GRINNELL FIRE PROTECTION SYSTEMS

National Labor Relations Board - Administrative Judge Opinions

Jan 16, 1997

05–-CA–-024521 (N.L.R.B. Jan. 16, 1997)

JD–4–97
Exeter, NH
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
GRINNELL FIRE PROTECTION SYSTEMS
COMPANY
and Cases 5–CA–24521
5–CA–25227
ROAD SPRINKLER FITTERS LOCAL UNION 5–CA–25406
NO. 669, U.A., UNITED ASSOCIATION OF
JOURNEYMEN AND APPRENTICES OF THE
PLUMBING AND PIPEFITTING INDUSTRY OF
THE UNITED STATES AND CANADA, AFL–CIO
and
UNITED ASSOCIATION OFJOURNEYMEN
AND APPRENTICES OF THE PLUMBING AND
PIPEFITTING INDUSTRY OFTHE UNITED
STATES AND CANADA, AFL–CIO
Ronald Broun, Esq., for the General Counsel.
Helene D. Werner, Esq., and William W.
Osborne, Jr., Esq., of Washington, DC,
for Charging Party, Road Sprinkler Local Union No. 699.
Robert Matisoff, Esq., of Washington, DC,
for Charging Party, United Association.
Michael J. Rybicki, Esq., of Chicago, IL, and
Christopher A. Weals, Esq., of Washington, DC,
for the Respondent.
DECISION
Statement of the Case
RICHARD A. SCULLY, Administrative Law Judge. Upon charges1 filed by Road
Sprinkler Fitters Local Union No. 669, U.A., United Association of Journeymen and Apprentices
of the Plumbing and Pipefitting Industry of the United States and Canada, AFL–CIO (Local 669
or the Union), and by United Association of Journeymen and Apprentices of the Plumbing and
Pipefitting Industry of the United States and Canada, AFL–CIO (the U.A.), the Regional
Director, Region 5, National Labor Relations Board (the Board), issued a complaint on, March

1 The original charge in this matter was filed on April 15, 1994, in Case l–CA–31603. On
June 27, 1994, Case l–CA–31603 was transferred to and continued in Region 5 as Case 5–
CA–24521. The charges in Cases 5–CA–25227 and 5–CA–25406 were filed on March 30 and
June 8, 1995, respectively.
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29, 1995, and amended complaints on September 29 and December 1, 1995, alleging that
Grinnell Fire Protection Systems Company (the Respondent), had committed certain violations
of Section 8(a)(1), (3) and (5) of the National Labor Relations Act, as amended (the Act). The
Respondent filed timely answers denying that it had committed any violation of the Act.
A hearing was held in Washington, DC, on 22 dates between October 16, 1995, and
March 28, 1996, at which all parties were given a full opportunity to examine and cross-examine
witnesses and to present other evidence and argument. Briefs submitted on behalf of the
parties have been given due consideration. Upon the entire record, and from my observation of
the demeanor of the witnesses, I make the following
Findings of Fact
I. The Business of the Respondent
At all times material, the Respondent was a Delaware corporation, with an office and
place of business in Exeter, New Hampshire, engaged in the business of installing and
maintaining automatic sprinkler and fire protection systems at facilities throughout the United
States.
During the 12-month period preceding March 29, 1995, in conducting its business
operations, the Respondent sold and shipped goods, materials and services valued in excess of
$50,000 directly across state lines. The Respondent admits, and I find, that at all times material
it was an employer engaged in commerce within the meaning of Section 2(2), (6) and (7) of the
Act.
II. The Labor Organizations Involved
The Respondent admits, and I find, that at all times material Local 669 and the U.A.
were labor organizations within the meaning of Section 2(5).
III. The Alleged Unfair Labor Practices
1. Section 8(a)(5)
A. Background Facts
The Respondent is a subsidiary of Tyco International Ltd. (Tyco) engaged in the design,
fabrication, sale and installation of fire protection systems, commonly referred to as “fire
sprinkler systems.” It is the largest such business in the United States. Since early in this
century, its employees, known as “sprinkler fitters,” have been represented for collective-
bargaining purposes in various geographical areas by several different locals of the U.A. By far
the largest of these is Local 669, a road local whose jurisdiction covers all or parts of 47 states,
and which in the 1990’s represented approximately 1100 to 1200 of those fitters throughout the
nation.2 For many years, the Respondent had been represented in collective-

2 In its answer the Respondent denied the complaint allegation concerning the description
of the bargaining unit. The only evidence concerning this consists of copies of Board
documents concerning an election held in 1954 involving the Union and a multi-employer
bargaining group which included Grinnell. The petition in that matter, 5–RC–1467, decribes the
unit involved as: “All journeymen sprinkler fitters and their apprentices employed by the
Continued
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bargaining negotiations with Local 669 by a multi-employer bargaining group known as the
National Fire Sprinkler Association (NFSA). NFSA is a trade association whose membership
includes over 150 fire sprinkler contractors. The most recent of a series of collective-bargaining
agreements negotiated by NFSA was to expire on March 31, 1994. By letter dated September
22, 1993, from President Jerry R. Boggess to Local 669 Business Manager John W. Lundak,
Jr., the Respondent gave notice that it was revoking from NFSA all previously granted
bargaining authority and that in the future it would bargain independently with the Union. The
letter also gave notice of termination of the collective-bargaining agreement between the parties
and requested that negotiations for a new agreement begin immediately. The Respondent has
remained in NFSA and is its largest dues-paying member.
In 1992, the Union had instituted a program known as “targeting” to assist signatory
contractors to compete with lower-cost nonunion contractors. Under targeting, the parties were
sometimes able to negotiate concessionary rate agreements (usually involving a percentage
reduction of the wage rate to be paid journeyman fitters on a targeted job and, possibly,
adjustments in travel, mileage, subsistence,hours of work and overtime) on a project-by-project
basis in certain geographical areas. The Union had the final say as to whether or not any
concessionary rate would be granted and the amount of the reduction. While it was available to
it, the Respondent was the principal user of targeting. In May 1993, the Union added the
requirement that, in order to participate in targeting after June 1, 1993, a contractor had to
commit to remain part of the NFSA multi-employer bargaining group through negotiation of the
next agreement or, if an independent, agree be bound by the agreement negotiated by the
Union and NFSA, effective April 1, 1994. The Respondent did not agree to the new condition
and the Union withdrew participation in the targeting program from it. In July 1993, after his
election as business manager of Local 669, Lundak reinstated the Respondent’s ability to
participate in targeting. However, after it withdrew collective-bargaining authority from NFSA,
the Union again excluded it and other contractors so-situated from the targeting program,
effective November 15, 1993.
B. Contract Negotiations
The principal issue in this case is whether or not the parties were at impasse when the
Respondent implemented its final contract offer, effective April 14, 1994. 3 In November 1993,
Boggess met with Lundak and other Union representatives to discuss the upcoming contract
negotiations. Boggess testified that he made a presentation outlining the Respondent’s needs
but that he did not make a formal proposal. A negotiating session was scheduled to be held on
January 18, but was later canceled by the Union.
During the early part of 1994, while it was also preparing to negotiate new agreements
with NFSA and a number of independent contractors, Local 669 found itself embroiled in
controversy when Lundak was the target of internal union charges. On January 28, citing
Lundak’s alleged misconduct, Local 669’s President Dean O. Garness and Financial Secretary-
Treasurer Jesse L. Richards petitioned U.A. General President Marvin J. Boede to impose a
trusteeship on the Local. On March 25, Boede informed Local 669 that he had determined that
an emergency situation existed, that he was putting it in trusteeship, effective March 28, and
_________________________
companies, as shown in Exhibit B , excluding, all other building tradesmen, clerical, office and
supervisory employees as defined by the Act.” Exhibit B includes the name of Grinnell
Company, Inc. In the absence of any other evidence, this would appear to be the best
description of the bargaining unit.
3 Hereinafter, all dates are in 1994 unless otherwise indicated.
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that he was appointing Tommy L. Pruett as trustee. The evidence shows that the Respondent
was aware of the the Union’s internal problems and that they were interfering with contract
negotiations with it and and with NFSA.
On January 28, the Respondent sent the Union its first contract proposal. In a cover
letter, Boggess stated that although unionized companies in the industry have had some good
years, they were headed for a steep decline if changes were not made, that they were losing
market share to nonunion competition because overall labor costs under the contract with Local
669 were so much higher, and that the Respondent had problems with wages in some
locations, health care costs and its inability to use apprentices and helpers as it wished. In
addressing these concerns, the Respondent’s proposal contained several significant changes in
the terms of the existing agreement in the areas of wages, job classifications, health and
welfare, and pension. The proposal called for foreman to be paid at the existing contract rates
in all states and fitters to be paid at rates to be determined by the Respondent within a specified
range depending on local economic conditions, adding a new helper classification that would be
paid at rates determined by the Respondent, changing the ratio of journeymen to apprentices
and helpers from 2 to1 to 1to1, replacing the existing National Automatic Sprinkler Industry
(NASI) health and welfare and pension plans4 with Tyco health and welfare and 401(k) plans.
The first formal negotiating session between the Respondent and the Union was
scheduled for March 17 in Bethesda, Maryland. The Respondent was represented by Boggess,
vice presidents Michael Buchanan and James Peck, Tyco Vice President of Human Resources
John Helfrich and attorneys McNeil Stokes and Peter Chatilovicz, the latter acting as chief
spokesperson. The Union was represented by Lundak, as chief spokesperson, Garness,
Ronnie Phillips, who was appointed secretary-treasurer in early February after Richards had
resigned and attorney William Osborne. Boggess began the Respondent’s presentation by
giving his view of the state of the industry and then turned it over to Chatilovicz who began by
explaining the Respondent’s reasons for its withdrawal of bargaining authority from NFSA. He
said that the Respondent needed an agreement which would resolve the key competitive issues
facing it and that it was a mistake to think that it would sign a NFSA agreement simply because
other contractors would. Chatilovicz presented the Respondent’s second proposal along with a
binder containing information concerning the benefit plans the Respondent was proposing.
The second proposal contained modifications to the first proposal meant to answer questions
raised by the Union, for purposes of clarification, or because they had been omitted in the first
proposal. He went over the key elements of the proposal, saying, that on wages the
Respondent wanted control of targeting, it wanted to reduce health and welfare and pension
costs by substituting the Tyco programs outlined in the proposal, and it wanted to reduce the
ratio of journeymen to apprentices.
Under the Respondent’s proposal, targeting would apply to all projects where there was
nonunion competition, would involve up to a 65 percent reduction in journeymen rates and the
rate selected would be solely within the Respondent’s discretion. Under the existing agreement
targeting was within the discretion of the Union. The proposed health and welfare plan
provided for employee contributions which were subject to annual premium increases of up to
ten percent. There was no employee contribution under the NASI plan. Under the proposed
401(k) plan, a fitter under 55 years of age had to be employed by the Respondent for 90 days
to be eligible to participate.

4 The NASI plans were jointly administered Taft-Hartley plans covering fitters throughout the
country. The NASI plans included portability and reciprocity, meaning that benefits followed a
fitter from one union local to another and from one union contractor to another.
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After a caucus, the Union agreed to the removal of the contract references to NFSA and
to a three-year term and presented a proposal relating to inspections, subcontracting, the
impact of possible changes in laws affecting health care benefits, and the continuation of
contact terms and conditions in the event negotiations extended beyond the contract expiration
date. The parties discussed the selection of foremen and the standards by which they would be
chosen, the mechanics of the targeting proposal and the new helper classification. Chatilovicz
asked if they wanted to discuss the health and welfare and pension proposals and the Union
responded that they needed time to study them.
The parties met again the following day. The session began with Chatilovicz asking
Lundak if he had authority to approve an agreement and his responding that he did not. This
was disputed by the other Union representatives who stated that the business manager had the
authority to approve an agreement with an independent and that it need not be submitted to the
membership for approval. The Respondent requested a five-day renewable extension of the
contract and the Union said it would get back to it on that request. There was a discussion of
the Respondent’s wage proposal and it changed the maximum reduction of the journeyman rate
on targeted projects from 65 to 75 percent and agreed to have a Union/Employer committee
review allegations that targeting was misused on given projects. It reponded to a question that
the Union had about the amount of life insurance to be provided by stating that it would be
determined based on the full journeyman rate not a targeted rate. The Respondent withdrew its
proposal to add a “helper” classification and proposed using “pre-apprentices,” where no
apprentices were available, at a rate no less than the minimum for apprentices. After a break,
Chatilovicz asked for the Union’s response to the Respondent’s proposal. The Union
responded that it did not have an answer and had not yet formulated its counter-proposal on
wages. Chatilovicz expressed concern that the Union was just listening and not offering
anything. Osborne asked why he was so impatient and said that the Union had questions it
needed answered. There was additional discussion about the proposed 401(k) plan and
targeting before the parties broke for lunch. After the break the Union commitee did not return
and announced that it was through for the day. Before leaving, the Union presented a wage
proposal calling for increases in the journeyman’s hourly rate of $.25 in the first year, $.75 in the
second and $1.25 in the third year of the agreement and a $.25 increase in the differential for
foremen. The parties agreed to meet again on March 28.
On March 22, the Union issued to its members a strike notice directed at the
Respondent and NFSA. On that date, Chatilovicz contacted Osborne concerning the
Respondent’s request for a contract extension and was informed that the Union would not
agree to it. By letter dated March 24, Boggess informed the Respondent’s employees that in
the event of a strike, it would hire permanent replacements to do its work. The negotiating
session scheduled for March 28 was canceled after the president of the U.A. placed Local 669
in trusteeship.
As noted, Tommy Pruett, a former president and business manager of Local 669, then
employed by the U.A., was appointed trustee, effective March 28, and empowered to run its
affairs, including negotiating new agreements with NFSA, the Respondent, and other
independent contractors whose agreements expired on March 31. The next negotiating
session with the Respondent was on March 30 at a hotel in New York City. Pruett attended
along with Lundak, Phillips and Garness. The Union was also negotiating with NFSA on the
same date at the same hotel. Pruett described the meeting with the Respondent as a get-
acquainted session that did not involve any substantive bargaining. He introduced himself and
explained the nature of the trusteeship and his authority to conclude an agreement without
ratification by the membership. Chatilovicz went over the background of the relationship
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between the parties and the difficulty the Respondent felt it had getting the Union to meet with it
and give it a counter-proposal. He explained the reasons for the Respondent’s withdrawal from
NFSA and the adverse effects that it had suffered as a result of the Union’s withdrawal of
targeting from it. He stated that Grinnell considered the important issues to be the
institutionalizing of targeting at 75 percent, the 1 to 1 ratio of journeymen to apprentices and the
changes in health and welfare and pension that it had proposed. He expressed concern that
the Union would reach an agreement with NFSA that did not adress Grinnell’s concerns and
then expect it to accept that agreement. Pruett said that he wanted to work with them to get an
agreement, that he did not want a strike, and that none was planned for April 1. He stated that
he had only about three days to familiarize himself with the contract issues between the Union
and both Grinnell and NFSA and requested a thirty-day contract extension. Chatilovicz would
not agree and said that the Respondent did not want negotiations to drag out two or three
weeks. Pruett said that he was meeting with NFSA the next week and offered to meet on April
11. He said that he wanted to see if the Union could give the Respondent some things it would
not give others because of its size. Chatilovicz said they had to meet for at least two days the
next week and that April 11 was too late. They agreed to meet on April 7. There was a
discussion of various issues. On the subject of targeting, Pruett said that he was against a
uniform targeting rate because it defeated the purpose of targeting and would permit nonunion
contractors to slide under it. On health and welfare, he said that he was reluctant to give up the
NASI plans as he was interested a standardized package that would include portabilty and
reciprocity and would not isolate the Respondent’s fitters from the rest of the industry. There
was also an issue because the Tyco plan did not provide health coverage for retirees.
Chatilovicz responded that he understood Pruett’s concern and that Grinnell was “not wedded”
to the Tyco plan, which was the plan that covered its supervisors and managers, and was put
on the table as an example of a plan that offered core benefits at a reasonable cost, but that it
wanted an agreement that would cut its costs in health and welfare and in pensions. Pruett
stated that he had no problem with the proposed change in the ratio of journeymen to
apprentices.
The next meeting was held on April 7 in New York City with Pruett representing the
Union and Phillips present as a notetaker. Pruett was again conducting negotiations with NFSA
at the same hotel on that date. At the morning session, Pruett presented a complete contract
proposal and went over its terms, section by section. It included a proposal on wages calling
for the same increases included in the Union’s previous proposal and a targeting proposal
whereby a Union agent and Grinnell representative in each district would set a target rate for
the following year based on the local marketplace with a mechanism to protect the Respondent
from arbitrary action by Union representatives. This would not be done until after a contract
was signed and would not have guaranteed any rates. On benefits, his proposal called for
continued contributions to the NASI health and welfare and pension plans, and to education
and industry promotion funds. It called for the employer’s contribution to he health and welfare
fund to be frozen at the current $3.75 per hour rate for the term of the contract, pension
contributions at the current rate of $2.20 in 1994, $2.30 in 1995 and $2.40 in 1996, and a flat
$.75 contribution to supplemental pension funds (SIS) in the states where they existed. After a
break, Chatilovicz made a section by section response to the Union’s proposal and there was
agreement on several articles. Throughout the session the Respondent continued to insist that
any agreement had to include a fixed targeting rate of 75 percent. It also wanted reduced
health and welfare and pension contributions and to eliminate all SIS and industry promotion
and training funds contributions. It amended its proposal to permit non-unit employees to
perform inspection work. During the afternoon session, Pruett proposed a freeze on wage
rates for the term of the contract and that, within 60 days, a committee would meet to set
targeting rates for the next year and, after a review of the results, set rates for the following
year. He also proposed separate rates for industrial, commercial and residential jobs. He
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proposed health and welfare contributions of $3.75, $3.50 and $3.25 per hour over the the
three years of the contract and a $.50 per hour SIS contribution, where applicable, in the first
year with $.10 increases in each of the two succeeding years, and a reduced training fund
contribution. He agreed to the Respondent’s proposal on travel expenses. Following a break,
the Respondent proposed that there be a fixed target rate of 75 percent with the rate to be
reviewed after a year and possibly adjusted. It offered either the Tyco health plan or to make a
$2.25 per hour contribution to a NASI or other health plan acceptable to the Union and, in the
pension area, either the Tyco 401(k) plan or to make a $1.20 per hour contribution to a NASI
plan and no SIS contibutions. The parties recessed at 4:40 p.m. and reconvened at 8:10 p.m.
Pruett offered amended proposals on the hiring of apprentices, overtime and training fund
contibutions and proposed a contribution of $2.20 per hour to the NASI pension plan, a $.50
SIS contribution for the term of the agreement, and health and welfare contributions of $3.75,
$3.40 and $3.40 in the three years covered by the contract. He rejected the Respondent’s
inspection language. After a break, Chatilovicz responded that the Respondent agreed to the
Union’s overtime and training fund proposals and some of the language on apprentices but said
that it had to have targeting under its control. He prepared a chart indicating that there
remained open issues on wages/targeting, health and welfare, pension and SIS, and
inspections.
The next meeting was on April 8 in the hotel in New York City where Pruett was also
negotiating with NFSA. They reviewed the open issues and discussed targeting with Pruett
talking about an industrial, commercial and residential rate structure and Chatilovicz reiterating
the importance of a fixed targeting rate to the Respondent and stating that it was its “final”
proposal on that issue. Pruett stated that uniformity of benefits was his primary goal, if it could
be done, and that he would have to do some research on the health and welfare plan to find out
what level of benefits $2.25 per hour would provide and whether moving to the Tyco plan option
was “doable.” He asked questions about the 401(k) plan and said that he was not an expert in
that area and needed to research the matter. Pruett also said that there was a lot of chaos in
the Union resulting from Lundak’s election, that the mood of the membership was not good and
that, while there were issues the parties did not agree on, he was there to get an agreement.
He said that he needed information concerning the Respondent’s inspection proposal. Later in
the meeting, Chatilovicz said that the Respondent was withdrawing its inspection proposal,
saying that it was doing okay under the existing agreement. Pruett said that he needed to get
additional information on the issue.5 The meeting ended with an agreement to meet on April 12
and Chatilovicz asking for specific responses from the Union on targeting, health and welfare
and pension and SIS.
The meeting on April 12 was held at the U.A.’s offices in Washington, D.C. In the
interim, the Union and NFSA had reached agreement on a new contract. The Respondent was
aware of this and knew the details of the settlement. The meeting began with a discussion of
the issues that remained open. Pruett said that inspection was still open and that the Union
had proposed to create a committee to study problems and define what work inspectors can
do. Chatilovicz said that the Respondent had withdrawn its proposal and agreed to the existing
language, that he thought Pruett had agreed and now he was making a change. He said they
agreed that inspectors would not do bargaining unit work so there was no problem. Pruett
responded that the problem was who decided what was bargaining unit work. Chatilovicz said
they would discuss it but it was not an economic issue and he wanted to settle the remaining
economic issues and get an agreement. Pruett said that he also wanted an agreement.

5 Although Chatilovicz testified that Pruett agreed to this, Pruett testified that he did not.
Buchanan’s notes support Pruett’s version.
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Chatilovicz told him to “stop bullshitting,” accused him of “playing games” and suggested
getting a federal mediator to resolve matters. Pruett responded that he was not playing games,
that he wanted uniformity in the industry and had made proposals to accomplish this as well as
concessions on several issues. Chatilovicz agreed that he had made some movement but
asked for Pruett’s best proposal. He said that he recognized the issue of uniformity, that he
would not be would not be surprised if Pruett had to have the same agreement the Union had
reached with NFSA, and, if that was what the Union must have, the Respondent would look at it
and see if it could agree.
Pruett was accompanied to the meeting by Paul Green an attorney with benefits
expertise. Green began to ask a series of questions about the Tyco benefits plans. After a
while, Chatilovicz stated that he understood that Pruett was not inclined to move away from the
NASI health and welfare plan and was not interested in the Tyco plan and asked why Green,
who did not know the specifics of the plans, was there asking questions. Pruett responded that
the Union’s fund expert was involved with the NASI plans and he feared a conflict of interest.
Chatilovicz asked if there was any way Pruett could accept the Tyco plan and he responded
that he was not sure. Chatilovicz asked if Pruett would go no lower than a health and welfare
contribution of $3.75 and $3.40 and Pruett responded that he could not say without experience
to measure by. Chatilovicz asked if Pruett was saying no to the Tyco plan and he responded,
that he didn’t say no. Green continued to ask questions and Chatilovicz again said that Pruett
had said that he was not interested in the Tyco plan. Pruett said that they were bargaining and
Chatilovicz responded that if they wanted to bargain they should do so and stop the bullshit. He
said if Pruett wanted to give them the NFSA proposal he should do so, but it was insulting to
bring in Green to pick at the Tyco plan.
After a discussion of the wage rates contained in the agreement the Union had signed
with NFSA, Chatilovicz stated that he knew Pruett wanted a uniform agreement and he did not
consider it unfair bargaining for the Union to offer the Respondent the NFSA proposal and say it
was as far as it could go on wages. Pruett responded that he wanted a wage rate freeze
without any fixed percentage reductions and discussed the reduced commercial and residential
rates contained in the agreement with NFSA. After a break for lunch, the Respondent
presented its “final proposal” on the open issues which provided for a freeze in wage rates for
foremen at the 1994 level, an 80 percent reduction for journeymen on any job with competing
nonunion bidders, acceptance of the Union’s qualification to its proposal concerning
journeyman to apprentice ratio, the Tyco health plan with the modification that there would be
no employee contribution for the first year except for high option, the Tyco 401(k) plan with a
$200 per year service credit, up to a maximum of $1,000, and no SIS contributions. Chatilovicz
said if Pruett could not accept this he should give them his best and final proposal. Pruett said
he would look at it. After an hour and a half caucus, the Union made a counterproposal
resubmitting its health and welfare and pension proposals and offering reductions in the
commercial rates of $1.00 in 30 states and $1.50 in 17 states. Pruett said that he felt the offer
would lower the Respondent’s costs tremendously and make it competitive and that he was
willing to meet indefinitely to get an agreement. Chatilovicz said that they would assume that
this was the Union’s last offer and would look it over. Pruett said that it was not his last offer,
that he wanted an agreement and was flexible. After a break, Chatilovicz said that both sides
had worked hard to reach an agreement but that, while the Union’s proposal provided some
savings, it was not enough, that the Respondent was only interested in itself and that it did not
want the Union/NFSA agreement, as it would not help it with competition from nonunion
contractors. He said they would be in his office until 6:00 p.m. that evening, in case Pruett
changed his mind, and gave him the telephone number. Pruett said that all day the
Respondent had been moving toward absolutes and final offers and was trying to push him to
an impasse. He said that he did not want an impasse and that he did not give up easily. He
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asked how far apart they were and in what states the Respondent needed movement. They
discussed the differences in the rates in some states and the meeting ended.
At about 6:00 p.m., Pruett telephoned Chatilovicz from an automobile in which he and
Phillips were riding. Chatilovicz took the call on a speaker-phone in his office with Helfrich also
present. Pruett asked to meet on the following day and Chatilovicz asked what the Union was
going to propose. Pruett said he would try to get the Respondent to raise its rates. Chatilovicz
said that he had the Respondent’s final proposal and it was not willing to change wages and
benefits. Pruett asked about bringing in a federal mediator and Chatilovicz asked if the Union
was willing to come down to the Respondent’s rates and Pruett said no.6 Chatilovicz said that
he did not think a mediator could help. Pruett asked if the Respondent’s rates were carved in
stone and Chatilovicz responded that they were. Pruett said that he hoped that the Respondent
would change its mind and maybe they could get together down the road.
Later that evening Pruett called a nationwide strike against the Respondent, which was
still in effect as of the time of the hearing. On the following day, April 13, the Respondent
informed its employees and the Union that it was implementing its final offer, effective April 14.
C. The Negotiations Between the Union and NFSA
As noted, at the same time these negotiations were being carried on, the Union was
also negotiating a new contract with NFSA. Given the similarity of the issues and parties
involved, I find that those negotiations are relevant to those between the Union and the
Respondent. See Excavation-Construction, Inc., 248 NLRB 649 (1980). The evidence
indicates that many employers, including the Respondent, were unhappy with the expiring
contract, which they viewed as overly generous, and were interested in lowering costs. The
NFSA employers were included in the Union strike notice of March 22. There had been little
progress in these negotiations prior to the imposition of the trusteeship on the Union. Pruett
began meeting with NFSA on March 29. NFSA negotiator Cornelius Cahill credibly testified that
Pruett introduced himself and stated the scope of his authority to enter a contract without
ratification by the Union membership. He asked that he be given time to get his feet on the
ground and requested a 30-day extention of the existing contract. There was a discussion
concerning the negotiations with Grinnell and about NFSA’s concern that Grinnell would get a
better deal and the fact that its proposal contained a “most favored nation” clause to protect
against that happening. Pruett spoke about the importance of uniformity in the industry and
said words to the effect that Grinnell would not get a more favorable contract than NFSA and
that he intended to reach an agreement with NFSA first. On April 6, the Union and NFSA
agreed on a 1 to 1 apprentice to journeyman ratio. On April 7, Pruett made a proposal on
health and welfare contributions of $3.75, $3.50 and $3.25 per hour during the three years of
the contract, similar to that offered to the Respondent. The parties ultimately agreed to
contributions of $3.75, $3.40 and $3.40. They also agreed to a $2.20 per hour pension
contribution during the life of the contract and a $.50 per hour SIS contribution in states where
applicable. On April 8, they agreed on wages. The agreement included an industrial rate that

6 The Respondent contends that in this conversation Pruett said he was unwilling to lower
his proposed wage rates and benefits, citing the testimony and notes of Chatilovicz and
Helfrich. I credit the testimony of Pruett that he said he was not willing to agree to the rates in
the Respondent’s final offer. Not only is this consistent with Pruett’s request for further
bargaining and his statements that he had not made his final offer and was flexible, the
testimony and notes of Stokes, based on what Chatilovicz told him about this conversation,
support Pruett’s version.
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was the rate in the expiring contract, a commercial rate that was $1.00 less in 30 states and
$1.50 less in 17 states and a residential rate that was 75 percent of the industrial rate. The
agreement also included a continuation of the existing targeting program on a job-by-job basis
without a specific rate of reduction. NFSA continued to seek a “most favored nation” clause
and Pruett said that it was unnecessary because the parties had always worked together in
good faith. NFSA dropped this proposal after Pruett said he didn’t think it was a mandatory
subject of bargaining and did not want to discuss it further. At that point, the parties had an
agreement.
Analysis and Conclusions
Generally speaking, Section 8(a)(5) prohibits an employer from unilaterally instituting
changes regarding wages, hours and other terms and conditions of employment before
reaching a good faith impasse in bargaining. NLRB v. Katz, 369 U.S. 736 (1962); Milwaukee
Spring Division, 268 NLRB 601, 602 (1984). An impasse is considered to exist when the
collective-bargaining process has been exhausted, D.C. Liquor Wholesalers, 292 NLRB 1234
(1989), and “despite the parties’ best efforts to reach an agreement, neither party is willing to
move from its position.” Excavation-Construction, Inc., supra, at 650; Hi-Way Billboards, Inc.,
206 NLRB 22 (1973). The existence of an impasse must be proved by the party asserting it as
the basis for its unilateral actions. Tom Ryan Distributors, 314 NLRB 600, 604 (1994); North
Star Steel, 305 NLRB 45 (1991). The relevant factors to be considered in determining whether
a bargaining impasse exists were set forth by the Board in Taft Broadcasting Co., 163 NLRB
475, 478 (1967):
Whether a bargaining impasse exists is a matter of judgment. The bargaining history, the
good faith of the parties in negotiations, the length of the negotiations, the importance of the
issue or issues to which there is disagreement, the contemporaneous understanding of the
parties as to the state of negotiations are all relevant factors to be considered in deciding
whether an impasse in bargaining existed.
1. Bargaining History
The present case involves a bargaining history that is unusual in that, although the
parties had a relationship going back several decades, for the first time in many years they
were negotiating for a contract face-to-face instead of through NFSA. Not only did the
Respondent embark on a bargaining path independent of NFSA, its bargaining goals differed
significantly. Further complicating matters was the imposition of the trusteeship on the Union
and the substitution of Pruett as its negotiator shortly after bargaining had commenced. The
result was that the parties’ negotiators had no experience or familiarity with one another and no
feel for one another’s approach to the bargaining process.7 Under these circumstances,
whether viewed from a long range perspective or only from the commencement of the
trusteeship, the lack of a significant bargaining history would dictate giving the parties a fuller
opportunity to effect an agreement than occurred here. See Bell Transit Co., 271 NLRB 1272,
1273 (1984) and Old Man’s Home of Philadelphia, 265 NLRB 1632, 1634 (1982). Moreover,
the substantial concessions and changes in the nature of the health and welfare and pension
benefits the Respondent was seeking, warranted “more extensive discussion than these
truncated negotiations permitted.” Harding Glass, 316 NLRB 985, 991 (1995).

7 This became apparent as negotiations progressed with Pruett pursuing his negotiating
“technique” and Chatilovicz considering it “bullshit.”
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2. Good Faith
Although the Union argues strongly to the contrary, I find the evidence does not
establish that the Respondent did not bargain in good faith from the outset or that it was not
interested in reaching an agreement or that it sought “to obliterate its longstanding Union
relationship.” The Union points to the fact that one of the Respondent’s earliest actions in
preparing for the expiration of the contract was the conduct of a national survey among its
district managers in May 1993 to determine, inter alia, the backlog of work they would have had
the company operated as “an open-shop contractor” and the wage and benefits costs of
nonunion competition, and that it retained the legal services of Stokes in connection with
preparing and presenting its bargaining positions. It contends that the survey and the fact of
Stokes’ association with the American Fire Sprinkler Association, which has described itself as
the voice of the open shop contractors in the sprinkler industry, is evidence of an intention to go
nonunion. It contends that the Respondent’s contract proposals were so regressive and
untenable as to evidence a design to frustrate rather than facilitate an agreement and to
precipitate a strike by the Union. Further evidence of this design is alleged to be found in the
Respondent’s efforts prepare for a strike and to recruit potential permanent replacement
workers for employees who went on strike.
I do not find that the evidence establishes that the Respondent entered into these
negotiations with the intention of going nonunion or that it was not desirous of reaching an
agreement. First, although the Union raised the issue of the Respondent’s alleged lack of good
faith in its charges, the complaint does not contain an independent allegation that the
Respondent violated Section 8(a)(5) by bargaining in bad faith, but is limited to the allegation
that the Respondent unilaterally implemented its final contract proposal without first bargaining
to impasse. At the hearing, evidence concerning the Respondent’s good faith in bargaining
was received for the limited purpose of establishing that alleged violation. See Dahl Fish Co.,
279 NLRB 1084, 1103 (1986). The credible testimony of Boggess and Peck establishes that
the May 1993 survey was used to determine the wages and benefits paid by its competitors as
a part of the Respondent’s efforts to formulate its bargaining position and strategy for the
upcoming negotiations. The evidence shows that the Respondent shared the results of the
survey with the Union shortly after it was conducted. Despite the reference to doing business
as an “open shop,” I find that the Respondent’s purpose in conducting the survey was a
reasonable and prudent means of appraising its competition and does not establish bad faith on
its part. I also find that the Union’s assertion that, because Stokes may have been associated
with an organization representing nonunion contractors, this shows that the Respondent used
his services to assist it to become an open shop is pure speculation and does not constitute
probative evidence.
Viewed objectively, the Respondent’s proposals on wages and benefits, while a marked
departure from those in the existing contract were not so unreasonable or harsh as to warrant a
finding that they were put forward in bad faith in order to frustrate bargaining and undermine the
Union. See Reichhold Chemicals, 288 NLRB 69 (1988). In the benefits area, the Respondent’s
health and welfare and pension proposals, while considerably less generous than the existing
plans, were similar to those provided to its nonunion employees. Pruett acknowledged during
negotiations that the existing agreement had alienated many contractors who felt it was
unbalanced and that they had been had and they were “on the get-even special” in 1994,
seeking to roll back some of its onerous terms. During the negotiations, the Respondent
explained its proposals and its reason for them which was to become competitive with nonunion
contractors by lowering its labor costs. It also made modifications and concessions during the
negotiations. All of this is evidence of good faith on its part. E.g., McClatchy Newspapers, 307
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NLRB 773, 780(1992); Litton Systems, 300 NLRB 324, 330(1990). The Respondent not only
made itself available and accommodated the Union with respect to the timing and locations of
the negotiating sessions, it took the lead in seeking to get the negotiations started. This is
further evidence of good faith. Walter A. Zlogar, Inc., 278 NLRB 1087, 1093 (1986). Finally, I
do not believe that the fact that the Respondent made detailed preparations for a potential
strike, including, recruiting potential striker replacements is evidence of bad faith on its part.
The Union had informed its membership in a December 1993 newsletter of the possibility of an
April 1 strike against Grinnell and of the need to be prepared for any eventuality and had given
it a strike notice before Pruett came on the scene. I find that the Respondent’s preparations for
a strike did not reflect an intent to avoid reaching an agreement. See Rose Printing Co., 289
NLRB 252, 263 (1988).
3. Length of Negotiations and Importance of Issues
Although the parties had agreed on several items by April 12, they were still far apart on
wages and benefits, with the Respondent seeking fixed targeting and a move to the Tyco health
and welfare and 401(k) plans. The Union was opposed to fixed targeting and preferred the
existing NASI health and welfare and pension plans. The Respondent contends that, under
these circumstances where these issues were of supreme importance, an impasse may be
reached after only a few bargaining sessions. I find that was not the case here. On the
contrary, I find that, given the importance of these issues to the parties, the radical departures
from the existing contract the Respondent was proposing, Pruett’s late entrance into the
negotiations, his admitted lack of familiarity with the issues and his need to play “catch-up,” it
was to be expected that, in order to be fruitful, the negotiations would be long and arduous. It
would appear that the Respondent recognized this from the outset, long before Pruett entered
the picture, and sought to get the negotiations underway as early as possible. The evidence
suggests that, in 1993, the Union was not receptive and was preoccupied by internal problems.
Shortly after the negotiations started, they were disrupted by the imposition of the trusteeship
on the Union. I find that, under the circumstances, the only bargaining sessions that should be
considered in determining the impasse question were those in which Pruett represented the
Union. “While it is true that the number of negotiating sessions is not controlling, generally, the
more meetings, the better the chance of finding an impasse.” PRC Recording Co., 280 NLRB
615, 635 (1986). Here, there were only four negotiating sessions, totalling no more than 13
hours of actual bargaining with much of the four-hour session on March 30 devoted to
introductions and general discussion. I do not believe that the Respondent has shown that,
when it broke off bargaining, the parties had reached the point where further bargaining would
have been futile.
As noted, after being appointed trustee, Pruett was negotiating almost simultaneously
with the Respondent and NFSA. The Respondent contends that this was because he intended
to settle with NFSA first and then offer the same terms to it on a take-it-or-leave-it basis. There
is no question but that in many instances when Pruett reached agreement on an issue with
NFSA, he proposed similar terms to the Respondent. This was entirely consistent with his
statements to both parties that he felt consistency in the industry was desirable. It was also to
be expected inasmuch as the negotiations with NFSA, although it was also seeking to contain
the costs of wages and benefits, were conducted within the framework of the existing contract
while the Respondent was proposing a new departure in those areas. Consequently, I find the
fact that Pruett was able to reach agreement with NFSA after only four sessions does not
establish, as the Respondent contends, that a similar number of sessions with it were sufficient
to exhaust any possibility of agreement. On the issue of benefits alone, the Respondent’s
radically different proposals presented significant problems of portability and reciprocity that
went far beyond the cost issues that the NFSA proposals raised. Pruett credibly testified that
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he was not an expert in the benefits area and needed to call on expertise to fully understand
what was and was not “doable” with respect to the Tyco benefits plans the Respondent was
proposing. When he brought Green, a benefits expert, to the April 12 negotiating session to
ask questions that even Helfrich, the Respondent’s benefits expert, testified were good
questions although he felt they were “late in the game,” Chatilovicz expressed annoyance and
cut him short by saying that the questions were insulting since Pruett was not interested in the
Tyco plans, although the evidence does not show that to have been the case. On the contrary,
although the NASI funds were obviously important and a matter of pride to the Union, Pruett
had never foreclosed the possibility of accepting the Tyco plans. What he did say was that he
needed time to study the problems involved. Given the importance of these issues, his request
was not unreasonable.
The evidence does not support the Respondent’s principal argument on this issue that
Pruett had “painted himself into a corner” by settling with NFSA and could then offer it nothing
different. The Respondent’s reliance on cases8 in which an impasse was found to have
occurred in situations where the union adamantly insisted that the employer accept the terms
standard industry agreement and refused to consider anything else is misplaced. I find the
evidence does not establish that Pruett ever made a final proposal to the Respondent that was
the same as the settlement with NFSA or that it could reasonably conclude that he would or
could not give it a better deal than NFSA. Indeed, on April 12, although Chatilovicz specifically
suggested that Pruett offer the terms of NFSA settlement, when he was aware of those terms
and that they were unacceptable to the Respondent, Pruett declined to do so. I find no evidence
that Pruett was not acting in good faith throughout his negotiations with the Respondent or that
he did not mean what he said during those negotiations. The Respondent appears to confuse
statements Pruett made in trying to sell his proposals, by stressing that uniformity and stability
in the industry would be beneficial to all contractors, with the extent of those proposals.
Similarly, I do not believe that statements Pruett may have made during his negotiations with
NFSA that “noone would get a better deal,” establish that he did not have the flexibility to
fashion a deal with the Respondent, as he repeatedly told it he did. First, there is no evidence
that the Respondent knew about such statements before it left the bargaining table or, if it did,
necessarily understood what Pruett meant by “a better deal.” Such posturing during
negotiations is to be expected. See D.C. Liquor Wholesalers, supra, at 1235-1236. It is
obvious that the Respondent’s size set it apart from the other members of NFSA. At their first
meeting, Pruett stated that he recognized that fact and that he wanted to see if the Union could
give the Respondent some things it would not give others because of its size. Notwithstanding
the efforts by NFSA to get a “most favored nation” clause in its agreement, Pruett refused to
agree and the final settlement did not include one. Rather than painting himself into a corner, it
appears that Pruett took pains throughout his dealings with both the Respondent and NFSA to
maintain the flexibility he needed to fashion a deal with both. On April 12 Pruett had already
moved beyond the NFSA agreement wage rates in two states and said that it was not his last
offer. The Respondent considers this “insignificant,” but the fact is it indicated movement on
the Union’s part. Pruett may have been reluctant to move as quickly or as far as the
Respondent wished at the time it broke off negotiations, but the record does not establish that
he would go no further or that continuing to negotiate would have been futile.
“An impasse is not demonstrated simply when one party’s concessions are not thought to be
adequate or when frustration in the movement has reached a subjectively intolerable level.”
AMF Bowling Co. v. NLRB, 63 F.3d 1293, 1301 (4th Cir. 1995).

8 Grant Trucking, 272 NLRB 590 (1984); Betlem Service Corp., 268 NLRB 354 (1983); and
J.D. Lunsford Plumbing, 254 NLRB 1360 (1981).
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For an impasse to occur, neither party must be willing to compromise. PRC Recording
Co., supra, at 640; Huck Mfg. Co. v. NLRB, 693 F. 2d 1176, 1186 (5th Cir. 1982). It appears
that on April 12 the Respondent chose to assume that Pruett had made his final offer and would
make no further concessions, rather than to listen to what he was saying at the bargaining
table. The Respondent’s assumptions as to what the Union would do are not an adequate
substitute for collective bargaining. Excavation-Construction, Inc., supra, at 650. It also
appears that it chose to draw an arbitrary line as to when negotiations should end, rather than
to let them run their course, although it has articulated no compelling reasons for doing so. By
April 12, with the NFSA negotiations concluded, it finally had Pruett’s full time and attention, his
assurance that he was flexible and that he had not made his final proposal. The Respondent
acknowledged that the Union’s latest offer had given it some savings, although in its view not
enough, but it was unwilling to put Pruett’s flexibility to the test since he was unwilling to agree
to its final proposal. Under these circumstances, I find that no genuine impasse existed.
Wycoff Steel, 303 NLRB 517, 523 (1991);Towne Plaza Hotel, 258 NLRB 69, 78 (1981).
4. Contemporaneous Views of the Parties
The Respondent’s view that impasse had been reached is not determinative. Wycoff
Steel, supra, at 523. It appears to be based on Chatilovicz’s assertion that the Union had made
a “final offer” on April 12 that was unacceptable to it. The evidence does not support a finding
that the Union had made its “final offer” when the Respondent refused to bargain further.
During the meeting on April 12, Pruett made it clear that he did not believe the parties were at
impasse, although he apparently suspected that the Respondent was trying to push him to one,
and that he was unwilling to give up trying to reach an agreement. He reiterated that
willingness in the post-meeting telephone call to Chatilovicz in which he asked to meet the
following day and to call upon the services of a federal mediator. His testimony at the hearing
was that he was surprised by the Respondent’s final offer on April 12 and refusal to meet
further unless he would accept that offer and that he felt that the parties were making progress
toward an agreement. As noted above, I found Pruett to be a credible and persuasive witness
and believed his testimony that he had while he was unwilling to accept the Respondent’s most
recent “final offer,” he was still exploring whether he could accept the Tyco health and pension
plans and do more for it on wages. Since he still had movement to make, there was no
impasse.
Finally, I do not find that the fact that Pruett called a strike after the Respondent left the
bargaining table proves the parties were at impasse. Pruett credibly testified that he called the
strike “in an effort to bring [Grinnell] back to the bargaining table, because it was obvious that
they were not going to meet with us any more.” It is clear that the Union felt that the
Respondent had not bargained with it in good faith and that its refusal to continue to meet was
further evidence of this. Once the Respondent refused to meet and negotiate with him, it made
little difference how much movement Pruett was willing to make.
Based on the foregoing, I find that the Respondent has not demonstrated that the
parties had exhausted the possibility of reaching an agreement, that neither party was willing to
move from its position or that it was warranted in assuming that further bargaining would be
futile. Since the parties had not reached a genuine impasse at the time it refused to continue
those negotiations on and after April 13 and when it unilaterally implemented its last contract
offer, the Respondent violated Section 8(a)(5) and (1) of the Act. E.g., Harding Glass Co.,
supra; D.C. Liquor Wholesalers, supra.
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The Nature of the Strike
I find that the nationwide strike Pruett called on the night of April 12, after the
Respondent advised him it would not bargain further and would not meet with him unless the
Union was willing to accept its final offer, was caused at least in part by the Respondent’s
violation of Section 8(a)(5), found herein, and was affected and prolonged by the Respondent’s
unlawful implementation of its final contract offer. Accordingly, I find that it was an unfair labor
practice strike. E.g., C & E Stores, 221 NLRB 1321, 1322 (1976); Larand Leasurelies, 213
NLRB 197 (1974), enfd. 523 F. 2d 814 (6th Cir. 1975).
2. Section 8(a)(1)
A. Alleged threat to Fire Striking Employees
The complaint alleges that the Respondent violated Section 8(a)(1) of the Act on or
about February 15 in Corpus Christi, Texas, when supervisor Dwight Green told employees
they would be fired if they participated in a strike.
In early 1994, the Respondent had employees working at the Koch and Citgo jobsites in
the Corpus Christi area. Mark Shadrock has worked for the Respondent as a fitter at several
Texas locations for about four years prior to the strike in 1994 and was working at the Koch
jobsite in February. He testified that on the evening of February 15 Green conducted a safety
meeting for the employees working at both jobsites at a bar called Lou’s. During the meeting,
at which 10 to 15 employees were present, there was a discussion about the contract
negotiations and Green said that Grinnell had made its final offer to the Union and it was up to
the Union to accept it or not. He also said that if there was a strike, “their trucks were going to
roll the next morning with us or without us.” Employee Mike Munoz asked, “does this mean
we’re fired if we go on strike?” Green responded, “yes, that’s what it means.” He also said the
company would hire replacements and did not have to hire them back after the strike ended.
Shadrock did not recall any of the safety matters discussed at the meeting but remembered that
Green passed out safety t-shirts. Gerald Byrom has worked for the Respondent as a fitter and
as a foreman on and off for about ten years since 1973. He was present at Lou’s for the safety
meeting with Green on February 15 which 15 to 20 employees attended. Green discussed
safety matters for about 45 minutes and then said if they weren’t in their trucks the day after the
strike, they would be replaced. Munoz asked if this meant they would be fired and Green said,
“that’s exactly what I mean.”
Dwight Green testified that he was in Corpus Christi on a weekly basis during January
through March supervising two jobsites in the area. During the week ending February 25, he
conducted a 10 to 15-minute safety meeting at the Koch jobsite in the lunch area. Later that
evening, he met the men at Lou’s bar to distribute safety T-shirts, which are awarded on a
quarterly basis if there have been no accidents. He arrived around 6:00 or 6:30 p.m. and gave
out a T-shirt to each of the men present. After some discussion, Shadrock asked what was
going to happen with the contract. Green responded that he did not know, that Grinnell had put
an offer on the table and he had heard that the Union was not going to negotiate with Grinnell
until it had settled with other contractors. He said nothing else to Shadrock and noboby else
asked him any questions and he specifically remembered that Mike Munoz did not ask him any
questions. He testified that he did not say that Grinnell had made a “final offer,” there was no
mention of replacement workers during the conversation and he did not say that employees
would be fired if they went on strike. Munoz testified that he has been employed by the
Respondent for six years and is currently a foreman. He was a fitter before the strike which he
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participated in until June when he returned to work. He testified that he and other employees
met with Green at Lou’s bar in February and that Green handed out T-shirts. He said there was
no discussion of contract negotiations, that he did not remember Green saying anything about
that subject, and that he did not ask Green any questions. Cliff Thompson testified that he has
been employed by the Respondent since 1991 and is currently a foreman. He worked at the
Koch jobsite during 1994 and remembered attending a get-together at Lou’s in mid-February
with Green and employees from both jobsites. They drank some beers and Green gave out T-
shirts. During a discussion, someone, probably Shadrock, asked Green about the status of the
contract. Green said “we’ve got a good package put together and its on the table and they’re
looking at it.” He did not recall Green saying anything more or any further conversation relating
to the contract. He did not remember Munoz asking any questions,or Green saying anything
about replacement workers or that employees would be fired if they didn’t cross the picket line.
Analysis and Conclusions
This is strictly a matter of credibility. The General Counsel has the burden of proof to
establish this allegation and I find that it is not supported by a preponderance of the credible
evidence. Although the testimony of Shadrock and Byrom is consistent, as it relates to Green’s
saying strikers would be fired, their testimony as a whole was unconvincing. First, it seems
unlikely that Green would hold a safety meeting after work hours in a bar rather than at a
jobsite. Neither of these witness was able to recall a single safety issue that was discussed
although, according to Byrom, the safety portion of the meeting lasted for 45 minutes. Byrom’s
testimony about how the alleged unlawful statement came about was totally lacking in detail or
context and I do not credit it. Finally, both witnesses claimed that a written statement of what
Green had said was prepared, signed by most of those present and sent to the Union, but no
such writing was produced at the hearing. Green credibly testified to being asked about the
contract negotiations while meeting with the employees gathered at Lou’s and telling them what
little he knew about them. He also credibly denied discussing what would happen in the event
of a strike or answering a question by Munoz on that subject. His denial is supported by the
testimony of Munoz and Thompson. While both are former members of the Union who went on
strike and eventually returned to work for the Respondent and are currently employed as
foremen, I do not find those facts are sufficient to undermine their otherwise credible testimony.
Nor does the fact that their recollections of certain of the details of the meeting at Lou’s differ
from that of Green and each other (Munoz heard no mention of a contract offer and Thompson
said Green was present for three hours). I shall recommend that this allegation be dismissed.
B. Alleged Statements By Phillip Black
The complaint alleges that on or about March 10 supervisor Phillip Black in a telephone
conversation told an employee that the Respondent intended to go nonunion and that the
employee had to resign from the Union if he wanted to continue his employment with it.
Gerald Byrom testified that, on March 10, Black, whom he had grown up with and known
for many years but now lives in Maryland, telephoned him at his home in San Antonio, Texas.
They discussed what was going on and Black said that Grinnell had come up with a deal to
replace the Union’s retirement fund with a 401(k) plan. Black said that, in order to stay with
Grinnell, Byrom would have to drop his membership in and send his card back to the Union. He
also said that Grinnell had some money set aside with which to fight the Union. With the
exception of some conversation about the medical condition of Black’s wife, that was the extent
of Byrom’s testimony as to what was said during this call.
Black testified that he and Byrom had grown up together and worked together in Texas
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and that they were close friends. He said that he and his wife and the Byroms had always
celebrated their wedding anniversaries together and that his wife had placed a call to the
Byroms to wish them a happy anniversary. His telephone bill showed it to have been on
March 7. After their wives exchanged greetings and discussed his wife’s medical condition, he
spoke with Byrom for three to five minutes. After exchanging anniversary greetings and
discussing family matters, Byrom asked if negotiations were going on and Black said that they
were. Byrom said that he wanted and needed to work and spoke about his medical condition
and whether Grinnell’s insurance would cover him if he kept working or if there was a strike.
Black said that he did not initiate any discussion about the contract negotiations, did not
remember talking about retirement plans or say that Grinnell had set aside money to fight the
Union. He said that he did not tell Byrom that in order to work during a strike he had to drop his
union card or suggest that he should resign from the Union. Black stated that he had attended
a meeting on March 1 in which district manager Chet Tucker had informed him that the
negotiations were going on and they were trying to get a contract. Tucker had said that if there
was a strike everyone had the right to work and if employees had any questions they should
direct them to him, but that he did not say anything about employees resigning from the Union
in order to work during a strike. On March 3, he was given a document by Tucker that
described what supervisors could and could not say if asked questions.
Analysis and Conclusions
This is also a matter of credibility. Byrom’s testimony about his telephone conversation
with Black was even more cryptic and less credible than his description of what occurred in the
meeting with Green. His testimony does not establish that Black said that Grinnell intended to
go nonunion. Black was a believable witness. I credit his testimony that Byrom raised the
subject of the contract negotiations and his concern about the effect of a strike on his health
insurance. I also credit his testimony that he did not say that Byrom had to resign from the
Union in order to continue to work for the Respondent. I shall recommend that this allegation
be dismissed.
C. Alleged Threats By Gary McDuffee, Jr.
The complaint alleges that in March 1994 supervisor Gary McDuffee,Jr. told an
employee he was a troublemaker and that he would be laid off for pushing a grievance
concering travel pay and that if employees refused to cross a picket line they would lose their
jobs.
Christopher Cooper worked for the Respondent as an apprentice from 1989 until he was
laid off in March 1994. Cooper testified that in February he had a dispute with his supervisor
Gary McDuffee, Jr. over subsistence pay that Cooper was due when he was travelling 50 miles
a day to meet a company truck which took him to the jobsite where he was working. After
receiving a paycheck and realizing the subsistence pay had not been included, Cooper spoke to
McDuffee two or three times about it. On the last occasion, in a pump room at the Acustar
jobsite in Huntsville, Alabama, Cooper demanded that he be paid. McDuffee told him that he
would lay him off and then said that he would sent Cooper to McDuffee’s father who was also a
supervisor in Birmingham, Alabama, and let him lay off Cooper. At that point, Cooper
telephoned McDuffee’s father who said to work it out with his son. Cooper told McDuffee what
his father had said and McDuffee told him he did not need any troublemakers in Huntsville.
Thereafter, Cooper filed a grievance over the subsistence pay and it was paid before it got to
the first step of the grievance procedure. He testified that when McDuffee handed him an
envelope with about $100 in payment of the grievance at a jobsite in Hazel Green, Alabama,
McDuffee was red in the face and shaking with anger. Cooper also testified that in mid-March
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during a conversation about contract negotiations at the Hazel Green jobsite McDuffee told
employees that Grinnell wasn’t bluffing and that if they didn’t cross the picket line they wouldn’t
have jobs.
Myron Mann had worked for the Respondent from July 1988 and was a foreman in
March 1994. He testified that in March he was present at a conversation in the pump room at
the Acustar jobsite in which Cooper asked for subsistence pay for previous weeks and
McDuffee told him not to push it or he would lay him off or have his dad lay him off. Mann
testified that during March at the Hazel Green jobsite, after McDuffee had been to a
superintendent’s meeting and was asked about the contract negotiations, McDuffee said that
the Union would not negotiate with Grinnell and that anyone who would not cross the picket line
“will not have a job” after the strike was over. During the same conversation McDuffee also
said they “may” not have a job.
McDuffee, the supervisor in Huntsville, testified that in January he needed additional
fitters due to the workload and got two from Birmingham, Cooper and Sam Muncher. Initially,
Cooper rode to Huntsville in a company truck with Muncher and, later, with foreman Phil Whittle
and was not entitled to subsistence pay. After Whittle retired, Cooper drove his vehicle about
60 miles a day to meet and ride with Myron Mann in a company truck. Under the contract,
Cooper was entitled to subsistence pay of $10.50 per day since he had to travel over 40 miles
in his own vehicle. On March 28, he received a grievance from the Union based on failure to
provide Cooper subsistence pay for the two weeks he had been riding with Mann. McDuffee
said he conferred by telephone with his supervisor Bobby McArthur in Atlanta and was told to
pay Cooper the subsistence pay immediately. After talking with McArthur, he went to the Hazel
Green jobsite on April 1 and paid Cooper out of his own pocket so he could get his money right
away. He apologized to Cooper but said that should have come to him first with his problem.
McDuffee denied that Cooper had ever spoken to him about the subsistence pay before the
grievance was filed or that he told him not to push it. He denied telling Cooper he was a
troublemaker or telling him he would lay him off for pushing the grievance. McDuffee said that
after he talked with Cooper they went back to where Mann was working and Mann asked if he
knew anything about the negotiations. He responded that if the negotiations fell through
Grinnell would do business as usual and would hire replacement workers. He did not say that
Grinnell wasn’t bluffing or that if employees did not cross the picket line they would not have
jobs.
Analysis and Conclusions
Based on their demeanor while testifying and the content of their testimony, I credit
Cooper who was a believable and convincing witness over McDuffee who was just the opposite.
McDuffee appeared ill-at-ease throughout his testimony and his claim that Cooper had never
raised the subject of the subsisitence pay with him before the grievance was filed, although they
had talked at the jobsite two or three times a week, was simply not believable. Cooper’s
testimony was corroborated by that of Mann who was also a more credible witness than
McDuffee.9 McDuffee’s father Gary McDuffee, Sr., testified that he did not recall talking to

9 Mann candidly admitted that he did not get along with McDuffee who he felt tried to
intimidate him. I do not find Mann’s testimony that McDuffee said that employees who did not
cross the picket line “would not” have a job and another time that they “may not” have a job
detracts from his credibility. People often say that same thing more than once in different terms
in the same conversation.
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Cooper about subsistence pay and telling him to work it out with his son, but that “it could have
happened.” He did recall discussing the matter with his son and telling him “to get it worked
out.” I find that McDuffee’s telling Cooper he didn’t want troublemakers working for him and
threatening to lay him off for trying to obtain benefits provided in the collective-bargaining
agreement was coercive and violated Section 8(a)(1). W.F. Bolin Co., 311 NLRB 1118, 1122
(1993). I also find his telling employees that they would not have a job if they did not cross the
picket line was coercive and a violation of Section 8(a)(1). Vincent Et Vincent of Allentown Mall,
Inc., 259 NLRB 1025, 1026 (1981).
D. Alleged Statements By William Frederick
The complaint alleges that on March 21 supervisor William Frederick told an employee
that the Respondent needed to get rid of the Union.
James Remy had worked for the Respondent as a fitter and as a foreman in Spokane,
Washington, since 1992, but was no longer employed by it at the time of the hearing. On
March 21, he went to the fabrication shop to pick up material and report on the job he had
finished. As he was talking with supervisor Wayne Gordon, supervisor William Frederick asked
him to stop in his office. While speaking with Frederick, Remy asked if he had heard how the
contract negotiations were going and Frederick asked what he had heard. Remy said that he
had not heard much other than negotiations were still going on. During their conversation
Frederick told him, “we just need to get rid of this fucking Union.” Frederick also said that the
Union wasn’t representing the men fairly and that Grinnell had better benefit and wage
packages than what the Union was offering. He gave Remy a packet of documents which he
took into Gordon’s office to review. The documents included descriptions of the Tyco health
plan as well as instructions concerning the hiring of replacement workers and how to resign
from the Union. He said he found the documents to be “scary” and spoke to Gordon about
them. Gordon said that he had been to a meeting in Texas and was told he had to resign from
the Union to keep his job as construction manager and that during a strike anyone who wanted
to work for Grinnell would have to resign from the Union. After returning the documents to
Frederick, Remy went back to work and told his coworkers what Frederick and Gordon had
said. After work that evening, he reported what Frederick had said to a Union business agent
and at his request sent the Union a letter recounting the conversation. The letter was attached
to the affidavit he gave the Board which was produced for the Respondent’s counsel at the
hearing.
Frederick testified that he has been employed by the Respondent for over 20 years and
was a district general manager in Spokane in March 1994. He testified that Remy came into
the fabrication shop where he had his office rarely and that he had no recollection of talking to
Remy about contract negotiations in March 1994. He denied telling Remy that Grinnell had to
get rid of the Union or that it was not fairly representing employees. He also denied giving
Remy any information concerning benefits or showing him a copy of the Red Book, which the
Respondent distributed to its supervisors and contained guidelines to be followed in the event
of a strike.
Analysis and Conclusions
I credit the specific, detailed testimony of Remy about his conversation with Frederick
over the latter’s denials. It appears that Frederick was concerned about possible repercussions
for having shown Remy materials he was supposed to have kept confidential. However, even
crediting Remy, I find Frederick’s remarks were not unlawful. The Board considers the totality
of the relevant circumstances in evaluating the lawfulness of an employer’s statements.
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Mediplex of Danbury, 314 NLRB 470, 471 (1994). I find that Frederick’s statement which was
not accompanied by any threats or promises was a lawful expression of opinion that Grinnell
was better off without the Union. See Cleveland Sales Co., 292 NLRB 1151,1156 (1989) and
Thomas Industries, 255 NLRB 646 (1981). Even considering that Frederick’s statement was
followed by his allowing Remy to read through the Red Book, which contained material Remy
found “scary,” I do not believe that it was an attempt to undermine support for the Union by
getting Remy to resign his membership or that it was coercive. I shall recommend that this
allegation be dismissed. I am unable to find any evidence in the record to support the
complaint allegations that Frederick and Gordon made unlawful statements to employees on
June 18 at Post Falls, Idaho, and those allegations should also be dismissed.
E. Alleged Statements By Tom Von Cannon
It is alleged that on April 13 and 14 supervisor Tom Von Cannon told employees they
had to resign from the Union in order to continue their employment with the Respondent.
Roy Hale had worked for the Respondent since 1989. On the evening of April 13, as he
and other employees were preparing to go to work at jobsites in the Richmond, Virginia, area,
they learned from a Union hotline that it was on strike against the Respondent. Hale, Steve
Goad and Jerry Greenwood drove to the Respondent’s Richmond office to talk with their
supervisor Tom Von Cannon. When they entered the office Von Cannon was on the telephone.
He finished the call and asked what he could do for them. Greenwood asked about the strike
and Von Cannon said that he had just learned about it. Von Cannon asked what they were
going to do, were they going to resign from the Union and continue to work or go on strike, and
said that he needed to know. Von Cannon told them that he had already resigned from the
Union and had posted a copy of his resignation letter on a bulletin board which they could use
as a guideline to prepare resignation letters. He gave them copies of his resignation letter.
When they indicated that they were undecided, Von Cannon said that Grinnell would protect
them and he had checked into it and that it would only cost them $14.00 to be reinstated with
the Union if the strike ended. He said that if they wanted to remain employees of Grinnell and
work the following Monday, they had to have their resignations in by 4:30 p.m. on Friday, April
15. Hale testified that he left the office, went to the jobsite to collect his belongings and went to
his home near Roanoke. On Friday morning, Von Cannon telephoned him at his home to ask
what he was going to do. He gave Hale a number to use to fax his resignation to the Union and
called back a short time later with a corrected number. Von Cannon called back later in the day
to ask if everyone had submitted their resignations and said they had to do so by 4:30 p.m. or
they would no longer be employees of Grinnell. Hale faxed a letter of resignation to the Union
that day but reconsidered over the weekend and decided to join the strike. He drove to
Richmond on Monday and turned in his truck.
Hubert Mills also worked for the Respondent in Virginia under the supervision of Von
Cannon. He testified that he was working on a job near his home in the Roanoke area on April
14 when he learned about the strike. The following day, he was told by his wife that Von
Cannon had telephoned and said that he should “keep on working, that Grinnell had resigned
his card.” He also got a call from Von Cannon who said “I needed to resign my card, that it
needed to be in by 4:30 p.m.” He said that he wrote out and faxed a letter of resignation to the
Union. He got the wording from a letter that Von Cannon had provided to Mills’ cousin Jerry
Greenwood to use as a guideline.
Von Cannon testified that he is currently employed by the Respondent in the sales and
service area and had previously been a construction manager in its Richmond office for about
10 years. He had been a member of the Union but resigned his membership on March 27. He
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said that he first learned of the strike when Hale and other employees came to his office on the
morning of April 13 and told him the had heard about it from a Union hotline. They asked him
what he was going to do. He told them he had already decided to remain with Grinnell and that
he had sent resignation letter to the Union and the U.A. and posted copies in the office. He
was asked how to go about resigning and he referred them to the posted copies of his letters.
He told them they could copy the letter but had to use their own pencil and paper. He denied
telling them that they had to resign from the Union in order to continue to work for Grinnell. He
said that he did discuss whether they could continue to work with Grinnell and that he told them
he wanted them to stay. They discussed the possibility of being fined if they continued to work
and remained in the Union. In the discussion, Von Cannon told them how to go about resigning
and referred them to his posted letter. He testified that he telephoned Hale at his home on
Friday afternoon. Hale said that he had written a resignation letter and requested the Union’s
fax number. Von Cannon gave him the number and asked if he had heard from any of the
other employees. He called Hale back with a corrected fax number but had no further
discussion. On the following Monday, Hale and others came to the shop to turn in their trucks.
Von Cannon was not asked about any coversations with Hubert Mills.
Analysis and Conclusions
Based on their demeanor while testifying and the content of their testimony, I credit Hale
and Mills over Von Cannon. Their testimony establishes that on two separate occasions Von
Cannon told employees that in order to continue working for the Respondent during the strike
they had to resign from the Union. The evidence shows that Von Cannon provided copies of
his resignation letters to Hale and Greenwood to be used as a guideline for them and other
employees in drafting resignations from the Union. Greenwood, in turn, provided a photocopy
to Mills who still had it and produced it at the hearing. I find this completely undermines Von
Cannon’s credibility as he testified that had not given anyone copies of his letters or allowed
them to be copied except by hand. Consequently, I did not believe his testimony that his
remarks about resigning were made only in answer to employees’ questions about what they
could do to avoid being fined by the Union. Moreover, the fact that Von Cannon gave both Hale
and Mills a deadline of 4:30 p.m. on Friday, April 15, by which to have their resignations in to
the Union if they wanted to work on Monday and called both on that date to make sure that they
met the deadline indicates that resignation was a prerequisite to their continuing with the
Respondent. The fact that Hale testified that he knew that whether or not he should resign
from the Union was his choice does not exonerate the Respondent. The Board uses an
objective standard in evaluating such statements and the employees’ subjective reactions are
irrelevant. E.g., Maremont Corp., 294 NLRB 11 (1989); Emerson Electric Co., 247 NLRB 1365
(1980). The Respondent violated Section 8(a)(1) by Von Cannon’s telling employees that they
had to resign from the Union in order to continue working for it. Becker’s Glass Shop, 285
NLRB 789, 794 (1987).
F. Alleged Statements By Joe Christenbury
Charles Turnage testified that he worked for the Respondent in North Carolina since
1988. On April 13, after he learned about the strike, he and other employees on his crew
returned to the Grinnell office in Fayetteville to turn in his equipment. There were several other
employees present who filling out resignation forms provided by the company secretary and
faxing them to the Union. Supervisor Douglas Barnes asked Turnage and another employee
what they were going to do. Turnage said he had not made up his mind and Barnes said to let
him know by Monday. As he was leaving, foreman Greg Leslie told him to call district manager
Joe Christenbury to find out what to do. On the morning of April 14, he called Christenbury at
his office in Charlotte and asked what he should do because he needed to work. Chistenbury
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indicated that he was familiar with the “day work” Turnage was doing and told him that he
would have to resign from the Union in order to come back to work, specifically, “they hoped to
see me Monday, but if I did not resign, I would not have a job Monday.” They discussed the
fact that the Union could fine him if he worked during the strike and Christenbury told him it was
up to him to decide whether or not to resign. Christenbury also told him that if he were to resign
he could become a foreman and get a company truck and answered questions concerning the
benefits the Respondent would provide if he returned to work. Turnage did not resign and
stayed on strike.
Christenbury testified that he talked by telephone with approximately a dozen employees
concerning the strike during the first few days but that he did not remember speaking with
Turnage. He said that he was familiar with the Respondent’s Red Book policies concerning
what supervisors could and could not do during the strike and that he did not make any
promises to anyone and did not tell anyone that he had to resign from the Union in order to
keep his job with Grinnell.
Analysis and Conclusions
I found Turnage’s detailed testimony concerning how he came to speak with
Christenbury and what was said during their conversation to be more credible than
Christenbury’s lack of recollection as to whether the conversation ever occurred. I find that
Christenbury told Turnage he had to resign from the Union in order to continue to work for the
Respondent and promised him additional benefits if he did so in violation of Section 8(a)(1).
G. Employment Questionnaire
The complaint alleges that, between October 1993 and April 1994, the Respondent
maintained a form which unlawfully queried applicants regarding their union status and
sympathies. The Respondent does not dispute that the questions “Have you ever belonged to
a union?” and “What are your feelings in regards to joining a union?” contained on the form are
unlawful but contends that it was never used as a basis for selecting or rejecting applicants all
of whom were referred to it for employment by the Union and that it constitutes a de minimus
technical violation of the Act. The only testimony about it was from Larry Claggett, who worked
for the Respondent as a construction superintendent in Oklahoma beginning on 1990 until
March 1994 when he was required to choose between continuing in supervision or remaining a
member of the Union and opted for the latter. He testified that while a supervisor he used the
form in interviewing applicants for employment as apprentices and he asked the above-quoted
questions of everybody he interviewed. He said that there was never a situation where he did
not hire someone because of negative answers to those questions or where the Union rejected
an applicant to its apprentice program. In his brief, counsel for the General Counsel
acknowledges that the only use of the questionnaire established in the record was “benign” and
that its use has been discontinued, but requests that a violation be found because over the
years the damage has been done. In the absence of any evidence that the questionnaire was
ever used for an improper purpose or resulted in any discrimination, I find there is little to be
gained by finding a violation. I shall recommend that this allegation be dismissed.
H. Alleged Retaliatory Lawsuit
During the hearing, this matter was consolidated with a new unfair labor practice
complaint alleging that the Respondent had violated Section 8(a)(1) by filing and prosecuting a
lawsuit seeking declaratory and injunctive relief and damages against the Union and the U.A.,
in the United District Court for the District of Maryland. The complaint in that action contains
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seven counts, the first four of which allege, inter alia, that the defendants have violated federal
antitrust and labor statutes by engaging in a conspiracy against the Respondent and by denying
it the opportunity to participate in targeting and by conducting an unlawful strike against it.
Counts V, VI and VII allege that the defendants’ actions have also violated State laws
prohibiting tortious interference with contracts and prospective business relations and
defamation. The unfair labor practice complaint alleges that the federal court lawsuit was filed
and maintained in retaliation against activity protected by the Act. It alleges that Counts V, VI
and VII of the federal court lawsuit are baseless. The General Counsel contends that further
prosecution of these counts should be enjoined under the United States Supreme Court’s
holding in Bill Johnson’s Restaurants v. NLRB, 461 U.S. 731 (1983), that the prosecution of an
improperly motivated suit lacking a reasonable basis constitutes a violation of the Act that may
be enjoined by the Board. He also asserts that, should any or all of the first four counts be
finally adjudicated as lacking in merit or withdrawn, that part of the federal lawsuit, too, should
be found be retaliatory and baseless and violative of Section 8(a)(1). As yet, there has been no
final adjudication or withdrawal of any part of the federal court lawsuit. Consequently, under Bill
Johnson’s, a ruling on the unfair labor practice complaint concerning Counts I through IV, which
are not alleged to be baseless, must be stayed pending a resolution in the federal court action.
See Dahl Fish Co., supra, at p. 1105 (1986).
As for Counts V, VI and VII, the Respondent argues that the lawsuit must be considered
as a whole as they are inextricably intertwined with the other counts and that, if those counts
are not clearly baseless, the Board cannot enjoin any part of the suit. In similar circumstances,
the Board has enjoined an employer from prosecuting specific portions of a lawsuit found to be
preempted by federal labor law while deferring action on others that were not and as to which
there existed genuine issues of fact and interpretations of state law to be resolved. See Manno
Electric, Inc., 321 NLRB No. 43 (May 22, 1996). Although Bill Johnson’s involved a state court
lawsuit, its rationale would appear to apply to the present federal court action. See Diamond
Walnut Growers, 312 NLRB 61, 69 (1993) and Electrical Workers IBEW Local 532 (Brink
Construction), 291 NLRB 437, 442 (1988). In Bill Johnson’s, the Court held that, in making a
pre-judgment evaluation as to whether the lawsuit has a reasonable basis, the Board is not
limited to a review of the pleadings, but if there is a genuine issue of material fact that turns on
credibility of witnesses or the proper inferences to drawn from undisputed facts, it cannot be
concluded that the suit should be enjoined. The Court left it to the Board’s discretion as to how
it should go about determining whether there is a genuine issue of fact but it also suggested
that a procedure similar to that employed in federal civil practice concerning motions for
summary judgment might be employed when appropriate. Given the national scope of the
strike and the voluminous evidentiary record that had already been developed, that procedure
seemed particularly appropriate and was applied here.
In the case of the Respondent’s claims of tortious interference based on the Union’s
nationwide strike, its claims would not be subject to federal preemption if they were based on
actions that involved violence. Mine Workers v. Gibbs, 383 U.S. 715 (1966); United
Construction Workers v. Laburnum Construction Corp., 347 U.S. 656 (1954). The Respondent
has submitted a number of uncontradicted affidavits attesting to acts of violence and vandalism
allegedly arising from actions of strikers. While none is sufficient to establish or to raise a
genuine issue of fact on the claim that the Union was responsible for the acts of vandalism by
unidentified perpetrators or the incidents involving alleged threats and violence by Union
members away from Union sponsored picket lines, they do describe alleged incidents of
violence and intimidation occurring at picket lines established by the Union during the strike.
The affidavit of Elaine Keeler describes an incident in which pickets at the Grinnell office
in Toledo, Ohio, surrounded the vehicle in which she and her two-year-old son were riding,
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blocked its egress from the parking lot and beat on the vehicle with their signs. It alleges that at
other times pickets have photographed and written down the license plate numbers of
employees and others entering the office. The affidavit of Bob Craig describes a threat of injury
and the brandishing of a knife to him by a Union member picketing at the Grinnell office in
Toledo and an incident in which pickets threw rocks at two employees and their truck, striking
one in the face. The affidavit of Jim Schwander describes an incident at a Grinnell jobsite in
Wilmington, Delaware, in which pickets prevented delivery trucks and a train from entering.
These affidavits, if substantiated, would establish violent and intimidating picket line activity
which is not protected by the Act, i.e., blocking an employee’s egress from the Employer’s
facility, Carpenters (Reeves, Inc.), 281 NLRB 493 fn. 3 (1986), throwing objects at vehicles and
their occupants, Lumber Workers Local 3171 (Louisiana-Pacific), 274 NLRB 809, 814 (1985),
brandishing a weapon, Railway Carmen Local 543 (North American Car Corp.), 248 NLRB 285
(1980), and photographing individuals and copying license plate numbers, Plastic Workers
Union Local 18 (Grede Plastics), 235 NLRB 363, 383 (1978). Where a union authorizes a
picket line it must maintain control over the picketing or bear responsibility for misconduct that
occurs there. See Boilermakers, Local 696 (Kargard Co.), 196 NLRB 645, 647-648 (1972).
Whether or not the Union was aware of such picket line misconduct, failed to act to prevent it,
and, thus, bears responsibility for it, present issues of fact that cannot be resolved in this
proceeding.
The defamation count of the Respondent’s suit is not preempted if defamatory
statements attributable to the defendants were malicious and caused it damage. Linn v. Plant
Guard Workers, 383 U.S. 53 (1966). Malice is to be determined in accordance with the rule
adopted in New York Times v. Sullivan, 376 U.S. 254 (1964), which requires a showing that the
statements were false and uttered with knowledge of their falsity or with reckless disregard of
whether they were true or false. In the Respondent’s lawsuit there are numerous claims of
damage caused by statements circulated by the defendants through a nationwide direct mail
campaign. It asserts that the statements falsely accused it of using inadequately trained or
unskilled workers to perform its work during the strike which resulted in substandard and
dangerous installations. An affidavit by Grinnell official Michael Buchanan asserts that its
replacement workers were fully trained and properly supervised and deposition testimony of
Union Trustee Pruett acknowledges that there were several areas where, during the strike,
Grinnell was performing work with union fitters from other local unions with jurisdiction in those
areas. This alone raises a genuine issue of fact on the question of malice that can only be
resolved in the federal lawsuit.
3. Section 8(a)(3) and (1)
A. Layoff Of Christopher Cooper
As discussed above, in March, supervisor Gary McDuffee unlawfully coerced
Christopher Cooper by calling him a troublemaker and threatened to lay him off because he
insisted that he receive subsistence pay due him under the collective-bargaining agreement. On
April 8, a week after Cooper was paid the money he was due in settlement of his subsistence
pay grievance, McDuffee informed him that he was being laid off. Cooper asked why and was
told to read the form he was given which said it was due to lack of work. Cooper testified that
the Hazel Green job on which he was working at the time had not been completed and as far as
he knew there was plenty of work. The complaint alleges that Cooper’s layoff was
discriminatory and unlawful. The Respondent contends that Cooper was lawfully laid off due to
lack of work.
Analysis and Conclusions
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In cases where an employer’s motivation for taking certain actions is in issue, those
actions must be analyzed in accordance with the test outlined by the Board in Wright Line, 251
NLRB 1083 (1980) enf’d 662 F.2d 800 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982),
approved in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983). This is true
even where the alleged reasons for its actions are found to be pretextual. Bridgeway
Oldsmobile, 281 NLRB 1246, fn. 2 (1986); Jefferson Electric Co., 271 NLRB 1089, 1090 (1984).
Under Wright Line, the General Counsel must make a prima facie showing sufficient to support
the inference that protected activity was a motivating factor in the employer’s decision. Once
that has been done, the burden shifts to the employer to establish that it would have taken the
same action even in the absence of protected activity.
I find that the General Counsel has made out a prima facie case that Cooper was laid
off because of protected activity on his part. Cooper’s availing himself of rights under the
collective-bargaining agreement was protected activity under the Act. E.g., NLRB v. City
Disposal Systems, 465 U.S. 822 (1984); Interboro Contractors, Inc., 157 NLRB 1295, 1298
(1966). McDuffee had knowledge of Cooper’s protected activity because he was directly
involved in the resolution of Cooper’s grievance over the subsistence pay. He also
demonstrated animus by initially refusing to grant Cooper’s request for compliance with the
contract, even though he apparently did not dispute that Cooper was entitled to the subsistence
pay, and by his coercive statements and threats which violated Section 8(a)(1). The timing of
an action can be persuasive evidence of its motivation. Limestone Apparel Corp., 255 NLRB
722, 736 (1981). Cooper’s layoff came shortly after McDuffee’s threat to lay him off and within
a week of his payment of the disputed amount. Finally, the strongest evidence of the
motivation involved here is in the words of McDuffee who threatened Cooper with a layoff if he
persisted in his claim for the subsistence pay.
I also find that the Respondent has not established that it would have taken the same
action even in the absence of protected activity on Cooper’s part. The Respondent relies on
the testimony of McDuffee that there was not enough work and that he did not want to lay off
someone who had been hired in Huntsville instead of Cooper who had come from Birmingham.
I did not believe him. First, the evidence shows that McDuffee retained apprentice Shannon
Carroll when he laid off Cooper. Carroll, like Cooper, originally worked in Birmingham where he
resided and had come to work in Huntsville only a couple of weeks before, while Cooper had
been working there since January. McDuffee also claimed that he kept Carroll instead of
Cooper because he did not have to pay him subsistence pay and because Carroll was a better
employee. The only reason Carroll was not entitled to subsistence pay for commuting from
Birmingham was that he was riding in a company truck with foreman Sam Muncher, with whom
he was working, while Cooper would have had to drive his own vehicle. However, this was the
same thing that Cooper had done when he first started working in Huntsville and rode with
Muncher. McDuffee offered no reasons for his statement that Carroll was more qualified than
Cooper, who had been working for the Respondent since 1989, and there is nothing in the
record to support his claim. As noted above, I did not consider McDuffee to be a credible
witness and I find that the reasons he gave for laying off Cooper were pretexts. I find that he
was laid off in retaliation for having insisted on being paid the subsistence pay to which he was
entitled under the contract. Accordingly, I find that the Respondent violated Section 8(a)(3) and
(1) by laying off Cooper on April 8. Lowe Paper Co., 302 NLRB 622 (1991); Howard Electric
Co., 285 NLRB 911, 913 (1987).
B. Alleged Discharge of Strikers
After the Union’s March 22 strike notice was issued, the Respondent’s president
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Boggess sent a letter to all employees describing what had occurred during the contract
negotiations and summarizing Grinnell’s contract proposal. The letter also states:
Believe me when I say that Grinnell does not want a strike. Unfortunately,
whether or not there is a strike is out of our control. If there is a strike, you should know
that we will exercise our legal right to operate our business. You and other Grinnell
employees also have a legal right to work. If it is necessary, Grinnell will hire permanent
replacements to get our work done. We owe that to our customers and to those
employees who want and need to work.
On March 28, Boggess sent another letter to employees in which he referred to the strike notice
and stated, inter alia:
You have a legal right to work during a strike and no one can prevent you from
doing so. If you are a union member, however, you may be fined if you cross a picket
line. But, you cannot be fined if you resign your membership and then cross a picket
line. You should also know that if the strike ends and you have resigned, the Union
cannot prevent you from working for Grinnell, nor for any other union contractor so long
as you pay your union dues where dues are required.
If some of our employees choose to strike, Grinnell will hire permanent
replacements to do that work. If the strike ends, permanent replacements have a legal
right to keep their jobs as long as they choose to do so. Striking employees have a right
to return to work only if Grinnell has job openings or if job openings should arise in the
future.
The Union went out on strike on the night of April 12. On April 13, Boggess sent a letter to all
employees stating that the Respondent and the Union were unable to reach an agreement and
were at impasse and that it was implementing the terms of its final offer. It also states:
We just learned that the Union has called a strike against Grinnell. Although the
Union has the right to strike, Grinnell has the right to run its business. Grinnell must do
so in order to meet its commitments to its customers and to keep those customers from
going elsewhere. We also have an obligation to those employees who want to work
.
Each of our employees has the right to work and may do so even though a strike
has been called. As we told you before, if you are a union member and you choose to
work, you may be fined unless you resign your membership. If you resign you may not
be fined. Also, if the strike ends, you will have the right to continue working for Grinnell
so long as you pay your dues.
If some of our employees strike, we will hire permanent replacements to perform
our work. Permanent replacements have the right to work even if a strike ends.
The complaint alleges that by these statements to employees, the Respondent threatened the
employment status of its employees who engaged in the strike in violation of Section 8(a)(3)
and (1).
The General Counsel contends that under the Board’s decision in Noel Corp., 315
NLRB 905 (1994), the Respondent effectively terminated any employee who joined the strike by
telling them that, if they did so, they would be permanently replaced at a time when it had not
actually hired replacements for all potential strikers. The Respondent contends that the
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statements concerning permanent replacements in Boggess’ letters were truthful and lawful
expressions of its intent to hire replacements should it need to do so in order to operate. It also
contends that this allegation is untimely and barred by Section 10 (b) of the Act.
Analysis and Conclusions
It was not necessary for these charges to specifiy the exact nature of the violation or the
legal theories which might support it. The function of a charge is not to give the employer
notice of a specific claim against it, but to draw “the Board’s attention to a cause for economic
disturbance.” Redd-I, Inc., 290 NLRB 1115, 1117, fn. 12 (1988). In NLRB v. Fant Milling Co.,
360 U.S. 301, 307–308 (1959), the Supreme Court stated that the Board’s inquiry is not
confined “to the specific matters alleged in the charge” and that
Once its jurisdiction is invoked the Board must be left free to make full inquiry
under its broad investigatory power in order properly to discharge the duty of protecting
public rights which Congress has imposed upon it. There can be no justification for
confining such an inquiry to the precise particularizations of a charge.
I find that this allegation is encompassed within the amended charges filed by the Union on
June 14 and 30. Both were within six months of the dates the letters were sent and allege, inter
alia, violations of Section 8(a)(1), (3) and (5) of the Act by “informing employees that they will
be terminated if they engage in a strike” and “discharging and/or disciplining employees for
engaging in activities protected by Section 7 of the Act.” It meets the requirement that a
“complaint allegation be related to and arise out of the same situation as the conduct alleged to
be unlawful in the underlying charge, although it need not be limited to the specific violations
alleged in the charge.” Nickles Bakery of Indiana, 296 NLRB 927 (1989).
I also find that the factual situation involved here is sufficiently different from that in Noel
Corp. as to make it inapplicable. There, the crucial factors were that less than two hours before
the time the strike was scheduled to start a supervisor told employees that striking employees
would be permanently replaced and that the employer had already hired permanent
replacements when it had not done so. Unlike Noel Corp. and American Linen Supply Co. 10
and Mars Sales & Equipment Co.11 on which it is based, here, there was no false statement by
the employer that permanent replacements had been hired when in fact they had not. The
statements in Boggess’ pre-strike letters that employees are subject to permanent replacement
in the event of an economic strike did not violate the Act. See Eagle Comtronics, Inc., 263
NLRB 515 (1982). In the case of his letter of April 13, the situation is factually closer to that in
Chromalloy American Corp.12 where the Board found no violation by the employer when it sent
employees, who were already on strike, a letter telling them if they did not return to work by a
certain date it would take necessary steps to obtain permanent replacements. In Boggess’
letter, which spoke in terms of an economic strike, there was no mention of a deadline and
nothing to indicate that replacements had already been hired or that the process of hiring
replacements had begun. The Respondent’s post-strike letter did not “effectively terminate”
striking employees but it did, as the complaint alleges, threaten their employment status in
violation of Section 8(a)(1) by implying that employees who were participating in what was an
unfair labor practice strike could be permanently replaced. See Cagle’s Inc., 234 NLRB 1148,

10 297 NLRB 137 (1989), enfd. 945 F. 2d 1428 (8th Cir. 1991).
11 242 NLRB 1097 (1979), enfd in pertinent part 626 F.2d 567 (7th Cir. 1980).
12 286 NLRB 868 (1987) enf. denied on other grounds 873 F. 2d 1150 (8th Cir. 1989).
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1149 (1978).
C. Alleged Implementation of Better Terms Than In Final Offer
The complaint was amended during the hearing to allege that the Respondent violated
Section 8(a)(5), (3) and (1) when, following implementation of the terms of its final contract
offer, it paid certain employees higher wage rates than provided in that offer.
The complaint amendment followed the testimony of some employees, called as
witnesses by the Respondent concerning other issues, that when they worked for the
Respondent after the strike they were paid the same wage rate called for in the expired
contract. Mike Munoz testified that he went out on strike but later returned to work for the
Respondent as a fitter in June. He said that when he returned to work he was paid the same
wage rate as before he left. He called Dwight Green to see about returning to work but they did
not discuss wages. He said that his testimony that he was paid the same rate as before the
strike was based his assumption that he would be paid the same amount. Cliff Thompson
testified that he joined the strike at the start but returned to work in May. He said that he called
Green who offered to put him to work at the same wage rate as under the old contract. Wayne
Gordon testified that he had been a construction superintendent for the Respondent for 17
years in Spokane, Washington. He had been a member of the Union, but quit in 1994 in order
to continue in his supervisory position. In January 1995, he was removed from that position
and has since worked as a fitter/foreman. He testified in answer to a leading question on cross-
examination that since he began working as a fitter/foreman he has been paid the same rate as
in the expired collective-bargaining agreement. Also, Joe Christenbury, the Respondent’s
district general manager in Charlotte, North Carolina, testified during cross-examination that
employees who worked during the strike were paid the same wage rate as before the strike
started.
Analysis and Conclusions
In the case of Munoz and Thompson, I find their testimony was so vague and lacking in
detail as to the jobs they worked on and the amounts they were paid as to be insufficient to
support a finding of a violation. Green denied that they were paid more than the rate contained
in the Respondent’s final offer. Without knowing what they were actually being paid it is
impossible to conclude that they were getting more than the rate provided in the final contract
offer. Similarly, I find Gordon’s testimony, a single answer to a leading question, without more,
is insufficient to establish that, while working as a fitter, he was in fact paid a wage rate that was
more than that provided in the final contract offer.
Christenbury was recalled to testify further about this issue and said that after the strike
began 29 of 60 employees stayed on the job in his district. His testimony and the records he
produced show that of these 29 “crossovers,” 11 were apprentices and two were journeymen
who continued to work as fitters and were paid 80 percent of their previous rate in accordance
with the terms of the implemented offer. About half of the remaining 16 crossovers had been
foremen before the strike and continued as such after it commenced, while the other half were
made foremen and all were paid the same rate foremen were paid under the old contract. He
admitted that in some cases two or more of these “foreman” worked on the same job at the
same time even though under normal circumstances there would only have been one foreman
on the job. He also explained the reasons why this occurred. He had pipe on the ground that
needed to be installed, he had “customers screaming” and he had only about half of his normal
workforce to do the work. As discussed above, Christenbury offered similar inducements,
foreman’s wages and a company vehicle, to Charles Turnage in an attempt to persuade him to
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cross the picket line. I find that this evidence supports the inference that after the strike began
the Respondent offered and paid foreman’s wages13 to as many as eight journeymen who at
times were doing fitters’ work, not foreman’s, in order to induce them to stay on the job and not
go on strike. By offering these employees better wages than offered in the Respondent’s last
contract proposal it violated Section 8(a)(5) and (1). See Central Management Co., 314 NLRB
763, 767 (1994). By paying better wages to employees who abandoned the Union and worked
during the strike, it discriminated in their favor and discouraged membership in the Union in
violation of Section 8(a)(3). See General Clay Products Corp., 306 NLRB, 1046, 1052-1053
(1992).
D. Alleged Failure to Recall Employees From Layoff
The complaint alleges that in April 1994 the Respondent violated Section 8(a)(3) by
failing to recall from layoff six employees at its Indianapolis, Indiana, fabrication plant because
of their activity and support for the Union.
The evidence shows that some of the employees at the Indianapolis plant were
represented by the Union but were covered by a different collective-bargaining agreement than
the sprinkler fitters. When the fitters went on strike, the fabricators honored a picket line set up
at the Indianapolis plant for two days and then returned to work. John Gates testified that he
was an employee at the fabrication plant and was on layoff when the strike began. On April 18,
he made his weekly call to the plant to see if there was any work and was told by Grinnell
official Don Smith that he no longer had a job and that he had been “terminated” and “replaced
with replacement workers.” Gage asked if he had been fired and Smith said he had been fired.
Gage asked about co-worker Todd Shelton who was also on layoff and was told that he had
also been “replaced.” On the afternoon of April 19, Gage was called by plant manager Jesse
Salmon who told him to report for work on the day shift on the following day. When he arrived
at the plant in the morning, Salmon told all the union workers to come to the dock and the
others to go to work. Salmon began calling out names and assigning employees to different
shifts. When he got to Gage, he told him there was no work for him and he should go home.
Gage asked if he was fired and Salmon responded that he was temporarily laid off. On April
22, Gage got a letter from Salmon, dated April 15, telling him to report for work on April 18. He
called Salmon after receiving the letter and was told there was no work for him. He called the
plant several times thereafter but was told there was no work for him. He has not worked there
since. On cross-examination, Gage said that in their April 18 conversation Smith told him he
had been terminated for not coming to work and asked him if he had received a letter. In the
April 19 conversation, he asked if he was fired and Salmon said, “No you haven’t, show up for
work tomorrow morning.” He testified that in June Salmon called and asked if he was
interested in returning to work and he said he was not. Todd Shelton gave similar testimony
that he was on layoff when the strike started, that he went into the plant a few days later after
receiving a letter telling him to do so and that he was told by Salmon that he had been
“terminated” and “replaced by replacement workers.” In June, he was called and offered a job
by Salmon which he declined. Wallace Marcum testified that he has worked at the fabrication
plant since 1989. In early April, he was laid off from the day shift. After two weeks he was
called back and told to report on a Monday morning. When he got to the plant there were six

13 This was the full journeyman’s rate under the old contract, plus an additional $1.50 per
hour foreman’s pay. Under the Respondent’s final offer journeymen were to receive 80 percent
of the rate in the old contract. Consequently, the eight new “foremen” were being paid $17.53
per hour instead of the $12.82 called for in the final contract offer.
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replacement workers present and they went to work on the day shift. Marcum was assigned to
the second shift by Salmon, who told the other workers who were present to go home that they
were laid off and permanently replaced. None of these three employees participated in
picketing at the plant.
Salmon credibly testified that, on April 13, the plant operated as usual but, on April 14,
there was a picket line and noone appeared for work. On Friday, April 15, he interviewed
replacement workers and sent letters to approximately 12 employees on layoff telling them to
report for work on Monday, April 18. On Monday, many of the striking fabricators came into
work along with three replacements he had hired and he had too many people. After conferring
with his superior, Don Smith, he called all the employees to the shipping dock. He told
employees that the three employees with the least seniority, Bundren, Kemp and Gates, had
been replaced and would be placed on a preferential recall list and told the others to report to
the night shift. On April 19, the picket line was up, the regular employees did not report for
work and he hired three more replacement workers for a total of six fabricators. On the
following morning, the regular fabricators again reported for work and he had too many
employees. He read off the names of six with the least seniority, Bundren, Kemp, Gates,
Shelton, Hardy and Vest, and said that they had been replaced and were placed on a
preferential recall list. Of those employees, he remembered only Gates as being present.
Gates left the plant with those employees who were assigned to the night shift. Salmon
testified that Shelton showed up for work on April 21 and he told him he had been replaced and
put on a preferential recall list. He denied telling Shelton that he had been terminated. Smith
credibly denied ever having a telephone conversation with Gates.
Analysis and Conclusions
The General Counsel’s brief does not contain any discussion concerning his legal theory
or authority in support of a finding that the Respondent violated the Act by failing to recall the
six named employees from layoff. The evidence in support of the allegation is disjointed and
fragmentary at best. It appears that when its fabrication employees honored the Union’s picket
line and failed to report for work the Respondent hired six permanent replacements. When an
undetermined number of the striking workers offered to return to work, they were permitted to
do so. As a result, there was not enough work to require the recall of all of the at least twelve
fabrication employees then on layoff. At least one, Marcum, and possibly more of those on
layoff were recalled. The fact that the six named employees were not also recalled does not
establish that there were jobs available for them or that the failure to recall them was because
of protected activity on their part. There is no evidence to establish, nor any reason to believe,
that if there had not been a strike on April 13 that the fabrication employees honored on a
couple of days, they would have been recalled at that time. I shall recommend that this
allegation be dismissed.
Conclusions of Law
1. The Respondent, Grinnell Fire Protection Systems Company, is an employer
engaged in commerce within the meaning of Section 2(2), (6) and (7) of the Act.
2. The Union and the U.A. are labor organizations within the meaning of Section 2(5) of
the Act.
3. All journeymen sprinkler fitters and their apprentices employed by Grinnell Fire
Protection Systems Company, but excluding all other building tradesmen, clerical, office and
supervisory employees, as defined by the Act, constitute a unit appropriate for the purposes of
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collective bargaining within the meaning of Section 9(b) of the Act.
4. At all times material, the Union has been the exclusive representative of all
employees employed in the above-described unit for the purposes of collective bargaining with
respect to rates of pay, wages, hours of employment, and other terms and conditions of
employment, within the meaning of Section 9(a) of the Act.
5. The Respondent violated Section 8(a)(1) of the Act by coercing an employee by
calling him a troublemaker and telling him he would be laid off for pursuing a grievance; telling
employees that they would lose their jobs if they refused to cross a picket line; telling
employees that they had to resign from the Union in order to continue working for it; promising
an employee additional benefits if he did so; and sending letters to employees implying that
employees who were participating in what was an unfair labor practice strike could be
permanently replaced.
6. The Respondent violated Section 8(a)(3) and (1) of the Act by laying off employee
Christopher Cooper in retaliation for his having insisted on being paid subsistence pay to which
he was entitled under the collective-bargaining agreement and by paying better wages than
offered to the Union to employees who abandoned the Union and worked during the strike.
7. The Respondent violated Section 8(a)(5) and (1) of the Act by on and after April 13
refusing to meet and bargain in good faith with the Union; on or about April 14 unilaterally
changing terms and conditions of employment by implementing its final contract offer when
there was no impasse in bargaining; and offering employees better wage rates than contained
in its final contract offer to the Union.
8. The aforesaid unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
9. The strike that commenced on or about April 12 is an unfair labor practice strike.
10. The Respondent did not engage in the unfair labor practices alleged in the
complaint not specifically found herein.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I shall
recommend that it be ordered to cease and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act.
Having found that the Respondent violated Section 8(a)(5) and (1) of the Act by
unlawfully implementing the terms of its last contract offer in the absence of a lawful impasse, I
shall recommend that it ordered to restore the terms and conditions of employment of unit
employees as they existed prior to April 14, 1994, continue them in effect until the parties reach
an agreement or a good-faith impasse and make whole all employees for all losses they may
have suffered as a result of its unlawful conduct, computed as prescribed in Ogle Protection
Service, 183 NLRB 682 (1970), with interest computed as prescribed in New Horizons for the
Mentally Retarded, 283 NLRB 1173 (1973).
Having found that the Respondent discriminatorily laid off employee Christopher
Cooper, I shall recommend that it be ordered to offer him immediate reinstatement and make
him whole for any loss of earnings and other benefits, computed as prescribed in F. W.
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Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in New Horizons for the
Retarded, supra.
On the foregoing findings of fact and conclusions of law and on the entire record, I
issue the following recommended
ORDER14
The Respondent, Grinnell Fire Protection Systems Company, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Coercing employees by calling them troublemakers and telling them they will
be laid off for pursuing grievances.
(b) Telling employees that they will lose their jobs if they refuse to cross a picket
line.
(c) Telling employees that they have to resign from the Union in order to
continue working for it and/or by promising employees additional benefits if they do so.
(d) Sending letters to employees implying that employees who are participating
in an unfair labor practice strike can be permanently replaced.
(e) Laying off employees in retaliation for having engaged in protected activity.
(f) Paying better wages than offered to the Union to employees who abandon
the Union and work during a strike.
(g) Refusing to meet and bargain in good faith with the Union.
(h) Unilaterally changing terms and conditions of employment by implementing
its final contract offer prior to reaching a good-faith impasse in bargaining.
(I) Offering employees better wage rates than contained in its final contract offer
to the Union.
(j) In any like or related manner interfering with, restraining, or coercing
employees in the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Upon request, bargain in good faith with the Union as the exclusive
collective-bargaining representative of the employees in the appropriate unit concerning rates of
pay, wages, hours and other terms and conditions of employment and, if an agreement is

14 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
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reached, embody the understanding in a signed agreement.
(b) Upon request by the Union, restore to unit employees the terms and
conditions of employment that were applicable prior to April 14, 1994, and continue them in
effect until the parties reach either an agreement or a good-faith impasse in bargaining and
make them whole for any losses suffered by reason of the unlawful unilateral changes in terms
and conditions of employment on and after April 14, 1994, plus interest.
(c) Within 14 days from the date of this Order, offer Christopher Cooper
immediate and full reinstatement to his former job or, if that job no longer exists, to a
substantially equivalent position, without prejudice to his seniority or any other rights or
privileges previously enjoyed, and make him whole for any loss of earnings and other benefits
suffered as a result of the discrimination against him in the manner set forth in the remedy
section of the decision.
(d) Preserve and, within 14 days of a request, make available to the Board or its
agents for examination and copying, all payroll records, social security payment records,
timecards, personnel records and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(e) Within 14 days after service by the Region, post at all of its facilities
throughout the United States copies of the attached notice marked “Appendix.”15 Copies of the
notice, on forms provided by the Regional Director for Region 5, after being signed by the
Respondent's authorized representative, shall be posted by the Respondent immediately upon
receipt and maintained for 60 consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced, or covered by any other
material.
(f) Within 21 days after service by the Region, file with the Regional Director a
sworn certification of a responsible official on a form provided by the Region attesting to the
steps that the Respondent has taken to comply.
IT IS FURTHER ORDERED that the consolidated complaint in Cases 5–CA–25227 and
5–CA–25406 is severed from this proceeding and stayed until resolution of Grinnell Corp. v.
Road Sprinkler Fitters Local Union No. 669, et al., Civil Action No. N–94–3309 (USDC Md.)
IT IS FURTHER ORDERED that the complaint in Case 5–CA–24521 is dismissed
insofar as it alleges violations of the Act not specifically found herein.
Dated, Washington, D.C. January 16, 1997
_____________________

15 If this Order is enforced by a Judgment of the United States Court of Appeals, the words
in the notice reading “POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS
BOARD” shall read “POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES
COURT OF APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS
BOARD.”
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Richard A. Scully
Administrative Law Judge
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APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected concerted activities.
WE WILL NOT coerce our employees by calling them troublemakers and telling them they will
be laid off for pursuing grievances.
WE WILL NOT tell our employees that they will lose their jobs if they refuse to cross a picket
line.
WE WILL NOT tell our employees that they have to resign from the Union in order to continue
working for us and/or promise employees additional benefits if they do so.
WE WILL NOT send letters to our employees implying that those who participate in an unfair
labor practice strike can be permanently replaced.
WE WILL NOT lay off employees in retaliation for their engaging in protected activity.
WE WILL NOT pay better wages than offered to the Union to our employees who abandon the
Union and work during a strike.
WE WILL NOT refuse to meet and bargain in good faith with the Union.
WE WILL NOT unilaterally change terms and conditions of employment of our employees by
implementing our final contract offer prior to reaching a good-faith impasse in bargaining with
the Union.
WE WILL NOT offer our employees better wage rates than contained in our final contract offer
to the Union.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
WE WILL upon request, bargain in good faith with the Union as the exclusive collective-
bargaining representative of our employees in the appropriate unit concerning rates of pay,
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wages, hours and other terms and conditions of employment and, if an agreement is reached,
embody that understanding in a signed agreement.
WE WILL upon request by the Union, restore to unit employees the terms and conditions of
employment that were applicable prior to April 14, 1994, and continue them in effect until the
parties reach either an agreement or a good-faith impasse in bargaining and make them whole
for any losses suffered by reason of the unlawful unilateral changes in terms and conditions of
employment on and after April 14, 1994, plus interest.
WE WILL within 14 days from the date of the Board’s Order, offer Christopher Cooper
immediate and full reinstatement to his former job or, if that job no longer exists, to a
substantially equivalent position, without prejudice to his seniority or any other rights or
privileges previously enjoyed.
WE WILL make Christopher Cooper whole for any loss of earnings and other benefits suffered
as a result of the discrimination against him, plus interest.
GRINNELL FIRE PROTECTION SYSTEMS CO.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by anyone.
This notice must remain posted for 60 consecutive days from the date of posting and
must not be altered, defaced, or covered with any other material. Any questions concerning this
notice or compliance with its provisions may be directed to the Board's Office, 111 Market
Place, 4th Floor, Baltimore, Maryland 21202–4026, Telephone 410–962–2772.
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