Colorado Fire Sprinkler Inc.

National Labor Relations Board - Administrative Judge Opinions

Mar 23, 2015

27-CA-115977 (N.L.R.B. Mar. 23, 2015)

JD–17–15
Pueblo, CO
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
COLORADO FIRE SPRINKLER INC.
and Case 27-CA-115977
27-CA-120823
ROAD SPRINKLER FITTERS LOCAL
UNION NO. 669, U.A., AFL–CIO
Julia M. Durkin, Esq., for the General Counsel.
Thomas A. Lenz, Esq. (Atkinson, Andelson, Loya, Ruud & Romo),
of Cerritos, California, for the Respondent.
William W. Osborne, Esq. and Natalie C. Moffett, Esq.
(Osborne Law Offices), of Washington, DC,
for the Charging Party.
DECISION
CHARLES J. MUHL, Administrative Law Judge. This case hinges on the nature of the
bargaining relationship between the Respondent, Colorado Fire Sprinkler Inc., and Road
Sprinkler Fitters Local Union No. 669, as well as on the question of whether the Union brought a
timely challenge to the Respondent’s cessation of benefit funds contributions. The General
Counsel alleges that the Respondent made unilateral changes to employees’ terms and conditions
of employment by ceasing those contributions following the expiration of the parties’ last
collective-bargaining agreement, as well as by offering employees a new health insurance plan
after the cessation of their union-provided insurance due to the lack of contributions. The
Respondent concedes that it made the alleged changes. However, it asserts a number of legal
justifications for doing so. Among them are that the parties had an 8(f), as opposed to 9(a),
bargaining relationship, and that the allegations are time barred by Section 10(b).
Because the contract language contained in the parties’ 2005 assent and interim
agreement meets the requirements of Staunton Fuel & Material, 335 NLRB 717 (2001), I
conclude, as discussed below, that the Respondent and the Union had a 9(a) bargaining
relationship. Accordingly, when the parties’ collective-bargaining agreement expired on March
31, 2013, the Respondent was required to continue the terms and conditions of that contract, until
such time as the parties reached either a new agreement or a bargaining impasse. The failure to
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2
make benefit funds contributions, the resulting termination of the union-provided health
insurance plan, and the offering of a new health insurance plan constituted material changes to
employees’ working conditions. The Respondent unilaterally implemented these changes and
does not argue that the parties had reached an impasse in negotiations.
5
However, I also conclude that the complaint allegations addressing the Respondent’s
cessation of benefit funds contributions and the associated termination of the union-provided
health insurance plan are time barred by Section 10(b). The Union filed the charge that forms
the basis of these allegations on October 29, 2013. The 10(b) period ran back 6 months to April
29. I find that the Respondent’s initial cessation of benefit fund contributions occurred in 10
January 2013 prior to the expiration of the parties’ contract, and that the Union had actual notice
of that cessation in mid-March 2013, outside of the 10(b) period. The Union also did not file the
charge until more than 6 months following the parties’ contract expiration on March 31, 2013.
Under these circumstances, the Union’s charge is untimely. Natico, Inc., 302 NLRB 668 (1991);
Park Inn Home for Adults, 293 NLRB 1082 (1989); Chemung Contracting Corp., 291 NLRB 15
773 (1988).
Accordingly, I conclude that the Respondent violated Section 8(a)(5) and (1) only by
offering and implementing a new health insurance plan for employees after June 1, 2013.
20
STATEMENT OF THE CASE
On October 29, 2013, Road Sprinkler Fitters Local Union No. 669, U.A., AFL–CIO (the
Union), filed an unfair labor practice charge alleging that Colorado Fire Sprinkler Inc. (the
Respondent) violated Section 8(a)(5) and (1) of the National Labor Relations Act (the Act) by 25
unilaterally discontinuing benefit funds contributions since about June 20, 2013. Region 27 of
the National Labor Relations Board (the Board) docketed this charge as Case 27–CA–115977.
On January 17, 2014, the Union filed a second charge alleging the Respondent violated Section
8(a)(5) and (1) of the Act by discontinuing contributions to the health and welfare plan as
negotiated in the parties’ collective-bargaining agreement and by implementing a new health 30
insurance plan for employees about December 2013. Region 27 docketed this charge as Case
27–CA–120823. Following an investigation into the charges, the Board’s General Counsel,
through the Acting Regional Director for Region 27, issued a consolidated complaint on August
22, 2014. The Respondent filed an answer to the complaint on September 4, 2014, denying that
it engaged in any unlawful conduct and asserting multiple affirmative defenses. 35
I conducted a trial on the complaint on December 2, 2014, in Pueblo, Colorado. Counsel
for the parties filed post–hearing briefs in support of their positions on January 6, 2015, which I
have considered. On the entire record, including my observation of the demeanor of witnesses, I
make the following findings of fact and conclusions of law.40
FINDINGS OF FACT
I. Jurisdiction and Labor Organization Status
45
The Respondent installs, services, and inspects fire sprinkler systems, principally in
commercial settings. The base of its business operations is an office in Pueblo, Colorado. On an
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annual basis, the Respondent purchases and receives at its Pueblo facility goods valued in excess
of $50,000 from points outside the state of Colorado and from other enterprises located within
the state of Colorado, each of which other enterprises receives the goods directly from points
outside the state of Colorado. Accordingly, and at all material times, I find that the Respondent
has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of 5
the Act and is subject to the Board’s jurisdiction, as the Respondent admits in its answer to the
complaint. The Respondent also admits, and I find, that the Union is a labor organization within
the meaning of Section 2(5) of the Act.
II. Alleged Unfair Labor Practices10
Owner Kent Stringer founded Colorado Fire Sprinkler in 1991. The Union represents
journeymen sprinkler fitters and apprentices. The Respondent first hired such employees in
April 1994 and consistently has employed more than one since that time. The Union’s business
agent is Richard Gessner. He is responsible for represented employees in District 4, which 15
includes Colorado and Wyoming.1
A. The Terms of the Parties’ Contracts
The Union and the Respondent first entered into an “Assent and Interim Agreement” in 20
1991, at a time when Stringer did not have any employees. From November 1, 1991, through
March 31, 2013, the parties agreed to seven, successive contracts which, by their terms, bound
the Respondent to the associated national collective-bargaining agreements negotiated by the
National Fire Sprinkler Association (NFSA) and the Union.
25
On March 28, 2005, the Respondent and the Union entered into their fifth assent and
interim agreement (2005 assent agreement). With respect to recognition, this agreement stated:
The Employer hereby freely and unequivocally acknowledges that
it has verified the Union's status as the exclusive bargaining 30
representative of its employees pursuant to Section 9(a) of the
National Labor Relations Act, as amended, for the purpose of
establishing wages, hours, and working conditions for all
journeymen sprinkler fitters, apprentices and unindentured
apprentice applicants in the employ of the Employer, and that the 35

1 Five witnesses testified at the hearing, with the two principal ones being Gessner for the Union
and Stringer for the Respondent. The record testimony, by and large, is not contradictory. As to overall
witness credibility where conflicts exist, I credit Stringer’s testimony except as otherwise, specifically
noted in this decision. None of the witnesses had extensive recall of the material events, including the
two bargaining sessions central to the unilateral change allegations. However, Stringer’s testimony was
specific and detailed with respect to the things he could recall. Gessner, in contrast, appeared to have
little recollection of his interaction with the Respondent. He often could not recall events he was asked
about or qualified his answers with phrases such as “I think.” He also frequently had to be prompted
through leading questions or have his memory refreshed with the use of affidavits previously given to the
Board for responses, including on certain critical issues. As a result, I find Stringer’s testimony to be
more reliable.
JD–17–15
4
Union has offered to provide the Employer with confirmation of its
support by a majority of such employees.
By other terms of the 2005 assent agreement, the Respondent agreed to be bound to the national
collective-bargaining agreement between NFSA and the Union, which ran from April 1, 2005, to 5
March 31, 2007 (2005 national agreement). Regarding recognition, article 3 of the 2005 national
agreement stated:
The National Fire Sprinkler Association, Inc. for and on behalf of
its contractor members that have given written authorization and 10
all other employing contractors becoming signatory hereto,
recognize the Union as the sole and exclusive bargaining
representative for all Journeymen Sprinkler Fitters and Apprentices
in the employ of said Employers, who are engaged in all work as
set forth in Article 18 of this Agreement with respect to wages, 15
hours and other conditions of employment pursuant to Section 9(a)
of the National Labor Relations Act.
The parties likewise signed assent and interim agreements in 2007 and 2010. The recognition
language in these agreements stated:20
The Employer hereby freely and unequivocally acknowledges that
it has previously confirmed to its full satisfaction and continues to
recognize the Union's status as the exclusive bargaining
representative of its employees pursuant to Section 9(a) of the 25
National Labor Relations Act, as amended, for the purpose of
establishing wages, hours, and working conditions for all
journeymen sprinkler fitters, apprentices and unindentured
apprentice applicants in the employ of the Employer.
30
The Respondent also agreed to be bound by the respective national agreements for 2007 and
2010. The recognition language in those agreements was identical to that in the 2005 national
agreement, quoted above.
The Respondent and the Union did not engage in contract negotiations at any point 35
during the time period covered by their seven assent agreements. The Union simply sent a new
agreement to Stringer, who then signed and returned it.
The 2010 national agreement required the Respondent to make monthly contributions to
the National Automatic Sprinkler Industry (NASI) Welfare Fund, the NASI Pension Fund, the40
NASI-Local 669 Industry Education Fund, and the Sprinkler Industry Supplemental (SIS)
Defined Contribution Pension Fund (collectively, the benefit funds) for hours worked by
Respondent's journeymen sprinkler fitters and apprentices. The payments to the NASI Welfare
Fund enabled the Respondent’s employees to obtain health insurance coverage through the
Union. As an owner, Stringer also received health insurance through the fund.45
JD–17–15
5
Fund payments are due on the 15th of each month for the preceding month. Gessner
receives a monthly delinquency report from the fund which identifies the employers in his
district that are behind on benefit funds contributions. The report operates on a 2-month lag. For
example, Gessner received a delinquency report on May 7, 2013, which showed nonpayments
through March 2013. (GC Exh. 8A.) 5
B. The Parties’ Communications Prior to April 29, 2013
After many years of successful business operations, the Respondent began experiencing
financial difficulties in 2010. According to Stringer, those difficulties were the result of the poor 10
economy, particularly in Pueblo, as well as competition from nonunion companies.
At the beginning of 2010, Stringer spoke to Gessner before signing the 2010 assent
agreement. Stringer advised Gessner that his business was struggling and he did not know
whether he could comply with the obligations of the 2010 national agreement. Following the 15
conversation, Stringer waited a couple of months until June 2010, but did ultimately sign the
2010 assent agreement.
Via letter dated November 30, 2012, the Union notified the Respondent of its intent to
terminate the 2010 national agreement and negotiate a new national contract. Around this same 20
time, Stringer met with Gessner and again told him that the company was struggling. Stringer
said he could not sign a new contract if he did not get some kind of economic relief from the
Union. He specifically told Gessner the economy would not support his complying with the
contract.
25
The Respondent stopped making monthly benefit funds contributions beginning in
January 2013, three months prior to the expiration of the 2010 national agreement.2
In February 2013, the Union sent another assent and interim agreement to Stringer.
Gessner then called Stringer and asked him if he was going to sign the agreement. Stringer told 30
him no, stating “I won’t enter into a contract I can’t comply with.” (Tr. 170.)
The 2010 national agreement expired on March 31, 2013. In that same month, Gessner
would have received the fund’s delinquency report indicating the Respondent had not made the
benefit fund contributions for January.35
In early April 2013, multiple employees advised Gessner that Stringer had a meeting with
them on April 5 where he stated he was going to have to go nonunion because he could no longer

2 The documentary evidence in the record suggests that the Respondent stopped making
contributions even earlier, in December 2012. A letter from the NASI funds dated March 4, 2013, to the
Respondent noted delinquent payments for December 2012 and January 2013. (R. Exh. 6.) Also in
March 2013, Stringer and employees of the Respondent received “Forecast Termination” letters from the
fund stating that their health insurance would be terminated on March 31, 2013, due to delinquent
contributions (R. Exhs. 2-5.) Gessner testified that employees lose their insurance after four months of
delinquent fund payments (Tr. 44), meaning a such a termination would be based on the cessation of
contributions in December 2012. However, both Gessner and Stringer testified that the delinquent
contributions began in January 2013 and neither party contends otherwise in their briefs.
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afford to be a union contractor. Within about a week, and before April 29, a conversation
between the two ensued. Stringer told Gessner again that the national agreement’s wages and
benefits were too much and he could not compete with a nonunion competitor. Gessner told
Stringer that he had to continue terms and negotiate a new contract. Stringer replied that he was
not aware that he had to do either. Stringer said he wanted to remain a union contractor but 5
could not afford the funds. Gessner mentioned that the Respondent had an outstanding debt with
the NASI funds, and advised Stringer that NASI made settlement agreements for contractors that
fell behind on fund payments. Stringer told Gessner that he “was going to catch up the funds
through the end of the contract,” i.e. the funds payments through March 2013. (Tr. 202.)
10
On April 25, 2013, the Union filed an unfair labor practice charge with the NLRB which
alleged: “On or about April 1, 2013, and continuing, the Employer has unilaterally changed the
terms and conditions of employment by, inter alia, discontinuing contributions to benefit funds.”
(GC Exh. 4.) At the time of this charge filing, the Respondent was delinquent on benefit funds
payments for January, February, and March 2013. Gessner was aware of this, having received a 15
copy of a letter from counsel for the funds to Stringer noting the delinquency. (GC Exh. 6.)
In a letter dated May 2, Stringer asked the Union to withdraw its NLRB charge because
“negotiations would be far more productive” and he “would like to resolve the benefits issues
between the Union[,] the Trust and my firm.” (GC Exh. 5.) Based upon Stringer’s expression 20
that he was willing to negotiate a new contract, the Union withdrew the charge on May 10. (GC
Exhs. 9, 10.) The withdrawal was not based on any resolution of the delinquent benefit funds
contributions.3 (Tr. 62.)

C. The June 21 Bargaining Session25
On June 21, the parties held their first bargaining session for a new contract at the
Union’s hall in Pueblo. Gessner and Michael Lee, a member of the Union’s western region
executive board, attended for the Union. Stringer, his brother Marlin Stringer, his daughter
Sarah Blackwell, and his son-in-law Robert Blackwell, attended for the Respondent. Most of the 30
discussion that day centered on the Respondent’s financial difficulties and potential measures the
Union could take to help the company weather the storm.
Regarding the delinquent fund payments, Stringer reiterated that they were too expensive
for him and that he was there to negotiate a new contract. He expressed concern to Gessner that 35
the Union was putting forth the 2013 national agreement, and the associated benefit funds
contributions, as their initial contract proposal. Stringer noted his ongoing struggle over
repaying the contributions he owed under the 2010 national agreement. When Stringer asked
Gessner whether the 2013 national agreement was the Union’s proposal, Gessner responded “No,
that is off the table.”4 (Tr. 175-176; GC Exh. 26.) 40

3 The findings of fact regarding the pre-April 29 communications, in particular the conversations
between Stringer and Gessner, are based on the credited testimony of both individuals. Each person
remembered different portions of these conversations and their recollections were not contradictory.
4 At the hearing, the main factual dispute was over what happened next. Stringer and Sarah
Blackwell testified that Gessner then said “you’re not accumulating debt.” Lee testified that Gessner said
he could not do anything about the delinquent fund payments, and Gessner said that he did not agree to
waive or resolve the benefit funds issues. As discussed more fully below, whether Gessner said “you’re
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7
With respect to health insurance, Stringer told Gessner that he eventually would have to
get insurance for his people.
At the end of the meeting, Stringer provided his initial contract proposals to the Union.
The proposals included deleting all benefit funds contributions and providing employees with a5
different health insurance plan.5 (GC Exh. 18.) Gessner said he would look them over and
provide them to his business manager. Gessner also told Stringer he would call him to schedule
the next negotiation meeting.
At some, unidentified point after this meeting but prior to the next bargaining session on 10
October 29, the Respondent offered its fitters and apprentices the opportunity to join an Anthem
Blue Cross Blue Shield health insurance plan which its office employees had access to. At least
seven employees signed up for this plan. The Respondent stipulated that it did this without first
notifying or bargaining with the Union. Stringer’s action was prompted by an employee
requesting to get on the office plan, after the employee’s wife attempted to use the union health 15
insurance plan for their child’s medical care and was denied.
On a date after the June 21 session, the Respondent also paid off its delinquent fund
contributions, but only through March 31, 2013.
20
D. The October 29 Bargaining Session
The parties did not meet again for negotiations until October 29, more than 4 months
later. Gessner attributed the delay to things being hectic after a change in business managers.
However, he also indicated that he spoke with the new business manager around the end of July 25
concerning the Respondent’s bargaining proposals. The Respondent did not contact the Union
about the delay prior to Gessner requesting another bargaining session on October 16.

not accumulating debt” does not impact the outcome of the case. However, if a credibility determination
was required, I would find that Gessner did not make that statement based upon the record evidence.
Unbeknownst to and without the consent of the Respondent, Lee was recording what occurred at this
bargaining session. During cross examination, counsel for the General Counsel played a portion of the
recording following Gessner’s statement that the 2013 national agreement was off the table, and both
Stringer and Blackwell acknowledged that the recording did not contain the second statement. Stringer
also testified that he previously listened to the entire recording and did not hear Gessner’s alleged
statement. Sarah Blackwell’s contemporaneous notes document Gessner’s statement that the 2013
national agreement was off the table, but do not contain the alleged statement concerning no debt being
accumulated. Finally, I find it unlikely that Gessner would make such a statement in light of his
previously stated position that the Respondent had to continue the terms and conditions of the 2013
national agreement while a new contract was being negotiated.
5 The Respondent’s proposal included the language “freeze pension contributions for term of
agreement.” It is not clear from that plain language whether the proposal meant to completely stop
pension fund contributions or freeze the contributions at the level contained in the 2010 national
agreement. However, given Stringer’s consistent position with Gessner prior to these proposals being
made, I find the proposal was intended to stop the Respondent’s contributions to the pension funds
following the 2010 national agreement.
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8
On October 29, Gessner informed Stringer that some or all of the employees had lost
their health insurance. Stringer replied that he had allowed the employees to join the office
program. Gessner then said that they had violated the contract by doing that and the Union
would file charges. Gessner asked for a copy of the new health insurance plan. Gessner also
stated that Stringer would have to get his ongoing fund liabilities caught up. He showed Stringer 5
a copy of an unfunded withdrawal liability letter from the benefit funds, which indicated that the
Respondent would owe $1.2 million if it withdrew from the plans.
On this same date, the Union filed an NLRB charge in Case 27–CA–115977 which
alleged the following violation of Section 8(a)(5): “On or about June 20, 2013, and continuing, 10
the Employer unilaterally changed the terms and conditions of employment by, inter alia,
discontinuing contributions to benefit funds.”
ANALYSIS
15
I. The 2005 Assent Agreement Established a 9(a) Bargaining Relationship.
The General Counsel’s complaint alleges that the Respondent unlawfully and unilaterally
discontinued contributions to union benefit funds since about April 1, 2013, and ceased offering
health insurance through the Union’s health and welfare fund and began offering employees a 20
new health insurance plan after June 1, 2013. These allegations are premised on the Respondent
and the Union having a 9(a), as opposed to 8(f), bargaining relationship. The General Counsel
contends the 9(a) relationship is established solely by the contract language in the parties’ 2005
assent agreement.
25
A contract provision will be independently sufficient to establish a union’s 9(a)
representation status where the language unequivocally indicates (1) the union requested
recognition as the majority or 9(a) representative of the unit employees; (2) the employer
recognized the union as the majority or 9(a) bargaining representative; and (3) the employer’s
recognition was based on the union’s having shown, or having offered to show, evidence of its 30
majority status. DiPonio Construction Co., Inc., 357 NLRB No. 99 (2011); Staunton Fuel &
Material, 335 NLRB 717 (2001). A reference to Section 9(a) in the contract language is
indicative of the parties’ intent to establish such a bargaining relationship. In addition, the
request for recognition can be fairly implied from the contract language stating that the employer
has granted such recognition.35
The language of the 2005 assent agreement meets the requirements of Staunton Fuel &
Material based upon the clear and unambiguous first sentence of the provision. That sentence
states the Respondent “freely and unequivocally acknowledges that it has verified the Union's
status as the exclusive bargaining representative of its employees pursuant to Section 9(a) of the 40
National Labor Relations Act.” By acknowledging that it has “verified” the Union’s majority
status and by signing the assent agreement, the Respondent recognized the Union and the
Union’s request for recognition can be fairly implied out of that grant of recognition. In
addition, the Respondent could not have “verified” majority status without the Union having
shown evidence of its majority support. The contract language indicating that the Union 45
“offered to provide the Employer with confirmation of its support by a majority of such
JD–17–15
9
employees” is superfluous, but also would demonstrate that the third requirement of Staunton
Fuel & Material has been met.
The 2005 national agreement contains no provisions to the contrary. Rather, the
recognition clause in that agreement reiterates that the Respondent “recognize[s] the Union as 5
the sole and exclusive bargaining representative” of its employees “pursuant to Section 9(a).”
Furthermore, nothing in the subsequent assent or national agreements conflicts with the Union’s
previously established 9(a) status.
My conclusion is consistent with the Board’s decision in King’s Fire Protection, Inc., 10
358 NLRB No. 156 (2012). That case involved the same union and the identical contract
language, with the employer there also contesting the Union’s 9(a) status. The Board adopted
the administrative law judge’s conclusion that the contract language, standing alone, was
sufficient to establish a 9(a) bargaining relationship. While the decision is not binding precedent
in light of NLRB v. Noel Canning, __ U.S. __, 134 S.Ct. 2550 (2014), I find the Board’s analysis 15
persuasive and I adopt it.6
In its brief, the Respondent urges me to follow the D.C. Circuit’s decision in Nova
Plumbing, Inc. v. NLRB, 330 F.3d 531 (D.C. Cir. 2003). In that case, the court of appeals found
that 9(a) status could not be attained solely by contract language, but required an evidentiary 20
showing that a majority of employees supported the union at the time the contract was agreed to.
The decision was grounded in concern that the Board’s Staunton Fuel & Material approach
could result in granting 9(a) status to a union that does not have the majority support of
employees in the bargaining unit, despite contract language indicating that such a majority exists.
This case certainly highlights the concern. Stringer signed the first assent agreement in 1991,25
when he had no employees. Nonetheless, the agreement still stated the Respondent confirmed
that a majority of its sprinkler fitters “have designated, are members of, and are represented by”
the Union. Although he hired employees in 1994, Stringer simply signed subsequent assent
agreements in 1994, 1997, 2000, and 2005 which union representatives mailed to him, without
engaging in any negotiations. (Tr. 158–159.) Despite the contract language indicating that 30
majority status was “verified,” Stringer could not recall the Union ever presenting him with
evidence of its majority support. (Tr. 160.) That seems likely in light of the sequence of events.
Even if it had, such a showing logically would have occurred in 1994, not in 2005.

Nonetheless, a judge’s duty is to apply established Board precedent which the U.S. 35
Supreme Court has not reversed. It is for the Board, not me, to determine whether Board
precedent should be altered. Austin Fire Equipment, LLC, 360 NLRB No. 131, slip op. at 2 fn. 6
(2014). Under extant Board precedent, the contract language in the 2005 assent agreement meets
the Staunton Fuel requirements.
40
The Respondent’s other arguments regarding the contract language can be dispensed with
in short order. The Respondent contends that it should not be bound by the terms of the assent

6 The King’s Fire Protection case remains pending. The Board filed a petition for enforcement
of its order in the 3rd Circuit Court of Appeals. In light of the Noel Canning decision, the court of
appeals remanded the case to the Board, which accepted the remand on September 18, 2014. The Board
is now reconsidering the case with its full, five-member compliment.
JD–17–15
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agreements it entered into with the Union because the parties did not negotiate those agreements.
However, Stringer signed the agreements as the Respondent’s owner and, by that act, bound the
Respondent to the contracts’ terms. The Respondent also argues that the recognition language in
the assent agreements in 1991, 1994, 1997, and 2000 was insufficient to establish a 9(a)
relationship. Those agreements are irrelevant in light of the fact that the General Counsel’s 5
complaint alleges the 9(a) relationship began with the 2005 assent agreement. Finally, the
Respondent asserts that Stringer never intended to establish a 9(a) bargaining relationship and
the Union’s conduct indicated it did not believe it had that status. While Stringer may have
thought the relationship could be terminated at the expiration of a contract, his intent, and the
Union’s beliefs, are irrelevant in light of the clear and unambiguous contract language in the 10
2005 assent agreement. Extrinsic evidence regarding the parties’ intent is not considered where
contract language is clear and unambiguous, and thereby conclusively notifies the parties that a
9(a) relationship is intended. Madison Industries, Inc., 349 NLRB 1306, 1308 (2007).
Accordingly, I find that the parties’ 2005 assent agreement established a 9(a) bargaining 15
relationship between the Respondent and the Union.
With such a relationship established, the Respondent cannot now, almost a decade after
signing the 2005 assent agreement, challenge the 9(a) status of the Union. Staunton Fuel &
Material, supra, 335 NLRB at 719-720 fns. 10, 14. Section 10(b) of the Act requires that such a 20
challenge be filed within 6 months after written recognition was given. Once that period expires,
an employer may terminate its bargaining obligation only by affirmatively showing that the
union lost majority support, pursuant to the requirements of Levitz Furniture Co., 333 NLRB 717
(2001). No such showing was made here.
25
II. The Respondent Unilaterally Changed Employees’ Terms and Conditions of
Employment by Ceasing Benefit Funds Contributions and the Union-Provided Health
Insurance Plan, as well as by Implementing a New Health Insurance Plan.
Where parties are engaged in negotiations for a collective-bargaining agreement, an 30
employer’s obligation to refrain from unilateral changes extends beyond the mere duty to
provide notice and an opportunity to bargain about a particular subject matter; rather, it
encompasses a duty to refrain from implementation at all, absent overall impasse on bargaining
for the agreement as a whole. NLRB v. Katz, 369 U.S. 736 (1962); Bottom Line Enterprises, 302
NLRB 373 (1991). Pension, health, and welfare plans provided for in an expired contract 35
constitute a term and condition of employment that survives expiration, and cannot be altered
without bargaining. Butera Finer Foods, 343 NLRB 197 (2004); Hardesty Co., Inc., 336 NLRB
258 (2001).
While negotiating with the Union on a new contract, the Respondent was required to 40
maintain the status quo with respect to employees’ terms and conditions of employment. This
included making benefit funds payments and continuing the health insurance provided by the
Union’s NASI Welfare Fund. The Respondent stipulated that it ceased making benefit funds
contributions as of April 1, 2013, which resulted in employees losing their union-provided health
insurance. It also stipulated that, at some point between June and October 2013, it offered 45
bargaining unit employees a new health insurance plan and signed up at least seven employees.
Without question, these actions constituted changes to employees’ terms and conditions of
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employment. Moreover, the Respondent made these changes unilaterally and it does not contend
that the parties had reached a bargaining impasse on a new contract. Thus, the unilateral changes
violated the Act, absent a valid affirmative defense.
III. The Complaint Allegations Regarding the Cessation of Benefit Funds Contributions 5
and of the Union-Provided Health Insurance Plan Are Time Barred by Section 10(b).
In its answer, the Respondent affirmatively asserted a 10(b) defense to both unilateral
change allegations in the consolidated complaint, claiming they are time barred.
10
Section 10(b) of the Act states that “no complaint shall issue based upon any unfair labor
practice occurring more than six months prior to the filing of the charge with the Board and the
service of a copy thereof upon the person against whom such charge is made.” The 10(b) period
begins to run when the aggrieved party receives actual or constructive notice of the conduct that
constitutes the alleged unfair labor practice. United Kiser Services, LLC, 355 NLRB 319, 319–15
320 (2010). The Respondent bears the burden of proving this defense.
The General Counsel’s complaint allegation regarding the benefit funds contributions is
based on the charge filed by the Union on October 29, 2013. Thus, the 10(b) period runs back 6
months to April 29 and the Respondent must prove that the Union had actual or constructive 20
notice of the cessation of benefit funds contributions prior to then.
In cases like this one alleging a cessation of fund payments, 10(b) bars a finding that an
employer violated the Act by failing to make contributions after the expiration of the contract
setting forth the payment obligations, when the charge is filed more than 6 months after 25
expiration of the contract and the union had notice of the failure outside the 10(b) period.
Chemung Contracting Corp., 291 NLRB 773, 774 (1988). The Board previously has dealt with
factual situations comparable to the one in this case and concluded that the General Counsel’s
allegations were time barred. In Natico, Inc., 302 NLRB 668 (1991), the contract requiring the
fund payments expired on December 16, 1985, the payment cessation occurred 20 months 30
earlier, and the charge was not filed until August 19, 1986, or more than 8 months following
expiration. In Park Inn Home for Adults, 293 NLRB 1082 (1989), the contract expired on
October 31, 1976, the payment cessation occurred 2 years prior to expiration, and the charge was
not filed until September 11, 1978, or nearly 2 years following expiration. Here, the Union had
actual notice of the Respondent’s cessation of benefit fund contributions in mid-March 201335
when Gessner received the delinquency report for January 2013. In addition, the contract
expired on March 31, 2013, but the Union did not file its second charge until October 29, 2013.
Thus, the bright-line test of Chemung Contracting has been met in this case, because the Union
had notice of the cessation of payments outside the 10(b) period and did not file its charge until
almost 7 months following contract expiration. 40
This case does involve the additional fact, not present in Natico or Park Inn Home, that
the Respondent ultimately cured its delinquent fund contributions through the expiration of the
parties’ last contract. However, I find that additional fact does not warrant a different outcome.
No dispute exists that the Respondent stopped making benefit funds contributions in January 45
2013. That conduct went beyond a statement of intent or threat and that was when the unfair
labor practice occurred. Between that missed payment and April 29, Stringer consistently
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12
conveyed to Gessner that he viewed the bargaining relationship as a temporary one, terminable at
the end of the contract, and that he would not sign another contract that required the benefit
funds contributions. He also told Gessner he was not aware he had to continue employees’ terms
and conditions of employment. Stringer stated to Gessner that he would try to repay his
delinquent funds contributions, but only through the March 31 expiration of the contract. 5
Stringer gave no indication whatsoever that he would continue payments after the contract
expired. Based on these communications, the Union knew, or should have known, that the
Respondent would not make any contributions following the expiration of the parties’ contract.
Stringer’s actions after April 29 regarding the contributions likewise were consistent. 10
The Union withdrew the first charge on May 10 after Stringer expressed that negotiations, on a
new contract, would be far more productive. He gave no assurances, express or implied, that he
would resume benefit funds contributions in exchange for the withdrawal of the charge. When
he stated in his May 2 letter that he would like to resolve the benefits issues with the Union, he
could only have been referencing fund contributions through the March 2013 end of the prior 15
contract, because the April payment was not due until May 15. In a letter dated May 20, he
thanked the Union for withdrawing the charge “since we can concentrate on trying to enter into a
contract.” (GC Exh. 12.) At the June 21 meeting, Stringer again told Gessner that the funds
were too expensive for him, then provided a contract proposal pursuant to which all benefit funds
contributions would cease. Thereafter, Stringer paid off his delinquent benefit funds payments, 20
but only through March 31, 2013.
Thus, the Respondent did not give conflicting signals or engage in ambiguous conduct
after it repudiated its contractual obligation and ceased making benefit funds contributions in
January 2013. Rather, Stringer made it clear that he would try to make up delinquent payments 25
through the end of the contract, but would not resume the contributions thereafter.
Accordingly, I conclude that the General Counsel’s allegation as to the cessation of
contributions to the benefit funds is time barred. I also find that the 10(b) bar applies to the
complaint allegation addressing the Respondent’s cessation of offering health insurance through 30
the NASI Welfare Fund. That allegation is tied to the Respondent’s cessation of benefit funds
contributions. Gessner knew employees would lose their health insurance after the 4th month of
delinquent contributions. (Tr. 44.) The Union also received copies of the “forecast termination”
letters sent to employees in March 2013, which altered Gessner to the possibility that they would
lose their health insurance as early as March 31.35
However, Section 10(b) does not bar the allegation concerning the Respondent’s
implementation of the new health insurance plan at some point between June and October 2013.
Stringer did not give Gessner clear and unequivocal notice of that unilateral change at the June
21 bargaining session. He expressed only the possibility that he might offer his employees a new 40
health insurance plan in the future. The clear and unequivocal notice of that change occurred at
the October 29 session, when Stringer told Gessner he had allowed his employees to join the
office plan. The Union’s charge asserting that unilateral change was filed on January 17, 2014.
The filing was well within the 10(b) period, which ran through April 29, 2014.
45
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13
Therefore, I find that the Respondent unlawfully offered and implemented a new health
insurance plan after June 1, 2013, at a time when it was bargaining for a new collective
bargaining agreement and had not reached impasse.
IV. The Respondent’s Remaining Affirmative Defenses Were Not Substantiated.5
The Respondent contends that its cessation of benefit funds contributions and subsequent
implementation of a new health insurance plan were justified due to economic exigencies. See
RBE Electronics of S.D., Inc., 320 NLRB 80 (1995). The economic exigency exception carries a
heavy burden. An employer must show that a unilateral change was prompted by extraordinary, 10
unforeseeable events having a major economic effect that mandates immediate action. A loss of
significant accounts or contracts or operation at a competitive disadvantage do not justify
unilateral action. Here, the Respondent’s financial difficulties began back in 2010 and were due
to the poor economy and increased competition from nonunion companies. Stringer also raised
concern over the benefit funds contributions prior to signing the 2010 assent agreement. 15
Because the Respondent’s financial difficulties began at least 3 years before it ceased making
benefit funds contributions, these circumstances were not unforeseen, extraordinary events that
would justify unilateral changes.
The Respondent also defends its unilateral actions by contending the Union engaged in 20
dilatory tactics during bargaining. See M&M Contractors, 262 NLRB 1472 (1982). This
defense cannot apply to the benefit funds allegation, because the Respondent ceased making
contributions prior to the parties’ first bargaining session on June 21 and it was at that session
where the Respondent first proposed eliminating the contributions. The Respondent did offer the
new health insurance plan to employees during a 4-month delay between the June and October 25
bargaining sessions. However, the Respondent made no effort during that period to reach out to
the Union and expedite negotiations. This tacit acceptance of the delay prevents the Respondent
from using it to justify unilateral action.
Finally, the Respondent contends that the Union either consented to the unilateral 30
changes or waived its right to bargain over them. With respect to the cessation of benefit funds
contributions, the Respondent points to the alleged statement by Gessner in the June 21
bargaining session that “you’re not accumulating debt.” Even if I were to find that Gessner
made this statement, its plain language neither constitutes the Union’s agreement to the cessation
of benefit funds contributions, nor does it reflect a clear and unmistakable waiver of the Union’s 35
right to bargain over continued benefit funds contributions. As to health insurance, the Union
did not have clear and unequivocal notice of the Respondent’s change until the October 29
bargaining session. Gessner immediately objected to the change. That likewise does not
constitute consent or waiver. The Union was not required to object at the June 21 session,
because Stringer only indicated it was a possibility he would offer new insurance.40
V. LEGAL FINDINGS SUMMARY
To summarize, then, I conclude that the parties have a 9(a) bargaining relationship.
Given that relationship, the Respondent was required to maintain the status quo as to employees’ 45
terms and conditions of employment following expiration of the 2010 national agreement. Its
cessation of benefit funds contributions and of the associated health insurance plan, as well as its
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14
implementation of a new health insurance plan, were unlawful unilateral changes. However, the
complaint allegations regarding the cessation of benefit funds contributions and the cessation of
offering the related union health insurance plan are time barred by Section 10(b). Thus, the
Respondent violated the Act only by its offering and implementation of a new health insurance
plan after June 1, 2013.5
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.10
2. The Union is a labor organization within the meaning of Section 2(5) of the Act.
3. The Respondent has violated Section 8(a)(1) and (5) by unilaterally offering and
implementing a new health insurance plan for employees at some point between June 15
and October 2013.
4. The above unfair labor practice affects commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
20
5. The complaint allegations that the Respondent violated Section 8(a)(5) and (1) of the
Act by unilaterally ceasing to make benefit funds contributions from April 1, 2003,
forward, and the resulting cessation of the employees’ health insurance plan provided
through the NASI Welfare Fund, are time barred by Section 10(b) of the Act and
must be dismissed. 25
REMEDY
Having found that the Respondent engaged in certain unfair labor practices, I find that it
must be ordered to cease and desist and to take certain affirmative action designed to effectuate 30
the policies of the Act. Although I must include in the order a requirement that the Respondent
rescind the unilateral change it made at some point from June to October 2013 to employees’
health insurance by offering unit employees a new health insurance plan, I note that such a
rescission of the employees’ new health insurance coverage only will occur upon the request of
the Union. 35
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended7
ORDER
40
The Respondent, Colorado Fire Sprinkler Inc., Pueblo, Colorado, its officers, agents,
successors, and assigns, shall

7 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.
JD–17–15
15
1. Cease and desist from
(a) Failing and refusing to bargain collectively with Road Sprinkler Fitters Local
Union No. 669, U.A., AFL–CIO (the Union) as the exclusive collective
bargaining representative of its unit employees (journeymen sprinkler fitters, 5
apprentices, and unindentured apprentice applicants) by making unilateral
changes to the health insurance benefits of those employees in the absence of
an overall lawful bargaining impasse.
(b) In any like or related manner interfering with, restraining, or coercing 10
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.
15
(a) Upon request of the Union, rescind the unilaterally implemented changes to
unit employees’ health insurance coverage made after June 1, 2013.
(b) Within 14 days after service by the Region, post at its facility in Pueblo,
Colorado, copies of the attached notice marked “Appendix.”8 Copies of the 20
notice, on forms provided by the Regional Director for Region 27, after being
signed by the Respondent's authorized representative, shall be posted by the
Respondent and maintained for 60 days in conspicuous places including all
places were notices to employees are customarily posted. In addition to
physical posting of paper notices, notices shall be distributed electronically, 25
such as by email, posting on an intranet or internet site, and/or other electronic
means, if the Respondent customarily communicates with its employees by
such means. Reasonable steps shall be taken by the Respondent to ensure that
the notices are not altered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the Respondent has 30
gone out of business or closed the facilities involved in these proceedings, the
Respondent shall duplicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed by the Respondent
in the position employed by the Respondent at any time since June 1, 2013.
35
(c) 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

8 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.”
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16
Regional Director attesting to the steps the Respondent has taken to comply.
Dated, Washington, D.C. March 23, 2015
5
________________________
Charles J. Muhl
Administrative Law Judge
10
JD–17–15
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 Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT fail or refuse to bargain collectively with Road Sprinkler Fitters Local Union
No. 669, U.A., AFL–CIO (the Union) as the exclusive collective bargaining representative of our
unit employees (journeymen sprinkler fitters, apprentices, and unindentured apprentice
applicants), by unilaterally changing the health insurance benefits of unit employees in the
absence of an overall lawful bargaining impasse.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
WE WILL, only upon request of the Union, rescind the unilaterally implemented changes to unit
employees’ health insurance coverage made after June 1, 2013.
COLORADO FIRE SPRINKLER INC.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
600 17th Street, 7th Floor, North Tower, Denver, CO 80202-5433
(303) 844-3551, Hours: 8:30 a.m. to 5 p.m.
JD–17–15
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/27-CA-115977 or by using the
QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National
Labor Relations Board, 1099 14th Street, N.W., Washington, D.C. 20570, or by calling (202) 273-1940.
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 BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (303) 844-6647.