A-1 Fire Protection, Inc.

National Labor Relations Board - Board Decisions

Dec 14, 1984

273 N.L.R.B. 964 (N.L.R.B. 1984)

964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A-1 Fire Protection, Inc., and Corcoran Automatic
Sprinklers, Inc. and Road Sprinkler Fitters
Local 669, United Association of Journeymen
and Apprentices of the Plumbing & Pipefitting
Industry of the United States and Canada,
AFL-CIO. Case 7-CA-12659 -
14 December 1984
SECOND SUPPLEMENTAL DECISION
' AND 'ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 27 June 1980 the National Labor -Relations
Board, on remand from the United States Court of
Appeals ' for the' District of Columbia,' issued 'a
Supplemental Decision and Order in this proceed-
ing, 3 reaffirming its prior Dëcision and Order3
finding, inter alia, that the Respondent, A-1 Fire
Protection,- Inc. (A-1) and Corcoran Automatic
Sprinklers, Inc. (CAS), also referred to as "Corco-
ran," did not violate Section 8(a)(5) and (1) of the
Act by refusing to apply the 1975-1977 collective-
bargaining agreëment between CAS and the Union
to employees of A-1 and/or by transferring unit
work from CAS to A-1.4
On 27 April 1982, on the Union's petition for
review of the Board's Supplemental Decision and
Order, the court of appeals again remanded the
case to the Board, specifically "for explanation and
application of the proper legal standard" on the
transfer-of-work allegation. 8 On 4 August 1982 the
Board accepted the court's remand and notified the
parties that they could file statements of position
on the issues raised by the remand. On 14 February
1983 the Board, after considering the statements of
position, the court opinions, and the entire record,
issued an Order remanding the proceeding for a
further hearing before Administrative Law Judge
Phil W. Saunders. 8 The Board's Order directed the
1 Road Sprinkler Fitters Local 669 v NLRB, 600 F 2d 918 (1979)
2 250 NLRB 217
5 233 NLRB 38 (1977)
4 The court of appeals had remanded the 8(a)(5) portion of the case for
a fuller explication of the Board's rationale in dismissing the 8(a)(5) alle-
gations At the same time, however, the court affirmed the Board's find-
ing that the Respondent violated Sec 8(a)(3) and (4) by discharging
and/or refusing to hire Michael Nunn, and It enforced the Board's Order
in that regard.
5 676 F 2d 826 (1982) Regarding the extension-of-contract allegation,
the court found that the Board's supplemental decision stated satisfactory
grounds for finding that the Union had no "Independent" statutory right
to have its contract with CAS extended to A-1 The court cautioned,
however, that its affirmance of the Board on this issue "must be read nar-
rowly" and that the extension of the CAS contract to A-1 might still be
warranted as a - "prophylactic remedy" for the Respondent's violation of
another statutory obligation Id at 830
6 Not published in Board volumes
judge to make findings of fact concerning, but not
limited to, certain questions specified in the Order,
and to issue a supplemental decision limited to find-
ings of fact on the issues raised by the court's
remand.
On 26 July 1982 Administrative Law, Judge Phil
W. Saunders issued the attached supplemental deci-
sion. The Respondent filed exceptions and a sup-
porting brief, and the Union filed a brief in opposi-
tion to the Respondent's exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the supplemental deci-
sion and the record in light of the exceptions and
briefs and has decided to affirm the judge's rulings
and findings. 7 Based on those findings, described
below, the Board makes the following further find-
ings and conclusions, and issues the following Sup-
plemental Order.
As indicated above, the -Board in its supplemen-
tal decision concluded that the Respondent did not
violate Section 8(a)(5) and (1) by refusing to extend
the CAS contract to A-1 or by transferring work
from CAS to A-1. Regarding the transfer-of-work
allegation, the Board, although noting that the
work .of CAS has decreased while that of A-1 had
increased during 1975 and 1976, relied on its previ-
ous findings that the Union was aware of A-1's ex-
istence as early as January 1975 and had assented
to the Respondent's use of CAS employees for A-1
jobs; and that no jobs bid for and performed by
CAS were transferred to A-1. 8 Regarding the ex-
tension-of-contract allegation, the Board again
relied on its previous findings that the Union had
"assented, however grudgingly, to the Respond-
ent's 'double-breasted' operations and that the
Union had 'acquiesced' to the existing conditions
during the negotiations for the 1975 CAS con-
tract." The Board thus found that there was a
voluntary agreement on a bargaining unit limited in
scope to the CAS employees and that the Union
therefore did not have any statutory right to repre-
7 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 Or 1951)
We have carefully examined the record and find no basis for reversing
the findings
s 250 NLRB at 219 The Board relied on the absenee of evidence of
deception or transfer of work to distinguish the Instant case from Burgess
Construction, 227 NLRB 765 (1977), enfd 596 F 2d 378 (9th Cir 1979),
which was cited by the General Counsel
9 Id at 221
273 NLRB No. 124
A-1 FIRE PROTECTION

965
sent or otherwise have its contract extended to A-1
employees.10
Reviewing the Board's disposition of the trans-
fer-of-work allegation, the court observed that the
Board still had not confronted the central issues
raised by the Union's claim, which the court set
forth as follows: "[W]hether Corcoran changed the
scope of CAS' activities or changed the method of
allocating work between CAS and A-1 so as to
have caused the CAS bargaining unit to lose work
which, in light of Coicdran's past practices, CAS
would otherwise have been expected to per-
form." 11 The court'Idund in this regard, that in
neither of its decisions', had the Board made any
findings as to the actual Prictices by which the Re-,
spondent solicited work for CAS and A-1, nor had
the Board "confronted;th-e AL's conclusion, based
in part on credibility , determiriations left undis-
turbed by the Board, that Corcoran' did indeed dis-
turb the status quo . . . by `chang[ing] -work ar-
rangements' so as to divert wOrk from CAS to' A-
r,12
Thus, in remanding the idale fo the Board for the
second time, the court included' the following spe-
cific instructions: = • : -2 " •,
The Board .shoulddeterriiine whether Corco-, „
ran engaged in conduct that 'deprived CAS of
work which, in light of Cdrcoran's past prac-
tice, CAS would otherwise have been expect-
ed to perform. If the Board finds that Corco-
ran did engage in 'such , Conduct, it should
either apply the "clear 'and -unmistakable"
, standard to test whether the 'union agreed to
that 'conduct, or explain why 'a different stand-
ard' is appropriate. If it 'concludes that there
was an unwaived denial of the union's statuto-
ry rights, it should devise an appropriate
remedy, which may, if warranted, include ex-
tension of the CAS collective-bargaining
agreement to employees of A- 1.13
The court made several additional points for the
Board's consideration on remand. It stated that the
absence of evidence, that the Respondent .engaged
in deception or misrepresentation in obtaining work
for A:1 should not be dispositive; 14 that the
'I ° Id at 220 Then-Chairman Fanning, dissenting,- found that the
Judge's factual findings—which were undisputed by the majonty—sup-
ported the conclusion that the Respondent•employed its double-breasted
operations in a manner. which unlawfully undermined the CAS bargain-
ing unit Thus relying, Inter aim, on dredited statements by the Respond-
ent indicating an intent to "phase out" CAS, the former Chairman ob-
served that although the Union may have consented—after the fact—to
the Respondent's double-breasted operations, "it certainly did not consent
to the one It got" 250 NLRB at -222 .
" 676 F 2d at 831-832
12 Id at 833-834
13 Id at 834
' 4 Id at 833
Board's reliance on .the absence of evidence that
the CAS unit ceased to exist was not consistent
with precedent; 15 and that the transfer-of-work al-
legation was not so narrow as to encompass only'
work already awarded to CAS and later reassigned
to A-1. 1 6
- As indicated above, -after accepting the remand
and receiving statements of position from all of the
parties, the Board found that a further hearing was
necessary .to resolve the issues of fact raised by the
court's remand. In its Order remanding the case to
the judge, the Board included directions for the
judge to make findings of fact concerning, but not,
limited to, the following:
[W]hether CAS bid only on jobs requiring
union labor or also bid on other jobs; if the
latter, on what basis did Corcoran submit bids
from CAS rather than from A-1; whether,
during 1975, Corcoran stopped submitting bids
from CAS or continued to submit bids but was
no longer suácessful; whether A-1 performed
any work originally bid from and awarded to
CAS; and whether A-1's performance of work
for former customers of CAS occurred at the
suggestion of , such customers or of Corcoran.
The Board also stated that the parties would be
permitted to adduce evidence at the hearing about
relevant events that occurred since the August
1976 hearing, including the alleged cessation of op-
erations by CAS.' 7
In his supplemental decision the judge stated that
he found nothing in the remand hearing to change
his initial findings that the Respondent "changed
work arrangements so as to reduce the amount of
work for the employees of [CAS] and that since
early 1975 George Corcoran operated A-1 with the
apparent purpose of ultimately dissolving [CAS]."
The judge reiterated his previous findings, which
were based . on credibility resolutions, that in the
fall of 1975 Corcoran stated, inter alia, that he gen-
erally only laid off union members but that non-
union members of A-1 were never laid off; that he
would shortly "phase out" CAS and that A-1
would take over the sprinkler work; and that in a
6-month period there would be less people working
for CAS. The judge also reiterated his findings,
inter alia, that in 1976 CAS obtained only one job;
A-1 had , begun performing installations for former
customers of CAS; and the Alma College job,
15 Id at 834 fn 21 The court also indicated, in this regard, that the
Board was "free to decide in the first instance whether anything in our
present opinion should cause it to allow the record to be reopened" Id
at . 829 fn 10
"6'Id at 833 fn 19
" See fn 15 above -
966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which had been transferred from A4 to CAS, was'
retransferred back to A-1 immediately after the
Union filed the instant unfair labor practice charge:
The judge further noted Corcoran's 15 November
1975 letter to the Union rejecting the Union's re-
quest that A-1 be covered by the contract, in
which Corcoran stated that A-1 was - performing
"the small jobs that were being done by other com-
pany's then sprinklers company's [sic]."
The judge found, -based on the new evidence ad-
duced on remand, that the' bidding process Under
which the Respondent obtained all of its sprinkler,
installation jobs was open to union and nonunion
contractors alike; that union sprinkler contractors
sometimes obtained jobs through direct subcon-
&acting with nonunion general contractors; and
that nonunion sprinkler contractors sometimes' ob-
tained jobs directly from union general contractors.
The judge thus found that there were no market
conditions requiring the Respondent to "phase out"
CAS and no external economic circumstances man-
dating the takeover of work by A-1. The'_judge
also found that after performing only two "signifi-
cant" jobs in 1975 A-1 performed 24 job's in 1976, 8
of which were for a subkantial amount of money
and 7 of which were for former cnstomers of CAS,
while CAS obtained only 1 or 2 small jobs in 1976
and by November i976 was inactive. •
The judge rejected each of the Respondent's ex-
planations for ceasing to bid jobs for CAS in No-
vember 1976 and thereafter bidding solely for A-1.
Regarding the asserted lack of employees, the
judge. found that CAS had no employees because
the Respondent had laid them off and never called
the Union or otherwise advertised for new CAS
employees. Regarding the alleged "harassment" by
the Union, the judge found that the Union peace-
fully picketed only A-1 jobs, not CAS jobs,, and
that the Union took internal disciplinary actions
only against union members who worked with non-
union A-1 employees in violation of the Union's
bylaws. The judge also found that the Respond-
ent's reliance on A-1's lower labor costs was un-
dermined by the fact that A-I also performed "pre-
vailing wage" jobs which required payment of the
union wage scale.
The judge also made factual findings on the issue
of whether the Union agreed to a diversion .of unit
work or waived, its _rights, if any, to protest the di-
version of work: . from CAS to A-1. The , judge
found that the 1915 CAS contract did not reflect
any such agreement or waiver inasmuch as it pre):
hibited "any sale [or] transfer . . . to evade the
terms of this agreement" and further prohibited sig:
natory contractors from subcontracting unit work
to nonsignatory contractors. The judge further
found no evidence that the' subject of transferring
or diverting unit work was discussed during the
1975 or' 1977 contract negotiations.
In 'answer to the specific qiiestions . contained in
the Board's remand "order ; the judge found that
until late 1975 CAS performed all jobs of signifi-
cant size; that CAS did no*i bid on nonunion jobs;
that in 1975 CAS 'still 'su_btnified numerous bids, but
froth about mid-1975 . Onwaid A-1 took over more
and more of the ke§pdrident's .installation work
until the Respondent' completely stopped bidding
for CAS in NoVernber*:1-9761`that in addition to _re-
tiansferring the Alnia COlfege , job from CAS to
A-1 the Respondent obtained another job for A-1
by submitting a lower- 6i4 than for CAS; ' and that
there was no evidence - that aiiy,CAS customers ex-
pressly requested bids froA1'i
Finally, regaiding the kesPondent's contention
that it had ,not been shoWn that any work per-
formed by A-1,would have been awarded to CAS
if A-1 had not bid on it, the—judge found that CAS
would have obtained__ some jobs, at least from its
former customers, had, A-1- not bid., In so finding,
the judge relied, inter , alia, on the Respondent's
statements and conduct, described above, as show-
ing . hostility "toWafd -..th6 *Union, and on evidence
that other union -coritradtOrs were successful in ob-
taining jobs in Competition With nonunion contrac-t - • f,tors.
Applying the' coUrt:s, opinion as the law of the
case, and based _ -on the judge's factual findings,
with whiCh we agree; We find that the Respondent
deliberately diverted .unit work from CAS to A-1
in violation of Section ,8(a)(5) and (1). 18 As formu-
lated by the cOurt, the allocation of work to a bar-
gaining unit is a' term ,Or condition of employment
which cannot be changed without bargaining with,
or waiver by, ,theemployees' _collective-bargaining
representative.. We are now persuaded, based on
the judge's factual' 'findings, that the Respondent
unilaterally Changed its method of allocating work
between 'CAS and A-1 'so as' to have caused the
CAS unit to- lose work which it otherwise would
have performed.
We particularly rely' on the judge's findings- that
the change in the , relative economic fortunes of
CAS and , A:1 , was not 'due' to - external economic
circumstances; but rather was. due to a change in
the 'Respondent's bidding practices. As found by
18 Although we note that the 1973 collective-bargaining agreement be-
tween CAS and the Union was a Pprelure" contract, for the purposes of
this decision we find it unnecessary to :pass -on the effect of Sec J(f) on
the Union's status as collective-bargaining representative at the time of
the alleged unlawful diversion of unit work We further note that the
Board's previous disposition of this Issue is not within the scope of the
court's remand
A-1 FIRE PROTECTION 967
the judge, from its inception in 1973 to the fall of
1975, CAS was a successful union firm performing
sprinkler installation jobs of significant size, while
A-1 primarily was performing inspections, repairs,
and some small installation jobs. From about mid-
1975 onward, however, while it was still bidding
jobs for CAS, the Respondent was now bidding
and obtaining more and larger installation jobs for
A-1, including from former customers of CAS,
until it eventually stopped bidding altogether for
CAS.
As the judge recognized, these changes in the
Respondent's bidding practices must be considered
in the context of the Respondent's statements and
conduct in late 1975-early 1976 which indicate a
deliberate intent to divert work from CAS to A-1.
In this regard, we particularly note Corcoran's
statements in November 1975 that he would "phase
out" CAS and have A-1 take over the sprinkler
work and that in 6 months there would be fewer
employees working for CAS. We also rely on Cor-
coran's conduct in retransfernng the Alma College
job from CAS to A-1 after the instant charge was
filed in January 1976.
Further, unlike in the Board's prior decisions in
this proceeding, we view the Respondent's Novem-
ber 1975 letter to the Union as indicating an ele-
ment of deception in the Respondent's use of A-1.
In that letter the Respondent advised the Union
that A-1 was performing small jobs other than
those done by sprinkler companies, while at that
time A-1 was beginning to perform more and more
of the kinds of jobs previously performed only by
CAS. Moreover, Corcoran's letter was in response
to the Union's request that A-1 be covered by the
CAS contract on the grounds that it was perform-
ing unit work. Thus, it appears that the Respondent
deliberately was attempting to mislead the Union as
to the true nature of A-1.19
Having found that - the Union had a statutory
right to bargain about the Respondent's diversion
of unit work from CAS to A-1, we turn now to the
question of whether the Union waived its bargain-
ing rights. In Metropolitan Edison Co. v. NLRB,2°
the Supreme Court reaffirmed the longstanding
principle that a waiver of statutory rights must be
"clear and unmistakable." 21 The Court also recog-
nized that 'assessing the clarity of a waiver required
consideration of the specific circumstances of each
case. 22 Considering the specific circumstances of
19 We therefore find that the instant case is more akin to Burgess Con-
strucuon, above, than we initially believed
20 460 US 693 (1983)
2 ' Id at 1477
22 Id at 1478
the instant case, we find that the Union did not
clearly and unmistakably waive its statutory right
to bargain about the diversion of unit work from
CAS to A-1.
In this regard, we particularly rely on the
judge's finding that the 1975 collective-bargaining
agreement between CAS and the Union explicitly
prohibited "any transfer . . . to evade the terms of
the agreement." Moreover, it is undisputed that the
subject of diversion of work was not raised, let
alone discussed, either at the 1975 negotiations
which resulted in a contract or at the 1977 negotia-
tions which did not. Finally, although the Union
may have assented to Corcoran's January 1975 re-
quest that employees of CAS be allowed to work
for A-1, there is no support in the record for find-
ing that the Union agreed at that time, or at any
other time, to what amounted to the wholesale di-
version of unit work from CAS to A-1 until CAS
ultimately became inactive.
Based on all of the above, we conclude that the
Respondent's failure and refusal to bargain regard-
ing the transfer or diversion of unit work from
CAS to A-1 was violative of Section 8(a)(5) and
(1). Accordingly, we vacate our 27 June 1980
Order dismissing the 8(a)(5) and (1) -allegations of
the complaint, and we shall issue the appropriate
remedy for the violation found herein.
THE REMEDY
Having found that the Respondent violated Sec-
tion 8(a)(5) and (1) by failing and refusing to bar-
gain about the diversion of unit work, we shall
order the Respondent to cease and desist from uni-
laterally diverting work without providing the
Union an opportunity to bargain thereon. 2, 3 In
order to ensure that genuine bargaining takes place
regarding any diversion of unit work, we shall
order the Respondent to restore the status quo ante
by resuming bidding jobs for CAS in the same
manner as it bid jobs for CAS prior to the unlawful
diversion of unit work. We also shall order the Re-
spondent to make whole former CAS employees
for any losses of earnings and other benefits result-
ing from the unlawful diversion of unit work."
23 We also find that the broad injunctive language "in any other
manner" is appropriate in view of the court of appeals' affirmance of the
Board's Order in 233 NLRB 38 insofar as it remedied the 8(a)(3) and (4)
violation and included the same injunctive language
24 Any determinations necessitated by this remedy shall be left to com-
pliance
Member Hunter, however, would not provide a make-whole remedy in
light of the evidence adduced on remand indicating that the CAS em-
ployees employed at the time of the diversion of work were not laid off
but rather voluntarily quit their employment, and there is no allegation of
unlawful constructive discharge
968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Backpay shall be computed in the manner pre-
scribed in F. W. Woolworth Co., 90 NLRB 289
(1950), plus interest as computed in Florida Steel
Corp., 231 NLRB 651 (1977).25
We, however, do not find it appropriate here to
order the exteh .sion of the CAS collective-bargain-
ing agreemeni to the employees of A-1 as a . "pro-
phylactic" remedy or otherwise. The 1975 collec-
tive-bargainind agreement expired in 1977 without
a successor agreement having been reached. More-
over, as we previously have found, and the court
of appeals has affirmed, CAS and A-1 did not con-
stitute a single -appropriate unit although they con-
stituted a single employer." In these circum-
stances, we find that the order provisions described
above Will adequately and fully remedy the viOla-
tion found herein.
ORDER
The National Labor Relations Board orders that
the Respondent, A-1 Fire Protection, Inc., and
Corcoran Automatic Sprinklers, Inc., Clio, Michi-
gan, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Refusing to bargain collectively with Road
Sprinkler Fitters Local 669, United Association of
Journeymen and Apprentices of the Plumbing &
Pipefitting Industry of the United States and
Canada, AFL-CIO by diverting unit work from
Corcoran Automatic Sprinklers, Inc. (CAS) to A-1
Fire Protection, Inc. (A-1) without affording the
Union an opportunity to bargain thereon.
(b) In any other 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 neces-
sary to effectuate the policies of the Act.
(a) On request resume bidding jobs for CAS
under bidding practices as they existed prior to the
unlawful diversion of unit work.
(b) Make whole former CAS employees for any
losses of earnings and other benefits resulting from
the unlawful diversion of unit work, in the manner
set forth in The Remedy section of this decision.
(c) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards. personnel records and reports,
25 See generally Isis Plumbing Co, 138 NLRB 716 (1962)
Cf Burgess Construction, 227 NLRB 765 (1977), in which the
Board's remedy provided for the extension of a still-current collective-
bargaining agreement to the nonunion side of a double-breasted operation
which was found to constitute a single appropriate unit Also cf Appa-
lachian Construction, 235 NLRB 685 (1978), in which a single employ-
er/single appropnate unit finding provided support for the Board's exten-
sion-of-contract remedy
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(d) Post at its facility in Clio, Michigan, copies
of the attached nofice marked "Appendix."2_7
Copies of the notice, on forms provided by the ae-
gional Director for Region 7, after being signed by
the Respondent's authorized representative, shall be
posted by the Respondent immediately upon re-
ceipt and Maintained for 60 consecutive days in
conspicuous places including all places ,where no-
tices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent 'to
ensure that the notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
27 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the nonce reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board"
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.
WE WILL Not -refuse to bargain collectively
with Road Sprinkler Fitters Local ,669, United As-
sociation of Journeymen and Apprentices of the
Plumbing & Pipefitting Industry of the United
States and Canada, AFL-CIO by diverting unit
work from Corcoran Automatic Sprinklers, Inc. to
A-1 Fire Protection, Inc. without affording the
Union an opportunity to bargain thereon.
WE WILL NOT in any other manner interfere
with, restrain, or ,coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE _WILL, on request, resume, bidding jobs for
CAS under bidding practices as they existed prior
to the diversion of unit work from CAS to A-1.
' WE WILL make whole former CAS employees
for any losses of earnings and other benefits result-
A-1 FIRE PROTECTION 969
ing from the diversion, of ,unit work, less any net
interim earnings, plus interest.-_
r„
-A-1 FIRE. PROTECTION, INC., AND
CORCORAN AUTOMATIC SPRINKLERS,
INC.
SUPPLEMENTAL DECISION
PHIL W. SAUNDERS, Administrative Law Judge. This
matter has -considerable background and history' and,
therefore, -I will outline below some of the major proce-
dural and factual aspects of this prolonged dispute.
Based on an original charge filed on January 13, 1976,
by Road Sprinkler Fitteri Local 669, United Association
of Journeymen and Aiiprentices of the Plumbing & Pipe-
fitting Industry of the United States and 'Canada, AFL-
CIO (Loöal 669, the Charging Party, 'or the Union) an
amended complaint against Corcoran AutorriatiC Sprin-
klers, Inc. (Rdsporident, Corcoran, or CAS),' 'and A-1
Fire Protection Inc. (A-1),-'and- collectively called Re-
spOndents or Employer, was issued on May 18, 1976, al-
leging violations of Section 8(a)(1), (3), (4), and (5) of the
National : Labor Relations-Act.
' In 1973, às- the records, Board, and court decisions in
this case duly reflect, George Corcoran formed two cor-
porations, CAS and A-l;-to install fire sprinklers: Corco-
ran intended to carry on a "double-breasted" operation,
which would allow the 'nonunion Company, A-1, to bid
on installation jobs that did not require union contrac-
tcirs, and 'allOws CAS to' bid on -jobs that required union
contractors.' Soon after the- corporations were formed,
Corcoran, the owner and president of both "cOfporations,
entered into a contract with Local 669 covering CAS's
employees who install and maintain fire protection sys=
terns. ,The Union was not aware of the existence of A-1
when it signed the CAS contract. Later that year, how-
ever, Roy -Pantall; • then- Local '669's business agent,
learned of A-1 , and advised 'George Corcoran that .A-1
could not bid on nonunion work because such work be-
longed to the Union and CAS.
In 1975, A-1 began hiring employees to install and
maintain fire protection systems and, in January 1975,
George 'Corcoran told Roy Pantall that he was forced to
lay off CAS .employees, but could hire them to work for
A-1. After Pantall grudgingly assented to this arrange-
ment, Corcoran employed, a few men to work for A-1
and, although Corcoran paid them union scale wages, he
1 A "double-breasted" operation is one in which a contractor operates
two companies, one unionized and the other nonunionned Depending on
how the companies are structured and operated, each may be a separate
corporation or else both may be, so interrelated that they constitute a
single employer, or one may be the alter ego of the other . A collective-
bargaining contract signed by one of the companies would not bind the
other if each were a separate corporation, but would bind the other if
both constitute a single employer , and the employees of both companies
constitute a single ,appropriate bargaining unit or the nonsignatory com-
pany is an alter ego of the signatory company Associated General Con-
tractors of California, 242 NLRB 891, 892 fn 5 (1979), enfd as modified
633 F 2d 766 (9th Cir 1980), cert denied 452 U S 915 (1981), Burgess
Construction, 227 NLRB 765, 770-771, 773-774 (1977), -enfd 596 F 2d 378
(9th Cu. 1979), cert denied 444,U S 940 (1979)„ George C Shearer Ex-
hibitors Delivery, 262 NLRB 622„ 623-624 (1982), enfd mem 714 F 2d
124 (3d Cir 1983)
did not compensate them for union benefits. Later in the
same month, Pantall left his position as business agent for
a new job with the Union.
In' late April 1975, Michael Johnson became the new
union business agent. On May 1, 1975, George Corcoran
entered into a second contract with Local 669 covering
CAS employees, but before .signing the agreement, the
Union did not request that the contract cover A-1 or its
employees. Johnson later testified that Pantall had not
told him that A-1 was only engaged in installation work.
However, by late fall it was apparent that the Union had
some knowledge that A-1 was operating as a nonunion
company installing fire protection systems. In November
1975, the Union demanded that CAS and A-1 employees
be treated as a single bargaining unit, and that the 1975
collective-bargaining agreement be applied to A-1.
Based on an original charge filed on January 13, 1976,
as aforestated, a hearing was held before me on August 2
and 3, 1976, on 8(a)(1), (3), (4), and (5) allegations con-
tained in the amended complaint. On December 28, 1976,
I issued a decision holding that the refusal to recognize
the Union as the collective-bargaining representative of
all employees, and the transfer of work from CAS to
A-1, violated Section 8(a)(5) of the Act. I also found that
CAS and A-1 formed a single employer for collective-
bargaining purposes; that George Corcoran had changed
work assignments to reduce th'e amount of work for
CAS; and that the sprinkler fitters of CAS and A-1 to-
gether formed a single appropriate bargaining unit. I fur-
ther held that the Union had not engaged in any actions
that would, by. estoppel or waiver theories, forestall a
finding that the Employer violated Section 8(a)(5). Final-
ly, I found that the Employer had violated Section
8(a)(3) and (4) of the Act by refusing to hire Michael
Nunn in retaliation for the Union's filing of an unfair
labor practice charge
An appeal of this decision was then taken to the Na-
tional Labor Relations Board, and on October 18, 1977,
the -Board issued its decision dismissing the 8(a)(5) viola-
tions, but affirming findings of 8(a)(3) and (4) violations.2
Timely appeals and cross-appeals were then filed with
the United States Court of Appeals for the District of
Columbia by all parties. On April 11, 1979, the court of
appeals' decision issued, 600 F:2d 918 (D.C. Cir. 1979),
and the court's decision affirmed the finding of the
8(a)(3) and (4) violations, but remanded the 8(a)(5) viola-
tions back to the Board for further consideration on the
questions of refusing to bargain and in the extension of
the terms of the CAS contract with the Charging Party
2 The Board accepted my findings 'of fact' and also affirmed the hold-
ing that the refusal to hire Michael Nunn violated Sec 8(a)(3) and (4) of
the Act A-1 Fire Protection, 233 NLRB 39 fn 2 (1977) The Board held,
however, that the Employer did not violate Sec 8(a)(5) either by refus-
ing to extend the terms of the CAS collective-bargaining agreement to
A-1 or by transferring work from CAS to A-1 The Board held that the
Union had, by, its pnor actions, given up the right to demand that the
CAS agreement apply to A-1 workers Specifically, the Board decided
that the parties had not intended the 1975 agreement to ,cover A-1 em-
ployees and that the Union, "at least inferentially, stipulated as to the ap-
propriateness of the unit" with respect to my, conclusion that Corcoran
violated Sec 8(a)(5) by transfernng the work from CAS to A-1, the
Board stated that Corcoran was free to use CAS or A-1 in any fashion he
saw fit, and that the Union had accepted the "double-breasted" situation
970

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to cover and include A-1 and its employees and the
transfer, bidding, and/or subcontracting of work or jobs
from CAS to A-1 so as to reduce the amount of bargain-
ing unit work under the contract.
On June 27, 1980, the Board, on remand from the
United States Court of Appeals for the District of Co-
lumbia, issued its Supplemental Decision and Order3
reaffirming its prior Order in which it, inter alia, dis-
missed the allegations in the complaint that Respondents
had violated Section 8(a)(5) and (1) of the Act by trans-
ferring work from CAS to A-1 and by refusing to apply
the 1975 collective-bargaining agreement between CAS
and the Union to employees of A-1. 4 Thereafter, the
Charging Party petitioned the court of appeals for
review of the Board's Supplemental Decision and Order,
and on April 27, 1982; the court ordered a second
remand limited to the transfer-of-work issue.
In its second opinion, dated April 27, 1982, the court
of appeals found that the Board still had not "confronted
the central issues_ raised by [the Union's] claim that [Re-
spondent's owner] Corcoran unilaterally transferred
work from CAS to A-1 without fulfilling his statutory
duty to bargam. 3 The court further stated that under the
traditional test of whether work has been transferred
away from a bargaining unit, "the proper question in this
case, leaving aside a possible 'waiver' by the -union,
would seem to be whether Corcoran changed the scope
of CAS activities or changed the method of allocating
work between CAS and A-1 so as to have caused the
CAS bargaining unit to lose work, which in light of Cor-
coran's past practices, CAS would otherwise have been
expected to perform," and in this regard, the court of
appeals found that the Board had not made any findings
as to the actual practice by which work was solicited
for, or assigned to, CAS and A-1. Furthermore, the
court found that the Board had not "directly confronted
the [Administrative Law Judge's] conclusion, based in
part on the credibility determinations left undisturbed by
the Board," that Corcoran had altered the status quo
"by chang[ing] work arrangements' so as to divert work
from CAS to A-1 that CAS would otherwise have per-
formed." 7 Further, concluding that a union may forgo its
right to bargin about a transfer of unit work only by
"waiver," and not by "acquiescence," the court found
that the Board did not apply the traditional "clear and
unmistakable" waiver standard or explain why a different
standard was- appropriate. In remanding this case for the
second time to the Board, the court of appeals specifical-
ly directed the following:
The Board should determine whether Corcoran en-
gaged in conduct that deprived CAS of work
3 250 NLRB 217
In finding that Respondents had not violated Sec 8(a)(5) by transfer-
ring work from`CAS to A-1, the Board, although noting that the' work of
CAS had decreased while that of A-1 had increased, again relied on the
Union's knowledge of Respondent's double-breasted operations, on the
absence of evidence -that jobs "bid for and performed by CAS were
transferred to A1", and on the absence of evidence that Respondent's
use of the related companies involved deception or misrepresentation
676 F 2d at 832
6 676 F 2d at 831-832 •
676 F 2d at 833-834
which, in light of torcoran's past practice, CAS
would otherwise have been expected to perform. If
the Board finds that Corcoran did engage in such
conduct, it should either apply the "clear and un-
mistakable" standard to test whether the union
agreed to that conduct, or explain why a different
standard is appropriate. If it concludes that there
was an unwaived denial of the union's statutory
rights, it should devise an appropriate remedy,
which may, if warranted, include the extension of
the CAS collective-bargaining agreement to em-
ployees of A-1.8
The Board, having duly Considered the court's second
opinion, the parties' statement of position, and the entire
record in this proceeding, found that its disposition of
the instant case would be facilitated .by further hearing
with , regard to the specific issues of fact raised by the
court's second remand. Accordingly, by order dated
February 14, 1983, the Board directed that this proceed-
ing be reopened and that a further hearing be held before
an administrative law judge for the , limited purpose of re-
ceiving evidence as to the issues of fact raised by the
court's remand , and on which the administrative law
judge shall make findings 'of fact concerning, but not lim-
ited to, the following: whether CAS, bid only on jobs re-
quiring union labor or also bid on other jobs—and if the
latter on what basis ,did Corcoran submit bids from CAS
rather than from A-1; whether, during 1975, George
Corcoran stopped submitting- bids from CAS or contin-
ued to submit bids but was no longer successful; whether
A-1 performed any work originally bid from and award-
ed to CAS; and whether A-1's performance of work for
former customers of CAS occurrred at the suggestion of
such customers or of Corcoran It was further ordered
that upon conclusion of such hearing, the administrative
law judge shall prepare and serve on the parties a sup-
plemental decision limited to findings of fact with respect
to the issues on remand.
In accordance with the above, the reopened hearing
was held before me on February- 22, 23, 24, and on
March 21 and 22, 1984, and at the hearing considerable
latitude was permitted in the introduction of 'testimony
and exhibits for possible considerations by reviewing au-
thorities, but for my purposes I will only consider related
testimony and evidence pertaining to findings of fact on
the five issues and questions specifically directed and
outlined by the Board, as aforestated.8
8 676 F 2d at 834
9 The Board noted in its Order Remanding Proceeding to the Adminis-
trative Law Judge (fn 8), the following
" After the court's first remand, the UniOn filed a motion to reopen
the record for the purpose of introducing evidence to show that,
within three months of the close of the 1976 hearing, CAS' oper-
ations were totally discontinued and all of its unit employees were
terminated The Board denied the Union's motion as untimely in its
Supplemental Decision and Order, 250 NLRB 217, fn 3 Since we
are reopening the record for further heanng as to the issues of fact
raised by the court, and since the court has indicated that the Board
has discretion in reopening the record, 676 F 2d at 829, fn 10, we
shall permit the parties to adduce evidence as to relevant events that oc-
curred after the 1976 hearing, including the 'alleged cessation of oper-
ations by CAS [Emphasis added ]
, A-1 FIRE PROTECTION

971
In the remand , hearing ,the Charging Party called
George Corcoran to the stand, and through him solicited,
testimony to' the effect 'that in ,1976 CAS was still a sig-
natory to a bargaining agreement with the Union," but
that CAS, other ,than finishing a few remaining jobs, has
not done any active work or business since November
1976, stated that during the period ,when both of his
companies were active, he submitted the estimates and
the competitive bids on all work, and 'did. so for either
company, testified that the kind of work that both per-
formed is the same, that' if a contractor asked him to bid
nonunion, he bids nonunion, and frequently A-1 (the.
nonunion company) bids directly against union contrac-
tors or companies for sprinkler installation work and
sometimes A-1 wins out, and at other times the union
competition is successful as the low bidder.
Corcoran ., further . testified that some of the work A-1
performs is subject to either Federal or 'state funds, and
on those jobs he has to pay prevailing rates (equivalent
to the union scale)." Corcoran agreed, that- Wares &
Sons Plumbing and. Heating Company is a union mechni-
cal contractor,. and , he deals with . thern„through A-1.
Moreover, that he also dealt with union contractors
Arms & Cole and A131, Inc., and did business with them
through A-1 on a nonunion basis. - -
The Charging Party introduced testimony through
Robert Claflin to the effect that Claflin's employer, B. L.
Harroun Company, sells, repairs, and installs sprinkler
fire systems in the area and operates under a union con-
tract with Local .669. Claflin testified that on occasions
his employer also competed against nonunion companies
including A-1—that one such job in mid-1983 involved
an exhibition building at the Kalamazoo Fair Grounds
and that B. L Harroun Company was awarded this job
as the party or builder involved wanted a union contrac-
tor Claflin further testified that his employer also com-
peted in 1981 , and 1982 against A-1 on several other
projects, but on these jobs lost the bids," Claflin further
testified that his employer has done repair work on a job
initially installed by A-1Welch Food in Lawton,
Michigan
Gordon Timm testified for, the Charging Party that he
works for Viking Fire Protection—a sprinkler contractor
signatory to a bargaining agreement with Local 669, and
that Viking competes for sprinkler jobs against .A-1. .
Timm testified that on the job for Meijer-Lansing,
about 1983, 12 sprinkler contractors were involved in the
bidding, and that A-1 was 1 of the 2 nonunion sprinkler
companies submitting bids. , Timm stated that on the
Meijer Medical Center job, and also a project on which
his company bid, A-1 was the low bidder among all the
other union contractors.
Reference was made to a sprinkler job for Haworth,
Inc. in 1983, and there was testimony by Timm that A-1
1 ° The last contract between CAS and the Union was signed in 1975,
but this was a 2-year contract which renewed itself automatically unless
notiCe of cancellation was given
" See C P Exh 9
12 Planewall Paper, Charlevoix., Hospital, Meadow Brook Medical
Center, Welch Food, and 'Marianne Shops in Traverse. City He also
stated that his company and A-1 bid on a Musaski job in Battle Creek,
but that Midwest, a union contractor, was awarded this job
was also involved in this bidding, and the only other
nonunion contractor bidding was -Vander Wall Fire Pro-
tection, and that the same applies to a 1981 job in Grand
Rapids involving Baker, Knapp & Tubbs, Inc.—where
A-1 and Vander Wall were the only nonunion contrac-
tors bidding.' 3 ,
Timm further testified as.to a job or jobs relating to
McCarthy Brothers Company and the bidders involved,
and stated that A-1 was the only nonunion bidder." He
also testified that, on a Baker,- Knapp & Tubbs' job, only
A-1 and Vander Wall were nonunion bidders."
The ,Charging Party also introduced testimony
through Timm to the effect that if a management- person
(under a union contract) went out on a job and worked
"with the tools" and installed,a sprinkler system, that the
bargaining agreement, would, then .require fringe benefits
contributions. Timm further , stated that- his company
Viking File was asked in 1983 to inspect and repair a
sprinkler system job (Hope College in Holland, Michi-
gan) that had been installed by A-1.'6
Jack Leadbetter testified that he is employed in the
sprinkler business by ,Safeguard of Marquette, Inc. as its
president, and -that he has a bargaining, relationship and
contract with Local 669. Leadbetter stated that he sub-
contracts work from both union and nonunion contrac-
tors,. and that sometimes his company, as the low bidder,
is the only union trade on an otherwise nonunion con-'
auction site. Leadbetter further testified that on several
occasions within the last year his 'company, has submitted
bids against A-1—on Aircraft- Organization Building at
K.I. Sawyer Air Force Base; 'Douglas, Hollis elderly fa-
cility in Houghton,. Michigan; Houghton National Bank
in Houghton; and also stated that some years ago his
company bid on a Bayne City High School and Sheboy-,
gan. Opera House remodeling job in competition with
A-1. He testified that A-1 was the successful bidder on
the Houghton -National ,Bank job, but on some of the
other jobs his company was the , successful,bidder. Lead-
better testified that quite often his company _submits bids
against both union , , and nonunion contractors for the
same job.
The Employer , maintains that George Corcoran had
the right to bid jobs either as A-1, or CAS, and that there
came a time in 1976 when CAS (the union company)
was not allowed to- use union , fitters because the fitters
were warned and harassed by Local' 669 that if they
went to work for A-1, they would not be able to work in
the industry arid, therefore, there came a point in time
when CAS could not bid on any more jobs because it
could not get union sprinkler fitters to work on their
projects, and as. a result CAS ceased bidding jobs at the
end of 1976 (in November).
George' Corcoran testified for' 'Respondents that CAS
is not 'presently active, but it is ;not out of business; that
CAS and A-1 perform the same type of work; and that
" See C P Exh 10(a)
14 See C P Exhs 10(b) and (c) • r
_
15 See C P Exh 10(d) •
16 Timm, who has many years of experience in this business, was un-
aware of any spnnkler contractor in the Jackson, Michigan area with a
similar name to A-1 Fire Protection
972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in early 1977 CAS gave written notice to terminate its
' contract with the Charging Party. In fact, this record re-
veals that negotiations took place with the Charging
' Party in 1977 and that at least- three 'negotiation sessions
took place between the parties. George Corcoran testi-
fied there was agreement and concurrence in most areas
of the contract -with the exception of wages, and at the
last negotiation session the Employer made its final offer
on 'those items that were remaining, but the Union did
' not accept the Employer's offer and no contract was
signed.
George Corcoran testified that commencing with the
latter part of 1975 and continuing through 1976 CAS and
its employees . were the constant recipients of harassment
from the Charging Party. Corcoran testified -that he em-
ployed several Local 669 journeymen fitters on a regular
continuous basis, and identified these employee-members
of Local 669 as Dan Boyce, Pete Ostrander, Phil Young,
and Darrel Ochs, who was his superintendent, plus his
son Francis Corcoran, but stated that once the harass-
ment of CAS and its employees -began, Dan , Boyce, Phil
Young, and Darrel Ochs all quit CAS's employ during
the spring, summer, and fall of 1976. George Corcoran
further testified that his son' Francis Corcoran and Pete
Ostrander were fined after the 'Union filed internal
charges alleging that they were working the nonunion
help.' 7 •
George Corcoran testified that -there came a time
when CAS was not allowed to have union fitters, afore-
mentioned, and that it started in 1975 when Mike John-
son became the business agent. Corcoran stated that the
Union -harassed Dan Boyce while -he was working for
CAS on a job at Central High School in 1975 or '1976.
Francis Corcoran testified that Business Agent Johnson
appeared on - the CAS job at the Grand Blanc High
School job in 'Grand 'Blanc, Miehigan, and also on the
job involving Central High School. Employee Pete Os-
trander also testified that he encountered Mike Johnson
while working for CAS at Grand Blanc High School
and that this instance was the basis for charges being
brought against him, his being fined $500, and being ex-
pelled -from the Union, as aforestated. Ostrander testified
that -his first harassment contact with ,Business Agent
Mike Johnson occurred in late 1975 in _Kalamazoo,
Michigan, at an A & job while he was working for
CAS. He testified Johnson came onto the job and
wanted to see his book, and then began asking- him ques-
tions regarding his travel pay and travel allowance.' 8
" It appears that Pete Ostrander was "fined $500 and Francis Corcoran
was fined $5000 and each of them was expelled from the Union Howev-
er, Francis Corcoran testified that in the end result the charges against
him were dropped, and that he resigned his membership in the Union to
eliminate'all the hassle from Business Agent JolinsonR Exhs 17-20
Ostrander testified that he did not pay the fine against him, and that he
also subsequently resigned from the Union It further appears that, the
Union also filed internal charges aginst Dan Boyce under the allegation
that he was working on a union job with nonunion help-in violation of
the bargaining agreement" Moreover, it was stipulated between the par-
ties -that several employees Were disciplined by the Union for working for
A-1; a nonsignatory contractor _
18 Francis Corcbran testified that mcist of the regularly employed full-
time CAS employees, previously mentioned herein, who were members
of Local 669, quit CAS's employ in 1976 after either receiving threats by
George Corcoran testified he was made aware of
threats to CAS and its employees made by the Charging
Party during 'a union meeting in February 1976, and that
after being made aware of these threats, he had to take
the men off the job—the employees in question were
working for CAS on the Cadillac Mercy Hospital job.
George Corcoran further testified he bid on approxi-
mately 150 jobs for CAS in • 1976 He continued bidding
on jobs up until the tn:_nphi -s- union fitters quit Corcoran
testified that once the last fitter quit in 1976, -he was
unable to get union fitters from Local 669, and also was
unable to hire journeymen off the street unless all mem-
bers of Local 669 were working. As a result he did not
bid CAS until after November or December 1976."
Corcoran stated that he first began bidding A-1 in pre-
vailing rate jobs in 1977, and the reason that he did not
bid on prevailing jobs for CAS is because 'he conld not
get employees to do the work. Corco'ran also testified
that as far as he knew, his opefations were the only two-
company or7double-breasted contractor working in the
area of Mike Johnson's jurisdiction, in Michigan, when
Johnson assumed the 'business agent position for the
Charging -Party, in the spring 'of 1975, but that nonunion
companies during the 1973-1976 period were increasing
and that the significance of the increase in the number of
nonunion operations soon became very apparent to him
in that they were able to operate at a less labor cost,
their hands were not tied because of work rule limita-
tions such as a restriction Where the prefabricating work
had to be done, the number and amount of fittings that
aie to be placed on the pipe; and the requirement that
there must be two fitters on each job to do installation.
He stated that the nonunion operations did not have to
abide by these work rule restrictions and could operate
their business as they saw fit. Additionally, Geofge Cor-
coran explained other labor and cost-saving factors such
as the truckdriver is able to unload the materials, where
on a union operation ' fitters do it at a higher labor cost,
and the nonunion company does all of his own Work
rather than having to have higher priced tradesmen to
dO it. George Corcoran also gave a few examples of the
saving in labor cost between bidding an A-1 job and
having to bid the union job, and stated the labor cost
savings were substantial, and with 'the increased number
of nonunion operations, the substantial labor cost savings,
and the fact that he 'could no longer obtain Onion fitters,
he ceased bidding CAS jobs, but continued to bid jobs
A-1 Fire Protection. ' °
Corcoran - further testified that from -1976 until 1979
Union Representative Michael Johnson showed up on 69
of his jobs,' and on those 35 jobs where Corcoran was ac-
tually present, he observed Johnson talking to employ-
ees, to the general contractor and union contractors, and
Local 669 or having charges filed against them, but some of these em-
ployees then went to work for A-1
' 9 While CAS did not bid nor do . any work after November 1976,
George Corcoran and his son Francis did complete jobs CAS previously
had bid on and had not completed and as a result CAS may well have
done some "wrap up work" . on its jobs into 1977
" Corcoran testified that in 1978 and 1979 he -filed with the Board
8(b)(4) unfair labor charges against the Union alleging violations of the
Act on jobs involving Genessee Valley and a job at Traverse City
A-1 FIRE PROTECTION 973
in so doing attempted to get them off the job. As a result
reserve gates were put up on some of the A-1 jobs and
picketing continued at the reserve gate. Corcoran stated
that at the Genessee Valley job in 1979, the Union came
on the scene with _about 150 pickets, and injunctions
were then issued against Local . 669, and several other
unions. 2 ' He stated that the Union picketed his A-1 jobs
quite often.
On cross-examination, Corcoran testified that Schostak
Brothers is an example of a customer of CAS that was
later a Customer of A-1 and _admitted that the same is
true for Miller Fire, De Jagger Construction, Davanay,
Arms & Cole, Remer Plumbing, Spence Brothers, Mid-
State, and Lawrence Properties.
Corcoran further testified and , admitted that at no time
after 1976 did he ever call Michael Johnson and inquire
if he knew of any union sprinkler fitters available for
work, but he had advertised in a local paper, on March
1, 1984, requesting fitters for his open shop company
(A-D.22
Corcoran identified Charging Party Exhibit 15 as a
purchase order from Visser Brothers for Fables Res-
tauarant, a 'private prevailing wage job, to A-1 dated
June 2, 1982;. Charging Party Exhibit 16 is an order from
Gerace Construction, a prevailing wage job, to A-1 on
April 5, 1982; and Charging Party Exhibit 17 is a pur-
chase order from L & L Construction Co., Tecumseh
Plaza, to A-1 on June 22, 1982.
Francis Corcoran testified that in 1976, 1977, and 1978
Mike Johnson would come to the A-1 jobsites and in-
quire . if he had union employees, and then after asking
similar questions, would put up a picket line on some of
the jobs (10 to 15 times) and the other trades would then
leave the job. Francis Corcoran stated that he went di-
rectly to A-1 after leaving CAS.
Peter Ostrander testified that while he was working
for A-1, starting in late 1975, Mike Johnson' visited the
jobs quite a few times (seven jobs) over a 4- to 5-year
period, and on two occasions at the Kroger Stores in
Port Huron he put up picket lines.
Robert Murray testified that he has been working for
A-1 since mid-1975, but before worked for CAS. Murray
stated that he worked on the CAS Grand Blanc High
School job, and that Mike Johnson came to the jobsite
and inquired if Murray had a membership card, 23 and
when informed that he had no card, Johnson told
Murray he would' have to leave the job, and Murray did
so. Murray also 'testified that he worked on a Kroger
Store job in Essenville, Michigan, and Johnson came to
the site and asked him if he had a card. Murray said he
did not answer and just continued working. Murray
21 By letter dated December 21, 1978, mechanical contractor Wares &
Sons was advised by Local 669 that the Union had a dispute with A-1
and that they Intended to engage in peaceful picketing at the Traverse
City Hospital job See C P Exh 12
22 ft appears that from time to time sprinkler fitters solicit their own
Jobs Corcoran stated that you hired members of the Union first, and then
if not supplied, you had the right to go on the street and pick up a man
and pay him the fitter's wages and benefits
23 Murray testified that he sought admission to the apprenticeship pro-
gram of Local 669 on three occasions (first time in October 1974), but
was never admitted because during that period people in the area were
being laid off
could not recall if this was a job for A-1 or CAS It ap-
pears that Murray also worked on a K-Mart job at
Grand Rapids and testified that Johnson arrived at the
site and wanted to give him and others a "sheet of
paper" indicating the pending filing of unfair labor prac-
tice charges against A-1. Murray also recalled the A-1
job at Genessee Valley wherein about 100 men arrived
on the scene and wanted employees of A-1 to leave the
job because they were working for a nonunion company.
He also testified that on this occasion the State Police
were brought in.
The Employer argues that what must be initially re-
membered is the fact that the Union had been aware of
A-1's existence as a nonunion company doing sprinkling
installation work as early as December 1973; and was
also aware that'A-1 was doing the same type of work as
CAS. Moreover, maintains the Employer, there were ex-
amples in 1974 and 1975 of the Union permitting A-1 to
hire CAS employees to avoid having more of its . mem-
bers on layoff status, and the Union knowingly accepted
the Respondent's double-breasted operation and permit-
ted CAS and A-1 to compete for both union and non-
union jobs, and consented to its continued operation
without challenge prior to November 1975, and in light
thereof, the Board correctly determined that there had
been no deprivation of work to CAS and its members,
and accordingly, it was unnecessary for the Board to as-
certain if in fact the Union had waived its right to bar-
gain about the transfer of such unit work.
Counsel for Respondents further points out that the
General Counsel and Charging Party have maintained in
their arguments and contentions that George Corcoran
deliberately diverted work to A-1, which- would other-
wise have gone to CAS, by submitting in behalf of A-1 a
bid or bids which were lower than a bid already made
for CAS; and then further maintains that this conduct is
equivalent to unilaterally shifting of unit work reserved
for CAS employees to A-1. The Employer, on the other
hand, has always maintained that the fallacy in this argu-
ment is the assumption, unsupported by evidence, that
work performed by A-1 would have been "reserved for
CAS employees" if A-1 had not bid on it, and George
Corcoran's testimony regarding the relative labor costs
between his union operation and nonunion operation, as
aforestated, more than supports the Employer's conten-
tion that CAS would not have reCeived the work had
A-1 bid on it. 24 Moreover, argues the Employer, George
Corcoran's testimony revealed that during the year 1976
he bid on approximately 150 jobs on behalf of CAS and
during that same period of time he bid an equal number
of jobs for A-1, and it was not until the end of 1976,
when all of his journeymen fitters had 'quit with the ex-
ception of Pete Ostrander and his son, when Corcoran
was unable to obtain any more union fitters that he dis-
continued bidding jobs on behalf of CAS.
24 Corcoran also testified that A-1's labor costs were approximately 90
percent less than those of CAS and that the percentage figure has main-
tained its constancy from 1974 through the present. Corcoran stated that
labor costs represented approximately 28 percent of A-1's total costs, but
the figure was significantly higher for CAS and other union employer
operations.
974' DECISIONS OF NATIONAL IIABO .R RELATIONS BOARD
RespOndents maintain that the existence of double-'
breasted Operations whereby a single owner Operates two
companies—one union and one nonunion—is common in
the construction 'industry and its legitimacy has' been
long recognized--South Prairie Construction . Co.- v. Oper-
ating Engineers Local 627, 425 U.S. 800 (1976), and, as a
result of such-decision, both a union and nonu-nion em-.
ployer can exist side by side -competing for the same gen-
eral type of work without' there being illegal transfers of
work, deprivatiOns of work, or subcontracting of work
in violation of Section 8(a)(5) of the Act, and that under
such _double-breasted operations each company bids on
jobs-which the other cannot, or may not be able to.
obtain. Moreover,' it is also recognized that on :certain
jobs contracts can only be awarded to unionized firms—
see Donald Schriver-Inc. v. NLRB, 635 F.2d 859 (D.C.
1980)and the work on such jobs may be viewed as
"reserved" • for employees, of- unionized companies ! for
there is no possibility. that nonunion companies can get
the subcontract no matter how low their bids. , On the
other- hand,.argues the Employer, on jobs which do not
have to be. subcontracted . to unionized companies,. the
lowest bidder will -normally get the subcontract, and it
can be expected nonunion companies, which have lower
labor costs than union ones,,:are able to submit lower.
bids, as George Corcoran so testified. Therefore, the two
companies in a double-breasted operation work in essen-
tially -different markets, and the size of the.two-markets
is not constant—demands may decrease for one, compa-
ny's work and increase for ,the other, and if such happens
the, employer is not, guilty of "diverting" work to one
company which bas ,,been. "reserved" for the , employees
of the other company and cannot be_ required to bargain
about conditions over which it has no control. Cf. Brock-
way, Motor Trucks v. NLRB, 582 F,20 726, 729, , 733 (3d
Cir. 1978)..-
The Employer maintains ihe evidence here shoWs no_
more than this—that CAS and A-1 were 'simultaneously'
created,: that the _purpose of fOrming CAS was to ,do
union construction jobs, that through this entire period
of time CAS earnings were always larger' than.A-1 and,continued to increase through 1975 despite the existence
of A-i.and until the time CAS was unable to obtain fur-
ther union,help CAS and, Al 1 were operating in separate
markets. Moreover, there was Only one instance where
both CAS and A-1 _bid on the -same job and that was on
the insistence,of:;the contractor that it'be done, but oh
those jObs'requiring unionized contractors A 7 1 could not
bid nor compete for such Jobs ind thus could not take
wor rk' away from CAS. The decline in CAS's ability to
be a suCces§ful bidder for jObs and projedt§ was attributa-:'
ble, to the 'fact, that ,more 'and more nohunion contractor§
came into being and weie able to' , undercut CAS and all
other union contractors, On those jobs not requiring_ all
the COntraCtors be union contractors. Therefore, the Em-
ployer contends the decrease in work for CAS can' pioji-
erly be attributed to declining demand for contracts to
be ,Performed under -union conditions rather than a diver-
sion, Of .work through A-1 Which-otherwise .CAS would
have performed. Furthermore, argues counsel for Re-
spondents, in the very latter part 'of 1976 and subsequent
thereto, George Corcoran determined that he would
cease submitting "bids on behalf -of CAS as he did not
ernploY two" journeymen' fitters which was necessary
under the'Union's-',cOntract 'to perform any job. This oc-
curred 'Only after the Charging' Party had caused all of
CAS'S journeymen fitters to qnit,'With The exception of
Pete Ostrander, aiom the Union 'had expelled, and CAS
Was not 'able to obtain any'other 'union journeymen fit-
ters.
Cohnsel for Respondents, in cohcluding'his argunient,
contends that as=event on there 'Was an' increase and• , .
proliferation of
;
nonunion sprinkler fitting Companies, but
no .e:iidetice Was adduced which Would support a finding
thai jobs subsequently Obtained by A-1 would have 'gone
to CAS had George Corcoran 'bid on them in behalf of
CAS, that it was only 'after',CAS Ceased 'bidding on jobs
when A-1 began .performing Work for a few dustomers
CAS had previously worked for—that during ,the Period
of time prior to the clOse of the initial hearing in AUgust
1976,' 'the testimony of the Charging' Party's' agent re-
yealed that many of its members were out of work, and
froth this the indication that not only CAS bin other
unionized firms generally were suffering from a decline,
in brisineis. The Employer 'argues that, it -was this general
deeline in overall . business, rather than' any manipulations'
by George Corcoran, which caused , the decline experi-
enced by CAS. An inference that CAS lost work be-,
Canse of a decline in its market is amply Warranted, as is
the conclusion-that work gained by A-1 was work which
would n-ot have been awarded to' pAs in any event—
that A-1 was under no obligation to:refrain from bidding
on sprinkling-fiiting work, and , in the 'absence of a show-
ing the work „would otherwise have gone to CAS, it
cannot be said that the work was "transferred" out of

the CAS bargaining unit , •
Counsel for Respondenfs, in: summary, maintains that
ah , unlawful transfer of unit work is, not established
merely by , showing that the work of CAS decreased
while that of ,A-1 increased. Rather, it must be shown
that A-1 and CAS engaged in some, kind of conduct
which resulted in A- 1s obtaining work that would other-
wise have been PerfOrMed by CAS, and no such shim/-
mg .has ,been made. Thus, Respondents- contend that nei-
ther / the beneral , Counsel nor the Charging Party has
proven that CAS transferred work tO A-1 in violation of
Section )8(a)(5) of the ,Act , through a process of bidding,
subcontracting, transferring,, or . depriving CAS and its
employees of work that they would , have Otherwise per-
formed. -
Final-Conclusions ,
As the court of appeals recognized, the administrative
law, judge made certain findings of fact and credibility
resolutions based on the record evidence after the initial
hearing in 1976 which pertain directly to the "transfer of
work',', issue, and which _were not disturbed. by the Board
on-its review of the case .676 F.2d at 833-834; 'A-1 Fire
'Protection, 233 NLRB 38 fn: 1 (1977).
Specifically the judge found that George Corcoran
'changed, work arrangements so as to reduce the amount
of work for the employees of [CAS]" and that "since
early 1975 George Corcoran operated A-1 with the ap-
A-1 FIRE PROTECTION 975
parent purpose of ultimately dissolving [CAS]." The ad-
ministrative law judge further noted in his initial deci-
sion, inter aim, the following.
Thus, in November 1975, George Corcoran, in
reply to a question by [employee] Gary Sears re-
garding his employment security as a sprinkler fitter
for A-I, stated that he generally only laid off union
members but that nonunion employees of A-1 were
never laid off. On this occasion George Corcoran
also advised Sears that he would shortly phase out
Respondent Corcoran [CAS] and that A-1 would
take over the sprinkler work. Similarly, at a hearing
in the fall of 1975 involving internal union charges
against his son, as aforementioned, George Corco-
ran told Business Agent Johnson and others present
that in a 6-month period there would be less people
working for Respondent Corcoran. Moreover, the
General Counsel's exhibit also clearly indicates that
the gross earnings of A-1 have continually in-
creased. In 1976 Respondent Corcoran had just one
job, and George Corcoran likewise conceded that
much of the work now being done by A-1 is being
done for customers like Kroger stores and K-Mart,
which were previously customers of Respondent
Corcoran. Plainly, but for George Corcoran's at-
tempts to rid himself of Respondent Corcoran and
the Union, Respondent Corcoran would have per-
formed this work These arrangements, of course,
had a serious and adverse impact on the work of
the unit employees working for Respondent Corco-
ran and, in relation thereto, this record shows that
while A-1 employed no sprinkler fitters until 1975,
it now employs approximately 7 fitters, but just the
opposite has occurred at Respondent Corcoran,
who now employs only 2 sprinkler fitters while not
so long ago it employed approximately 10. It fol-
lows from the foregoing that by so doing, and
transferring work for Respondent Corcoran to A-1,
Respondents withdrew and withheld recognition
from the Union in violation of Section 8(a)(5) and
(1) of the Act. [233 NLRB at 43 and 44.]
As pointed out, the original 1976 record also contained
two clear examples of the transfer of work from CAS to
A-1. Corcoran admitted that in January 1976 he trans-
ferred one job from A-1 to CAS in the hope of appeas-
ing the Union but, after the underlying unfair labor prac-
tice charges were filed, the job was transferred back to
A-1. 233 NLRB at 44-45. The original record also re-
flects an incident when Corcoran first submitted a bid to
Englehart Construction on behalf of CAS and then
called back and obtained the job on the basis of a lower
bid on behalf of A-1
The judge also determined that in November 1975, 6
months after the parties' second contract was signed,
George Corcoran sent the 'Union a letter (G.C. Exh. 15)
rejecting its demand to be recognized as the "bargaining
representative of A-1 employees." 233 NLRB at 43. In
this same letter, Corcoran represented to the Union that
A-1 was not performing work within the scope of the
CAS unit but Instead was in the business of "sell[ing] fire
extinguishers, smoke detectors, alarms, kitchen hood sys-
tems, inspection of sprinkler systems and the small jobs
that were being done by other companys than sprinklers
companys."
There has been nothing in the remand hearing—testi-
mony, evidence, or otherwise—to change or alter in any
way my conclusions and findings, as aforestated, in the
initial 1976 decision
Before turning to evaluating the evidence adduced at
the remand hearing, it is necessary to briefly define the
sprinkler installation market in which CAS and later A-1
have operated. As indicated, and according to George
Corcoran himself, all his sprinkler jobs are obtained pur-
suant to a bidding process open to both union and non-
union contractors which compete directly against one
another. Sometimes Corcoran's nonunion A-1 company
has been successful when bidding against union sprinkler
contractors, and sometimes it has not, as the union con-
tractor is the low bidder. Corcoran further admitted that
A-1 obtains work through direct subcontracting with
union general contractors and, on occasions, performs
work on jobs together with union trades.
At the remand hearing in February and March 1984,
representatives of three sprinkler contractors—Claflin,
Timms, and Leadbetter—all signatory to agreements
with the Union and in business in the State of Michigan,
testified, and in so doing confirmed Corcoran's state-
ments that union contractors in Michigan are free to bid
on all jobs and that their companies compete for work
and bid directly against A-1 and other nonunion compa-
nies. Conversely to A-l's business dealings with union
general contractors, union sprinkler contractors often
obtain work by subcontracting directly from nonunion
general contractors, as Jack Leadbetter testified. More-
over, it was also established that union sprinkler contrac-
tors have, on a number of occasions, been the only union
trade on an otherwise open shop construction job. Thus,
as pointed out, there have been no market conditions re-
quiring Corcoran to phase out CAS, and no external eco-
nomic circumstances to mandate the takeover of CAS's
sprinkler work by A-1.
As has been set forth previously herein, in 1973, CAS
was established and became signatory to its first collec-
tive-bargaining agreement with Local 669, and from 1973
until late 1976, CAS employees performed bargaining
unit work defined essentially as the installation and main-
tenance of automatic fire protection systems pursuant to
the terms of the applicable collective-bargaining agree-
ment. A-1 was likewise established in 1973, but it remains
unclear when A-1 first became active in the business of
sprinkler installation. As noted, Respondents submitted a
summary of jobs performed by A-1 (R Exh. 13) but, as
pointed out by the Union, the summary fails to differenti-
ate between unit and nonunit work and, as illustrated by
the attachment to this exhibit, an unknown portion of the
work included on the summary is probably not unit
work. I am in agreement that during 1973 the amount of
work performed by A-1, unit or nonunit, was not sub-
stantial In 1974, compared to subsequent years, only
small jobs were done, but in 1975, A-1 began to perform
jobs of significant size, and this is confirmed by the fact
976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that A-1 did not employ its first sprinkler fitter until
sometime in 1975, and also by George Corcoran's No-
vember 1975 letter to Local 669, which stated that A-1
had been in the business of selling fire extinguishers,
smoke detectors, alarms, and kitchen hood systems, and
doing other work not performed by sprinkler companies
such as CAS, as aforestated. Thus, it apparently was not
until sometime during the middle or fall of 1975 25 that
A-1 became significantly active in the installation of
sprinkler systems, and as Corcoran had promised, CAS
was thereafter phased out and the sprinkler work was
taken over by A-1. During 1975, as far as it can be ascer-
tained, CAS performed some 35 sprinkler installation
jobs" and of the 31 or 32 jobs for which a general con-
tractor was identified, 10 or 11 jobs were for contractors
who later became customers of A-1, as previously named
herein. 27 In 1976, CAS obtained only one or two small
jobs.
As further detailed, after performing only two jobs of
significant size in 1975 (R. Exh. 13), A-1 performed 24
jobs in 1976 including 8 substantial size jobs of over
$10,000 each, and of the 18 sprinkler jobs performed by
A-1 in 1976 for which a general contractor was identi-
fied 7 of the jobs were for a former customer of CAS.
By November 1976, 3 months after the initial hearing in
this matter and 1 month before the administrative law
judge issued his decision, Corcoran stopped bidding
work for CAS and it became inactive
In all, and admittedly so, at least nine general contrac-
tors who were ,customers of CAS before ' 1976 subse-
quently became customers of A-1, and there is no inch -ca-
tion in this record which would even tend to establish
that any of these contractors suggested, much less insist-
ed, that they would prefer doing business with A-1
rather than CAS.
As indicated in the testimony and arguments I have set
forth previously herein, several different explanations
were offered by Respondents for the decision by George
Corcoran to stop bidding on behalf of CAS hi November
1976, and thereafter to bid work only for A-1.
The first explanation was that union sprinkler fitters
would not work for him, and that he was unable to
employ sprinkler fitters for CAS. I am in agreement that
if CAS had no sprinkler fitter employees it was because
Corcoran had laid them off. He admittedly never called
to the Union to request available employees- and never
advertised for CAS employees although he did advertise
in the newspaper for nonunion employees for open shop
A-1, as aforestated Further, he was well aware that
CAS was not required by the pertinent collective-bar-
gaining agreement to employ only union members or to
accept only referrals from the Union. Apparently, A-1
25 While there is no specific date in the record for this change Ili busi-
ness operation, Respondent witness Robert Murray testified on cross-ex-
amination that A-1 began operating out of the CAS fabrication shop
during the "middle or towards the end of 1975 " He recalled the time
because he left the employ of CAS and joined A-1 at approximately the
same time. Respondent's exhibits from the prior hearing reflect Murray's
transfer from CAS to A-1 to have occurred at the end of Septeinber
1975 R Exhs. 8 and 9
26 See R. Exh 13
27 See R Exh 14
had no difficulty finding a sufficient number of qualified
workers.
A second related contention made by Respondent is
that CAS went out of business because of harassment by
Local 669. However, a close scrutiny of the evidence re-
veals that the Union acted generally against only A-1 by
way of peaceful picketing and demonstration, and not
against CAS. Moreover, as also pointed out, the alleged
harassment attributable to Local 669 was either picketing
of A-1, jobs to protest its alleged unfair labor practices,
along with a notice of picketing in compliance with Fed-
eral law. (C.P. Exh. 12), or fining and expelling union
members for working with nonunion A-1 people in viola-
tion of the Union's bylaws. There is some testimony in
this record, as aforestated, that Mike Johnson came on
CAS jobs and harassed employees. However, the testi-
mony of Respondents' witnesses in this regard is not
always clear as to what job they were on or what com-
pany they were, working for at the time in question, but
even assuming they were on CAS jobs, there is still lack-
ing any real evidence that they were in any way har-
assed. If Johnson did visit these CAS jobs, about the
only thing he did was ask. questions which were fol-
lowed by a few internal charges and dismissals because
certain member employees were working with nonunion
people. But the main thrust of the Union's complaints
was directed against A-1, the nonunion company, and
admittedly all the picketing was on the jobsites where
A-1 was working. Due to such circumstances it is diffi-
cult to believe that Corcoran could not lure fitters for his
CAS operations when this was his union company. In
fact, counsel for the Union suggested that one would
have thought that -Local 669's continued protest of A-I's
activities would, if anything, have encouraged bidding
on behalf of CAS, but this was not the case.
It appears that • the third alternate justification for
George COrcoran's decision in NOvember 1976, to close
the CAS operation and to instead solicit sprinkler work
throughi his nonunion company, was A-1's lower labor
costs. As indicated, while wages paid by A-1 were unde-
niably below those in the pertinent union contract, this
explanation was then undermined by Corcoran's admis-
sion that he bid state and 'Federal prevailing wage jobs
through A-1 rather than CAS, even though there could
have been no labor savings on these jobs."
As further noted, another issue as to which the court
of appeals solicited additional evidence was whether the
Union "agreed" to , the diversion of work from CAS to
A-1 or "waived" its right to protest this otherwise illegal
conduct. I am in agreement the undisputed record evi-
dence clearly refutes any such contention.25
28 Even if labor savings were Respondents' primary motive, It has long
been held that an employer may not shift work away from a bargaining
unit simply because It is to his economic advantage, and the Board re-
cently reaffirmed this principle in Otis Elevator Go, 269 NLRB 891
(1984)—that decisions made by management which turn on a direct re-
duction of modifications of labor costs are subjects for bargaining There
is no evidence in the Instant case that CAS bargained with the Union at
any time over the subject of the shift in work from CAS to A-1, and
Mated labor costs
29 , The employer maintains the clear and unmistakable standard, to as-
certain if the Charging Party waived its nght to bargain over CAS's de-
Continued
A-1 FIRE PROTECTION

977
First, the relevant provisions in the 1975 agreement be-
tween the parties required that all work within' . the
Union's trade Jurisdiction be performed pursuant to its
terms and prohibits "any sale [or] transfer ... to evade
the terms of this agreement." (C P Exh 6, arts 3 and
18) The agreement also prohibited signatory contractors
from subcontracting unit work to , companies which were
not signatory to an agreement with the Union. Thus, the
contract clearly did not reflect an agreement or a waiver
to the transfer of unit work.
Further, as indicated, there is no evidence that the sub-
ject of transfer or diversion of work was "fully dis-
cussed" or "consciously explored" during collective-bar-
gaining negotiations in 1975, and, of course, the parties'
silence cannot be equated with a waiver of the right to
bargain Moreover, the diversion of work from CAS to
A-1 occurred primarily after the 1975 agreement was ex-
ecuted, 3 ° and while the Employer made reference at the
remand hearing to subsequent negotiations in 1977, as
aforementioned, there is no evidence that diversion of
unit work was discussed and, in , any event, the instant
unfair labor practice proceeding was long underway by
that time precluding any alleged "waiv.er' ! or "agree-
ment" on the part of the Union.
In the final analysis, I have been directed by the Board
in the order of remand to receive evidence on the fol-
lowing issues and to make a finding of facts limited to
these issues.
1. Whether Corcoran Automatic Sprinkler (CAS) bid
only on jobs requiring union labor or also bid on other jobs.
Counsel for Local 669 contends that the Board's posi-
tion and statement on this issue is predicated on a falla-
cious assumption that the construction market for sprin-
kler systems is somehow segregated into union and non-
union segments but, as the three Michigan representa-
tives of union contractors (Claflin, Timm, and Leadbet-
ter) all testified, as aforementioned herein, that there is
no such thing as a job which precludes union labor, or
union and nonunion sprinkler contractors, from compet-
ing directly against one another for Jobs, and also sub-
contracting work from both union and nonunion general
contractors.
Whatever the full impact of the above argument might
be, there is no doubt that until sometime in late 1975 all
jobs of significant size for which George Corcoran sub-
onion to stop bidding, is not applicable in this particular situation in light
of the Supreme Court's decision in First National Maintenance Corp v
NLRB, 452 U S 666 (1981), and the Board's decision in the Milwaukee
Spring II, 268 NLRB 601 (1984), and argues that from the holdings in
these cases it is eminently clear the Union does not have any right to re-
quire the Employer to bargain over entrepreneurial decisions such as
closing a portion of its operation and/or relocating a portion of its oper-
ation during the term of the contract, that such actions are considered
entrepreneurial and go to the heart of an employer's managerial-making
authority and as such are not mandatory subjects of bargaining More-
over, argues the Employer, CAS had the Inherent right to make the de-
termination it would stop bidding on new installation work and thereby
cease doing business, that this decision was only arrived at after CAS lost
its journeymen union fitters because of the pressure and harassment
placed on them by Charging Party and CAS's continued inability to hire
other journeymen fitters to replace them
" Robert Murray testified that in the middle or towards the end of
1975 the fabrication began to increase for A-I
mitted bids were performed by CAS, as this record duly
reflects.
2. Whether CAS bid on Jobs other than union jobs, and
on what basis did CAS rather than A-1 submit bids.
I do not believe it has been established that CAS bid
on projects other than union Jobs. It must be remem-
bered that Corcoran testified in the initial 1976 hearing
that it was his intention in 1973 to operate one company
as a union company (CAS), and his nonunion company
(A-1) would bid on jobs where nonunion contractors
were permitted
3 Whether during 1975 Corcoran stopped submitting bids
from CAS or continued to submit bids, but was no longer
successful.
It is quite clear from this record, as noted, that from
the middle or fall of 1975 onward A-1 took over pro-
gressively more of the sprinkler installation work from
CAS until George Corcoran simply stopped bidding for
CAS in November 1976, but in 1975, CAS did success-
fully submit numerous bids. (See R. Exh. 14.)
4 Whether A-1 performed any work originally bid from
and awarded to CAS.
, The two relevant examples in the record come from
the initial hearing in which it was demonstrated that one
project (Alma College) was obtained by A-1, transferred
to, CAS, and then transferred back to A-1 in January
1976. 3 ' The second example was when Englehart Con-
struction called CAS in August or September 1975 and
obtained a price for a job, but was then called back by
George Corcoran on behalf of A-1 with a lower price.
5. Whether A-1 's performance of work for former custom-
ers of CAS occurred at the suggestion of such customers or
of Corcoran.
There is no evidence that a single CAS customer con-
tacted Corcoran and expressly requested a bid from A-1.
As I indicated previously, we are concerned here with
the protection of historic bargaining unit Jobs from com-
plete abolition. Respondents were not content to operate
both sides of their double-breasted entities simultaneous-
ly. Instead, as the records plainly show, they are now en-
gaged in an overt effort to transfer all work to the non-
union corporation thereby causing the demise of the rep-
resented unit.
Counsel for the Employer has also argued that there is
no showing that work performed by A-1 would have
been reserved or awarded to CAS if A-1 had not bid on
it. However, this argument must be viewed in the total
circumstances surrounding this case. Corcoran specifical-
ly informed Gary Sears that he would phase out CAS
and A-1 would take over the sprinkler work. Moreover,
after the charges were filed in the instant case by the
Union he then decided to do the Alma College job-as
A-1—that he did not feel there was any reason for him
31 At the initial hearing, in reference to which company would do the
Alma College job, and the circumstances under which the job was shift-
ed from one company to another—all the parties stipulated that Corcoran
made the following statement in his affidavit given to the Board during
its initial investigation
After getting the charges I decided to do the job as A-1 and not
subcontract it to Corcoran I didn't feel there was any reason for me
to show the Union a sign of good faith after they filed the charges
against me
978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to show good faith after the Union filed Charges against
him. While such statements do not show that CAS
would have secured the jobs in question if A-1 had not
bid, they certainly do show open hostility and shed light
on later events.
Prior to the fall of 1976, CAS was a successful oper-
ational sprinkler contracting company actively bidding
on and performing many sprinkler-fitting contracts, and
it is George Corcoran who makes the decisions for both
CAS and A-1 as to which jobs to bid on It is also noted
that even after Corcoran discontinued bidding on any
jobs for CAS, as of November 1976, he continued to do
business with and bid on jobs for some of the same cus-
tomers he had been formerly doing business with under
the union contract with CAS, but now only bidding A-1,
and with customers which A-1 had never before dealt
with or submitted bids to Further, nonunion A-1, since
George Corcoran stopped bidding any jobs as CAS, has
bid against union sprinkler contractors, sometimes win-
ning such contracts and sometimes not There is also tes-
timony that since the cessation of CAS bids A-1 has per-
formed work on construction sites where union trades
are also present and, as further pointed out, A-1 has per-
formed subcontracting for a mechanical contractor.
Moreover, despite George Corcoran's testimony that A-1
became more successful on bids because its labor costs
were lower, he still utilized A-1 to bid on jobs rather
than CAS even when the labor costs for A-1 and CAS
would be virtually identical because of the Davis-Bacon
,Act requiring the payment of the prevailing wage—nor-
mally the union pay scale in the area involved.
In view of the above, I am convinced that CAS would
have successfully bid and secured several jobs, at least
from its old customers, had A-1 not been in the bidding.
In this respect it is noted that B. L. Harroun, Viking Fire
Protection, and Safeguard of Marquette, represented in
the remand hearing by Claflin, Timm, and Leadbetter,
are signators with Local 669 as union contractors, and
also actively competing against several nonunion compa-
nies in the sprinkler business, and all three of them obvi-
ously getting their share of the projects on which they
bid, as aforestated. Certainly, if these union companies
over the many years can remain profitable enterprises in
their bidding endeavors, then there must be constant de-
mands for sprinkler work by .signatory companies with
Local 669, and in view of the -good past record of CAS
in getting-such jobs, it is most likely that had this compa-
ny continued in their endeavors, it too would have been
awarded its share of the union work.
On the basis and for the reasons as set forth and dis-
cussed above, I reaffirm my findings that George Corco-
ran deliberately phased out CAS so that A-1 could take
over the sprinkler work here in question without bar-
gaining with the Union and that the Union did not agree
or waive its right to, protest Respondents' conduct.
Accordingly, I adhere to my original decision.
*U.S. GOVERNMENT PRINTING OFFICE :1986-461-629.20003