Best Plumbing & Supply Co.

National Labor Relations Board - Board Decisions

May 27, 1987

283 N.L.R.B. 1167 (N.L.R.B. 1987)

BEST PLUMBING & SUPPLY CO.
Best Plumbing & Supply Co . and United Association
of Journeymen and Apprentices of the Plumbing
and Pipe 'Fitting Industry of the United States
and Canada, Local No. 741, AFL-CIO. Case
28-CA-5703-3 -
27 May 1987
DECISION AND ORDER
BY CHAIRMAN DOTsoN AND MEMBERS
JOHANSEN AND BABSON
On 24 July 1981 Administrative Law Judge
James M. Kennedy issued the attached decision.
The General Counsel filed exceptions and a sup-
porting brief, and the Respondent filed an answer-
ing brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs' and
has decided to affirm the judge's rulings, findings,2
and conclusions as modified3 and to adopt the rec-
ommended Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
E The General Counsel has excepted to the judge's failure to rule on
the General Counsel's motion to correct the record, dated 30 March
1981. The Respondent, in its answering brief, stipulates to the granting of
this motion. Accordingly, we grant the General Counsel's motion to cor-
rect the record
2' The General Counsel has excepted to some of the judge's credibility
findings. The Board's established policy is not to overrule an administra-
tiye law judge's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir.
1951) We have carefully examined the record and find no basis for re-
versing the findings.
3 In agreeing with the judge that the General Counsel has failed to
establish that the Respondent ever indicated a clear and unequivocal
intent to join the multiemployer bargaining unit, we do not rely on two
factual findings made by him that are not supported by the record The
judge found that there was no evidence that the Respondent was given
copies of the multiemployer association bylaws. The multiemployer asso-
ciation's executive secretary for the Tucson chapter, however, testified
that among the materials he gave the Respondent on the date its member-
ship application was submitted were copies of the bylaws of the state-
wide multiemployer association, as well as those of the Tucson chapter
This evidence was not specifically contradicted. Nevertheless, we agree
with the judge's analysis that, even taking into consideration these
bylaws, the nature of the Respondent's knowledge of the purpose of the
multiemployer association and its Tucson chapter remains murky. We
further find that the evidence is insufficient to support the judge's state-
ment that it is likely that the 13 multiemployer members in the Tucson
chapter were larger than the 43 contractors who had executed only the
memorandum agreement to be bound by the terms of the Union's con-
tract with the multiemployer association The record is silent on the rela-
tive size of these contractors
1167
Michael J. Karlson, for the General Counsel.
Daniel H. Parks (Parks & Parks), of Tucson, Arizona, for
the Respondent.
DECISION
STATEMENT OF THE CASE
JAMES M . KENNEDY, Administrative Law Judge. This
case was tried before me at Tucson , Arizona, on Febru-
ary 31 , 1981 , pursuant to a complaint issued by the Re-
gional Director for the National Labor Relations Board
for Region 28 on August 1, 1980, and which is based on
a charge filed by the United Association of Journeymen
and-Apprentices of the Plumbing and Pipe Fitting Indus-
try of the United States and Canada , Local Union No.
741, AFL-CIO (the Union) on February 6, 1980. The
complaint alleges that Best Plumbing & Supply Co. (the
Respondent) has engaged in certain violations of Section
8(a)(5) and (1) of the' National Labor .Relations Act (the
Act).
Issues
Whether the Respondent violated Section 8(a)(5) and
(1) of the Act by withdrawing recognition of the Union
during the term of a collective-bargaining contract. The
General Counsel alleges that the Respondent was part of
a multiemployer bargaining unit and not privileged to do
so. The Respondent defends contending it never joined
the multiemployer unit and that the General Counsel has
neither proven it to be an employer that meets the
Board's jurisdictional standards, nor proven that the
Union ever represented a majority of its employees.
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses , to argue orally, and to file briefs. Briefs,
which have been carefully considered , were- filed on
behalf of the General Counsel and the Respondent.
On the entire record of the case , and from my obser-
vation of the witnesses and their demeanor , I make the
following
FINDINGS OF FACT
A. Background and Contentions
The Respondent is a plumbing contractor, principally
engaged in home repair work and solar accessory instal-
lation in Tucson, Arizona. It is the sole proprietorship of
James R. Jaster. Jaster formed his Company in October
1978 when he obtained his contractor's license and began
working as an independent contractor for Sears, Roe-
buck & Co. Originally he operated the business from his
home though he later opened an office elsewhere in the
city. The General Counsel has made no effort to show
that the Respondent, by virtue of its own volume of
business, meets any interstate commerce standard for the
assertion of jurisdiction by the Board. Instead, she relies
on the Respondent's purported membership in a multiem-
ployer collective-bargaining association known as Plumb-
ing and Air Conditioning Contractors Association of Ar-
izona ' (PAC-State). PAC-State has two divisions: PAC-
Phoenix, which negotiates with Local Union 469 for the
283 NLRB No. 180
1168 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
northern Arizona counties, and PAC-Tucson, which ne-
gotiates- with the Union herein, Local 741, for the south-
ern Arizona counties and a portion of New Mexico. Re-
spondent admits that the Union is a labor organization
within the meaning of Section 2(5) of the Act. It further
admits that the Board has jurisdiction over PAC-State
and its multiemployer members, but denies that the Re-
spondent is or ever has been a member of the multiem-
ployer bargaining unit.
B. Facts Relating to Recognition
According to the Union's business manager , Kenneth
Phillips, sometime in August 1978, Jaster came to the
Union's office saying that because he had been a "union
man," always working union , he was interested in be-
coming signatory to the Union's contract.' Phillips re-
members Jaster's stating he intended to work as a "one
man operation," but hoped to expand as soon as possible
into housing, apartment, and light commercial work. He
gave Jaster a blank copy of the memorandum agreement,
a 4-by-6 inch card (G.C. Exh. 7) that binds the signer to
the master PAC-State agreement. Phillips says he also
gave Jaster printed copies of the recently expired master
contract together with some supplements. He explained
that a new master agreement had recently been negotiat-
ed but had not yet been printed for distribution, so he
gave Jaster what he had. He says he also told Jaster that
in the event Jaster chose to sign the memorandum agree-
ment and hired employees, he would have to obtain an
employee bond guaranteeing payments to the collective-
bargaining contract's fringe benefit funds. He remembers
Jaster asked how he could become a member of PAC.
Phillips told him he would have to see PAC-Tucson ex-
ecutive secretary Manly Traylor. Jaster does not recall
having gone to the Union in August, but admits his
memory is poor.
Even so, in mid-October, Ja ster did visit the union
office. There is some confusion about the date. Jaster is
convinced, that he first went to the union office and later
the same day went to the PAC-Tucson office. The dates
shown on the documents he signed are not consistent
with his recollection. He signed an application for mem-
bership in PAC-Tucson on October 18, 1978. There ap-
pears to be little doubt about the accuracy of that date
because he both signed and dated that document. How-
ever, he also signed the Union's 'memorandum agree-
ment, the postcard-size compliance contract. One side
contains blanks for the employer's name, signature, ad-
dress, phone number, and license type, while the other
side contains a-date blank and the contract terms, literal-
ly,in "fine print." Phillips printed everything on the first
side of the card although Jaster signed it. The date on
the other side, October 20, 1978, appears to have been
printed by Phillips. In view of the fact that the date is on
i Jaster had previously been involved in the plumbing and pipe fitting
apprenticeship program in Phoenix where he had worked for various
Local 469 contractors He suffered some personal reverses, including a
house fire, and subsequently moved to Tucson There he worked as an
employee for Sears, later deciding it would be more lucrative to form his
own business and become an independent contractor for Sears, doing its
plumbing repair work He did not, however, intend to limit himself to
work obtained through Sears
the side opposite the signature, it is quite possible that
the date would be omitted and not filled in until the
omission was noticed. None of this is particularly signifi-
cant to the issues except to credit Jaster's testimony that
he first went to the union hall and then to PAC-Tucson.
Indeed, PAC-Tucson's Traylor recalled Jaster saying
that he had come from the union hall. Traylor also says
that as a condition for the Respondent's joining PAC-
Tucson, it had to have been signatory to a union con-
tract. Thus, I conclude that Jaster actually signed both
documents on October 18, 1978 . I also credit his testimo-
ny that the Union never gave him a copy of the memo-
randum agreement.2
It appears from Phillips' testimony that the Union has
on file memorandum agreements signed by 43 contrac-
tors in southern Arizona. Traylor testified that there are
13 members of PAC-Tucson. Although the record is not
clear on the point, it is likely that the 13 PAC-Tucson
members are larger contractors, while the 43 memoran-
dum contractors are significantly smaller.
The memorandum agreement itself recites "[t]he em-
ployer recognizes the unions [the Phoenix and Tucson
Locals] as the collective-bargaining representatives of the
employer's employees performing work within the rec-
ognized work jurisdiction of the undersigned union." It
also states that the purpose of the agreement is to elimi-
nate multiplicity of collective bargaining in the industry.
Furthermore, a contractor signing the memorandum
agreement "agree[s] to comply with and be bound by all
the terms of that certain collective-bargaining agreement
between [PAC-State] and Local Unions 469 and 741. . .
including all trust agreements referred to and incorporat-
ed therein and including all amendments, extensions and
renewals." It also acknowledges receipt of a copy of the
Association master agreement. Finally, although it states
that the duration of the agreement shall be "for so long
as the Employer remains in business in Arizona but not
to exceed 50 years from the date hereof," it provides for
a 30-day written notice to the Union for termination.3
And, it provides for "economic action" to be taken
against the signatory in the event that the Association
agreement has expired or terminated or if a separate ter-
mination notice has been sent.
Regarding the Respondent's joining PAC-Tucson, cu-
riously there is no evidence in the record that Traylor
ever gave Jaster copies of either the PAC-Tucson or
PAC-State bylaws at the time Jaster applied for member-
ship, when his membership was approved, or when he
began participating in PAC-Tucson affairs.4 Further,
Traylor testified, "PAC-Tucson is an association of
plumbing and air conditioning contractors who are signa-
tory with the Local Unions 741 and 469, and as the con-
tractor association members, they assign their bargaining
rights . . . to PAC-Tucson." Yet, Traylor readily admit-
2 He did, however, receive copies of the master contract and' southern
Arizona supplements
3 "Termination" here means "reopen "
4 Jaster attended four or five luncheons He was also appointed to a
solar energy subcommittee There is no evidence that the subcommittee
had a collective-bargaining purpose or that collective bargaining was a
luncheon topic
BEST PLUMBING & SUPPLY CO.
ted there was no document that Jaster or any other con-
tractor actually signed giving PAC-Tucson those bar-
gaining rights. In addition , Traylor said his job included
"administer[ing] the functions of the Association . . . I
handle their bookwork . We also handle promotional
work for them. We gather educational manuals and we
sponsor seminars . We deal with the registrar of contrac-
tors on contractor complaints and public complaints.
There is a myriad of duties I perform."
As I have found above , there is no evidence that Tray-
lor even gave Jaster copies of the bylwas of either PAC-
Tucson or PAC-State , so Jaster's knowledge about the
purpose of those two groups is unclear . But had Traylor
done so,, the nature of Jaster's knowledge would still
remain murky.
The PAC-Tucson and PAC-State bylaws contain very
few references to collective bargaining. Indeed the PAC-
Tucson bylaws contain no specific references whatso-
ever. There is a tangential reference in article II, section
5. It states associate members shall be contractors
"signed to National Labor agreements with the United
Association [of Journeymen, Apprentices, etc.]. Such as-
sociate ; members shall have all the rights and duties of
active members, except that they shall not participate in
labor negotiations nor arbitration proceedings nor vote
on labor agreements insofar as any of those matters are
covered by their national contracts ." It can hardly be
said that such language would clearly inform an appli-
cant that one of PAC-Tucson's functions was to engage
in collective bargaining for its active members.
Article XI , section 1 of the PAC-State bylaws contains
other unclear references to collective bargaining. There
it states "the Association traditionally has engaged in
collective bargaining on behalf of all plumbing contrac-
tors in the State of Arizona contracting with United As-
sociation , Locals 469 and 741 ." Unfortunately that state-
ment is not 100 percent true. It may be that PAC-State
"traditionally engages" in collective bargaining , but it is
no doubt demonstrable that it does not do so on behalf
of "all plumbing contractors" in Arizona. First , there are
the nonunion contractors for which the Association can
lay no claim and, second , there are those memorandum
agreement signers who have reached agreement without
the Association's assistance . One cannot rely on this
clause for the conclusion that the Respondent had notice
it would become bound to the multiemployer unit.
That same section also discusses possible needs that
may arise from time to time to adopt policies regarding
negotiating committee actions including responses to
strikes , such as lockouts . Section 2 of that same article
refers to "nonmembers for whom the Association bar-
gains," saying that as a condition of being represented by
the Association , the Association expects such non-
members to abide by Association decisions during negoti-
ations. Section 3 allows for the discipline of both mem-
bers and "represented nonmembers" in the event that
they choose not to follow Association policy.
Jaster denies either the Union or PAC-Tucson ever
gave him copies of the expired or current collective-bar-
gaining contracts and supplements at the time he signed
the memorandum agreement or at the time that he signed
the application for PAC-Tucson membership. He says
1169
when he joined PAC he thought he was joining; a service
organization "like the Lions Club." He remembers leav-
ing the PAC-Tucson office with an armload of publicity
materials, PIPE logos , 5 educational materials, and such.6
I recognize that Jaster testified that as an apprentice in
Phoenix he had worked under predecessor contracts and
undoubtedly had some idea of PAC -State's role in col-
lective bargaining . ' Nonetheless, his testimony that he
thought the PAC organizations to be voluntary industry
promotion groups is not without believability. Clearly
the PAC organizations do carry out that function; they
provide much promotional material including logos for
hardhats and trucks . It seems probable to me that Jaster
believed the logs would enhance his image as a new con-
tractor and would assist him in developing his own busi-
ness. Considering that there is no evidence that he was
actually given copies of the PAC bylaws, the fact that
the PAC-Tucson bylaws contain no forceful reference to
collective bargaining, and that the PAC-State bylaw ref-
erences to collective bargaining are vague and to some
extent misleading , I credit his testimony that he did not
understand that one , of PAC-Tucson 's functions was col-
lective bargaining . Even if he did understand PAC's bar-
gaining purpose , due to his past experience in Phoenix,
there is still a serious question about what sort of collec-
tive bargaining service PAC-Tucson was to perform for
him. Was it offering him multiemployer bargaining unit
membership or some form of "me -tooism"?
An analysis of the PAC-Tucson and PAC-State
bylaws shows that there are different categories of mem-
bership. PAC-Tucson's bylaws set forth three classes of
members: active, associate , and honorary .' It defines an
active member as "any individual who is a duly licensed
contractor ... credibly conducting business in the me-
chanical field using pipe or tubing" in certain southern
Arizona counties . It then describes the manner or mem-
bership application , for that class, which is consistent
with the action Jaster took except that the $25 initiation
fee was never required of him . It also requires an active
member to take an oath of membership, but that oath
does not mention collective bargaining;8 neither does the
membership certificate.
Associate membership may be granted under article II,
section 5A "to any person associated with or employed
by a duly licensed contractor" upon a vote of two-thirds
of the members present in any regular meeting. Associate
members are entitled to attend meetings but not to hold
office or to have any voice or vote unless given a proxy
by an active member.
S PIPE is an acronym for "Piping Industry Progress and Education"
programs, an industry promotion gorup It is funded through collective
bargaining , but that fact would not be immediately apparent to someone
outside the industry or unfamiliar with the contract
6 I do not credit Jaster's denial insofar as the Union is concerned. See
fn 2, supra It is possible ' that Traylor included contracts in the package
given Jaster, but that they were buried or not seen , It is unnecessary to
decide the question , however
7 Honorary membership is not pertinent here and shall not be dis-
cussed
8 Despite the bylaw, it appears that the oath itself has not been re-
quired for the past 10-12 years.
1170 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The PAC-State bylaws with respect to active members
are quite similar to those of PAC-Tucson, except that a
condition precedent to PAC-State membership is either
PAC-Tucson or PAC-Phoenix membership, or a waiver
from the, local PAC., Being an active member of a local
PAC "automatically entitles such member to member-
ship" in PAC-State. The use of the verb " entitle" is curi-
ous, for it implies that one, may become a member of the
local PAC and not become a member of PAC-State
unless one chooses to. That appears to have significance
as there is a third category of contractors somehow in-
volved with the PAC organizations, but for whom there
is no definition in the bylaws. These are plumbing and
air-conditioning contractors who are not members of
PAC, but who allow PAC to bargain for them. Whether
those individuals- join the local PAC but not the state
PAC or whether--they allow PAC-State to bargain for
them through some other means is not clear on this
record.
In'this context, then, what is it that the Respondent ac-
tually did when it signed the application for membership
in PAC.Tucson on October 18? Its application somewhat
deviates from ` the PAC-State entitlement. language by
saying "I understand that this membership will also in-
clude membership in [PAC-State]." Second, what is it
that Union Business Manager Phillips, thought Respond-
ent was _ doing when Jaster - executed the memorandum
agreement -after he said he was going to be a one-man
operation until he got on his feet while simultaneously
asking about joining PAC? Phillips remembers thinking
Jaster's desire to join PAC was "unusual"' in view of the
fact that Jaster's operation did not seem appropriate for
PAC.
C. Later Events; the Withdrawal of Recognition
Jaster testified that he wrote a letter dated February
21, 1979 (G.C. Exh.' 18 and R. Exh. 1) canceling the
memorandum agreement. The Union denies the letter
was ever received. Whatever the truth is here, it is undis-
puted that the Respondent did not hire any employees
until June 21, 1979, 5 months later; it did not then follow
the terms of the master agreement. The Respondent did
not hire through the Union's hiring hall, "pay contract
wages or fringe benefits, or post a fringe benefit bond as
required by that agreement.
In September 1979, Etheredge, one of the Respond-
ent's employees, told Union Business Agent Shaw that
he had been- working for the Respondent. That triggered
an inquiry into the- Respondent's circumstances. The in-
quiry drew a September 24 letter from Jaster claiming he
had canceled the memorandum agreement on February
21 and had no further obligations to the Union. On Octo-
ber 5, the Union wrote Jaster by certified mail accusing
Respondent of violating the collective-bargaining agree-
ment in certain respects and asking him to resolve those
matters. By mailgram ' received by the Union on October
12, Jaster denied any contract violations claiming, inter
alia, that he had no agreement. On October 15 Shaw
filed a grievance with the labor management committee
established by the collective-bargaining contract to deal
with such matters, On October 22 the committee held a
hearing and on November 19 found Respondent to have
violated the contract as the Union alleged. The decision
also stated that legal collection proceedings would be in-
stituted if within 10 days corrective action was not
begun.
Instead of enforcing that decision, the Union, on Feb-
ruary 6, 1980, filed the instant charge. The record is not
clear regarding the number of employees Respondent has
had since June 21, 1979; showing only that Etheredge
was employed from August 9 to September 24, 1979, al-
though apparently at least one -other employee had
worked prier to that.
Analysis and Conclusions
It seems to me that the threshold question here is
whether the Respondent at any time ever joined the
PAC-State multiemployer bargaining unit. If it did, then
the General Counsel can responsibly'rely on PAC-State's
commerce data for the assertion of jurisdiction over the
Respondent and may also rely on the unrebuttable pre-
sumption of majority that normally flows from a current
collective-bargaining contract. See Tragniew, Inc., 185
NLRB 962 (1970), enf. denied on other grounds 470 F.2d
669 (9th Cir. 1972).9 If not, the General Counsel's case
must fail for she has adduced no evidence whatsoever
with respect to the volume of business actually per-
formed by the Respondent during that portion of the
business year that preceded the admitted withdrawal of
recognition on June 21, 1979.
Both parties agree that the test of whether the Re-
spondent joined a multiemployer bargaining unit depends
on whether "the employer unequivocally intended to be
bound in collective bargaining by,group, rather than in-
dividual, action. The Respondent cites York Transfer &
Storage Co., 107 NLRB 139, 142 (1953), and the General
Counsel cites Ruan Transport Corp., 234 NLRB 241, 242
(1978), for that proposition. This rule was also relied on
by the Board in Bagel Bakers Council of Greater New
York, 174 NLRB 622; 628 (1969). The Second Circuit
Court of Appeals in enforcing , Bagel Bakers observed,
however, that the Board has also followed another,
somewhat different test: "whether the union `has been
notified of the formation of the group and the delegation
of bargaining authority to it, and has, assented and en-
tered upon negotiations with the group representative."'
434 F.2d 884, 886 (2d Cir. 1970).10 The court implicitly
accepted the proposition that the validity of a multiem-
ployer bargaining unit depends not only on the intent of
the employers but the,acceptance of a group unit by, the
union. This is no doubt due to the consensual nature. of
multiemployer bargaining. Retail Associates, 120 NLRB
388 (1958). The two tests are to some extent inconsistent,
although, as a practical matter they usually reach the
same result. Here, too, I think that under either test, the
result is the same.
9 Sec 8(f) of the Act may impact this presumption in the construction
industry, but it is unnecessary to consider that question here See R. J
Smith Construction Co, 191,NLRB 693 (1971), and NLRB v Iron Workers
Local 103 (Higdon Contracting), 434 U S 335 (1978)
10 The court cited Weyerhaeuser Co, 166 NLRB 299 `(1967), which in
turn cited Kroger Co, 148 NLRB 569 (1964), and Van Eerden Co, 154
NLRB 496 (1965).
BEST PLUMBING & SUPPLY CO.
I do not think that the proof here reaches the "clear
and unequivocal" level with regard to what the Re-
spondent's intent was when it joined PAC-Tucson. First,
there is Jaster's somewhat tenuous testimony that he
thought he was joining an industry-promotion group and
that he could avail himself of its beneficial advertising
(i.e., the PIPE logos). I have no doubt that the latter was
a consideration, but in view of his work experience in
Phoenix, I am not certain that he can be believed with-
out reservation regarding his claim that he had no idea
that PAC-State was a multiemployer collective-bargain-
ing unit. Even so, he did not specifically join PAC-State,
although that was the apparent result of joining PAC-
Tucson. However, PAC-Tucson's bylaws do not in any
way reflect that its own purpose is to engage in collec-
tive bargaining. Indeed, it does not.1 i The multiemploy-
er collective bargaining is conducted by PAC-State, al-
though PAC-Tucson officials and committee members
participate in that parent body. Instead, as PAC-Tucson's
executive secretary Traylor said, "PAC-Tucson engages
in promotional work for its membership, gathers educa-
tional manuals, sponsors seminars , and deals with the
registrar of contractors on contractor and public com-
plaints." Thus, despite the facially tenuous nature of tas-
ter's testimony, the weight of the evidence favors credit-
ing it.
Furthermore, one may legitimately ask why Jaster
would seek to have a collective-bargaining representative
if he had already signed the memorandum agreement and
was satisfied with it. If it was to engage in collective bar-
gaining with the Union, he certainly did not need to join
PAC, for he had already signed the memorandum agree-
ment and had become bound to the master by it. Is the
answer that he simply wished "to join the Lions Club"?
Traylor's testimony that a contractor could not become a
member of PAC-Tucson until he signed a contract with
the Union sets forth a curious requirement not found in
the bylaws. When a contractor joins a multiemployer
bargaining unit, his act of joining is sufficient to bind him
to the master collective-bargaining contract. Why then
does PAC-Tucson require an applicant to sign a separate
agreement with the Union? Is it actually a requirement
or is it testimony designed to keep the Union happy with
PAC during this litigation? If the separate contract re-
quirement exists, it is totally unnecessary and, rather than
persuading me that a PAC-Tucson applicant is joining a
multiemployer bargaining unit, leads me to believe that
he is doing nothing of the kind.
Moreover, while I am well aware that forming or join-
ing a multiemployer collective-bargaining unit does not
require an express agreement, Bagel Bakers, supra, none-
theless the lack of an express agreement is a factor to be
considered. Here, the Respondent was not asked to and
never did specifically give PAC-State or PAC-Tucson
any document giving them its bargaining rights. It may
be true that none of the 13 PAC-Tucson members did
either, but by the same token, I must assume that neither
did the 43 contractors who signed compliance agree-
ments. Yet, some of those must be the "represented non-
" Local supplements are signed by the appropriate Local Union and
PAC-State, not PAC-Tucson
1171
member" contractors referred to in the PAC-State
bylaws. There is no evidence that those contractors
belong to the multiemployer bargaining unit, only that
they appear to be contractors who have separately
adopted the master agreement, just as the Respondent
did.
But, the General Counsel observes that the Respond-
ent specifically applied to be an active member of PAC-
Tucson and that the application form stated he under-
stood his PAC-Tucson memberhip would "also include
membership" in PAC-State. First, while PAC-State's
bylaws permit an individual contractor to elect whether
or not he wishes to join, there is no evidence that Jaster
had the opportunity actually to choose. The application
language is not "clear and unequivocal." Second, I note
that even though Jaster applied for active membership in
PAC-Tucson, it did not charge him an initiation fee and
he never, paid any periodic dues.' z
Frankly, I do not believe that Jaster's conduct here
amounts to a "clear and unequivocal intent" to join a
multiemployer collective-bargaining unit. At best he ap-
pears instead , consistent with his testimony, to have in-
tended to join an industry-promotion group.
If the foregoing observations are not sufficient to war-
rant the conclusion that he did not join the multiemploy-
er bargaining unit, the second test may still be applied.
Was the Union ever notified that Respondent had joined
the multiemployer collective-bargaining unit? Did it ever
consent? There is absolutely no evidence Traylor ever
notified the Union that Respondent had been accepted
into the multiemployer bargaining unit. In fact, Business
Manager Phillips thought it was odd that Jaster wanted
to join PAC-Tucson at all. He knew Jaster was a
minnow in the sea and thought it queer that he would
wish to join with the larger contractors. Furthermore,
Respondent signed the memorandum agreement, which
by its own terms speaks to separate bargaining.
That compliance agreement recites a number of op-
tions available to the signing contractor indicative of a
separate bargaining unit. Although it obligates him to
comply with "all" the master agreement's terms, it is of
much longer duration, permitting the master to be modi-
fied without consulting the memorandum signer. Yet, it
gives' the memorandum signer the right to avoid that oc-
currence by allowing a separate contract opening" and
the right to engage in separate economic action on such
an opening. 'In that circumstance I think the Union in-
tended memorandum, signers, such as the Respondent, to
be separate bargaining units. Thus, the circumstances
here are very similar to those in Ted Hicks & Associates,
232 NLRB 712, 713 ' fn. 3 (1977), in which the Board
found that a contractor who signed a similar memoran-
dum agreement did not become a member of the Associ-
ated General Contractors multiemployer unit., The Board
"deem[ed] the memorandum agreement to be a separate
'2 PAC-Tucson claims to have waived the initiation fee and to have
remitted a certain portionof his expected dues to PAC-State, giving him
a credit while awaiting payment
13 Indeed, Jaster testified, without contradiction, that Phillips told him
he could cancel the agreement by simply writing the Union a letter to
that effect.
1172 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
contract between Respondent and the Union." Likewise,
I do not believe that the'Union here had any realistic ex-
pectation that the Respondent was doing anything other
than what its other 43 memorandum signatories had done
(i.e., agreed to be bound in separate bargaining, units to
the terms set forth in the master agreement between' the
two local unions and PAC-State).
Accordingly, I conclude that the Respondent's con-
duct did not constitute a clear and unequivocal intent to
join the multiemployer bargaining unit. Neither did the
Union ever consent to its joining or even-, expect or think
that it had. The fact that- the Union later resorted to the
master agreement's disputes resolution, clause does not
lead me. to think otherwise.14 The memorandum agree-
ment did not specifically exclude dispute coverage and in
any event those individuals signing the memorandum
agreement apparently desired to be treated similarly to
those actually belonging to the multiemployer unit.
Thus,- I conclude that the General Counsel has failed
to prove that the Respondent ever joined the multiem-
ployer collective-bargaining unit. In that circumstance, it
cannot be deemed to be engaged in interstate commerce
14 The Union may yet seek enforcement of the labor management
committee's award in an appropriate forum
as there is no proof of that fact. I therefore shall recom-
mend that the complaint be dismissed.
On the foregoing findings of fact' and on the entire
record in this case, I make the following
CONCLUSIONS OF LAW
1. The General Counsel has not proven that the Re-
spondent, Best Plumbing & Supply Co., is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act. -
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
edis
ORDER
The complaint is dismissed in its entirety.
15 If no exceptions are filed as provided by Sec 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all -pur-
poses