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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1999
- **Citation:** 528 U.S. 821

## Text

/ \
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
Page
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PI Go iehitatindehnicinttnniteiecinatiniesttinidaiiiiitnignatnnnintenninn 182a
NG OP setesetceinisshtnnesncticnsntisenitainansniinimeimayenention 184a
PEPER UD ccntcicrendencsevismitzsnistiminsticihianientinniiaiicesiininiaan 190a

ee ee

la

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,
V.

AMERICAN AUTOMATIC SPRINKLER SYSTEMS,
INCORPORATED, Respondent,

and

ROAD SPRINKLER FITTERS LOCAL UNION NO. 669,
U.A., AFL-CIO, Intervenor.

—— —_—.-- -

2a

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:

3a

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.

i.

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.

4a

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:

Sa

[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.

6a

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

7a

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

8a

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.

9a

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

B.

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.

C.

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

© The Board argues that American's challenge to the Locals’
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.

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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.

(c) Bypassing Local 536 and Local 669 and dealing directly
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.

(c) On request, remit any payments it owes the Locals’ health
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.

60a

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.)

6la

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

63a

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."

64a

[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.)

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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

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are at impa

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_0963%3A2. Public record. Not legal advice.