Finger Lakes Plumbing & Heating Co., Inc.

National Labor Relations Board - Board Decisions

Nov 19, 1980

253 N.L.R.B. 406 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Finger Lakes Plumbing & Heating Co., Inc., and
United Association of Journeymen and Appren-
tices of the Plumbing and Pipefitting Industry
of the United States and Canada, Local Union
No. 13. Case 3-CA-9262
November 19, 1980
DECISION AND ORDER
By CHAIRMAN FANNING ANI) MEMBI.RS
JENKINS ANI) PLNI-I.O
On June 18, 1980, Administrative Law Judge
Jerry B. Stone issued the attached Decision in this
proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, the Charging Party
filed exceptions, the General Counsel filed cross-
exceptions, and Respondent and the Charging
Party filed answering briefs to each other's excep-
tions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision' in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,2 and conclusions3 of the Administrative Law
' The year 1979 i In 9 f the Adninistrative I.aw Judge's Decision is
an apparent typographical error; the record establishes that Respondent's
president, 'Theodore Bogart, testified in effect that his la't 'visit to the
Canandaigua site wals around December 1978
Respondenlt ha's excepted tl certain credibility findings made by Ihe
Administrative l aw Judge It s the Board'. etablishied plicy nlot to
overrule an admiiistratti'e law jludge's resolutionl with respect to credi-
hilit) unless the clear preponderance of all of the relevlant evidence con-
vinces us that the re'.olutions are incorrect Sandard Dry WaI/ Products,
Inc.. 91 NI.RB 544 (1950(), efd 188 F 2d 362 (3d Cir 1951 W have
carefully examined the record and find iii basis for reversing his findings
' We agree with the Administrative Law Judge's finding hat the bar-
gaining unit in questioll here continued in cxisclice at all times relevant
to this proceeding, icluding through the period between mid-March
through early June 1979, when no unit work was performed and rlo unit
employees were emploed In so finding. we note the particular stahility
of Respondent' unit work force during he perinod January 1976 through
March 1979 I)uring his 39-molth period. the average monthly unit
work force was five employees, with a high of eight employees in Janu-
ary and February 1978 and a low of no employees i May 1976 I)uring
the cours.e of this entire period huwe'.er. Repondent employed nly 10
different employees in the unit i queslion Indeed, the Union's buiness
representative during this period. Rbert Scott testified without contra-
diction that, when Respondent needed periodically to increase the size of
its wrk force. it would attempt to rehire unit employees which it had
previously employed. In his regard. Respondent's presidelt also testfied
that, when he needed to increase the size of his work force, he planned
"as to what man was available, and I knew where they were'" Bogarl
would cntact the employee, who in turl wuld advise the Uion f his
employmeint or reemploymcnt by Respondent. Thus. during the 3
9
-nmlith
period from January 1976 through March 1979. employees Burgett,
Bricco, Burgess, and Marino were employed in 36, 33, 33, and 29 of
those months, respectively. and employees Akens. Rogers, and Clark
were employed i 21. 19, and 12 months, respectively
In light of his evidence. the Administrative Law Judge's finding is
well supptrted, as discussed more fully in sec. III111 of his Decision. tha
the bargaining unit in question contillued throughout and after the
March-June 1979 hiatus in the perfirmance of unit work ad employment
of unit employees
253 NLRB No. 49
modified herein.
THE RM F.I)Y
As discussed more fully in the attached Decision,
the Administrative Law Judge found, and we
affirm, that Respondent violated Section 8(a)(5).,
(3), and (1) of the Act by, inter alia, unilaterally
and discriminatorily changing terms and conditions
of employment following the May 31, 1979, expira-
tion of the collective-bargaining agreement be-
tween it and the Union, in derogation of its on-
going obligation to bargain with the Union about
any such changes. One of the unlawful changes ef-
fected by Respondent was the cessation of pay-
ments of contractually mandated contributions for
certain fringe benefits, as enumerated and described
in article VII of the May 1, 1976-May 31, 1979,
collective-bargaining agreement. 4
Accordingly, and in addition to the other reme-
dial measures recommended by the Administrative
Law Judge, which we adopt, we shall order Re-
spondent to pay all delinquent contributions since
June 1979 to the funds and plans listed in footnote
4, supra, and to continue to pay such contributions
until such time as Respondent negotiates in good
faith with the Union to a new agreement or to an
impasse. 5
Article VII of the aforementioned collective-bar-
gaining agreement also provides that all delinquent
contributions (as defined therein) are subject to
mandatory liquidated damages for each fund, in an
amount equal to 10 percent of the sum required to
be submitted to that fund. Thus, the contract shows
an agreed-upon method for determining the addi-
tional costs to the funds caused by delinquent pay-
ments, and it is appropriate that the remedy herein
take the agreed-upon method into consideration.
Therefore, we shall also order Respondent to pay
into the above-specified funds, as liquidated dam-
ages, an additional sum amounting to 10 percent of
the delinquent contributions due those funds. Peer-
less Roofing Co., Ltd., supra.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
4 Specifically, the Group Insurance lan. P isilon Plan, Apprenticeship
'ITraining and Education Fund, Journeyman Education Trating Fund,
Mechanical Contractors Industry Ad'ancetelit Program, Vacation
Fund, Holiday Fund, and Annuity Fund Art. Vll (f the aforementioned
cotract also lists "Dues Checkoff" as "Fringe Benefit " Unlike its cessa-
tioil of payments for the other fringe heinefits set out above. Respondent's
cessation of deduction and retnisionl l the Uniln of employee union
dues was not unlawful Perle Rfing Co., Ltd., 247 NLRB N 72, sl
oip. pp 12 13 (1980)
' Peerl- Rfing Co.. Ltd. upra. Sir Jame. Inc.. K183 NLRB 256. 261
(197(); cf. (urpenuler SprinAlr Corpration. 238 NLRB 974 (1978), en-
forcement denied in relevant part 6(5 F 2d 60 (2d Cir 1979)
FINGER LAKES P'I.LMHING & HEATING CO.
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Finger Lakes Plumbing & Heating Co., Inc.,
Geneva, New York, its officers, agents. successors,
and assigns, shall take the action set forth in the
said recommended Order, as so modified:
1. Insert new paragraphs 2(d) and (e) as follows,
and reletter the subsequent paragraphs accordingly:
"(d) In accordance with the terms set out in arti-
cle VII of the May 1, 1976 - May 31, 1979, collec-
tive-bargaining agreement between the parties, pay
all delinquent contributions since June 1979 to the
following funds or plans: Group Insurance Plan,
Pension Plan, Apprenticeship Training and Educa-
tion Fund, Journeyman Education Training Fund,
Mechanical Contractors Industry Advancement
Program, Vacation Fund, Holiday Fund, and An-
nuity Fund; and continue to pay such contributions
until such time as Respondent negotiates in good
faith with the Union to a new agreement or to an
impasse.
"(e) In accordance with the terms set out in arti-
cle VII of the aforementioned collective-bargaining
agreement, pay into the above-specified funds, as
liquidated damages, an additional sum amounting
to 10 percent of the delinquent contributions due
those funds pursuant to paragraph 2(d) of this
Order. "
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE TO EMPI OYEES
POSTED BY ORDER OF THE
NATIONAL. LABOR RELATIONS BOARD
An Agency of the United States Government
WE WIL.L NOT make unilateral changes con-
cerning rates of pay, wages, benefits, hours,
and other terms and conditions of employment
of employees in the below-listed appropriate
bargaining unit, nor will we otherwise refuse
to bargain collectively with or unlawfully
withdraw recognition from United Association
of Journeymen and Apprentices of the Plumb-
ing and Pipefitting Industry of the United
States and Canada, Local Union No. 13, as the
exclusive representative of the employees in
the bargaining unit described below.
All plumbers, steamfitters and pipefitters em-
ployed by us in commercial jobs (as more
completely described in the contract we had
with said Union for 1976-79), excluding
office clerical employees, professional em-
ployees, guards and supervisors as defined in
the Act.
WI wti I. NOr discourage membership in the
above-named Union or in any other labor or-
ganization, by discriminating against employ-
ees, laid-off employees, or applicants for em-
ployment, through the imposition of illegal
conditions of employment or by otherwise dis-
criminating against any of our employees in
regard to hire, tenure, or conditions of their
employment.
WE WIl. NOT in any other manner interfere
with, restrain, or coerce employees in the exer-
cise of the rights guaranteed them in Section 7
of the Act except to the extent that such rights
may be affected by lawful agreements in ac-
cordance with Section 8(a)(3) of the Act.
WE WIL.t., upon request, bargain with the
above-named Union, as the exclusive repre-
sentative of all employees in the bargaining
unit described above, with respect to rates of
pay, wages, hours, and other terms and condi-
tions of employment, and, if an understanding
is reached, embody such understanding in a
signed agreement.
WE Wi.i. offer to Kenneth Akens, Kenneth
Page, and John Armstrong immediate and full
instatement to the position each would have
been instated in absent the discrimination
against each or, if such position no longer
exists, a substantially equivalent position, with-
out prejudice to seniority or other rights, and
make each of them and all employees hired on
and after May 31, 1979, whole for any loss of
pay or other benefits suffered by reason of the
discrimination against them.
WE Wll ., in accordance with the terms of
the May 1, 1976-May 31, 1979, collective-bar-
gaining agreement between us and the Union,
pay all delinquent contributions since June
1979 to the following funds or plans: Group
Insurance Plan, Pension Plan, Apprenticeship
Training and Education Fund, Journeyman
Education Training Fund, Mechanical Con-
tractors Industry Advancement Program, Va-
cation Fund, Holiday Fund, and Annunity
Fund.
WE Wll.I continue to pay such contributions
until such time as we negotiate in good faith
with the Union to a new agreement or to an
impasse.
WI: wil.l also pay into those funds and
plans, as liquidated damages, an additional sum
amounting to 10 percent of the delinquent con-
tributions due on those funds and plans.
407
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All of our employees are free to become or
remain, or refrain from becoming or remaining,
members of any labor organization, except to the
extent provided by Section 8(a)(3) of the Act.
FINGER LAKES PLUMBING & HEAT-
ING CO., INC.
DECISION
STATEMENT OF THE CASE
JERRY B. STONE, Administrative Law Judge: This pro-
ceeding, under Section 10(b) of the National Labor Rela-
tions Act, as amended, was heard pursuant to due notice
on February 25 and 26, 1980, at Canandaigua, New
York.
The charge was filed on August 13, 1979. The com-
plaint in this matter was issued on September 27, 1979.
The issues concern whether the Respondent has violated
Section 8(a)(l), (3), and (5) by withdrawal of recognition
of the Union and refusing to meet or bargain with the
Union, and by unilaterally changing the terms and condi-
tions and benefits of employment of employees in a de-
fined appropriate bargaining unit without notice to or
bargaining with the Union.
All parties were afforded full opportunity to partici-
pate in the proceeding. Briefs have been filed by all par-
ties and have been considered. '
Upon the entire record in the case and from my obser-
vation of witnesses, I hereby make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER 2
Finger Lakes Plumbing & Heating Co., Inc., the Re-
spondent, is, and has been at all times material herein, a
corporation duly organized under, and existing by virtue
of, the laws of the State of New York.
At all times material herein, Respondent has main-
tained its principal office and place of business at 601
West Washington Street, in the city of Geneva, and
State of New York, and various other jobsites in New
York State, and is, and has been at all times material
herein, continuously engaged in the business of providing
and performing plumbing and air-conditioning construc-
tion services and related services.3
' My Order, dated May 28, 1980, correcting the record in certain re-
spects is marked as ALJ Exh. No. I and is received into the record
z The facts herein are based on the pleadings and admissions therein
except as otherwise indicated.
3 The above findings follow the complaint allegations. Respondent
adnits the allegations excepting the portion relating to "and various
other job sites in New York State, and is, and has been at all times mate-
rial herein, continuously engaged in the business of providing and per-
forming plumbing and air-conditioning construction services and related
services." The facts reveal that the Respondent has performed plumbing
and air-conditioning construction services and related services at jobsites
in the State of New York other than Geneva before May 31, 1979, and
plumbing construction services after May 31, 1979, the date of expiration
of a collective-bargaining agreement. The facts reveal that Respondent's
work force has fluctuated in the past, that for a period of several months
before May 31, 1979, Respondent was not actively employing employees
in the bargaining unit involved in this case. However, Respondent contin-
ued during such period of time to bid for work customarily performed by
Annually, in the course and conduct of its business,
Respondent purchases and receives goods and materials
in New York State valued in excess of $50,000, which
goods and materials originate outside the State of New
York. Annually, Respondent performs work or services
in New York State valued in excess of $50,000 for other
employers over whom the Board would assert jurisdic-
tion under its direct jurisdictional standards.
As conceded by Respondent and based on the forego-
ing, it is concluded and found that the Respondent is,
and has been at all times material herein, an employer
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOI.VED
4
United Association of Journeymen and Apprentices of
the Plumbing and Pipefitting Industry of the United
States and Canada, Local Union No. 13, is, and has been
at all times material herein, a labor organization within
the meaning of Section 2(5) of the Act.
Ill. THE UNFAIR LABOR PRACTICES
A. Preliminary Issues: Supervisory Status 5
At all times material herein, T. Bogart occupied the
position of president of Respondent, William A. Clark
occupied the position of superintendent, and both have
been and are now agents of Respondent, acting on its
behalf, and supervisors within the meaning of Section
2(11) and (13) of the Act.
B. The Appropriate Bargaining Unit
All plumbers, steamfitters, and pipefitters employed by
Respondent in commercial jobs (as more completely de-
scribed in the contract received in evidence in this pro-
ceeding as G.C. Exh. 2), excluding office clerical em-
ployees, professional employees, guards, and supervisors
as defined in the Act, constitute a unit appropriate for
the purposes of collective bargaining within the meaning
of Section 9(b) of the Act. 6
bargaining unit employees and subsequent to but close in time to the ex-
piration of the collective-bargaining agreement on May 31, 1979, engaged
in work customarily performed by bargaining unit employees. Consider-
ing these facts, it is concluded and found that the General Counsel has
established that Respondent, at all times material herein, has maintained
its principal office and place of business at 601 West Washington Street.
in Geneva, New York, and various other jobsites in New York State, and
is, and has been at all times material herein, continuously engaged in the
business of providing and perfiorming plumbing and air-conditioning con-
struction services and related services.
The facts are based on the pleadings and admissions therein.
5 The facts are based on the pleadings and admissions therein.
5 Respondent admits that the described unit is an appropriate bargain-
ing unit during the time of the contract referred to therein Respondent
denies that such unit has continued to exist after May 31, 1979, because it
ceased employing members of Local 13 of the Union and had no obliga-
tion to bargain with the Union because the Union was not the exclusive
collective-bargaining representative as a result of loss of majority status
after May 31, 1979. The facts in this case reveal that Respondent has con-
tinued in business concerning "commercial" plumbing and air-condition-
ing work until and after May 31, 1979, had no objective basis to doubt
the Union's majority status, and had an obligation to bargain with the
Union as to any changes in employment conditions of employees in the
appropriate bargaining unit. The contract in effect to May 31, 1979. re-
Continued
408
FINGER LAKES PLUMBING & HEATING CO,
C. The 1976-79 Collective-Bargaining Agreement 7
For a number of years Respondent has been a member
of the Mechanical Contractors Association of Rochester,
Inc., a multiemployer bargaining association, and/or
bound by a contract or contracts between the Associ-
ation and the Union. The most recent contract, covering
the Respondent's employees in the appropriate unit pre-
viously found, between the Association and the Union,
and to which Respondent was bound, was effective by
its terms for the period May 1., 1976, to May 31, 1979.
D. The Respondent s Concern Over Losing Work
Toward the last of 1978, Respondent's president,
Bogart, telephoned Local 13's business manager, Farrell,
and expressed a hope to get together with the Union to
discuss his concern over losing work in the Geneva area
because of the union scale. Bogart sent the following
similar communication to Farrell by letter dated January
2, 1979, but there did not ensue a meeting between the
Union and Bogart:
January 2, 1979
Mr. Christopher Farrell
U. A. Local 13
1645 St. Paul Street
Rochester, New York 14621
Dear Sir:
I hope you enjoyed the Holiday Season and look
forward to a good year in 1979.
My concern at this time is with our industry and
the number of unemployed men in our area. In
checking on jobs which normally were our custom-
ers; I find that nearly a million dollars of work was
done by open shop contractors last year. There
were numerous jobs ranging from $500,000.00 down
that got away because we are out of range with the
price we have to charge. I have discussed this with
several of the local delegates in the building trades
and I find other trades have a sliding scale thus en-
abling them to use union men and compete in the
industry. If something like this could be worked out
in our old Local 74 area I feel it would be good for
the Local, at least until the bad economy blows
over; and in turn enhance our positions.
We have the A.B.C. open shop knocking on our
door, but this is not our intent-however we would
like to be competitive.
I would like to have lunch with you someday and
talk this over.
Awaiting your reply, I remain;
ferred to "commercial" plumbing and air-conditioning. The Union and
other employers also have contracts regarding "residential" plumbing and
air-conditioning There is no conention that the Respondent employs em-
ployees who perfiorm "residential" plumbing and air-conditioning work
Considering the filats and the parties' contentions, the overall facts per-
suade and I conclude and find that the bargaining unit as set out is an
appropriate bargaining unit
I The facts are based on the credited testimony of Farrell, stipulationls.
the record as a whole, and some admissions in the pleadings The con-
tract referred to was between the Charging Part) Union and the Re-
spondent
Yours truly,
T. Bogart
E. he Union's Request for Bargaining-January 26,
1979
On January 26, 1979, the Union sent the Respondent,
and apparently other members of the Mechanical Con-
tractors Association of Rochester, Inc., and Association
of Plumbing-Heating-Cooling Contractors of Rochester,
Inc., a letter requesting bargaining as is revealed by the
following:
January 26, 1979
Dear Sir:
Please be advised that our organization wishes to
renegotiate our contract with you which expires
midnight May 31st, 1979.
The items to be negotiated are wages, hours,
working conditions, jointly administered plans and
all other items in the present agreement.
This is to serve as 60 days' notice as required by
Article VIII, Section I of our present Articles of
Agreement of the Mechanical Contractors Associ-
ation of Rochester, Inc. and Association of Plumb-
ing-Heating-Cooling Contractors of Rochester. Inc.
and Local Union No. 13 of the United Association
of Journeymen and Apprentices of the Plumbing
and Pipe Fitting Industry of the United States and
Canada, and all ether pertinent statutes.
Very truly yours,
Chris Farrell
Business Manager
U. A. Local #13
F. The Respondelnts Withdrawal From the
Multiemployer Group
On or about March 13, 1979, Respondent timely with-
drew from the Association and bargaining as a part of
the multiemployer group referred to above, except that
Respondent continued to be bound by the contract
reached through multiemployer bargaining with the
Union until the expiration date of the contract on May
31, 1979.'
At or around the time of Respondent's withdrawal
from the multiemployer group, Respondent transmitted a
letter to the Union as follows:
March 13, 1979
Local 13, United Association
1645 St. Paul Street
Rochester, New York 14621
Re: Agreement-Mechanical Contractor's Associ-
ation of Rochester and Local 13, U.A.
Gentlemen:
This is to advise you that pursuant to Article VIII
of the current collective bargaining agreement that
' the facts are not disputed and are established h the pleadings and
additions therein
409
I)tCISI()NS ()F NAI()NAI. IAB()OR R.AT'IONS O()AR
Finger L.akes Ilumbiing and leating Co.. Inc.
hereby gives notice to Local 13, United Association
that it hereby terminates its agreement with I ocal
13, U.A. effective upon the expiration of the current
collective bargaining agreement.
This is to further advise you that this corporation
will liave submitted its resignation as a member to
the Mechanical Contractor's Association of Roches-
ter.
This corporation will not he bound by any collec-
tive bargaining agreement which may be negotiated
by the above nanmed association or the Conference
Committee vwhich it may designate for the purpose
of negotiating a collective bargaining agreement.
Upon the cf'fectik date of the termination of the
collective-bargaining agreemenlt with your uitori,
thiis corporation will conduct labor relations tor and
n( its ow ni behalf on an independent basis.
Very truly yours,
FINGER LAKFS PI UMBING
AN[) HlEAIINC CO., INC.
by T. Bogart, President
(j. I7he Union 's Request to the Respondent for
Bargaining April 24. 1979
On April 24, 1979, the Union transmitted a letter as
follows to the Respondent:
April 24, 1979
Mr. T. Bogart
Presidelt
Finger akes Plumbing & leating Co., Inc.
601 West Washingtlon Street
Jelleva, New York 14456
Dear Mr. Bogart:
We are prepared to meet with you, for the pur-
pose of renegotiating our agreement with your com-
pany, which expires May 31st, 1979.
We will be available to meet on May 11th, 1979,
at 10:00 a.m., at the Local #13 Union Office, 1645
Saint Paul Street, Rochester, New York, to com-
mence negotiations.
Please contact this office to confirm this meeting.
Sincerely,
Chris Farrell
Business Manager
U.A. ocal #13
H. he Re.spondent's Declination to Bargain May 3,
1979
On May 3, 1979, the Respondent transmitted a letter as
follows to the Union:
May 3, 1979
Mr. Chris Farrell
United Association Local Union No. 13
1645 St. Paul Street
Rochester, New York 14621
Dear Mr. Farrell:
This will acknowledge receipt of your letter of
April 24th, 1979 and meeting on May 11, 1979. We
are not employing any Local 13 members or plumb-
ers and ill not be negotiating, therefore, we will
not be attending the meeting.
Yours truly,
'r. Bogart
I. he Continuation a 'the Bargaining Unit
The Respondent's work force for the bargaining unit
employees has fluctuated in the past. Employees were
laid off and recalled. Essenltially when the Respondent
needed to recall or to hire employees, Respondent
simply sought out employees who were members of
l.ocal 13 and employed the same. In the last few months
of Respondent's 1976 79 contract covering commercial
plumbing and air-conditioninlg work and employees en-
gaged in such work, Responidenit did niot have employees
actively engaged in such work.
Respondent's major conteiition appears to be that the
employinig unit ceased \wheil its last active employee in
such unit ceased work and that its obligation to bargain
with the Union ceased, that thereafter when it employed
employees, such employees were employed in a new unit
and Respondent was free to set its own terms and condi-
tions of employment.
Such contentions are based on a misunderstanding of
what constitutes a continuationi of a bargaining unit. In a
unit f employees involvinig a normal fluctuatinig demand
for employees, as in building and construction work, the
employee work force is deemed to he that of employees
who are actively workilg and those who have a reason-
able expectancy of further employment even though on
layoff status. Since the Respondent continued throughout
the period of time of the old collecti ve-bargaining agree-
ment to seek work of the type normally performed by
bargaining unit employees, and subsequent to May 31,
1979, has successfully obtained substantial work of such
a character and has employed employees to perform
such work, the facts require a finding that the bargaining
unit has continued at all times relevant to this proceed-
ing.
J. The Union Bargaining Status
The facts are largely undisputed that the Union en-
joyed the status of exclusive bargaining representative of
the employees in the appropriate bargaining unit found
herein until May 31, 1979. Board and case law clearly
reveal that as a result of the 1976-79 collective-bargain-
ing agreement, the Union is presumed to have enjoyed
the status of having been designated by a majority of the
employees in the appropriate bargaining unit to be the
representative of such employees and as a result of such
designation by a majority of employees to be the exclu-
sive collective-bargaininIg representative of such employ-
ees. Further, Respondent's withdrawal from the multiem-
ployer bargaining group would not adversely affect such
status of the Union because the presumption of major
designation is presumed to have been evenly spread
throughout the bargaining unit.
410
IINGER I.AKES lPt iMHING & 8tt11 ;\tIN(i C()
It is thus clear that, absent some objective consider-
ations, the Respondent was obligated to bargain with thile
Union on April 24, 1979. when the lUnion requested bar-
gaining, and on May 3, 1979, when the Respondent re-
fused to bargain with the Union. The facts are clear that
the Respondent has refused to bargain with the Union at
all times since May 3, 1979.
The Respondent would contend that its failure to
employ employees for the last months before May 31,
1979, reveals objective considerations to raise a doubt as
to the Union's majority status. Such contentions must bh
rejected. As indicated, Respondent's work force hargain-
ing unit is one of fluctualting si/e. Absent evidence to the
contrary, it is to be presumed thatl the Union's majority
status would continue at the same ratio with new hires
or recalls to work. In this case, the facts do not reveal
any evidence that any enmploce was discontent with the
Union as representative of the employees, Nor is there
any evidence that employee disconteint with the Union
has been made known to the employer. Rather, the facts
reveal that the Respondent was concerned about tle
effect of union scale upon his bids anid the obtaiing of
work and had decided during the term of his contract
with the Union to operate nonunion after the expiration
of such contract. Thus, in the period of time Januar to
March 1979, Bogart spoke to Kenineth Akens who had
formerly been actiely enmployed by the Respondent. At
the time of the Januiar> to March 1979 conxersations.
Akens was employed by the U.S. Government at thile
Veterans lHospital in Canandaigua. Bogart at such linic
had men working at the Veterans Hospital. What oc-
curred is revealed by the following credited excerpts
from Akens' testimony "
Q. Do you know approximatel when these
were'?
A. Well, sometime in January, 1979. 1 got done
there; the last day that I worked there was March
16th, 197".
Q. Did you have a conversation with Mr. Bogart
at any of these times?
A. Yes, a few times we had a general conversa-
tion. He asked me what I was going to do when I
got done work. I said I didn't. He said, if I need
work to come and see him.
Q. Did he say anything else about it'"
A. It would be strictly non-Union
K. The Violation of Section 8(a)(5) b Withdrawal of
Recognition rom the Union
The General Counsel contends and the Respondent
denies that the Respondent violated Section 8(a)(5) and
(1) of the Act by the withdrawal of recognition of the
Union on May 3, 1979, and by refusal thereafter to meet
or bargain with the Union as requested.
The only real issues presented are whether the appro-
priate bargaining unit continued, and whether the Union
I Bogarl tesnfied in dental of the aforesaid onversaionll and lestific in
effecl hal his last itl to he (ananldaigusa itc vsas ;rounu d l)ceniher
1979 C onsiderilig tiogart' testimonial demeatnoir. h logical colnsisten>l
of facts. and Akcns' Icstinm lllal deimealnor, I Im persuaded Ih l Akcls ap-
peared to he a mlor rlhablc aild trultsw orlh, \illlness I credit Akenl' Its
limony over Ihal of tlogarl
has cotillued to have majoriy status and to be the ex-
clusive collectlie-bargaining representatisV of the em-
ployees in Ihe appropriate collectis e-bargaining unit As
has been indicated, the ficts reveal that the appropriate
collecti e-bargainlllg ulllit ontinued tit exist throughout
the time of the 197 7 collective-hargaininig agreement
and after such contract. The facts also reveal that cir-
cumstances to overcome the presumption of majority to
be accorded the Union because of the contractual rela-
tionship have not been revealed. Thus. it is clear that at
the time of Respondent's May 3, 1979, withdra, al of
recognition front the Union. Respondent had the obliga-
lion to continue to recoglnie and to bargain with the
lnioni The facts reveal that Respondenlt has failed to
recognize and to bargain with the Union at all tinles
since May 3, 197Q. Accordinllly. it must be found that
Respondeitl. b such ahoe-referred-to conduct. has io-
lated Section X(a)(5) and (1) of the .Act It is so found
and conc luded.
l. 'hf ' L'llaterall Changes
IThe facts are clear that after Ma} 31, 19779 Rspond-
ent engaiged in ork of the tpe normally performed hv
bargainling unit employees and employed emiplovees to
perforn sucIh work. The ternm, conditionls, and benefits
of employment of the emplo ees performing such work
were different from the terms. conditions, and helnefits of
employmelt ils ha d been ill effect during the termn of the
1976 79 contr;lct hetlweenl the Respondenit ad thce
Union. Although the Unlion had requested hargaining
with the Respondent on Aipril 24, 1979, Respondent had
refused to meet or hbargain ith the Union ad set the
chanlged lerins, wages, and conditioils f enlplovnIent
Wvilhout bargaininig about the same.
It has alrcad\ been found that Respondents refusal to
bargain with the niotl on and after May 3, 1979. consti-
tuted a viol;ltioi of Secioni (a)(5) aid () of the Act. 13\
such collduct, alnd b a self-dleterminatioln to gco on-
unionl and ignore the Unrion, and byv indication of the
sanlie to employees, Respondent, was ot in a positiont to
raise a good-faith doubt ithinl the meaning of lerre/
Machine Co., 173 NLRB 148() (06h). Respondenit .as
obligated to bargain with the Union as to any change in
terms. wages. benefits, and conditions of employment of
employees in the appropriate bargaining unit. Respond-
ent's change in terms, wages, benefits, and conditions of
employment of employees in the appropriate bargaining
unit without bargaining with the Union about such
changes constituted conduct violative of Section 8(a)(5)
and () of the Act. It is so concluded and found
Since the overall facts clearly reveal that Respondent's
changes in wages, terms, benefits, anrid conditions iot' em-
ployment were because Respondent had decided that its
jobs would be nonunion, such changes also constituted
conduct violative of Section 8(a)(3) aid (1) of the Act.
M. 7he Discrimination in Eplovnment
As indicated above, the unilateral changes in terms,
wages. benefits. and conditions of emnplo)meit made bh
Respondent, constituted conduct violative of Section
8(a)(3 ) and (I) of the Act. It is clear that such changes.
4 11
DECISIONS OF NATIONAI. L.AB()R RLATIONS BO()ARD
to the extent adverse to the preexisting terms, wages,
benefits, and conditions of employment, constituted con-
duct discriminatory to the employees who sought em-
ployment or were hired as employees on and after May
31, 1979.
The facts reveal that the Respondent discussed with
Kenneth Akens, at some point of time between January
and March 16, 1979, the fact that future employment
would be on a nonunion basis."' The credited testimony
of Armstrong and Page reveals that Bogart and another
supervisor discussed with them employment opportuni-
ties for them around that time and that the same were to
be on a nonunion basis and at rates different from the
1976-979 collective-bargaining agreement.
Neither Armstrong, Akens, nor Page was employed by
the Respondent. All credibly testified in effect that they
did not want to work nonunion or for lower wages. Al-
though it appears that some question may arise as to
whether some of the jobs were actually for higher or
lower wages, the conditioning of a job as nonuntion or
without pension benefits, constitutes evidence of discrim-
ination.
The General Counsel alleges and the Respondent
denies that "Since on or about the date alleged, Re-
spondent conditioned employment of the employees or
applicants named below' on acceptance of wages and
conditions of employment which were substantially infe-
rior to those provided for in the contract described in
paragraph VII of the complaint; Ken Akens, March 16,
1979. John Armstrong, mid-June, 1979, Kenneth Page,
mid-June, and additional unknown persons employed by
the Respondent to perform plumbing, heating and steam-
fitting work, June 1, 1979, and continuing to date."
Considering the facts found, it is clear that the unilat-
eral changes constituted discrimination toward Arm-
strong, Akens, and Page, and to the employees who
were hired by the Respondent on and after May 31,
1979. Such conduct of unilateral changes and condition-
ing of employment was violative of Section 8(a)(3) and
(I) of the Act.
IV. Tll IFITECT OI I HE UNIAIR I ABOR PRACIICE S
UIPON COMMIRCE
The activities of the Respondent set forth in section
III, above, occurring in connection with the Respond-
ent's operations described in section 1, above, have a
close, intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and tend to
lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. TIHI REMEDY
Having found that Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
"I It is clear that the effect of the Respondent's ilnonunion plicy ad
changes in ages, terms. benefits. and conditions of emplioymelit related
Iit employees a;nd applicanls on and after May 31. 197i9
i Although Bogart testlfied to some extent in denial of Arnstrong's
and I'age's testirloiny. , I note that Bogart's testimonly ultimaiely corrobo-
rated Armstrong's testimony aboul Armstrong's concern about his pen-
sion I found Armstrong's and Paige' testimony more helicsable and
credit their version ,of faclts over Hogaris w here in conflict
Section 8(a)(5) and (1) of the Act. it will be recommend-
ed that Respondent be required to cease and desist there-
from, and, upon request, bargain collectively with the
Union as the exclusive representative of all employees in
the appropriate unit, and, if an understanding is reached,
embody such understanding in a signed agreement.
Having found that Respondent has made unilateral
changes in terms, wages, conditions, and benefits of em-
ployment, in violation of Section 8(a)(5), (3), and (1) of
the Act, it will be recommended that Respondent cease
and desist from making such unilateral changes, and that
Respondent bargain in good faith with the Union as re-
gards changes in terms, wages, benefits, and conditions
of employment.
Having found that Respondent has conditioned em-
ployment of Armstrong, Akens, and Page, and of the
employees who were hired on and after May 31, 1979, in
the appropriate bargaining unit, upon acceptance of
terms, wages, benefits, and conditions of employment at
variance with terms, wages, benefits, and conditions of
enmployment ii existence prior to Respondent's unlawful
unilateral changes of such wages, terms, benefits, and
conditions of employment, it will be recommended that
Respondent reinstate Armstrong, Akens, and Page to
such jobs as they would ha,e received absent Respond-
ent's conditioning of employment upon its unilateral and
unlawful determination of wages terms, benefits, and
conditions of employment. It call be determined in the
compliance proceeding what jobs, if any, Armstrong,
Akens, or Page would have received absent the discrimi-
nation against them. Further, it will be recommended
that Respondent make whole Armstrong, Akens, and
Page, ad all employees hired oni and after May 31, 1979,
for any loss of wages or other benefits suffered as a
result of the discrimination against them. Backpay is to
be computed i accordance with the formula set forth in
1 W. Woolworth Comnpany, 90 NLRB 289 (1950), with
inlterest as prescribed in FIlorida Sluate Corporation, 231
NLRB 651 (1977). 12
Respondent's unfair labor practices are of such a
nature that a broad cease-and-desist order is needed to
fully dissipate the effect of the unfair labor practices and
to prevent further unfair labor practices.
Upon the basis of the above findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS or LAW
1. The Respondent, Finger Lakes Plumbing & Heating
Co., Inc., is an employer 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 Pipefitting Industry of the United
States and Canada, Local Union No. 13, is, and has been
at all times material herein, a labor organization within
the meaning of Section 2(5) of the Act.
3. All plumbers, steamfiltters, and pipefitters employed
by Respondent in commercial jobs (as more completely
described in the contract received in evidence in the
unfair labor practice hearing on February 25. 1980, in
See, gerierall . lAi Plumrnbirn lIteuring Co., 138 NLRB 716 (1962)
412
FIN(;IR l.AKKES PIl.lMHING & ItAT FIN( C(()
Case 3-CA-9262). excluding office clerical employees,
professional employees, guards and supervisors as de-
fined in the Act, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
4. At all times material herein, the Union. set forth
above, represented a majority of employees in the above
appropriate bargaining unit, and has been the exclusive
representative of said employees for the purpose of col-
lective bargaining within the meaning of Section 9(a) of
the Act.
5. By withdrawing recognition from and refusing to
bargain with the Union on and after May 3, 1979, and by
unilaterally changing existing wages, benefits, terms, and
conditions of employment of unit employees on and after
May 31, 1979, Respondent engaged in conduct violative
of Section 8(a)(5) and (1) of the Act.
6. By the making of such unilateral changes in terms,
wages. benefits, and conditions of employment and by
conditioning employment upon acceptance of the
changed terms, benefits, wages, and conditions of em-
ployment, Respondent engaged in conduct violative of
Section 8(a)(3) and (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) ad (7) of
the Act.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER '
The Respondent, Finger Lakes Plumbing & Heating
Co., Inc., Geneva, New York, its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Unlawfully withdrawing recognition from United
Association of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United States
and Canada, Local Union No. 13, as the exclusive collec-
tive-bargaining representative of employees in the below
listed appropriate bargaining unit, refusing to bargain
collectively with said Union, and from making unilateral
changes, all with respect to rates of pay, wages, benefits,
hours, and other terms and conditions of employment of
employees in the below listed appropriate bargaining
unit:
All plumbers, steamfitters and pipefitters employed
by Respondent in commercial jobs (as more com-
pletely described in its contract with said Union for
1976-79), excluding office clerical employees, pro-
fessional employees. guards and supervisors as de-
fined in the Act.
(b) Discouraging membership in United Association of
Journeymen and Apprentices of the Plumbing and Pipe-
':' In the event no xceptions are filed as provtded by Sec 102 46 of
the Rules and Rcgulatiois of the Naillnal .lhbor Relations Hlord. ti
findings, conclusions, and recommended Order herein shall. a pros idcd
in Sec 102 4 of the Rules and Rgulallions. he ildoptld bh the Itbalrd .nd
hecomce is findings, conclusions. anrid Order and all (ohjcoitnlls thereto
shall be deemed val:ed fr all prposes
fitting Industry of the United States and Canada, Local
Union No. 13, or any other labor organization. discrimi-
nating against its employees, laid-off employees. or appli-
cants for employment, through the imposition of illegal
conditions of employment, or by otherwise discriminat-
ing against an of its employees in regard to hire, tenure,
or conditions of their employment.
(c) In any other manner interfering with, restraining.
or coercing employees in the exercise of their rights
guaranteed in Section 7 of the Act except to the extent
that such rights may be affected by lawful agreements in
accord with Section 8(a)(3) of the Act.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Upon request, bargain with the ahove-named labor
organization as the exclusive representative of all em-
ployees in the aforesaid appropriate unit with respect to
rates of pay, wages, hours, and other terms and condi-
tions of employment, and, if an understanding is reached,
embody such understanding in a signed agreement.
(b) Offer to Kenneth Akens, Kenneth Page, and John
Armstrong immediate and full instatement to such posi-
tion as each would have been instated absent the discrim-
ination against each, or, if such position no longer exists,
to a substantially equivalent position without prejudice to
each's seniority, or other rights previously enjoyed, and
make each of them and all employees employed on and
after May 31, 1979, whole for any loss of pay or other
benefits suffered by reason of the discrimination against
each in the manner described above in the section enti-
tIed "The Remedy"
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of backpay due
under the terms of this recommended Order.
(d) Post at Respondent's place of business at Geneva,
New York. and at all jobsites, copies of the attached
notice marked "Appendix.""4 Copies of said notice, on
forms provided by the Regional Director for Region 3,
after being duly signed by Respondent's representatives,
shall be posted by it immediately upon receipt thereof,
and be maintained by Respondent for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall he taken by Respondent to
insure that said notices are not altered, defaced, or cov-
ered by any other material.
(e) Notify the Regional Director for Region 3, in writ-
ing, within 20 days from the date of this Decision, what
steps the Respondent has taken to comply herewith.
I- IS :ULRHIR ORDERHI.) that the allegations of unlaw-
ful conduct not specifically found to be violative herein
be dismissed.
I4 the :seilt that this ()rdecr is nfi)rced h5 a Judgmtnlt of .i triled
Slates C(urt of Appeals the Hords il the iotic readlllg "'osied h
Order of thle Nalial Il.ahor Relations Board shall rad "Posted ursu-
tlit h a Jludnllc'nl tI !tcl [1 ite'd Staites ()url of Appeails Eitforcliig an
()rder of lthe Nll il I ihor Rellltlrs ItllIrd
41