Gardner Engineering

National Labor Relations Board - Board Decisions

Feb 28, 1994

313 N.L.R.B. 755 (N.L.R.B. 1994)

755
313 NLRB No. 130
GARDNER ENGINEERING
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
We further correct the following factual errors by the judge, which
do not affect his decision. Four union members rather than five start-
ed work at Gardner Mechanical Services on May 22, 1989; the fifth
employee began about a week later. The judge made reference to the
first day of hearing on the earlier unfair labor practice case, Case
32–CA–10406, as involving testimony concerning the coverage of
the collective-bargaining agreement between the Union and Gardner
Engineering, Inc. There was no testimony to that effect at the first
day of hearing in that case which was held in October 1989, and
the judge is apparently referring to testimony developed in the sup-
plemental proceedings in that prior case which took place in May
1991. The judge mischaracterized the settlement agreement in the
earlier case as precluding the Union from filing any action involving
contributions for the period May 19, 1989, through May 1, 1990; the
correct dates are May 19, 1989, through October 31 of the same
year. He further found that Respondent Gardner Engineering, Inc.
agreed to reimburse the union funds for claims by five named union
members; however, it appears that one named employee specifically
waived his right to such benefit payments.
We find it unnecessary to pass on the judge’s finding that Re-
spondent Gardner Mechnical Services is a disguised continuation of
Respondent Gardner Engineering, Inc. We agree that the Respond-
ents constitute a single employer. See, e.g., Canterbury Educational
Services, 308 NLRB 506, 509–510 (1992), and Hydrolines, Inc., 305
NLRB 416, 417–419 (1991).
Gardner Engineering, Inc. & Gardner Mechanical
Services, Inc. and Local 350, United Associa-
tion of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the
United States & Canada, AFL–CIO, CLC and
Robert Adair. Cases 32–CA–11472 and 32–CA–
11561
February 28, 1994
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND TRUESDALE
On March 23, 1993, Administrative Law Judge
George Christensen issued the attached decision. The
General Counsel and Charging Party Local 350 filed
exceptions, supporting briefs, and answering briefs.
The Respondent filed cross-exceptions, a supporting
brief, and a reply brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and briefs and has decided to affirm the judge’s rul-
ings, findings,1 and conclusions and to adopt the rec-
ommended Order as modified and set forth in full
below.
1. The judge dismissed the complaint allegation that
the Respondent violated Section 8(a)(1) when its
owner, James Gardner, interrogated employee Robert
Adair before the election and specifically requested
Adair to make annotations to a list of eligible employ-
ees to indicate how Adair thought each employee
would vote. The judge concluded that the interrogation
was not unlawful because Gardner’s request was ‘‘un-
accompanied by any intimidation, threat or promise’’
and was an isolated incident. We disagree.
The judge found that approximately a week and a
half before the election, during the course of a con-
versation between Gardner and Adair, Gardner noted
to Adair that he had been allowing Adair to take a
truck home at night and that Gardner had made certain
state payments on the truck on Adair’s behalf. Gardner
stated that he hoped Adair would keep this in mind
when he voted in the upcoming election. He then
handed Adair a list of employees with headings of
‘‘yes,’’ ‘‘no,’’ and ‘‘comments’’ after each name and
asked Adair to make entries indicating how Adair
thought each listed employee would vote and to return
the document to Gardner. Adair accepted the document
but later decided it was improper to fill it out and dis-
carded it.
The judge analyzed this case under Rossmore
House, 269 NLRB 1176 (1984), enfd. sub nom. Hotel
& Restaurant Employees Local 11 v. NLRB, 760 F.2d
1006 (9th Cir. 1985). In that case the Board employed
a ‘‘totality of circumstances’’ test to determine if an
interrogation would reasonably tend to restrain, coerce,
or interfere with employees in the exercise of their
statutory rights. Applying that test, we conclude that
Gardner’s request was unlawful.
We initially note that Gardner was the Respondent’s
owner. Further, Gardner made his request immediately
after he reminded Adair that Adair was enjoying a
benefit provided by the Respondent, with the clear im-
plication that the benefit might be withdrawn depend-
ing on how Adair voted in the election. Thus, contrary
to the judge’s characterization, Gardner’s request was
accompanied by intimidation and an implicit threat of
loss of benefit. Additionally, unlike Rossmore House,
there is no evidence in the record that Adair was an
open and active union supporter at the time of the in-
terrogation, although he was a union member. Finally,
the information Gardner sought from Adair was not
limited to Adair himself, but additionally sought to
find out how Adair believed the other unit employees
would vote as well. It is well established that such
questioning of an employee regarding the union senti-
ments of others is unlawful. Accordingly, we conclude
that, under all the circumstances, the questioning of
Adair constituted an unlawful interrogation in violation
of Section 8(a)(1). See, e.g., Cumberland Farms, 307
NLRB 1479 (1992), and Liquitane Corp., 298 NLRB
292, 293 (1990).
2. The judge concluded that the Respondent did not
violate Section 8(a)(5) by withdrawing recognition
from the Union and subsequently unilaterally changing
756 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 We note, however, that, contrary to the judge’s statement, it is
well established that the Board will not set aside a Board election
due to preelection unfair labor practices in the absence of the filing
of a timely and meritorious election objection. Irving Air Chute Co.,
149 NLRB 627 (1964). Moreover, the cases cited by the judge did
not support his statement. This misstatement regarding Board prece-
dent does not affect our analysis of the judge’s decision.
3 In agreeing with the judge’s analysis, we disavow reliance on his
statement that the irrebuttable presumption of majority support for
the duration of a contract term undoubtedly prompted Respondent
Gardner Engineering, Inc. to settle the prior unfair labor practice
case.
4 At one point in his decision, the judge stated that the prior agree-
ment was limited in its application to employees dispatched from the
Union’s hiring hall. Contrary to the judge’s statement, there is no
evidence to that effect. As the judge also noted, however, there is
some evidence, discussed above, that Respondent Gardner Engineer-
ing, Inc. restricted the application of the terms of its contracts to
union members.
5 Cf. Arthur Sarnow Candy Co., 306 NLRB 213, 215–216 (1992).
In that case, the Board adopted the finding that an agreement was
applied to members only and therefore the presumption of continu-
ing majority status could not be applied. There, however, unlike
here, the facts established that although the Union did not agree with
the employer’s practice the Union should have known about it.
certain terms and conditions of employment. In so
doing, the judge found that there was no continued
presumption of majority support for the Union at the
time of the withdrawal of recognition. We disagree.
Initially, we agree with the judge’s rejection of the
Respondent’s argument that the parties’ agreement set-
tling the prior unfair labor practice charge and the sub-
sequent non-Board election conducted pursuant to that
settlement agreement privileged its conduct. We thus
agree with the judge’s determination that the Respond-
ent’s postsettlement, preelection conduct precludes any
reliance on the election results as proof that a majority
of unit employees did not desire union representation
at the time of the election.2 In this regard, we rely on
the judge’s finding that the Respondent violated Sec-
tion 8(a)(1) through the statements made by Gardner at
his employee meeting the day before the election as
well as our additional finding that the Respondent vio-
lated Section 8(a)(1) by Gardner’s interrogation of em-
ployee Adair, discussed above. However, we disagree
with the judge’s further determination that there was
no continued presumption of majority support for the
Union among unit employees at the time of the with-
drawal of recognition.
The judge noted that a union enjoys an irrebuttable
presumption of majority support within an appropriate
unit for the duration of a collective-bargaining agree-
ment when an employer has recognized the union as
the exclusive representative of unit employees.3 The
judge also stated that a union enjoys a continuing pre-
sumption of majority support following the expiration
of an agreement unless it is affirmatively demonstrated
in a context free of serious unfair labor practices that
a majority of employees do not desire representation.
In finding that the Union here could not be presumed
to have continued majority support, the judge relied on
what he considered to be the ‘‘tacit recognition’’ by all
the parties and the judge in the earlier unfair labor
practice proceeding that the 1988–1990 collective-bar-
gaining agreement between the Union and Respondent
Gardner Engineering, Inc. was applied to union mem-
bers only.4 He further relied on his finding that the
limitations on the agreement essentially were perpet-
uated in the settlement agreement covering the earlier
unfair labor practice charge. Finally, the judge noted
the absence of any evidence of support for the Union
among any unit employees beyond the Union’s mem-
bers and, accordingly, concluded that the presumption
of continuing majority support was untenable.
Contrary to the judge, we conclude that there is in-
sufficient evidence to establish that the prior collec-
tive-bargaining agreement was a ‘‘members only’’
agreement that would not carry with it a presumption
of majority support. We note that the language of the
collective-bargaining agreement was not thus limited:
on its face it applied to all employees performing bar-
gaining unit work. Indeed, no party in this or the prior
proceeding argued that the collective-bargaining agree-
ment applied only to union members. In this regard,
the judge in this case cited to the supplemental deci-
sion of a different judge in the prior unfair labor prac-
tice case to support his conclusion that the collective-
bargaining agreement was limited to union members.
We point out, however, that the Board in an unpub-
lished decision of November 6, 1991, adopting the
supplemental decision in the prior case, specifically de-
clined to adopt the judge’s ‘‘apparent conclusion’’ that
nonunion employees performing unit work were not
covered by the parties’ collective-bargaining agreement
because it was neither alleged nor litigated. Thus, in
light of the Board’s decision in the prior matter, we
find that the supplemental decision in that case pro-
vides no support for the judge’s conclusion in the in-
stant case. Additionally, although, as the judge here
notes, there is some acknowledgment in the instant
proceeding that the parties’ prior agreement was not
applied uniformly to all unit employees, this falls far
short of a sufficient basis to conclude that the agree-
ment was in fact limited to union members only. We
thus decline to make such a determination, especially
in light of the judge’s finding that there is no evidence
that the Union knew of or acquiesced in the manner
in which the Respondent applied the collective-bar-
gaining agreement before the events at issue.5
With respect to the settlement agreement, it is clear
from the supplemental decision in the prior unfair
labor practice proceeding that the Union was aware
that there were employees doing unit work other than
the members named in certain provisions of the settle-
ment agreement at the time it entered into that agree-
757GARDNER ENGINEERING
6 Undisputed testimony in the record indicates that after the Re-
spondent withdrew recognition it instituted a new 401(k) plan and
wage increases, granted eligibility for its profit-sharing plan to em-
ployees formerly covered under a union plan, stopped payments to
union trust funds, and made changes to employees’ vacation pay and
insurance coverage.
ment. However, we disagree with the judge’s finding
that the coverage of the settlement agreement itself
was limited to members only. In this regard, as was
true with the prior collective-bargaining agreement, the
terms of the settlement agreement extended recognition
to the Union in a unit of all those performing bargain-
ing unit work. Especially in light of the fact that the
Union knew at the time it was entering into the settle-
ment agreement that there were nonunion members
performing such work, we do not conclude that the
Union acquiesced to more limited recognition when it
agreed to the broadly worded settlement. To the con-
trary, the fact that the Respondent entered into the
broadly worded settlement after it had informed the
Union that it had nonunion employees performing unit
work suggests the Respondent was acquiescing to a
broader recognition of the Union than it may have pre-
viously adhered to in practice. Further, we note that al-
though some backpay terms of the settlement are re-
stricted to the named union members, the grievance
procedure set forth in appendix A is not so limited.
We conclude, therefore, contrary to the judge, that
through the settlement agreement the parties intended
that the Respondent voluntarily recognize the Union as
the exclusive bargaining representative of all unit em-
ployees.
In sum, it has not been established that either the
parties’ prior collective-bargaining agreement or the
settlement agreement was applicable to members only
and that therefore the normal presumptions of majority
support would not apply. Thus, in light of the fact that
the Respondent presented no evidence to rebut the
Union’s continuing presumption of majority status
apart from the results of the non-Board election, which
we decline to rely on for the reasons stated above and
in the judge’s decision, we find that the Union was the
majority representative of the employees in the unit
when the Respondent withdrew recognition and insti-
tuted new or changed rates of pay, wages, hours, and
working conditions.6 We accordingly conclude, con-
trary to the judge, that the Respondent violated Section
8(a)(5) of the Act by these actions.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, Gardner Engineering, Inc. & Gardner Me-
chanical Services, Inc., Reno, Nevada, constituting a
single-integrated business enterprise and employer, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Promising employees new and/or increased rates
of pay, wages, and working conditions to induce their
refraining from or ceasing to support representation by
Local 350, United Association of Journeymen and Ap-
prentices of the Plumbing and Pipefitting Industry of
the United States & Canada, AFL–CIO, CLC or any
other labor organization.
(b) Threatening employees with loss of benefits if
they secure representation by Local 350 or any other
labor organization.
(c) Promulgating a rule restricting employee discus-
sions during working hours solely with respect to dis-
cussions of the pros and cons of representation by
Local 350.
(d) Threatening employees with discharge for dis-
cussing union representation.
(e) Coercively interrogating employees about other
employees’ union support.
(f) Discharging employees for engaging in union
and/or other concerted activities protected by the Act.
(g) Withdrawing recognition from and refusing to
bargain collectively in good faith with Local 350 as
the exclusive collective-bargaining representative of a
unit of employees classified as service technicians, ex-
cluding all other employees, guards, and supervisors as
defined in the Act, and instituting new or changed
rates of pay, wages, hours, and working conditions
without bargaining.
(h) In any like or related manner interfering with,
coercing, or restraining employees in the exercise of
their rights under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the purposes of the Act.
(a) Offer Robert Adair immediate and full reinstate-
ment to his former position or, if that position no
longer exists, to a substantially equivalent position,
without prejudice to his seniority and other rights and
privileges, and make him whole for any losses in
wages and benefits occasioned by the discrimination
against him, in the manner set forth in the remedy sec-
tion of the judge’s decision.
(b) Remove from the files any reference to the un-
lawful discharge and notify Adair, in writing, this has
been accomplished and the discharge will not be used
against him in any way.
(c) Recognize and bargain, on request, in good faith
with Local 350 as the exclusive collective-bargaining
representative of employees in the above-described
unit.
(d) On request, rescind any unilateral changes in
rates of pay, wages, hours, or working conditions.
(e) Make whole the unit employees for losses, if
any, of earnings and other benefits suffered as a result
758 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
of unlawful implementation of unilateral changes, and
reimburse them for any medical expenses as set forth
in Kraft Plumbing & Heating, 252 NLRB 891 fn. 2
(1980), with interest in the manner prescribed in New
Horizons for the Retarded, 283 NLRB 1173 (1987),
and make contributions on their behalf to union trust
funds, with any additional amounts thereon to be com-
puted in accordance with Merryweather Optical Co.,
240 NLRB 1213 (1979).
(f) Preserve and, on 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
records necessary to analyze the amount of backpay
due under the terms of this Order.
(g) Post at its facilities in Reno, Nevada, copies of
the attached notice marked ‘‘Appendix.’’7 Copies of
the notice, on forms provided by the Regional Director
for Region 32, upon receipt shall immediately be
signed and posted by Respondent’s authorized rep-
resentative and maintained for 60 consecutive days in
conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps
shall be taken to ensure the notices are not altered, de-
faced, or covered by any other material.
(h) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT promise you new and/or improved
rates of pay, wages, hours, and conditions of employ-
ment to induce you to refrain from or cease seeking
and securing representation by Local 350, United As-
sociation of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United States
& Canada, AFL–CIO, CLC or any other labor organi-
zation.
WE WILL NOT threaten you with loss of benefits if
you seek and secure representation by Local 350, or
any other labor organization.
WE WILL NOT single out and restrict your discuss-
ing, during working hours, only the pros and cons of
representation by Local 350, or any other labor organi-
zation.
WE WILL NOT threaten to discipline you, including
discharging you, for discussing representation by Local
350, or any other labor organization.
WE WILL NOT coercively interrogate employees
about other employees’ union support.
WE WILL NOT discharge or otherwise discipline you
for engaging in union or other concerted activities pro-
tected by the Act.
WE WILL NOT withdraw recognition from and refuse
to bargain collectively in good faith with Local 350 as
the exclusive collective-bargaining representative of a
unit of employees classified as service technicians, ex-
cluding all other employees, guards, and supervisors as
defined in the Act, or institute new or changed rates
of pay, wages, hours, and working conditions without
bargaining.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL offer Robert Adair immediate and full re-
instatement to his former position or, if that position
no longer exists, to a substantially equivalent position,
with all seniority and other rights and privileges, and
WE WILL make Adair whole for any losses in wages
and benefits he suffered by virtue of our unlawful dis-
crimination against him, with interest on the sum or
sums due, and WE WILL remove from our files any ref-
erence to his unlawful discharge and advise him in
writing this has been done.
WE WILL recognize and bargain, on request, in good
faith with Local 350 as the exclusive bargaining rep-
resentative in the above-described unit.
WE WILL, on request, rescind any unilateral changes
in rates of pay, wages, hours, or working conditions.
WE WILL make whole our unit employees for losses,
if any, of earnings and other benefits suffered as a re-
sult of our unlawful implementation of unilateral
changes, and reimburse them for any medical ex-
penses, plus interest, and make contributions on their
behalf to the union trust funds.
GARDNER ENGINEERING, INC. & GARD-
NER MECHANICAL SERVICES, INC.
759GARDNER ENGINEERING
Gary M. Connaughton, Esq., for the General Counsel.
David G. Miller, Esq. (Breon, O’Donnell, Miller, Brown &
Dannis), of Palos Verdes, California, for the Respondent.
John J. Davis, Esq. (McCarthy, Johnson & Miller), of San
Francisco, California, for the Union.
DECISION
STATEMENT OF THE CASE
GEORGE CHRISTENSEN, Administrative Law Judge. On
March 3 and 4, 1992, I conducted a hearing at Sparks, Ne-
vada, to try issues raised by a consolidated complaint issued
on January 18 and amended on February 14, 1991, based on
a charge filed by Local 350 in Case 32–CA–11472 on Octo-
ber 24 and amended on November 1, 1990, in Case 32–CA–
11472 and a charge filed by Adair on December 12, 1990,
in Case 32–CA–11561.
The complaint alleged and the answer denied that Gardner
Engineering, Inc. (GEI) & Gardner Mechanical Services, Inc.
(GMS), at all pertinent times, constituted a single-integrated
business enterprise and employer within the meaning of the
Act.
The complaint further alleged and the answer denied that
prior to May 1, 1990, GEI was a member of the Nevada As-
sociation of Mechanical Contractors, Inc. (Association) and
authorized the Association to bargain with Local 350 on its
behalf concerning the wages, hours, and working conditions
of GEI’s service employees; that the bargaining unit de-
scribed in a l988–l990 collective-bargaining agreement be-
tween the Association and Local 350 was appropriate for col-
lective-bargaining purposes; that the agreement covered the
wages, hours, and working conditions of GEI’s service em-
ployees, an appropriate unit, and that by virtue of that and
previous agreements Local 350 was the exclusive representa-
tive of GEI’s service employees within that unit through the
May 1, 1990 expiration of the 1988–1990 agreement.
The complaint next alleged and the answer denied in May
1989 GEI moved its service operations and employees from
its GEI facility in Reno to a newly established facility in
Reno, continued the same service operations formerly per-
formed at the GEI facility with the same service employees,
equipment, tools, etc., those employees utilized at the GEI
Reno facility, and thereafter treated the service employees at
the new facility as new, unrepresented employees of GMS.
The complaint also alleged and the answer denied in Octo-
ber 1989 GEI and Local 350, with the approval of the Gen-
eral Counsel, negotiated a non-Board settlement of issues
raised by a complaint issued in Case 32–CA–10406 based on
Local 350 charges the above-described change violated the
Act which included, inter alia, GEI’s agreement to resume
recognition of Local 350 as the exclusive collective-bargain-
ing representative of the service employees at the GMS Reno
facility until a representation election to be held on or about
May 1, 1990, and that since the May 1, 1990 election Local
350 has continued to be the exclusive collective-bargaining
representative of the service employees employed at the
GMS Reno facility.
The complaint then alleged and the answer thereto denied
the alleged single enterprise and employer violated Section
8(a)(1), (3), and (5) of the Act (the Act) by:
l. Prior to the election, asking a service employee to poll
other service employees about how they were going to vote
in the election scheduled to take place on or about May 1,
1990, pursuant to the October 1989 settlement in Case 32–
CA–10604.
2. Prior to the election, promising the service employees
a 50-cent-an-hour increase to discourage their voting for
Local 350 representation.
3. Subsequent to the election, withdrawing recognition of
Local 350 as the collective-bargaining representative of any
of the service employees after a majority of the service em-
ployees voted against Local 350 representation.
4. Subsequent to the election, changing the service em-
ployees’ rates of pay, wages, hours, and conditions of em-
ployment following the election and/or instituting new rates
of pay, wages, hours, and conditions of employment, without
prior notice to or bargaining with Local 350 over the
changes.
5. Subsequent to the election, promulgating a rule solely
barring employee discussion of the pros and cons of Local
350 representation when the service employees evidenced a
renewed interest in such representation.
6. Subsequent to the election, threatening service employ-
ees with reductions in benefits if they secured Local 350 rep-
resentation.
7. Subsequent to the election, discharging service em-
ployee Adair because of his union and/or protected concerted
activities.
In his posthearing brief, the General Counsel moved to
amend the complaint by adding an additional alleged viola-
tion of Section 8(a)(1) of the Act, to wit, by an admitted su-
pervisor’s telling an employee the owner of GEI and GMS,
James Gardner, wanted to discharge a service employee for
discussing Local 350 representation with other service em-
ployees subsequent to the election. Counsel for the alleged
single enterprise and employer opposed the amendment on
the grounds the proposed amendment was untimely and any
issues created by the amendment were not fully litigated.
Counsel for the alleged single enterprise and employer
moved to strike a portion of the General Counsel’s
posthearing brief on the ground the brief misrepresented the
settlement which led to the election.
The issues created by the foregoing are whether, at perti-
nent times, GEI and GMS constituted a single business enter-
prise and employer; GEI authorized the Association to bar-
gain with Local 350 over the wages, hours, and working con-
ditions of its service employees and to execute a collective-
bargaining agreement covering those terms on its behalf; the
unit described in the 1988–1990 (and prior agreements) con-
stituted a unit appropriate for collective-bargaining purposes
within the meaning of the Act; Local 350 was a duly des-
ignated exclusive collective-bargaining representative of the
unit described in the 1988–1990 agreement through its expi-
ration; the alleged single enterprise and employer shifted its
service operations and employees in Reno from the GEI fa-
cility to the GMS facility and continued the same service op-
erations at the GMS facility which were performed at the
GEI facility; following the May 1, 1990 expiration of the
1988–1990 agreement, a unit consisting of all service me-
chanics and service technicians, excluding all other employ-
ees, guards and supervisors as defined in the Act, was appro-
priate for collective-bargaining purposes within the meaning
of the Act; after May 1, 1990, Local 350 was the duly des-
ignated exclusive collective-bargaining representative of em-
760 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 While every apparent or nonapparent conflict in the evidence has
not been specifically resolved below, my findings are based on my
examination of the entire record, my observation of the witnesses’
demeanor while testifying, and my evaluation of the reliability of
their testimony; therefore, any testimony in the record which is in-
consistent with my findings is discredited.
2 Sec. 102.20, Rules and Regulations of the National Labor Rela-
tions Board.
3 Sec. 102.20, Rules and Regulations of the National Labor Rela-
tions Board.
ployees within the unit just described; the alleged single en-
terprise and employer committed the acts alleged as unfair
labor practices and thereby violated the Act; the General
Counsel’s motion to amend the complaint should be granted
and,if so, whether the alleged single enterprise and employer
violated the Act by the conduct alleged in the complaint
amendment; and whether portions of the General Counsel’s
posthearing brief should be stricken.
The General Counsel, Local 350, and the alleged single
enterprise and employer appeared by counsel and were af-
forded full opportunity to adduce evidence, examine and
cross-examine witnesses, argue, and file briefs. All three
filed briefs.
Based on my review of the entire record, observation of
the witnesses, perusal of the briefs, and research, I enter the
following
FINDINGS OF FACT1
I. JURISDICTION
The complaint alleged and the answer admitted at all perti-
nent times GEI was an employer engaged in commerce in a
business affecting commerce within the meaning of Section
2 of the Act. The complaint also alleged at all pertinent
times GMS was an employer engaged in commerce in a
business affecting commerce and the answer to the complaint
neither admitted nor denied that allegation. Such failure con-
stitutes an admission. 2
I therefore find at all pertinent times GEI and GMS were
employers engaged in commerce in a business affecting com-
merce within the meaning of Section 2 of the Act.
II. LABOR ORGANIZATION
The complaint alleged Local 350 was a labor organization
within the meaning of Section 2 of the Act. The answer nei-
ther admitted nor denied the complaint allegation and con-
stitutes an admission.3
I therefore find at all pertinent times Local 350 was a
labor organization within the meaning of Section 2 of the
Act.
III. THE MOTIONS TO STRIKE AND AMEND
A. The Motion to Strike
Counsel for the alleged single enterprise and employer
moved to strike portions of the General Counsel’s brief set-
ting forth terms of an October 1989 agreement between
Local 350 and GEI, approved by Administrative Law Judge
Clifford Anderson, and the Board settling issues raised by a
complaint issued against GEI in Case 32–CA–10406.
Counsel for the alleged single enterprise and employer ar-
gues the description of the terms of the settlement agreement
contained in the General Counsel’s brief misstates and mis-
represents terms of the settlement agreement by indenting the
description of terms of the agreement and including in the
indented description terms which were not contained in the
formal settlement agreement executed by the parties.
The settlement agreement was not confined to terms set
out in the formal document executed by the parties; the doc-
ument was orally amended on the record at a hearing con-
ducted by Judge Clifford Anderson in Case 32–CA–10406
when the formal document was presented by the parties for
his approval on the second day of the hearing. Judge Ander-
son approved the terms of the settlement agreement as
amended by the parties, on the record, at the hearing, and the
General Counsel’s brief accurately sets forth terms of the
amended agreement.
The fact the General Counsel indented terms of the settle-
ment agreement when he described them in his brief is im-
material; such indentation was neither a ‘‘misstatement’’ nor
a ‘‘misrepresentation.’’ I thus deny the motion.
B. The Motion to Amend
In his posthearing brief, the General Counsel moved to
amend the complaint by adding an allegation that the alleged
single enterprise and employer violated Section 8(a)(1) of the
Act by an alleged October 1990 statement uttered by admit-
ted Supervisor Bruce Wright to an employee to the effect
Owner James Gardner wanted to discharge service employee
Don Scilacci for discussing Local 350 representation with
other employees. The General Counsel alleges the statement
was an implied threat to discharge employees for discussing
union representation and a violation of Section 8(a)(1) of the
Act.
Counsel for the alleged single enterprise and employer
contends that because the proposed amendment was not con-
tained in the complaint he was deprived of an adequate op-
portunity to prepare and present defenses and unable to fully
and fairly litigate the issue or issues raised. Counsel further
argues the amendment is barred under the 6-month limitation
period of Section 10(b) of the Act.
The complaint alleged the alleged single enterprise and
employer violated Section 8(a)(1) of the Act by, admitted,
Supervisor Wright’s telling service employee Adair, in the
course of a conversation between Wright and Adair on or
about October 2, 1990, GMS would not be able to guarantee
anyone work in the winter when work was slow and would
not reimburse employees for the cost of job-related schooling
if Local 350 were to again represent any of the service em-
ployees.
These two alleged independent violations of Section
8(a)(1) of the Act stemmed from the Region’s investigation
of Adair’s December 12, 1990 charge in Case 32–CA–11561
that the alleged single enterprise and employer violated Sec-
tion 8(a)(1) and (3) of the Act by discharging him on Octo-
ber 5, 1990, for engaging in activities on behalf of Local 350
and other concerted activities protected by the Act and Local
350’s October 24, 1990 charge in Case 32–CA–11472.
Adair testified in October 1990, prior to his October 5,
1990 discharge, in the course of a conversation with Wright,
Wright stated: (1) GMS would not be able to guaranteed
anyone work in the winter when work was slow if they were
represented by Local 350; (2) GMS would not reimburse em-
ployees for school tuition if they were represented by Local
761GARDNER ENGINEERING
4 NLRB v. Fant Milling Co., 360 U.S. 301, 307 (1959).
5 The fact the General Counsel’s motion to amend was contained
in his posthearing brief is immaterial. Heartland of Lansing Nursing
Home, 307 NLRB 152 (1992).
6 Facet Enterprises v. NLRB, 907 F.2d (10th Cir. 1990); Northern
Wire Corp. v. NLRB, 887 F.2d 1313 (7th Cir. 1989), enfg. 291
NLRB 727 (1988); NLRB v. Coca Cola Bottling Co. of Buffalo, 811
F.2d 82 (2d Cir. 1987), enfg. 274 NLRB 1341 (1985); Rockwell
International Corp. v. NLRB, 814 F.2d 1530 (6th Cir. 1987), enfg.
278 NLRB 55 (1986); NLRB v. Allen’s IGA Foodliner, 651 F.2d 438
(6th Cir. 1981), enfg. 244 NLRB 202 (1979); Pentre Electric, 305
NLRB 882 fn. 1, 883 (1992); and Westinghouse Electric Corp., 296
NLRB 1166 (1989). Also see Embassy Suites Resort, 309 NLRB
1313 (1992).
7 I find and conclude at all pertinent times Gardner was an officer,
supervisor, and agent of GEI and GMS acting on their behalf within
the meaning of Sec. 2 of the Act.
350; and (3) James Gardner wanted to discharge Don
Scilacci for discussing Local 350 representation with other
employees and he had to talk him out of doing so. Counsel
for the alleged single enterprise and employer called Wright
to the stand in rebuttal and Wright testified he did not recall
discussing statements (1) and (2) and that he did not utter
statement (3).
Neither the Adair nor the Local 350 charges listed the
statements (1) and (2) set out in above and set forth in the
complaint as alleged violations of the Act. Those complaint
allegations were based on statements made to the Region in
the course of the Region’s investigation of the merits of the
charges.
The General Counsel has broad latitude in including with-
in a complaint allegation of unfair labor practices disclosed
during such an investigation.4
The charges which prompted the investigation were timely
filed (i.e., within 6 months after the date Wright allegedly ut-
tered the two statements set out in the complaint) and the
third statement allegedly uttered by Wright was allegedly ut-
tered during the same conversation in which he uttered the
two statements set out in the complaint and forms the basis
for the proposed complaint amendment.
The alleged single enterprise and employer was fully
aware prior to the hearing of the Wright comments allegedly
uttered during the early October 1990 conversation between
Wright and Adair, which formed the basis for the General
Counsel’s complaint allegation that the alleged single enter-
prise and employer violated Section 8(a)(1) of the Act, and
that those alleged comments formed part of the basis for the
General Counsel’s complaint allegation that the alleged sin-
gle enterprise and employer was discriminatorily motivated
in effecting Adair’s October 5, 1990 discharge.
The alleged content of the Wright/Adair October 1990
conversation was fully developed by the General Counsel
and counsel for the alleged single enterprise and employer
during the hearing.
Counsel for the alleged enterprise made no objection to the
inclusion of the Wright statements described in statements
(1) and (2) above as alleged unfair labor practices in the
complaint.
The third alleged Wright statement is closely related to the
complaint allegations described in statements (1) and (2)
above.
The issues raised by the proposed amendment were fully
and fairly litigated and the alleged single enterprise and em-
ployer suffers no prejudice by my grant of the proposed
amendment and ruling on its merits.5
I therefore grant the General Counsel’s motion to include
the third alleged Wright statement in his early October l990
conversation with Adair as an additional complaint allega-
tion.6
IV. THE SINGLE ENTERPRISE/EMPLOYER; ASSOCIATION
MEMBERSHIP AND AUTHORITY; APPROPRIATE UNIT
UNDER THE TERMS OF THE SERVICE AGREEMENTS;
ALLEGED DISGUISED CONTINUATION AS NONUNION; AND
APPROPRIATE UNIT AFTER MAY 1, 1990 ISSUES
At relevant times James Gardner owned all the shares of
Gardner Holding, Inc. (GHI) and GHI owned all the shares
of GEI and GMS. Thus Gardner owned and controlled GHI,
GEI, and GMS. His ownership and control was not passive;
he actively engaged in manag1ng the three corporations, in-
cluding the labor relations of GEI and GMS.7
Prior to May 1989, GEI employed construction employees
and service employees who worked out of a single Reno fa-
cility in conducting its business of installing and servicing
heating, air conditioning, and piping systems in the Reno,
Nevada area. GEI, at that time was a member of the Nevada
Association of Mechanical Contractors, Inc. (Association),
authorized the Association to negotiate and enter into collec-
tive-bargaining agreements with Local 350 on its behalf and
was bound by two collective-bargaining agreements nego-
tiated on its behalf by the Association with Local 350, one
agreement covered the wages, hours, and working conditions
of its employees engaged in construction, and a second
agreement, called the Service, Maintenance and Refrigeration
Agreement (the Service Agreement), covered its service em-
ployees.
The last Service Agreement between the Association and
Local 350 was executed in 1988 for a term extending from
May 2, 1988, through May 1, 1990. In section 3 of article
I of that agreement (and preceding Service Agreements),
Local 350 was formally recognized as the exclusive collec-
tive-bargaining representative of all employees engaged in
the fabrication, assembly, installation, dismantling, repairing,
adjusting, altering, servicing, handling, distribution, and tying
in of all piping materials, appurtenances, and equipment of
all heating and refrigeration systems and their components;
including hangars, supports, and controls, who were em-
ployed by the employer-members of the Association.
The Service Agreement specified workweeks, what con-
stituted overtime and the pay, holidays and pay for working
on those holidays or during time outside the specified work-
week, shift premiums, rates of pay for servicemen and ap-
prentices, and contributions per working hour of each cov-
ered employees to vacation, health and welfare, apprentice-
ship and training, local retirement, national pension, and con-
tract administration funds or trusts. The agreement also re-
quired the registration of all apprentices with Local 350, es-
tablished ratios of apprentices to servicemen, established a
grievance/arbitration procedure, and required each employer
covered by the agreement to utilize Local 350’s hiring hall
for hiring purposes.
Despite the terms of the 1988–1990 and previous Service
Agreements, the alleged single enterprise and employer lim-
ited its application of the terms of the Service Agreements
762 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 I find that at all pertinent times Wright was a supervisor and
agent of GEI and GMS acting on their behalf within the meaning
of Sec. 2 of the Act.
9 Prior to that time, GMS operated a service facility in Las Vegas,
Nevada.
10 The complaint in Case 32–CA–10406 described the unit as:
All full-time and regular part-time employees performing work
described in ‘‘Section 3’’ of the May 2, 1988 through May 1,
1990 master collective bargaining agreement between the Union
and the Association (the work described in Section 3 of Article
I of the agreement is set forth above), excluding all other em-
ployees, guards and supervisors as described in the Act.
to journeyman servicemen who were dispatched from Local
350’s hiring hall at its request. The rates of pay, wages,
hours, and working conditions of apprentices hired ‘‘off the
street’’ and servicemen either hired ‘‘off the street’’ or pro-
moted to that position from apprentice positions were unilat-
erally established by the alleged single enterprise and em-
ployer. As a result, in May 1989 a majority of the service-
men and apprentices GEI employed at its Reno facility were
not members of Local 350, GEI was not recognizing Local
350 as their collective-bargaining representative, and their
rates of pay, wages, hours, and working conditions were not
governed by the terms of the 1988–1990 Service Agreement.
The record does not disclose whether Local 350 was aware
of and acquiesced to that noncoverage prior to the negotia-
tion and execution of the October 1989 settlement agreement
in Case 32–CA–10406, but Judge Anderson specifically ruled
in a supplemental decision he issued in that case that Local
350 was aware of noncoverage at the time it entered into the
settlement.
On Friday, May 19, 1989, Bruce Wright, then the general
manager of the service department at GEI,8 advised the serv-
ice employees GEI was going to cease its service operations
at the Reno facility from which it conducted its construction
and service operations and was (beginning the next workday,
May 22, 1989) going to conduct its service operations sepa-
rately at another Reno facility under the GMS name.9
Wright offered employment at the GMS Reno facility to
all the currently employed GEI service employees, but an-
nounced the service operations at the GMS facility were
going to be nonunion and conditioned employment at the
GMS Reno facility on execution by each service employee
of an application for employment by GMS and acceptance of
employment as a new, unrepresented employee.
Wright advised the journeyman servicemen who were
members of Local 350 and whose wages, etc., were governed
by the 1988–1990 and prior Service Agreements they had
two options; either to execute applications for employment at
the GMS Reno facility as new employees on an unrepre-
sented basis, at the rates of pay, wages, hours, and working
conditions of the other, currently unrepresented, GEI service
employees or the option of reporting to the Local 350 hiring
hall for registration and dispatch to employers whose em-
ployees were covered by the 1988–1990 Service Agreement.
Several servicemen, who were Local 350 members, want-
ed continued coverage under a Local 350 agreement (particu-
larly continued participation in the trusts established under
the Association-Local 350 agreements) elected the latter op-
tion. Five Local 350 members selected the former option.
Those five, and the servicemen and apprentices who were
not members of Local 350, filled out applications for em-
ployment as new employees of GMS and commenced work
at GMS’ Reno facility the following workday, May 22, 1989,
performing the same work with the same tools, equipment,
supplies, and vehicles they utilized at the GEI facility, under
the same supervision they had while working out of the GEI
facility, and performing work for the same customers or class
of customers.
Immediately following the shift, Gardner appointed Wright
president and general manager of GMS and GEI ceased ap-
plying the terms of the Service Agreement with respect to
the five GEI servicemen who accepted employment at the
GMS-owned facility. Thereafter uniform rates of pay, wages,
hours, and conditions of employment were instituted for all
service employees, which differed substantially from those
set out in the 1988–1990 Service Agreement.
Local 350 promptly filed charges with the Region in Case
32–CA–10406, a complaint issued alleging the GMS Reno
operation was a disguised continuance of the GEI service de-
partment, and a hearing on the issues raised by the complaint
commenced before Judge Clifford Anderson on October 18,
1989. In negotiations on the second day of the hearing before
Judge Anderson, after hearing evidence the first day of the
hearing concerning the members-only coverage of the 1988–
1990 Service Agreement, Local 350 and GEI agreed, with
the concurrence of the General Counsel, on terms of settle-
ment limited in its remedial reach to the five Local 350
members who accepted employment on May 19, 1989, at the
GMS Reno facility. Judge Anderson recommended approval
of the agreement and the Board adopted his recommendation.
The settlement agreement provided:
1. GEI agreed to recognize Local 350 as the exclu-
sive collective bargaining representative of ‘‘all em-
ployees in the service unit alleged in the complaint.’’
for the duration of the 1988–1990 Service Agreement
(i.e., to May 1, 1990).10
2. GEI agreed to pay $12,000 to the trust funds es-
tablished under the Service Agreement, as full and
complete settlement of claims alleged in the complaint
issued in Case 32–CA–10406 with respect to a1leged
delinquencies in GEI payments into the trusts on behalf
of the five Local 350 members who accepted employ-
ment at the GMS Reno facility on May 19, 1989. The
payment was designated as intended to cover payments
to the funds on behalf of the five which should have
been tendered to the funds by GEI between May 19,
1989 and November 1, 1989.
3. GEI agreed to pay the amounts set out in the
Service Agreement to the various funds on behalf of the
five Local 350 members who accepted employment at
the GMS Reno facility commencing November 1, 1989
and continuing through the expiration date of the Serv-
ice Agreement (May 1, 1990).
4. GEI agreed to make contributions on behalf of
any employees hired as ‘‘Service Mechanics‘‘ or
‘‘Service Technicians’’ on and after November 1, 1989
to the funds established under the Service Agreement
for the balance of the term of that Agreement.
5. Local 350 and GEI agreed that on or about May
1, 1990 Local 350 and GEI would select a neutral party
to conduct a secret ballot election among employees at
the GMS Reno facility classified as Service Mechanics
763GARDNER ENGINEERING
11 Blackberry Creek Trucking, 291 NLRB 474 (1988), cases cited
therein; also see Colonial Metal Spinning & Stamping Co., 310
NLRB 21 (1992).
and/or Service Technicians to determine whether a ma-
jority of the employees in those classifications desired
representation by Local 350, agreeing in the event a
majority voted for Local 350 representation, GEI would
commence negotiations with Local 350 concerning
terms of a successor to the Service Agreement expiring
May 1, 1990 and, in the event a majority voted against
Local 350 representation, Local 350 would not demand
negotiations for a successor agreement.
6. Local 350 agreed to withdraw its charges in Case
32–CA–10406 and further agreed Local 350 would not
file any court actions seeking contributions to the trusts
established under the 1988–1990 Service Agreement for
the period between May 19, 1989, and the expiration
date of the 1988–1990 Service Agreement.
7. GEI agreed to reimburse any trust fund which de-
termined the $12,000 payment did not fully resolve any
delinquency in the payments due to such fund to cover
the May 19—November 1, 1989 period with respect to
any of the five Local 350 members who accepted em-
ployment at the GMS facility on May 19, 1989, to a
limit of $800 for any one claimant and a maximum
total outlay of $3,200.
Prior to the expiration of the 1988–1990 Service Agree-
ment, GEI terminated the authority of the Association to rep-
resent GEI for collective-bargaining purposes vis-a-vis serv-
ice employees and terminated the 1988–1990 Service Agree-
ment as of May 1, 1990, pursuant to the terms of the 1988–
1990 Agreement’s duration clause. Both terminations were
timely and valid.
On or about May 1, 1990, Local 350 and GEI authorized
Justice of the Peace William Beemer to conduct a secret-bal-
lot election at the GMS Reno facility on May 4, 1990.
By that time, only three of the five Local 350 members
who elected to accept employment at the GMS facility on
May 19, 1989, were still employed at the GMS Reno facility.
Gardner furnished Beemer with a list of the names of the
employees eligible to vote in the election. He listed the
names of 11 employees 5 classified as ‘‘HVAC Service
Technician Journeyman’’; 1 classified as ‘‘HVAC Service
Technician Journeyman B’’; 1 classified as ‘‘HVAC Controls
Specialist’’; 1 classified as ‘‘HVAC Service Technician In-
staller’’; and 3 classified as ‘‘HVAC Service Technician Ap-
prentice.’’
All 11 cast ballots; 2 voted for Local 350 representation
and 9 voted against Local 350 representation.
On these facts, I find and conclude:
1. At times pertinent, GEI and GMS constituted a single
business enterprise and employer within the meaning of the
Act.11
2. A unit consisting of the GEI/GMS employees perform-
ing the work described in section 3 of article I of the 1988–
1990 Association-Local 350 agreement was and is an appro-
priate unit for collective-bargaining purposes within the
meaning of the Act.
3. Prior to May 2, 1988, the Association was authorized
by GEI to negotiate and execute on its behalf collective-bar-
gaining agreements with Local 350 covering the rates of pay,
wages, hours, and working conditions of GEI’s employees
within the unit.
4. Pursuant to that authority, the Association negotiated
and executed collective-bargaining agreements with Local
350 covering the rates of pay, wages, hours, and working
conditions of GEI’s employees within the unit, including an
agreement for a term extending from May 2, 1988, through
May 1, 1990.
5. Under terms of that and prior agreements, Local 350
was recognized by GEI as the exclusive collective-bargaining
representative of GEI employees within the unit.
6. Despite the terms of the 1988–1990 and prior Service
Agreements, GEI applied the terms of those agreements only
to journeyman servicemen/Local 350 members referred to
GEI from Local 350’s hiring hall at GEI’s request.
7. On July 19, 1989, GEI engaged in a disguised continu-
ation of its service operations in Reno by shifting those oper-
ations to another facility in Reno ostensibly operated by
GMS, continued those operations on a nonunion basis, and
ceased to honor the terms of the 1988–1990 Service Agree-
ment with respect to the journeyman servicemen/Local 350
members who accepted employment at the GMS Reno facil-
ity.
8. On October 19, 1989, GEI and Local 350 settled the
issues raised by a complaint issued on the basis of charges
filed by Local 350 over that disguised continuation by nego-
tiating a settlement agreement in which GEI agreed to restore
the status quo ante, i.e., compliance with the 1988–1990
Service Agreement for the balance of its term only with re-
spect to the five journeyman servicemen/ Local 350 members
who accepted employment at the GMS Reno facility on May
19, 1990.
9. The unit set forth in the settlement agreement and in
the complaint as an appropriate unit of service employees at
the GMS Reno facility after May 1, 1990, i.e., a unit consist-
ing of employees classified as service technicians, excluding
all other employees, guards, and supervisors as defined in the
Act was and is appropriate for collective-bargaining purposes
within the meaning of the Act (I consider the ‘‘Controls Spe-
cialist’’ as a ‘‘Service Technician,’’ since the job title indi-
cates he specializes in servicing heating and cooling controls,
a component of the service functions of a service technician).
V. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Alleged Mid-April 1990 Poll
The complaint alleged and the answer thereto denied in
mid-April 1990, James Gardner violated Section 8(a)(1) of
the Act by instructing an employee eligible to vote in the
election to poll the other employees eligible to vote in the
election regarding their expected vote in the election.
In addition to denying Gardner committed the alleged vio-
lation, GEI/GMS contends the complaint allegation is time-
barred under Section 10(b) of the Act.
In April 1990, in the course of a conversation between
Gardner and Adair, a local 350 member employed at the
GMS Reno facility as a journeyman serviceman, Gardner
stated he had been allowing Adair to take one of the trucks
the servicemen used in their work home at night and was
paying for California registration of the truck (Adair lived in
Truckee, California, and commuted between his California
764 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 Rossmore House, 269 NLRB 1176 (1984), affd. 760 F.2d 1006
(9th Cir. 1985).
13 Gardner was informed of the terms of the Local 350-Association
Agreement by a Local 350 representative, who cautioned him, in
view of the scheduled election, not to attempt to influence the elec-
tion outcome by initiating changes in the wages of the service em-
ployees at the GMS Reno facility.
14 The plan by its terms was limited to employees who were not
represented by a labor organization and covered by a collective-bar-
gaining agreement.
15 The plan was placed in effect on July 1, 1990.
16 Gardner had been informed by an employee or employees that
Local 350 had been telling service employees he would reduce their
benefits if they voted against Local 350 representation.
17 Gardner stated he promised the employees a 50-cent-an-hour in-
crease rather than a 40-cent-an-hour increase to equal in value the
staggered increase negotiated by Local 350.
home and Nevada work assignments in the truck in ques-
tion). Gardner next said he hoped Adair would keep that in
mind when he voted in the forthcoming election. He then
handed Adair a document listing the names of employees eli-
gible to vote in the election with columns headed ‘‘yes,’’
‘‘no’’ and ‘‘comments’’ after the names, and asked Adair to
make entries in the columns indicating how Adair thought
each listed employee would vote in the election and return
the document to him. Adair accepted the document but later
decided it was improper for him to fill in the columns and
return the document to Gardner, discarded the document and
heard nothing further from Gardner with respect to the re-
quest.
Adair stated the conversation occurred approximately a
week and a half prior to the May 4, 1990 election, i.e., on
or about April 24, 1990. The Local 350 charge precipitating
the Regional investigation which resulted in this complaint
allegation was filed on October 24, 1990, exactly 6 months
subsequent to the former date.
I credit Adair’s testimony with respect to the date of the
conversation and, based thereon, find and conclude the com-
plaint allegation was not untimely and warrants consideration
and determination on its merits.
The General Counsel contends Adair correctly construed
the Gardner request as a request he poll the other employees,
list their voting intentions on the document, and return it (as
well as listing his own intention). Alternatively, the General
Counsel argues the Gardner request constituted an unlawful
interrogation of Adair concerning his and other employees’
voting intentions.
In Rossmore House,12 the Board ruled questioning an em-
ployee concerning his and other employees’ views about
union representation is not violative of the Act, absent in-
timidation, threats, or promises.
Gardner’s request was unaccompanied by any intimidation,
threat, or promise. It was a single, isolated incident, and
Adair never responded with the requested information.
Under these circumstances, I find and conclude GEI/GMS
did not violate the Act by Gardner’s mid-April request.
B. The Alleged May 3, 1990 Violation
The complaint alleged and GEI/GMS conceded on May 3,
1990, the day before the scheduled election, Gardner prom-
ised the servicemen and apprentices employed at the GMS
Reno facility increased wages after the election, regardless of
the outcome of the election.
The complaint alleged and GEI/GMS denied the Gardner
promise violated Section 8(a)(1) of the Act.
Shortly before the election, Gardner learned Local 350 and
the Association agreed, in negotiating a successor to the
Service Agreement expiring May 1, 1990, to a two-step wage
increase for employees covered by the agreement, i.e., a 40-
cent-an-hour wage increase effective May 1, 1990, and a 20-
cent-an-hour increase 6 months later.13
Gardner summoned the servicemen and apprentices em-
ployed at the GMS Reno facility, as well as GMS President
Wright and Service Manager Teresa Doane, to a meeting on
May 3, 1990, the day prior to the election.
At that meeting, Gardner described a profit-sharing plan
the employees would participate in if a majority voted
against continued Local 350 representation;14 stated he was
looking into the creation and implementation of a 401K plan
covering the employees;15 advised the employees that Local
350 negotiated a 40-cent-an-hour increase for employees
covered by the Service Agreement effective May 1, 1990,
and stated he was going to grant the employees a 50-cent-
an-hour increase after the election, regardless of its outcome.
He also stated he was going to continue a training program
and continue to reimburse employees for the cost of their
job-related schooling.16
Gardner did not tell the employees Local 350 negotiated
a 20-cent-an-hour increase for employees covered by the
Service Agreement, effective November 1, 1990, in addition
to the May 1, 1990 increase of 40 cents per hour.17
GEI/GMS contends Gardner’s announcement of his in-
tended new and/or increased wages and benefits confirmed
changes previously planned and conformed with past policy
and practice and thus did not violate the Act.
I reject that contention.
First, after announcing Local 350 had secured a 40-cent-
an-hour increase for employees represented by Local 350 and
covered by the Service Agreement supplanting the agreement
which expired May 1, 1990, Gardner promised the employ-
ees a wage increase 10 cents per hour higher than that, with-
out mentioning the second-step increase; second, there is no
evidence he called employees to previous meetings to make
announcements and promises of new and/or increased wages
and benefits of the magnitude of those announced and prom-
ised at the May 3, 1990 meeting; third, the rates of pay,
wages, and fringe benefits of the service employees at the
GMS facility who were not members of Local 350 after May
19, 1989, differed from and were unrelated to the rates of
pay, wages, and fringe benefits set out in the Service Agree-
ment expiring May 1, 1990, and the record fails to disclose
any correlation between the rates of pay they would receive
as a result of the 50-cent-an-hour increase and the rates of
pay of the servicemen and apprentices covered by the agree-
ment Local 350 negotiated as the successor to the Service
Agreement which expired May 1, 1990; and fourth, the tim-
ing of Gardner’s statements and promises support a conclu-
sion, which I make, the statements and promises were de-
signed and intended to discourage employee support of Local
350 in the election the next day.
The Board has consistently held employer promises of
new or changed wage rates, benefits, and conditions of em-
ployment which increase and/or improve prior wage rates,
765GARDNER ENGINEERING
18 NLRB v. S. E. Nichols, Inc., 862 F.2d 952 (2d Cir. 1988), affg.
284 NLRB 556 (1987); Pincus Elevator, 308 NLRB 684 (1992);
Borden, Inc., 308 NLRB 113 (1992); J & C Towing Co., 307 NLRB
198 (1992); Stanford Realty Associates, 306 NLRB 214 (1992);
Browning-Ferris Industries, 306 NLRB 682 (1992); Coronet Foods,
305 NLRB 119 (1991); Sears, Roebuck & Co., 305 NLRB 193
(1991); Bi-Lo, 303 NLRB 749 (1992); CPF Corp., 303 NLRB 316
(1991); Ring Can, 303 NLRB 353 (1991); Chosun Daily News, 303
NLRB 901 (1991); La Favorita, 302 NLRB 849 (1991); Fun Con-
nection, 302 NLRB 740 (1991); and Fontaine Body, 302 NLRB 863
(1991).
19 E & L Plastics Corp., 305 NLRB 1119 (1992); Alaska Pulp,
300 NLRB 232 (1990).
benefits, and conditions immediately prior to an election in-
tended to determine whether employees desire union rep-
resentation are violative of the Act,18 particularly where, as
here, an employer advises the employees one of the new
benefits will be available only to nonrepresented employ-
ees.19
The Board reasoned the timing and nature of such induce-
ments constitutes unlawful discouragement of employee sup-
port for union representation, in violation of Section 8(a)(1)
of the Act.
On the basis of the foregoing, I find and conclude by
Gardner’s promises and statements 1 day prior to the May
4, 1990 election, GEI/GMS violated Section 8(a)(1) of the
Act.
C. The May 4 and 5, 1990 Recognition Withdrawal and
Unilateral Changes
The complaint alleged GEI/GMS ceased to recognize
Local 350 as the exclusive representative of service employ-
ees at the GMS Reno facility after receiving the results of
the May 4, 1990 election, at all times thereafter GEI/GMS
failed and refused to recognize Local 350 as their representa-
tive, and on and after May 5, 1990, made changes in the
rates of pay, wages, hours, and working conditions of those
employees without prior notice to or bargaining with Local
350, thereby violating Section 8(a)(1) and (5) of the Act.
GEI/GMS concedes it took those actions but contends it
did not thereby violate the Act on the ground that the Octo-
ber 19, 1989 settlement contemplated GEI/GMS’ withdraw-
ing recognition of Local 350 as the collective-bargaining rep-
resentative of the employees in question and bargaining with
Local 350 with respect to their rates of pay, etc., following
the May 4, 1990 vote against Local 350 representation.
Noting Loca1 350 did not file its charge that GEI/GMS
violated the Act by withdrawing recognition and effecting
unilateral changes until October 24, 1990, over 5 months
after its commission of the alleged unfair labor practices, and
further noting under the Board’s Rules and Regulations gov-
erning Board-conducted representation elections, objections
to conduct allegedly affecting an election must be filed with-
in 5 days after the election, GEI/GMS also argues it would
be inequitable to set aside and treat of no force and effect
the May 4, 1990 election results on the basis of alleged un-
lawful employer interference in the eligible voters’ exercise
of a free and uncoerced choice, in the absence of election
objections filed within 5 days after the election.
The latter contention is rejected.
The election was a non-Board election; Local 350 could
not file and the Region could not entertain objections de-
signed to set it aside. It was also established Local 350 was
unaware of Gardner’s May 3, 1990 statements until October
1990 and time1y filed its charge Gardner’s preelection prom-
ises and statements violated Section 8(a)(1) of the Act when
it learned of the statements in question.
The Board has set aside and treated of no force and effect
Board-conducted elections a union has lost, despite the
union’s failure to file objections thereto, when the Board
found merit in a subsequent union charge the employer’s
preelection conduct violated the Act and prevented a fair and
free election (Nichols, supra). In numerous cases, the Board
set aside Board-conducted elections when, in unfair labor
practice proceedings based on postelection charges filed by
the union, the Board found merit in a charge the employer
prevented a free and fair election by its preelection conduct
(Bi-Lo Foods, Ring Can, Chosun, and La Favorita, supra,
plus numerous earlier cases).
Turning next to the contention the parties contemplated
GEI/GMS’ withdrawing recognition from Local 350 if Local
350 lost the May 1990 election by virtue of the 1989 settle-
ment and thus GEI/GMS was lawfully entitled to withdraw
such recognition and effect unilateral changes in wages, etc.
after Local 350 lost the May 4, 1990 election, GEI/GMS
cites Hollywood Roosevelt Hotel, 235 NLRB 1398 (1978), as
authority therefor.
That case turned on a Board-finding that the charging
union and the Board’s Regional personnel were aware of and
considered the employer’s preelection conduct which formed
the basis for the union’s postelection charge as disposed of
under the terms of the settlement agreement.
That is not the case here; the settlement in this case was
reached in 1989, while the GEI/GMS preelection conduct
which formed the basis for Local 350’s 1990 charge occurred
in 1990. The Hollywood Roosevelt Hotel decision is inap-
plicable.
I thus find and conclude the October 1989 settlement does
not bar the determination on its merits of the complaint alle-
gation GEI/GMS violated the Act by withdrawing recogni-
tion of Local 350 and failing to notify and bargain with
Local 350 prior to instituting new or changed rates of pay,
wages, hours, and working conditions.
The basic issues are: (1) whether the results of the May
4, l990 election should be disregarded and treated as having
no force and effect because of GEI/GMS’ violation of Sec-
tion 8(a)(1) of the Act—making promises and statement 1
day prior to the May 4, 1990 election to influence the voters
in that election and (2) if so, whether GEI/GMS violated
Section 8(a)(1) and (5) of the Act by its failure and refusal
to recognize and bargain with Local 350 after the expiration
of the 1988–1990 Service Agreement.
An employer has a duty and obligation under the Act to
recognize a union as the exclusive collective-bargaining rep-
resentative of an appropriate unit of employees and to bar-
gain with the union over the rates of pay, wages, hours, and
working conditions of the unit employees when the union
represents a majority of the employees within the unit.
The Board, with court approval, irrebuttably presumes a
union represents a majority of the employees within an ap-
propriate unit for the duration of an agreement wherein an
employer recognized the union as the exclusive collective-
bargaining representative of the unit employees (or for 1 year
after the union has been certified by the Board as the major-
766 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
20 St. Agnes Medical Center, 304 NLRB 27 (1991).
21 Kuna Meat Co. v. NLRB, 966 F.2d 428 (8th Cir. 1992); Xidex
Corp. v. NLRB, 924 F.2d 245 (D.C. Cir. 1991); NLRB v. Powell
Electric, 906 F.2d 1007 (5th Cir. 1990); NLRB v. Tahoe Nuggett,
584 F.2d 293 (9th Cir. 1978); NLRB v. Vegas Vic, 546 F.2d 77 (9th
Cir., 1976); Terrell Machine Co. v. NLRB, 427 F.2d 1088 (4th Cir.
1970); Lee Lumber & Building Material, 306 NLRB 408 (1992);
Ron Tirapelli Ford, 304 NLRB 576 (1992); St. Agnes Medical Cen-
ter, supra; Davies Medical Center, 303 NLRB 195 (1992); and Cy-
press Lawn Cemetery Assn., 300 NLRB 609 (1991).
22 Participants in the trust plan earned credits which extended cov-
erage thereunder for some time after employer contributions on their
behalf ceased.
23 Adair was a leadman, had been in the service of GEI/GMS
longer than the other employees, and was often looked to for guid-
ance.
ity representative) and required the employer to recognize the
union as the exclusive collective-bargaining representative of
the unit employees and bargain with the union over their
wages, etc., for the term of the agreement or the certification
year.
Following the expiration of the agreement or the certifi-
cation year, the Board presumes the union continues to rep-
resent a majority of the unit employees unless, following
agreement expiration, it is demonstrated a majority of the
unit employees do not desire representation by the union,
provided the employer has not committed unfair labor prac-
tices ‘‘sufficiently serious to significally undercut employee
support for the union and thus cast doubt on the validity of
the election results’’ (where a representation election was
held among the unit employees following the expiration of
the agreement).20
Where employer unfair labor practices satisfy the above
criteria, the Board invalidates a majority vote against union
representation (as well as production of a petition signed by
a majority stating the employees do not desire union rep-
resentation) and, applying the latter presumption set out
above, finds the employer violated the Act by withdrawing
or withholding recognition from the union and instituting
new or changed rates of pay, wages, hours and working con-
ditions on the basis of the election results or his receipt of
such a petition.21
In this case there is no evidence concerning the actual ex-
tent of Local 350 support among the unit employees before
May 19, 1989, and there is evidence it was unlikely on that
date Local 350 support extended beyond a minority of the
unit employees—the journeyman servicemen/Local 350
members—when Gardner, on that date, shifted his service
operations from the GEI Reno facility to the GMS Reno fa-
cility.
The irrebuttable presumption noted above undoubtedly
prompted GEI’s October 1989 agreement to settle Local
350’s charges in Case 32–CA–10406 by resuming technical
recognition of Local 350 as the exclusive representative of
the employee classifications described in the 1988–1990
Service Agreement’s recognition clause, but in actuality,
under the terms of the October 1989 settlement agreement,
as in the application of the terms of the 1988–1990 Service
Agreement from its inception, the Service Agreement was
only app1ied to the five journeyman servicemen/Local 350
members who accepted employment at the GMS Reno facil-
ity on May 19, 1989, i.e., it continued to be administered as
a members-only contract.
In view of Local 350’s, the General Counsel’s, Judge An-
derson’s, and the Board’s tacit recognition of the foregoing,
I find and conclude a presumption of continuing Local 350
support among the unit employees after May 1, 1990, is un-
tenable; the only presumption which may be entertained after
May 4, 1990, is a presumption the three Local 350 members
were Local 350 supporters.
I therefore find and conclude, while GEI/GMS’ May 3,
l990 conduct prevents any reliance on the May 4, 1990 elec-
tion results as proof a majority of the unit employees did not
desire Local 350 representation at that time, in view of that
tacit recognition and the absence of evidence Local 350 had
any support among the unit employees beyond its members
employed at the GMS Reno facility after May 1, 1990, there
is insufficient basis in the record to support a finding and
conclusion GEI/GMS violated the Act by ceasing after May
1, 1990, to recognize Local 350 as the exclusive representa-
tive of a majority of the service employees at the GMS Reno
facility and instituting new or changed rates of pay, wages,
hours, or working conditions.
I thus find and conclude GEI/GMS did not violate the Act
by ceasing to recognize Local 350 as the representative of
the unit employees and by instituting new or changed rates
of pay, wages, hours, and working conditions.
D. The Alleged Postelection Threats and Alleged
Discriminatory No-Solicitation Rule
Following the May 4, 1990 election Gardner, as he prom-
ised on May 3, distributed to all the unit employees docu-
ments describing the profit-sharing plan and 401(k) plans he
planned to institute.
The employees learned from those documents they would
not be eligible for any distributions from the profit-sharing
plan until they had worked at the GMS Reno facility for 1
year and would not be able to make withdrawals from their
401(k) plans until they had worked at the facility for 6 years.
The Local 350 members who accepted employment at the
GMS Reno facility also learned they would not be placed
under the Employer’s health plan until they exhausted cov-
erage under the trust established for that purpose pursuant to
the 1988–1990 Service Agreement.22
The employees discussed these limitations and their dis-
satisfaction over the Employer’s failure to credit the time
they worked at the GEI Reno facility towards the date they
would be eligible for profit sharing and the date they could
begin to make withdrawals from their 401(k) plans. The
Local 350 members also discussed their dissatisfaction over
the employer’s failure to cover them under the employer
health plan immediately after the expiration of the 1988–
1990 Service Agreement. Adair participated in the discus-
sions and stated he would discuss the employees’ concerns
and complaints with Gardner.23
Adair contacted Gardner, informed Gardner the employees
thought the failure to credit GEI service towards entitlements
under the profit sharing and withdrawals from the 401(k)
plans, as well as the failure to cover the Local 350 members
with the emp1oyer health plan after May 1, 1990, was unfair.
Gardner responded he wanted to encourage long service
among the employees by the 401(k) plan provision, he did
not want to pay for double coverage for health insurance,
767GARDNER ENGINEERING
24 Adair informed Wright before the meeting he had been to Local
350’s office and Local 350 was contemplating seeking a new elec-
tion.
25 Dougherty Lumber, 299 NLRB 295 (1990); Monfort of Colo-
rado, 298 NLRB 73 (1990); Avecor, 296 NLRB 727 (1989); and
Springfield Jewish Nursing Home, 292 NLRB 1266 (1989).
26 Willamette Industries, 306 NLRB 1010 (1992); Emergency One,
Inc., 306 NLRB 800 (1992); Columbus Mills, 303 NLRB 223
(1991); Fontaine Body, 302 NLRB 863 (1991); and Premier Mainte-
nance, 282 NLRB l0 (1986).
27 NLRB v. Turner Tool, 670 F.2d 637 (5th Cir. 1982), enfd. 256
NLRB 595 (1981); Princeton Health Care Center, 285 NLRB 1016
(1987); and Cave Springs Theater, 287 NLRB 4 (1987).
since he had paid into the trust fund on behalf of the Local
350 members while he was complying with the Service
Agreement, and that it was his company and he would do
as he pleased with respect to profit sharing.
Adair relayed Gardner’s responses to other employees and
they began to discuss the possibility of another election on
the question of whether they desired Local 350 representa-
tion.
The foregoing discussions continued through the summer
and early fall of 1990.
Wright became aware of the discussions and, in a con-
versation with Adair the morning of October 2, 1990, in-
formed Adair he had to fight to keep Scilacci’s job, Gardner
wanted to fire Scilacci (like Adair, a Local 350 member) for
discussing Local 350 representation with other employees
and he had to talk Gardner out of doing so.
Later the same day, Wright conducted a meeting of the
service employees at the GMS Reno facility. Wright stated
he was tired of hearing through the grapevine the employees
were discussing a new election24 and complaining about the
401(k) and profit-sharing plans; the employees should bring
such matters to him; Adair could not resolve his problems
through another employee and other employees could not re-
solve their problems through Adair. Wright stated if Local
350 came in the Company would have to go by union rules,
it could not reimburse employees for job-related school ex-
penses (as it was doing), or guarantee the employees a 40-
hour workweek during the slow winter season. He stated he
did not care if they voted for or against union representation,
but he wanted them to discuss union versus nonunion issues
on their own time, their working time belonged to the cus-
tomers.
There was no evidence the employees were restricted in
their discussion of any subjects other the pros and cons of
union representation while working.
Threat of benefit losses in the event employees secure
union representation violate Section 8(a)(1) of the Act, since
they discourage employee exercise of free choice,25 as are
restrictions on employee discussions during working hours
limited to restrictions on discussions concerning the pros and
cons of union representation during working hours, but other-
wise unlimited.26
I therefore find and conclude GEI/GMS violated Section
8(a)(1) of the Act by the threats of benefit losses and restric-
tion of employee discussion, detailed above.
The Board also holds threats to discharge employees for
discussing union representation violate Section 8(a)(1) of the
Act.27
I therefore find and conclude Wright’s statement to Adair
that Gardner wanted to discharge Scilacci for such discussion
also violated Section 8(a)(1) of the Act.
E. The Adair Discharge
The complaint alleged and the answer thereto denied
GEI/GMS violated Section 8(a)(1) and (3) of the Act by dis-
charging Adair on October 5, 1990, and thereafter failing and
refusing to reinstate him to his former position for engaging
in union or other protected concerted activities.
Adair, a Local 350 member, was hired by GEI as a jour-
neyman serviceman in 1980 and, with two breaks in employ-
ment (in 1984 and 1987), remained in the emp1oy of GEI
at the GEI Reno facility and the GMS Reno facility from
1987 until his October 5, 1990 discharge.
I have recounted above Adair’s participation in employee
discussions of the dating of their employment at the GMS
Reno facility as the beginning date for the unit employees’
eligibility for profit sharing and the beginning date when
they could make withdrawals from the 401(k) plan and the
policy of not covering Local 350 members employed at the
GMS Reno facility under the company health plan until they
exhausted their accumulated credits in the Local 350-Asso-
ciation health plan. I have also described the dissatisfaction
Adair and other unit employees voiced during those discus-
sions over those requirements and policies and Adair’s, in a
customary practice, in accordance with his status as a senior
employee and leadman, bringing those matters to Gardner’s
attention with the obvious hope Gardner would change the
policies governing the profit-sharing and 401(k) plans to
credit total unit employee service at the GEI Reno facility to-
wards meeting the time requirements for receipt of profit
sharing and withdrawal from the 401(k) plans, as well as ear-
lier coverage of the Local 350 members under the company
health plan and consequent retention of reserve credits built
up by those members in the Association-Local 350 health
plan. I have also detailed Gardner’s responses to Adair’s ef-
forts to secure modifications in the various plans and Adair’s
communication of Gardner’s views to other unit employees.
Adair noted the October 1989 settlement required GEI to
pay not more than $800 per individual and not more than
$3,200 total, in addition to a lump sum of $12,000, to cover
credits on behalf of the five Local 350 members who accept-
ed employment at the GMS Reno facility on May 19, 1989,
for a period extending from May 19 through November 1,
1989, in the event the $12,000 was insufficient to cover their
credits over the period in question. He mentioned this to
Gardner and stated, in view of the fact Gardner was utilizing
his credits earned by past services under the Association-
Local 350 plan to defer his coverage under the company
health plan, he should receive $800 as compensation for
those lost credits. Gardner rejected the suggestion, stating
that agreement only required he reimburse the Association-
Local 350 trust for contribution shortfalls during the May-
October 1989 period. Adair nevertheless adhered to his posi-
tion and, as Gardner described it, ‘‘bugged’’ him about the
alleged money due to him under the settlement terms in
question.
Adair continued to discuss the company policies and posi-
tions just described with other employees after communicat-
ing Gardner’s failure or refusal to make any adjustments
therein, culminating in Wright’s admonitions to the service
768 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
employees on October 2, 1990, described above and Gard-
ner’s discharging Adair, 2 days later, based on recommenda-
tions therefor by both GMS President Wright and Service
Manager Doane.
All three—Gardner, Wright, and Doane—conceded the lat-
ter two recommended and the former effected the discharge
in substantial measure because Adair’s influence among the
unit employees and discussions with other employees con-
cerning the alleged unfairness of the company policies and
practices just described was perceived as a cause for em-
ployee dissatisfaction with the Company and its policies and
practices; i.e., because he was ‘‘stirring up the troops.’’
GEI/GMS does not seriously contest Adair was discharged
to remove from GEI/GMS’ employ the strongest advocate
and supporter of his and other employees’ views the policies
and practices described above were unfair and warranted re-
vision, but argues Adair was only speaking on his own be-
half and therefore not engaged in concerted activities pro-
tected by the Act.
In the lead case defining what constitutes concerted activi-
ties protected by the Act, the Board stated in Meyers Indus-
tries, 268 NLRB 493, 497 (1984):
[T]o find an employee’s activity to be ‘‘concerted,’’ we
shall require that it be engaged in with or on the au-
thority of other employees, and not solely by and on
behalf of the employee himself. Once the activity is
found to be concerted, an 8(a)(1) violation will be
found if, in addition, the employer knew of the con-
certed nature of the employee’s activity, the concerted
activity was protected by the Act, and the adverse em-
ployment action (e.g., discharge) was motivated by the
employee’s protected activity.
Applying that test, the Board held an employer violated
the Act by discharging an employee for bringing employee
complaints about the timing of a sales training session to the
attention of management (Henry Colder Co., 292 NLRB 941
(1989)); similarly, where an employer discharged an em-
ployee for complaining to the employer and coworkers over
the employer’s new lunch policy (Salisbury Hotel, 283
NLRB 685 (1987)); similarly, where an employer discharged
an employee for discussing wage rates with other employees
(U.S. Furniture, 293 NLRB 159 (1989)); and where the con-
cern expressed by an employee to a management representa-
tive was also expressed by other employees (Mike Yurosek
& Sons, 306 NLRB 1037 (1992)).
Adair’s discussions with other employees and with man-
agement concerned his and other employees’ complaints re-
garding elements of their wages and conditions of employ-
ment; management was fully aware of his activities; such
discussions clearly fall within the definition of concerted ac-
tivities; and GEI/GMS was motivated by his engagement in
those activities in deciding to, and effecting, his discharge.
I therefore find and conclude GEI/GMS violated Section
8(a)(1) of the Act by discharging Adair.
I a1so find GEI/GMS violated Section 8(a)(3) of the Act
by discharging Adair, as Gardner was motivated in part by
Adair’s persistent claim GEI was violating terms of the set-
tlement agreement between GEI and Local 350 by failing
and refusing to honor his claim to additional payments on his
behalf under the reimbursement provisions recited above.
The Board has consistently ruled employee discipline for
asserting a claim arising out of an agreement between a
union representing the employee and his employer violates
Section 8(a)(3) of the Act (NLRB v. City Disposal Systems,
465 U.S. 822 (1984)), even if the agreement interpretation
the employee relies on in asserting his claim is mistaken
(Interboro Contractors, 157 NLRB 1295 (1966), enfd. 388
F.2d 495 (2d Cir. 1967)).
I find the October 1989 settlement agreement, because it
established conditions of employment of unit employees cov-
ered by the 1988–1990 Service Agreement for the balance of
the term of that agreement and was entered into on behalf
of Adair and similarly situated employees, thus, falls within
the purview of the City Disposal doctrine.
CONCLUSIONS OF LAW
1. At all pertinent times GEI and GMS were employers
engaged in commerce in business affecting commerce and
Local 350 was a labor organization within the meaning of
Section 2 of the Act.
2. At all pertinent times GEI and GMS constituted a single
business enterprise and employer within the meaning of the
Act.
3. Prior to May 2, 1988, GEI authorized the Association
to negotiate and execute on its behalf a collective-bargaining
agreement with Local 350 covering the rates of pay, wages,
hours, and working conditions of its service employees.
4. Pursuant to that authority, the Association negotiated
and executed a collective-bargaining agreement for a term
extending from May 2, l988, through May l, 1990, with
Local 350, covering the rates of pay, wages, hours, and
working conditions of GEI’s service employees (including,
inter alia, a provision in which Local 350 was recognized as
the exclusive representative of GEI’s service employees for
collective-bargaining purposes).
5. The employee unit covered by that agreement, i.e., all
service employees at the GEI Reno facility was (and is) ap-
propriate for collective-bargaining purposes within the mean-
ing of Section 9 of the Act.
6. Despite the language of the 1988–1990 agreement, GEI
treated the agreement as a members-only contract and
app1ied its terms solely to Local 350 members employed by
GEI.
7. On July 19, 1989, GEI engaged in a disguised continu-
ance of the service business it conducted at the GEI Reno
facilities by shifting that business to a new Reno location
under the ostensible ownership and operation of GMS and
continuing the same business with the same equipment, tools,
class of customers, and employees.
8. At that time (July 19, 1989), GEI ceased to honor the
terms of the 1988–1990 members-only contract.
9. On October 19, 1989, pursuant to an agreement nego-
tiated and executed by GEI and Local 350 and approved by
the General Counsel, Judge Anderson, and the Board, GEI
resumed honoring its 1988–1990 collective-bargaining agree-
ment as that agreement had been administered, i.e., as apply-
ing only to Local 350 members employed by GEI.
10. At and following the May 1, 1990 expiration of the
collective-bargaining agreement, the unit covered by that
agreement, including all service technicians and the controls
specialist, excluding all other employees, guards and super-
visors as defined in the Act, was and is an appropriate unit
769GARDNER ENGINEERING
for collective-bargaining purposes within the meaning of
Section 9 of the Act.
11. GEI/GMS violated Section 8(a)(1) of the Act.
a. By Gardner’s May 3, 1990 promising the unit employ-
ees new and increased rates of pay, wages, and/or working
conditions as an inducement to vote against Local 350 rep-
resentation scheduled for May 4, 1990.
b. By Wright’s October 2, 1990 threat of benefit losses if
the unit employees secured Local 350 representation.
c. By Wright’s October 2 restriction of unit employees’
discussions during working time by prohibiting any discus-
sion of the pros and cons of Local 350 representation.
d. By Wright’s October 2 telling an employee Gardner
wanted to discharge an employee for discussing union rep-
resentation.
12. GEI/GMS vio1ated Section 8(a)(1) and (3) of the Act
by discharging Adair on October 5, 1990, for engaging in
union and other concerted activities protected by the Act.
13. GEI/GMS did not otherwise violate the Act.
14. The unfair labor practices described above affected and
affects interstate commerce as defined in the Act.
THE REMEDY
Having found GEI/GMS engaged in unfair labor practices,
I recommend GEI/GMS be directed to cease and desist there-
from and to take affirmative actions designed to effectuate
the purposes of the Act.
Having found GEI/GMS unlawfully discharged Robert
Adair, I recommend GEI/GMS be directed to reinstate Adair
to his former position or, if that position no longer exists, to
a substantially equivalent position, without prejudice to his
seniority and other rights and privileges, and to make Adair
whole for any loss in earnings and benefits he may have suf-
fered as a result of the discrimination practiced against him,
with the pay and interest thereon he is entitled to receive
computed in the manner prescribed in F. W. Woolworth Co.,
90 NLRB 289 (1950), and New Horizons for the Retarded,
283 NLRB 1173 (1987).
[Recommended Order omitted from publication.]