Road Sprinkler Local 669

National Labor Relations Board - Administrative Judge Opinions

Nov 3, 2008

21-CE-000374 (N.L.R.B. Nov. 3, 2008)

JD(SF)–45–08
(Orange, California)
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE
ROAD SPRINLER FITTERS, UNITED ASSOCIATION
OF JOURNEYMEN AND APPRENTICES OF THE
PLUMBING AND PIPE FITTING INDUSTRY OF THE
UNITED STATES AND CANADA, AFL-CIO, LOCAL 669
and Case 21-CE-374
COSCO FIRE PROTECTION, INC.
and
NATIONAL FIRE SPRINKLER ASSOCIATION, INC.
Party in Interest
and
FIRETROL PROTECTION SYSTEMS, INC.
Party in Interest
Cecelia Valentine, Esq., for the General Counsel.
Alan R. Berkowitz, Esq.,(Bingham McCutchen LLP)
of San Francisco, California, for the Charging Party.
William W. Osborne, Esq. and Jason J. Valtos, Esq.
(Osborne Law Offices) of Washington D.C
for the Respondent.
DECISION
Statement of the Case
WILLIAM G. KOCOL, Administrative Law Judge. This case was tried in Los Angeles,
California, on September 22, 2008.1 The charge and first amended charge were filed by Cosco
Fire Protection, Inc., (“Cosco”) on July 10 and July 24, 2007 and the complaint was issued
July 29.2 The complaint as amended alleges that, on or about April 14, the Road Sprinkler
Fitters, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting
Industry of the United States and Canada, AFL-CIO, Local 669 (“Union”) and Cosco, through its
membership in the National Fire Sprinkler Association (“NFSA”) entered into a collective-
bargaining agreement containing a clause prohibited by Section 8(e). The Union filed a timely

1 That same day the Board issued an Order denying a motion for summary judgment that
the Union had filed.
2 All dates are in 2007 unless otherwise indicated.
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answer that was modified at the hearing and admitted the allegations in the complaint
concerning the filing and service of the charge, jurisdiction, and labor organization status.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel, the Union, and the Charging Party,
I make the following.
Findings of Fact
I. Jurisdiction
Cosco, a corporation, with its principal place of business located in Orange, California,
and operations in California, Washington, Oregon, and Alaska, has been engaged as a
contractor in the construction industry performing the inspection, installation, and repair of fire
suppression devices and alarms. During the calendar year ending December 31, 2006, a
representative period, Cosco, in conducting these business operations, purchased and received
at its Orange, California, facility goods valued in excess of $50,000 directly from points located
outside the State of California. The Union admits and I find that Cosco is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that it is a labor
organization within the meaning of Section 2(5) of the Act.
II. Alleged Unfair Labor Practices
A. Facts
Cosco is owned by Consolidated Fire Protection, LLC (“Consolidated”). Consolidated
also owns Firetrol Protection Systems, Inc. (“Firetrol”). Firetrol, like Cosco, is a contractor in the
construction industry performing the inspection, installation, and repair of fire suppression
devices and alarms. However, Firetrol is a Utah corporation with operations in Utah, Texas,
Colorado, and Arizona.
NFSA is an organization of employers who are engaged in the installation, inspection,
and repair of fire suppression devices and alarms throughout the United States. NFSA
represents its employer-members in collective bargaining with the Union. Alexander Gettler is
vice president of industrial relations and director of human resources for NFSA. Cosco is a
member of NFSA, Firetrol is not. Through its membership in NFSA, Cosco is bound by a
collective-bargaining agreement between the Union and NFSA as part of a multiemployer
bargaining unit effective April 1, 2007 through March 31, 2010. Addendum C to that agreement,
set forth below, contains the language at issue in this case. The first portion of that language is
conceded by the General Counsel to be a lawful work preservation provision; it is the second
portion of Addendum C that the General Counsel contends violated Section 8(e).
PRESERVATION OF BARGAINING UNIT WORK:
In order to protect and preserve for the employees covered by this Agreement all work
historically and traditionally performed by them, and in order to prevent any device or
subterfuge to avoid the protection or preservation of such work, it is hereby agreed as
follows: If and when the Employer 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 principles) within the trade and territorial jurisdiction of
Local 669, (under its own name or the name of another, as a corporation, sole
proprietorship, partnership, or any other business entity including a joint venture, where
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the Employer (including its officers, directors, owners, partners or stockholders) exercise
either directly or indirectly (such as through family members) controlling or majority
ownership, management or control over such 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. The question of single Employer status shall
be determined under applicable NLRB and judicial principles, i.e., whether there exists
between 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
Supreme Court, 425 U.S. 800 (1976), as controlling. A joint employer, under NLRB and
judicial principles, is two independent legal entities that share, codetermine, or
meaningfully affect labor relations matters.
Should the Employer establish or maintain such other entity within the meaning of the
preceding paragraph, the Employer is under an affirmative obligation to notify the Union
of the existence and nature of and work performed by such entity and the nature and
extent of its relationship to the signatory Employer. The supplying of false, misleading,
or incomplete information (in response to a request by the Union) shall not constitute
compliance with this section The Union shall not unreasonable delay the filing of a
grievance under this Article.
The foregoing portion is admittedly lawful. This language, or substantially identical language,
has existed in prior collective bargaining agreements between the Union and NFSA. On about
September 9, 2004, the Union filed a grievance against Cosco. Among other things, the
grievance asserted that the terms of the agreement should be applied to Firetrol because it and
Cosco were a single employer or joint employer. Arbitrator Ira Jaffe heard the grievance in June
2005, and on April 26, 2006, he issued an Arbitration Award denying the grievance in pertinent
part and concluding that Cosco and Firetrol were separate employers commonly owned by
Consolidated. Continuing with the langiage of Addendum C:
In the event that the Union files, or in the past has filed, a grievance under Article 3 of
this or any 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:
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 majority of the 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 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 the ratification of this
Agreement. The Employer and the Union agree not to coerce employees or to
otherwise interfere with employees in their decision whether or not to sign an
authorization card and/or to vote in a third party election. . . .
Because the practice of double-breasting is a source of strife in the sprinkler industry
that endangers mutual efforts to expand market share for union members and union
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employers, it is the intention of the parties hereto that this clause be enforced to the
fullest extent permitted by law. . . .
The forgoing language was added to the most recent collective-bargaining agreement and is at
issue in this case.
B. Analysis
Section 8(e) generally prohibits agreements between employers and unions that require
the employer to cease doing business with any other person. But Supreme Court decisions
instruct that this language is not to be taken literally but instead must be applied to only to those
agreements that have secondary, and not primary, objectives. NLRB v. Longshoremen ILA,
477 U.S. 490 (1980); NLRB v. Pipefitters, 429 U.S. 507 (1977); National Woodwork Mfrs. Assn.,
386 U.S. 612 (1967). In general, a primary objective is one that seeks to preserve unit work
while a secondary objective is one that seeks to expand union goals into nonunit work. Even if
the agreement has a work preservation objective, the employer subject to the agreement must
have the right to control the flow of unit work; if the employer lacks such control then the
objective is deemed secondary. NLRB v. Longshoremen ILA, supra.
In Carpenters District Council of Northeast Ohio (Alessio Construction), 310 NLRB 1023
(1993), the Board addressed the issue of whether a union violated Section 8(b)(3) by insisting to
impasse on the inclusion of the following language in a collective-bargaining agreement that
would violate Section 8(e):
In the event that the partners, stock holders or beneficial owners of the company
form or participate in the formation of another company which engages or will
engage in the same or similar type of in the jurisdiction of this Union and employs
or will employ the same or similar classifications of employees covered by this
Collective Bargaining Agreement, then that business enterprise shall be manned
in accordance with the referral provisions herein and covered by all the terms of
this contract.
The union in that case argued that the clause fell within the construction industry proviso to
Section 8(e). The Board concluded that the provision fell within the literal meaning of Section
8(e) because it was calculated to cause Alessio to sever its ownership relationship with affiliates
that sought to remain nonunion. Next the Board concluded that the provision did not seek to
preserve unit work for the union but rather sought to acquire work the union had not traditionally
performed. In this regard the Board pointed to the absence of any language in the provision
regarding unit work. The Board also concluded that the provision would apply even in situations
where an employer did not have the right to control the flow of unit work. The Board then
addressed whether the provision fell within the construction industry proviso to Section 8(e).
The Board strictly construed the scope of the proviso and concluded that the provision was not
of a type that Congress intended to be covered by the proviso.
In Alessio is Painters District Council 51 (Manganaro Corp.), 321 NLRB 158 (1996) the
disputed provision read:
Section 1. To protect and preserve, for the employees covered by this
Agreement, all work they have performed and all work covered by this
Agreement, and to prevent any device or subterfuge to avoid the protection and
preservation of such work, it is agreed as follows: If the Contractor performs on-
site construction work of the type covered by this Agreement, under its own
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name or the of another, is a corporation, company, partnership,, or other
business entity, including a joint venture, wherein the Contractor, through its
officers, directors, partners, owners, or stockholders exercises directly or
indirectly (including but not limited to management, control or majority ownership
through family membership) management, control, or majority ownership, the
terms and conditions of this Agreement shall be applicable to all such work.
The Board concluded that the provision was facially lawful in that it covered unit work in
circumstances where the employer controlled that work.3
Applying these cases to the agreement at issue here, I first conclude that the language
is designed apply to business entities that perform unit work. The language “to perform work of
the type covered by this agreement within the Union’s territorial jurisdiction” is almost identical to
the language in Manganaro that the Board found was directed at unit work. It follows that the
agreement has a work preservation objective. Next, the agreement on its face applies only
when a signatory employer establishes or maintains operations that perform unit work. On its
face this language clearly can be read to satisfy the “right to control” test. The General Counsel
argues that the “establish or maintain” language cannot be read to require control, but he cites
no case on point. The Charging Party argues that the agreement lacks the requisite element of
control because it could apply to situations where a signatory employer establishes another
employer but thereafter relinquishes the ability to control the flow of unit work of the newly
established employer. But in assessing the facial validity of a clause:
Settled Board law requires us to construe a challenged clause “to require no
more than what is allowed by law” when it is not “clearly unlawful on its face.”
General Teamsters, Local 982 (J. K. Barker Trucking Co.), 181 NLRB 515, 517
(1970), affd. 450 F.2d 1322 (D.C. Cir. 1971). (Emphasis added.)
Heartland Industrial Partners, 348 NLRB 1081, 1084 (2006).
The Charging Party also contends that:
[H]ad the Union continued its efforts to impose Cosco’s Contract on Firetrol in
view of this finding of separateness by the arbitrator, such conduct would violate
Section 8(b)(4) of the Act.
The General Counsel makes a similar argument. However, there is no such allegation in the
complaint nor is there any evidence in the record that the Union has sought to apply the
agreement against Firetrol. I therefore cannot resolve that issue. Central Pennsylvania
Regional Council of Carpenters (Novinger’s, Inc.) 337 NLRB 1030 (2002).
The General Counsel points to the fact that the Union can use the disputed agreement
only after it has filed and lost a grievance under the other section of the collective-bargaining
agreement I have described above. From this the General Counsel argues that the agreement
must therefore violate Section 8(e). I disagree; the language simply reflects an ordering of the
grievances to be filed. I conclude that on its face the agreement is a lawful work preservation
agreement.

3 Because this case, like Manganaro, involves only a challenge to the facial legality of the
agreement, I ruled that I would not allow litigation of the issue of whether Cosco and Firetrol was
a single employer, as originally plead in the complaint. Manganaro, id. at 167, fn. 33.
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Alessio is readily distinguishable from this case. The contested provision here applies
only to entities that “perform work of the type covered by this agreement.” Again, this means it
applies only to unit work. The aim of the clause is primary in purpose; it does not seek to
acquire work of a type not covered by the contract. In addition, the contested provision applies
only to entities that are established or maintained by a signatory employer. Again, this language
clearly may be read to require the employer to have the right to control the flow of unit work.
The fact that the application of the agreement is limited to circumstances where the
Union establishes its majority status does not alter this result; instead, it assures the
development of a Section 9(a) relationship. In reaching this result I also consider Heartland
Industrial Partners, 348 NLRB 1081 (2006). In that case the challenged agreement applied to
business entities controlled by the employer, as specifically defined in the agreement. In
general, the agreement allowed the union to organize the controlled business entities while the
business entities took a position of neutrality regarding the organization effort. If and when the
union gained majority support among the employees then the agreement required the business
entity to recognize and bargain with the union. The Board found that the challenged agreement
did not require any cessation of business between the employer and the business entities and
thereby did not violate Section 8(e). In the process the Board rejected the notion that the
recognition requirement of the agreement was tantamount to a cease doing business objective.
The Charging Party would distinguish Heartland on the basis that it involved a parent company
and the General Counsel makes a similar argument, but there is no indication that the Board
intended so limited a holding, at least in this case where the agreement applies only to
employers established or maintained by the signatory employer.
In light of my decision that the agreement has a lawful work preservation objective, I find
it unnecessary to decide whether the agreement would nonetheless be lawful under the
construction industry proviso to Section 8(e) even if it had unlawful objective.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended.4
ORDER
The complaint is dismissed.
Dated, Washington, D.C. November 3, 2008
_______________________
William G. Kocol
Administrative Law Judge

4 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.