, American notified both Local 669 and

536 that it was withdrawing bargaining authority from the

NFSA and intended thereafter to bargain independently with

the unions. Within days, Local 536 requested that the Company

identify dates and times to bargain. The Company never

responded to this initial communication or to three telephone

messages to the same effect.

The Company eventually met with the Local on May 31,

1994, the day the NFSA agreement expired. At that time,

however, the Company offered no proposal and filed the

Local's proposal without reviewing it. The Company's

Vice-President Mike McCusker submitted its first proposal to

the Local on July 25, 1994. The proposal was less than a page

long in its entirety, and, in addition to drastically cutting wages

and benefits, it would have effectively eliminated union

representation. The proposal included no recognition clause, no

description of the bargaining unit, no contract term, and no

provisions addressing dues check-off, union security,

grievances and arbitration, overtime, or lunch time, holiday or

vacation pay. The proposal required employees to furnish all of

their own tools, irrespective of cost, created a new non-unit

position of "helper," and eliminated the union apprenticeship

program and territorial jurisdiction.

After three brief "bargaining sessions" in which the

Company expressed no willingness to deviate :_ any way from

its initial proposal, McCusker informed the union negotiating

representative on August 9, 1994, that the parties were at an

"impasse" because the union had rejected its “final offer."

Further, McCusker indicated that the Company would begin

implementing the terms of its proposal on August 11. When the

union stated its wish to continue negotiations, the Company did

not respond, and instead began implementing the terms of its

proposal through negotiations with individual employees.

McCusker's negotiations with Local 669 proceeded in

similar fashion. There were three negotiating sessions in which

the Company expressed no willingness to compromise on its

substantially identical proposal or even consider the Local's

proposal. As occurred with Local 536, the sessions ended with

the Company's abrupt declaration of impasse and its rejection

of further entreaties by the union.

In the weeks following American's declarations of impasse,

the Company required all employees to submit individual

applications for work and entered into individualized

negotiations. Executives of the Company told employees and

union members that the Company was going "nonunion," and

suggested that it would be able to give better offers to

individuals who resigned their union cards. During this time

period, one of the general contractors for whom the Company

was working as a subcontractor complained repeatedly that the

Company was behind schedule due to labor shortages.

As a consequence of the Company's actions, Locals 669 and

536 and their individual members filed charges with the

Regional Director of the NLRB, who in turn issued a series of

complaints against the Company. The Administrative Law

Judge to whom the complaints were referred found that the

Company had violated section 8(a)(5) and (a)(1) of the NLRA

by bargaining in bad faith with the Locals and prematurely

declaring an impasse, bypassing both Locals and dealing

directly with individual employees, and unilaterally making

changes in mandatory subjects of bargaining and the scope of

the bargaining units.' The ALJ further found that the Company

' Section 8(a), 29 U.S.C. section 158(a), provides, in relevant

part, as follows:

It shall be an unfair labor practice for an employer--

(1) to interfere with, restrain, or coerce employees in the exercise of the

rights guaranteed in section 157 of this title;

(3) by discrimination in regard to hire or tenure of employment or any

had violated section 8(a)(1) of the NLRA by telling employees

it was going "nonunion," telling an employee that he could not

work as a foreman because of his father’s union affiliation, and

impliedly promising an employee a wage increase if he

resigned his union membership card. Finally, the ALJ found

that the Company had violated section 8(a)(3) and (a)(1) of the

Act by refusing to hire or reinstate, discharging and

constructively discharging, and imposing onerous working

conditions on, members of both Locals.

On appeal, the Board affirmed the conclusions of the ALJ,

finding additional violations with respect to the treatment of

certain individual employees. The Board ordered the Company

to bargain with both Locals, rescind the unilateral changes,

make employees and Locals’ funds whole for any losses

directly attributable to the Company's unilateral changes, offer

certain individuals immediate employment in their former jobs,

or to the jobs to which they would have been assigned, and

make these individuals whole for any losses suffered as a result

of the discrimination against them.

American petitions for review of the Board's findings and

order, and the Board cross-petitions for enforcement of its

order.

Il.

term or condition of employment to encourage or discourage

membership in any labor organization. . ..

(5) to refuse to bargain collectively with the representatives of his

employees, subject to the provisions of section 159(a) of this title.

We consider first American's contention that it was not

under a legal obligation to bargain collectively with Locals 669

and 536 and thus could not have violated section 8(a)(5) and

(a)(1) of the Act by bargaining in bad faith and making

unilateral changes in the conditions of employment.

An employer is obligated under section 8(a)(5) to bargain

collectively with a union that has been "designated and selected

for the purposes of collective bargaining by the majority of

employees," pursuant to section 9(a) of the Act, 29 U.S.C. §

159(a). An employer who is party to an agreement with a union

"designated and selected" in accordance with section 9(a) may

not repudiate the contract during its term and may not refuse to

bargain with the union following expiration of the contract,

unless the employer proves either that a majority of its

employees did not in fact support the union or that it doubted

in good faith the union's majority status. NLRB v. Curtin

Matheson Scientific, Inc., 494 U.S. 775, 778, 108 L. Ed. 2d

801, 110 S. Ct. 1542 (1990); NLRB v. Gissel Packing Co., 395

U.S. 575, 597 n.11, 23 L. Ed. 2d 547, 89 S. Ct. 1918 (1969).

Conversely, in the usual case it is an unfair labor practice under

section 8(a)(1) and (2) for an employer, and section 8(b)(1)(A)

for a union, to enter into a collective-bargaining agreement

when only a minority of employees has "designated and

selected" the union as its bargaining representative. See NLRB

v. Local 103, Int'l Ass'n of Bridge, Structural and Ornamental

Iron Workers (Higdon), 434 U.S. 335, 344, 54 L. Ed. 2d 586,

98 S. Ct. 651 (1978) ("There could be no clearer abridgment of

section 7 of the Act, assuring employees the right ‘to bargain -

collectively through representatives of their own choosing’ or

‘to refrain from' such activity than to grant exclusive bargaining

status to an agency selected by a minority of its employees,

thereby impressing that agent upon the nonconsenting

10a

majority." (internal quotations and citation omitted)); Garment

Workers' v. NLRB, 366 U.S. 731, 737, 6 L. Ed. 2d 762, 81 S.

Ct. 1603 (1961) (same).

Section 8(f) of the NLRA, 29 U.S.C. section 158(f), created

an exception to this general prohibition. Enacted by Congress

in 1959 to address problems unique to the building and

construction trades, section 8(f) allows construction industry

employers and unions to enter into "prehire" agreements before

a majority of employees has approved the union as its

bargaining representative.’

In John Deklewa & Sons, Inc., 282 N.L.R.B. 1375 (1987),

enforced sub nom. /nternational Ass'n of Bridge, Structural &

Ornamental Iron Workers, Local v. NLRB, 843 F.2d 770 (3rd

Cir. 1988), the Board substantially modified its then-existing

interpretation of section 8(f) and introduced new rules

2 Section 8(f) provides in relevant part:

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 covering employees engaged

(or who, upon their employment, will be engaged) in the building and

construction industry with a labor organization of which building and

construction employees are members . . . because (1) the majority status

of such labor organization has not been established under the provisions

of section 159 of this title prior to the making of such agreement, or (2)

such agreement requires as a condition of employment, member ship in

such labor organization after the seventh day following the beginning of

such employment or the effective date of the agreement, whichever is

later, . . .: Provided, That nothing in this subsection shall set aside the

final proviso to subsection (a)(3) of this section: 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 159(c)

or 159%e) of this title.

lla

governing the relationship between parties to an &(f)

collective-bargaining agreement. Prior to Deklewa, the rights

of employers and unions in 8(f) relationships were governed by

the Board's decision in R.J. Smith Construction Co., 191

N.L.R.B. 693 (1971), enforcement denied sub nom. Local No.

150, Int'l Union of Operating Eng'rs v. NLRB, 156 U.S. App.

D.C. 294, 480 F.2d 1186 (D.C. Cir. 1973), and the associated

"conversion doctrine."

Pursuant to R.J. Smith, an 8(f) agreement "conferred no

presumption of majority status" on the signatory union and

could be repudiated at any time and for any reason by either

party. Deklewa, 282 N.L.R.B. at 1378. Subsequent cases

established, in reliance upon a suggestion by the Board in R.J.

Smith that such might occur, that a conversion of an 8(f)

relationship into a standard 9a) relationship could be

accomplished by a showing that the union had at some point

during the term of the contract enjoyed majority support among

an appropriate unit of the employer's employees. /d. This

majority support, the reasoning went, could be established by

proof of any of a number of objective evidentiary factors, the

existence of which was typically quite burdensome to litigate.

Id. Once the Board determined that conversion had occurred,

the union was accorded "immediate and complete 9(a) status,

and any collective-bargaining agreement in effect acquired the

status of a collective-bargaining agreement enforceable before

the Board.” 282 N.L.R.B. at 1379. As with any other 9(a)

relationship under the Act, the union would also enjoy a

rebuttable presumption of majority status at the expiration of

the contract, and the employer would be legally obligated under

the NLRA to engage in good faith collective bargaining. /d.

In Deklewa, the Board abandoned R.J. Smith and the

conversion doctrine, concluding that this analytical framework

12a

did "not fully square with either 8(f)'s legislative history" or

text, "inadequately served the fundamental statutory objectives

of employee free choice and labor relations stability,"] id. at

1380, and "entailed evidentiary determinations that are inexact,

impractical, and generally insufficient to support the

conclusions they purport to demonstrate." /d. at 1384. In its

place, the Board established a new framework for 8(f)

relationships. The Board declared that an 8(f) agreement is

binding and enforceable during the duration of the contract, and

cannot be unilaterally repudiated by either party to the

agreement, id. at 1385, but that, upon the contract's expiration,

the signatory union will not enjoy a presumption of majority

and either party may repudiate the 8(f) relationship, id. at 1386.

Most significantly for our purposes today, the Board also

announced that 8(f) representatives would no longer be able to

establish "conversion" to 9(a) status except by means of a

Board-certified election, id. at 1383-85, or voluntary

recognition based upon a clear showing of majority support.

Id. at 1387 n.53.

Although the Supreme Court has yet to consider the Deklewa

rules, a majority of the Courts of Appeals has done so and each,

with the exception of our court, has ultimately adopted the

Deklewa analytical framework in its entirety.°

* The Courts of Appeals for the First, Third, Seventh, Eighth,

Ninth, Tenth, and Eleventh Circuits have all adopted the Deklewa

decision. See NLRB v. Triple A Fire Protection, Inc., 136 F.3d 727, 735

(11th Cir. 1998); NLRB v. Viola Indus. Elevator Div., Inc., 979 F.2d

1384, 1393-95 (10th Cir.) (en banc); C.E.K. Indus. Mechanical

Contractors, Inc. v. NLRB, 921 F.2d 350, 357 (1st Cir. 1990); NLRB v.

Bufco Corp., 899 F.2d 608, 609, 611 (7th Cir. 1990); NLRB v. W.L.

Miller Co., 871 F.2d 745, 748 (8th Cir. 1989); Mesa Verde Constr. Co.

v. Northern California Dist. Council of Laborers, 861 F.2d 1124,

1129-34 (9th Cir. 1988) (en banc); International Ass'n of Bridge,

13a

In this court's only previous consideration of these "new"

rules, we held last year, in Industrial Turnaround v. NLRB, 115

F.3d 248, 254 (4th Cir. 1997), that we were "precluded from

adopting Deklewa as the law of the Circuit because it stands in

conflict with Clark v. Ryan, 818 F.2d 1102 (4th Cir. 1987), a

prior panel opinion of this court." The question before us in

Industrial Turnaround, however, was whether Deklewa

effectively overruled the law of this circuit, established in

Clark, that "a pre-hire agreement may be repudiated at any time

by either party prior to the union's achievement of majority

status." /ndustrial Turnaround, 115 F.3d at 254. Both Clark

and Jim McNeff, Inc. v. Todd, 461 U.S. 260, 75 L. Ed. 2d 830,

103 S. Ct. 1753 (1983), the Supreme Court decision upon

which Clark was based, likewise concluded only that "[a]

section 8(f) prehire agreement is subject to repudiation until the

union establishes majority status." McNeff, 461 U.S. at 271.

None of these three decisions addressed the conversion doctrine

at all, or, more broadly, the question of how an 8(f) union can

obtain 9(a) representative status under the National Labor

Relations Act. This question is thus one of first impression for

this court. Accordingly, we are free to adopt the Board's

construction of the Act on this score, provided it is reasonable.

Holly Farms Corp. v. N.L.R.B., 517 U.S. 392 at 409, 134 L. Ed.

2d 593, 116 S. Ct. 1396.4

Structural & Ornamental Iron Workers v. NLRB, 843 F.2d 770 (3rd Cir.

1988).

* We recognize that by adhering to our refusal in /ndustrial

Turnaround to adopt the Board's position regarding unilateral

repudiation, while at the same time embracing the Board's abandonment

of the conversion doctrine, we would establish as the law of this Circuit a

hybrid approach considered and rejected by the Board in Deklewa.

Nonetheless, as we have explained, we are precluded from revisiting as a

l4a

The Board abandoned the conversion doctrine because it

concluded that the rule fostered neither industry stability nor

employee free choice. The Board was correct that labor

relations stability in the construction industry was one of the

primary objectives of the 1959 amendments to the NLRA. See

McNeff, 461 U.S. at 266 (reviewing legislative history of the

1959 Amendments and concluding that Congress in enacting

section 8(f) sought to address instability created by the

"uniquely temporary, transitory and sometimes seasonal nature

of much of the employment in the construction industry"); see

also Higdon, 434 U.S. at 348-49 (discussing same history and

concluding that section 8(f) "greatly convenienced unions and

employers" by "accommodating the special circumstances in

the construction industry"). Cf. Colgate-Palmolive-Peet Co. v.

NLRB, 338 U.S. 355, 362, 94 L. Ed. 161, 70 S. Ct. 166 (1949)

("To achieve stability of labor relations was the primary

objective of Congress in enacting the National Labor Relations

Act."). We believe that it was self-evidently reasonable for the

Board to conclude in 1987, after more than fifteen years of

experience attempting to implement and enforce the R.J. Smith

panel the Circuit's established precedent on the repudiation issue. And, in

any event, as counsel for the Board explicitly stated at oral argument, this

case does not require reconsideration of the rules governing an

employer's unilateral repudiation of an 8(f) agreement during its term

because the Board has not alleged any such action on the part of the

Company. Thus, in this case we need only determine, as counsel

persuasively urged, whether the Board's conclusions in Dek/ewa as to the

means by which an 8(f) union can attain 9(a) status, thereby entitling it to

"all the rights of a majority representative, including a presumption of

majority support upon expiration of a collective bargaining agreement

and the correlative duty to bargain with respect to a new contract," NLRB

v. Triple A Fire Protection, Inc., 136 F.3d 727, 731 (11th Cir. 1998), are

permissible.

15a

rules, that the statutory aim of labor relations stability was

frustrated by a rule pursuant to which "an effective conversion

[could] take place, without notice, at virtually any time after the

signing of an 8(f) agreement, but where it may take years of

fractious litigation to establish whether conversion actually did

occur." Deklewa, 282 N.L.R.B. at 1383. See also Mesa Verde

Constr. Co. v. Northern California Dist. Council of Laborers,

861 F.2d at 1134 ("The [conversion] doctrine does not further

industry stability. Its complex nature inevitably fosters

litigation . . . to establish whether conversion ever took place,

among whom, and at what time.").

At the same time, and perhaps most importantly, we believe

that the Board also reasonably concluded that the conversion

doctrine impeded the often competing statutory aim of

protecting employee free choice by allowing proof of union

membership to serve as an evidentiary proxy for union support,

even where the very 8(f) agreement sought to be converted

required union membership as a condition of employment. /d.

at 1127. Cf. Authorized Air Conditioning Co., Inc. v. NLRB,

606 F.2d 899, 906 (9th Cir. 1979) ("It is well established that

union membership is not always an accurate barometer of

union support."). The text and statutory framework of the

NLRA offer considerable support for the conclusion that the

conversion doctrine was simply incompatible with the

legislative goal of preserving employee free choice. While the

Amendments to the Act were undoubtedly motivated, in large

part, by Congress' desire to ensure stability in the construction

industry, Congress was nevertheless careful in enacting section

8(f) to preserve its longstanding statutory policy of advancing

employee free choice. Cf Higdon, 434 U.S. at 346 ("As for

section 8(b)(7), which, along with section 8(f), was added in

1959, its major purpose was to implement one of the Act's

principal goals -- to ensure that employees were free to make

l6a

an uncoerced choice of bargaining agent."). As a result,

Congress included in section 8(f) a proviso, the subsection's

second, specifying that an 8(f) agreement may not act as a bar

to employees' nights under section 9(c) and 9(e) to petition to

"reject or change their collective-bargaining representative."*

Deklewa, at 10. Cf. Higdon, 434 U.S. at 344 (explaining the

purpose of the second proviso by noting that although

"privileging unions and employers to execute and observe

pre-hire agreements in an effort to accommodate the special

circumstances in the construction industry may have greatly

convenienced unions and employers, . . . in no sense can it be

portrayed as an expression of the employees' organizational

wishes"). The conversion doctrine flouted the legislative

purpose -- and language -- of the second proviso by allowing

even instantaneous conversions (i.e., where the signing of an

8(f) agreement was accompanied by an existing majority

employee complement) to result in full 9(a) status and the

attendant "contract bar" to election challenge. See NLRB v.

Dominick's Finer Foods, Inc., 28 F.3d 678, 683 (7th Cir. 1994)

("Under the [contract bar] rule, a collective bargaining

agreement protects an existing bargaining relationship from

challenge for the contract term. . . . This rule was formulated by

the Board in an effort to reconcile the NLRA's goals of

promoting industrial stability and employee freedom of

choice." (internal quotations and citation omitted)). Especially

given that the conversion doctrine rendered the proviso's

explicit language "nugatory," Deklewa, 282 N.L.R.B. at 1383,

> The second proviso reads in full:

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 159(c) or 159(e) of this title.

17a

we think it was eminently reasonable for the Board to abandon

the doctrine, which as the Ninth Circuit has explained "rather

than protecting the free choice of employees to choose or reject

a union, .. . often prevented them from ever voting for or

against a particular" representative. Mesa Verde, 861 F.2d at

1134.

Even as it jettisoned the conversion doctrine, the Board in

Deklewa concluded that construction industry unions should

not be disfavored in their ability to obtain the full protections--

and presumptions -- of the Act. Accordingly, the Board

established that 8(f) unions, like their counterparts in

nonconstruction industries, would not be precluded from

achieving 9(a)] status through either Board-certified election

or voluntary recognition based upon a clear showing of

majority support. Deklewa, 282 N.L.R.B. at 1387 n.53. Here,

too, we believe that the Board's construction of the Act as it

pertains to the ability of construction industry employees to

choose their own collective bargaining representatives is a

defensible one. There is nothing in either the text or the

statutory framework of the Act that purports to limit in any way

the rights of employees in the construction industry to

designate and select their own bargaining representatives

pursuant to section 9(a). The Board has long recognized that

construction industry unions could obtain’ exclusive

representative status before entering into a

collective-bargaining agreement through the traditional means

of Board-certified election or "by other voluntary designation,

pursuant to Section 9(a)." sland Const. Co., 135 N.L.R.B. 13

(1962). And, again, the text of 8(f), which in its second proviso

protects the right of employees subject to an 8(f) agreement to

reject or change their bargaining representatives through the

Act's petition processes, supports the conclusion that Congress

meant to preserve employee free choice in the construction

18a:

industry, as elsewhere. This interpretation of the section's text

also finds support in the Supreme Court's acknowledgment in

Higdon that a union party to an 8(f) agreement retained the

ability to obtain full 9(a) representative status. Higdon, 434

U.S. at 349-50 (stating that "it is . .. undisputed that when the

union successfully seeks majority support, the prehire

agreement attains the status of a collective-bargaining

agreement executed by the employer with a union representing

a majority of the employees in the unit") (emphasis added)).

Even at the time of the Supreme Court's decision in Higdon, it

had long been established that a union could "successfully

seek[ ] majority support" -- and thus attain 9(a) representative

status -- not only through a Board-certified election, but also by

means of voluntary recognition based on a clear showing of

majority support. See, e.g., NLRB v. Gissel Packing Co., 395

U.S. 575, 23 L. Ed. 2d 547, 89 S. Ct. 1918 (1969); United Mine

Workers v. Arkansas Oak Flooring Co., 351 U.S. 62, 71, 100

L. Ed. 941, 76 S. Ct. 559 (1956).

Similarly, nothing in the legislative history of the Act can be

read to suggest that Congress intended in any way to

disadvantage construction industry employees in their attempts

to organize or bargain collectively. In fact, Congress was in

part motivated by concern that "construction industry unions

often would not be able to establish majority support with

respect to many bargaining units." McNeff, 461 U.S. at 266. See

also Higdon, 434 U.S. at 345 (reviewing the legislative history

of section 8(f) and concluding that "the Senate Report also

noted that 'representational elections in a large segment of the

industry are not feasible to demonstrate . . . majority status due

to the short periods of actual employment by specific

employers™ (citation omitted)). It is certainly reasonable to

conclude that Congress, in attempting to enable construction

industry employees to reap the benefits of

19a

collective-bargaining, did not at the same time intend to strip

those employees of the full protections of the Act where they

were "able to establish majority support." Thus, the Board's

construction of the Act conforms to both its text and legislative

history, as well as to Supreme Court dicta interpreting the

same.

Because we agree with the Board that the conversion doctrine

impeded the Act's principal aim of advancing employee free

choice, and because we can discern nothing in either the text or

legislative history of the 1959 amendments or, for that matter,

the statutory framework of the Act, to suggest that employees

in the construction industry should in any way be disfavored in

their ability to secure union representation or the Act's

protections, we accept as reasonable and adopt the Board's

interpretation that 8(f) unions can attain full 9(a) status only

through the traditional means available to unions in

nonconstruction industries.

Because the Board does not argue that either Local 669 or

536 attained 9(a) status through a certified election, we tum

therefore to the question whether either satisfied the

requirements for attaining such exclusive representative status

through voluntary recognition.° In considering claims

9(a) status is time-barred because it occurs more than six months after

voluntary recognition was granted. In Casale /ndus., 311 N.L.R.B. 951,

953 (1993), the Board held that "a challenge to majority status must be

made within a reasonable period of time after Section 9(a) recognition is

granted." The Board based its ruling in Casale on the language of section

10(b), 29 U.S.C. @ 160(b), “that no complaint shall issue based upon

any unfair labor practice occurring more than six months prior to the

20a

filing of the charge with the Board,” the fact that in cases involving

nonconstruction industries, the Board will not entertain a claim that

majority status was lacking at the time of recognition if more than six

months have elapsed, Casale, 311 N.L.R.B. at 953, and its conclusion in

Deklewa that “unions in the construction industry should not be treated

less favorably than those in nonconstruction industries." /d. American

counters that under the NLRA, only the General Counsel of the Board

can issue "complaints," and that 10(b) can therefore only bar untimely

complaints filed by the Board.

American is correct that the two controlling authorities on which

intervenor Local 669 primarily relies, Lodge No. 1424 v. NLRB (Bryan

Mfg.), 362 U.S. 411 (1960), and NLRB v. Harvey Hubble, Inc., 783 F.2d

1121 (4th Cir. 1986), involved application of the six-month time bar to

complaints filed by the General Counsel. Anticipating this objection,

Local 669 claims additional support from the decisions of the Courts of

Appeals for the Tenth and Eleventh Circuits applying the Casale rule to

bar construction industry employer defenses to refusal-to-bargain

charges. See National Labor Relations Board v. Triple A Fire Protection,

136 F.3d 727, 737 (11th Cir. 1998); MFP Fire Protection, Inc. v. NLRB,

101 F.3d 1341 (10th Cir. 1996). See also NLRB v. Viola Industries

Elevator Div., 979 F.2d 1384, 1387 (10th Cir. 1992) (applying the 10(b)

time bar to an employer's affirmative defense that its grant of voluntary

recognition was the product of unlawful coercion).

It is not immediately clear to us that the Board's rule applying the 10(b)

time-bar to nonconstruction industry employer defenses of invalid

voluntary recognition is a reasonable construction of a provision that, on

its face, applies only to complaints filed by the Board. However, we need

not decide that question today. Even assuming, arguendo, that the rule as

applied to employers in nonconstruction industries is reasonable, we find

that it is not so in the construction industry context. As one Board

member recognized in Triple A Fire Protection, Inc., 312 N.L.R.B. 1088,

1089 n.3 (1993), “the basis for applying a 10(b) limitations period in the

nonconstruction industry workplace, where minority recognition is

unlawful, does not hold in the construction industry, where there is no

statutory prohibition on minority recognition." /d. at 1089 n.3. Thus, in

the nonconstruction industries, a defense of invalid voluntary recognition

is tantamount to a charge of unlawful conduct under the NLRA

2la

of "conversion" through voluntary recognition, both the Board

and reviewing courts have required "the union's unequivocal

demand for, and the employer's unequivocal grant of, voluntary

recognition as the employees’ collective-bargaining

representative based on the union's contemporaneous showing

of majority employee support." NLRB v. Goodless Elec. Co.,

Inc., 124 F.3d 322, 324 (1st Cir. 1997) (citing James Julian,

Inc., 310 N.L.R.B. 1247, 1252 (1993)); see also Brannan Sand

& Gravel Co., 289 N.L.R.B. 977, 979-80 (1988); J & R Tile,

Inc., 291 N.L.R.B. 1034 (1988); American Thoro-Clean, 283

N.L.R.B. 1107, 1108-09 (1987). The Board has required that

the demand for and grant of voluntary recognition be

unequivocal because of the potential for confusion in the

construction industry over which type of relationship -- 8(f) or

provisions prohibiting employers and nonmajority unions from entering

into collective-bargaining agreements. This is not the case in the

construction industry, where 8(f) itself establishes the legality of such

relationships.

The Board's single sentence in Deklewa that "nothing in this opinion is

meant to suggest that unions have less favored status with respect to

construction industry employers than . . . those outside the construction

industry," Deklewa, 282 N.L.R.B. at 1387 n.53, cannot suffice as a

response to this critical distinction. The Board itself recognized as much

shortly after Deklewa, when it held that it had not in that case upset the

tule of R.J. Smith that nothing in 10(b) or Bryan Mfg. "precludes inquiry

into the establishment of construction industry bargaining relationships

outside the 10(b) period . . . [where] going back to the beginning of the

parties’ relationship here simply seeks to determine the majority or

nonmajority based nature of the current relationship." Brannan Sand &

Gravel Co., 289 N.L.R.B. 977, 982 (1988). Recent decisions of the

Board and of the Tenth and Eleventh Circuits to the contrary

notwithstanding, we do not believe that section 10(b) can reasonably be

interpreted to prohibit American, the party against whom the complaint

has been filed, from defending itself by challenging the validity of the

evidence of effective voluntary recognition that is the basis of the

Board's complaint.

22a

9(a) -- the parties intended to create by entering into the

collective-bargaining agreement. The requirement of a

contemporaneous showing of majority support, on the other

hand, is not unique to the construction industry, and is

consistent with the standard for voluntary recognition in the

nonconstruction trades. See, e.g., NLRB v. Lyon & Ryan Ford,

Inc., 647 F.2d 745, 751 (7th Cir. 1981) ("The essence of

voluntary recognition is the commitment of the employer to

bargain upon some demonstrable showing of majority (status)."

(citation and quotation marks omitted)); Georgetown Hotel v.

NLRB, 266 U.S. App. D.C. 371, 835 F.2d 1467, 1470 (D.C.

Cir. 1987) ("Voluntary recognition has been found to have

occurred when an employer agrees to recognize a union

through a card check or some other procedure and subsequently

confirms the union's majority status through that procedure.").

We reverse the Board's finding of an effective voluntary

recognition of Local 669's 9(a) status because we believe that

that finding was based on an unreasonable construction of the

Act. In support of its concededly clear and unequivocal initial

demand for voluntary recognition, Local 669 included fringe

benefit reports demonstrating that a majority of the Company's

employees in the relevant jurisdiction were members of the

Local. American contends, however, that these fringe benefit

forms cannot suffice to satisfy the requirement of a

contemporaneous showing of majority support because the

parties’ 8(f) contract included a standard union security clause

requiring employees, as a condition of employment, to join the

union within seven days of being hired. Where a union security

clause is in effect, petitioner argues, an employee's obligatory

membership in the local cannot be equated with -- and certainly

cannot be taken as dispositive of -support for the union. We

agree.

23a

Prior to its decision in Deklewa, the presence of a

strictly-enforced union security clause in an 8(f) contract was

one of the evidentiary factors the Board often cited as proof of

conversion to 9(a) status. See Deklewa, 282 N.L.R.B. at 1378.

Even before Deklewa, however, at least one court of appeals

had determined that majority union membership pursuant to an

enforced union security clause was insufficient as a matter of

law to establish effective conversion. Precision Striping, Inc.

v. NLRB, 642 F.2d 1144, 1148 (9th Cir. 1981) (noting that "[a]

union security clause operates to compel new employees to join

the union, because union membership is the price for obtaining

a job,” and that "it is well established that union membership is

not always an accurate barometer of union support" (internal

quotations and citations omitted)). In Deklewa itself, the Board

not only recognized the unreliability of union membership as

a proxy for union support where a security clause is in effect,

but in fact based its decision to abandon the conversion

doctrine in part on the "highly questionable” nature of just such

an inference. Deklewa, 282 N.L.R.B. at 1384.

The Board's reluctance in Deklewa to permit a union to obtain

9(a) status on the basis of such questionable evidence of

majority support rested on its commitment, and that of

Congress, to the protection and advancement of employees’ free

choice in designating and selecting their bargaining

representatives. /d. at 1383. The Board observed in Deklewa

that, by declaring in the second proviso of section 8(f) that a

pre-hire agreement "shall not be a bar to a petition filed

pursuant to section 9(c) or 9(e)," 29 U.S.C. section 158(f),

"Congress sought to assure that the rights and privileges

accorded employers and unions in the body of Section 8(f)

would not operate to thwart or undermine construction industry

employees’ representational desires." Deklewa, 282 N.L.R.B.

at 1381. Yet the Board now concludes that the same statutory

24a

objective of employee free choice that justified its

abandonment of the conversion doctrine is satisfied by the

employer's voluntary recognition of the union on the basis of

the very same evidentiary factor the Board rejected as

insufficient in Deklewa. This construction of the Act simply is

not rational. See Precision Striping, 642 F.2d at 1148. The

effect of the Board's construction would be to allow

nonmajority unions to enter into 8(f) collective-bargaining

agreements containing union security clauses and then

bootstrap themselves, within a matter of days and with the

complicity of the employer, into the full 9(a) status reserved

under the Act for representatives that have in fact secured and

demonstrated majority support. As the Board recognized in

Deklewa, such (a) status entails an irrebuttable presumption of

majority status during the contract's term that, under Board

rules, bars the very election petitions 8(f)'s second proviso

explicitly contemplates. Consistent with the Board's own logic

in Deklewa, we cannot conclude that an interpretation of 8(f) is

reasonable that "effectively renders [its] second proviso

nugatory." Deklewa, 282 N.L.R.B. at 1382. As the Board

observed in that case, "such [a] rule[ ] hardly advances the

objective of employee free choice."’ /d.

7 The Board's decision to credit American's voluntary

recognition of the union's majority status based upon fringe benefit

reports showing majority membership is not only an unreasonable

interpretation of the NLRA, it is inconsistent with the rationale the Board

provided in Deklewa for allowing voluntary recognition of 9(a) status in

the 8(f) context at all. The Board stated in Deklewa that, in permitting

construction unions to achieve 9(a) status through voluntary recognition

based on a clear showing of majority support among the unit employees,

it intended simply to guarantee that these unions would not have "less

favored status" under the NLRA than those in nonconstruction industries.

Deklewa, 282 N.L.R.B. at 1387 n.53. However, the rule established by

the Board in this case would in fact elevate construction unions to a

privileged position vis-a-vis nonconstruction unions with regard to their

25a

As for Local 536, we conclude that there was not substantial

evidence in the record to support the Board's conclusion that

the relationship between the NFSA -- and therefore American

-- and Local 536 ever attained 9(a) status. The Board rested its

affirmance of the ALJ's finding of 9(a) status through voluntary

recognition on two pieces of evidence in the record. First, the

Board pointed to American's assent to language in its

multi-employer bargaining representative's contract with the

Local recognizing it "as the sole and exclusive bargaining

representative for all journeymen sprinkler fitters . . . in the

employ of said employers, . . . pursuant to section 9(a) of the

National Labor Relations Act." Second, the Board relied upon

testimony that the union, in negotiating its 1991

collective-bargaining agreement, asked the Association whether

there was any dispute that the Local "represented a majority of

the employees," and received a negative reply. American

Automatic Sprinkler Systems, Inc., 323 NLRB 160 (1997).

ability to achieve 9(a) recognition and protection. That is, it is only by

virtue of the 8(f) exception that construction unions which have not yet

established majority status are permitted not only to enter into

collective-bargaining agreements, but to include union security clauses in

those agreements. 29 U.S.C. section 158(f). In the nonconstruction

industries, it has long been a violation of the Act for unions and

employers to include such clauses in their agreements before majority

support is established. Bryan Mfg., 362 U.S. at 413 ("It is an unfair labor

practice for an employer and a labor organization to enter into a

collective-bargaining agreement which contains a union security clause,

if at the time of original execution the union does not represent a

majority of the employees in the unit."). Because voluntary recognition

in both construction and nonconstruction industries must be based on an

actual showing of majority support, acceptance of union membership

pursuant to a union security clause as determinative of such support

would give 8(f) unions a considerable advantage over their

nonconstruction counterparts in attaining full 9(a) status.

26a

As an initial matter, the language to which the employer

concededly consented in the multiemployer

collective-bargaining agreement is conclusory, and evidences

neither an "unequivocal demand for" nor “unequivocal grant

of" voluntary recognition based upon a contemporaneous

showing of majority support. In fact, the form does not even

purport to establish recognition of the local as the majority

representative, but rather only as the "sole and exclusive"

representative. The Board's reliance on "the uncontradicted

evidence . . . that during 1991 negotiations for article 3, Local

536 specifically asked the Association whether there was any

dispute that it represented a majority of the employees . . . [and]

the Association responded that there was no dispute,” id.

(emphasis added), is equally unavailing. The "uncontradicted

evidence” to which the Board refers is union negotiator Roy

Fique's testimony about his 1991 negotiations with the NFSA.

That testimony read literally, however, supports a proposition

directly at odds with the one the Board advances. Mr. Fique

characterized the exchange between himself and bargaining

representatives of the NFSA as follows:

So in bargaining, I brought that up, is there any

dispute that we are, you know, the

representative of the employees, and everybody

at the table agreed that there was no doubt in

their mind that we represented the minority of

employees.

JA. at 438 (testimony of Roy Fique) (emphases added). It may

be that this was either a misstatement by Fique or a

transcription error. However, this statement, which on its face

is an assertion of unanimous and unequivocal agreement as to

the Local's minority status, is literally the only evidence with

which we have been presented that supports a conclusion that

27a

the union unequivocally demanded and received recognition as

the majority representative. When not even the parties

themselves are in a position to represent that this statement was

a misstatement or transcription error, and neither the ALJ nor

the Board ever addressed the apparent discrepancy, we simply

cannot conclude that, without more, it can suffice as a union's

"unequivocal demand for" and the employer's "unequivocal

grant of" voluntary recognition of majority status.

As for the requirement of a "contemporaneous showing of

majority support," there is simply no evidence at all in the

record to support a finding that it has been satisfied. Again, the

Board can cite only the exchange between Fique and the NFSA

negotiators. Even were the Board's characterization of Fique's

testimony accurate, this conversation, while perhaps probative

of the Company's willingness to recognize the union as the

majority representative, does not support the suggestion that its

grant of voluntary recognition was based, in fact, upon any

showing of majority support, contemporaneous or otherwise.

Fique’s unsubstantiated request for recognition as the

"majority" representative, so understood, cannot be transformed

into the required substantiation itself.

The Board's willingness to credit the employer's voluntary

recognition absent any contemporaneous showing of majority

support would reduce this time-honored alternative to

Board-certified election to a hollow form which, though

providing the contracting parties stability and repose, would

offer scant protection of the employee free choice that is a

central aim of the Act. Cf Higdon, 434 U.S. at 349

("Privileging unions and employers to execute and observe

pre-hire agreements in an effort to accommodate the special

circumstances in the construction industry may have greatly

convenienced unions and employers, but in no sense can it be

28a

portrayed as an expression of the employees’ organizational

wishes."). In considering the Board's finding on this issue, we

must concur with the Board's General Counsel that, even if the

union does, in fact, represent a majority of the Employer's

employees, . . . there must be explicit proof presented

contemporaneously with the Union's demand and _ the

Employer's voluntary recognition. Thus, although the

Employer's ambiguous statements arguably may indicate that

it believed the Union had majority support, those statements are

insufficient to confer 9(a) status upon the Union without actual

demonstration of that majority status. Advice Ltr. from NLRB-

Gen. Counsel to Regional Director of Region 9, Feb. 27, 1989,

1989 WL 241614, at 2. (Feb. 27, 1989).

Accordingly, because we cannot conclude, consistent with the

principles outlined a decade ago by the Board in Deklewa and

accepted by us today, that petitioner had an obligation under

the Act to bargain with either Local 669 or 536 upon the

expiration of their respective multiemployer agreements, we

grant American's petition for review as to the findings that it

violated 8(a)(5) and (a)(1) by failing to bargain in good faith,

unilaterally changing terms and conditions of employment, and

dealing directly with employees.

Il.

Our holding above that the employer had no statutory

obligation to refrain from making unilateral changes to the

conditions of employment disposes of the Board's findings of

constructive discharge. Because each of these findings was

premised on an employee resignation resulting from the

employer's assertedly unlawful change to the conditions of

employment, our conclusion that those changes were in fact

lawful negates these findings completely. Accordingly, we

29a

grant American's petition for review of the Board's findings of

constructive discharge. Finally, we deny American's petition

for review with respect to the Board's findings of section

8(a)(3) and (a)(1) violations arising out of the discriminatory

discharges, refusals to hire and reinstate, and imposition of

onerous working conditions. There is ample record evidence of

American's anti-union animus and its efforts to rid its

workforce of active union members, despite those individuals’

demonstrated qualifications and in the face of repeated

contractor complaints about American's unsatisfactory job

performance on account of labor shortages. Based upon a

careful review of the record, we conclude that there was

substantial evidence, particularly in light of the deference due

the ALJ's credibility determinations, to support each finding of

a section 8(a)(3) and (a)(1) violation as a result of a

discriminatory discharge, refusal to hire or reinstate, or

imposition of onerous working conditions.

CONCLUSION

For the foregoing reasons, we grant in part and deny in part

American's petition for review of the Board's findings and

order, grant in part and deny in part the Board's cross-petition

for enforcement of its order, and remand for a remedial order

consistent with this opinion.

IT IS SO ORDERED.

30a

APPENDIX B

American Automatic Sprinkler Systems, Inc. and Sprinkler

Fitters United Association Local Union No. 536, United

Association of Journeymen and Apprentices of the Plumbing

and Pipe Fitting Industry of the United States and Canada,

AFL-CIO and Road Sprinkler Fitters Local Union No. 669,

U.A., United Association Journeymen and Apprentices of

Plumbing and Pipe Fitting Industry of the United States and

Canada, AFL-CIO and Todd M. Hood and Joseph R. Brown Jr.

and Laurence S. Davidson and Fred D. Kraeuter and Stephen

M. Paca and Richard L. Newsome and Roy C. Rife Jr. and

Ralph Kelly Preuett and Todd C. Rife and Warren L. Bentert

and Michael Ford

Cases 5-CA-24636, 5-CA-24681, 5-CA-24719, 5-CA-25047,

5-CA-24738, 5-CA-24895, 5-CA-25029, 5-CA-24641,

5-CA-24642, 5-CA-24647, 5-CA-24674, 5-CA-24695,

5-CA-24715, 5-CA-24896, 5-CA-25017, 5-CA-25075,

5-CA-25130, and 5-CA-25255

June 11, 1997

DECISION AND ORDER

By William B. Gould IV, Chairman; Sarah M. Fox, Member.

John E. Higgins, Jr., Member, dissenting in part.

On February 26, 1996, Administrative Law Judge Marion C.

Ladwig issued the attached decision. The Respondent filed

exceptions and a supporting brief, the General Counsel filed an

answering brief, and the Respondent filed a reply brief. The

General Counsel and Charging Party Road Sprinkler Fitters

3la

Local Union No. 669 each filed cross-exceptions and

supporting briefs, to which the Respondent filed an answering

brief.

The Board has considered the decision (We correct the

judge's following inadvertent errors: In sec. II,F,b,(2), par. 6,

"January 23" and "January 29" should read, "August 23" and

"August 29,” respectively; in sec. II,E,3, in the penultimate

paragraph concerning employee Kraeuter, it was 15 days after

Kraeuter submitted his "application," not his "affidavit;"

finally, in sec. II,F,1,c, under the heading "Warren Bentert, "the

reference in the first paragraph should be to "Local 536," not

"Local 635.") and the record in light of the exceptions,

cross-exceptions, and briefs, and has decided to affirm the

judge's rulings, findings,' and conclusions, as explained and

modified below, and to adopt the recommended Order as

modified.’

1. We agree with the judge's findings that Locals 669 and 536

are the 9(a) representatives of the Respondent's journeymen

sprinkler fitters and apprentices within each Local's specific

geographic jurisdiction. As to Local 536, we find that this

' The respondent has excepted to some of the judge’s credibility

findings. The Board's established policy is not to overrule an

administrative law judge’s credibility resolutions unless the clear

preponderance of all relevant evidence convinces us that they are

incorrect. Standard Dry Wall, 91 N.L.R.B. 544 (1950), enf’d 188 F.2d

362 (3d Cir. 1951). We have carefully examined the record and find no

basis for reversing the findings.

2 We shall modify the judge's recommended Order and notice

to reflect the additional violations, discussed herein, and to comport with

our recent decision in /ndian Hills Care Center, 321 N.L.R.B. 144

(1996).

32a

status is based on the language that the Respondent's then

bargaining representative--the National Sprinkler Fitters

Association (the Association)--negotiated in the parties’

1991-1994 collective-bargaining agreement:

ARTICLE 3

RECOGNITION: The National Fire Sprinkler Association, Inc.

for and on behalf of its contractor members that have given

written authorization and all other employing contractors

becoming signatory hereto, recognize the Union as the sole and

exclusive bargaining representative for all journeymen

sprinkler fitters and apprentices in the employ of said

employers, . . . pursuant to section 9(a) of the National Labor

Relations Act.

Further, the uncontradicted evidence establishes that during

1991 negotiations for article 3, Local 536 specifically asked the

Association whether there was any dispute that it represented

a majority of the employees. The Association responded that

there was no dispute.

As to Local 669, in October 1987, the Respondent signed a

form recognition agreement--which was accompanied by fringe

benefit forms demonstrating majority union

membership--recognizing Local 669 as the 9(a) representative

of its unit employees. The Board has previously found that this

same form agreement is sufficient to establish 9(a) status. See,

e.g., Triple A Fire Protection, 312 N.L.R.B. 1088 (1993). In

addition, in 1988, the Respondent executed an interim

agreement with Local 669 verifying that this Local was the 9(a)

representative. Further, the parties’ 1991-1994

collective-bargaining agreement contains the identical article

3 recognition language, discussed as to Local 536, above.

33a

Finally, we note that, in any event, the Respondent's challenge

to the 9(a) status of Locals 669 and 536 was untimely raised.

Casale Industries, 311 N.L.R.B. 951 (1993).

2. The General Counsel excepts to the judge's failure to find

that the Respondent violated Section 8(a)(1) when: (1) its

superintendent, Forsythe, told employee Bentert, about January

19, 1995, to stop talking to employees about his rate of pay; (2)

its owner and president, Bolyard, told employee Sampson,

about August 10, 1994, that the Respondent was going

nonunion;’ and (3) its agent, secretary/receptionist Goldbeck,

told employee Kraeuter, about August 14, 1994, that the

Respondent was going nonunion. We find merit to these

exceptions. The General Counsel alleged that each of these

statements violated Section 8(a)(1). The allegations were fully

litigated, and the judge specifically found that each of the

alleged statements was made. In these circumstances, and

because the statements clearly interfere with employees’

Section 7 rights, we will modify the judge's recommended

Order to address these additional 8(a)(1) violations. See, e.g.,

Worcester Mfg., 306 N.L.R.B. 218, 219 (1992); Waco, Inc.,

273 N.L.R.B. 746, 747-748 (1984).

3. The judge found that, in March 1995, the Respondent

violated Section 8(a)(3) and (1) by constructively discharging

employee Ford, a Local 536 member. The judge found that the

Respondent unlawfully required Ford either to resign from

work or to accept an assignment at Dulles Airport, outside

Local 536's jurisdiction.

In its exceptions the General Counsel contends, inter alia, that

the judge erroneously failed to find similarly that, in January

. Charging Party Local 669 filed a similar exception.

34a

1995, the Respondent violated Section 8(a)(3) and (1) by

issuing a disciplinary warning to employee Bentert for refusing

an assignment outside Local 536's jurisdiction. For the

following reasons, we find merit to the General Counsel's

exception, and conclude that both the constructive discharge of

Ford and the written warning to Bentert violated the Act.

Initially, we note that under Local 536's 1991-1994

collective-bargaining agreement with the Respondent, the

contractual geographic jurisdiction for work assignments

consisted of the City of Baltimore, Maryland, and 10

surrounding miles. Consistent with this provision, the

Respondent assigned employees represented by Local 536 to

work within this territory. Employees in the Local 536

bargaining unit testified that, during the term of the 1991-1994

agreement, the Respondent never asked them to work outside

the Local's geographic jurisdiction or, if it did, the Respondent

never required them to accept such extraterritorial assignments.

Similarly, the Respondent admitted that although, under the

1991-1994 agreement, it had sometimes asked employees

represented by Local 536 to work outside their Local's

jurisdiction on short-term jobs, it was required to obtain the

Union's approval before assigning those employees to

long-term projects outside Local 536's jurisdiction (like the

Dulles Airport and Patuxent River jobs, discussed below).‘

“Although there is some dispute as to the words Bentert used in

refusing the Respondent's assignment, the Respondent concedes, on

brief, that the terminology used was immaterial to the discipline. The

Respondent asserts that Bentert was disciplined because he was

"profoundly uncooperative” when responding to the southern Maryland

assignment. Because the Dulles and Patuxent jobs were in Local 669's

contractual jurisdiction, the Respondent testified that it would have to

reach an agreement with both locals before Local 536-represented

employees could be assigned the work.

35a

During negotiations for a successor to the 1991-1994

contract, the Respondent proposed a six-item successor

agreement which, as found by the judge, eliminated Local 536's

territorial jurisdiction, permitted the Respondent to operate

nonunion, and ensured that Local 536 would have no role in

representing its unit employees. In August 1994, the

Respondent prematurely declared an impasse in bargaining and

unlawfully implemented its six-item proposal. In so doing, the

Respondent, among other things, violated Section 8(a)(5) and

(1) by nullifying Local 536's territorial, work-assignment

jurisdiction. Thereafter, the Respondent admittedly assigned

Local 669 work to Local 536 unit employees Ford and Bentert,

which assignment was in further derogation of the contractual

geographic restrictions.

Specifically, in March 1995, the Respondent assigned

employee Ford to work at its Dulles Airport job, located in

Local 669's jurisdiction. Ford protested this assignment, first

arguing that Local 669 was on strike against another employer,

and then requesting an assignment within Local 536's

Baltimore jurisdiction. The Respondent rejected Ford's request,

stating that it was not a union shop. The Respondent also gave

Ford the ultimatum of accepting the Dulles assignment or

resigning. Ford quit.

In these circumstances, we find that the Respondent

presented Ford with the "Hobson's choice" of resigning or

working under conditions in derogation of his contractual

bargaining rights. See, e.g., RCR Sportswear, 312 N.L.R.B. 513

(1993), enf‘d. in unpublished decision 37 F.3d 1488 (3d Cir.

1994). Thus, by accepting the Dulles assignment, Ford would

relinquish his contractual right to be represented by Local 536

under that local's negotiated wages and benefits. Further, by

36a

acceding to the Respondent's ultimatum, Ford would be forced

to accept an assignment in derogation of Local 536's

contractual, territorial jurisdiction.

On the same basis, we find that the Respondent violated

Section 8(a)(3) and (1) by disciplining employee Bentert for

refusing an assignment outside Local 536's jurisdiction.

In January 1995, while Bentert was working at a Baltimore

jobsite, the Respondent directed him to report to its Patuxent

River job in southern Maryland. Bentert protested the

assignment, first stating that it would require him to commute

to work more than 2 hours each way and later asking the

Respondent whether it had work for him in Local 536's

jurisdiction.® Although the Respondent subsequently found

> The consolidated complaint alleged that the Respondent

unlawfully disciplined Bentert in January 1995. The circumstances of

this discipline were fully litigated at the hearing. Further, the judge

specifically found that Bentert refused the Respondent's January effort to

assign him outside Local 536's jurisdiction to its Patuxent River job in

southern Maryland. The judge failed to additionally find, however, that

Bentert's refusal resulted in disciplinary action or that this discipline

violated the Act.

We agree with the General Counsel that the record establishes that

Bentert was issued a written warning for refusing the Patuxent River

assignment (G.C. Ex. 37). Indeed, the Respondent concedes this fact.

Further, as discussed below, we find that this warning was in derogation

of Bentert's Sec. 7 rights to be represented by Local 536 and was yet a

further unlawful effort by the Respondent to abrogate Local 536's

contractually established geographic jurisdiction.

® Although there is some dispute as to the words Bentert used

in refusing the Respondent's assignment, the Respondent concedes, on

brief, that the terminology used was immaterial to the discipline. The

Respondent asserts that Bentert was disciplined because he was

37a

another employee for the southern Maryland job, it issued a

written warning to Bentert for refusing the assignment.

As with Ford, we find that this warning was in derogation of

Bentert's Section 7 rights to be represented by Local 536 under

the terms and conditions of its collective-bargaining agreement

with the Respondent, including the geographic jurisdiction

provision. Accordingly, we find that the warning violated

Section 8(a)(3) and (1) of the Act.

4. Finally, the General Counsel excepts to the judge's failure

to find that the Respondent violated Section 8(a)(3) and (1) by

both suspending and discharging employee William Bentert in

February 1995. Although we adopt the judge's finding that

Bentert's February 14 suspension was not unlawful, we reverse

and find that the February 20 discharge violated the Act.

Initially, we find that the General Counsel established a

compelling prima facie case, under Wright Line,’ that the

decisions to suspend and discharge Bentert were unlawfully

motivated. Thus, prior to this discipline, the Respondent

committed serious and extensive unfair labor practices,

including bad-faith bargaining, numerous unilateral changes,

and the discharge, refusal to hire, and constructive discharge of

27 union-represented employees. Further, some of the

Respondent's unlawful conduct was directed specifically at

Bentert, an outspoken Local 536 member and supporter. In

August 1994, the Respondent unlawfully rescinded Bentert's

“profoundly uncooperative" when responding to the southern Maryland

assignment.

” Wright Line, 251 N.L.R.B. 1083 (1980), enf’d. 662 F.2d 899

(Ist Cir. 1981), cert. denied 455 U.S. 989 (1982).

38a

privilege of using a company vehicle. The following January,

after Bentert complained to fellow workers about being

reassigned from a union scale to a lower paying job,* the

Respondent unlawfully instructed Bentert not to discuss his

wage rate with other employees. And, in late January, the

Respondent unlawfully issued a written disciplinary warning to

Bentert for refusing an assignment outside Local 536's

contractual, geographic jurisdiction. Significantly, these

January 1994 violations occurred within a few weeks of

Bentert's suspension and discharge, at a time when he was the

sole Local 536 member employed by the Respondent at the

FANX jobsite. The Respondent had fired or constructively

discharged all other Local 536 members assigned to that job

during the preceding 5-month period.

Notwithstanding this prima facie case, the judge found, and

we agree, that the Respondent established that it would have

suspended Bentert on February 14, 1994, even in the absence

of Bentert's union and protected activities. Thus, after Bentert

left the FANX job-site early on January 19 and 26, 1995, to

cash his paycheck,’ Job Superintendent Forsythe told him that

he could not leave work early for this purpose. Notwithstanding

this instruction, on February 10, Bentert again announced that

he was leaving early to cash his check. When Bentert's

® During January, Bentert also told coworkers and his

supervisor, Reid, that employees would not be earning different amounts

if they were covered by a union contract, and that Local 536 had a

bonding requirement that would prevent their checks from bouncing

because of insufficient funds.

® Both Bentert and employee Todd Rife left early on these

dates to cash their checks after some company paychecks bounced. We

adopt the judge's finding that the subsequent discharge of Todd Rife

violated Sec. 8(a)(3) and (1).

39a

supervisor, Reid, directed him to telephone the office first,

Bentert disregarded this instruction and, as found by the judge,

"refused and persisted in leaving early without calling the

office for permission." In view of Bentert's "defiant insistence

on leaving work to cash" his paycheck, we agree with the judge

that the Respondent carried its burden of proving that it would

have suspended Bentert regardless of any union activity.

We do not adopt the judge's further finding, however, that the

Respondent similarly met its burden as to the discharge

decision." Thus, although the February 14 disciplinary notice

stated that Bentert was suspended for 4 days "pending further

investigation, which may result in permanent discharge,” the

Respondent's witnesses established that the discharge decision

was separately made, and was based on events beyond the

February 10 check-cashing incident. Moreover, as set forth

below, according to one, if not both, management officials who

claimed responsibility for the discharge decision, Bentert was

discharged, in part, for his protected activities.

Superintendent Forsythe, the Respondent's manager on the

FANX< jobsite, testified that he made the decision to terminate

Bentert. Although Forsythe initially stated that he based his

decision solely on Bentert's February 10 conduct, which

Forsythe characterized as “uncooperative” and "disruptive,"

Forsythe later conceded that "uncooperative" also encompassed

Bentert's January 1995 refusal to accept an assignment outside

Local 536's jurisdiction, and "disruptive" included Bentert's

constant complaints about the company. Thus, by Forsythe's

” The judge did not separately analyze the suspension and

discharge decisions, nor did he discuss the testimony of Respondent

witnesses Forsythe and McCusker, discussed below.

40a

admission, Bentert was discharged, in part, for engaging in

protected activity.

Forsythe, however, was not the only Respondent official

claiming responsibility for the discharge decision. Vice

President McCusker--Forsythe's superior--testified that while

he relies on information from his on-site managers, like

Forsythe, when making personnel decisions, he ultimately

authorizes discharges.'' McCusker testified that he decided to

discharge Bentert because of the February 10 check-cashing

incident, because Bentert "didn't want to work there anyway,"

and since--during Bentert's 4-day suspension, "the job site was

happy, we were happy. . . . If I could reinstate him, it would go

back to the same misery."

Based on the foregoing testimony of Forsythe and McCusker,

we find that the Respondent has not met its burden of

establishing that it would have discharged Bentert regardless of

his union or protected activities. On the contrary, when

claiming credit for the discharge, Forsythe admitted that, in

part, it was motivated by protected activity. Although

McCusker also asserted responsibility for the discharge

decision, he admittedly depends on managers when making

personnel decisions, and did not deny relying on Forsythe's

recommendation when authorizing Bentert's discharge. Further,

even assuming that McCusker independently decided to

terminate Bentert, he presented shifting reasons for the

” Specifically, McCusker testified that "I ultimately authorize

the decision, but I don't make job site e:, é-to-eye observations constantly.

I hear it through my eyes and ears on the job, which are people, foreman

(sic), superintendents. And I ultimately make the decision not to reinstate

them."

4la

discharge.’ Moreover, McCusker's reference to jobsite

“misery” caused by Bentert, and the jobsite's "happiness"

during Bentert's suspension--when considered in the context of

the Respondent's union animus and Bentert's status as a vocal

union supporter who openly complained about wages, working

conditions, and the Respondent's unlawful unilateral

changes--appears to be yet another reference to Bentert's

protected activities.

In all of these circumstances, and in light of the compelling

prima facie case, we find that the Respondent has not

established that it would have converted Bentert's suspension

into a discharge in the absence of his union and protected

activities. Accordingly, we reverse the judge and find that the

Respondent violated Section 8(a)(3) and (1) by terminating

Bentert on February 20, 1994.

ORDER

The National Labor Relations Board orders that the

Respondent, American Automatic Sprinkler Systems, Inc.,

Owing Mills, Maryland, its officers, agents, successors, and

assigns, shall

1. Cease and desist from:

(a) Refusing to bargain in good faith with Sprinkler Fitters

United Association Local Union No. 536, United Association

of Journeymen and Apprentices of the Plumbing and Pipe

2 As argued by the General Counsel, McCusker stated for the

first time at the conclusion of the hearing that he decided not to reinstate

Bentert from suspension because Bentert told him in a telephone

conversation that he really did not want to work for the Respondent.

42a

Fitting Industry of the United States and Canada, AFL-CIO as

the exclusive collective-bargaining representative of its

employees in the following appropriate unit:

All journeymen sprinkler fitters and apprentices employed by

American Automatic Sprinkler Systems in the jurisdiction of

Locai 536, excluding office clerical employees, guards, and

supervisors as defined in the Act.

(b) Refusing to bargain in good faith with Road Sprinkler

Fitters Local Union No. 669, U.A., United Association of

Journeymen and Apprentices of the Plumbing and Pipe Fitting

Industry of the United States and Canada, AFL-CIO as the

exclusive collective-bargaining representative of its employees

in the following appropriate unit:

All journeymen sprinkler fitters and apprentices employed by

American Automatic Sprinkler Systems in the jurisdiction of

Local 669, excluding office clerical employees, guards, and

supervisors as defined in the Act.

with employees in the bargaining units in derogation of the

Locals' status as exclusive bargaining representatives of the

employees.

(d) Making unilateral changes in mandatory subjects of

bargaining in the respective bargaining units until it and the

Local representing each unit either agree on a new contract or

reach a good-faith impasse in negotiations.

(e) Unilaterally changing the scope of the Local 536 and 669

bargaining units by creating a "helper" classification outside the

bargaining units without the Locals’ consent or by nullifying

43a

the separate bargaining units based on the Locals’ territorial

jurisdictions.

(f) Assigning bargaining unit work to employees outside the

bargaining units.

(g) Discharging, constructively discharging, denying

overtime, imposing more onerous or rigorous working

conditions, denying privileges, warning, or otherwise

discriminating against any employee because of his

membership or activity on behalf on Local 536, Local 669, or

any other labor organization.

(h) Refusing to hire or reinstate employees because of their

membership in Local 536, Local 669, or any other labor

organization.

(i) Informing any employee that he could not work as a

foreman because of his union affiliation.

(j) Making an implied promise to any employee of a higher

wage rate if he resigned his union card.

(k) Instructing any employee not to discuss his rate of pay

with other employees.

(1) Informing any employee that the Respondent was going

nonunion while its employees were represented by a majority

representative.

(m) In any like or related manner restraining or coercing

employees in the exercise of the rights guaranteed them by

Section 7 of the Act.

44a

2. Take the following affirmative action necessary to

effectuate the policies of the Act.

(a) On request, bargain with Local 536 and Local 669 as the

exclusive representatives of the employees in their respective

appropriate bargaining units concerning terms and conditions

of employment and, if an understanding is reached, embody the

understanding in a signed agreement.

(b) On request of Local 536 and Local 669, on behalf of their

respective units, rescind any or all unilateral changes in

mandatory subjects of bargaining implemented on and after

August 11, 1994, and restore the working condition or

conditions retroactive to that date.

and pension funds and make whole its employees for any losses

directly attributable to the cancellation of these benefits, in the

manner set forth in the remedy section of this decision.”

(d) Within 14 days from the date of this Order, offer the

following employees immediate employment in their former

jobs or the jobs to which they would have been assigned or, if

those jobs no longer exist, to substantially equivalent positions,

without prejudice to any seniority or other rights or privileges

previously enjoyed--displacing if necessary employees

assigned to the jobs and placing any remaining employees on

'3 To the extent that an employee has made personal

contributions to a fund that are accepted by the fund in lieu of the

employer's delinquent contributions during the period of the

delinquency, the Respondent will reimburse the employee, but the

amount of such reimbursement will constitute a setoff to the amount that

the Respondent otherwise owes the fund.

45a

a preferential list as provided for in the remedy section of the

decision:

William Bentert

James Birmingham

Steven Bloodsworth

Joseph Brown

Stefan Buitron

Howard Crosby

Laurence Davidson

Edward Gnip

Stephen Griffith

Robert Grimm

Melvin Haynes

Todd Hood

Frederick Kraeuter

Jimmie Love

Stephen Paca

Kelly Preuett

David Rehbein

Roy Rife

Todd Rife |

Ronald Rutkowski

Clarence Sampson

Scott Dyoti

Michael Ford

Ronald Moyers

Richard Newsome

Edward Saunders

James Spitzer

Steven Stricker

(€) Make whole employees listed above for any loss of

earnings and other benefits suffered as a result of the

46a

discrimination against them, in the manner set forth in the

remedy section of the judge's decision.

(f) Within 14 days from the date of this Order remove from

its files any reference to the unlawful warning and discharges,

and within 3 days thereafter notify the employees in writing

that this has been done and that the warning and discharges will

not be used against them in any way.

(g) Preserve and, within 14 days of a request, make available

to the Board or its agents for examination and copying, all

payroll records, social security payment records, timecards,

personnel records and reports, and all other records necessary

to analyze the amount of backpay due under the terms of this

Order.

(h) Within 14 days after service by the Region, post at its

facility in Owings Mills, Maryland, copies of the attached

notice marked "Appendix."'* Copies of the notice, on forms

provided by the Regional Director for Region 5, after being

signed by the Respondent's authorized representative, shall be

posted by the Respondent and maintained for 60 consecutive

days in conspicuous places including all places where notices

to employees are customarily posted. Reasonable steps shall be

taken by the Respondent to ensure that the notices are not

altered, defaced, or covered by any other material. In the event

that, during the pendency of these proceedings, the Respondent

has gone out of business or closed the facility involved in these

'4 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

National 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."

47a

proceedings, the Respondent shall duplicate and mail, at its

own expense, a copy of the notice to all current employees and

former employees employed by the Respondent at any time

since August 10, 1994.

(i) Within 21 days after service by the Region, file with the

Regional Director a sworn certification of a responsible official

on a form provided by the Region attesting to the steps that the

Respondent has taken to comply.

Dated, Washington, D.C. June 11, 1997

William B. Gould IV, Chairman

Sarah M. Fox, Member

DISSENT:

John E. Higgins, Jr., Member, dissenting in part.

I do not agree that employee Ford's quitting of his job

constituted a constructive discharge. In this regard, I note that

Respondent decided to assign Ford from the Baltimore unit

(represented by Local 536) to the Dulles Airport unit

(represented by sister Local 669). There is no allegation that

this assignment was unlawfully motivated. Thus, although the

transfer would have resulted in Ford's being represented by

Local 669, rather than Local 536, there is no allegation that this

was the motive for the decision to transfer.

Further, although the transfer may have been in breach of the

Local 536 contract, this was not the reason for Ford's refusal to

accept the assignment. Rather, Ford protested that he did not

want to go to Local 669 because that Local was on strike, albeit

against another employer, not Respondent.

48a

Ford continued to resist the assignment and, not achieving his

goal, quit his employment.' In these circumstances, I would not

find an unlawful constructive discharge.’

Dated, Washington, D.C. June 11, 1997

John E. Higgins, Jr., Member

ALJ: MARION C. LADWIG

ALJ-DECISION:

Statement of the Case

MARION C. LADWIG, Administrative Law Judge. These

consolidated cases were tried in Baltimore, Maryland on June

5-9, 12-15, 1995. The charges were filed from August 11,

1994' through April 5, 1995 and the complaints were issued

and consolidated from November 4 through May 19, 1995.

! By contrast, employee Bentert did not quit. I agree that

Respondent violated the Act by disciplining Bentert in reprisal for the

Sec. 7 right of protesting the assignment.

2 I recognize that Respondent, in denying Ford's request to stay

in Baltimore, said that Baltimore was a nonunion shop. However, there is

no allegation that Respondent ever withdrew recognition from Local 536

in Baltimore. In addition, even if this were the case, Respondent was not

insisting that Ford remain in "non-union" Baltimore. Respondent was

insisting that Ford go to Dulles, the Local 669 facility.

! All dates are in 1994 unless otherwise indicated.

a — - 7.

49a

The Company, a member of ihe union-employer National

Fire Sprinkler Association, signed separate 1991-1994 NFSA

union-shop agreements with Locals 536 and 669, recognizing

them as representatives of its "journeymen sprinkler fitters and

apprentices” in the Baltimore area and outside that area. Before

the expiration of these agreements it withdrew its NFSA

' membership, joined the nonunion-employer American Fire

Sprinkler Association (AFSA), and began separate bargaining

with the Locals.

In the 1994 negotiations the Company proposed to each of

the Locals the same six-part, partial-page agreement that would

authorize it to operate nonunion, ensuring that the Locals

would have no role in representing the employees. Although

offered as a complete agreement, the proposal contained no

recognition clause, no description of the bargaining units, and

no contract term. It would nullify the separate bargaining units,

which were based on the Locals’ territorial jurisdictions.

The partial-page proposal would reduce the $ 21.45 and $ 22

journeyman sprinkler fitter rates to a sliding scale of $ 10 to $

17 an hour and leave the classification of employees to the

Company's sole discretion. It abolished the apprenticeship

program as well as the apprentices classification and

established a nonunit helper classification to be paid $ 6 to $ 10

an hour.

To replace the prior provision that "All tools will be

furnished,” the proposal provided that "No tools of any kind

will be furnished to the employee.” It eliminated the union

health and pension benefits and offered the Company's optional

medical plan in the unspecified future, with no immediate

coverage. It abolished the jurisdictional limits for assigning

employees. It abolished grievances and arbitration and

50a

eliminated the provisions for union referrals, dues checkoffs,

and union security. It also eliminated the overtime, show-up,

lunchtime, holiday, and vacation provisions. It reserved an

unrestricted right to subcontract work for economic reasons.

After the third bargaining session with each of the Locals, the

Company declared an "impasse" because of their failure to

agree to its proposed agreement. It then implemented the

partial-page proposal as the "new contract," telling some of the

employees that the Company was nonunion. It admittedly

considered all the jobs vacated. It required each Local 536

member to report to the office, fill out an application for

employment, discuss with it individually--without union

participation--what his classification, wage rate, and the

working conditions would be, and then agree to accept what it

offered to continue working.

Anticipating strike action, the Company placed newspaper

ads for experienced employees who "will work as permanent

replacements and may be required to cross the picket line."

Two weeks later, when neither union went on strike, the

Company placed additional ads for experienced employees, but

did not hire the Locals' members who applied.

By the time of trial 8 months later, the Company had hired a

total of 47 new employees, but not a single member of Local

536 or Local 669. Despite its shortage of qualified fitters, it did

not call the Locals for referrals as it previously had done. It

required union members who did apply to submit an

application, which it filed without hiring any of them. The only

Local 536 member remaining on the payroll was an injured

employee whom the Company had reinstated after NLRB

charges were filed. With this one exception, the Company was

Sla

refusing to follow its prior practice of reinstating injured union

members upon their recovery and return to work.

The Company avoided further negotiations, refusing to

propose or agree to any meeting dates. Operating nonunion, it

excluded both Locals from playing any role in representing the

employees.

The primary issues are whether the Company, the

Respondent, (a) as shown by its overall conduct--including the

substance of its proposed partial-page agreement-—bargained in

bad faith, precluding valid impasse, (b) bypassed the Locals

and dealt directly with bargaining unit employees, (c)

unlawfully implemented unilateral changes in wages, benefits,

and other working conditions and in the scope of the bargaining

units, (d) unlawfully refused to hire and reinstate members of

the Locals, (e) discharged and discriminated against union

members to eliminate them from the payroll, and (f) engaged

in other coercive conduct, violating Section 8(a)(1), (3), and (5)

of the National Labor Relations Act.

On the entire record, including my observation of the

demeanor of the witnesses, and after considering the briefs filed

by the General Counsel, Company, and Local 669, I make the

following:

Findings of Fact

I. Jurisdiction

The Company, a corporation, fabricates, installs, alters, and

services fire sprinkler systems with a facility in Owings Mills,

Maryland, where it annually receives goods valued over $

50,000 directly from outside the State. The Company admits

52a

and I find that it is an employer engaged in commerce within

the meaning of Section 2(2), (6), and (7) of the Act and that

Locals 536 and 669 are labor organizations within the meaning

of Section 2(5).

II. Alleged Unfair Labor Practices

A. Bargaining Units

The Company was a member of the union-employer National

Fire Sprinkler Association when it signed the 1991-1994 NFSA

collective-bargaining agreements (Tr. 94-95). In the agreements

it recognized Local 536 as the bargaining representative of unit

employees on jobs within the territorial jurisdiction of

Baltimore and 10 miles beyond the city limits (G.C. Exh. 20 p.

5, art. 7; Tr. 27) and Local 669 on jobs in the United States

outside "the present territory" covered by agreements of Local

536 and other locals (G.C. Exh. 59 p. 7, art. 6).

The appropriate bargaining units are:

All journeymen sprinkler fitters and apprentices employed by

American Automatic Sprinkler Systems in the jurisdiction of

Local 536, excluding office clerical employees, guards, and

supervisors as defined in the Act. _

All journeymen sprinkler fitters and apprentices employed by

American Automatic Sprinkler Systems in the jurisdiction of

Local 669, excluding office clerical employees, guards, and

supervisors as defined in the Act.

B. Bad-Faith Bargaining

1. Background

53a

In the 1994 negotiations both Local 536 and Local 669 were

fully aware that union fire sprinkler companies were facing stiff

competition in the economic downturn that occurred during the

term of their 1991-1994 NFSA agreements. To cooperate in

making the companies more competitive, the Locals engaged

in concessionary bargaining for new agreements with National

Fire Sprinkler Association and the companies that were

negotiating separately. (Tr. 202-204, 920-921, 963, 1105; R.

Exh. 5 p. 1, par. 3 and p. 2, par. 2.)

Meanwhile, before the Company requested separate

bargaining with each of the two Locals, the Company withdrew

its NFSA membership and joined the nonunion-employer

American Fire Sprinkler Association (AFSA) (Tr. 94-95, 800,

1458; G.C. Exhs. 6, 25, 26, 60). Based on its newsletters,

AFSA was known to be "very antiunion" (Tr. 1052).

When Vice President Michael McCusker (the Company's

principal negotiator) was asked at the trial, "What's the

distinction between the AFSA and the NFSA?" he

demonstrated his lack of candor when he answered: "None

really that I know of. They're yst two different--" It was only

after further questioning that he admitted knowledge of the

union/nonunion distinction. When asked if member employers

of AFSA "by and large, are... parties to collective bargaining

agreements with unions," he first falsely repeated his lack of

knowledge, answering, "I don't know." He then admitted his

knowledge, testifying: "I would probably say they're not." (Tr.

863-864.)

2. Bargaining strategy to operate nonunion

The Company's conduct in its separate 1994 negotiations

with Locals 536 and 669 indicates that it was not bargaining in

good faith and that its Strategy was to provoke the Locals to

54a

strike--enabling it to hire permanent nonunion replacements

and operate nonunion.

Moreover, the substance of its first and final proposal for a

six-part, partial-page agreement is evidence of bad-faith

bargaining. If accepted, the proposed agreement would nullify

the separate bargaining units and authorize the Company to

operate nonunion, ensuring that the Locals would have no role

in representing the employees.

McCusker admitted that the proposal to each of the Locals

was the Company's "entire proposal" (Tr. 824) although it

contained no recognition clause, no description of the separate

bargaining units, and no contract term. He further admitted that

the proposal was intended to constitute the Company's

“complete, total agreement" and that the Company "did not

want [any other item] as part of a bargaining contract" because

the proposal "constituted everything that I needed" (Tr. 826).

The Company took the position in its brief (at 15) that the

proposal was offered and intended as the entire outline of a new

contract.

I note that in McCusker's July 25 letter to Local 536 (G.C.

Exh. 12) he enclosed "for your review, our [partial-page]

proposal for a new agreement. If acceptable, please sign it and

return it to our office [emphasis added]." Similarly in his July

14 letter to Local 669 (GC. Exh. 69) he stated that "We need to

implement this [partial-page] agreement now." Also, as found

below, after the Company declared an impasse in the

negotiations, then implemented the proposal as the "new

contract" and started operating nonunion, it avoided further

negotiations with the Locals.

55a

I discredit McCusker’s claims elsewhere in his testimony that

“not necessarily" was the proposal intended to be the "entire

contract" between the Company and either Local 536 (Tr.

46-47) or Local 669 (Tr. 825). I also discredit President Allen

Bolyard's claim that after the Company implemented the

six-part proposal, it intended that the subjects not included in

the proposal "would have to be discussed at a later date” (Tr.

806). By their demeanor on the stand, both Bolyard and

McCusker appeared to be less that candid.

The Company's proposed agreement read as follows (G.C.

Exhs. 12, 13, 54, 58):

I. WAGES

CLASSIFICATIONS WAGE RATE

Lead Foreman $ 24.00 - 22.00/hour

Foreman $ 22.00 - 17.00/hour

Journeyman $ 17.00 - 10.00/hour

Helper $ 10.00 - 6.00/hour

American Automatic Sprinkler Systems, Inc. will determine the

classification of employees, which will be subject to change

solely at its discretion.

II. TOOLS

No tools of any kind will be furnished to the employees.

Employees are required to bring their own tools and equipment.

Employer reserves the right to furnish tools or equipment to

employees at its discretion.

Il. MEDICAL INSURANCE

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Medical insurance will be offered in accordance with

the company's existing plan: Blue Cross/Blue Shield of

Maryland Preferred Provider.

IV. PENSION

A 401K plan exists for optional employee participation.

V. We will offer an apprenticeship training program

similar to that which is currently provided by the AFSA.

VI. We reserve the right to subcontract work for

economic reasons. This proposed "complete agreement"

omitted and would nullify the Company's recognition of Local

536's Baltimore-area jurisdiction in defining the contractual

bargaining unit and Local 669's jurisdiction outside that area in

defining a separate bargaining unit.

The proposal would authorize the Company, at its sole

discretion, to reduce the $ 21.45 and $ 22 journeyman sprinkler

fitter rates to as low as $ 10 an hour. It abolished its 5-year

NFSA apprenticeship program as well as the apprentices

classification and its percentage scale (from 35% to 85% of the

journeyman rate). It established a nonunit helper classification

outside the contractual recognition clauses that covered only

"journeymen" and "apprentices" in the expired agreements. It

authorized the Company to change the classification of any

employee--even a unit journeyman to a nonunit helper. (Tr.

862; G.C. Exhs. 20, 59.)

To replace the prior provision that "All tools will be

furnished," the proposal provided that "No tools of any kind

will be furnished to the employee. Employees are required to

bring their own tools and equipment." It eliminated the union

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health benefits and offered the Company's optional medical

plan in the unspecified future, but no immediate coverage. It

omitted the union pension benefits.

The partial-page proposal abolished the contractual territorial

jurisdictions of the Locals for job assignments. The Company

could assign employees to jobs located at unlimited distances

from their homes, without travel expenses. Bolyard admitted

that "under the proposed agreement, we don't have jurisdiction

limits." (Tr. 109-111).

The proposal abolished grievances and arbitration and

eliminated the provisions for union referrals, dues checkoffs,

and union security. It eliminated the overtime, show-up,

lunchtime, holiday, vacation, and other provisions. It reserved

an unrestricted right to subcontract work for economic reasons.

3. Three bargaining sessions with Local 536

a. Delayed bargaining

The Company delayed negotiations with Local 536 until May

31, the expiration date of their 1991-1994 NFSA agreement.

After Vice President McCusker sent his January 25 letter to

Business Manager Robert Fique, advising that the Company

would bargain independently, F ique requested McCusker to

“notify me what time and dates would be convenient for you"

to meet "to discuss alterations and amendments to our

collective bargaining agreement" (Tr. 191, 1093; G.C. Exhs. 6,

7, 20).

McCusker did not respond. Fique attempted to contact him

by telephone twice in F ebruary and once in March and finally

reached him on May 3. Fique then asked him to read over their

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expiring agreement, prepare desired amendments to help make

the Company more competitive, and start bargaining.

McCusker replied that he did not think that was necessary, "we

should wait to see what happened" with Grinnell Corporation,

the Company's largest competitor employing Local 536

members. Fique objected, stating "I don't think that's a good

idea." (Tr. 190-192, 1053-1060, 1350; R. Exhs. 6, 7.)

On May 16 Fique sent McCusker a letter, stating in part (G.C.

Exh. 10):

On February 4th at 1 p.m., February 10th at 3:30 p.m. and

March 8th at 11 a.m., I attempted to reach you by telephone, to

no avail.

During a more recent telephone conversation with Mr.

McCusker I was advised to take a wait and see attitude to allow

the Local #669 negotiations to give direction to our efforts. As

you know, I disagreed with that suggestion and requested Mr.

McCusker to review our current agreement and prepare

proposals for possible amendments.

As you know, time is running out. Our agreement expires in

15 days and I am still trying to persuade you to begin the

bargaining process. [Emphasis added.]

I discredit McCusker’s claims that he did not recall any

February and March messages from Fique and that it was F ique

who said to take a wait-and-see attitude about the negotiations

(Tr. 1326-1328; G.C. Exh. 45 pp. 3,21; R. Exhs. 6, 7).

b. First meeting

McCusker and Fique finally met for negotiations on May 31,

but did not discuss any of the specific provisions in the Local's

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proposed agreement. McCusker had failed to review the

Company's expiring NFSA agreement and to prepare desired

amendments. When Fique handed McCusker the Local's

proposal, McCusker merely placed it in a file, without any

questions or discussion. (Tr. 198-199; G.C. Exh. 11.)

McCusker recalled that as he was sitting down for the

meeting, Fique said, "By the way, I'll tell you right now, if you

want to try going nonunion, just say so. I'll give you an impasse

right now and we'll go our Separate ways." McCusker denied

any intention of going nonunion. F ique said, "I know you took

a plane down [to Atlanta] to see [McNeill Stokes] in January

and he's your lawyer [for the negotiations]." McCusker denied

that Stokes was his lawyer, stating "He's the AFSA lawyer. I'm

kind of being advised.” (Tr. 1329-1332.) President Allen

Bolyard testified that Stokes was the Company's counsel (Tr.

805, 1084-1085).

As a further explanation for Fique's "if you want to try going

nonunion" comment, the Company introduced the Local's

earlier October 1993 "Sprinkler Line" newsletter, Fique's

"quarterly report from the business manager." It read in part (R.

Exh. 5):

Employers Seeking Divorce

Three of our contractors have indicated that they may not

become signatory to our next collective bargaining agreement.

. .. [ hope that we can continue our relationship but if not, it

will be like any other divorce, we'll make sure that they walk

away broke. Or, we can stay happily married, with minor

squabbles.

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When called as a defense witness F ique indicated (Tr. 1047)

that he was referring in the 1993 newsletter to the Company, to

another employer (possibly Reliance Fire Protection), and to

"Automatic" Sprinkler. See the Board's recent decision in

"Automatic" Sprinkler Corp., 319 N.L.R.B. No. 57 (Oct. 25,

1995) (employer withdrew from NFSA and unlawfully

subcontracted all its work).

Fique was aware that the Company (as it and other union

contractors in past years) had previously experienced a

cash-flow problem and had been delinquent in its contributions

to the NASI union health and pension benefit funds. The

Company, however, had settled a NASI lawsuit against it and

in March had made a lump sum payment of over $ 63,000 to

the funds. It was currently making the contractual benefit

contributions. (Tr. 1061, 1333-1334, 1427; G.C. Exhs. 6, 20, 45

p. 2, 59.) Contrary to McCusker’s claim at the trial that he

complained to Fique at the first meeting that the Company was

"bleeding [financially] from all sides" (Tr. 1333), Fique

credibly testified that he did not recall McCusker’s stating

anything in the meeting about the Company's financial

condition (Tr. 1060).

c. Second meeting

Again in the second meeting on June 8, McCusker did not

discuss with Fique the proposed terms of a new contract. The

meeting was held with representatives of the Company's two

largest competitors employing Local 536 members. They were

Chet Tucker, the regional director of Grinnell Corporation, and

Charles Cangemi, the president of Reliance Fire Protection.

(Tr. 200-201, 1072, 1092-1093.)

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Fique was engaging in concessionary bargaining with Tucker

and Cangemi. McCusker did not participate in the discussion

until the end of the 3- or 4-hour meeting when Cangemi said,

"Mike, we haven't heard from you during the whole meeting.

Do you have anything to say?" McCusker then complained

about general contractors beating down bid prices, problems in

collecting money from customers, and general industry

problems. (Tr. 201, 1097.)

According to McCusker, Tucker "had a lot of experience" and

Cangemi "knew what he was doing from generations" in the

business, but "I had never been in negotiations before" and "I

was way under qualified. . . . I would have been an

impediment. Anything I said to what was going on would have

been a detriment to those guys .. . I had nothing to contribute

except whining, bitching." McCusker recalled that Cangemi

said, "Yeah, he's just sitting back there learning. We'll take care

of it, Mike. We'll settle it." (Tr. 1339, 1341-1342, 1359.)

d. The Company's nonunion proposal

On July 25, the week before F ique reached agreement on new

contracts with Grinnell and Reliance, McCusker sent a letter to

Fique, enclosing the Company's only proposal, the partial-page

agreement. As discussed above, the proposed agreement would

authorize the Company to operate nonunion and to subcontract

all its work--as the Company's competitor, "Automatic"

Sprinkler, was then doing. "Automatic" Sprinkler Corp., above.

The letter, implying that the Company was not aware of the

Status of the Local's negotiations with the Grinnell, read (G.C.

Exh. 12):

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It was clear as a result of our last round of negotiations [on

June 8], that you were moments away from reaching an

agreement with the dominant area company [Grinnell]. We

_agreed at that time to wait until said agreement was made, as it

would then be a possibility of our company agreeing to an

identical agreement.

That was nearly two months ago. We can no longer assume

that you are near an agreement with anyone. We need to meet

and reach an agreement on our own. This should be done as

quickly as possible, as we are as yet unable to properly bid our

work. Please check your schedule and contact our office with

a time and date that you can meet with us. We are available to

meet any time [on] any date. We have enclosed for your

review, our [partial-page] proposal for a new agreement. If

acceptable, please sign it and return it to our office. We look

forward to meeting with you within the next few days.

[Emphasis added. }

e. Third meeting

Before Fique's third meeting with McCusker on August 4, the

Local 536 membership voted to reject the Company's July 25

proposed partial-page agreement, but to ratify the new

collective-bargaining agreements with Grinnell and Reliance,

the Company's largest competitors employing Local 536

members. The Local had agreed in those contracts to lower

wages and other economic concessions. (Tr. 202-206, 1105.)

As Fique credibly testified, throughout the bargaining process

"I was led to believe (by McCusker] that once we reached

agreement with Grinnell that [the Company] was just going to

sign that agreement” (Tr. 1068). "Grinnell consistently employs

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the majority of our members, probably twice as many as [the

Company]" (Tr. 1093).

As quoted above, McCusker appears to have acknowledged

this understanding when he wrote in his July 25 letter (G.C.

Exh. 12) that "We agreed [at the June 8 meeting with

representatives of Grinnell and Reliance] to wait until [the

Grinnell agreement with Local 536] was made, as it would then

be a possibility of our company agreeing to an identical

agreement." Neither in that letter, nor in any other

correspondence with Fique, did McCusker claim that the

Company was for some reason financially unable to pay the

union wages and benefits that Grinnell and Reliance would be

paying members of Local 536.

In the August 4 meeting Fique informed McCusker that the

membership had rejected the Company’ proposal by a vote of

60-to-0, but had ratified the Grinnell and Reliance agreements.

Fique handed McCusker a summary of the Grinnell agreement

and, "because I was led to believe that [McCusker] was going

to sign that document," stated that they should discuss it.

McCusker "said he wanted to talk about his proposal. He didn't

want to talk about those agreements." (Tr. 206, 1067, 1072,

1106-1107, 1345; G.C. Exh. 16.)

McCusker and Fique then discussed part 2 of the Company's

proposal that "No tools of any kind will be furnished to the

employee." As Fique credibly testified, contrary to McCusker’s

claims (Tr. 206-207, 1105-1106, 1346):

He told me he was talking about all tools. And I told him

some of the tools of our trade are very expensive. Some of

them cost thousands of dollars. Is he talking about those tools?

And he said, "Yes."

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[1] said what happens if a member is on the job and the

toolbox is broken into and somebody steals a power machine?

Would the member be required to buy a new power machine?

Mike [McCusker] said, "Yes". . . . I let Mike know . . . it was

ridiculous. It might be an asshole proposal. I used as an

example that. . . . lf somebody broke into the office and stole

the secretary's computer, would Judy be required to replace the

computer at her cost? And he said, "Absolutely."

I infer that McCusker's placing this so-called "ridiculous"

interpretation on part 2 of his proposed partial-page agreement

(contrary to his interpretation of the same provision earlier on

July 14 in his negotiations with Local 669, discussed below)

was intended to frustrate the negotiation of any agreement with

Local 536.

Earlier in the meeting McCusker "tossed" a copy of the

Company's Blue Cross/Blue Shield Medical Plan (a booklet

about an inch or so thick) on the table and said. "This is our

medical plan" and (contrary to McCusker's denial, Tr. 69),

"You accept that medical plan, or we're at impasse." Fique

responded that "We're not at impasse" and that he would look

at the medical plan and get back to McCusker on it. (Tr. 208,

1070-1071.)

The entire meeting lasted no longer than 30 minutes. The

Company still refused to discuss any of the Union's proposal or

the concessions (including some of McCusker's ideas) that

Local 536 had made in the new Grinnell agreement. McCusker

had not referred to his proposed partial-page agreement as his

final offer. (Tr. 208-210, 1072, 1106.)

65a

Fique, who impressed me most favorably as a truthful,

forthright witness, credibly testified upon questioning by the

Company's trial counsel (Tr. 1104-1 105):

Q. [BY MR. DUBE] Did Mr. McCusker during your

negotiating sessions with him or phone conversations. . . tell

you that he thought his proposal was important, or urgent, or

necessary for his company financially?

A. I didn't get his proposal until the end of July and we only

had one meeting after that and, no, we didn't discuss company

finances [emphasis added].

Q. Before . . . you got the July 25 letter with the specific

proposal, had he told you in words or in substance that it was

vital or important for his company to obtain changes from the

existing contract?

A. I don't think so, but he didn't have to tell me that. I think

I knew that with all the companies. That's why I cut $ 5.00 an

hour.

Q. I'm sorry, that's why?

A. That's why I rewrote the collective bargaining agreement

and made so many concessions. This has been a real tough

industry for the last three years.

After the August 4 meeting Fique referred the Company's

medical plan to a consultant. On August 9 he notified

secretary-receptionist Kimberly Goldbeck to give McCusker

the message that "I am pretty sure we can work the medical

plan into our agreement." (Tr. 209, 1075, 1104; R. Exhs. 6, 8.).

The next morning, however, before he and McCusker could

66a

meet again, Fique received McCusker's August 9 letter

declaring an impasse and advising that the Company was

implementing its partial-page proposal on August 11.

4. Three bargaining sessions with Local 669

a. First meeting

Before their first meeting on May 20, the Company had on

March 22--9 days before the March 31 expiration of their

1991-1994 NFSA agreement--mailed Loca] 669 the proposed

partial-page agreement which, as discussed above, would

authorize the Company to operate nonunion and to subcontract

all its work. Business Agent John Garthe replied on March 29

that "Local 669 does not agree to your contract proposal.”

(G.C. Exhs. 54, 62.)

President Bolyard joined McCusker in the May 20 meeting.

This was the only meeting in which Bolyard was present with

McCusker, who had no prior experience in collective

bargaining. Garthe and Vice President John Bodine represented

Local 669. They discussed the Company's March 22 proposal

(which Bolyard testified he, McCusker, and Counsel McNeill

Stokes had prepared), Local 669's counterproposal, and

comparable rates of plumbers, gas fitters, and steam fitters in

the Baltimore area. As requested, Garthe showed the Company

a copy of the "economic highlights” of Local 669's newly

negotiated nationwide NFSA agreement. He emphasized that

it was not Local 669's proposal. (Tr. 99, 826-828, 916-921,

1358-1361; G.C. Exhs. 66-68.)

As Garthe credibly testified, "the whole thing around the

negotiations was that Local 669 was looking to make our

contractors in the area competitive” and "there was movement

67a

[on] the wage proposals and apprenticeship ratio [to

journeymen on the job]" (Tr. 920-921 ). He later explained (Tr.

963):

Basically we all agreed that we had to make our contractors

more competitive and that Local 669 was in the business of

making our contractors competitive because we wanted them

to stay in business and we wanted them to employ our people.

b. Second meeting

Before McCusker's second meeting with Garthe and Bodine

on July 14, McCusker sent Garthe a letter on June 23, stating

in part (G.C. Exh. 69):

We need to finalize our agreement. We need to meet and

negotiate the changes within our [March 22 partial-page]

proposal. We need to know which item you are willing to

discuss or are in agreement with. We are available any day. We

need to implement this [partial-page] agreement now.

[Emphasis added. ]

In the July 14 meeting they discussed only the proposed

partial-page agreement. McCusker stated that tools the men

would be required to supply under part 2 of the proposal did

not include scissor lifts and power machines. When Garthe

presented a counterproposal, McCusker said it was too much

for him to go through, that he did not want to discuss anything

in it, and that he would take it home, review it, and come back

with recommendations of what he thought was useful and not

useful. Then "we could have a meaningful negotiation session

at our next meeting." (Tr. 924-925, 979, 1362-1366; G.C. Exh.

71.)

68a

c. First claimed impasse

Despite McCusker’s promise at the July 14 meeting to review

Local 669's proposal for "meaningful negotiation" at the next

meeting, McCusker sent Garthe a letter on July 22, referring to

McCusker's March 22 proposal as our "last and final" offer.

The letter stated in part (G.C. Exh. 72):

It is now almost four months since the expiration of the

collective bargaining agreement, and we are getting nowhere in

our negotiations. We are polls apart on the economic issues of

our proposal that we need to be competitive. Local 669's

position has been, and continues to be, that you will not

consider our fringe benefit proposal but insist upon your fringe

benefits, and you have not agreed to negotiate on our wage

proposals. We are certainly at impasse on these economic

issues.

You just gave us a forty-three page proposal with provisions

that’ are totally unacceptable in light of the competitive

situation. Accordingly, we intend to implement our last and

final offer which is attached on August 1, 1994. In the

meantime, we will be glad to meet with you concerning the

economic issues. I am available any day next week. [Emphasis

added. }

The Local responded on July 27, denying McCusker’s

“version of the relevant facts." The letter stated (G.C. Exh. 73):

"As you are well aware, the parties have not reached an

impasse. We feel that we have, indeed, made progress in

negotiations and we still have room for movement. . .. We are

‘ available to meet with your organization on August 11, 1994."

Upon receipt of this faxed letter McCusker replied on July 27

(G.C. Exh. 74): "We must meet before August 1, 1994. We

69a

need to know, in writing, which of the economic parts of our

Proposal you agree with. Until now, you have been unwilling

to agree to any of them."

Because of conflicting schedules the Company and Local 669

agreed to meet on August 8 (G.C. Exhs. 75, 76, 78). Garthe

stated in his July 28 letter (G.C. Exh. 75) that "As we have

stated before, the parties are without question, not at impasse.

Further, we will communicate our position relative to your

proposals at the bargaining table." McCusker responded in his

August 3 letter (Tr. 78) that "We will finalize our negotiations,

‘at the bargaining table' on August 8, 1994."

d. Third meeting

In the August 8 meeting McCusker stated he had not had time

to review the Local's July 14 propesal, that he did not want to

discuss it, and that he wanted to discuss only the six parts of his

proposal. McCusker admitted at the trial that when Garthe said,

"Let's go through" the Local's proposal, I said "No, no, I'm not

going through that. I don't have the time to sit here and go

through that miserable stack of paper. .. . You're wasting my

time." Finally, however, McCusker reluctantly agreed to go

through the Local's proposal. (Tr. 934-935, 1368-1369.)

In the discussion that followed, McCusker stated that the

Company had lost money for the last 3 years and Garthe

lowered his wage proposal to about $ 22 for foreman, $ 20 for

journeyman, and $ 6.60 to $ 7.70 for trainee. Garthe wrote in

his notes of the meeting that the Company "needs the proposed

wage rates to compete because they have lost money the last

three years. Is a fact that they have lost money." (Tr. 813,

950-951, 954-955, 961-963, 985-986, 1381-1392; R. Exhs. 3,

4, 13, 14.)

70a

Garthe credibly testified that when he lowered his wage

proposal, McCusker said he agreed with those wages. But when

Garthe said, "now that we have the wages settled," McCusker

said, "Oh, no, I didn't agree to that." (Tr. 937, 950-951, 968.)

McCusker claimed at the trial that he did not know why he

agreed to the lowered wages. He testified (Tr. 1376):

It's accurate that that's what happened in the meeting. And I to

this minute don't understand why that happened, and I do recall

it like it was yesterday.

John [Garthe] said something like, so these wages are okay

with you? Something like that. And I said, yeah. So we agree

on that? Yes. Move on. When we got to another place . . . he

said, wait a minute, you just agreed on those wages. I said, I did

not. . . . 1 don't agree. I agree with my proposal, and I think we

should put it in play, but I don't agree with anything else.

[Emphasis added. ]

I infer that after McCusker agreed to the lowered wages that

‘Garthe was offering, he realized that doing so conflicted with

the Company's plans to implement its partial-page proposal,

without change. He then falsely denied agreeing to the lowered

wages and stated that "I agree with my proposal . . . I don't

agree with anything else." (President Bolyard testified that the

Company did not "ever take any position which differed" from

the March 22 proposal, which he, McCusker, and McNeill

Stokes prepared, Tr. 100, 805-806.)

McCusker further admitted that as they then went from one

provision in the Local's proposal to the next, "I wasn't paying

much attention" (Tr. 1371).

T7la

When Garthe informed McCusker that he had seen the

Company's medical plan for the first time that morning and that

he wanted someone knowledgeable to look over it, McCusker

said that would be fine with him, he would welcome someone

else looking at it. McCusker admitted that after the review of

the medical plan, "they were going to get back to [me] with

what they thought about it.” (Tr. 831-832, 931 , 939-940; G.C.

Exh. 77.)

The negotiators, however, had no opportunity to discuss the

medical plan and seek agreement on it and other issues,

because the next day (Tuesday, August 9), as discussed below,

McCusker sent the Local a letter again declaring an impasse

and stating that the Company was implementing its March 22

proposal on Thursday, August 11.

5. Declaring impasse and operating nonunion

Evidence of the Company's conduct away from the

bargaining table supports a finding that the Company had not

been bargaining in a good-faith effort to reach agreements with

the Locals, but was determined to operate nonunion. Even

though neither Local went on the strike that it expected, the

Company began operating nonunion and excluded the Locals

from any role in representing the employees.

On August 9 Vice President McCusker sent Locals 536 and

669 "impasse" letters, attaching a copy of the Company's

proposed partial-page agreement. The "impasse" letter to Local

536 referred for the first time to the proposal as "our final

offer" or "final proposal." It read (Tr. 210; G.C. Exh. 13):

In light of the fact that Local 536 has rejected our final offer

and the membership has turned down our final offer 60 to 0, we

72a

are at impasse. Accordingly [the Company] will implement the

terms and conditions of its final proposal, a copy of which is

attached, on Thursday, August 11, 1994. [Emphasis added. ]

The "impasse" letter to Local 669 read (G.C. Exhs. 58, 81):

You have failed to accept our final offer. You have had this

offer since March 23, 1994. You have rejected this offer four

times [once by mail and three times in meetings] during the

past 140 days. We are at impasse. Accordingly [the Company]

will implement the terms and conditions of its final proposal,

a copy of which is attached, on August 11, 1994.

McCusker admitted that he sent the August 9 letters for

next-day delivery "to make sure they got it" on the morning of

August 10 "so that way they could call their membership and

tell them what was going on" (Tr. 1354-1355). Although not

admitted, I infer that the Company sent the "impasse" letters for

early delivery on August 10, expecting strikes to be called,

enabling it to employ permanent nonunion replacements.

The ads that the Company placed for experienced employees

in the Sunday, August 14 editions of the Baltimore Sun,

Washington Post, and Carroll County Times clearly confirm

the expectation of strikes. The Company had never placed an

ad for new employees before (Tr. 807). The ads read (G.C.

Exhs. 21, 53):

SPRINKLERS/CONSTRUCTION. American Automatic

Sprinkler Systems, Inc. is seeking to hire individuals with

experience in commercial construction. The work involves the

installation of sprinkler systems. Interested individuals should

contact the Personnel Dept. at 410-363-3995.

73a

Please note that there may be a labor dispute in progress and

persons hired will work as permanent replacements and may be

required to cross the picket line. [Emphasis added. ]

That week President Bolyard personally revealed to a Local

669 member that the Company was planning to operate

nonunion. Journeyman Clarence Sampson credibly testified

that when he went to the shop to pick up an air compressor,

Bolyard came out and said, "I'd like to speak to you in my

office." Later in the office Bolyard told him (Tr. 1006-1007):

We are sending [the Local] the letter that's saying that we are

at an impasse. It will be delivered probably by midnight

tomorrow night. . . . At that time we will no longer be a

member of this Local. . . . It is like a 20-year marriage, I have

been with the Local. The marriage is over. [Emphasis added.

On August 11, as discussed below, the Company

implemented the partial-page proposal as the "new contract."

Bolyard and Superintendent Duane Forsythe delivered the

August 9 "impasse" letter (with the proposal attached) to

employees at the Local 536 jobsites and Chief Engineer Scott

Barnhart contacted the Local 669 members. The three

spokesmen told some of the employees that the Company was

nonunion. Bolyard admitted (Tr. 70, 817) that the Company

required the employees "to come in and fill out new

applications."

The Company considered all of the bargaining unit jobs to be

vacated. Bolyard admitted stating in his pretrial affidavit that

"Technically we have implemented new terms. We did not

have any employees." (Tr. 817-818.) He and Forsythe, as

discussed below, required that if the Local 536 members

wanted to continue working, they must go to the office, submit

74a

an application for employment, discuss individually their

classification, wage rate, and working conditions with

Forsythe--without any union participation--and agree to accept

what the Company offered. The Company had ceased its

practice of calling the Locals for referrals of employees. It was

not calling them, despite (a) the absence of a strike, (b) the

Company's shortage of qualified fitters, as discussed below,

and (c) the poor response of nonmembers of the Locals to the

August 14 newspaper ads and the ads it placed for experienced

employees 2 weeks later on August 28 (G.C. Exh. 22).

McCusker admitted that (nonmembers') response to the

newspaper ads was "predominantly from helpers without many

skills” (Tr. 1451).

Instead of calling the Locals as before, McCusker wrote both

Locals on August 18 that "All personnel interested in

employment under the terms of our final offer, are requested to

apply for work at our office. Applicants who are members of

[Local Union 536 or Local Union 669] can apply between 9:00

a.m. and 4:00 p.m." (G.C. Exhs. 14, 56). When members of the

Locals did apply, as discussed below, the Company filed their

applications without hiring any of them. Bolyard admitted that

before August 11, they "Usually just called the business

agents” for new employees (Tr. 806).

The Company was operating nonunion, excluding both

Locals from playing any role in representing the employees.

6. Avoiding further bargaining

In reply to McCusker’s August 9 "impasse" letter, Local 669

wrote him on August 19 (G.C. Exh. 82), denying an impasse

and requesting: "Please contact us to arrange a mutually

acceptable date to resume negotiations between the parties"

75a

(emphasis added). Fique wrote him on August 30 for Local 536

(G.C. Exh. 15), stating that "I have evaluated your company

medical program" and that he was seeking continued

bargaining: "Please submit a list of times and dates that will be

convenient to you" (emphasis added).

The Company gave its only response on September 6. This

was nearly a month after it began operating nonunion under its

"new contract" (the implemented partial-page proposal), which

nullified the separate bargaining units based on the territorial

jurisdictions of the Locals.

During that time the Company had excluded the Locals from

its individual discussions with their members about continued

employment and it was not calling the union business agents

for referrals. Admittedly recognizing no "jurisdiction limits" in

assigning employees, the Company had already assigned a

Local 536 member to work in Virginia (Local 669's

jurisdiction) and had told a Local 669 member that if he wanted

to work, to go to work in Baltimore (Local 536's jurisdiction).

(Tr. 109, 334-335, 877-878.) On September 6 it required all

field employees "to have their own means of transportation to

the various jobsites around Maryland, D.C. and Virginia

[emphasis added]," disregarding the previously recognized

territorial jurisdictions of the Locals in what were separate

bargaining units (G.C. Exh. 39).

The Company had twice placed newspaper ads for

experienced employees and it was hiring nonmembers of

Locals 536 and 669, but was refusing to hire any of the union

members who applied. By September 6 (beginning on August

16) it had hired 16 nonmembers, including five nonunit helpers

to do bargaining unit work, as discussed below. (Tr. 449-450,

771, 972-973, 1248-1249; G.C. Exh. 30; R. Exh. 11).

76a

On that September 6 the Company also summarily discharged

three Local 536 members at the FANX jobsite, without prior

warning, purportedly for lack of productivity. One of them,

journeyman Stephen Paca, telephoned McCusker afterward and

asked if he was fired because he was a union member.

McCusker answered no, that they "were still a union

contractor" (contrary to the statements by Bolyard, Forsythe,

and Barnhart to some of the employees that the Company was

then nonunion, as discussed below). Paca asked how could the

Company then "have people on the job that weren't members

of the Local." As Paca credibly testified, "I don't believe he

responded to that." (Tr. 439, 446-447.)

McCusker's September 6 response to the Locals' August 19

and 30 bargaining requests was his identical letters to the two

Locals. In the letters he ignored the requests to "contact us to

arrange” meeting dates and "submit a list of times and dates" to

continue negotiations. Although he expressed a willingness to

negotiate, the letters reveal that the Company had no intention

of negotiating in good faith with the Locals as representatives

of employees in the separate bargaining units based on the

Locals’ territorial jurisdictions. The letters refer only to

discussing the terms and conditions "within our final proposal,”

which omits and nullifies the sepsrate bargaining units and

authorizes the Company to operate nonunion.

McCusker's September 6 letters state (G.C. Exhs. 18, 83):

We are prepared (and have always been prepared) to meet

with you to negotiate. Please be prepared to discuss the terms

and conditions within our final proposal [emphasis added].

Please feel free to contact our office and schedule a meeting at

your convenience.

WORE ALR RSNA 3

77a

If you have any questions, please do not hesitate to contact

our Office.

In Fique's September 12 reply letter he reviewed his

continuing unsuccessful efforts to resume the negotiations.

These efforts included four times on September 9, the day after

he received McCusker's September 6 letter. Having received no

response from McCusker, Fique was proposing in writing a

choice of seven nearby dates for the next meeting (G.C. Exh.

19):

On September 8, 1994 I was surprised to receive a letter from

you requesting continuation of the collective bargaining

process.

As | indicated to you during our meeting August 4th,

1994--my telephone message to Kim [Goldbeck] August 9,

1994--my letter to you August 30, 1994--three telephone calls

to your office September 9, 1994 and my fax to you also on

September 9, 1994--[Local 536] remains ready to continue

negotiations. [Emphasis added]

I am available: [listing seven dates from September 14 to

September 26].

Looking forward to continuing our long, harmonious

relationship, I remain, Cordially yours.

McCusker never responded (Tr. 215). Despite his stated

willingness to meet, he avoided further negotiations, refusing

to propose or agree to any meeting dates. The Company

continued to operate nonunion, excluding both Locals from

playing any role in representing the employees.

7. Contentions of the parties

78a

The General Counsel contends in its brief (at 1, 76, 94) that

the evidence shows that the Company bargained "dilatorily and

in bad faith" and entered into negotiations with both Local 536

and Local 669 with no intention of reaching an agreement.

Referring (at 98) to the Company's partial-page proposal, he

cites Palace Performing Arts Center, 312 N.L.R.B. 950,

958-959 (1993), enf'd. mem. 149 L.R.R.M. 3120 (2d Cir.

1994), in which the Board held:

We agree with the judge's conclusion that the [employer]

engaged in overall bad-faith bargaining. . . . We agree that the

substance of the [employer's] proposals is a factor supporting

a finding of overall bad-faith bargaining under Reichhold

Chemicals, 288 N.L.R.B. 69 (1988). These proposals were not

merely "unacceptable" to the Union, as the judge noted.

Considered in the context of the other conduct discussed above,

the [employer's] proposal objectively indicated the [employer's]

intent to frustrate negotiations by proposing an extreme

limitation on the expired contract's scope by "gutting" the

[20-page] contract and converting it to a half-page document

containing three flat rates. [Emphasis added. ]

Local 669 contends in its brief (at 26-27) that the Company's

"bad faith is clearly reflected in the contents of its proposals,

among other things" and that "In addition to its bad faith at the

bargaining table, [the Company] also engaged in substantial

independent violations of the Act, which shed light on the

Company's overall illegal objectives." After citing Palace

Performing Arts, it also cites Bethea Baptist Home, 310

N.L.R.B. 156, 157 (1993), in which the Board held (footnotes

omitted):

ee ee ea ne

POP INS GR h

UN NET OR G

79a

We believe that the [employer's] conduct manifests a mindset

at odds with reaching an agreement with the Union.

Finally, we note that the [employer] insisted on proposals

which would leave the [union] with fewer rights than imposed

by law without a contract, made no significant concessions, and

advanced proposals which would cut back on existing terms

and conditions. At the same time, the [employer] sought

through its proposals to ensure that the [union] would have no

role in the representation of bargaining unit employees by

taking an intransigent position against including arbitration,

visitation, dues checkoff, union security, or any provision for

union postings at the facility. While the [employer] was not

compelled to agree to any particular proposals by the [union],

we find that, viewed in their totality, the [employer's]

substantive proposals constituted additional evidence of the

[employer's] bad faith. [Emphasis added. ]

The Company in its brief (at 2, 12-13) "submits that there is

no meaningful evidence of dilatory or evasive bargaining." It

argues that "the record in this case reflects a series of

misconceptions about [the] 1994 negotiations [between the

Company and the two Locals], with an ensuing series of

assumptions or suspicions about actions taken by [the

Company]."

Ignoring the particulars of its partial-page proposal to both

Locals and its conduct both at and away from the bargaining

table, the Company contends (at 2, 9, 14) that "the fundamental

allegation in these cases, bad-faith bargaining, is unsupported

by the evidence." It argues that the negotiations "may reflect

difficult or ‘hard’ bargaining between parties, but not an

unlawful refusal to bargain," that the Locals were "not willing

80a

to accept the substantial concessions demanded by [the

Company ], and that a deadlock was therefore the result."

8. Concluding findings

I find that in the Company's 1994 separate negotiations with

Locals 536 and 669, its conduct both in the bargaining sessions

and away from the bargaining table, in combination with the

substance of its first and final partial-page proposal, shows that

the Company was negotiating in bad faith with no intention of

even seeking an agreement with either Local.

As found, after the Company withdrew from the

union-employer NFSA and joined the nonunion-employer

AFSA, it met in three bargaining sessions with each of the

Locals, then declared an impasse. It had proposed to each of

them the same partial-page proposal.

The proposal would authorize the Company to operate

nonunion, ensuring that the Locals would have no role in

representing the employees. Although offered as a complete

agreement, the proposal! contained no recognition clause, no

description of the bargaining units, and no contract term. It

would nullify the separate bargaining units, which were based

on the territorial jurisdictions of the two Locals.

The Company delayed bargaining with Local 536 until May

31, the expiration date of their 1991 NFSA agreement. In this

first bargaining session and in the second meeting on June 8

with representatives of Grinnell and Reliance, Vice President

McCusker deceived Business Manager Fique into believing

that once Fique reached agreement with Grinnell (the

Company's largest competitor employing Local 536 members),

the Company "was just going to sign that agreement."

NAIR RPRO RSTn ticston eran ser tarecienreacesraae

8la

On July 25, the week before Fique reached agreement on new

contracts with Grinnell and Reliance, McCusker mailed the

partial-page proposal "for a new agreement,” requesting that "If

acceptable, please sign it and return it to our office."

At the third meeting on August 4, after the Local's

membership rejected the Company's proposed partial-page

agreement by a vote of 60-to-0 but ratified the new Grinnell

and Reliance agreements, McCusker refused to even discuss

the Local's concessions in the new Grinnell agreement. Then

when discussing the Company's proposal, McCusker placed

what Fique called a "ridiculous" interpretation on the provision

that "Employees would be required to bring their own tools and

equipment." McCusker stated that this included such expensive

tools as a power machine, evidently to frustrate the negotiation

of any agreement with the Local. McCusker continued his

refusal to discuss the Local's proposal.

In the first Local 669 bargaining session on May 20, the

Company and the Local discussed both the Company's

proposed partial-page agreement and the Local's proposal.

Before the second meeting on July 14, McCusker wrote the

Local on June 23 that "We need to meet and negotiate the

changes within our proposal" and "We need to implement this

[partial-page] agreement now." In the July 14 meeting they

discussed only the Company's proposed partial-page

agreement. McCusker refused to discuss the Local's

counterproposal, but promised that he would take it home,

review it, and come back with his recommendations for "a

meaningful negotiation session at our next meeting."

Reneging on this promise, McCusker wrote the Local on July

22, declaring an impasse on the economic issues and

announcing that "we intend to implement our last and final

82a

[partial-page] offer which is attached on August 1, 1994." Then

when the third meeting was held on August 8, McCusker stated

he had not had time to review the Local's July 14 proposal and

that "I don't have time to sit here and go through that miserable

stack of paper. ... You're wasting my time."

McCusker finally agreed to go through the Local's proposal.

He then stated that the Company had lost money for the last 3

years, the Local lowered its wage proposal, and McCusker

admittedly agreed to the lowered wages. When, however, the

Local later told him "you just agreed on those wages,"

McCusker falsely denied doing so and admittedly said "I agree

with my proposal. . . . I don't agree with anything else."

McCusker further admitted that as they then went from one

provision in the Local's proposal to the next, "I wasn't paying

much attention." He obviously was not bargaining in good

faith.

On August 9, following his third meetings with Locals 536

and 669 on August 4 and 8, McCusker declared an impasse in

the negotiations with the Locals, sending each Local an

"impasse" letter, attaching a copy of the Company's proposed

partial-page agreement.

Evidence of the Company's conduct away from the

bargaining table supports a finding that the Company had not

been bargaining in a good-faith effort to reach agreements with

the Locals, but was determined to operate nonunion. Even

though neither Local went on the strike that it expected, the

Company began operating nonunion.

On August 11 the Company implemented the proposed

partial-page agreement as the "new contract." It disregarded the

Locals’ territorial jurisdictions in assigning their members. It

83a

ceased calling the Locals for the referral of employees and told

some of the employees it was nonunion. It twice placed

newspaper ads for experienced employees and hired nonunion

employees, including nonunit helpers to perform bargaining

unit work, but refused to hire any of the Locals' members.

Meanwhile, as found below, it was dealing directly with the

employees. It avoided further negotiations with the Locals and

excluded both Locals from playing any role in representing the

employees.

As in Palace Performing Arts, 312 N.L.R.B. 950, above, the

substance of the Company's implemented partial-page proposal

is "a factor supporting a finding of overall bad-faith bargaining

under Reichhold Chemicals, 288 N.L.R.B. 69 (1988)." The

proposal was not merely "unacceptable" to the Locals, but

"considered in the context of the other conduct,” it "objectively

indicated [the Company's] intent to frustrate negotiations by

proposing an extreme limitation on the expired" agreements’

scope by "gutting" and "converting" them to a partial-page

document.

As in Bethea Baptist Home, 310 N.L.R.B. at 157, above, the

Company sought through its proposed partial-page agreement

"to ensure that the [Locals] would have no role in the

representation of bargaining unit employees.” The proposal left

employee classifications and wage rates to the Company's sole

discretion.

It omitted any role of the Locals in determining what tools and

equipment the employees would be required to buy and when

medical insurance would be offered and at what cost to the

employees. It abolished grievances and arbitration and

eliminated union referrals of employees, dues checkoffs, and

union security.

84a

The Company's "new contract,” as in that case, "cut back on

existing conditions," but without the Company's making any

concessions. It authorized the Company to reduce the $ 21.45

and $ 22 journeyman sprinkler fitter rates to as low as $ 10 an

hour. It abolished its NFSA apprenticeship program and the

apprentices classification and its percentage scale (from 35% to

85% of the journeyman rate) and added a nonunit $ 6 to $ 10

helper classification.

The "new contract" eliminated the union pension benefits and

provided the employees no immediate health insurance. It

nullified the separate bargaining units that were based on the

territorial jurisdictions of the Locals. It made other unilateral

changes (listed in more detail below), including the elimination

of Local 669's jobsite inspection privileges and employee travel

expenses (G.C. Exh. 59 p. 11, arts. 10, 11). By reserving the

unrestricted right "to subcontract work for economic reasons"

without notice to the Locals or bargaining, it deprived the

Locals of a bargaining right imposed by law without a contract.

As in Bethea Baptist Home, the Company's conduct

"manifests a mindset at odds with reaching an agreement" with

the Locals. Although it "was not compelled to agree to any

particular proposals," I find that, "viewed in their totality," the

Company's "substantive [partial-page] proposals constituted

additional evidence of the [Company's] bad faith."

I therefore find that the Company, as shown by its overall

conduct--including the substance of its first and final proposed

partial-page agreement--bargained in bad faith in violation of

Section 8(a)(5) and (1) of the Act and precluded valid impasse

in the negotiations with Locals 536 and 669.

PALIN DIO Met Bl mgs

a ee

} 3

85a

Unquestionably, there exists a Section 9(a) relationship

between both Locals 536 and 669 and the Company (Tr.

187-188, 801-803; G.C. Exh. 20 p. 7, art. 3; G.C. Exhs. Diy Ste

59 p. 4, art. 3). Decorative Floors Inc., 315 N.L.R.B. 188, 189

(1994); Triple A Fire Protection, 312 N.L.R.B. 1088, 1089

(1993).

C. Direct Dealing with Employees

On August 11 President Bolyard and Superintendent Forsythe

went to the Local 536 jobsites to distribute copies of the

Company's "impasse" letter, with the partial-page proposal

attached. Regarding the proposal, Forsythe testified that either

Bolyard or McCusker told him that it was the "contract" that

they were going to implement (Tr. 1290). Meanwhile, Chief

Engineer Scott Barmhart contacted the Local 669 members.

Bolyard admitted that the employees were required "to come

in [from the field to the office] and fill out new applications."

He explained, "Technically we have implemented new terms.

We did not have any employees." (Tr. 817-81 8.) Vice President

McCusker testified that the employees were supposed to meet

Forsythe (on August 12) for him to explain what their new

wage rates and benefits were (Tr. 850).

At the Shot Tower jobsite on August 11, when Bolyard talked

to the employees and handed journeyman Joseph Brown the

letter and proposal, Brown asked, "You mean to tell me [that

with my journeyman experience and schooling] you would

offer me a $ 10 an hour labor job?" In response, regarding

Brown's wage rate under the $ 10 to $ 17 sliding journeyman

scale, Bolyard replied, "That's not in cement. . . . It's negotiable

[emphasis added]." (Tr. 221, 226.) As apprentice Todd Hood

also credibly recalled, when Brown asked if Bolyard would pay

86a

a mechanic $ 10 an hour, Bolyard said that it was "negotiable"

(Tr. 234, 241-242).

Similarly at the FANX jobsite on August 11, after Forsythe

told the employees the Company was "implementing the terms

of the contract that they'd offered the Union," journeyman

James Birmingham said "There was no way I was going to

work for $ 10 an hour. He might as well call Allen Bolyard up

and get my paycheck out to me." As Birmingham credibly

testified, Forsythe responded that "he didn't believe everybody

would be making $ 10 an hour" and that they had to "make

appointments to come in and negotiate" their wage rate

(emphasis added). He said that "everything would have to be

dealt [with] through” the office, explaining that "they were

nonunion [emphasis added]" and "if we wanted to come along

with them, we could go." (Tr. 359-361, 392, 394.)

When Forsythe left the room the employees discussed what

to do. Expressing the employees’ quandary, journeyman

Howard Crosby testified: "We don't negotiate our wages . . .

that was something new to us." (Tr. 332-333, 361.)

Later that day, Forsythe went to the Winchester Homes

jobsite and told foreman Warren Bentert and apprentice Stefan

Buitron that the partial-page proposal "was a new contract"

they were working under and "we wouldn't be working under

the [Local 536] contract anymore.” (Emphasis added, Tr. 643,

739).

About 8 o'clock the next morning (Friday, August 12) when

Birmingham arrived at the office ("a good 45-minute ride"

from the FANX jobsite), he asked Bolyard "what our pay rate

was going to be for the day before, beings that they sent the

letter out in the middle of the day.” Bolyard answered that he

87a

would pay them $ 21.45 an hour for that day, but "our rates

would be cut" that Friday and "all the negotiations [emphasis

added] after that would go through” Forsythe. (Tr. 362-364.)

Barnhart (who did not testify), was "the manager of the day

work" (the small contracts, tenant work). He delivered the

Company's message to the Local 669 members. When giving

journeyman Ronald Moyers an assignment for the next day, he

told Moyers "he wasn't honoring [the Local 669] contract

anymore [emphasis added]. . . . that they had their own contract

drawn up for the employees that wanted to stay." (Tr. 853-856,

877-878.)

When foreman Joseph Monken telephoned Barnhart after

work on August 11 and asked for his assignment the next day,

Barnhart asked if he was working Friday. Barnhart said "Well,

if you work tomorrow, you work under the new contract,"

which was between Monken and the Company [emphasis

added]. As Monken credibly testified, Barnhart added that

"before I could work I had to schedule" an appointment and "|

had better hurry and schedule it quickly because they were

going fast." Monken asked "how they could be going fast, there

were only seven employees from Local 669 working for him at

the time." Barnhart said "this involved Local 536 as well." (Tr.

884-886.)

About 5:30 that same afternoon, as Lawrence Miller Jr.

credibly testified, Barnhart called and "told me that we was no

longer going to be a union, that we was working under a new

contract" (emphasis added) and asked "if we was going to

continue to go to work.” Miller Jr. telephoned Bolyard about

9:30 the next morning to find "what the new contract consists

of.” It is undisputed that Bolyard went over "what the new

88a

contract was and that we was no longer union." (Emphasis

added.) Miller Jr. continued working. (Tr. 1016-1017.)

It is also undisputed, as journeyman Lawrence Miller Sr.

credibly testified, that when Barnhart called on August 11 and

asked if he was working the next day, Barnhart told him "we're

no longer union, we're going to be working under a new

contract." The next day he called Bolyard, who also told him

that "we would be nonunion working under a new contract."

(Emphasis added.) He continued working. (Tr. 1023-1024,

1033.)

The Company did not decided until August 12 what wage

rates, in the sliding scales, it would offer the current employees.

When Bolyard told journeyman Sampson earlier that week that

the "20-year marriage" of the Company and Local 669 was

Over, as discussed above, and Sampson asked "what was he

going to offer," Bolyard answered, "I can't tell you at this time,

there will be a later date that I'll tell you what if you stay" (Tr.

1007). Then on August 11 when foreman Richard Newsome

asked Forsythe at the FANX jobsite "what the wages were

going to be for the guys, Forsythe said he did not know, he

"would have to get in contact with the office" (Tr. 586).

Forsythe revealed at the trial that on Friday morning, August

12, "we decided to make all the rates pretty much the same

across the board for the guys that were working here." He then

discussed the employee classifications, wages, and working

conditions with the employees individually, with no union

representative present. (Tr. 121-122, 1306.)

In the interviews Forsythe told the union members who

"wished to stay working" that the Company was paying

journeymen $ 17 (in the journeyman sliding scale from $ 10 to

89a

$ 17 an hour) and foremen $ 20 (in the foreman sliding scale of

$ 17 to $ 22 an hour). When Forsythe told journeyman Todd

Rife that his pay would be $ 17 an hour, Rife said he was then

working as acting foreman at FANX and "I thought I should be

getting more money to be a foreman." Forsythe checked with

Bolyard, who authorized him to pay Rife $ 20 an hour--reduced

to $ 17 the following Monday. (Tr. 298-299, 427, 506-508,

516, 714, 888, 997-998, 1007-1008.)

Forsythe again checked with Bolyard when Michael Ford, a

fifth-year apprentice, asked for at least the journeyman rate

because "I had only 2 weeks to go" (to be a journeyman). The

answer was no. Forsythe reduced his wage rate for that 2 weeks

from the union $ 18.67 rate, plus benefits, to $ 14.50 an hour,

without benefits. (Tr. 602-603.)

In their negotiations with Forsythe over wages, several of the

employees sought a foreman or lead foreman rate, but Forsythe

refused to agree to the requested higher rate (Tr. 271, 299, 508,

644). Foreman Ronald O'Connor credibly testified (Tr. 299)

that when he talked to Forsythe that Friday, I told him that I

was [the Company's . . . top foreman, for the last 13 years, and

I would like to have top pay of $ 24 for top foreman. He told

me no, I was going to get $ 20 an hour. After a little bit [of]

bickering back and forth, I said I'd settle for $ 20 an hour.

Forsythe explained to the union members the Company's new

policy on what tools the employees must furnish and the

benefit program (Tr. 364-365), which was later summarized in

part on the following printed form (G.C. Exh. 85 p. 3; Tr.

1275):

HEALTH INSURANCE: Blue Cross/Blue Shield of MD:

80/20 Plan available after 6 months of employment at $ 33.00

90a

a week for single coverage, or $ 88.00 a week for family

coverage.

PROBATIONARY PERIOD: 6 months

VACATION: No vacation

HOLIDAYS: No holidays

BASE RATE:

OVERTIME:

PENSION: 401K Plan with 10% matching after 6 months of

employment of when enrollment time occurs.

The Company had not negotiated with the Locals what

classification it would assign each employee or what wage rate

in the sliding wage scales it would pay each of them. It had not

notified the Locals what tools the employees would be required

to buy, when medical insurance would be offered and at what

cost to the employees, or what 401(k) contributions the

Company would make. It also had not notified the Locals that

it was initiating a 6-month probationary period and eliminating

vacations, holiday pay, and other benefits in the expired

agreements.

The Company in its brief ignores this evidence, as well as the

repeated references by Bolyard and Forsythe to the employees'

negotiating individually with the Company and the statements

by them and Barn hart to some of the employees that the

Company was nonunion.

Concerning Local 536 the Company contends in its brief (at

16) that there was "no information presented to employees

which was not presented to the local union, and there is no

extrinsic evidence of any kind of an effort to disparage or

minimize the status of the union as bargaining representative.”

It contends (at 17) that it "has simply informed employees of

the new operative terms of a post-impasse unilateral change”

LU REEDS Te eo

PEEP RE LN TE eh OP OES Oe NE PEF NENTS MET EN

9la

and that there was no "specific evidence of efforts to negotiate

in derogation of a union's bargaining agent status."

Concerning Local 669 it contends (at 23) that "there is ample

evidence that the employer advised employees of the terms of

the post-impasse employment package, but no evidence that the

employer sought to negotiate with employees, either

individually or in committees, or that the employer otherwise

bypassed the union in violation of the Act."

To the contrary, having found no valid impasse, I find that

the evidence is clear that the Company, operating nonunion,

bypassed the Locals and dealt directly with the individual

employees in derogation of the Locals’ status as exclusive

bargaining representatives of the employees, violating Section

8(a)(5) and (1) of the Act.

D. Unilateral Changes

1. Mandatory subjects of bargaining

The unilateral changes the Company made on and after

August 11 in mandatory subjects of bargaining include the

following (Tr. 1274-1278; G.C. Exhs. 12, 20, 58, 59, 84, 85 p.

3):

1. Nullifying the separate bargaining units that were based on

the Locals’ territorial jurisdictions.

2. Reducing the $ 21.45 and $ 22 an hour journeyman rates

to a sliding scale of $ 10 to $ 17 an hour, reducing the $ 22.75

and $ 23.50 foreman rates to $ 17 to $ 22 an hour, and

reserving the right to determine and change the employees'

92a

classifications and wage rates at the Company's sole discretion

(Tr. 861-862).

3. Abolishing the 5-year apprenticeship program in the

expired NFSA agreements and the apprentices classification

and its percentage scale (from 35% to 85% of the journeyman

wage rate), without providing the AFSA apprenticeship

program offered the Locals in the partial-page proposal (Tr.

138, 833-835, 840, 864).

4. Issuing a list of 17 "tools that each employee is required to

have in order to work," costing each employee from about $

300 to $ 400, plus the cost of replacements (Tr. 303-304, 307,

309, 365-374, 647, 836, 888; G.C. Exhs. 28, 29, 84).

5. Eliminating the NASI union health benefits, which

provided employee and family coverage at no cost to the

employee, and replacing them with an optional medical plan

costing the employee $ 33 a week for single coverage and $ 88

a week for family coverage, with no coverage for 6 months (Tr.

59-61, 837-838).

6. Abolishing the NASI union pension benefits (Tr. 835).

7. Abolishing grievances and arbitration (Tr. 835-838,

861-862).

8. Abolishing the contractual territorial jurisdictions of the

Locals for job assignments and requiring all employees "to

have their own means of transportation to the various jobsites

around Maryland, D.C., and Virginia" (Tr. 692-693; G.C. Exh.

39).

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93a

9. Eliminating the overtime, show-up, lunchtime, holiday,

and vacation provisions (Tr. 834, 889).

10. Initiating a 6-month probationary period.

11. Eliminating Local 669's jobsite inspection privileges for

adjusting disputes, investigating working conditions, and

contract compliance (G.C. Exh. 59 p. 11, art. 10).

12. Eliminating travel expenses in the Local 669 bargaining

unit (Tr. 833-834, 889, 1000, 1018, 1026-1029).

13. Reserving an unrestricted right to subcontract work for

economic reasons (Tr. 840).

It is well established that, except in exceptional

circumstances (such as economic exigencies compelling

prompt action--not present here), when a collective-bargaining

agreement expires, "an employer must maintain the status quo

on all mandatory subjects of bargaining until the parties either

agree on a new contract or reach a good-faith impasse in

negotiations." Triple A Fire Protection, 315 N.L.R.B. 409, 414,

422 (1994),

The General Counsel contends in his brief (at 78) that "Once

it is established that no impasse occurred, it follows by

necessity and by operation of law that all changes in wages,

hours, benefits, and other terms and conditions of employment

that the [Company] implemented on and after August 11

violated Section 8(a)(5) of the Act.” The Company contends in

its brief (at 14-16, 22-23) that because "there was a good-faith

impasse in negotiations," there was "no unfair labor practice in

unilaterally implementing the Company's proposal."

94a

Having found that the Company bargained in bad faith,

precluding valid impasse, I reject the Company's good-faith

impasse defense and find that its unilateral changes in the

mandatory subjects of bargaining on and after August 11

violated Section 8(a)(5) and (1).

2. Changes in scope of bargaining units

I also find that even apart from the Company's nullifying the

separate bargaining units based on the Locals’ territorial

jurisdictions, it made a unilateral change in the scope of the

bargaining units without the consent of the Locals. It created a

new “helper” classification outside the contractual recognition

clauses in the expired agreements, which covered "All

journeymen sprinkler fitters and apprentices" in the respective

jurisdictions.

A similar issue was involved in Howard Electrical &

Mechanical, 293 N.L.R.B. 472, 474-476 (1989). There the

employer implemented a _ proposed "pre-apprentice"

classification for employees who "shall be primarily used for

performing work which does not require all the skills of a

journeyman” and "may be assigned to perform work for which

they are qualified, under the direction of a journeyman." The

Board, pointing out that the proposed new classificati

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