F.M.I. Supply, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1981

258 N.L.R.B. 604 (N.L.R.B. 1981)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
F.M.L. Supply, Inc. and United Association of Jour-
neymen and Apprentices of the Plumbing and
Pipefitting Industry of the United States and
Canada, Local Union No. 13. Cases 3-CA-9455
and 3-CA-9763
September 30, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On January 28, 1981, Administrative Law Judge
Robert W. Leiner issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions and a brief, the General Counsel and the
Charging Party each filed cross-exceptions and
supporting briefs, the General Counsel refiled his
brief which he had submitted to the Administrative
Law Judge, and the Charging Party filed a brief in
answer to the Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, and conclusions' of the Administrative Law
Judge, to modify his remedy, and to adopt his rec-
ommended Order,2 as modified herein.
AMENDED CONCLUSIONS OF LAW
Add the following as Conclusion of Law 11, and
renumber the remaining Conclusions of Law ac-
cordingly:
"11. By constructively discharging employees
Charles A. Thompson, Joseph Kohlmeier, and
James O'Leyar by conditioning continued employ-
ment upon abandonment of the Union, and by ex-
pressly discharging employee Robert J. Kennedy
for his refusal to accept a change in his pay rate
and because he was causing unrest among non-
union employees by discussing the old union terms
and conditions of employment, Respondent violat-
ed Section 8(a)(3) and (1) of the Act."
THE REMEDY
We agree with the Administrative Law Judge
that the Respondent is estopped to deny its con-
tractual relationship with the Union, and that it un-
lawfully discontinued its contributions to various of
i The Administrative Law Judge inadvertently omitted in his Conclu-
sions of Law a finding of a violation of Sec. 8(a)(3) and (I). We will,
therefore, amend his Conclusions of Law accordingly.
2 In accordance with his dissent in Olympic Medical Corporation, 250
NLRB 146 (1980), Member Jenkins would award interest on the backpay
due based on the formula set forth therein.
the Union's trust funds established by the collec-
tive-bargaining agreements covering the Respond-
ent's residential and commercial bargaining units.
We further agree with his remedial Order requiring
the Respondent to make the employees and/or
Union whole by paying into each fund the sums re-
quired under the respective contracts, or any modi-
fication, extension, or renewal thereof, until such
time as the parties negotiate either a new agree-
ment or reach impasse. We disagree, however,
with his deferral to the compliance stage of this
proceeding the ancillary questions of interest or
penalties due on such delinquent payments. The
contract contains explicit language which defines
delinquent contributions and, as mandatory liqui-
dated damages, provides for the payment into each
fund of an additional amount equal to 10 percent of
the sum required to be submitted. Accordingly, we
shall order Respondent to pay into each of the
specified trust funds, except for the Mechanical
Contractors Industry Advancement Program, 3 an
additional 10 percent of the delinquent contribu-
tions due those funds as liquidated damages.4
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
F.M.L. Supply, Inc., Henrietta, New York, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order, as
so modified:
1. Insert new paragraph 2(d) as follows, and re-
letter the subsequent paragraphs accordingly:
"(d) In accordance with the terms set out in the
applicable collective-bargaining agreements be-
tween the parties, pay into the above-specified
funds, as liquidated damages, an additional 10 per-
cent of the delinquent contributions due those
funds pursuant to paragraph 2(c) of this Order."
2. Substitute the attached notice for that of the
Administrative Law Judge.
' Inasmuch as industry promotion funds are permissive, nonmandatory
subjects of bargaining, it is not an unfair labor practice for an employer
to refuse to bargain over them See Finger Lakes Plumbing & Heating Co.,
Inc., 254 NLRB 1399 (1981)
' Peerless Roofing Co.. Ltd., 247 NLRB 500 (1980).
258 NLRB No. 83
604
F.M.L. SUPPLY, INC.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT fail or refuse to give effect
to, or fully comply with, the following two
agreements, or, if they be expired, to their
terms which relate to wages, hours, and other
terms and conditions of employment, between
the Mechanical Contractors Association of
Rochester, Inc., and Association of Plumbing-
Heating-Cooling Contractors of Rochester,
Inc., and United Association of Journeymen
and Apprentices of the Plumbing and Pipefit-
ting Industry of the United States and Canada,
Local Union No. 13, which agreements are en-
titled "Articles of Agreement," in existence for
the term May 1, 1976, through May 31, 1979,
and any modification, renewal, or continuation
thereof; and that agreement entitled "Residen-
tial Articles of Agreement" which agreement
was enforced and in effect for the period May
1, 1970, to April 30, 1973, and its supplements
covering the periods May 1, 1973, to May 31,
1980, and any renewal, modification, or further
supplement thereto, according to their tenor
and effect, with respect to the employees in
the following appropriate units:
(1) All employees of F.M.L. Supply, Inc., at
its Henrietta, New York place of business,
doing the work in the plumbing, heating and
pipefitting trade; and
(2) All employees of F.M.L. Supply, Inc., at
its Henrietta, New York place of business
performing commercial heating and air con-
ditioning work.
WE WILL NOT fail or refuse, on request, to
bargain collectively with the Union as the ex-
clusive collective-bargaining representative of
the employees in the above-described appro-
priate units.
WE WILL NOT unilaterally change the wages
and other terms and conditions of employment
of our employees in the above-cited appropri-
ate units without prior notice and consultation
with the Union as the exclusive collective-bar-
gaining representative of said employees.
WE WILL NOT bargain directly and individ-
ually with any employees in the aforesaid
units.
WE WILL NOT discharge, constructively dis-
charge, or otherwise unlawfully discriminate
against employees with regard to their wages,
hours, and other terms and conditions of em-
ployment.
WE WILL NOT fail or refuse to make pen-
sion, health and welfare insurance, and other
contractually required contributions to funds
and dues-checkoff deductions and remit same
to the Union pursuant to lawful collective-bar-
gaining agreements or extensions, modifica-
tions, or renewals thereof, between the parties.
WE WILL NOT institute unilateral changes in
the wages, hours, and other terms and condi-
tions of employment of our employees during
the effective term of the collective-bargaining
agreement concerning said employees without
complying with the provisions of Section 8(d)
of the Act.
WE WILL NOT announce to our employees
the possibility or the fact that we are going
nonunion and soliciting our employees' views
with respect to that possibility during any time
when we are obliged to recognize and bargain
with the Union or any other labor organiza-
tion or when we are estopped to deny such
obligation.
WE WILL NOT promise or grant benefits to
employees who are willing to work under
nonunion conditions.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WE WILL, upon request, recognize and bar-
gain in good faith with the Union as the exclu-
sive collective-bargaining representative of the
employees in the aforesaid appropriate bar-
gaining units with respect to rates of pay,
wages, hours of work, and other terms and
conditions of their employment.
WE WILL restore and place in effect all
terms and conditions of employment provided
by the aforesaid articles of agreement and resi-
dential articles of agreement as they existed as
of May 31, 1979, as modified by any renewals,
extensions, modifications, or supplements until
such contracts or their renewals lapse by their
terms after said date and we and the aforesaid
Union bargain to good-faith impasse thereon
or execute new collective-bargaining agree-
ments.
WE WILL make such pension, annuity, joint
apprentice, insurance, welfare, other payments,
and contributions to the Union and to the sev-
eral pension, welfare, and other funds on
behalf of and to those employees in the above-
described appropriate units for whom such
contributions were previously made, or should
605
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have been made, had we not ceased to comply
with the aforesaid contracts and paid the same
wages and make the same contributions on
behalf of employees performing the work
thereof in the above-described units hired in or
after September 1979 except that no deduc-
tions or remissions of union dues or fees shall
be made on their behalf except insofar as they
shall have provided us, in writing, with au-
thorizations therefor.
WE WILL also pay into those funds, as liqui-
dated damages, an additional sum amounting
to 10 percent of the delinquent contributious
due to those funds.
WE WILL offer to Charles A. Thompson,
James O'Leyar, Joseph Kohlmeier, and Robert
J. Kennedy immediate and unconditional rein-
statement to their former or substantially
equivalent positions of employment, discharg-
ing, if necessary, any replacements, without
prejudice to their seniority or other rights or
privileges and WE WILL make each of them
whole for any loss of wages suffered by reason
of our unlawful conduct against him with in-
terest.
F.M.L. SUPPLY, INC.
DECISION
STATEMENT OF THE CASE
ROBERT W. LEINER, Administrative Law Judge: This
consolidated matter was heard before me in Rochester,
New York, on various dates on and between October 6
and 22, 1980, upon a consolidated complaint and notice
of hearing dated June 11, 1980,' which alleged generally
that F.M.L. Supply, Inc., Respondent herein, violated
Section 8(a)(1), (3), and (5) of the National Labor Rela-
tions Act, as amended, 29 U.S.C. §151, et seq., by, inter
alia, constructively discharging or discharging four
named employees in September and October 1979, and
March 1980; by withdrawing recognition from, abrogat-
ing collective-bargaining agreements with, and making
unlawful unilateral changes in the terms and conditions
of employment of its employees, employed in appropri-
ate units, who were members of and represented by
United Association of Journeymen and Apprentices of
the Plumbing and Pipefitting Industry of the United
States and Canada, Local Union No. 13, herein called
the Union or Local 13; and by independent violations of
Section 8(a)(1) of the Act in announcing to employees
the possibility that Respondent was "going nonunion"
and thereafter in advising them that it was "going non-
union" and then soliciting its employees' views about its
going nonunion. Respondent's timely answer admits var-
ious allegations of the complaint, denies the Union's ma-
The charge in Case 3-CA-9455 was filed and served on November
28, 1979; and in Case 3-CA-9763, the charge was filed on April 30, 1980.
and served on Respondent on May 1, 1980.
jority status,2 the appropriateness of the units, and its re-
fusal to bargain collectively within the meaning of the
Act and alleges that it has never been bound by any col-
lective-bargaining agreement with or recognition of the
Union and denies all unfair labor practices including the
unlawful terminations as alleged.
At the hearing, all parties were represented by coun-
sel, were afforded full opportunity to be heard, to intro-
duce and meet material evidence, to call and examine
witnesses, and to present oral argument. At the conclu-
sion of receipt of the evidence, all parties waived oral ar-
gument and filed post-hearing briefs. Upon consideration
of the entire record, including the briefs, and upon my
observation of the demeanor of the witnesses, I make the
following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
The complaint alleges, Respondent admitted in the
pleadings and at the hearing, and I find that at all materi-
al times Respondent, a New York corporation, main-
tained its principal office and place of business at 3177
East Henrietta Road, Henrietta, New York, where it is
engaged in the business of providing residential and com-
mercial contract plumbing services. During the year pre-
ceding issuance of complaint, Respondent purchased and
received at the above facility goods and materials valued
at in excess of $50,000 from enterprises located within
the State of New York, each of which enterprises re-
ceived the said goods and materials from points directly
outside the State of New York. In the same period, Re-
spondent provided contracting services valued at an
excess of $50,000 for enterprises in the State of New
York, each of which enterprises annually handles, pro-
duces, and ships goods valued in excess of $50,000 di-
rectly to points outside New York State. The complaint
alleges, Respondent admits, and I find that it is, and has
been at all material times, an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the evidence demonstrates, and
I find that at all material times the above-captioned
Local Union No. 13, United Association of Plumbers,
has been and is a labor organization within the meaning
of Section 2(5) of the Act. In addition, Respondent
admits that Michael Lenhard is the president, and Ken-
neth Lenhard, his father, is the business manager of Re-
spondent and as such, since 1976, are supervisors and
agents of Respondent within the meaning of Section
2(11) and (13) of the Act. I so find.
2 During the hearing, the parties stipulated that at all times until Sep-
tember 9, 1979, Local 13 members constituted a majority of Respondent's
work force, excluding office clericals, supervisors, and guards as defined
in the Act.
606
F.M.L. SUPPLY, INC.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Prior to 1970, Kenneth Lenhard, father of Michael
Lenhard, was the principal supervisor, owner, and direc-
tor of the plumbing contracting service named Lenhard
Mechanical Co. For a period of some 16 years prior to
1970, Lenhard Mechanical and its predecessors, all of
whom were under the direction and control of Kenneth
Lenhard, were plumbing contractors performing residen-
tial and commercial contracting services in the Rochester
area. Through these employers, Kenneth Lenhard was a
member of a multiemployer collective-bargaining agency
known as Associated Plumbing-Heating Cooling Con-
tractors of Rochester, Inc., herein called the Association,
which bargained successive collective-bargaining agree-
ments, inter alia, with the Union for at least the 16-year
period ending 1970. Respondent admits that up to 1970
Lenhard Mechanical was a member of the Association
and bargained with the Union, expressly accepting,
adopting, and abiding by the terms of the negotiated col-
lective-bargaining agreements through 1970. Commenc-
ing in or about 1970 and 1971, however, Lenhard Me-
chanical Co. suffered financial reverses. It is unclear on
this record whether it actually went through bankruptcy
proceedings and it is also unclear whether, as a corporate
shell, Lenhard Mechanical survives. In any event, in or
around 1971, the above-captioned Respondent corpora-
tion was formed with Kenneth Lenhard's wife, F. Marjo-
rie Lenhard, as its president. Kenneth Lenhard was its
business manager and sometimes executed documents as
its vice president. Michael Lenhard was a field employee
both for Lenhard Mechanical and Respondent F.M.L.
Supply, Inc., through 1975. In early 1976, the above F.
Marjorie Lenhard ceased being the F.M.L. president and
her son, Michael Lenhard, became president. Mrs. Len-
hard remained as Respondent's bookkeeper. Commenc-
ing with the Union-Association collective-bargaining
agreement (G.C. Exh. 3) in effect for the period May 1,
1970, through April 30, 1973, the Association was super-
seded by a new multiemployer group, Mechanical Con-
tractors Association of Rochester, Inc. (MCA).
Although, as above noted, Lenhard Mechanical Co.
was long a member of the Association, it never became a
member of MCA. In the 10-year period preceding 1970,
Kenneth Lenhard was the chairman of the Association's
collective-bargaining committee and helped create the
pension fund established in and now existing under
successive collective-bargaining agreements.
Through 1968, the terms and conditions of employ-
ment, especially the wage rates for employees of plumb-
ing contractors performing both residential and commer-
cial work, were included in a single collective-bargaining
agreement. Commencing in 1968, however, two collec-
tive-bargaining agreements were concluded between the
Union and the contractors: One relating to "residential"
rates, and a separate agreement relating to "commercial"
rates. Residential rates related to that segment of the in-
dustry concerning the repair and servicing of residential
establishments; the commercial rates applied to all new
construction, to service and repair of commercial estab-
lishments, and to residences of four or more floors. Con-
tributions to the various union funds (pension, welfare,
vacation) for the benefit of employees covered by the
successive collective-bargaining agreements varied where
the employee was engaged in commercial or residential
work, the contributions being greater for commercial
work. Similarly, commercial wage rates were higher.
MCA and the Union negotiated and executed succes-
sive collective-bargaining agreements covering residen-
tial work, the latest residential agreement covering the
period May 31, 1978, through May 31, 1980 (G.C. Exh.
6). The latest commercial collective-bargaining agree-
ment covered the period May 1, 1976, through May 31,
1979 (G.C. Exh. 10). A subsequent commercial agree-
ment, not in evidence, apparently covers a period ending
May 1982.
The practice regarding execution of collective-bargain-
ing agreements was for the members of MCA to execute
copies of the agreement. The Union would then dispatch
to nonmembers who wished to be similarly bound a one-
page memorandum of agreement signifying assent to the
separate residential and commercial agreements negotiat-
ed by MCA and the Union. The nonmember would sign
the one-page memorandum agreement and remit it to the
Union. The Union maintains these one-page memoranda
of agreement from the nonmember employers in its files
and remits to each employer a photostat of the Union's
signature on each such signed memorandum agreement.
B. The Structure of F.M.L Supply, Inc.;
Appropriateness of Units
F.M.L. Supply, Inc., like its predecessors, is a plumb-
ing contractor engaged primarily in sewer maintenance
and clearance, water main hookups, and repair services.
Over the years, certainly in the period 1978 through
1980, about 35 percent of F.M.L.'s business has been
commercial and 65 percent residential. Respondent ordi-
narily avoided new construction work and even renova-
tion work involving bathrooms. Its involvement in a
large new construction job (Lakeshore Country Club)
starting in February 1979, for which Respondent evaded
paying the proper commercial rates, in large part led to
the charges in this proceeding. Its speciality was sewer
cleaning and water main connections, both residential
and commercial.
At all material times, in the above period, it employed
up to about seven plumbers, all of whom were members
of Local 13, and the majority of whom were hired
through Local 13's nonexclusive Rochester, New York,
hiring hall. In addition, Respondent employed one and
sometimes two "laborers" who excavate trenches for
laying sewer pipe and perform work such as breaking up
concrete floors prior to the repair or installation of pipe.
Plumbers do not do such work. Respondent's servicemen
(i.e., plumbers) operate Respondent's trucks on which
there is various plumbing equipment especially devices
for the clearing of clogged sewer pipe. Respondent's la-
borers who work closely with the plumbers also operate
trucks but these trucks do not contain plumbing equip-
3 It is unclear whether these percentages refer to dollar volume, time
worked, number of jobs, etc.
607
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment. Respondent's plumbers, with or without the help
of laborers, often engage in nonplumbing work in order
to perform their plumbing services of cleaning out the
sewers and hooking up pipes; but its laborers do not per-
form plumbing services. Laborers are called in where the
nonplumbing work is considerable. In jobs requiring less
nonplumbing work (i.e., "one man" jobs), the plumbers
do such necessary work.4
The collective-bargaining agreements, both residential
and commercial, contain union recognition clauses in
units of "employees of the employers doing work in the
plumbing heating and pipefitting trade" (commercial)
and employees performing "commercial plumbing, heat-
ing and air conditioning work" (residential). Respondent,
pursuant to its answer denying the appropriateness of the
above-pleaded units, alleges that all of its servicemen, in-
cluding laborers, perform the same work and therefore,
particularly in view of the fact that, as the Union ad-
mitted, the Union did not seek the membership of the la-
borers in the units, the contractual plumbing unit, as ap-
plied to Respondent, was an inappropriate unit for col-
lective-bargaining purposes. Respondent denies the ap-
propriateness of the units as applied to its operations
both in the residential and commercial collective-bargain-
ing agreements between MCA and the Union. The above
evidence, however, demonstrates that the laborers do
work not performed by plumbers and plumbers, be they
labeled servicemen or plumbers, perform work not per-
formed by the laborers though the plumbers also per-
form some nonplumber's work. As such, I find, contrary
to Respondent's assertion, that the plumbers in Respond-
ent's employ are paid differently from laborers and per-
form residential and commercial plumbing services (with
its piping, fitting, and metal work skills) distinct from the
laborers who, although they aid the plumbers, do not
perform plumbing work. I also find, on the basis of un-
disputed evidence, that Respondent's laborers were not
members of the Union and were either nonunion or
members of the Laborers Union. I therefore conclude,
contrary to Respondent's denial, that the preponderant
evidence supports the appropriateness of the pleaded
units, limited, inter alia, to plumbers, both residential and
commercial, and I find such units appropriate for the
purposes of collective bargaining within the meaning of
Section 9(b) of the Act. Moreover, in view of Respond-
ent's concession and stipulation that at all material times
until September 9, 1979, Local 13 members constituted a
4 Respondent, noted below, paid its plumbers at least at the union wage
scale and was required to remit to the several union benefit funds on
their behalf according to the requirements of the pertinent commercial
and residential collective-bargaining agreements.
That Respondent, unknown to the Union, often evaded, for instance
both paying commercial wage rates established by the MCA-Union con-
tract and remitting commercial fringe benefits to the funds, is immaterial.
It complied, albeit protesting its poor financial position, whenever the
Union discovered Respondent paying only residential wage rates and re-
mitting residential fringe benefits for employees engaged in commercial
work. As Kenneth Lenhard testified, this problem became acute, com-
mencing January or February 1979, when the Union discovered Re-
spondent engaged in a large new construction project (Lakeshore Coun-
try Club) and insisted on commercial wage rates and fringe contributions.
I agree with the Union and the General Counsel that it was over this
issue that Respondent decided to "go non-union," spawning the defense
that it was not bound to pay wages and remit contributions according to
any union agreement.
majority of its work force (excluding its office clerical
employees, supervisors, and guards as defined in the
Act); and since the evidence, in addition, demonstrates
that all of its plumbers were members of Local 13 up
through in or about August 1979, I find and conclude
that, at all material times, the Union represented a major-
ity of Respondent's employees in the above appropriate
units.
Furthermore, I find, contrary to Respondent's asser-
tion that it was a mere "service operation" and not a
contractor, that it was and is a residential and commer-
cial plumbing contractor principally engaged in sewer
repair and cleaning functions, not unique in the Roches-
ter area. Rather, the evidence shows that at least two
dozen other plumbing contractors advertise in the Roch-
ester phone book and offer the same or similar services
as Respondent. The evidence is unclear as to what per-
centage of their respective businesses was devoted to
sewer cleaning but, as Respondent admits, there were
several other contractors performing the same amounts
of residential and commercial work as did Respondent.
For the purpose of this Decision, one may grant, ar-
guendo, Respondent's assertion that its principal competi-
tors were not signatory to or bound by any collective-
bargaining agreement with the Union, and therefore Re-
spondent, if it were required to abide by the union con-
tracts, would be at a competitive disadvantage.
C. Hiring, Wages, and Benefits
With the 1971 inception of F.M.L. Supply, Inc., it
most often secured its plumbing employees, as above
noted, through the Union's Rochester hiring hall, but
when hiring through the hall was unproductive, Re-
spondent nevertheless hired members of the Union as its
plumbing employees. In either case, the Union was noti-
fied of the particular employment and the new employ-
ees executed union dues checkoff cards, returned them to
the Union, and left copies with Respondent.
Pursuant to its employing union members as its plumb-
ers, the evidence demonstrates, and Respondent admits,
that between 1971 through the summer of 1979, Re-
spondent consistently paid such employees at least the
wages pursuant to the various changes in wage rates as
established in successive MCA-Union collective-bargain-
ing agreements, both commercial and residential, as here-
after more specifically described. Thus, as Mrs. Lenhard
testified, both while she was president of Respondent and
thereafter merely its bookkeeper, from time to time she
would have conversations with the Union in which the
Union notified her of various changed wage rates and
other changes, and she would also have conversations
with her husband and son wherein they would direct her
to make wage changes for Respondent's union members;
i.e., plumbers pursuant to having received intermittent
union communications advising Respondent of new con-
tract of wage rates. Respondent, as a matter of practice,
invariably adjusted its pay rates pursuant to the advice
from the Union of such contractual5 wage changes. In
' As noted, infra, newly hired plumbers were told they were being
hired in "residential shop" and were being paid at residential rates.
608
F.M.L. SUPPLY, INC.
light of this testimony, it is immaterial that, according to
industry practice, Respondent paid some of its plumbers
above scale and, as Respondent asserts, did not abide
strictly by contract maximums. Other failures to abide by
the contract were the product of concealment unknown
to the Union. In addition, Respondent regularly checked
off and remitted to the Union its plumbers' union dues.
The amount of the monthly checkoff varied with notifi-
cation from the Union of upward revisions of union
dues. Further, Respondent contributed, on forms specify-
ing the existence of the collective-bargaining agreements,
on a monthly basis along with dues deductions, to six
employee benefit funds established by the collective-bar-
gaining agreements including the pension fund, group in-
surance fund, vacation fund, Local 13 annuity fund, joint
apprentice committee fund, and industry advancement
fund. Ordinarily, these contributions were properly at
rates for work performed under the residential agree-
ment. Where Respondent's employees did commercial
work, and therefore were required to be paid higher,
direct wage rates under the commercial agreement, Re-
spondent nevertheless paid only residential wage rates
and contributed at the lower residential rate. It paid and
contributed at the commercial level only when the
Union caught Respondent working on a commercial job.
Otherwise, Respondent, on commercial jobs, paid its em-
ployees the residential rate and made fund contributions
at the residential rate.
The administrator of the funds, selected by the funds'
trustees, oversees the timely receipt of proper employer
contributions, the correct postings to each employer fund
account, and handles complaints from employee benefici-
aries.
Fund remittances from employers, like Respondent, on
union-provided forms, though reported on a monthly
basis, are sent in weekly under the terms of the collec-
tive-bargaining agreement. In case of employer delin-
quency, the Union, upon notification from the adminis-
trator, is obliged to remove its members from the delin-
quent contractor's shop. In addition, fines of 10 percent
of the contribution are prescribed for delinquent pay-
ments as liquidated damages. Thus, the record demon-
strates that in the period August 9, 1971, through June
24, 1979, Respondent made contributions to the various
contract-established benefit funds for employees (G.C.
Exhs. 24, 25, 26, 27, and 28). These contributions were,
from time to time, subject to Respondent's payment of
fines for its chronic delinquency.
At regular intervals after 1971, consistent with the ex-
ecution of successive collective-bargaining agreements
between MCA and the Union, the Union mailed to Re-
spondent, as a nonmember of MCA, both the agreed
terms and conditions of employment and a blank, one-
page memorandum of agreement whose execution would
signify Respondent's agreement to be bound. Thus, for
the commercial agreement, Respondent on or about Jan-
uary 26, 1979, dispatched the "60-day" letter pursuant to
Section 8(d) of the Act notifying Respondent that the
new collective-bargaining agreement (commercial),
which was to expire May 31, 1979, would be renegotiat-
ed (G.C. Exh. 15). Thereafter, by letter dated June 1,
1979 (G.C. Exh. 16), the Union mailed to Respondent
the new commercial wage rates and fringe benefits, to-
gether with checkoff rates which would be effective
June 1, 1979, through 1982. No such disposition occurred
in 1979 with regard to the residential contract because it
did not expire until May 31, 1980 (G.C. Exh. 6).
In the period 1971 through 1979, when the Union sent
to F.M.L. Supply, Inc., notice of renegotiation and ex-
ecution of the latest contracts, and the request to execute
the memorandum agreement, the last of which, as above
noted, was for the commercial agreement in or about
June 1, 1979, Respondent's witnesses (Michael and Ken-
neth Lenhard) testified that they never signed any agree-
ment of any kind with the Union. Indeed, they said they
first hung the unexecuted union requests on an office
wall and thereafter filed or discarded each and every one
of them without either signing them or remitting them to
the Union. They never notified the Union that they had
not signed or would not sign. On the contrary, in the
summer of 1979, they assured the Union of their intent to
execute the new commercial agreement.
It is undisputed that Respondent in the period 1971
through 1979 was chronically delinquent in remitting
fringe benefits contributions to the Union's several funds.
As a result of these delinquencies, the Union and Re-
spondent agreed to intricate formulas and devised var-
ious devices and repayment schedules in order to liqui-
date Respondent's delinquencies (G.C. Exh. 29, 1974-75).
In an arrangement of June 1976 for the payment of delin-
quencies (G.C. Exh. 30) the agreement included payment
of delinquent contributions through April 30, 1976, with
the notation that the sums included the liquidated dam-
ages "as provided for in the Collective-Bargaining
Agreement .... " By January 20, 1977, the schedule for
repayment of delinquent contributions contained constant
reminders of the obligation to pay, the fines to be col-
lected, and warnings that continued delinquencies would
result in the removal of union employees from Respond-
ent's shop, all of the above pursuant to the collective-
bargaining agreement. In particular, the Union noted that
the consistent delinquencies constituted violations of the
collective-bargaining agreement. Thus, the Union contin-
ually referred to Respondent's obligations under the col-
lective-bargaining agreement. At no time did Respondent
deny its responsibilities thereunder.
In the summer of 1976, the Union, to collect past de-
linquencies, brought an action in the Supreme Court of
the State of New York (County of Monroe) wherein it
sought judgment for $12,331.85 with costs and disburse-
ments (Resp. Exh. 2). The summons and complaint in
this action, dated July 23, 1976, were not served on Re-
spondent until September 16, 1976. The complaint (never
actually filed) in that action alleges, inter alia, that: "on
or about May 1, 1974, the plaintiff and defendant entered
into an agreement whereby and wherein the defendant
would make certain payments to the plaintiff herein for
each hour worked by beneficiaries of said funds ... ."6
6 For reasons never fully explained at the heanng, the complaint also
alleges, in attaching a copy of the "agreement" referred to in the body of
the complaint, the existence of a contract between the Union and a de-
fendant "DiCesare" There is no dispute that the DiCesare agreement has
Continued
609
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In response, however, to the Union's court action
Kenneth Lenhard, upon service of the summons on Sep-
tember 16, telephoned his attorney, wherein they agreed
that, in order to placate the Union and avoid the lawsuit,
Respondent would remit two certified checks to the
Union in partial payment of its $12,331.85 fund delin-
quency. On the next day, September 17, 1976, Respond-
ent sent a letter of confirmation (Resp. Exh. 3) to its
lawyer in which it, inter alia, confirmed receipt of serv-
ice of the summons and complaint, disputed the correct-
ness of the Union's assertion of the amount owed, and
stated that:
We are not signers of the agreement and F.M.L.
Supply, Inc. never was a signer.
I think this must be quite important as the Union
representatives have been really pressuring me to
sign the agreement in the last couple of weeks.
I was quite surprised by the serving of these
papers as we have made four payments recently and
had thought that we had a good rapport with John
Cullen, the administrator of the funds.
Very truly yours,
s/s Kenneth P. Lenhard
Kenneth P. Lenhard
Enc: copy of summons, complaint and two certified
checks for two payments.
While I admitted this letter into evidence over the
Union's and the General Counsel's objections that it was
self-serving and never exhibited to the Union, the Gener-
al Counsel and the Union neither attacked the document
as inauthentic, nor asked for an extention of time to pro-
cure the testimony of, or the original from, Respondent's
attorney. It was determined at the hearing that the attor-
ney was not in Rochester and would be out of his office
for several weeks at least.
Thereafter, while Respondent continued to be chron-
ically late in its payments to the fringe benefit funds, it
nevertheless continued to make payments to the funds,
continued to remit dues-checkoff contributions, and con-
tinued to receive from the Union requests to execute
successive collective-bargaining agreements (Resp. Exhs.
4-7) together with notices of changes in the wage rates.
In the same period, Respondent regularly asked the
Union to refer plumbers for employment.
D. Union Agents' Testimony Regarding Existence of
Collective-Bargaining Agreement With Respondent
At the hearing, the union agents (Business Manager
Christopher Farrell and former office clerical Patricia
DeConinck), as well as fund administrator John Cullen
(a former union agent), all testified that they had seen at
least one memorandum of agreement 7 wherein Respond-
no bearing on the case and was not an agreement entered into between
Respondent and the Union. Thus, although the complaint recites the at-
tachment of an agreement between the parties, no such agreement was at-
tached to the court papers and, as will be hereafter noted, no agreement
signed by Respondent was ever produced in the instant hearing.
I These witnesses testified that they searched for the F.M.L. Supply
files containing the alleged agreements and could not find the files or any
agreement by F.M.L. Supply.
ent, as a nonmember of MCA, agreed to bind itself to
the MCA agreement. Although Farrell and DeConinck
testified that the existence of the Respondent-signed
agreement or agreements, in the period from 1974
through 1978, was beyond doubt because they prepared
lists of contractors who had signed such agreements
(G.C. Exhs. 11, 12, and 21) only after examining the
Union's files for signed contracts, neither of them, nor
Cullen, was able to identify the signer of the contract,
merely suggesting that it was either Kenneth Lenhard or
Mrs. Lenhard. In view of the fact that Mrs. Lenhard had
ceased to be an officer of Respondent around November
1975, such contract would not reasonably, much less
lawfully, cover the period commencing 1976.
In addition, DeConinck testified most particularly with
regard to whether she had discovered a misplaced,
signed 1979-80 one-page agreement, allegedly misfiled in
the Lenhard Mechanical Co. file. When union counsel
asked whether she had discovered such an F.M.L. agree-
ment misfiled in the Lenhard Mechanical Co. file, she
answered, "Not to my knowledge." In the hearing 2
weeks later, Mrs. DeConinck was specially recalled and
gave testimony contrary to that which she had previous-
ly given. In particular, she remembered Farrell becoming
very angry because she had found an F.M.L. agreement
in the Lenhard Mechanical file. Although she testified it
was signed, she could not testify who had signed it but
merely that it was signed by "one of the Lenhards." In
addition to the Lenhards' denials, Kenneth Lenhard's
further undisputed testimony is that (after the filing of
the first charge herein) in January or February 1980,
while Respondent was still making delinquent payments
to the funds, in a conversation with Fund Administrator
Cullen concerning a consent judgment, he told Cullen
that Respondent's inability to procure employees from
the hiring hall was not a great problem and that he was
not concerned because he had never signed a collective-
bargaining agreement with the Union. Cullen, according
to Kenneth Lenhard, incredulously asked Kenneth Len-
hard: "Do you mean to tell me you never signed a con-
tract?" to which Kenneth Lenhard answered "No." In
light of the above findings, wherein the General Coun-
sel's witnesses generally could not identify the existence
of any signed agreement but particularly in view of the
existence of Kenneth Lenhard's 1976 letter to his lawyer,
written in a period 3 years prior to the commencement
of any conduct or reason to establish the existence (or
nonexistence) of a collective-bargaining agreement relat-
ing to the present issues, I credit Respondent and con-
clude that it never signed any such agreement. Again, I
note the General Counsel's and the Union's failure to
attack the letter (Resp. Exh. 3) as inauthentic or examine
Respondent's lawyer or otherwise to seek to undermine
its authenticity. Once its authenticity is free from attack
and it is otherwise admissible, I give it dispositive
weight. Furthermore, I credit Respondent's denial in the
face of unimpressive contrary testimony of Cullen (who
never actually identified the existence of an agreement),
Farrell, and DeConinck. Farrell's and Deconinck's iden-
tification of various secondary file documents, purporting
to establish the existence of signed agreements, merely
610
F.M.L. SUPPLY. INC.
compound the underlying weakness of this element in
the General Counsel's case.8
E. Respondent's Estopped To Deny It Is Bound by
Existing Collective-Bargaining Agreements With the
Union.
Perhaps recognizing the equivocal nature of its proof
on the question of the de facto execution of any collec-
tive-bargaining agreement by Respondent, the General
Counsel, in complaint paragraphs VII and VIII, alleges
that Respondent "by its actions, has adopted, ratified,
and agreed to be bound to the terms of' the commercial
agreement (which expired on May 31, 1979) and the
"Residential Articles of Agreement" (whose term was
the period May 31, 1978, to May 31, 1980). The General
Counsel argues that the following facts are undisputed
and give rise to such a skein of interrelated conduct as to
estop, under Board and court law, Respondent from
denying its being bound by the terms of existing or re-
cently expired collective-bargaining agreements, viola-
tion of which, wholly apart from Respondent's 8(a)(1)
and (3) conduct in the summer and fall of 1979, result in
violations of Section 8(a)(5) of the Act. Thus, the Gener-
al Counsel points to the undisputed facts and I find that
(1) Respondent consistently used the union hiring hall, a
contractually established device, to procure its plumbers,
which hiring hall was open to employers bound to the
Union by virtue of collective-bargaining agreements; (2)
Respondent consistently paid wages which varied direct-
ly with the wage rates established in successive collec-
tive-bargaining agreements, both commercial and resi-
dential; (3) Respondent paid fines under the contract for
delinquent payments of its fringe benefits contributions,
strictly a contractual device; (4) Respondent paid all ap-
propriate contributions on forms describing the contribu-
tions as being made under the collective-bargaining
agreements, to the various funds established under the
commercial and residential agreements; (5) the fund con-
tributions and the residential and commercial wage rates
are creatures only of the contracts; (6) Respondent em-
ployed only union members in the plumber units; (7) Re-
spondent failed to deny to the Union the execution of or
its being bound by existing collective-bargaining agree-
ments with the Union (a) in the negotiation of various
consent judgments and the settlement of a lawsuit in
which execution of the agreements was alleged; and (b)
in response to union requests that it execute new agree-
ments after being notified that its previous "agreements"
were about to expire.
In this regard, Kenneth Lenhard admitted that, at all
times when he received notices that alleged existing col-
lective-bargaining agreements with the Union was expir-
ing, he never notified the Union of the nonexistence of
such agreements even when Respondent was threatened
Similarly, the General Counsel argues that it is "inconceivable that
the Union and the pension fund trustee, in the absence of a signed agree-
ment, would allow contributions to be made over a 9-year period" appar-
ently in view of the criminal sanctions relating to the receipt of such con-
tributions under Sec. 302(c)5) of the Act. While I do not at all imply the
Union's culpability, I do suggest it acted-and continually acted-under
the mistaken impression, misled by its own records, that there was such
an agreement, or agreements. Thus, contrary to the General Counsel. it is
not "inconceivable."
by a consent judgment and legal action based on the
Union's assertions of the existence of such agreements.
Kenneth Lenhard testified, in particular. that he be-
lieved, at all material times, that the Union was acting
under the belief that a contract between Respondent and
the Union existed; and I find that he acted for the pur-
pose of deceiving the Union in continuing in that errone-
ous belief. In finding that Kenneth Lenhard acted for the
purpose of deceiving the Union into believing in the ex-
istence of the contract I futher conclude that, as he sug-
gested, the reasons that he did so were in order to secure
the Union's aid in obtaining plumbers out of the hiring
hall, guarantee to Respondent a supply of competent
plumbers, and to work as a "union contractor." In addi-
tion, I find that Respondent continued to remit checkoff
dues and contributions and fines into the fringe benefit
funds to take advantage of the ambiguity which it knew
existed and to use the device of such payments to mask
its failure to actually have executed any collective-bar-
gaining agreement in the period 1971 through 1979.
When, in the period February-August 1979, the Union
discovered that Respondent not only was not paying
proper commercial rates on commercial jobs but also
was refusing to do so, and was insisting on a special rate
for itself, the Union refused. At or about the same time,
the Union was pressuring Respondent either to execute
the newly negotiated MCA commercial agreement or to
negotiate a separate agreement, and was balking at send-
ing Respondent plumbers from the hiring hall. Then,
when the Union refused to provide plumbers from the
hiring hall to Respondent, Respondent, for the first time,
asserted that there was no agreement. Respondent's as-
sertion that it had never signed a collective-bargaining
agreement with the Union came about in the following
fashion, after it was "caught" on the Lakeshore job in
January (see fn. 17, infra).
On June 1, 1979, the Union requested Respondent to
execute the newly negotiated MCA commercial agree-
ment. Having received no response by June 15, Farrell
put Parlet on the trail of Respondent. Parlet telephoned
Michael Lenhard on June 26 and told him that the Union
had not received the executed agreement from Respond-
ent. Lenhard, according to Parlet's credited testimony,
told him that he was very busy and that he would sign it
and send it in. On July 10, 1979, when Lenhard request-
ed that the Union send him a plumber from its hiring
hall, Parlet again told him that he had not received the
agreement and Michael Lenhard told him that he would
soon mail it out.
When, in any event, Farrell received no answer from
Respondent with regard to a further September 1 request
for either Respondent's signature on the memorandum of
agreement or the negotiation of a new agreement, the
Union dispatched a letter on September 24, 1979 (G.C.
Exh. 17), requesting "renegotiation" of the commercial
agreement which expired on May 31, 1979. In response
to this union letter, Respondent, by letter dated October
5, 1979, stated:
611
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dr. Mr. Farrell:
I was surprised to get your letter claiming that we
had a contract that expired in May. We don't think
that there is anything to renegotiate since we never
had a contract.
Sincerely yours,
s/s Michael K. Lenhard
Michael K. Lenhard
The General Counsel alleges (par. XII) that commenc-
ing on or about May 31, 1979, Respondent refused to
bargain collectively with the Union in the plumbers unit
because (1) it consistently refused to renegotiate the ex-
pired commercial agreement; (2) it made unilateral
changes in the terms and conditions of employment with-
out consulting the Union; (3) on or about October 5 it
withdrew recognition from the Union as the exclusive
bargaining representative of the plumbers; and thereafter
(4) on March 4, 1980, as hereinafter noted, it made uni-
lateral changes in overtime rates and in granting a $10-
per-week tool allowance to its plumbers.
In addition to the allegations of refusal to bargain by
unilateral changes and withdrawal of recognition com-
mencing May 31, 1979, the General Counsel also alleges
(par. XIV) that commencing June 24, 1979, Respondent
further violated Section 8(a)(5) of the Act by refusing to
make pension and insurance contributions and remit
dues-checkoff moneys to the Union pursuant to the exist-
ing collective-bargaining agreements and, on or about
October 12, 1979, and, thereafter, with regard to the un-
expired residential agreement, instituted changes in the
terms and conditions of its employees' employment in
violation of the provisions of Section 8(d) of the Act. It
is undisputed that Respondent leased making contribu-
tions to Union's fringe benefit funds on or about June 24,
1979 (G.C. Exh. 28). 9 I further credit Farrell's testimony
that there had never been a prior suggestion by Re-
spondent, prior to its October 5, 1979, letter, that there
was no contract between the parties. The June and July
conversations between Parlet and Michael Lenhard, for
instance, demonstrate only that Respondent had failed to
execute the new contract and did not relate to Respond-
ent never having had a contract with the Union. In this
regard, Farrell's and Parlet's versions of their August
1979 telephone conversation with Michael Lenhard are
all not inconsistent with this conclusion. Thus, the Union
threatened Respondent with a refusal to supply employ-
ees out of the hiring hall unless Respondent paid the
commercial rates and executed the new commercial
agreement. Ultimately, Farrell said that he was sending a
union agent (Scott) over to Respondent's office to have
Respondent sign the new agreement and, when Michael
9 It was stipulated at the hearing that commencing after the week
ending October 21, 1979, many of the plumbers received hourly wages
less than those called for in the then existing residential agreement. Re-
spondent also conceded that, commencing in the same period, it began a
fringe benefit program for its employees and a "commission" system as a
supplement to wages. The terms of these benefits (50 percent of the Blue
Cross-Blue Shield Health Insurance for the first 6 months for new em-
ployees, 100 percent thereafter; a S10-week-a-tool allowance, vacation
and holiday pay) were inconsistent with the residential agreement and
were unilaterally instituted. Further, it was stipulated that, in this period,
Respondent continued to perform the same residential and commercial
work, with its own employees, which it had theretofore performed.
Lenhard told him that he would not sign the agreement
because Respondent could not afford to pay the com-
mercial rate, Farrell said that he would not send any
more men. It was only after the September 24 letter
from the Union that, on October 5, 1979, Respondent
said that it never had a contract with the Union.
Certain other contacts between Respondent and the
Union in the period 1976-77 and again in the summer of
1978 are relevant. The events are undenied by Respond-
ent.
In the period 1976-77, Kenneth Lenhard telephoned
Business Manager Farrell to have the Union intercede
with the Monroe County Pure Water Commission in
order to have Respondent get certain water main work
from the Commission.
In the summer of 1978, Kenneth Lenhard telephoned
Farrell to have him intervene with the Rochester Munic-
ipal Employees' Union because Respondent was no
longer getting plumbing work from municipal employees
who were members of that union. He said that the mu-
nicipal employees were giving their residential and other
work to "nonunion" contractors. After Farrell investigat-
ed the matter, he told Lenhard that it was not a munici-
pal employees' union problem; that the idividual mem-
bers were selecting plumbers to do their work; that the
matter was not under the control of the municipal em-
ployees' union and therefore not subject to any form of
persuasion or coercion by the plumbers union.
I conclude that the above two incidents, while am-
biguous, show that Respondent was seeking to have Far-
rell intervene on Respondent's behalf on the basis, inter
alia, that the Union owed an obligation to Respondent.
Whether this "obligation" was bottomed on Respond-
ent's status as an employer employing union members
(and paying union fringe benefits) or because of an out-
standing status as an employer having a statutory bar-
gaining relationship with the Union is unclear and am-
biguous. I cannot, on the basis on these two incidents,
infer that Respondent's conduct necessarily implies, or,
standing alone, is even probative evidence of, the exist-
ence of a bargaining or contract relationship. Taken in
conjunction with other of Respondent's conduct, howev-
er, such conduct takes on other coloration.
F. Discussion and Conclusions
Respondent's 8(a)(5) violations
It is noteworthy that Respondent never used the
Union for the settlement of any grievances, overtly
under a collective-bargaining agreement, with its em-
ployees; never paid dues to MCA or otherwise was ever
a member of MCA; and whereas Respondent paid to its
plumbing employees at least the wage rates established in
the residential agreement and, when, after discovery of
failure to observe the commercial contract requirements,
the commercial rates, it also made special arrangements
with some of its employees, all union members, to pay
them wage rates above the residential contract rate. On
the other hand, Farrell testified, without contradiction,
that the Union's collective-bargaining rates are mini-
mums and that it is not an uncommon industry practice
612
F.M.L. SUPPLY, INC.
for employers under union contract to secure the contin-
ued services of favored employees by direct negotiation
of additional benefits with the employees. This was the
case with Respondent paying double time its residential
rate for overtime (on both residential and commercial
work). Thus, I find that Respondent abided by the con-
tracts.
In the instant case, I have already concluded that, con-
trary to the testimony of the General Counsel's wit-
nesses, there was no collective-bargaining agreement or
acquiescence thereto ever executed by F.M.L. Supply,
Inc., and the Union. Although Farrell, DeConinck, and,
in part, Cullen, would have us believe that there were
such agreements, I have concluded that their testimony
is unreliable and that the failure to produce any F.M.L.
contract based on lost files is not credible. Especially is
this true where, as here, there was confusion between
F.M.L. and Lenhard Mechanical and also on the identifi-
cation of who might have signed on behalf of F.M.L. On
the other hand, I do not conclude, despite this testimony,
that the evidence taken as a whole, demonstrates that the
Union acted in bad faith or was complacently going
along with Respondent (as Respondent suggests) merely
to keep its members employed by Respondent and col-
lect fringe benefits, all the while not caring whether Re-
spondent was in fact a contract signatory. My appraisal
of Farrell and Cullen on the witness stand belies such a
conclusion. Rather, I conclude that a combination of cir-
cumstances flowing from a history of bargaining with
Lenhard Mechanical, and admittedly poor bookkeeping
and recordkeeping (DeConinck testified without contra-
diction that she was hired to organize the Union's disor-
derly records, that upon her arrival at the Union's place
of business she discovered mountains of unfiled docu-
ments), led the Union to believe that there was a history
of executed collective-bargaining agreements between
Respondent and the Union. I maintain this conclusion in
the face of DeConinck's testimony, relating to her var-
ious notations on Respondent's file in 1978, which dem-
onstrates that, as late as 1978, she could not discover a
collective-bargaining agreement in Respondent's file, and
that thereafter she found one and added markings show-
ing that such a collective-bargaining agreement existed.
While I do not credit her testimony that she actually
found one, I am not at all prepared to find that the
Union's testimony supporting its belief that there was
such a series of Respondent-executed collective-bargain-
ing agreements, and making notations on its records to
that effect, demonstrates the Union's bad faith, a conspir-
acy, or any other device to prove such a fact for the
purpose of this proceeding. s Rather, I find that, some-
where along in its bookkeeping, there was a notation
made that an executed agreement existed and that the
Union thereafter relied on its own negligent bookkeeping
in believing that there was one or more such collective-
bargaining agreements. Farrell's and DeConinck's testi-
mony resulted from bureaucratic embarrassment.
"e For instance, Kenneth Lenhard credibly testified, supra, of Cullen's
disbelief when Kenneth Lenhard said Respondent had never signed a
contract.
2. Estoppel
At the hearing and in briefs, the General Counsel, the
Union, and Respondent all suggest that Board and court
precedent establish that each case regarding the applica-
tion of the doctrine of "equitable estoppel" must rest on
its own facts. I have examined the precedents submitted
by the parties including Vin James Plastering Company,
226 NLRB 125 (1976); Fitzpatrick Electric, Inc., 242
NLRB 739 (1979); Arco Electric Co. v. N.L.R.B., 618
F.2d 698, 700 (10th Cir. 1980), enfg. 237 NLRB 708
(1978); Paint Power, Inc., 230 NLRB 758 (1977); and J.
D. Industrial Insulation Company, Inc., 234 NLRB 163
(1978), enforcement denied in pertinent part 615 F.2d
1289, 1293 (10th Cir. 1980)." The cases, as the parties
suggest, do demonstrate substantial distinguishing factual
elements ranging from situations in which the allegedly
estopped employer (unlike the instant case) was at one
time a member of the association and engaged in ambigu-
ous conduct which led Respondent to believe that it con-
tinued that relationship; situations in which the employ-
er, unlike the instant case, while never having technically
joined a multiemployer association, paid dues to the asso-
ciation from time to time; and in other cases supervisors
of the employer actually engaged in bargaining sessions
between the multiemployer group and the union. In still
other cases (Arco Electric Co., supra) the employer at one
time agreed to be bound by multiemployer bargaining
and thereafter conducted himself in such a manner as to
fail to indicate a future refusal to be bound (237 NLRB
at 709).
(1) In the instant case, as in the above-cited cases, Re-
spondent herein made payments into the Urion's health
and welfare, pension, and other trust funds according to,
and varying with, existing collective-bargaining agree-
ments, including those collective-bargaining agreements
in effect in the period 1976 through the present time. It
even used forms noting that the contributions were made
pursuant to the collective-bargaining agreement. (See J.
D. Industrial Insulation Company, Inc., 234 NLRB 163,
fn. 4.) It asked for union intervention when it learned
certain employers were awarding work to nonunion con-
" The court, in J. D. Industrial Insulation. supra, states, in applying the
rule of equitable estoppel (615 F.2d 1289), there must be a showing by
the party claiming the benefit of the estoppel of: (I) lack of knowledge
and of the means to obtain knowledge of the true facts; (2) good-faith
reliance upon the misleading conduct of the party to be estopped; and (3)
detriment or prejudice from such reliance The Board did not use such a
formulation and I am, of course, bound by the Board rule Even in such a
formulation, however, innocence of the employees of Respondent must
be assumed since they, regardless of the Union, had no reason to ascer-
tain nor a direct means of ascertaining the existence of a contract be-
tween the parties. I have found, in any case, the Union's lack of knowl-
edge although, but for its negligence, it had the "means to obtain knowl-
edge of the true facts." On the other hand, since I have found Respond-
ent here guilty of intentionally deceptive conduct. it would be inequitable
to withhold the application of an equitable doctrine (thereby punishing
innocent employees) because of the mere negligence of the Union, where
such negligence, though not induced by Respondent, was made the sub-
ject of its conscious. continual, selfish manipulation. The Board, as coun-
sel for the Union notes, does not refuse to invoke remedies where a re-
spondent's concealment of conduct injures parties entitled to the protec-
tion of the Act. Don Burgess Construction C.. Corporation d/b/a Burgess
Construction and Donald Burgess and Verlon Hendrix d/h/a V & B Build-
ers, 227 NLRB 756, 766 (1977).
613
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tractors. In addition, it hired only union members
through the Union's hiring hall, a contractual device,
and, when hiring employees, in a majority of cases, told
them that they were employed in a "residential shop"
and were going to be paid at the "residential rate," terms
derived from the MCA agreement relating to residential
work, thus a contractually derived term of art. It is clear
that Respondent was holding itself out to its employees
as an employer under union contract. The fact that Re-
spondent offered some of its employees greater benefits
than those appearing in the contract does not amount to
"passive" direct bargaining in derogation of the existing
collective-bargaining agreements (compare: N.L.R.B. v.
J. D. Industrial Insulation Company, supra, assuming, ar-
guendo, that the Board would acquiesce in the court of
appeals' insistence on this factual element as a dispositive
one, which it did not) especially where, as here, there is
no showing that the Union knew of the special arrange-
ments between Respondent and some of its favored em-
ployees.
(2) Notwithstanding both common and distinctive ele-
ments in the above-cited precedents, there exists in the
instant case a particular factor which leads to the conclu-
sion, which I draw, that Respondent is estopped from
denying its being bound by the residential and commer-
cial agreements-that is Respondent's consciously decep-
tive conduct over a long period. In 1976, when the
Union was pressing Respondent for the delinquent con-
tributions to its various funds, and to have Respondent
execute the collective-bargaining agreement at that time,
Respondent admittedly knew that it did not have a
signed contract with the Union and so notified its
lawyer. Moreover, Kenneth Lenhard testified that, espe-
cially since 1976, he believed that the Union believed that
there existed a collective-bargaining relationship and
agreements between Respondent and the Union and that
his actions thereafter were not inconsistent with the
Union's misapprehension. I infer that his conduct mani-
fested a desire to take advantage of the Union's miscalcu-
lation. Thus, all of Respondent's acts after 1976, i.e.,
paying contract wage rates and contributions to funds;
demanding that the Union intervene on its behalf to
obtain or retain work; hiring employees at the residential
rate, et al., were either purposely designed to take advan-
tage of the Union's known misconception or were adopt-
ed knowing that the Union was careless and deserving of
being misled. I reject Respondent's argument that the
Union, knowing of the absence of a contract, was con-
tent to proceed on that basis because Respondent was
employing union members at union scale. Such an argu-
ment falls in the face of Respondent's further testimony
that plumbers were scarce and the Union used its ability
to supply labor as a bargaining device.
Under the above elements, not found in the above-
cited precedents, I conclude that here, unlike the other
cases, Respondent was engaged in a course of conduct
affirmatively and actively disceptive against the Union.
Thus, I conclude, that unlike the court's statement in J.
D. Industrial Insulation Co., Inc., 615 F.2d at 1293, we do
not have here a factual situation where "both parties to
an ambiguous arrangement have acted or failed to act in
ways which contribute to that ambiguity, it is inequitable
to fault only one of them." In the instant case, while
there is some degree of negligence on the part of the
Union, since 1976 at least, there is an intentionally dis-
ceptive course of conduct engaged in by Respondent.
The Union's continued negligence stemmed in large part
from Respondent's misconduct. Here, unlike J. D. Indus-
trial Insulation Co., supra, it cannot be said that the
Union "passively permitted the company to operate
without union interference in dealing directly with its
employees on wages and other terms of its employment."
Here, as Kenneth Lenhard admitted and as Farrell testi-
fied, whenever the Union caught Respondent in its fail-
ure to abide by the terms and conditions of commercial
agreement, the Union (a) insisted that Respondent ob-
serve contractual wage requirements; and (b) threatened
Respondent with sanctions derived solely from the
agreement: The withdrawal of members from Respond-
ent's jobs and a refusal to furnish employees from the
hiring hall; and forced it to pay penalties for delinquent
contributions under the contract. Marquis Elevator Com-
pany, Inc., 217 NLRB 461, 465 (1975). Under these con-
ditions, with Respondent acknowledging that it knew it
had no contract and that it believed that the Union be-
lieved that it was continually bound to the Union, it had
an obligation to inform the Union of its position that it
was not bound by the agreements where, as here, the
Union, since 1976, was both demanding that it sign the
latest MCA agreement and was filing court and other
claims against it on the assumption that it was bound by
the terms of the contract, including contractually derived
penalties. Surely, in 1979, with controversies regarding
wage rates at two commercial jobs, the Lakeshore Coun-
try Club and the Kentucky Fried Chicken job, when Re-
spondent was being threatened by the Union for failure
to pay commercial rates, Respondent never urged the
Union that it was not contractually bound, but merely
urged the defense of financial hardship." As the Board
noted in Arco Electric Company, 237 NLRB 708, 709
(1978), in adopting the Administrative Law Judge's De-
cision, it is well settled "that the Board has consistently
held that financial hardship is no justification for repudi-
ation or modification of a collective-bargaining agree-
ment or any of its terms." See Oak Cliff-Goldman Baking
Company, 207 NLRB 1063, 1064 (1973); Osage Manufac-
turing Company, 173 NLRB 458, 461-462 (1968). To
invoke this legally inadequate argument without telling
the Union the underlying truth when such truth was
surely ripe for disclosure is a further deception.
'2 The evidence requires the conclusion that the reason for Respond-
ent's failure to advise the Union that Respondent did not have, and
would not sign, an agreement was its fear that the Union, regardless of
contract, would interfere with its members continuing to work for Re-
spondent. All of Respondent's plumbers were union members. When the
Union finally insisted that Respondent execute the new commercial
agreement, it refused because it could not and would not pay commercial
rates on 35 percent of its work; i.e., on its commercial work. When the
game was up, Respondent solved its dilemma by going nonunion all the
way (discharging its union employees) and relinquishing the advantages
of getting competent plumbers through union referral. It was both Re-
spondent's fear of the consequences of discovery (losing its competent
employees) as well as the economic motive (not paying commercial rates)
which are at the heart of Respondent's deception. Respondent concedes
as much as the basis for its "clean break with the Union
614
F.M.L. SUPPLY. INC.
As in Vin James Plastering Company, 226 NLRB 125,
130 (1976), I conclude that Respondent engaged in a
course of conduct, commencing no later than June 1976
and continuing through on or about October 5, 1979,
which it is now estopped from denying, manifesting an
intention to adopt and be bound by both the commercial
agreement which expired on or about May 31, 1979, and
the residential agreement which was then in effect and
which did not expire until May 31, 1980 (see G.C. Exh.
6, the residential agreement).
Having, in addition, concluded that Respondent em-
ployed plumbing employees performing work distinctive
to that trade with common interests and that the units of
plumbing employees described in those instruments con-
stitute units appropriate for bargaining within the mean-
ing of Section 9(b) of the Act, and that, as Respondent
stipulated and as the evidence showed, at all material
times the Union represented a majority of the plumbing
employees in those units, I further conclude that, at all
material times, by virtue of Section 9(a) of the Act, the
Union was, and now is, the exclusive representative of
the employees in those appropriate units for purposes of
collective bargaining with respect to rates of pay, wages,
hours of employment, and other terms and conditions of
employment as alleged in paragraph XI of the consoli-
dated complaint. I further conclude, as alleged in para-
graph XII of the consolidated complaint, that the Union
has, by its repeated notices to Respondent commencing
in 1974 of contract expiration and renegotiation, both of
the commercial and residential agreements (G.C. Exhs.
36 and 37), and the Union's continual requests of Re-
spondent to execute, as a nonmember of MCA, individu-
al memoranda of agreement to bind itself to the terms of
the MCA contracts (Resp. Exhs. 5, 6, and 7), at least
since January 26, 1979, requested Respondent to bargain
collectively with it as the exclusive bargaining repre-
sentative of Respondent's employees in the above-appro-
pirate units.'3 I further conclude that particularly, as al-
leged in paragraphs XIII and XIV of the consolidated
complaint, Respondent refused, commencing May 31,
1979, and June 24, 1979, respectively, to bargain in good
faith with the Union as the exclusive bargaining repre-
sentative of the employees with respect to the commer-
cial and residential agreements as alleged in paragraphs
XIII and XIV.
Thus, as alleged in paragraph XII of the consolidated
complaint, Respondent, in violation of Section 8(a)(5) of
the Act, refused to bargain with the Union with respect
to the existence or renewal of the commercial agreement,
commencing with its expiration on May 31, 1979, and,
since on or about May 31, 1979, by paying residential
rates on commercial work and by refusing to pay com-
mercial rates, unilaterally changed the terms and condi-
tions of employment, i.e., the terms of the commercial
agreement, of its employees without prior notification to
or consultation with the Union; and on October 5, 1979,
by virtue of its letter to the Union, did withdraw recog-
3 The appropriate residential unit is "all employees of F.M.L. Supply,
Inc., performing commercial plumbing, heating and air conditioning
work (G.C. Exh. 3, p. 1). The appropriate commercial unit (G C Exh
10) is: "All F.M.L. Supply, Inc.. employees doing work in the plumbing,
heating and pipefitting trades"
nition of the Union as the exclusive bargaining repre-
sentative of its plumbing employees. Lastly, it is undis-
puted by Respondent that effective on or about June 24,
1979, without prior consultation with the Union, it
ceased contributing to the various union funds and de-
ducting checkoff; and on and after October 14, 1979,
ceased paying its employees overtime at the rate of
double time; commenced paying them overtime at time
and a half the residential rate; and granted them a $10-
per-week tool allowance. All the above, as alleged in
paragraph XIII with respect to refusal to bargain and
unilateral changes with respect to the commercial agree-
ment, constitute violations of Section 8(a)(5) and (1) of
the Act.
In paragraph XVI of the consolidated complaint, the
General Counsel alleges violation of Section 8(a)(5) with
respect to the residential agreement in that during its ef-
fective term, ending May 31, 1980, Respondent, com-
mencing June 24, 1979, failed to make pension, insur-
ance, and other fund contributions14 and to remit dues
checkoff moneys to the Union pursuant to that collec-
tive-bargaining agreement, and, as will be hereinafter
noted, on or about October 12, terminated the agreement
without complying with the provisions of Section 8(d) of
the Act and also instituted unilateral changes on or about
that date without complying with Section 8(d) of the
Act. As in the case of its employees working under the
commercial agreement, its employees working under the
residential agreement commencing on or about October
14, 1979, were unilaterally paid overtime at the rate of 1-
1/2 times the regular residential rate rather than existing
double time and were granted a $10-per-week tool allow-
ance.
The record herein shows that, commencing on or
about October 14, 1979, in violation of Section 8(a)(5) of
the Act and the terms of both agreements, Respondent
paid all its employees, including those employees whom
it hired inter alia, to replace the Union employees whom
it constructively discharged, as hereinafter described,
wage rates of $4.50 to $8 per hour whereas the existing
residential rate was at that time $7.94 per hour (G.C.
Exh. 6). It also initiated, as below noted, a Blue Cross-
Blue Shield health and welfare program wherein the em-
ployees were required to pay 50 percent of the premiums
for the first 6 months of their employment and inaugurat-
ed a vacation plan to take effect after 1 year of employ-
ment and holidays commencing after 6 months of em-
ployment.
These alleged violations on the basis of the above find-
ings and findings below have been proven by a prepon-
derance of the credible evidence or by stipulation or by
both.
' The "funds," common to both commercial and residential agree-
ments, were: pension, group (health) insurance, apprentice training and
education, vacation and holiday. In addition. the commercial agreement
had a journeyman education training fund. an annuity fund, and an indus-
try advalncement fund Respondent. except when caught, contributed up
to June 24, 1979. only to the residential funds
615
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Alleged 8(a)(l) and (3) violations
Except for certain minor variations disclosed in the
testimony of Kenneth Lenhard, the facts are not in mate-
rial dispute with regard to the several violations of Sec-
tion 8(a)(1) and (3) of the Act. The complaint alleges
that various statements by Kenneth Lenhard indepen-
dently violated Section 8(a)(l) of the Act during the
summer of 1979 and that Respondent constructively dis-
charged, or discharged, fournamed employees.
1. Charles A. Thompson, a plumber employed by Re-
spondent in August 1978, a journeyman since 1968 and a
union member since 1951, was hired to perform "water
service work" and all general repairs in mainly residen-
tial work. When hired, Michael Lenhard told Thompson
he would be working at the residential rate and would
receive double time for overtime. Thompson then gave
Lenhard a signed dues-checkoff card which had been
provided by the Union.
In August 1979, Michael Lenhard asked him: "How
do you feel about going non-union?" When he asked Mi-
chael Lenhard whether the shop was going nonunion,
Lenhard answered that it was not at that time but that
Respondent had "got caught at the Lakeshore Country
Club job and had to put on commercial plumbers .... "
Thompson told Lenhard that he would have to think the
matter over.
In September 1979, Michael Lenhard again asked him
what he thought about going nonunion. Again, Lenhard
told him that it was not official. Thompson told him that,
when it became "official," he would comment on it. At
or about this time, Respondent hired two nonunion
plumbers.
After this September conversation, but just 1 week
before Thompson quit on September 21, 1979, a new co-
employee, not a member of the Union, approached
Thompson and told him that Michael Lenhard had sent
him over to remove all the sewer cleaning equipment
from Thompson's truck which equipment Respondent
provided to all its plumbers. Sewer cleaning represented
the major function of Respondent's plumbing employees
and such equipment is carried in the truck even if the
particular job assigned to the plumber does not include
sewer cleaning. In the last week in which he was em-
ployed, Monday through Friday, Thompson worked 8
hours on each Monday, Tuesday, and Wednesday, but
contrary to Respondent's practice, was not called to
work on Thursday and Friday. This had never happened
before in the 13 months of Thompson's employment.
Thompson had previously discovered that Respondent
hired two new employees to perform plumbing work
both of whom were nonunion. In light of hiring the two
nonunion plumbers, his prior conversation with Michael
Lenhard, the removal of equipment, the unique failure to
receive work on Thursday and Friday, at or about 3:30
on Friday afternoon he decided to quit and to work for a
union contractor. He then returned his truck and keys to
F.M.L. on the following Sunday night.
Michael Lenhard, going further, admitted that, in a
September 1979 conversation with Thompson, he told
him that Respondent would be "going non-union"; he
asked him whether he intended to stay under the new ar-
rangements and how many of the other union employees
would remain. He admits that Thompson told him that
he was not sure if he would stay under nonunion condi-
tions.
I find and conclude that, as alleged in the complaint,
Michael Lenhard's inquiries to Thompson in August and
September 1979, concerning how he felt about going
nonunion, and working nonunion if Respondent ceased
paying union wage rates, represented unlawful solicita-
tion of its employees' views regarding their union affili-
ation and allegiance and also was coercive in the an-
nouncement itself that Respondent might go nonunion,
thereby tending to force the employees to abandon their
sympathy for and allegiance to the Union, all of which
violates Section 8(a)(1) of the Act. In addition, I con-
clude that Respondent, having satisfied itself that
Thompson, as a union member, might not work under
nonunion conditions, removed his equipment in the last
week of his employment, did not call him to work, and
hired nonunion employees to perform his functions.
When, in response thereto, Thompson quit, I conclude
that such quit was due to Respondent removing its
equipment, not assigning him work, and preventing him
from working, all discriminatorily imposed upon him be-
cause of his union membership and Respondent's deci-
sion to go nonunion. By such a quit, Respondent con-
structively discharged him on September 21, 1979. Jack
Hodge Transport, Inc., 227 NLRB 482 (1977).
2. Joseph Kohlmeier, a union member since 1955, was
employed by Respondent in July 1975 and quit on Octo-
ber 12, 1979. He had been referred by the union, execut-
ed a dues-checkoff card, and Lenhard told him that Re-
spondent was a "residential shop paying residential pay."
Kohlmeier testified that, as early as the summer of
1977, Kenneth Lenhard told him in the parking lot that
Respondent was thinking of going nonunion. He told
him that the payments of fringe benefits were giving Re-
spondent a "hard time." ' 5 In a conversation with Ken-
neth Lenhard in July 1979 (Michael Lenhard was saying
the same things to Charles Thompson in early August
1979, above), Kenneth Lenhard approached Kohlmeier
on a job and told him that while Respondent was think-
ing of "going non-union," Kohlmeier should not do any-
thing "drastic" (i.e., quit) because Respondent was not
sure which way it was going. Lenhard complained to
Kohlmeier that the Union was forcing Respondent to
pay commercial contract rates (on this record, apparent-
ly on a Kentucky Fried Chicken job) which Respondent
could not afford to pay either in wage rates or benefits.
In any case, about 2 weeks after that conversation, Mi-
chael Lenhard told Kohlmeier that Respondent was
going nonunion, and that everything would remain the
same. Kohlmeier did not answer.
On October 12, Kohlmeier's last day of employment,
while on a job, Kenneth Lenhard came out with Kohl-
meier's pay and told him: "As of Monday, we will not
be affiliated with anybody. If you want to stay, you
can." When Kohlmeier answered Lenhard: "I won't go
15 At this time, the Union was pressing Respondent for delinquent con-
tributions to the various funds. On or about June 9, 1977, Respondent ex-
ecuted a confession of judgment for delinquent fund contributions in
favor of the Union. (See G.C. Exhs. 19, 20, and 32.)
616
F.M.L. SUPPLY, INC.
nonunion," Kenneth Lenhard replied that he thought he
knew what Kohlmeier's answer would be and directed
him to bring his company truck in. When Kohlmeier
thereafter surrendered the truck to Michael Lenhard,
Lenhard told him that, while he wanted Kohlmeier to
stay, Respondent had to make a "break" sooner or
later.16 When Kohlmeier answered Lenhard that he
would leave, Lenhard cautioned him not to make the
break in employment too long because there might not
be a job for him if he decided to return. Lenhard recalls
that Kohlmeier insisted that he never had such a good
job like this one and asked Lenhard, if he decided to
return, would Respondent take him back. Lenhard told
him that he would. Kohlmeier never returned to the job
after quitting on October 12.
It is clear, as in the case of Thompson, that Respond-
ent offered Kohlmeier the choice of working under
union conditions or quitting. Whether or not Respondent
was under an obligation to recognize and bargain with
the Union (and I have concluded it was estopped to
deny such an obligation) with regard to the terms and
conditions of its employees' wages and working condi-
tions, the declaration that Respondent would no longer
work under union conditions (checkoff, fund contribu-
tions, et al.) was an intolerable choice relating to Kohl-
meier's allegiance to the Union including checkoff, re-
tirement, et al. It is immaterial even that Kohlmeier
might have retained his union membership and continued
to work. This choice was so onerous as to constitute a
constructive discharge of Kohlmeier in violation of Sec-
tion 8(a)(3) and (1) of the Act. Compare Electric Machin-
ery Company, 243 NLRB 239 (1979); Superior Sprinkler,
Inc., and William Augusto, d/b/a William Augusto Fire
Protection Services, 227 NLRB 204 (1976); 44 NLRB
Ann. Rep. 106 (1979). It should be noted that, unlike
Kenneth Lenhard, Michael Lenhard admitted using the
term "going non-union" to his employees. Nevertheless,
I find that Kenneth Lenhard, contrary to his testimony,
and crediting Kohlmeier, in or about August 1979, by
announcing that Respondent was "thinking of going non-
union," independently coerced Kohlmeier in violation of
Section 8(a)(l) of the Act. 7
Hi Although Respondent's paying contract wages and benefits and seek-
ing union intervention on its behalf may be considered ambiguous con-
duct and not necessarily probative of a bargaining or contract relation-
ship with the Union, yet, together with the use of the words break and
"affiliated" in these conversations, they constitute substantial evidence
that Respondent considered itself as having a union relationship other
than merely paying its employees according to the terms of the two
agreements and making contributions to the union funds. When viewed as
a whole, it is therefore clear that Respondent, whatever its subjective be-
liefs, was leading its employees to believe that it had, or was "holding
itself out" as having, a relationship with the Union that it had to "break."
I construe such a relationship (affiliation) to mean a contract relationship.
See Vin James Plastering Company, supra.
I The necessary background to the unlawful September and October
1979 terminations of these three of four unlawfully terminated employees,
as alleged in the complaint, derives from the summer of 1979 conversa-
tions of Union Business Manager Farrell and Business Agent Joseph
Parlet with Respondent's president, Michael Lenhard; and particularly in
August 1979 when, under the agreements, the Union threatened to with-
draw its members as employees and to thereafter not refer employees
from the hiring hall if Respondent failed to execute the new commercial
agreement following the termination of the old agreement on or about
May 31, 1979. These conversations, in turn, flowed from the January 26,
1979, union request to renegotiate the commercial agreement which was
3. James O'Leyar, a union member since 1974, was em-
ployed by Respondent in July 1976 and, like Kohlmeier,
supra, quit on October 12, 1979. He was employed as a
plumber, having been referred to the job by Business
Agent Joseph Parlet. When hired, Kenneth Lenhard said
that he would be paid at the residential rate.
As early as February 1977, while riding with Kenneth
Lenhard in a pickup truck, Lenhard discussed the possi-
bility of a layoff for lack of work. Lenhard then men-
tioned to O'Leyar that he did not think that either Kohl-
meier or another employee (Durkin) would go nonunion.
Lenhard then turned to O'Leyar and asked: "Would
you?" O'Leyar said that he would have to think it over.
On August 24, 1979, in Respondent's office Michael
Lenhard told O'Leyar that, although it was not definite,
there was a good chance that Respondent was "going
non-union." He said that there was plenty of work; asked
O'Leyar to stay in Respondent's employment; and told
him that, because the Union would not refer plumbers to
Respondent, he had no choice but to hire nonunion em-
ployees since two of the union plumbers were "leaving."
He also mentioned that Respondent's customers would
not pay the high commercial rates which the Union in-
sisted that Respondent charge on commercial jobs. Mi-
chael Lenhard then told O'Leyar that if he had any
problems with regard to the decision of going nonunion
he should come to Lenhard and discuss it. Meanwhile,
he admonished O'Leyar not to talk to the other employ-
ees about the matter. As above, I conclude that Michael
Lenhard's announcement to O'Leyar that Respondent
was going nonunion was a coercive device in violation
of Section 8(a)(1) of the Act in that it tended to under-
mine O'Leyar's allegiance to, sympathy for, and his
membership in the Union.
At the end of August, Kenneth Lenhard told O'Leyar
that Respondent was still talking back and forth with the
Union and would let him know in a couple of weeks as
to whether Respondent was going to stay with the
Union or not.
In the first week of September 1979, Kenneth Lenhard
told O'Leyar that Respondent was still talking to the
Union and noted that, if the Union had any work availa-
ble for its members, it would have pulled O'Leyar off
the job working for Respondent by this time.'8 Kenneth
Lenhard again told O'Leyar that it was difficult for Re-
spondent to pay the commercial rates.
to expire on May 31 (G.C. Exh. 15) and the Union's June 1, 1979, letter
to Respondent to execute the new commercial agreement. As above
noted, it was the coercive pressure of the Union to force Respondent to
execute the new commercial contract and to abide by the rates expressed
therein that caused Respondent to decide to cut its ties with the Union,
cease recognition thereof, and introduce, unilaterally, terms and condi-
tions of employment which it found financially convenient. That such an
implemented decision, so motivated, is unlawful is of course another
matter.
'" As early as May 26, 1977, Union Agent Farrell had written to Ken-
neth Lenhard and noted that the Union was being pressured by the fund
manager (John T. Cullen) to collect the delinquencies in fund contribu-
tions or to remove the union members from Respondent's shop pursuant
to art. VII, sec. 2(d), of the collective-bargaining agreement (G.C. Exh.
20). Needless to remark, Respondent did not answer this letter from Far-
rell by denying the existence of any Respondent collective-bargaining ob-
ligation to the Union.
617
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On October 12, 1979, O'Leyar's last day of work (as in
the case of Kohlmeier), Kenneth Lenhard brought him
his pay, asked him if he wished to stay with the Union,
and told him that Respondent was "in this thing too far"
and was "going non-union." O'Leyar said he would not
forego the Union and, when Lenhard asked if he wished
to stay, O'Leyar said he would not; Kenneth Lenhard
then told O'Leyar to turn in his paperwork and that Oc-
tober 12 would be "your last day." Lenhard told
O'Leyar that Respondent was not going to turn back on
going nonunion, to finish up the job and turn in his keys
and his truck but to finish out the day. Lenhard also
added that, if he ever needed a job, he could always
come back to Respondent.
As in the case of employee Kohlmeier, supra, I con-
clude that Respondent's offer to O'Leyar either to give
up the Union or give up work was an onerous change in
working conditions. When O'Leyar quit, like Kohlmeier,
the quit amounted to a constructive discharge in viola-
tion of Section 8(a)(3) and (1) of the Act. See N.L.R.B.
v. J. D. Industrial Insulations Co., Inc., supra.
4. Robert J. Kennedy was employed as a plumber by
Respondent in August 1977. His termination differs in
substantial respect from the constructive discharges of
Kohlmeier, O'Leyar, and Thompson, above, but, like
them, he was referred to the job by Union Agent Joseph
Parlet from Local 13's hiring hall and was hired by Mi-
chael Lenhard. Like the others, Lenhard told him that
he would receive double time for overtime and, although
the matter was not specifically put, he did receive the
Union's residential contract rate of pay. In addition, like
the others, Respondent contributed on his behalf to the
several union funds under the residential agreement.
In a February or March 1979 conversation with Ken-
neth Lenhard, Lenhard told him that the Union wanted
Respondent to pay commercial rates on commercial jobs
and that Respondent was unable to do it since Respond-
ent's job-bid rate ($25 per hour) was the same regardless
of whether the job was residential or commercial.
In August 1979, in a further conversation with Ken-
neth Lenhard, they discussed the possibility of Respond-
ent obtaining a "service contract:" A collective-bargain-
ing agreement establishing wage rates on certain com-
mercial work lower than the commercial rate. Kennedy
suggested this to Lenhard as an alternative to Lenhard's
suggestion that Respondent was going nonunion. Len-
hard said that he tried to obtain the service rate but did
not have the money to do it and he would have to go to
New York City to obtain it.
Early on Octobcr 12, 1979, in the parking lot, Kenneth
Lenhard asked Kennedy to consider staying with Re-
spondent. If he did, Lenhard promised to give him a
better job. Kennedy said that he would consider doing it.
This conversation grew out of three to four previous dis-
cussions in August-October 1979 concerning whether
Kennedy would remain with Respondent if Respondent
went nonunion. Kennedy had at all times answered that
he would have to decide that matter when the time
came.
Sometime in early October 1979, Kenneth Lenhard
told him that "the union is through; make up your mind;
work for Respondent by showing up to work on
Monday, October 15, or go to the Union." Such a coer-
cive declaration of discharge if he did not foresake the
Union violates Section 8(a)(1) of the Act. On October
12, 1979, Kennedy told Lenhard that he would stay with
Respondent and would see him the following Monday
morning. On October 16 (Tuesday), Kenneth Lenhard
told him that, by staying, Respondent would offer him a
better position and that position was to become Respond-
ent's service manager with an increase of $1 per hour in
wage rates and the obligation to train new men on the
job and also to solve difficult plumbing problems. Ken-
nedy received the new weekly $11 tool allowance but
thereafter rejected it. Kennedy accepted the offer. The
offer of a benefit to work without the Union similarly
violates Section 8(a)(1) of the Act.
At or about 7 p.m., on the next day or the following
day (October 17 or 18), all the new employees were
gathered together with Kenneth and Michael Lenhard
and the Lenhard wives. Michael Lenhard made a speech
to the employees and told them that, as of October 14,
Respondent was starting a new company; that it had
"separated its ties from the Union";9 that there would be
new goals and new working conditions in the Company
(including direct conversations with Michael Lenhard)
and the Union would no longer be a factor in the Com-
pany. The new working conditions included a reduction
in straight time and in overtime rates from double time (a
rate not required by the Union but nevertheless paid by
Respondent) to time and one-half the regular rate. This
reduction did not apply to Kennedy. It also included, as
of October 14, 1979, Respondent no longer paying fringe
benefits into the union funds. Michael Lenhard also noti-
fied the employees that Kennedy was the new service
manager. Kennedy, as service manager, in fact, had no
change in duties since he had always trained the new
men as he had done on previous occasions.
In later October or early November 1979, Kenneth
Lenhard remarked to Kennedy that one never knows
what will happen in the future and that "after we get out
of this financial mess, we may go back to the Union."
Such a statement, while perhaps ambiguous, would lead
Kennedy to believe in the existence of an obligation to
the Union.
Sometime in late November 1979, Kennedy told Mi-
chael Lenhard that he wanted to return to his old posi-
tion because he was doing nothing new; that he did not
want the position of service manager or the money that
went with it. Michael Lenhard agreed to Kennedy's re-
turning to his old position but offered to permit him to
keep the $1-per-hour wage increase. Kennedy refused.20
"' Such a statement, again, such as being affiliated with the Union,
supra, implies an obligation to the Union. This appears different from set-
tling a dispute, in 1976, over Respondent's failure to pay to any employee
the proper commercial rate, and whether such act is the settling of a
grievance. The Union's participation in the dispute on behalf of its
member (Schied), while it may be the settlement of a "grievance." does
not necessarily demonstrate Respondent's being bound by a contract
grievance procedure, an obligation to the Union, but merely the Union
acting as the employee's representative.
20 Whatever Kennedy's supervisory status prior to November 1979,
there is o suggestion of any such status thereafter when he was no
longer service manager.
618
F.M.L. SUPPLY. INC.
It is undisputed that, thereafter, Kennedy had meetings
and discussions with Respondent's new nonunion em-
ployees in which he spoke of the Union's scale, prior
working conditions, and the advantages to plumbers of
membership in the Union.
On or about March 4, 1980, Kennedy's last day of em-
ployment, Kenneth Lenhard approached him on the job
and asked him why he was trying to "destroy the com-
pany." Lenhard told him that he was destroying Re-
spondent by discussing pay rates with the nonunion em-
ployees; i.e., the union wages and conditions of employ-
ment which existed prior to October 14. When Kenneth
Lenhard told him "I'll destroy you"; that he earned
$5,000 more than the employees; that it was no use dis-
cussing the matter; and that, if Kennedy wanted to
remain in Respondent's employ, he would have to
accept, like the other employees, overtime at the rate of
1-1/2 times the regular rate and a tool allowance, the
same terms as the other employees. When Kennedy re-
fused, Lenhard told him: "You're through as of this eve-
ning . . . there'll be no turning back"; "Respondent was
not going back to the Union." Kennedy then finished the
job, returned to the shop, returned the keys and the pa-
perwork, locked up his van, locked up the shop, and left.
He thereafter did not return to Respondent.
Unlike the cases of the three employees, above, who
were constructively discharged, Kenneth Lenhard ex-
pressly conditioned his discharge of Kennedy on both
Kennedy's refusal to accept a change in his pay rate and
the underlying fact that Kennedy's discussing the old
union terms and conditions of employment with the non-
union employees was causing unrest among them, there-
by "destroying" Respondent. To discharge an employee
with that motive violates Section 8(a)(3) and (1) of the
Act and I so find. Likewise, Kenneth Lenhard's discus-
sions with him in the summer and fall of 1979 announc-
ing that Respondent was going nonunion and inquiring
whether he would remain under nonunion conditions are
coercive interrogations and violations of Section 8(a)(1)
of the Act.
The fact that Respondent's unlawful conduct com-
mencing in or about fall 1979 may have undermined the
Union's majority status among the plumbing employees
does not alter the fact that the Union remained, for pur-
poses of the Act, the majority representative of the
plumbing employees in Respondent's business. It was
stipulated that commencing with the week ending Octo-
ber 21, 1979, Respondent continued in the same business
operations as has been identified in the record.
CONCLUSIONS OF LAW
1. Respondent, F.M.L. Supply, Inc., is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. (a) All employees of Respondent at its Henrietta,
New York, place of business doing work in the plumb-
ing, heating, and pipefitting trades constitute a unit ap-
propriate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act.
(b) All employees of Respondent at its Henrietta, New
York, place of business performing commercial plumb-
ing, heating, and air conditioning work constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. Continuously since in or about June 1976, and par-
ticularly at all times on and after May 31, 1979, the
Union has been and is the majority representative for the
purposes of collective bargaining of the employees in the
units described in paragraphs 3(a) and (b), above, and by
virtue of Section 9(a) of the Act, has been and now is
the exclusive statutory representative of all the employ-
ees in said units for the purposes of collective bargaining
with respect to rates of pay, wages, hours of employ-
ment, and other terms and conditions of employment.
Commencing on or about May 31, 1979, and continuing
to date, the Union has requested and continues to request
Respondent to bargain collectively in good faith with re-
spect to rates of pay, wages, hours of employment, and
other conditions of employment as the exclusive collec-
tive-bargaining representative of all the employees in the
aforesaid appropriate unit.
5. Commencing in or about June 1976, and continuing
to the present time, Respondent, by engaging in a course
of conduct, has been and is estopped from denying that it
has recognized and bargained collectively with the
Union as the exclusive collective-bargaining representa-
tive of the employees in the above appropriate units.
6. At all material times herein, Respondent, by its ac-
tions and conduct, was adopted, ratified, and agreed to
be bound to the terms of collective-bargaining agree-
ments between the Union and the Mechanical Contrac-
tors Association of Rochester, Inc., relating to residential
plumbing and commercial plumbing, the commercial
plumbing agreement having expired by its terms on May
31, 1979, and the residential plumbing agreement having
been in full force and effect between the period May 31,
1978, to May 31, 1980.
7. Since on or about May 31, 1979, Respondent has
unlawfully refused to bargain in good faith with the
Union with respect to its employees in the above-de-
scribed appropriate unit in paragraph 3(a) engaged in
commercial plumbing work by failing to abide by the
terms of the commercial agreement regarding wages,
hours, and conditions of employment until bargaining to
impasse or contract; by unilaterally changing their terms
and conditions of employment without prior consultation
with the Union; by failing to contribute to the several
funds under the terms of the expired agreement; and by
granting them a $10-per-week tool allowance.
8. Commencing on or about June 24, 1979, and con-
tinuing thereafter, Respondent has unlawfully refused to
bargain with the Union with respect to its employees in
the above appropriate unit in paragraph 3(b) who are en-
gaged in residential plumbing work by refusing to make
pension and insurance contributions and refusing to remit
dues checkoff from their wages to the Union pursuant to
the terms of a current collective-bargaining agreement
which Respondent is estopped from denying is in force
and effect between the Union and Respondent and has
unilaterally changed the terms and conditions of employ-
619
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment under such agreement including their rates of pay
and overtime rates and by granting them a weekly tool
allowance all without complying with the provisions of
Section 8(d) of the Act.
9. On or about October 14, 1979, Respondent failed
and refused to bargain collectively in good faith with the
Union by unlawfully withdrawing recognition of the
Union as the exclusive bargaining representative of its
employees in the above units.
10. In the months of July, August, September, and Oc-
tober, 1979, by announcing to its employees the possibili-
ties that Respondent was going nonunion, that it was
going nonunion and in both cases by requesting Re-
spondent's employees to remain in its employ without
the benefits afforded them under the union collective-
bargaining agreements with Respondent, and by promis-
ing and granting them benefits for continuing to work
for Respondent without the Union, Respondent violated
Section 8(a)(1) of the Act.
11. By soliciting its employees' views about the possi-
bility of going nonunion in the months of August and
September 1979, Respondent engaged in coercive inter-
rogations and thereby violated Section 8(a)(1) of the Act.
12. The unfair labor practices found herein affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that Respondent violated Section
8(a)(l), (3), and (5) of the Act, Respondent will be di-
rected to cease and desist from engaging in such conduct
and to take certain affirmative action necessary to effec-
tuate the purposes and policies of the Act. I find that Re-
spondent's October 5 letter denying the existence of any
contract is not the date of withdrawal of recognition but
rather it was Michael Lenhard's October 17 speech
noting a withdrawal of affiliation as of October 14. Re-
spondent will be directed (a) to rescind and revoke the
unlawful abandonment of the terms and conditions for
unit employees working under the residential agreement
(enforced and in effect for the period May 31, 1978,
through May 31, 1980, and any renewal, or supplement
thereto, as found in G.C. Exh. 6); and (b) to enforce the
terms and conditions of the commercial agreement which
expired on May 31, 1979 (G.C. Exh. 10), and any renew-
al, extension, or modification thereof; to give retroactive
effect to the terms and conditions of employment as con-
tained in the expired commercial agreement (G.C. Exh.
10) and to any extension, renewal, or further contract ex-
ecuted thereafter; (c) to make whole the employees in
the units found appropriate, above, for any loss of wages
or other benefits which they may have sustained as a
result of Respondent's unlawful refusal to bargain by
paying all health and welfare, pension fund, joint appren-
ticeship fund, holiday fund, vacation fund, building fund,
and all other fringe benefits to which they or the Union
would be entitled under the terms of the above agree-
ment or any modification, extension, or renewal thereof.
See Vin James Plastering Company, 226 NLRB 125, 132.
This remedy, however, shall not force or require Re-
spondent to alter or abandon any benefit heretofore
granted to any employee which Respondent unilaterally
provided. This shall not affect the Union's right to bar-
gain. In addition, Respondent will be ordered to offer re-
instatement to their old, or substantially equivalent, jobs,
discharging replacements if necessary, to Charles A.
Thompson, James O'Leyar, Joseph Kohlmeier, and
Robert J. Kennedy, and to make them whole for wages
and other benefits lost by virture of Respondent's unlaw-
ful conduct. In particular, Respondent's discontinuance
of the double time for overtime in residential work was
part of its discrimination against these and other employ-
ees and must be used in computing any backpay where
residential overtime was involved. The loss of earnings
of these four shall be computed as prescribed in F. W.
Woolworth Company, 90 NLRB 289 (1950), plus interest
as set forth in Isis Plumbing & Heating Co., 138 NLRB
716 (1962), and Florida Steel Corporation, 231 NLRB 651
(1977). In addition, Respondent shall make contributions
into the pension and other funds which Respondent
failed to do pursuant to its unlawful conduct, Vin James
Plastering Company, supra. Unit employees hired on or
after the date of September 1, 1979, when Respondent
failed and refused to abide by or apply the terms of the
Union's collective-bargaining agreements, and their re-
newals and supplements, shall be made whole under the
terms and conditions of collective-bargaining agreements
and the double time for overtime on residential work
which should have been applied to them. Ogle Protection
Service, Inc., and James L. Olge, an Individual, 183
NLRB 682 (1970). The question of interest, contract pen-
alties, and other additional amounts payable into the sev-
eral union trust funds as part of this "make whole
remedy" will be left to the compliance stage of this pro-
ceeding. Merriweather Optical Company, 240 NLRB 1213
(1979). Respondent shall also reimburse employee contri-
butions to health and welfare funds, to private insurance,
medical bills, and other losses resulting from Respond-
ent's unlawful discharges of employees or Respondent's
failure to apply the contracts including Respondent's fail-
ure to pay into contractual funds and policies. Kraft
Plumbing & Heating, Inc., 252 NLRB 891 (1980).
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 21
The Respondent, F.M.L. Supply, Inc., Henrietta, New
York, its officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Failing or refusing to give full effect to, and fully
to comply with, the following two agreements, or, if
they be expired, to their terms which relate to wages,
hours, and other terms and conditions of employment,
between the Mechanical Contractors Association of
Rochester, Inc., and Association of Plumbing-Heating-
Cooling Contractors of Rochester, Inc., and Local Union
21 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
620
F.M.L. SUPPLY, INC.
No. 13 of the United Association of Journeymen and
Apprentices and Plumbing and Pipefitting Industry of
the United States and Canada (herein called the Union),
which agreements are entitled "Articles of Agreement,"
in existence for the term May 1, 1976, through May 31,
1979, and any modification, renewal, or continuation
thereof; and that agreement entitled "Residential Articles
of Agreement" which agreement was in force and effect
for the period May 1, 1970, to April 30, 1973, and its
supplements covering the periods May 1, 1973, through
May 31, 1980, and any renewal, modification, or further
supplement thereto, according to their tenor and effect,
with respect to the employees in the following appropri-
ate units:
(1) All employees of F.M.L. Supply, Inc., at its
Henrietta, New York place of business, doing the
work in the plumbing, heating and pipefitting
trade.
(2) All employees of F.M.L. Supply, Inc., at its
Henrietta, New York place of business performing
commercial plumbing, heating and air condition-
ing work.
(b) Failing or refusing, upon request, to bargain collec-
tively with the Union as the exclusive collective-bargain-
ing representative of the employees in the above-de-
scribed appropriate units.
(c) Unilaterally changing the wages and other terms
and conditions of employment of the employees in the
above-cited appropriate units without prior notice and
consultation with the Union as the exclusive collective-
bargaining representative of said employees.
(d) Bargaining directly and individually with any em-
ployees in the aforesaid units.
(e) Discharging, constructively discharging, or other-
wise unlawfully discriminating against employees with
regard to their wages, hours, and other terms and condi-
tions of employment.
(f) Failing or refusing to make pension, health and
welfare insurance, and other contractually required con-
tributions to funds and dues-checkoff deductions, and
remit same to the Union pursuant to lawful collective-
bargaining agreement or extension, modification, or re-
newal thereof, between the parties.
(g) Instituting unilateral changes in the wages, hours,
and other terms and conditions of employment of its em-
ployees when it is obliged to notify and bargain with the
above labor organization or any other labor organization
with regard to such changes.
(h) Instituting unilateral changes in the wages, hours,
and other terms and conditions of employment of its em-
ployees during the effective term of a collective-bargain-
ing agreement concerning said employees without com-
plying with the provisions of Section 8(d) of the Act.
(i) Announcing to its employees the possibility or the
fact that Respondent was going nonunion and soliciting
its employees' views with respect to that possibility
during any time when Respondent is obliged to recog-
nize and bargain with the Union or any other labor orga-
nization or when Respondent is estopped to deny such
obligation.
(j) Promising or granting benefits to employees who
are willing to work under nonunion conditions.
(k) In any like or related manner interfering with, re-
straining, or coercing its 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) Upon request, recognize and bargain in good faith
with the Union as the exclusive collective-bargaining
representative of the employees in the aforesaid appro-
priate bargaining units with respect to rates of pay,
wages, hours of work, and other terms and conditions of
employment.
(b) Restore and place in effect all terms and conditions
of employment provided by the aforesaid articles of
agreement and residential articles of agreement as they
existed as of May 31, 1979, as modified by any renewals,
extensions, modifications, or supplements until such con-
tracts or their renewals lapse by their terms after said
date and Respondent and the aforesaid labor organization
bargain to good-faith impasse thereon or execute new
collective-bargaining agreements.
(c) Make such pension, annuity, joint apprentice, insur-
ance, welfare, or other payments and contributions to the
Union and to the several pension, welfare, and other
funds on behalf of and to those employees in the above-
described appropriate units for whom such contributions
were previously made, or should have been made, had
Respondent not ceased to comply with the aforesaid
contracts and pay the same wages and make the same
contributions on behalf of employees performing the
work thereof in the above-described units hired in or
after September 1979 except that no remissions of union
dues or fees shall be made on their behalf except insofar
as they shall have provided Respondent, in writing, with
authorizations therefor, all as provided in the section
hereof entitled "The Remedy."
(d) Offer to Charles A. Thompson, James O'Leyar,
Joseph Kohlmeier, and Robert J. Kennedy immediate
and unconditional reinstatement to their former or sub-
stantially equivalent positions of employment, discharg-
ing, if necessary, any replacements, without prejudice to
their seniority or other rights and privileges and make
each of them whole for any loss of wages suffered by
reason of Respondent's unlawful conduct against them,
as provided in the section hereof entitled "The
Remedy."
(e) Preserve and, upon request, make available to au-
thorized agents of the Board, for examination and copy-
ing, all payroll records, social security payments records,
timecards, personnel records and reports, and all other
records necessary to analyze the amount of backpay,
dues, and contributions due under the terms of this
Order.
(f) Post at its office in Henrietta, New York, copies of
the attached notice marked "Appendix." 22 Copies of said
22 In the event that 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 Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
621
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
notice, on forms provided by the Regional Director for
Region 3, after being duly signed by Respondent's repre-
sentative, shall be posted by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by any
other material.
(g) Notify the Regional Director for Region 3, in writ-
ing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
622