Searls Refrigeration Co.

National Labor Relations Board - Board Decisions

Oct 20, 1989

297 N.L.R.B. 133 (N.L.R.B. 1989)

. SEARLS REFRIGERATION CO 133
Searls Refrigeration Company and United -Associa-
tion of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United
States and Canada, Local 714, AFL-CIO. Case
28-CA-9423
,
I
October 20, 1989
DECISION AND ORDER
BY MEMBERS CRACRAFT, HIGGINS, AND
DEVANEY
On May 17, 1989, Administrative Law Judge
Gerald A Wacknov issued the -attached decision
The Acting General Counsel, joined by the Charg-
ing Party, filed exceptions and a supporting brief
The Respondent filed an answenng brief'
The National Labor Relations Board has delegat-
ed 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, 2 and
conclusions and to adopt the recommended Order
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed
'The Respondent's request for oral argument is denied as the record,
the exceptions, and the briefs adequately present the issues and the posi-
tions of the parties
2 In adopting the Judge's distinguishing of Arizona Electric Power, 250
NLRB 1132 (1980), we do not rely on his finding that the Respondent
here did not knowingly and voluntarily bargain for the inclusion in the
contract of a statutory supervisor
The Judge inadvertently referred to Local 741 as Local 471 in portions
of his decision
Mitchell Rubin and Michael J Karlson, Esq , for the Gen-
eral Counsel
Guy David Knoller, Esq , of Phoenix, Arizona, for the
Respondent
Howard Shaw, Business Manager, of Tucson, Arizona, for
the Union
DECISION
STATEMENT OF THE CASE
GERALD A WACKNOV, Administrative Law Judge
Pursuant to notice, a hearing with respect to this matter
was held before me in Phoenix, Arizona on January 20,
1989 The original charge was filed on September 26,
1988 by the United Association of Journeymen and Ap-
prentices of the Plumbing and Pipelining Industry of the
United States and Canada, Local 741, AFL-CIO (Union
or Local 741) Thereafter, on October 27, 1988, the Re-
gional Director for Region 28 of the National Labor Re-
lations Board (the Board) issued a complaint and notice
of hearing alleging a violation by Searls Refrigeration
Company (Respondent) of Section 8(a) (1) and (5) of the
National Labor Relations Act (the Act) An amended
complaint was issued on October 31, 1988
The parties were afforded a full opportunity to be
heard, to call, examine and cross-examine witnesses, and
to introduce relevant evidence Since the close of the
hearing, briefs have been received from the General
Counsel and Counsel for Respondent
On the entire record,' and based on my observation of
the Witnesses and consideration of the briefs submitted, I-make the following
FINDINGS OF FACT
I JURISDICTION
The Respondent is an Arizona corporation with its
principal place of business located in Phoenix, Arizona,
where it is engaged in the building and construction in-
dustry as a refrigeration contractor
In the course and conduct of its business operations
the Respondent annually purchases and receives goods
and materials valued in excess of $50,000, which goods
and materials are transported in interstate commerce to
the Respondent at its Arizona jobsites directly from out-
side the State of Arizona
It is admitted, and I find, that the Respondent is now,
and has been at all times material herein, an employer
engaged in commerce within the meaning of Section
2(2), (6), and (7) and Section 8(f) of the Act
II THE LABOR ORGANIZATION INVOLVED
It is admitted, and I find, that the Union is, and has
been at all times material herein, a labor organization
within the meaning of Section 2(5) of the Act
III THE ALLEGED UNFAIR LABOR PRACTICES
A The Issue
The principal , issue in this proceeding is whether the
Respondent has violated Section 8(a)(1) and (5) of the
Act by rescinding a collective-bargaining agreement, en-
tered into under Section 8(1) of the Act, prior to the ex-
piration of the agreement
B The Facts,
On January 31, 1985 the Respondent entered into a
Section 8(1) prehire Memorandum Agreement with both
Local 741 (covering the Tucson, Arizona geographical
area), and Local 469 (covering the Phoenix, Arizona
geographical area) The Memorandum Agreement bound
the Respondent to the then-current collective-bargaining
agreement between the Plumbing and Air Conditioning
Contractors of Arizona and both of the aforementioned
Local Unions, and provided by its terms that the Re-
spondent would continue to be bound by succeeding
agreements "[U]nless the employer gives both Unions
written notice at least thirty (30) days prior to the expi-
ration or termination of the Association Agreement"
'The General Counsel s unopposed motion to correct the transcript is
hereby granted
297 NLRB No 14
134 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The current agreement is effective by its terms from July
1 1987 to June 30, 1991
By letter dated December 10 1987 the Respondent
notified Local 469 and the Plumbing and Air Condition
mg Contractors of Central and Northern Arizona that it
was terminating the agreement with Local 469 and no
longer wished the Association to act as Respondent s
bargaining representative for purposes of negotiating the
next collective bargaining agreement with that Local
However the respondent did not notify Local 471 that it
was terminating the agreement with that Local nor did
it advise the Association that it no longer wished the As
sociation to act as Respondent s bargaining represents
live with Local 471
The Respondent intended to bid a job at the Davis
Monthan Air Force Base near Tucson Jerry Welty vice
president of the Respondent, testified that in order to
prepare the estimate on this job it was necessary for him
to determine whether the Respondent continued to have
a collective bargaining relationship with Local 471 Be
cause of the length of time during which the Respondent
had not performed any work in Local 471 s jurisdiction
there was some uncertainty in Welty s mind concerning
Respondent s obligations Therefore in mid April 1988
Welty phoned Howard Shaw business representative for
Local 471, and asked Shaw whether the Respondent
continued to be bound by the current Association agree
ment with Local 471 Shaw indicated that the agreement
between the parties remained in effect
The Respondent bid the job on July 22 1988 and in
August 1988 the publication Construction News West
indicated that the Respondent was the low bidder
Thereafter, apparently in September 1988 the Respond
ent was awarded the contract for the work
On September 12, 1988 Business Representative Shaw
sent a letter to the Respondent and requested that the
Respondent acknowledge in writing that the contract
would be adhered to in total and immediately, prior to
September 27, 1988 to avoid settlement in accordance
with Article Seven (7) of the enclosed Agreement 2
On September 20 1988 Respondent s attorney re
sponded to Business Agent Shaw s letter and advised
Local 471 that it was Respondent s position that it had
no contractual obligation with Local 471 and that if
such an obligation existed the letter was to constitute
notice of repudiation of any contractual obligation
Thereafter the Respondent has refused to comply with
any of the terms and conditions of the current contract
including the hiring hall and fringe benefit provisions
thereof
At the time of the repudiation the Respondent did not
have any employees Moreover, the parties stipulated
that the Respondent had employed no employees within
2 A copy of the current agreement was enclosed with the foregoing
letter Art 7 of the Agreement is entitled Procedures for Settlement of
Gnevances and Disputes It provides for submission of disputes to a
Labor Management Committee and specifies that the Junsdiction of the
Committee shall extend to all matters which may arise from the mterpre
tau= application or operation of the provisions of the Agreement The
dispute was heard by the Labor Management Committee and was re
solved against the Respondent Currently the matter is pending in U S
District Court
the geographical jurisdiction of Local 471 since Novem
ber 25, 1986 However prior to that time from the in
ception of the bargaining relationship on January 31,
1985 until November 25, 1986 approximately a 9 month
period the Respondent intermittently employed from
zero to 7 employees within Local 471 s jurisdiction
Beginning on November 1 1988 the Respondent em
ployed one refrigeration mechanic Richard Porfilio on
the Air Force Base job Porfilio worked 3 days per week
for 3 successive weeks and during the following week
he worked only 2 days On November 28 1988 the Re
spondent hired another refrigeration mechanic Ellis
Gibson and from that point until the completion of the
job on about January 13, 1989 both individuals worked
no more than 2 days per week except for the final week
of the project during which both worked 4 days During
1 day in December 1988 and 2 days in January 1989 the
Respondent also employed two carpenters on the job
who were concededly not covered by the contract in
volved herein Thereafter the Respondent has had no
further jobs within the jurisdiction of Local 471 and has
employed no employees within that Local s jurisdiction
Janice Searls Respondent s president testified that the
Respondent had no intention of performing any further
work in the Tucson area
The current agreement, effective from July 1, 1987 to
June 30 1991 provides under article XIV section F 1
Wages for Supervision that wages for supervision
shall be journeyman s wages plus certain specified
amounts for foremen general foremen area superintend
ent and superintendent The additional wage for fore
man is $1 40 per hour
The Respondent hired Porfilio at the foreman s wage
rate specified in the contract Respondent s vice presi
dent Jerry Welty testified that Porfilio is the job su
penntendent foreman supervisor one of those, and has
the authority to purchase materials to make decisions on
the job and to communicate with the other workers, re
gardless of their particular craft and direct their work
He obtains parts or materials for the job and on three or
four occasions has purchased materials valued at up to
$300 or $400 maybe more He assigns work to the em
ployees He has the authority to discipline or discharge
employees should that be necessary and, according to
Welty management would support his judgment in this
regard However, it has not been necessary for him to
exercise this authority
The Respondent s pnncipal place of business is located
in Phoenix which is approximately 120 miles from
Tucson Welty would visit the jobsite in Tucson on the
average of 1 day per week to inspect the work, and
would remain for the entire day
C Analysis and Conclusions
The Respondent has had no active relationship with
Local 471 since November 25, 1986 some 8 months
prior to the expiration of the preceding collective bar
gaining agreement and continued to have no active rela
tionship with the Union from the commencement of the
term of the current collective bargaining agreement (July
1 1987) until the events surrounding the instant matter
SEARLS REFRIGERATION CO 135
Two full years had elapsed since the Respondent em-
ployed even a single individual (Fortino) who was cov-
ered under the terms of the contract The Respondent
maintains that under these circumstances it was lawful
for it to rescind the contract in midterm
In John Deklewa & Sons, 282 NLRB 1375 (1987), the
Board stated
[T]he respondent's defense that it employed no iron-
workers when It repudiated the contract is without
merit An 8(f) contract is enforceable throughout its
term, although at a given time there may not be any
employees to which the contract would apply
In Garman Construction Co, 287 NLRB 88 (1987), the
respondent repudiated an 8(f) contract in midterm The
Board found that the respondent's repudiation of the
agreement was not unlawful because there had never
been more than one unit member in the respondent's
employ during the three years prior to the repudiation
The Board noted, however, at fn 8, that
had the facts been different and had the unit of op-
erating engineers been subject to fluctuations in size,
only temporarily decreasing in size to a single em-
ployee unit, the Respondent's actions would have
violated Section 8(a)(5) of the Act See Deklewa,
above at fn 62
Similarly, in Stack Electric, Inc , 290 NLRB 575 (1988),
the Board found that the respondent's midterm repudi-
ation of an 8(f) agreement was not violative of Section
8(a)(5) of the Act because at all material times the appro-
priate unit consisted of no more than a single employee
The Board, applying the rationale of D & B Masonry,
275 NLRB 1403 (1985), found that there could be no
statutory obligation to bargain
The Respondent argues that the facts of the instant
case present an even stronger argument in favor of
lawful midterm repudiation, as the appropriate unit con-
sisted of no employees for approximately 2 years, includ-
ing a period of about 15 months from the inception of
the current contract (July 1, 1987), until about a month
after the Respondent's repudiation letter of September
20, 1988 Further, for the 3-month duration of the Air
Force Base job, it continued to have no statutory duty to
bargain because, like the factual situation in Stack Elec-
tric and Garman Construction, it employed no more than
one unit employee According to the Respondent, this
conclusion is mandated by the fact that Porfilio must be
excluded from the unit because of his supervisory status
The General Counsel maintains that the entire bargain-
ing history between the parties must be taken into ac-
count, including the fact that between January 31, 1985,
and November 25, 1986, there was an active bargaining
relationship Further, the General Counsel argues that
the employee complement on the Air Force Base job
consisted of two employees as, contrary to Respondent's
assertion, Porfilio was not a supervisor within the mean-
ing of the Act Alternatively, the General Counsel
argues that assuming arguendo Porfilio's supervisory
status, the Respondent may not utilize this as a basis for
nullifying the contract as the contract not only does not
exclude supervisors, but rather specifically incorporates
supervisors within the bargaining unit and even provides
for additional wages as compensation for their superviso-
ry responsibilities
It appears from the foregoing cases, namely, Stack
Electric, Deklewa, and Garman Construction, that the
Board is not intending to take a mechanistic approach to
the facts in order to determine when to apply the "one
man unit" rule in 8(f) situations Thus, in Stack Electric,
which was decided subsequent to Deklewa, the Board ap-
plied the "one man unit" rule to one of the respondents
(North Town), even though North Town employed two
employees during 2 weeks of the 3-year contract term
Apparently, the Board considered the 2-week period to
be insignificant under the circumstances
I am of the opinion that the application of the "one
man unit" rule is appropriate under the factual circum-
stances herein The 2-year hiatus during which the Re-
spondent performed no work whatsoever in Local 471's
jurisdiction is ample proof of the absence of any intermit-
tent or even sporadic employment of more than one unit
employee Thereafter, the Respondent employed only
two individuals on a part time basis over a period of 3
months, after which time the Respondent determined
that it would no longer seek jobs in the Tucson area
Under these circumstances it appears that if Fortino
should be excluded from the unit as a supervisor, the unit
for the duration of the Air Force Base job would have
consisted of only one employee, and therefore the Re-
spondent's repudiation of the contract would not be un-
lawful
The testimony of Welty, who impressed me as a credi-
ble individual, stands unrebutted Porfilio was paid $1 40
more per hour than the other refrigeration mechanic, and
although he did not have the authority to hire employ-
ees, he did have the authority to discipline them and
even effectively recommend their discharge should the
occasion arise Further, he was given the authority to
order supplies and ensure that the work was performed
properly and on schedule Moreover, in the absence of
Welty, who visited the project on the average of once a
week, Porfilio was effectively in charge not only of the
other refrigeration mechanic, but also of the two part-
time carpenters I therefore find that Porfilio was a su-
pervisor within the meaning of Section 2(11) of the Act
The General Counsel cites Arizona Electric Power
Corp, 250 NLRB 1132 (1980), in support of the argu-
ment that an agreed-upon unit which contains an individ-
ual who is admittedly supervisory may not be challenged
in a complaint proceeding, and therefore is to be consid-
ered a unit employee despite his supervisory status
However, in that case, an appropriate unit of more than
one employee would have remained even if the supervi-
sor had been excluded In the instant case, no unit cogni-
zable by the Board remains following the exclusion of
Fortino Moreover, unlike the situation in Arizona Elec-
tric Power, the Respondent herein merely adopted the as-
sociation contract and did not "knowingly and voluntari-
ly" bargain for the inclusion in the contract of a statuto-
ry supervisor
136 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
On the basis of the foregoing, I find that the Respond-
ent has not violated the Act as alleged
CONCLUSIONS OF LAW
1 The Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7)
and Section 8(f) of the Act
2 The Union is a labor organization within the mean-
ing of Section 2(5) of the Act
3 The Respondent has not violated the Act as alleged
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed 3
ORDER
IT IS HEREBY ORDERED that the complaint is dismissed
in its entirety
3 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 to be waived for all
purposes