Yellowstone Plumbing, Inc.

National Labor Relations Board - Board Decisions

Nov 20, 1987

286 N.L.R.B. 993 (N.L.R.B. 1987)

YELLOWSTONE PLUMBING 993
Yellowstone Plumbing, Inc. and Dean Schneider and
Local 30, United Association of Journeymen
and Apprentices of the Plumbing and Pipefitting
Industry of the United States and Canada,
AFL-CIO. Cases 19-CA-17846, 19-CA-17854,
and 19-CA-18336
20 November 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 9 January 1987 Administrative Law Judge
Roger B. Holmes issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed a reply brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, I and
conclusions, to modify his remedy, 2 and to adopt
the recommended Order as modified.
We agree with the judge's finding that the Re-
spondent committed numerous independent 8(a)(1)
violations and that it violated Section 8(a)(3) and
(1) by laying off and failing to reinstate employee
Dean Schneider. We disagree„ however, with the
judge's finding that the Respondent violated Sec-
tion 8(a)(5) and (1) by withdrawing recognition
from and refusing to bargain With the Union after
contract expiration, for reasons set forth below.
The Respondent, a plumbing contractor, was
party to a multiemployer agreement with the
Union as well as a separately bargained housing
agreement . The parties stipulated that the master
agreement and the housing agreement were effec-
tive through 31 August 1985. On 9 April 1985 the
Respondent's president, Floyd Lovejoy, informed
the Union that the Respondent intended to termi-
nate all its agreements with the Union and that it
no longer considered itself represented by any mul-
tiemployer group or association for the purposes of
collective bargaining. Following the contract's ex-
i The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance 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 In accordance with our decision in New Horizons for the Retarded,
283 NLRB 1173 ( 1987), interest on and after 1 January 1987 shall be
computed at the "short -term Federal rate" for the underpayment of taxes
as set out in the 1986 amendment to 26 US C § 6621 Interest on
amounts accrued prior to 1 January 1987 I the effective date of the 1986
amendement to 26 U S C § 6621) shall be computed in accordance with
Florida Steel Corp., 231 NLRB 651 (1977)
piration the Respondent withdrew recognition
from the Union, refused to bargain with it, and uni-
laterally changed the unit employees' wages and
working conditions. The judge found this conduct
violative of Section 8(a)(5) and (1) of the Act.
In our recent decision in John Deklewa & Sons,3
we held that in cases involving bargaining relation-
ships arising under Section 8(f) of the Act either
party may repudiate upon contract expiration.
As we stated in Deklewa:
Beyond the operative term of the contract, the
signatory union acquires no other rights and
privileges of a 9(a) exclusive representative.
Unlike a full 9(a) representative, the 8(f) union
enjoys no presumption of majority status on
the contract's expiration and cannot picket or
strike to compel renewal of an expired agree-
ment or require bargaining for a successor
agreement. At no time does it enjoy a pre-
sumption of majority status, rebuttable or oth-
erwise, and its status as the employees' repre-
sentative is subject to challenge at any time.4
In this case there is no evidence that the bargain-
ing relationship between the Respondent and the
Union is other than one arising under Section 8(f),
and no party has sought to prove that it is. s
Indeed, the General Counsel acknowledges the
Union's 8(f) status in her brief filed after Deklewa
issued, but seeks to distinguish that case, arguing
the Respondent's withdrawal of recognition was
tainted by bad faith, and therefore Deklewa should
not apply. The General Counsel contends that the
Respondent is not free to repudiate its collective-
bargaining relationship upon contract expiration be-
cause it refused to bargain for a new contract on
the basis of a pending decertification petition later
found to be tainted by the Respondent's own mis-
conduct. Although we agree that the Respondent
unlawfully encouraged the decertification effort,
that misconduct does not warrant an exception to
our policy under Deklewa.
As noted above, under Deklewa the Union en-
joyed no presumption of majority status on expira-
tion of the collective-bargaining agreement . There-
fore, although the Respondent would not be free to
repudiate that agreement during its term, we find
that it was under no obligation to bargain with the
Union over a successor agreement. Consequently,
and applying the principle that "the obligations we
impose on an 8(f) employer through our applica-
tion of Section 8(a)(5) to 8(f) agreements are limit-
ed to prohibiting the unilateral repudiation of the
3 282 NLRB 1375 (1987)
4 Deklewa, supra at 1387
5 Id fn 41
286 NLRB No. 93
994 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
agreement until it expires or until the employer's
unit employees vote to reject or change their rep-
resentative"s and in accordance with our an-
nounced policy to apply Deklewa retroactively,'
we shall dismiss the 8(a)(5) allegations in the com-
plaint. Further, because under Deklewa the Union
enjoyed no presumption of majority status on the
expiration of the collective-bargaining agreement
and the Respondent was not obligated to bargain
with the Union as of that time, we find that the
Respondent was free to tell employees that after 1
September 1985 the shop would be nonunion and
that their wages would not be lowered if the em-
ployees went nonunion. Accordingly, we shall also
dismiss the allegation that the Respondent violated
Section 8(a)(1) based on these statements.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Yellowstone Plumbing, Inc., Billings,
Montana, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order as
modified.
1. Substitute the following for paragraph 1(a).
"(a) Threatening employees that the Respondent
would shut down if the Company did not go non-
union ; encouraging its employees to file a petition
to decertify the Union; and telling an employee
that he was being laid off from work because the
Respondent did not want the employee involved in
the middle of the trouble or problems between the
Respondent and the Union, and that the employee
could come back to work after September, which
was the month the contract between the Respond-
ent and the Union was to expire."
2. Delete paragraphs 1(c) and 2(c) and (d) and
reletter the subsequent paragraphs.
3. Substitute the attached notice for that of the
administrative law judge.
6
Deklewa, supra at 1387
' Id at 1389
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT threaten you that we will shut
down if the Company does not go nonunion; en-
courage you to file a petition to decertify the
Union or tell you that you are being laid off from
work because of union activities, and that you can
come back to work after the contract between our
company and the Union expires.
WE WILL NOT lay off Dean Schneider and fail to
recall him to his former job, or to a substantially
equivalent job, because of his union membership
and activities.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer Dean Schneider immediate and
full reinstatement to his former job or, if that job
no longer exists, to a substantially equivalent posi-
tion , without prejudice to his seniority or any other
rights or privileges previously enjoyed, and make
him whole for any loss of earnings and other bene-
fits suffered as a result of the discrimination against
him, less any net interim earnings , plus interest.
WE WILL notify Dean Schneider that we have
removed from our files any reference to his dis-
charge and that the discharge will not be used
against him in any way.
YELLOWSTONE PLUMBING, INC.
James C. Sand, Esq., for the General Counsel.
Doris M. Poppler, Esq. (Davidson & Poppler), of Billings,
Montana, for the Respondent.
Dean Schneider of Laurel, Montana, for himself as an in-
dividual Charging Party.
Joseph W. Duffy, Esq., of Great Falls, Montana, for the
Charging Party Union.
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.
DECISION
STATEMENT OF THE CASE
ROGER B . HOLMES, Administrative Law Judge. Dean
Schneider filed on 4 October 1985 the unfair labor prac-
tice charge in Case 19-CA-17846. I usually will refer to
Charging Party Schneider in this decision as Schneider.
Local 30, United Association of Journeymen and Ap-
prentices of the Plumbing and Pipefitting Industry of the
United States and Canada, AFL-CIO filed on 7 October
1985 the unfair labor practice charge in Case 19-CA-
YELLOWSTONE PLUMBING 995
17854. I usually will refer to the Charging Party Union
in this decision as the Union.
The Regional Director for Region 19 of the National
Labor Relations Board, who was acting on behalf of the
General Counsel of the Board, issued on 14 November
1985 an order consolidating cases, consolidated com-
plaint and notice of hearing in Cases 19-CA-17846 and
19-CA-17854. The General Counsel alleged that the Re-
spondent, Yellowstone Plumbing, Inc., had engaged in
unfair labor practices within the meaning of Section
8(a)(1) and (3) of the Act. I usually will refer to the Re-
spondent in this decision as the Employer.
The Employer entered into an informal settlement
agreement which contained a nonadmission clause, and
which was approved on 12 December 1985 by the Re-
gional Director. Neither Schneider nor the Union en-
tered into that settlement agreement.
The Union filed on 27 May 1986 the unfair labor prac-
tice charge in Case 19-CA-18336.
On 20 June 1986 the Regional Director revoked his
approval of the settlement agreement in Cases 19-CA-
17846 and 19-CA-17854 on the grounds that the Em-
ployer had failed to comply with the terms of the settle-
ment agreement.
. The Regional Director also issued on 20 June 1986 a
second order consolidating cases, consolidated complaint
and notice of hearing in Cases 19-CA-17846, 19-CA-
17854, and 19-CA-18336. The General Counsel alleged
in that consolidated complaint that the Employer had en-
gaged in unfair labor practices within the meaning of
Section 8(a)(1), (3), and (5) of the, Act. The Employer
filed on 1 July 1986 an answer to that consolidated com-
plaint; denied that the Employer had engaged in the al-
leged unfair labor practices; and raised certain affirma-
tive defenses to the General Counsel's allegations.
I heard the evidence in this consolidated proceeding
on 12, 13, and 14 August 1986 at Billings , Montana. I set
18 September 1986 as the time for filing posthearing
briefs. The General Counsel and the attorney for the Re-
spondent filed such briefs. On 22 September 1986 a
motion to strike and Respondent's brief in support of
motion were received from the attorney for the Re-
spondent. On 25 September 1986 [ issued an order that
permitted the General Counsel to file a response to the
motion to strike by 10 October 1986. On 26 September
1986 the General Counsel's response to motion to strike
was received from the General Counsel. On 3 October
1986 Charging Party Union's response to motion to
strike was received. On 16 October 1986 I issued an
order denying motion to strike. Under Section 102.26 of
the Board's Rules and Regulations, such motions and
orders are part of the record in this proceeding, and,
therefore, it is not necessary to reiterate those matters
here.
FINDINGS OF FACT AND CONCLUSIONS
1. JURISDICTION
The Employer is engaged in the residential and com-
mercial plumbing business as a contractor. The Employ-
er is a Montana corporation and has an office and place
of business in Billings , Montana . During the 12 months
preceding the issuance of the second order consolidating
cases, consolidated complaint and notice of hearing, the
Employer sold and shipped goods or provided services
valued in excess of $50,000 from its facilities within the
State of Montana to customers outside of Montana, or
the Employer sold and shipped goods or provided serv-
ices valued in excess of $50,000 to customers within
Montana, which customers were engaged in interstate
commerce by other than indirect means.
Based on the pleadings and the evidence presented in
this proceeding, I find that the Employer has been at all
times material, an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
Based on the pleadings and the evidence presented in
this proceeding, I find that the Union has been at all
times material, a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background Evidence
The findings of fact in this section and in the other
sections of this decision are based on credited portions of
the testimony given by the witnesses at the hearing in
this proceeding. In making credibility resolutions, I have
considered primarily the demeanor of the witnesses as
they related their versions of the facts on the witness
stand. In addition, I have considered such factors as
whether the witnesses were identified with one of the
parties to the proceeding; the likelihood of the witnesses
having a bias for or against one of the parties; whether
the witnesses had an interest in the outcome of the litiga-
tion; the probability of the testimony given by the wit-
nesses ; the consistency or the inconsistency of the wit-
nesses ' versions; whether the record reflects a basis for
the witnesses' knowledge of the events about which the
witnesses testified (see Rule 602 of the Federal Rules of
Evidence); whether the answers by the witnesses to cer-
tain questions on direct examination were to leading
questions, except as permitted by Rule 611(c) of the Fed-
eral Rules of Evidence; and the matters brought out on
the record by the attorneys which the attorneys urge are
matters affecting the credibility of the witnesses. I also
have considered the perception, the memory, and the
ability of the witnesses to relate past events accurately.
Finally, in making the findings of fact, I have been
guided by the holding that it is common that a trier of
fact will believe some of the testimony of witnesses, but
not necessarily believe all of the witnesses' testimony.
The court held in NLRB v. Universal Camera Corp., 179
F.2d 749, 754 (2d Cir. 1950): "It is no reason for refusing
to accept everything that a witness says, because you do
not believe all of it; nothing is more common in all kinds
of judicial decisions than to believe some and not all."
In addition, certain findings of fact throughout the de-
cision are based on documentary evidence which was in-
troduced by the attorneys at the hearing.
There are no allegations in the General Counsel's con-
solidated complaint that any unfair labor practices oc-
996 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
curred prior to July 1985. Thus, none of the events in
this section are alleged to be unfair labor practices. In-
stead, the events in this section provide some back-
ground evidence to the events which are in issue as to
whether those events constitute unfair labor practices.
Floyd Lovejoy is the president of the Employer, and
Beverly Lovejoy is the secretary-treasurer of the Em-
ployer.' Floyd Lovejoy and Beverly Lovejoy are hus-
band and wife. They are the principal stockholders of
the Employer. The Employer has been in business for
about 23 years as a plumbing contractor for both residen-
tial and commercial work. The Employer is located in
Billings, Montana. Floyd Lovejoy and Beverly Lovejoy
also are the principal stockholders and officers of an-
other corporation known as JSA Plumbing. That compa-
ny is located in Bozeman, Montana. Floyd Lovejoy II is
the manager of JSA Plumbing. Floyd Lovejoy II is the
oldest son of Floyd Lovejoy and Beverly Lovejoy.
Floyd Lovejoy II had participated in the Union's ap-
prenticeship training program, and he became a journey-
man plumber in the Union. Dan Lovejoy is the younger
son of Floyd Lovejoy and Beverly Lovejoy. At the time
of the hearing, Dan Lovejoy was registered with the
State of Montana Plumbing Apprenticeship Program in
Bozeman , Montana.'
General Counsel's Exhibit 11(a) is a copy of an agree-
ment between the Master Plumbers of the Billings Con-
tractors' Council, Incorporated and the Union. The doc-
ument usually was referred to for convenience at the
hearing as the master agreement . Appendix A of the
master agreement contains 50 definitions of work, which
is covered by that collective-bargaining agreement. Gen-
eral Counsel's Exhibit 11(b) is a copy of a document
known as the Supplemental Housing and Service Agree-
ment . That agreement was between the Employer and
the Union. That agreement usually was referred to for
convenience at the hearing as the housing agreement.
The scope of the work covered by the housing agree-
ment is set forth in section 22 entitled "Scope of Work."
The wage rates to be paid for work performed under the
housing agreement are set forth in section 23 entitled
"Wage Rates." Among other things, the housing agree-
ment provides that the hourly wage rate for journeymen
shall be 60 percent of the prevailing journeyman's rate of
pay set forth in the master agreement.3
The parties stipulated that the master agreement and
the housing agreement were the contracts that the Em-
ployer and the Union had through 31 August 1985.
Both Floyd Lovejoy and former union business repre-
sentative, Monty Patterson, testified that the scope of the
work covered by the collective-bargaining agreement
was different from and broader in scope than the type of
work which requires a person to have a State of Mon-
tana plumbing license. Respondent's Exhibit 9 is a copy
of the State of Montana statutes in Title 37, Chapter 69,
I The first and the last names of Floyd Lovejoy and Beverly Lovejoy
will be used in this decision in order to distinguish between references to
each one of them
2 The foregoing findings are based on credited portions of the testimo-
ny of Floyd Lovejoy and Beverly Lovejoy Floyd Lovejoy II and Dan
Lovejoy did not testify at the hearing in this proceeding
2 The foregoing findings are based on documentary evidence
which deal with the licensing of plumbers under state
law. A comparison of Respondent's Exhibit 9 with Gen-
eral Counsel's Exhibit 11(a) reveals the validity of the
observations of Floyd Lovejoy and Patterson. I conclude
that, in order to determine the scope of the bargaining
unit work in this proceeding, the master agreement must
be examined to see if that document defines the type of
work covered by the bargaining unit . As indicated
above, Appendix A to the master agreement contains 50
definitions of the type of work covered by that collec-
tive-bargaining agreement. Thus, the document itself de-
fines the scope of the bargaining unit here. In these cir-
cumstances the definition of bargaining unit work is gov-
erned by the earlier collective-bargaining agreement.
One should not look to the statutes concerning the li-
censing of plumbers to find out what the scope of the
bargaining unit work is.
At the time of the hearing Monty Patterson was em-
ployed by the 4-G Plumbing and Heating Company. He
was working as a journeyman plumber for that company.
From August 1978 until January 1986, Patterson was a
business agent of the Union. Patterson explained at the
hearing that, in order for a person to be on any of the
Union's referral lists, the person must have passed a
union journeyman's plumbers examination or come up
through the Union's apprenticeship program. In addition
to those qualifications a person must also have worked
for a sufficient time in the area . The Union has referral
lists that are known as the A, B, and C lists. In order to
be on the Union's A list, a person must have been a jour-
neyman plumber with 4 years of experience. The Union
also has a separate list of persons who are qualified to
perform residential plumbing work. That list is known as
the residential list. In order to be on that list a person has
to possess, or be able to obtain, a State of Montana jour-
neyman plumbers license, and the person has to have 4
years of experience in the trade. Patterson further ex-
plained that a journeyman plumber, who thought that he
had a better chance of getting work on the residential
list, could make a request to the Union that his name be
placed on the residential list. In order to become a
member of the Union, an applicant first would have to
certify to the Union that that person had 4 years of expe-
rience in a particular craft, such as a plumber or as a
pipefitter. Then the person would have to pass the
Union's examination . A person may become a union
member while that person is undergoing an apprentice-
ship. Such an apprentice would have a 6-month proba-
tionary period after which his work would be evaluated
by the Union's apprenticeship council.'
Beginning in 1983 and continuing into 1984, there
were disputes between the Union and the Employer. The
disputes resulted from complaints received by the Union
from other contractors who viewed the Employer to be
engaged in unfair competition with them. Those other
plumbing contractors told the Union that they believed
that the Employer was performing commercial work
under the housing agreement when the jobs were in
4 The foregoing findings are based on credited portions of the testimo-
ny of Patterson
YELLOWSTONE PLUMBING 997
excess of the dollar limits of the housing agreement. In
addition, union members informed the Union that there
were employees of the Employer who were not mem-
bers of the Union.5 Also in either 1983 or 1984 Floyd
Lovejoy complained to the Union that he was unable to
compete with nonunion companies who were performing
work cheaper than the Employer. In 1984 Floyd Love-
joy contacted Attorney Alden Pedersen. Floyd Lovejoy
told Attorney Pedersen that the Employer could not
compete anymore, and that Floyd Lovejoy wanted to
get out of the Union. As a result of the foregoing, Attor-
ney Pedersen sent a letter dated 2 July 1984 to the
Union. Respondent's Exhibit 4 is a copy of that letter.
The letter stated: "You are hereby notified that Yellow-
stone Plumbing Co, Inc. is terminating all agreements
with you." Respondent's Exhibit 5 is a copy of a letter
dated 13 September 1984 from Floyd Lovejoy to the
Union. In that letter Floyd Lovejoy requested that the
Union respond to his earlier request. The Union in-
formed Floyd Lovejoy that the letter of 2 July 1984 had
not been sent by registered mail, and that the letter was
also untimely. Therefore, the Union rejected the notice.
The Employer continued to operate as a union shop until
1 September 1985.6
On 2 October 1984 there was a meeting between the
Employer and the Union with regard to a grievance that
the Union had filed against the Employer. Present at the
grievance meeting were: Floyd Lovejoy; Clifford T.
Powell, who was business manager of the Union; Attor-
ney Joseph W. Duffy, who is the attorney for the Union;
Monty Patterson; and Jim Leichner. One of the topics
discussed at the grievance meeting was the fact that two
of the Employer's plumbers were not union members.
Those persons were Herman A. Ballerstein and Craig
Fiebiger. The Union requested that they comply with
the Union's security clause in the collective-bargaining
agreement , and that Ballerstein and Fiebiger make appli-
cation to join the Union. Another topic pertained to Dan
Lovejoy and Jerry Hopkins. They had been working for
the Employer as plumbing apprentices, but they were
not registered to do so. The Union requested that Dan
Lovejoy and Hopkins be terminaled. Floyd Lovejoy tes-
tified at the hearing in this proceeding that he was upset
with the Union regarding that request. Floyd Lovejoy
explained that when he had served for a couple of years
on the apprenticeship board, he had known of conces-
sions that had been made to other plumbing contractors,
and one such concession had been made in 1980 to Floyd
Lovejoy. As a result of the grievance meeting, Floyd
Lovejoy said that he terminated Dan Lovejoy from em-
ployment with the Employer, and that he sent Dan Lo-
vejoy to work for JSA Plumbing in Bozeman . Floyd Lo-
vejoy told Patterson that he would terminate Hopkins as
an apprentice plumber, but he wanted to rehire Hopkins
as a laborer. Patterson said that he had no objection to
the rehiring of Hopkins as a laborer. In the presence of
Patterson, Floyd Lovejoy told Hopkins that Hopkins
b The foregoing findings are based on credited portions of the testimo-
ny of Patterson.
6 The foregoing findings are based on credited portions of the testimo-
ny of Floyd Lovejoy and on documentary evidence
was to be a laborer, and that Hopkins could not use the
tools of the trade. Floyd Lovejoy also told Hopkins that
he would give Hopkins trouble if Hopkins did so. At the
hearing in this proceeding Floyd Lovejoy explained that
his reference to using the tools of the trade referred to
connecting and disconnecting plumbing.' Another sub-
ject discussed at the grievance meeting was the Union's
contention that the Employer had failed to pay certain
fringe benefits that were owed. Another topic that was
discussed at the grievance meeting was the Employer's
hiring practices. Still another topic discussed at the
grievance meeting pertained to the Union's contention
that the Employer was performing work under the terms
of the housing agreement at a lower wage rate and with-
out the payment of fringe benefits to employees, when
such work should have been performed under the terms
of the master collective-bargaining agreement with the
Union. 8
On 4 October 1984 Attorney Duffy prepared a letter
and sent a copy of that letter to Floyd Lovejoy and an-
other copy to Attorney Pedersen. In that letter Attorney
Duffy set forth the understanding which had been
reached with regard to certain matters One such matter
was that a payroll audit was to be performed with regard
to the fringe benefit payments which were owed by the
employer. Another matter was that the Union was to be
notified by 16 October 1984 of verification of all of the
work that had been performed by the Employer during
the preceding 12 months under the supplemental housing
agreement. In that connection it was to be verified
which portions of such work were under $10,000, which
was the dollar limit for the housing agreement at that
point in time. Another matter was that Floyd Lovejoy
was to advise his employees no later that 11 October
1984 that his employees must comply with the Union's
security clause in the collective-bargaining agreement.9
On 25 October 1984 Patterson, in his capacity as the
training coordinator of the Billings Piping Industry Joint
Apprenticeship & Training Committee, wrote a letter to
Floyd Lovejoy. Respondent's Exhibit 7 is a copy of that
letter. Enclosed with that letter was a copy of an opinion
that had been rendered on 18 April 1979 by the Labor
Standards Division of the Department of Labor and In-
dustry of the State of Montana. Patterson's letter to
Floyd Lovejoy made reference to that opinion of the
Labor Standards Division in denying Floyd Lovejoy's
request for an exemption for Dan Lovejoy from the es-
tablished apprentice selection procedures.' 9
During the period of time between 2 October and 8
November 1984, Floyd Lovejoy attempted to set up a
meeting between the Employer's employees and the
Union's representatives. One such meeting was arranged
for Powell to attend, and a later such meeting was ar-
ranged for Patterson to attend. Neither Powell nor Pat-
7 The foregoing findings are based on credited portions of the testimo-
ny of Floyd Lovejoy
8 The foregoing findings are based on credited portions of the testimo-
ny of Powell
9 The foregoing findings are based on credited portions of the testimo-
ny of Attorney Duffy
10 The foregoing findings are based on credited portions of the testi-
mony of Floyd Lovejoy and on documentary evidence
998 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
terson attended the meeting with the Employer's em-
ployees during that period of time."
On 8 November 1984 Patterson met at the Employer's
shop with the employees of the Employer and the em-
ployees of JSA Plumbing. 112 General Counsel's Exhibit 2
and Respondent's Exhibit 6 are copies of a letter dated 5
December 1984 from Patterson to Floyd Lovejoy with
regard to the meeting that had been held on 8 November
1984. The letter stated that agreement had been reached
at that meeting ; Ballerstein and Fiebiger would make ap-
plication for membership in the Union within 5 days;
Dan Lovejoy and Hopkins would be terminated immedi-
ately because they were not registered apprentices or li-
censed journeymen; and JSA Plumbing employees would
not be assigned to work in the Union's jurisdiction with-
out the approval of the Union. The letter further stated
that the first and last items set forth above had been
complied with, but that the Union had not received ter-
mination notices for Dan Lovejoy and Hopkins.13 Pat-
terson stated at the hearing in this proceeding that he
later received such termination notices with regard to
both Dan Lovejoy and Hopkins. 114
Between the date of the grievance meeting held on 2
October 1984 and the date when the Union filed a Sec-
tion 301 lawsuit against the Employer on 30 November
1984, Attorney Duffy had a telephone conversation with
Beverly Lovejoy. After that conversation was conclud-
ed, Attorney Duffy prepared a memorandum of the sub-
stance of that telephone call. Beverly Lovejoy was the
one who initiated the call. She told Attorney Duffy that
she did not agree with his characterization in his letter of
what had occurred at the grievance meeting. She told
him that she disagreed with his letter, and she indicated
that Floyd Lovejoy had a tape recording of the griev-
ance meeting . Attorney Duffy replied that he had been
unaware of that fact. Later on in the telephone conversa-
tion Beverly Lovejoy told Attorney Duffy that she did
not believe that Attorney Duffy's legal prowess was par-
ticularly remarkable, and she suggested that maybe At-
torney Duffy should return to law school. Beverly Love-
joy also told Attorney Duffy that she was recording
their telephone conversation, and that their conversation
was on the speaker telephone at that time. Attorney
Duffy then told Beverly Lovejoy that tape recording
telephone conversations in the State of Montana without
the knowledge of the party being tape recorded was a
criminal offense. Attorney Duffy also told Beverly Love-
joy that since Attorney Pedersen was her attorney that
Attorney Duffy preferred to talk with Attorney Peder-
sen and not to speak directly with Beverly Lovejoy. At-
torney Duffy told Beverly Lovejoy that he was simply
trying to ensure that there was compliance with the col-
lective-bargaining agreement. He told her that the Union
had gone through the grievance machinery; that the
Union had resolved the matter and got an understanding
11 The foregoing findings are based on credited portions of the testi-
mony of Floyd Lovejoy and Beverly Lovejoy
12 The foregoing findings are based credited portions of the testimony
of Floyd Lovejoy and Patterson
13 The foregoing findings are based on documentary evidence
14 The foregoing findings are based on credited portions of the testi-
mony of Patterson
from Floyd Lovejoy that Floyd Lovejoy would comply;
and that Attorney Duffy saw no reason for them to pro-
long their telephone conversation. Attorney Duffy also
told her that the Union intended fully to enforce the
Union's rights under the contract, and if those rights
were not complied with voluntarily, it was the Union's
intention to file a lawsuit against the Employer.1B
Immediately after the telephone conversation between
Attorney Duffy and Beverly Lovejoy, Attorney Duffy
telephoned Attorney Pedersen. At that time Attorney
Duffy was advised that Attorney Pedersen was with cli-
ents. Nevertheless, Attorney Duffy did have a telephone
conversation with Attorney Pedersen on that date. At-
torney Duffy told Attorney Pedersen that he thought it
was inappropriate for Beverly Lovejoy to call him in
light of the fact that Beverly Lovejoy had counsel. At-
torney Duffy also told Attorney Pedersen that he was
not pleased by the aspersions that Beverly Lovejoy had
cast on him. Attorney Duffy also told Attorney Pedersen
that he did not like to have telephone conversations tape
recorded without the permission of the parties. Attorney
Duffy also said that the Union intended to file a Section
301 lawsuit against the Employer if the Union could not
get voluntary compliance. Attorney Duffy said at the
hearing that he may have mentioned his frustration with
the amount of correspondence that he had had with At-
torney Pedersen in that matter and the affidavits Attor-
ney Duffy had received from Floyd Lovejoy who indi-
cated that there had been no jobs valued over $10,000 in
the preceding year. Attorney Duffy stated at the hearing
that he had examined the papers regarding some of those
jobs, and he had determined that some of them had been
over $10,000 in value. Attorney Duffy denied in his testi-
mony that he had told Attorney Pedersen that it was At-
torney Duffy's intention to break the Company, or to put
the Company out of business, or any words to that
effect. Attorney Duffy testified that he had never made
such a statement to any contractor at any time during
the 17 years that Attorney Duffy had been practicing
labor law. Attorney Duffy denied that he made that
statement to Attorney Pedersen or to Beverly Lovejoy
at any other time. He said that he had never made such a
statement.16
15 The foregoing findings are based on credited portions of the testi-
mony of Attorney Duffy Beverly Lovejoy did not discuss the foregoing
telephone conversation during the course of her testimony at the hearing.
16 The foregoing findings are based on credited portions of the testi-
mony of Attorney Duffy I have considered the different version given
by Attorney Pedersen , but I find that Attorney Duffy' s testimony is more
probable than Attorney Pedersen 's version According to Attorney Pe-
dersen, Attorney Duffy told him in a telephone conversation- "This is in-
tended to break the company " However, Attorney Pedersen acknowl-
edged at the hearing in this proceeding that he did not recall the exact
words which had been used by Attorney Duffy In the opinion of Attor-
ney Pedersen , Attorney Duffy was angry at the time, and it was his im-
pression that Attorney Duffy was out to get the Company. Attorney Pe-
dersen testified that he was shocked that the statement had come from an
attorney Particularly in view of Attorney Duffy's many years of experi-
ence in labor law, I find that it was improbable that Attorney Duffy
made such a statement This credibility resolution is based on the lack of
probability of Attorney Pedersen's version of the conversation, and his
acknowledgment as noted above that he could not recall the exact words
used by Attorney Duffy In crediting Attorney Duffy's account rather
Continued
YELLOWSTONE PLUMBING 999
On 27 February 1985 Floyd Love joy wrote a letter to
the Union and requested that the Union send him a list
of plumbers who were on the "housing only" list. In his
letter to the Union, Floyd Lovejoy stated that the build-
ing trades employees who had been dispatched to the
Employer for work on housing had been unacceptable
Floyd Lovejoy stated in his letter that due to their low
productivity his labor cost was making it impossible for
him to compete against other plumbing contractors. 17
On 2 April 1985 the Board of Plumbers of the Depart-
ment of Commerce of the State of Montana wrote a
letter which was addressed to all licensed master plumb-
ers. Floyd Lovejoy is a master plumber. The letter re-
ferred to the strict enforcement of a section of the Mon-
tana Licensure Law from that day forward. A photostat-
ic copy of the law in question was attached to the letter.
Also attached to Respondent's Exhibit 8 was a response
to the Board of Plumbers from Floyd Lovejoy with
regard to Dan Lovejoy and Hopkins. The response indi-
cated that Dan Lovejoy and Hopkins wanted to register
and to start their apprenticeships. Floyd Lovejoy re-
turned the form to the Board of Plumbers on 4 April
1985. Floyd Lovejoy stated at the hearing that he was
unable to register Hopkins as an apprentice. 18
On 9 April 1985 Floyd Lovejoy addressed a letter to
Powell as business manager of the Union. Respondent's
Exhibit 1 is a copy of that letter. In summary, the letter
gave notice to the Union of the Employer's intention to
terminate all of its agreements with the Union, and 'the
letter further notified the Union that the Employer was
not represented by any multiemployer group or associa-
tion for the purposes of collective bargaining . Powell ac-
knowledged at the hearing in this proceeding that he had
received timely Respondent's Exhibit 1. i s
During the years that Powell served as business man-
ager of the Union, Powell received notice from various
employers or from employer groups advising the Union
that the employers or employer groups wished to termi-
nate collective- bargaining agreements with the Union.
On a couple of occasions the Union also sent notice to
employers of the Union's intention to terminate collec-
tive-bargaining agreements when those agreements were
to expire. Normally, on receiving such a notification
from an employer, the Union normally set up bargaining
negotiations to talk with the employer about what the
next collective-bargaining agreement would contain. In
the event the Union did not want to deal with the em-
ployer, the Union let the contract expire. Powell gave as
an example employers who were inactive companies.
Powell also recalled one company that had informed
Powell that it was going out of business. That company
involved Michael Sabatich.20
Gerald R. Frisby is the owner of City Service Plumb-
ing and Heating, which is engaged in small residential
and small commercial plumbing business in Billings,
Montana. Frisby has been a plumber for 35 years, and
Frisby is a licensed master plumber. During the past 5
years prior to the time he testified at the hearing in this
proceeding, Frisby has employed as many as 30 employ-
ees However, by the time of the hearing, he had only
two employees. Frisby attributed that fact to the state of
the economy. Frisby said that his company previously
had been a union shop for 22 or 23 years. However, by
letter dated 25 June 1985 Frisby gave notice to the
Union of his intention to terminate the company's con-
tract with the Union. Respondent's Exhibit 3 is a copy of
that letter. Attached to Respondent's Exhibit 3 is a postal
service receipt, which is given to a person who deposits
a letter to be sent by registered mail. That receipt also is
dated 25 June 1985. At the time that Frisby sent the
letter, Frisby had no employees. Thereafter, the Union
did not contact Frisby. Frisby did continue in the plumb-
ing business.21
Prior to July 1985 Floyd Lovejoy began experiencing
problems with the state of his health due to tension and
stress. At the hearing in this proceeding Floyd Lovejoy
said that the tension had started with, the union griev-
ances against him and the filing of the Union' s lawsuit
against the Employer. In addition, two employees, Allen
and Rolleson, were causing problems for Floyd Lovejoy
because of their poor workmanship at the Rimrock Inn
project. In July 1985 Floyd Lovejoy had a medical ex-
amination by two physicians. Floyd Lovejoy was ad-
vised that stress was causing him to experience high
blood pressure and to develop blood clots. His physician
also advised Floyd Lovejoy to "cut down, or it'll kill
you." As a result of the foregoing, Floyd Lovejoy termi-
nated both Allen and Rolleson, and he cut back on the
bidding of jobs. However, it was not the intention of
Floyd Lovejoy to cease business. In addition, Beverly
Lovejoy, Floyd Lovejoy II, and Dan Lovejoy took on
additional business duties in order to take some of the
burden of the business off of Floyd Lovejoy.22
than Attorney Pedersen 's account , I am not relying on the demeanor of
Attorney Duffy The reason is that Attorney Pedersen was the last wit-
ness called by the Respondent in the Respondent 's case By that time in
the hearing, Attorney Duffy had left the hearing in order to attend to
other legal business Therefore, without objection, Attorney Duffy gave
his testimony by telephone during the General Counsel's rebuttal case
Attorney Duffy was at his office in Great Falls, Montana , and the other
participants in the hearing listened to his testimony on a speaker tele-
phone in Billings , Montana
17 The foregoing findings are based on documentary evidence
is The foregoing findings are based on credited portions of the testi-
mony of Floyd Lovejoy and on documentary evidence
19 The foregoing findings are based on credited portions of the testi-
mony of Powell and on documentary evidence
20 The foregoing findings are based on credited portions of the testi-
mony of Powell
21 The foregoing findings are based on credited portions of the testi-
mony of Frisby and on documentary evidence I conclude that the testi-
mony given by Fnsby does not impeach the testimony given by Powell.
Powell's testimony described what the normal practice of the Union was
in such situations An exception to the Union's practice pertained to inac-
tive companies Since Frisby had no employees at the time, Fnsby's com-
pany may have been considered to be an inactive company at that point
in time, although Frisby continued his business and did have two employ-
ees at the time of the hearing in this proceeding The evidence does not
establish that the Union had knowledge of the latter fact
22 The foregoing findings are based on credited portions of the testi-
mony of Floyd Lovejoy and Beverly Lovejoy
1000 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
B. The Alleged Violations of Section 8(a)(1) of the Act
1. Allegations
The General Counsel alleged the following in para-
graph 6 of the consolidated complaint to be violations of
Section 8(a)(1) of the Act:
6.
Respondent, acting through its agent , Floyd Lo-
vejoy, engaged in the following acts and conduct at
its facilities in Billings, Montana , in 1985.
(a) In or about the end of July, threatened its em-
ployees with the closure of its business if the em-
ployees did not go non -union and promised its em-
ployees that their wages would not be lowered if
they went non-union.
(b) Since in or about July, encouraged its em-
ployees to circulate and file a petition seeking to de-
certify the Union.
(c) In or about mid-August , threatened its em-
ployees with cut back and/or closure of the busi-
ness if its employees did not go non-union.
(d) On or about August 20 , informed an employ-
ee that he was being laid off because Respondent
did not want him in the middle of the problems be-
tween the Union and Respondent , and that if the
employee wanted to go non-union , to reapply after
September 1.
2. Facts
With regard to the General Counsel's allegations in
paragraph 6(a) quoted above, Dean Schneider was
present in the Employer's shop one morning when Floyd
Lovejoy spoke to the employees about the Union.
Schneider believed that the event occurred either in late
June or July 1985. Because Schneider said that on the
same occasion Floyd Lovejoy told Schneider that Floyd
Lovejoy was laying off Wayne Rolleson at that time, I
find that the event occurred in July 1985, as both Rolle-
son and Allen were laid off from work at that time. (See
sec. A.) In addition to Schneider and Floyd Lovejoy,
also present at the Employer's shop that morning were
Herman Ballerstein, Jerry Hopkins, Wayne Rolleson, and
Jim Allen. Floyd Lovejoy told the employees that he
had to file a letter with the NLRB 30 days in advance in
order to leave the Union; that he thought there would
be, or that he knew there would be, somebody to come
out in order to take a vote; that he hoped that everybody
could leave the Union or go nonunion; that if they could
not, or if it did not go that way, he would be forced to
shut down the Company.23
On 29 July 1985 Floyd Lovejoy had a conversation
about the Union with employees Ballerstein and Craig
Fiebiger. Schneider was not present at that conversation.
At the hearing in this proceeding Floyd Lovejoy admit-
23 The foregoing findings are based on credited portions of the testi-
mony of Schneider Ballerstem did not have a good recollection of that
event . However, Ballerstem acknowledged at the hearing in this proceed-
ing that Floyd Lovejoy might have said something to the effect that
Floyd Lovejoy might be required to close the shop if Floyd Lovejoy
was forced to remain in the Union
ted that he told Ballerstein and Fiebiger that after 1 Sep-
tember 1985 the Employer's shop would be nonunion.
Floyd Lovejoy also admitted that he told those employ-
ees that Floyd Lovejoy was getting out of the Union,
and that if the employees stayed in the Union while the
Company was nonunion, the employees might be subject
to fines by the Union. Floyd Lovejoy further admitted
that he told those employees that there would be no de-
crease in wages or anything.24
With regard to the General Counsel's allegations in
paragraph 6(c) quoted above, Fiebiger recalled a conver-
sation in August 1985 with Floyd Lovejoy with regard
to the Union. Ballerstein also was present. The conversa-
tion took place in front of the Employer's shop before
working hours. Fiebiger recalled that Floyd Lovejoy
told the two employees that Floyd Lovejoy did not
think that he could make it financially if he remained in
the Union, and that Floyd Lovejoy would have to close
the shop down if he had to remain in the Union.25
With regard to the Genera, Counsel's allegations in
paragraph 6(b), Fiebiger recalled another conversation
which took place after the conversation just described
above with regard to the General Counsel's allegations
in paragraph 6(c). On this latter occasion Floyd Lovejoy
asked Fiebiger and Ballerstein to stop by the Employer's
office and to sign a petition to get out of the Union. Fie-
biger said that he and Ballerstein went to the office after
work that day and signed two documents. Ballerstein
also recalled at the hearing the occasion when Floyd Lo-
vejoy had told Ballerstein and Fiebiger to stop by the
Employer's office after work that day. Ballerstein said
that the event occurred shortly before Ballerstein mailed
the original petition to NLRB. Floyd Lovejoy discussed
with Ballerstein the process of how Ballerstein could get
out of the union by filing a petition with NLRB. Floyd
Lovejoy gave Ballerstein the information as to how that
process worked. Ballerstein received the forms for the
first petition, which he subsequently filed either from
Floyd Lovejoy or Beverly Lovejoy. Floyd Lovejoy ad-
mitted at the hearing in this proceeding that he had
given the forms to Ballerstein and Fiebiger to file the pe-
tition with NLRB. Beverly Lovejoy admitted at the
hearing in this proceeding that her handwriting was on
24 The foregoing findings are based on admissions made by Floyd Lo-
vejoy Based on the credibility criteria previously set forth in section A, I
have not credited Floyd Lovejoy' s other versions of his conversations
with the employees In one account Floyd Lovejoy stated that he had
given numerous reasons to his employees as to why he was terminating
the union contract Those reasons that he said he gave included the
grievance meeting with the Union , the Union 's lawsuit against the Em-
ployer, his belief that the Union was out to get him, that if the Union
wanted the Employer to be a union contractor , the Union would have
dropped the lawsuit because he had done everything possible to satisfy
the Union , the lack of productivity of the building trades employees
whom the Union had dispatched to him , the Union's failure to dispatch
to the Employer a housing plumber, the scope of work which was per-
formed by nonunion employees who did not require a plumber's license,
and his opinion that the Employer could not compete with nonunion
contractors because of the Employer 's higher wage rates
23 The foregoing findings are based on credited portions of the testi-
mony of Fiebiger
YELLOWSTONE PLUMBING 1001
the envelope in which Ballerstein placed the first petition
he filed with NLRB.26
In order to place the foregoing facts with regard to
the General Counsel' s allegations in paragraph 6(b) in
context, it is necessary to review certain of the Joint Ex-
hibits that were introduced into evidence by the attor-
neys at the hearing in this proceeding. Joint Exhibits 1(a)
through (i) are documents that relate to Cases 19-RM-
1937 and 19-RM-1938. Specifically, Joint Exhibit 1(c) is
the document that relates only to Case 19-RM-1937.
Joint Exhibit 1(a) is a copy of a letter dated 29 July 1985
from the Respondent's attorney to Region 19 of NLRB.
That letter forwarded to Region 19 copies of a RM peti-
tion and a RD petition, which were marked as Joint Ex-
hibits 1(b) and 1(c), respectively. Joint Exhibit 1(d) is a
copy of a letter dated 6 August 1985 from the Respond-
ent's attorney to the Union. That letter advised the
Union that both of the employees of JSA Plumbing were
the sons of the owner of JSA Plumbing, and the letter
asserted that both of those employees no longer wished
to be represented by the Union. Joint Exhibit 1(e) is a
copy of an affidavit given by Floyd Lovejoy on 6
August 1985 before a notary public and in support of the
petition involving the Employer. Joint Exhibit 1(f) is a
copy of employee lists for the Employer and for JSA
Plumbing . That document lists as employees of the em-
ployer: Dean Schneider, journeyman plumber; Herman
Ballerstein , journeyman plumber; Craig Fiebiger, jour-
neyman plumber; Floyd Lovejoy, journeyman and
master plumber; and Beverly Lovejoy, secretary. That
document also lists for JSA Plumbing the following em-
ployees: Floyd Lovejoy II, manager , and Dan Lovejoy,
laborer. Joint Exhibit 1(g) is a copy of a letter dated 13
August 1985 from the Respondent's attorney to Region
19. That letter asked for withdrawal of the petitions in
Cases 19-RM-1937 and 19-RM-1938. Joint Exhibit 1(h)
is a copy of a letter dated 15 August 1985 from the
Acting Regional Director to the Union . That letter ad-
vised the Union that the petition in Case 19-RM-1937
had been withdrawn. Joint Exhibit 1(i) is a copy of a
letter dated 15 August 1985 from the Acting Regional
Director to the Union. That letter advised the Union that
the petition in Case 19-RM-1938 had been withdrawn.
Joint Exhibit 2(a) is the envelope addressed to Region
19 of NLRB with the return address of Ballerstein. The
envelope was postmarked in Billings, Montana, with the
postmark date of 21 August 1985. Joint Exhibit 2(b) is a
copy of the petition filed on 23 August 19135 in Case 19-
UD-385. That petition indicates that it was signed by
Ballerstein . Joint Exhibit 2(c) is a copy of a letter dated
28 August 1985 from a field examiner of Region 19 of
NLRB to Ballerstein. That letter refers to a conversation
between Ballerstein and the field examiner wherein Bal-
lerstein indicated that it was Ballerstein's intention to file
a petition for decertification of the Union rather than a
petition for withdrawal of union ,shop authority. There-
fore, the letter indicates that the field examiner enclosed
26 The foregoing findings are based on credited portions of the testi-
mony of Fiebiger and Ballerstem Based on the credibility criteria previ-
ously set forth in sec A, I have not credited the versions given by Floyd
Lovejoy and Beverly Lovejoy except for the admissions noted above
copies of the proper petition forms for Ballerstein, and
the field examiner indicated that the petition may be filed
with Region 19 after 1 September 1985, which was the
expiration date of the then-current contract. The field ex-
aminer also enclosed a withdrawal request form for Bal-
lerstein's use in withdrawing the petition in Case 19-
UD-385. Joint Exhibit 2(d) is the withdrawal request
form in Case 19-UD-385, which indicates that the re-
quest was submitted by Ballerstein and approved by the
Regional Director on 9 September 1985. Joint Exhibit
2(e) is a copy of a letter dated 9 September 1985 from
the Acting Regional Director to the Employer with
copies to Ballerstein and the union. That letter advised
the parties that Case 19-UD-385 had been withdrawn.
Joint Exhibit 3(a) is a copy of the petition filed on 13
September 1985 in Case 19-RD-2404. That document in-
dicates that it was signed by Ballerstein.27
With regard to the General Counsel' s allegations in
paragraph 6(d) quoted above, those allegations pertain
only to the statements to Dean Schneider at the time that
the Employer laid off Schneider from work, as distin-
guished from the 8(a)(1) and (3) allegations pertaining to
the layoff itself as alleged in paragraph 7 of the General
Counsel's complaint. The events pertaining to the allega-
tions in paragraph 7 of the General Counsel's complaint
will be set forth in section C. On Tuesday, 20 August
1985, Floyd Lovejoy telephoned Schneider and asked
Schneider to come to the Employer's office, which at
that time was located at Floyd Lovejoy's house. Schnei-
der then drove to the Employer's office. Beverly Love-
joy also was present in the house, but she was not
present during the conversation between Floyd Lovejoy
and Schneider. Floyd Lovejoy told Schneider that
Schneider had to be laid off, and that work was coming
to an end. Floyd Lovejoy also told Schneider that Floyd
Lovejoy did not want Schneider in the middle of things
between Floyd Lovejoy and the Union because Floyd
Lovejoy knew that there would probably be some trou-
ble or some problems over it, and Floyd Lovejoy did
not want Schneider involved in them. Schneider replied
that he appreciated it, and that Schneider had enjoyed
working for Floyd Lovejoy. Floyd Lovejoy then told
Schneider that Schneider could come back to work for
the Employer after September. Beverly Lovejoy admit-
ted at the hearing in this proceeding that after Floyd Lo-
vejoy had spoken with Schneider, she told Schneider
that she hoped to see him later on after September.28
27 The findings in the foregoing paragraphs are based on documentary
evidence
28 The foregoing findings are based on credited portions of the testi-
mony of Schneider Based on the credibility criteria previously set forth
in section A, I have not credited the accounts of Floyd Lovejoy and
Beverly Lovejoy regarding this event, except with regard to the admis-
sion set forth above by Beverly Lovejoy In Floyd Lovejoy 's version,
Floyd Lovejoy said that he gave Schneider three reasons for his layoff
Those were that the Employer was out of work, that Floyd Lovejoy
wanted Schneider to get on the Union's hiring hall list ahead of a number
of other employees who he anticipated would be laid off by another em-
ployer , and that the Internal Revenue Service had called the Employer
and was going to garnishee Schneider 's wages With regard to the IRS
telephone call, Schneider acknowledged at the hearing that Beverly
Lovejoy had telephoned Schneider's wife about a week before Schneider
Continued
1002 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3. Conclusions
Based on the findings of fact set forth above with
regard to the General Counsel's allegations in paragraphs
6(a) and 6(c), I conclude that the preponderance of the
evidence supports the General Counsel' s allegations. I
conclude that Floyd Lovejoy's statements to the employ-
ees on those occasions constituted a threat that the Em-
ployer would close its business if the Employer did not
go nonunion . Thus, the possible closure of the Employ-
er's business was directly linked to whether the Union
continued to represent the Employer's employees. I fur-
ther conclude that Floyd Lovejoy' s statements on those
occasions were not a carefully phrased prediction based
on objective facts which conveyed to the employees the
Employer's belief as to demonstrably probable conse-
quences beyond his control. NLRB v. Gissel Packing Co.,
395 U.S. 574, 618 (1969). In the context of Floyd Love-
joy's conversation with Fiebiger and Ballerstein on 29
July 1985, I also conclude that Floyd Lovejoy made a
promise to those employees that their wages would
remain the same after the Company went nonunion.
Therefore, I further conclude that the Respondent has
engaged in unfair labor practices within the meaning of
Section 8 (a)(1) of the Act as alleged in the General
Counsel's complaint paragraphs 6(a) and 6(c).
Based on the findings of fact set forth above with
regard to the General Counsel 's allegations in complaint
paragraph 6(b) I conclude that Floyd Lovejoy encour-
aged Fiebiger and Ballerstein to file a petition to decerti-
fy the Union. The Board held in its decision in Eastern
States Optical Co., 275 NLRB 371, 372 (1985):
Thus, we agree that it is unlawful for an employer
to initiate a decertification petition," solicit signa-
tures for the petition,9 or lend more than minimal
support and approval to the securing of signatures
and the filing of the petition. 10 In addition, while an
employer does not violate the Act by rendering
what has been termed "ministerial aid," t t its actions
must occur in a "situational context free of coercive
conduct."12 In short, the essential inquiry is wheth-
er "the preparation, circulation, and signing of the
petition constituted the free and uncoerced act of
the employees concerned." KONO-TV-Mission Tele-
casting, 163 NLRB 1005, 1006 (1967).
11 Placke Toyota, Inc, 215 NLRB 395 (1974)
11 Times-Herald, Inc, 253 NLRB 524 (1980)
12D&HMfg Co,supra at 403.
Under the circumstances described above in the find-
ings of fact, I conclude that Floyd Lovejoy' s encourage-
ment to Fiebiger and Ballerstein to file a petition to de-
certify the Union did not occur in a context free of coer-
cive conduct in view of the threats to close the Employ-
er's business if the Employer did not go nonunion. In
view of such threats to the employees with regard to the
future of the Employer's business , I conclude that the
filing of the petitions with NLRB was not the free and
uncoerced act of the employees concerned. Therefore, I
conclude that the Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1) of
the Act as alleged in the General Counsel's complaint
paragraph 6(b). Eastern States Optical Co., supra.
Based on the findings of fact set forth above with
regard to the General Counsel's complaint allegations in
paragraph 6(d), I conclude that the evidence showed that
Floyd Lovejoy told Schneider that Schneider was being
laid off from work because Floyd Lovejoy did not want
Schneider involved in the middle of the trouble or prob-
lems between Floyd Lovejoy and the Union. I further
conclude that the evidence showed that Floyd Lovejoy
told Schneider that Schneider could come back to work
after September. The significance of that date was that
the contract between the Respondent and the Union was
to expire before 1 September 1985. I further conclude
that telling an employee the foregoing is coercive of the
employee's rights under Section 7 of the Act. Shawnee
Milling, 265 NLRB 710 (1982); Kranco, Inc., 228 NLRB
319 (1977); Woody's Truck Stops, 258 NLRB 705 (1981);
and Major Cab Co., 255 NLRB 1383 (1981). I further
conclude that the Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1) of
the Act by the foregoing conduct.
C. The Alleged Violations of Section 8(a)(1) and (3) of
the Act
1. Allegations
The General Counsel alleged the following in para-
graph 7 of the consolidated complaint to be violations of
Section 8(a)(1) and (3) of the Act:
s Inter-Mountain Dairymen, 157 NLRB 1590, 1613 (1966)
s D & H Mfg Co, 239 NLRB 393, 404 (1978)
was laid off, and that Beverly Lovejoy had told Schneider's wife that the
Internal Revenue Service had called and asked if Schneider had worked
for the Employer. In the prehearing affidavit of Floyd Lovejoy on 10
June 1986 , Floyd Lovejoy did not state that he mentioned any problem
with the IRS at the time that Floyd Lovejoy informed Schneider of his
layoff Beverly Lovejoy testified at the hearing that she had received a
telephone call from a person who said that she was an agent of the Inter-
nal Revenue Service in Utah That person asked Beverly Lovejoy wheth-
er Dean Schneider was working for the employer Beverly Lovejoy re-
sponded by asking the person whether Schneider was in trouble. The
telephone caller laughed and again asked whether Schneider worked for
the employer Beverly Lovejoy responded, yes The person then told
Beverly Lovejoy that she would be hearing from them Apparently, Bev-
erly Lovejoy made the assumption based on the foregoing that the IRS
was going to garnishee Schneider's wages
7.
(a) On or about August 22 , 1985, Respondent, by
its agent , Floyd Lovejoy, laid off employee Dean
Schneider.
(b) Since Schneider 's layoff, as described above
in subparagraph 6(a) [7(a)], Respondent has failed
and refused , and continues to fail and refuse to rein-
state Schneider to his former or substantially equiv-
alent job.
(c) Respondent engaged in the conduct described
above in subparagraphs 7(a) and (b) because Re-
spondent believed that the employee named therein
supported or assisted the Union , and engaged in
concerted activities for the purposes of collective
bargaining or other mutual aid or protection, and in
YELLOWSTONE PLUMBING 1003
order to discourage employees from engaging in
such activities or other concerted activities for the
purpose of collective bargaining, or other mutual
aid or protection.
2. Facts
Dean Schneider has been a member of the Union since
April 1974. Schneider is a journeyman plumber. Schnei-
der was dispatched from the Union's hiring hall to work
for the Employer on a project known as the Rimrock
Inn. Schneider served as the union steward on that job.
When the Rimrock Inn job was completed, Floyd Love-
joy told Schneider that Floyd Lovejoy could keep
Schneider working if Schneider was willing to work for
the lower wage scale on other jobs. Schneider agreed to
do so. However, when there was additional work known
as "building trades work," the Employer paid Schneider
the higher wage rate of a building trades journeyman
plumber. 29
General Counsel's Exhibit 8(a) is a copy of the Em-
ployer's payroll record for Schneider for the pay periods
which ended on 3 July 1985 through 21 August 1985.
That document shows that the date that the Employer
hired Schneider was 18 October 1984. The document
shows that the date that Schneider was released from
employment was 21 August 1985. The document further
shows that his rate of pay was $18.85. However, the
document further shows that Schneider performed some
work for the Employer at the wage rate of $11.31. For
the payroll periods ending 3, 10, and 17 July 1985,
Schneider worked 40, 30, and 18 hours, respectively, for
the Employer at the wage rate of $18.85 an hour. For
the payroll period ending 17 July 1985. Schneider also
worked 6 hours for the Employer at the wage rate of
$11.31 an hour. For the payroll period ending 24 July
1985, Schneider worked 12-1/2 hours for the Respondent
at the wage rate of $18.85 and 27-1/2 hours at the wage
rate of $11.31 an hour. For the payroll period ending on
31 July 1985, Schneider worked 32 hours for the Em-
ployer at the wage rate of $18.85 an hour and 8 hours at
the wage rate of $11.31 an hour. For the payroll periods
ending on 7, 14, and 21 August 1985, Schneider worked
40, 40, and 31-1/2 hours, respectively for the Employer
at the wage rate of $18.85 an hour.30
General Counsel's Exhibit 7(a) is a copy of the Em-
ployer's timecard for Schneider for the month of August
1985. That document indicates that Schneider worked at
the Blue Creek School project during that period of
time. The document shows that the last day that Schnei-
der worked for the Employer was Tuesday, 20 August
1985. The document shows that the payroll period ended
on Wednesday, 21 August 1985.31
On two or three occasions during the summer of 1985,
Floyd Lovejoy spoke with Schneider regarding the
union pension plan. During those conversations Floyd
Lovejoy asked Schneider how long Schneider had been
a member of the local union . Schneider informed Floyd
29 The foregoing findings are based on credited portions of the testi-
mony of Schneider
30 The foregoing findings are based on documentary evidence
3'The foregoing findings are based on documentary evidence
Lovejoy that Schneider was just a few months away
from being vested in the Union's pension plan.32
General Counsel's Exhibit 9 is a copy of the Employ-
er's notice of termination of Schneider. The Employer's
reason stated on that document as the reason for termi-
nating Schneider was "reduction in force." The docu-
ment shows as the last day worked by Schneider for the
Employer to be 20 August 1985. His termination date
shown on that form is shown to be 21 August 1985. The
document is dated also 21 August 1985 over the signa-
ture of Floyd Lovejoy.33
The reasons that were given by Floyd Lovejoy to
Schneider at the time that the Employer laid off Schnei-
der from work have already been set forth in section B
with regard to the General Counsel' s allegations in para-
graph 6(d) of the consolidated complaint. In summary,
the credited findings established that two reasons were
given to Schneider at that point in time . One was that
the Employer's work was coming to an end. The other
reason was that Floyd Lovejoy did not want Schneider
involved in the middle of the trouble or problems be-
tween Floyd Lovejoy and the Union. As already estab-
lished in the findings of fact in section B, Schneider was
told that he could come back to work for the Employer
after September. As already set forth in the findings of
fact in section B, the findings establish that the telephone
call in which the Employer had received from someone
who said he was an IRS agent was not given by Floyd
Lovejoy to Schneider at the time that Floyd Lovejoy
laid off Schneider from work.
The last project on which Schneider worked for the
Employer was the Blue Creek School project. Just prior
to the layoff of Schneider by the Employer, Schneider
had begun what is known as finishing work. That work
involved setting the fixtures; trimming the fixtures; and
hooking up a water heater. Fiebiger was helping Schnei-
der with the water lines , and Hopkins was insulating the
water lines . In Schneider 's opinion , there was approxi-
mately a week's work left on that job as of the last day
that Schneider worked there.34
Fiebiger said that he, Schneider, and Hopkins had
been working on the Blue Creek School project during
the summer of 1985. At the time that Schneider was laid
off from work, Schneider and Fiebiger had been install-
ing fixtures . Fiebiger said that after Schneider was laid
off, Fiebiger performed what is known as punch-list
work. General Counsel's Exhibit 7(c) contains copies of
some of the Employer's timecards for Fiebiger. Those
documents show that Fiebiger worked on the following
dates at the Blue Creek School project after the termina-
tion of Schneider: 22 August 1985, 1-1/2 hours; 29
32 The foregoing findings are based on credited portions of the testi-
mony of Schneider Based on the credibility criteria previously set forth
in section A, I have not credited the accounts of Floyd Lovejoy and
Beverly Lovejoy who gave testimony which conflicts with the testimony
of Schneider In summary , their version was that Floyd Lovejoy encour-
aged Schneider to remain a member of the Union , and if it came to a
vote, for Schneider to vote for the Union so that Schneider would not
lose his union pension plan
33 The foregoing findings are based on documentary evidence.
34 The foregoing findings are based on credited portions of the testi-
mony of Schneider
1004 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
August 1985, 4-1/2 hours; 30 August 1985, 7 hours; 2
September 1985, 8 hours; 3 September 1985, 4-1/2 hours;
6 September 1985, 2-1/2 hours.35
General Counsel's Exhibit 8(c) contains copies of cer-
tain of the Employer's payroll records for Fiebiger for
the payroll period ending 3 July 1985 through 18 Sep-
tember 1985 . That document shows that Fiebiger was
hired on 26 February 1981 by the Employer. The "date
released" item is left blank. His rate of pay shown on the
document was $13 an hour. However, the document also
shows that Fiebiger worked at the wage rate of $18.85
an hour on certain occasions. With regard to the payroll
period which ended on 3 July 1985, Fiebiger worked 37
hours for the Employer at the wage rate of $13 an hour.
For the payroll period ending on 10 July 1985, Fiebiger
worked 9 hours for the Employer at $13 an hour, and
Fiebiger worked 14-1/2 hours for the Employer during
that payroll period at $18.85 an hour. For the payroll
period ending on 17 July 1985, Fiebiger worked 8 hours
for the Employer at $18.85 an hour. For the payroll
period ending on 31 July 1985, Fiebiger worked 24 hours
for the Employer at $13 an hour. For the payroll period
ending on 7 August 1985, Fiebiger worked 30-1/2 hours
for the Employer at $18.85 an hour, and Fiebiger
worked 9-1/2 hours for the Employer during that pay-
roll period at $13 an hour. For the payroll period ending
on 14 August 1985, Fiebiger worked 22 hours for the
Employer at $13 an hour, and Fiebiger worked 18 hours
for the Employer during that payroll period at $18.85 an
hour. For the payroll period ending on 21 August 1985,
Fiebiger worked 15-1/2 hours for the Employer at
$18.85 an hour, and Fiebiger worked 10 hours for the
Employer during that payroll period at $13 an hour. For
the payroll period ending on 28 August 1985, Fiebiger
worked 24 hours for the Employer at $13 an hour, and
Fiebiger worked 1-1/2 hours for the Employer during
that payroll period at $18.85 an hour. For the payroll
period ending on 4 September 1985, Fiebiger worked 24
hours for the Employer at $18.85 an hour, and Fiebiger
worked 7 hours for the Employer during that payroll
period at $13 an hour. For the payroll period ending on
11 September 1985, Fiebiger worked 12-1/2 hours for
the Employer at $13 an hour, and Fiebiger worked 2-1/2
hours for the Employer during that payroll period at
$18.85 an hour. For the payroll period ending on 18 Sep-
tember 1985, Fiebiger worked 8 hours for the Employer
at $13 an hour. S 6
Robert Jam is the president of Travis-Jam, Incorporat-
ed. Travis-Jam is a general contractor in the construction
business . Travis-Jam had a contract for modifications to
the Blue Creek School near Billings , Montana . The Em-
ployer in this case was the plumbing subcontractor on
that project. The daily reports of Travis-Jam revealed
that a plumber last appeared at the Blue Creek School
project on 8 October 1985. The last date that plumbers
had performed regular work on that project was on 3
35 The foregoing findings are based on credited portions of the testi-
mony of Fiebiger and documentary evidence
36 The foregoing findings are based on documentary evidence
September 1985. After that date, the type of work per-
formed at that project was "punch-list work."37
Respondent's Exhibit 12 is a copy of the Employer's
statement that the Employer sent to Travis-Jam with
regard to the plumbing work that the Employer had per-
formed at the Blue Creek School project. The document
is dated 25 August 1985. The document revealed that the
base bid by the Employer for the work to be performed
at the Blue Creek School project was $14,999. Accord-
ing to Beverly Lovejoy, General Counsel's Exhibit 12
reflected the final billing by the Employer to Travis-Jam
for the Blue Creek School project. She explained that
there was what is known as a 10-percent hold-back,
which meant that amount was withheld by the customer
until all of the "punch-list work" had been completed.
Beverly Lovejoy said that the Employer was not paid by
Travis-Jam until 25 October 1985.38
After Fiebiger had completed his work for the Em-
ployer, Floyd Lovejoy telephoned Fiebiger in either Oc-
tober or November 1985 and asked Fiebiger to come
back to work for the Employer. Floyd Lovejoy asked
Fiebiger if Fiebiger could work on some weekends be-
cause Floyd Lovejoy was behind and needed some help.
Fiebiger replied no, and he explained that his name was
on the union 's list , and he did not think that the Union
would permit Fiebiger to work for the Employer just on
weekends.3 a
Rather than rely on the recollections of the witnesses
with regard to work performed both before and after the
layoff of Schneider, I have examined the Employer's
records that were introduced at the hearing in this pro-
ceeding. General Counsel's Exhibit 8(b) contains copies
of certain of the Employer's payroll records for Baller-
stein . That document shows 29 August 1983 as the date
that Ballerstein was hired by the Employer. The "date
released" item is blank . The document shows that Baller-
stein 's rate of pay was $12 an hour. For the payroll
period ending on 3 July 1985, Ballerstein worked 40
hours for the Employer at $12 an hour, which was his
wage rate throughout this period. That document also
shows the following number of hours worked by Baller-
stein for the following payroll periods: 10 July 1985, 24
hours; 17 July 1985, 40 hours; 24 July 1985, 16 hours; 31
July 1985, 24 hours; 7 August 1985, 39-1/2 hours; 14
August 1985, 40 hours; 21 August 1985, 40 hours; 28
August 1985, 40 hours; 4 September 1985, 14-1/2 hours;
11 September 1985, 28-1/2 hours; 18 September 1985, 40
hours; 25 September 1585, 29 hours; 2 October 1985, 35
hours; 9 October 1985, 40-1/4 hours; 16 October 1985, 42
hours; 22 October 1985, 40 hours; 30 October 1985, 40
hours; 6 November 1985, 40 hours; 13 November 1985,
39-1/2 hours; 20 November 1985, 32 hours; 27 Novem-
ber 1985, 24-1/2 hours; 4 December 1985, 8 hours; 11
December 1985, 14-3/4 hours; 17 December 1985 the
entry "NLRB" and $56.76; 18 December 1985, 24 hours;
37 The foregoing findings are based on credited portions of the testi-
mony of Jam
39 The foregoing findings are based on credited portions of the testi-
mony of Beverly Lovejoy and on documentary evidence
39 The foregoing findings are based on credited portions of the testi-
mony of Fiebiger
YELLOWSTONE PLUMBING
25 December 1985, 31 hours; 1 January 1986, 25 hours; 8
January 1986, 40 hours; 15 January 1986, 40 hours; 22
January 1986, 40 hours; 29 January 1986, 40 hours; 5
February 1986, 40 hours; 12 February 1986, 40 hours; 19
February 1986, 16 hours; 26 February 1986, 19-1/2
hours; 5 March 1986, 6 hours; 12 March 1986, 8 hours;
19 March 1986, 40 hours; and 26 March 1986, 40
hours.40
General Counsel's Exhibit 7(b) contains copies of some
of the Employer's timecards for Ballerstein for 1985 and
1986. In addition to the information regarding Ballerstein
set forth above, General Counsel's Exhibit 7(b) shows
the following number of hours worked by Ballerstem for
the payroll period ending dates indicated: 9 April 1986,
40 hours; 16 April 1986, 40 hours; 23 April 1986, 41
hours; 30 April 1986, 36 hours; 7 May 1986, 40 hours; 14
May 1986, 40 hours; 21 May 1986, 41 hours; 28 May
1986, 32 hours; and 4 June 1986, 40 hours.' i
General Counsel's Exhibit 8(d) contains copies of cer-
tain of the Employer's payroll records for Hopkins. That
exhibit shows that Hopkins was hired by the Employer
on 22 July 1984. The document does not show a "date
released." The document shows that his rate of pay was
$8 an hour. The document shows the following number
of hours worked by Hopkins for the payroll period
ending dates indicated: 3 July 1985, 19-1/2 hours; 10 July
1985, 8 hours; 24 July 1985, 6-1/2 hours; 31 July 1985, 24
hours; 7 August 1985, 40 hours; 14 August 1985, 40
hours; 21 August 1985, 13-1/2 hours; 11 September 1985,
5-1/2 hours; 18 September 1985, 6-1/2 hours; 2 October
1985, 2-1/2 hours; 9 October 1985, 8 hours; 16 October
1985, 29 hours; 30 October 1985, 24 hours; 6 November
1985, 39 hours; 13 November 1985, 39 hours; 20 Novem-
ber 1985, 16 hours; 4 December 1985, the entry "NLRB"
and $14; 17 December 1985, the entry "NLRB" and
$106; 18 December 1985, 16 hours; 25 December 1985,
16-1/2 hours; 1 January 1986, 16 hours; 8 January 1986,
28 hours; 15 January 1986, 8 hours; 22 January 1986, 33
hours; 29 January 1986, 24 hours; 5 February 1986, 40
hours; 12 February 1986, 16 hours; 19 March 1986, 40
hours; and 26 March 1986, 36 hours.42
General Counsel's Exhibit 7(d) contains copies of cer-
tain timecards of Hopkins. In addition to the information
set forth above, General Counsel's Exhibit 7(d) shows
the following number of hours worked by Hopkins for
the payroll periods indicated: 2 April 1986, 24 hours; 9
April 1986, 32 hours; 16 April 1986, 40 hours; 23 April
1986, 41 hours; I May 1986, 40 hours; 14 May 1986, 40
hours; 21 May 1986, 42-1/2 hours; and 28 May 1986, 28
hours.43
General Counsel's Exhibit 8(e) contains a copy of the
Employer's payroll record for Maynard Day. The docu-
ment shows that Day was hired on 30 October 1985 and
that he was released on 8 November 1985. His rate of
pay is shown as $13. For the payroll period ending 30
October 1985, Day worked 16 hours for the Employer.
40 The foregoing findings are based on documentary evidence
41 The foregoing findings are based on documentary evidence
42 The foregoing findings are based on documentary evidence
43 The foregoing findings are based on documentary evidence
1005
For the payroll period ending 6 November 1985, Day
worked 32 hours for the Employer.44
General Counsel's Exhibit 7(e) contains copies of two
of the Employer's timecards for Day. Those documents
indicate that Day worked for the Employer at the IGA
jobsite 8 hours on 29 October 1985, on 30 October 1985,
8 hours; on 31 October 1985, 8-1/2 hours; on 1 Novem-
ber 1985, 8 hours; and on 4 November 1985, 8-1/2 hours
on 2 November 1985, Day worked 7 hours for the Em-
ployer remodeling a bathroom at a bazar .45
General Counsel's Exhibit 8(f) contains a copy of the
Employer's payroll record for William P. Flynn. That
document shows that the date of hire of Flynn was 3
November 1985, and the date of his release from employ-
ment was 22 November 1985. The document shows that
Flynn's rate of pay was $11 an hour. However, the doc-
ument also shows that he worked certain hours for the
Employer at $10 an hour. For the payroll period ending
6 November 1985, Flynn worked 24 hours for the Em-
ployer at $11 an hour. For the payroll periods ending 13
and 20 November 1985, Flynn worked 8 hours for the
Employer at $10 an hour .46
General Counsel's Exhibit 7(f) is a copy of the Em-
ployer's timecard for Flynn. That document shows that
Flynn worked for the Employer at the IGA jobsite on 4,
5, and 6 November 1985 for 8 hours each day. The doc-
ument also shows that on 31 October 1985 and on 1 No-
vember 1985 Flynn worked for JSA Plumbing on a
motel in Bozeman.47
General Counsel's Exhibit 12(a) is a copy of a letter
dated 25 November 1985 from the Respondent's attorney
to Region 19. The letter enclosed a copy of the settle-
ment agreement executed on behalf of the Employer and
the Employer's check in the amount of $562.42. The
letter also advised the Regional Director that the Re-
spondent would offer employment to Schneider in ac-
cordance with the agreement. The letter stated that the
Employer only had one employee working at that time
due to business conditions and the weather. The letter
further advised that the Employer would offer Schneider
reinstatement as soon as a job became available, and that
Schneider would be the first person employed .411
General Counsel's Exhibit 12(b) is a copy of a letter
dated 6 December 1985 from Floyd Lovejoy to Schnei-
der. The letter stated:
This is to advise you that Yellowstone Plumbing,
Inc., offers you reinstatement to your former em-
ployment. At the present time the company has no
work and is not hiring. However, we will notify
you of our first job opening. Due to the economic
conditions of our company, our present wage rate
for your classification is $10 an hour.
The foregoing finding is based on documentary evi-
dence.
44 The foregoing findings are based on documentary evidence
45 The foregoing findings are based on documentary evidence
48 The foregoing findings are based on documentary evidence
47 The foregoing findings are based on documentary evidence
48 The foregoing findings are based on documentary evidence
1006 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
As indicated in the Statement of the Case, the Region-
al Director approved on 12 December 1985 an informal
settlement agreement with the Employer. Neither
Schneider nor the Union entered into that settlement
agreement. The settlement agreement contained a nonad-
mission clause.49
General Counsel's Exhibit 12(c) is a copy of a letter
dated 23 December 1985 from the Respondent's attorney
to Region 19. The letter stated-
I have held up on sending the second letter to
Mr. Schneider offering him $18.00 an hour as the
only job which Yellowstone Plumbing, Inc. has in
prospect is under their housing contract type of
work which pays $14.00 an hour. I am also a little
hesitant to send a second letter to Schneider offer-
ing a different wage which the company cannot
afford to pay. As we have paid Mr. Schneider the
lump sum and have offered him reinstatement to a
substantial equivalent position except for the pay
rate, can you think of an alternative that we could
take in order to finalize the matter.
The foregoing findings are based on documentary evi-
dence.
Schneider acknowledged that he had received a check
from the Employer, and that he had cashed the Employ-
er's check. Schneider also acknowledged that he had re-
ceived a copy of a letter which indicated that the Com-
pany would offer him employment at the wage rate of
$10 an hour. He examined General Counsel's Exhibit
12(b) on the witness stand, and he acknowledged that he
had received a copy of that letter. Schneider also ac-
knowledged that he had received a copy of Respondent's
Exhibit 2, which was a copy of a letter dated 12 Decem-
ber 1985 from the Regional Director. That letter advised
Schneider, as an individual Charging Party, and Attor-
ney Duffy, as the attorney for the Charging Party
Union, that in view of the settlement agreement in Cases
19-CA-17846 and 19-CA-17854 that the Regional Di-
rector had determined that it would not effectuate the
purposes of the Act to institute further proceedings at
that time. Therefore, the Regional Director stated in the
letter that he was refusing to reissue a complaint in that
matter. The letter also advised Schneider and Attorney
Duffy of their right to appeal the Regional Director's
action.50
On 9 January 1986 the Union dispatched Schneider to
work for Wagner's Mechanical. That job lasted from 9
January to 14 February 1986. About 5 p.m. on 9 January
1986 Schneider received a telephone call from Floyd Lo-
vejoy. Floyd Lovejoy asked Schneider if Schneider
would go back to work for him. Schneider replied that
he could not just go back to work for Floyd Lovejoy
and that Schneider had to go through the union hall.
Floyd Lovejoy told Schneider that Floyd Lovejoy had
to know if Schneider was going back to work or not.
Schneider again said that Schneider had to go through
the union hall. Schneider then asked Floyd Lovejoy how
long a job was it. Floyd Lovejoy told Schneider that the
job was just a couple of days , and that it was all that
Floyd Lovejoy had right then . Floyd Lovejoy then told
Schneider that Schneider would be receiving a letter
from Floyd Lovejoy stating that Schneider had denied
employment.51
General Counsel 's Exhibit 12(d) is a copy of a letter
dated 13 January 1986 from the Respondent 's attorney to
Schneider . That letter stated:
Please be informed that under the settlement
agreement between the NLRB and Yellowstone
Plumbing, Inc., you are entitled to reinstatement to
your former job at $18.00 per hour. As stated in
Mr. Lovejoy's letter of December 6, 1985, his com-
pany will notify you of its first opening and offer
you the opportunity to return to work.
The foregoing findings are based on documentary evi-
dence. Schneider pointed out at the hearing that he had
received the foregoing letter subsequent to his conversa-
tion on 9 January 1986 with Floyd Lovejoy.
General Counsel's Exhibit 12(e) is a copy of a letter
dated 14 January 1986 from Floyd Lovejoy to Schnei-
der. That letter stated:
As per our telephone conversation on January
13, 1986, at approximately 8:30 p.m. I asked you if
you wanted to come back to work for Yellowstone
Plumbing, Inc. You stated that you had just went to
work for another company and you wanted to con-
tinue with that company. Therefore, we will fill
that job with another worker.
The foregoing findings are based on documentary evi-
dence. As indicated above in the credited testimony of
Schneider, I have credited his account as to the date and
time, as well as the substance, of his conversation with
Floyd Lovejoy.
General Counsel's Exhibit 1(h) is a copy of a letter
dated 20 June 1986 from the Regional Director to the
Employer with copies to the other parties. That letter
stated:
As a result of an administrative investigation into
complaints that your firm has failed to comply with
its commitments entered into in the settlement of
Cases 19-CA-17846 and -17853 [-17854], which I
approved on December 12, 1985, I have concluded
that those complaints have merit and that it will
therefore be appropriate to revoke my approval of
that settlement, and reissue complaint on those
cases. Those matters will be further consolidated
with Case 19-CA-18336, which our investigation
also shows to be a meritorious charge. By separate
letter, and for the reasons set forth therein, I am
also revoking the Decision and Order heretofore
issued in Case 19-RD-2404 and redismissing it on
49 The foregoing findings are based on documentary evidence
so The foregoing findings are based on credited portions of the testi-
mony of Schneider and documentary evidence
51 The foregoing findings are based on credited portions of the testi-
mony of Schneider
YELLOWSTONE PLUMBING
grounds of unlawful coercion by your company
against employees.
Accordingly, you are hereby notified that my ap-
proval of the Settlement Agreement in Cases 19-
CA-17846 and -17853 [-17854] is hereby revoked.
The foregoing findings are based on documentary evi-
dence.
3. Conclusions
A Regional Director may set aside an informal settle-
ment agreement when a respondent has failed to comply
with the terms of that settlement agreement. Section
101.9(e)(2) of the Board's Statements of Procedure pro-
vides: "In the event the respondent fails to comply with
the terms of an informal settlement agreement, the re-
gional director may set the agreement aside and institute
further proceedings." See Henry I Siegel Co., 143 NLRB
386 (1963); Interstate Paper Supply Co., 251 NLRB 1423
(1980); Bingham-Williamette Co., 199 NLRB 1280 (1972);
Roadway Express, 254 NLRB 668 (1981); Hatfield Truck-
ing Service, 270 NLRB 136 (1984); and Universal Blanch-
ers, 275 NLRB 1544 (1985). I conclude that the Regional
Director was justified in setting aside the informal settle-
ment agreement in this proceeding because of the Re-
spondent's failure to comply with all of the terms of that
settlement agreement. In particular, the Respondent
failed to make a valid offer of reinstatement to Schnei-
der.
In its decision in Hickory's Best, Inc., 267 NLRB 1274,
1275 (1983), the Board held: "Employees who are discri-
minatorily discharged are entitled to unequivocal and un-
conditional offers of reinstatement to their former jobs, if
they still exist; and, if those jobs do not exist, then to
equivalent positions."
In its decision in Seligman & Associates, 273 NLRB
1216 (1984), the Board held:
As a wrongdoer, the Respondent bears the burden
of remedying its unfair labor practices."' We
impose no hardship by requiring that it meet that
burden by making a clear, unequivocal, legitimate
reinstatement offer even in the face of a discrimina-
tee's apparent understanding and repudiation of the
concept of reinstatement.
11 See Electrical Workers IUE Y. NLRB, 426 F.2d 1243, 1251-
52 (D C Cir 1970)
In its decision in Michael M. Schaefer, 246 NLRB 181
(1979), the Board held:
Furthermore, it is also well established that a dis-
criminatee, upon receiving an offer of reinstatement,
has a fundamental right to a reasonable time to con-
sider whether to return.6 While we do not attempt
to prescribe what is reasonable in every circum-
stance, we find that the time allotted by Respondent
was totally inadequate. Here, [the discriminatee]
would have had to inform Respondent of his inten-
tions the same day that he received the phone call
1007
from [a nonsupervisory employee of that Respond-
ent.]
6 William Dong, an Individual Proprietorship, d/b/a Woodland
Supermarket, 237 NLRB 1481 (1978), Penco Enterprises Inc, Penco
of Ohio, and Acoustical Contracting and Supply Corp, 216 NLRB
734, 735 (1975)
Based on the foregoing precedents, I conclude that
Floyd Lovejoy's offer of employment on 9 January 1986
to Schneider was not a valid offer of reinstatement to
Schneider. Schneider was not given a reasonable amount
of time to consider Floyd Lovejoy's offer because Floyd
Lovejoy required Schneider to give him an immediate
response. As indicated above in the Michael M. Schaefer
decision, Schneider had a fundamental right to a reasona-
ble time in which to consider whether to return to work
for the Employer. The Board found in the Michael M.
Schaefer case that requiring the discriminatee to inform
that company of his response on the same day that he
had received a telephone call from that company was in-
adequate. I reached the same conclusion here. Further-
more, the wage rate which was stated in Floyd Love-
joy's letter of 6 December 1985 to Schneider was $10 an
hour. Although no mention was made of a specific wage
rate during the 9 January 1986 telephone conversation
between Floyd Lovejoy and Schneider, the $10 wage
rate offer was the only one in existence at that point in
time. That wage rate was lower than the two wage rates
that Schneider had earned when Schneider previously
had been employed by the Employer. His earlier wage
rates had been $18.85 an hour and $11.31 an hour. More-
over, the $10 wage rate offer in Floyd Lovejoy's letter
of 6 December 1985 was lower than the $12 an hour
wage rate which the Employer was paying to Ballerstein
both in December 1985 and January 1986. The letter
from the attorney for the Respondent to Schneider with
an $18 an hour wage rate did not arrive until after the
offer of employment had already been made to Schnei-
der by Floyd Lovejoy. Because Floyd Lovejoy had re-
quired an immediate response to his offer on 9 January
1986, I conclude that the letter from the attorney for the
Respondent, which was mailed on 13 January 1986, did
not remedy the defect in the Employer's earlier offer. In
summary, Schneider was not given a reasonable opportu-
nity to consider the Employer's offer, and the offer of
$10 an hour was inadequate. Therefore, I conclude as in-
dicated above that the Regional Director was justified in
setting aside the informal settlement agreement because
of the Respondent's failure to comply with the terms of
that settlement agreement.
Based on the findings of fact and conclusions already
set forth in section B and based on the findings of fact
set forth above in section C, I conclude that the evidence
established Schneider's union membership and union ac-
tivity in being the union shop steward on the Rimrock
Inn project; the Employer's knowledge of Schneider's
union membership and activity; the Employer 's animus
towards the Union as shown by the unfair labor practices
as described in section B, and those continuing unfair
labor practices which will be described in section D
herein; and the true motivation for Schneider's layoff
1008 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
from work because the Employer did not want Schnei-
der involved in the middle of the trouble or problems be-
tween the Employer and the Union , but that Schneider
could come back to work for the Employer after the
union contract had expired . The last reason stated to
Schneider at the time of his layoff explains the timing of
the Employer 's layoff of Schneider just before the union
contract was to expire . In view of the foregoing, I con-
clude that the General Counsel has established a prima
facie case that the Employer laid off from work Dean
Schneider and has failed to recall him to work because
of his union membership and activities . Wright Line, 251
NLRB 1083 (1980), enfd . 662 F.2d 899 ( 1st. Cir 1981),
cert. denied 455 U. S. 989 ( 1982).
Because the General Counsel has presented evidence
that established a prima facie showing that protected
conduct was a motivating factor in the Employer 's layoff
and failure to recall Schneider , the burden then shifts to
the Employer to demonstrate that the Employer would
have taken the same action even in the absence of the
protected conduct . In its decision in Hunter Douglas,
Inc., 277 NLRB 1179 (1985 ), the Board held:
The employer cannot carry this burden merely by
showing that it also had a legitimate reason for the
action , but must "persuade" that the action would
have taken place absent the protected conduct "by
a preponderance of the evidence ." Roure Bertrand
Dupont, Inc., 271 NLRB 443 ( 1984); NLRB v.
Transportation Management Corp., 462 U.S. 393
(1983). If an Employer fails to satisfy its burden of
persuasion , a violation of the Act may be found.
Bronco Wine Co., 256 NLRB 53 (1981).
Although work was nearing an end at the Blue Creek
School project, some work remained to be done at that
jobsite , and that work was performed after the layoff of
Schneider . The evidence also revealed that the Employer
has had work performed by its employees on projects
after the Blue Creek School project was finished . There-
fore , in addition to the work which remained to be done
at the Blue Creek School project at the time that the
Employer laid off Schneider, there subsequently was ad-
ditional work on other projects which Schneider could
have performed if the Employer had recalled Schneider
to work . As indicated in the findings of fact , the Em-
ployer gave Schneider only two reasons at the time that
the Employer laid off Schneider . One was that work was
coming to an end , and the other one was that Floyd Lo-
vejoy did not want Schneider involved in the Employ-
er's trouble or problems with the Union . As indicated
above , I conclude that the latter reason revealed the true
motivation for Floyd Lovejoy 's decision to layoff
Schneider at that time . I further conclude that the Em-
ployer has not met its burden under the Wright Line de-
cision . Accordingly , I further conclude that the Re-
spondent has engaged in unfair labor practices within the
meaning of Section 8(a)(1) and (3) of the Act by laying
off from work Dean Schneider and by failing to recall
Schneider to his former job, or to a substantially equiva-
lent job, because of Schneider 's union membership and
activities.
D. The Alleged Violations of Section 8(a)(1) and (5)
of the Act
1. Allegations
The General Counsel alleged the following in para-
graph 8 of the consolidated complaint to be violations of
Section 8 (a)(1) and (5) of the Act:
8.
(a) On or about December 2, 1985 , Respondent,
by letter from Counsel , advised the Union that it
would no longer recognize the Union as the exclu-
sive collective-bargaining representative of its em-
ployees in the Unit.
(b) Since November 27, 1985 , and continuing to
date , Respondent has, without first bargaining with
or notifying the Union , unilaterally modified wages
and working conditions then in effect as provided in
the most recently expired agreement of the parties
by, inter alia , failing and refusing to pay required
benefits , failing to utilize the exclusive hiring hall,
failing to pay required wages, and otherwise repudi-
ating its bargaining obligation with the Union.
(c) On or about January 24 , 1986, in February
1986, and since , Respondent has refused repeated
requests and demands by the Union for renewed
recognition and bargaining.
2. Facts
General Counsel 's Exhibit 5 is a copy of a telegram
from Floyd Lovejoy to the Union . The date of the tele-
gram is 29 August 1985. The telegram stated:
Notification was sent Local 30 by certified letter
of April 9 , 1985 that Yellowstone Plumbing , Inc. in-
tended to terminate its current labor agreements
with Local 30. No response was received. Have
been notified by NLRB of employee petition to de-
certify . On determination of union status by NLRB
the company will set a date for bargaining session if
so ordered.
The foregoing findings are based on documentary evi-
dence . Union Business Manager Powell acknowledged at
the hearing that he had received a copy of General
Counsel's Exhibit 5.
Beverly Lovejoy acknowledged at the hearing in this
proceeding that after the end of August 1985 the Em-
ployer has not made any payments or filed any reports
with the health and welfare trust fund.
Joint Exhibit 3(a) is a copy of the decertification peti-
tion filed on 13 September 1985 in Case 19-RD-2404 by
Ballerstein.
Joint Exhibit 3(b) is a copy of the Decision and Order
issued on 18 October 1985 in Case 19-RD-2404 by the
Regional Director . In summary , the decision indicates
that the Regional Director concluded that there was no
contract bar to an election ; that the evidence presented
in that proceeding did not establish that Yellowstone
Plumbing, Inc., and JSA Plumbing were alter egos; that
the Employer had only one employee at the time of the
YELLOWSTONE PLUMBING 1009
hearing in that proceeding, and no concrete plans to hire
additional employees; that the Employer had no firm
commitments for future work; and, therefore, it would
be inappropriate to direct that an election be held at that
time because NLRB will not certify a one-person unit
for the purposes of collective bargaining Accordingly,
the Regional Director ordered that the petition in Case
19-RD-2404 be dismissed. The Regional Director's deci-
sion indicated that the Union had argued in its brief that
the petition should be dismissed because the Board's
processes could not be utilized to certify a one-person
unit. The Regional Director's decision also stated that
the Employer had taken no position with respect to the
question of the one-person unit.
General Counsel's Exhibit 6 is a copy of a letter dated
25 November 1985 from the attorney for the Respondent
to the Union. That letter stated:
It is Yellowstone Plumbing, Inc.'s position that
the NLRB ruled that a single member unit will not
be certified for the purposes of collective bargaining
and therefore, an election for decertification was in-
appropriate and dismissed . This would automatical-
ly decertify the unit. Therefore , until such time as
future employees are hired who desire to be repre-
sented as a bargaining unit by the union, and be-
cause Yellowstone Plumbing's single employee has
indicated his withdrawal from the union, we regard
Yellowstone Plumbing's relationship with the union
to be terminated as of August 31, 1985.
The findings in the foregoing paragraphs are based on
the documentary evidence indicated.
Powell acknowledged at the hearing that he had re-
ceived a copy of General Counsel's Exhibit 6. Prior to
his receipt of a copy of that letter, Powell had not re-
ceived any notice from the Employer to the effect that
the Employer was no longer paying fringe benefits; no
longer utilizing the Union's hiring hall; or that the Em-
ployer was changing the wages, hours, and working con-
ditions after 1 September 1985.52
Robert Papin became the business manager of the
Union on 8 January 1986. Papin replaced Powell in that
position with the Union. Prior to his becoming the busi-
ness manager of the Union, Papin had not had any deal-
ings with the Employer. However, Powell briefed Papin
with regard to the status of the Union's relationship with
the Employer.
As a result of receiving a check in the mail from
Floyd Lovejoy for his union dues to be paid up through
January 1987, Papin attempted to contact Floyd Lovejoy
in person either on 23 or 24 January 1986. Papin drove
to the IGA store in Laurel , Montana , in order to see
Floyd Lovejoy. However, Floyd Lovejoy was not at
that location when Papin arrived Papin then telephoned
the Employer's office, but Floyd Lovejoy was not there
at that time, so he left a message . Floyd Lovejoy later
returned Papin's call that afternoon. Papin told Floyd
Lovejoy in their telephone conversation that the Union
had received Floyd Lovejoy's check for his union dues;
that Papin understood that there was a problem going on
between the Union and the Employer; that Papin did not
know Floyd Lovejoy at all; that Papin had never met
Floyd Lovejoy; and that they should meet either at the
Employer's shop or at the Union's office. Floyd Lovejoy
told Papin that he was not going to hire any persons that
the Union had, or sign an agreement with the Union be-
cause of the caliber of the persons that the Union had.
Floyd Lovejoy also told Papin that he thought that he
was going to take a withdrawal card in case Floyd Lo-
vejoy had to go to California. Subsequently, Papin re-
ceived a letter from Floyd Lovejoy who requested a
withdrawal card from the Union and also requested that
his union dues be refunded. Shortly thereafter, Papin also
received a letter from Beverly Lovejoy who enclosed
some photocopies of portions of the Union's constitution.
Papin stated at the hearing that the Union had not issued
a withdrawal card to Floyd Lovejoy because Floyd Lo-
vejoy had not come to the Union in person and filled out
a certificate. In addition, a deposit is required. Then the
matter goes to the Union's executive board. Papin also
stated that union charges had been filed against Floyd
Lovejoy, and that the Union's executive board had im-
posed a fine on Floyd Lovejoy. Papin gave his opinion
at the hearing in this proceeding that Floyd Lovejoy was
in violation of the Union's constitution by remaining a
member of the Union, but continuing in the plumbing
business without being signatory to the Union's collec-
tive-bargaining agreement.
On 9 June 1986 a settlement conference was held
before a Federal magistrate with regard to the Union's
lawsuit pending against the Employer. During the course
of that conference, the Union requested that the Employ-
er comply with the terms of the Union's collective-bar-
gaining agreement . The Employer refused to do so. No
agreement was reached at that conference.53
With regard to the unit, it is not necessary to repeat
here the findings of fact that previously have been set
forth in section C with respect to the facts disclosed
from the Employer's payroll records of certain employ-
ees and the Employer's timecards for certain employees.
I find that those records show that the amount of hours
worked and the number of employees have fluctuated
during the time periods of those records, but that the
unit has continued to exist at all times material.
Floyd Lovejoy acknowledged at the hearing that there
had been times in past years when the Employer's work
force had been reduced to just one employee. That had
occurred prior to 1985. On those earlier occasions Floyd
Lovejoy had not served notice on the Union that the
Employer would no longer recognize the Union as the
collective-bargaining representative of the Employer's
employees. Floyd Lovejoy explained at the hearing that
the busiest time of the year for the Employer was from
July until there was a freeze. He said the slowest time of
the year for the Employer was in March and April.
sa The findings in the foregoing paragraphs are based on credited por-
tions of the testimony of Papin Floyd Lovejoy agreed in his testimony
52 The foregoing findings are based on credited portions of the tests- that no agreement was reached at that conference and, as a result, the
mony of Powell case went to trial in United States District Court.
1010 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Floyd Lovejoy also testified: "There reaches a point in
time during the year when it's slack, yes. And it's some-
thing that-I always say it's feast or famine; you've
either got too much work, or you don't have any at
all."54
During the spring and the summer of 1986, the Em-
ployer had four or five plumbers working for the Em-
ployer. Those persons were in addition to Hopkins, who
the Employer urges is a laborer.55
During the years that Powell served as the business
manager of the Union, Powell said that he dealt with as
many as 30 plumbing contractors. It was Powell's experi-
ence that from time to time some of those plumbing con-
tractors would run out of work and either have one em-
ployee or no employees at all. In Powell's experience,
none of those plumbing contractors had ever terminated
their bargaining relationship with the Union on that
basis. 56
During the years that Patterson worked as a union
business agent, there were 22 plumbing contractors who
had collective-bargaining agreements with the Union.
Based on Patterson 's experience in dealing with those
contractors Patterson found that there were occasions
when those plumbing contractors had just one employee
or no employees at all. Patterson attributed those situa-
tions to the weather conditions; economic conditions; or
the lack of success of a particular plumbing contractor in
bidding for work. In Patterson's experience, none of
those plumbing contractors had ever advised the Union
that the contractors considered that they no longer had
bargaining units.57
The testimony of Frisby has already been set forth in
section A. His testimony revealed how the number of
employees of his company, City Service Plumbing and
Heating , fluctuated in his plumbing business . At one time
he had 30 employees ; at the time he notified the Union
of his intention to terminate the contract he had no em-
ployees; and at the time of the hearing in this proceeding
he had two employees.58
With regard to the IGA project in Laurel, Montana,
Robert Jam, the president of Travis-Jam, Inc., said at the
hearing that he solicited pricing information from sub-
contractors, including Yellowstone Plumbing, prior to
making Travis-Jam's bid on 17 September 1985. Travis-
Jam was successful and was awarded the contract for the
IGA job on 18 September 1985. Yellowstone Plumbing
was the low bidder for the plumbing work on that
project. The proposed subcontracts for the IGA project
were mailed on 25 September 1985 to the subcontractors.
General Counsel's Exhibit 4 is a copy of the written bid
by Yellowstone Plumbing to Travis-Jam for the IGA
project. The bid is dated 1 October 1985. The bid was
accepted by Travis-Jam on 10 October 1985, and the ac-
54 The foregoing findings are based on credited portions of the testi-
mony of Floyd Lovejoy
as The foregoing findings are based on credited portions of the testi-
mony of Beverly Lovejoy
56 The foregoing findings are based on credited portions of the testi-
mony of Powell
67 The foregoing findings are based on credited portions of the testi-
mony of Patterson
68 The foregoing findings are based on credited portions of the testi-
mony of Frisby
ceptance of Yellowstone Plumbing's bid was received by
the Employer on 15 October 1985. General Counsel's
Exhibit 14 revealed that the amount of Yellowstone
Plumbing's bid for the IGA project was $52,870.69
General Counsel's Exhibit 3 is a copy of the bid made
by Yellowstone Plumbing for the Western Heritage Re-
model project for High Tech Construction. The date of
that bid was 2 October 1985. The subcontract was
awarded to Yellowstone Plumbing, and the work was
done in December 1985. In November 1985 the Employ-
er prepared a bid for plumbing work at the King of
Glory Church. The Employer received the subcontract
for that work, but it was not done until the spring of
1986. The amount of the work was under $1,500.60
Floyd Lovejoy acknowledged at the hearing that he
did not contact the Union's hiring hall to see if the
Union had any persons available for work on any of the
foregoing projects because, in his view, the Union's con-
tract had expired on 1 September 1985, and thus, in his
view, the Employer was nonunion.
Certain facts already have been set forth in sections A
and C with regard to Jerry Hopkins. Until November
1984 Hopkins worked as an apprentice plumber for the
Employer. Since November 1984 the Employer has clas-
sified Hopkins as a laborer. The Employer has taken the
position in this proceeding that Hopkins was not part of
the unit. The General Counsel and the Charging Party
have taken the position that Hopkins continued to per-
form certain bargaining unit work after November 1984,
and that Hopkins has been in the bargaining unit at all
times material herein.
In November 1984 and in several conversations there-
after , Floyd Lovejoy has given instructions to Baller-
stein, Fiebiger, and Hopkins that Hopkins was not to
work with the tools of the trade. Notwithstanding those
instructions , Hopkins did perform some bargaining unit
work after November 1984, according to the testimony
of Hopkins, Schneider, and Fiebiger.6 i The Employer
had a contract to perform the plumbing work at a
project which was known as the Foote Street Ware-
house. Both Hopkins and Schneider worked on that
project for the Employer in 1985. Hopkins installed the
gas line at that project. Hopkins cut the steel pipe to the
correct size, and Hopkins threaded the pipe. Hopkins
then assembled the pipe and attached the pipe to the gas
heaters and to the gas main . Hopkins also used a backhoe
to dig a ditch in which to lay the pipe. Five heaters had
to be hung about 12 to 14 feet off of the ground. Hop-
kins assisted Schneider in hanging those heaters . In addi-
tion, Hopkins cut PVC pipe to be used for drains. Floyd
Lovejoy was at the Foote Street warehouse jobsite while
Hopkins was cutting that pipe . Floyd Lovejoy told Hop-
kins that he would rather not have Hopkins cut the pipe
because Hopkins was close to the road. At the hearing
68 The foregoing findings are based on credited portions of the testi-
mony of Jam and documentary evidence
60 The foregoing findings are based on credited portions of the testi-
mony of Floyd Lovejoy and documentary evidence
81 The foregoing findings are based on credited portions of the testi-
mony of Hopkins, Schneider , and Fiebiger Floyd Lovejoy and Baller-
stein also testified that Floyd Lovejoy had given such instructions re-
garding Hopkins
YELLOWSTONE PLUMBING 1011
Hopkins explained that at that point in time Hopkins was
working at the end of the building which faced Laurel
Road.62
The Employer had a plumbing contract to perform
work at a project known as the Rax Restaurant . Hopkins
worked on that project in 1985 for the Employer. Hop-
kins performed work relating to the laying of a storm
sewer . He operated a backhoe in order to dig a trench at
the project and had the responsibility for grading the
work so that the pipe would drain properly. He ran the
pipe to the street. Laying the pipe required Hopkins to
measure the distances and to cut the pieces of pipe to fit.
The pipe used was PVC pipe. In addition, there were be-
tween four and six manholes to be put in place on the
project and carried all of the materials on that job. Hop-
kins believed that he worked with Jim Allen on that
project. 68
The Employer also had a plumbing contract to per-
form work at a project known as the Keebler warehouse.
Hopkins worked with Schneider in 1985 for the Employ-
er on that project. He assisted Schneider in putting up
roof drains; installing hangers ; and hanging 6- and 8-inch
pipe. That pipe was awkward to handle, and thus both
Hopkins and Schneider carried and handled that pipe.64
The Employer had a plumbing contract to perform
work at what was known as the Blue Creek School
project. Both Hopkins and Schneider worked on that
project for the Employer in 1985. Both Hopkins and
Schneider removed several fixtures from the project,
such as toilets , urinals, and a drinking fountain. Hopkins
also was involved in removing old cast iron pipe from
the project. In addition, Hopkins dug trenches and insu-
lated pipe in the crawl space.65
The Employer also had the plumbing contract to per-
form certain work during the summer of 1985 at a
project known as the Brandywine Apartment complex.
At times Hopkins worked by himself on that project, and
at other times he worked with Fiebiger and Ballerstein.
Hopkins installed fixtures at that project, such as sinks,
toilets, and water heaters. Hopkins carried those fixtures
onto the project and put those fixtures in place. Hopkins
also dug trenches for a sanitary sewer and carried pipe
onto the jobsite.66
As indicated earlier, the Employer had a subcontract
to perform plumbing work at the IGA jobsite. Hopkins
worked at that project during 1986 for the Employer.
Hopkins dug trenches; cut pipe; installed gas pipe; in-
stalled hangers for roof drains; carried pipe for those
roof drains ; installed roof drains ; insulated copper pipe
62 The foregoing findings are based on credited portions of the testi-
mony of Hopkins and Schneider.
63 The foregoing findings are based on credited portions of the testi-
mony of Hopkins
64 The foregoing findings are based on credited portions of the testi-
mony of Hopkins and Schneider
65 The foregoing findings are based on credited portions of the testi-
mony of Hopkins and Schneider
66 The foregoing findings are based on credited portions of the testi-
mony of Hopkins and Fiebiger Based on the credibility criteria previous-
ly set forth in section A, I have not credited the testimony of Ballerstein
to the contrary
water lines; and carried pipe and materials at the job-
site.67
The Employer had the plumbing contract to perform
work at a project known as the Westpark Retirement
Center. Hopkins worked on that project for the Employ-
er in 1986. Hopkins worked with a journeyman plumber
whose name was Jerry Bokma. Floyd Lovejoy instruct-
ed Hopkins to hook up drains on that project. On one
occasion while Hopkins was performing that work in the
crawl space, a State of Montana inspector came on the
jobsite. Bokma then informed Hopkins that the inspector
was on the jobsite, and Bokma told Hopkins to come out
of the crawl space. At that time Hopkins was connecting
pipe in the crawl space. Hopkins stated at the hearing
that he previously had been instructed to be on guard
about State of Montana inspectors coming on the job-
sites.6 8
The Respondent urges that Union Representatives Pat-
terson and Papin made promises to Hopkins that Hop-
kins would be given special treatment in his application
for a State of Montana plumbers license as a result of the
testimony Hopkins gave at the hearing in this unfair
labor practice proceeding and at the trial involving the
Union's lawsuit against the Employer. The Respondent
urges that the foregoing casts a very serious doubt on
Hopkins' motives in testifying. (See pp. 24-31 of the Re-
spondent's posthearing brief.) The first time that Hopkins
spoke with Patterson about getting a State of Montana
journeyman plumbers license was on 8 November 1984.
At that time Patterson informed Hopkins that, if Hopkins
was going to continue to perform the same kind of work
that Hopkins had been doing prior to 8 November 1984
as an apprentice plumber, Hopkins would have to apply
for a State of Montana plumbers license. Patterson and
Hopkins then discussed Hopkins' work experience. By
adding the time that Hopkins had worked for the Em-
ployer with the time that Hopkins had worked for an
earlier employer, Boise Cascade, Hopkins still did not
have sufficient time to qualify for a State of Montana
plumbers license. Hopkins believed at that time that he
was 6 months short of having the 4 years of experience
that was required. Therefore, Hopkins did not apply for
a State of Montana plumbers license on 8 November
1984. During that conversation Hopkins also asked Pat-
terson about the Union's apprenticeship program. Patter-
son informed Hopkins that Hopkins could not get into
the middle of that program, and Patterson advised Hop-
kins to go to work for someone other than the Employ-
er. For awhile Hopkins did work for John Braden, but
Hopkins performed laborer's work for Braden.
At the time of the trial in the case involving the
Union's lawsuit against the Employer, Hopkins again
spoke with Patterson about applying for a State of Mon-
tana journeyman plumbers license. At that time they dis-
cussed using the transcript of the record in that trial to
67 The foregoing findings are based on credited portions of the testi-
mony of Hopkins Based on the credibility criteria previously set forth in
section A, I do not credit the testimony of Ballerstem to the contrary.
66 The foregoing findings are based on credited portions of the testi-
mony of Hopkins
1012 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
justify additional time for Hopkins which he needed in
order to qualify for a State of Montana license.
About a month or 6 weeks prior to the time that Hop-
kins testified at the hearing in this proceeding, Patterson
and Hopkins had a conversation on the street. Patterson
told Hopkins on that occasion to come down to the
Union; to pick up an application; and that Patterson
would assist Hopkins in filling out the application. Pat-
terson told Hopkins that they wanted to try to get the
time that Hopkins had worked for the Employer to
count towards the time needed for Hopkins to be able to
take the test to become a journeyman plumber. On the
day that Hopkins testified at the hearing in this proceed-
ing, both Patterson and Papin expressed to Hopkins their
willingness to assist Hopkins in getting a license.
The findings in the foregoing paragraphs are based on
credited portions of the testimony of Hopkins and Patter-
son. I have considered the foregoing in connection with
the credibility criteria previously set forth at the outset
of section A of this decision. Notwithstanding the com-
posite testimony summarized above, I found Hopkins to
be a credible witnesss, and I have accepted his testimony
based on the factors referred to in section A.
Joint Exhibit 3(c) is a copy of the Order Vacating De-
cision and Order Dismissing Petition in Case 19-RD-
2404. The document indicates that it was issued on 20
June 1986. In part, the Order stated:
On October 15, 1985, the undersigned issued a
Decision and Order in the above-entitled case be-
cause it was determined that there was then only
one person in the unit. On November 14, 1985, pur-
suant to charges filed in Cases 19-CA-17846 and
17854, a consolidated complaint was issued alleging,
inter aha, that Respondent has illegally coerced em-
ployees into filing the decertification petition. Al-
though an informal settlement had been entered into
in this case, I have determined to revoke said settle-
ment and reissue complaint for reasons of noncom-
pliance. In view of the allegations that the petition
was filed pursuant to unlawful pressure, it has been
fatally tainted and must be dismissed, on that basis
rather than the original basis for dismissal.
Accordingly, it is hereby ordered that the peti-
tion is dismissed.
Joint Exhibit 3(d) is a copy of a request for review in
Case 19-RD-2404. That document is dated 1 July 1986,
and it was signed by the Respondent's attorney. In the
request for review, the Employer and Ballerstein, who
was the petitioner in that case, sought review by the
Board in Washington, D.C., of the Regional Director's
order vacating decision and order dismissing petition. In
summary, the request for review urged that the Union
had failed to exhaust its administrative remedies in Case
19-RD-2404, that no appeal had been filed to the origi-
nal decision by the Regional Director in that case; that
the Employer had operated its business in reliance on the
Regional Director's original decision; that the Employer
would be irreparably damaged by the Regional Direc-
tor's vacating of his original decision; that the Union had
argued in its brief to the Regional Director that the peti-
tion should be dismissed because the Board's processes
could not be utilized to certify a one-person unit; that the
Employer had taken no position with regard to the one-
person unit question; the Employer recited its view of
the bargaining history and the findings by the Regional
Director in the original decision; and the Employer
urged that the Employer had relied on the Regional Di-
rector's original decision in not bargaining with the
Union.
Joint Exhibit 3(e) is a copy of the Board's Order with
regard to the Request for Review filed by the Employer
and the petitioner in Case 19-RD-2404. In part, the
Board's Order stated:
The Board concludes that the Employer's and
Petitioner's request for review of the Regional Di-
rector's Order Vacating Decision and Order Dis-
missing Petition raises no substantial issues warrant-
ing reversal of the Regional Director's action. Ac-
cordingly, dismissal of the petition is affirmed sub-
ject to its reinstatement, if appropriate, on applica-
tion after the unfair labor practice proceeding's dis-
position.
The Board's Order also provided that the petitioner in
the decertification case , Ballerstein , would be made a
party in interest in the unfair labor practice proceeding
to the extent that Ballerstein would be entitled to the re-
ceipt of a copy of the Order or other document which
finally disposed of the unfair labor practice proceeding.
The Board's Order was by a panel majority of Member
Johansen and Member Babson. Chairman Dotson dissent-
ed and would have reinstated the petition and held it in
abeyance pending the disposition of the unfair labor
practice case . The Board's Order is dated 5 August 1986.
The findings in the foregoing paragraphs are based on
documentary evidence.
3. Conclusions
Based on the credited findings of fact set forth above,
and the findings of fact set forth in earlier sections of this
decision referenced above, I conclude that the bargaining
unit continued in existence at all times material in this
proceeding. Finger Lakes Plumbing Co., 253 NLRB 406
(1980). The Board found in that case that the bargaining
unit continued in existence even during the times when
there was no unit work performed and no unit employ-
ees were employed. Thus, I conclude that the fluctuation
in the number of employees in the Employer' s unit in
this case does not warrant the conclusion that the bar-
gaining unit ceased to exist. The findings of fact revealed
that it was a common occurrence among plumbing con-
tractors in the geographical area of the Employer for
their number of employees to fluctuate due to economic
and weather conditions. Those fluctuations in the
number of employees also had occurred in the Employ-
er's operation in this case. In his decision in D & B Ma-
sonry, 275 NLRB 1403, 1409 (1985), Administrative Law
Judge Jerrold H. Shapiro held:
It is also settled that in the construction industry, an
industry characterized by intermittent employment,
YELLOWSTONE PLUMBING 1013
that laid-off employees, who have a reasonable ex-
pectation of reemployment within a reasonable time
in the future, and thus have a continuing interest in
the Employers' working conditions, are included in
a bargaining unit as eligible voters. Daniel Construc-
tion Co., 133 NLRB 264 (1961), modified 167
NLRB 1078 (1967).
In view of the foregoing, I further conclude that the
fact that the employees of the Employer did not have
continuous employment, and were laid off from work for
periods of time, did not alter the fact that they were part
of a bargaining unit which continued to exist. In addi-
tion, I conclude that the evidence established that Hop-
kins performed bargaining unit work, and that Hopkins
was a member of the bargaining unit at all times material
in this proceeding. I conclude that the fact that Hopkins
also performed some nonbargaining unit work does not
preclude him from being included in the bargaining unit.
In addition, as set forth in section C, I have concluded
that the Employer discriminatorily laid off Schneider
from work and has discriminatorily failed to recall him
to work, and, therefore, I conclude that Schneider has
been a member of the bargaining unit at all times materi-
al here.
In its decision in Hearst Corp., 281 NLRB 764 (1986),
the Board held:
Decertification petitions, of the type signed by
the employees here, will generally be sufficient to
cast doubt on a union's continued majority status if
signed by a majority of the employees, and will
afford an employer a reasonable basis for withdraw-
ing recognition from a labor organization, provided
that, prior thereto, the employer has not engaged in
conduct designed to undermine employee support
for, or cause their disaffection with, the union.7
Where an employer engages in such conduct, the
decertification petitions will be found to have been
tainted by the employer's unfair labor practices and
the latter, consequently, will be precluded from re-
lying on the tainted petition as a basis for question-
ing the union's'continued majority status and with-
drawing recognition from that labor organization.8
7 Hydro Conduit Corp, 254 NLRB 433 (1981), Sanderson Farms,
Inc, 271 NLRB 1477, 1480 (1984) See also Master Slack Corp, 271
NLRB 78 In 1 (1984), and Hotel Employees Local 19 v NLRB,
[785 F 2d 796 (9th Or 1986)]
8 Pittsburgh & New England Tnicking Co, [249 NLRB 833],
Chicago Magnesium Casting, [256 NLRB 668] See also Mark
Twain Marine Industries, 254 NLRB 1 095, 1114- 1115 (1981)
In view of the foregoing, I conclude that the Respond-
ent's affirmative defense that it relied on the Regional
Director's original decision in Case 19-RD-2404 does
not have merit under the circumstances of this case. As
set forth in section B, I have earlier concluded that the
Respondent unlawfully encouraged its employees to file
a petition to decertify the union. Thus, the filing of a de-
certification petition and ultimately the Regional Direc-
tor's decision after a hearing in that matter resulted from
the Employer's unlawful action. The Regional Director
based his decision on the facts, which were before him at
that time, as recited in his decision which is in evidence
in this proceeding. However, the Regional Director did
not have all of the true facts before him when he issued
his original decision. Subsequently, when other facts
came to light, the Regional Director revoked his original
decision. As pointed out in the Board's decision in Hearst
Corp., supra at 765: "For as the Board has previously
stated, an employer who engages in efforts to have its
employees repudiate their union must be held responsible
for the foreseeable consequence of its conduct." I con-
clude that the Regional Director's original decision in
Case 19-RD-2404 was a foreseeable consequence of the
Employer's unlawful action in encouraging its employees
to file the decertification petition, and also a foreseeable
consequence of the testimony which the Regional Direc-
tor relied on in his original decision. In the circum-
stances, I conclude that the Employer's affirmative de-
fense lacks merit.
I further conclude from the findings of fact that the
Employer's withdrawal of recognition from the Union
was not made in good faith, and that the Employer's
withdrawal of recognition from the Union took place in
the context of other unfair labor practices in violation of
Section 8(a)(1) and (3) of the Act (See secs. B and C.) I
further conclude that the Union's majority status in the
bargaining unit was dissipated by the Employer's unfair
labor practices, and that the Employer has had a con-
tinuing obligation to recognize and to bargain with the
Union. Finally, I further conclude that the Respondent
has engaged in unfair labor practices within the meaning
of Section 8(a)(1) and (5) of the Act by withdrawing rec-
ognition from the Union; by failing to thereafter recog-
nize and bargain with the Union; by making unilateral
changes in the wages and working conditions of unit em-
ployees, as alleged in the General Counsel's consolidated
complaint. Burger Pits, 273 NLRB 1001 (1984); Abbey
Medical/Abbey Rents, 264 NLRB 969 (1982); Cobb Thea-
tres, 260 NLRB 856 (1982); Robertshaw Controls Co., 263
NLRB 958 (1982); and Hotel Employers Assn., 213 NLRB
651 (1974).
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. The Charging Party Union is a labor organization
within the meaning of Section 2(5) of the Act
3. The Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8(a)(1) of the Act by
threatening employees that the Respondent would close
its company if the company did not go nonunion; by
promising employees that their wages would remain the
same after the company went nonunion; by encouraging
its employees to file a petition to decertify the Union;
and by telling an employee that he was being laid off
from work because the Respondent did not want the em-
ployee involved in the middle of the trouble or problems
between the Respondent and the Union, and that the em-
ployee could come back to work after September, which
was the month the contract between the Respondent and
the Union was to expire.
1014 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4. The Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8(a)(1) and (3) of the
Act by laying off from work Dean Schneider and by
failing to recall him to his former job, or to a substantial-
ly equivalent job, because of his union membership and
activities.
5. The Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8(a)(1) and (5) by
withdrawing recognition from the Union and thereafter
by failing and refusing to recognize and bargain with the
Union as the collective-bargaining representative of the
Respondent's employees in the unit described below; and
by making unilateral changes in the wages and working
conditions of its unit employees without notice to and
bargaining with the Union as the collective-bargaining
representative of the Respondent's unit employees in that
the Respondent failed to pay the benefit contributions on
behalf of its unit employees as provided for in the ex-
pired collective-bargaining agreement between the Re-
spondent and the Union, failed to use the Union's exclu-
sive hiring hall in accordance with that collective-bar-
gaining agreement, failed to pay its employees the wage
rates of that collective- bargaining agreement and other-
wise repudiated the Respondent's bargaining obligation
to the Union.
The appropriate bargaining unit is:
All journeymen and apprentice plumbers em-
ployed by the Respondent, excluding supervisors
and guards as defined in the Act.
6. The unfair labor practices described above affect
commerce within the meaning of Section 2(6) and (7) of
the Act.
THE REMEDY
Because I have found that the Respondent has en-
gaged in certain unfair labor practices within the mean-
ing of Section 8(a)(1), (3), and (5) of the Act, I shall rec-
ommend to the Board that the Respondent be ordered to
cease and desist from engaging in such unfair labor prac-
tices and to take affirmative action designed to effectuate
the policies of the Act.
I shall recommend to the Board that the Respondent
be ordered to offer Dean Schneider immediate and full
reinstatement to his former job or, if his job no longer
exists, to a substantially equivalent position of employ-
ment, without the loss of his seniority or any other rights
and privileges.
I shall further recommend to the Board that the Re-
spondent be ordered to make whole Dean Schneider for
any loss of earnings and other benefits resulting from the
discrimination against him. Backpay is to be computed in
accordance with the Board's decision in F. W. Wool-
worth Co., 90 NLRB 289 (1950), with interest on such
backpay to be computed in accordance with the Board's
decisions in Isis Plumbing Co., 138 NLRB 716 (1962);
Florida Steel Corp., 231 NLRB 651 (1977); and Olympic
Medical Corp., 250 NLRB 146 (1980).
In accordance with the Board's decision in Sterling
Sugars, 261 NLRB 472 (1982), I shall recommend to the
Board that an expunction remedy be included in the
Order. I shall further recommend to the Board that the
Respondent be ordered to make whole its unit employees
for any losses they may have suffered by reason of the
Respondent's unfair labor practices found in accordance
with the Board's decisions in Kraft Plumbing, 252 NLRB
891 (1980), enfd. 661 F.2d 940 (9th Cir. 1981); Ogle Pro-
tection Service, 183 NLRB 682 (1970), plus interest as pre-
scribed in Florida Steel Corp., supra, and Merryweather
Optical Co., 240 NLRB 1213 (1979).
The General Counsel has requested that a visitatorial
clause be included in the remedy. I conclude that the
General Counsel has not presented evidence in this pro-
ceeding that establishes that such a clause is necessary.
Accordingly, I hereby deny the General Counsel's re-
quest for a visitatorial clause.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed69
ORDER
The Respondent, Yellowstone Plumbing , Inc., Billings,
Montana , its officers , agents , successors , and assigns,
shall
1. Cease and desist from
(a) Threatening employees that the Respondent would
close its Company if the Company did not go nonunion;
promising employees that their wages would remain the
same after the Company went nonunion ; encouraging its
employees to file a petition to decertify the Union; and
telling an employee that he was being laid off from work
because the Respondent did not want the employee in-
volved in the middle of the trouble or problems between
the Respondent and the Union, and that the employee
could come back to work after September, which was
the month the contract between the Respondent and the
Union was to expire.
(b) Laying off from work Dean Schneider and failing
to recall him to his former job, or to a substantially
equivalent job, because of his union membership and ac-
tivities.
(c) Withdrawing recognition from the Union and fail-
ing and refusing to recognize and bargain with the Union
as the collective-bargaining representative of the Re-
spondent's employees in the unit described below;
making unilateral changes in the wages and working
conditions of its unit employees without notice to and
bargaining with the Union as the collective-bargaining
representative of the Respondent's unit employees by
failing to pay the benefit contributions on behalf of its
unit employees as provided for in the expired collective-
bargaining agreement between the Respondent and the
Union; by failing to use the Union's exclusive hiring hall
in accordance with that collective-bargaining agreement;
by failing to pay its employees the wage rates of that
collective-bargaining agreement; and by otherwise repu-
69 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
YELLOWSTONE PLUMBING 1015
diating the Respondent 's bargaining obligation to the
Union . The appropriate bargaining unit is:
All journeymen and apprentice plumbers em-
ployed by the Respondent, excluding supervisors
and guards as defined in the Act.
(d) 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) Offer Dean Schneider immediate and full reinstate-
ment to his former job or, if that job no longer exists, to
a substantially equivalent position, without prejudice to
his seniority or any other rights or privileges previously
enjoyed, and make him whole for any loss of earnings
and other benefits suffered as a result of the discrimina-
tion against him, in the manner set forth in the remedy
section of the decision.
(b) Remove from its files any reference to the unlawful
discharge and notify the employee in writing that this
has been done and that the discharge will not be used
against him in any way.
(c) On request, bargain with the Union as the exclusive
representative of the employees in the following appro-
priate unit concerning wages, terms and conditions of
employment and, if an understanding is reached, embody
the understanding in a signed agreement:
All journeymen and apprentice plumbers em-
ployed by the Respondent, excluding supervisors
and guards as defined in the Act.
(d) Make whole the employees in the bargaining unit
for any losses they may have suffered by reason of the
Respondent's unfair labor practices found in the manner
described in the remedy section of this decision.
(e) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(f) Post at its office in Billings , Montana, copies of the
attached notice marked "Appendix."70 Copies of the
notice, on forms provided by the Regional Director for
Region 19, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(g) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
70 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 Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."