Ann Arbor Fire Protection

National Labor Relations Board - Board Decisions

Sep 30, 1993

312 N.L.R.B. 758 (N.L.R.B. 1993)

758
312 NLRB No. 121
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The General Counsel has excepted to some of the judge’s credi-
bility findings. The Board’s established policy is not to overrule an
administrative law judge’s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
2 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor 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.’’
Ann Arbor Fire Protection, Inc. and Donald Tisdale
and Larron Hughes
Sprinkler Fitters and Apprentices, Local Union No.
704 and Donald Tisdale and Larron Hughes.
Cases 7–CA–32743(1), 7–CA–32743(2), 7–CB–
9036(1), and 7–CB–9036(2)
September 30, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On May 13, 1993, Administrative Law Judge Hubert
E. Lott issued the attached decision. The General
Counsel filed exceptions and a supporting brief, and
the Respondent Union and the Respondent Employer
each filed opposition briefs.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and briefs and has decided to affirm the judge’s rul-
ings, findings,1 and conclusions only to the extent con-
sistent with this Decision and Order.
The judge found, and we agree, that there is no
merit in the complaint allegation that the Respondents
enforced a contract clause providing that members of
the Respondent Union would be the last to be laid off.
However, the judge did not make a specific finding on
the complaint allegation that the maintenance of the
clause encourages membership in the Respondent
Union in violation of the Act. The General Counsel
has excepted, inter alia, to the judge’s failure to find
a violation for maintaining the contract clause. We
agree with the General Counsel.
Article 14, section 62 of the Respondents’ collec-
tive-bargaining agreement provides, in pertinent part:
‘‘In the interest of maintaining and preserving employ-
ment in the area in which work is to be performed,
when an employer lays-off on a job, Local 704 mem-
bers shall be the last laid-off.’’ The Respondents’ only
defense to the allegation that maintenance of this
clause unlawfully encourages membership in the Re-
spondent Union is that the clause has never been en-
forced.
The provision, on its face, requires Ann Arbor to
base layoffs on union membership or nonmembership.
The requirement that an employer give preference in
retention of employment to members of the Union un-
lawfully restrains and coerces employees in the exer-
cise of their Section 7 rights. Bricklayers Local (Den-
ton’s Tuckpointing), 308 NLRB 350 (1992). Thus, the
members-laid-off-last provision is unlawful on its face;
and the Respondents violated the Act by maintaining
it in their collective-bargaining agreement. Because the
essential vice of the provision is that its maintenance
in the collective-bargaining agreement unlawfully re-
strains and coerces the Section 7 rights of all employ-
ees, the Respondents’ defense of lack of enforcement
is without merit. Id.
Accordingly, we find the Respondent Employer and
the Respondent Union have violated Section 8(a)(3)
and 8(b)(1)(A) of the Act, respectively.
REMEDY
Having found that the Respondents have engaged in
certain unfair labor practices, we shall order them to
cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act.
ORDER
The National Labor Relations Board orders that
A. Respondent Ann Arbor Fire Protection, Inc., Ann
Arbor, Michigan, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Maintaining a provision in the collective-bargain-
ing agreement with Sprinkler Fitters and Apprentices,
Local Union No. 704 that requires it to give preference
in retention of employment during layoffs to employ-
ees based on membership or nonmembership in Local
Union No. 704, except to the extent permitted by Sec-
tion 8(a)(3) of the Act.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
their rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Post at its facility in Ann Arbor, Michigan, cop-
ies of the attached notices marked ‘‘Appendix A’’ and
‘‘Appendix B.’’2 Copies of the notices, on forms pro-
vided by the Regional Director for Region 7, after
being signed respectively by the Respondent Employ-
er’s and the Respondent Union’s authorized representa-
tives, shall be posted by the Respondent Employer im-
mediately on receipt and maintained for 60 consecutive
days in conspicuous places including all places where
notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent Employer
to ensure that the notices are not altered, defaced, or
covered by any other material.
759ANN ARBOR FIRE PROTECTION
3 See fn. 2, above.
(b) Forward to the Regional Director for Region 7
signed copies of the notice for posting by Sprinkler
Fitters and Apprentices, Local Union No. 704 for 60
consecutive days where notices to members are cus-
tomarily posted.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent Employer has taken to comply.
B. Respondent Union Sprinkler Fitters and Appren-
tices, Local Union No. 704, Livonia, Michigan, its of-
ficers, agents, and representatives, shall
1. Cease and desist from
(a) Maintaining a provision in the collective-bargain-
ing agreement with Ann Arbor Fire Protection, Inc.
that requires the employer to give preference in reten-
tion of employment during layoffs to employees based
on membership or nonmembership in Local Union No.
704, except to the extent permitted by Section 8(a)(3)
of the Act.
(b) In any like or related manner restraining or co-
ercing employees in the exercise of their rights guaran-
teed by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Post at its offices and meeting halls in Livonia,
Michigan, copies of the attached notices marked ‘‘Ap-
pendix A’’ and ‘‘Appendix B.’’3 Copies of the notices,
on forms provided by the Regional Director for Region
7, after being signed respectively by the Respondent
Employer’s and the Respondent Union’s authorized
representatives, shall be posted by the Respondent
Union immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all
places where notices to members are customarily post-
ed. Reasonable steps shall be taken by the Respondent
Union to ensure that the notices are not altered, de-
faced, or covered by any other material.
(b) Forward to the Regional Director for Region 7
signed copies of the notice for posting by Ann Arbor
Fire Protection, Inc. for 60 consecutive days where no-
tices to employees are customarily posted.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent Union has taken to comply.
IT IS FURTHER ORDERED that the complaint is dis-
missed insofar as it alleges violations not found.
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT maintain a provision in the collective-
bargaining agreement with Sprinkler Fitters and Ap-
prentices, Local Union No. 704 that requires us to give
preference in retention of employment during layoffs
to employees based on membership or nonmembership
in Local Union No. 704, except to the extent permitted
by Section 8(a)(3) of the Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
ANN ARBOR FIRE PROTECTION, INC.
APPENDIX B
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT maintain a provision in the collective-
bargaining agreement with Ann Arbor Fire Protection,
Inc. that requires the employer to give preference in
retention of employment during layoffs to employees
based on membership or nonmembership in Local
Union No. 704, except to the extent permitted by Sec-
tion 8(a)(3) of the Act.
WE WILL NOT in any like or related manner restrain
or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
SPRINKLER FITTERS AND APPRENTICES,
LOCAL UNION NO. 704
Joseph Canfield, Esq., for the General Counsel.
Melissa Jackson and David Houston, Esqs., for the Respond-
ent Company.
J. Douglas Korney, Esq., for the Respondent Union.
DECISION
STATEMENT OF THE CASE
HUBERT E. LOTT, Administrative Law Judge. This case
was heard in Detroit, Michigan, on October 21, 1992, on un-
fair labor practice charges and amended charges filed on Jan-
760 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
uary 3 and February 27, 1992. A consolidated complaint
issued February 27, 1992, alleging that the Company and the
Union violated Section 8(a)(1) and (3) and Section
8(b)(1)(A) and (2) of the Act.
Respondents’ answers to the complaint, duly filed, denies
the commission of any unfair labor practices.
The parties were afforded an opportunity to be heard, to
call, to examine and cross-examine witnesses, and to intro-
duce relevant evidence. Since the close of hearing, briefs
have been received from the parties.
On the entire record, and based on my observation of the
witnesses, and in consideration of the briefs submitted, I
make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent company is a corporation with an office and
place of business in Ann Arbor, Michigan, where it is en-
gaged in the building and construction industry as a contrac-
tor installing fire protection equipment. During the calendar
year ending December 31, 1991, the Company derived reve-
nues in excess of $1 million. During the same calendar year,
the Company purchased and received at its Ann Arbor facil-
ity goods valued in excess of $50,000 directly from points
outside the State of Michigan.
The Company admits, and I find, that it is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act and the parties admit, and I find, that
Respondent Union is a labor organization within the meaning
of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
Sprinkler Fitters and Apprentices Local 669 is located in
Landover, Maryland, and is a ‘‘road local,’’ having jurisdic-
tion in all parts of the country except in some of the larger
metropolitan areas where members are granted their own
charters. Jurisdiction of Local 704 encompasses the Detroit
Metropolitan area, including Wayne, Macomb, Oakland, and
Washtenow counties. Both Locals belong to the United Asso-
ciation of Journeymen and Apprentices of the Plumbing and
Pipefitting Industry of the United States and Canada (U.A.).
Ann Arbor Fire Protection, Inc. (A.A.F.P.) has a collective-
bargaining agreement with Local 704.
Charles Giles testified that he is a member of Local 669
and worked for A.A.F.P. from October 1990 to July 1991
when he was laid off. While he worked in Metropolitan De-
troit, he was not a member of Local 704 but worked as a
‘‘traveler’’ out of Local 669. He stated that he worked with
Don Tisdale and Larron Hughes at the Ford Motor Company
and was the first to be laid off because work was nearing
completion. At the time of his layoff, he testified that he
asked Don Quick, his foreman and a stipulated supervisor, if
Don Tisdale and Larron Hughes were being laid off. Accord-
ing to Giles, Quick replied that they wouldn’t be laid off if
they cleared into 704 (i.e., became members of 704). He had
no knowledge of other employees laid off.
Larron Hughes and Donald Tisdale worked as travelers out
of Local 669 in Local 704 jurisdiction. They were sent to
work for R&R Fire Protection by Local 704 in April 1987.
They remained employed until about March 1988 when they
were laid off. They were recalled by R&R in June 1988 and
worked until May 1989. They were immediately sent to
A.A.F.P. where they worked until they were laid off on July
12, 1991. Both were rehired on July 13, 1992, and were
working for A.A.F.P. at the time of the hearing.
Hughes testified that approximately 2 weeks before his last
layoff, A.A.F.P. Superintendent Wayne Evely told him that
the Company had to make a cutback and that travelers would
be the first to go. He was getting pressure from the Union
to lay off all travelers. He was not being laid off because of
his work skills or his record. Two days later he called
A.A.F.P. President Sam Callen to inquire about a job. Ac-
cording to Hughes, Callen told him that he wouldn’t be laid
off if he became a member of Local 704. Callen also told
him to contact Superintendent Tom Overmeyer at Action
Fire Protection (owned by Callen) in Toledo to see if Over-
meyer would employ him. Callen also said he was getting
pressure from the Union to lay off travelers. Hughes con-
tacted Overmeyer who offered him a job for 2 weeks, which
he refused. He also testified on cross that if he took the job
at Action Fire Protection, he would not be eligible for sup-
plemental unemployment benefits.
Tisdale testified that on July 8, 1991, Foreman Don Quick
told him the Union was putting pressure on the Company to
lay off travelers but if he cleared into 704, he wouldn’t be
laid off. On the day he was laid off, Bill Everly told Tisdale
he was sorry to see him go but the Union was pressuring the
Company to lay off travelers. Tisdale called Callen, who told
him that if he was a member of Local 704 he would have
a job.
Sometime in July 1991, both Hughes and Tisdale talked
to Local 704 Business Manager Pat Devlin about transferring
into Local 704. Devlin told them they needed to have trans-
fer cards from Local 669 to Local 704 and that they had to
appear before the executive board. On September 11, 1991,
they met with the executive board and were informed that in
accordance with the U.A. constitution, they had to submit a
signed statement to the local union that they were perma-
nently changing and moving their domicile and residence to
the territorial jurisdiction of the local union into which they
are transferring. On October 8 and 11, Hughes and Tisdale
submitted the required statement to the Union. In December
1991, Devlin met with Hughes and Tisdale and informed
them that he was ready to sign there transfer cards. Both
men wanted to know if being a member of Local 704 guar-
anteed them a job. Devlin said no and both men requested
the return of their transfer cards (refused to join Local 704).
Both Tisdale and Hughes received supplementary unem-
ployment benefits until they returned to work on July 13,
1992.
William Everly testified that he hires workers directly and
not through the union hall. He stated that he laid off Hughes
and Tisdale for lack of work, which occurs all the time when
jobs are completed. He stated that he laid off Local 704
members while retaining travelers and never received a union
grievance over this although the collective-bargaining agree-
ment (art. 14, sec. 62) calls for laying off Local 704 mem-
bers last.
Everly testified that he told Hughes he was being laid off
because of lack of work. Hughes asked if it was because he
was a traveler and Everly said no. He never told Hughes that
travelers were the first to go. He never told either Hughes
or Tisdale that they would not be laid off if they were Local
761ANN ARBOR FIRE PROTECTION
704 members and that their not being Local 704 members
did not enter into his decision. But he did tell Hughes there
were pressures.
Everly said that some time in the past Devlin asked him
to lay off travelers several times but Everly told him that he
had work for the travelers, that he was not laying them off,
and that he would lay them off, ‘‘when I am damned well
ready.’’
Everly testified that in laying off employees he ranks them
according to their skills, abilities, and dependability. He then
chooses the employees who rate last as the first to be laid
off.
Samuel Callen testified that he had a collective-bargaining
agreement with Local 704 but his company has never gone
through the Union for employees. Ninety percent of his em-
ployees are hired directly. He selects employees for layoff
based on their abilities. He laid off Hughes and Tisdale for
lack of work not because they were travelers. Neither
Hughes nor Tisdale were replaced by Local 704 members.
Callen testified that periodically Devlin would ask him to
lay off travelers but he always told him that he lays off peo-
ple when he is ready to lay off people and the Union never
took any action under the contract when he laid off Local
704 members instead of travelers.
After Hughes and Tisdale were laid off, Callen testified
that he offered them work at another of his companies in To-
ledo but they did not want the job so someone else was
hired. He never told Hughes or Tisdale they wouldn’t be laid
off if they cleared into Local 704.
Pat Devlin, business manager for Local 704, testified that
the Union has no hiring hall or referral service. Members get
their own jobs and then inform the Union where they are
working. He testified that the Union never enforced the con-
tract provision requiring 704 members to be laid off last. He
also testified that Local 704 has 285 members of which
about 65 were not working on July 15, 1991. In June 1990,
the Union had 25 travelers in town of which 10 were work-
ing for A.A.F.P. In January 1991, five travelers were work-
ing at A.A.F.P. and after July 1991, no travelers were work-
ing at A.A.F.P.
Devlin testified that both Tisdale and Hughes were in-
formed of the residency requirements for membership into
Local 704. On October 8 and 11, both submitted the required
written statements. After that he told both Hughes and Tis-
dale he would sign their transfer cards. Both wanted a guar-
antee of work if they joined Local 704. Devlin told them that
he couldn’t guarantee them work because he had 65 mem-
bers not working at the time. Both refused to join Local 704.
The Company submitted a chart showing the hire dates,
layoff dates, and recall dates of Local 704 members and trav-
elers. This chart shows that on June 8, 1990, the Company
laid off four travelers and three 704 members. Two travelers
were recalled on October 8, 1990, and again laid off in Janu-
ary 1991. On June 15, 1990, the Company laid off one trav-
eler and three 704 members. On June 25, 1990, one 704
member was recalled. On January 4, 1991, five travelers and
four Local 704 members were laid off. On March 4 and 15,
1991, five Local 704 members were laid off. Of these five,
one was recalled in May 1991 and laid off again on Septem-
ber 19, 1991. Three others were recalled in April, May, and
June 1992 and two were laid off again in July and August
1992. On July 3 and 12, 1991, three travelers (including
Hughes and Tisdale) and five 704 members were laid off.
One 704 member was recalled in December 1991 and laid
off January 3, 1992. Another 704 member was recalled and
laid off three times. Tisdale and Hughes were recalled July
13, 1992. After these layoffs, one traveler and one 704 mem-
ber were laid off in July 1991.
Analysis and Conclusions
Paragraph 46 of the collective-bargaining agreement states
that the Employer retains the right to hire its employees
while paragraph 60 states that the employer can only hire
employees if the Union is unable to furnish it with members.
However, the uncontradicted evidence shows that the Union
does not operate an exclusive hiring hall. In fact it doesn’t
even have a referral service. Accordingly, I can find no vio-
lations of Section 8(b)(1)(A) and (2) for refusing to refer
Hughes and Tisdale as alleged in the complaint. Carpenters
Local 537 (E. I. du Pont), 303 NLRB 419 (1991). It is there-
fore recommended that these allegations be dismissed.
The complaint alleges violations of Section 8(b)(1)(A) and
(2) because the Union refused to accept transfer cards from
the Charging Parties. The undisputed evidence supports a
finding that after the Charging Parties complied with the
Union’s constitutional requirements, the Union (Devlin)
agreed to sign their transfer cards but the Charging Parties
refused to join Local 704 because Devlin could not guarantee
them a job. Accordingly, I will recommend dismissal of this
allegation.
The complaint further alleges that Respondents enforced a
contract clause which provides that members of Respondent
would be the last to be laid off. While this clause is in the
collective-bargaining agreement, I find that the evidence, and
especially the uncontested documented layoffs, prove just the
opposite. The evidence shows that at least since 1990, the
Union has made no attempt to enforce this contract provision
and according to Devlin’s uncontradicted testimony the
Union has never enforced this provision. Accordingly, I rec-
ommend dismissal of these allegations.
The only issue remaining is whether Respondents caused
the layoff of the Charging Parties because they were not
members of Local 704. Although there are serious credibility
conflicts over the reason for the layoff, certain
uncontradicted facts stand out. The Union never enforced the
contract provision favoring Local 704 members in layoffs.
Tisdale and Hughes enjoyed uninterrupted employment with
A.A.F.P. from May 1989, to July 12, 1991, although 13
Local 704 members were laid off, and at the time of their
layoff 5 Local 704 members were also laid off. They were
also retained when others with more seniority were laid off.
It is also uncontested that the layoff was economic in nature.
Therefore the only remaining factor is their selection. The
employer contends that Tisdale and Hughes would have been
laid off had they been Local 704 members and offers docu-
mentary evidence to show that many 704 members were laid
off before them.
The Company also offered evidence that although the
Union wanted it to lay off travelers first, this request was ig-
nored repeatedly and selection was based on job duration and
ability. Moreover, the General Counsel offered no evidence
that Hughes and Tisdale were selected for layoff over less
qualified 704 members at the Ford Motor Company job.
Therefore, I credit the employers’ witnesses over those of
762 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
General Counsel and find that Tisdale and Hughes would
have been laid off notwithstanding their traveler status.
Therefore, because counsel for the General Counsel did
not prove, by a preponderance of the evidence that the
Charging Parties were laid off because of their traveler status
and because Respondents’ carried their Wright Line burden,
I will dismiss all allegations in the complaint.
CONCLUSIONS OF LAW
1. Respondent A.A.F.P., Inc. is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. Respondent Sprinkler Fitters and Apprentices, Local
Union No. 704 is a labor organization within the meaning of
Section 2(5) of the Act.
3. Respondents have not engaged in any violations of Sec-
tion 8(a)(1) and (3) and Section 8(b)(1)(A) and (2) of the
Act.
[Recommended Order for dismissal is omitted from publi-
cation.]