South Alabama Plumbing

National Labor Relations Board - Board Decisions

Jan 18, 2001

333 N.L.R.B. 16 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 16
Reese M. Garab d/b/a South Alabama Plumbing and
United Association of Journeymen & Appren-
tices of the Plumbing & Pipefitting Industry of
the United States and Canada, Local Union 119,
AFL–CIO. Case 15–CA–14352
January 18, 2001
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
LIEBMAN AND HURTGEN
On October 16, 1998, Administrative Law Judge Rich-
ard J. Linton issued the attached decision. The Respon-
dent filed exceptions and a supporting brief; the General
Counsel filed cross-exceptions, a supporting brief, and an
answering brief; and the Charging Party filed cross-
exceptions, a supporting brief, and an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions as
explained below, and to adopt the judge’s recommended
Order as modified2 and set forth in full below.
The judge found that the Respondent violated Section
8(a)(5) and (1) of the Act by repudiating an 8(f) contract
in April 1997, and by withdrawing recognition from the
Union. We agree with the judge, but find that the Re-
spondent’s affirmative defenses warrant further discus-
sion.
The Respondent asserted two affirmative defenses,
which the judge dismissed with the observation that Re-
spondent should have filed unfair labor practices charges
but had not. The Board has held, however, that the
Board must consider a party’s affirmative defense not-
withstanding that the General Counsel has considered the
same evidence and refused to issue complaint. Chicago
Tribune Co., 304 NLRB 259, 259–260 (1991). Further,
this rule “is equally applicable to situations in which the
party alleging an unfair labor practice in an affirmative
defense has not previously filed a charge. . . . Id. at 260.

Accordingly, we shall proceed to consider the affirmative
defenses on their merits.
1 We disavow the judge’s unnecessary remarks about the possibility
of indexing the Board’s discretionary jurisdictional standards to the rate
of inflation.
2 We amend the judge’s remedy to provide that the Respondent is li-
able for honoring the July 15, 1996–July 14, 1998 collective-bargaining
agreement for its term, as well as any automatic renewal or extension of
that contract. See, e.g., McKenzie Engineering Co., 326 NLRB 473
(1998). In its cross-exceptions, the Charging Party contends that nei-
ther the Respondent’s April 2, 1997 letter nor its March 26, 1998 letters
properly terminated the contractual relationship between the parties,
and, therefore, that the Respondent is bound to the successor contract
expiring on July 14, 2000. Because the record is not clear on this point,
we leave the issue for resolution at the compliance stage of this pro-
ceeding.
The Respondent alleges that the contract contains an
illegal union-security provision, establishes a virtual
closed shop, and is, therefore, unenforceable. Without
deciding whether the contract establishes a closed shop,
we note that article XV of the agreement provides: “Any
provisions of the Agreement which are in contravention
of any federal, state, or local laws or regulations will be
invalid only to the extent that they are in violation of
such laws or regulations.” The Board has found that
where a party agreed to be bound to a contract containing
an invalid union-security clause, but also a saving and
separability clause, that party may not avoid its obliga-
tion to honor the other terms of the agreement. See Lib-
erty Cleaners, 227 NLRB 1296 fn. 2 (1977).3 Accord-
ingly, we reject the Respondent’s first affirmative de-
fense.
We also find without merit the Respondent’s claim
that the contract does not comply with Section 8(f) be-
cause it is not limited to construction industry work. The
“Trade or Work Jurisdiction” clause of the contract re-
fers, among many other things, to “manufacture,” “draw-
ings, “adjusting,” and “fabrication” of plumbing work.
The Respondent asserts that these words clearly encom-
pass nonconstruction work. Therefore, according to the
Respondent, the contract does not comply with the limi-
tations set forth in Section 8(f) and should be found inva-
lid.
We find the Respondent’s assertion totally unsup-
ported by the record. The Respondent is an employer
engaged “primarily” in the building and construction
industry. The Respondent “explains” in its brief the
meaning of each of the above-quoted words, but there is
no testimony that is even remotely related to the Respon-
dent’s claim about the meaning of these words. We do
not agree with the Respondent’s assertion that the use of
these words establishes that the contract covers work that
cannot be considered construction work by any standard.
Thus, assuming arguendo the Respondent is correct that
an 8(f) contract would be invalid if it encompassed any
nonconstruction work, we find the Respondent has failed
to show that the contract at issue here covered such
work. In any event, the Respondent has not shown that
the Union is attempting to apply this contract to non-
construction work performed by the Respondent.

3 At the compliance stage of this proceeding, the Respondent will be
permitted to show that the contract contains an illegal union-security
clause that should be excised. While we make no final determination
on this issue, we question whether the clause is in fact a union-security
provision, especially since the Respondent is located in a right-to-work
State.
333 NLRB No. 4
SOUTH ALABAMA PLUMBING 17
Accordingly, we conclude that the Respondent did not
establish its affirmative defenses, and therefore adopt the
judge’s unfair labor practice findings.
ORDER
The National Labor Relations Board orders that the
Respondent, Reese M. Garab d/b/a South Alabama
Plumbing, Atmore, Alabama, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Repudiating and failing to honor the 1996–1998
collective-bargaining agreement with the United Asso-
ciation of Journeymen & Apprentices of the Plumbing &
Pipefitting Industry of the United States and Canada,
Local Union 119, AFL–CIO, as the exclusive collective-
bargaining representative of employees in the following
unit, during the term of the contract and any automatic
renewal or extension of it:

All employees employed by South Alabama Plumbing,
excluding office clerical employees and supervisors as
defined in the Act.

(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Honor the 1996–1998 collective-bargaining agree-
ment with the Union during the term of the contract, and
any automatic renewal or extension of it, including pay-
ing contractual wage rates, making contractually required
contributions to fringe benefit funds, making dues deduc-
tions pursuant to checkoff authorizations and remitting
amounts deducted to the Union, and complying with all
other terms for all employees in the bargaining unit.
(b) Make whole all employees, the Union, and fringe
benefit funds, with interest, for any losses they may have
suffered as a result of the failure to honor the collective-
bargaining agreement, and any automatic renewal or ex-
tension of it, in the manner prescribed in the remedy sec-
tion of the decision.
(c) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all
other records necessary to analyze the amount of back-
pay due under the terms of this Order.
(d) Within 14 days after service by the Region, post at
its Atmore, Alabama facility, copies of the attached no-
tice marked “Appendix.”4 Copies of the notice, on forms

4 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
provided by the Regional Director for Region 15, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respon-
dent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during
the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since April 2, 1997.
(e) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT repudiate and fail to honor the 1996–
1998 collective-bargaining agreement with the United
Association of Journeymen & Apprentices of the Plumb-
ing & Pipefitting Industry of the United States and Can-
ada, Local Union 119, AFL–CIO, as the exclusive
collective-bargaining representative of employees in the
following unit, during the term of the contract and any
automatic renewal or extension of it:

All employees employed by South Alabama Plumbing,
excluding office clerical employees and supervisors as
defined in the Act.

tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 18

WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL honor the 1996–1998 collective-bargaining
agreement with the Union during the term of the con-
tract, and any automatic renewal or extension of it, in-
cluding paying contractual wage rates, making contractu-
ally required contributions to fringe benefit funds, mak-
ing dues deductions pursuant to checkoff authorizations
and remitting amounts deducted to the Union, and com-
plying with all other terms for all employees in the bar-
gaining unit.
WE WILL make whole all employees, the Union, and
fringe benefit funds, with interest, for any losses they
may have suffered as a result of the failure to honor the
collective-bargaining agreement, and any automatic re-
newal or extension of it.

REESE M. GARAB D/B/A SOUTH
ALABAMA PLUMBING

Tracie J. Jackson, Esq., for the General Counsel.
Willis C. Darby Jr., Esq. and Elizabeth D. Rehm, Esq. (Willis
C. Darby Jr.), of Mobile, Alabama, for the Respondent,
South Alabama Plumbing.
Francis J. Martorana, Esq. and Irene N. Pantelis, Esq.
(O’Donoghue & O’Donoghue), brief only, for the Charging
Party, Plumbers Local 119.
DECISION
STATEMENT OF THE CASE
RICHARD J. LINTON, Administrative Law Judge. This is a
refusal-to-bargain case arising under Section 8(f) of the Act.
The Company here, South Alabama Plumbing (S.A.P.), signed
a March 31, 1997 “Letter Of Assent” form to be bound by the
collective-bargaining agreement in effect with Plumbers Local
119. Two days later, the Company, by Reese M. Garab, sent its
April 2 letter to the Union withdrawing the Company’s consent
to be bound by that agreement. Because S.A.P. refused, during
the period of March 31, 1997, through July 14, 1998, to recog-
nize and bargain with the Union pursuant to its signed Assent
agreement, and to pay the wage rates and benefit plan contribu-
tions required under the collective-bargaining agreement, this
case has resulted. Finding for the Government, I order S.A.P.
to make whole the affected employees and also the Union’s
contractual benefit plans.
I presided at this 2-day trial in Mobile, Alabama, on May 6–
7, 1998. Trial was pursuant to the December 29, 1997 com-
plaint, as amended at the hearing.1 Issued by the General
Counsel of the National Labor Relations Board through the
Regional Director for Region 15 of the Board, the trial com-
plaint is based on a charge filed June 2, 1997, in Case 15–CA–
14352 by United Association of Journeymen & Apprentices of
the Plumbing & Pipefitting Industry of the United States and

1 All dates are for 1997, unless otherwise indicated.
Canada, Local Union 119, AFL–CIO (Union, Local 119, or
Charging Party) against Reese M. Garab d/b/a South Alabama
Plumbing (S.A.P., Respondent, or Company).
The pleadings establish that Reese M. Garab owns and oper-
ates S.A.P. as a sole proprietorship. S.A.P. denies that it does
business as a “retail and non-retail plumbing contractor.”
Board jurisdiction over S.A.P. is a major issue.
Danny Price, the business manager of Local 119, testified
that the Union is an organization in which employees partici-
pate and that the Union exists, in part, for the purpose of deal-
ing with employers about employee concerns such as wages,
rates of pay, and conditions of work. (1:159–160).2 I therefore
find that Plumbers Local 119 is a labor organization within the
meaning of 29 USC § 152(5).
The pleadings also establish that the following employees of
S.A.P. constitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b) of the Act:

All employees employed by South Alabama Plumbing, ex-
cluding office clerical employees and supervisors as defined
in the Act.

[I make the foregoing unit finding even though, in its
amended answer of May 6, 1998 (RX 1), S.A.P. contends that
the correct reference in the complaint allegation should be to
Section 9(a) of the Act. The complaint correctly alleges Sec-
tion 9(b). S.A.P.’s difference, I find, does not go to the merits
of the allegation. Accordingly, I find that S.A.P. admits the
appropriate unit allegation.]
About March 31, 1997, the pleadings further establish,
S.A.P. entered into a “Letter of Assent” whereby S.A.P.
“agreed to be bound by the collective-bargaining agreement
between the Union and the Mobile Mechanical Contractors
Association, Inc., effective from July 15, 1996, until July 14,
1998, and agreed to be bound to such future agreements unless
timely notice was given.” Denying that it is an employer en-
gaged, as alleged, “in the building and construction industry,”
S.A.P. further denies that it, as alleged, recognized (by the Let-
ter of Assent and the collective-bargaining agreement) the Un-
ion as the exclusive collective-bargaining representative of the
unit employees “without regard to whether the majority status
of the Union had ever been established under the provisions of
Section 9(a) of the Act.”
Complaint paragraph 10 alleges, and S.A.P. admits, that
about April 2, 1997:

Respondent withdrew its recognition of the Union as the ex-
clusive collective-bargaining representative of the Unit and
repudiated the “LETTER OF ASSENT” and the collective-
bargaining agreement described above in paragraphs 8 and 9.

By the conduct described in paragraph 10, complaint para-
graph 11 alleges, S.A.P. has failed to bargain with the exclusive
collective bargaining of its employees in violation of Section
8(a)(5) and (1) of the Act. S.A.P. denies and advances several
defenses. S.A.P.’s chief defense is that, although the implied
2 References to the two-volume transcript of testimony are by vol-
ume and page. Exhibits are designated GCX for the General Counsel’s
and RX for those of Respondent S.A.P.
SOUTH ALABAMA PLUMBING 19
gist of the complaint is that S.A.P. reneged on a Section 8(f)
contract, that single unfair labor practice allegation of the com-
plaint fails because S.A.P. is not “primarily” engaged in the
building and construction industry within the meaning of Sec-
tion 8(f) of the Act. Second, S.A.P. is engaged in the service
industry. Thus, because S.A.P.’s gross income does not meet
the Board’s discretionary retail standard of $500,000 per year,
the complaint must be dismissed on this basis alone.
For the first of the Government’s nine witnesses the General
Counsel, under FRE 611(c), called Company’s owner, Reese
M. Garab. His testimony was interrupted in order to accom-
modate the seven nonparty witnesses, and Danny Price also
testified before Garab resumed the stand. Eventually, on the
second day, Garab completed his testimony and the General
Counsel rested. (2:339). After I denied S.A.P.’s motion to
dismiss (2:339–340), S.A.P. called Garab as its own witness
and also Danny Price [under, in effect, FRE 611(c)], before it
rested (2:430). There was no rebuttal.
On the entire record, including my observation of the de-
meanor of the witnesses, and after consideration of the briefs
filed by the General Counsel (who included provisions for a
proposed order), the Union (not represented by counsel at trial),
and by S.A.P. (who attached a proposed order of dismissal and
submitted a two-page July 8, 1998 supplemental brief), I make
these
FINDINGS OF FACT
A. Overview of S.A.P.’s Operations
A long time member of Plumbers Local 172, South Bend,
Indiana, Reese M. Garab moved to Atmore, Alabama, about
1972. (2:341–342). About 50 to 60 miles northeast of Mobile,
6 or 7 miles south of Interstate 65, and about 45 miles north of
Pensacola, Florida, Atmore is a small town in Escambia
County. [Road Atlas–1998 at 4 (Rand McNally)]. That county,
Union Representative Price testified (1:180), is within the geo-
graphical jurisdiction of Plumbers Local 119. The Union
[someone besides Price was the business manager then] would
not accept Garab’s travel card from Local 172 for work within
Local 119’s jurisdiction. (2:342). Garab apparently began
work anyway as a plumber in the Atmore area, for in 1987
(1:25; 2:396) he opened his own plumbing business there
(2:342).
During the jurisdictional year alleged, June 3, 1996, through
June 2, 1997,3 S.A.P. employed about four permanent regular
employees, S.A.P.’s usual number. (2:349). Three of the four
performed service work and the fourth did construction work.
(2:349–350, 391, 400, Garab). Garab testified that the only
construction work S.A.P. does is that which it does at the re-
quest of S.A.P.’s regular service customers. (2:350, 362). In
short, Garab tries to confine his company’s work to the service
market, the niche he has carved out for himself, and he really
does not want to do the construction work. He does it because
of the service work those regular customers call him for.
(2:362–363, Garab).
The 12-month jurisdictional year is not S.A.P.’s fiscal year,
but apparently was selected by the Government as ending the

3 As amended at trial. (1:8–9.)
date on which the charge was filed in this case. See J & S
Drywall, 303 NLRB 22, 30 (1991). Under Board law, the 12-
month jurisdictional year is a flexible period which can be ap-
plied to most any recent 12-month period. See NLRB v. Jerry
Durham Drywall, 974 F.2d 1000, 1002–1003 (8th Cir. 1992),
enfg. 303 NLRB 22, 29–30 (1991).
Although the percentages are sharply disputed, Garab testi-
fied that the nature of his Company’s business is about 75 per-
cent service and 25 percent construction. (1:41–43; 2:381).
Ostensibly, one would think that an inspection of the invoices
and a review of the testimonial description of the work done
would clearly indicate whether S.A.P.’s work is mostly service,
or primarily construction. As we shall see, it is not that simple,
particularly under the Government’s definition of construction
work.
After signing the one-page March 31, 1997 “Letter of As-
sent” [wage rates and costs of fringe benefits are expressed on a
second page] obligating it to apply the existing collective-
bargaining agreement (GCX 17), S.A.P., by Garab, repudiated
its March 31 action with its April 2 letter (RX 2) to the Union.
On June 2 the Union filed the charge in this case, and the com-
plaint issued on December 29, 1997. The text of the “Letter of
Assent” reads (GCX 18):

This is to certify that the undersigned firm has exam-
ined a copy of the Labor Agreement between the MOBILE
MECHANICAL CONTRACTORS ASSOCIATION,
INC., and LOCAL UNION 119, PLUMBERS AND
STEAMFITTERS, dated the 15 day of July 1996, and ef-
fective the 15 day of July 1996. [GCX 17.]
The undersigned firm hereby agrees to comply with all
terms and conditions of employment contained in the
aforementioned agreement and all approved amendments
thereto. It is further agreed that the signing of this Letter
of Assent shall be as binding on the undersigned firm as
though it has signed the above referred agreement and any
approved amendments thereto. In signing this Letter of
Assent the undersigned firm does hereby authorize the
MOBILE MECHANICAL CONTRACTORS ASSOCI-
ATION, INC., its collective-bargaining representative for
all matters contained in this agreement or pertaining to this
agreement. This authorization to the MOBILE
MECHANICAL CONTRACTORS ASSOCIATION INC.
shall remain in effect until terminated by written notice to
the parties aforementioned agreement thirty (30) days
prior to the notification date provided for therein.

B. Contentions of the Parties
1. Summary
As indicated earlier, the General Counsel contends that
S.A.P. entered into an 8(f) contract (by virtue of signing the
March 31 letter of assent), and that by its April 2 repudiation
letter S.A.P. violated Section 8(a)(5) of the Act. The Union’s
position is the same.
Respecting the merits, liability chiefly depends on the out-
come of a single issue—whether S.A.P. is “primarily” engaged
as a contractor in the “building and construction” industry
(“construction” for short) within the meaning of Section 8(f) of
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 20
the Act. The Government and the Union argue affirmatively,
while S.A.P. argues the negative, contending that it is primarily
involved in the retail service industry. The General Counsel
observes that S.A.P. performs plumbing services both as a sub-
contractor to the general contractor as well as direct to consum-
ers at retail. Accordingly, either the [$500,000] retail or the
[$50,000] nonretail standard applies. Man Products, 128
NLRB 546 (1960). The Government relies on the nonretail
standard of $50,000.
On the principal issue—whether S.A.P. is “primarily” en-
gaged in construction—the Government contends that practi-
cally all S.A.P.’s work is “construction” under a definition of
“construction” jointly published by the U.S. Department of
Commerce and the U.S. Department of Labor and cited and
relied on by the administrative law judge in U.S. Abatement,
303 NLRB 451, 451 fn. 1, 455–456 (1991) (ALJ’s reasoning
adopted by the Board at fn. 1). No evidence was presented
before me concerning whether the definition cited in U.S.
Abatement remains current or whether it has been modified by
those federal agencies.
From the definition of “construction” cited by the judge (and
adopted by the Board) in U.S. Abatement, the General Counsel
contends here that even maintenance, such as unclogging drains
and running clean-out cables through the sewer lines of resi-
dences, constitutes “construction” because such drains and lines
are connected to and are an integral part of “immobile struc-
tures.” (Br. at 6–7; 1:18–19; 2:193–196, 275–278, 282.) Thus,
“It makes no difference that a structure is a house, church, res-
taurant, day-care center, auto repair shop, electric shop, or a
school, because all of these constitute structures within the
meaning of building and construction.” (Br. at 21). Therefore,
the 37 percent [the General Counsel’s computation] of S.A.P.’s
work “that consists of cleaning out drains and toilets” should
still be considered construction. (Br. at 22, 25). The Union’s
position is essentially the same. As noted earlier, S.A.P. con-
tends that its business is primarily retail service and not con-
struction.
[Rather quietly, the General Counsel, in selecting, for the
Government’s brief the entries the Government relies on to
show “construction,” frequently has chosen to omit most, per-
haps all, drain cleanings, sewer clean-outs, and inspections.
Although the General Counsel disdained any explanation for
the discrepancy, I understand that to be an unstated position
that, even under the reduced numbers, “construction” and juris-
diction are still shown. For the purposes of its brief, the Union
expressly (Br. at 11, fn. 2) declines to rely on “repairs” and
“minor jobs” as part of “construction” in order to “make its
estimate as conservative as possible.”]
Respecting the general numbers, the General Counsel (Br. at
8) contends that, during the jurisdictional year running through
June 2, 1997,4 S.A.P. received gross revenue of $241,170.66.
The Government reaches this figure by adding (GCX 4(a)—
adding machine tape) the sum of $133,692.16 for the first 7
months (June 3 through December 31, 1996) of the jurisdic-

4 By FAX dated 9-30-98 to me and counsel for the parties, the Gen-
eral Counsel confirms that the 12-month period runs through June 2,
1997. This clarifies the Government’s brief.
tional year, as shown on the 17 pages summarizing the transac-
tions for that period (GCX 4),5 with the figure of $107,478.50
for the last 5 months (running through June 2, 1997), as shown
by the General Counsel’s adding machine tape (GCX 2a) for
the 540 line items. The 540 line items appear on the first 10
pages of the 21–page “Transaction Detail by Date” document
(GCX 2) showing transactions for calendar year 1997 through
December 2. [The General Counsel inadvertently ends the tape
(GCX 4a) at item 539, a figure of $167.50, but should include
the next line item, invoice 606, for the sum of $30. When the
$30 item is added, the Government’s corrected figure for the 5
months in 1997 would be $107,508.50.] Adding the sums of
the 1996 and 1997 segments, and their total of 1328 line items,
yields a total, as contended by the General Counsel, of (cor-
rected) $241,200.66.
Actually, the 1997 segment of 540 line items includes some
40 lines for finance charges rather than for any work or sales
items. I therefore shall use a rounded number of 1300 line
items. The data on the 1997 summary (GCX 2) is more de-
tailed than that given on the 1996 summary (GCX 4) because
S.A.P. computerized its record system at the beginning of 1997.
(1:58). As the prices on GCX 4 indicate, and as some 1996
invoices reveal, a “service call” can mean that the transaction
involved a lot more than simply cleaning a drain or unclogging
a kitchen line or sewer line.
[The Union focused on the period of January–December
1997 respecting S.A.P.’s business revenues on the 8(f) question
of whether S.A.P. is “primarily” engaged in the building and
construction industry. I summarize the Union’s position later
when I discuss procedural matters.]
As earlier mentioned, the General Counsel (Br. at 21–22)
claims that virtually all of the $241,200.66 is “construction,”
but that even if the 37 percent devoted to unclogging drains and
sewers should not be included, the remaining 63 percent leaves
S.A.P. primarily engaged in “construction.”
For its part S.A.P. asserts (Br. at 3, 16) that its total revenue
for the jurisdictional year was $290,992.78 based on the entries
in the two summaries (GCXs 2 and 4) and on certain invoices
introduced as Government exhibits. [Numbers from the in-
voices presumably are reflected in the summaries.] Attached to
S.A.P.’s brief is a 45–page (“landscape” fashion) listing of the
transactions divided (by counsel per brief at 3 fn. 4) into 14
categories beginning with one for cleaning drains and sewers
(pages 1–6) and ending with a dozen items on page 44 de-
scribed as unclassified or unassigned. Schedule B to the brief
gives S.A.P.’s code for further classifying the entries into types
of work. Under S.A.P.’s classification system, S.A.P. (Br. at 3–
4) calculates that $164,786.74 [56.63 percent of the total] came
from cleaning drains and lines and replacing fixtures [selling
some new; repairing some old] and therefore “is of a retail and
service character as distinguished from construction.” In short
(Br. at 4), “The primary business of South Alabama Plumbing
is not building and construction whether viewed by occurrences
or dollar volume.”
5 There are some 788 line items on GCX 4. Nearly all items are
classified as “Service Call.”
SOUTH ALABAMA PLUMBING 21
Finally, the General Counsel filed an unopposed motion,
dated June 10, 1998, to correct certain figures on GCXs 9(a),
16(a), 21(a), and 22(a). These are some of the adding machine
tapes (the convenience exhibits), and S.A.P. had written (letter
part of the motion package) the General Counsel pointing out
certain errors. The motion to delete two items [dates beyond
the period] from GCX 9(a) is granted, but the new total would
be $1442.45, not $1382.45. Respecting GCX 16(a), the motion
is granted to remove the overage item of $210. This is one of
those instances where the General Counsel’s secrecy is mis-
leading and confusing. The exhibit (GCX 16a), even as cor-
rected, counts nearly all the 23 pages of invoices in GCX 16
(Poarch Creek Housing). [Certain pages were struck or re-
moved at trial.] However, although the tape includes four
items, or pages, that are charges for unclogging drains or lines
(GCX 16 at 2, $109.50; page 3, $52; page 7, $8a.70, and page
22, $80), such charges are not claimed in the Government’s
brief at 13. Similarly, a repair listed on the tape ($116, GCX 16
at 11) is unclaimed on brief at 13. One item claimed on brief at
13, $194.59, was struck at trial (2:255) and not listed on the
tape (GCX 16a).
As to GCX 21(a), the motion to delete two entries of $48,50,
and to designate the total as $375, is granted. The invoices
(GCX 21) consist of only four pages, or four number totals to
add. The tape (GCX 21a) lists the four [which total $375] plus
a fifth, $48.50, then shows the fifth being subtracted (the sixth
number on the tape) with the total being $472 [in fact adding
the $48.50 twice]. The weird total reflected on this tape would
raise a question concerning all the tapes were it not for the fact
that S.A.P. (or its lawyers) apparently also ran the numbers to
verify the totals. [Smart!] As Finley Peter Dunne’s “Mr. Doo-
ley” would say, “Trust everybody, but cut the cards!”
For the last item in the motion, the deletion of two entries
from GCX 22(a) to conform to their deletion at trial (2:286–
287), I grant the motion. I now designate the motion package
of six pages as GCX 29 and place it in the official folder for the
exhibits of the General Counsel.
2. Jurisdiction
The first question is whether there is jurisdiction at all. I find
the answer to be yes. This is so even though the Board has held
that employers engaged in the construction and sale of residen-
tial homes are considered as being engaged in a retail enter-
prise. De Marco Concrete Block Co., 221 NLRB 341, 342 and
fn. 7 (1975). It therefore would follow that subcontractors,
such as S.A.P., are engaged in a retail enterprise when they are,
for example, plumbing for residential construction, whether that
construction is for new homes or to remodel existing homes.
However, even with most of S.A.P.’s work considered as re-
tail, S.A.P.’s gross revenue still falls far short of the $50,000
retail standard. Before discussing the $50,000 nonretail stan-
dard, I should note here the possibility that S.A.P. would not be
covered under the nonretail standard if that $50,000 triggering
level had been indexed to move with inflation. The Board’s
discretionary jurisdictional standard of $50,000, applicable to
nonretail firms is a standard which the Board reaffirmed in
November 1958—nearly 40 years ago—in Siemons Mailing
Service, 122 NLRB 81 (1958). If the Board could have raised
its discretionary threshold to adjust for inflation over these last
40 years, the discretionary standard today for nonretail firms
probably would be at least $250,000, and possibly $300,000. If
the latter were the threshold amount, then there would have
been a finding at the Regional Office level in this case of no
jurisdiction over S.A.P.
However, by an amendment that Congress, after Siemons,
made to the statute, the Board has been restricted to the discre-
tionary standards which existed as of August 1, 1959. See 29
USC § 164(c)(1). With the ever increasing strain on the
Agency’s budget, the Board’s statutory inability to raise the
discretionary jurisdictional thresholds which it applies to vari-
ous categories of cases will, at some point, result in the $50,000
standard capturing every “mom and pop” nonretail shop in the
nation. Even before that point is reached, the Agency’s budget
will have reached a financial meltdown. Perhaps Congress will
address the matter again and authorize the Board to raise the
dollar amounts or even to switch to a standard based on the
number of employees, as exists at the EEOC. As to the latter,
see Robinson v. Shell Oil Co., 519 U.S. 337, 340 fn. 2 (1997).
For now, however, the $50,000 level applies for the nonretail
firm. And where, as here, a firm does both retail and nonretail,
the firm’s “total operations” are counted in determining
whether the company meets the pertinent standard—here, the
nonretail standard. Indiana Bottled Gas Co., 128 NLRB 1441,
1441 and fn. 2 (1960); Appliance Supply Co., 127 NLRB 319
(1960).
S.A.P.’s nonretail operations “are more than de minimis.”
Indeed, during the jurisdictional year S.A.P. received income
reaching, even exceeding, $50,000 from Maxwell Construction
Company for work at nonretail. Thus, record evidence shows
that, during the jurisdictional year, S.A.P. provided plumbing
work (sales and service) to Maxwell Construction Company of
$51,784.93 on just four commercial jobs. These were the
Touch One Warehouse for $17,080.28; Brewton’s Day Care
(Noah’s Ark) for $20,906.40; the First Presbyterian Church for
$7,938, and the Alto storage warehouse job for $5,860.25. The
record does not show that Maxwell Construction Company is
itself operating in interstate commerce. The only evidence as to
this is that it had sales of about $3 million in 1996 and about $2
million in 1997. (1:133.)
Nevertheless, during the jurisdictional year, S.A.P. pur-
chased items costing at least $50,000 from Alabama suppliers,
and the items were shipped to the suppliers from points outside
Alabama. These items include a Chevrolet pickup for nearly
$30,000 that was claimed as a 100-percent business expense on
Reese Garab’s tax return (GCX 27 at 13), and well over
$50,000 in plumbing supplies (GCX 7).6 Moreover, during the
relevant year Bogan Supply Co. of Pensacola, Florida (1:114;
GCX 8) shipped $7,884.48 (GCX 8a) of plumbing fixtures

6 The adding machine tape (GCX 7a) supplied by the General Coun-
sel for the 96-page listing of items purchased (GCX 7), with most pages
having a total, has the page-total numbers in disarray. That is, the
numbers on the tape are not in the same sequence as the pages of the
exhibit. And for the long tapes, GCX 2(a) and GCX 7(a), the photo-
copies supplied by the General Counsel to me, and presumably to the
parties, were merely of the last fold of the tape displayed.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 22
direct from Florida to S.A.P. in Alabama. (1:119–120). Legal
jurisdiction is established, as well.
Jurisdiction possibly also could be deemed established sim-
ply from the fact that S.A.P. signed the “Letter of Assent.”
(GCX 18). See Stack Electric, 290 NLRB 575, 576–577
(1988). It is unclear whether, under Stack Electric, the com-
plaint must allege that some member of the bargaining associa-
tion meets a commerce standard established by the Board, or
that the members collectively do. A yes answer is suggested by
the General Counsel’s pleadings manual. See Section 300.7
NLRB Pleadings Manual 33 and fn. 4 (1991). In any event, I
find that jurisdiction over S.A.P. is established under the
Board’s nonretail standard based on direct and indirect inflow.
3. Procedural matters
In their briefs the General Counsel and S.A.P. refer to five
exhibits (A–E) attached to S.A.P.’s January 13, 1998 original
answer and motion to dismiss. One of those exhibits (Exh. B)
became GCX 2, but no party offered the others into evidence.
In correspondence subsequent to the trial, I advised counsel that
pleadings, motions, and any attachments, become part of the
record,7 but that they are not that evidence which is offered and
received, “so far as practicable,” under the Federal Rules of
Evidence (FRE)—any more so than motions made orally at
trial. [Many lawyers would raise a loud cheer if they learned
that their pleadings and motions (aside from the potential of an
admission by a party opponent) would be treated as affirmative
evidence.] Traditionally, such documents, commonly called
the “formal papers,” generally are contained in General Coun-
sel Exhibit 1. That exhibit functions as a portable district
clerk’s office in order to have a repository for the pleadings and
motions that form part of the record of the case. As the Gov-
ernment’s own casehandling manual indicates, the formal pa-
pers are not offered for the truth of their contents. 1 NLRB
Casehandling Manual Sec. 10384 (June 1989).
As it appeared that at least the General Counsel and S.A.P.,
and possibly the Union, desired to have the remaining four
documents (Exhibits A, C, D, E) received in evidence, I sug-
gested that if they all so agreed then they could stipulate that
they be received as, for example, RXs 10, 11, 12, and 13.
However, the parties did not agree, for S.A.P. reportedly ob-
jects. By letter of October 2, 1998, the General Counsel offers
four of the five documents, Exhibits B, C, D, and E (which I
have designated as GCX 30, totaling 57 pages). As Exhibit B
became GCX 2, that means GCX 30 (which omits Exhibits A
and E) duplicates GCX 2 (a 21-page document listing all trans-
actions by S.A.P. during calendar year 1997 by date of transac-
tion and in date sequence). The document Exhibit C is a 13-
page listing of all cash sales during 1997 through December 2,
1997. Document D is a 23-page summary of sales during the
same period to, as shown by a cover page, 22 named customers.
[Exhibit A, not offered, is a one-page listing of employees em-
ployed by S.A.P. during 1996 and 1997. Document Exhibit E,
not offered, is a one page copy of a yellow page ad by S.A.P.]
S.A.P. reportedly objects to the receipt of GCX 30. GCX 30
combines separate documents, even duplicating one exhibit

7 See 29 CFR § 102.45(b).
(GCX 2, already in evidence). GCX 30 simply would confuse
the record. Rejecting the posttrial offer of GCX 30, I shall
place GCX 30 in the rejected exhibits file. The Government’s
request of October 2 to submit a supplemental brief if GCX 30
were received in evidence is now canceled by its own condi-
tion.
By letter dated October 5, 1998, the Union asserts that its se-
lection of the transactions document for all transactions in 1997
through December 2, 1997 (GCX 2), as the base for analyzing
whether S.A.P. is “primarily” engaged in the building and con-
struction industry, is correct. This is so, it is argued, because
the cases show that a period following the execution of a letter
of assent frequently is when a company begins its work. A
different period may be, as here, appropriate for determining
jurisdiction, but that is a different concept from selecting the
appropriate period for determining the primary nature of the
company’s business.
The Union’s argument makes sense. However, there is one
problem—the case was litigated, both as to jurisdiction and as
to 8(f), on the 12 month period of June 3, 1996 through June 2,
1997. For example, there are many instances at trial where
S.A.P. objected to the presence of an invoice for a date beyond
the period selected by the Government, and the General Coun-
sel, in agreement, removed those invoices. The General Coun-
sel selects the theory of a complaint. Thus, a charging party
cannot enlarge on or change the General Counsel’s theory of
the case. Kimtruss Corp., 305 NLRB 710, 711 (1991). The
Charging Party here (whose counsel were not at the trial) ad-
vances its argument far too late. Accordingly, even though the
period of time reflected in GCX 2 might be more appropriate
than the one litigated, I consider only the period litigated.
C. Discussion
1. Nature of the work
As for repairs, what significance is there in the fact that the
specifics of “alteration, painting, or repair of a building, struc-
ture or other work” appear in Section 8(e) of the Act, but not in
8(f)? The Board recognizes that the underlying policies, as
well as the language, are different for the two sections. See
Carpenters (Rowley-Schlimgen), 318 NLRB 714, 715–716
(1995). Thus, repairs at construction sites are covered by Sec-
tion 8(e). Does the absence of those specific words, such as
“repair,” from 8(f) mean that “construction” in 8(f) is directed
toward bigger projects than retail servicing of homeowners and
small businesses?
It appears that the Board has adopted a broad interpretation
of “construction” in Section 8(f) that covers repairs to and re-
placement of “integral parts” of any immobile structure. Thus,
whether it is an 8(e) or 8(f) case, the Board cites the same defi-
nitions that pertain to both new and existing structures. See
Carpenters (Rowley-Schlimgen), 318 NLRB 714, 715–716
(1995) (8(e) case); U.S. Abatement, 303 NLRB 451, 451 fn. 1,
455–456 (1991) (8(f) case); C.I.M. Mechanical Co., 275 NLRB
685, 691 (1985) (8(f) case); and Painters Local 1247 (Indio
Paint), 156 NLRB 951, 957–961 (1966) (8(f) case).
As repairs (and replacements as part of repairs) done by
S.A.P. are “construction,” then even S.A.P. no doubt would
concede that it is engaged “primarily” in the building and con-
SOUTH ALABAMA PLUMBING 23
struction industry. Such a concession would be compelled by
S.A.P.’s own numbers (Br. at 3–4) showing that, of the
$290,992.78 it shows for gross revenue during the period,
$190,445.20 (or 65.44671 percent), falls into several categories
(the first eight at page 4 of S.A.P.’s brief) pertaining to repairs,
replacements, remodeling, roughing in plumbing, installing
water, gas, sewer lines, and piping, and new construction. That
figure is reached even without trying to determine how a bunch
of $200 to $500 (and higher) service calls could be limited to
merely unclogging drains. [S.A.P. does not suggest that they
are so limited. For the most part, the record does not describe
the nature because the 1996 records were not computerized.]
In view of the foregoing, and particularly based on my view
that the Board has adopted a very broad and inclusive interpre-
tation of the term “construction,” as used in Section 8(f) of the
statute, I find that, during the jurisdictional year, S.A.P. was an
employer engaged “primarily” in the building and construction
industry, and employing employees in that industry.
2. Separate defense
S.A.P. also contends that the collective-bargaining agree-
ment is “facially illegal” (Br. at 18) because certain provisions
require the Union to favor union members against nonmembers
and would perpetuate a virtual “close shop.” As the Union
counters (Br. at 19–23), if the Union is engaging in an unfair
labor practice, S.A.P. should file an unfair labor practice charge
with NLRB Region 15. No such charge is before me. The
charge before me is whether S.A.P. is unlawfully refusing to
recognize and bargain with the Union pursuant to Section 8(f)
of the Act. I find that, as alleged, it is.
CONCLUSIONS OF LAW
1. The Respondent, S.A.P., is an employer within the mean-
ing of Section 2(6) and (7) of the Act.
2. The Union, United Association of Journeymen & Appren-
tices of the Plumbing & Pipefitting Industry of the United
States and Canada, Local Union 119, AFL–CIO, is a labor or-
ganization win the meaning of Section 2(5) of the Act.
3.During the period of June 3, 1996, through June 2, 1997,
S.A.P. operated as an employer engaged “primarily” in the
building and construction industry.
4. By signing the March 31, 1997 “Letter Of Assent” (GCX
18), S.A.P., by Reese Garab, S.A.P.’s owner, bound itself to the
July 15, 1996—July 14, 1998 collective-bargaining agreement
(GCX 17) between the Mobile Mechanical Contractors Asso-
ciation and Local 119, the Union.
5. All employees employed by S.A.P., excluding office cleri-
cal employees 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.
6. By its April 2, 1997 letter (RX 2) revoking its earlier sign-
ing of the letter of assent, therefore repudiating the July 15,
1996 collective-bargaining agreement, and consequently with-
drawing recognition from the Union during the term of the
collective bargaining agreement, S.A.P., as alleged, violated
Section 8(a)(5) and (1) of the Act.
7. The unfair labor practice affects commerce within the
meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
By withdrawing recognition from the Union and repudiating
the collective-bargaining agreement, S.A.P. presumably failed
to pay bargaining unit employees contractually established
wage rates, and presumably failed to make the contractually
required contributions to the Union’s employee benefit plans.
Accordingly, S.A.P. must make whole the employees as pre-
scribed in Ogle Protection Service, 183 NLRB 689 (1970),
enfd. 444 F.2d 502 (6th Cir. 1971), the contractual benefit
funds as described in Merryweather Optical Co., 240 NLRB
1213 (1979), and the employees for any losses or expenses they
may have incurred because of S.A.P.’s failure to make pay-
ments to those benefit funds, as prescribed in Kraft Plumbing &
Heating, 252 NLRB 891 fn. 2 (1980), enfd. mem. 661 F.2d 940
(9th Cir. 1981), with interest on all amounts owing as computed
in New Horizons for the Retarded, 283 NLRB 1173 (1987), for
the period of March 31, 1997, through July 14, 1998.
[Recommended Order omitted from publication.]