Averill Plumbing & Heating Corp.

National Labor Relations Board - Board Decisions

Jul 23, 1965

153 N.L.R.B. 1595 (N.L.R.B. 1965)

AVERILL PLUMBING & HEATING CORPORATION 1595
2. By interfering with, restraining, and coercing its employees in the exericse of
the rights guaranteed to them in Section 7 of the Act, Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of
the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
4. By discharging Rene Lombardo on April 23, 1964, Respondent did not commit
any unfair labor practice.
[Recommended Order omitted from publication.]
Averill Plumbing & Heating Corporation and United Association
of Journeymen and Apprentices of the Plumbing & Pipe Fitting
Industry of the United States and Canada, Local Union No. 412.
Case No. £8-CA-1005. July £3,1965
DECISION AND ORDER
On July 15, 1964, Trial Examiner Herman Marx issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices,
and recommending that it cease and desist therefrom and take cer-
tain affirmative action, as set forth in the attached Trial Examiner's
Decision. Thereafter, the Respondent filed exceptions to the Trial
Examiner's Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the brief, and the entire record
in this case, and for the reasons set forth hereinafter has decided to
dismiss the complaint in its entirety.
Respondent, a member of the Associated Plumbing, Heating and
Piping Contractors of New Mexico, refused to sign the 1963 labor
agreement reached between the Union and the Association's negotiat-
ing committee. The Trial Examiner, as described more fully below,
found that Respondent violated Section 8(a) (5) of the Act by refus-
ing to sign this contract. In principal part, the Trial Examiner
relied on the fact that Respondent was a member of the Association,
that there was a certified unit in existence, and that Respondent by
execution of the 1961 contract had designated the Association as its
collective-bargaining agent.
153 NLRB No. 144.
1596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In our opinion, membership in the Association did not create an
agency relationship whereby the Association was to represent Respond-
ent in matters of collective bargaining. There is no bylaw condi-
tioning membership on a baragining authorization, and the testi-
mony of the witnesses makes it abundantly clear that at least 50 per-
cent of the Association's members, by their own choice, do not recog-
nize or bargain with the Union through the negotiating committee.
As to the Trial Examiner's finding that the certified unit had a
direct bearing on Respondent's obligation to sign the agreement, we
disagree. The record shows that the unit was certified in 1954, before
Respondent came into existence, and was drafted in such a way as to
exclude those employer-members of the Association for whom the
Association was not the "duly authorized bargaining representative."
The General Counsel has failed to show that Respondent duly author-
ized the Association to represent it in matters of collective bargaining.
Accordingly, we find that Respondent was not a part of the certified
unit at the time it refused to sign the 1963 contract.
We also disagree with the Trial Examiner's interpretation and appli-
cation of the preamble to the 1961 agreement. By virtue of the pre-
amble, the Trial Examiner read into Respondent' s signing of the 1961
agreement Respondent's designation of the Association as its bargain-
ing agent. In our opinion, the record does not support such a con-
clusion. In multiemployer agreements as well as in pattern contracts,
the parties signatory thereto generally desire one administrative orga-
nization to speak for the employers in such matters as the manage-
ment of trusts and health and welfare funds. So limited a delegation
of authority for the term of the contract, as in the instant case, should
not be construed as committing an employer to a multiemployer bar-
gaining relationship absent a clear intention to be so bound.'
The Association's conduct also offers little to support the findings of
the Trial Examiner. First, the Association's directors passed a reso-
lution in October 1963 renouncing all future bargaining functions,
noting that "the By-Laws do not bind all members to the Contracts
negotiated by the Association nor have its members delegated their
bargaining authority to the Association. . . ." In the same resolution,
the directors assigned all future bargaining functions to a new associa-
tion in which membership is conditioned on a delegation of bargaining
authority. Finally, a past president of the Association and present
chairman of the negotiating committee testified that a union contractor
1 See Sheridan Creations, Inc., 148 NLRB 1503, where the employer in a similar situa-
tion expressly agreed to be bound by the next contract executed between the association
and the union.
AVERILL PLUMBING & HEATING CORPORATION 1597
has "the right to sign the contract or not to sign it," and if he did not
sign the contract "he becomes a non-union contractor." Thus, the evi-
dence clearly shows that the Association did not consider the contracts
reached with the Union as binding on any of its members until they
individually signed the contract.
Even the Union's conduct in dealing with the Association lends sup-
port to the Respondent's position. Thus, the Union offered no evidence
of past conduct, nor even denied the claim that union contractors could
sign or not sign the contract, and did not offer any evidence to explain
away the fact Respondent had not signed a contract in 1960. The rec-
ord also shows that in the early part of 1961 both the Union and the
Association, apparently at the Union's initiative, discussed a proposed
bylaw amendment that would have made it mandatory that all associa-
tion members who employed union members delegate bargaining
authority to the Association. Further in August 1963 before the Union
made any request that Respondent sign the contract, the Union refused
to refer workers from its hiring hall to Respondent, a function it would
normally have been required to do if it considered itself bound to a
contract with the Respondent.
Reviewing the record facts present herein, we are not persuaded that
the General Counsel has established that the Respondent either
engaged in or agreed to be bound by the results of group bargaining.
In the absence of a showing that Respondent had agreed to be bound
by any agreement reached by the Association, we find that Respond-
ent was not obligated to sign the 1963 contract tendered to it by the
Union, and its refusal to do so did not, therefore, violate Section 8 (a)
(5) of the Act. Accordingly, we shall dismiss the complaint.
[The Board dismissed the complaint.]
MEMBER BROWN, dissenting :
For the reasons stated therein, I would affirm the Decision of the
Trial Examiner.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
The complaint ,' in substance , alleges that: An organization of employers named
Associated Plumbing, Heating and Piping Contractors of New Mexico (herein the
Association ) is the collective-bargaining representative of members of the Associa-
tion, including the Respondent , an employer named Averill Plumbing & Heating
Corporation ( herein the Company); various categories of employees of such members
1 The complaint was issued on October 25, 1963, and is based upon a charge filed by the
Union with the National Labor Relations Board on September 18, 1963 , and upon an
amendment thereof filed on October 14, 1963. Copies of the charge , the amendment
thereof, and the complaint have been duly served upon the Respondent.
1598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
are, and have been at all material times, in an appropriate bargaining unit; United
Association of Journeymen and Apprentices of the Plumbing & Pipe Fitting Industry
of the United States and Canada, Local Union No. 412 (herein the Union) is, and has
been at such material times, the duly authorized bargaining representative of the
employees in the unit; the Company has refused to bargain with the Union by declin-
ing to execute a collective-bargaining agreement negotiated by the Association and
the Union, and has by such refusal violated Section 8(a) (5) and (1) of the National
Labor Relations Act, as amended, 29 U.S.C. Sec. 151, et seq. (herein the Act); and
such conduct has caused and prolonged a strike of employees of the Company.2
The Respondent has filed an answer which, in substance, denies the commission
of the unfair labor practices imputed to it in the complaint.
Pursuant to notice duly served by the General Counsel of the National Labor
Relations Board upon each of the other parties, a hearing upon the issues raised by the
complaint and answer has been held before Trial Examiner Herman Marx, at Albu-
querque, New Mexico. The General Counsel and the Respondent appeared through
respective counsel. The Union, which filed the charge upon which this proceeding
is based, did not enter an appearance. All parties were afforded a full opportunity
to be heard, examine and cross-examine witnesses, adduce evidence, file briefs, and
submit oral argument. I have read and considered the respective briefs of the General
Counsel and the Respondent filed with me since the close of the hearing. The Union
has not filed a brief.
Upon the entire record in this proceeding, and from my observation of the wit-
nesses, I make the following:
FINDINGS OF FACT
I. THE NATURE OF THE COMPANY'S BUSINESS, JURISDICTION OF THE BOARD
The Company is a New Mexico corporation; maintains its place of business in
Albuquerque, New Mexico; is engaged there in the business of heating and plumbing
contracting, and is, and has been at all material times, an employer within the meaning
of Section 2(2) of the Act.
In the course and conduct of its business during the year preceding the issuance of
the complaint, the Company purchased at locations outside New Mexico, and received
inside that State from points outside, goods and services valued in excess of $50,000.
By reason of such transactions, the Company, as its answer concedes, is, and has
been at all material times, engaged in interstate commerce within the meaning of
Section 2(6) and (7) of the Act. Accordingly, the Board has jurisdiction over the
subject matter of this proceeding.
II. THE LABOR ORGANIZATION INVOLVED
The Union is, and has been at all material times, a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Prefatory statement
The Association is a nonprofit membership corporation of New Mexico, and has
been in existence for at least 10 years. Its members include employers engaged in
the business of providing and installing plumbing, heating, cooling, and piping facili-
ties. Approximately half of these are unionized and subject to contract with the
Union; the rest are not under contract with the labor organization.
On June 21, 1954, the National Labor Relations Board, in Case No. 33-RC-480,
following, and based upon, the results of a representation election, held by agreement
between the Union and the Association, certified the Union as the representative of a
bargaining unit defined as follows: "All journeymen plumbers, pipefitters, pipe-
welders, and their apprentices employed by employers located in New Mexico for
whom the duly authorized bargaining representative, but excluding all other trade
craftsmen, office clericals, plant clericals, guards, and professional and supervisory
employees."
2 As Issued , the complaint also alleged that the Respondent violated the Act by refusing
to bargain with the Union as representative of a unit consisting solely of employees of
the Respondent These allegations , which are not consistent with the General Counsel's
claim that the employees are members of a multiemployer unit, were stricken, upon the
Respondent 's motion, at the hearing in this proceeding.
AVERILL PLU âIBING & HEATING CORPORATION 1599
At a convention held in the spring of 1958, the membership of the Association
gave a committee (now known as the Joint Conference Committee) of the organiza-
tion "sole power" to represent it "in all negotiations with the Union.",'
The record includes a document (Respondent's Exhibit No. 7) which purports,
according to its caption, to contain the Association's bylaws as revised in February
1961. There is no direct evidence of the adoption of the document's contents as
bylaws, but the Association's president, Norman Rupert, testified regarding the con-
tents that "these are the only by-laws [he] is familiar with," that there are no others in
his files, and that the Association has been governed by, and operated under, the mate-
rial in question as its bylaws since at least February 1961. In the light of this testi-
mony, the record warrants an inference, and I find, that the document's contents are,
and have been at all material times since February 1961, the Associtaion's bylaws.
The bylaw provisions relevant here are those that deal with the Association's presi-
dent, directors, and Joint Conference Committee. Under the bylaws, "the govern-
ment" of the Association is "vested in a Board of Directors," consisting of nine
persons, including the president. Five members are necessary for a quorum at board
meetings . As specified in the bylaws the president is the "chief executive of the
Association" and ex officio a member of all committees; "preside(s) over all meetings
of the Board"; and has "general and active management of the business" of the
Association. The bylaws duect the Joint Conference Committee to "serve as trustees
of the Health and Welfare Plan and of the Pipe Trades Industry Program" (established
under collective-bargaining agreements); to "maintain liaison with representatives of
labor, . study current contracts and evaluate their provisions and recommend
changes" to the board of directors; to hold "preliminary discussions with interested
persons concerning contract revisions, alterations, deletions or additions"; and "in all
matters of actual negotiation of a new (or renewal) contract ... follow the general
instructions of the Board "
The Company was formed and began its business operations in April 1959 and
has been engaged primarily in plumbing work in "housing" construction. It became
a member of the Association in January 1960, and still held such membership at the
time of the hearing in this proceeding, approximately 4 years later.
During the period since the certification. the Association has negotiated and
entered into a series of successive collective-bargaining contracts with the Union,
prescribing terms and conditions of employment for employees in the bargaining
unit. Employers subject to the terms of the contracts, either because they were
represented by the Association in the negotiations or because they adopted the con-
tractual provisions, have followed the practice of signing the agreements separately,
each customarily doing so, upon the Union's initiative, by subscribing the name of the
enterprise to a printed copy of the relevant contract at a point following the names
of the Association and the Union as executing parties.
The record contains a number of the agreements, beginning with one dated June 1,
1958 (a revision of a prior contract), to which the Company became a signatory
party at about the time it went into business; and including a successor agreement
dated October 15, 1959, which the Company did not sign for one reason or another
not set forth in the record. (The resolution of the issues does not hinge on either of
these agreements, and thus no summary of any of their provisions is essential.)
3 Findings as to the resolution are based on the testimony of Lawrence Meyer, a mem-
ber of the Joint Conference Committee, and formerly president of the Association. The
minutes of the meeting are not in evidence and there is some indication that they are in
use in a judicial proceeding not pertinent here . The Respondent disputes Meyer ' s claim,
supporting its position with testimony by an attorney who has had occasion to represent
the Association , that he is "reasonably certain " that the organization held no convention
in 1958. Although I believe that the attorney is using his best recollection , I also think
it is faulty for a number of reasons . First , the bylaws provide for an annual member-
ship meeting in May. Although those in evidence were revised in February 1961, there
is no reason to believe that that provision was one of those revised and was not in effect
in 1958. Thus the bylaws support Meyer 's testimony to the effect that there was a con-
vention ( in other words , a general membership meeting ) in the spring of 1958 Second,
Meyer indisputably became president of the Association in 1958, and it seems likely that
that was done at a membership meeting held that year Third, the Association's nego-
ting committee , including Meyer , executed contractual terms dated June 1, 1958, revising
a prior agreement with the Union , and it is but natural to believe that the committee
would do so pursuant to some prior authority In short , I credit Meyer on the subject
of the resolution.
1600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The material collective-bargaining history of the Con3Pany begins with an agree-
ment, dated August 1, 1961 (and referred to below as the 1961 contract), between
the Union and the Association, and negotiated and signed for the latter by its Joint
'Conference Committee, with the approval of the board of directors?
Following execution of the 1961 contract, a business agent of the Union, Charles
Cooper, delivered a printed booklet copy of the agreement to the Company's president,
H. K. Averill, and requested that the Company sign it Averill took the matter under
consideration, and the upshot of Cooper's request was that on December 13, 1961,
some months after it was made, Averill subscribed the contract terms on behalf of
the Company, doing so by signing for it in a space provided for that purpose on a
page in the booklet immediately following that on which the names of the Associa-
tion and Union appear as executing parties. Cooper signed, on behalf of the Union,
on the same page as the Company in a place provided for that purpose. With the
execution of the booklet copy, the Company became a party to the 1961 contract.5
Much of the provisions of the 1961 contract, which prescribes terms and conditions
of employment for employees in a bargaining unit to be discussed later, is not germane
to the issues here. The preamble paragraph, and provisions dealing with the term
of the agreement, union recognition, disputes, hiring, and the maintenance and man-
agement of various funds have a bearing on the issues and are either excerpted or
summarized in sufficient detail below.
The introductory paragraph provides:
This Agreement made at Albuquerque, New Mexico, this first day of August
1961 by and between the Associated Plumbing, Heating and Piping Contractors
of New Mexico, Inc. hereinafter called the "Employers Association" bargaining
agent for the employing plumbing, heating and piping contractors hereinafter
set forth as members party to this Agreement and non-members signatory who
are referred to herein individually and collectively as "Employers"; and the
United Association of Journeymen and Apprentices of the Plumbing and Pipe
Fitting Industry of the United States and Canada, Local Union 412, hereinafter
referred to as the "Union" as exclusive bargaining representative of the journey-
men and apprentices employed by the Employer, hereinafter referred to at
times as "Employees."
* The minutes of a directors ' meeting held on February 18, 1961 , contain a unanimous
resolution "that the negotiating committee be authorized to finalize the present contract
to be based upon legality changes and minor revisions ." Bearing in mind that the Joint
Conference Committee had signed the previous contracts in evidence, I think it reasonable
to construe the authority "to finalize the present contract" as an authorization to the
committee to execute the 1961 contract on behalf of the Association There is no evidence
that, as executed , the terms of the contract departed in any significant or substantial
way from those authorized by the board On the contrary , the record warrants an in-
ference , and I find, that there was no such departure , for in addition to the formal
authorization " to finalize" the agreement , the directors , at least some of whom reside at
widely separated locations , approved or ratified the 1961 contract by "phone poll." The
execution of the contract was, in short, within the range of the authority conferred by
the resolution. But, actually, the efficacy of the contract so far as the Company is con-
cerned does not hinge on the committee ' s authority . The agreement became binding on
the Company on December 13, 1961, by force of the fact that it executed a copy and be-
came a party to it on that date
5 Averill gave testimony to the effect that he discussed the contract with Cooper on
several occasions before it was signed ; that during the course of the discussions he ex-
pressed the view, and Cooper agreed, that "housing" plumbers had "problems" that "com-
mercial" plumbers did not have ; and that Cooper said, before the contract was signed,
that he would attempt to iron out Averill's "problem " In his testimony, Cooper denied
that Averill voiced any "objections" to the agreement to him. Actually, it is not clear
from Averill's testimony that he did, for he does not quote himself as objecting to any
specific inclusion in, or omission from, the 1961 contract The only "problem" con-
cretely mentioned in Averill's account of his discussion with Cooper is "the type of
mechanics we were getting," and that, as is obvious, could be attributable to a variety of
factors not caused by the contract terms (for example, the available labor supply). In
any case, I see no inevitable conflict between Averill' s version and Cooper's denial, and
accept Averill 's account ; but doing so, I also note that it has no material impact upon
the issues. As regards the 1961 contract, the important fact is that the Company signed
and became a party to it, thus creating a relationship between itself and the other signa-
tories to it, which, as will appear, has it controlling impact upon the issues.
AVERILL PLUMBING & HEATING CORPORATION 1601
The provisions for union recognition are contained in article III of the contract,
which reads as follows:
The employer recognizes Local Union 412 as the sole and exclusive bargain-
ing representative for all journeymen plumbers, steam fitters, pipe fitters, refrig-
eration fitters, gas fitters, lead burners , hereinafter referred to as journeymen
plumbers and pipefitters , and their apprentices with respect to wages, hours and
other working conditions on any and all work covered by this Agreement, which
is the appropriate unit as originally certified by the National Labor Relations
Board in Case No. 33-RC-480.
Brief summary of, or reference to, the remaining pertinent contract provisions will
suffice. The agreement , by the terms of article II, was to remain in effect until
March 31 , 1963, and to "continue in effect from year to year thereafter , unless
amended or terminated as provided " in the agreement . Provision is made in article
XII for the establishment of a "Labor Management Conference Committee," con-
sisting of three persons appointed by the Association and three by the Union, with
the functions , among others , of resolving disputes over the interpretation or appli-
cation of the contract ; adjusting grievances ; and establishing "the general recognition
and enforcement of the wages , hours and working conditions " provided by the con-
tract. Article XXIII contains detailed hiring provisions , including procedures for
the registration and referral of job applicants by the Union , and the maintenance of
facilities by the labor organization for such purposes ; and provides for a "Joint Hir-
ing Committee ," consisting of three representatives appointed by the Association and
an equal number by the Union , "to supervise and control the operation of the job
referral system." The contract includes provisions for the maintenance and man-
agement of various funds . One of these is a health and welfare fund previously
established by the Association and the Union . Article XX specifies that the fund is
to be continued , and administered by, six trustees , three appointed by the Associa-
tion and three by the Union . Article XXI provides for an apprenticeship and jour-
neyman training fund and article XXII for an industry promotion fund, both
financed by contributions from employers subject to the contract and administered
by trustees , three appointed by the Association and three by the Union for the train-
ing fund, and three by the Association and one by the Union for the industry promo-
tion program.
On September 10, 1962, the Union, in writing addressed to the Association,
requested the "opening " of the 1961 contract and negotiations for revision of the
agreement in various particulars . As the minutes of a meeting of the Association's
board of directors held on that date show , the president of the Association "informed
the board '[at the meeting ] that ... [the Union] had requested opening of the labor
agreement"; and "[t]he board was advised '[at the meeting] that the negotiating com-
mittee was preparing to meet with [the Union] and that the board would keep apprised
of the development that had transpired."
The Association 's Joint Conference Committee thereafter held a number of nego-
tiating meetings with representatives of the Union , and the upshot of the negotiations
was a written agreement dated April 1, 1963 (called the 1963 contract herein), exe-
cuted by the Joint Conference Committee purportedly "on behalf of" the Associa-
tion, and by representatives of the Union for that organization.
The 1963 contract is, in form, a complete agreement , and not an amendment of
the 1961 contract ; was plainly designed by the negotiators to bring about the termi-
nation of that agreement as of March 31, 1963, the expiration date specified in it;
and supersedes it 6
The 1963 contract provides that it is to remain in effect until March 31, 1966, and
"from year to year thereafter , unless amended or terminated " as stated therein; pre-
scribes terms and conditions of employment for employees in the same unit as the
one covered by the 1961 contract ; and contains provisions much the same (except
for variations in dates) as those excerpted or summarized above from the 1961 con-
tract, including the preamble , the recognition clause, and terms providing for the
8 There is no dispute that the 1961 contract expired on March 31, 1963 , and that the
1963 agreement did not amend its predecessor . Both the General Counsel and the Re-
spondent expressly treat the 1961 contract as terminated Thus the Respondent 's brief
(at p 5 ) states that "[ t]he 1961 agreement . . . expired March 31, 1963 and was
superseded by a new form of agreement purportedly between the Association and the
Union on April 1, 1963"; and the General Counsel's brief ( at p. 3 ) refers to " the ex-
piration of the 1961 agreement."
1602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
appointment by the Association of the management representatives on the Labor
Management Committee, the Joint Hiring Committee, and boards of trustees respec-
tively dealing with the health and welfare, industry promotion, and apprenticeship
and journeyman training funds.
Several weeks after the execution of the 1963 contract, a representative of the
Union brought a printed booklet copy of the agreement to the Company's place of
business. Averill was absent, and the Union's agent left the booklet for him. Its
last page was a form, much like that in the 1961 booklet, designed for use by indi-
vidual employers in executing the 1963 contract, and it is evident that the agent
delivered the booklet for the purpose of having the Company execute the signature
form.
The matter rested there until September 3, 1963, when the president of the Union,
Floyd Sanders, called Averill and arranged a meeting for the purpose of discussing
execution of the contract by the Company. At the meeting, held on the following
day, Sanders asked why the contract had not been signed and what objection the
Company had to it. Averill expressed the view that the agreement did not adequately
protect "housing" plumbing contractors and voiced objection to "the type of mechanic
we were getting"; the "split scale" (presumably an allusion to the contractual wage
scale, although not further elaborated in the testimony); and certain job referral
practices by the Union. Sanders stated that he had had no part in the contract nego-
tiations, had only recently assumed office, and was "just employed by [the Union] to
implement the contract"; but expressed agreement that there were problems peculiar
to "housing" plumbing contractors; and stated that he would be willing to receive
suggestions from Averill and other "housing plumbers," discuss them with the
Union's membership, and see what could be done to resolve "these differences,"
although he could give no guarantees. Sanders then asked Averill to give him
"a definite answer" by the following Monday (September 9) whether the Company
would sign the contract, and Averill stated that he would do so.7
Averill did not communicate with Sanders as he had promised, but, instead, the
Company filed a representation petition with the National Labor Relations Board's
Regional Office in Albuquerque, New Mexico, on September 10, 1963, in substance
alleging the existence of a question of representation of a unit of the Company's
employees. A copy was served upon the Union by mail.
Following receipt of the copy, Sanders called Averill and asked him why he had
not kept his promise. Alluding to the petition, Averill said that he had filed it upon
the advice of his attorney in "order to open up negotiations," and that the petition
was the Company's answer to the request that it execute the 1963 contract.
The 1963 contract increased the wage rates prescribed by the 1961 agreement,
and, although the Company has not signed the current contract, it has paid its
employees in relevant classifications at the rates specified therein. Also, following
the effective date of the 1963 contract, it continued to use the hiring hall facilities
maintained over the years by the Union under contracts with the Association, doing
so until the Union denied the Company the use of the facilities in August 1963; and,
until that point, to make contributions to the health and welfare fund maintained
under the current and prior agreements between the Union and the Association.
In October 1963 (the precise date does not appear), the Association's board of
directors, at a meeting attended by a quorum, passed a resolution stating, among
other things, that the 1963 contract "is a binding Agreement and shall remain in
force and effect until March 31, 1966." This was, in substance, a formal ratification
of the contract by the board. It had not, as a body, previously approved or ratified
the contract, although four of the directors, a minority of the board, had separately
approved the terms in February or March 1963.
On October 28, 1963, the Company's counsel wrote to the Union's attorney, stating,
in substance, among other things, that the Company was willing to recognize the
Union as the representative of employees of the Company, and to bargain with the
Union on the basis of a unit consisting of such employees; and denying that the
Company had ever authorized the Association to represent it in collective bargaining.
The Union's attorney replied by letter dated November 22, 1963, to the effect that
the Union was confirming its position that the Company is bound by the 1963
contract.
7There is no material conflict between the respective accounts of the conversation by
Averill and Sanders, and I have drawn on the testimony of both in summarizing what
was said.
AVERILL PLUMBING & HEATING CORPORATION 1603
On November 27, 1963, the Company's attorney wrote to a representative of the
General Counsel of the National Labor Relations Board, in substance, among other
things, denying that the Company had ever delegated authority to the Association to
represent it, and reiterating the Company's position that it would not "sign nor agree
automatically to become a party to the purported contract beween the Local [Union]
and the Association." 8
B. Discussion of the issues; concluding findings
The filing of the representation petition and Averill's statement to Sanders shortly
thereafter that that was the Company's answer to the Union's request for execution
of the 1963 contract amounted, in substance, to a refusal by the Company to sign
the contract. This position was, in net effect, taken again by the Company after
formal ratification of the contract by the Association's board of directors at its Octo-
ber meeting, for by evident implication, the position stated in the letter of October 28,
1963, by the Company's attorney, and the offer in the letter to bargain on an indi-
vidual basis, amounted to a rejection of the 1963 contract; and the refusal to sign
that agreement was expressly reiterated in the attorney's letter of November 27, 1963.9
The ultimate issue here is whether the Company has unlawfully refused to bargain
with the Union by declining to sign the 1963 contract. As predicates for the reso-
lution of that question, one must determine (1) whether employees of the Company
are embraced in a multiemployer bargaining unit consisting of employees of employ-
ers represented by the Association; and (2) whether the Company is bound by the
terms of the 1963 agreement.
The Respondent maintains, in substance, that its membership in the Association
does not have the effect of constituting the latter as its bargaining agent, or of
including its employees in the multiemployer bargaining unit, and finds support for
its position in a recital in the October 1963 resoltuion, by which the board of direc-
tors formally ratified the 1963 contract, that the Association's bylaws "do not bind
all members to the contracts negotiated by the Association," and that "its members
(have not) delegated their bargaining authority to the Association." The recital
obviously means that membership does not of itself confer bargaining authority on
the Association. Assuming, arguendo, that that is the case, the Respondent's posi-
tion in that regard does not, in my view, meet the issues, nor take into account the
contractual commitments it made by force of its execution of the 1961 contract
As the National Labor Relations Board has held, "the inclusion of a particular
employer in a multiemployer unit is based upon mutual consent of the parties to such
inclusion, as evidenced either by a bargaining history for such group of employers in
a single unit, or by the express agreement of the parties to the inclusion of the indi-
vidual employers " 10
Applying that doctrine here, the 1961 contract, as executed by the Company, is
dispositive of the unit issue. Article III of that agreement spells out the unit the
contract covers by stating that "[t]he Employer [meaning, obviously, each signatory
contractor] recognizes Local Union 412 [the Union] as the sole and exclusive bar-
gaining representative for all journeymen plumbers, steamfitters, pipe fitters, refrig-
eration fitters, gas fitters, lead burners, hereinafter referred to as journeymen plumb-
9 The letters of October 28, and November 22 and 27, 1963 (Respondent's Exhibits Nos
9, 10, and 11, respectively), mentioned above, were offered by the Respondent, but
excluded upon the General Counsel's objection that they were immaterial Upon recon-
sideration, I have concluded that as the letters of the Company's attorney in effect
reflect reiterations of its refusal to sign the 1963 contract, and as the letter from the
Union's counsel restates its position that the Company is bound by the agreement, in
these aspects, at least, the communications bear materially on allegations of the complaint,
put in issue by the answer, that "on or about April 1, 1963, and at all times thereafter,
Respondent did refuse, and continues to refuse to bargain collectively with the Union"
[emphasis supplied] Accordingly, the rulings excluding the communications are vacated ;
and the letters are received. The findings herein relating to the letters are predicated
on their receipt in evidence
6 The record does not establish the precise date of the meeting of the board of direc-
tors in October 1963, but in view of the fact that the first of the two letters is dated
October 28, 1963, it is far more probable than not that the meeting was held at an earlier
date in October In any case, there can be no doubt that the Company refused to sign
the contract after its formal ratification, for the letter of November 27, 1963, says
as much.
15Local Union 49, of the Sheet Metal Workers Association, et at. (New Mexico Sheet
Metal Contractors Association, Inc. ), 122 NLRB 1192, 1194.
1604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ers and pipefitters, and their apprentices with respect to wages, hours and other work-
ing conditions on any and all work covered by this Agreement, which is the appro-
priate unit as originally certified by the National Labor Relations Board in Case No.
33-RC-480." The 1963 contract, it should be home in mind, defines the unit it
covers in identical language.
In net effect, by agreeing to the unit definition in the recognition clause of the
1961 contract, the Company agreed that it was the same as the certified unit, which
consisted of "journeymen plumbers, pipe fitters, pipe welders and their apprentices
employed by employers . . . for whom [the Association] is the duly authorized bar-
gaining representative"; that employees of the Company in the relevant classifica-
tions are members of the unit; and that the unit is appropriate for bargaining
purposes."
Moreover, by agreeing to the unit definition in the 1961 contract, with its express
identification with the certified unit, which consists of employees of employers for
whom the Association is the "duly authorized bargaining representative," the Com-
pany by implication affirmed that the Association was its "duly authorized bargain-
ing representative," but, in addition, that representative status is portrayed by the
contract in a substantial number of other respects.
One of them is the preamble to the agreement, which expressly describes the Asso-
ciation as the "bargaining agent for the employing plumbing, heating and piping
contractors hereinafter set forth as members party to this Agreement and non-
members signatory who are referred to herein individually and collectively as
`Employers.' " The phrase "contractors hereinafter set forth" obviously refers to
both members of the Association and nonmembers who execute copies of the con-
tract by signing the page form provided for that purpose; and the paragraph is, in
substance, an affirmation and ratification by each signatory contractor of the bar-
gaining authority of the Association. What is more, the contract in multiple ways
visualizes the Association as the representative of signatory contractors in matters
pertaining to ifs administration. Thus it empowers the Association to appoint the
management members of the Labor Management Conference Committee, which has
the large powers of resolving grievances and disputes and "establish[ing] the general
recognition and enforcement of the wages, hours and working conditions" provided
by the contract; continues the health and welfare fund previously established by the
Association and the Union; and provides, in effect, that the trustees designated by
management for administration of the health and welfare, industry promotion, and
apprenticeship training funds be appointed by the Association, and that it choose the
management representatives on the Joint Hiring Committee, which is charged with
supervision and control of "the job referral system."
Viewing the 1961 contract as a whole, it is clear that by becoming a party to it
the Company signified an intention to bargain with the Union on the basis of the
multiemployer unit covered by the agreement; and not only expressly identified the
Association as its bargaining agent, but in a substantial number of ways held the
Association out as such agent, thus at least clothing the organization with apparent
authority to represent the Company in that capactiy.
In sum, the terms of the 1961 contract, as executed by the Company, require a
conclusion, and I find, that the Association is, and has been at all material times
since such execution, the actual or apparent collective-bargaining agent of the Com-
pany; and that all journeymen plumbers, steamfitters, pipefitters, refrigeration fitters,
"I deem it immaterial that the certified unit, unlike that in the 1961 and 1963 recog-
nition clauses , does not, in terms , mention "steamfitters ," "refrigeration fitters," "gas
fitters." and "lead fitters" It is not established that these occupations ale not com-
prehended in one or another of the terms "journeymen plumbers," "pipe fitters," and
"pipe welders" as used in the certified unit On the contrary, the express terms of arti-
cle III of the 1961 contract warrant a holding, and I find, that for the purposes of this
proceeding the unit there set forth is, as the Respondent agreed by signing the contract,
"the appropriate unit certified in Case No 33-RC-480." In view of its agreement, it
appears to me that the Respondent has no standing to complain, as it does in its brief,
that the recognition clause of the 1961 and 1963 contracts "is misleading and erroneous"
and "a complete misstatement of the unit described" in the certification. Similarly, I
find no merit in a position by the Respondent to the effect that the certified unit vizualized
the inclusion of employees only of employers then represented by the Association.
Fluctuation in the composition of joint employer bargaining groups is common, and it
would be surprising, indeed, if the Association and the Union, in agreeing to the certified
unit in 1954, did not contemplate the future expansion or contraction of the group
represented by the Association, as business or other -conditions warranted
AVERILL PLUMBING & HEATING CORPORATION 1605
gasfitters, lead burners, and their apprentices, employed by employers located in New
Mexico, including Averill Plumbing & Heating Corporation, for whom Associated
Plumbing, Heating and Piping Contractors of New Mexico is the duly authorized
bargaining representative, but excluding all other trade craftsmen, office clerical
employees, plant clerical employees, guaids, and professional and supervisory employ-
ees, constitute, and have constituted at all times material to the issues here, a unit
appropriate for collective-bargaining purposes, within the meaning of Section 9(b)
of the Act.12 The record also warrants a holding, and I find, that the Union is now,
and has been at all material times, the exclusive representative of all the employees
in the unit for such bargaining purposes, within the purview of Section 9(b) of the
Act.13
In addition to its unit and agency positions, the Respondent, pointing to the pro-
vision in the bylaws that the Joint Conference Committee "in all matters of actual
negotiation of a new (or renewal) contract shall follow the general instructions of
the Board," asserts in its brief that the board of directors "did not give the Com-
mittee any instructions or authority pertaining to the 1963 negotiations." The thrust
of this position appears to be that the contract is without validity, although ratified by
the board, unless the terms were authorized by the board before their negotiation by
the committee. This thesis is not only a strained reading of the bylaws, but is out
of joint with the practical necessities and realities of collective bargaining. As is
common knowledge, bargaining negotiations are often protracted and frequently
attended by fluctuating give-and-take positions by the parties. If it were necessary
as a condition of contract validity for the committee to secure advance instructions
from the board for positions ultimately embodied in contract terms, one can readily
visualize greatly excessive delay in reaching agreement, and perhaps even a situa-
tion where the bargaining efforts of the committee would degenerate into frustra-
tion for lack of time to secure instructions in advance of taking negotiating positions.
It would be astonishing if the businessmen who adopted the bylaws intended such a
timewasting ritual. And the improbability that they did is heightened when it is
borne in mind that the president of the Association, in addition to being its "chief
executive" and manager of its business affairs, is a member of both the board of
directors and the Joint Conference Committee. Obviously, the meaning of the
requirement that the committee "follow the general instructions of the Board" is
that the committee not run counter to whatever instructions the board chooses to
give it. Plainly, too, the board may validly approve or ratify contract terms nego-
tiated by the committee whether or not prior instructions were given by the board
or followed by the committee.
The committee's "general instructions" were to proceed with negotiations with the
Union, as is plainly inferable from the minutes of the board meeting of September 10,
1962, previously mentioned. The very fact that the president, both a board and
committee member, reported on the receipt of the Union's bargaining request and
told the board that the committee was preparing to negotiate and that the board
"would keep apprised" implies, in the absence of any evidence of a contrary posi-
tion by the board, at least a tacit mandate by it that the committee proceed with
"The Respondent, in its brief, views its execution of the 1961 contract as the product
of its "individual bargaining" with the Union, and sees support for its position in the fact
that the signature page, on which both the Company and the Union signed, states that
"[i]ndividual contracts are not valid unless accepted and signed" by the Union's
"President-Business Manager." This argument appears to me to be quite beside the point,
for assuming, without deciding, that the Company executed a copy of the 1961 contract
as the result of "individual bargaining," the product of its action was that it became
a party to the agreement, with its agency and unit consequences In view of these con-
sequences, by the way, I deem it unnecessary to explore the Company's prior bargaining
history, although it may be noted, in passing, that the 1958 agreement, to which the
Company became a party by its execution of a copy of the contract, refers to the Associa-
tion as the "fully authorized agent" of the signatory contractors, and, in other respects,
such as its provisions pertaining to the Labor Management Conference Committee, reflects
a relationship of principal and collective-bargaining agent between the Company and the
Association.
13 As the unit found appropriate above is, for the purposes of this proceeding at least,
"the appropriate unit as originally certified," and since there is no evidence that the
Union has lost its status as the representative of the certified unit, the record requires
a finding that the Union represents the employees in the unit found appropriate herein.
E g, N.L.R B. v. Highland Park Manufacturing Company, 110 P. 2d 632, 640 (CA. 4).
Moreover, I see no reason not to continue to give effect to the Company's recognition of
the Union as the bargaining representative of the unit, as reflected in the 1961 contract.
1606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the negotiations. If the board chose to let its "general instructions" rest there, that
was its affair. Moreover, the Respondent itself presented evidence that the board
was satisfied that the committee had acted in accordance with whatever instructions
it had received, for the resolution of October 1963 offered and introduced as an
exhibit by the Respondent, not only ratifies the agreement reached with the Union
by the committee, but in a prefatory recital states that the committee had negotiated
the 1963 contract "under direction of the Board of Directors." In any case, bearing
in mind that the bylaws vest "the government" of the Association in the board of
directors, there can be no doubt, and I find, that the 1963 contract has been a valid
agreement between the Association and the Union at least since the passage of the
resolution in October 1963.
Having vested the Association with at least apparent authority to represent it,
and having agreed to the propriety of the multiemployer unit embodied in the 1961
contract, the Company now seeks to repudiate both the agreed unit and the 1963
contract its agent has negotiated. That it is dissatisfied with the agreement, or that
a representative of the Union told Averill before the latter signed the 1961 contract
that he would try to iron out "problems" of the Company as a "housing" plumbing
contractor, is beside the point. The Company could have withdrawn from the multi-
employer unit at any time before the negotiation of the 1963 contract began, making
the withdrawal effective with the expiration of its 1961 contract, but it did not do
so, voicing its refusal to sign the 1963 contract for the first time in September 1963,
some months after the negotiation of the contract had been completed, and it had
been signed by representatives of the Association and the Union, and a copy had
been left with the Company. Assuming for discussion purposes that that refusal
amounted to notification to the Union of the Company's withdrawal from the multi-
employer bargaining unit, and revocation of the Association's agency, the action was
untimely.14 Plainly, in the negotiations that led to the 1963 contract, both the
Association and the Union were entitled to rely on the unit agreement and agency
representations that arose when the Company became a party to the 1961 contract.
The sum of the matter is that the Company is bound by the 1963 contract and has
been so bound at least since its ratification by the Association's board of directors
in October 1963.15
It has been the general practice of the Union following the making of a contract
between it and the Association to request employer signatories of the predecessor
agreement (in other words, employers represented by the Association) to execute
copies of the new contract; and for such employers to sign the copies.16 Especially
is Averill 's statement to Saunders, made shortly after the filing of the representation
petition on September 10, 1963 , that the petition was the Company 's "answer" to the
Union 's request for execution of the contract can hardly be called an unequivocal statement
of withdrawal from the multiemployer unit, or of revocation of the Association ' s agency.
So far as the record probatively shows , the first time that the Company expressly told the
Union that it wished to bargain on an individual , rather than a multiemployer , basis,
and that it was not represented by the Association , was in the letter of October 28, 1963,
written by the Company 's counsel to the Union ' s attorney . Statements in the letter to
the effect that such positions had previously been taken are self -serving hearsay and not
a suitable basis for findings. In any case, the results here are the same whether or not
one considers Averill's "answer" to Sanders in September 1963 a withdrawal from the
multiemployer unit, or whether a position of withdrawal was taken on one or more sub-
sequent occasions . The controlling fact is that the withdrawal came after the Associa-
tion and the Union had negotiated contract terms.
n See N.L.R.B . v. Jeffries Banknote Company, 281 F. 2d 893 ( C.A 9), enfg Anderson
Lithograph Co., 124 NLRB 920; Jahn-Tyler Printing and Publishing Company, 112
NLRB 167, 169
'BAs to the practice of separate execution, see Cooper's testimony, in addition to the
copies of the 1958, 1959 , and 1961 contracts in evidence . The fact that the Company
did not sign a copy of the 1959 contract is insufficient to negate the existence of the
practice , for the record does not establish the reason why it did not do so Nor do I
find validity in a position , expressed by the Respondent in its brief , that the record estab-
lishes that " it was up to each individual member of the Association to accept or reject
the Association form of agreement." As to members who are not represented in the
bargaining negotiations, the position is beside the point As to those who bargain on
the multlemployer basis through the Association , it is without probative support in the
record. It appears to rest on a generalization by Meyer in his testimony that it is his
"understanding" that the individual Association member has an "option " whether or not
to sign the 1963 contract . This testimony is both incompetent and immaterial and would
have been excluded had there been an objection to it. Meyer's "understanding" is ob-
AVERILL PLUMBING & HEATING CORPORATION 1607
in view of this custom, the Company is obligated by the duty to bargain in good faith
imposed upon it by Section 8(d) of the Act to execute a copy of the 1963 contract.17
For the reasons stated, I find that by refusing to execute a copy of the 1963 con-
tract since its ratification by the Association's board of directors, the Company has
refused to bargain with the Union, has thereby violated Section 8(a)(5) of the Act,
and has abridged rights guaranteed employees by Section 7 of the Act, thus violating
Section 8 (a) (1) of the statute.18
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The Company's unfair labor practices described in section III, above, occurring in
connection with the operations of the Company described in section I, above, have
a close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
Upon the basis of the foregoing findings of fact, and upon the entire record in this
proceeding, I make the following:
CONCLUSIONS OF LAW
(1) The Company is, and has been at all times material to the issues in this pro-
ceeding, an employer within the meaning of Section 2(2) of the Act.
(2) The Union is, and has been at all times material to such issues, a labor organi-
zation within the meaning of Section 2(5) of the Act.
(3) The Association is, and has been at all times material to the issues, the duly
authorized representative of the Company for the purposes of collective bargaining.
(4) All journeymen plumbers, steamfitters, pipefitters, refrigeration fitters, gas-
fitters, lead burners, and their apprentices, employed by employers located in New
Mexico, including Averill Plumbing & Heating Corporation, for whom Associated
Plumbing, Heating and Piping Contractors of New Mexico is the duly authorized
bargaining representative, but excluding all other trade craftsmen, office clerical
employees, plant clerical employees, guards, and professional and supervisory employ-
ees, constitute, and have constituted at all times material to the issues, a unit appro-
priate for the purposes of collective bargaining, within the meaning of Section 9(b)
of the Act.
(5) The Union is now, and has been at all times material to the said issues, the
exclusive representative of all the employees in the aforesaid appropriate unit for
the purposes of collective bargaining, within the meaning of Section 9(a) of the Act.
viously not a basis for an assessment of the Respondent's obligation under the facts and
the law, although one may note, in passing, that the sense of testimony he gave at a
subsequent point is that it is his "understanding" that a "union contractor" (in other
words, one subject to a contract between the Association and the Union) "does not have
a right to negotiate his own contract." Needless to say, I base no findings on either
"understanding" by Meyer.
it The bargaining duty defined in Section 8(d) includes "the execution of a written con-
tract incorporating any agreement reached by either party." E.g, N.L.R.B. v. Jeffries
Banknote Company, supra
IS The unfair labor practice strike allegations rest basically on evidence that at the in-
stance of the Union a foreman and two employees who had been working for the Com-
pany at a jobsite called the Mossman project did not report for work on September 23,
1963, nor thereafter; that the reason they ceased work at the project was the Company's
initial refusal, about 2 weeks earlier, to sign the 1963 contract; and that the Union in-
formed the Respondent by letter dated September 25, 1963, that the three men were "on
strike against your company for your refusal to bargain with the Union " (The evidence
does not establish that three other employees named in the letter went "on strike ")
No picketing took place If the record warrants a finding that the work stoppage was
an unfair labor practice strike, the only utility of the finding would be a resulting right
In the two nonsupervisory employees to be reinstated, upon their unconditional request,
to their former, or substantially equivalent, positions However, the evidence Indicates
that the Company had "lost (its) contract" at the Mossman project prior to the work
stoppage, and that it had only about 5 weeks' work remaining there. Taking into account
the loss of the project contract and the Company's practice, evident from the record, of
hiring help according to its project needs, I can see no useful purpose in determining
whether the cessation of work by the two nonsupervisory employees on September 23, and
their absence from the project thereafter, amounted to an unfair labor practice strike.
Hence I do not pass on the matter
1608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(6) By failing and refusing to bargain collectively with the Union, as found above,
the Company has engaged in and is engaging in unfair labor practices within the
meaning of Section 8(a) (5) of the Act.
(7) By interfering with, restraining, and coercing employees in the exercise of
rights guaranteed them by Section 7 of the Act, as found above, the Company has
engaged in and is engaging in unfair labor practices within the meaning of Section
8(a)(1) of the Act.
(8) The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and 2(7) of the Act.
[Recommended Order omitted from publication.]
O