Excel Fire Protection Co.

National Labor Relations Board - Board Decisions

Aug 14, 1992

308 N.L.R.B. 241 (N.L.R.B. 1992)

241
308 NLRB No. 44
EXCEL FIRE PROTECTION CO.
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
2 The judge found that on July 22, 1991, the Union requested rel-
evant information necessary for it to perform its responsibilities as
bargaining agent, including ‘‘copies of any and all contracts, sub-
contracts, and/or agreements [the Respondent] has entered into re-
garding the installation, maintenance, or repair of sprinkler systems
within the past six months.’’ The judge found that these contracts
were necessary because the Respondent did not respond adequately
to the Union’s earlier requests on April 18 and 26, 1991, for the
identities of employees working for the Respondent and the locations
of jobs in progress. As we shall order the Respondent to furnish the
Union with the information it requested on April 18 and 26, for
which it made renewed requests on July 22 and August 1, 1991, we
find that the additional contract information requested on July 22 is
not now necessary for the Union to fulfill its statutory responsibil-
ities. We, therefore, shall not require the Respondent to furnish that
additional information and have modified the judge’s recommended
Order accordingly.
To the extent that the Union’s information requests seek employ-
ees’ social security numbers, we find that that information is not pre-
sumptively relevant to the Union’s performance of its duties as col-
lective-bargaining representative of the unit employees. Further, we
find that the General Counsel has failed to demonstrate the relevance
of the social security numbers and failed to show any special cir-
cumstances warranting the furnishing of social security numbers. We
shall therefore not require that the Respondent furnish that informa-
tion. This does not, however, excuse the Respondent’s unlawful fail-
ure to supply other information requested by the Union. See Sea-Jet
Trucking Corp., 304 NLRB 67 (1991).
Excel Fire Protection Co., Inc. and Road Sprinkler
Fitters Local No. 669, United Association of
Journeymen and Apprentices of the Plumbing
and Pipe Fitting Industry of the United States
and Canada, AFL–CIO. Cases 18–CA–11700
and 18–CA–11811
August 14, 1992
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On April 14, 1992, Administrative Law Judge Wil-
liam J. Pannier III issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the Charging Party filed an answering brief.
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 briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order as
modified.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Excel Fire Protection Co.,
Inc., Sioux Falls, South Dakota, its officers, agents,
successors, and assigns, shall take the action set forth
in the Order as modified below.
1. Substitute the following for paragraph 2(b).
‘‘(b) Immediately supply the above-named labor or-
ganization with all information requested in its letters
of April 18 and 26, and in renewed requests for more
recent information of the same nature on July 22 and
August 1, 1991, excluding employee social security
numbers and copies of contracts, subcontracts, and
agreements, that is necessary for it to perform its re-
sponsibilities as the employees’ bargaining agent.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT continue withholding recognition
from, and WE WILL NOT fail and refuse to bargain
with, Road Sprinkler Fitters Local No. 669, United As-
sociation of Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry of the United
States and Canada, AFL–CIO as the exclusive rep-
resentative of our employees in the following appro-
priate bargaining unit:
All journeymen and apprentice sprinkler fitters
employed at and out of our Sioux Falls, South
Dakota, and Marquette, Michigan facilities; ex-
cluding office clerical employees, professional
employees, guards and supervisors as defined in
the Act, and all other employees.
WE WILL NOT withdraw recognition from the above-
named labor organization, nor from any other labor or-
ganization representing our employees in an appro-
242 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Unless otherwise stated, all dates occurred in 1991.
2 On March 30, 1992, I received a motion to further amend com-
plaint and to reopen hearing, essentially to establish that, since the
hearing closed, Respondent’s assets have been moved to other enti-
ties and persons to escape any liability imposed as a result of Re-
spondent’s unfair labor practices. I deny the motion. In this phase
of the proceedings set in motion by the underlying charges, the ques-
tion is whether unfair labor practices were committed—that is, does
liability exist? For the reasons set forth post, I conclude that the Act
was violated by Respondent’s conduct. Assuming that I am affirmed,
a determination of extent of that liability is made during the compli-
ance phase of this proceeding. During that latter phase, liability of
alter egos and successors can be determined whenever, as is argued
here, they entered the picture after the initial hearing closed. In fact,
the prefatory paragraph of the Order, infra, explicitly extends to such
entities. Moreover, as provided in subpar. 2(e) of that Order, Re-
spondent must make its books and records available to the General
priate bargaining unit, at a time when we do not have
a good-faith doubt of that labor organization’s continu-
ing support by a majority of the employees in the bar-
gaining unit and at a time when that labor organization
has not lost the support of a majority of the employees
in that bargaining unit.
WE WILL NOT engage in surface and bad-faith bar-
gaining by negotiating with the above-named labor or-
ganization, or any other labor organization representing
our employees in an appropriate bargaining unit, with
no intention of trying to reach agreement on the terms
for a collective-bargaining contract.
WE WILL NOT bypass your collective-bargaining
agent and try to deal directly with you concerning your
wages, hours, and working conditions.
WE WILL NOT change any employment terms of em-
ployees in the above-described appropriate bargaining
unit without first giving notice to the above-named
labor organization and affording it an opportunity to
bargain about that change.
WE WILL NOT refuse to furnish all relevant informa-
tion promptly that is requested by the above-named
labor organization that is necessary for it to perform its
responsibilities as the bargaining agent for employees
in the above-described appropriate bargaining unit.
WE WILL NOT discharge, constructively discharge, or
otherwise discriminate against John Dumdei, Brad
Fuller, Thomas Kruger, Wendell Leonard, Don Miller,
John Rollings, or any other employee because of activ-
ity and support for the above-named labor organiza-
tion.
WE WILL NOT threaten to discharge you if you are
unwilling to forgo representation by the above-named
labor organization, or any other labor organization, and
WE WILL NOT threaten you if you are unwilling to con-
tinue working under unlawfully imposed changes in
your employment terms and conditions.
WE WILL NOT in any like or related manner interfere
with any of your rights set forth above which are guar-
anteed by the National Labor Relations Act.
WE WILL recognize and, on request, bargain in good
faith with the above-named labor organization, as the
bargaining agent for our employees in the above-de-
scribed appropriate bargaining unit, and embody any
agreement reached in a written contract.
WE WILL immediately supply the above-named labor
organization with relevant and necessary information
that it requested on April 18 and 26, and for which it
made renewed requests for more recent information of
the same nature on July 22 and August 1, 1991, ex-
cluding social security numbers and copies of con-
tracts, subcontracts, and aqreements.
WE WILL, on request by the above-named labor or-
ganization, rescind all changes in employment terms
for employees in the above-described appropriate bar-
gaining unit made on and after April 1, 1991, and WE
WILL make whole all employees and benefit funds,
with interest, for any losses incurred as a result of
those rescinded changes.
WE WILL, to the extent that we have not already
done so, offer immediate and full reinstatement to John
Dumdei, Brad Fuller, Thomas Kruger, Wendell Leon-
ard, Don Miller, and John Rollings to the positions
from which they were unlawfully discharged or con-
structively discharged, dismissing, if necessary, anyone
who may have been hired or assigned to the positions
from which they were discharged, or, if any of their
positions no longer exists, to substantially equivalent
positions, without prejudice to their seniority or other
rights and privileges, and make them whole for any
loss of pay and benefits they suffered as a result of our
discriminatory discharge of them, with interest on the
amount owing.
EXCEL FIRE PROTECTION CO., INC.
Marlin O. Osthus, for the General Counsel.
John E. Burke, of Sioux Falls, South Dakota, for the Re-
spondent.
Richard W. Gibson (Beins, Axelroad, Osborne & Mooney),
of Washington, D.C., for the Charging Party.
DECISION
STATEMENT OF THE CASE
WILLIAM J. PANNIER III, Administrative Law Judge. I
heard this case in Sioux Falls, South Dakota, on September
17, 1991.1 On August 7 the Regional Director for Region 18
of the National Labor Relations Board (the Board), issued an
order consolidating cases, second amendment to the com-
plaint and notice of hearing, consolidating a complaint and
notice of hearing issued on May 8, based on an unfair labor
practice charge filed in Case 18–CA–11700 on April 1, and
amended on May 7, with an unfair labor practice charge filed
in Case 18–CA–11811 on June 27, and alleging violations of
Section 8(a)(1), (3), and (5) of the National Labor Relations
Act, 29 U.S.C. § 151 et seq. (the Act). All parties have been
afforded full opportunity to appear, to introduce evidence, to
examine and cross-examine witnesses, and to file briefs.
Based on the entire record,2 on the briefs that were filed, and
243EXCEL FIRE PROTECTION CO.
Counsel and, accordingly, determinations concerning disposition of
assets can be made with greater accuracy than now is possible.
In denying the General Counsel’s motion, I feel compelled to
point out that liability cannot be escaped through the simple device
of asset dispersal before a final decision issues. In fact, such conduct
may only subject other entities to liability, see, e.g., Brown Co., 305
NLRB 62, 63 (1991), and may well subject Respondent’s owners
and officers to personal liability for backpay, as well as, perhaps, to
other proceedings.
on my observation of the demeanor of the witnesses, I make
the following
FINDINGS OF FACT
I. JURISDICTION
At all times material, Excel Fire Protection Co., Inc. (Re-
spondent) has been a South Dakota corporation, with offices
and places of business in Sioux Falls, South Dakota, and in
Marquette, Michigan, and has been engaged in the installa-
tion of automatic fire protection systems in existing facilities
and in facilities under construction. In the course and con-
duct of those business operations during calendar year 1990,
Respondent purchased and received goods and materials val-
ued in excess of $50,000 at its South Dakota construction
projects and facilities directly from points outside the State
of South Dakota. Therefore, I conclude, as admitted in the
answer to complaint, that at all times material, Respondent
has been an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
At all times material, Road Sprinkler Fitters Local No.
669, United Association of Journeymen and Apprentices of
the Plumbing and Pipe Fitting Industry of the United States
and Canada, AFL–CIO (the Union) has been a labor organi-
zation within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Issues
Respondent commenced doing business in approximately
June 1982, with two owners: President Kevin Masich, a 53-
percent owner, and Vice President Charles Steinhauser, who
owned the remaining interest in Respondent. Respondent ad-
mits the allegation that, at all times material, each of those
two men had been a statutory supervisor and its agent.
For the first few years Respondent had only a single of-
fice, in Sioux Falls. During 1987 it opened a second office,
in Marquette, although it was not until the following year
that it successfully bid for a job in Michigan and actually
began working on a project from the Marquette office.
Masich moved to Michigan and directly supervised oper-
ations conducted from the Marquette office. Steinhauser re-
mained in Sioux Falls and directly supervised operations
conducted from that office. However, the two owners con-
ferred by telephone at least once a week and Masich would
travel to Sioux Falls to confer with Steinhauser whenever a
big project arose in South Dakota. Ultimately a falling out
occurred between them. As a result, Respondent purchased
Steinhauser’s ownership interest in November of 1990. But,
Steinhauser continued managing the Sioux Falls based oper-
ations until the first of the following April, by which date
his relationship with Respondent was severed completely.
In September 1983, Steinhauser, on behalf of Respondent,
signed an ‘‘assent and interim’’ contract with the Union.
That contract provided, inter alia, that Respondent would be
bound to the terms of a contract between the Union and a
particular multiemployer association, the National Automatic
Sprinkler and Fire Control Association, Inc. Thereafter, as
successive association contracts were negotiated and exe-
cuted, Steinhauser signed successive assent and interim con-
tracts on behalf of Respondent. The last such contract was
scheduled to expire on March 31.
In signing those contracts, the Union was serving as the
collective-bargaining agent of all journeymen and apprentice
sprinkler fitters employed at and out of Respondent’s Sioux
Falls and, once work began in Marquette, Michigan facilities,
excluding office clerical employees, professional employees,
guards and supervisors as defined in the Act, and all other
employees. Respondent admits the allegation that this is a
unit appropriate for bargaining within the meaning of Section
9(b) of the Act.
Respondent does deny the allegation that the Union has
been the designated representative of a majority of those em-
ployees at all times material. However, in doing so, Re-
spondent apparently relies only on the assertion, embodied as
an affirmative defense in paragraph IV of its answer to com-
plaint, that the employees in the unit ‘‘engaged in a strike
. . . and as a result thereof they were replaced . . . since the
union employees all terminated their services and left the job
sites without notice.’’ In other words, Respondent’s chal-
lenge to the Union’s continued majority status is rooted in
events after March 31, rather than on any events occurring
or not occurring before that date. At no point did Respondent
raise a defense to the Union’s majority status based on its
own status as an employer engaged in the construction indus-
try, under the principles enunciated in John Deklewa & Sons,
Inc., 282 NLRB 1375 (1987), enfd. 843 F.2d 770 (3d Cir.
1988).
Nevertheless, the General Counsel presented evidence that
removed any doubt that the Union had achieved status as the
representative of a majority of the unit employees within the
meaning of Section 9(a) of the Act. Thus, on October 12,
1987, in the wake of the Deklewa decision, the Union sent
an acknowledgement of its representative status to Respond-
ent, providing that the latter ‘‘has on the basis of objective
and reliable information, confirmed that a clear majority of
the sprinkler fitters in its employ have designated, are mem-
bers of, and are represented by’’ the Union and, further,
‘‘unconditionally acknowledges and confirms that [the
Union] is the exclusive bargaining representative of its sprin-
kler fitter employees pursuant to [§ 9(a) of the Act].’’ After
ascertaining that all of Respondent’s then-employed sprinkler
fitters were, in fact, members of the Union, Steinhauser
signed the acknowledgement on October 19, 1987. Further-
more, though Masich appeared as a witness, he did not dis-
pute Steinhauser’s testimony that, before the acknowledge-
ment had been signed, the two of them had discussed it by
telephone and that Masich had concurred in the decision that
it should be signed.
During the term of the most recent contract, scheduled to
expire on March 31, Steinhauser spoke occasionally in per-
son and by telephone with Terry Zahn, business agent for
244 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
District 23 of the Union. During at least some of those con-
versations, Steinhauser complained about the competitive ef-
fects of some of that contract’s provisions. According to
Steinhauser, Zahn had responded that ‘‘he couldn’t negotiate
a separate contract with an individual company. It had to be
all one contract for each company.’’ Asked if that informa-
tion had been conveyed to Masich, Steinhauser answered, ‘‘I
guess that’s true.’’ However, with regard to his responses to
Steinhauser, Zahn testified: ‘‘What I said to Chuck was, ‘I
never have signed a contract less than what our contract
was.’ I didn’t say we could not or we would not, I said, ‘I
never had.’’’
By letter dated January 22, Respondent’s counsel notified
the Union that, pursuant to article 30 of the then-effective
contract, Respondent was providing notice that, ‘‘[W]e do
not wish to alter the agreement. It is your written notice that
we are terminating the agreement as of March 31, 1991.’’ On
the following day, January 23, Masich authorized his signa-
ture to be affixed to a separate letter that was sent to the
Union:
Please consider this to be our formal notice that [Re-
spondent] is no longer going to be a union company
and consider this to be our formal notice that we are
terminating the union contract now in place. [Respond-
ent] is going to be a non-union company upon the expi-
ration of the present contract.
By letter dated February 6, the Union responded to
Masich’s January 23 letter, stating that it would ‘‘be avail-
able for negotiations for a successor agreement,’’ and would
later contact Masich to arrange ‘‘a date, time and place to
begin negotiations.’’
It is undisputed that, in mid-to late February, Zahn tele-
phoned Masich to inquire about Respondent’s problems and
to set up a meeting to open negotiations for another contract.
However, Masich did not deny that he had refused to partici-
pate in such a meeting, telling Zahn ‘‘there was no way, he
didn’t need it.’’ Furthermore, Masich did not deny that when
Zahn had pursued the subject of meeting to ‘‘figure out what
the problems were,’’ he (Masich) had retorted that ‘‘the
union wasn’t doing him any good. That he had to fight to
non-union by himself,’’ and that ‘‘there was no reason to
carry on any further, that he was going to be non-union. He
didn’t want [the Union].’’
It also is undisputed that on Thursday, March 28, Zahn
went to the Morrell Packing Plant site where Masich was
working with two employees and handed Masich a written
request to begin negotiations on the following day, March
29. Masich did not deny having told Zahn that ‘‘there was
no way he was going to meet with us.’’ Zahn further testi-
fied, without contradiction, that when he had asked why the
two employees working with Masich were nonbargaining
unit shop employees, Masich had responded ‘‘that he could
offer his people a lot better apprenticeship program, train
them better and cheaper and we couldn’t supply him with
him [sic].’’ This conversation concluded, it is undenied, with
Masich repeating that ‘‘he wasn’t going to meet with [the
Union] and he was going to be non-union at midnight on the
31st.’’
Apparently Masich had second thoughts following that
conversation. For, a couple of hours later on March 28, the
Union received a FAX-message in which Masich offered ‘‘to
meet with [the Union] on the 29TH after 5:00 PM or any
time on 3–30–91 or 3–31–91.’’ Zahn notified Respondent
that he had ‘‘schedule[d] a meeting for Sunday, March 31,
1991 at 8:00 P.M. at the Holiday Inn Airport, Sioux Falls,
SD.’’ However, before that meeting could occur, certain in-
tervening events took place.
Either by mail or included with their paychecks, each unit
employees was given a two-page memorandum by Respond-
ent. The first page, dated March 29, is a form letter given
to all employees and listing ‘‘Continued Employment’’ as its
subject. In pertinent part, it states:
This letter is to notify you that [Respondent] has
been unable to reach a satisfactory agreement with [the
Union] for the new Contract period and as of April 1,
1991 will no longer be affiliated with [the Union]. At
this time we would like to present the attached offer of
employment to you. Please note, [Respondent] will be
operating as an open shop employer and would not be
making contributions to any Union funds or benefit
plans.
. . . .
Please carefully review our offer and designate your
choice of continued employment on the appropriate
line. No matter which option you chose [sic], we appre-
ciate the job you have done for [Respondent] and wish
you the best of luck in the future.
The second page of each memorandum contains specific
wage rates, insurance, retirement, vacation, holiday, and sub-
sistence benefits, tailored to the particular employee recipi-
ent. That offer is followed by spaces of the employee to
‘‘ACCEPT THIS OFFER’’ or to indicate, by signing it, that
‘‘I AM DECLINING CONTINUED EMPLOYMENT.’’
There is no dispute concerning the essential events that oc-
curred at the meeting between representatives of the Union
and Respondent on March 31. Three individuals appeared as
Respondent’s representatives, one of whom was Masich and
another of whom was Respondent’s then-counsel Don Bright.
Producing a copy of the then-expiring contract, Zahn ‘‘asked
if we could go through our contract book to find out what
the problems were, where the problems lied [sic] so that we
could have a basis on negotiations where to start,’’ but
Bright responded, ‘‘That they rejected this contract. They
wanted nothing to do with this contract.’’ According to
Zahn’s uncontradicted description,
They kept asking for proposals and I said, ‘‘Well, at
first, we need to go through this book and find out
what is the matter, you know, where our problems lie
so that we can break something out and go after it in
negotiations.’’ Again, they refused anything to do with
this contract. They kept asking for proposals and I said,
‘‘Well, do you have any counter proposals? Anything
that you can give us to tell us what the problem is.’’
And they said no, this was our meeting, that we had
to have the proposals. So, we caucused a little bit, went
down and put together some proposals, brought them
back up.
245EXCEL FIRE PROTECTION CO.
After caucusing, Respondent’s representatives returned to
the meeting, testified Zahn, and rejected the proposals pre-
sented by the Union:
One said they was basically the same thing that’s in
the contract book and the other one said they were too
high. And I said, ‘‘My gosh, we have to have a basis
to go on. Let’s start with these. You wanted proposals.
We gave you some proposals. Let’s work them out.’’
They just flat rejected everything. Refused to meet with
us at all on it, on these issues.
Zahn testified that when he suggested that Respondent’s rep-
resentatives make some proposals, ‘‘they stated, ‘This is your
meeting. We don’t have to have proposals. You do,’’’ and,
then, ‘‘said that was the end of the meeting. There as nothing
to meet about. That there was no sense going over any more
proposals. They reject it.’’ Zahn testified, without contradic-
tion, that he had asked if another meeting could be arranged,
but was told flatly, ‘‘No.’’
As of April 1 Respondent found itself in the position of
having to hire employees to staff its projects, because the
unit employees were not reporting to work. It began to do
so on April 8. Masich admitted that, for newly hired employ-
ees, Respondent instituted new terms and conditions of em-
ployment, in the process discontinuing such matters as con-
tributions to contractually specified benefits plans and par-
ticipation in the apprenticeship program specified in the by-
then expired contract.
By letter dated April 2, Zahn renewed the Union’s request
for another negotiating meeting. Respondent did reply, sug-
gesting a meeting on April 12. But Zahn was unavailable on
that date due to commitments to be present for certain pro-
ceedings in the Board’s Minneapolis Regional Office. As a
result of a subsequent conversation with Respondent’s office
manager, Margo Masich, Zahn notified her by letter dated
April 18 that the Union had reserved a room in Sioux Falls
so that the parties could meet at 5 p.m. on May 3. In that
same letter, Zahn requested that Respondent,
bring with you to the May 3rd meeting a listing of all
employees, including their name, address, social secu-
rity number, telephone number and rate of pay. In addi-
tion, we would also like a listing of all jobs that are
currently in progress.
That request generated a response from Respondent’s
counsel. In a letter dated April 23, he asserted that the em-
ployees represented by the Union had ‘‘walked off the job
without any prior notice and terminated their employment by
such volunteer act,’’ that permanent replacements had been
hired and had volunteered that they did not want representa-
tion by the Union, and that,
Under these circumstances, we aren’t going to pro-
vide you with any information about our employees or
any of the data you asked for in your letter. It isn’t nec-
essary information for you to have to determine the ac-
curacy of my statements because if the employees are
members of your union you would know that and if
they’re working for [Respondent] you’d know that also.
Therefore, such information is not necessary for any
legal purpose.
That letter provoked a response from the Union’s counsel.
By letter dated April 26, he disputed the assertion that the
employees, in effect, had quit and asserted that they had been
‘‘constructively discharged because [Respondent] unlawfully
withdrew recognition of [the Union] and imposed unlawful
terms and conditions of employment on its employees.’’ He
renewed the request for the ‘‘necessary and relevant informa-
tion’’ sought in Zahn’s April 18 letter, asserted that the
Union ‘‘remains the exclusive bargaining representative of’’
Respondent’s employees, and inquired if Respondent ‘‘is re-
fusing to continue negotiations . . . .’’ In a letter dated April
29, Respondent’s counsel responded, inter alia,
[The Union] has never been certified as the exclusive
bargaining representative of the employees of [Re-
spondent] and so there are no statutory presumptions.
As a factual matter, it does not represent any of [Re-
spondent’s] employees. Any of its members who were
employees have refused to work for [Respondent] until
such time as [Respondent] capitulates and signs the
non-negotiable existing contract. This is not [a] legal
demand and we refuse to accept it.
As a result, because your client does not represent
our employees, we will not meet with your client on
May 3 nor will we furnish the information they have
requested.
Ultimately, for reasons not evident from the record, a list
of employees, with the related requested information pertain-
ing to them, was sent to the Union under cover letter dated
July 16. However, it is uncontroverted that at least two em-
ployees then working for Respondent were not included and,
further, that none of Respondent’s South Dakota projects
were included among the listed projects, though Respondent
did have at least two such projects in progress. Additionally,
some already completed Minnesota projects were included as
projects then in progress. As a result, on July 22 the Union
sent a letter to Respondent, repeating its request for the in-
formation pertaining to unit employees and projects on which
they were working.
By letter dated July 25, Masich responded that Respondent
had already furnished ‘‘all of the information about our em-
ployees and jobs necessary for your business agent to bargain
properly,’’ and concluded the letter by stating,
If, during the course of negotiations, it appears to us
that further information is necessary to bargain properly
it will be furnished. In the meantime, rather than make
demands upon me for this information, I’d like to sug-
gest that if you want to we should sit down here in
Sioux Falls and start negotiating.
On August 1, the Union sent Masich a letter spelling out
the now undisputed deficiencies in the information provided
with the July 16 letter. However, no additional information
has been provided by Respondent to the Union. Nor did Re-
spondent express any willingness to further participate in ne-
gotiations with the Union.
In the context of the foregoing facts, the General Counsel
alleges that Respondent violated Section 8(a)(5) and (1) of
the Act by bypassing the Union and dealing directly with
employees, by engaging in surface and bad-faith bargaining
with no intention of reaching agreement on the terms for an-
246 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
other collective-bargaining contract, by withdrawing recogni-
tion and unilaterally changing existing terms and conditions
of employment, and by refusing to provide relevant informa-
tion necessary for the Union to perform its function as the
employees’ collective-bargaining representative. The General
Counsel further alleges that Respondent violated Section
8(a)(1) of the Act by notifying employees that their contin-
ued employment was conditioned on foregoing representation
and accepting changed employment conditions, and that it
violated Section 8(a)(3) and (1) of the Act by constructively
discharging six unit employees—John Dumdei, Brad Fuller,
Thomas Kruger, Wendell Leonard, Dan Miller and John
Rollings—who refused to accept continued employment
without representation and under unlawfully imposed condi-
tions of employment. For the reasons set forth in subsection
III,B, infra, I conclude that a preponderance of the evidence
supports each of these allegations.
B. Discussion
Save for the allegation pertaining to constructive dis-
charge, there is relatively no dispute regarding the material
facts. As described in subsection III,A, supra, on March 29
Respondent distributed a memorandum telling each employee
that his continued employment was conditioned on agree-
ment to, inter alia, employment terms that differed from ex-
isting ones spelled out in the then-expiring collective-bar-
gaining contract. All other considerations aside, at the time
that those offers were tendered a contract was in effect and
the Union continued to be the employees’ bargaining agent.
Therefore, by directly offering changed employment terms to
represented employees, Respondent bypassed their bargaining
agent and directly bargained with represented employees in
violation of Section 8(a)(5) and (1) of the Act. Moreover, by
explicitly conditioning employees’ continued employment on
acceptance of those terms and upon agreement to forgo con-
tinued union representation, Respondent effectively threat-
ened to discharge employees if they were unwilling to forgo
rights guaranteed by Section 7 of the Act, thereby independ-
ently violating Section 8(a)(1) of the Act.
Nor can it be said that, during the meeting of March 31,
Respondent complied with the Act’s obligation to bargain
with an intention to, at least, try to reach agreement on the
terms for a contract. Despite months of informal complaints
about the effects of the then-existing contract’s provisions,
Respondent’s representatives flatly rejected the Union’s invi-
tation at that meeting to identify the particular provisions that
Respondent believed was causing it competitive problems. Of
course, Steinhauser had complained to Zahn about specific
contractual provisions during their previous conversations.
But, those conversations had been, at best, mere informal
discussions, as opposed to formal meetings to negotiate terms
for a new contract. Further, Steinhauser was not one of the
representatives who appeared for Respondent to conduct ne-
gotiations on March 31 and, so far as the record discloses,
there was no basis for the Union to believe that his own
views necessarily reflected those of the representatives who
did appear for negotiations on that date. In any event, it
hardly was pernicious to request that those representatives
state, or restate, Respondent’s particular problems as a basis
for starting negotiations. Certainly, a party is not obliged to
guess at what specific actual problems exist solely on the
basis of past informal gripes and complaints.
Rather than identify particularly troublesome contractual
provisions, Respondent’s representatives flatly rejected the
entire contract at the March 31 meeting, thereby refusing to
agree to continuation of even single one of its provisions.
After insisting that the Union present proposals, Respond-
ent’s representatives then rejected every one that was pre-
sented, without explanation or expression of willingness to
discuss the basis for those rejections. In addition, Respondent
presented no proposals or suggestions of its own that might
facilitate the progress of negotiations toward possible agree-
ment. Moreover, as the meeting of March 31 neared conclu-
sion, Respondent’s representatives refused to schedule an-
other negotiating session. The sum of that conduct evidences
an unwillingness to attempt to reach agreement on the terms
for another contract.
That conclusion is reinforced by the fact that Masich, Re-
spondent’s president, had previously announced repeatedly,
both orally and in writing, that Respondent would no longer
recognize the Union and intended to operate on a nonunion
basis once the then-existing contract expired. Moreover, as
concluded above, 2 days before the March 31 negotiating
session Respondent had violated the Act by bypassing the
Union and directly bargaining with employees whom it rep-
resented and, in addition, had unlawfully threatened that em-
ployees would be terminated if they did not forgo representa-
tion and agree to the employment terms that would be unilat-
erally implemented once that contract expired. These events
serve to shed light on Respondent’s actual intentions during
the March 31 meeting and to reinforce the conclusion that,
in light of its representatives’ conduct at that bargaining ses-
sion, Respondent did not bargain with an intention to try to
reach agreement on terms for another contract.
As the hearing progressed, Respondent questioned the
Union’s willingness to agree to any contractual terms other
than those that would be embodied in its contract with the
multiemployer association to whose contracts Respondent
had simply assented in the past. Of course, a labor organiza-
tion might well violate Section 8(b)(3) of the Act by entering
negotiations with a preconceived intention of agreeing to no
contract terms other than those contained in a contract with
another employer or employer group. Yet, any such conclu-
sion about the Union’s intention would be sheer conjecture
in the context of the evidence presented in the instant case.
Not only did the Union attempt to ascertain which then-exist-
ing contractual provisions posed problems for Respondent,
thereby evidencing some willingness to at least try to accom-
modate Respondent’s problems, but the Respondent’s own
unwillingness to engage in meaningful negotiations precluded
any test of the Union’s actual willingness to negotiate par-
ticular provisions that would accommodate whatever prob-
lems Respondent believed that it had been encountering. In-
deed, Respondent has presented no evidence whatsoever
showing that the Union had been unwilling to do so. There-
fore, I conclude that Respondent did violate Section 8(a)(5)
and (1) of the Act by engaging in surface and bad-faith bar-
gaining with no intention of entering into another contract
with the Union.
As Masich had previously threatened, Respondent did
withdraw recognition of the Union as the sprinkler fitters’
bargaining agent immediately upon expiration of the contract.
Respondent has presented no evidence whatsoever either of
any doubt about the Union’s continued majority status or of
247EXCEL FIRE PROTECTION CO.
3 The parties did not litigate whether this had constituted an offer
of reinstatement or simply of reemployment. Accordingly, I leave
that issue to compliance.
an actual loss of that status. Moreover, in view of the conclu-
sions in the forgoing paragraphs, the withdrawal occurred not
only in a context of unremedied unfair labor practices, but
in the wake of repeated announcements by its president that
Respondent intended to operate nonunion after March 31.
Therefore, I conclude that by withdrawing recognition of the
Union as its sprinkler fitters’ bargaining agent, Respondent
violated Section 8(a)(5) and (1) of the Act.
Similarly, I conclude that Respondent violated Section
8(a)(5) and (1) of the Act by instituting changed employment
terms concomitantly with its withdrawal of recognition. It
never notified the Union of the specific changes that it in-
tended to make. Not only did it not afford a reasonable op-
portunity for the Union to bargain concerning those changed
employment terms, but it bargained in bad faith during the
long negotiating session in which it had been willing to par-
ticipate prior to April 1.
With regard to the Union’s information requests—in its
letters of April 18 and 26, July 22, and August 1—Respond-
ent did not contend that any of that information had not been
relevant or necessary for the Union to fulfill its statutory ob-
ligation to fairly represent the employees for whom it serves
as bargaining agent. The identities of unit employees and in-
formation concerning them is presumptively relevant. So,
too, is information concerning where they have been as-
signed to work and the locations of projects where unit em-
ployees should be assigned to work.
In another context there might be some basis for arguing
about the relevancy of the Union’s July 22 request for ‘‘cop-
ies of any and all contracts, subcontracts and/or agreements
[Respondent] has entered into regarding the installation,
maintenance, or repair of sprinkler systems within the past
six months.’’ After all, such information pertains to business
relationships between Respondent and other employers and,
accordingly, is not a mandatory bargaining subject within the
meaning of Section 8(d) of the Act.
However, aside from the fact that Respondent has not
challenged the relevancy of that particular information and
did not rely on relevancy as a basis for refusing to produce
it, the uncontradicted evidence shows that the information
that Respondent deigned to supply on July 16 had been in-
complete. Both the identities of some employees and, more
significantly, all South Dakota projects had been omitted.
Given the incompleteness of the information that had been
supplied, in the context of Respondent’s ongoing unlawful
withholding of continued recognition, it was not unreason-
able for the union to turn to an alternative source for obtain-
ing complete information. Short of visiting every South Da-
kota and Minnesota project where automatic fire protection
systems were being, or might be, installed, examination of
the above-quoted requested information would be the best
source for obtaining complete information.
In addition, Respondent has advanced no explanation for
its 3-month delay in providing the partially complete infor-
mation that it finally chose to supply in response to the
Union’s April requests. To be sure, the April 18 request
asked for production of the information at May 3 bargaining
session that, as it turned out, was never conducted. However,
Respondent has not contended that the nonoccurrence of that
meeting, coupled with a request only for production at it,
serves to excuse nonproduction of that information. Whatever
the inherent logic of such an argument, it’s own counsel’s
April 23 letter destroys any validity that it might possess in
other circumstances. For that letter expresses an absolute re-
fusal ‘‘to provide [the Union] with any information about our
employees or any of the data you asked for in your letter.’’
Consequently, nonproduction of the requested information
was absolute and unrelated to whether or not a particular
meeting was conducted. Moreover, it had been Respondent’s
counsel who had canceled that meeting. Therefore, I con-
clude that Respondent violated Section 8(a)(5) and (1) of the
Act by refusing to provide all relevant and necessary infor-
mation requested by the Union and, separately, by delaying
production of the relevant necessary information that it ulti-
mately chose to produce in July.
During the hearing the most actively pursued aspect of this
case was the characterization that should be applied to the
six alleged discriminatees’ nonreporting for work on and
after April 1. As illustrated by its counsel’s letters, quoted
in subsection III,A, supra, Respondent has sometimes taken
the position that those employees quit (letter of Apr. 23) and
other times asserted that they, in effect, went on strike (letter
of April 29 and answer to complaint). However, that second
alternative is not a sustainable one on the basis of the evi-
dence presented. No picketing occurred. There is no evidence
that the Union or any of the employees that it represented
so much as uttered the word ‘‘strike’’ much less that the em-
ployees concertedly ceased work on and after April 1 to
compel Respondent to sign a contract or agree to particular
proposals presented by their bargaining agent.
It is accurate that Rollings testified that he had stayed off
work to ensure that Respondent negotiated, ‘‘because if they
would have negotiated, I would have gladly went back and
went to work, you know.’’ However, that single answer must
be viewed in context with Respondent’s March 29 memoran-
dum. It stated that Respondent would be operated on a non-
union basis and Rollings later connected those two concepts:
‘‘Well, they weren’t negotiating. They came up and flat said
that they didn’t want to be a union contractor anymore.’’ Ob-
viously, if Respondent were to resume negotiating with the
Union that would mean it had resumed recognizing it and,
accordingly, that Respondent was no longer nonunion. In-
deed, Rollings accepted reemployment with Respondent in
June after receiving ‘‘a letter from Kevin stating that they
. . . still wanted to negotiate with the union and were trying
to work out an agreement and would be paid under the old
contract until they did reach an agreement.3 His acceptance
of that offer is evidence of willingness to continue working
so long as Respondent continued recognizing the Union, re-
gardless of whether or not it agreed to particular proposals
or reach total agreement. Consequently, his initial above-
quoted answer does not show that the sprinkler fitters en-
gaged in a strike on and after April 1.
Margo Masich gave testimony about three employees stop-
ping work during the last week in March before the normal
workweek’s end. However, those seemingly premature depar-
tures that week were credibly explained by Rollings and
Steinhauser. Those explanation remove any possible basis for
relying on the early departures of those three employees as
evidence of employees’ intention to strike.
248 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In fact, in the final analysis the entire issue of striking is
no more than a smokescreen. In its March 29 memorandum
Respondent informed the unit employees that they had to ac-
cept Respondent’s nonunion status and unlawfully imposed
employment conditions if they wanted ‘‘continued employ-
ment’’ with it. So far as the evidence shows, none of the six
alleged discriminatees accepted those terms by signing and
returning the second page of that memorandum to Respond-
ent. Given the wording of the memorandum, their failure to
accept and sign the second page of it ‘‘would logically lead
[each one] to believe his tenure had been terminated.’’ NLRB
v. Cement Masons Local No. 555, 225 F.2d 168, 172 (9th
Cir. 1955). Consequently, the evidence supports a conclusion
that Respondent discharged Dumdei, Fuller, Kruger, Leonard,
Miller, and Rollings.
Even, however, if they quit, as Respondent’s April 23 let-
ter asserts, that would not change Respondent’s remedial ob-
ligation. For, a constructive discharge is effected whenever,
as here, continued employment is conditioned on acceptance
of ‘‘unilaterally established terms of employment at a time
when the employer was obliged to retain the existing condi-
tions,’’ Electric Machinery Co., 243 NLRB 239, 240 (1979),
and, as also here, where continued employment requires em-
ployees to forgo continued union representation. Karsh’s
Bakery, 273 NLRB 1131 (1984). See generally NLRB v.
Haberman Construction Co., 641 F.2d 351 (5th Cir. 1981
(en banc)). ‘‘The theory of the constructive discharges em-
ployed here involves an employee who quits after being con-
fronted by his employer with the Hobson’s choice of resigna-
tion or continued employment conditioned on the relinquish-
ment of rights guaranteed by Section 7 of the Act.’’ (Cita-
tions omitted.) White-Evans Service Co., 285 NLRB 81
(1987). Therefore, I conclude that the discharges of Dumdei,
Fuller, Kruger, Leonard, Miller, and Rollings violated Sec-
tion 8(a)(3) and (1) of the Act.
CONCLUSIONS OF LAW
Excel Fire Protection Co., Inc. has committed unfair labor
practices affecting commerce in violation of Section 8(a)(5)
and (1) of the Act by bypassing its employees’ collective-
bargaining agent and dealing directly with them, by engaging
in surface and bad-faith bargaining with no intention of
reaching agreement, by withdrawing recognition of Road
Sprinkler Fitters Local No. 669, United Association of Jour-
neymen and Apprentices of the Plumbing and Pipe Fitting
Industry of the United States and Canada, AFL–CIO as the
representative of employees in an appropriate unit of all jour-
neymen and apprentice sprinkler fitters employed at and out
of its Sioux Falls, South Dakota, and Marquette, Michigan
facilities, excluding office clerical employees, professional
employees, guards and supervisors as defined in the Act, and
all other employees, by unilaterally changing wages and ben-
efits of employees in that unit without providing prior notice
to and an opportunity to bargain about those changes by that
labor organization, and by refusing to provide relevant infor-
mation needed by that labor organization to bargain effec-
tively on behalf of employees that it represented; in violation
of Section 8(a)(3) and (1) of the Act by discharging or con-
structively discharging John Dumdei, Brad Fuller, Thomas
Kruger, Wendell Leonard, Don Miller, and John Rollings;
and, Section 8(a)(1) of the Act by threatening to discharge
employees if they were unwilling to forgo rights guaranteed
by Section 7 of the Act.
REMEDY
Having concluded that Excel Fire Protection Co., Inc. has
engaged in certain unfair labor practices, I shall recommend
that it be ordered to cease and desist therefrom and, further,
that it be ordered to take certain affirmative action to effec-
tuate the policies of the Act. With respect to the latter, it
shall be ordered to resume recognizing and, on request, bar-
gaining with Road Sprinkler Fitters Local No. 669, United
Association of Journeymen and Apprentices of the Plumbing
and Pipe Fitting Industry of the United States and Canada,
AFL–CIO as the exclusive bargaining agent of the employees
in the above-described appropriate bargaining unit. It shall
also be ordered, upon request, by that bargaining agent, to
rescind changes in employment terms made on and after
April 1, 1991, restoring those employment terms to levels
which existed prior to that date, and to provide all informa-
tion specified in the above-named labor organization’s letters
of April 18 and 26, July 22, and August 1.
As to those employment terms for which recession is re-
quested and restoration occurs, Excel Fire Protection Co.,
Inc. shall be ordered to make whole all employees who
worked for it on and after April 1, 1991, for lost wages, cal-
culated in accordance with Ogle Protection Service, 183
NLRB 682, 683 (1970), and, with regard to apprenticeship
and other fringe benefits, to remit any payments it may owe
to those funds, determined in the manner prescribed in
Merryweather Optical Co., 240 NLRB 1213 (1979), and to
reimburse employees for any losses or expenses they may
have incurred because of its failure to make payments to
those funds, in the manner prescribed in Kraft Plumbing &
Heating, 252 NLRB 891 fn. 2 (1980), enfd. mem. 661 F.2d
940 (9th Cir. 1991), with interest on any money owing, to
be computed in the manner prescribed in New Horizons for
the Retarded, 283 NLRB 1173 (1987). See most recently
with regard to this portion of the remedy, Our Lady of
Lourdes Health Center, 306 NLRB 337 (1992).
As to discriminatees John Dumdei, Brad Fuller, Thomas
Kruger, Wendell Leonard, Don Miller, and John Rollings, to
the extent that it has not already done so, Excel Fire Protec-
tion Co., Inc., shall be ordered to offer each one immediate
and full reinstatement to the position which he occupied prior
to April 1, 1991, dismissing, if necessary, anyone who may
have been hired or assigned to perform the work from which
he was discharged or constructively discharged. If one or
more of the positions of those discriminatees no longer ex-
ists, it shall be ordered to reinstate him or them to a substan-
tially equivalent position, without prejudice to his or their se-
niority or other rights and privileges. It also shall be ordered
to make all of them whole for any loss of pay suffered be-
cause of their unlawful discharges or constructive discharges,
with backpay to be computed on a quarterly basis, making
deduction for interim earnings, F. W. Woolworth Co., 90
NLRB 289 (1950), and with interest to be paid on the
amounts owing as computed in New Horizons for the Re-
tarded, supra.
249EXCEL FIRE PROTECTION CO.
4 If no exceptions are filed as provided by Sec. l02.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. l02.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
5 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 recommended4
ORDER
The Respondent, Excel Fire Protection Co., Inc., Sioux
Falls, South Dakota, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Withholding recognition from, and failing and refusing
to bargain with, Road Sprinkler Fitters Local No. 669,
United Association of Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry of the United States and
Canada, AFL–CIO as the exclusive representative of employ-
ees in an appropriate bargaining unit of:
All journeymen and apprentice sprinkler fitters em-
ployed at and out of the Sioux Falls, South Dakota, and
Marquette, Michigan facilities of Excel Fire Protection
Co., Inc.; excluding office clerical employees, profes-
sional employees, guards and supervisors as defined in
the Act, and all other employees.
(b) Withdrawing recognition from the above-named labor
organization, or any other labor organization representing
employees in an appropriate bargaining unit, at a time when
it does not have a good-faith doubt of that labor organiza-
tion’s continuing support by a majority of the employees that
it represents in an appropriate bargaining unit and at a time
when that labor organization has not lost the support of a
majority of the employees in an appropriate bargaining unit.
(c) Engaging in surface and bad-faith bargaining by nego-
tiating with the above-named labor organization, or any other
labor organization representing employees in an appropriate
bargaining unit, with no intention of trying to reach agree-
ment on the terms for a collective-bargaining contract.
(d) Bypassing the above-named labor organization, or any
other labor organization representing employees in an appro-
priate bargaining unit, and dealing directly with employees
regarding wages, hours, and working conditions.
(e) Changing any employment term of employees in the
above-described appropriate bargaining unit without first giv-
ing notice to the above-named labor organization and afford-
ing it an opportunity to bargain about that proposed change.
(f) Refusing to promptly furnish all relevant information
requested by the above-named labor organization that is nec-
essary for it to perform its responsibilities as the bargaining
agent for employees in the above-described appropriate bar-
gaining unit.
(g) Discharging, constructively discharging, or otherwise
discriminating against John Dumdei, Brad Fuller, Thomas
Kruger, Wendell Leonard, Don Miller, John Rollings, or any
other employee because of activity and support for the
above-named labor organization or any other labor organiza-
tion.
(h) Threatening to discharge employees if they are unwill-
ing to forgo representation by the above-named labor organi-
zation or any other labor organization, and if they are unwill-
ing to continue working under unlawfully imposed changes
in employment terms and conditions.
(i) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Recognize and, on request, bargain in good faith with
the above-named labor organization, as the bargaining agent
for the employees in the appropriate bargaining unit de-
scribed in subparagraph 1,a, above, and embody any agree-
ment reached in a written contract.
(b) Immediately supply the above-named labor organiza-
tion with all information requested in its letters of April 18
and 26, July 22 and August 1, 1991.
(c) On request of the above-named labor organization, re-
scind all changes in employment terms for employees in the
above-described appropriate bargaining unit made on and
after April 1, 1991, and make whole all employees and bene-
fit funds, with interest, in the manner prescribed in the rem-
edy section of this decision in the event they incurred any
loss of income or benefits, or incurred any expenses, as a re-
sult of those changes.
(d) To the extent it has not already done so, offer imme-
diate and full reinstatement to John Dumdei, Brad Fuller,
Thomas Kruger, Wendell Leonard, Don Miller, and John
Rollings to the positions from which they were discharged or
constructively discharged, dismissing, if necessary, anyone
who may have been hired or assigned to the positions from
which they were discharged, or if any of their positions no
longer exist, to substantially equivalent positions, without
prejudice to their seniority or other rights and privileges, and
make them whole for any loss of pay and benefits they may
have suffered as a result of their discriminatory discharges,
in the manner set forth above in the section entitled ‘‘Rem-
edy.’’
(e) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll, busi-
ness and other records necessary to compute the backpay and
reinstatement rights as set forth in the remedy section of this
decision.
(f) Post at its Sioux Falls, South Dakota, and Marquette,
Michigan facilities copies of the attached notice marked
‘‘Appendix.’’5 Copies of that notice, on forms provided by
the Regional Director for Region 18, after being duly signed
by authorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places where
notice to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that those notices
are not altered, defaced, or covered by any other material.
(g) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
250 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
The National Labor Relations Act gives all employees the
following rights.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT continue withholding recognition from, and
WE WILL NOT fail and refuse to bargain with, Road Sprinkler
Fitters Local No. 669, United Association of Journeymen and
Apprentices of the Pluming and Pipe Fitting Industry of the
United States and Canada, AFL–CIO as the exclusive rep-
resentative of our employees in the following appropriate
bargaining unit:
All journeymen and apprentice sprinkler fitters em-
ployed at and out of our Sioux Falls, South Dakota, and
Marquette, Michigan facilities; excluding office clerical
employees, professional employees, guards and super-
visors as defined in the Act, and all other employees.
WE WILL NOT withdraw recognition from the above-named
labor organization, nor from any other labor organization
representing our employees in an appropriate bargaining unit,
at a time when we do not have a good-faith doubt of that
labor organization’s continuing support by a majority of the
employees in the bargaining unit and at a time when that
labor organization has not lost the support of a majority of
the employees in that bargaining unit.
WE WILL NOT engage in surface and bad-faith bargaining
by negotiating with the above-named labor organization, or
any other labor organization representing employees in an
appropriate bargaining unit, with no intention of trying to
reach agreement on the terms for a collective-bargaining con-
tract.
WE WILL NOT bypass your collective-bargaining agent and
try to deal directly with you concerning your wages, hours,
and working conditions.
WE WILL NOT change any employment terms of employees
in the above-described appropriate bargaining unit without
first giving notice to the above-named labor organization and
affording it an opportunity to bargain about that change.
WE WILL NOT refuse to promptly furnish all relevant infor-
mation requested by the above-named labor organization that
it necessary for it to perform its responsibilities as the bar-
gaining agent for employees in the above-described appro-
priate bargaining unit.
WE WILL NOT discharge, constructively discharge, or oth-
erwise discriminate against John Dumdei, Brad Fuller,
Thomas Kruger, Wendell Leonard, Don Miller, John
Rollings, or any other employee because of activity and sup-
port for the above-named labor organization or any other
labor organization.
WE WILL NOT threaten to discharge you if you are unwill-
ing to forgo representation by the above-named labor organi-
zation, or any other labor organization, and WE WILL NOT
threaten to discharge you if you are unwilling to continue
working under unlawfully imposed changes in your employ-
ment terms and conditions.
WE WILL NOT in any like or related manner interfere with
any of your rights set forth above which are guaranteed by
the National Labor Relations Act.
WE WILL recognize and, on request, bargain in good faith
with the above-named labor organization, as the bargaining
agent for our employees in the above-described appropriate
bargaining unit, and embody any agreement reached in a
written contract.
WE WILL immediately supply the above-named labor orga-
nization with relevant and necessary information that it re-
quested on April 18 and 26, July 22, and August 1, 1991.
WE WILL, on request by the above-named labor organiza-
tion, rescind all changes in employment terms for employees
in the above-described appropriate bargaining unit made on
and after April 1, 1991, and WE WILL make whole all em-
ployees and benefit funds, with interest, for any losses in-
curred as a result of those rescinded changes.
WE WILL, to the extent that we have not already done so,
offer immediate and full reinstatement to John Dumdei, Brad
Fuller, Thomas Kruger, Wendell Leonard, Don Miller, and
John Rollings to the positions from which they were unlaw-
fully discharged or constructively discharged, dismissing, if
necessary, anyone who may have been hired or assigned to
the positions from which they were discharged or, if any of
their positions no longer exist, to substantially equivalent po-
sitions, without prejudice to their seniority or other rights and
privileges, and make them whole for any loss of pay and
benefits they suffered as a result of our discriminatory dis-
charge of them, with interest on the amount owing.
EXCEL FIRE PROTECTION CO., INC.