Den-Ral, Inc.

National Labor Relations Board - Board Decisions

Nov 4, 1994

315 N.L.R.B. 538 (N.L.R.B. 1994)

538
315 NLRB No. 70
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondents have requested oral argument. The request is
denied as the record, exceptions, and briefs adequately present the
issues and the positions of the parties.
2 The Respondents contend that the judge exhibited bias toward the
Respondents. After a careful review of the record, we are satisfied
that this allegation is without merit.
We adopt the judge’s finding that Local 577’s withdrawal from
group bargaining was timely and unequivocal. On the facts of this
case, we find it unnecessary to pass on whether Retail Associates,
120 NLRB 388 (1958), is applicable here. We note that, as the judge
found, bargaining over the contractual reopener in March and April
1991 was based on the explicit agreement by the parties that any
party had the option, at any time, of ceasing participation in contin-
ued group bargaining if it so desired, and that Local 577 expressed
its intention to withdraw in June 1991 and again on March 4, 1992.
In dismissing the Respondents’ ‘‘counterclaim’’ that Local 577
should be found in violation of Sec. 8(b)(3), the judge noted that the
Respondents failed to file a charge alleging that Local 577 violated
Sec. 8(b)(3). We take administrative notice that on May 10, 1993,
such a charge was filed in Case 9–CB–8543 and that the Regional
Director approved the withdrawal of the charge on June 1, 1993.
1 Of the four named Employer-Respondents in this proceeding,
Den-Ral, Inc. and Early Construction Company entered into settle-
ment agreements with the Charging Party to which the General
Counsel did not object and which I approved on the record. Thus
the original caption is retained for purposes of conformity with prior
records and proceedings notwithstanding the Den-Ral, Inc. and Early
Construction Company are no longer parties.
2 Respondents appended to its answer a motion to dismiss the
complaint along with a motion for a more particular statement and
a counterclaim. The Division of Judges referred the motion to dis-
miss directly to the Board on February 3, 1993, pursuant to Sec.
102.24 of the Board’s rules. On February 11, 1993, the General
Counsel filed an opposition to Respondents’ motion to dismss and
on February 17, 1993, Respondents filed a reply thereto.
On May 5, 1993, the Board, in an upublished Order, denied Re-
spondents’ motion to dismiss and remanded the matter to the Re-
gional Director for further appropriate action. The Board thus re-
jected Respondents’ contention that the Union, having filed a Sec.
301 action (alleging violation of the collective-bargaining agreement)
prior to filing the unfair labor practice charge gave the Federal dis-
trict court ‘‘prior and primary’’ jurisdiction over the issues raised in
the Board complaint, thereby depriving the Board of jurisdiction.
The Board ruled that the Board and court had concurrent jurisdiction
over alleged violations of the collective-bargaining agreement. See
Smith v. Evening News, 37 U.S. 195, 197 (1962).
Secondly, the Board rejected Respondents’ contention that the
complaint be dismissed because the Charging Party, Local 577, is
not the party to whom Respondents owe a bargaining obligation. The
bargaining obligation flows apparently only to the International
Union with which Respondents have a collective-bargaining agree-
ment. The Board held that an unfair labor practice charge may be
filed by any person including a local union notwithstanding that Re-
spondents’ collective-bargaining agreement may actually be with the
International Union. See Postal Service, 306 NLRB 565 (1992). The
Board thus rejected Respondents’ contention that the Board is with-
out jurisdiction because the Local Union lacks standing to file the
charge.
Lastly, there is Respondents’ motion or a more particular state-
ment, requesting ‘‘a more particular statement of the factual basis
upon which the Complaint is issued . . . in order that Respondents
may adequately respond to said allegations and be prepared to meet
Den-Ral, Inc. and United Association of Journey-
men and Apprentices of the Plumbing and
Pipefitting Industry, of the United States and
Canada, Local No. 577, AFL–CIO
Ross Brothers Construction Company and United
Association of Journeymen and Apprentices of
the Plumbing and Pipefitting Industry, of the
United States and Canada, Local No. 577,
AFL–CIO
The Early Construction Company and United Asso-
ciation of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry, of the
United States and Canada, Local No. 577,
AFL–CIO
Huntington Piping, Inc. and United Association of
Journeymen and Apprentices of the Plumbing
and Pipefitting Industry, of the United States
and Canada, Local No. 577, AFL–CIO. Cases
9–CA–30188, 9–CA–30189, 9–CA–30190, and 9–
CA–30191
November 4, 1994
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND DEVANEY
On September 8, 1993, Administrative Law Judge
Robert W. Leiner issued the attached decision. The Re-
spondents filed exceptions and a supporting brief, and
the General Counsel and the Charging Party filed an-
swering briefs.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs1 and has
decided to affirm the judge’s rulings, findings,2 and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondents, Ross Brothers Construc-
tion Company, Ashland, Kentucky, and Huntington
Piping, Inc., Huntington, West Virginia, their officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
Engrid Emerson Vaughan, Esq., for the General Counsel.
C. Robert Schaub, Esq., of Huntington, West Virginia, for
Respondent Employers.
Gary A. Snyder, Esq. (Snyder, Rakay & Spicer), of Dayton,
Ohio, for the Charging Party.
DECISION
STATEMENT OF THE CASE
ROBERT W. LEINER, Administrative Law Judge. This con-
solidated matter1 was heard on May 18 and 19, 1993, in
Huntington, West Virginia, upon the General Counsel’s con-
solidated complaint, dated January 8, 1993, and Respondents’
timely filed answer served on January 21, 1993.2 In sub-
539DEN-RAL, INC.
the issues intended to be presented by the General Counsel.’’ Not
only had Respondents simultaneously filed their answer without par-
ticularization as prayed for, but there is no mention of the particular
allegations in the complaint forming the basis for Respondents’ re-
quest. I regard the request for particularization to be without merit
particularly because it fails to specify in what regard the allegations
of the complaint may not be fully answered under the Board’s rules.
3 As above noted, Respondents appended to their answer a ‘‘coun-
terclaim’’ alleging that the failure of Local 577 to meet and bargain
in good faith for the purpose of arriving at an agreement constituted
a violation of Sec. 8(b)(3) of the Act. Respondents assert that this
violation is of such dimension that the complaint should not only be
dismissed but that the Board find that Local 577 violated Sec.
8(b)(3) of the Act. The counterclaim is dismissed as without merit.
Respondents, having failed to file a charge alleging violation of Sec.
8(b)(3) of the Act, and the Board having failed to issue a complaint
alleging such a violation, the Board, sua sponte, may not issue an
order finding a violation of that section. The parties, not the General
Counsel or the Board, initiate unfair labor practice proceedings.
4 The underlying unfair labor practice charge in Case 9–CA–30189
against Ross Brothers Construction Company was filed by Local
577, Plumbers, AFL–CIO, on November 30, 1992, with service on
Respondent Ross on December 1, 1992. The charge in Case 9–CA–
30191 against Huntington Piping, Inc. was filed by Local 577,
Plumbers, on November 30, 1992, and served on Respondent Hun-
tington Piping on December 1, 1992.
stance, the consolidated complaint alleges violations of Sec-
tion 8(a)(1) and (5) of the National Labor Relations Act (the
Act) in that Respondents failed and refused to bargain collec-
tively in good faith with the exclusive collective-bargaining
representative of their employees within the meaning of Sec-
tion 8(d) of the Act. Particularly, that Respondents’ failure
and refusal to pay the wages, specified in the agreement to
which they are bound, amounted to the repudiation of a wage
agreement which, in turn, struck at the heart of the collec-
tive-bargaining relationship between the parties and amount-
ed to a repudiation of the collective-bargaining relationship
itself. Oak Cliff-Golman Baking Co., 207 NLRB 1063
(1974), enfd. 505 F.2d 1302 (5th Cir. 1974), cert. denied 423
U.S. 826 (1975).
Respondents filed a timely answer, admitted certain of the
allegations, denied others, and denied the commission of un-
fair labor practices.3
At the hearing, all parties were represented by counsel,
were given full opportunity to call and examine witnesses, to
submit relevant oral and written evidence, and to argue orally
on the record. At the close of the hearing, the parties waived
final argument and elected to file posthearing briefs. All par-
ties thereafter timely submitted briefs which have been duly
considered.
Upon the entire record, including the briefs, and upon my
most particular observation of the demeanor of the witnesses
as they testified, together with an evaluation of the testimony
and other evidence of record, I make the following4
FINDINGS OF FACT
I. RESPONDENTS AS STATUTORY EMPLOYERS
(a) The consolidated complaint alleges, and Respondents
concede that at all material times, Respondent Ross Brothers,
a corporation, with an office and place of business in Ash-
land, Kentucky, has been engaged in the business of general
industrial contracting in the construction industry and, in the
12-month period ending January 8, 1993, in conducting its
business operations, purchased and received at its Ashland,
Kentucky facility goods valued in excess of $50,000 directly
from points outside the Commonwealth of Kentucky. Re-
spondents concede, and I find, that at all material times Ross
Brothers has been engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
(b) The complaint alleges, and Respondents admit, that at
all material times Respondent Huntington Piping, a corpora-
tion, with an office and place of business in Huntington,
West Virginia, has been engaged in the business of general
industrial contracting in the construction industry and, in the
12-month period preceding January 8, 1993, in conducting its
business operations, has purchased and received at its Hun-
tington, West Virginia facility goods valued in excess of
$50,000 directly from points outside the State of West Vir-
ginia. Respondents concede, and I find, that at all material
times Huntington Piping, Inc. has been an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
II. LOCAL NO. 577, PLUMBERS, AFL–CIO, AND THE
UNITED ASSOCIATION OF JOURNEYMEN ETC., AFL–CIO,
AS STATUTORY LABOR ORGANIZATIONS
The complaint alleges and Respondents admit that the
United Association of Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry of the United States and
Canada (the International or the United Association) has been
a labor organization within the meaning of Section 2(5) of
the Act. I so find.
Supplementing its answer (par. 3(b)), Respondents also ad-
mitted on the record that Local 577 was a labor organization
nevertheless reserving the right to change their pleading
should further facts warrant a change in position. Neither Re-
spondent further pursued the matter and, I find, on the basis
of Respondents’ concession that Local 577, at all material
times, is a labor organization within the meaning of Section
2(5) of the Act. Such a finding is consistent, of course, with
Respondents’ counterclaim in which Respondents admitted
having made repeated demands upon Local 577 ‘‘to meet
and bargain in good faith for the purpose of arriving at an
agreement’’ between Respondents and Local 577. In addi-
tion, where Respondents’ counterclaim would have the Board
make a finding of an 8(b)(3) violation against Local 577,
such a violation can only be made against a statutory labor
organization. Affirmative proof of Local 577 status may be
found elsewhere in the record such as its constitution and by-
laws (G.C. Exh. 3) and its affiliation with the United Asso-
ciation (G.C. Br. 3).
III. THE ALLEGED UNFAIR LABOR PRACTICES
Background
The two Respondents, Ross Brothers and Huntington Pip-
ing, are parties to the National Industrial Maintenance Agree-
ment for the United States of America (G.C. Exh. 4) (the
NIMA Agreement or NIMA) with the United Association of
Journeymen and Apprentices of the Plumbing and Pipe Fit-
ting Industry of the United States and Canada, AFL–CIO.
Both Respondents concede that they entered into the Na-
tional Industrial Maintenance Agreement and that at all mate-
rial times they have been, and are, bound by the terms of
the NIMA Agreement with the UA. The agreement contains
540 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
an automatic renewal clause terminable by either party on 90
days’ written notice. No such notice was ever given. That
agreement contains the following provisions:
ARTICLE VIII—Wages
Wage rates shall be those as set forth in the current
labor agreement of the affiliated Local Union where
such work is to be performed and shall be paid to all
employees under the terms of this Agreement unless
otherwise modified by the National Maintenance Agree-
ments Policy Committee, Inc. Wages shall be paid
weekly by check or other legal tender.
When zone type wage structures are provided for in
local agreements and are otherwise applicable in the
area of the project, the project for the purposes of this
Agreement will be considered as if it was within the
area of the base zone rate.
ARTICLE IX—Benefits and other Monetary Funds
Welfare Funds, Pension Funds, Apprentice Training
Funds and other monetary funds called for in the Local
Union Labor Agreement shall be paid in accordance
with the Local Union Labor Agreement except that no
funds shall be paid on a basis which exceed the straight
time and overtime provisions of this Agreement. [G.C.
Exhs. 4–6.]
ARTICLE VI—Grievances
All grievances shall be filed within ten (10) calendar
days after the complained-of event arose. Grievances
shall be appealed to the next higher step within ten (10)
calendar days after the meeting in the lower step. Set-
tlement of grievances may be arrived at in any step of
the grievance procedure which will be final and binding
on the Union and Employer.
Grievances, other than those pertaining to jurisdiction
or general wage rates on any work covered by this
Agreement shall be handled in the following manner:
Step 1. Between the Employer’s Supervisor and the
Local Union Steward at the job site.
Step 2. Between the Business Representative and the
Employer’s Supervisor at the job site.
Step 3. Between the International Union Representative
and the Supervisor or Labor Relations Manager of the
Company.
Step 4. If the parties are unable to effect an amicable
settlement of adjustment of any grievance or con-
troversy, such grievance or controversy shall be sub-
mitted to the National Maintenance Agreements Pol-
icy Committee, Inc. for a decision to become effec-
tive immediately.
Step 5. Failure of the National Maintenance Agreements
Policy Committee, Inc., to reach a decision shall con-
stitute a basis for a submittal of the question to the
American Arbitration Association for a binding deci-
sion. In such instances, the affected parties to the dis-
pute shall appoint an arbitrator to review the matter
and render a binding decision. If the parties are un-
able to agree upon an arbitrator, the American Arbi-
tration Association shall make the designation. The
affected parties to the arbitration shall equally share
in the costs, including printing and publication of any
record on such arbitration.
The arbitrator shall only have jurisdiction and au-
thority to interpret, apply, or determine compliance with
the provisions of this Agreement. Any award of the ar-
bitrator shall be final and binding upon the Employer
and the Union. A copy of the award by the arbitrator
shall be submitted to the National Maintenance Agree-
ments Policy Committee as soon after such award is
rendered.
There is no dispute that the National Maintenance Agree-
ments Policy Committee, mentioned in the above provisions,
is an institution consisting of equal members of the UA and
employers, established for the purpose, inter alia, of resolv-
ing grievances flowing from contract disputes.
In addition, at the hearing, Respondents conceded that the
following unit of employees is a unit appropriate for bargain-
ing within the meaning of Section 9(b) of the Act:
All United Association Employees of the Respondent
now employed and employed in the future of mainte-
nance, repair, replacement and renovation in various
plants within the geographical jurisdiction of the [Asso-
ciation] [but excluding] general superintendents, super-
intendents, assistant superintendents, office and clerical
employees, watchmen or other professional supervisory
employees as defined in the National Labor Relations
Act, as amended.
The recognition clause of the NIMA Agreement (art. I) to
which the International Union (United Association) and Re-
spondents are bound specifies, inter alia, that the ‘‘[Respond-
ents recognize] the Union herein as duly constituted for the
purpose of bargaining collectively and administering this
agreement for the members affiliated with the United Asso-
ciation, AFL–CIO.’’ Respondents deny (answer, par. 7; Tr.
51) that the United Association has been the exclusive col-
lective-bargaining representative of Respondents’ Ross
Brothers and Huntington Piping units. I nevertheless con-
clude that at all material times the United Association has
been and is the exclusive bargaining representative of Hun-
tington Piping’s and Ross Brothers’ unit employees within
the meaning of Section 8(f) of the Act, regardless of its 9(a)
status.
A. The Pleadings and Respondents’ Concession With
Regard to being Bound by the NIMA Agreement
The General Counsel’s consolidated complaint alleges with
respect to both Respondents (complaint pars. 6(b) and (c))
that each of them granted recognition to the International
Union (UA) as the exclusive collective-bargaining represent-
ative in the admittedly appropriate unit (complaint par. 5 as
modified at the hearing), by entering into a collective-bar-
gaining agreement (NIMA) with the International Union con-
tinuing in effect until terminated by 90 days’ written notice
from either party, all without regard to whether the majority
541DEN-RAL, INC.
5 The General Counsel’s complaint also alleges that the Inter-
national Union enjoys 9(a) majority status. I ignore this allegation
as mere confusing surplusage.
As above noted, the NIMA Agreement relating to employers ad-
mittedly in the building and construction industry is to be analyzed
pursuant to Sec. 8(f) of the Act. Under John Deklewa & Sons, 282
NLRB 1375 (1987), the Board presumes that parties in the construc-
tion industry intend their relationship to be an 8(f) relationship.
Casale Industries, 311 NLRB 951 (1993). No evidence of an 9(a)
relationship was adduced to rebut this presumption. Furthermore, the
above-recognition clause refers to employees ‘‘employed in the fu-
ture.’’
6 While it is true that the NIMA Agreement contains a 30-day
union-security clause, in the absence of preponderant supporting evi-
dence, I am nevertheless unable to find that the International Union
enjoys 9(a) status. I find, as above noted, that at all material times,
by virtue of entering into the NIMA Agreement, it is the 8(f) exclu-
sive representative in the admittedly appropriate units. Under
Deklewa, supra, the agreement, during its term, is not only enforce-
able, but the parties are subject to Sec. 8(a)(5) of the Act with regard
to its obligations.
status of the International Union has ever been established
under Section 9 of the Act.5
Respondents’ answer admits only that the Respondents
herein entered into the NIMA Agreement with the Inter-
national Union (UA) but denied all other allegations of the
complaint including those asserting that Respondents, by vir-
tue of entering into the NIMA Agreement, have caused the
International Union (UA) to be the exclusive collective-bar-
gaining representative of Respondents’ unit employees and
that the Respondents were continually bound by the NIMA
Agreement having failed to terminate the agreement by the
required 90 days’ written notice.6
In view of the possible ambiguity concerning the respec-
tive Respondents’ relationship to the International Union
(UA), particularly concerning the International Union’s ex-
clusive representative status and the continuing obligation of
Respondents to recognize the International as such, there was
extensive record clarification on these points (Tr. 55–59). By
way of clarification, therefore, Respondents, on the record
asserted: ‘‘We have never denied being bound by the NIMA
agreement’’ (Tr. 57, 58). Thus, the instant case preceded on
the assumption that Respondents’ concessions concerning
being continually bound by the NIMA Agreement, unmodi-
fied on the record, remained in full force and effect.
B. History and Method of Collective Bargaining in the
Tri-State Area
In 1969, following a period of labor-management con-
troversy in the Tri-State area (the confluence of southern
Ohio, western West Virginia, and northeastern Kentucky), 40
or more area local unions formed the Tri-State Building
Trades Council and through it bargained collectively with its
counterpart, the Tri-State Building Contractors Association,
composed of 25 or more contractors in the construction in-
dustry. All 15 building trades, including at least 3 plumbing
locals among which was Local 577, were represented on the
labor side; the employer side consisting mostly of heavy in-
dustrial contractors. Ordinarily six to eight members from
each side were formed into subcommittees to negotiate and
report back the results of their negotiations. Special problems
peculiar to particular trades were worked out by other sub-
committees. The process of wage and fringe benefits negotia-
tion consisted of a wage committee on each side deciding or-
dinarily on increasing the wages and benefits from the prior
contract (Tr. 276). After the council and the Association
reached agreement on wages and benefits, individual local
labor organizations would bargain in other subcommittees of
the Building Trades Council and reach individual agreements
pertaining only to the local union with regard to matters
other than wages and benefits. The wages and benefits, al-
ready agreed upon in prior bargaining, would then be
‘‘plugged’’ into the local union agreements.
In 1986–1987 bargaining, Local 577 reached agreement on
individual contractual matters (with wages and fringes mere-
ly ‘‘plugged’’ in) with a group of mechanical contractors, the
Southern Ohio Mechanical Contractors Association. The bar-
gainers for this Southern Ohio Association, all members of
the Building Trades Contractors Association, executed a 3-
year agreement effective June 1, 1987 (G.C. Exh. 5). Re-
spondents Huntington Piping, Inc. and Ross Brothers Con-
struction Co. were separately bound (C.P. Exhs. 3 and 4).
There is no dispute that this local agreement, containing
wages, benefits, and other terms and conditions of employ-
ment is the local agreement referred to in the NIMA Agree-
ment, ‘‘Article VIII-Wages,’’ which, as above noted, pro-
vides:
Wage rate shall be those as set forth in the current
labor agreement of the affiliated Local Union where
such work is to be performed and shall be paid to all
employees under the terms of this [NIMA] agreement
unless otherwise modified by [NMAPC].
This 3-year agreement between the Southern Ohio Mechani-
cal Contractors Association and Local 577 (G.C. Exh. 5) ex-
piring by its terms on May 31, 1990, was thereafter extended
for 1 year to June 1991 and thereafter to May 31, 1992. The
wage rates, at the time of 1992 expiration, were $19-per-hour
wages; $1.30 local pension; $1.10 national pension; and
$2.34 in health and welfare. Thus, a total of $4.74 per hour
in fringe benefits beyond the $19-per-hour wages.
Under the terms of the NIMA Agreement, whenever a
contractor comes into the nine county, south Ohio Local 577
area, he may, if he desires the advantages of the coverage
of the NIMA contract and desires to use Local 577 members
for his plumbing function, seek NIMA coverage of his con-
tract. Once NIMA coverage is permitted by the International
Union, the contractor working within the jurisdictional area
of Local 577 pays the wage rates set forth in the existing
labor agreement negotiated by Local 577. Contractors com-
ing into the area, therefore, whatever other bargaining func-
tions they may engage in do not bargain with Local 577 con-
cerning wages and benefits. NIMA contract coverage auto-
matically obligates them, as above noted, to pay the existing,
negotiated wage structure in the Local 577 contract. Thus, all
competing contractors under NIMA contract coverage face
the same contract terms in Local 577’s jurisdiction whether
or not they are individually bound.
In or about March 1991 the Tri-State Building Contractors
Association and the Tri-State Building Trades Council, in the
presence of an agreement to expire May 31, 1992, agreed to
meet for the purpose of deciding whether to open the terms
of the contract over a full year prior to expiration so that the
terms of a newly negotiated agreement would further extend
542 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 The Southeastern Association (not the Southern Ohio Mechanical
Contractors Assn., which was the employer group executing G.C.
Exh. 5 was composed of six business enterprises, the ownership of
four of which was lodged in essentially two individuals, Daryl
Stapleton and Bobby Evans. The employers who signed the expired
contract on behalf of the Southern Ohio Mechanical contractor Asso-
ciation, as distinguished from the Southeastern Ohio Association,
were Jack Stapleton, the deceased father of Daryl Stapleton, and
Bobby Evans. Daryl Stapleton and Bobby Evans had membership
cards in Local 577. If they abandoned the contracting business or
worked less than 50 percent as contractors they could be referred out
by Local 577 as journeymen plumbers from the bottom of the eligi-
bility list.
8 The new contract, aside from the substantial direct wage increase
and the creation of the higher wage rate for industrial, as opposed
the contract for a period of 3 additional years (Tr. 484), from
June 1, 1992, through May 31, 1995. In meetings of sub-
committees from both sides, it was agreed, in this setting,
that participation by an individual local in these multicraft
negotiations through the Building Trades Council did not sig-
nify that it would be bound to continue in the negotiations
or be bound by the product of the negotiations (Tr. 485–
486). It was agreed that any party could merely give notice
to the opposing party that it would no longer continue in the
negotiations or be a party to any ultimate agreement. Thus,
every local union and every contractor had the option, at any
time, of ‘‘either going with that [contract negotiations] . . .
staying in it or dropping out.’’ (Tr. 314; 327.) In particular,
every local union had the right to return to its constituency
and proceed to the ratification process. If there was no ratifi-
cation, the union could drop out of further bargaining and
not be bound by its results. It could simply ‘‘walk away’’
from further bargaining (Tr. 485).
After these March and April 1991 reopened meetings
(which continued thereafter and resulted in an August 1991
3-year wage and benefit agreement between the two bargain-
ing groups), Local 577 Business Agent Prater returned to his
membership in May 1991, for the purpose of voting to reject
or accept the Building Contractor Association’s offer of a 3-
year extension commencing June 1992. The Local 577 mem-
bership voted on the Tri-State Building Contractors’ offer of
$3.62-per-hour increase over the proposed 3-year period. The
membership voted to reject the offer. Prater testified that
Local 577 rejected the Tri-State offer because Local 577 was
attempting to reach parity with the pay rates and benefits of
other trades, particularly the boilermakers who, performing
similar work, were paid at higher rates than Local 577 mem-
bers. In addition, Prater further testified that 10 of 17 Ohio
Plumber Locals had higher pay rates than Local 577. In any
event, as noted, in May 1991, the Local 577 membership re-
jected the Tri-State wage and benefit offer.
At a meeting of the Tri-State Building Contractors and
Tri-State Trades Council, in early June 1991 (Tr. 490–491),
Prater told the Tri-State Building Trades Contractors that
Local 577 had rejected the proposed 3-year contract exten-
sion and would withdraw from bargaining through the Build-
ing Trades Council (‘‘multicraft’’ bargaining, Tr. 391). It
would comply with the current contract until expiration, May
31, 1992 (Tr. 491). It was not until the following year,
March 4, 1992, that, pursuant to the 60-day notice require-
ment in the expiring agreement (G.C. Exh. 5), Local 577 for-
mally notified both the Tri-State Building and Construction
Trades Council and the Tri-State Contractors’ Association
that it was withdrawing from the Tri-State Trades Council
which would no longer be its bargaining agent (G.C. Exh.
6).
Having formally withdrawn on March 4, 1992, from bar-
gaining through the Trades Council with the Tri-State Build-
ing Contractors, Local 577, on March 6, 1992, notified the
Mechanical Contractors Association of Southeastern Ohio
that it was ready to negotiate a contract with that Association
on March 10, 1992 (G.C. Exh. 7). Following bargaining ses-
sions of March 10 and 12, the new Association and Local
577 entered into a 5-year collective-bargaining agreement ef-
fective June 1, 1992, to May 31, 1997 (G.C. Exh. 8).7 After
it was executed, as many as 30 contractors signed the new
agreement and complied with it. The only employers who
have failed and refused to comply with it are the two Re-
spondents herein. The new contract, for the first time, estab-
lished the ‘‘industrial rate’’ at $2.12 per hour higher than a
new ‘‘commercial’’ rate. The industrial rate, in the first year,
was raised by $3.09 per hour.
C. Respondents’ Response to the New Contract and
its New Rates
At least as early as April 8, 1992, Respondents were aware
of the new rates in the new contract. On that date, Respond-
ents authorized their bargaining representative, the Tri-State
Contract Association, to protest to the Building Trades Coun-
cil the total $3.09 per hour first year contract wage increase
followed by additional increases of $1 per hour in the second
and third year (C.P. Exh. 1). The thrust of the letter protested
the large wage increases; the bad effect on the contracting
business in the Tri-State area; and questioned why Local 577
would ‘‘drop out of our multi-craft negotiations since your
Local Union No. 577 has a 16-year historical long-standing
bargaining relationship with the Tri-State Contractors Asso-
ciation multi-craft unit?’’ (C.P. Exh. 1.) The letter empha-
sizes that Prater had actively represented Local 577 in two
meetings with the Tri-State Contractors’ Association in
March and April 1991. It also questioned Local 577’s good-
faith bargaining since it was bargaining with two different
employer groups at the same time.
D. Respondent Ross Brothers Construction and the
New Contract
Sometime on or about June 8, 1992, Prater sent both Ross
Brothers and Huntington Piping copies of the new contract
(G.C. Exh. 8) containing the new wage rates. As noted here-
after, Respondent Huntington Piping paid the new wage rates
for a 2-week period after June 1, 1992, the effective date of
the new agreement. This matter will be dealt with separately.
Sometime after June 1, 1992, Local 577 members working
for Ross Brothers Construction told Business Agent Prater
that they were being paid at the wage rate under the old
agreement (G.C. Exh. 5) rather than the new contract wage
rates (G.C. Exh. 8) (Tr. 133). Prater then telephoned Ross
Brothers’ president, Morris Griffiths. When Prater asked him
if he was going to pay the wages under the new agreement,
Griffiths told them that he would not and that he would have
nothing to do with the new agreement (Tr. 135–136).8
543DEN-RAL, INC.
to commercial, plumbing work, also changed the method of calculat-
ing fringe benefits. The new contract required payment of fringe
benefits for hours paid rather than hours worked, thus requiring pay-
ment of benefits at a time-and-a-half rate rather than a straight time
rate for hours worked over 8 hours per day (Tr. 137). There were
also changes in the apprenticeship ratio, travel pay, and the obliga-
tion to supply tools (Tr. 137).
On June 8, 1992, Griffiths, on behalf of Respondent Ross
Brothers, wrote to NIMA’s grievance-adjustment arm,
NMAPC, the National Maintenance Agreement Policy Com-
mittee, protesting, in particular, the wage increase included
in Local 577’s collective-bargaining agreement with the
Southeastern Contractors Association:
Gentlemen:
Ross Brothers Construction Company strenuously
objects to the proposed wage increase requested by
Local 577 U.A. of Portsmouth, Ohio which covers the
subject site.
Local 577 has not signed a contract with the Tri-
State Contractors Association which has been the his-
torical bargaining group with Local 577 over the last 15
to 20 years.
We received in the mail this morning (6–8–92), a
wage breakdown for contractors signatory to Local
577’s agreement. To my knowledge none of the mem-
bers of the Tri-State Contractor Association are signa-
tory to this agreement.
This proposed wage package represents an increase
this year of $3.09, whereas all other local unions, 22
of which are members of the multi-craft bargaining unit
and another 34 locals who have affiliation with the Tri-
State Building Trades Council have agreed to approxi-
mately $1.50 plus the drug testing fee of .12 per hour
for this coming year.
It is interesting to note that in the proposed wage in-
crease for this year for the Local proposed Commercial
agreement calls for a wage rate of 2.12 less than the
Industrial rate.
It is not a coincidence that applying the 90% modi-
fier to the proposed industrial rate results in the approx-
imate amount of the proposed commercial rate. It has
been quoted to our office by a local contractor in Ports-
mouth that the purpose of the 3.09 increase was to cir-
cumvent the effect of the NMAPC modifier. I would
estimate that the vast majority of the work done by this
Local is done under the NMAPC Agreement.
All of the other local unions in the area, including
two U.S. Locals 521 and 248 have agreed to a reason-
able increase in order to preserve industrial work for
the Building Trades. It does not seem correct or fair to
the local construction industry for one local to feel that
they are better than every one else and demand an exor-
bitant increase.
In lieu of being able to roll back the proposed in-
crease we would respectfully suggest that an 80%
modifier be applied to this Local in order to obtain par-
ity.
The history of this situation is as follows: Approxi-
mately one year before the expiration of the local
Multi-Craft Agreement (5–31–92) the Contractors Asso-
ciation entered into negotiations to extend the agree-
ments to 3 years beyond the expiration date of May 31,
1992. Committees from labor and management were es-
tablished to try to accomplish the extension and imple-
ment a drug testing program. Phil Prater, Local 577
agent was a very outspoken member of the labor com-
mittee and was a leader in the negotiation. Apparently,
after several months negotiations & the agreement was
being finalized, Mr. Prater did not like what was nego-
tiated and decided to withdraw and negotiate with three
Portsmouth, Ohio Contractors (2 plumbers and a fab-
ricator) all of whom to our knowledge are members of
Local 577. The resultant agreement is the outcome of
those negotiations and not as a result of the traditional
bargaining group. Whether or not labor law was vio-
lated in this situation remains to be seen.
As it stands, all other locals have agreed to approxi-
mately 1.50, 1.00 and 1.00 over the next three years
while the proposed Local 577 Agreement reflects 3.09,
1.25 and 1.25.
We would appreciate your doing whatever is pos-
sible to bring this local in line with the remainder of
the Building Trades crafts in the area.
At present, we are paying the old rate and will do
so until advised differently by the committee.
On July 7, 1992, Ross Brothers wrote directly to Local
577 regarding Local 577’s obligation under the NIMA
Agreement and that Ross Brothers had already protested the
terms of Local 577’s new contract under NIMA, the protest
having been referred to the NMAPC Committee for resolu-
tion (G.C. Exh. 10):
Your letter of July 3 was received this date July 7,
1992. Our comments are as follows:
1. We are working under an NMAPC Agreement at
the Haverhill, Ohio.
2. Any and all disputes as to the administration of
this contract are under the jurisdiction of the NMAPC.
3. Your blatant attempt to discriminate against indus-
trial contractors and users has been referred to the
NMAPC for resolution.
4. Pipefitters labor for this site is supplied by your
local to this site under the terms of the National Main-
tenance Agreement and not a local agreement.
5. Any slowdown or work stoppage on this project
would be a violation of the National Maintenance
Agreement, particularly when the subject has been re-
ferred to the committee for resolution.
6. It is also our understanding that if certain craft
labor is withheld from the jobsite, work may proceed
with the crafts that are on the jobsite.
Your continued opinion that you are better than all
other crafts in the area can only cause dissension and
will work to the detriment of the Building Trades con-
struction industry.
At no time after Local 577’s notice of withdrawal of bar-
gaining rights from the Tri-State Council did Tri-State Build-
ing Contractors or Respondents request Local 577 to termi-
nate or modify Respondents’ NIMA obligation to pay the
wage rates established by Local 577 in the new contract. Nor
did Local 577 agree with the Respondents to permit their
544 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 Over Respondents’ objection, I admitted in evidence a July 10,
1992 inter office memorandum, on stationery of the International
Union (UA) (G.C. Exh. 14), a copy of which was sent to Local 577.
This memorandum, from the International Union’s representative on
the NMAPC committee to another International Union representa-
tive, referred to a meeting of the NMAPC labor section on July 1,
1992, regarding Local 577’s recent contract including the wage in-
crease. The text of the memorandum is:
The Labor Section discussed Local 577’s newly negotiated wage
package effective June 1, 1992 with a $3.09 wage increase in
the first year. After much discussion it was agreed that no action
could be taken by the N.M.A.P.C. as it was not within our
power to rule on, or get involved in local collective-bargaining
negotiations.
As I noted at the hearing, I regard this interoffice memorandum
as hearsay; not binding on Respondents and certainly not an official
act of the NMAPC which would be a dispositive action of that orga-
nization binding Respondent Ross Brothers.
paying pre-June 1, 1992 wage rates to Local 577 members
or unit employees. Moreover it was stipulated that the Re-
spondents, except Huntington Piping for a 2-week period,
continue to pay the wage and benefit rates specified in the
expired contract on NIMA-obligated projects (G.C. Exh. 5)
at all times through the date of the hearing.
Furthermore, there is no dispute that foreign plumbing
contractors working in Local 577’s jurisdiction, under estab-
lished procedure, regularly contacted the International Union
(UA) and requested the extension of the coverage of the
NIMA contract to particular jobsites therein. The Inter-
national Union, according to this procedure, then notified the
contractor that the job was in Local 577’s jurisdiction in
southern Ohio and that the foreign contractor was obligated
to contact Business Manager Phillip Prater. In the period
June 1, 1992, through May 1993, approximately 30 to 35
‘‘foreign contractors’’ coming into Local 577’s jurisdiction
submitted to the terms of and signed the new contract (G.C.
Exh. 8). There have been no wage rate changes allowed to
them nor were there negotiations for different rates. Re-
spondents concede that, as to these ‘‘foreign’’ contractors,
the Local 577 new contract with the Southeastern Contrac-
tors Association is valid (Tr. 175–177). Lastly, Respondents
concede that they ordinarily pay local plumbing union con-
tract wage and benefit rates in other jurisdictions in which
they work where the job is under the NIMA Agreement (Tr.
318). In such situations, the Respondents may not have par-
ticipated in negotiations leading to the local contract.
In any event, 1 week after Respondent Ross Brothers vig-
orously complained to the National Maintenance Agreement
Policy Committee (NMAPC), established by the NIMA
Agreement, concerning the wage increases and other terms
and conditions of the new Local 577 contract (G.C. Exh. 9),
Business Manager Prater, on June 15, 1992, similarly com-
plained (G.C. Exh. 13) of Ross Brothers’ refusal to abide by
its NIMA obligation: to pay, on NIMA-covered jobs, the
wages specified in the Local 577 contract as required by the
wage-obligation section (Art. VIII—Wages) in the NIMA
contract (G.C. Exh. 4). Actually, Business Agent Prater ad-
dressed a letter to the International Union’s president request-
ing that the International Union (the actual party to the
NIMA grievance-adjustment committee, NMAPC) bring the
matter of Ross Brothers’ refusal to pay the new contract
wage rate before the NMAPC committee. In so doing, Prater
specifically requested ‘‘assistance on this grievance, step IV
of the National Maintenance Agreement Policy Committee’’
NMAPC has formally acted upon neither Ross Brothers’
June 8, 1992 complaint against Local 577 (G.C. Exh. 9) or
Local 577’s June 15 complaint (G.C. Exh. 13) to its Inter-
national Union to present the Ross Brothers alleged default
to the committee.9
E. Respondent Huntington Piping, Inc.
While Ross Brothers’ main office is in Kentucky, Hunting-
ton Piping works out of Huntington, West Virginia. Both Re-
spondents are industrial contractors in Ohio, Kentucky, and
West Virginia. They are competitors.
In June 1992, while working on a job for Dow Chemical
Company, Huntington Piping paid the higher wage rates
under the new contract for a period of 2 weeks. Dow Chemi-
cal then advised Huntington Piping that it would not reim-
burse Huntington for the higher wage rates. At that point,
Huntington Piping returned to paying the old rate and wrote
several letters to Local 577 (G.C. Exhs. 11 and 12). These
letters, in substance, requested that Local 577 enter into ne-
gotiations for a new contract. Business Manager Prater never
directly refused to negotiate a new contract with Huntington
Piping; rather, Local 577 sent monthly letters insisting that
Huntington Piping continually made mistakes on computation
of the rate of fringe benefits. On each such occasion, Hun-
tington Piping declared that it was trying to negotiate a new
contract. Like Ross Brothers, Huntington Piping continues to
pay its plumbing employees at the ‘‘old rate’’ in the expired
contract (G.C. Exh. 5) rather than the rates under the new
contract (G.C. Exh. 8).
Like Ross Brothers, NMAPC has never contacted Hunting-
ton Piping regarding the June 15, 1992 grievance filed by
Prater regarding the failure of contractors to pay the rates es-
tablished in the new contract.
Discussion and Conclusions
The prima facie case with regard to both Respondents
Respondents concede that not only are they bound by the
NIMA Agreement (Tr. 55–58) but that they would pay the
new wage rates established in the new contract (G.C. Exh.
8) if directed to do so by NMAPC. Neither Respondent is
a signatory of Local 577’s new contract.
Articles VIII—Wages in the NIMA Agreement (G.C. Exh.
4), as above noted, provides:
Wage rates shall be those as set forth in the current
Labor Agreement of the affiliated Local Union where
such work is to be performed and shall be paid to all
employees under the terms of this agreement unless
otherwise modified by the National Maintenance Agree-
ments Policy Committee Inc.
Both Respondents had failed and refused to pay those wage
rates notwithstanding their concession that they are bound by
the NIMA contract including the provision with regard to
wages.
Under the long-established Board Rule set forth in Oak
Cliff-Golman Baking Co., 207 NLRB 1063, enfd. 505 F.2d
1302, cert. denied 423 U.S. 826; Fort Pierce Jai-Alai, 310
NLRB 862 (1993), an employer, notwithstanding that he is
faced with a dire financial crisis which would close his oper-
545DEN-RAL, INC.
10 The other two members of the Board would refuse to defer be-
cause of their general disagreement with the Collyer deferral doc-
trine, Oak Cliff-Golman Baking Co., supra at 1063.
11 Sheet Metal Workers Local 104 (Brisco Sheet Metal), 311
NLRB 99 (1993).
ations, may not refuse to pay the wage rates established in
a valid collective-bargaining contract. In rejecting the em-
ployer’s defense that its action in unilaterally reducing the
wages in the face of dire economic consequences, at most,
was a breach of contract to be remedied by the courts, the
Board held that:
. . . clear repudiation of the contract wage provision is
not just a mere breach of the contract, but amounts, as
a technical matter to the striking of a death blow to the
contract as a whole, and is thus, in reality a basic repu-
diation of the bargaining relationship.
The Board observed that, under the unambiguous language
of Section 8(d) of the Act, explicitly forbidding midterm
modification of a contract’s wage provision without the con-
sent of the union, the employer’s good-faith motivation in
seeking to preserve its own existence was irrelevant.
Furthermore, relevant to the instant case, the Board re-
jected the Employer’s plea that the alleged violation be de-
ferred to the contractual grievance-arbitration procedure be-
cause the Union had invoked that procedure before it filed
the charge. In that case, then Chairman Miller refused to
defer under Collyer Insulated Wire, 192 NLRB 837 (1971),
because deferral was inappropriate absent a claim or finding
that any of the contract terms even arguably authorized the
employer’s unilateral refusal to pay the contract wage rates.10
Under these conditions, with Respondents admittedly being
bound by the NIMA obligation to pay the wage rates estab-
lished in the Local Union’s collective-bargaining agreement,
I conclude that there was a prima facie case of repudiation
of the NIMA contract obligation to pay the Local 577 wage
rate (incorporated in the NIMA contract art. VIII—Wages)
on any job on which Respondents were granted NIMA con-
tract coverage; and that such failures to pay the wage rates
under the new contract (G.C. Exh. 8) come squarely within
the violation of Section 8(a)(5) established in Oak Cliff-
Golman Baking Co., supra, i.e., a repudiation of the contract
wage provision constitutes a repudiation of the collective-
bargaining relationship. I conclude, therefore, that as a prima
facie matter, Respondents thereby violated Sections 8(d) and
8(a)(5) and (1) of the Act as alleged. It is no defense that
Respondents stand willing to bargain with Local 577 on the
wage and benefit rates. Fort Pierce Jai-Alai, supra.
The Defenses
Ross Brothers’ defenses
The pleadings, and Ross Brothers’ position at the hearing,
demonstrates that Respondent Ross Brothers advances two
basic defenses to the prima facie case:
(1) That the contract between Local 577 and the South-
eastern Ohio Contractors; Association is invalid because (a)
it was not bargained in good faith or at arms’ length with
the Southeastern Contractors Association; and (b) in any
event, Local 577 is bound by the multicraft contract extended
by the Tri-State Building Contractors and the Tri-State
Building Trades Council in August 1992 for a 3-year period.
This result is based upon the long bargaining history of
Local 577 through the Tri-State Building and Construction
Trades Council and its continuing bargaining with and
through that organization as late as the March and April
1991 bargaining for the preexpiration extension of the exist-
ing contract (G.C. Exh. 5).
(2) Further, Respondent Ross Brothers urges that both its
own June 8, 1992 complaint or grievance and the Union’s
June 15 grievance, both to NIMA, both concerning Ross
Brothers’ obligation to observe the new Local 577 wage
rates, are still pending before NMAPC, and that since
NMAPC has not acted in the matter, a finding of repudiation
by Ross Brothers is premature. Thus, it is argued, that no
8(a)(5) violation may be perfected under the theory of Ross
Brothers’ repudiation of its NIMA obligation to pay the new
wage rates until the obligation is established through
NMAPC action denying Ross Brothers’ grievance and/or
granting Local 577’s grievance. Cf. Dubo Mfg. Co., 142
NLRB 431, 432 (1963).
With regard to the first discernible defense, that the new
contract was not negotiated in good faith or at arm’s length,
Respondents observed that the number of employees em-
ployed by the six contractor-members of the Southeastern
Association is small; that there are only really four principals
acting under the mask of six contractors; that certain of the
contractors are not exclusively engaged, like Ross Brothers,
in industrial plumbing but are installers of commercial
plumbing; that the principal negotiators of the new contract
on behalf of the Southeastern Contractors’ Association hold
membership cards in Local 577; and that such contractors
who are members of Local 577 may be referred out as jour-
neymen plumbers if they find that such work is to their fi-
nancial advantage.
There has been no evidence adduced that any of these six
contracting organizations or their four principals are not en-
gaged, in large part, in industrial plumbing contracting. The
fact that some or all of them are also engaged in the installa-
tion of commercial type plumbing does not seem dispositive.
Respondents are not engaged in commercial plumbing and
are therefore free of the commercial rates. The NIMA Agree-
ment specifies coverage of those employers, like Respond-
ents, engaged in construction work, maintenance, repair, and
renovation of industrial facilities (G.C. Exh. 4, p. 1). Simi-
larly, nothing in the NIMA Agreement (or the statute) sug-
gests that the size of the contractor or the number of employ-
ees he employs on particular jobs governs his eligibility to
contract with Local 577 in establishing a lawful local wage
rate. Nor is there any suggestion or proof in this record that
the contractors’ retention of Local 577 membership cards is
of disabling significance. The only evidence of record re-
garding their ability to work as journeymen plumbers is that
if they abandon or severely limit their contracting function,
they be referred out from the bottom of the Local 577 eligi-
bility list. It is not a statutory violation, nor here a contract
violation, for member-contractor to sign a collective-bargain-
ing agreement with the union.11
There is no evidence in this record to suggest any dis-
criminatory motive, discriminatory application of the new
contract (G.C. Exh. 8), or conflict of interest. More than 30
contractors have signed the new agreement and Respondents
546 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 The Charging Party observes that Respondents never urged, as
a defense, that Local 577 was bound by the August 1991 3-year ex-
tension until this hearing.
13 See S. Freedman Electric, 256 NLRB 432 fn. 2 (1981), enfd.
mem. 679 F.2d 873 (2d Cir. 1981). Any requirement that the notice
be written is fulfilled by Local 577’s timely written 60-day notice
(G.C. Exh. 6) of formal withdrawal from bargaining through the
multicraft Building Trades Council sent to both the Building Trades
Council and the Building Contractors Association, prior to May 31,
1992 contract expiration. The oral notification of June 1991 satisfies
the agreement and practice of the parties where bargaining relates
merely to premature extension during reopened bargaining.
concede that ‘‘foreign’’ contractors have signed the new
agreement and that foreign contractors working in the area
would be bound by that agreement. There is no evidence of
a lack of arm’s-length relationship or any suggestion that the
wage rates or other terms or conditions of employment speci-
fied in the new contract would be discriminatorily applied
against either of the Respondents. The speed of execution
and prior negotiations leading to the new contract does not
constitute evidence of bad faith, discrimination, or overreach-
ing.
Ross Brothers’ most particular complaint, obvious on the
record, is that the wage rates and benefits are too costly and
will inhibit the business of construction and repair of plumb-
ing facilities in the Tri-State area. I conclude, nevertheless,
that there is no showing of a lack of bona fides in the nego-
tiation and execution of the new contract. Ross Brothers’
concern for the inhibitory effect of the higher wage rates
may be justified. It is, however, no defense to Respondents’
conduct. Oak Cliff-Golman Baking Co., supra.
Respondent Ross Brothers’ second defense is that Local
577, through Business Manager Prater, is bound by the
Building Trades Council’s multicraft agreement of August
1991 extending the Tri-State agreement for 3 years. This al-
legedly results from Prater’s participation in the Building
Trades Council’s March and April 1991 bargaining with
Building Contractors which led to the August 1991 exten-
sion; the history of Local 577 bargaining through the
multicraft Building Trades Council; and Local 577’s failure
to withdraw bargaining rights from the Building Trades
Council until March 1992.
The Charging Party, in particular, opposes this defense on
the ground that the timeliness of the withdrawal should be
measured by the expiration of the preexisting contract (G.C.
Exh. 5, May 31, 1992 expiration) and not by the participa-
tion of Local 577 in negotiations concerning a reopener
(compare Tr. 295 with 296–297).
I find, however, that this defense in any event must be re-
jected. With regard to the timeliness of Local 577’s with-
drawal of bargaining rights from the Building Trades Coun-
cil, and the consequences of its participation in such re-
opener-bargaining in March and April 1991 those matters are
disposed of by referring to the explicit agreement of the par-
ties. The parties agreed according to the testimony of both
Prater and Ross Brothers’ president, Griffiths, that the bar-
gaining on the reopener of the existing contract was on the
explicit condition that any party participating in the March
and April 1991 bargaining was free of any obligation to con-
tinue bargaining and had the option of merely ‘‘dropping
out’’ of the negotiations upon notice thereof. There was no
requirement that the notice be written.
The evidence in this record, based upon Prater’s
uncontradicted and credited testimony, is that following
Local 577’s May 1991 rejection of the terms offered by Tri-
State Building Contractors, Prater informed Tri-State Build-
ing Contractors in June 1991 that Local 577 was withdraw-
ing from multicraft bargaining through the Building Trades
Council, but would comply with the terms of the existing
contract until expiration on May 31, 1992, some 11 months
thereafter (Tr. 491). Indeed, in order to emphasize its June
1991 notification of a withdrawal of bargaining rights during
these reopener negotiations, Local 577 agreed to accept only
the remaining 50-cent-per-hour increase in wage rates appli-
cable to the final year of the expiring contract and refused
to accept an additional 50-cent-per-hour wage increase of-
fered by the Building Contractors Association to Local
Unions denoting continued participation in bargaining and
acceptance of the 3-year extension under the reopened nego-
tiations (Tr. 295–297).12
Insofar as the timeliness and unequivocal nature of with-
drawal from bargaining through the Building Trades Council
are concerned, all that Retail Associates, 120 NLRB 388, re-
quires is that the withdrawal be timely and unequivocal. In
the instant case, the parties were not concerned, in March
and April 1991, with the expiration of the contract on May
31, 1992, more than 14 months thereafter. I find that Prater’s
June 1991 oral notification of both the Tri-State Building
Trades and the Tri-State Building Contractors Association
that Local 577 would not renew its bargaining through the
Building Trades Council, would withdraw from such bargain-
ing, and would not agree to the terms of the new contract,
together with the subsequent March 4, 1992 60-day written
notification (pursuant to the terms of the existing contract) of
withdrawal of bargaining rights (G.C. Exh. 6) constitute the
timely and unequivocal notification of withdrawal of bargain-
ing rights and nonparticipation as required by the Retail As-
sociate’s rule, supra.13
On the other hand, Local 577 not only withdrew bargain-
ing rights from the multicraft Building Trades Council, but
ceased bargaining through it, or by single bargaining, with
the Tri-State Building Contractors Association and then
ceased recognizing the Contractors Association. Nothing in
this record, however, demonstrates that the Building Contrac-
tors Association was the employer with whom Local 577
was obligated to bargain. Nor, certainly for reopener pur-
poses, were Respondents obligated to continue bargaining
with the Building Trades Council. It was the International
Union that was the statutory labor organization recognized
by Respondents as the collective-bargaining agent to whom
they were obligated under NIMA-covered projects. Multicraft
bargaining in which Local 577 and Respondents engaged
through their respective multiunion, multiemployer agencies,
for purposes of the NIMA Agreement, was merely a conven-
ient bargaining device through which wages and benefits
could be determined. Such bargaining was hardly the only
mechanism for determining wages. Such bargaining, being
consensual, was subject to rearrangement and change under
Retail Associates, supra. We are here dealing only with the
question whether Local 577 lawfully established a local
union wage rate for purposes of the NIMA Agreement, ‘‘Ar-
ticle VIII-Wages.’’ Assuming, arguendo, that there was any
statutory obligation on Local 577 to bargain through the
Building Trades Council, I conclude there was timely and
547DEN-RAL, INC.
14 There is no question that, on this record, the Respondents are
in the construction industry and that the intent of the parties was to
enter into a contract (the NIMA Agreement) subject to the provi-
sions of Sec. 8(f) of the National Labor Relations Act. The two
Local 577 agreements (G.C. Exhs. 5 and 8) are also 8(f) agreements.
Under Deklewa, supra, the Board presumes that parties in the con-
struction industry intend their relationship to be an 8(f) relationship.
Thus, the burden is on the party who seeks to show the contrary,
i.e., a Sec. 9 relationship. Casale Industries, supra, 311 NLRB 951.
There is not evidence rebutting the presumption.
15 As noted, above, the grievance procedure also excludes griev-
ances ‘‘pertaining to jurisdiction.’’ The NIMA Agreement, article I
(recognition), recognizes that certain other jurisdictional dispute set-
tlement procedures in the industry are not applicable to the work
covered by the NIMA Agreement. By the terms of article I (recogni-
Continued
unequivocal Retail Associates withdrawal by Local 577 from
the Building Trades Council.
There remains, however, the question whether Local 577
was under a statutory obligation to thereafter recognize and
bargain on a single basis with the Tri-State Building Con-
tractors’ Association. I conclude that Local 577’s March 4,
1992 written notification to the Tri-State Biding Contractor’s
Association (G.C. Exh. 6) meets the requirements concerning
withdrawal of recognition imposed by John Deklewa & Sons,
282 NLRB 1375, enfd. sub. nom. Iron Workers Local 3 v.
NLRB, 843 F.2d 770 (3d Cir. 1988), cert. denied 488 U.S.
889 (1988). The Board Rule, with regard to termination of
the obligation to recognize and bargain with an employer in
the construction industry under an 8(f) contract14 is that,
upon expiration of the agreement, not only does the signatory
union enjoy no presumption of majority status, but either
party may repudiate the 8(f) bargaining relationship and
withdraw recognition from the other party absent demonstra-
tion of majority status by the union prior to the time of repu-
diation, or through voluntary recognition. The Union, like
Respondents, similarly would be free to repudiate the 8(f)
contract and repudiate the bargaining relationship, if any. No
evidence demonstrating voluntary recognition or majority sta-
tus was adduced. I therefore conclude that Local 577,
through its written notification to the Building Contractors
Association on March 4, 1992, not only freed itself from the
terms of any succeeding contract, but lawfully repudiated the
bargaining relationship, if any, with the Tri-State Building
Contractors Association.
Respondents Ross Brothers’ Deferral Defenses
A. Use of the NIMA Grievance Procedure
Upon Respondent Ross Brothers refusal to pay its plumb-
ers according to the new wage rates in the Southeastern As-
sociation contract (G.C. Exh. 8), and after Local 577, in
early June 1992, served on Ross Brothers a copy of the wage
rates in the new contract, and demanded compliance there-
with, Ross Brothers, on June 8, 1992 immediately com-
plained to NMAPC concerning (a) the size of the wage in-
crease in the new contract; (b) Local 577’s abandonment of
multicraft negotiations and late withdrawal from bargaining
with the traditional bargaining group (Building Contractors
Assn.) apparently in violation of labor law; and (c) a request
for NMAPC ‘‘doing whatever is possible to bring this local
[Local 577] in line with the remainder of the building trade
crafts in this area. At present we are paying the old rate and
will do so until advised differently by the committee’’ (G.C.
Exh. 9).
A week later, on June 15, 1992, Local 577 similarly peti-
tioned its International Union, requesting its assistance ‘‘on
this grievance, step IV of The National Maintenance Agree-
ments Policy Committee [concerning Ross Brothers Con-
struction Co. refusal] to pay the wage increase effective June
1, 1992. This Local Union and The Southeastern Ohio Me-
chanical Contractors Association, having negotiated a 5-year
agreement June 1, 1992 to May 31, 1997’’ (G.C. Exh. 13).
It is clear, therefore that both parties appealed under NIMA
concerning the contractual right of NMAPC to enforce or set
aside or modify the terms of the new contract (G.C. Exh. 8).
As above noted, there are two articles of the NIMA
Agreement (G.C. Exh. 4) that are pertinent to the evaluation
of this ‘‘deferral’’ defense: (1) In article VIII (wages), the
NIMA Agreement obligates the employer to pay the wage
rates ‘‘as set forth in the current Labor Agreement of the af-
filiated Local Union where such work is to be performed
. . . unless otherwise modified by [NMAPC].’’ (2) On the
other hand, by article VI (grievances), the grievance machin-
ery of the NIMA agreement is apparently not available to
contesting wage rates. Thus, as noted, the NIMA Agreement,
inter alia, provides:
Grievances, other than those pertaining to jurisdiction
or general wage rates on any work covered by this
agreement shall be handled in the following manner
[emphasis added]:
Step 1. . . . .
Step 2. . . . .
Step 3. . . . .
Step 4. If the parties are unable to effect an amicable
settlement of [sic] adjustment of any grievance or con-
troversy, such grievance or controversy shall be submit-
ted to [NMAPC] for a decision to become effective im-
mediately.
Step 5. Failure of [NMAPC] to reach a decision shall
constitute a basis for a submittal of the question to the
American Arbitration Association for a binding deci-
sion. . . . The affected parties to the arbitration shall
equally share in the cost, including printing and publi-
cation of any record of such arbitration.
The arbitrator shall only have jurisdiction and au-
thority to interpret, apply or determine compliance with
the provisions of this Agreement.
As will be seen hereafter, it is actually unnecessary to de-
cide whether the parties, or either of them, have properly
raised a ‘‘grievance’’ within the contractual framework of the
NIMA Agreement or whether the complaints of the parties,
even if not technically recognizable ‘‘grievances,’’ are or
should be amenable to a deferral policy of the Board. For
in either case, I conclude that, for similar policy reasons,
there should be no deferral by the Board.
The first question, of course, is whether the grievance pro-
cedure in article VI of the NIMA Agreement is applicable
at all. For it is only grievances ‘‘other than those pertaining
to jurisdiction or general wage rates’’ which are susceptible
to the NIMA contract grievance procedure. In turn, that
raises the question whether ‘‘general wage rates,’’15 excluded
548 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tion), jurisdictional disputes under this contract are referred to the re-
spective general presidents of the Unions for resolution with
representives of the employer who awarded the work permitted to
participate. Ultimate resolution is by an impartial third party.
16 As above noted, in light of Respondents’ objection, I have made
no use of the International Union’s interoffice memorandum (G.C.
Exh. 14) of July 10, 1992, wherein NMAPC apparently agreed that
‘‘no action could be taken by [NMAPC] as it was not within our
power to rule on, or get involved in local collective-bargaining nego-
tiations.’’ Whatever else, the substance is hearsay and although there
was no question raised as to the authenticity of the memorandum,
it was never served on Respondents and there was no technical dem-
onstration of authenticity.
from the grievance procedure in article VI (grievances), is
the same or the equivalent of ‘‘wage rates’’ (art. VIII—
wages). Under the NIMA Agreement, the employer is obli-
gated to pay the ‘‘wage rates’’ established in the current
labor agreement of the Local Union. Although there might
arguably be a difference between wage rates and general
wage rates as used in the two articles, yet in the absence of
evidence, even argument, to the contrary, I conclude that
there is no difference.
The exclusion of general wage rates from the grievance
procedure, along with grievances ‘‘pertaining to jurisdic-
tion,’’ evidently derives from the desire by NIMA parties to
avoid using the grievance procedure to second-guess the
wage rates established by the Local Union. This exclusion,
I conclude, avoids having NMAPC sit as an appellate tribu-
nal hearing potentially endless grievances on allegedly unfair
wage rates established by Local Unions with employers
among whom the complaining contractor was not rep-
resented. Thus, the grievance procedure (art. VI), I conclude,
is available neither to protect or enforce Local 577’s wage
rates notwithstanding that Local 577 explicitly attempted to
invoke this NIMA grievance procedure (G.C. Exh. 13, June
15, 1992) because of Respondent Ross Brothers’ refusal to
pay the newly negotiated wage increase and notwithstanding
that Respondent Ross Brothers presented the same matter
generally to NMAPC when it ‘‘strenuously objected to the
proposed wage increase requested by Local 577’’ (G.C. Exh.
9, June 8, 1992). I conclude that deferral be denied because
the issue, having been clearly excluded, is not even arguably
covered by the contract grievance procedure (and its arbitra-
tion provision). Cf. The Developing Labor Law, 1032 (3d
ed.), and cases cited therein; Oak-Cliff Golman Baking,
supra.
Furthermore, even if the wage rates were grievable, as the
parties attempts suggested, I would conclude that the parties,
particularly Respondent Ross Brothers, failed to comply with
step 5 of the grievance procedure. Again, step 5 of the griev-
ance procedure (G.C. Exh. 4, p. 5) provides that the failure
of NMAPC to reach a decision ‘‘shall constitute a basis for
a submittal of the question to the American Arbitration Asso-
ciation for a binding decision.’’ There can be no question
that the parties’ ‘‘grievances’’ were submitted no later than
on or about June 8 and 15, respectively (G.C. Exhs. 9 and
13). Between June 1992, and at least through the date of the
instant hearing ending May 20, 1993, there has been no dis-
position by NMAPC.16 Thus I conclude, the failure of
NMAPC to act in an 11-month period establishes the predi-
cate, under step 5 of the grievance procedure, that there has
been a failure of NMAPC to reach a decision. Such a failure
constitutes the basis for submittal of the question to the
American Arbitration Association for a binding decision.
There has been no such submission to the American Arbitra-
tion Association on the record made before me.
The final question, assuming arguendo, that the grievance
procedure is applicable at all, is upon whom to cast the bur-
den of proceeding to the American Arbitration Association
pursuant to step 5. Since I reach a similar conclusion, below,
in the discussion, where it is assumed that the formal griev-
ance procedure does not apply, I shall refer to the reasoning
in that discussion in disposing of the instant issue: on whom
to place the procedural burden of submission to the Amer-
ican Arbitration Association. In short, I place the burden on
Respondent Ross Brothers rather than on the Union for the
reasons outlined below.
B. Deferral in the Absence of a Grievance Procedure
Ending in Arbitration
As above noted, the Board generally does not defer resolu-
tion of an issue where the disposition is not covered by the
contract through an arbitration provision. The Developing
Labor Law, at page 1032 fn. 132, and cases cited therein.
In the instant case, however, the parties agreed to a limita-
tion on the explicit NIMA obligation that the employer pay
the wage rate set forth in the Local Union’s current labor
agreement for work performed in the Local Union’s jurisdic-
tion. That obligation exists ‘‘unless otherwise modified by
[NMAPC].’’
There is, however, no evident NIMA procedure for the in-
vocation of a modification (by NMAPC) of Local Union
wage rates under article VIII. It is also arguable that Ross
Brothers’ protest over the high wage rate is not a dispute
arising over the application or interpretation of an existing
collective-bargaining agreement, but merely a protest of the
high wage rate, a defense rejected in Oak-Cliff Golman Bak-
ing Co., 207 NLRB at 1064. Yet, it is clearly arguable that,
unlike the facts and conclusions in Oak-Cliff Golman, there
is room here for a finding that the article VIII wage rate
terms authorize a protest or appeal by Ross Brothers to have
NMAPC modify Local 577’s wage rates. Thus, unlike Oak-
Cliff Golman where there was repudiation of the agreement
in violation of Section 8(d) and Section 8(a)(5) of the Act,
in the instant case, Ross Brothers agreed to be bound by the
NMAPC decision and invoked the contract provision permit-
ting modification by NMAPC of the Local 577 wage rate.
Additionally, unlike Oak-Cliff Golman, where there was no
contract provision which could remotely authorize the em-
ployer’s refusal to pay the contract wage rate, here the
NIMA Agreement specifically authorizes an appeal to
NMAPC to ‘‘modify’’ the obligation to pay the local wage
rate. In addition, Local 577 also involved NMAPC’s help al-
beit in attempting to clothe the request as a ‘‘grievance.’’ I
believe, therefore, that Ross Brothers may arguably take the
position that its June 8, 1992 protest to NMAPC (G.C. Exh.
9) is consistent with one of the Board’s underlying supports
in the rationale of both Dubo Mfg. Co., 142 NLRB 431
(1963), and United Technologies Corp., 268 NLRB 557, 558
(1984). In those cases, the Board implemented or expanded
its deferral policy and relied, in pertinent part, on congres-
sional intent as manifested in Section 203(d), 29 U.S.C.
§ 173(d) (1976). The Board, quoting from the Act, supported:
549DEN-RAL, INC.
17 Under Collyer Insulated Wire, supra, 192 NLRB 837, Dubo,
supra, and United Technologies Corp., supra, the Board’s deferral is
an exercise of its discretion.
Final adjustment by a method agreed upon by the par-
ties is hereby declared to be the desirable method for
settlement of grievance disputes arising over the appli-
cation or interpretation of an existing collective-bar-
gaining agreement.
It is arguable that, whatever else Ross Brothers’ June 8,
1992 complaint relates to, it is not the ‘‘application or inter-
pretation’’ of the new contract; rather it is specifically a pro-
test of its high wage rate and, as an afterthought, Local 577’s
abandoning both its multicraft bargaining agency (Building
and Construction Trades Council) and its collective-bargain-
ing partner (Tri-State Building Contractors Association). Yet,
since the thrust of Ross Brothers’ protest is the wage rate,
since the wage rate, by the agreement of the parties, is sub-
ject to modification by NMAPC, and since both parties pre-
sented the issue to NMAPC, it seems to me consistent with
the congressional intent that the Board might well entertain
deferral based upon the language of article VIII (wages) and
the essential thrust of Ross Brothers’ June 8 protest to
NMAPC concerning the high wage rates (G.C. Exh. 9). Dubo
Mfg. Co., supra.
Assuming, therefore, all elements favorable to deferral in
favor of Ross Brothers’ position, I would nevertheless rec-
ommend to the Board that it not defer on these facts. For,
as in the case of the arguendo existence of a contractual
grievance under the NIMA Agreement, supra, Respondent
Ross Brothers here has rested on its oars for 11 months fol-
lowing submission of its protest against the Local 577 new
wage structure (G.C. Exh. 8). Ross Brothers is apparently
content with NMAPC’s inaction in the disposition of its June
8, 1992 protest. There has been 11 months of NIMA inaction
and 11 months of Ross Brothers failing to pursue the matter.
I recommend that the Board not defer to this contractual
process regardless of the omission of a contractual grievance
procedure relating thereto. I conclude that Respondent Ross
Brothers inaction for a period of 11 months militates against
Board deferral.17 I do not cast the burden on the Union of
prodding NMAPC to dispose of the issue because the NIMA
Agreement (art. VIII—wages) obligates the employer to pay
the wage rates in the local agreement ‘‘unless otherwise
modified by [NIMA].’’ The Union has the benefit of the lan-
guage as it exists. I conclude that the contract language
places the burden of proceeding, and continuing to proceed,
upon Respondent Ross Brothers since it is the party attempt-
ing to escape from an existing obligation of the NIMA
Agreement to which it admits that it is bound. I would rec-
ommend to the Board deferral not be granted under the in-
stant facts because the party seeking Board deferral is not
acting with diligence in securing the exceptional rights it
seeks pursuant to the contract on which it depends. In such
a situation, deferral, with its attendant further delay, would
only exacerbate what appears to be Ross Brothers’ attempt,
in substance, to escape from the financial terms of an other-
wise lawful collective-bargaining agreement by a policy of
inaction. Whatever other result flows therefrom, I cannot rec-
ommend to the Board that, exercising its discretion, it permit
Respondent Ross Brothers to invoke that discretion thereby
further delaying its contract obligation.
Thus, as above noted, I conclude that whether or not Re-
spondent Ross Brothers’ protest (G.C. Exh. 9) to NMAPC
constitutes a contractual grievance pursuant to article VI of
the NIMA Agreement or, nevertheless, constitutes a protest
cognizable under the contract which would otherwise invoke
the Board’s deferral doctrine, I conclude that Ross Brothers’
inaction militates against invoking the Board’s deferral pol-
icy. In either case, I reach this result because Respondent
Ross Brothers (a) failed to submit its protest to the American
Arbitration Association following NMAPC’s failure to reach
a decision (step 5, art. VI—grievances); or (b) because Re-
spondent Ross Brothers, even if it is not in possession of a
contractual grievance, failed to diligently pursue its rights
under the contractual method supplied in article VIII—
wages, for modification of the Local 577 wage rate by
NMAPC. I therefore conclude that, in any event, there be no
deferral of the Board processes and that the defense of defer-
ral or mere breach of contract be rejected.
It is therefore my ultimate conclusion that Respondents’
defenses, as above analyzed, do not meet the burden of re-
butting the prima facie case of a violation of Section 8(d)
and Section 8(a)(5) and (1) of the Act, Oak-Cliff Golman
Baking Co., 202 NLRB 614, 617 (1973).
The Violations with Respect to Huntington Piping, Inc.
Sam Hood, owner and president of Respondent Huntington
Piping, is a member of the Tri-State Building Contractors
Association and therefore, like Respondent Ross Brothers, is
chargeable with notice of the April 8, 1992 communication
from its bargaining agent, Tri-State Building Contractors to
Local 577 protesting the $3.09-per-hour wage increase. Hood
nevertheless testified that, around June 8 or 9, 1992, he first
learned of the new wage rate upon receiving a one-sheet let-
ter from Local 577 designating the new rates. At that time,
he was engaged on a job with Dow Chemical Company in
Ohio. For a 2-week period he paid his Local 577 plumbers
at the new rates established by Local 577 (G.C. Exh. 8) until
the matter of reimbursement could be cleared up with Dow
Chemical. After paying the higher rate for 2 weeks, Dow
Chemical told Huntington Piping that it would not reimburse
Huntington Piping for the higher rate. Huntington Piping
then refused to pay its Local 577 plumbers at the higher rate
and wrote of its dissatisfaction to Local 577 in June 1992
(G.C. Exh. 11; G.C. Exh. 12). In letters of June 12 and 24,
1992, Huntington Piping expressed ‘‘shock’’ at the $3.09 in-
crease; told of their customers’ displeasure with that wage in-
crease; and notified Local 577 that Huntington Piping would
not accept the terms of the new contract and wished to nego-
tiate a new contract with Local 577 covering wages. Having
received no response from Local 577, Huntington Piping, on
June 24, notified Local 577 that henceforth all wages and
fringe benefits would be paid at the contract rates of the ex-
pired contract to which it was a party (G.C. Exh. 5).
In a letter of August 14, 1992 (G.C. Exh. 15), Huntington
Piping noted that the International Union had denied to it the
extension of the NIMA Agreement to cover its Allied Signal
Corporation project in Ironton, Ohio. At a prejob conference
of August 4, 1992, Local 577 had insisted that the piping
work on that project was within its jurisdiction and that it
expected that the work be assigned to its pipefitters. Again
550 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
noting the denial of the extension of the NIMA contract by
the International Union to cover the job and Local 577’s in-
sistence on manning the project, Respondent Huntington Pip-
ing said that assignments would be made to Local 577 pipe-
fitters but would be made under terms and conditions ‘‘iden-
tical to the [NIMA] agreement’’ although no formal NIMA
Agreement existed on the project with the pipefitters. It in-
sisted on paying the pipefitters pursuant to the terms of the
expired collective-bargaining agreement (G.C. Exh. 5) until
a further collective-bargaining agreement was negotiated be-
tween it and Local 577 (G.C. Exh. 15).
Although the record is not clear on the point, it appears
that Huntington Piping agreed to be bound by the provisions
of the collective-bargaining agreement, and successor agree-
ments, between Local 577 and the Southern Ohio Mechanical
Contractors Association (G.C. Exh. 5) on or about May 27,
1986 (C.P. Exh. 3).
On August 17, 1992, the International Union (UA) wrote
to Huntington Piping:
Dear Mr. Hood:
This will supersede our communications of July 2
and July 8, 1992 denying your request for the National
Industrial Maintenance Agreement to cover work at Al-
lied-Signal Corporation, Ironton Facility–Ironton, Ohio,
which is located in the jurisdiction of United Associa-
tion Local Union No. 577 of Portsmouth, Ohio.
Please be advised that we have reconsidered your re-
quest to extend this Agreement and it has now been ap-
proved and may be placed into effect at the above
named location. Please be advised that Local Union
577’s 100% wage rate is $21.72 per hour, plus fringes.
Please note that this site is approved at 90% wages,
which equals $19.55 per hour, and 100% fringes.
It is understood and agreed to by your signature to
the National Industrial Maintenance Agreement that you
will forward quarterly man-hour reports to Mr. Noel C.
Borck, Impartial Secretary of the National Maintenance
Agreements Policy Committee, Inc. Mr. Borck’s office
will forward your company the necessary reporting
forms.
On August 21, 1992, Huntington Piping promptly re-
sponded to the International Union (UA) regarding the above
August 17 letter which extended the NIMA Agreement to the
Allied-Signal Corporation project under the jurisdiction of
Local 577. In Huntington Piping’s August 21 reply it ac-
knowledges the extension of the NIMA Agreement to the Al-
lied-Signal project but notes:
We are in receipt of your letter of August 17, 1992,
whereas the U.A. has apparently ignored our letter of
August 14, 1992 (copy enclosed) and upon reconsider-
ation has agreed to extend the National Maintenance
Agreement to cover work at our Allied-Signal project
in Ironton, Ohio.
Our position is that the U.A. denied our request for
an extension and we have assigned the work to Local
Union 577 under an implied agreement identical to the
terms, conditions and provisions of the National Main-
tenance Agreement.
Furthermore, in response to the second paragraph of
your letter, Huntington Piping, Inc. has no current con-
tract with Local Union 577 and the wage rate to which
you refer is purportedly a rate which applies to a con-
tract which Local Union 577 has entered with a con-
tractors association in another area, specializing in non-
industrial work, of which Huntington Piping, Inc. is not
affiliated.
At all times since Respondent Huntington Piping’s dis-
continuance, after 2 weeks, of paying the plumbers working
in Local 577’s jurisdiction according to the terms of the new
contract between Local 577 and the Southeastern Contractors
Association (G.C. Exh. 8), it has refused to contribute to
Local 577’s various fringe benefit funds according to the
higher rates prescribed in the new contract. It has insisted on
contributing to those funds according to the lower rates con-
tained in the contract which expired on May 31, 1992, to
which it was a party (G.C. Exh. 5). Periodic letters from
Local 577 and its fund manager alleging the existence of
shortages in fringe benefit contributions were met by Re-
spondent Huntington Piping refusing to pay such additional
moneys pursuant to the new contract (G.C. Exh. 8), alleging
that it was neither a signatory of any contract with Local 577
nor a member of the Southeastern Contractors Association,
and was contributing to the Local 577 benefit funds accord-
ing to the rates in the expired contract (G.C. Exh. 5).
Discussion and Conclusions
Unlike the situation concerning Respondent Ross Brothers,
Respondent Huntington Piping did not file a grievance re-
questing NMAPC to modify the wage and fringe benefit
rates established by Local 577 and the Southeastern Mechan-
ical Contractors Association in the new contract (G.C. Exh.
8). Rather, Huntington Piping’s exclusive defense, on this
record, appears to be that since it is not a party to any agree-
ment with Local 577 and was not represented by Southeast-
ern Contractors Association in the new contract, it is not
bound by its terms. That defense, it seems to me, is an
irrelevancy.
The dispositive issue is not whether Respondent Hunting-
ton Piping has a separate collective-bargaining obligation
running to Local 577. Rather, it is whether Respondent Hun-
tington Piping, at all material times, has been, and is, bound
by the NIMA Agreement. That issue, I have found, above,
has been settled by Respondents’ concession on the record.
Therefore, since Respondent Huntington Piping (as well as
Respondent Ross Brothers) has been, and is, bound by the
NIMA Agreement, it is bound by the NIMA requirement that
work performed under the NIMA Agreement be paid pursu-
ant to the wage rate established in the Local Union’s agree-
ment for work performed in the Local Union’s jurisdiction.
In the instant case, the International Union, somewhat belat-
edly, extended NIMA coverage to Respondent Huntington
Piping on the Allied-Signal job. In fact, Respondent Hunting-
ton Piping requested such coverage which was finally grant-
ed to Respondent Huntington Piping by virtue of the Inter-
national Union’s August 17, 1992 letter (C.P. Exh. 2).
In short, therefore, where Respondents are bound by the
NIMA Agreement and NIMA coverage is then granted to
particular jobs in the Local 577 jurisdictional area, Respond-
ents, on this record, like all other NIMA-bound contractors,
are bound by the NIMA Agreement regardless whether they
have any separate contractual relationship to Local 577.
551DEN-RAL, INC.
Since Respondents are bound by the NIMA Agreement and
since the NIMA Agreement requires payment of both fringes
and wages pursuant to the outstanding Local 577 agreement,
Respondent Huntington Piping is bound by its NIMA obliga-
tion regardless of, and in spite of, any failure to have a sepa-
rate contractual relationship with Local 577.
I conclude, therefore, that Respondent Huntington Piping,
in failing and refusing to be bound by the wage rates and
fringe benefit rates in the existing Local 577 collective-bar-
gaining agreement (G.C. Exh. 8), like Respondent Ross
Brothers, has repudiated its collective-bargaining relationship
with the International under NIMA. They have done so by
unilaterally, and without consent, refusing to pay the wage
and fringe benefit rates which they were obliged to pay
under the NIMA Agreement. Such a failure is in derogation
of Respondents’ statutory obligations under Section 8(d) of
the Act and they thereby engaged in unfair labor practices
within the meaning of Section 8(a)(5) and (1) of the Act. See
Oakcliff-Golman Baking Co., 202 NLRB 614 (1974); 207
NLRB 1063 (1973), enfd. 505 F.2d 1302 (5th Cir. 1974),
cert. denied 423 U.S. 826 (1975).
On the above findings of fact and the entire record in this
case, I make the following
CONCLUSIONS OF LAW
1. The Respondents, Ross Brothers Construction Co., Inc.
and Huntington Piping, Inc., and each of them, are employers
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. (a) United Association of Journeymen and Apprentices
of the Plumbing and Pipefitting Industry of the United States
and Canada (the International Union or UA), is a labor orga-
nization within the meaning of Section 2(5) of the Act.
(b) Local No. 577, United Association of Journeymen and
Apprentices of the Plumbing and Pipefitting Industry of the
United States and Canada, AFL–CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. The following constitute units appropriate for purposes
of collective bargaining within the meaning of Section 9(b)
of the Act:
(a) All United Association employees of Ross Broth-
ers Construction Company now employed and em-
ployed in the future for maintenance, repair, replace-
ment and renovation in various plants within the geo-
graphical jurisdiction of the United Association [but ex-
cluding] general superintendents, superintendents, as-
sistant superintendents, office and clerical employees,
watchmen or other professional supervisory employees
as defined in the National Labor Relations Act, as
amended.
(b) All United Association employees of Huntington
Piping, Inc. now employed and employed in the future
for maintenance, repair, replacement and renovation in
various plants within the geographical jurisdiction of
the United Association [but excluding] general super-
intendents, superintendents, assistant superintendents,
office and clerical employees, watchmen or other pro-
fessional or supervisory employees as defined in the
National Labor Relations Act, as amended.
4. At all material times herein the International Union
(UA) has been the exclusive bargaining representative of the
employees in the aforesaid units within the meaning of Sec-
tion 8(f) of the Act.
5. Since June 1, 1992, by virtue of the terms of the collec-
tive-bargaining agreements between the International Union
(UA) and the Respondents, Respondents have been, and are,
obligated to pay to their employees in the units described in
paragraph 3 hereof, on NIMA-obligated jobs, the wages and
benefits specified in the current collective-bargaining agree-
ment between Local No. 577, United Association of Journey-
men and Apprentices of the Plumbing and Pipefitting Indus-
try of the United States and Canada, AFL–CIO, and the Me-
chanical Contractors Association of Southeastern Ohio.
6. Since on or about June 1, 1992, with respect to Re-
spondent Ross Brothers Construction Co., and since on or
about June 14, 1992, with regard to Respondent Huntington
Piping, Inc. by unilaterally refusing to pay the wages and
fringe benefits as described in paragraph 5 hereof to the em-
ployees in the aforesaid units according to the terms of the
collective-bargaining agreements with the United Associa-
tion, the Respondents have repudiated their statutory obliga-
tions to bargain with the International Union and have en-
gaged in and are engaging in unfair labor practices within the
meaning of Section 8(d) and Section 8(a)(5) and (1) of the
Act.
THE REMEDY
Having found that Respondents have been engaged in cer-
tain unfair labor practices, I recommend that the Respondents
cease and desist therefrom and take certain affirmative action
designed to effectuate the purposes of the Act including the
posting of the notice attached to this decision.
Since the Respondents, and each of them, in derogation of
their statutory obligations, unilaterally refused to pay the
wage rates and other financial contract benefits of their em-
ployees in the above units, under the terms of the NIMA col-
lective-bargaining contracts covering the employees, I rec-
ommend that the Respondents, and each of them, be directed
to implement the wage rates and other benefits in the collec-
tive-bargaining agreement between Local 577 and the South-
eastern Contractors Association (G.C. Exh. 8) for any project
under NIMA coverage and to hereafter refrain from making
such unilateral changes in wages, rates of pay, or other terms
or conditions of employment of its employees in the above-
described appropriate units during the term of the NIMA
contract without first reaching agreement with or receiving
permission from the International Union concerning such
contemplated changes. Further, I recommend that Respond-
ents, and each of them, commencing June 1, 1992 (or June
14, 1992, in the case of Huntington Piping), make whole
their employees in the above-described appropriate units for
any losses they may have suffered as a result of Respond-
ents’ unilateral reductions in contract wage rates, benefits,
and other contract terms and conditions of employment, Ogle
Protection Service, 183 NLRB 682 (1970), and include
thereon interest as computed in New Horizons for the Re-
tarded, 233 NLRB 1173 (1987). Respondents will also make
whole Local 577 for underpayments to fringe benefit funds,
with interest, and employees for expenses incurred as a result
of failure to make the fringe benefit contributions. Gaucho
Food Products, 311 NLRB 1270 (1993).
552 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
18 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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.
19 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.’’
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended18
ORDER
The Respondents, Ross Brothers Construction Company,
Ashland, Kentucky, and Huntington Piping, Inc., Hunting,
Weat Virginia, and each of them, and their officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively with United Associa-
tion of Journeymen and Apprentices of the Plumbing and
Pipefitting Industry of the United States and Canada, AFL–
CIO, as the exclusive representative of employees in the fol-
lowing units with respect to rates of pay, wages, hours of
employment, and other terms and conditions of employment:
(1) All United Association employees of Ross Broth-
ers Construction Co., now employed and employed in
the future for maintenance, repair, replacement and ren-
ovation in various plants within the geographical juris-
diction of the International Union (UA) [but excluding]
general superintendents, superintendents, assistant su-
perintendents, office and clerical employees, watchmen
or other professional or supervisory employees as de-
fined in the National Labor Relations Act, as amended.
(2) All United Association employees of Huntington
Piping, Inc., now employed and employed in the future
for maintenance, repair, replacement and renovation in
various plants within the geographical jurisdiction of
the International Union (UA) [but excluding] general
superintendents, superintendents, assistant superintend-
ents, office and clerical employees, watchmen or other
professional or supervisory employees as defined in the
National Labor Relations Act, as amended.
(b) Instituting changes in wages, rates of pay, fringe bene-
fits, or other terms and conditions of employment of employ-
ees in the above-described units during the effective term of
the collective-bargaining agreement with the International
Union (UA) covering the employees on any NIMA jobs
without first reaching agreement with the International Union
(UA) on any modification of the terms of the agreement.
(c) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Commencing June 1, 1992 (Respondent Ross Brothers
Construction), or June 14, 1992 (Huntington Piping, Inc.),
pay to all employees in the above-described units the wages
at the wage rates, and pay to Local No. 577, United Associa-
tion of Journeymen and Apprentices of the Plumbing and
Pipefitting Industry of the United States and Canada, AFL–
CIO, the fringe benefits, prescribed in the agreement (effec-
tive 1992–1997) between Local 577 and the Mechanical
Contractors Association of Southeastern Ohio, less any
wages and fringe benefits previously paid respectively to the
employees or Local 577, pursuant to any other formulation,
on all such NIMA-obligated jobs; and make whole all such
employees and Local 577 for any losses of wages or benefits
they may have suffered by virtue of Respondents failure to
pay such wages and benefits, with interest, on such wages
and fringe benefits to be paid on the basis of the rates estab-
lished and computed in New Horizons for the Retarded,
supra, as set forth in the remedy section of this decision.
(b) Preserve and, on request, make available to the Board
or its agents, for examination and copying, all payroll
records, social security payment records, timecards, personnel
records and reports and all other records necessary to analyze
the amount of backpay and fringe benefits due under the
terms of the recommended Order.
(c) Post at Respondents’ offices respectively, in Kentucky
and West Virginia, copies of the notice attached marked
‘‘Appendix.’’19 Copies of the notice on forms provided by
the Regional Director for Region 9, after being signed by the
Respondents’ authorized representatives shall be posted by
them immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places, including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by each of the Respondents to en-
sure that the notices are not altered, defaced, or covered by
any other material.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondents have
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively with United
Association of Journeymen and Apprentices of the Plumbing
and Pipefitting Industry of the United States and Canada,
AFL–CIO (the United Association or the International), as
the exclusive representative of employees in the following
units with respect to rates of pay, wages, hours of employ-
ment, and other terms and conditions of employment:
(1) All United Association employees of Ross Broth-
ers Construction Co., now employed and employed in
the future for maintenance, repair, replacement and ren-
ovation in various plants within the geographical juris-
diction of the International Union (UA) [but excluding]
general superintendents, superintendents, assistant su-
perintendents, office and clerical employees, watchmen
or other professional or supervisory employees as de-
fined in the National Labor Relations Act, as amended.
(2) All United Association employees of Huntington
Piping, Inc., now employed and employed in the future
for maintenance, repair, replacement and renovation in
various plants within the geographical jurisdiction of
553DEN-RAL, INC.
the International Union (UA) [but excluding] general
superintendents, superintendents, assistant superintend-
ents, office and clerical employees, watchmen or other
professional or supervisory employees as defined in the
National Labor Relations Act, as amended.
WE WILL NOT institute changes in wages, rates of pay,
fringe benefits, or other terms and conditions of employment
of employees in the above-described units during the effec-
tive term of the collective-bargaining agreement with the
International Union (UA) covering the employees or any
NIMA jobs without first reaching agreement with the Inter-
national Union (UA) on any modification of the terms of the
agreement.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL, commencing June 1, 1992 (Respondent Ross
Brothers Construction), or June 14, 1992 (Huntington Piping,
Inc.), pay to all employees in the above-described units the
wages at the wage rates, and pay to Local No. 577, United
Association of Journeymen and Apprentices of the Plumbing
and Pipefitting Industry of the United States and Canada,
AFL–CIO, the fringe benefits, prescribed in the agreement
(effective 1992–1997) between Local 577 and the Mechani-
cal Contractors Association of Southeastern Ohio, less any
wages and fringe benefits previously paid respectively to the
employees or Local 577 pursuant to any other formulation on
all such NIMA-obligated jobs; and make whole all such em-
ployees and Local 577 for losses of wages or benefits they
may have suffered by virtue of Respondents’ failure to pay
such wages and benefits with interest on such wages and
fringe benefits.
ROSS BROTHERS CONSTRUCTION COMPANY
HUNTINGTON PIPING, INC.