Serv-All Co, Inc.

National Labor Relations Board - Board Decisions

Oct 30, 1972

199 N.L.R.B. 1131 (N.L.R.B. 1972)

I
SERV-ALL COMPANY
Serv-All Company, Inc. and United Association of
Journeymen and Apprentices of the Plumbing &
Pipefitting Industry of the United States & Canada,
Local Union No. 412, AFL-CIO. Case 28-CA-2306
October 30, 1972
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS , AND PENELLO
On January 10, 1972, Trial Examiner Irving Ro-
gosin issued the attached Decision in this proceeding.
Thereafter, the Respondent filed exceptions and a
supporting brief, and the General Counsel filed an
answering brief.
The Board has considered the record and the
Trial Examiner's Decision in light of the exceptions
and briefs and has decided to affirm the Trial
Examiner's rulings, findings, and conclusions and to
adopt his recommended Order.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Trial Examiner and hereby orders that
Serv-All Company, Inc., Albuquerque, New Mexico,
its officers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's recom-
mended Order.
CHAIRMAN MILLER and MEMBER KENNEDY, dissenting:
Dismissal of the complaint herein is required by
Section 10(b) of the Act, in our opinion.
As the General Counsel conceded in his opening
statement, this case, for the most part, was heard in
an earlier representation proceeding (28-RM-242) in
which was raised the only substantive issue to be de-
1 Our dissenting colleagues contend that the complaint should be dis-
missed because "all of the operative facts occurred more than 6 months
before the charge was filed" on March 18, 1971 While it is true that
Respondent's initial refusal to sign or abide by the contract , the strike, and
Respondent 's filing of the RM petition all occurred outside the 10(b) period,
there were other incidents , outlined in the Trial Examiner's Decision, which
are sufficient , in our opinion , to indicate that Respondent's initial refusal to
bargain recurred well within the 6-month period . We believe that the collo-
quy that occurred during the RM hearing , which is quoted in the dissent, in
effect constitutes a refusal to sign the agreement. Furthermore, contrary to
our colleagues the record does show that during January and February 1971,
the Union, on four occasions , contacted Respondent to get the contract
executed , but that Respondent would not even discuss the matter In fact,
Carl Smith , the Union 's business agent , testified that he specifically asked G
L Blankenship , Respondent 's president , on one of these occasions, when
they could get together to talk about the contract, but that Blankenship, after
stating that he would call Smith back , failed to do so. While Smith may not
have explicitly asked Blankenship "to sign the contract," we are convinced
that Blankenship knew what Smith had in mind, especially in light of the
events of the preceding months. For these reasons, we find that the complaint
is not barred by Sec. 10(b) of the Act.
1131
termined here, namely, whether Respondent is
obliged to sign a contract negotiated in 1970 by the
Mechanical Contractors Association of New Mexico
(hereinafter referred to as MCA) and the Charging
Party (hereinafter referred to as the Union).
The basic facts upon which a proper resolution of
this case is dependent are uncontroverted. In the in-
terest of clarity, they are summarized below.
On August 18, 1966, Guy Blankenship executed
a printed booklet copy of the contract then in effect
between MCA and the Union. Guy Blankenship was
then engaged as a sole proprietor of Serv-All Compa-
ny and was not a member of MCA. Article II, section
4, of the 1966 contract which Blankenship signed pro-
vided:
In the event that such employer does not intend
to designate the Employer Association as his
agent for notice or amendment purposes, he shall
so state on the signature page of the agreement.
Unless the non-association employer signatory
gives the Union written notice at least 60 days
prior to the expiration or termination of said
Agreement indicating to the contrary, the em-
ployer agrees to be bound by the terms of the
succeeding collective bargaining agreement, in-
cluding all amendments, extensions and renewals
thereof, next negotiated between the Employer
Association and the Union. This same provision
shall likewise apply thereafter whenever one
agreement is expiring and another successive
agreement is negotiated. All such successive
agreements and their amendments, extensions
and renewals will be deemed incorporated herein
by reference at such time as they are negotiated
and become effective by their terms.
The contract by its terms was to be effective from
April 1, 1966, to March 31, 1969. This contract was
prematurely extended some 18 months prior to its
expiration date of March 31, 1969, when MCA and
the Union agreed to extend the contract to March 31,
1970.2 Blankenship was never asked to sign an exten-
sion of the 1966 agreement nor did he do so.
Respondent corporation was incorporated on
December 27, 1968, and the employees and assets of
the individual proprietorship were transferred to Re-
spondent which occupied the premises and assumed
the liabilities of the individual proprietorship. After
the incorporation of Respondent, the individual pro-
prietorship ceased to operate.
Negotiations for a new contract began in Octo-
ber 1969 by representatives of MCA and the Union.
Blankenship attended three strategy meetings held by
2 The premature extension of the original contract precluded
Blankenship's giving a timely notice to terminate the 1966 agreement under
its explicit terms . See in this connection Fahnestock Enterprises, Inc. d/b/a
Stox Restaurant, 172 NLRB 1474.
199 NLRB No. 159
1132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
MCA but did not participate in any of the discussions
at the meetings. Blankenship did not attend any of the
negotiation meetings and he signed no document oth-
er than the 1966 contract referred to above. There is
no contention' that Respondent or its predecessor ever
became a member of MCA.
On May 4, 1970, the Union struck all members
of the MCA in support of its bargaining position. The
Union claims that it did not strike nonmembers of the
MCA, but it admits that union members employed by
various nonmember signatories joined in the strike.
Business Agent Smith testified that he told the em-
ployees of the nonassociation firms that it was up to
the individual employees as to whether they wanted
to work during the strike. The Union received letters
from 20-30 nonmembers of MCA stating, in effect,
that they intended to be bound by the MCA contract
and pay any negotiated wage increases retroactive to
April 1, 1970.
According to the Union' s Business Agent Smith,
Respondent's employees expressed concern to him as
to whether Respondent would pay wage increases ret-
roactive to April 1. Smith thereupon called Blanken-
ship and asked "him if he would be receptive to
signing a letter of intent of signing the contract that
the MCA was negotiating and [Blankenship] replied
that he would not 3 Smith testified that the employees
of Respondent "were reluctant to work" without such
a letter. Four of Respondent's eight employees did not
work during the strike.
The strike against MCA members continued un-
til June 16, 1'970, when tentative agreement was
reached and employees returned to work shortly
thereafter. Employee ratification of the contract was
voted on July 11. Respondent filed an RM petition on
June 19, 1970, and sent a letter to the Union stating
3 Business Agent Smith denied that he "solicited" a letter of intent from
Respondent The following excerpt from Smith 's testimony reveals what
happened [Emphasis supplied]:
Q. Well, just why was it that you wanted him to sign a letter of
intent, agreeing to be bound by whatever contract was negotiated after
that between your union and MCA?
A It was evident to me that he wanted to continue to work and one
way that he could continue to work, was to notify me on his own letterhead
that he would be bound by any succeeding agreement It seems relatively
simple to me I have received several of them.
Q. Is that what you told him?
A. I don't recall exactly what I did tell him.
Q. Something to that effect?
A. It could be something along that line.
Q. And he told you that he wouldn't sign such a letter?
A. As I recall, that is what he said . By sign, what do you mean to
sign , do you mean sign a letter that he writes himself?
Q. Well, he told you that he wouldn 't write you such a letter and
he wouldn 't sign such a letters
A. As I recall, that's right.
Q. And at that time his employees were continuing to work without
a contract , is that right?
A. No.
Q. That's not right?
A. Not all of them.
it was filing an RM petition. The letter suggested that
if the Union asserted any right to engage in collective
bargaining on behalf of Respondent's employees, the
parties should cooperate to arrange for an NLRB
election.4 The Union did not reply to Respondent's
letter. After July 21, Respondent ceased paying fringe
benefits to the Union and did not give its employees
the wage increases provided for in the new MCA
contract.
Hearing on the RM petition was delayed until
November 6.5 The Regional Director dismissed the
RM petition on January 12, 1971, on the ground that
the record did not establish that Respondent had rea-
sonable grounds for questioning the Union's majority,
citing U. S. Gypsum, 157 NLRB 652. The Regional
Director's decision did not mention whether Respon-
dent was bound by the MCA contract, which was the
only issue litigated at the representation hearing. The
Regional Director's dismissal of the RM petition was
reversed on March 2, 1971, for the stated reason that
the Board was "administratively satisfied that the Em-
ployer had shown sufficient objective considerations
to support the petition."6 The Director was instructed
to process the petition further, but no further action
was taken by him until May 20, 1971.On that date the
Director issued the complaint herein based on the
charge which was filed on March 18, 1971, and dis-
missed the RM petition.
The Union's delay in filing the instant unfair
labor practice charge on March 18, 1971, was due to
The text of the letter is as follows.
This is to advise that Serv-All Company, Inc., who apparently was a
non-Association signatory to your 1968 agreement which expired, by its
terms, March 31, 1969 , and was apparently unilaterally amended and
extended on some date to March 31, 1970, without the knowledge or
agreement of Serv-All, has been advised by a majority of its employees
that they no longer wish to be represented by your Union , and as you
probably know by now, Serv-All has filed a representation petition with
the NLRB requesting that an election be held to officially determine the
wishes of the Serv-All employees in this regard . You should further be
advised, if you have not already by other means, that the Mechanical
Contractors Association of New Mexico , nor any other association,
firm , or individual, has been granted no authority to represent this
Company in matters of collective bargaining pertaining to its employees
with your or any other Union, and you are hereby put on notice that
if anyone claims such authority, that such does not exist , and if such a
claim of authority is made , such claim of authority is hereby revoked,
and if you desire to pursue any further collective bargaining activities
pertaining to Serv -All's employees , you are to contact either Mr. G. L.
Blankenship or me in connection therewith . For your further informa-
tion, Serv-All is not and has not been a member of the Mechanical
Contractors Association
If you do not wish to assert any further right to engage in collective
bargaining with this Company upon behalf of its employees , we would
appreciate your so advising or, on the other hand, if you do wish to
pursue such subject, we would appreciate your advising to that effect,
to the end that we might mutually cooperate to arrange for the NLRB
to conduct the proper election among the employees to determine their
wishes, at the earliest possible date.
The record does not explain the delay in scheduling the hearing except
for a short postponement in late October.
6 It should be noted that the showing required under U S. Gypsum is an
administrative matter comparable to a union 's showing of interest in an RC
case and is nonhtigable.
SERV-ALL COMPANY
the fact that it "was awaiting the disposition of the
[representation] case that [Respondent] had filed."
The Union never expressly asked Respondent to sign
the 1970 MCA contract because it correctly interpret-
ed Respondent's action in filing the RM petition as an
unwillingness to sign the 1970 agreement .7 At the R
case hearing on November 6, 1970, Union Agent
Smith testified that he had not asked Respondent to
sign the new agreement "due to the fact I received this
petition before I had had an opportunity." Union
counsel observed at the unfair labor practice hearing
that it would have been an "exercise in futility" to
approach Blankenship to sign the contract for it was
"obvious, from the time the petition was filed until we
had the hearing, that he was not going to sign the
contract."
In our view, the Board is precluded from reach-
ing the underlying substantive legal issue here pre-
sented because the General Counsel's complaint is
time barred.
Section 10(b) of the Act provides, in relevant
part, that:
... no complaint shall issue based upon any
unfair labor practice occurring more than six
months prior to the filing of the charge with the
Board and the service of a copy thereof upon the
person against whom such charge is made....
All of the operative facts occurred more than 6
months before the charge was filed. Indeed, Respon-
dent has engaged in no conduct since September 18,
1970, the beginning of the 10(b) limitation period,
which can be construed to be violative of the Act. It
was May or June 1970 when Respondent advised the
Union that it did not consider itself bound to any
contract negotiated with the MCA. It refused at that
time to sign a letter obligating it to execute the MCA
contract. Half of Respondent's employees refused to
work during the strike because of Respondent's refus-
al to execute such a letter. Respondent filed an RM
petition on June 19, 1970, and advised the Union that
if it desired to be the collective-bargaining representa-
tive of Respondent's employees, the Union should
cooperate in arranging for a Board election in the RM
proceeding.8 The charge, filed March 18, 1971, some
9 months after the petition was filed, came too late.
The Respondent clearly repudiated any obligation to
bargain more than 6 months prior to the charge being
filed. See N.L.R.B. v. Field and Sons, Inc., 462 F.2d
748 (C.A. 1, 1972), denying enforcement of 189
NLRB 406, citing with approval N.L.R.B. v. Los An-
geles Yuma Freight Lines, 446 F.2d 210 (C.A. 9, 1971).
Even assuming that the rejection of belated re-
quests within the 10(b) period would give rise to a new
violation, the record on this point is considerably less
clear than is vindicated in the majority opinion. For
example, at the hearing, Respondent's alleged refusal
1133
to sign the contract was based on a hypothetical ques-
tion:
Q. [By Mr. Kool, Counsel for the Union]
And you testified that the union hadn't asked
you to sign this agreement?
A. [By Mr. Blankenship, president of Re-
spondent] Not that I know of.
it?
Q. If I handed it to you now, would you sign
A. No, sir.
Q. Why not?
A. That's my purpose for being here.
Moreover, aside from Respondent's own repudiation
of the agreement prior to the Section 10(b) date, there
is no testimony suggesting that Respondent had ever
been requested to sign the agreement thereafter, and
prior to November 6, 1970, the date of the hearing.
According to Business Manager Smith's testimony,
Business Agent Lelland Brassel was given the "assign-
ment" to solicit the signature of Mr. Blankenship on
the new MCA agreement, but shortly after the assign-
ment was given to Mr. Brassel he became involved in
an automobile accident. Mr. Smith testified that he
was not in a position to say whether Mr. Brassel had
contacted Mr. Blankenship. Mr. Brassel was not
called as a witness and Mr. Blankenship denied that
he had ever been contacted prior to November 6 by
Mr. Brassel or any other person to sign the contract.
With respect to the assertion that the Union
"contacted" Respondent on four occasions during
January and February 1971, the record is ambiguous
as to how many "contacts" were made. Mr. Smith
testified, however, that he never "in so many words"
asked Respondent to sign the contract.
We would, as indicated, dismiss the complaint on
the basis of Section 10(b) of the Act.
7 The colloquy quoted in the Trial Examiner 's Decision establishes beyond
question that the Union never asked Respondent to sign the 1970 agreement.
8 Par. 27 of the complaint alleges that Respondent has refused to bargain
since June 19, 1970 , which was the date Respondent filed the RM petition.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
IRVING ROGOslN, Trial Examiner: The complaint, issued
May 14, 1971, as amended at the hearing, alleges that Re-
spondent has engaged in unfair labor practices within the
meaning of Section 8(a)(1), (5), and (d), and Section 2(6)
and (7) of the Act.
Specifically, the complaint alleges that (1) since June
19, 1970, Respondent has refused to recognize and bargain
with the Union as exclusive representative of its employees
in an appropriate unit, notwithstanding the Union's majori-
ty status; (2) since said date, and specifically on or about
November 6, 1970, and at various times between January 15
1134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and February 15, 1971, has refused, although requested, to
sign a collective-bargaining agreement negotiated on its be-
half by the Union and an employer association; (3) since
September 21, 1970, has repudiated said collective-bargain-
ing agreement and refused to honor or abide by the terms
of said agreement ; (4) since September 21, 1970, has unilat-
erally altered the terms and conditions of employment of
Respondent's unit employees, by failing and refusing to pay
fringe benefits required under said contract; and (5) on June
19, 1970, filed a representation petition, despite its lack of
good-faith doubt as to the Union's majority.'
Respondent's answer, as amended at the hearing, de-
nies the jurisdictional and substantive allegations of the
complaint, and the commission of any unfair labor prac-
tices . A motion to dismiss, on the ground that the complaint
is barred by Section 10(b) of the Act, filed on May 28, 1971,
prior to the date of the hearing, and referred by the Regional
Director to a Trial Examiner, with a statement in opposi-
tion, was denied by Trial Examiner James R. Hemingway,
on July 15, 1971, on the ground that the motion contained
factual issues to be resolved by a hearing.
Hearing was held before the duly designated Trial Ex-
aminer from August 24 to 27, 1971, both inclusive. All par-
ties appeared and were represented by counsel, were
afforded full opportunity to be heard, to examine and cross-
examine witnesses , to introduce oral and documentary evi-
dence relevant and material to the issues , to argue orally
and file briefs and proposed findings of fact and conclu-
sions of law. The parties waived oral argument but, pur-
suant to an extension of time duly granted, filed briefs. The
General Counsel filed a brief, (together with proposed con-
clusions of law, recommended order, and notice to employ-
ees), on October 17; Respondent, on October 18, 1971.2 No
brief has been filed by the Charging Party. The General
Counsel's proposed conclusions of law and recommended
order have been adopted only to the extent consistent with
the findings of fact and conclusions of law hereinafter
made.
At the close of the General Counsel's case , Respondent
moved to strike specified portions of the complaint on the
ground that those allegations sought to enforce, or remedy
a breach of a collective-bargaining agreement, and that such
conduct did not constitute a refusal to bargain. The motion
was denied. Respondent then moved to dismiss the com-
plaint on substantially the same grounds stated in its written
motion filed prior to the hearing. Respondent further
moved to dismiss the complaint on the ground of lack of
jurisdiction in that the General Counsel had failed to prove
1 Designations herein are as follows- the General Counsel, unless otherwise
stated : his representative at the hearing ; Serv-All Company, Inc Respon-
dent, the Company, or the Employer ; United Association of Journeymen
and Apprentices of the Plumbing & Pipefitting Industry of the United States
& Canada, Local Union No. 412, AFL-CIO- the Union, the Charging Party,
or Local 412; Mechanical Contractors Association of New Mexico. the
Association , Employer Association, or the MCA; the National Labor Rela-
tions Board : the Board ; the National Labor Relations Act, as amended (61
Stat 136, 73 Stat. 519, 29 U S C Sec. 151, et seq ): the Act The charge was
filed and served on March 18, 1971.
2 On November 10, 1971, pursuant to leave granted earlier, the General
Counsel filed a motion to strike certain portions of Respondent 's brief. On
November 15, Respondent filed its response . As the portions of the brief
sought to be stricken do not exceed the bounds of fair comment , the motion
to strike is denied:
that Respondent was at the times material engaged in com-
merce within the meaning of the Act. Rulings on the mo-
tions to dismiss having been reserved, they are disposed of
by the findings and conclusions hereinafter made.
Upon the entire record in the case,3 including the offi-
cial transcript of the proceedings in the representation case
discussed hereinafter, the uncontroverted testimony or a
reconciliation of conflicting testimony and, based upon the
appearance and demeanor of the witnesses, and the briefs
of the parties, which have received careful consideration,
the Trial Examiner makes the following:
FINDINGS OF FACT
I JURISDICTION, THE BUSINESS OF RESPONDENT
It was stipulated at the hearing that, prior to 1969, G.
L. Blankenship, a sole proprietor, was engaged in doing
business under the firm name and style of Serv-All Co. On
December 27, 1968, Blankenship incorporated his business
under the laws of the State of New Mexico, adopting the
corporate name Serv-All Company, Inc. Blankenship trans-
ferred the physical assets, good will, name, accounts receiv-
able, and other trade assets of the sole proprietorship to the
corporation, in exchange for stock and promissory notes of
the corporation, which assumed the liabilities of the sole
proprietorship. Blankenship was elected president and has
held that office since, acting as Respondent' s managing
officer. Except for token shares of stock issued initially to
the other two incorporators (Marie Louise Blankenship, his
wife, and John E. Mastin, an employee), Blankenship has
been the sole stockholder. Respondent has since continued
to operate the business of servicing commercial air condi-
tioning, refrigerating, and heating systems to food stores,
motels, restaurants, institutions, and similar enterprises,
previously conducted by Blankenship at the same location
in Albuquerque, New Mexico, employing substantially the
same employees and service manager. The lease of the
premises formerly occupied by the sole proprietorship was
terminated and a new lease was executed by the corpora-
tion. Sometime prior to March 31, 1970, the corporation
moved its place of business to a new location in Albuquer-
que, and signed a new lease.
The complaint alleges, and, on the basis of the forego-
ing, it is hereby found that, at all times material since De-
cember 27, 1968, Respondent has been the alter ego of, and
successor to, G. L. Blankenship, a sole proprietor, d/b/a
Serv-All Co.
The complaint further alleges that during the calendar
year 1970, Respondent performed services valued in excess
of $50,000 in the State of New Mexico for other enterprises
which received directly from firms located in States other
than the State of New Mexico goods, materials , and prod-
ucts valued in excess of $50,000.
During the same period, the complaint alleges, Respon-
dent purchased and caused to be transported and delivered
to its place of business in the State of New Mexico goods
and materials, including air conditioning, refrigerating, and
heating equipment and supplies, valued in excess of $50,000,
3 General Counsel's unopposed motion to correct the record , annexed to
his brief, is hereby allowed , and the record is hereby corrected accordingly.
SERV-ALL COMPANY
which were received from other enterprises located in the
State of New Mexico , which had received said goods and
materials in interstate commerce directly from States of the
United States other than the State of New Mexico.
On the basis of the foregoing , the complaint alleges
that, at all times material herein , Respondent has been an
employer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
Respondent has denied these allegations , and asserts
that the Board is without jurisdiction , while refusing, both
prior to and during the hearing , to supply any commerce
data, except on an arbitrarily selective basis.4
In view of Respondent's strenuous objection to the
Board's assertion of jurisdiction while , at the same time,
refusing to cooperate in the production of essential com-
merce data, it becomes necessary to set forth in some detail
the facts upon which the General Counsel relies to establish
jurisdiction.
Beginning with the selective summary supplied by Re-
spondent, unsupported by any other documentation, the
summary discloses that for the period from August 1, 1970,
to July 31, 1971, its gross sales amounted to $177, 158 (as
compared with $500,000 for the preceding year, according
to President Blankenship 's unconfirmed testimony). During
the period in question , Respondent made no out -of-state
"sales." The volume of business (servicing of refrigerating
and air-conditioning systems) transacted with its five largest
accounts amounted to $63 ,267 (not $66 ,996, as erroneously
totaled on the document).5 Even without considering the
volume of business done with Sundowner Motel, as to
which no other evidence was introduced , the volume of
business done with the four remaining customers amounted
to well in excess of $50,000. As to these employers, the
4 Upon application of the General Counsel , a subpena duces tecum was
issued on July 27, 1971, to G. L Blankenship , "Personally and on behalf of
Serv-All Company , Inc " The record does not disclose the actual date of
service of the subpena but, on August 19, 1971, Respondent, on behalf of
itself and Blankenship, filed motions to quash or revoke subpena on various
grounds stated therein . On August 20, 1971, the Regional Director referred
the motions to a Trial Examiner for ruling . At the outset of the hearing,
Respondent 's counsel stated that Respondent was prepared to.introduce
certain commerce data from its records, and to stipulate to the facts concern-
mg the transfer of the business of the sole proprietorship to the corporation.
The stipulation was received but Respondent refused to supply any com-
merce data , except for a purported summary of accounts with which it had
done business during the period in question . The motions to quash were
denied on the ground that they had been tardily filed , some 3 weeks after the
subpena was served (instead of within 5 days after the date of service of the
subpena, as required by the Board 's Rules and Regulations , Section 102.31).
Respondent counsel's contention that he did not learn of the service of the
subpena on his client until about a week before the hearing affords no excuse
for the tardy filing of the motions to quash. The motions were also denied
upon the further ground that the evidence sought to be produced related to
matters in question in the proceedings , that the subpena described with
sufficient particularity the evidence whose production was required, and
which was relevant and material to the issues involved No attempt has been
made to enforce the subpena During the hearing , while Respondent 's presi-
dent and managing officer was on the witness stand , he agreed , at the Gener-
al Counsel's request, to produce certain books and records relating to its
business operations . Later, while on the stand , Blankenship acknowledged
that he had brought such records but when requested to produce them,
refused on advice of counsel , who represented that he intended to produce
them in his own case in chief . Counsel did not, however , offer these records.
Instead, he submitted a summary for the period from August 1, 1970 to July
31, 1971, consisting of selective data
5 The total is arrived at as follows: Holiday Inn, $10 ,571; Furrs (sic), 8,930,
Ramada Inn, 8,987 , Sundowner Motel , 4,849, S. S. Kresge Co, 29,930.
1135
Board has asserted jurisdiction.6
The Board has also asserted jurisdiction over Fun's
Inc. (referred to in the exhibit as Funs), which operates a
chain of supermarkets in the State of New Mexico.' In
addition, the Board has asserted jurisdiction over Ramada
Inns, Inc., a chain of hotels known as Ramada Inn Road-
side Hotels, including the one here involved, one in Gallup,
and two in Albuquerque, New Mexico.8
With regard to S. S. Kresge Co., which Blankenship
referred to as a dry goods business, he testified that the
company operates a discount center in Albuquerque,
known as K-Mart. The Board has. asserted jurisdiction over
this company in other States .9 Blankenship's assertion that
he understood that he was doing business at that location
with Allied Foods, Inc., of Oklahoma City, a division or
licensee of K-Mart, which involved installation of a new
refrigeration system amounting to $29,930, does not alter
the situation, since the Board has also asserted jurisdiction
over Allied Foods, Inc.10
Thus, it is evident that, during the period covered by
Respondent's summary, the volume of nonretail sales, the
applicable standard," to its five largest customers alone,
enterprises directly engaged in interstate commerce,
amounted to in excess of $50,000.
The record further discloses that, during the calendar
year 1970, Respondent's gross volume of business
amounted to in excess of $200,000, of which between $30,
000 and $35,000 represented services performed for Food-
way Stores; about $4,000 for Holiday Inn; and $2,000 to
$3,000 for Fun's, Inc., according to Blankenship's esti-
mates. The work performed for S. S. Kresge, amounting to
$29,930, was all performed during the latter part of 1970.
Using the lesser of the figures for the remaining accounts,
the total value of services performed for all four amounted
to $65,930, considerably more than the jurisdictional
amount required for indirect outflow.
Foodway Stores, a supermarket, and trade name for
Barber's Supermarkets, Inc., with headquarters in Albu-
querque, New Mexico, is a wholly owned subsidiary of
Kimbell, Inc., whose principal headquarters are located in
Fort Worth, Texas. During any 12-month period, including
6 Local Joint Executive Board of Las Vegas (Holiday Inns of America, Inc
d/b/a Holiday Inn of Las Vegas), 169 NLRB 683, 686; Holiday Inns of
America, Inc, d/b/a Holiday Inn of Oak Ridge, Tennessee, 181 NLRB No. 78.
In the former case , it was found that Holiday Inns of America, Inc., a
Delaware corporation, with its principal office located in Memphis, Tennes-
see, operates a chain of approximately 100 motels in various States; in the
latter case , that said corporation has been engaged in the operation of a chain
of motor hotels in various states of the United States. Blankenship testified
that he assumed that the Holiday Inn in Albuquerque, one of two in that city,
was part of the chain, and not a franchised operation
7 Furr's Cafeteria, Inc, Cafeteria No 16, 179 NLRB No 35, Furr's Inc., 157
NLRB 387, enfd. 350 F 2d 84 (C A 10), and Furr's Inc. v N L.R.B, 381 F.2d
562 (C.A. 10), cert denied , 389 U S 840 In the second of the cases cited,
it was found that the employer, a Texas corporation, operated 10 stores in
its El Paso, Texas, division, and one in Las Cruces, New Mexico, and various
other retail markets, cafeterias , warehouses and other facilities, in the states
of Texas and New Mexico
8 Ramada Inns, Inc, 174 NLRB No. 139, Ramada Inns, Inc., 171 NLRB
No 115
9 S S Kresge Company, K-Mart Division, 169 NLRB 442, in which it was
found that K-Mart engaged in the sale of hard and soft goods, is a division
of the S S Kresge Company, which operates retail stores throughout the
various states under the name of K-Mart. Id., 444, and at In. 2.
'0 Allied Foods, Inc, 186 NLRB No. 150.
11 Standard Plumbing and Heating Company, 185 NLRB No 63.
1136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the year 1970, gross receipts of Foodway Stores have
amounted to between $40 and $50 million, of which 85
percent was purchased from Kimbell, Inc. Marshall Monta-
no, comptroller of Foodway Stores, testified that it may
reasonably be assumed that at least $50,000 in value of
purchases was received directly from out of State by Food-
way Stores. Foodway Stores purchases canned goods under
the brand name "Kimbell" from distribution centers of
Kimbell, Inc., amounting to at least $50,000, which are
shipped from its canneries in Fort Worth, Texas, to Food-
way Stores in New Mexico. Foodway Stores operates 25
stores in New Mexico, of which ten are located in Albuquer-
que. Sales of merchandise from these stores range from
$20,000 to $45,000 per week per store, depending on the size
of the store. Kimbell, Inc. maintains and operates ware-
houses in Albuquerque and Gallup, New Mexico, as well as
one in Lubbock, Texas, and goods are interchanged among
these warehouses.12
It should be noted, moreover, that in the representation
proceeding initiated by Respondent, and filed June 19, 1970
(Case 28-RM-242), of which the entire transcript and
exhibits were introduced in evidence here in lieu of testimo-
ny, the employer, in effect, stipulated to the jurisdictional
facts relating to commerce. Since Respondent maintains
that the stipulation by its terms was limited to that proceed-
ing, the colloquy relating to the stipulation is quoted in
full. 13
With regard to the direct and indirect inflow,
Respondent's summary reveals that during the cone-
sponding period it purchased and received goods and mate-
rials from outside the State valued at $9,888.14 The total
volume of purchases within the State amounted to $58,617,
but there was no showing of the place of origin of these
supplies. Blankenship testified, however, that as far as he
12 The General Counsel has requested the Trial Examiner to take official
notice of the Board proceeding in Barber's Super Markets, Inc, d/b/a Food-
way Stores Nos. 36 and 37 (Gallup, Nex Mexico), Case 28-RC-2028, as further
support for the assertion of jurisdiction. It is noted that that proceeding was
based on a Stipulation for Certification Upon Consent Election In any
event, it is unnecessary to rely on this representation proceeding to establish
jurisdiction here
13'HwuNa oIICEa I shall read the statement with respect to commerce
Serv-All Company, Inc. is a New Mexico corporation, which, in the
course of the calendar year business of 1969, purchased materials and equip-
ment in excess of $50,000 from indirect sources from outside the State of New
Mexico.
Is that a fair statement of the business and operation of the Company,
Mr. Pickering?
NR. Pimnmo Did you say indirectly?
HEARwoopmcea Yes, indirect.
NR. PICKERING Yes.
HEARING OFFICER On behalf of the Company then, do you admit the Com-
pany is engaged in interstate commerce within the meaning of the Act?
NR. PicKEa io For the purpose of this hearing, yes
HEARING omncsa Do you so stipulate on behalf of the union?
Na. Kool, I do
HEARINOOm9CER The stipulation is received then.
It is noted that Respondent 's counsel in no way qualified the stipulation as
to the factual data. His only qualification was to the legal conclusion that the
Employer was engaged in commerce within the meaning of the Act. In any
event, there is ample basis for asserting jurisdiction without relying on this
stipulation.
4Amount of purchases from out of State 8/1/707/31/71 The Trane
Company (Wis.), $5,536; Manitowoc (Wis.), 3,237; Honeywell (Calif ), 1,115
The five largest sources of purchases within the State , according to the same
source, aggregated $35,099.
was aware, there were no manufacturers of equipment and
supplies, of the type used in the refrigerating and air condi-
tioning servicing performed by his Company, in the State of
New Mexico. It is, therefore, reasonable to assume that the
goods and supplies-purchased by Respondent undoubtedly
originated outside the State.
Finally, in view of Respondent's refusal to comply with
the subpenas duces tecum, and its recalcitrance in the pro-
duction of essential commerce data, after having been af-
forded ample opportunity to do so, and as the record
sufficiently establishes the Board's jurisdiction under the
Act, it is found that the Board is entitled to assert its statuto-
ry jurisdiction without regard to whether Respondent's op-
erations satisfy the Board's jurisdictional standards.15
For all the foregoing reasons it is hereby found that, at
all times material herein, Respondent has been an employer
engaged, in commerce, and in operations affecting com-
merce, within the meaning of Section 2(2), (6), and (7) of the
Act, and the Board's jurisdictional standards, and that it
will effectuate the policies of the Act to assert jurisdiction
in this proceeding.
11. THE LABOR ORGANIZATION INVOLVED
United Association of Journeymen and Apprentices of
the Plumbing & Pipefitting Industry of the United States &
Canada, Local Union No. 412, AFL-CIO, the Union here-
in, is, and at all times material herein has been, a labor
organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
1. Whether Respondent has been engaged in com-
merce within the meaning of the Act, and is subject to the
jurisdiction of the Board.
2. Whether Respondent is bound by and subject to the
terms of the collective-bargaining agreement between the
MCA and Local Union No. 412, dated April 1, 1970, expir-
ing March 31, 1972.
3. Whether, by refusing to execute, honor, and abide by
the terms of said agreement, Respondent has refused to
bargain with the Union in violation of Section 8(a)(5) and
(d) of the Act.
4. Whether, at the time Respondent filed its representa-
tion petition, it had a good-faith doubt of the Union's ma-
jority, based upon objective considerations, justifying its
refusal to bargain with the Union.
5. Whether, in the absence of a good-faith doubt of the
Union's majority, the filing of the representation petition
constituted a refusal to bargain, within the meaning of Sec-
tion 8(a)(5) and 8(d) of the Act.
6. Whether, by failing and refusing to pay fringe bene-
fits required under the 1970 labor contract, Respondent
15 See Bannon Mills, Inc., 146 NLRB 611, 613 at fn 4 , 633; Tropicana
Products, Inc, 122 NLRB 121; Seaboard Warehouse Terminals, Inc., 123
NLRB 378, 382, Hotel Admiral Semmes, 127 NLRB 988, 989 . In Chimney &
Furnace Vacuum Cleaning Corp., 169 NLRB 994, despite the Trial Examiner's
refusal to apply the rule in Tropicana, the Board , nevertheless, found that, by
combining the direct and indirect outflow, the employer' s operations sat-
isfied the Board's jurisdictional standards.
SERV-ALL COMPANY
unilaterally altered the terms and conditions of the collec-
tive-bargaining agreement, thereby failing and refusing to
bargain with the Union in violation of Section 8(a)(5) and
8(d) of the Act.
7. Whether the complaint is barred by the provisions of
Section 10(b) of the Act.
B. Background
MCA, an employer association, whose members con-
sist of plumbing, heating and piping contractors in the State
of New Mexico, as bargaining agent of said contractors, and
the Union executed a collective-bargaining agreement dat-
ed April 1, 1966, expiring March 31, 1970, unless amended
or terminated as provided therein. Under this agreement,
MCA recognized the Union as exclusive bargaining agent
of journeymen and apprentices, generally described as jour-
neymen and apprentice plumbers, pipe fitters, and pipe
welders, employed by employer-members of the MCA and
"non-Association member signatories" in an appropriate
unit certified by the Board in Case 28-AC-i. Association
members and nonmembers are referred to, individually and
collectively, as "Employers" under the contract.
On August 18, 1966, Blankenship, as sole proprietor of
Serv-All Co., executed a copy of the 1966 contract in printed
booklet form, on the last page, below the signatures of the
MCA and union representatives, at the place designated for
nonassociation employers.16
The crucial provisions of this contract reads as follows:
ARTICLE 11
Effective Date-Termination-Amendments
SECTION 4-Plumbing, heating and piping contrac-
tors who are not members of the Employer Association
may become a party to this Agreement and bound
thereby by execution of the same as a non-member
signatory and thereafter shall be bound to this Agree-
ment for the full term thereof as set forth above. Notice
of reopening and for termination within the time limits
provided above, shall be given by the Union to the
Employer Association, which is hereby designated as
the agent for receipt of service of such notice for all
non-association employers who become bound hereto,
and notice so given shall be constructive notice to such
employer. In the event that such employer does not
intend to designate the Employer Association as his
agent for notice or amendment purposes, he shall so
state on the signature page of the agreement.
Unless the non-association employer signatory
gives the Union written notice at least sixty (60) days
prior to the expiration or termination of said Agree-
ment indicating to the contrary, the employer agrees to
be bound by the terms of the succeeding collective
bargaining agreement, including all amendments, ex-
16 The booklet shows the signature as follows:
non-eaoaenoN EMPLOY!.
Firm suv amt ca
By /s/ G. L. Blankenship mere 8/18/66
1137
tensions and renewals thereof, next negotiated between
the Employer Association and the Union. This same
provision shall likewise apply thereafter whenever one
agreement is expiring and another successive agree-
ment is negotiated. All such successive agreements and
their amendments, extensions and renewals will be
deemed incorporated herein by reference at such time
as they are negotiated and become effective by their
terms.
Blankenship, as a nonmember signatory, adopted and
agreed to be bound by the terms and conditions of the labor
contract, and designated MCA as his agent for the purpose
of receiving notice of reopening and termination. Despite
the plane language of the pertinent article, requiring non-
member employers who did not intend to designate MCA
as their agent for purposes of notice or amendment to so
indicate on the signature page of the agreement, Blanken-
ship made no such declaration. Nor did he, or Respondent,
give the Union the required 60 days' written notice, in the
absence of which the employer agreed to be bound by the
terms of the "succeeding collective bargaining agreement,
including all amendments, extensions and renewal thereof,
next negotiated between [MCA] and the Union" provisions
which were to be incorporated by reference in successive
agreements.'?
Pursuant to the applicable provisions, the contract was
amended on April 1, 1968, to extend the expiration date to
March 31, 1970, subject to specified reopening provisions.
Article II, section 4, remained unchanged. The transfer of
ownership from Blankenship to Respondent took place on
or about December 27, 1968. Since, as has been found,
Blankenship had failed to avail himself of the escape clause,
Respondent, as alter ego and successor, became bound by
the existing labor contract, notwithstanding that the con-
17 The original labor contract signed by Blankenship was not produced at
the hearing, counsel for the Union testifying that despite a diligent search,
he had been unable to find it. The original, however, which had been repro-
duced in quantity in printed booklet form was produced at the representation
hearing , and a copy, bearing Blankenship's purported signature, was intro-
duced at this hearing. Respondent's counsel , however, questioned the accura-
cy of the booklet as a conformed copy, despite the fact that he had stipulated
to its introduction at the representation hearing after a comparison of the
original with the booklet He testified , however, that he had merely compared
the signature pages. Under cross-examination , after first testifying that he
was aware during the representation hearing of a clause "along that line
[Article II, Section 4]" but not of the existence of the clause "in that doc-
ument," Respondent 's counsel testified , " . . I previously stated that I made
no examination of this particular document other than page 28 [the signature
page] , as conformed by Mr Kool [union counsel] ." Later, he added-
Let me back up then . I was aware that there existed a labor agree-
ment of Local 412 that had language at least similar to the tenure (sic)
of the language set forth in this particular document , Joint Exhibit I in
Article II, Section 4. 1 was not aware and did not examine this language
here , not did I , at the representation hearing, nor did I in this particular
document compare it with the original document that was signed by Mr.
Blankenship and was introduced at that hearing.
Counsel's attention was then directed to his examination of Blankenship at
the representation hearing , in which he specifically read to the witness the
gist of the provisions of the article in question , and then asked him whether
he had been aware of the wording of that provision in the 1966 document
before he signed it The witness replied, "I was possibly aware of it , but didn't
know what it all meant." Considering counsel 's considerable experience in
the field of labor relations, and the crucial importance of the article, it is
incredible that he did not, in fact, examine the conformed copy of the labor
contract to determine whether it accurately reflectedhe language in the ong-
inal. Be that as it may , it is found that the booklet copy of the contract,
received in evidence, is a true , accurate, and conformed copy of the original
contract signed by Blankenship on August 18, 1966
1138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tract may not have specifically included successors. The
record establishes that Respondent adhered to the collec-
tive-bargaining agreement, as amended, and actually trans-
mitted health and welfare payments on behalf of its
employees to the New Mexico Pipe Trades Trust Fund.
Late in October, 1969, the contract was again re-
opened, and negotiations between MCA and the Union
continued through March 1970.18
The Union voted to go on strike against the MCA
members on May 1, 1970. Since that date fell on a Friday,
the strike did not actually begin until May 4, the following
Monday. The strike continued until June 16, when the par-
ties reached an oral agreement settling the strike, subject to
ratification by the union membership. On July 11, at a
meeting called for the purpose, the contract was ratified by
a nearly unanimous vote. Meantime, the members of the
Union had been ordered to return to work pending ratifica-
tion of the terms of the contract. On July 13, the MCA
issued a circular letter to "All Signatories to Labor Agree-
ment with Local 412," announcing the Union's ratification
of the new agreement, and notifying that copies of the
agreement would be mailed as soon as they were received
from the printer. Enclosed with the letter was an outline of
the substantive provisions of the new agreement.
While the negotiations were under way, and during the
strike, the Association held meetings attended by both
members and nonmember signatories. Blankenship attend-
ed three meetings, although he maintained that he did so
merely as an observer. The MCA kept its members, as well
as nonmember employers, including Respondent, apprised
of developments by means of written communications. At
no time during this interval did Blankenship or anyone else
on behalf of Respondent attempt to invoke the escape
clause in article II, section 4, or to notify MCA or the Umon
that Respondent would not adopt or be bound by any con-
tract resulting from the pending negotiations. As Blanken-
ship testified at the representation hearing, when asked
whether he wanted to await the outcome of negotiations
before deciding on his future course, "In a way, yes. I had
to see if I could live with [the contract]."
On June 18, 1970, Respondent's counsel notified the
Regional Director of the filing of an employer petition on
behalf of his client. In his letter, counsel stated that the
Employer had signed an individual contract with the Union
in 1966 expiring March 31, 1970, which, "in some fashion
might have been extended for the period ending April 30,
1970, on some sort of understanding." The letter further
asserted that the Employer was not a member of any mul-
tiemployer group; had not authorized anyone to represent
him in collective bargaining; and, although contacted by
the Union after the expiration of the contract with a view
toward individual bargaining, had signed no documents.
The letter concluded that the Employer had never partici-
pated in any joint negotiations with any other employers,
and that it had been advised by a majority of the employees
that they no longer wished to be represented by the Union
or to remain members. The representation petition, en-
closed with the letter, was formally filed next day.
18 These findings and others of a related nature are based, in part, upon
evidence in the representation proceeding (Case 28-RM-242)
The same day, June 19, Respondent' s counsel notified
the Union by letter that Serv-All Company, Inc., a "non-
Association signatory" to the 1966 contract which had ex-
pired by its terms on March 31, 1969, and had, without the
knowledge or agreement of his client, "apparently [been]
unilaterally amended and extended on some date to March
31, 1970," had been advised by a majority of its employees
that they no longer wished to be represented by the Union.
After referring to the representation petition which had
been filed, the letter stated that neither MCA nor any other
entity had been granted authority to represent the Company
in collective bargaining with this or any other union, and
revoked any purported authority to represent the Employer
in collective bargaining with the Union. The Umon was
directed to contact Blankenship or the attorney if it wished
to pursue further collective bargaining with the Company.
The letter concluded with the request that the Union notify
the Company whether it intended to assert any further claim
to represent the employees, in which case it invited the
Union's cooperation in expediting the election.
On July 5, Respondent itself wrote to the Union, reit-
erating the position taken by its counsel , and undertaking
to terminate any "contractual relationship" based on "the
printed agreement" between the MCA and the Union effec-
tive April 1, 1970, and expiring March 31, 1972, and as to
any other written, printed, or alleged oral agreement.
The letter directed the Union to send all notices to the
Company, addressed to G. L. Blankenship, personally, by
certified mail, and notified the Union that the Company
would not be bound by notice to MCA or any other organi-
zation, or by any succeeding collective-bargaining agree-
ment, amendments, extensions, or renewals. Finally, the
letter declared that the Company was not a member and did
not recognize any claim that it was a member of any mul-
tiemployer bargaining unit with MCA members or any oth-
er employer or group of employers, and reiterated that the .
Company had "reasonable cause to believe" that a majority
of its employees did not desire to be represented by the
Union for purposes of collective bargaining with the Com-
pany.
On January 12, 1971, the Regional Director issued an
order dismissing petition and vacating proceeding in the
case filed June 19, 1970, on the ground that the record did
not establish that a question concerning representation ex-
isted.19
On January 20, 1971, Respondent filed a motion for
reconsideration or for further hearing of the order dismiss-
mg the petition, together with an affidavit of Glen L. Blank-
enship, president and general manager of the Company.
The motion was based on the ground that the sole issue at
19 In his Order, the Regional Director stated
It is well established that in order for an employer to question the
continuing majority of an incumbent union, it must demonstrate by
some objective considerations that it has reasonable grounds for believ-
ing that the union has lost its majority status. Consequently, since the
Employer has admitted the continuing union membership of its employ-
ees, and nothing has been shown that membership is not voluntary, I
find that reasonable grounds for its alleged good -faith doubt have not
been established . Accordingly, I find that a question concerning repre-
sentation does not exist. Moreover, assuming arguendo that it should be
decided that the Employer had effectively withdrawn from any obliga-
tion under the contract, there still would appear to be no question
concerning representation. See United States Gypsum Company, 157
NLRB 652.
SERV-ALL COMPANY 1139
the hearing on the representation petition was whether there
existed a current collective-bargaining agreement, binding
on the Employer, which would constitute a bar to the peti-
tion, and that, therefore, there was no occasion to submit
evidence of "objective considerations" in support of the
Employer's assertion that a majority of its employees had
advised that they no longer wished to be represented by the
Union.
On February 8, 1971, the Acting Regional Director
denied the Employer's motion for reconsideration. On Feb-
ruary 17, pursuant to an extension of time granted by the
Board, the Employer filed a request for review of the Re-
gional Director's order dismissing petition. By teletype or-
der, on March 2, 1971, the Board granted the Employer's
request for review, stating that it was "administratively sat-
isfied that the Employer has shown sufficient objective con-
siderations to support the petition," and reversed the
dismissal, reinstated the petition, and remanded the pro-
ceeding to the Regional Director for further processing.
Notice of hearing on the petition was issued, and hearing
was held thereon on November 8, 1970.
On March 18, 1971, and prior to a decision in the
representation case, the Union filed the unfair labor prac-
tice charge in the present case, alleging violation of Section
8(a)(5) and (1) in that Respondent had failed and refused
to execute and honor the collective-bargaining agreement
consummated between the Union and MCA. On May 14,
1971, following an investigation of the charge, the com-
plaint was issued in this proceeding, and on May 20, 1971,
the Regional Director issued his order dismissing petition,
withdrawing notice of hearing, and vacating proceeding, for
the reason that no question of representation existed.
On May 28, 1971, the Employer again filed a request
for review of the Regional Director's order dismissing peti-
tion, and simultaneously filed a motion to dismiss in this
proceeding, on the ground that the complaint was barred by
Section 10(b) of the Act. On July 14, 1971, the Board issued
its ruling on the Employer's administrative appeal, conclud-
ing that, "as an 8(a)(5) complaint has issued in Case 28-CA-
2306, [the present case] no question concerning representa-
tion may be raised at this time," and ruled that the Regional
Director's dismissal of the petition was warranted.
Subsequent to the Regional Director's initial dismissal
of the representation petition on January 12, 1971, Business
Manager Carl Smith made several attempts to meet and
discuss with Respondent the signing of the labor contract
which had been negotiated between MCA and the Union.
After conferring with the union attorney, Smith telephoned
Blankenship on three or four occasions during January and
February. The first time, he reached a woman (probably
Blankenship's wife), who said that Blankenship was ex-
tremely busy, and asked Smith to call back. On another
occasion, Smith reached Blankenship, but was told that he
had "an office full of people," and was too busy to talk to
him. Smith asked Blankenship when they could get together
to talk about the contract. Blankenship said that he would
get back to him but failed to do so. When Smith called
again, Blankenship was otherwise occupied, and Smith did
not succeed in talking to him. The last time Smith attempted
to reach Blankenship, he was told that Blankenship had
suffered a heart attack, and Smith made no further effort to
reach him.
Respondent has not since signed a counterpart of the
collective-bargaining agreement between MCA and the Un-
ion, effective April 1, 1970, or any other labor contract with
the Union.
Contentions of the Parties
The General Counsel's case is based upon the proposi-
tion that, by executing the 1966 labor agreement, and there-
after failing to exercise the so-called escape clause,
Blankenship, and his alter ego, Respondent, became bound
by subsequent collective-bargaining agreements negotiated
between MCA and the Umon.20
The 1966 agreement was extended as of April 1, 1968,
to March 31, 1970. Article II, section 4 remained un-
changed. During the term of this agreement , Blankenship
and later, Respondent, abided by the new wage scales, trust
fund contributions, and other substantive provisions.
The contract between MCA and the Union was re-
opened late in October, 1969, and on June 16 these parties
reached an oral agreement, which was ratified by the union
membership on or about July 11, and subsequently execu-
ted.
At no time prior to June 18, 1970, at the earliest, when
Respondent's counsel wrote the Regional Director and filed
the representation petition, did Blankenship individually, or
as an officer of Respondent, withdraw the designation of
the MCA as agent , for purposes of receipt of notice of
reopening and termination, or exercise the escape clause
permitting nonmember signatories to be relieved of any
obligation to be bound by the outcome of future negotia-
tions.
The General Counsel maintains that Respondent (or its
predecessor) did not, by signing the labor contract of 1966
as a nonmember employer, manifest an intention to desig-
nate MCA as its bargaining representative but merely au-
thorized it to serve as its agent for the purpose of receiving
notice of reopening and termination. Thus, the General
Counsel argues, Respondent did not become a member of
the multiemployer bargaining unit. Nor, in General
Counsel's view, did Respondent agree to be bound jointly
with the employer-members of the Association and non-
member signatories. All Respondent agreed to do was to
adopt as its own the industry contract negotiated between
the MCA and the Union.
Whether Respondent failed or neglected to give the
required notice through ignorance, inadvertence, or neglect,
or for whatever reason (other than misrepresentation or
fraud practiced upon it), the fact remains that it failed to
give the requisite notice. The record as a whole suggests that
this was not altogether inadvertent, and that Respondent
20 Any possible contention that since the initial contract expired on March
31, 1969, the provision binding nonmember signatories to abide by future
contracts negotiated between the immediate parties in the absence of spec-
ified notice expired with the termination of the contract is untenable. It is
well settled than an obligation arising under a contract during the term of
the contract, is not extinguished by the mere expiration of the contract. Thus,
wage rates effective after the expiration of the contract may be enforced even
though the contract providing for the increase has expired in the interim. So,
too, arbitration provisions in an expired contract may be resorted to in
seeking to resolve a grievance arising during the existence of the contract
1140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
deliberately sought to await the outcome of the negotia-
tions, before deciding whether it could "live with" whatever
agreement was reached. Then only, almost immediately af-
ter oral agreement had been reached on the substantive
provisions of the contract, did Respondent give notice of its
intention not to be bound by the 1970 contract.
Respondent now seeks to avoid the consequences of its
failure to give timely notice by asserting that, at the time
Blankenship signed the 1966 contract, he was not aware of
the existence of the pertinent provision. Further, it now
contends that Blankenship signed the contract under duress
or coercion, that is to say, under threat of a strike. In addi-
tion, Blankenship claims, he signed the contract on the as-
surance of the union representative that he would merely be
required to pay the wage scales and health and welfare
benefits provided for, and, presumably, would not be re-
quired to abide by the other terms and conditions of the
contract.
As to the contention that he was not aware of the
existence of the provision under which, in the absence of
specified notice, a nonmember signatory agreed to be
bound by the outcome of future negotiations, it is hornbook
law that, barring fraud, misrepresentation, or other wrong-
ful conduct practiced by the other contracting party, one
who signs a contract is bound by its contents. 1
With regard to the contention that Blankenship signed
the contract under duress or coercion, assuming, on the
basis of his unsupported testimony, that he did, in fact, sign
the contract under threat of a lawful strike, this amounted
to no more than legitimate activity protected under the Act,
and an employer who enters into a valid collective-bargain-
ing agreement under the circumstances shown here cannot
be heard to complain that he did so under duress or coer-
cion.
Blankenship's uncorroborated testimony that a union
representative had assured him that if he signed the contract
he would be under no obligation to abide by it, except for
payment of wage scales and fringe benefits, is so contrary
to normally accepted labor relations practices as to warrant
disbelief. Moreover, since it does not appear whether the
alleged statement was made before, during, or after the
signing of the contract, Blankenship's testimony appears to
be an obvious attempt to vary the contents of a written
document by parol evidence.
Moreover, Blankenship's conduct during the most re-
cent negotiations, culminating in the latest contract, belies
any of these contentions. Like other nonmember signato-
ries, Respondent received various bulletins circulated by the
MCA relating to the state of the collective-bargaining nego-
21 "As a general principle, one who accepts a written contract is conclusive-
ly presumed to know its contents and to assent to them, in the absence of
fraud, misrepresentation, or other wrongful act by another contracting party
Thus, ignorance of the contents of a contract expressed in a written instru-
ment does not ordinarily affect the hability of one who signs it or who accepts
it otherwise than by signing it. If a man acts negligently and in such a way
as toJustify others in supposing that the writing is assented to by him, he will
be bound both at law and in equity , even though he supposes that the writing
is an instrument of an entirely different character.
.. It is the duty of every contracting party to learn and know its
contents before he signs and delivers it , and, if the contract is plain and
unequivocal in its terms, he is ordinarily bound thereby...... 17 Am Jur 2d
§ 149
tiations. Blankenship's testimony that he could not specifi-
cally recall whether he actually received such notices with-
out searching his files (which he apparently made no effort
to do) can scarcely serve as a denial that he received them.
In any event, he attended at least three meetings called by
the MCA to discuss and report on the state of negotiations
with the Union. Although Blankenship maintained that he
was present only as an observer, there can be no doubt that
he was deeply concerned with the outcome of the negotia-
tions, particularly since strike action had already been in-
voked against MCA members. Yet, at no time during these
meetings or, for that matter, at any other time, prior to June
18, 1970, did he notify MCA or the Union that Respondent
would not be bound by the outcome of negotiations. In fact,
it is evident that, after an accord was reached, he actually
attempted to "live with" the new agreement. Despite Re-
spondent counsel's letter of June 18, purportedly revoking
the designation of the MCA as agent for any purpose, Re-
spondent abided by the new agreement by paying the new
wage scales and fringe benefits provided for in the new
contract retroactively to April 1, 1970.
At the hearing on the representation petition on No-
vember 6, Blankenship acknowledged that Respondent had
been abiding by the terms of the new agreement and, al-
though he claimed that the Company had ceased making
monthly payroll reports to the New Mexico Pipe Industry
Fund in July, the records of the administrator of this fund
establish that Respondent's last report was not received by
the bank, which acted as depository for this fund, until
about September 21, 1970.22
Respondent continued paying the newly negotiated
wage scale until April 1, 1971, but declined to comply with
the wage increase provided for in the existing labor con-
tract.
Respondent has interposed a variety of additional de-
fenses which, it maintains, relieve it of any obligation to
execute and comply with the latest labor contract. While not
denying that it failed to give timely notice of its intention
not to be bound by the outcome of negotiations between the
MCA and the Union, Respondent, relying on a line of cases
dealing with the question of timely withdrawal from a mul-
tiemployer bargaining unit, maintains that these cases are
equally applicable to the situation here.
On the one hand, Respondent insists that it has never
(itself or through its predecessor) been a member of a mul-
tiemployer group consisting of both members of the MCA
and nonmember signatories. In this respect, the General
Counsel and counsel for Respondent are not at odds. On the
other hand, Respondent contends, in effect, that the princi-
ples evolved by the Board and the courts in situations in-
volving multiemployer units apply with equal force and
logic to the situation here. The Board has recently pointed
out, however, that "[b]argaming as a group for convenience
only is not inconsistent with an intent to bargain on an
individual basis only."23 It is clear that Respondent was not,
in the commonly accepted sense , a member of a multiem-
22 An audit of Respondent 's payroll records for the period July 1, 1969, to
July 31, 1970, conducted on October 21, 1970, for the board of trustees of
the industry fund revealed a shortage of $184 .15, but Respondent has refused
to Bay this amount
Imperial Outdoor Advertising, 192 NLRB No. 183
SERV-ALL COMPANY 1141
ployer bargaining unit, but by its undertaking merely
agreed, in advance, to adopt and be bound by the outcome
of negotiations of a multiemployer association.
Without analyzing all the cases cited by Respondent at
the hearing and in its brief, it is evident that they deal with
situations in which (1) a union, by its conduct, acquiesced
in the employer's withdrawal from a multiemployer bar-
gaining unit; (2) unusual circumstances existed sufficient to
justify an untimely withdrawal; (3) a union, by attempting
to bargain separately with an employer, , after his untimely
withdrawal from the multiemployer unit, waived the right to
require him to be bound by the outcome of negotiations on
a multiemployer basis.
Additionally, Respondent defends against the refusal
to bargain charge on the ground that it entertained a good
faith doubt of the Union's majority based upon objective
considerations.
Finally, Respondent, relying heavily on the court deci-
sion in the L.A. Yuma Freight Lines case,24 contends that the
complaint is barred by the provisions of Section 10(b) of the
Act in that the only conduct which might constitute a refus-
al to bargain occurred more than 6 months prior to the filing
and service of the charge.
Assuming, without deciding, that for the purposes of
this case the authorities, cited in support of the proposition
that the unions in those cases consented to or acquiesced in
the employer's untimely withdrawal, are apposite, there is
no evidence that the Union at any time expressly waived
Respondent's failure to give timely notice under the escape
clause.
Respondent contends, however, that even if it failed to
give timely notice that it would not be bound by future
negotiations between the Association and the Union (again,
on the basis of Respondent's analogy to an employer's un-
timely withdrawal from a multiemployer bargaining unit),
existence of unusual circumstances excused Respondent's
failure to give timely notice. The only "unusual circum-
stances" present here are that, after the terms and condi-
tions of the new contract were arrived at, Respondent
decided that it would not be economically feasible for it to
do business under the new wage scales and fringe benefits.
Assuming, as Blankenship testified (without offering any
documentary or other support), that Respondent's business
for the 12-month period ending July 31, 1971, declined to
about one-fourth of its previous volume, this does not con-
stitute unusual circumstances which would relieve Respon-
dent of the consequences of its failure to give timely notice.
Mere business inconvenience or economic hardship, inabili-
ty to maintain a competitive position, or other business
exigencies have never afforded an excuse for failure to com-
ply with the requirements of the Act. Spun-Jee and U.S.
Lingerie,25 on which Respondent relies, do not stand for the
proposition that mere economic hardship amounts to unu-
sual circumstances excusing untimely withdrawal from a
multiemployer bargaining unit.
In Spun Jee, the Board held that although the
employer's withdrawal was otherwise untimely, the Union
24 N.L.RB. v. Los Angeles Yuma Freight Lines, 446 F.2d 210 (C.A. 9, 1971).
25 N L KB v. Spun-lee Corporation, 385 F.2d 379 (C.A. 2), remanding 152
NLRB 943 , supplemental decision 171 NLRB No 64; U S Lingerie Corpora-
tion, 170 NLRB 750.
was aware that the employer was in such dire economic
condition that he could not withstand a wage increase; that
he would be obliged to close the plant; and that he actually
moved to another location to reduce operating costs. In
these circumstances, the Board concluded, unusual circum-
stances were present. In U. S. Lingerie, the employer had
not merely been experiencing economic difficulties but was
actually in bankruptcy at the time.
Assuming that dire economic conditions can, under
some circumstances, amount to unusual circumstances, suf-
ficient to excuse untimely withdrawal from a multiemployer
bargaining unit, (or, here, failure to give timely notice of
intention not to be bound), it is evident that Respondent
was not faced with the dire conditions presented in the cited
cases. It was still engaged in the same business at the same
location, and doing business with substantially the same
customers albeit employing fewer employees. Assuming, in
favor of Respondent, that its volume of business in the last
calendar year actually declined as drastically as Blanken-
ship, its managing officer, claimed, there are too many im-
ponderables involved to attribute such business decline to
the necessity for paying the union wage scale.
It is found that no unusual circumstances existed which
relieved Respondent of the consequences of its failure to
give timely notice of its intention not to be bound by future
negotiations.
Respondent next contends that, even if it was bound
because of the failure to give appropriate notice by the
outcome of the negotiations between the MCA and the
Union, the Union subsequently waived the benefit of those
provisions. Again, relying by analogy on a series of cases
dealing with untimely withdrawal from multiemployer
units, Respondent argues that the Union waived or ac-
quiesced in Respondent's failure to give timely notice, as
well as to require it to execute the 1970 contract negotiated
between the MCA and the Union, by attempting to deal
with Respondent on an individual basis. The cases cited by
Respondent are factuall y inapposite.
In the Collins case,2 the Board held that the Union had
acquiesced in the employer's untimely withdrawal from the
multiemployer association shortly before final agreement
was reached, after approaching the employer to sign the
association agreement. There, the Board found that the un-
ion had not notified the employer that he was still deemed
to be bound by the association contract or removed the
employer's name from the contract; had actually negotiated
with the employer on an individual contract and granted
him concessions; had struck the employer in connection
with the individual bargaining rather than because of his
refusal to execute and abide by the association's contract;
had never claimed that the employer was bound by the
association agreement to comply with wage increases; and
had filed an unfair labor practice charge alleging a refusal
to bargain on an individual basis rather than on its refusal
to sign the association contract. In short, the Union by
unequivocal conduct had manifested its intention to deal
with the employer on an individual basis.
In. the Atlas case,27 the Board found acquiescence
based on a clear and unequivocal waiver in permitting other
26 Joseph C. Collins and Company, 184 NLRB No. 113.
"A day Sheet Metal Works, 148 NLRB 27.
1142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employers to withdraw from the association; in actually
bargaining with the employer on an individual basis, and
submitting contract proposals; and in failing to request the
employer to sign or comply with the association contract, or
to attempt to enforce it as to that employer.
Similarly, in C & M Construction,2 8 as Respondent
points out in its brief, "[o]ne of the factors relied upon by
the Board to find such [u]nion acquiescence was the fact
that the [u]nion contacted C & M to sign the agreement."
The Board noted that, "had the Union refused to accept
respondent's withdrawal from the Council there would have
been no need for it to do anything further, inasmuch as the
execution by the association was sufficient to bind all mem-
bers in this connection ." On this issue , the decisions relied
on by Respondent stand for no more than the proposition
that a union's clear and unequivocal waiver of or acquies-
cence in an employer's withdrawal from a multiemployer
association, or actual bargaining with a member of the unit
on an individual basis, may relieve the employer of its for-
mer obligation to be bound as a member of a multiemployer
association.
The decision in the Strong case,29 however, not cited by
Respondent, is more apposite. There, the employer con-
tended that the union had acquiesced in its withdrawal from
the multiemployer group and its release from the obliga-
tions of the multiemployer collective-bargaining agreement.
The Board's holding that the union's conduct in asking the
employer to sign an individual contract after the multiem-
ployer contract had been negotiated did not constitute a
waiver of the union's right to insist that the employer adhere
to and abide by the multiemployer contract was enforced by
the court of appeals. Nor did the union's failure to notify
the employer that he was bound by the association contract
constitute a waiver of or acquiescence in the employer's
attempted withdrawal. The court enforced the Board's or-
der, except as it provided for payment of fringe benefits,
which it held to be "an order to Respondent to carry out
provisions of the contract," and thus beyond the Board's
power. The Supreme Court reversed, however, holding that
the remedy was within the Board's remedial powers. The
Board's holding, affirmed by the court of appeals, that the
union 's conduct in requesting the employer to sign an indi-
vidual contract after the multiemployer contract had been
negotiated and its failure to notify the employer that he was
bound by the master contract did not amount to a waiver,
was left intact.
Contending that it harbored a good-faith doubt of the
Union's majority, Respondent asserts that prior to the fil-
mg of its representation petition four out of its six employ-
ees 30 informed Blankenship that they no longer wished to
be represented by the Union. On closer examination,
Blankenship's testimony reveals that what these employees
merely told him was that if he found that he could not
compete with other employers under the increased wage
scale and fringe benefits, and that if this resulted in a decline
28 C & M Construction Company, 147 NLRB 843.
29 N.L. R.B. v. Strong, 386 F .2d 929 (C.A. 9, 1967), enforcing , as modified,
152 NLRB 9, revised (as to remedy) 393 U S. 357
30 The petition actually alleges the number of employees as seven This
may have included one admitted supervisor . Payroll records for the month
of June, however , list a total of 10 employees, 4 of whom did not work during
this period.
in business which might cause layoffs, they would be willing
to work without a union contract. This is insufficient to
constitute a repudiation of the Union justifying a good-faith
doubt of majority. Admittedly none of the employees, all-
union members (Blankenship, himself, had been a member
of the Union though his status was in some doubt because
of his arrears in payment of dues), resigned or notified the
Union or their employer of their intention to do so. On the
contrary, as Blankenship testified in the representation pro-
ceeding, all his employees remained union members, al-
though he attributed this to their desire to retain their
membership in the event they later went to work in a union
shop, as well as to retain any benefits accruing to them from
membership.
Although, according to Blankenship's self-serving and
uncorroborated testimony, these four employees, including
Ira Blankenship, his brother, told him that they would pre-
fer not to continue working " as a union shop"; would "just
as soon not be represented by Local 412," and asked him
how they could get "out from under the jurisdiction of 412";
and that they were concerned that if they remained union
members and attempted to abide by the Union's rules and
regulations, it is evident, as Blankenship testified, that they
were chiefly concerned with whether the Company might
lose business and the extent to which their employment
prospects might be affected. Additionally, according to
Blankenship, he overheard other employees, whom he did
not identify, express similar views to other employees.
It should be noted that, with regard to the four named
employees, Blankenship was vague and uncertain as to
whether two of these employees had talked to him about
their alleged desire to withdraw from union representation
before the filing of the representation petition, and two,
afterward. Elsewhere, he testified that only one or two of the
employees came to him "sometime after the latter part of
June" (the petition having been filed on June 19), and one
or two later on.
Although the Board administratively ruled that these
facts, if proven, were sufficient to constitute objective con-
siderations to support the filing of a representation petition,
it does not necessarily follow that theyjustified a good-faith
doubt of the Union's majority, especially in light of the
posture in which the employees expressed their wishes.
Moreover, as the Board has said,
To be of any significance, the evidence of dissatisfac-
tion with a validly recognized incumbent union must
come from the employees themselves , not from the
employer on their behalf.31
Significantly, when asked by Respondent 's counsel
whether, at the time of the filing of the petition, he believed
that a majority of the employees no longer wished to be
represented by the Union, Blankenship testified, "I don't
know whether the majority had spoken to me about it or
not, but some of them had." Thus, he conceded that he
himself was unaware whether a majority of the employees
had expressed a desire not to be represented by the Union
prior to the filing of the petition.
It should also be noted that Blankenship testified that
it was dunng the last 2 weeks in June that the four employ-
ees told him that they were willing to work without a union
31 Terrell Machine Company, 173 NLRB 1480, 1482.
SERV-ALL COMPANY 1143
contract. According to him, his employees first began to
express their disaffection when their Employer's business
"started falling off," which Blankenship fixed as a period of
4 or 5 months after the new contract had been negotiated.
The fact is that the employees worked under the new wage
scale, provided for in the 1970 agreement, for some 2 or 3
weeks before indicating, according to Blankenship, their
dissatisfaction . Later, he conceded that none of the employ-
ees had indicated that they were willing to work without a
union contract between June 16, when the strike was settled,
and June 19, when the representation petition was filed.
However, after a suggestion in an objection by
Respondent's counsel, Blankenship testified that "during
the contract negotiations there was some discussion in my
office between one, or two of the employees about the nego-
tiations, whether we could live with it or not." Elsewhere,
Blankenship testified that "[m]ost of [his discussions with
the employees occurred] after the negotiations were com-
plete."
If, as Blankenship testified, only two of the four named
employees told him before the filing of the petition. 32 that
they would prefer to work without a union contract (rather
than face possible layoffs which might result from loss of
business by the employer), they would have constituted far
less than a majority, since, even according to Blankenship,
he had six or eight unit employees at the time. After iden-
tifying the four employees by name, under prompting by
Respondent's counsel , he added the name of John E. Mas-
tin, service manager, an admitted supervisor, as an employ-
ee who might have mentioned the subject once or twice. As
to another employee, Jim Hennigan, who was on the payroll
in June, despite Respondent counsel's suggestion, Blanken-
ship testified that he never had a conversation with him on
the subject. Blankenship did testify, however, that he spoke
to employee John C. Morgan almost daily during the month
of June, and that Morgan was "concerned with what [the
union contract] was going to do to us."
The record fairly establishes that Respondent did not
raise the question of the Union's majonty until after con-
tract negotiations had been completed, the strike settled,
and the agreement executed. The evidence further estab-
lishes that a majority of the employees did not inform their
employer that they no longer wished to be represented by
the Union. In Blankenship's words, "The only time they
spoke to me about it was their concern about whether they
were going to get priced out of their jobs. I said, `I don't
know, boys. We will have to wait and see.' They were con-
cerned about if they were going to get in all the hours they
needed, then, to make a living. None of these questions I
could answer because I had no idea what the negotiations
were that were going on, what the outcome would be."
It requires no great stretch of the imagination to infer
that Blankenship fostered, if indeed he did not inspire, the
fear that if the Company were required to abide by the new
wage scales and fringe benefits, the employees could face
layoffs. Although the complaint does not allege this conduct
as a violation, in view of Blankenship's admission at the
representation hearing that his reason for filing the petition
was to "get out of the contract," the inference that he dis-
cussed this with the employees is inescapable.
Moreover, the record establishes that at least four em-
ployees refused to work while the Union was on strike.
Furthermore, Blankenship testified that employees Spencer
and Mastin, and possibly Anthony, who were concerned
whether Respondent would agree to pay the wage increase
retroactive to April 1, indicated to him that they would not
work without a contract 33
It is therefore found that Respondent did not, prior to
June 19, 1970, or at any time thereafter, entertain a good-
faith doubt of the Union's majority and that no such claim
was made until after the new contract had been negotiated
between the MCA and the Union.34
It is further found, on the basis of the foregoing and
upon the entire record, that the objective criteria upon
which Respondent allegedly relied were insufficient to jus-
tify a good-faith doubt of the Union's majonty on or about
June 19, 1970, and that its refusal to recognize and bargain
with the Union was not motivated by a good-faith doubt of
the Union's majority.
Turning to the defense of waiver, Respondent contends
that, by soliciting nonmember signatories, including Re-
spondent, to execute contracts based upon the 1970 agree-
ment between the MCA and the Union, the Union engaged
in individual bargaining, thereby waiving any right to rely
on the language of the previous contracts requiring non-
member signatories to be bound, in the absence of appropri-
ate notice, by any future contract negotiated by the
Association.
The record shows that after the settlement of the strike
and the execution of the new contract, the Union obtained
"letters of intent" from some 20 or 30 nonmember signato-
nes agreeing to be bound by the terms of the labor agree-
ment negotiated between the MCA and the Union.35
According to Respondent, the Union solicited Respondent
to sign a similar letter of intent, which it refused to do. By
this conduct, Respondent contends, the Union manifested
33 Since September 1970, Blankenship testified, Respondent has had only
three unit employees, Odom, Anthony, and his brother, Blankenship, whom
he has been paying at the former rate of $6 77 an hour, retroactive to April
1, 1970, following completion of negotiations for the new contract, in con-
trast to the new wage rate of $7.77
34 Respondent has belatedly raised , for the first time at the heanng, the
question of union majority at the time of the signmg.of the initial contract
by Blankenship as a sole proprietor in 1966, contending , in effect, that the
Union never demonstrated its majority prior to his signing of the contract.
"A prior contract, lawful on its face, raises a presumption that the contracting
union was the majority representative at the time the contract was executed,
during the life of the contract, and thereafter . Barrington Plaza and Tragniew,
Inc, 185 NLRB No 132 An employer, however, may defend a refusal to
bargain on the terms of a new contract if it can "demonstrate by objective
considerations that it has some reasonable ground for believing that the
union has lost its majority status" United States Gypsum Company, 157
NLRB 652, 656.
"The Board in an analagous case has held that events time-barred by
the limitations provision of Section 10(b) of the Act (footnote omitted) may
not be used to overcome the presumption of majonty status raised by a
contract valid on its face . (Citing Barrington Plaza et a! , supra) As the
legality of the Union's initial recognition was no longer subject to direct
attack under the Act at the time of Respondent 's refusal to bargain with the
Union, . Respondent may not defend such refusal by an attack on its initial
recognition of the Union." Dayton Motels, Inc d/b/a Holiday Inn of Dayton,
192 NLRB No 112.
32 At another point in his testimony , Blankenship testified , " I would say 35 Respondent contends that the Union solicited these letters; the Union,
within those three days [June 16 to 19] 1 had no contact from any of the that the employers mailed them to the Union on their own initiative In either
employees about this matter." case, the disagreement is immaterial to a resolution of the issue of waiver.
1144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an intention to deal with it on an individual basis rather
than as a nonmember employer automatically bound to
execute whatever contract was eventually negotiated be-
tween the MCA and the Union.
Business Manager Smith conceded that he had dis-
cussed with Blankenship the matter of signing a letter, but
testified that this was prompted by inquires from several of
Respondent's employees who were concerned whether Re-
spondent would honor the new wage scales and the provi-
sion for retroactivity regardless of whether they worked
during the strike.36 Smith also testified that several of
Respondent's employees raised the question whether they
could perform emergency work for Respondent during the
strike against MCA members, in view of the interim ar-
rangement which had been reached between the MCA and
the Union permitting such work. According to Smith, he
had at no time notified Respondent's employees that they
could not work for Respondent during the strike without
regard to whether the work was of an emergency nature.
Smith conceded that in a telephone conversation with
Blankenship he did ask him if he would be receptive to
signing a letter of intent in order to allay the concern of the
employees. According to Smith, many of the nonmember
employers including Respondent operated during the strike,
although some employees left "of their own volition" and
did not return to work until after the new contract was
ratified. This situation prevailed, in most instances, both
before and after the "letters of intent" were received by the
Union.
Neither the evidence regarding the Union's solicitation
of letters of intent, nor of its subsequent solicitation of
nonmember employers to sign the contract arrived at be-
tween the MCA and the Union, warrant the conclusion
that, by such conduct, the Union waived or abandoned its
right to maintain that, in the absence of requisite notice, the
nonmember signatories were bound by the new contract 37
The testimony relied on by Respondent relating to Business
Manager Smith's attempts to obtain a signed contract does
not support Respondent's contention that the Union sought
to engage in individual bargaining.38 If anything, this testi-
mony reinforces the General Counsel's contention that Re-
spondent was at no time a member of the multiemployer
36 The Union maintains that the strike involved only members of the
Association . It appears , however, that four employees did not work during
the strike , although the Union insists that it advised Respondent 's employees
that the Union was not on strike against its employer ; that the Union main-
tained it had a contract with it, but that if the employees were in doubt, it
was their prerogative not to work.
37 See N. L.R.B. v. Strong, In. 29.
38 From Smith 's cross-examination.
Q. Can you tell us why signatures of nonmembers of MCA were
solicited and signed in (sic) the current labor agreement whereas mem-
bers of MCA were not solicited to sign the current labor agreement?
A. Yes, sir. To the best of my knowledge , it was as follows: Mem-
bers of MCA are automatically bound by the signatures of those on the
labor agreement , by the president of the organization and the secretary
of the organization . Individual signatures of members of MCA are not
solicited.
Q. So I assume the signing of the agreement by the officers of MCA
makes it binding upon the members of MCA However, the MCA's
signing of the contract through its officers is not binding upon the
nonmembers and, therefore , you have to solicit the signatures of the
nonmembers upon the MCA contract form?
A. That is correct.
unit, but merely one of some 30 employers unaffiliated with
the Association who had committed themselves, in-the ab-
sence of requisite notice, to be bound by the outcome of
future negotiations between the immediate parties to the
contract.
The further contention that by communicating with
Blankenship in January and February 1971, with a view to
"setting up an appointment to get an agreement signed" the
Union sought to engage Respondent in individual bargain-
ing, is equally untenable. Business Manager Smith testified
that, in communicating with Blankenship in January and
February, he proposed a meeting to discuss the signing of
the agreement, an obvious reference to the new labor con-
tract. Despite repeated efforts by Respondent's counsel to
elicit an admission that the business representative had at-
tempted to engage in individual bargaining with Respon-
dent, Smith adhered to his basic position. Thus, under
cross-examination, Smith testified:
Q. Were you willing to negotiate any kind of
agreement with Mr. Blankenship or Serv-All, that
would in any way be different from your printed book-
let that was negotiated with MCA, that's in evidence
here?
A. I would be willing to negotiate with Mr. Blank-
enship, hopefully arriving at the same agreement that
we have with the rest of the contractors.
Q. Do you have any agreement with any other
concern that is any different from the form agreement
negotiated with MCA?
A. Yes.
Q. You didn't tell him that the only choice he
would have to either be, would either be to sign the
MCA contract or none at all?
A. I didn't say that.
Q. You didn't ask him if he would sign the MCA
contract, did you?
A. That's the only contract I have.
Q. Did you ask him if he would sign the MCA
contract?
A. Not in so many words.
Q. Have you ever asked Mr. Blankenship if he
would sign a 1970 MCA contract?
A. Yes, sir.
Q. When?
A. Some time during January, as I recall.
Q. In another conversation?
A. No, I told you I had basically three conversa-
tions with Mr. Blankenship, and as I pointed out to
you, I said we need to sit down and talk about an
agreement . Now, this is asking a man to sign a doc-
ument. What else is there to do?
Q. But you have told me, have you not, that you
did not in January of this year ask, or at any other time,
excuse me. You just told me that you did not in January
of this year ask Mr. Blankenship to sign the MCA 1970
contract. Is that correct?
A. Are you asking me if I said will you sign an
agreement?
SERV-ALL COMPANY 1145
Q. Yes.
A. No, I didn't say that.
Q. Specifically you did not ask him if he was will-
ing to sign a copy of the 1970 MCA contract, did you?
A. No, sir, but he had been asked to sign that.
Q. Do you know when he had been asked to sign
that?
A. Yes.
Q. When?
A. November 6, right here in this room.
Q. In the R Case hearing?
A. Yes.
Q. Do you know if he was ever asked to sign it on
any other occasion [than] the question Mr. Kool [union
attorney] asked him in the R Case hearing on Novem-
ber 6?
A. It is difficult to get anyone to sign anything that
you can't get to talk to you.
Q. Answer my question. Do you know of any per-
son who has asked Mr. Blankenship or anyone else
representing Serv-All, to sign the 1970 MCA contract,
or a copy of that contract, other than the question that
he was asked from Mr. Kool on that subject, at the
November 6 hearing?
A. The only contract that I have spoken with Mr.
Blankenship about is the 1970 agreement. [Emphasis
supplied.]
This evidence, considered as a whole, adequately estab-
lishes that Smith's purpose in calling Blankenship in Janu-
ary and February 1971 was to secure Respondent's
signature to the form of contract executed by the MCA and
the Union, and not to engage it in individual bargaining.
That the Union might have been willing to consider modifi-
cations of the labor contract, in order to reach an accord
with this employer, does not establish either that the Union
had waived or abandoned its right to insist that this non-
member employer execute a counterpart of the MCA agree-
ment, or that it manifested an intention or willingness to
bargain with this employer on an individual basis, rather
than to require it to be bound by the contract already nego-
tiated by the MCA.
Finally, Respondent's contention that the complaint is
barred by the provisions of Section 10(b) under the authori-
ty of the Los Angeles Yuma Freight Lines case 39 is mis-
placed. Respondent contends, as the court said there, that
"it is only by reliance on the Company's time-barred con-
duct as being a refusal to bargain that the Board is able to
draw the inference that the ater conduct continued the re-
fusal into the six month period." The court held that the
failure to process grievances during the 10(b) period did not,
in itself , constitute an unfair labor practice , despite a finding
by the Board that the company had engaged in a continuing
refusal to bargain since, as well as prior to, the 10(b) period.
What Respondent has overlooked or ignored is the lan-
guage of the court, which removes the present case from the
application of that decision.
There, the court stated, "To avoid the time bar the local
unions involved would have had to renew their request for
39 N.L.RB. v. Los Angeles Yuma Freight Lines, 446 F .2d 210 (C.A. 9, 1971)
enforcement denied 172 NLRB No. 40.
recognition and bargaining within the six month period.
[Footnote omitted.] There is no Board finding that they
did." And later, "The Trial Examiner found that Local 208
requested the Company on April 27, 1964 to sign the new
Agreement by no later than July 1, 1964. Arguably, the
Company's failure so to sign by that date was a refusal to
bargain within the six month period. However, the Board,
for its own reasons , right or wrong, chose not to rely on that
request to sign. It would not be appropriate for this Court
to supplant the Board's judgment on this matter, especially
when the Board does not urge us to do so."
Here, the record clearly establishes that at the repre-
sentation hearing on November 6, 1970, the Union, through
its counsel, requested Respondent to sign a copy of the
contract negotiated between the MCA and the Union, and
that the Respondent stood on its legal position at that hear-
ing in refusing to do so. Assuming this did not constitute a
sufficient request for recognition and bargaining, the
,Union's undisputed demand in January and February that
Respondent sign the labor contract negotiated with the
MCA constituted a separate and distinct refusal to bargain,
well within the 6-month period. The complaint is, therefore,
not barred by Section 10(b) of the Act.
It is therefore found, upon the basis of the foregoing,
and upon the entire record, that the divers defenses raised
by Respondent are without merit.
C. The Refusal to Bargain
1. The appropriate unit
The complaint alleges that:
All journeymen and apprentice plumbers, steam-
fitters, pipe fitters, refrigeration fitters, gas fitters, and
lead burners employed by Respondent, but excluding
office clerical employees, guards, and supervisors as
defined in the Act, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
The description of the appropriate unit is derived from
the recognition clause in the 1966 labor contract, a copy of
which Blankenship signed. Under this agreement he, and
later Respondent, submitted monthly payroll reports for
fringe benefits contributed on behalf of the employees in the
above-described unit. The 1970 labor agreement between
the MCA and Local 412 contained the same unit descrip-
tion.
Respondent disputes the appropriateness of this unit,
contending that it classifies its employees as servicemen
rather than as pipefitters or steamfitters, classifications used
by the Union. It is obvious that Respondent's employees are
encompassed within the definition of the appropriate unit,
as described in the 1966 labor agreement.
Moreover, the description of the appropriate unit con-
tained in the employer representation petition did not differ
materially from the unit alleged in the complaint, and was
the same unit to which the parties stipulated at the hearing.
As Respondent has filed monthly payroll reports to the
industry fund for all its employees, it is evident that Respon-
dent has considered them covered under the unit described
in the 1966 and subsequent contracts. It is not contended
that there has been any material change in the nature of the
1146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work performed by Respondent's employees since the ini-
tial contract was signed in 1966.
It is therefore found, on the basis of the foregoing, and
upon the entire record, that the unit described above is, and
at all times material herein has been, a unit appropriate for
the purposes of collective bargaining within the means of
Section 9(b) of the Act 40
2. The Union's majority status
It is undisputed that at the time of the filing of the
employer representation petition and the hearing in that
proceeding, all Respondent's employees were members of
the Union, and that the Union represented not merely a
majority, but all Respondent's employees in the appropriate
unit.
It is well settled that, even in the absence of a Board
certification, there is a presumption that a contracting union
continues as majority representative of such unit employees.
This, of course, is a rebuttable presumption, but clear and
convincing proof is required to establish that the union has
ceased to be the bargaining agent 41
The issue of whether Respondent has demonstrated by
objective considerations its belief that the Union had lost its
majority status by clear and convincing proof has been
considered elsewhere, and for reasons already stated, it is
found that Respondent has not established that it had a
reasonable basis for its belief that the Union had ceased to
be the majority representative of its employees. Moreover,
the record fairly establishes that, in withdrawing recogni-
tion from the Union, Respondent was motivated not by a
desire to comply with the wishes of its employees but rather
by a determination to extricate itself from a contract to
which it had agreed in advance to be bound.
It is further found that Respondent did not, at the time
it refused to bargain and filed its petition for representation,
have either a good-faith doubt of the Union's majority or
reasonable ground for believing that a majority of its em-
ployees no longer desired to be represented by the Union.
At the very least, Respondent has failed to overcome the
presumption of the Union's continuing majority.
Finally, it is found, on the basis of the foregoing and
upon the entire record, that Respondent has refused to bar-
gain with the Union as exclusive representative of its em-
ployees in an appropriate unit since about June 19, 1971,
when it attempted to withdraw from its commitment to be
bound by the outcome of negotiations between the MCA
and the Union, and when it later refused, on November 6,
1970, and thereafter in January and February 1971, after the
Union's demand,, to execute and be bound by the labor
contract negotiated between the MCA and the Union. It is
further found that, by failing and refusing to contribute the
health and welfare payments required under the 1970 con-
tract after September 21, 1970, Respondent has failed and
refused to bargain with the Union in violation of Section
.8(a)(5) and 8(d) of the Act.
It is unnecessary to find and no finding is made that,
by the filing of its representation petition on June 19, 1970,
and proceeding to a hearing on the petition, Respondent has
also failed and refused to bargain with the Union, as such
a finding would not affect the remedy.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent, set forth in section III,
above, occurring in connection with its operations de-
scribed in section I, above, have a close, intimate, and sub-
stantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
V THE REMEDY
40 Contrary to Respondent's contention , this determination is not affected
by the certification of the Union, pursuant to a petition filed by Associated
Plumbing , Heating and Piping Contractors of New Mexico, (Case 33-RC-
480), amended on November 24, 1965, to change the name of the employer
to Mechanical Contractors Association of New Mexico, Inc (Case 28-AC-
1), as exclusive representative of all employees of members of the Association
in the following described unit.
All journeymen plumbers, pipe fitters , pipe welders and their appren-
tices employed by employers located in New Mexico for whom the
Associated Plumbing, Heating and Piping Contractors of New Mexico
[Mechanical Contractors Association of New Mexico, Inc., as amended]
is the duly authorized bargaining representative but Excluding all other
trade craftsmen, office clerical, plant clerical , guards, professional and
supervisory employees.
It is obvious that this unit determination was intended to apply only to
employer-members of the Association and, if anything, supports the conclu-
sion that Respondent here was not to be deemed a member of the multiem-
ploer bargaining unit.
See Ref-Chem Co, 169 NLRB 377, 381; C & P Plaza Department Store,
163 NLRB 686, 688-9, where the Board held,
. Respondent asserts, in effect , that whenever a collective-bargaining
contract expires, the representative status of the incumbent union ceases
and an employer is relieved of the obligation to bargain No such propo-
sition can be validly maintained . On the contrary, it is well settled that
absent a good-faith doubt of majority status of an incumbent, an em-
ployer must continue to bargain in good faith with that union as the
designated agent of its employees , and the employer must demonstrate
by objective considerations that it had reason to believe the union had
lost its majority status.
Having found that Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1), (5),
and 8(d) by the conduct previously detailed, it will be rec-
ommended that it be ordered to cease and desist therefrom
and take certain affirmative action designed to effectuate
the policies of the Act.
It has been found that Respondent has failed and re-
fused, upon the Union's demand, to recognize and bargain
collectively with the Union as the exclusive representative
of its employees in an appropriate unit by (1) failing and
refusing, and continuing to fail and refuse, on and after
November 6, 1970, and, at least, since January and Feb-
ruary 1971, to execute a collective-bargaining agreement in
the form of the contract between the MCA and the Union;
(2) repudiating the Union's status as majority representative
of Respondent's employees in an appropriate unit, and re-
fusing to honor and abide by the 1970 labor agreement,
arrived at between the MCA and the Union; and (3) failing
and refusing, since April 1, 1971, to pay its unit employees
the wage increases provided for in the aforesaid collective-
bargaining agreement. It will, therefore, be recommended
that Respondent be required to execute, and give retroactive
effect to, a counterpart of the 1970 labor contract between
the MCA and the Union. It will further be recommended
SERV-ALL COMPANY 1147
that Respondent be required to make whole all its unit
employees for any losses they may have sustained by reason
of Respondent's failure to honor and apply the terms of the
labor agreement, and make such contributions on behalf of
its unit employees for health, welfare, and pension plans as
may be required under the terms of the 1970 labor contract
between the MCA and the Union together with interest
as prescribed in Isis Plumbing & Heating Co., 138 NLRB
716.42
The General Counsel maintains' that since the 1970
labor contract will expire on March 31, 1972 unless auto-
matically renewed, it is likely that the agreement may have
expired before this case has been finally adjudicated, and
that the Union will have been deprived of its collective-
bargaining rights during a substantial period of the term of
said agreement. He therefore proposes that Respondent be
ordered to bargain with the Union as exclusive representa-
tive of the unit employees for a reasonable period of time
after the expiration of said agreement, and, if an under-
standing is reached, to embody such understanding in a
signed agreement. Since the purpose of the remedy is to
restore the conditions which would have prevailed but for
Respondent's unfair labor practices, it is found that the
remedy recommended will adequately redress Respondent's
unfair labor practices.
Upon the basis of the foregoing findings of fact, and
upon the entire record in the case, the Trial Examiner makes
the following:
CONCLUSIONS OF LAW
1. Serv-All Company, Inc., Respondent herein, is, and
at all times material herein since about December 27, 1968,
has been, an employer within the meaning of Section 2(2),
and is, and at all times material herein has been, engaged
in commerce and in a business affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
2. At all times material herein since December 27, 1968,
Respondent has been, and is now, the alter ego of and
successor to the business of G. L. Blankenship, a sole pro-
prietorship, formerly doing business as Serv-All Co.
3. At all times material herein since about December
27, 1968, Respondent has been, and is now, bound by the
terms and conditions of the labor agreement entered into by
42 The fact that Respondent 's failure to make contributions to the health
and welfare plan may be remedied by an action for breach of contract does
not preclude a finding that Respondent has thereby violated Section 8(a)(5)
of the Act. " ... where an employer refuses to continue to make payment
to such a plan in derogation of an existing contract he in effect unilaterally
changes the wages of his employees who are beneficiary to that plan, and thus
violates Section 8(aX5) of the Act. See e .g. Toffenetti Restaurant Company,
Inc., 136 NLRB 1156, affd. 311 F 2d 219 (C.A 2); The Crestline Company,
133 NLRB 256; Cascade Employers Association, Inc., 126 NLRB 1014, rev-
ersed on other grounds 296 F.2d 42 (C A 9) Where the breach of the
contract is also an unfair labor practice , both the Board and the Courts have
jurisdiction to remedy the wrong that has been done. See, ne ee, e g , Section
10(a) of the . Act, and Smith v. Evening News Association, 371 U S 195."
George E Light Boat Storage, Inc., 153 NLRB 1209, fn. 1, enfd. as modified.
373 F 2d 762, in which the court said where "a breach of contract by repudia-
tion is an intrinsic part of the unfair labor practice of refusing to recognize
and bargain with a duly constituted employee representative the Board's
jurisdiction , under Section 10(c) includes the power to remedy that phase of
the unfair labor practice " See also Tom Johnson, Inc, 154 NLRB 1352, 1353,
affd. 378 F.2d 342 (C.A. 9).
its predecessor and alter ego, G. L. Blankenship, formerly
doing business as Serv-All Co., as well as all succeeding
amendments and agreements, including the labor contract
between Mechanical Contractors Association of New Mexi-
co, Inc., (MCA herein) and Local Union 412, effective April
1, 1970.
4. United Association of Journeymen and Apprentices
of the Plumbing and Pipefitting Industry of the United
States and Canada, Local Union No. 412, AFL-CIO, the
Union herein, is, and at all times material herein has been,
a labor organization within the meaning of Section 2(5) of
the Act.
5. At all times material herein since December 27, 1968,
G. L. Blankenship has been the president and general man-
ager of Respondent, and has been, and now is, an agent of
Respondent, acting on its behalf, and a supervisor within
the meaning of Section 2(11) of the Act.
6. By failing and neglecting to give notice of intention
not to be bound by the provisions of Article II, Section 4,
of the labor contract between G. L. Blankenship, sole pro-
prietor doing business as Serv-All Co., Respondent's prede-
cessor, and the Union executed August 18, 1966,
Blankenship became bound, and, since December 27, 1968,
Respondent, as his alter ego and successor, has been bound,
by the terms and conditions of the succeeding labor con-
tracts, including all amendments, extensions and renewals,
negotiated between MCA and the Union, including the
agreement executed by said parties, effective April 1, 1970.
7. At all times material herein, all journeymen and
apprentice plumbers, steamfitters, pipe fitters, refrigeration
fitters, gas fitters, and lead burners employed by Respon-
dent, but excluding office clerical employees, guards, and
supervisors as defined in the Act, have constituted a unit
appropriate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act.
8. At all times material herein, the Union has been the
exclusive representative of the employees in the unit de-
scribed above for the purposes of collective bargaining with-
in the meaning of Section 9(a) of the Act.
9. At all times since November 6, 1970, and, at least,
since January and February 1971, Respondent has engaged
in unfair labor practices within the meaning of Section
8(a)(5), (1) and 8(d) of the Act, by:
(a) Failing and refusing, and continuing to fail and
refuse, after demand, to execute the counterpart of the col-
lective-bargainmg agreement between the MCA and Local
412, effective April 1, 1970, after the Union's demand.
(b) Failing and refusing to execute said 1970 collective-
bargaining agreement on about July 5, 1971.
(c) Since about September 18, 1970, repudiating said
1970 labor contract, and refusing to recognize the Union as
majority representative of Respondent's employees in an
appropriate unit.
(d) Failing and refusing, on and after April 1, 1971, to
pay its unit employees the wage increases required by said
labor contract.
(e) Failing and refusing to pay health and welfare and
other contributions on behalf of its unit employees, required
by the labor contract between the MCA and the Union,
since September 21, 1970.
(f) Failing and refusing to pay on behalf of its unit
1148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees arrears in health and welfare and other contribu-
tions required as disclosed by an audit of Respondent's
books and records conducted on about October 21, 1970.
10. By failing and refusing to recognize and bargain
with the Union as exclusive representative of its unit em-
ployees, Respondent has interfered with, restrained and
coerced employees in the exercise of rights guaranteed in
Section 7, and has thereby engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
11. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
Upon the basis of the foregoing findings of fact, con-
clusions of law, and the entire record, and pursuant to Sec-
tion 10(c) of the Act, the Trial Examiner hereby issues the
following recommended:
ORDER43
Serv-All Company, Inc., of Albuquerque, New Mexico,
Respondent herein, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Failing and refusing to recognize and bargain col-
lectively with the Union as the exclusive bargaining repre-
sentative of all the employees in the appropriate unit
described above with regard to rates of pay, wages, hours
of employment, and other terms and conditions of employ-
ment.
(b) Unilaterally, and without prior notice to and con-
sultation with the Union, effecting changes in the terms and
conditions of employment of its employees in the appropn-
ate unit.
(c) Failing or refusing, upon the Union's request, to
execute a counterpart of the collective-bargaining agree-
ment between MCA and the Union, effective from April 1,
1970 to March 31, 1972.
(d) Failing or refusing to adhere to and abide by the
terms and conditions of the collective-bargaining agreement
between MCA and the Union effective from April 1, 1970
to March 31, 1972.
(e) Failing or refusing, upon the Union's request, to
reinstate in full force and effect, from the period April 1,
1970, through March 31, 1972, the collective-bargaining
agreement described in the preceding subparagraph, with
regard to the employees in the appropriate unit described
above.
(f) Failing and refusing to file monthly payroll records,
together with contributions covering all health, welfare and
other benefits on behalf of its unit employees, as required
by the terms of the 1970 labor agreement.
(g) Failing and refusing to pay contributions for health,
welfare and other benefits found to be due as a result of the
43 In the event no exceptions are filed as provided by Section 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Section
102 48 of the Rules and Regulations , be adopted by the Board and become
its findings, conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes.
audit of Respondent's books and records on October 21,
1970.
(h) Failing and refusing to pay wage increases to its
unit employees, as required by the 1970 labor agreement.
(i) In any other manner failing or refusing to adhere to
and abide by the terms and provisions of the 1970 collec-
tive-bargaining agreement.
0) In any like or similar manner , interfering with, re-
straining or coercing its employees in the exercise of their
right to self-organization, to form labor organizations, to
join or assist the Union or any other labor organization, to
bargain collectively with representatives of their own choos-
ing or to engage in other concerted activities for the pur-
poses of mutual aid or protection as guaranteed by Section
7 of the National Labor Relations Act, as amended, or to
refrain from any or all such activities.
2. Take the following affirmative action which, it is
found, will effectuate the policies of the Act:
(a) Honor and give retroactive effect to the terms and
conditions of the collective-bargaining agreement, entered
into between the MCA and the Union, effective from April
1, 1970 through March 31, 1972, including, but not limited
to, the provisions relating to wages and other employment
benefits, and, in the manner set forth in the section of this
decision entitled "The Remedy," make whole its employees
for such losses as they may have suffered by reason of
Respondent's failure to honor and apply the terms of such
labor agreement,44 together with interest as proscribed in
Isis Plumbing & Heating Co., 138 NLRB 716.
(b) Upon request, execute forthwith and deliver to the
Union a counterpart of the collective-bargaining agreement
between MCA and the Union, effective from April 1, 1970
through March 31, 1972.
(c) Upon request, institute in full force and effect for
the period from April 1, 1970 through March 31, 1972, the
collective-bargaining agreement between MCA and the Un-
ion described above.
(d) Upon request, bargain collectively with United As-
sociation of Journeymen and Apprentices of the Plumbing
and Pipefitting Industry of the United States and Canada,
Local Union 412, AFL-CIO, as the exclusive representative
of all employees, in the appropriate unit with respect to rates
of pay, hours of employment and other terms and condi-
tions of employment, and, if an understanding is reached,
embody such understanding in a signed agreement.
(e) Reimburse its employees in the appropriate unit
described above, for any loss of earnings they may have
sustained by reason of Respondent's failure to honor and
abide by the 1970 labor contract, including failure to pay
wage increases provided for therein, together with all contri-
butions for health, welfare and other benefits provided for
in said agreement in the manner set forth in the section of
this decision entitled "The Remedy."
(f) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other records necessary or
useful to analyze to determine the amount of any money
due under the terms of this recommended Order.
(g) Post at its place of business in Albuquerque, New
44 Nelson-Hershfield Electronics, 188 NLRB No 5 and cases cited therein.
SERV-ALL COMPANY 1149
Mexico, copies of the attached notice marked "Appen-
dix." 45 Copies of said notice, on forms provided by the
Regional Director for Region 28, shall, after being duly
signed by Respondent's authorized representative, be post-
ed by it immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in conspic-
uous places, including all places where notices to its employ-
ees are customarily posted. Reasonable steps shall be taken
by Respondent to ensure that said notices are not altered,
defaced or covered by any other material.
(h) Mail copies of the attached notice to each former
unit employee, in Respondent's employ during the period
from September 18, 1970 to the date of compliance here-
with, at such former employee' s last known address.
(i) Notify the Regional Director for Region 28, in wnt-
ing, within 20 days from the date of receipt of this Decision,
what steps Respondent has taken to comply herewith 46
45 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
46 In the event that this recommended Order is adopted by the Board after
exceptions have been filed, this provision shall be modified to read: "Notify
the Regional Director for Region 28, in writing, within 20 days from the date
of this Order, what steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT fail or refuse to recognize and bargain
collectively with United Association of Journeymen
and Apprentices of the Plumbing and Pipefitting In-
dustry of the United States and Canada, Local Union
No. 412, AFL-CIO, as the exclusive bargaining repre-
sentative of all the employees in the appropriate unit
described below with regard to rates of pay, wages,
hours of employment, and other terms and conditions
of employment.
WE WILL NOT unilaterally, and without prior notice
to, and consultation with the Union, effect changes in
the terms and conditions of employment of our em-
ployees in the appropriate unit.
WE WILL NOT fail or refuse, upon said Union's re-
quest, to execute a counterpart of the collective-bar-
gaining agreement between Mechanical Contractors
Association of New Mexico, Inc. and said Union, ef-
fective from April 1, 1970 to March 31, 1972.
WE WILL NOT fail or refuse to adhere to and abide
by the terms add conditions of the collective-bargain-
ing agreement between MCA and said Union, effective
from April 1, 1970 to March 31, 1972.
WE WILL NOT fail or refuse , upon the Union's re-
quest, to reinstate in full force and effect , from the
period April 1, 1970 through March 31, 1972, the col-
lective-bargaining agreement described in the preced-
ing paragraph, with regard to the employees in the
appropriate unit described below.
WE WILL NOT fail or refuse to file monthly payroll
records, together with contributions covering all
health, welfare and other benefits on behalf of our unit
employees, as required by the terms of the 1970 labor
agreement.
WE WILL NOT fail and refuse to pay contributions
for health, welfare and other benefits due as a result of
the audit of our books and records on October 21, 1970.
WE WILL NOT fail and refuse to pay wage increases
to our unit employees, as required by the 1970 labor
agreement.
WE WILL NOT in any other manner fail or refuse to
adhere to and abide by the 1970 collective-bargaining
agreement.
WE WILL NOT in any like or similar manner interfere
with, restrain or coerce our employees in the exercise
of their right to self-organization, to form labor organi-
zations, to join or assist the Union or any other labor
organization, to bargain collectively with representa-
tives of their own choosing or to engage in other con-
certed activities for the purpose of mutual aid or
protection as guaranteed by Section 7 of the National
Labor Relations Act, as amended, or to refrain from
any or all such activities.
WE WILL honor and give retroactive effect to the
terms and conditions of the collective- bargaining
agreement, entered into between the MCA and the
Union, effective from April 1, 1970 through March 31,
1972, including, but not limited to, the provisions rela-
ting to wages and other employment benefits , and, in
the manner set forth in the section of the Decision
entitled "The Remedy," make whole our employees for
such losses as they may have suffered by reason of our
failure to honor and apply the terms of such labor
agreement, together with interest.
WE WILL, upon request, execute forthwith and de-
liver to the Union a counterpart of the collective-bar-
gaining agreement between MCA and the, Union,
effective from April 1, 1970 through March 31, 1972.
WE WILL, upon request, institute in full force and
effect for the period from April 1, 1970 through March
31, 1972, the collective-bargaining agreement between
MCA and the Union described above.
WE WILL, upon request, bargain collectively with
the Union as the exclusive representative of all employ-
ees in the appropriate unit with respect to rates of pay,
hours of employment and other terms and conditions
of employment, and, if an understanding is reached,
embody such understanding in a signed agreement.
WE WILL reimburse our employees in the appropri-
ate unit described below, for any loss of earnings they
may have sustained by reason of our failure to honor
and abide by the 1970 labor contract, including failure
to pay wage increases provided for therein , together.
with all contributions for health, welfare and other ben-
efits provided for in said agreement, in the manner set
forth in the section of the Decision entitled "The Rem-
edy."
WE WILL mail copies of this notice to each former
1150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unit employee in our employ dung the period from
September 18, 1970 to the date of compliance , at such
former employee 's last known address.
The appropriate unit is:
All journeymen and apprentice plumbers , steamfit-
ters , pipe fitters , refrigeration fitters , gas fitters, and
lead burners employed by us , but excluding office
clerical employees, guards , and supervisors as de-
fined in the Act.
SERV-ALL COMPANY, INC
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material . Any questions concerning
this notice or compliance with its provisions may be direct-
ed to the Board's Office, Federal Building and U.S. Court
House , 500 Gold Avenue , Room 7011 , P.O. Box 2146, Albu-
querque , New Mexico 87103, Telephone 505-843-2555.