American Automatic Fire Protection

National Labor Relations Board - Board Decisions

May 17, 1991

302 N.L.R.B. 1014 (N.L.R.B. 1991)

1014
302 NLRB No. 157
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence 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 ex-
amined the record and find no basis for reversing the findings. We also correct
the following inadvertent errors by the judge which do not affect our decision.
In sec. IV, par. 16 of his decision, the judge stated that the contract repudi-
ation occurred on November 20, 1985; in sec. IV, par. 21, the judge stated
that the repudiation occurred in November 1984. The contract repudiation oc-
curred on November 29, 1985. In sec. IV, par. 12, the judge indicated that
after March 14, 1986, to July 1986, the Respondent employed sprinkler fitters
at the Spring Lake project at rates far below those set out in the collective-
bargaining agreement between the Respondent and the Union. The record indi-
cates, however, that sprinkler fitters employed on the project after March 14,
1986, were paid at the journeyman wage ($28.59 per hour) set forth in the
collective-bargaining agreement.
2 In concluding that the Respondent violated Sec. 8(a)(3) and (1) of the Act
by terminating Joseph Cerrito and Tom Bell, the judge relied, inter alia, on
his finding that the Respondent paid its nonunion fitters prior and subsequent
to the terminations considerably less than the rates set forth in the collective-
bargaining agreement. In agreeing with the judge that the terminations violated
the Act, we do not rely on this finding to the extent it indicates that after
March 14, 1986, the nonunion fitters were paid less than the contract rate.
Further, we recognize that the judge did not specifically consider under
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982), the Respondent’s contention that the terminations
occurred because the work on the Spring Lake project was completed. Accord-
ing to the credited testimony, however, the sole reason given to the employees
for the terminations was the Respondent’s desire to complete the project with
nonunion workers. The judge thus implicitly discredited the Respondent’s con-
tention regarding completion of work. In light of this credibility resolution, it
was unnecessary for the judge to consider under a Wright Line analysis the
Respondent’s ostensibly legitimate reason for the terminations, as the credited
testimony indicates that the Respondent did not rely on that reason.
In agreeing with the judge’s conclusion that Leland Lawson is a supervisor
within the meaning of Sec. 2(11) of the Act, we rely solely on the record evi-
dence that Lawson exercised independent judgment in assigning work and re-
sponsibly directing employees.
3 The Union had earlier, on April 30, 1987, filed a charge in Case 20–CA–
21164 alleging that the Respondent violated Sec. 8(a)(5) and (1) by its No-
vember 29, 1985 repudiation of the contract. On June 25, 1987, the Regional
Director for Region 20 dismissed that charge as untimely under Sec. 10(b) of
the Act, noting that the charge had been filed more than 6 months after the
Respondent’s repudiation of the collective-bargaining agreement. The Union
did not timely appeal the dismissal.
4 282 NLRB 1375 (1987), enfd. sub nom. Iron Workers Local 3 v. NLRB,
843 F.2d 770 (3d Cir. 1988), cert. denied 488 U.S. 889 (1988).
American Automatic Fire Protection, Inc. and
Sprinkler Fitters and Apprentices Local Union
No. 483, United Association of Journeymen and
Apprentices of the Plumbing and Pipefitting
Industry of the United States and Canada. Case
20–CA–20325
May 17, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On May 24, 1989, Administrative Law Judge
George Christensen issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The General Counsel and the Charging Party filed an-
swering briefs in opposition to the Respondent’s ex-
ceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions2 only to the extent consistent with this Deci-
sion and Order.
Since 1978, the Respondent and the Union have en-
tered into successive collective-bargaining agreements
pursuant to Section 8(f) of the Act. The most recent
contract covered the term from August 1, 1984, to July
31, 1987. On August 15, 1984, the Respondent sub-
contracted to install sprinkler systems on a project
known as Spring Lake.
The relationship between the Respondent and the
Union began to deteriorate in the fall of 1985. On Sep-
tember 12, 1985, the Union filed a grievance alleging
that the Respondent was violating the collective-bar-
gaining agreement by employing nonunion sprinkler
fitters on the Spring Lake project. The Respondent, on
September 18, 1985, filed a grievance alleging viola-
tion by the Union of section 8 of the collective-bar-
gaining agreement, which provides, inter alia, that ‘‘a
fair day’s work be performed at all times and that the
highest possible standard of work shall be main-
tained.’’
Thereafter, by letter dated November 29, 1985, the
Respondent notified the Union that it was repudiating
the collective-bargaining agreement. Since that date,
the Respondent has failed to comply with any of the
terms of the agreement. On December 31, 1985, the
Respondent terminated the two remaining union fitters
on the Spring Lake project, Joseph Cerrito and Tom
Bell. Subsequently, by letter dated April 8, 1987, the
Union requested that the Respondent honor the collec-
tive-bargaining agreement. The Respondent failed to
answer the Union’s request.
On May 2, 1986, the Union filed a charge in this
case alleging that the Respondent violated Section
8(a)(3) and (1) of the Act by discharging employees
Cerrito and Bell. On June 2, 1987, the Union filed a
first amended charge alleging that ‘‘the [Respondent]
refuses to honor its contract with the [Union].’’3
Thereafter, on October 28, 1987, an amended com-
plaint issued alleging, inter alia, that the Respondent
had violated Section 8(a)(5) and (1) of the Act by,
since on or about December 2, 1986, failing and refus-
ing to abide by the collective-bargaining agreement.
The judge found that under John Deklewa & Sons,
Inc.,4 the collective-bargaining agreement was viable
for its full term and therefore enforceable throughout
that term. In essence applying a continuing violation
theory, the judge found that the dismissal of the charge
in Case 20–CA–21164 alleging violation of the Act by
the November 1985 contract repudiation did not pre-
clude a finding that the Respondent violated the Act by
1015AMERICAN AUTOMATIC FIRE PROTECTION
5 In light of our finding that the charge is barred by Sec. 10(b), we need
not pass on the Respondent’s argument that the corresponding remedy rec-
ommended by the judge is improper. Similarly, we need not pass on the Re-
spondent’s contention that the Board is collaterally estopped from finding an
8(a)(5) and (1) violation by the decision in National Automatic Sprinkler In-
dustry Pension Fund v. American Automatic Fire Protection, 680 F.Supp. 731
(D. Md. 1988). We do not adopt, however, the judge’s assertion that the Re-
spondent at trial neither cited nor produced a copy of that decision.
6 We leave to compliance the question of whether reinstatement is an appro-
priate remedy in this case. Dean General Contractors, 285 NLRB 573 (1987).
7 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 National Labor Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
failing to comply with the Union’s April 8, 1987 re-
quest that the Respondent honor the collective-bar-
gaining agreement for the remainder of its term. The
judge concluded, accordingly, that the Respondent vio-
lated Section 8(a)(5) and (1) by failing and refusing to
comply with the Union’s April 1987 request that the
Respondent honor the agreement for the remainder of
its term.
The Board has recently held that the continuing vio-
lation theory cannot properly apply to a clear and total
contract repudiation. A & L Underground, 302 NLRB
467 (1991). Consequently, a charge alleging contract
repudiation or, as in this case, a refusal to honor a con-
tract, is barred by Section 10(b) if filed more than 6
months after notice of a clear and unequivocal repudi-
ation of an entire collective-bargaining agreement. In
this case, the charge alleging the Respondent’s refusal
to honor the contract was filed on June 2, 1987, well
beyond 6 months after the Union received clear and
unequivocal notice in November 1985 of the Respond-
ent’s total repudiation of the collective-bargaining
agreement. We find, accordingly, that the charge is
barred by Section 10(b).5 We shall therefore dismiss
that portion of the complaint alleging that the Re-
spondent violated Section 8(a)(5) and (1) of the Act by
failing and refusing, since on or about December 2,
1986, to honor the collective-bargaining agreement.
AMENDED CONCLUSIONS OF LAW
Substitute the following for paragraph 7.
‘‘7. The Respondent did not violate the Act by fail-
ing and refusing to comply with the Union’s April
1987 request that the Respondent honor the agreement
for the remainder of its term.’’
REMEDY
Having found that the Respondent violated Section
8(a)(3) and (1) of the Act by terminating Joseph
Cerrito and Tom Bell because of their membership in
and support of the Union, the Respondent is ordered
to offer them immmediate and full reinstatement to
their former jobs or, if those jobs no longer exist, to
substantially equivalent positions,6 without prejudice to
their seniority or any other rights or privileges pre-
viously enjoyed, and make them whole for any losses
they may have suffered as a result of the discrimina-
tion against them, with backpay to be computed in ac-
cordance with F. W. Woolworth Co., 90 NLRB 289
(1950), and with interest to be computed in the manner
prescribed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
ORDER
The National Labor Relations Board orders that the
Respondent, American Automatic Fire Protection, Inc.,
Rio Linda, California, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Terminating employees because of their union
membership and support.
(b) In any like or related manner interfering with,
restraining, 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 Joseph Cerrito and Tom Bell immediate
and full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or any other
rights or privileges previously enjoyed, and make them
whole for any loss of earnings and other benefits suf-
fered as a result of the discrimination against them, in
the manner set forth in the remedy section of this deci-
sion.
(b) Remove from its files any reference to the un-
lawful discharges and notify the employees in writing
that this has been done and that the discharges will not
be used against them in any way.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(d) Post at its facility in Rio Linda, California, and
any other locations where notices to employees are
customarily posted copies of the attached notice
marked ‘‘Appendix.’’7 Copies of the notice, on forms
provided by the Regional Director for Region 20, after
being signed by the Respondent’s authorized represent-
ative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices
to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices 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 Re-
spondent has taken to comply.
1016 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Although every apparent or nonapparent conflict in the evidence has not
been resolved below, because my findings are based on my examination of
the entire record, my observation of the demeanor of every witness while testi-
fying, and my evaluation of the reliability of their testimony, any testimony
in the record which is inconsistent with my findings is discredited.
MEMBER DEVANEY, dissenting in part.
I agree with my colleagues that the Respondent vio-
lated Section 8(a)(3) and (1) of the Act by terminating
Joseph Cerrito and Tom Bell. Contrary to my col-
leagues, however, I believe that the charge filed on
June 2, 1987, alleging that the Respondent had failed
and refused to honor the parties’ collective-bargaining
agreement was timely filed. In this regard, I note the
charge was filed during the term of the parties’ collec-
tive-bargaining agreement, which expired on July 31,
1987. For the reasons stated in my dissenting opinion
in A & L Underground, 302 NLRB 467 (1991), I hold
the charge timely and would consider the 8(a)(5) alle-
gation on its merits.
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 or-
dered us to post and abide by this notice.
WE WILL NOT terminate employees because of their
union membership or support.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL offer Joseph Cerrito and Tom Bell imme-
diate and full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed, and WE
WILL make them whole for any loss of earnings or
other benefits suffered as a result of our discrimination
against them, with interest.
WE WILL notify each of them that we have removed
from our files any reference to his discharge and that
the discharge will not be used against him in any way.
AMERICAN AUTOMATIC FIRE PROTEC-
TION, INC.
Christine Ralls, Esq., for the General Counsel.
Robert L. Rediger, Esq. (Hubbert, Shanley & Lee), of Sac-
ramento, California, for the Respondent.
Joseph R. Colton, Esq. (Beeson, Tayer, Silbert & Bodine), of
San Francisco, California, for the Charging Party.
DECISION
STATEMENT OF THE CASE
GEORGE CHRISTENSEN, Administrative Law Judge. On Au-
gust 2 and 3, 1988, I conducted a hearing at Sacramento,
California, to try issues raised by a complaint issued on June
25 and amended on October 28, 1987, based on an original
and an amended charge filed by Sprinkler Fitters and Ap-
prentices Local Union No. 483, United Association of Jour-
neymen and Apprentices of the Plumbing and Pipefitting In-
dustry of the United States and Canada (Local 483) on May
2, 1986, and June 2, 1987.
The issues created by the complaint allegations and denials
by American Automatic Fire Protection, Inc. (AAFP) are
whether at pertinent times: (1) AAFP employed fitters within
an appropriate bargaining unit covered by a contract between
AAFP and Local 483 to perform building and construction
industry work within the meaning of Section 8(f) of the Na-
tional Labor Relations Act (the Act); (2) Local 483 was the
duly designated exclusive collective-bargaining representative
of those fitters and recognized as such by AAFP; (3) Leland
Lawson was a supervisor and agent of AAFP acting on its
behalf within the meaning of Section 2 of the Act; (4) AAFP
discharged fitters Joseph Cerrito and Tom Bell in December
1985 because of their affiliation with and support of Local
483, thereby violating Section 8(a)(1) and (3) of the Act; and
(5) AAFP violated Section 8(a)(1) and (5) of the Act by fail-
ing to comply with Local 483’s 1987 request to honor its
contract with Local 483 for the balance of its term, i.e., be-
tween December 2, 1986 and July 31, 1987.
Ancillary issues arise from AAFP’s contentions: (1) be-
cause it repudiated its 1984–1987 contract with Local 483 on
November 29, 1985, and Region 20 on June 26, 1987, dis-
missed Local 483’s April 30, 1987 charge in Case 20–CA–
21164 alleging AAFP violated Section 8(a)(1) and (5) by
that repudiation on the ground the charge was untimely filed
under Section 10(b) of the Act (Local 483 failed to timely
appeal that dismissal), the 8(a)(5) allegations of the com-
plaint in this case should be dismissed; and (2) because a
United States district court issued a decision holding AAFP
was not obligated to tender payments to various funds pursu-
ant to the terms of the 1984–1987 AAFP-Local 483 contract
for any months following AAFP’s November 1985 repudi-
ation of that contract, the Board is collaterally estopped from
finding AAFP violated Section 8(a)(1) and (5) of the Act by
failing or refusing to honor Local 483’s 1987 request that
AAFP honor the 1984–1987 AAFP-Local 483 contract be-
tween December 2, 1986, and July 31, 1987.
The General Counsel (GC) and AAFP appeared by coun-
sel and were afforded full opportunity to adduce evidence,
examine and cross-examine witnesses, argue, and file briefs.
Both filed briefs.
Based on my review of the entire record, observation of
the witnesses, perusal of the briefs, and research, I enter the
following
FINDINGS OF FACT1
I. JURISDICTION AND LABOR ORGANIZATION
The complaint alleged, the answer admitted, and I find at
all relevant times AAFP was an employer engaged in com-
merce in a business affecting commerce and Local 483 was
1017AMERICAN AUTOMATIC FIRE PROTECTION
2 Local 669 at all times had geographical jurisdiction over a broad, general
geographical area and supplied fitters in and from a broad area throughout the
United States while Local 483’s geographical jurisdiction was limited to north-
ern California and it supplied fitters in and from that area.
3 Journeyman fitters, apprentice fitters, and one journeyman designated as
job foreman on each job.
4 John Deklewa & Sons, Inc. 282 NLRB 1375 (1987), enfd. 843 F.2d 770
(3d Cir. 1988), cert. denied 488 U.S. 889 (1988).
5 The 1984–1987 AAFP-Local 483 contract required that AAFP secure fit-
ters to man its jobs within Local 483’s jurisdiction through Local 483’s hiring
hall.
6 These findings are based on testimony by Eslick and Ervin, supported by
documentary evidence (payrolls) AAFP, beginning in early 1985, utilized both
Local 483-represented fitters and nonunion fitters to perform work on the W
& B-AAFP contract.
7 Ervin consulted Local 483 prior to hiring and assigning Lawson to the job
and ascertained Local 483 had no objection to Lawson’s hire and assignment,
based on Ervin’s assurances Lawson would not perform any fitter work at the
site and would be limited to directing and checking work at the site and main-
taining liaison with W & B.
a labor organization within the meaning of Section 2 of the
Act.
II. THE UNIT, LOCAL 483’S REPRESENTATIVE STATUS,
THE INDUSTRY, AND THE CONTRACT
James Ervin and his wife formed AAFP in 1978 to engage
in the business of installing sprinkler systems in newly con-
structed and retrofitted commercial buildings and residences.
AAFP commenced doing business in the Sacramento, Cali-
fornia area and spread into northern California. Since its in-
ception the business has been managed by James Ervin, as-
sisted by Jim Low.
AAFP regularly employed fitters to install sprinkler sys-
tems. In 1978, AAFP signed its initial contract with Local
483 covering the wages, hours, and working conditions of
fitters it employed within Local 483’s geographical jurisdic-
tion, securing those employees through Local 483’s hiring
hall. AAFP also maintained contractual relations with a sister
local (Local 669) and secured sprinkler fitters through its hir-
ing hall.2
AAFP executed a continuing series of contracts with Local
483, including a contract executed on December 26, 1984,
for a term extending from August 1, 1984, through July 31,
1987.
Although AAFP denied in its answer the complaint allega-
tion the job classifications3 covered in the 1984–1987 AAFP-
Local 483 contract constituted a unit appropriate for collec-
tive-bargaining purposes within the meaning of Section 9 of
the Act and that since 1978 AAFP has recognized Local 483
as their exclusive collective-bargaining representative, in the
course of the hearing AAFP stipulated the unit was appro-
priate for collective-bargaining purposes and AAFP through
the successive contracts recognized Local 483 as the exclu-
sive collective-bargaining representative of its employees
within the unit.
On the basis of the foregoing, I find and conclude at all
pertinent times AAFP was an employer engaged in business
within the construction industry within the meaning of Sec-
tion 8(f) of the Act; a unit consisting of AAFP’s employees
within the classifications covered by AAFP’s 1984–1987
contract (and prior contracts) with Local 483 constituted a
unit appropriate for collective-bargaining purposes within the
meaning of Section 9 of the Act; by its December 26, 1984
execution of the 1984–1987 contract with Local 483, AAFP
recognized Local 483 as the exclusive collective-bargaining
representative of AAFP’s employees within the classifica-
tions set out in the contract for the term thereof; and by vir-
tue of the foregoing, Local 483 was the duly designated ex-
clusive collective-bargaining representative of AAFP’s em-
ployees within those classifications to and including July 31,
1987.4
III. THE STATUS OF ERVIN AND LOW
I further find and conclude (as conceded by AAFP) at all
pertinent times Ervin and Low were supervisors and agents
of AAFP acting on its behalf within the meaning of Section
2 of the Act.
IV. THE CONTRACT REPUDIATION, LAWSON’S STATUS,
AND THE ALLEGED DISCRIMINATORY DISCHARGES
On August 15, 1984, AAFP entered into a contract with
General Contractor Williams and Burrows (W & B) to install
overhead sprinkler systems, including connecting piping, in
50 buildings on a 27-acre site in Santa Rosa, California,
known as Spring Lake Village, A Life Care Retirement
Community. The W & B-AAFP contract, inter alia, required
AAFP to utilize union-represented workers exclusively in
performance of the contract. The Spring Lake project or job
was within the geographical jurisdiction of Local 483. An-
ticipating the possibility Local 483 at times would be unable
to supply a sufficient number of fitters from its hiring hall5
to meet its needs, AAFP secured Local 483’s agreement to
AAFP’s securing fitters through Local 669’s hiring hall, pro-
vided Local 483 was unable to fill its needs and AAFP re-
quiring fitters secured through Local 669’s hall to clear for
AAFP employment through Local 483’s hall.
AAFP commenced work at the Spring Lake project shortly
after the W & B-AAFP contract was signed. AAFP’s work
on the project progressed satisfactorily until the spring of
1985, when AAFP ceased relations with Local 669 and no
longer was able to secure fitters through Local 669’s hiring
hall. From that time, AAFP’s work pace began to slip behind
that of other crafts on the project, generating complaints by
W & B’s field superintendent charged with timely comple-
tion of the job, Ralph Eslick. Ervin responded with the rep-
resentation he would bring in nonunion fitters during hours
Local 483-represented fitters were not there (at night and on
weekends) in an effort to keep up, and began doing so.6
In July 1985, approximately nine Local 483-represented
fitters were employed by AAFP at the Spring Lake project,
including journeyman Joseph Cerrito, designated as the job
foreman of the Local 483-represented fitters on the job.
AAFP recognized Local 483 as their exclusive collective-bar-
gaining representative and compensated them in accordance
with the terms of the 1984–1987 AAFP-Local 483 contract.
Cerrito took instructions from Leland Lawson, who had
been hired by Ervin as ‘‘project manager’’ at the job,7 since
Ervin and Low rarely visited the jobsite although Lawson
was there most of the time. Lawson directed the work of
AAFP’s fitters at the jobsite either through issuing directions
to Cerrito for transmission to the other fitters or issuing di-
rections directly to the fitters, assigned and reassigned fitters
to various tasks, decided what work was to be done and in
1018 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 On the basis of these facts, I find and conclude at all pertinent times
Lawson was a supervisor and agent of AAFP acting on its behalf within the
meaning of Sec. 2 of the Act.
9 Cerrito and Bell, however, after November 29, 1985, were placed on the
payroll of a company called California Fire Control, a company owned and
operated by Lawson, and paid the rates of pay set out in the AAFP-Local 483
contract plus additional pay equivalent to the value of the fringe benefits of
that contract. The nonunion fitters were paid far less (for example, Bell was
paid $42.17 per hour while nonunion fitter Allison was paid $28.59 and non-
union fitter Sipes, $11.85).
10 Responding to a reminder by W & B its contract required use of union-
represented fitters following W & B’s receipt of a Local 483 complaint AAFP
was employing nonunion fitters at the Spring Lake project.
11 AAFP payroll records so establish.
12 See fn. 4.
13 Meekins, Inc., 290 NLRB 126 (1988); Riley Electric, 290 NLRB 374
(1988); Bufco Corp., 291 NLRB 1015 (1988); Mesa Verde Construction Co.
v. Laborers, 129 LRRM 3073 (9th Cir. 1988).
what order, maintained time records, issued paychecks, hired
fitters by contacting Local 483’s hiring hall, evaluated the
fitters’ job performance and acted as AAFP’s liaison with W
& B.8
Eslick continued to complain that AAFP was failing to
keep pace with the other crafts and Cerrito, attempting to re-
spond thereto, asked Ervin to increase the size of the crew.
Ervin responded if the current crew couldn’t maintain the
pace, he would bring in nonunion help (which he was al-
ready doing surreptitiously at night and on weekends).
Cerrito responded if he did, he and the other Local 483-sup-
plied fitters would leave the job and Local 48 would cease
supplying fitters for any other AAFP job.
The number of Local 483-supplied fitters employed by
AAFP on the job continued to dwindle and the Local 483-
represented fitters became increasingly aware fitters work
was being performed on the project during their absence.
They reported this to Local 483 and Local 483 filed a
grievance with AAFP alleging by its employment of non-
union fitters at the project AAFP was violating the 1984–
1987 AAFP-Local 483 contract. AAFP countered with a
complaint and grievance Local 483 as violating the contract
by supplying inadequately trained fitters, fitters who were
failing to report when scheduled to work, and fitters who
were not performing a full day’s work.
AAFP and Local 483 were unable to resolve their respec-
tive grievances and on November 29, 1985, AAFP formally
notified Local 483 it was repudiating the 1984–1987 AAFP-
Local 483 contract ‘‘based upon your union’s inability to at-
tain majority status.’’ At all times since AAFP has failed and
refused to comply with any of the terms of the 1984–1987
AAFP-Local 483 contract.
By that time (November 1985) only two Local 483-rep-
resented fitters remained in AAFP’s employment at the
project, Cerrito and Thomas Bell,9 AAFP’s work at the
project was still incomplete, however, and AAFP was con-
tinuing to employ nonunion fitter working under Lawson’s
direction, as well as Cerrito and Bell.
On December 5, 1985, Local 483 formally rejected
AAFP’s repudiation of the contract, stating the grounds re-
lied on for that repudiation were invalid, the contract was
still in full force and effect, and on December 23, 1985 filed
another grievance alleging AAFP was violating the contract
by hiring and assigning fitters to perform work at the Spring
Lake project who were not referred from Local 483’s hiring
hall, who were not members of Local 483, and who were not
being compensated in accordance with the provisions of the
AAFP-Local 483 1984–1987 contract. AAFP refused to proc-
ess the Local 483 grievances on the ground that AAFP-Local
483 contract was terminated by its November 1985 repudi-
ation thereof.
On December 31, 1985, Lawson told Cerrito and Bell they
were laid off. When asked why, Lawson responded AAFP
had decided to go completely nonunion, and was going to
complete the job with nonunion help (he earlier told Cerrito
he could get nonunion help at far lower wages—as AAFP’s
payrolls show).
AAFP’s work on the project was still incomplete in Feb-
ruary 1986, when AAFP entered into a contract with Stand-
ard Fire Protection Company10 to work on sprinkler installa-
tion at the project (Standard completed its work at the project
on March 14, 1986). Lawson and others continued to work
on the W & B-AAFP contract beyond that time, into July
1986, at rates far below those set out in the 1984–1987
AAFP-Local 483 contract, and without payment of fringe
benefits.11
AAFP continued to work on completing the W & B-AAFP
contract through July 1986, utilizing nonunion fitters.
Following the Board’s issuance of its Deklewa decision,12
Local 483 formally advised AAFP of the decision and re-
quested that AAFP honor it 1984–1987 contract with Local
483. AAFP failed to respond and on April 30 1987, Local
483 filed a charge in Case 20–CA–21164 alleging AAFP
violated Section 8(a)(1) and (5) of the Act by its November
29, 1985 repudiation of the 1984–1987 AAFP-Local 483
contract.
On June 26, 1987, Region 20 dismissed Local 483’s April
30, 1987 charge in Case 20–CA–21164 on the ground the re-
pudiation occurred more than 6 months prior to the filing of
the April 30, 1987 charge and thus was untimely under Sec-
tion 10(b) of the Act. Local 483 did not appeal the dismissal,
but on June 2, 1987, amended its May 2, 1986 charge in this
case (Case 20–CA–20325) to allege AAFP violated Section
8(a)(1) and (5) of the Act by failing and refusing to honor
the 1984–1987 AAFP-Local 483 contract on and after De-
cember 2, 1986, i.e., from a date commencing 6 months prior
to the date it filed its June 2, 1987 amended charge in this
case.
On January 8, 1988, Local 483 asked the General Counsel
to join the allegations of its April 30, 1987 charge in Case
20–CA–21164 (that AAFP has violated the Act since No-
vember 20, 1985, when it repudiated the AAFP-Local 483
1984–1987 contract, rather than since December 2, 1986, 6
months prior to its filing of the amended charge in this case,
Case 20–CA–20325) to the complaint issued by the General
Counsel in this case, stating Local 483 inadvertently failed
to appeal Region 20’s dismissal of Local 483’s April 30,
1987 charge in Case 20–CA–21164.
On February 11, 1988, the General Counsel characterized
Local 483’s request as an appeal of Region 20’s April 30,
1987 dismissal of Local 483’s charge in Case 20–CA–21164
and ruled Local 483’s claimed inadvertence an insufficient
basis for accepting and processing the untimely appeal.
Deklewa and subsequent decisions13 have established an
employer in the construction industry violates Section 8(a)(1)
and (5) of the Act by repudiating a prehire contract entered
into with a labor organization prior to an NLRB-conducted
election in which the labor organization in question failed to
1019AMERICAN AUTOMATIC FIRE PROTECTION
14 In apparent recognition of the language of the Act (Sec. 10(a)) stating:
‘‘The Board is empowered . . . to prevent any person from engaging in any
unfair labor practice . . . affecting commerce. This power shall not be affected
by any other means of adjustment or prevention that has been or may be es-
tablished by agreement, law or otherwise . . . .’’
establish majority representative status or the expiration of
the contract.
Findings have been entered AAFP, at times pertinent, was
an employer in the construction industry; AAFP entered into
a prehire contract with Local 483 in December 1984 cov-
ering the wages, hours, and working conditions of fitters em-
ployed by AAFP within Local 483’s geographical jurisdic-
tion for a term extending from August 1, 1984, through July
31, 1987; AAFP partially complied with that contract
through November 1985; in November 1985 AAFP repudi-
ated that contract and thereafter failed and refused to comply
with its terms.
Those facts establish a violation by AAFP of Section
8(a)(1) and (5) of the Act within the purview of Deklewa and
subsequent decisions.
AAFP argues Region 20’s dismissal of Local 483’s charge
in another case that AAFP violated the Act by its November
1984 repudiation on the ground the charge in that case was
untimely filed and the General Counsel’s refusal to add that
charge to this case bars entry of a finding and conclusion
AAFP violated the Act by failing and refusing to comply
with the AAFP-Local 483 contract from a date 6 months
prior to the date Local 483 filed an amended charge so alleg-
ing in this case.
Local 483 consistently has maintained the contract was
viable and enforceable for its full term and based its June 2,
1987 amended charge on AAFP’s failure and refusal to com-
ply with its April 8, 1987 request that AAFP honor that con-
tract for the remainder of its term on the Deklewa decision.
If under Deklewa the contract is viable for its full term, then
it is enforceable throughout that term and I so find and con-
clude, rejecting AAFP’s contention the dismissal of the
charge in another case (that AAFP violated the Act by its
November 1985 contract repudiation of the contract) bars the
entry of a finding and conclusion Local 483 timely charged
and the General Counsel proved AAFP violated the Act by
failing and refusing to comply with Local 483’s 1987 request
that AAFP honor the AAFP-Local 483 1984–1987 contract
for the balance of its term.
AAFP also contends the National Labor Relations Board
(the Board) is collaterally estopped from entering the finding
and conclusion just set forth by a previously issued United
States district court decision denying funds named in the
1984–1987 AAFP-Local 483 payments required under the
contract to the funds for months following the November
1985 AAFP repudiation of the contract.
AAFP neither cited nor produced a copy of the court deci-
sion and did not contradict the General Counsel’s representa-
tion the court in its decision ruled the Board had primary ju-
risdiction to determine whether AAFP’s failure and refusal to
comply with Local 483’s request that AAFP honor the con-
tract for the balance of its term violated the Act.14
In view of the foregoing, I also reject AAFP’s collateral
estoppel contention.
I thus find and conclude AAFP violated Section 8(a)(1)
and (5) of the Act by failing and refusing to comply with
Local 483’s April 1987 request to honor the 1984–1987
AAFP-Local 483 contract for the balance of its term.
I further find and conclude AAFP terminated Cerrito and
Bell in December 1985 because of their membership in and
support of Local 483. AAFP was paying its nonunion fitters
employed at the Spring Lake project prior and subsequent to
the Cerrito and Bell terminations considerably less than it
had to pay Cerrito and Bell, the sole remaining Local 483-
represented fitters employed at the project and, as Lawson
advised Cerrito and Bell, felt it was free after the November
29, 1985 AAFP repudiation of the 1984–1987 AAFP-Local
483 contract to complete AAFP’s work on the project with
lower-paid, nonunion fitters, as it did following the Cerrito-
Bell termination except for token compliance with its W &
B contract (after receiving notice W & B had received a
complaint from Local 483 over AAFP’s noncompliance with
the W & B-AAFP contract provision requiring the use of
union-represented fitters at the project). It is obvious AAFP
kept a few of the Local 483-represented fitters on the Spring
Lake project to forestall any Local 483 complaints over its
failure to fully man the project with Local 483-represented
fitters (at considerably greater cost). When that strategy
failed with the filing and inability to reach an adjustment of
Local 483’s grievances over that failure, AAFP abrogated its
contract requiring the use of Local 483-supplied fitters, pay-
ment of the wages and benefits required thereunder, and the
requirement it arbitrate Local 483’s grievance. Shortly there-
after, feeling no need to maintain a token employment of
Local 483-represented fitters at the wage and benefit levels
they were receiving, AAFP laid off Cerrito and Bell because
of their continued affiliation with and support of Local 483.
On the basis of the foregoing, I find and conclude AAFP
violated Section 8(a)(1) and (3) by terminating Cerrito and
Bell in December 1985.
CONCLUSIONS OF LAW
1. At all pertinent times AAFP was an employer engaged
in commerce in the construction industry within the meaning
of Sections 2 and 8(f) of the Act.
2. At all pertinent times Locals 483 and 669 were labor
organizations within the meaning of Section 2 of the Act.
3. At all material times James Ervin, Jim Low, and Leland
Lawson were supervisors and agents of AAFP acting on its
behalf within the meaning of Section 2 of the Act.
4. AAFP employees in the job classifications set forth in
the 1984–1987 collective-bargaining contract between AAFP
and Local 483 constituted a unit appropriate for collective-
bargaining purposes within the meaning of Section 9 of the
Act.
5. Between 1984 and July 31, 1987, Local 483 was the
duly designated exclusive collective-bargaining representative
of AAFP’s employees in the classifications set forth in the
1984–1987 contract between AAFP and Local 483.
6. AAFP violated Section 8(a)(1) and (3) of the Act by
terminating Joseph Cerrito and Tom Bell in December 1985
because of their membership in and support of Local 483.
7. AAFP violated Section 8(a)(1) and (5) of the Act by
failing and refusing to comply with Local 483’s 1987 request
to honor the 1984–1987 AAFP-Local 483 collective-bar-
gaining contract for the balance of its term.
8. The unfair labor practices specified above affected com-
merce as defined in Section 2 of the Act.
1020 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
THE REMEDY
Having found AAFP engaged in unfair labor practices, I
recommend AAFP be directed to cease and desist therefrom
and take affirmative action designed to effectuate the policies
of the Act.
Having found AAFP violated the Act by failing and refus-
ing to comply with Local 483’s April 1987 request to honor
the 1984–1987 AAFP-Local 483 collective-bargaining con-
tract for the balance of its term, I recommend AAFP be or-
dered to comply with that contract for the period December
2, 1986, through July 31, 1987, the date that contract termi-
nated. Having found AAFP violated the Act by its termi-
nation of Joseph Cerrito and Tom Bell in December 1985,
I recommend AAFP be ordered to make Cerrito and Bell
whole for wage and benefit losses they may have suffered
as a result of their unlawful terminations, with interest on
their wage losses computed in accordance with the formulas
of New Horizons for the Retarded, 283 NLRB 1173 (1987),
Florida Steel Corp., 231 NLRB 651 (1977), and Isis Plumb-
ing Co., 138 NLRB 716 (1962), and moneys due the funds
established for their benefit determined in accordance with
the procedures set out in Merryweather Optical Co., 249
NLRB 1213, 1216 fn. 7 (1979). It is further recommended
AAFP be ordered to make whole any persons denied an op-
portunity to work by AAFP’s failure and refusal to honor the
AAFP-Local 483 collective-bargaining contract between De-
cember 2, 1986, and July 31, 1987, for any wage and benefit
losses they may have suffered, with the determination of the
entitled individuals, the wages, the benefits and the fund pay-
ments due left to the compliance phase of this proceeding.
[Recommended Order omitted from publication.]