Glendora Plumbing

National Labor Relations Board - Board Decisions

May 31, 1967

165 N.L.R.B. 101 (N.L.R.B. 1967)

GLENDORA PLUMBING
J. Howard Jenks , d/b/a Glendora Plumbing
and Plumbers and Steamfitters Local 398,
United Association of Journeymen and
Apprentices of the Plumbing and
Pipefitting Industry of the United States
and Canada , AFL-CIO
Joint Council of the Brotherhood of
Independent Workers, affiliated with the
National Federation of Independent Unions
(Glendora Plumbing ) and Plumbers and
Steamfitters Local 398, United Association
of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the
United States and Canada , AFL-CIO and
Glendora Plumbing Service , Party of
Interest and Party to the Contract. Case
31-CA-331 and 31-CB-91
May 31, 1967
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On November 2, 1966, Trial Examiner Eugene K.
Kennedy issued his Decision in the above-entitled
proceeding, finding that the Respondents had
engaged in and were engaging in certain unfair labor
practices and recommending that they cease
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, Respondent Employer filed exceptions
to the Trial Examiner's Decision and a supporting
brief, and the General Counsel filed limited
exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and the briefs,
and the entire record in this case and hereby adopts
the findings, conclusions, and recommendations of
the Trial Examiner, with the following additions.
We agree with the Trial Examiner that Glendora
Plumbing, herein called Glendora, and Glendora
Plumbing Service, herein called Service, constitute
a single -integrated business entity and that
employees of Glendora and Service comprise a
single unit appropriate for purposes of collective
bargaining.
For a number of years J. Howard Jenks has been
engaged in the plumbing business under the
i On February 22, 1966 , UA Business Representative Battany
told Mr. Jenks that he heard that Mr. Jenks had signed a BIW
agreement . Mr. Jenks replied that his wife had signed the
agreement Upon Battany 's accusation that this was a subterfuge,
165 NLRB No. 1
101
fictitious name of Glendora Plumbing and has had a
collective-bargaining agreement with the Charging
Party, herein referred to as the UA. The latest
agreement was entered into on July 1, 1963, and was
effective through June 30, 1966. Prior to 1964,
Glendora had a service department as well as a new
construction department. The service department,
with a normal complement of two or three
employees, engaged in servicing, repair of plumbing
and heating systems, small additions, and
remodeling jobs, but did no new construction work.
Late in 1963, the service department was largely
discontinued although it continued to perform some
service or maintenance work for some of Glendora's
general contractor customers.
In May or June 1964, a certificate of doing
business under the fictitious name of Service was
obtained by Orra Jenks, the wife of the owner of
Glendora. Around that same time, Mr. Jenks offered
a job of serviceman with Service to Glendora
employee Golden who had been performing such
work for Glendora. Golden was instructed by Mr.
Jenks to prepare a pickup truck belonging to
Glendora for use as a service truck by Service. Since
its inception, Service has used the same offices,
telephone, post office box, toolroom, storage
facilities, and entrance as did Glendora. Each had
free access to the other's equipment. Until late
February 1966, all the regular employees of Service
had been previously employed by Glendora and
there was a substantial interchange of employees of
the two. During this period, work of Service was the
same as that performed by the service department of
Glendora prior to 1964; Glendora and Service
performed work for the same customers, Glendora
warranting its work to the general contractor for a
year and Service fulfilling this warranty by
performing the necessary repairs, with Mr. Jenks
supervising both operations.
On February 18, 1966, Mr. Jenks told John
Sherwood, UA member employed by Glendora, that
he was going to try doing a job with Respondent
Union, herein known as the BIW, and see what
happened. On February 21, 1966, Service signed a
collective-bargaining agreement containing a union-
security clause with BIW.1 On that same day, Mr.
Jenks held a meeting with several of his employees
including some who were members of the UA.
During that meeting, Mr. Jenks told the employees
that he was going to assign the remainder of the
Coral 60 housing tract job to Service under the BIW
contract. (Part of the work on that tract was at that
time being performed by Glendora.) Mr. Jenks also
told the employees that the work in the service
department would go up in volume and the plumbing
department would go down. Mr. Jenks told the
employees the cost of joining the BIW and
Mr. Jenks replied , "Well, it may be a subterfuge , but it's a legal
way of getting around the current labor agreement what we had in
effect at that time."
299-352 0-70-8
102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
concluded by saying he would like them to take the
application for the BIW, which was on Mrs. Jenks'
desk in the room, to their homes, look it over, and
bring it back if they decided to fill it out. On this
same day Mr. Jenks told Glendora employee Rex
Waterman that he was thinking of going into this
new Union, that he might go under doing it, but he
was going to give it a try.
After February 21, 1966, the payroll records of
Glendora and Service showed a marked change. In
the payroll period immediately preceding
February 21, Glendora had 18 production
employees. Two weeks later Glendora had only two.
Eleven employees, all members of the UA, were laid
off by Glendora.2 As to Service, from a complement
of two full-time employees and five occasional part-
time employees in February, it expanded to a total of
seven full-time employees and two part-time
employees by May 1966. By August 1966, Service
had expanded to 19 full-time employees, including
about 14 new employees who had previously worked
neither for Glendora or Service. None of the
employees laid off by Glendora were recalled for
work with Service at this or any time.
After February 21, 1966, Glendora subcontracted
at least three new construction jobs to Service. In
addition, Service began to bid on new construction,
for which Mr. Jenks did the estimating and
supervision. Prior to that date, Service had done no
new construction work.
The foregoing demonstrates beyond any
reasonable doubt that Glendora and Service were
operated as a single-integrated business entity.
Accordingly, we reject Respondent Employer's
contention that the employees of Glendora and
Service constituted two separate bargaining units;
we also find, in view of the foregoing, that service
employees were an accretion to the control unit of
which UA was at all relevant times the exclusive
bargaining representative.3
It follows from the foregoing that Respondent
Employer was not free to negotiate a contract with
Respondent Union covering employees of Service,
and that by so doing and by transferring work from
Glendora to Service for performance under such
contract, it withdrew and withheld recognition from
the UA in violation of Section 8(a)(5); it unlawfully
assisted Respondent Union in violation of Section
8(a)(2); and it interfered with, restrained, and
coerced its employees in the exercise of their right to
Y Of the five remaining , one quit and four joined the BIW and
were put on the Service payroll.
3 The Trial Examiner found that, as of February 21, 1966, the
UA was the majority representative of such unit because 12 of 18
employees on Glendora's payroll were members of UA At that
time Service had two employees on its payroll , a circumstance
which does not affect the UA's majority status In any event, the
agreement between Respondent Employer and UA covering the
employees of Service and Glendora continued in effect until
June 30, 1966.
Since the total complement of employees of Glendora and
be represented for purposes of collective bargaining
by a representative of their own choice in violation of
Section 8(a)(1).
We also find that Respondent Employer's entire
course of conduct, particularly its selection of
members of UA for layoff, its transfer of work from
Glendora to Service, and its failure to recall the laid-
off employees to perform work for Service when
Service substantially increased its work force in July
and August, constituted discrimination in the terms
and conditions of employment of members of UA
because of such membership in violation of Section
8(a)(3) and (1) of the Act. Contrary to Respondent
Employer's contentions, neither the fact that Mr.
Jenks later requested referrals from the UA hiring
hall for employment with Glendora, nor the fact that
he informed the UA that he was willing to negotiate a
new contract on behalf of Glendora negatives the
compelling inference of discriminatory motivation
flowing from the facts set forth above. In each case it
is clear that Mr. Jenks sought to limit employment of
UA members and to limit recognition of the UA as
their bargaining representative solely to so much of
Glendora's operations as he chose to continue. Also,
at the time of these later events, Mr. Jenks had
already transferred Glendora work to Service for
performance under the BIW contract and he did not
recall the laid-off employees to perform such work
for Service or to work for Service when he
substantially increased its work force in July or
August. In all the circumstances, his later dealings
with the UA serve to confirm rather than dispel the
discriminatory motivation for the layoff of UA
members. Accordingly we adopt the Trial
Examiner's finding that Respondent Employer
violated Section 8(a)(3) in terminating the
employment of 11 UA members on February 21,
1966.4
We also find that Respondent BIW violated
Section 8(b)(2) and (1)(A) by entering into a union-
security agreement with Respondent Employer at a
time when it did not represent an uncoerced
majority of employees in the appropriate unit.
THE REMEDY
Having found that Respondent Employer and
Respondent Union executed a collective-bargaining
agreement containing a union-security provision at a
time when another union, the UA, was the statutory
Service was reduced during the month of February , we cannot
assume that work always would have been available for all the 11
employees laid off but for the fact that they were members of the
UA However, these employees were entitled to be recalled when
Service added to its payroll . As the Trial Examiner indicated, the
availability of work will have to be ascertained at the compliance
stage of this proceeding in order to determine the amount of
backpay to which these employees are entitled. The amount of
work performed by the two discnmmatees called to work by
Glendora must also be taken into account in determining their
backpay.
GLENDORA PLUMBING 103
bargaining representative of Respondent Employer's
employees, we shall order Respondents to cease
performing, enforcing, or giving effect to the
agreement dated February 21, 1966, and jointly and
severally to reimburse all employees of Glendora
and Service for moneys paid by them or deducted
from their earnings for initiation fees, dues,
assessments, or other obligations of membership in
Respondent Union.5 Moreover, in accordance with
our decision in Isis Plumbing & Heating Co., 138
NLRB 716, and Quality Coal Corporation, 139
NLRB 492, we shall include an allowance for
interest thereon to be computed in the manner set
forth in Seafarers International Union of North
America, Great Lakes District, 138 NLRB 1142. We
shall also order that Respondent Employer withdraw
and withhold recognition of the Respondent Union,
and the Respondent Union to cease acting as the
collective-bargaining agent of Respondent
Employer's employees until that labor organization
is certified as the exclusive representative of
Respondent Employer's employees. We shall further
order Respondent Union to cease and desist from
causing Respondent Employer to discriminate
against employees in violation of Section 8(a)(3) by
entering into and maintaining an agreement which
conditions employment with Respondent Employer
on membership in Respondent Union at a time when
it was not the representative of an uncoerced
majority of these employees, and order Respondent
Company to cease and desist from assisting the
Respondent Union in violation of Section 8(a)(2) by
entering into a contract with it unless and until it is
certified as the representative of its employees.
Having found that by entering into a contract with
the Respondent Union, Respondent Employer
withdrew recognition from the UA in violation of
Section 8(a)(5), we shall order Respondent
Employer, upon request, to bargain with the UA as
the statutory representative of its employees.
Having found that Respondent Employer has
discriminated against those employees who were
members of the UA in violation of Section 8(a)(3) and
has not recalled or reemployed them, and that such
discrimination has been caused by Respondent
BIW, we shall order Respondent Employer to offer
employees Robert Holmes, Wynn Kaufman, John
Sherwood, Rex Waterman, Victor Dimit, Roger
Ferguson, William Kehr, Richard Markland, Charles
Mathis, Ronald Rayfield, and Larry Samuels
immediate and full reinstatement to their former or
substantially equivalent positions and, if necessary,
discharge any replacements hired in their stead. We
shall also order Respondents jointly and severally to
reimburse these employees for loss of wages caused
by Respondent Employer's discriminatory acts. Loss
of pay shall be computed in accordance with the
formula prescribed in F.W. Woolworth Company, 90
NLRB 289, together with 6 percent interest per
annum as prescribed in Isis Plumbing and Heating
Co., supra.
Respondent Employer's unfair labor practices, as
found, strike at the heart of rights guaranteed
employees by the Act. Unless appropriately
restrained, there is reasonable ground to anticipate
that Respondent Employer, in the future, will
infringe upon other rights guaranteed to employees.
We shall, therefore, order Respondent Employer to
cease and desist from infringing in any manner upon
the rights guaranteed employees by Section 7 of the
Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that:
A. Respondent Employer, J. Howard Jenks, d/b/a
Glendora Plumbing and Orra Jenks, d/b/a Glendora
Plumbing Service,6 its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Assisting the Joint Council of the Brotherhood
of Independent Workers, affiliated with the National
Federation of Independent Unions, or any other
labor organization, and from otherwise interfering
with the representation of its employees through a
labor organization of their own choosing.
(b) Recognizing the Joint Council of the
Brotherhood of Independent Workers, affiliated
with the National Federation of Independent Unions,
or any successor thereto, as the representative of
any of its employees for dealing with them with
respect to rates of pay, wages, hours of employment,
or any other terms and conditions of employment,
unless and until such labor organization shall have
been certified by the Board as the exclusive
representative of the employees of Glendora and
Service.
(c) Performing, enforcing, or giving effect to the
collective-bargaining agreement of February 21,
1966, with Joint Council of the Brotherhood of
Independent Workers, affiliated with the National
Federation of Independent Unions, or entering into
or enforcing any extention, renewal, modification, or
supplement thereof, or any superseding collective-
bargaining agreement with said labor organization.
(d) Refusing to bargain collectively with United
Association of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United
States and Canada, as the exclusive representative
of its employees in the following unit which the
5 Kennch Petrochemicals, Inc., 149 NLRB 910, Downtown
Bakery Corp , 139 NLRB 1352
6 Although no charge was filed against Service, we find that it
had actual notice of this proceeding and its interests were fully
represented Since we also find that Glendora and Service
comprise a single -integrated business entity for purposes of the
Act, our Order shall run against Service as well as Glendora Cf.
Frost Lumber Industries, 101 NLRB 659
104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board finds appropriate for the purposes of
collective bargaining:
All employees of Glendora and Service
performing plumbing, heating, and piping work,
and also plumbing repair work in the counties of
Los Angeles, Orange, Riverside, San
Bernadino, Imperial, San Diego, Ventura, Santa
Barbara, and San Luis Obispo, but excluding
office clerical employees, professional
employees, guards, watchmen, and supervisors
as defined in the Act.
(e) Discouraging membership in the United
Association of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United
States and Canada, by discharging employees or
otherwise discriminating in any manner in respect to
their tenure of employment or any terms or condition
of employment.
(f) In any other manner interfering with,
restraining, or coercing employees in the exercise of
rights guaranteed in Section 7 of the Act, except to
the extent that such rights may be affected by an
agreement requiring membership in a labor
organization, as authorized in Section 8(a)(3) of the
Act, as amended, by the Labor-Management
Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Withdraw and withhold all recognition from
the Joint Council of the Brotherhood of Independent
Workers, affiliated with the National Federation of
Independent Unions, as a representative of any of its
employees, for the purpose of dealing with them with
respect to rates of pay, wages, hours of employment,
or other terms or conditions of employment, unless
or until said organization shall have been certified as
such representative by the Board.
(b) Jointly and severally with Respondent Union
reimburse those employees who became members of
Respondent Union after the execution of the
collective-bargaining agreement of February 21,
1966, for moneys paid by them or deducted from
their earnings for initiation fees, dues, assessments,
or other obligations of membership in Respondent
Union, together with interest at the rate of 6 percent
per annum, in the manner set forth in the section of
the Board's Decision and Order entitled "The
Remedy."
(c) Upon request, bargain collectively with the
United Association of Journeymen and Apprentices
of the Plumbing and Pipefitting Industry of the
United States and Canada, as the exclusive
representative of the employees in the aforesaid
appropriate unit, and, if an understanding is
reached, embody such understanding in a signed
agreement.
(d) Offer those employees listed in that section of
the Board's Decision and Order entitled "The
Remedy" immediate and full reinstatement to their
former or substantially equivalent position without
prejudice to their seniority or other rights and
privileges originally enjoyed by them, dismissing, if
necessary, any replacements hired in their stead,
and jointly and severally with Respondent Union
make them whole for any loss of pay they may have
suffered by reason of Respondent's discrimination
against them, with backpay and interest to be
computed as prescribed in the section of this
Decision and Order entitled "The Remedy."
(e) Notify any employees if presently serving in
the Armed Forces of the United States of their right
to reinstatement upon application in accordance
with the Selective Service Act and the Universal
Military Training and Service Act, as amended, after
discharge from the Armed Forces.
(f) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to ascertain the amount of
backpay due under the terms of this Order.
(g) Post at its place of business in Glendora,
California, copies of the attached notices marked
"Appendix A" and "Appendix B."7 Copies of said
notices, to be furnished by the Regional Director for
Region 31, after being signed by the appropriate
representatives, shall be posted by Respondent
Employer immediately after receipt thereof, and be
maintained by Respondent Employer for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to its employees
are customarily posted. Reasonable steps shall be
taken by Respondent Employer to insure that said
notices are not altered, defaced, or covered by any
other material.
(h) Mail to the Regional Director for Region 31
copies of the attached notice marked "Appendix A"
for posting by the Respondent Union. Copies of said
notice, to be furnished by said Regional Director,
after being duly signed by the representatives of
Glendora and Service, shall be forthwith returned to
said Regional Director for such posting.
(i) Notify the Regional Director for Region 31, in
writing, within 10 days from the date of this Decision
and Order, what steps the Respondent Employer has
taken to comply herewith.
B. The Respondent Union, Joint Council of the
Brotherhood of Independent Workers, affiliated
with the National Federation of Independent Unions,
its officers, agents, and representatives, shall:
1. Cease and desist from:
(a) Acting as the collective-bargaining
representative of the employees of Respondent
Employer in the unit heretofore found appropriate
by the Board, for the purpose of dealing with said
Respondent Employer concerning rates of pay,
' In the event that this Order is enforced by a decree of a words "a Decision and Order" the words "a Decree of the United
United States Court of Appeals , there shall be substituted for the States Court of Appeals Enforcing an Order "
GLENDORA PLUMBING
wages, hours of employment, or other terms or
conditions of employment, unless and until such
labor organization shall have been certified by the
Board as the exclusive representative of such
employees.
(b) Performing, enforcing, or giving effect to its
collective-bargaining agreement of February 21,
1966, with Glendora Plumbing Service, or entering
into or enforcing any extension, renewal,
modification, or supplement thereof, or any
superseding collective-bargaining agreement with
Respondent Employer.
(c) Causing or attempting to cause Respondent
Employer to discriminate against employees in
violation of Section 8(a)(3) of the Act by entering into
or maintaining any agreement with Respondent
Employer at a time it is not the representative of an
uncoerced majority of these employees, which
conditions employment on membership in
Respondent Union, or in any other manner causing
or attempting to cause Respondent Employer to
discriminate against any employee in violation of
Section 8(a)(3) of the Act.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Jointly and severally with the Respondent
Employer reimburse those employees who became
members of Respondent Union after execution of the
collective-bargaining agreement of February 21,
1966, for moneys paid by them or deducted from
their earnings for initiation fees, dues, assessments,
or other obligations of membership in Respondent
Union, and jointly and severally with Respondent
Employer make whole the employees listed in that
section of the Board's Decision and Order entitled
"The Remedy" for any loss of pay they may have
suffered by reason of the discrimination practiced
against them, together with interest at the rate of 6
percent per annum, in the method set forth in the
section of the Board's Decision and Order entitled
"The Remedy."
(b) Post at its business office and meeting hall
copies of the attached notices marked "Appendix
A" and "Appendix B."8 Copies of said notices, to be
furnished by the Regional Director for Region 31,
after being duly signed by the appropriate
representatives, shall be posted by the Respondent
Union immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter,
in conspicious places, including all places where
notices to its employees are customarily posted.
Reasonable steps shall be taken by the Respondent
Union to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Mail to the Regional Director for Region 31
signed copies of the attached notice marked
"Appendix B" for posting by Glendora Plumbing
and Glendora Plumbing Service. Copies of said
notice, to be furnished by said Regional Director,
after being duly signed by the Respondent Union's
105
representative, shall be forthwith returned to said
Regional Director for such posting.
(d) Notify the Regional Director for Region 31, in
writing, within 10 days from the date of this Decision
and Order, what steps the Respondent Union has
taken to comply herewith.
9 See fn 7.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National
Labor Relations Board, and in order to effectuate
the policies of the National Labor Relations Act, as
amended, we hereby notify you that:
WE WILL NOT assist the Brotherhood of
Independent Workers, or any other labor
organization , or otherwise interfere with the
representation of our employees through a labor
organization of their own choosing.
WE WILL NOT recognize the Brotherhood of
Independent Workers, or any successor
thereto, as the representative of any of our
employees for dealing with us with respect to
rates of pay , wages, hours of employment, or
other terms and conditions of employment,
unless and until such labor organization shall
have been certified by the Board as the
exclusive representative of our employees.
WE WILL NOT perform, enforce, or give effect
to the collective-bargaining agreement of
February 21, 1966, with the Brotherhood of
Independent Workers, or enter into or enforce
any extension, renewal, modification, or
supplement thereof, of any superseding
collective-bargaining agreement with said labor
organization.
WE WILL NOT discourage membership in the
United Association of Journeymen and
Apprentices of the Plumbing and Pipefitting
Industry of the United States and Canada,
AFL-CIO, by discharging employees or
otherwise discriminating in any manner in
respect to their tenure of employment or any
term or condition of employment.
WE WILL NOT in any other manner interfere
with, restrain , or coerce employees in the
exercise of rights guaranteed in Section 8 of the
Act, except to the extent that such rights may
be affected by an agreement requiring
membership in a labor organization, as
authorized in Section 8(a)(3) of the Act.
WE WILL withdraw and withhold all
recognition from the Brotherhood of
Independent Workers, as a representative of
any of our employees for the purpose of dealing
with them with respect to rates of pay , wages,
106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hours of employment , or other terms or
conditions of employment , unless or until said
organization shall have been certified as such
representative by the Board.
WE WILL jointly and severally with
Respondent Union reimburse those employees
who became members of Respondent Union
after the execution of the collective -bargaining
agreement of February 21, 1966 , for moneys
paid by them or deducted from their earnings
for initiation fees, dues, assessments , or other
obligations of membership in Respondent
Union.
WE WILL, upon request , bargain collectively
with the United Association of Journeymen and
Apprentices of the Plumbing and Pipefitting
Industry of the United States and Canada,
AFL-CIO, as the exclusive representative of
our employees in the bargaining unit described
below, and, if an understanding is reached,
embody such understanding in a signed
agreement . Said bargaining unit is:
All employees of Glendora Plumbing and
Glendora Plumbing Service performing
plumbing , heating , and piping work, and
also plumbing repair work in the counties
of Los Angeles, Orange, Riverside, San
Bernadino , Imperial , San Diego , Ventura,
Santa Barbara, and San Luis Obispo, but
excluding office clerical employees,
professional employees , guards,
watchmen , and supervisors as defined in
the Act.
WE WILL offer those employees listed below
immediate and full reinstatement to their
former or substantially equivalent positions
without prejudice to their seniority or other
rights and privileges originally enjoyed by them,
and jointly and severally with Respondent
Union make them whole for any loss of pay they
may have suffered by reason of Glendora's
discrimination against them.
Robert Holmes Victor Dimit
Rex Waterman Richard Markland
William Kehr Larry Samuels
Ronald Rayfield John Sherwood
Wynn Kaufman Roger Ferguson
CHARLES MATHIS
J. HOWARD JENKS D/B/A
GLENDORA PLUMBING
(Employer)
Dated By
(Representative) (Title)
ORRA D. JENKS D/B/A
GLENDORA PLUMBING
SERVICE
(Employer)
Dated By
(Representative) (Title)
Note: We will notify any employees if presently
serving in the Armed Forces of the United States of
their right to full reinstatement upon application in
accordance with the Selective Service Act and the
Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive
days from the date of posting, and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, 10th Floor, Bartlett Building, 215 West
Seventh Street, Los Angeles, California 90014,
Telephone 688-5850.
APPENDIX B
NOTICE TO ALL MEMBERS OF JOINT COUNCIL OF
THE BROTHERHOOD OF INDEPENDENT WORKERS
Pursuant to a Decision and Order of the National
Labor Relations Board, and in order to effectuate
the policies of the National Labor Relations Act, as
amended, we hereby notify you that:
WE WILL NOT act as the collective-bargaining
representative of the employees of Glendora
Plumbing and Glendora Plumbing Service in
the unit found appropriate by the Board, for the
purpose of dealing with said Companies
concerning rates of pay, wages, hours of
employment, or other terms or conditions of
employment, unless and until this labor
organization shall have been certified by the
Board as the exclusive representative of those
employees.
WE WILL NOT perform, enforce, or give effect
to our collective-bargaining agreement of
February 21, 1966, with Glendora Plumbing
Service or enter into or enforce any extension,
renewal, modification, or supplement thereof,
or any superseding collective-bargaining
agreement with Glendora Plumbing or Glendora
Plumbing Service.
WE WILL NOT cause or attempt to cause
Glendora Plumbing and Glendora Plumbing
Service to discriminate against employees in
violation of Section 8(a)(3) of the Act by entering
into or maintaining any agreement with them
which requires as a condition of employment
membership in Respondent Union, or in any
other manner causing or attempting to cause
Glendora Plumbing and Glendora Plumbing
Service to discriminate against any employee in
violation of Section 8(a)(3) of the Act.
WE WILL jointly and severally with Glendora
Plumbing and Glendora Plumbing Service
reimburse those employees who became
GLENDORA PLUMBING
members of our organization after execution of
the collective-bargaining agreement of
February 21, 1966, for moneys paid by them or
deducted from their earnings for initiation fees,
dues, assessments, or other obligations of
membership in our organization, and make
whole the employees listed below for any loss of
pay they may have suffered by reason of the
unlawful discrimination against them.
Robert Holmes Victor Dimit
Rex Waterman Richard Markland
William Kehr Larry Samuels
Ronald Rayfield John Sherwood
Wynn Kaufman Roger Ferguson
CHARLES MATHIS
JOINT COUNCIL OF THE
BROTHERHOOD OF
INDEPENDENT WORKERS,
AFFILIATED WITH THE
NATIONAL FEDERATION
OF INDEPENDENT UNIONS
(Labor Organization)
Dated By
(Representative) (Title)
This notice must remain poster' for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
If members have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, 10th Floor, Bartlett Building, 215 West
Seventh Street, Los Angeles, _ California 90014,
Telephone 688-5850.
107
Brotherhood of Independent Workers, affiliated with the
National Federation of Independent Unions, herein called
Respondent Union or the BIW failed to file an answer.
Because of this default and consonant with the motion of
the General Counsel the allegations of the complaint
applying to Respondent Union are deemed admitted.
Findings of fact, conclusions of law, and a recommended
order will be issued based on the allegations of the
complaint relating to Respondent Union.
Upon a consideration of the entire record, including my
observation of the demeanor of the witnesses and briefs
filed by the General Counsel and Respondent Employer, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY AND THE
JURISDICTION OF THE BOARD
J. Howard Jenks, an individual, d/b/a Glendora
Plumbing, herein called Respondent or Glendora is
engaged in the plumbing business at 540 South Pasadena
Avenue, Glendora, California. In the course and conduct
of its business operations during the calendar year of 1965,
a representative year, he purchased and received goods
and materials valued in excess of $50,000 from enterprises
located in the State of California which enterprises
purchased and received said goods directly from
enterprises located outside the State of California.
Orra D. Jenks, an individual, the wife of J. Howard
Jenks, has a certificate to do business under the fictitious
name of Glendora Plumbing Service. She allegedly has a
plumbing business at the same address as her husband
using the same offices and shop.2
There is no contention that her business meets the
jurdictional standards of the Board. In the complaint the
General Counsel also alleges that she and her husband
constitute a single employer engaged in commerce within
the meaning of the Act.3
II. THE LABOR ORGANIZATIONS INVOLVED
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
EUGENE K. KENNEDY, Trial Examiner: A hearing in this
matter was held in Los Angeles, California, on August 30
and 31, 1966.1 The complaint alleges violations of Section
8(a)(1), (2), (3), and (5) of the National Labor Relations Act,
as amended, herein the Act, as well as violations of
Section 8(b)(1)(A) and (2). The Joint Council of the
District 16, United Association of Journeymen and
Apprentices of the Plumbing and Pipefitting Industry of
the United States and Canada, AFL-CIO, the Charging
Party in both cases, herein called the UA, is a labor
organization within the meaning of the Act.4
The Joint Council of the Brotherhood of Independent
Workers, affiliated with the National Federation of
Independent Unions, herein called Respondent Union or
the BIW is a labor organization within the meaning of the
Act.
' The consolidated complaint was issued on June 30,1966 The
original charge in Case 31-CA-331 was filed on February 24,
1966. The amended charge in Case 31-CA-333 was filed on
February 28, 1966 The original charge in Case 31-CB-91 was
filed on February 24, 1966 The amended charge in Case
31-CB-91 was filed on February 28, 1966
2 No charges were filed against her , she is not listed as a
respondent in the complaint , and consequently no order can issue
against her This has particular significance in connection with an
alternate position indicated in the complaint to the effect that an
appropriate unit would consist of the employees of Jenks and his
wire even if they were regarded as separate employers This may
be an appropriate unit but in the absence of a charge against Mrs.
Jenks, it is clear no order can be issued to compel her to engage in
collective bargaining in a multiemployer unit.
9 Hereinafter the business in the name of J Howard Jenks will
be called Glendora and the business in the name of Orra Jenks
will be designated as Service This is done for the sake of clarity
in setting forth the events involved and does not necessarily
indicate separate business entities
' In a motion included in his brief the General Counsel moved
to change the designation Local 398 to District Council No 16 and
the designation Plumbers to UA Although such change does not
appear necessary it is consonant with the established proof and
the motion is hereby granted.
108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. Background Events
For several years Glendora had a collective- bargaining
agreement with the UA. The latest one was entered into on
July 1,1963, and was effective through June 30,1966. This
agreement contained a union-security provision. Prior to
1964 Glendora had a service department as well as a new
construction department. The service department
engaged in servicing, repair of plumbing and heating
systems, small additions, and remodeling jobs. It did not
engage in new construction work. Its usual regular
complement of employees was approximately two or three.
In the later part of 1963, the service department was
largely discontinued although some service or
maintenance work continued to be performed for some of
Glendora's general contractor customers.
A certificate of doing business under the fictitious name
of Glendora Plumbing Service (herein Service) was
obtained by Orra Jenks in May or June 1964. Mr. Jenks
offered Glendora employee Golden a job with Service.
Golden was instructed by Mr. Jenks to prepare one of
Glendora's pickup trucks for service use by Service.
Since its inception, Service used the same offices,
premises , and facilities as Glendora. Service and Glendora
received their mail at the same post office box and used
the same telephones. The service work performed by
Service was of the same type as performed by the service
department of Glendora. Service has access and used
Glendora's equipment and Service equipment was used by
Glendora. There was a substantial amount of interchange
between the employees of Service and Glendora. All of the
regular employees of Service have formerly been
employees of Glendora. Mr. Jenks (owner of Glendora)
made the estimates for the larger jobs done by Service.
Mr. Jenks also supervised larger jobs of Service.
B. The Appropriate Unit
The key issue in the determination of the appropriate
unit is whether the employees of Service should be
included. This issue in turn revolves on the question of
whether Service and Glendora are the same employer.
Stated generally the question is whether Service (Orra
Jenks) is merely a name and a tool of Glendora (J. Howard
Jenks) to avoid the UA contract and to operate under the
BIW contract. Some of the considerations touching on this
point have been indicated above. The factors indicating
Glendora and Service are separate entities will be set forth
followed by those indicating they are the same enterprise.
1. Indicia that Glendora and Service are separate
business entities
a. Glendora and Service each have their certificates of
fictitious name.
b. Orra Jenks (Service) signs paychecks for Service
employees while Mr. Jenks (Glendora) signs paychecks for
employees of Glendora and there are separate payroll
records.
c. Commencing in 1966 Glendora paid Service for work
done for Glendora by Service employees.
d. Golden, a Service employee had a business card
showing 546 South Pasadena, Glendora (town), as the
office of Service. The address of Glendora Plumbing is 540
South Pasadena, Glendora.5
2. Indicia that Glendora and Service are one enterprise in
substance and only separate in form
a. Prior to the certificate of doing business under a
fictitious name being issued to Service, Glendora had a
service department doing the same type of plumbing work
as Service performed.
b. The pickup truck fitted out by employee Golden in
1964 for use by Service was registered in the name of
J. Howard Jenks (Glendora) and obtained from Glendora.
Until the advent of the BIW in 1966, Service employed
primarily nonunion employees.
c. Glendora and Service use the same offices, the same
phone, and use a common toolroom and storage facilities,
and also have a common entrance.
d. There was a substantial interchange of employees
between Glendora and Service. After the former Glendora
employees started working for Service in 1964, they
worked for Glendora approximately one-third of the time.
They were also paid by Glendora until the last part of 1966.
In addition, the record reflects that Glendora employees
Carrion, Quiroz, Tones, Kaufman, Holmes, and Sherwood
were used for service calls after the formal creation of
Service in 1964. In the same period the record also reflects
Glendora employee Wakeman made 15 or 20 service calls
and was paid for this work by Glendora.
e. Glendora employee Holmes made 10 to 15 calls for
Service. Service, in addition to using Glendora's tools and
material , used Glendora's trucks.
f. Mr. Jenks, d/b/a Glendora Plumbing, supervised the
major jobs of Service and gave advice in connection with
performance of Service jobs.
g. Glendora and Service did work for the same
customers. Glendora would warrant its work to general
contractors for a year in connection with construction
work. Service fulfilled this warranty by doing the
necessary repairs to fulfill this warranty.
It. In connection with one project in 1966 a Glendora
employee performed the prefabrication in the shop and the
installation was done by Service employees on the project
which involved 38 new homes.
i. The building at 546 South Pasadena, Glendora,
although given as an address for Service was used only for
storage of materials which were used principally by
Glendora.
j. At the February 21, 1966, meeting J. Howard Jenks
(Glendora) had with his employees, he spoke about the
benefits of the BIW contract. At this same meeting he
stated the work of the service section would increase and
the work of the plumbing department would decrease.
After the meeting Mr. Jenks (Glendora) offered employee
Golden, a Glendora employee, a job with Service.
k. Employees called Glendora Plumbing Service the
"service department."
1. Work done for Glendora and Service was put on the
same timecard by employees.
in. Glendora employee Wakeman testified credibly and
without contradiction that at the time he was laid off, Mr.
Jenks told him "that they were thinking of going into the
new Union, the Brotherhood of Independent Workers and
he did mention at the time he might go under doing it, but
he was going to give it a try."
5 The building at 546 South Pasadena contains no offices but is
used only for storage of materials used mainly by Glendora
GLENDORA PLUMBING 109
n. After the prehire agreement was signed by Service
with the BIW in February 1964, Glendora
"subconstructed" at least four new construction jobs to
Service. Prior to the execution of the BIW contract,
Service had never done any new construction work. Mr.
Jenks did the estimating for these jobs and also for other
jobs on which Service bid. Orra Jenks testified she
assumed her husband Mr. Jenks supervised the jobs
performed by Service. There is no evidence in the record
that Mrs. Jenks ever reimbursed Mr. Jenks for his work
done for Service.
o. After February 21, 1966, approximately the time
Service and the BIW executed a collective-bargaining
agreement , Glendora's payroll showed a dramatic change.
In the payroll period immediately preceding February 21,
1966, Glendora had 18 production employees. Two weeks
later Glendora employed only two. Of the 16 remaining, 1
quit and 11 were laid off allegedly for lack of work and the
remaining 4, the only employees of Glendora who at that
time apparently joined the BIW,6 were put on the Service
payroll.
The two employees retained by Glendora continued in
its employ until June 30, 1966. During this same period
five new employees were hired by Glendora for short
periods. After June 30,1966, Glendora had no employees.
In the case of Service, from a complement of at best two
full-time employees and five occasional part-time
employees in February it expanded to a total of seven full-
time employees and two part-time employees. By August
1966 Service had expanded to 19 full-time employees
including about 14 who had previously worked neither for
Glendora nor Service.
3. Prefatory finding on nature of entity of Glendora and
Service and the appropriate unit
The above circumstances establish that Mr. Jenks
(Glendora) established and effectively controlled Service.
The record suggests the role of Orra Jenks was essentially
clerical. It seems apparent that Service was originally
established to employ nonunion men and then later was
used by Mr. Jenks as a vehicle to avoid the UA contract
Glendora had with it.7
In summary it is found that Service, from the standpoint
of substance, has no separate status. It is a part of, or an
appendage of, Glendora or it may be said accurately that
Service and Glendora are the same business entities for
purposes of determining obligations imposed by the Act.
In view of this, the appropriate unit is that contained in
the agreement between Glendora and the UA, which
expired in June 1966, containing a union-security and
exclusive hiring provision.
Accordingly it is found that the appropriate unit
includes all employees of Glendora (and Service) covering
all employees performing plumbing, heating, and piping
work and also plumbing repair work,8 in the counties of
Los Angeles, Orange, Riverside, San Bernadino, Imperial,
San Diego, Ventura, Santa Barbara, and San Luis Obispo,
but excluding office clerical employees, professional
employees, guards, watchmen, and supervisors as defined
in the Act.
Since the UA represented a majority of Glendora's
employees as of February 1966 (12 of 18 on payroll) and
since as it is specifically found the unfair labor practices of
Glendora did not affect the right of the UA to represent its
employees, it is found that at all times material the UA
represented a majority of the employees of Glendora (and
Service).
C. Unlawful Assistance
As found above, the UA is the lawful representative of
all production employees of Glendora and Service. In view
of this, Section 8(f)e plays no part as a defense to the
unlawful assistance extended to Service. At the time of the
execution of the agreement with Service, the UA was the
lawful representative of all the production employees of
Glendora and Service. Hence the unlawful agreement
executed by Service with the BIW is unlawful support and
violative of Section 8(a)(2). Barney Wilkerson Construction
Company, 145 NLRB 704,705-706.
D. The Failure to Bargain
Glendora's unlawfully withdrawing recognition from the
UA as the bargaining representative of Glendora and
Service employees, which constitute a single unit, is a
clear violation of Section 8(a)(1) and (5). Barney Wilkerson,
supra at 706.
E. Alleged Unlawful Discrimination
The events outlined above depict a plan to replace
employees who were members of the UA with employees
who were members of the BIW. This plan was confirmed
to Glendora employee Sherwood by Mr. Jenks when he
was laid off on February 18, 1966. Terminating the
employment of an individual because of union
membership or the lack of it is unlawful discrimination
and a violation of Section 8(a)(3).
In his brief the General Counsel claims the following as
alleged discriminatees, which claim is supported by the
record.
Robert Holmes Roger Ferguson
Wynn Kaufman William Kehr
John Sherwood Richard Markland
Rex Waterman Charles Mathis
Victor Dimit Ronald Rayfleld
LARRY SAMUELS
The above were all members of the UA (General
Counsel's Exhibit 13). At the meeting of February 21,
1966, at which Mr. Jenks was telling the employees about
the BIW contract, Holmes spoke up and said he did not
want anything to do with it.
6 G.C Exh. 3
7 Business Representative Battany on February 22, 1966, told
Mr. Jenks he had heard that Jenks had signed a BIW agreement.
Jenks replied that his wife had signed the agreement . Battany
then made the accusation that this was a subterfuge Jenks
answered , "Well, it may be a subterfuge , but it's a legal way of
getting around the current labor agreement that we had in effect
at the time."
8 G.C Exh. 7(a), sec. II, 10(48)
9 As far as applicable, Section 8 (f) provides: "It shall not be an
unfair labor practice . for an employer engaged primarily in the
building and construction industry to make an agreement
covering employees engaged (or who, upon their employment, will
be engaged) in the building and construction industry with a labor
organization of which building and construction employees are
members ( not established, maintained , or assisted by any action
defined in section 8(a) of this Act as an unfair labor practice)
because (1) the majority status of such labor organization has not
been established under the provisions of section 9 of this Act prior
to the making of such agreement,.
110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All the above employees were laid off shortly before or
after February 21, 1966.10 All of them were entitled to be
recalled by July 1966 at the latest. The number and
identity of employees entitled to be recalled at an earlier
date will of necessity have to be determined at the
compliance stage of this proceeding.
F. Respondent BIW
As previously noted, the Respondent BIW, by failing to
answer the complaint against it, admitted the truth of the
allegations thereof and findings and conclusions and an
order will be issued against Respondent BIW based on the
allegations of the complaints.
The BIW executed a collective-bargaining agreement
with Service on February 21, 1966, which contained a
clause requiring membership in the BIW as a condition of
employment. At no time material has the BIW represented
an uncoerced majority of the employees of Service or
Glendora. Since February 21, 1966, BIW has maintained
the aforesaid agreement in effect. The BIW since
February 21, 1966, on various dates exacted initiation fees,
dues, and other fees from employees of Service under the
terms of the said collective-bargaining agreement.
By the aforesaid acts the BIW attempted to cause and
did cause Glendora and Service to discriminate against
employees in violation of Section 8(a)(3) of the Act, and did
thereby engage in, and is thereby engaging in, unfair labor
practices within the meaning of Section 8(b)(2) of the Act.
As a result of said agreement the BIW caused Glendora
and Service to discriminate against employees Robert
Holmes, Wynn Kaufman, John Sherwood, Rex Waterman,
Victor Dimit, Roger Ferguson, William Kehr, Richard
Markland, Charles Mathis, Ronald Rayfield, and Larry
Samuels.
IV. THE EFFECT OF UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of
Respondent described in section I, 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.
Upon the basis of the foregoing findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent Glendora is engaged in commerce within
the meaning of the Act.
2. Respondent BIW and the UA are labor organizations
within the meaning of the Act.
3. By discriminating with respect to the employment of
Robert Holmes, Wynn Kaufman, John Sherwood, Rex
Waterman, Victor Dimit, Roger Ferguson, William Kehr,
Richard Markland, Charles Mathis, Ronald Rayfield, and
Larry Samuels, Respondent Glendora and Service have
engaged in unfair labor practices within the meaning of
Section 8(a)(3) of the Act.
4. By recognizing the BIW and executing a collective-
bargaining agreement when it did not represent an
uncoerced majority of its employees, Glendora and
Service have committed unfair labor practices within the
meaning of Section 8(a)(2) of the Act.
10 The exact dates of the layoff will have to be determined from
the original records as the copies in evidence are illegible In
addition, at the compliance stage of this proceeding, the
5. By withdrawing recognition from the UA and failing
and refusing to bargain with it when it was the majority
representative of its employees, Respondent Glendora and
Service have engaged in unfair labor practices within the
meaning of Section 8(a)(5) of the Act.
6. By the foregoing conduct and by stating that the
work of the service department would increase and the
work of the plumbing department would decrease as part
of an attempt to induce employees to join the BIW,
Respondent Glendora and Service have engaged in unfair
labor practices within the meaning of Section 8(a)(1) of the
Act.
7. By executing a collective-bargaining agreement
containing a union-security provision when it did not
represent an uncoerced majority of the employees and by
causing Glendora and Service to discriminate against the
employees named in paragraph 3, above, Respondent BIW
has committed unfair labor practices within the meaning
of Section 8(b)(2) and (1)(A) of the Act.
8. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of the
Act.
THE REMEDY
Having found that Glendora and Service and the BIW
have engaged in certain unfair labor practices it will be
recommended that they cease and desist therefrom and
take certain affirmative action designed to effectuate the
policies of the Act.
By reason of the discriminations practiced against them,
it will be recommended that the employees discriminated
against listed in paragraph 3, Conclusions of Law, be
reimbursed for any loss of wages caused by such
discrimination. Loss of pay shall be computed in
accordance with the formula proscribed in F.W.
Woolworth Company, 90 NLRB 289, together with 6
percent interest per annum, as proscribed in Isis Plumbing
and Heating Co., 138 NLRB 716.
By reason of such discrimination practiced against them
it will be recommended that employees discriminated
against listed in paragraph 3, Conclusions of Law, be
reimbursed for initiation fees, dues,- and any other fees
exacted from them in accordance with the collective-
bargaining agreement between Service and the BIW.
It will be recommended that Glendora and Service and
the BIW be jointly and severally liable for the aforesaid
loss of wages, initiation fees, dues, and any other fees
payable under the contract between Service and the BIW.
It will be further recommended that the aforesaid
discriminatees be offered reinstatement to their same or
substantially equivalent positions.
It will be recommended that Glendora and Service,
upon request, recognize and bargain with the UA as the
collective-bargaining representative of its production
employees.
It will be recommended that Glendora and Service
withdraw recognition and cease giving effect to any
collective-bargaining agreement with the BIW.
It will be recommended that Glendora and Service and
the BIW cease and desist from such unfair labor practices
as indicated above or any of a like nature.
It will also be recommended that Glendora and Service
and the BIW post notices labeled Appendixes A and B,
respectively.
[Recommended Order omitted from publication.]
availability of work before July 1966 will have to be ascertained in
connection with an inquiry as to backpay entitlement