Shamrock Systems, Inc.

National Labor Relations Board - Board Decisions

Nov 23, 1965

155 N.L.R.B. 1120 (N.L.R.B. 1965)

1120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Regional Director for Region 19, after being duly signed by Respondent 's authorized
representative , shall be posted by the Respondent immediately upon receipt thereof,
and be maintained by it for 60 consecutive days. Reasonable steps shall be taken by
the Respondent to insure that such notices are not altered , defaced, or covered by
any other material.
(b) Sign and mail copies of said notice to the Regional Director for Region 19
for posting by the Association and Hill , those employers being willing , at all locations
where notices to their employees are customarily posted.
(c) Notify the Regional Director for Region 19, in writing, within 20 days from the
date of receipt of this Decision , what steps Respondent has taken to comply herewith .4
It is further recommended that unless on or before 20 days from the date of receipt
of this Decision the Respondent notifies the Regional Director that it will comply
with the foregoing recommendations, the National Labor Relations Board issue an
order requiring the Respondent to take the action aforesaid.
A In the event that this Recommended Order be adopted by the Board , this provision
shall be modified to read: "Notify said Regional Director, In writing, within 10 days from
.the date of this Decision , what steps Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL OUR MEMBERS AND ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT engage in, or induce and encourage employees of Willis A. Hill,
general contractor, its subcontractors, or any other employer, to engage in, a
strike or a refusal in the course of such employment to use or handle any mate-
rials or to perform any services, or threaten, coerce, or restrain Hill, its subcon-
tractors, or any other employer, by a strike or picketing where in either case an
object thereof is to force or require Hill to enter into any agreement which is
prohibited by Section 8 (e) of the Act.
WE WILL NOT through our officers, agents, or representatives, or in any other
manner, maintain, enforce, or apply, or attempt to enforce or apply article IX of
"Oregon State Building and Construction Trades Council Articles of Agreement"
to the extent found unlawful in this Decision.
LANE-COOS-CURRY-DOUGLAS COUNTIES BUILDING,
& CONSTRUCTION TRADES COUNCIL,
Labor Organization.
Dated------------------- By---------------------------------- --------(Representative) ( Ti tle)
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.
If employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board 's Regional Office , 612 Lincoln
Building, 208 SW. Fifth Avenue, Portland, Oregon, Telephone No. 226-3361.
Shamrock Systems, Inc. and Plumbers and Steamfitters Local
Union No. 587, affiliated with United Association of Journeymen
and Apprentices of the Plumbing and Pipe Fitting Industry of
the United States and Canada, AFL-CIO. Case No. 18-CA.-0011.
November 2,1965
DECISION AND ORDER
On August 24, 1965, Trial Examiner Boyd Leedom issued his
Decision, in the above- entitled proceeding , finding that the Respond-
155 NLRB No. 104.
SHAMROCK SYSTEMS,; INC. 1121
ent had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent and .the General Counsel filed excep-
tions to the Decision and supporting briefs, and the Respondent filled
cross-exceptions.-
. Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as -amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [alembers Brown, Fanning, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Decision,
the exceptions, the cross-exceptions, briefs, and the entire record in
this case, and hereby adopts the findings, conclusions, and recom-
mendations of the. Trial Examiner, with the '-united modifications
noted below.
THE REMEDY
We agree with the Trial Examiner's Recommended Order which
directs the Respondent to sign the agreement of October 8, 1964,
negotiated by the Sioux Falls Association of Plumbing Contractors
and the Charging Union. However, we find merit in the General
Counsel's contentions that the Respondent should also be ordered to
give. retroactive effect to the terms and conditions: of the agreement,
and that it should make whole its employees for any loss of wages or
other employment benefits they may have suffered as a result of
Respondent's failure to sign the agreement.' Accordingly, we shall so
modify the Trial Examiner's Recommended Order. Backpay, if any,
shall be computed in accordance with the formula set. forth in F. T.
TVo.olicorth Con pany, 90 NLRB 289, and shall bear interest as pre-
scribed in Isis. Piv-imbing c Heating Co., 138 _NLRB 716.
ORDER
Pursuant to Section 10(c) of the National Labor Relations pct, as
amended, the National Labor Relations Board hereby adopts as its
Order the Recommended Order of the. Trial Examiner, as modified
herein, and orders that the Respondent, Shamrock Systems, Inc.,
Sioux Falls, South Dakota, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial Examinee Recommended
Order, as so modified.
'`Ogle Protection Service, Inc., et al., 149 NLRB Z45; Tulsa Sheet Metal Works, Inc.,
149 NLRB 1497.
1122 DECISIONS OE -NATIONAL LABOR RELATIONS BOARD
1. -ubstitute the following as subparagraph :(b) of paragraph 1=--
(b) In any like or related manner interfering with, restraining,
or coercing its employees- in the exercise of the right to self-
organization, to form labor organizations, to join, or assist Plumbers
and Steamfitters Local Union-No-587, affiliated with United Associa-
tion of Journeymen and Apprentices of the Plumbing and Pipe-
Fitting Industry of the United States and Canada, AFL-CIO, or any
:other labor organization,. to bargain collectively through representa-
tives of-their own choosing andd to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid or protec-
tion, onto refrain from any or all such activities."
2. Delete subparagraph (a) of paragraph 2; reletter subpara-
graphs (b) and (c) as subparagraphs (d), and (e) ; and substitute the
following as subparagraphs (a), (b), and (c) of paragraph 2.
"(a) Forthwith sign the said agreement. of October 8, 1964.
"(b) Upon execution of the foregoing agreement, give-retroactive
effect to the terms and conditions of said agreement, 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 and
Order entitled `The Remedy.' make whole its employees for any losses
they may have suffered by reason of the Respondent's refusal to
execute the contract.
"(c) .Preserve and, upon request, make available to the Board and
its agents, for examination and copying, all payroll. records, social
security- payment records, tirecarcls, personnel records and reports,
,and all other records necessary to determine the amount due as back-
pay and other benefits for employees."
3. The following is added as an additional sentence to the first
indented paragraph of the Appendix
AN, '-E WILL .give retroactive effect to the terms and conditions of
said agreement, including but not limited to the provisions relat-
ing to wages and other employment benefits, and we shall make
whole our employees for any losses they may have suffered by
reason of our. refusal to sign the said agreement;
4. Add the following indented paragraph to the Appendix
WE- WILL NOT in any like or related manner interfere with,
restrain, or coerce Our employees in the exercise of the right: to
self-o^ganizatioi to form labor organizations, to join; or assist
the above-Hauled or any ether labor organizat ail, to bargain
collectively through representatives of their own choosing, and
to engage in other concerted activities for the purposeof collec-
tive bargaining or other mutual aid or protection, or to refrain
from any or all such activities.
SHAMROCK SYSTEMS, INC. 1123;
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
The only issue in this case is whether Respondent violated Section 8(a)(5) of the:
National Labor Relations Act, as amended, in refusing to sign and be bound by a
collective-bargaining agreement finally reached by a group of employers (bargaining.
jointly with the Union) after Respondent withdrew, or sought to withdraw, from the.
group.
The resolution of this ultimate issue depends on the answer to three questions: (1)
Did the employers' bargaining group constitute a multiemployer unit, as distinguished
from a group of employers bargaining together for convenience only, not committed
to a common result of the bargaining; (2) if so, did the steps the Respondent took to,
withdraw and avoid the results of the bargaining achieve its purpose; and (3), a ques-
tion really subordinate to (2), and the one that constitutes the thrust of Respondent's,
defense: did the fact that the Union entered into a separate agreement with one of
the employers in the group, before the group agreement was reached, destroy the unit
and release Respondent from the commitment flowing from membership in the multi-
employer unit?
The complaint, dated April 13, 1965, alleging the violation of Section 8(a) (5) was.
issued on a charge filed by the Union February 23, 1965, and an amended charge
filed February 26, 1965.
On the entire record, and Trial Examiner Boyd Leedom's observation of the
demeanor of the witnesses as they testified, and on consideration of the one brief filed,,
that in behalf of the General Counsel, I make the following findings of fact and con-
clusions of law, from which I determine that Respondent violated the Act as alleged-
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Respondent is a corporation engaged as a plumbing contractor with its principal
place of business in Sioux Falls, South Dakota.
I find and conclude that the allegations of the complaint as to the nature, extent, and.
volume of business done by Respondent (all admitted in the answer) are true, and
that the Respondent is therefore an employer engaged in commerce within the mean-
ing of the Act.
I further find and conclude that the Union is a labor organization within the mean-
ing of the Act, a matter also admitted by Respondent.
The dispute is not extensive as to the facts in the case. There is no substantial,
dispute, and I find and conclude from the evidence, that agreement was reached on a
contract between the Union and all employers in the bargaining group, excepting
Respondent, and one other concerning whom there is no controversy.
I also find and conclude, and there is no substantial dispute that: (1) The Union
requested Respondent to sign such contract and Respondent refused and continues to
refuse; and (2) Respondent is not complying with the terms of such agreement.
There is no substantial conflict in the evidence on the point, and I find and conclude,
that Respondent engaged with the other employers in joint bargaining with the Union
in previous years, and in several bargaining sessions of the series that culminated in
the contract in dispute.
The Question of the Multiemployer Unit
While the Respondent denies the allegations of paragraph 6 of the complaint, that
a unit consisting of all journeymen and apprentice plumbers employed by the
employer-members of the Sioux Falls Association of Plumbing Contractors, consisting
of certain named employers including Respondent, is a unit appropriate for the pur-
poses of collective bargaining within the meaning of Section 9(b) of the Act, it is
implicit in the record that such employees do constitute a bargaining unit and that
the multiemployer group of which Respondent was a member, was a group formed
for the purpose of bargaining in behalf of all member-employers with authority to
bind them to such contract as resulted from the bargaining. Notwithstanding such
denial in the answer, and the additional fact that the record contains no direct admis-
sion by Respondent of the appropriateness of this unit, the record does fairly disclose
a tacit admission that the employers' group over a period of years, and at all times
relevant to the issue in this case , constituted a unit for the purposes of collective bar-
gaining, with authority in the Association to bind the employer-members; and the
record is undisputed that in several years previously, and in 1964, the year in dispute,
the Association did bargain and execute a common contract each year for its members.
I find and conclude that Respondent, in its association with other employers, was,
in previous years and in 1964, engaging in collective bargaining in a multiemployer
212-809-66-vol. 15 5- 7 2
1124 DECISIONS OF = NATIONAL LABOR RELATIONS BOARD
unit, having vested the Association with authority to bind Respondent to the results of
the bargaining. Various factors, clearly appearing in the record, support this finding
and conclusion.
. In the first place, Respondent makes no direct attack on the nature of the Associa-
tion; that is to say, Respondent makes no specific contention, and offered no direct
evidence to establish, that the employers, in the group were bargaining each for himself
or itself. While counsel for Respondent did establish through the examination ofan
officer of the Respondent company, -that the Sioux Falls Association of Plumbing
Contractors was not a corporation, that it had no bylaws, no order of procedure, no
regular meetings, no dues, and no prescribed elections, this,show of the informality of
the Associations organization and operation, seems to constitute Respondent's whole
case against the multiemployer concept of bargaining. On the other hand, it is not
disputed in the record that this informal association over a period of several years
past, and in the year 1964, as previously stated, did bargain contracts for the employer-
members and did execute a single contract in. behalf of all, with each individual
,employer, under the established practice, also executing the contract.
In the light of this practice, the informal type of organization under which the
Association operated, does not destroy the efficacy of multiemployer bargaining. See
Neville Foundry Company, Inc., 122 NLRB 1187.
Another factor, clearly appearing in the evidence, in support of the mul*temployer
concept, is the unquestioned attitude and conduct of all of the employers within the
group. Although the record does not contain explicit testimony affirming the proposi-
tion that the members deemed themselves bound by the contract negotiated by the
bargaining committee chosen by the Association, the evidence clearly reveals an
attitude and conduct on the part of all members including Respondent, that all
employers were bound unless they withdrew from the group at an appropriate time
and in an appropriate manner.
Respondent's own letter addressed to the Association, dated October 5, 1964, is
evidence of such an attitude and conduct. This "withdrawal" letter was written after
the Union had signed a separate agreement with one of the member-employers, the
C. J. McDermott Plumbing & Heating Company, and was provoked by that separate
contract. The letter states:
It now appears that the Plumbers and Steamfitters Local x:587 is negotiating
with individual plumbing contractors as, evidenced by the contracts signed with
C. J. McDermott Plumbing.& Heating Company. of Sioux Falls, South Dakota.
The undersigned is hereby Withdrawing from the Sioux. Falls Association of
Plumbing Contractors .and you are instructed not to negotiate with the Union
or at all on. behalf of the undersigned.
The only fair interpretation of this letter is that Respondent, by writing it, sought to
terminate authority previously existing in the Association to bargain for and bind
Respondent
The Separate Contract With McDermott
Prior to the expiration of the contract that terminated on May 31, 1964, the Union
gave written notice to the Association of its desire to reopen and negotiate a new
agreement. Thereafter there were numerous bargaining sessions between the Union
and the Association with the latter participating through a three employer-member
bargaining team, and with Frank Farkas, a vice president of Respondent, also partici-
pating to some extent, in behalf of the Association in his capacity as president thereof.
The bargaining had begun in March, and on June 8, 1964, no agreement having been
reached, the Union called a strike against all employers in the group. It appears-from
the record and there is no evidence to the contrary, that there was some bargaining
during the strike between the Association and the Union up to October 8, 1964, when
a new agreement between the Association and the Union was entered into.
In the meantime and while the strike was in progress, and on or about August 15,
1964, one of the employers-of the multiemployer group, that is C. J. McDermott
Plumbing & Heating Company, entered into a separate contract With the Union cover-
ing wages, hours, and working conditions of this employer's employees.. There is no
evidence in the record to . support Respondent's allegation that the Union coerced this
employer into abandoning the Association and to-contract separately, and I find the
Union did not coerce the McDermott. firm.
While there is some suggestion in the record that it would be of legal significance if
the Union, rather than the Employer, had initiated the move for the separate contract,
the- question whether legal significance does attach, need not be decided, for the
record is clear, and without dispute that McDermott, who signed the separate agree-
ment, made the first contact for-the purpose of obtaining aseparate contract with the
Union.
SHAMROCK SYSTEMS, INC. 1125
Between the date when the McDermott firm signed a separate contract; and
,October 8, 1964, when the Association entered into its agreement with the Union, and
,on -or about September 24, 1964, there was at least one additional bargaining session
between the Association and the Union. in which Respondent, through its vice presi-
dent, Farkas, participated. Later and on October 5, 1964, and not previously, Farkas
:gave notice, through the letter hereinbefore set forth, to the Association that he was
withdrawing from the Association. The record indicates however, that he took no
steps to notify the Union directly of his withdrawal and that such notice came to the
Union finally through the Association.
There is little dispute, if any, in the record concerning the foregoing recitals dealing
with the McDermott contract. I find all of such recitals to be factual, supported by
-credible evidence. and from such facts conclude that the Union's execution of a
separate agreement with the McDonald company did not result in a dissolution of the
employer association, or relieve the Respondent of its commitment to abide by the
bargaining, absent its timely and effective withdrawal. See Anderson Lithograph
.Company, Inc., et al., 124 NLRB 920; and Ice Cream, Frozen Custard Industry
Employees, Drivers, Vendors and Allied Workers Union Local 717, International
Brotherhood of Teamsters, etc. (Ice Cream Council), 145 NLRB 865, 870.
Respondent's Attempt to Withdraw from the Unit
The question of the effect of Respondent's attempt to withdraw from the unit is
inseparably related to the problem of the Union's execution. of the separate agreement
with McDermott; and the determination of the efficacy of `Respondent's steps to with-
draw is resolved onthe same facts. The evidence establishes, as hereinbefore and now
found, that Respondent was a member of a multiemployer unit, bargaining with the
Union for a new contract; that the bargaining sessions took place from. March until
June 1964, when a strike was called; that bargaining continued through the strike,
though on a reduced scale; that during the strike one of the employers, McDermott,
contacted the Union for a separate contract, in August, and obtained it; that there-
after, in September, the Association bargained at least once with the Union when a
representative of Respondent participated; that on October 5, 1964, and not sooner,
Respondent gave notice to the Association, but-not to the Union, .that Respondent was
withdrawing from the Association; that on or about October 8, 1964, in a final bar-
gaining session between the Association and the Union, an agreement was reached. It
is quite clearly established under Board law, that in a situation such as this, where,
among other circumstances, a member of a multiemployer unit seeks-to withdraw
after the bargaining has bebgun, and after a separate contract has been made between
the union and an employer-member of the group, without obtaining the consent of
the union, such withdrawal is ineffective and the employer is therefore bound by the
agreement reached between the multiemployer unit and the union. See Anderson
Lithograph Company, Inc., cited above; Cosmopolitan Studios, Inc., 127 NLRB 788;
The Kroger Co., 148 NLRB 569; and Sheridan Creations, Inc., 148 NLRB 1503.
On the basis of all of the foregoing, I conclude that Respondent, in failing to
execute the agreement bar-gained on. its behalf with the Union-in-an appropriate multi-
employer unit, violated Section 8(a) (5) and thereby also violated Section 8( a) (1) in
the resulting denial and infringement of rights guaranteed employees under the Act.
THE REMEDY
Having found that Respondent has engaged in unfair labor practices in violation of
Section 8 (a) (5) and (1) of the Act, I will recommend that it cease and desist there-
from, and take certain affirmative action necessary to effectuate the policies of the Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions oflaw and the entire record in
the case, and pursuant to Section 10(c) of the National Labor Relations Act, as
amended I recommend that the Respondent, Shamrock Systems Inc.,- Sioux Falls,
South Dakota, its officers, agents, successors, and assigns, shall.:
1. Cease and desist from:
(a) Refusing to sign the agreement dated October 8, 1964, negotiated with the
Union on Respondent's behalf by the Sioux Falls Association of Plumbing
Contractors.
(b) In any like. or related manner interfering with,-restraining, or coercing its
employees in the exercise of the right to 'self-organization, to form labor organizations,
to join or assist Plumbers and Steamfitters Local Union No. 587, affiliated with United
Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Indus-
try of the United States and Canada, AFL-CIO, or any other labor organization, to
1126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargain collectively through representatives of their own choosing, and to engage in.
other concerted activities for the purpose of collective bargaining or other mutual aid
or protection, or to refrain from any or all such activities, except to the extent that.
such right may be affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment as authorized in Section 8(a) (3) of the Act.
2. Take the following affirmative action designed to effectuate the policies of the
Act:
(a) Forthwith sign the said agreement.
(b) Post at its place of business in Sioux Falls, South Dakota, copies of the attached.
notice marked "Appendix." 1 Copies of said notice, to be furnished by the Regional
Director for Region 18, shall, after being duly signed by Respondent, be posted by
Respondent immediately upon receipt thereof, and maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken to insure that said notices are
not altered, defaced, or covered with any material.
(c) Notify the Regional Director for Region 18, in writing, within 10 days from the-
receipt of this Order, of the steps taken to comply herewith.2
IIn the event that this Recommended Order be adopted by the Board, the words "a,
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board's Order be enforced'
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order."
'In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days from.
the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL forthwith sign the agreement dated October 8, 1964, negotiated by
our representative in collective bargaining, the Sioux Falls Association of Plumb-
ing Contractors with the Plumbers and Steamfitters Local Union No. 587, affili-
ated with United Association of Journeymen and Apprentices of the Plumbing.
and Pipe Fitting Industry of the United States and Canada, AFL-CIO.
SHAMROCK SYSTEMS, INC.,
Employer.
Dated------------------- By------------------------------------------
(Representative) '(Title)
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.
If employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board's Regional Office, 316 Federal
Building, 110 South Fourth Street, Minneapolis, Minnesota, Telephone No. 334-2611.
Modern Plastics Corporation and District 39 of the International
Association of Machinists , AFL-CIO and Employees ' Commit-
tee of Modern Plastics Corporation , Party in Interest. Case
No. 7-CA-4789, November $3,1965
DECISION AND ORDER
On June 15, 1965, Trial. Examiner Thomas F. Maher issued his..
Decision in the above-entitled proceeding, finding that the Respondent.
155 NLRB No. 112.