Waldinger Corp.

National Labor Relations Board - Board Decisions

Jun 30, 2000

331 N.L.R.B. 544 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 544
The Waldinger Corporation and United Association
of Journeymen and Apprentices of Plumbing
and Pipefitting Industry of the United States and
Canada, AFL–CIO, Local No. 72. Case 10–CA–
30575
June 30, 2000
DECISION AND ORDER
BY MEMBERS FOX, LIEBMAN, AND HURTGEN
On July 16, 1998, Administrative Law Judge Law-
rence W. Cullen issued the attached bench decision. The
Respondent filed exceptions and a supporting brief, and
the Charging Party filed 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 and
to adopt the recommended Order.2
The issue presented in this case is whether the Re-
spondent was privileged to withdraw its voluntary recog-
nition of the Union because of a supervisor’s involve-
ment in the union meeting at which the employees signed
cards authorizing the Union to represent them. As ex-
plained below, we agree with the judge’s finding that the
Respondent violated Section 8(a)(5) and (1) by with-
drawing recognition from the Union.
Background
The Respondent is a heating and air-conditioning ser-
vice company that primarily services commercial and
industrial customers. In addition to its general manager,
William McMillen, and 3 administrative employees, it
employs 13 “field” employees or service technicians,
including Service Supervisor Arthur Peterson.3 Prior to
August 1997,4 the Respondent was party to the National
Mechanical Equipment Service and Maintenance
Agreement between the Mechanical Service Contractors
of America and the International Union, covering the
Respondent’s service employees. This 8(f) agreement
was effective by its terms from August 16, 1995, through
August 15, 2000, and from year to year thereafter, unless
terminated by a party giving written notice no fewer than
60 days prior to August 16 of each year.5 On June 11,
the Respondent timely notified the International that it
was terminating the collective-bargaining agreement,
effective August 16. The International in turn notified
Plumbers Local 72 (the Union), and Union Organizer
Clyde Jones contacted McMillen about signing a local
agreement. The Respondent declined.
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 The Respondent also excepts to the implication in the judge’s rec-
ommended Order that it owes backpayments to union benefit funds.
What funds, if any, the Respondent will be required to make payments
to and how much must be paid are matters to be determined in the
compliance stage of this proceeding.
3 At the hearing, the General Counsel and the Respondent stipulated
that Peterson was a supervisor within the meaning of Sec. 2(11) of the
Act, but the parties expressly disagreed about any impact Peterson’s
supervisory status may have had on the Union’s acquisition of majority
status.
4 All dates are in 1997.
In July, Jones contacted Peterson and asked him to no-
tify unit employees that a meeting would be held at the
union hall on July 31. Peterson was a longtime member
of Local 72, and the Respondent was aware of that. On
the evening of July 31, all 12 of the Respondent’s service
technicians and Peterson met with Jones and other Local
72 representatives at the union hall.6 Peterson also advo-
cated that they become members of Local 72 because this
was the way to assure the continuation of the wage and
benefit “package” they had enjoyed under the 8(f)
agreement with the Union. He pointed out that the Re-
spondent had not divulged any information about what
benefits they would receive from the Respondent as a
nonunion contractor; whereas, the benefit package of the
union contract was a known quantity. As one employee
testified, Peterson compared it to a quiz show: “[W]e
didn’t know what was behind Door No. 2, but we knew
what was behind Door No. 1.”
The union representatives left the room so that the em-
ployees could discuss the matter among themselves.
Employee Timothy Hahn testified that prior to leaving
the room the union representatives instructed the em-
ployees to vote whether they wanted to be represented.
Hahn testified that Peterson and employees Pat Ratliff,
Joe Beck, and Bob Purves griped that the Respondent
“was screwing us” and that they pointed to items in “the
Union book” and said “we should have got this and we
should have got that.” Employee Otis Borders spoke
against union representation. Hahn also testified that
Ratliff and Peterson suggested that the employees vote
whether to be represented by the Union. Purves con-
curred, saying that he wanted to get home.
5 The General Counsel and the Respondent entered into the follow-
ing stipulation regarding the unit:
All full-time and part-time HVAC service technicians employed by
the [Respondent] out of its 1600 Wilson Way, Suite 12, Smyrna,
Georgia, branch office, but excluding all office clerical employees,
sales employees, subcontractors, professional employees, confidential
employees, all other employees employed by the [Respondent],
guards and supervisors as defined in the Act.
The unit constitutes an appropriate unit for the purposes of collective
bargaining under a prehire agreement within the meaning of Sec. 8(f),
as well as under Sec. 9(b) of the Act.
6 The record indicates that the Union notified Peterson and another
employee about the July 31 meeting because they were members and
the Union did not have the other employees’ addresses and telephone
numbers. Employees learned of the meeting from Peterson and by
word of mouth.
331 NLRB No. 70
WALDINGER CORP. 545
The employees took a vote by going around the table
and determined that a majority desired representation.
Peterson informed the union representatives, who then
reentered and distributed authorization cards. Nine ser-
vice technicians, including Peterson, signed cards author-
izing Local 72 to represent them. McMillen testified that
at 10 p.m. the same day, a service technician telephoned
him at home “and completely reiterated what had tran-
spired at that meeting,” including the fact that all 13 ser-
vice technicians attended the meeting and 9 of them
signed cards.
On August 1, Jones went to McMillen’s office, told
McMillen that the Union had authorization cards signed
by a majority of the unit employees, and presented a let-
ter signed by Business Agent Richard Oliver demanding
recognition of Local 72. According to Jones, whose tes-
timony the judge credited, McMillen fanned the signed
authorization cards that Jones showed him.7 McMillen
told Jones that the Respondent would meet and negotiate
with the Union. Jones asked who would represent the
Respondent in negotiations, and McMillen answered that
he would let him know after talking with the Respon-
dent’s president, Thomas Koehn.
On August 4, Koehn sent a letter to Oliver stating in
part, “We would be happy to conduct such negotiations,
beginning immediately, at a time and place agreeable to
both parties.” The letter requested to meet during the
week of August 11.
After sending that letter, Koehn went on vacation.
Upon his return, Koehn was advised by McMillen that he
had received a petition signed by a majority of unit em-
ployees indicating that they did not wish to be repre-
sented by the Union. Motivated by that petition and the
“unfolding” information about Peterson’s “role with the
employees,” Koehn sent the Union a letter on August 11
in which he withdrew recognition based on the Union’s
lack of majority status and canceled the negotiation
meeting scheduled for that week.8 The Respondent also
ceased making contributions to the Union’s pension
funds on that date. The Respondent and the General
Counsel stipulated that on August 18 the Respondent
unilaterally implemented a pay increase, a profit-sharing
and savings plan, a flexible benefit plan, a health insur-
ance plan, and six paid holidays for unit employees.9
The judge found that the Union obtained majority
status on July 31, when it received signed authorization

7 McMillen testified that he declined to see the cards, but that he
“definitely” was given an opportunity to do so.
8 There is no issue before us regarding the validity of the employee
petition; nor is the Respondent claiming that it is entitled to withdraw
recognition on the basis of it. The Respondent’s argument before the
Board is simply that it was entitled to withdraw recognition because the
authorization cards supporting the Union’s demand for recognition
were tainted by Peterson’s participation.
9 Although the stipulation states that the unilateral changes were im-
plemented on August 18, 1998, it is apparent that the parties meant
1997.
cards from 9 of the 13 employees present at the union
meeting. Based on the stipulation between the General
Counsel and the Respondent, and on evidence that Peter-
son exercised authority to responsibly direct, hire, disci-
pline, evaluate, and administer pay raises, the judge fur-
ther found that Peterson was a supervisor. The judge
rejected the Respondent’s contention that the authoriza-
tion cards were tainted by Peterson’s involvement, noting
that there was no evidence of any coercion by Peterson in
the Union’s solicitation of authorization cards. The
judge noted that two of the three employees who testified
about Peterson’s conduct did not sign authorization
cards, and found that Peterson clearly espoused his own
views to employees, a position that was at odds with the
Respondent’s position.
The judge further found that McMillen, the highest
ranking company official at the Smyrna branch, extended
voluntary 9(a) recognition on behalf of the Respondent
on August 1, and that Company President Koehn reaf-
firmed that recognition on August 4.10 The judge also
found that having voluntarily recognized the Union, the
Respondent was obligated to bargain in good faith for a
reasonable period of time, and that absent a reasonable
period of time for bargaining, the Respondent could not
rely on the employee petition to withdraw recognition.11
Therefore, the judge concluded, by prematurely with-
drawing recognition and unilaterally implementing
changes in wages and benefits, the Respondent violated
Section 8(a)(5) and (1).
Discussion
As explained below, we agree with the judge that the
Union obtained valid authorization cards from a majority
of unit employees and that the cards were not tainted by
Peterson’s participation. Accordingly, we further agree
with the judge that the Respondent violated Section
8(a)(5) and (1) by withdrawing recognition 10 days after
it voluntarily recognized the Union and by making uni-
lateral changes.12
The Board has long recognized that a supervisor’s par-
ticipation in a union’s organizational campaign will taint
the union’s card majority only where the supervisor’s
participation may be found to have deprived employees
of the opportunity to exercise free choice in selecting a
10 The judge relied on John Deklewa & Sons, 282 NLRB 1375, 1387
fn. 53 (1987); Golden West Electric, 307 NLRB 1494, 1495 (1992);
MFP Fire Protection, Inc., 318 NLRB 840 (1995); Hayman Electric,
314 NLRB 879 (1994); and Brannan Sand & Gravel Co., 289 NLRB
977 (1988).
11 Brooks v. NLRB, 348 U.S. 96 (1954); Den-Tal-EZ, Inc., 303
NLRB 968 (1991); Keller Plastics Eastern, 157 NLRB 583, 587
(1966); and Cayuga Crushed Stone, 195 NLRB 543, 545 (1972), enfd.
474 F.2d 1380 (2d Cir. 1973).
12 As noted above, the Respondent does not dispute that the Union
requested, and the Respondent granted, recognition of the Union as the
employees’ representative within the meaning of Sec. 9(a) of the Act.
The Respondent argues only that the Union’s basis for claiming major-
ity support was tainted by Peterson’s participation.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 546
collective-bargaining representative. Juniata Packing
Co., 182 NLRB 934, 935 (1970), enfd. in relevant part
464 F.2d 153 (3d Cir. 1972); El Rancho Market, 235
NLRB 468, 473 (1978). Specifically, to find authoriza-
tion cards tainted by supervisory conduct, the Board has
required evidence that establishes either that the supervi-
sor’s activity was such as to have implied to employees
that their employer favored the union or that there is
cause for believing that employees were coercively in-
duced to sign authorization cards because of fear of su-
pervisory retaliation. WKRG-TV, Inc., 190 NLRB 174,
175 (1971), enfd. 470 F.2d 1302 (5th Cir. 1973); Or-
lando Paper Co., 197 NLRB 380, 387 (1972), enfd. 480
F.2d 1200 (5th Cir. 1973); El Rancho Market, supra; and
Kut Rate Kid & Shop Kwik, 246 NLRB 106, 107
(1979).13
Based on our examination of the record, we do not find
that either of these conditions is present in this case. To
begin with, the Union’s organizational campaign began
only after the Respondent terminated the National Me-
chanical Equipment Service and Maintenance Agreement
with the International Union and refused the Union’s
request that the Respondent sign a local agreement. In
these circumstances, it was obvious to the employees that
Peterson was not speaking on behalf of the Respondent
when he expressed support of the Union.
Second, Peterson, though present for the employees’
signing of authorization cards, did not solicit the cards
himself. Rather, the union representatives distributed the
cards and collected them from the employees who signed
them. 14
Further, there is no evidence that establishes that Pe-
terson’s conduct at the meeting was likely to coerce an
employee into signing an authorization card. His state-
ments in support of the Union during the round table
discussion were unaccompanied by any threats of retalia-
tion, i.e., he said nothing to convey any suggestion that
he would use his supervisory powers to bring pressure to
bear on employees who did not support the Union.15 All

13 Our dissenting colleague disagrees with this precedent and would
find that supervisory solicitation of authorization cards is inherently
coercive. This argument by our colleague was rejected by the Board in
a recent representation case. See Millsboro Nursing & Rehabilitation
Center, 327 NLRB No. 153 (1999).
14 The instant case is thus distinguishable from the cases cited by the
Respondent in which there was evidence that the supervisor engaged in
direct solicitation of authorization cards, which the Board found tainted
those cards. See Desilu Productions, Inc., 106 NLRB 179, 182 (1953);
Insular Chemical Corp., 128 NLRB 93, 98 (1960); Dexter IGA Food-
liner, 209 NLRB 369, 373 (1974); Sarah Neuman Nursing Home, 270
NLRB 663 fn. .2 (1984); Reeves Bros., Inc., 277 NLRB 1568 fn. 1
(1986); and Anaheim Town & Country Inn, 282 NLRB 224, 228–230
(1986).
15 After recognition was granted, Peterson commented to Timothy
Hahn that “those of you who did not sign a card, you better get that
card—you better get the card now” because “you can’t be nonunion
and work a Union shop.” Since this remark was made after the em-
ployees had signed authorization cards, it could not serve as evidence
of the employees were aware that Peterson was a long-
time member of the Union. As employee Borders ob-
served, Peterson “is one of the guys and he was invited
[to the meeting with the union representatives]. The door
at the [Union] was open to any Union member no matter
what you are.” As set out in the “Background” section,
above, Peterson’s message to this fellow workers was
simply that none of them (Peterson included) could know
what wages and benefits they could expect in the future
if the Respondent persisted in its refusal to recognize the
Union. Such a statement would likely be regarded as a
“fellow worker’s’’ view of a mutual plight, and would
not reasonably be taken as a statement of someone
speaking in his role as an agent of management.16
Under these circumstances, we find that Peterson’s
presence at the union meeting at which employees signed
authorization cards and his statements in support of the
Union are insufficient to establish that the cards were
tainted. See Pantex Towing Corp., 258 NLRB 837, 846
(1981); Brown & Connolly, Inc., 237 NLRB 271, 273
(1978); WKRG-TV, 190 NLRB at 175; and Clay City
Beverages, Inc., 176 NLRB 681, 682 (1969). Accord-
ingly, we find that the Union represented a valid majority
of unit employees at the time the Respondent voluntarily
recognized it as the employees’ 9(a) bargaining represen-
tative on August 1 and that the Respondent was obligated
to bargain with the Union for a reasonable period of
time. We therefore find that the Respondent violated
Section 8(a)(5) and (1) when it withdrew recognition
from the Union on August 11 and made unilateral
changes in the employees’ terms and conditions of em-
ployment on August 18.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, The Waldinger Corporation,
Smyrna, Georgia, its officers, agents, successors, and
assigns, shall take the action set forth in the Order.

MEMBER HURTGEN, dissenting.
Contrary to my colleagues, I find that the Union’s au-
thorization cards were tainted by the actions of Supervi-

that Peterson coerced Hahn or any other employee to sign authorization
cards.
16 We note that under the Act, although an employer may prohibit
his supervisors from belonging to a union, barring such a prohibition a
supervisor is free to be a union member and may even be covered by
the collective-bargaining agreement. See, e.g., Gratiot Community
Hospital, 312 NLRB 1075 fn. 2 (1993), and cases there cited, enf.
denied in part on other grounds 51 F.3d 1255 (6th Cir. 1995). Thus, the
Act does not presume that a supervisor’s membership and participation
in union activities necessarily coerces his fellow employees. Here, the
Respondent had permitted Peterson to remain a union member, and
kept him at arms length regarding wage and benefit decisions, declining
to tell him what the Respondent had in mind for changes in employee
wages and benefits once it was no longer applying the union contract
terms. The Respondent thus dealt with him as simply part of the work
force.
WALDINGER CORP. 547
sor Arthur Peterson in the card-signing process. There-
fore, as the Union never established valid majority status,
the Respondent was not obligated to recognize and bar-
gain with the Union.
In brief, the facts are as follows. On July 31, 1997, at
a meeting at the union hall, the Respondent’s 12 employ-
ees met with Peterson and officials from the Union. Pe-
terson was the leading advocate for the Union. He was
the one who announced and spread the word as to the
meeting. Peterson advocated that all employees join the
Union. He argued that the Union’s benefit package was
a known quantity and that employees should not reject it.
Critically, although the union officials left the meeting at
one point, Peterson did not. He remained for the em-
ployee discussion and for the open informal vote to join
the Union. After the union representatives returned to
the meeting, Peterson signed a card, and he witnessed the
card-signings by the other employees.
As set forth in my dissent in Millsboro Nursing & Re-
habilitation Center, 327 NLRB 879 (1999), I believe that
supervisory solicitation of an employee to sign an au-
thorization card is coercive, even in the absence of an
explicit threat or promise of benefit. Peterson had control
over the working lives of these employees. He exercised
authority to discipline, evaluate, direct, and administer
pay raises. Armed with this authority, Peterson solicited
the employees to sign authorization cards. Though union
officials may have physically passed out and retrieved the
authorization cards, Peterson was a leading force in the
entire process. He strongly advocated joining the Union
and spoke in favor of the Union’s benefit package. Peter-
son personally signed a card in front of the employees.
Significantly, he also witnessed the open vote and the
card-signing—thus observing whether or not employees
responded to his plea.
In sum, the supervisor who had power over the work
lives of employees watched to see whether these employ-
ees responded to his urging that they join the union.
Clearly, if he had engaged in this conduct in order to per-
suade employees to abandon the union, a resultant anti-
union petition would be tainted. I see no reason to reach a
different result where, as here, the supervisors seek to
have the employees sign a prounion document. Thus, in
my view, Peterson’s role and actions coerced employees
into signing cards. Therefore, these tainted cards could
not establish a valid majority on behalf on the Union.
My colleagues argue that Supervisor Peterson was free
to be a union member and that the Respondent dealt with
him as part of the work force. As shown below, neither
argument is persuasive. As to the first argument, the
issue is not whether Peterson could be a union member.
Rather, the issue is whether his conduct in the instant
case, coupled with his power over employment condi-
tions, would tend to interfere with the employees’ exer-
cise of Section 7 rights.
As to the second point, the issue is not how the Re-
spondent treated Peterson. Rather, the issue has to do
with Peterson’s supervisory relationship to employees. In
light of that relationship, and Peterson’s control over pay
raises and discipline, there is a concern that employees
would not be inclined to bite the hand that feeds them.
The Respondent, upon learning of the circumstances of
the employee card-signing, withdrew its earlier recogni-
tion of the Union. As its recognition was based on the
tainted cards, the Respondent was privileged, if not obli-
gated, to withdraw recognition. I would therefore dis-
miss the complaint.
Carla L. Wiley, Esq., and Lisa Y. Henderson, Esq. for the Gen-
eral Counsel.
James R. Swanger, Esq., for the Respondent.
John McIntire, Esq., for the Charging Party.
BENCH DECISION
STATEMENT OF THE CASE
LAWRENCE W. CULLEN, Administrative Law Judge.
This case was heard before me on June 24, 1998. I issued a
Bench Decision on June 25, 1998, pursuant to Section
102.35(a)(1) of the Board’s Rules and Regulations on the entire
record in this proceeding including my consideration of the
arguments of counsel and the trial memorandum filed by the
Charging Party. In accordance with Section 102.45 of the
Board’s Rules and Regulations I certify the accuracy of, and
attach hereto as “Appendix A” the pertinent portion of the trial
transcript (pp. 182–197) as corrected and modified.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended1
ORDER
The Respondent, Waldinger Corporation, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Withdrawing recognition from and failing and refusing to
recognize the Union as the exclusive collective-bargaining
representative of the employees in the following appropriate
bargaining unit:

All full time and part time HVAC service technicians em-
ployed by the Employer out of its 1600 Wilson Way, Suite
12, Symrna, Georgia Branch Office but excluding all of-
fice clerical employees, sales employees, sub-contractors,
professional employees, confidential employees, all other
employees employed by the Employer, guards, and super-
visors as defined in the Act.

(b) Bypassing the Union and dealing directly with the unit
employees with respect to wages and other terms and condi-
tions of employment and unilaterally implementing the follow-
ing changes in the terms and conditions of employment of its
employees:

1. a pay increase
2. a profit sharing and savings plan

1 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 548
3. a flexible benefits plan
4. a health insurance plan, and
5. six paid holidays.

(c) In any like or related manner, interfering with, restraining
or coercing employees in the exercise of their rights under Sec-
tion 7 of the Act.
2. Take the following affirmative actions designed to effec-
tuate the policies of the Act.
(a) Recognize and on request, bargain with the Union on be-
half of the employees in the above-described unit for a reason-
able time and if agreement is reached embody it in a signed
agreement.
(b) Make the unit employees whole for any loss of earnings
or benefits sustained by them as a result of Respondent’s with-
drawal of recognition from and its failure and refusal to bargain
with the Union on their behalf, and its bypassing of the Union
as the collective-bargaining representative of the unit employ-
ees and Respondent’s institution of unilateral changes in the
terms and conditions of employment of its employees, with
interest, as set out in “the Remedy.”
(c) Rescind any of the aforesaid unilateral changes on the
written request of the Union.
(d) Within 14 days after service by the Region, post at its fa-
cility in Smyrna, Georgia, copies of the attached notice marked
“Appendix B.2” Copies of the notice, on forms provided by the
Regional Director for Region 10, after being signed by the Re-
spondent's authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other mate-
rial. In the event that, during the pendency of these proceed-
ings, 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 current employees and former employees employed by the
Respondent at any time since July 31, 1997.
(e) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply. The complaint is otherwise
dismissed as to violations not specifically found.
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 violated
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

2 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-
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.”
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 con-
certed activities.

WE WILL NOT withdraw recognition from and fail and re-
fuse to recognize the United Association of Journeymen and
Apprentices of Plumbing and Pipefitting Industry of the United
States and Canada, AFL–CIO, Local No. 72 as the exclusive
collective bargaining representative of the unit employees.
WE WILL NOT bypass the Union and deal directly with the
unit employees with respect to wages and other terms and con-
ditions of employment and will not unilaterally implement:

1. a pay increase
2. a profit sharing and savings plan
3. a flexible benefits plan
4. a health insurance plan, and
5. six paid holidays.

WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of their rights
under Section 7 of the Act.
WE WILL, on request, bargain with the Union on behalf of
the employees in the above-described unit for a reasonable time
and if agreement is reached, embody it in a signed agreement.
WE WILL make the unit employees whole for any loss of
earnings or benefits sustained by them as a result of our with-
drawal of recognition and our failure and refusal to bargain
with the Union on their behalf, and our bypassing the Union as
the collective-bargaining representative of the unit employees
and our institution of unilateral changes in their terms and con-
ditions of employment, with interest.
WE WILL rescind any of the aforesaid unilateral changes on
the written request of the Union.
THE WALDINGER CORPORATION
182
APPENDIX A
BENCH DECISION
I heard this case on June 24, 1998 in Atlanta, Georgia pursu-
ant to a Complaint filed by the Regional Director of Region 10
of the National Labor Relations Board (“The Board”) on April
16, 1998.
The Complaint is based on a charge filed by the United As-
sociation of Journeymen and Apprentices, of Plumbing and
Pipefitting Industry of the United States and Canada, AFL–CIO
Local No. 72 (“The Charging Party”) or (“The Union”) on Oc-
tober 14, 1997.
The Complaint alleges that The Waldinger Corporation
(“The Respondent”) or (“The Company”) violated Section
8(a)(5) and (1) of the Act by the issuance of a letter dated Au-
gust 11, 1997 withdrawing recognition from the Union which it
had previously recognized as the exclusive collective bargain-
ing representative of the employees in the following described
unit and that description as stipulated by the Parties and as set
out in Joint Exhibit 1 is:
“All full time and part time HVAC service technicians em-
ployed by the Employer out of its 1600 Wilson Way, Suite 12,
WALDINGER CORP. 549
183
Symrna, Georgia Branch Office but excluding all office clerical
employees, sales employees, sub-contractors, professional em-
ployees, confidential employees, all other employees employed
by the Employer, guards, and supervisors as defined in the Act”
constitute an appropriate unit for the purposes of collective
bargaining under a pre-hire agreement within the meaning of
Section 8(f) of the Act as well as under Section 9(b) of the Act.
It is alleged, it is admitted, and I find that the above de-
scribed unit constitutes a unit appropriate for purposes of col-
lective bargaining within the meaning of Section 9(b) of the
Act.
It is further alleged that since the withdrawal of recognition
the Respondent has thereafter failed and refused to bargain with
the Union as the exclusive collective bargaining representative
of the unit, and that since or about August 11, 1997 the Re-
spondent has bypassed the Union and dealt directly with the
employees in the unit with respect to wages and other terms and
conditions of employment, and that Respondent has since Au-
gust 11, 1997 unilaterally implemented changes in the terms
and conditions of employment of its employees in violation of
Section 8(a)(5) and (1) of the Act.
The Respondent has by its Answer filed on April 21, 1998
denied the commission of any violations of the Act.
The Complaint alleges and it is admitted and I find that
184
at all material times herein the Respondent has been an Iowa
Corporation with an office and place of business in Smyrna,
Georgia herein called Respondent’s facility where it has been
engaged in the service and maintenance of mechanical equip-
ment;
And that during the past twelve month period Respondent in
conducting its aforesaid business operations has provided ser-
vices valued in excess of $50,000.00 directly to customers lo-
cated outside the State of Georgia, and
That Respondent has been an Employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act. It
is further alleged, admitted, and I find that at all times material
herein the Union has been a labor organization within the
meaning of Section 2(5) of the Act.
It is further alleged and admitted by Respondent that at all
times herein the Company President Thomas Koehn, Branch
Manager William McMillen, Personnel Manager Becky Buch,
and Service Supervisor Arthur C. Peterson have been supervi-
sors of Respondent within the meaning of Section 2(11) of the
Act and Agents of Respondent within the meaning of Section
2(13) of the Act. With respect to supervisor Arthur Peterson I
will treat that separately.
All right. Respondent is engaged in the installation, service,
and maintenance of heating and air conditioning equipment for
large commercial facilities. It is
185
headquartered in Des Moines, Iowa with several branch offices
throughout the Mid-West and Southeast including an office in
Smyrna, Georgia which is also referred to as the Atlanta Branch
Office.
Thomas Koehn is the President of Respondent and is head-
quartered in Iowa. William McMillen is the General Manager
of the Atlanta Branch in Smyrna, Georgia. Local 72 is an af-
filiate of the International servicing the greater Atlanta Metro-
politan area with its work jurisdiction including servicing,
maintenance, and installation of HVAC equipment and repre-
sents HVAC service technicians and employees who are signa-
tory to the National Mechanical Equipment, Service, and
Maintenance Agreement.
That’s NMESMA or the National Agreement which is a col-
lective bargaining agreement negotiated by the International
Union and the Mechanical Service Contractors of America.
This agreement provides for wages, benefits, and other terms
and conditions of employment to be “in accordance with estab-
lished Local agreements to the extent they do not conflict with
the National agreement”.
Prior to August 16, 1997 Respondent’s service technicians
were covered by the National agreement. Respondent was a
signatory to an 8(f) - Section 8(f) of the Act pre-hire agreement
with the International which had been entered into on Novem-
ber 6, 1990.
186
Under the terms of the agreement the Union or the Respon-
dent could terminate it by giving to the other sixty days notice
prior to August 16th of each year. On June 30, 1997 Respon-
dent’s President Koehn gave notice by letter to International
representative Donald House of Respondent’s intention to ter-
minate the agreement.
House then sent a letter to each of the Local Unions covered
by the letter of termination including Local 72. Local 72 or-
ganizer Clyde Jones testified that after the receipt of the July 1
memo from House directing Local 72 to obtain a Local agree-
ment with Respondent he telephoned Respondent’s President
Koehn and asked him what was wrong with the International
agreement.
Koehn’s response was negative and Jones did not ask him to
enter into a Local agreement. Subsequently, Jones telephoned
several of the unit employees of the Respondent, including Art
Peterson, a supervisor for Respondent, and set up a meeting at
Local 72’s Union Hall between the employees including Peter-
son and also with Richard Oliver, Local 72’s Business Man-
ager, and its Business Agent Ray Cashwell at which Oliver
explained the Union’s health and welfare plan, pension plan,
and referral procedures.
After much discussion the Union representatives left the
room and the employees voted 9 to 4 in favor
187
of representation by the Union. After the vote the Union repre-
sentatives returned and Jones passed out Union authorization
cards which were signed by nine of the thirteen employees at
the meeting.
This meeting was held on July 31st. The next day, August 1,
1997, Jones and Cashwell presented a letter demanding to ne-
gotiate to Branch Manager McMillen at his office. This letter
had been signed by Business Manager Oliver.
The letter stated to The Waldinger Company “Please be ad-
vised that Local 72 United Association of Journeymen and
Pipefitters of the Plumbing and Pipefitting Industry of the
United States and Canada continues to represent Waldinger’s
mechanics in Atlanta. Local 72 demands that Waldinger nego-
tiate in good faith the terms and conditions of the employees’
employment and sign a collective bargaining agreement with
Local 72. Sincerely, Richard L. Oliver, Business Manager
Local Union 72.”
Jones testified that McMillen fanned the cards, the Union
cards which he presented to him, and said that the Respondent
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 550
was ready to negotiate but that he would need to talk to Re-
spondent’s President Koehn and would contact Jones again.
On August 4, 1997 Respondent’s President Koehn sent Local
72 a letter agreeing to enter into negotiations which letter reads
as follows: It’s addressed to Richard L. Oliver,
188
Business Manager Plumbers and Pipefitters Local 72. “Dear
Mr. Oliver. Our Atlanta Office has forwarded to me your letter
of August 1, 1997 requesting that Waldinger negotiate in good
faith the terms and conditions of employment. We would be
happy to conduct such negotiations beginning immediately at a
time and place agreeable to both parties.
If Local 72 has a proposed agreement would you please for-
ward a copy to me immediately so that I may review it before
we meet. I assume that your proposed agreement would in-
clude qualified benefit plans. If it does would you also include
copies of the related summary plan descriptions for those bene-
fit plans.
Once we review your proposal I would like to schedule a
meeting during the week of August 11. Sincerely, Thomas K.
Koehn, President.”
On August 11, 1997 Respondent’s President Koehn sent Lo-
cal 72 another letter withdrawing recognition which reads as
follows: Addressed to Richard L. Oliver, Business Manager
Plumbers & Pipefitters Local 72. “Dear Mr. Oliver. I’ve re-
cently been advised that a majority of our Atlanta employees do
not wish to be represented by Plumbers & Pipefitters Local 72.
We do not therefore intend to bargain with Plumbers & Pipe-
fitters Local 72 for a new collective bargaining agreement; and,
accordingly, the meeting to be scheduled this
189
week will not be necessary.
The Company will continue to abide by the applicable terms
of the National Mechanical Equipment Service and Mainte-
nance Agreement through its August 15, 1997 expiration date.
Please be advised however that because Plumbers & Pipefit-
ters Local 72 does not enjoy majority status the Company will
not recognize Plumbers & Pipefitters Local 72 after August 15,
1997. Sincerely, Thomas K. Koehn, President.”
Since August 11, 1997 Respondent has not recognized and
bargained with the Union, nor has it paid into the Union’s pen-
sion funds.
Respondent’s Branch Manager, William McMillen, testified
that on August 1 Jones introduced him to the other gentleman
who was Business Agent Cashwell and they shook hands and
Jones gave him the letter of that date in an envelope which he
then opened and read.
Jones asked him who would represent the Respondent in ne-
gotiations and he said he would but that he needed to get in
touch with Respondent’s President Koehn. Both men then left
his office.
He testified he has never seen the Union authorization cards
before the date of the hearing but acknowledged that Jones had
offered him the cards which he refused to take or look at them.
190
On cross examination McMillen testified that Jones asked
him if he would like to see the cards and he said “no”. McMil-
len also testified on cross examination that he had heard from
employees prior to this incident that nine employees had signed
Union cards and had been aware prior to the July 31 meeting
that the employees’ meeting was to take place.
Under these circumstances I find that the Union presented
General Manager McMillen with a valid demand for recogni-
tion coupled with proof of majority support of the unit employ-
ees as evidenced by the Union authorization cards.
I credit Jones’ version of the events when he presented the
letter and the cards to McMillen and offered to present the
cards to McMillen. However, even under McMillen’s version
it is clear that he was presented with a demand for recognition
and offered proof of a showing of majority support for the Un-
ion but he declined the proof and agreed to meet with the Un-
ion.
I thus find that he, as the person with the profit and loss re-
sponsibility and the highest level official at the Atlanta Branch
Office, recognized the Union voluntarily thus establishing the
Section 9(a) status of the Union as the collective bargaining
representative of the unit employees.
Respondent’s President reaffirmed this recognition by his
letter of August 4, 1997. McMillen testified on direct
191
examination that on August 6th, a Wednesday, he received two
petitions from the service technicians addressed to President
Koehn, one of which was signed by eight service technicians,
and the other of which was signed by eleven of the service
technicians stating that they did not wish to be represented by
the Union.
He called President Koehn and forwarded these petitions to
him after receiving them. On cross examination McMillen
acknowledged that he himself had drafted the petitions which
were identical copies after conferring with the Company’s at-
torney and having referred service technician Pat Ratcliff to a
private attorney.
Ratcliff had called him and said that he had changed his
mind about Union representation and told him that he and sev-
eral other employees wanted to file the petition. McMillen
testified that he drafted the petition on August 5th and that it
was circulated during the morning of August 6th by Ratcliff
who called the service technicians into the office from their
jobs in the field during working hours to sign the petition with
McMillen’s admitted acquiescence.
The Respondent contends that the employees’ selection of
the Union as their collective bargaining representative is tainted
by the supervisory involvement of Art Peterson, the supervisor
of the service technicians, and Respondent presented three ser-
vice technicians who testified that
192
Peterson was a leading supporter of the Union at the employee
meeting of July 31 and contended that he would rather have a
known benefit package which was the Union’s rather than an
unknown package which would be the Company’s.
The Respondent contends, the General Counsel stipulates
that Peterson was a Section 2(11) supervisor under the Act.
However, the Charging Party opposes the stipulation.
I find on the basis of the stipulation of the Respondent and
the General Counsel and the substantial evidence of Peterson’s
supervisory status that he was at all times material herein a
supervisor under the Act who had the authority and exercised
the authority to responsibly direct the service technicians in the
field, to hire, to discipline, to evaluate, and administer pay
raises to these employees.
WALDINGER CORP. 551
The Respondent contends that Peterson’s involvement at the
meeting thus tainted the selection of the Union by the employ-
ees and their signing of authorization cards. Service techni-
cians Timothy Hahn, Steve Borders, and Joseph Beck all testi-
fied concerning Peterson’s participation in favor of the Union at
the July 31 meeting.
Hahn and Borders did not sign a card. Beck did. However,
there was no evidence of any coercion by Peterson who was
espousing a position which was at odds with the Company’s
position.
193
Company President Thomas Koehn testified he sent the Au-
gust 11 letter withdrawing recognition as it was clear on the
basis of the petitions that the Union did not represent a majority
of the employees and that he had never thought that they had
represented a majority of the employees, and also, because of
Peterson’s involvement with the process.
The Parties have stipulated also that the Respondent imple-
mented the following unilateral changes effective August 18,
1998 for all service technicians: (1) A pay increase. (2) A
profit sharing and savings plan. (3) A flexible benefits plan.
(4) A health insurance plan, and (5) Six paid holidays.
Analysis and Conclusions. I find that the Respondent volun-
tarily recognized the Union as the collective bargaining repre-
sentative of the unit employees on August 1, 1997 and reaf-
firmed this by the letter sent to the Union by Respondent’s
President Koehn on August 4 reaffirming this voluntary recog-
nition. Thus, the Union was the collective bargaining represen-
tative of the unit employees under Section 9(a) of the Act.
I would cite in support of this position John Deklewa and
Sons, Inc., 282 NLRB 1375, 1387 Footnote 53 (1987); Pierson
Electric Inc., d/b/a Golden West Electric, 307 NLRB 1494,
1495 (1992); MFP Fire Protection, Inc., 318 NLRB 840
(1995); Hayman Electric, Inc., 314 NLRB 879 (1994); Brannon
Sand and Gravel Company, 289 NLRB No. 128 (1988).
194
I find that the selection of the Union by the unit employees
and the signing of Union authorization cards by them at the
July 31 meeting was not tainted by supervisory involvement.
Here the Employer has failed to show that there was any
unlawful coercion of the employees by Peterson who was
clearly espousing his own views in contrast to the Respondent’s
position.
In support of this I cite Brooks v. NLRB 348, U.S. 96 (1954);
Wehrenberg Theaters, Inc., 260 NLRB 18, 22 (1982); Pacific
Physicians Services, Inc., 313 NLRB No. 200 (1994); Silbase
Company, 290 NLRB No. 157 (1988).
I find that the withdrawal of recognition and refusal to bar-
gain bypassing the Union and the implementation of the unilat-
eral changes by Respondent as set out hereinabove was viola-
tive of Section 8(a)(5) and (1) of the Act.
Having voluntarily recognized the Union the Respondent
was obliged to engage in bargaining upon request by the Union
for a reasonable period of time. Respondent’s withdrawal of
recognition was unlawful and destabilized the collective bar-
gaining relationship. Respondent could not rely on the petition
as the Union had not been afforded a reasonable time to repre-
sent the employees and bargain on their behalf. I cite Brooks v.
NLRB, supra, I believe that was and Star Dental
195
Products, 303 NLRB 968 (1991); Keller Plastics Eastern, Inc.,
157 NLRB 583, 587 (1966); Cayuza Crushed Stone, Inc., 195
NLRB 543, 545 (1972).
Conclusions of law. The Respondent is an Employer en-
gaged in commerce within the meaning of Section 2 (6) and (7)
of the Act. (2) The Union is a labor organization within the
meaning of Section 2(5) of the Act. (3) Respondent violated
Section 8(a)(5) and (1) of the Act by its withdrawal of recogni-
tion from the Union, it’s failure and refusal to recognize the
Union as the exclusive collective bargaining representative of
the employees in the aforesaid appropriate bargaining unit, and
by bypassing the Union in dealing directly with the unit em-
ployees with respect to wages and other terms and conditions of
employment, and by unilaterally implementing the following
changes in the terms and conditions of employment of its em-
ployees which were:
(1) A pay increase. (2) A profit sharing and savings plan.
(3) A flexible benefits plan. (4) A health insurance plan; and
(5) Six paid holidays.
The Remedy. Having found that the Respondent has en-
gaged in violations of the Act it will be recommended that the
Respondent cease and desist therefrom and take certain af-
firmative actions designed to effectuate the purposes of the Act
and post the appropriate notice.
It is recommended that the Respondent recognize and on
196
request bargain with the Union on behalf of the employees in
the above described unit. It is further recommended that the
Respondent make the aforesaid employees whole for any loss
of earnings or benefits sustained by them as a result of Respon-
dent’s failure and refusal to recognize the Union and bargain on
their behalf and its bypassing of the Union as the exclusive
collective bargaining representative of the unit employees and
Respondent’s institution of unilateral changes in the terms and
conditions of employment of its employees. In accordance
with F.W. Woolworth Co., 90 NLRB 289 (1950), these sums
shall be with interest, as computed in New Horizons for the
Retarded, 283 NLRB 1173 (1982) which provides for interest
to be computed at the short term Federal rate for the underpay-
ment of taxes as set out in the 1986 Amendment to 226 USC
Section 6621. Respondent will also be ordered to rescind any
of the aforesaid unilateral changes upon the written request of
the Union.
When I receive the transcript in this case I will review my
decision and I may correct it or modify it as warranted and will
then certify it in its modified form. Exceptions shall run from
that point.
Is there anything further before I close the hearing in this
case?
MS. WILEY: No, Your Honor.
MR. McINTIRE: No, Your Honor.
197
JUDGE CULLEN: Hearing no answer the hearing is
now closed.
(Off the record.)
(Whereupon, the hearing in the above entitled matter closed
at 12:00 noon.)
Date: June 25, 1998