Central Plumbing Co.

National Labor Relations Board - Board Decisions

Aug 16, 1972

198 N.L.R.B. 925 (N.L.R.B. 1972)

CENTRAL PLUMBING COMPANY 925
Central Plumbing Company and United Association of
Journeymen and Apprentices of the Plumbing and
Pipe Fitting Industry of the United States and
Canada , Local Union No. 162, AFL-CIO. Case
9-CA-6097
August 16, 1972
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On April 18, 1972, Trial Examiner Gordon J.
Myatt issued the attached Decision in this proceed-
ing. Thereafter, Respondent filed exceptions and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions' and
brief and has decided to affirm the Trial Examiner's
rulings, findings, and conclusions and to adopt his
recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that Central Plumbing Company, Dayton,
Ohio, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial Examiner's
recommended Order.
I Respondent contends that the agreement orally reached in May 1970
ant4 reduced to writing and signed in October 1970 was not a complete
agreement as some of the necessary terms were left unresolved . We agree
with the Trial Examiner 's findings that the agreement signed in October
1970 as a complete agreement as it contained all the necessary terms
including wage and other terms with respect to residential plumbers. The
fact that the parties also agreed to negotiate a modification of these terms as
to residential plumbers does not negate this finding. Moreover, even were
we to find\the October 1970 agreement incomplete in some respect, we
would nevertheless find Respondent bound by the multiemployer bargain-
ing as its attempted withdrawal during negotiations was not timely or
consented to by the Union.
TI.IAL EXAMINER'S DECISION
STATEMENT OF THE CASE
GORDON J. MYATT, Trial Examiner: Upon a charge filed
February 17, 1971, by United Association of Journeymen
and Apprentices of the Plumbing and Pipe Fitting Industry
of the United States and Canada, Local Union No. 162,
AFL-CIO (hereinafter called the Union), against Central
Plumbing Company (hereinafter called the Respondent or
Central), a complaint and notice of hearing was issued by
the Regional Director for Region 9 in Case 9-CA-6097 on
198 NLRB No. 135
April 14, 1971. The complaint alleged, inter alia, that the
Respondent was a member of a multiemployer association,
which, among other things, existed for the purposes of
engaging in collective bargaining with the Union on behalf
of the employer-members. The complaint further alleged
that the Respondent failed to execute a collective-bargain-
ing agreement negotiated by the Association with the
Union and thereby violated Section 8(a)(5) of the Act. On
March 22, 1971, a charge was filed by Central against the
Union in Case 9-CB-1962. The Regional Director issued a
complaint and notice of hearing in the latter case on
September 22, 1971. That complaint alleged that the Union
violated Section 8(b)(1)(A) and (a) of the Act in that the
collective-bargaining agreement negotiated with the em-
ployer association contained an unlawful security clause.
On the same date the Regional Director issued an order
consolidating both cases for purposes of trial.
The consolidated matter was tried before me in Dayton,
Ohio, on January 4 and 5, 1972. All parties were
represented by counsel and afforded an opportunity to be
heard and to present relevant evidence on all of the issues
in question. Shortly after the trial commenced, counsel for
the Union offered to settle the case against it by agreeing
to remove the unlawful provisions in the union-security
clause of the collective-bargaining agreement. Counsel for
Central agreed to the settlement provided it would not be
construed as a waiver of its assertion that the unlawful
union security clause was part of its affirmative defense in
the remaining case. All parties verbally agreed to a
settlement in the case involving the Union and to submit a
formal settlement agreement for approval at a subsequent
date. The formal settlement agreement was submitted on
February 16, 1972, and an order was issued on March 21,
1972, severing that case from the consolidated proceedings
and approving the terms of the settlement. At the
appointed time, briefs were submitted by counsel for the
Respondent and counsel for the General Counsel. They
have been duly considered by me in arriving at my decision
in this case.
Upon. the entire record herein, including my evaluation
of the testimony of the witnesses based upon my
observation of their demeanor and upon consideration of
the relevant evidence, I make the following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
The complaint alleges , and the Respondent admits, that
it is an Ohio corporation engaged in the business of a
plumbing contractor in Dayton, Ohio. During the 12-
month period preceding the issuance of the complaint, the
Respondent purchased goods and materials valued in
excess of $50,000 from suppliers located in the State of
Ohio, who in turn purchased said goods and materials
from companies located outside the State of Ohio and
caused them to be shipped directly to their respective
places of business. On the basis of the above, I find that the
Respondent is an employer as defined in Section 2(2) of
the Act engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATION INVOLVED acceptable and agreed to take back to its membership for
ratification.
At a special meeting on April 27, the union membership
ratified the proposal agreed to by the negotiating commit-
tees . The proposal primarily concerned itself with the wage
package for journeymen and foremen performing commer-
cial work. It was verbally agreed between the two
negotiating committees that a supplemental agreement
would be negotiated by the Union and the Association
covering residential work. It was also verbally agreed that
in the interim, the residential wage scale would be 15 cents
an hour less than the agreed-upon wage for commercial
work. On May 5, the Association's negotiating committee
presented the proposal to a meeting of its membership.
Wilfred Elking, a vice president of the Respondent and its
representative in the Association, attended this meeting but
voted to reject the proposal. However, a majority of the
plumbing contractors present voted to accept the terms?
The parties agreed that the wage rates of the new
agreement would become effective May 1, and the contract
would terminate July 1, 1972.
. The parties also verbally agreed to continue to meet in
an effort to work out the language of a welder-safety
provision to be included in the current contract, as well as
the terms of the residential agreement. As an incentive to
hasten agreement on the terms, the Association agreed to
increase the journeymen wage rate by 25 cents an hour, if
the parties could resolve their differences on the welder
safety clause and the supplemental residential agreement
prior to January 1, 1971.3
The Union and the Association negotiating committees
continued to meet periodically during the summer in an
effort to work out the residential agreement and the
welder-safety provision. However, they were unable to
agree in either area. In addition, the commercial wage rates
had never been reduced to writing or signed by the parties.
On October 26, the Union and the Association finally put
in writing the terms of the agreement reached in April. This
document contained the amendments and changes in the
1968-70 contract relating to commercial work. It way'
signed by Brill on behalf of the Union and by Burrell for
the Association. The parties agreed that the document
would be incorporated in the existing 1968-70 contract and
subsequently printed up as one integrated contra-bt. The
document also set forth the agreement to increase .he wage
scale by 25 cents provided a satisfactory weler-safety
provision and the supplemental residential agreement were
negotiated not later than January 1, 1971. The document
classified commercial work as work performed; under wage
schedule A and residential work as work;, under wage
schedule B. It was also agreed that the existing negotiating
committees consisted of contractors and union members
mainly concerned with commercial work, and that new
refine the language through telephone communication and/or an exchange
of correspondence . As this procedure usually took 2 to 3 months, there was
a substantial time lag before a contract was finally reduced to writing.
3 The 25-cent-an-hour wage increase was to be granted in three
successive stages, the first payment beginning January 1, 1971, and the final
payment becoming due January 1, 1972. This amount was the sum
considered necessary to allow the Union to maintain its position as fourth in
the State of Ohio with respect to wages, with the exception of the city of
Cleveland.
United Association of Journeymen and Apprentices of
the Plumbing and Pipe Fitting Industry of the United
States and Canada, Local Union No. 162, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background Facts
The Employer Association consisted of plumbing con-
tractors in the Dayton, Ohio, area. The Association was
originally formed in 1900 as the Master Plumbers Associa-
tion. In 1957 the name was changed and the Association
became known as the Dayton Association of Plumbing
Contractors. Beginning in 1920, the Association and the
Union established the practice of negotiating 2-year
collective bargaining agreements which became the stand-
ard for union contractors in the Dayton area. Each
successive 2-year period thereafter the parties negotiated
collective-bargaining agreements.
The Respondent's predecessor (Peter's Plumbing Co.)
had been a member of the Employer Association since
1950, and the Respondent became a member in 1964 when
it succeeded Peter's. As a member of the Association the
Respondent signed collective-bargaining agreements nego-
tiated between the Association and the Union for the years
1964-66, 1966-68, and 1968-70. These agreements set the
wages, terms, and conditions of employment for all
plumbing contractors employing union members in the
Dayton area.
B. The Events Surrounding the Negotiations of the
Current Contract
As noted, the Association and the Union customarily
negotiated collective-bargaining agreements for 2-year
periods. In March 1970, negotiating committees from each
organization met to commence bargaining about the terms
of the new agreement which would succeed the then
current contract scheduled to expire on June 30, 1970.
Ralph Brill, president of the Union, was chairman of his
organization's negotiating committee and Guy Burrell, vice
president of one of the member firms in the Association,
headed up the negotiating team for that group. The
Association's initial proposal was rejected by the Union. It
dealt with the wage rates for journeymen plumbers and
foremen working on commercial and industrial jobs and
did not address itself to residential work.' The Associa-
tion's first proposal was contigent upon negotiating a
supplemental agreement for the residential work. The
parties continued to meet and in April the Association
submitted a proposal which the union committee found
1 The agreement made a distinction between commercial and residential
work. Until the 1970-72 contract, commercial work encompassed all new
work on residential units larger than four-family dwellings and all new and
remodeling work performed on commercial and industrial projects.
Residential work was defined as work on residential units up to and
including four-family dwellings and commercial and industrial repair and
maintenance . Traditionally, the wage scale for commercial work was higher
than the wages received by plumbers performing residential work.
2 It was the practice of the parties to verbally agree to terms and then
CENTRAL PLUMBING COMPANY
special committees composed of contractors and journey-
men performing residential work should negotiate the
residential agreement.
The parties continued to meet in an effort to work out
the language of the welder-safety provision; the special
committees to deal with the residential agreement were
selected. Brill no longer headed the negotiating team for
the Union, but sat in as an advisor to those negotiating the
residential contract. Elking was selected by the Association
to be the chairman of that group's special committee
dealing with the terms of the residential contract.4 The first
meeting of the residential special committees took place
sometime in November. It consisted mainly of an exchange
of verbal proposals. The second meeting was held early in
December. Elking stated at this meeting that the only
terms he would be willing to accept would consist of a
package of $6 an hour with the employees to furnish their
own tools and trucks and the Respondent free to hire
whom it pleased.5 Brill testified that Elking commented to
him during this meeting that in view of the Union's
demands, the Respondent could save thousands of dollars
if it went nonunion and performed residential work. Brill
testified that he told Elking that if he could keep his
employees and save money he should go nonunion. Elking
testified that when he insisted that the residential contrac-
tors could pay no more than the prevailing rate, Brill
replied he should go nonunion, if he couldn't do any better
than that. Freeze, a union member of the negotiating
committee, testified that when Elking stated his position,
Brill said the Union could not agree to it and it would be
best for the Respondent to go nonunion .6
The two negotiating committees were unable to come to
an agreement and a subsequent meeting was scheduled.
Elking, however, withdrew from the negotiations and was
replaced as chairman of the employer committee by
another contractor. There were a series of meetings
carrying over into January and February of the following
year, but Elking never attended any of these subsequent
bargaining sessions.
On December 17, Elking went to a Christmas affair
given by a welding unit in the industry and there met Hass,
business manager of the Union. Elking told Haas that the
Respondent intended to go nonunion. Haas replied that
"we will wait and see," Elking also told the executive
secretary of the Association of the Respondent's intention
to go nonunion, but never formally notified the Union in
any way concerning this matter.
The Respondent had been abiding by the terms of the
agreement governing commercial work and had been
submitting payments to the welfare and various other
funds. After December 17, however, the Respondent no
longer made payments under the terms of the contract nor
did it pay the wage scale verbally agreed upon for
4 In 1970, approximately 52 percent of the jobs performed by the
Respondent consisted of residential work.
5 The prevailing rate in the Dayton area at that time for residential work
was $6.13 an hour. Elkings took the position that contractors doing a
residential work could not compete with nonunion contractors in the field if
they had to pay more than the prevailing rate.
6 Most of the residential work in the Dayton area was performed by
nonunion contractors who paid less than the contract scale , and who did
not make contributions to the various pension and welfare funds as required
927
residential work. Whenever the Respondent did perform
commercial work, it paid the contract rate to the
employees. On December 30, the Union and the Associa-
tion finally agreed to the language of the welder-safety
provision. On March 16, 1971, the parties agreed to and
executed the residential addendum to their contract. Under
the new negotiated terms, residential work was redefined to
include the following: (1) All single-family residences: (2)
All garden type and walkup apartments used as a
residence, not to excede 2-1/2 stories in height; and (3) All
repair, remodel, and maintenance work on the aforemen-
tioned types of structures.?
Although the Association and the Union had formally
agreed to the modifications to the commercial agreement
in October and to the welder-safety provision in Decem-
ber, 1970, it was not until July 1, 1971, that all of these
agreements were integrated into a single document and
signed by Brill and Burrell. The final document, however,
did not contain the date of signature and on its face gave
the appearance of being executed on May 1, 1970. The
residential addendum remained a separate document.
C. The Union-Security Clause
The commercial agreement between the parties contains
a union-security clause which is identical to a similar
provision contained in the 1966-68 and the 1968-70
contracts. This clause provides as follows:
Article V. UNION SECURITY
All journeymen and apprentices hereunder, members
of the union now in the employ of the employer shall
remain members in good standing in the union during
the term of this agreement. All journeymen and
apprentices covered by this agreement, hereinafter
employed by the employer shall become members of
the union from and after the eighth (8th) day following
the date of their employment or the effective date of
this agreement whichever is later and shall remain
members of the union in good standing during the term
of this agreement. Further, should a journeymen
employee fail to pass the United Association Local
# 162 examination required for qualification as a
member, (such examination shall be given within a
three month period from the date of initial employ-
ment), he shall, as a condition of continued employ-
ment, pay to the union as support to and compensation
of the union in exchange for representation by the
union an amount of money equal to that paid by other
journeymen who are members of the union, which shall
be limited to an amount of money equal to the union's
regular and usual initiation fees and its regular and
usual dues and its general and uniform assessments. All
such journeymen now in the employ of the employer
shall commence payments on the day following the
by the collective-bargaining agreement . There were also some employer-
members of the Association who did not abide by the agreements
negotiated between the Association and the Union . Finch , executive
secretary of the Association, testified that of 58 employer-members, 23 were
nonunion and never signed or abided by the terms of the contracts
negotiated by the employer group and the Union.
7 Under the new definition. 98 percent of the work performed by the
Respondent became residential.
928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
date of execution of this agreement and all such
employees hired after the date of this agreement shall
commence such payments the day following the date
on which they fail to pass the union examination
required as a qualification for membership, and all
such employees mentioned above shall continue such
payments during the term of this agreement.
Concluding Findings
Counsel for the General Counsel contends that the
Respondent is a member of an employer association which
has traditionally bargained over the years with the Union,
and that the collective-bargaining agreements resulting
from these negotiations are binding on its members. It is
further contended that the Respondent neither made a
timely withdrawal from the group negotiations, nor were
the circumstances such as to allow the Respondent to
refuse to honor terms of the current agreement , or to refuse
to recognize the Union as the collective-bargaining
representative of its employees. The Respondent offers a
number of defenses to the allegations of the complaint.
First, the Respondent states that the members of the
Association are not bound by the results of the negotia-
tions with the Union, as the Association was never
authorized to represent its members for purposes of
collective bargaining. Secondly, the Respondent argues
that it made a timely withdrawal from the group bargain-
ing, and further that the Union consented to this
withdrawal, thereby relieving it of any obligation to be
bound by the results of the group negotiations. Finally, the
Respondent states that the contract negotiated by the
Association and the Union contains an unlawful union-
security provision which relieves it of any duty to honor
and be bound by the agreement.
The threshold question here is whether the Respondent,
as a member of the Association, is bound by the collective-
bargaining agreement negotiated by that organization and
the Union. There is nothing in the Association constitution
and bylaws which confers authority upon the Association
to engage in collective bargaining on behalf of the member
employers. Nor is it a requirement that the individual
employers execute an authorization granting such authori-
ty as a condition of membership in the Association.
Indeed, the evidence discloses that of 58 members only 35
recognize the Union and abide by the collective-bargaining
agreement . Therefore, it is necessary to examine the
historical practice in order to determine whether the
Respondent in this instance is considered bound in
collective bargaining by group action rather than by
individual action.
The undisputed facts show that the Respondent has been
a member of the Association since 1964, and has been a
party to successive collective bargaining negotiated by the
Association from that period until the contract in question
here. In 1966 and again in 1968 the Respondent did not
actively participate in the negotiations, but accepted and
honored the terms of the successive collective-bargaining
agreements negotiated by the Association and the Union.
While it is true that some of the Association members were
considered "nonunion" and did not abide by the terms of
the collective-bargaining agreements , a large segment of
the employer-members signed individual copies of the
agreements negotiated by the Association until 1968, and
after that date considered themselves bound by the
agreements negotiated and signed by the Association
committee. The Respondent was one of this group. As the
Board stated in the Kroger case,8 the essential element to
be considered in determining if an employer is part of a
multiemployer bargaining unit is whether "the employer
member has indicated from the outset an intention to be
bound in collective bargaining by group rather than by
individual action." In that case, the Board relied heavily
upon its prior decision in Krist Gradis, et al, 121 NLRB
604, 609-6 10. There the Board held:
[P]articipation for a substantial period of time in joint
bargaining and uniform adoption of the agreements
resulting therefrom constitutes an indication of intent
to bargain jointly. . . . Such a unit [multiemployer] is
appropriate under these circumstances even where .. .
the association members have not specifically delegated
to the association authority to represent them in
collective bargaining; or given the association the
power to execute final and binding agreements on their
behalf; or where some of the contracts have not been
signed by all members of the group.
It is evident, therefore, that the historical pattern of
collective bargaining in the instant case warrants the
conclusion that the Respondent intended to be bound by
the results of group negotiation rather than engaging in
individual bargaining itself. It is also evident that the
appropriate unit for the purposes of collective bargaining
consisted of those employer-members of the Association
who traditionally signed the agreements flowing from the
results of the group effort. Hi-Way Billboards, Inc.
Matteson Southwest Company 191 NLRB No. 37; N.L.R.B.
v. Johnson Sheet Metal Inc., 442 F.2d 1056, 1059 (C.A. 10,
1971).
Having found that the Respondent was part of a
multiemployer bargaining unit and therefore bound by the
results of group negotiation, the next question to be
considered is whether the Respondent effectively withdrew
from the group action; either by way of a timely
withdrawal, or with the consent and acquiescence of the
Union. It is well-settled that withdrawal from a multiem-
ployer unit after commencement of negotiations is untime-
ly and ineffective absent unusual circumstances or unless
mutually agreed upon by the parties. N.L.R.B. v. Johnson
Sheet Metal Inc., supra; Hi- Way Billboards Inc. Matteson
Southwest Company, supra; Publicity Engravers, Inc., 161
NLRB 221; Sheridan Creations, Inc., 148 NLRB 1503,
enfd. 357 F.2d 245 (C.A. 1966); Retail Associates, Inc., 120
NLRB 388. The Respondent argues, however, that the
negotiations here were at an impasse and on the rationale
of the Tulsa Sheet Metal case it could effectuate a valid
withdrawal from the group negotiations.9
The Respondent's claim in this regard is without merit.
In Tulsa it was argued that the parties had not arrived at an
8 The Kroger Co., 148 NLRB 569, 573 . NLRB 1487.
9 Tulsa Sheet Metal Works, Inc., 367 F.2d 55 (C.A. 10, 1966), enfg. 129
CENTRAL PLUMBING COMPANY 929
agreement although they continued to negotiate. The
employer there contended that such circumstance justified
his withdrawal from the group negotiations. The argument
was rejected in that case and must be rejected here on the
basis of the facts. As in Tulsa, the Union and the
Association here continued to negotiate and finally arrived
at a residential agreement in addition to resolving their
differences over the language of the welder-safety provi-
sion to be incorporated in the commercial agreement. At
no time were the parties at an impasse nor did they refuse
to meet and effectively negotiate their differences. The fact
that the welder-safety provision was not agreed upon until
December 1970, and the residential addendum was not
finalized until March of the following year, does not in any
way justify the conclusion that the parties were at an
impasse in their negotiations. To the contrary, it demon-
strates that the parties were willing to meet and bargain
until they eventually resolved their differences. Therefore,
the Respondent's claim of an impasse is totally unsupport-
ed by the facts.
Respondent also contends that the parties had not
arrived at a complete agreement on December 17, 1970,
when it withdrew from the group negotiations. The
Respondent claims that this alone was sufficient to justify
the withdrawal. This argument overlooks certain undisput-
ed facts in the record. When a majority of the Association
members ratified the terms agreed upon by the negotiating
committees in May 1970, a collective-bargaining agree-
ment came into existence. The mere fact that the parties
agreed to ultimately modify the residential agreement and
to work out the language of the welder-safety provision in
no way vitiated the agreement in effect at that point in
time . Nor does the fact that the verbal agreement was not
reduced to writing and signed by the parties until October
in any way alter the finding that a valid collective
agreement was in effect. The Respondent claims that the
contract was incomplete in its terms because of the matters
left for further negotiations and agreement. This theory
ignores the obvious fact that the parties were operating
under a contractual agreement which they simply acknowl-
edged was subject to further modification by mutual
consent. The commercial agreement in toto, with the
exception of the welder-safety clause, had been agreed
upon by the parties. The welder-safety provision certainly
was not so substantial or material to that agreement to
justify a claim that the contract was incomplete. In
addition, there was a verbal agreement regarding the
interim residential wage rate in effect while the parties
negotiated the final residential addendum. The parties not
only understood but abided by this interim arrangement.
That it was mutually agreed to add a 25-cent-an-hour
incentive in order to hasten the conclusion of the final
negotiations does not detract from the validity of the
agreement between the parties. It was complete as to its
terms subject to the modification of the residential
addendum and the welder-safety provision.
The Respondent further argues that the Union consented
to its withdrawal from the group bargaining. In support of
this contention the Respondent urges that, the facts of this
case are analogous to the facts contained in Publicity
Engravers, Inc., supra, wherein implied consent and
acquiescence were found. In that case it was held that the
Union impliedly consented to an employer's untimely
withdrawal from association bargaining when it did not
object to the withdrawal and where, after arriving at an
agreement with the association, the Union sought to
bargain separately with the employer without contending
that the group agreement was binding on him. Unlike that
case, however, the facts here indicate that the Union never
considered the Respondents withdrawal as being effective.
Elking was the chairman of the employer committee
attempting to negotiate the residential addendum. He
actively engaged in the negotiations over a period of two
meetings before deciding not to participate. The Respon-
dent claims that at the last meeting when Brill said if the
Respondent could not offer better terms he may as well go
nonunion, the Union was making an offer which the
Respondent accepted on December 17. The Respondent
also contends that the Union was notified of this
acceptance of the alleged offer when Elking told Haas that
the Respondent was going to go nonunion. Haas' reply was
noncommittal, and I do not construe this to be implied
consent or acquiescence to the Respondent's action of
unilaterally withdrawing from the group negotiations.
Unlike the facts in Publicity Engravers, I find that Brill's
initial comment to Elking at the December meeting was
nothing more than a comment made during the heat of
negotiations. To consider it as being anything more would
mean imposing serious constraints on the "give and take"
discussions that occur at the bargaining table and would
impede the entire bargaining process. It is evident under
these circumstances that the Respondent decided to
withdraw from group negotiations because it felt that the
terms being insisted upon were economically burdensome
to it. By seizing upon Brill's statement , the Respondent
demonstrated that it was prepared to grasp at the slightest
straw in order to avoid its obligation to engage in group
bargaining. The mere fact that the negotiations were
progressing toward a wage rate which the Respondent felt
unexceptable to it is not sufficient justification to warrant
allowing withdrawal from the group negotiations. Tulsa
Sheet Metal Work, Inc., supra. Without more than appears
in the record here, it cannot be said that the Union
acquiesced or consented to the Respondent's withdrawal
from group action.
The Respondent's final argument rests on the illegality of
the union-security clause . As indicated previously, a
complaint was issued charging the Union with a violation
of the Act for having an unlawful union-security provision
in the collective-bargaining agreement . This case was
settled at the time of trial, although the Respondent did not
waive it as a defense to the matter presently under
consideration. The evidence shows, however, that the
Respondent raised this issue only after it was charged by
the Union with refusing to honor and abide by the terms of
the collective-bargaining agreement. The facts also show
that this provision was contained in two prior contracts
immediately preceding the current collective-bargaining
agreement. The Respondent not only signed but also
honored each of these agreements without complaining
about the illegality of this provision. It was only after the
Union insisted that the Respondent was obligated under
930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the current collective-bargaining agreement that the
Respondent sought to avoid its obligation by asserting the
illegality of the union-security clause. These circumstances
cause me to conclude that the Respondent raised the issue
of the unlawful union-security clause as an afterthought.
Consequently, I find that this defense was motivated solely
by the Respondent's unwillingness to accept the Union's
demand for increased wages in the residential addendum.
Tulsa Sheet Metal Work, Inc., supra. As a result of the
settlement of the case against the Union, the unlawful
portions of the union-security provision will be deleted.
Moreover, as the agreement contains a severability clause
and the union-security provision is independent of other
sections of the contract, the document as a whole is not
rendered invalid by the illegality of this provision.
Accordingly, I find that the Respondent is under a duty to
honor and abide by the terms of the collective-bargaining
agreement negotiated through group action.
CONCLUSIONS OF LAW
1. Respondent, Central Plumbing Company, is an
employer as defined in Section 2(2) of the Act engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. United Association of Journeymen and Apprentices
of the Plumbing and Pipe Fitting Industry of the United
States and Canada, Local Union No. 162, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of
the Act and is, and has been at all times material herein,
the representative of employees of the Respondent in an
appropriate unit consisting of all journeymen and appren-
tices engaged in the installation of all plumbing, heating,
pipefitting, and refrigeration and air-conditioning systems
and component parts thereof, and all other work included
in the jurisdictional claims of the Union.
3. By unilaterally withdrawing from the multiemployer
unit found appropriate herein, and by refusing to accept
and to be bound by the collective-bargaining agreement
negotiated between the Union and the Dayton Association
of Plumbing Contractors, Inc., the Respondent has
engaged in and is engaging in unfair labor practices as
defined in Section 8(a)(5) and (1) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices I shall recommend the
issuance of an order that it cease and desist therefrom and
that it take certain affirmative action necessary to
effectuate the policies of the Act.
Accordingly, upon the foregoing findings of fact and
conclusions of law, and upon the entire record in this case,
pursuant to Section 10(c) of the Act, I make the following:
RECOMMENDED ORDER10
bargaining agreement negotiated between the above-
named Union and the Dayton Association of Plumbing
Contractors, Inc., effective May 1, 1970, with respect to
employees in the following bargaining unit:
All journeymen and apprentices engaged in installation
of all plumbing, heating, pipefitting and refrigeration
and air conditioning systems and component parts
thereof, and all other work included in the jurisdiction-
al claims of the Union.
(b) In any like or related manner interfering with,
restraining , or coercing employees in the exercise of their
rights guaranteed under Section 7 of the Act.
2. Take the following affirmative action which I find
will effectuate the policies of the Act:
(a) Forthwith honor and implement the collective-bar-
gaining agreement entered into by the Union and the
Association, effective May 1, 1970, insofar as it applies to
employees in the above-described unit and give retroactive
effect thereto from its effective date.
(b) Post at its plant in Dayton, Ohio, copies of the
attached notice marked "Appendix."" Copies of such
notice on forms provided by the Regional Director for
Region 9, after being duly signed by an authorized
representative of the Respondent, shall be posted by the
Respondent immediately upon receipt thereof and be
maintained for 60 consecutive days thereafter in conspicu-
ous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by
the Respondent to insure that such notices are not altered,
defaced, or otherwise covered by any other material.
(c) Notify the Regional Director for Region 9, in writing,
within 20 days of the date of this Decision, what steps
Respondent has taken to comply herewith.12
IT IS FURTHER ORDERED that the allegations of the
complaint setting forth violations not specifically found
herein be dismissed.
10 In the event no exceptions are filed to this recommended Order as
provided by Sec. 102.46 of the Rules and Regulations of the National Labor
Relations Board, the findings, conclusions , recommendations, and recom-
mended Order herein , shall as provided in Sec. 10(c) of the Act and in Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings conclusions , and Order and all objections thereto shall be
deemed waived for all purposes.
11 In the event that 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."
12 In the event this recommended Order is adopted by the Board, after
exceptions have been filed, this provision shall be modified to read: "Notify
the Regional Director for Region 9, in writing, within 20 days from the date
of this Order what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
Respondent, Central Plumbing Company, its officers,
agents, successors, and assigns shall:
1. Cease and desist from:
(a) Refusing to honor and implement the collective-
The National Labor Relations Board having found, after
a trial before a duly designated Trial Examiner, that we
violated Federal law by refusing to honor and implement
the collective-bargaining agreement negotiated between
CENTRAL PLUMBING COMPANY
United Association of Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry of the United States
and Canada, Local Union No. 162, AFL-CIO, and the
Dayton Association of Plumbing Contractors, Inc., effec-
tive May 1, 1970, we hereby notify our employees that:
WE WILL NOT refuse to bargain with the above
Union by failing to honor and implement the 1970
agreement between the Union and the Dayton Plumb-
ing Contractors, Inc., nor in any like or related manner
interfere with, restrain, or coerce employees in the
exercise of their rights guaranteed under the National
Labor Relations Act as amended.
WE WILL forthwith honor and implement the
1970-72 collective-bargaining agreement between the
above-named Union and the Dayton Association of
Plumbing Contractors, Inc., and will give retroactive
effect to the terms and conditions of said agreement
from its effective date of May 1, 1970.
CENTRAL PLUMBING
COMPANY
(Employer)
Dated By
931
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office,
Federal Office Building Rm. 2407, 550 Main Street,
Cincinnati, Ohio 45202, Telephone 513-684-3621.