King's Fire Protection

National Labor Relations Board - Board Decisions

Sep 27, 2012

358 N.L.R.B. 1548 (N.L.R.B. 2012)

1548 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
358 NLRB No. 156
King’s Fire Protection, Inc. and its alter ego Warrior
Sprinkler, LLC and Road Sprinkler Fitters, Lo-
cal Union No. 669, U.A. AFL–CIO. Cases 05–
CA–036094 and 05–CA–036312
September 27, 2012
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS HAYES
AND BLOCK
On July 28, 2011, Administrative Law Judge Bruce D.
Rosenstein issued the attached decision. The Respond-
ents and the Charging Party filed exceptions and support-
ing briefs. The Acting General Counsel filed an answer-
ing brief and the Charging Party filed a brief in opposi-
tion to the Respondents’ exceptions.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge's rulings, findings, and conclusions, as
modified,1 and to adopt the recommended Order as mod-
ified and set forth in full below.2

1 We affirm the judge’s conclusion that the parties had a bargaining
relationship governed by Sec. 9(a) of the Act, rather than Sec. 8(f),
when the Respondents unlawfully terminated that relationship and
failed to abide by all of the terms of an extant bargaining agreement. In
doing so, we rely solely on the language of the parties’ January 18,
2005 assent and interim agreement, which comported with the require-
ments set forth in Central Illinois Construction (Staunton Fuel), 335
NLRB 717 (2001), for establishing a bargaining relationship under Sec.
9(a) in the construction industry. We therefore find it unnecessary to
pass on whether the parties’ March 23, 2001 agreement, or a 1954
Board certification of a multiemployer bargaining unit with which
Respondent King’s Fire Protection was temporarily affiliated, also
prove the establishment of a 9(a) bargaining relationship.
Because the 2005 agreement conclusively established the parties’
9(a) relationship, we need not consider extrinsic evidence concerning
the parties’ intent. Staunton Fuel, 335 NLRB at 720 fn. 15. We note,
however, that there is no probative extrinsic evidence that the Union
lacked majority support when the 2005 agreement was signed. The
only evidence arguably addressing the issue of majority support, other
than the 2005 agreement, was the following question and answer at the
hearing:
Q. At any time since March 23, 2001, when that agreement
was signed, has Mr. Kantner or any other union representative
presented any documents to you to show their union majority sta-
tus?
A. No, I have not.
This response by the Respondents’ chief witness to their counsel’s
question did not address the 2005 agreement or controvert that agree-
ment’s recitation that “the Union offered to provide the Employer with
confirmation of its support by a majority of such employees.”
As previously stated in his dissenting opinion in DiPonio Construc-
tion Co., 357 NLRB 1206, 1206 fn. 3 (2011), Member Hayes would
overrule Central Illinois Construction (Staunton Fuel), 335 NLRB 717
(2001), and would apply the holding of Nova Plumbing Inc. v. NLRB,
330 F.3d 531, 534 (D.C. Cir. 2003), that contractual language alone is
insufficient to establish a 9(a) bargaining relationship in the construc-
ORDER
The National Labor Relations Board orders that the
Respondents, King's Fire Protection, Inc., and Warrior
Sprinkler, LLC, Mechanicsburg, Pennsylvania, their of-
ficers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to recognize the Union as the exclusive
collective-bargaining representative of all employees in
the bargaining unit described below.
(b) Refusing to bargain with the Union regarding the
terms of a collective-bargaining agreement to succeed its
contract with the Union which expired on March 31,
2010.
(c) Making changes to employees’ wages, benefits,
and other terms and conditions of employment without
first notifying and bargaining in good faith with the Un-
ion to either agreement or impasse.
(d) Refusing to participate in the grievance and arbitra-
tion procedure under the parties’ collective-bargaining
agreement which expired on March 31, 2010.
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Recognize and, on request, bargain with the Union
as the exclusive representative of the employees in the
following appropriate unit concerning terms and condi-
tions of employment and, if an understanding is reached,
embody the understanding in a signed agreement:

All Journeymen Sprinkler Fitters and Apprentices

tion industry. Contrary to his colleagues, absent extrinsic evidence that
the Union had majority employee support when the 2005 agreement
was executed, he would therefore find the language of this agreement
insufficient to establish a 9(a) relationship. Further, he would affirm
the judge’s finding that the parties’ 2001 agreement established an 8(f)
relationship, but he would find, contrary to the judge, that the subse-
quent designation of National Fire Sprinkler Association as the Re-
spondents’ bargaining agent did not establish or reaffirm the existence
of a 9(a) relationship based on a 1954 Board certification. According-
ly, Member Hayes concurs in finding that the Respondent violated Sec.
8(a)(5) only to the extent that it failed to apply terms of the parties’
2007–2010 contract prior to its expiration.
2 In his remedy, the judge mistakenly indicated that the parties stipu-
lated that King’s Fire Protection “continued to follow the 2010–2013
collective-bargaining agreement,” even after it purportedly terminated
its bargaining relationship with the Union in March 2010. The stipula-
tion was that King’s Fire continued to abide by the terms of the parties’
expired 2007–2010 agreement, the last contract into which they en-
tered. We will therefore revise the judge’s remedial order to require the
Respondent to apply the terms of employment established by the 2007–
2010 agreement until the parties reach a new agreement or impasse, and
to bargain with the Union for a new contract. The order’s make-whole
requirements will be based on those terms of employment.
KING’S FIRE PROTECTION, INC. 1549

(b) On request of the Union, rescind any changes to
employees’ terms and conditions of employment made
on or after April 1, 2010, and retroactively restore terms
and conditions of employment, including wage rates and
benefit plans, to what they were prior to April 1, 2010.
(c) Make whole all bargaining unit employees to the
extent they have suffered any losses in pay and benefits
as a result of the Respondents’ unlawful conduct, includ-
ing losses to the Union’s health and welfare, pension,
and other benefit funds, occurring on or after April 1,
2010, with interest, in the manner set forth in the remedy
section of the judge’s decision. Amounts due shall be
computed based on the terms of employment established
in the collective-bargaining agreement effective between
April 1, 2007, and March 31, 2010.
(d) Participate in the grievance and arbitration proce-
dure under the collective-bargaining agreement which
expired March 31, 2010, by agreeing to select an arbitra-
tor as requested by the Union on March 25 and August
24, 2010.
(e) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(f) Within 14 days after service by the Region, post at
its facility in Mechanicsburg, Pennsylvania, copies of the
attached notice marked “Appendix.”3 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 5 after being signed by the Respondents’ authorized
representative, shall be posted by the Respondents and
maintained for 60 consecutive days in conspicuous plac-
es including all places where notices to employees are
customarily posted. In addition to physical posting of
paper notices, notices shall be distributed electronically,
such as by email, posting on an intranet or an internet
site, and/or other means, if the Respondents customarily
communicates with its employees by such means. Rea-
sonable steps shall be taken by the Respondents to ensure
that the notices are not altered, defaced, or covered by
any other material. In the event that, during the pendency
of these proceedings, the Respondents has gone out of
business or closed the facility involved in these proceed-

3 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
ings, the Respondents shall duplicate and mail, at their
own expense, a copy of the notice to all current employ-
ees and former employees employed by the Respondents
at any time since April 1, 2010.
(g) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondents have 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 vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT withdraw recognition from the Road
Sprinkler Fitters Local No. 669, U.A. AFL–CIO (the
Union) as the exclusive collective-bargaining representa-
tive of our employees in the unit described below.
WE WILL NOT refuse to bargain with the Union regard-
ing terms of a collective-bargaining agreement to suc-
ceed our contract with the Union, which expired on
March 31, 2010.
WE WILL NOT make any changes to employees’ pay,
wages, and terms and conditions of employment without
first notifying and bargaining in good faith with the Un-
ion to either agreement or impasse.
WE WILL NOT refuse to participate in the grievance and
arbitration procedure under the parties 2007–2010 collec-
tive-bargaining agreement.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
WE WILL recognize and, on request, bargain with the
Union as the exclusive representative of our employees
in the following appropriate unit concerning terms and
conditions of employment and, if an understanding is
reached, embody the understanding in a signed agree-
ment:
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1550
All Journeymen Sprinkler Fitters and Apprentices

WE WILL, on request of the Union, rescind any changes
to employees’ terms and conditions of employment made
on or after April 1, 2010, and retroactively restore terms
and conditions of employment, including wage rates and
benefit plans, to what they were prior to April 1, 2010.
WE WILL make whole bargaining unit employees to the
extent they have suffered any losses in pay and benefits
as a result of our unlawful conduct, including losses to
the Union’s health and welfare, pension and other benefit
funds, occurring on or after April 1, 2010, with interest.

KING’S FIRE PROTECTION, INC. AND ITS ALTER
EGO WARRIOR SPRINKLER, LLC

Thomas J. Murphy, Esq. and Matthew J. Turner, Esq., for the
Acting General Counsel.
Thomas R. Davies, Esq., of Lancaster, Pennsylvania, for the
Respondent-Employer.
Natalie C. Moffett, Esq. and William W. Osborne Jr., Esq., of
Washington, DC, for the Charging Party.
DECISION
STATEMENT OF THE CASE
BRUCE D. ROSENSTEIN, Administrative Law Judge. This case
was tried before me on May 25, 2011, in Harrisburg, Pennsyl-
vania, pursuant to a third amended consolidated complaint and
notice of hearing (the complaint) issued by the Regional Direc-
tor for Region 5 of the National Labor Relations Board (the
Board). The complaint, based upon original charges and an
amended charge filed on various dates in 2010,1 by Road
Sprinkler Fitters Local Union No. 669, U.A. AFL–CIO (the
Charging Party or the Union), alleges that King’s Fire Protec-
tion, Inc., and its alter ego Warrior Sprinkler, LLC (the Re-
spondents, Respondent King’s, or Respondent Warrior), has
engaged in certain violations of Section 8(a)(5) and (1) of the
National Labor Relations Act (the Act). The Respondents filed
a timely answer to the complaint denying that they had commit-
ted any violations of the Act.
Issues
The complaint alleges that the Respondents violated Section
8(a)(1) and (5) of the Act when they failed and refused to apply
the terms and conditions of the April 1, 2007, through March
31 collective-bargaining agreement with the Union and specifi-
cally ceased making contributions to the contractual benefit
funds. Additionally, the complaint alleges that the Respondents
refused to participate in the grievance and arbitration procedure
by selecting an arbitrator, and effectively withdrew recognition
from the Union in violation of Section 8(a)(5) and (1) of the
Act.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed

1 All dates are in 2010, unless otherwise indicated.
by the Acting General Counsel,2 the Charging Party, and the
Respondents, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondents are corporations with an office and place of
business located in Mechanicsburg, Pennsylvania, and have
been engaged in the construction industry as fire sprinkler con-
tractors. Respondents in conducting their business operations
provided services valued in excess of $50,000 directly to cus-
tomers located outside the State of Pennsylvania. The Respond-
ents admit and I find that they are employers engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act and that the Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
On or about August 10, 2009, Respondent Warrior was es-
tablished by Respondent King’s as a subordinate instrument to,
and a disguised continuation of Respondent King’s and, on or
about the same date, Respondent Warrior assumed part of the
fire sprinkler operation of Respondent King’s.
At all material times Harry Smith has been the president of
Respondent King’s and his son, Douglas Smith, held the posi-
tion of vice president of Respondent King’s until July 3, 2009.
Effective August 10, 2009, D. Smith became the president of
Respondent Warrior.
Respondent King’s was incorporated on March 23, 2001,
while H. Smith was still employed with Triangle Fire Protec-
tion, Inc. (R. Exh. 13.) H. Smith, as the only employee, com-
menced work on April 1, 2001. He hired his first employee on
June 4, 2001, and since that time to the present date Respondent
King’s has obtained and hired all of its employees through the
Union.
The Union has been the designated exclusive collective-
bargaining representative of the unit and has been recognized as
such by Respondent King’s. This recognition has been embod-
ied by a recognition agreement dated March 23, 2001,3 and in
an April 1, 2007, through March 31 collective-bargaining
agreement between the Union and the National Fire Sprinkler
Association (NFSA) (GC Exh. 21), an organization composed
of employers in the construction industry whose purpose exists
in negotiating and administering collective-bargaining agree-
ments. Respondent King’s agreed to coverage under the collec-
tive-bargaining agreement that was governed by Section 9(a) of

2 The motion of all parties, as set forth in fn. 1 of the Acting General
Counsel’s posthearing brief is granted. Accordingly, GC Exhs. 23, 24,
and 25 are admitted into evidence.
3 The agreement states in pertinent part that: “The Employer, on the
basis of objective and reliable information, confirmed that a clear ma-
jority of the sprinkler fitters in its employ have designated, are member
of, and are represented by, Road Sprinkler Fitters Local Union No. 669,
U.A., AFL–CIO, for purposes of collective bargaining. The Employer
therefore unconditionally acknowledges and confirms that Local 669 is
the exclusive bargaining representative of its sprinkler fitter employees
pursuant to Section 9(a) of the National Labor Relations Act.”
KING’S FIRE PROTECTION, INC. 1551

the Act, by virtue of a 1954 Board election and “RC” certifica-
tion (GC Exh. 2).
The employee complement of Respondent King’s has fluctu-
ated from a high of 27 employees to around 5 since late 2001.
The evidence establishes that on January 18, 2005, when an
assent and interim agreement was signed by H. Smith with the
Union (GC Exh. 4),4 Respondent King’s had 27 employees (GC
Exh. 5). That number decreased to approximately 16 employ-
ees when on November 20, 2006, it designated NFSA to act as
its collective-bargaining agent (GC Exhs. 7 and 8).
Additionally, H. Smith admitted and the parties stipulated
that Respondent King’s, despite not agreeing to be bound by
the April 1, 2010, through March 31, 2013 collective-
bargaining agreement between NFSA and the Union (GC Exh.
22), adheres to its terms and conditions therein and continues to
remit dues (R. Exh. 12) and make benefit fund contributions to
the Union (GC Exh. 15).
By letter dated December 4, 2009, the Charging Party noti-
fied Respondent King’s in accordance with article 30 of the
contract that it intended to terminate the agreement upon its
expiration and negotiate new terms and conditions of employ-
ment for the unit to be effective April 1 (GC Exh. 9). The
parties stipulated that the Respondents on or about March 11,
informed the Union that it was not interested in bargaining a
new collective-bargaining agreement.
B. The 8(a)(5) and (1) Allegations
1. Alter ego status
The General Counsel alleges that Respondent King’s and
Respondent Warrior have had substantially identical manage-
ment, officers, business purpose, operations, equipment, cus-
tomers, and supervision/management and are, and have been at
all material times, alter egos within the meaning of the Act. It
further alleges that since March 11, the Respondents have re-
fused to meet and bargain with the Union, have effectively
withdrawn recognition from the Union since on or about April
1, and have further failed and refused to adhere to the terms and
conditions of the most recent collective-bargaining agreement
between the parties.
Facts
The record confirms that Respondents have common owner-
ship, officers, management, supervisors, and directors, share
common premises and facilities, provide services for each other
and hold themselves out to the public as a single-integrated
business enterprise.5

4 The agreement states in pertinent part that: “The Employer hereby
freely and unequivocally acknowledges that it has verified the Union’s
status as the exclusive bargaining representative of its employees pur-
suant to Section 9(a) of the National Labor Relations Act, as amended,
for the purpose of establishing wages, hours, and working conditions
for all journeymen sprinkler fitters, apprentices and unindentured ap-
prentice applicants in the employ of the Employer, and that the Union
has offered to provide the Employer with confirmation of its support by
a majority of such employees.”
5 The record shows that both Smiths (Harry and Douglas) were on
Respondent King’s payroll on March 18, and signed a license applica-
tion for Respondent Warrior (GC Exhs. 16 and 19).
Discussion
In determining whether two nominally separate employing
entities constitute a single employer, the Board examines four
factors: (1) common ownership, (2) common management, (3)
interrelation of operations, and (4) common control of labor
relations. No single factor is controlling, and not all need to be
present. Rather, single-employer status ultimately depends on
all the circumstances. It is characterized by the absence of an
arm’s-length relationship among seemingly independent com-
panies. Mercy Hospital of Buffalo, 336 NLRB 1282, 1283–
1284 (2001), and Dow Chemical Co., 326 NLRB 288 (1998).
With respect to the General Counsel’s theory that Respond-
ents are alter egos, the Board utilizes additional factors and a
broader standard in determining whether two ostensibly distinct
entities are in fact alter egos. The Board considers whether the
entities in question are substantially identical, including the
factors of management, business purpose, operating equipment,
customers, supervision as well as common ownership. Craw-
ford Door Sales Co., 226 NLRB 1144 (1976); Advance Elec-
tric, 268 NLRB 1001, 1002 (1984).
Under these circumstances, and particularly noting that the
Respondents admit in their answer that they are alter egos with-
in the meaning of the Act, I find that the General Counsel has
established this relationship as alleged in paragraph 4 of the
complaint.
2. Refusal to negotiate and withdrawal
of recognition
Facts
H. Smith testified, without contradiction, that on March 23,
2001, he was still employed by Triangle Fire Protection, Inc.,
and did not employ any bargaining unit employees until June 4,
2001. He further testified that since he did not have any em-
ployees in his employ on March 23, 2001, when he executed
the recognition agreement, it was impossible for a clear majori-
ty of those employees to designate the Union as their collec-
tive-bargaining representative.
Discussion
Section 8(f) of the Act permits unions and employers in the
construction industry to enter into collective-bargaining agree-
ments without the Union having established that it has the sup-
port of a majority of the employees in the covered unit.6 The
provision therefore creates an exception to Section 9(a)’s gen-
eral rule requiring a showing of majority support. Section 8(f)
also creates an exception to the general rule of Section 8(a)(2)
and Section 8(b)(1)(A) that an employer and a union lacking
majority support of unit employees may not enter into a bar-
gaining relationship with respect to those employees. Howev-

6 Sec. 8(f) of the Act provides, in pertinent part: “It shall not be an
unfair labor practice under subsection (a) and (b) of this section 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 . . . because (1) the majority status of such labor organiza-
tion has not been established under the provisions of Sec. 9 prior to the
making of such agreement.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1552
er, at the expiration of an 8(f) contract, the employer can with-
draw recognition from the union and is under no further obliga-
tion to bargain. By contrast, if the bargaining relationship ex-
ists under Section 9(a), the union retains its representative sta-
tus after the expiration of the contract and the employer re-
mains obligated to bargain, absent an affirmative showing that
the union has lost its majority support. Central Illinois Con-
struction, 335 NLRB 717 (2001).
In Nova Plumbing, Inc., 336 NLRB 633 (2001), enf. denied
330 F.3d 531 (D.C. Cir. 2003), the D.C. Circuit rejected the
Board’s determination that contract language alone can estab-
lish a 9(a) relationship between a union and a construction in-
dustry employer, “at least where, as [there], the record contains
strong indications that the parties had only a Section 8(f) rela-
tionship.” Id. at 537. The Court found that the Board’s reli-
ance on contract language, standing alone, to establish a 9(a)
relationship “runs rough shod” over the principles established
in Ladies Garment Workers v. NLRB (Bernhard-Altmann), 366
U.S. 731 (1961). In Bernhard-Altmann, the Supreme Court
found that a 9(a) collective-bargaining agreement that recog-
nizes a union as an exclusive bargaining representative must
fail in its entirety where, at the time the agreement was signed
only a minority of the employees actually authorized the union
to represent them.
In the subject case, while the recognition agreement dated
March 23, 2001, clearly states that Respondent King’s recog-
nized the Union as the 9(a) representative of its employees, the
record evidence contravenes that assertion.
In this regard, based on the uncontroverted facts that Re-
spondent King’s had no employees in its employ on March 23,
2001, when the recognition agreement was executed nor was it
even doing business, I find contrary to the General Counsel and
the Charging Party that the bargaining relationship established
on that date was not governed by Section 9(a) of the Act.
Brannan Sand & Gravel Co., 289 NLRB 977, 982 (1988) (the
Board held that it was appropriate to inquire into the establish-
ment of construction industry bargaining relationships outside
the 10(b) period). Indeed, on March 23, 2001, it was impossi-
ble for employees of Respondent King’s to establish that a clear
majority designated the Union as their bargaining representa-
tive. Moreover, the recognition language found in the March
23, 2001 agreement does not state that Respondent King’s
recognition was based on a contemporaneous showing or offer
by the Union to show, that the Union had majority support as
required by Central Illinois. Accordingly, it cannot conclusive-
ly be found that the language in the recognition agreement es-
tablished a 9(a) relationship. Rather, I find that the parties on
March 23, 2001, established an 8(f) collective-bargaining rela-
tionship. In summary, I find only that the recognition agree-
ment dated March 23, 2001, did not exclusively establish a 9(a)
bargaining relationship.
As set forth in Central Illinois, the parties to an 8(f) agree-
ment can convert their relationship to 9(a) in any one of three
ways. The union can obtain a majority vote in a Board elec-
tion; an employer can make an “immediate” grant of 9(a)
recognition when the union proffers a showing of majority
support; or the parties can rely on a third option––agree on
contract recognition language committing the employer to rec-
ognize the union as 9(a) representative if and when the union
proffers a showing of majority support during the contract’s
term, with the union subsequently making the required show-
ing.
The evidence shows that on January 18, 2005, Respondent
King’s voluntarily executed a 9(a) recognition agreement by
which it “freely and unequivocally acknowledged that it had
verified the Union’s status as the exclusive bargaining repre-
sentative of its employees pursuant to Section 9(a) of the Act
and the Union offered to provide the Employer with confirma-
tion of its support by a majority of such employees.” That lan-
guage comports with the Central Illinois criteria established by
the Board to attain 9(a) status.7 Additionally, when Respondent
King’s joined the NFSA national multiemployer bargaining
unit for the purpose of negotiating the April 1, 2007, through
March 31 agreement, it reaffirmed its 9(a) relationship with the
Charging Party. In this regard, the NFSA/Charging Party col-
lective-bargaining agreement that Respondent King’s executed
on April 1, 2007, was governed by Section 9(a) by virtue of the
1954 Board representation “RC” certification. Therefore, Re-
spondent King’s merged its preexisting 9(a) single-employer
unit into the multiemployer bargaining unit and relationship.
Although Respondent King’s withdrew from the multiemployer
bargaining unit prior to April 2010 for purposes of bargaining
the 2010–2013 collective-bargaining agreement, it did so as a
9(a) employer contractor. Jim Kelley’s Tahoe Nugget, 227
NLRB 357 (1976), enfd. 584 F.2d 293 (9th Cir. 1978), cert.
denied 430 U.S. 933 (1979).
Section 10(b) of the Act precludes inquiry as to the lawful-
ness of recognition granted under Section 9(a) of the Act out-
side the 10(b) period that was not challenged within the 10(b)
period. Machinists Local 1424 (Bryan Mfg. Co.) v. NLRB, 362
U.S. 411 (1960); Strand Theatre of Shreveport Corp., 346
NLRB 523, 53–537 (2006), enfd. 493 F.3d 515 (5th Cir. 2007).
Likewise, an employer that has designated a multiemployer
association as its collective-bargaining representative will be
bound by any agreement reached by the association, but the
agreement will not be binding as anything other than an 8(f)
agreement in the absence of showing that a majority of the
employees in the employer’s covered work force has manifest-
ed their support for the union before the employer became
bound by the agreement. Comtel Systems Technology, Inc., 305
NLRB 287 (1991). Here, the evidence conclusively establishes
that in 2005 and 2007, a majority of Respondents employees
expressed their support for the Union.
The Board has also held that, the presumption of majority
status flowing from the contract in a multiemployer unit sur-
vives a respondent employer’s timely withdrawal from that unit
In Casale Industries, 311 NLRB 951, 953 (1983), the Board
held that:

Parties in nonconstruction industries, who have established
and maintained a stable Section 9 relationship, are entitled to
protection against a tardy attempt to disrupt their relationship.

7 H. Smith knew that a majority of his employees supported the Un-
ion as their collective-bargaining representative pursuant to Respondent
King’s benefit contribution report that it submitted to the Union in
January 2005 (GC Exh. 5).
KING’S FIRE PROTECTION, INC. 1553

Parties in the construction industry are entitled to no less pro-
tection. Accordingly, if a construction industry employer ex-
tends 9(a) recognition to a union, and 6 months elapses with-
out a charge or petition, the Board should not entertain a claim
that majority status was lacking at the time of recognition.

The Board explained that a contrary rule would mean that
longstanding relationships would be vulnerable to attack, and
stability in labor relations would be undermined.
Under these circumstances, and particularly noting that Re-
spondents have not raised a challenge to the 9(a) recognition of
the Union in a timely manner, I find that the collective-
bargaining relationship between Respondents and the Union
has been since 2005, and is currently governed, by Section 9(a)
of the Act.
Based on the above, I find that the Respondents violated
Section 8(a)(5) and (1) of the Act when they withdrew recogni-
tion from the Union, repudiated the collective-bargaining
agreement, and ceased making contributions to the contractual
benefit funds.
3. Refusal to select an arbitrator
The Acting General Counsel alleges that on or about March
25 and August 24, the Union by mail requested that Respondent
King’s participate in the grievance and arbitration procedure by
selecting an arbitrator per the procedure in article 25 of the
parties’ collective-bargaining agreement (GC Exh. 10). In its
answer to the complaint, Respondents admit that it did not par-
ticipate in the grievance arbitration process to select an arbitra-
tor.
Discussion
Based on my finding above that the parties had a 9(a) bar-
gaining relationship, the obligation to negotiate continues after
the contracts expiration unless and until the Union is shown to
have lost majority support. Levitz Furniture Co., 333 NLRB
717 (2001). Here, not only did the Respondents refuse to par-
ticipate in selecting an arbitrator which it admits while the col-
lective-bargaining agreement was still in effect, it also refused
to engage in the selection process after its expiration on March
31. Moreover, as found above, the Charging Party remains the
exclusive collective-bargaining representative of Respondents
employees.
Accordingly, I find that the Respondents violated Section
8(a)(5) and (15) of the Act when it refused to participate in the
selection of an arbitrator as required under article 25 of the
parties’ collective-bargaining agreement. Oliver Insulating
Co., 309 NLRB 725 (1992); City Cartage Co., 266 NLRB No.
80 (1983) (not reported in Board volumes).
CONCLUSIONS OF LAW
1. Respondents are employers engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. By failing and refusing to recognize the Union as the col-
lective-bargaining representative of all employees in the unit
and by failing to apply their collective-bargaining agreement
with the Union, the Respondents as alter egos, violated Section
8(a)(1) and (5) of the Act.
4. By refusing to participate in the selection of an arbitrator
pursuant to the parties’ collective-bargaining agreement, the
Respondents violated Section 8(a)(5) and (1) of the Act.
REMEDY
Having found that the Respondents are alter egos who en-
gaged in certain unfair labor practices, I shall order them to
cease and desist and to take certain affirmative action designed
to effectuate the policies of the Act.
The Respondents shall be required to recognize and, on re-
quest, bargain with the Union as the collective-bargaining rep-
resentative of all employees performing work, as set forth in the
parties’ most recent collective-bargaining agreement. The Re-
spondents shall also be required to make whole the unit em-
ployees for any loss of earnings and other benefits suffered as a
result of the Respondents’ failure to apply the collective-
bargaining agreement between the Association and the Union
as prescribed in Ogle Protection Service, 183 NLRB 682
(1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest as
prescribed in New Horizons, 283 NLRB 1173 (1987), com-
pounded daily as prescribed in Kentucky River Medical Center,
356 NLRB 6 (2010).
Likewise, having found that the Respondents violated Sec-
tion 8(a)(1) and (5) of the Act by failing to continue in effect all
the terms and conditions of their existing collective-bargaining
agreement by failing, since April 1, 2010, to make the contrac-
tually required contributions to the Union’s fringe-benefit funds
set forth in the collective-bargaining agreement, I shall order
the Respondents to make all required benefit fund contributions
since April 1, 2010, including any additional amounts applica-
ble to such funds as set forth in Merryweather Optical Co., 240
NLRB 1213, 1216 fn. 7 (1979).8 In addition, the Respondents
shall reimburse unit employees for any expenses resulting from
the Respondent’s failure to make the required contributions to
the funds, as set forth in Kraft Plumbing & Heating, 252 NLRB
891 fn. 2 (1980), enfd. mem. 661 F.2d 940 (9th Cir. 1981),
Such amounts are to be computed in the manner set forth in
Ogle Protection Service, supra, with interest as prescribed in
New Horizons, supra, compounded daily as prescribed in Ken-
tucky River Medical Center, supra.
[Recommended Order omitted from publication.]

8 I note, per the parties stipulation, that between April 1 and April 1,
2011, Respondent King’s continued to follow the 2010–2013 collec-
tive-bargaining agreement and made monthly payments to the Union’s
contractual benefit funds. Additionally, during that same period, Re-
spondent King’s remitted employee dues to the Union. Further, the
parties stipulated that Respondent Warrior did not apply the 2007–2010
collective-bargaining agreement to its employees. Accordingly, under
these circumstances, I will leave to compliance the amount of benefit
fund contributions that are due and owing to Respondents’ employees.