ROAD SPRINKLER FITTERS LOCAL UNION NO. 669, UA., AFL-CIO (Firetrol Protection Systems, Inc.)

National Labor Relations Board - Board Decisions

May 23, 2017

365 NLRB No. 83 (N.L.R.B. 2017)

365 NLRB No. 83
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Road Sprinkler Fitters Local Union 669 and Firetrol
Protection Systems, Inc. and Cosco Fire Protec-
tion, Inc., MX Holdings US, Inc., and CFP Fire
Protection, Inc. Case27–CC–091349
May 23, 2017
DECISION AND ORDER
BY CHAIRMAN MISCIMARRA AND MEMBERS PEARCE
AND MCFERRAN
On August 22, 2013, Administrative Law Judge Mary
Miller Cracraft issued the attached decision. The Re-
spondent, Road Sprinkler Fitters Local Union 669, filed
exceptions and a supporting brief; the General Counsel,
Charging Party Firetrol Protection Systems, Inc.
(Firetrol), and Parties in Interest Cosco Fire Protection,
Inc. (Cosco), MX Holdings US, Inc. (MX), and CFP Fire
Protection, Inc. (CFP) filed answering briefs; and the
Respondent filed replies. The General Counsel filed
cross-exceptions, and the Respondent filed an answering
brief. Firetrol filed cross-exceptions1 and a supporting
brief, the Respondent filed an answering brief, and
Firetrol filed a reply brief.2
The Board has considered the decision and the record
in light of the exceptions, cross-exceptions, and briefs
and has decided to adopt the judge’s rulings, findings,3

1 Parties in Interest Cosco, MX, and CFP joined in Firetrol’s cross-
exceptions.
2 We deny the Respondent’s motion to strike Firetrol’s reply brief
for allegedly containing argument outside the scope of the Respond-
ent’s answering brief. We do, however, at Firetrol’s request, take ad-
ministrative notice of two federal district court decisions involving the
parties: Jones v. Road Sprinkler Fitters Local Union No. 669, U.A.,
AFL–CIO, No. CV13-3015-GHK (JPRx), 2013 WL 553291 (C.D. Cal.
July 24, 2013) (denying the Regional Director’s petition for injunctive
relief under Section 10(l) of the Act); and Road Sprinkler Fitters Local
Union No. 669, U.A., AFL–CIO v. Cosco Fire Protection, Inc., No. SA
CV 12-1596-GHK (JPRx) (C.D. Cal. Aug. 8 (2013) (unpublished order
granting defendants’ motion to stay the plaintiff’s lawsuit to compel
arbitration). Charging Party Firetrol and the Parties in Interest have
requested oral argument. The request is denied as the record and briefs
adequately present the issues and the positions of the parties.
3 The Respondent has in effect excepted to some of the judge’s cred-
ibility findings. The Board’s established policy is not to overrule an
administrative law judge’s credibility resolutions unless the clear pre-
ponderance of all the relevant evidence convinces us that they are in-
correct. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
We deny the Respondent’s suggestion that we defer this unfair labor
practice case for resolution in the first instance to the Respondent’s
grievance-arbitration procedures pursuant to Collyer Insulated Wire,
192 NLRB 837 (1971). We find deferral to be inappropriate for several
reasons. First, Firetrol, CFP, and MX have no bargaining relationship
and conclusions as modified herein, to amend the reme-
dy, and to adopt the judge’s recommended Order as mod-
ified and set forth in full below.4
ORDER
The National Labor Relations Board orders that the
Respondent, Road Sprinkler Fitters Local Union 669, its
officers, agents, and representatives, shall

with the Respondent, and they are not party to a collective-bargaining
agreement requiring them to arbitrate disputes with the Respondent.
Moreover, while Cosco has a bargaining relationship with the Union as
to its own unit employees, and Addendum C to that agreement contains
an arbitration provision, the dispute here does not involve Cosco’s unit
employees, but rather Firetrol’s employees in Denver, Colorado. Fur-
thermore, this case involves allegations of secondary pressure under the
Act, which are not well suited to resolution by arbitration. See, e.g.,
Iron Workers Pacific Northwest Council (Hoffman Construction), 292
NLRB 562, 577–578 (1989); Elevator Constructors (Long Elevator),
289 NLRB 1095, 1097 (1988), enfd. 902 F.2d 1297 (8th Cir. 1990).
There is no merit to the Respondent’s argument that under Bill John-
son’s Restaurants v. NLRB, 461 U.S. 731 (1983), and BE & K Con-
struction Co., 351 NLRB 451 (2007), the First Amendment precludes
the Board from finding that the Respondent violated the Act because its
grievance and lawsuit allegedly are reasonably based. Under Bill John-
son’s Restaurants and its progeny, the Board may find that pursuit of a
reasonably based grievance and lawsuit violates the Act where the
object thereof is illegal under Federal law. Bill Johnson’s, 461 U.S. at
737 fn. 5; see, e.g., Elevator Constructors (Long Elevator), 289 NLRB
at 1095. For example, where a respondent files a grievance and lawsuit
to exert secondary pressure on a neutral employer, the Board may
properly find a violation under the “footnote 5 exception” to Bill John-
son’s, and we do so here. Iron Workers (Southwestern Materials &
Supply, Inc.), 328 NLRB 934, 935–936 (1999). We note, however, that
the judge erred in suggesting that the Respondent bore the burden of
demonstrating that its grievance and lawsuit were reasonably based.
See, e.g., Milum Textile Services Co., 357 NLRB 2047, 2053 (2011).
That error, however, did not affect the disposition of this case.
In her decision, Conclusions of Law, and Remedy, the judge stated
that the Respondent violated Sec. 8(e) as well as Sec. 8(b)(4)(ii)(A) and
(B) of the Act by pursuing its grievance and lawsuit. This is under-
standable, since a violation of Sec. 8(b)(4)(ii)(A) requires a predicate
8(e) finding. See Teamsters Local 560 (County Concrete Corp.), 362
NLRB No. 183, slip op. at 1–2 (2015). However, the complaint does
not allege that the Respondent violated Sec. 8(e), and the parties agree
that the judge’s statement was inadvertent. Therefore, because we find
that the Respondent violated only Sec. 8(b)(4)(ii)(A) and (B), we have
amended the judge’s decision, Conclusions of Law, and Remedy ac-
cordingly.
4 We deny Firetrol’s exceptions to the judge’s failure to order certain
enhanced remedies as it has not cited any record evidence in support of
this request or otherwise demonstrated why the Board’s traditional
remedies are insufficient here. We shall, however, modify the judge’s
recommended Order to provide for electronic notice posting pursuant to
J. Picini Flooring, 356 NLRB 11 (2010), and to conform to the Board’s
standard remedial language. We shall also substitute new notices to
conform to the Order as modified and in accordance with our decision
in Durham School Services, 360 NLRB 694 (2014). Finally, although
we decline Firetrol’s request that we take administrative notice of its
proffered photographic evidence of the Respondent’s website, we note
that Firetrol will have an opportunity at the compliance stage of this
proceeding to introduce evidence of any electronic means by which the
Respondent typically communicates with its members.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from
(a) Seeking to enforce or apply through grievance, ar-
bitration, or litigation Addendum C of its collective-
bargaining agreement with Cosco Fire Protection, Inc.
(Cosco), Party in Interest, where an object thereof is to
threaten, restrain, or coerce Cosco, MX Holdings US,
Inc. (MX), CFP Fire Protection, Inc. (CFP), or any other
person to refuse to do business with Firetrol Protection
Systems, Inc. (Firetrol) or to force or require Firetrol to
recognize and bargain with the Respondent as the repre-
sentative of Firetrol’s employees even though the Re-
spondent has not been certified as the bargaining repre-
sentative of the employees under the provisions of Sec-
tion 9 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Withdraw the grievance and arbitration demand
giving rise to this case, seek dismissal of the lawsuit, and
reimburse Firetrol, Cosco, CFP, and MX for all reasona-
ble expenses and legal fees, with interest, incurred in
defending against the Respondent’s grievance and law-
suit as prescribed in the remedy section of the judge’s
decision.
(b) Within 14 days after service by the Region, post at
the Respondent’s business office a copy of the attached
notice marked “Appendix.”5 Copies of the notice, on
forms provided by the Regional Director for Region 27,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to members are cus-
tomarily 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 electronic means, if the Respondent custom-
arily communicates with its members by such means.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material.
(c) Within 14 days after service by the Region, deliver
to the Regional Director for Region 27 signed copies of
the notice in sufficient numbers for posting by Firetrol,
Cosco, CFP, and MX, if willing, at places where they
customarily post notices to their employees.
(d) Within 21 days after service by the Region, file
with the Regional Director for Region 27 a sworn certifi-
cation of a responsible official on a form provided by the

5 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.”
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. May 23, 2017
______________________________________
Philip A. Miscimarra, Chairman
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated 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 on your behalf
with your employer
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT seek to enforce or apply through griev-
ance, arbitration, or litigation Addendum C of our collec-
tive-bargaining agreement with Cosco Fire Protection,
Inc. (Cosco), where an object thereof is to threaten, re-
strain, or coerce Cosco, MX Holdings US, Inc. (MX),
CFP Fire Protection, Inc. (CFP), or any other person to
refuse to do business with Firetrol Protection Systems,
Inc. (Firetrol) or to force or require Firetrol to recognize
and bargain with us as the representative of Firetrol’s
employees even though we have not been certified as the
bargaining representative of the employees under the
provisions of Section 9 of the National Labor Relations
Act.
WE WILL withdraw the grievance and arbitration de-
mand giving rise to this case, seek dismissal of the law-
suit, and reimburse Firetrol, Cosco, CFP, and MX for all
ROAD SPRINKLER FITTERS LOCAL UNION 669 3
reasonable expenses and legal fees, with interest, in-
curred in defending against the grievance and the lawsuit.
ROAD SPRINKLER FITTERS LOCAL UNION 66
The Board’s decision can be found at
www.nlrb.gov/case/27–CC–091349 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington,
D.C. 20570, or by calling (202) 273–1940.
Kristyn Myers, Esq. and Michele Divitt, Esq., for the General
Counsel.
William Osborne, Esq., for the Respondent.
Mark Ross, Esq., for the Charging Party.
James Seversen, Esq., for the Parties in Interest.
DECISION
MARY MILLER CRACRAFT, Administrative Law Judge.
Charging Party Firetrol Protection Systems, Inc. (Firetrol), a
nonunion company, closed its Denver facility while a represen-
tation petition was pending. The petition was filed by Road
Sprinkler Fitters Local Union 669 (Respondent or the Union).
At the time of the Denver Firetrol facility closure, Cosco Fire
Protection, Inc. (Cosco), a sister company of Firetrol, had a
collective-bargaining agreement with the Union. Addendum C
of that agreement contained a work preservation clause and a
facially valid antidual shop clause.1 At issue is whether the
Union violated Section 8(b)(4)(ii)(A) and (B) when it filed a
grievance against Cosco, Firetrol, and their parent company
MX Holdings US, Inc. (MX) and a Federal lawsuit to compel
arbitration of the grievance against Cosco, another sister com-
pany CFP Fire Protection, Inc. (CFP), and MX seeking to en-
force Addendum C of its collective-bargaining agreement with
Cosco. I find that the Union violated the Act as alleged in the
complaint.
The underlying unfair labor practice charge was filed by
Firetrol on October 15, 2012. Complaint issued on April 10,
2013. Hearing was on May 1 and 2, 2013, in Denver, Colora-
do. On the entire record, including my observation of the de-
meanor of the witnesses,2 and after considering the excellent

1 In Road Sprinkler Fitters Local 669 (Cosco Fire Protection, Inc.),
357 NLRB 2140 (2011), the Board held that the antidual shop provision
of Addendum C had a lawful primary purpose and was facially valid.
2 Credibility resolutions have been made based upon a review of the
entire record and all exhibits in this proceeding. Witness demeanor and
briefs filed by counsel for the Acting General Counsel, counsel
for the Charging Party, counsel for the Parties in Interest, and
counsel for the Respondent, I make the following findings of
fact and conclusions of law.
JURISDICTION
Respondent admits and I find that Firetrol and Cosco are
corporations which substantially affect interstate commerce
under the Board’s nonretail direct inflow standard.3 Respond-
ent admits and I find that MX and CFP are corporations which
substantially affect commerce under the Board’s nonretail di-
rect outflow standard.4 Respondent admits and I find that
Firetrol, Cosco, MX, and CFP are employers within the mean-
ing of Section 2(2), (6), and (7) of the Act. Respondent admits
and I find that it is a labor organization within the meaning of
Section 2(5) of the Act. Thus, I find that this dispute affects
commerce and that the Board has jurisdiction of this case pur-
suant to Section 10(a) of the Act.
Corporate Relationships
Firetrol, Cosco, and CFP are wholly owned subsidiaries of
MX. In March 2012, the directors of MX were Ted Carrier,
Thomas Krausch, and Klaus Hofmann. Ted Carrier is also the
chief financial officer of MX, secretary of Firetrol, and a direc-
tor of CFP. Meghan Guida served as assistant director of MX
and as secretary of both Cosco and CFP until April 1, 2013. As
senior manager at MX, Ted Carrier reports directly to Minimax
International GMBH (Minimax)5 CEO and MX Director Klaus
Hofmann. The presidents of Cosco, Firetrol, and CFP also
report directly to Klaus Hofmann. There is no overlap of man-
agers or supervisors between MX, Cosco, Firetrol, or CFP and
each entity operates independently.
Each entity has its own human resources manager who re-
ports to senior management at their respective company. MX
provides limited advice to its subsidiaries regarding ERISA and
U.S. tax law compliance but each entity is free to adopt its own
employment policies. MX negotiates benefits of scale for its
subsidiaries through a third party broker but each entity makes
final decisions regarding their own employees’ benefits plan
and is independently responsible for the costs of the plan cho-
sen.
MX provides several administrative services to its subsidiar-
ies, but it does not manage daily operations. MX provides IT
support and networking services as well as financial services
including auditing, accounting, and bonding. However, each
subsidiary is responsible for a pro rata share of those services;
each maintains its own equipment, servers, and company web-
site; and each exercises independent authority over its financial
operations. Additionally, MX and CFP share office space in

inherent probability of the testimony have been utilized to assess credi-
bility. Testimony contrary to my findings has been discredited on some
occasions because it was in conflict with credited testimony or docu-
ments or because it was inherently incredible and unworthy of belief.
3 Siemens Mailing Service, 122 NLRB 81, 85 (1958) (nonretail di-
rect inflow standard set at $50,000 in goods shipped or services fur-
nished by the employer outside the State).
4 Id. (nonretail direct outflow standard set at $50,000 in purchase of
goods or services from outside the State).
5 Minimax owns 100 percent of MX.
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Irvine, California at 17461 Derien Avenue, Suite 114. Howev-
er, a wall separates the entities from one another and each enti-
ty pays for its share of office space.
Cosco and Firetrol are both full-service fire protection pro-
viders but they operate from different geographic areas and
serve separate markets. Cosco does not hold a license to do
business in any state in which Firetrol operates, including Colo-
rado. There is no interchange of employees or subcontracting
of work between Cosco and Firetrol. Cosco and Firetrol do not
discipline, hire, fire, assign, or direct the work of one another’s
employees. Additionally, as a member of the multiemployer
association National Fire Sprinkler Association, Inc. (NFSA),
Cosco has been party to a series of collective-bargaining
agreements with the Union.
CFP manages service of fire protection systems for clients on
a national scale but it does not engage in actual performance of
work and does not employ sprinkler fitters. Instead, CFP sub-
contracts the service work to over 700 companies, including
Cosco and Firetrol. CFP’s dealings with Cosco and Firetrol are
conducted at arm’s length using a bidding process that awards
contracts based on price, quality, and estimated completion
time. Cosco and Firetrol have complete and independent dis-
cretion to decline work offered by CFP. In 2012, Cosco and
Firetrol were each responsible for about 15–20 percent of
CFP’s revenues. Conversely, CFP subcontracts accounted for
approximately 5 percent of Cosco’s revenues and 5.5 percent of
Firetrol’s revenues.
The Underlying Dispute
Firetrol installs, repairs, and services fire suppression sys-
tems and alarms in the States of Alabama, Arizona, Louisiana,
Oklahoma, Texas, and Utah. Until June 26, 2012,6 Firetrol also
operated a facility in Denver, Colorado. Cosco installs, repairs,
and services fire suppression systems and alarms in the States
of California, Oregon, Washington and Nevada. Cosco and the
Union have had a bargaining relationship since 1959. At the
time of this dispute, Cosco was bound by the agreement be-
tween NFSA and the Union effective April 1, 2010, to March
31, 2013.
Prior to the June 26 closing of the Denver facility, the Union
filed a Petition for Representation (Case 27–RC–080251)7 on
May 12 seeking to represent Firetrol’s sprinkler fitter employ-
ees. On June 15, Region 27 issued a Decision and Direction of
Election. However, as stipulated by the parties, before the elec-
tion was held, Firetrol discharged its Denver employees, closed
its Denver facility on June 26, and ceased serving clients in the
Colorado market.8
Thereafter, according to the parties’ stipulation, the Union
filed a grievance on July 18, against Firetrol and Cosco as well
as parent company MX, which it initially erroneously named as

6 All dates are in 2012 unless otherwise referenced.
7 The petition set forth a unit of all full-time and regular part-time
suppression employees engaged in the installation, maintenance, and/or
repair of automatic fire protection systems at Firetrol’s Denver, Colora-
do facility.
8 There is no unfair labor practice allegation before me regarding the
plant closure. Respondent withdrew an unfair labor practice charge
regarding the closure.
Consolidated Fire Protection LLC (CFP LLC),9 alleging a vio-
lation of Addendum C of the contract between the Union and
Cosco. The grievance stated it was filed on behalf of the Den-
ver Firetrol employees and claimed the decision to discontinue
operations at the Denver facility was in retaliation for Firetrol
employees’ union activity. The grievance further claimed that
the Denver closure violated Cosco’s collective-bargaining
agreement with the Union. The grievance requested arbitration,
restoration of the status quo, and making affected employees
economically whole.
Addendum C provides in relevant part:
PRESERVATION OF BARGAINING UNIT WORK
In order to protect and preserve for the employees cov-
ered by this Agreement all work historically and tradition-
ally performed by them, and in order to prevent any device
or subterfuge to avoid protection or preservation of such
work, it is hereby agreed as follows: If and when the Em-
ployer shall perform any work of the type covered by this
Agreement as a single or joint Employer (which shall be
interpreted pursuant to applicable NLRB and judicial prin-
ciples) within the trade and territorial jurisdiction of Local
669, under its own name or under the name of another, as
a corporation, sole proprietorship, partnership, or any oth-
er business entity including a joint venture, wherein the
Employer (including its officers, directors, owners, part-
ners or stockholders) exercises either directly or indirectly
(such as through family members) controlling or majority
ownership, management or control over such other entity,
the wage and fringe benefit terms and conditions of this
Agreement shall be applicable to all such work performed
on or after the effective date of this Agreement shall be
applicable to all such work performed on or after the ef-
fective date of this Agreement. The question of single
Employer status shall be determined under applicable
NLRB and judicial principles, i.e., whether there exists be-
tween the two companies an arm’s length relationship as
found among unintegrated companies and/or whether
overall control over critical matters exists at the policy
level. The parties hereby incorporate the standard adopted
by the Court in Operating Engineers Local 627 v. NLRB,
518 F.2d 1040 (D.C. Cir. 1975) and affirmed by the Su-
preme Court, 425 U.S. 800 (1976), as controlling. A joint
employer, under NLRB judicial principles, is two inde-
pendent legal entities that share, codetermine, or meaning-
fully affect labor relations matters.
* * * * * * * * * * * * * * * * *
In the event that the Union files, or in the past has
filed, a grievance under article 3 of this or a prior national
agreement, and the grievance was not sustained, the Union
may proceed under the following procedures with respect
to the contractor(s) involved in the grievance:

9 CFP LLC no longer exists. It merged into MX in 2010.
ROAD SPRINKLER FITTERS LOCAL UNION 669 5
Should the Employer establish or maintain operations
that are not signatory to this Agreement, under its own
name or another or through another related business entity
to perform work of the type covered by this Agreement
within the Union’s territorial jurisdiction, the terms and
conditions of this Agreement shall become applicable to
and binding upon such operations at such time as a majori-
ty of employees of the entity (as determined on a state-by-
state, regional or facility-by-facility basis consistent with
NLRB unit determination standards) designates the Union
as their exclusive bargaining representative on the basis of
their uncoerced execution of authorization cards, pursuant
to applicable NLRB standards, or in the event of a good
faith dispute over the validity of the authorization cards,
pursuant to a secret ballot election under the supervision of
a private independent third party to be designated by the
Union and the NFSA within thirty (30) days of ratification
of this Agreement. The Employer and the Union agree not
to coerce employees or to otherwise interfere with em-
ployees in their decision whether or not to sign an authori-
zation card and/or to vote in a third party election.
On September 21, the Union filed a lawsuit in U.S. District
Court for the Central District of California (Case No. CV-12-
1596-GHK (JPRx) against Cosco and MX (as Cosco’s parent)
to compel arbitration of its July 18 grievance. On November
13, the Union amended its complaint to add CFP as a defend-
ant. In the amended complaint, the Union averred that MX is
the parent of Cosco and Firetrol; that Cosco, Firetrol, and MX
are single and/or joint employer; that Cosco is the agent of MX;
and that MX exercises its single and/or joint employer status as
to Cosco and Firetrol through CFP. At the time of hearing, the
lawsuit was still pending.
Analysis
Firetrol, Cosco, CFP, and MX do not constitute a
single employer
Firetrol, Cosco, CFP, and MX are separate corporate entities.
However, if they have substantial common ownership, common
management, integration of operations, and centralized control,
particularly over labor relations, they may constitute a single
employing entity.10 If they are a single employing entity, there
is no neutral status afforded them and no secondary objective
can be present. Respondent argues that, in fact, these entities
are a single employer. The record does not support that argu-
ment.
Although three of the companies are commonly owned by
the fourth, the companies do not possess common management.
They have no interrelationship of operations, and do not pos-
sess any centralized control of labor relations. Under similar
circumstances, the Board has found that no single employer
status was present. See, e.g., Alabama Metal Products, Inc.,
280 NLRB 1090 (1986) (common ownership and interrelation
of operations insufficient); Western Union Corp., 224 NLRB
274 (1976), affd. sub nom. Telegraph Workers v. NLRB, 571

10 Radio & Television Broadcast Technicians Local 1264 v. Broad-
cast Service of Mobile, 380 U.S. 255, 256 (1965).
F.2d 665 (D.C. Cir.), cert. denied 439 U.S. 827 (1978) (alt-
hough common corporate officers and significant control over
budget and selection of officers and directors, no common con-
trol of labor relations existed; thus no single employer status). I
conclude that these four entities are separate and distinct from
one another and, although commonly owned, do not constitute
a single employer. See, e.g., Los Angeles Newspaper Guild
(Hearst Corp.), 185 NLRB 303, 304 (1970) (separate corporate
subsidiaries are separate persons, each entitled to the protection
of 8(b)(4) from the labor disputes of the other if there is no
actual control over day-to-day operations or labor relations of
the other).
Respondent’s grievance and lawsuit have an unlawful object
under Section 8(b)(4)(ii)(A): seeking to apply Cosco’s Adden-
dum C to Firetrol, CFP, and MX– entities whose labor relations
Cosco does not control
Section 8(b)(4)(ii)(A) provides, as relevant, that it is an un-
fair labor practice for a union to threaten, coerce, or restrain any
person11 with an object of forcing or requiring any employer to
enter into an agreement prohibited by Section 8(e).
Section 8(e) provides:
It shall be an unfair labor practice for any labor organization
and any employer to enter into any contract or agreement, ex-
press or implied, whereby such employer ceases or refrains or
agrees to cease or refrain from handling, using, selling, trans-
porting or otherwise dealing in any of the products of any oth-
er employer, or to cease doing business with any other person,
and any contract or agreement entered into heretofore or here-
after containing such an agreement shall be to such extent un-
enforceable and void. . . .
In Road Sprinkler Fitters, supra, 357 NLRB 2140, 2142, the
Board, construed the literal language of the second clause of
Addendum C to comport with Section 8(e) if possible. Reading
Addendum C in that manner, the Board held that Addendum C
has, on its face, a primary objective because the language “es-
tablish or maintain” does not clearly extend to entities outside
the signatory employer’s control. Id. The Board was asked
only to construe the literal language of Addendum C. No ap-
plication of Addendum C was at issue. The case before me is
different in that application of Addendum C must now be ex-
amined.

As the Court explained, NLRB v. ILA, 447 U.S. 490, 504–505
(1980):
[A] lawful work preservation agreement must pass two tests:
First, it must have as its objective the preservation of work
traditionally performed by employees represented by the un-
ion. Second, the contracting employer must have the power to
give the employees the work in question –the so-called “right
of control” test of Pipefitters, supra [NLRB v. Pipefitters, 429
U.S. 507, 517 (1977)]. The rationale of the second test is that

11 Sec. 2(1) of the Act, 29 U.S.C. 152(1), defines “person” to in-
clude, inter alia, corporations. Sec. 8(b)(4) requires that a person
threatened, coerced, or restrained be engaged in commerce or in an
industry affecting commerce. The parties agree that each of the four
corporations are engaged in commerce within the meaning of the Act.
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
if the contracting employer has no power to assign the work,
it is reasonable to infer that the agreement has a secondary ob-
jective, that is, to influence whoever does have such power
over the work. “Were the latter the case, [the contracting em-
ployer] would be a neutral bystander, and the agreement or
boycott would, within the intent of Congress, become second-
ary.” National Woodwork, supra [National Woodwork Manu-
facturers Assn v. NLRB, 386 U.S. 612 (1967)] at 644–645.
Of course, the Union claims that Addendum C cannot consti-
tute an 8(e) clause because it has already been held a lawful
clause in Road Sprinkler Fitters, supra. I disagree. The Board
found the language of the second clause lawful to preserve unit
work only if limited to “bargaining unit work performed by the
subject entities and the signatory employer controls the covered
entities.” (Slip opinion at 3). There is no evidence that neutral
employers Cosco, CFP, and MX have control over primary
employer Firetrol. In fact, the evidence is to the contrary and
indicates that although Cosco, CFP, and Firetrol are commonly
owned by MX, they are separate independent corporations.
Lacking such control, the objective is secondary. NLRB v. ILA,
supra, 447 U.S. at 511. Thus, it is clear that Respondent is not
seeking to preserve work performed by employees of Cosco,
the employer bound to Addendum C. Rather, Respondent is
seeking to acquire work from Firetrol, an entity not controlled
by Cosco See, Iron Workers (Southwestern Materials), 328
NLRB 934, 936 (1999). Filing the grievance to enforce Ad-
dendum C runs afoul of 8(e) in that Cosco, CFP, and MX are
neutrals in the Union’s dispute with Firetrol. Similarly, the
lawsuit against neutrals Cosco, CFP, and MX to enforce arbi-
tration of the grievance has an acquisitive object.
Filing of the Grievance and Filing and Maintenance of the
Lawsuit have unlawful objects pursuant to Section
8(b)(4)(ii)(B)
I have found, supra, that the grievance and lawsuit were in-
tended to enmesh neutral corporations Cosco, CFP, and MX in
a dispute between the Union and Firetrol. This constitutes a
cease doing business objective prohibited by Section
8(b)(4)(ii)(B). NLRB v. Local 825 Operating Engineers (Burns
and Roe), 400 U.S. 297, 304–305 (1971) (cease doing business
objective need not mean a complete cessation of business. It
can mean an interference with business, consistent with en-
meshing neutrals in a dispute not their own).
Further, it is clear that an object of the grievance and lawsuit
was to require Firetrol to recognize the Union even though the
Union was not certified as the Section 9 representative of
Firetrol’s employees. The documents speak for themselves.
The grievance was filed on behalf of the fire protection em-
ployees of Firetrol’s Denver facility. The grievance asserts that
these employees are covered by the terms of the Union’s na-
tional agreement by operation of Addendum C and requests
restoration of the status quo ante—an object that could be
achieved only by reopening Firetrol’s Denver facility and re-
employing the unit employees. As the General Counsel points
out, union counsel confirmed this objective in a position state-
ment submitted to the Region on November 16, 2012. For all
of these reasons, I find that filing and maintenance of the griev-
ance and lawsuit have an unlawful cease doing business object
and an unlawful representation object within the meaning of
Section 8(b)(4)(ii)(B).12
The Grievance and Lawsuit Constitute Unlawful Means
pursuant to Section 8(b)(4)(ii)(A) and (B)
The Union’s grievance and lawsuit to enforce a collective-
bargaining agreement are predicated on a reading of Addendum
C that converts it into a prohibited 8(e) agreement. Use of the
grievance procedure and the court system in this manner consti-
tute unlawful means pursuant to Section 8(b)(4)(A). Elevator
Constructors (Long Elevator), 289 NLRB 1095 (1988). Simi-
larly, the grievance and lawsuit to enmesh neutrals and seeking
representation of Firetrol’s Denver employees constitute unlaw-
ful means pursuant to 8(b)(4)(B). See, e.g., Sheet metal Work-
ers Local 27 (AeroSonics, Inc.), 321 NLRB 540 (1996).
I reject Respondent’s claim that it did not threaten, coerce or
restrain neutral employers Cosco, CFP, and MX because the
filing of an arguably meritorious grievance or lawsuit cannot
violate the Act. Respondent’s argument is not supported by the
record. Respondent did not present any evidence to show that
the grievance and lawsuit were arguably meritorious. Moreo-
ver, a lawsuit or grievance with an unlawful object is exempted
from the holdings of Bill Johnson’s Restaurants v. NLRB, 461
U.S. 731 (1983), pursuant to footnote 5. Id., 461 U.S. at 737 fn.
5 (suit with illegal object exempt from holding); see also Dil-
ling Mechanical Contractors, Inc., 357 NLRB 544 (2011)
(Board’s authority to find violation if lawsuit brought for illegal
objective not affected by BE&K Construction Co. v. NLRB, 536
U.S. 516 (2002)).
CONCLUSIONS OF LAW
By filing a grievance and lawsuit and actively pursuing liti-
gation of the lawsuit, Respondent has threatened, coerced, or
restrained Cosco, MX, and CFP to refuse to do business with
Firetrol. The objects of this conduct have been in part to force
or require Cosco to apply Addendum C in a manner that would
convert that otherwise facially valid clause into an agreement
prohibited by Section 8(e), to force Cosco, CFP, and MX to
cease doing business with Firetrol, and to force Firetrol to rec-
ognize and bargain with Respondent as the representative of
Firetrol’s employees even though Respondent has not been
certified as the representative of the employees under the provi-
sions of Section 9 of the Act. This conduct violates Section
8(b)(4)(ii)(A) and (B) and 8(e) of the Act. These unfair labor
practices affect commerce within the meaning of Section 2(6)
and (7) of the Act.
REMEDY
Having found that Respondent has engaged in and is engag-
ing in unfair labor practices within the meaning of Section
8(b)(4)(ii)(A) and (B) and 8(e), Respondent must withdraw its
grievance and seek dismissal of its lawsuit. Further, because

12 Respondent’s motion to reopen the record because the General
Counsel has raised a new theory of violation is denied. The four docu-
ments which Respondent seeks to introduce are rendered irrelevant
because the General Counsel did not raise a fourth theory of the viola-
tions alleged herein and the General Counsel specifically disavowed
such a theory.
ROAD SPRINKLER FITTERS LOCAL UNION 669 7
maintenance of the grievance and lawsuit violated the Act,
Respondent must reimburse Firetrol, Cosco, MX, and CFP for
all reasonable expenses and legal fees, with interest, incurred in
defending the grievance and the lawsuit. See, Service Employ-
ees Local 32B-32J (Nevins Realty), 313 NLRB 392, 403
(1993), enfd, 68 F.3d 490, 496 (D.C. Dir. 1995). Interest shall
be computed in accordance with New Horizons, 283 NLRB
1173 (1987), compounded daily as prescribed in Kentucky Riv-
er Medical Center, 356 NLRB 6 (2010).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended13
ORDER
Respondent Road Sprinkler Fitters Local Union 669, its of-
ficers, agents, and representatives shall cease and desist from
seeking to enforce or apply through grievance, arbitration, or
litigation Addendum C of its collective-bargaining agreement
with Cosco Fire Protection, Party in Interest, where an object
thereof is to threaten, restrain, or coerce Cosco, MX, CFP and
other persons to refuse to do business with Firetrol thus re-
straining and coercing Cosco, MS, CFP and other persons, to
force or require Cosco to apply Addendum C in a manner that
would convert that otherwise facially valid clause to an agree-
ment prohibited by Section 8(e), and to force Firetrol to recog-
nize and bargain with Respondent as the representative of
Firetrol’s employees even though Respondent has not been
certified as the representative of the employees under the provi-
sions of Section 9 of the Act.
Respondent shall take the following affirmative action de-
signed to effectuate the purposes of the Act:
1. Withdraw the grievance and arbitration demand giving
rise to this case, seek dismissal of the lawsuit, and reimburse
Firetrol, Cosco, CFP, and MX for all reasonable expenses and
legal fees, with interest, in defending against them as prescribed
in the remedy section.
2. Post at its business office copies of the attached notice
marked “Appendix.”14 Copies of the notice, on forms provided

13 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order, as provided in Section 10.48 of the Rules, shall be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
14 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.”
by the Regional Director for Region 27, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent immediately on receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to members are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material.
3. Furnish the Regional Director for Region 27 signed cop-
ies of such notice for posting by Firetrol Protection Systems,
Inc.
4. Notify the Regional Director in writing within 20 days
from the date of the Order what steps the Respondent has taken
to comply.
Dated, Washington, D.C. August 22, 2013
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain on your behalf with
your employer
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT seek to enforce or apply, through grievance,
arbitration, or litigation, Addendum C of our collective-
bargaining agreement with Cosco Fire Protection, Inc. to em-
ployees of Firetrol Protection Systems, Inc.
WE WILL withdraw the grievance and demand for arbitration
we filed against Cosco Fire Protection, Inc. and Firetrol Protec-
tion Systems, Inc. as well as the lawsuit we filed against Cosco
Fire Protection, Inc., MX Holdings US, Inc., and CFP Fire
Protection, Inc. and WE WILL reimburse them for all reasonable
expenses and legal fees, with interest, incurred by them in de-
fending against the grievance and arbitration demand and the
litigation.
ROAD SPRINKLER LOCAL UNION 669