Florida Automatic Sprinkler Contractors Association

National Labor Relations Board - Board Decisions

Oct 30, 1972

199 N.L.R.B. 1151 (N.L.R.B. 1972)

FLORIDA AUTOMATIC SPRINKLER CONTRACTORS 1151
Florida Automatic Sprinkler Contractors Association:
Moore Pipe and Sprinkler Co., Inc .; Florida Fire
Sprinkler, Inc.; William H . Le Dew Co., Inc.; Tomp-
kins-Beckwith Sprinkler Div., Inc . and Road Sprink-
lerfitters Local Union 669 , United Association of
Journeymen and Apprentices of the Plumbing and
Pipefitting Industry of United States & Canada,
AFL-CIO.
International Union of District 50 and its Local Union
12865 (Moore Pipe and Sprinkler Co., Inc.) and
Road Sprinklerfitters Local Union 669 , United As-
sociation of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of United States
& Canada, AFL-CIO. Cases 12-CA-5104, 12-
CA-5126 (1-4), and 12-CB-1187
DECISION AND ORDER
By MEMBERS JENKINS, KENNEDY, AND PENELLO
October 30, 1972
On June 21, 1972, Administrative Law Judge'
Ivar H. Peterson issued the attached Decision in this
proceeding.' Thereafter, Respondent Employers, the
General Counsel, and the Charging Party filed 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
attached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
We agree with the unfair labor practice findings
made by the Administrative Law Judge except that we
do not find, as he did, that Respondent Union viola-
1 The title of "Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972.
2 On June 27, 1972, the Administrative Law Judge issued an Errata revising
the caption and list of appearances herem . On July 3, 1972, the Administra-
tive Law Judge issued another Errata, revising his recommended Order.
3 we hereby correct certain inadvertent errors in the Administrative Law
Judge's Decision which in no way affect his Decision nor our modified
adoption thereof . Negotiations between Respondent Union and Respondent
Employers were held only on December 31, 1970, not on December 30 Joe
C. Reynolds was the vice president of Florida Fire, and not president of
Moore or president of Florida Fire. Moore Pipe and Florida Fire unilaterally
discontinued making contributions to the health and welfare fund of Local
669 on January 1, 1971, not on January 1, 1969.
ted Section 8(b)(1)(A) and (2), because it permitted
management representatives to represent it in con-
tract negotiations with Respondent Employers and
thereby breached a duty of fair representation, or that
it violated Section 8(b)(2) as the beneficiary of Re-
spondent Employer's unlawful assistance, including
the execution of a contract.
Even if it be assumed arguendo that a principle of
fair representation exists in a bargaining context in
the manner suggested by the Administrative Law
Judge, it cannot apply to the instant case where the
Respondent Union was not the freely designated bar-
gaining agent of the employees involved and thus was
without lawful representative status among them.
As for the 8(b)(2) finding based on the assistance
given the Respondent Union, it must be noted that the
contract with the Respondent Employer contained no
union-security clause, and the record will not other-
wise support a finding of an 8(b)(2) violation on this
ground.
REMEDY
Having found that the Respondents have en-
gaged in and are engaging in certain unfair labor
practices, we shall order them to cease and desist
therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act.
The Administrative Law Judge recommended
that the Respondent Employers be required to rescind
and revoke the unlawful contract between them and
Respondent Union District 50 and its Local 12865. As
requested by the General Counsel, we shall also order
the Respondent Employers to withdraw recognition
from Respondent Union on account of their unlawful
assistance to it.
The Administrative Law Judge recommended
only that Respondents Florida Fire and Moore Pipe
be ordered to "reimburse employees and former em-
ployees for the payments they were required to make
to maintain insurance in the health and welfare fund,
from and after January 1, 1971." However, he found
that Respondent Moore Pipe has unlawfully unilat-
erally discontinued making contributions to the
Health and Welfare Fund on behalf of nonunion fab-
ricating shop employees since September 21, 1970,
whereas both Respondents Moore Pipe and Florida
Fire have unlawfully discontinued contributions to
the Health and Welfare Fund on behalf of all unit
employees since January 1, 1971. We shall revise the
recommended Order to effectively remedy the viola-
tions found.
No unlawful interrogation having been found,
we shall delete the order against such interrogation by
199 NLRB No. 142
1152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent Employers recommended by the Admin-
istrative Law Judge. We also find unwarranted, and
shall delete, paragraph 1(a) of the recommended Or-
der against the Respondent Union.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that:
A. Respondent Employers Moore Pipe and
Sprinkler Co., Inc., Florida Fire Sprinkler, Inc., Wil-
liam H . Le Dew Co., Inc., and Tompkins-Beckwith
Sprinkler Div., Inc.,, their officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Maintaining the contract of December 31,
1970, or any renewal thereof, between the aforesaid
Respondent Employers and Respondent Union.
(b) Refusing, upon request, to bargain with Road
Sprinklerfitters Local Union 669, United Association
of Journeymen and Apprentices of the Plumbing and
Pipefitting Industry of United States & Canada,
AFL-CIO.
(c) As to Respondents Florida Fire and Moore
Pipe, requiring unit employees to pay for their own
insurance in the Health and Welfare Fund.
(d) As to Respondent Moore Pipe, requiring non-
union employees to pay for their own insurance in the
Health and Welfare Fund.
(e) In any other manner interfering with, re-
straining , or coercing employees in the exercise of
their rights under Section 7 of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act:
(a) Rescind and revoke the December 31, 1970,
contract with Respondent Union District 50 and its
Local 12865, or any renewal or replacement agree-
ment.
(b) Withdraw and withhold all recognition from
the Union as the exclusive representative of the em-
ployees for the purpose of dealing with them concern-
ing wages, rates of pay, hours of employment, or other
terms and conditions of employment, unless and until
such labor organization shall be certified by the Board
as the exclusive bargaining representative of such em-
ployees.
(c) Upon request, bargain collectively with Road
Sprinklerfitters Local Union 669, United Association
of Journeymen and Apprentices of the Plumbing and
Pipefitting Industry of United States & Canada,
AFL-CIO, and, if an understanding is reached, em-
body such understanding in a signed agreement.
(d) As to Respondent Moore Pipe, reimburse, with
interest at 6 percent, said nonunion fabrication shop
employees, past and present, for payments and ex-
penditures they were required to make during the pe-
riod September 21, 1970-January 1, 1971, because
Moore Pipe failed to make the required payments into
the Health and Welfare Fund on their behalf. As to
Respondents Moore Pipe and Florida Fire, reim-
burse, with interest at 6 percent, their employees past
and present, for payments and expenditures they were
required to make since January 1, 1971, because of
Respondents' unilateral discontinuance of payments
into Local 669's Health and Welfare Fund.
(e) Post at their respective places of business in
Jacksonville, Orlando, and Tampa, Florida, copies of
the attached notices:4 Appendix A to be posted by
Florida Automatic Sprinkler Contractors Associa-
tion; William H. Le Dew Co., Inc.; Tompkins-Beck-
with Sprinkler Div., Inc.; Appendix B to be posted by
Moore Pipe and Sprinkler Co., Inc; and Appendix C
to be posted by Florida Fire Sprinkler, Inc. Copies of
said notices, on forms provided by the Regional Di-
rector for Region 12, after being duly signed by
authorized representatives of the respective Respon-
dents, shall be posted immediately upon receipt there-
of, and shall be maintained for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondents
to insure that said notices are not altered, defaced, or
covered by any other material.
(f) Notify the Regional Director for Region 12, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
B. Respondent Union, International Union of
District 50, and its Local Union 12865, shall:
1. Cease and desist from requesting any of the
foregoing Employers, for recognition as the collec-
tive-bargaining representative unless and until certi-
fied as the exclusive bargaining representative in an
appropriate unit by the Board.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act:
(a) Post at its business offices and meeting halls
in Jacksonville, Orlando, and Tampa, Florida, copies
of the, attached notice marked "Appendix D."5 Copies
of said notice, on forms provided by the Regional
Director for Region 12, after being duly signed by an
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."
FLORIDA AUTOMATIC SPRINKLER CONTRACTORS 1153
authorized representative of the Respondent Union,
shall be posted by it immediately upon receipt thereof,
and be maintained by it for 60 consecutive days there-
after, in conspicuous places, including all places
where notices to members are customarily posted.
Reasonable steps shall be taken by the Respondent
Union to insure that said notices are not altered, de-
faced, or covered by any other material. .
(b) Notify the Regional Director for Region 12,
in writing, within 20 days from the date of this Order,
what steps the Respondent Union has taken to com-
ply herewith.
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Room 706, Federal Office Building,
500 Zack Street, P. O. Box 3322, Tampa, Florida
33602, Telephone 813-228-7227.
5 See In . 4, supra.
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board having found,
after a trial, that we have violated federal law by
entering into and maintaining a contract with Inter-
national Union of District 50, and its Local Union
12865, and by otherwise interfering with our employ-
ees' right to join and support a union:
WE WILL rescind and revoke the December
31, 1970, contract with International Union of
District 50 and its Local Union 12865.
WE WILL withdraw and withhold all recogni-
tion from International Union of District 50 and
its Local Union 12865, unless and until such la-
bor organization shall be certified by the Na-
tional Labor Relations Board as your exclusive
bargaining representative.
WE WILL, upon request, bargain collectively
with Road Sprinklerfitters Local Union 669,
United Association of Journeymen and Appren-
tices of The Plumbing and Pipefitting Industry of
United States & Canada, AFL-CIO.
FLORIDA AUTOMATIC SPRIN-
KLER CONTRACTORS ASSOCIA-
TION; WILLIAM H. LE DEW CO.,
INC.; ITOMPKINS-BECKWITH
SPRINKLER DIV., INC.
(Employer)
Dated By
(Representative) (Title)
APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board having found,
after a trial, that we have violated Federal law by
entering into and maintaining a contract with Inter-
national Union of District 50, and its Local Union
12865, and by otherwise interfering with our employ-
ees' right to join and support a union:
WE WILL rescind and revoke the December
31, 1970, contract with International Union of
District 50 and its Local Union 12865.
WE WILL withdraw and withhold all recogni-
tion from International Union of District 50 and
its Local Union 12865, unless and until such la-
bor organization shall be certified by the Na-
tional Labor Relations Board as your exclusive
bargaining representative.
WE WILL reimburse with interest at 6 percent
our nonunion fabrication shop employees, past
and present, for payments and expenditures they
were required to make between September 21,
1970, and January 1, 1971, because of the non-
payment of contributions to Local 669's Health
and Welfare Fund on their behalf.
WE WILL also reimburse with interest at 6 per-
cent our employees, past and present, for the
payments and expenditures they were required to
make since January 1, 1971, because of the non-
payment of contributions to Local 669's Health
and Welfare Fund on their behalf.
1154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL , upon request, bargain collectively
with Road Sprinklerfitters Local Union 669,
United Association of Journeymen and Appren-
tices of The Plumbing and Pipefitting Industry of
United States & Canada , AFL-CIO.
MOORE PIPE AND SPRINKLER
Co., INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Room 706, Federal Office Building,
500 Zack Street, P. O. Box 3322, Tampa, Florida
33602, Telephone 813-228-7227.
APPENDIX C
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board having found,
after a trial that we have violated Federal law by enter-
ing into and maintaining a contract with International
Union of District 50, and its Local Union 12865, and
by otherwise interfering with our employees' right to
join and support a union:
WE WILL rescind and revoke the December
31, 1970, contract with International Union of
District 50 and its Local Union 12865.
WE WILL withdraw and withhold all recogni-
tion from International Union of District 50 and
its Local Union 12865, unless and until such la-
bor organization shall be certified by the Na-
tional Labor Relations Board as your exclusive
bargaining representative.
WE WILL reimburse with interest at 6 percent
our employees, past and present, for the pay-
ments and expenditures they were required to
make since January 1 , 1971, because of the dis-
continuance of payments to Local 669 's Health
and Welfare Fund on their behalf.
WE WILL , upon request , bargain collectively
with Road Sprinklerfitters Local Union 669,
United Association of Journeymen and Appren-
tices of The Plumbing and Pipefitting Industry of
United States & Canada , AFL-CIO.
Dated By
FLORIDA FIRE SPRINKLER, INC.;
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Room 706, Federal Office Building,
500 Zack Street, P. O. Box 3322, Tampa, Florida
33602, Telephone 813-228-7227.
APPENDIX D
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board having found,
after a trial, that we violated Federal law by entering
into a contract with Florida Automatic Sprinkler
Contractors Association; Moore Pipe and Sprinkler
Co., Inc.; Florida Fire Sprinkler, Inc.; William H. Le
Dew Co., Inc.; Tompkins-Beckwith Sprinkler Div.,
Inc., and by otherwise interfering with our members'
rights to join and support a union:
WE WILL NOT request any of the aforenamed
Employers to grant us recognition as the exclu-
sive bargaining representative unless and until
certified as such by the National Labor Relations
Board.
WE WILL NOT in any other manner interfere
FLORIDA AUTOMATIC SPRINKLER CONTRACTORS 1155
with your rights as guaranteed in the National
Labor Relations Act.
INTERNATIONAL UNION OF
DISTRICT 50 AND ITS
LOCAL UNION 12865
(Labor Organization)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's office, Room 706, Federal Office Building,
500 Zack Street, P. O. Box 3322, Tampa, Florida
33602, Telephone 813-228-7227.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
IvAR H. PETERSON, Trial Examiner: This case was tried
at Jacksonville, Florida, on 9 days between February 28 and
March 30, 1972, both inclusive. The charge in Case 12-CA-
5104 was filed on February 26, 1971, and the charge in Case
12-CB-1187 was also filed on the same date.'
Upon the entire record in the case, including my obser-
vation of the demeanor of the witnesses, and after due con-
sideration of the briefs filed on May 30, I make the
following:
FINDINGS OF FACT
I JURISDICTION
The individual Respondents are each Florida corpora-
tions with offices and places of business at Tampa, Orlando,
and Jacksonville, Florida, where they are engaged in the
business of installing sprinkler systems and other fire pro-
tection devices. Each is a member of the Respondent Asso-
1 Case l2-CA-5126- 1 was filed on March 19 as was true of Cases 12-CA-
5126-2 and 12-CA-5126-3. The amended charge in Case 12 -CA-5126-3
was filed on March 29, and the amended charge in Case 12 -CA-5126-4 was
filed March 19. The consolidated complaint was issued December 9 and
amended on December 29. Briefly stated , the consolidated complaint alleged
that the Association and the individual Employer Respondents assisted Dis-
tnct 50 and its Local Union 12865 in various ways and refused to bargain
with the Charging Party, herein referred to as the Union or Local 669, and
that Respondents Florida Fire and Moore discontinued and refused to make
payment to the Union 's health and welfare fund as required by the contract.
In addition , the complaint alleged that Respondent Moore failed and refused
to make contractually required contributions to the health and welfare plan
on behalf of the nonunion employees and forced and required these to pay
for their own insurance , all in violation of Sec. 8 (a)(1), (2), (3), and (5) of the
Act; and that the Respondent Union violated Sec. 8(b)(l)(A) and (2) of the
Act. The Respondents Association and Union and the individual Respon-
dents denied the commission of any unfair labor practices.
ciation and each annually purchases materials and supplies
valued in excess of $50,000, which are received directly from
locations outside the State of Florida. The Respondent As-
sociation is a nonprofit corporation which at all times mate-
rial has acted as the agent of its members with respect to the
negotiation and administration of collective-bargaining
agreements with labor organizations. I find that the individ-
ual Respondent Employers and the Respondent Associa-
tion each has been at all times material a person engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.
I further find that the Union, Local 669, and the Re-
spondent Union, District 50, are each labor organizations
within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Alleged Refusal to Bargain
The following persons, with the titles set opposite their
respective names , I find, at all times material have been
officers and agents of the respective Respondent Employ-
ers, and are supervisors and agents within the meaning of
Section 2(11) and (13) of the Act:
Gerry B. Evans-President of Moore
Carol Brunson-Shop Superintendent of Moore
C. K. Luker-President of Le Dew
Joe C. Reynolds-President of Fire Sprinkler
F. J. Beckwith-President of Tompkins
Jack Luker-Shop Foreman of Le Dew
George King-Foreman of Tompkins
Alvin Russell Hall-Shop Foreman of Fire Sprinklers
I further find that Lewis Trawick has at all times mate-
rial acted as an agent and representative of the Respondent
Union, within the meaning of Section 2(13) of the Act.
Paragraph 8 of the complaint alleges that the appropri-
ate unit for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act consists of the following:
All employees, including but not limited to the classifi-
cations of Metal Trades, fabricators, helpers and labor-
ers, employed in the sprinkler fitting pipe fabrication
shops of the Respondent Employer; but excluding all
office clerical employees, professional employees, plant
janitors, guards and supervisory personnel as defined
in the Act.
The Respondents denied the allegation of paragraph 8 but
admitted that "all regular full-time maintenance and pro-
duction employees in the Respondent Employers' fabricat-
ing shop excluding office clericals, temporary or casual
employees, guards, janitors, designers and professional em-
ployees, and supervisors" constituted an appropriate unit.
Except for the supervisory status of Hall, there was no dif-
ference of opinion regarding the composition of the appro-
priate unit or the identity of the individual employees
included therein.
The four Respondent Employers and Local 669 were
parties to four individual collective-bargaining agreements
for a term running from January 1, 1968, through December
31, 1970. Under date of September 29, 1970, Peter T. Schoe-
mann, general president of the United Association of
Plumbers, with which Local 669 is affiliated, sent a letter to
each of the Respondent Employers advising that in accord-
1156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ance with the terms of the existing agreement "the repre-
sentatives of Road Sprinklerfitters Local Union No. 669
stand ready to meet and confer with your representatives
prior to expiration date of said agreement, namely Decem-
ber 31, 1970, to negotiate and consider adjustments of wag-
es, working conditions and contributions to fringe benefit
funds to be incorporated in a new agreement." So far as
appears, no reply was received by Schoemann in response
to this letter. John L. Oshinski, director of organization for
District 50, sent a letter dated December 17, 1970, to Clar-
ence W. McColeman, director of District 50's Region 28,
advising that the four Respondent Employers had opera-
tions at four Florida locations, set forth in the letter, and
also included the name of an employer representative at
each location. The letter stated in part as follows:
The employees at all four plants are covered by con-
tracts with the Pipe Fitters Union, expiring December
31, 1970. No negotiations have been conducted on be-
half of the employees. Apparently internal matter af-
fecting the Pipe Fitters Union are deterring
negotiations. No further request for negotiations has
been requested by that Union.
There are approximately 80 employees in the four fa-
cilities. The Company has agreed to recognize our Union
upon your success in signing the majority. You are there-
fore instructed to begin organizational card signing of
employees for January 1, 1971, and, upon signing the
majority, to request recognitions of the various compa-
nies , with immediate notification of your progress to
the National Office. [Emphasis supplied.]
Upon receipt of the December 17 letter, McColeman,
who was based in Mobile, Alabama, contacted Lewis Tra-
wick, field representative who reported to McColeman, at
Trawick's home in Pensacola, and asked Trawick to come
to Mobile at his earliest convenience to investigate the pos-
sibility of organizing the employees of the four Respondent
Employers. On Sunday, December 27, after having con-
ferred with McColeman the previous day, Trawick went to
Tampa. McColeman had given him the names of individ-
uals to contact at each Employer, without indicating their
positions.
On the morning of December 28, Trawick telephoned
the plant of Florida Fire Fighters and asked to talk to a Mr.
Hall, the name given him by McColeman. When he arrived
at the plant, the secretary informed him that he would have
to see a Mr. Reynolds, president of the Company. When he
did so, he told Reynolds that he was a union representative
and wished to talk to Mr. Hall. Reynolds called Hall, and
the latter and Trawick went outside and conversed. Hall
informed Trawick that the employees had a break at 12
noon for lunch and that Trawick should then come back.
Trawick testified that he later found out that Hall was shop
steward for Local 669. When they met, Hall advised Tra-
wick that Local 669 had a contract and that Local 669 had
been in the plant for 3 years, but that the employees had
never seen a representative of that union. Arrangements
were made for Trawick to meet with the employees that
evening at the Holiday Inn, where Trawick was staying.
During that meeting, the employees indicated to Trawick
that their contract was about to expire and that they were
very much concerned about the continuation of their fringe
benefits . Near the conclusion of the meeting, the employees
in attendance signed authorization cards . Trawick, so he
testified , explained to the employees that if he were unsuc-
cessful in obtaining authorization cards from the employees
at the other locations he would return their cards.
After the contract had been ratified by the employees
at all four locations , Trawick set up a meeting for the pur-
pose of proofreading the contract and signing it.
At this point, it seems appropriate to set forth the de-
tails of Trawick's approach to the employees at each loca-
tion . As stated above, McColeman's letter of December 17
listed the names of the individuals whom Trawick should
contact at each establishment , without indicating their posi-
tion with their respective employer . At Florida Fire, which
Trawick visited on December 28, he was shown into the
office of President Reynolds and asked to see Hall, who I
find was shop foreman , and whose name had been given
him by McColeman . Reynolds called Hall into his office
and introduced him to Trawick and gave him Trawick's
business card and stated that Trawick wished to speak to
Hall. They went outside to Trawick's car, some time be-
tween 9 and 9:30 in the morning , and Trawick asked if Hall
could arrange for him to meet with the employees. Follow-
ing this , Hall spoke to each employee individually to the
effect that Trawick wished to discuss with them representa-
tion by District 50; the employees agreed to discuss this with
Trawick at lunchtime . At about 11 :45, Hall telephoned
Trawick and informed him that the employees had agreed
to talk to him during their lunch period . Trawick did appear
and during the discussion told them that District 50 wished
to represent them.
At the end of the evening meeting, all employees in
attendance signed authorization cards for District 50, and
Trawick explained to them that, in the event he was unsuc-
cessful in obtaining authorization cards from the employees
at the other locations , he would return their cards. The
following day he went to Orlando and returned to Tampa
on January 9 to report on the results of the negotiations
which had begun on December 30 and were concluded on
the evening of December 31. The employees voted to accept
the contract, after it had been read , and Trawick designated
Hall, with the consent of the employees , to continue as
committeeman.
At this point, it seems advisable to indicate the persons
with whom Trawick made his initial contacts at the several
plants. As related above, Trawick first met with President
Reynolds of Moore , who introduced him to Hall. Then he
went to the Le Dew plant in Orlando. When he telephoned
the plant , he spoke to C. K. (Jerry) Luker, the president of
Le Dew . Luker told him how to reach the plant and when
he arrived he called his brother , Shop Foreman Jack Luker,
and introduced him to Trawick . At about 10 o'clock in the
morning, Trawick spoke to the employees and told them,
among other things, that he wished to represent them. Dur-
ing the approximately 25 minutes that Trawick spoke to the
employees , Jack Luker was present . The meeting took place
on what normally was the employees ' breaktime and after
the meeting ended the employees took their normal 15 min-
ute break . Later in the day, at about 4 p.m., Trawick re-
turned to the shop and distributed union authorization
cards to the seven employees , all of whom signed.
FLORIDA AUTOMATIC SPRINKLER CONTRACTORS
On the evening of December 29, Trawick went to Jack-
sonville and registered at the Heart of Jacksonville Motel.
The next morning he went to Moore Pipe and spoke to
Gerry D. Evans , president of Moore , and after introduc-
tions, asked to talk to Joseph Robbins . Trawick, so he testi-
fied , told Evans that it was his intention and desire to
approach the employees "to sign them up into District 50
if possible." According to Trawick, Evans took him " .. .
in the back where the people worked and introduced me to
Mr. Robbins." Trawick explained to Robbins that he was
a District 50 representative and desired to represent the
employees . Carl Brunson , shop supervisor for Moore, con-
vened a meeting of employees . Evans told the assembled
employees, at lunchtime , that it appeared that Local 669
was no longer interested in representing them and would
not represent them beyond the end of the year and, in
consequence , the employees would be without a contract.
Trawick asked the employees to sign authorization cards
and, with the assistance of Robbins , he received authoriza-
tion cards from 17 employees , partially during working
time.
Shortly before noon on December 30, Trawick went to
the Tompkins plant and there asked for George King, a
foreman , and was introduced to President W. J. Hodges by
the receptionist . Hodges stated that he would call King,
which he did . Trawick advised King that he desired to meet
with the employees, to which King agreed, and took him
back into the shop where work was being performed. King
told the employees to "take a break" and they went into
King's office where Trawick was introduced . During this
meeting, Trawick informed the employees that Local 669
had contacted District 50 and advised that it no longer
desired to represent the fabrication shops in the State of
Florida. He further stated that Local 669 had requested
District 50 to take over the shops, to which District 50 had
agreed. During the meeting with Tompkins employees, Su-
pervisor King volunteered that it would be advisable for the
employees to select District 50 as their representative for
otherwise they would not have a union, and that this was
their last chance. Trawick distributed authorization cards to
the employees at this meeting and King signed a card and,
at the request of another employee , Clarence Manning,
filled out Manning's card which the latter then signed.
Following his organizational efforts at the Tompkins
plant, Trawick telephoned McColeman about midafter-
noon on December 30 and reported his progress . McCole-
man suggested that he inform the several Employers of the
majority status of District 50 and request a meeting in order
to obtain recognition . Trawick did so by calling Evans, who
in turn suggested that he call Daniel Coffman , the attorney
for the Company . Trawick did so and requested recognition
and that Coffman work out a recognition agreement and a
contract between District 50 and the Employers . Later in
the day of December 30, Evans called Trawick and advised
him that they could meet the following day at about 10
o'clock at the Heart of Jacksonville Motel . Thereupon,
Trawick contacted Hall, Jack Luker , Robbins , and King to
inform them of the meeting.
At about 3 p.m. on December 31, joint negotiations
between the representatives of the Union and the Employ-
ers commenced . At the outset, a question was raised regard-
1157
ing the supervisory status of Hall, Jack Luker, and George
King. In consequence, the Employers' representatives con-
cluded that Luker and King were supervisors and should
not participate in negotiations, but that Hall was not a
supervisor. In spite of this, all three participated in the nego-
tiations that followed and, indeed, Hall signed the contract
that was negotiated. Luker engaged in negotiations in spite
of his admitted supervisory status and attended every cau-
cus held by the Union during the negotiations and told the
representatives of the Union that the Respondent Compa-
nies had conceded all they could and had nothing further
to give .2
As has been previously stated, the Respondent Em-
ployers were parties to individual contracts with Local 669
with an expiration date of December 31. These agreements,
in article IX, provided for payments by the Employers to the
Union's health and welfare fund. After the negotiation of
the contract with District 50, Moore and Florida Fire, with-
out consultation with or notice to the Plumbers Union,
discontinued payments to the health and welfare fund. In
addition, Respondent Moore refused to make contribu-
tions, as required by the contract, on behalf of nonunion
fabricating shop employees in spite of the fact that the
agreement provided that Moore would make payments for
all unit employees. These facts are clearly established by the
record, particularly by comparison of the employee comple-
ment of the fabricating shop with the list of those employees
for whom contributions were made. It is also evident that
contributions were made only on behalf of members of
Local 669 and, at the same time, Respondent Moore was
refusing to make payments on behalf of nonmembers of the
Union, who were required to pay for their own insurance
benefits.
The Respondent Employers and the Respondent Asso-
ciation called no witnesses. Respondent District 50 called
only one witness, Trawick. At the hearing, counsel for the
Respondent Employers attempted to adduce evidence to
the effect that at the time the agreement between the Em-
ployers and Local 669 was reached in 1967, two of the
Respondent Employers "were under disability to enter into
such an agreement and Local 669 did not represent an
uncoerced majority of any of the four Respondent Employ-
ers' employees." He also sought to prove that beginning in
June 1970, "at the suggestion of the General President of the
United Association, Respondent Employers entered into
negotiations with Local 669 to reach a national fabrication
agreement." However, counsel contends that no such na-
tional agreement was reached and that "the United Associa-
tion and Local 669 informed the Respondent Employers
that there would be no national agreement and that the
United Association intended to break up Local 669 into
various locals throughout the country. Further, there were
no negotiations between Local 669 and the individual Re-
spondent Employers during 1970, and no negotiations were
requested by Local 669." I stated that "what we are really
endeavoring to determine in this proceeding is whether in
2 At the outset of negotiations, a card check of union authorization cards
was made by an individual whom Trawick referred to as "possibly the son
of Jerry Luker" and , when that had been concluded, the Respondent Em-
ployers recognized the Union. At the conclusion of negotiations, shortly
before midnight , December 31, the parties initialed an agreement.
1158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the relationship between the Respondent Employers and
the Respondent Union, during the relevant statutory period
there has been any infringement of the Act." I further ex-
pressed the view that the relationships between Local 669
and the Employers from 1967 foward were "essentially irrel-
evant . . . to the relatively narrow issue framed by the
Complaint and the Answer." Accordingly, I refused to hear
such evidence and placed in the rejected exhibit file doc-
uments asserted by counsel for the Respondent Employers
to support his contentions. Counsel for the Respondent Em-
ployers did not file a posthearing brief with me.
Conclusions
It seems plain that on this record, which contains very
little in the nature of conflicting testimony, that the Respon-
dent Employers and Respondent District 50 joined in activi-
ties which resulted in a raid by District 50 upon the
employees who at the time were represented pursuant to
contract by Local 669. It is clear that District 50 was well
aware of the status of Local 669 as collective-bargaining
representative inasmuch as Oshinski, District 50's director
of organization, wrote to McColeman, director of Region
28, noting the existence of the contract and its duration and
stated that each individual company "has agreed to recog-
nize our Union upon your success in signing a majority."
Moreover, I find that District 50's representative Trawick
was, as counsel for the General Counsel states in his brief,
"eagerly welcomed" at each of the four Employers' plants
and that in each instance supervisory employees aided him
in his effort by calling employees together to listen to him,
by introducing him to employees, encouraging employees to
sign up with District 50, and assisting him in the solicitation
of authorization cards. All such activity was conducted on
company property and, in substantial part, on working time.
I conclude that such misconduct in connection with the
securing of authorization cards constitutes a violation not
only of Section 8(a)(1) and (2) on the part of the Employers,
but also conduct violative of Section 8(b)(1)(A) and (2) and
"in consequence invalidates these cards as a basis for the
recognition which was extended to District 50 by the Re-
spondent Employers." See, for example, Hopcon, Inc., 161
NLRB 31; Centerville Clinics, Incorporated 181 NLRB 135;
Uralite Co., Inc., 132 NLRB 425; and Local 964, United
Brotherhood, etc. (A. W. Carleton, d/b/a Carleton Brothers
Company), 141 NLRB 1138.,
Inasmuch as it is evident that the Respondent Employ-
ers could not legally extend recognition to District 50 based
upon this tainted evidence of majority status, it necessarily
follows that negotiating a contract was equally illegal, and
that this contract is void ab initio and should be struck
down.
Even if it be assumed, arguendo, that a majority of the
authorization cards had not been tainted by supervisory
participation, the fact that supervisors were permitted to sit
in on negotiations in the capacity of District 50 committee-
men is violative of Section 8(a)(1) and (2) of the Act. For
example, Hall, a supervisor employed by Florida Fire, par-
ticipated as a District 50 representative in the entire single
negotiating session which led to the contract. Moreover,
Jack Luker, a foreman at Le Dew, took an active part in the
negotiations, including attending District 50 caucuses and
deliberations, although the parties had already conceded
that he was a supervisor. See Nassau and Suffolk Contractors
Association, Inc., 118 NLRB 174; Powers Regulator 149
NLRB 1185; Dock Warehousing, 169 NLRB 708; E. E. E.
Co., 171 NLRB 982; and Bisso Towboat Co., 192 NLRB No.
116.
By allowing and soliciting representatives of manage-
ment to serve as committeemen in the representation of
employees at the bargaining sessions, it seems clear that
District 50 violated Section 8(b)(1)(A) and (2) of the Act. In
undertaking to act as collective-bargaining representative of
the unit employees, District 50 had a statutory obligation
fairly to represent them. Miranda Fuel Co., 141 NLRB 181.
By permitting employees to be represented in bargaining by
an individual whose managerial position prevented the sin-
gle-minded pursued advancement of the interest of unit
employees, it clearly appears that District 50 breached its
statutory obligation to provide fair representation for these
employees. As the Board noted in Bausch & Lomb, 108
NLRB 1555, a union in bargaining negotiations must have
"a single-minded purpose of protecting and advancing the
interest of employees ... and there must be . . . `complete
loyalty to the interest of all whom it represents.' " See also
Bambury Fashions, 179 NLRB 75.
As noted above, Local 669 and the Respondent Em-
ployers had individual contracts covering the unit employ-
ees, effective January 1, 1968, through December 31, 1970.
While these agreements were in effect, the Respondent Un-
ion and the Respondent Association met on December 31
and negotiated a collective-bargaining agreement which
was signed by the parties. It seems evident that this violated
Section 8(a)(5) of the Act inasmuch as the employees were
already represented under contract with an incumbent un-
ion. In addition, even if it be assumed that no agreement
was reached before the expiration of the Local 669 contract,
nonetheless Local 669 would still be entitled to a presump-
tion of continuing majority status absent some reasonable
basis for the Employers entertaining a good-faith doubt
regarding that status. No such basis for good-faith doubt
existed in this case.3
There is no dispute that after January 1, 1971, Florida
Fire and Moore Pipe discontinued payments to the health
and welfare fund of Local 669. By so doing, the Employers
violated Section 8(a)(5) of the Act. See Hen House Market,
175 NLRB 596. In law, the Union remained the bargaining
representative of the employees even after the expiration of
the contract and there is little if any evidence that would
support a conclusion that Local 669 had abandoned repre-
senting the employees. In this connection, it should be noted
that each of the Employers had received the September 29
letter from the general president of the United Association,
requesting negotiations looking toward a new contract, but
none made reply.
The record is clear that Moore Pipe made payments
into the health and welfare fund of Local 669 only on behalf
of union member employees, and refused to make such
O
3I have not overlooked some rather vague, fragmentary, and isolated
statements by individual employees to the effect that they were not satisfied
with representation, by Local 669, and had not been visited by any of its
representatives.
FLORIDA AUTOMATIC SPRINKLER CONTRACTORS
payments on behalf of employees not members of Local
669. Such action was in violation of the provision of the
contract between Local 669 and Moore and, therefore, vio-
lated Section 8(a)(1) and (3) of the Act. I so find. Meyers
Bros. of Missouri, Inc., 151 NLRB 889, and Local 140 United
Furniture Workers, 109 NLRB 326. To conclude, I find that
in the foregoing respects the Respondent Employers viola-
ted Section 8(a)(1), (2), (3), and (5) of the Act and Respon-
dent District 50 violated Section 8(b)(1)(A) and (2) of the
Act. I further find that the aforesaid unfair labor practices
are unfair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
CONCLUSIONS OF LAW
1. The Respondent Employers Moore Pipe and Sprin-
kler Co., Inc.; Florida Fire Sprinklers, Inc.; William H. Le
Dew Co.; Tompkins-Beckwith Sprinkler Div., Inc.; and Re-
spondent Florida Automatic Sprinkler Contractors Associ-
ation, are Employers within the meaning of Section 2(6) and
(7) of the Act.
2. Road Sprinklerfitters Local Union 669, United Asso-
ciation of Journeymen and Apprentices of the Plumbing
and Pipefitting Industry of the United States & Canada,
AFL-CIO, and Respondent International Union of District
50 and its Local Union 12865, are labor organizations with-
in the meaning of Section 2(5) of the Act.
3. On or about December 28,1970, Respondent Moore,
at its shop facility, through its president, Evans, introduced
a representative of the Respondent Union to employees on
company time and premises and notified said employees
that Respondent Union's representative would speak to
them about joining the Respondent Union and that it would
be to their advantage to listen to said representative since
they would be without a contract in 2 days.
4. On or about December 28, 1970, Respondent Em-
ployer Moore, through President Evans, provided assist-
ance and support for Respondent Union by permitting its
representative to contact employees on company premises
during working hours and encouraging an employee to so-
licit authorization cards for Respondent Union.
5. On or about December 29, 1970, Respondent Flori-
da Fire, by its president, Reynolds, solicited Shop Foreman
Hall to assist the Respondent Union's representative to or-
ganize the employees of said Company on behalf of Re-
spondent Union and said Supervisor Hall solicited
employees to sign authorization cards for Respondent Un-
ion.
6. On or about December 30, 1970, Respondent Em-
ployer Tompkins, through Supervisor King, solicited em-
ployees to join Respondent Union.
7. On or about December 30, Respondent Employer
Tompkins, through Supervisor King, told employees that it
would be to their advantage to sign authorization cards for
Respondent Union and took employees from their work
station into his office for the purpose of permitting a union
representative to solicit membership in Respondent Union.
8. On or about December 30, 1970, Respondent Em-
ployer Tompkins, through Supervisor King, assisted an em-
ployee in filling out an authorization card for Respondent
Union and personally signed an authorization card for the
1159
said Union in the presence of unit employees.
9. On or about December 30, 1970, Respondent Em-
ployer Tompkins, through Supervisor King, advised em-
ployees that their current collective-bargaining representa-
tive was giving them up and their only chance for represent-
ation was through Respondent Union, and said Supervisor
King distributed authorization cards for Respondent Union
to the assembled employees and solicited them to sign said
cards.
10. About the last part of December 1970, Respondent
Employer Le Dew, through Supervisor Jack Luker, brought
Respondent Union's representative into Respondent
Employer's shop and introduced him to employees and per-
mitted him to talk about the Respondent Union and solicit
authorization cards on company premises and time.
11. Since on or about September 29, 1970, and at all
times thereafter, Respondent Employers have refused and
continued to refuse to bargain collectively with Local 669
as the exclusive collective-bargaining representative of the
employees in the unit described in paragraph 8 of the con-
solidated complaint, by withdrawing recognition from Lo-
cal 669, by granting recognition to Respondent Union at a
time when Respondent Union did not represent an un-
coerced majority of employees, by agreeing to a collective-
bargaining contract with the Respondent Union, by know-
ingly permitting and allowing supervisors to participate in
negotiations as representatives of the Respondent Union
and, with respect to Respondent Employers Florida Fire
and Moore, by unilaterally discontinuing health and wel-
fare payments on behalf of their employees contrary to the.
requirement in their collective-bargaining agreement with
Local 669.
12. Since on or about September 21, 1970, 6 months
before the filing of the instant charge, and continuing to
date, Respondent Employer Moore has failed and refused
to make contributions to the health and welfare fund estab-
lished under Respondent Moore's collective-bargaining
contract with Local 669, on behalf of nonunion employees
and they have been forced and required to pay for their own
insurance although such payments were required of Re-
spondent Moore under the collective-bargaining contract
with Local 669.
13. Respondent Union, by its officers, agents, and rep-
resentatives, has restrained and coerced employees in the
exercise of their Section 7 rights by the following acts and
conduct:
a. On or about December 28, 1970, and on various
dates thereafter, Respondent Union Representative
Trawick accepted aid and assistance from Respondent
Employers in organizing their unit employees.
b. On or about December 28, 1970, and on various
dates thereafter, Respondent Union Representative
Trawick utilized supervisory personnel of the Respon-
dent Employers to solicit union authorization cards
from unit employees on behalf of the Respondent Un-
ion.
c. On or about December 31, 1970, Respondent
Union accepted exclusive recognition as the represent-
ative of unit employees of the Respondent Employers
and/or the Association, for the purposes of collective-
bargaining at a time when Respondent Union did not
1160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
represent an uncoerced majority of said employees.
d. On or about December 31, 1970, Respondent
Union selected and permitted supervisory personnel of
Respondent Employers to participate in collective-bar-
gaining negotiations as representatives of the Respon-
dent Union and on behalf of unit employees.
e. On or about December 31, 1970, Respondent
Union entered into a collective-bargaining agreement
with Respondent Employers and/or the Association, at
a time when supervisory personnel of Respondent Em-
ployers were acting as representatives of the employees
of the Respondent Union purportedly on behalf of the
employees of the Respondent Employers in the unit set
forth in paragraph 8 of the consolidated complaint.
14. By the acts described in paragraphs 10 and 11,
above, and by each of said acts, Respondent Employers
and/or the Association, did interfere with, restrain, and
coerce, and is interfering with, restraining, and, coercing its
employees in the exercise of their Section 7 rights, thereby
engaging in unfair labor practices affecting commerce with-
in the meaning of Section 8(a)(1) and 2(6) and (7) of the Act.
15. By the acts described in paragraph 11, above, and
by each of them, Respondent Employers and/or the Associ-
ation did refuse and are refusing to bargain collectively with
Local 669 as the bargaining representative of their employ-
ees, and they thereby engaged in and are engaging in unfair
labor practices affecting commerce within the meaning of
Section 8(a)(5) and 2(6) and (7) of the Act.
16. By the acts described in paragraph 12, above, Re-
spondent Employer Moore has discriminated against its
employees and did thereby engage in and is engaging in
unfair labor practices affecting commerce within the
meaning of Section 8(a)(1) and (3) and 2(6) and (7) of the
Act.
17. By the acts and conduct described in paragraph 13,
above, and by each of them, Respondent Union did engage
in and is engaging in unfair labor practices affecting com-
merce within the meaning of Section 8(b)(1)(A) and (2) and
2(6) and (7) of the Act.
18. The activities of Respondent Employers and/or the
Association and the Respondent Union, described above,
have a close, intimate, and substantial relation to trade,
traffic, and commerce among the several States and tend to
lead to labor disputes burdening and obstructing commerce
and the free flow of commerce and constitute unfair labor
practices affecting commerce within the meaning of Sec-
tion 8(a)(1), (2), (3), and (5), and 8(b)(1)(A) and (2); and
Section 2(6) and (7) of the Act.
THE REMEDY
In order to effectuate the policies of the Act, I find it
necessary that the Respondent Employers, Association, and
Union be ordered to cease and desist from the unfair labor
practices found and from any other invasions of the rights
of employees under Section 7 of the Act, and to take certain
affirmative action. In order to restore the status quo, it is
clear that an order should be issued rescinding the District
50 contract of December 31, 1970, in its entirety and or-
dering that the Respondent Employers should meet and
bargain with Local 669 upon request.
To the extent that Respondent Employers Florida Fire
and Moore Pipe unlawfully discontinued payments to the
health and welfare fund of Local 669 on behalf of unit
employees after January 1, 1969, it is necessary to require
payment of all monies due and owing since January 1971
to the fund and, moreover, that such payments continue
until the obligation is changed or deleted as a result of
future bargaining with Local 669. In addition, inasmuch as
the evidence shows that Moore Pipe failed completely to
make any payments to the fund with respect to its nonunion
employees, who were required to make their own payments,
it is necessary that Moore Pipe be ordered to reimburse
these nonunion employees (or former employees) for all
money they paid into the fund during the 10(b) period, that
discriminatory action should be discontinued, and that pay-
ment into the fund on behalf of all of its employees should
be continued for the future until such obligation ceases as
a result of collective bargaining with Local 669. In view of
the fact that employees were deprived of the use of such
funds as they were required to pay into the fund, I consider
it proper to require that in addition to being reimbursed for
the outlays they should further be paid interest at 6 percent.
[Recommended Order omitted from publication.]