Kephart Plumbing, Inc., And Jack Kephart Plumbing

National Labor Relations Board - Board Decisions

Aug 31, 1987

285 N.L.R.B. 612 (N.L.R.B. 1987)

612 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Kephart Plumbing, Inc., and Jack Kephart Plumbing
and Journeymen Plumbers and Steamfitters
Local Union 393, United Association of Jour-
neymen and Apprentices of the Plumbing and
Pipefitting Industry of America, AFL-CIO.
Case 32-CA-3361
31 August 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 5 March 1982 Administrative Law Judge
Roger B. Holmes issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed an answering brief.
The National Labor Relations Board has delegat-
ed 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
decided to affirm the judge's rulings, findings, and
conclusions' only to the extent consistent with this
Decision and Order.
It is undisputed that the Respondnet entered into
its relationship with the Union pursuant to Section
8(f) of the Act. In John Deklewa & Sons, Inc., 282
NLRB 1375 (1987), the Board overruled R. J.
Smith Construction Co., 191 NLRB 693 (1971), enf.
denied sub nom. Operating Engineers Local 150 v.
NLRB, 480 F.2d 1186 (D.C. Cir. 1973), abandoned
the conversion doctrine, and modified unit-scope
rules in 8(f) cases. The Board decided to apply the
following principles (at 1377):
(1) a collective-bargaining agreement permit-
ted by Section 8(f) shall be enforceable
through the mechanisms of Section 8(a)(5) and
Section 8(b)(3); (2) such agreements will not
bar the processing of valid petitions filed pur-
suant to Section 9(c) and Section 9(e); (3) in
processing such petitions, the appropriate unit
normally will be the single employer's employ-
ees covered by the agreement; and (4) upon
the expiration of such agreements, the signato-
ry union will enjoy no presumption of majori-
ty status, and either party may repudiate the
8(f) bargaining relationship.
Deklewa further held that "[i]n light of the legis-
lative history and the traditional prevailing practice
' In agreeing with the judge's conclusion that the amended complaint
is not barred by Sec 10(b) of the Act, we note that the Union was not on
clear notice of the Respondent's repudiation of the 1980-1983 contract
until the 6 August 1980 letter Adequacy of notice sufficient to trigger
the 6-month limitation period of Sec 10(b) turns on whether the circum-
stances alleged to constitute notice clearly convey that a change has
taken place See, e g , L C Cassidy, 185 NLRB 920, 926 (1970)
in the construction industry," in which the Re-
spondent is engaged, "we will require the party as-
serting the existence of a'9(a) relationship to prove
it."2 Under the principles summarized above, al-
though the Respondent authorized a multiemployer
association to act as its collective-bargaining repre-
sentative, the Union cannot claim conversion of the
8(f) relationship to full 9(a) status unless it can
prove that it achieved such status among the Re-
spondent's employees on a single-employer basis.
Such showing is accomplished only by traditional
means, i.e., a Board election or voluntary recogni-
tion based on a prior demand for recognition sup-
ported by a showing of majority employee sup-
port.3 The General Counsel or the Union has made
no such showing here.
In concluding that the Respondent, Kephart
Plumbing, Inc., a single entity comprising Kephart
Plumbing, Inc. and Jack Kephart Plumbing, violat-
ed Section 8(a)(5), the judge found that it had au-
thorized the Santa Clara Valley Contractors Asso-
ciation to bargain on its behalf and that the Re-
spondent's employees were part of a multiemployer
bargaining unit composed of employers that had
authorized the Association to act as their collec-
tive-bargaining representative. We disagree with
the latter finding, consistent with our rejection in
Deklewa of the so-called merger doctrine. Thus, the
appropriate unit is the single employer's employees
covered by the 8(f) agreement.4
We agree with the judge, however, that the Re-
spondent authorized the Association to negotiate
and execute a collective-bargaining agreement with
the Union by letters of 28 April 1977 and 23 May
1979. The authorization empowered the Associa-
tion to negotiate on behalf of the Respondent and
to execute an agreement and "to take all steps cus-
tomary and necessary to administer the Collective
Bargaining Agreement and to provide proper rep-
resentation-in all matters pertaining to the Agree-
ment including grievances and disputes with the
Union." Authorization continued unless the Re-
spondent took some action effectively withdrawing
the multiemployer group's authority to bargain on
the Respondent's behalf. This it did not do before
negotiation, execution, and ratification of the col-
lective-bargaining agreement between the Associa-
tion and the Union effective by its terms 1 July
1980 to 30 June 1983.
Under the Deklewa principles, the 1980-1983
agreement was "binding, enforceable, and not sub-
ject to unilateral repudiation" by the Respondent.
2 Deklewa, 282 NLRB at 1385 fn 41
3 Id at 1385
4 Id 1377
285 NLRB No. 83
KEPHART PLUMBING
However, the Union enjoyed no presumption of
majority status following the contractor's expira-
tion date of 30 June 1983, and thus at that point the
Respondent was free to repudiate the 8(f) bargain-
ing relationship. Therefore, we find that the Re-
spondent violated Section 8(a)(5) and (1) of the Act
by repudiating the 1980-1983 contract with the
Union during the contract term and shall limit the
make-whole remedy accordingly. We also find, in
agreement with the judge, that the Respondent un-
lawfully refused the Union's request for an audit by
its 6 August 1980 letter to the Plumbers Trust
Funds with a copy to the Union.
THE REMEDY
Having found that the Respondent was engaged
in certain unfair labor practices, we shall order that
it cease and desist and take certain affirmative
action necessary to effectuate the policies of the
Act. We shall order the Respondent to make its
employees whole, as prescribed in Ogle Protection
Service, 183 NLRB 682 (1970), for any losses they
may have suffered as a result of the Respondent's
failure to adhere to the contract from 6 August
1980 to 30 June 1983, with interest as computed in
New Horizons for the Retarded.I
ORDER
The National Labor Relations Board orders that
the Respondent , Kephart Plumbing , Inc., and Jack
Kephart Plumbing, Santa Clara, California, its offi-
cers, agents, successors , and assigns, shall
1. Cease and desist from
(a) Withdrawing recognition during the term of
a collective-bargaining agreement from Journey-
men Plumbers and Steamfitters Local Union 393,
United Association of Journeymen and Apprentices
of the Plumbing and Pipefitting Industry of Amer-
ica, AFL-CIO, as the exclusive collective-bargain-
ing representative of the Respondent's employees
covered by the agreement.
(b) Refusing to adhere to its 1980-1983 collec-
tive-bargaining agreement with the Union until the
5 In accordance with our decision in New Horizons for the Retarded,
283 NLRB 1173 ( 1987), interest on and after 1 January 1987 shall be
computed at the "short -term Federal rate" for the underpayment of taxes
as set out in the 1986 amendment to 26 US C § 6621 Interest on
amounts accrued prior to I January 1987 (the effective date of the 1986
amendment to 26 U S C § 6621) shall be computed in accordance with
Florida Steel Corp, 231 NLRB 651 (1977)
Because the provisions of employee benefit fund agreements are vari-
able and complex , the Board does not provide at the adjudicatory stage
of the proceeding for the addition of interest at a fixed rate on unlawfully
withheld fund payments Therefore , any additional amount owed with re-
spect to the Pension Trust Fund, Health and Welfare Trust Fund, and
the Apprentice Training Trust Fund shall be determined in accordance
with the procedure set forth in Merryweather Optical Co, 240 NLRB
1213, 1216 fn 7 (1979)
613
30 June 1983 expiration date, and to submit to an
audit.
(c) In any like or related manner interfering
with , restraining , or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Make whole the above-described employees,
in the manner set forth in the remedy , for any
losses they may have suffered as a result of the Re-
spondent 's failure to adhere to the contract from 6
August 1980 until it expired on 30 June 1983. The
appropriate unit is:
All employees employed by the Employer
Member of the Association performing work
as set forth in Article I, Section 3 of the Ap-
pendix of the collective bargaining agreement
between the Association and the Union which
expires on June 30 1983 ; but excluding all
other employees , guards, and supervisors as
defined in the Act.
(b) Preserve and, on request , make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards , personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(c) Post at its Santa Clara , California office
copies of the attached notice marked "Appendix."6
Copies of the notice , on forms provided by the Re-
gional Director for Region 32, after being signed
by the Respondent 's authorized representative,
shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered , defaced,
or covered by any other material.
(d) Sign and return to the Regional Director suf-
ficient copies of the attached notice marked "Ap-
pendix" for posting by Journeymen Plumbers and
Steamfitters Local Union 393, United Association
of Journeymen and Apprentices of the Plumbing
and Pipefitting Industry of America , AFL-CIO, if
willing, in conspicuous places where notices to em-
ployees and members are customarily posted.
6 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 Nation-
al 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 "
614 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
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 ordered us to post and abide by this notice.
WE WILL NOT, during the term of a collective-
bargaining agreement, repudiate that agreement
and withdraw recognition from Journeymen
Plumbers and Steamfitters Local Union 393, United
Association of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of America,
AFL-CIO, as the exclusive collective-bargaining
representative of our employees covered by the
agreement or refuse to submit to an audit.
WE WILL NOT in any like or related manner
interfere with , restrain , or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act. -
WE WILL make you whole for any losses you
may have suffered as a result of our failure to
adhere to the 1980-1983 contract with the Union
until the contract expired on 30 June 1983.
KEPHART PLUMBING, INC. AND JACK
KEPHART PLUMBING
Elaine D. Climpson, for the General Counsel.
Paul Y. Simpson, Esq. (Thierman & Simpson), of -San
Francisco, California, for the Respondent.
Matthew Ross, Esq. (Davis, Frommer, & Jesinger), of San
Francisco, California, for the Charging Party.
DECISION
ROGER B. HOLMES, Administrative Law Judge. Based
on an unfair labor practice charge filed on January 26,
1981, by Journeymen Plumbers and Steamfitters Local
Union 393, United Association of Journeymen and Ap-
prentices of the Plumbing and Pipefitting Industry of
America AFL-CIO, the General Counsel issued, on
March 18, 1981, a complaint alleging violations of Sec-
tion 8(a)(1) and (5) of the Act by Kephart Plumbing, Inc.
and Jack Kephart Plumbing. The General Counsel's
complaint was amended August 25, 1981, and it was fur-
ther amended during the course of the trial proceedings.
The trial was held on September 9, 1981, and also on
October 22 and 23, 1981, at San Jose, California. The
due date for the filing of posttrial briefs was extended to
December 4, 1981.
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION
The Board's jurisdiction is not in issue in this proceed-
ing. At all times material , Kephart Plumbing, Inc. has
been a California corporation and plumbing contractor
doing business as Kephart Plumbing, Inc., and/or Jack
Kephart Plumbing, with the same equipment and operat-
ing out of the same facility, which is presently located at
2420 Lafayette Boulevard, Santa Clara, California.
Jack Kephart Plumbing is not, and has not been, a sep-
arate business entity. It does not have a separate comple-
ment of employees or supervisors, nor does it have a dif-
ferent set of owners, directors, and management, or a dif-
ferent labor relation policy affecting employees.
Kephart Plumbing, Inc., and Jack Kephart Plumbing
are a single business entity known as Kephart Plumbing,
Inc. The entities doing work as Jack Kephart Plumbing
are, in fact, identical to and the same as Kephart Plumb-
ing, Inc. In addition, Kephart Plumbing, Inc. meets the
Board's direct inflow jurisdictional standard. (See the
stipulations at Tr. 10, 66-67, and 229.) For convenience,
Kephart Plumbing, Inc., and Jack Kephart Plumbing
usually will be referred to simply as the Respondent.
The status of the Charging Party Union as being a
labor organization within the meaning of the Act also is
not in dispute. Such status was admitted in the pleadings.
For convenience, the Charging Party usually will be re-
ferred to simply as the Union.
II. THE WITNESSES AND CREDIBILITY RESOLUTIONS
Nine witnesses testified at the trial in this proceeding.
In alphabetical order by their last names, the following
persons were called as witnesses: Edward Calcany, who
is the general manager and the vice president of W. L.
Hickey Sons, Inc., which is located in Sunnyvale, Cali-
fornia; Frank Ciari, who is the president of Frank Ciari
Plumbing and Heating, Inc., which is located in San
Jose, California; Larry Gates, who is the executive man-,
ager of the Santa Clara Valley Contractors Association;
Steve Jackson, who is the owner of San Jose Mechani-
cal, which is located in San Jose, California; Jack Ke-
phart, who is the president, vice president, and secretary-
treasurer of the Respondent; Joseph P. Parisi, who is the
president of Therma Trane, located in San Jose, Califor-
nia, and who is also the president of the Santa Clara who
is Valley Contractors Association; William B. Ramirez,
who is the managing officer of the L. C. Bohart Plumb-
ing Company, which is located in Campbell, California;
Charles J. Viso, who is the vice president of the mechan-
ical division of Joe Amaral Mechanical, a division of Joe
Amaral Plumbing, Inc., which is located in Santa Clara,
California, and Lloyd E. Williams, who is a business rep-
resentative of the Union.
The findings of fact to be set forth in this decision will
be based on portions of the testimony from each one of
the persons who appeared as witnesses at the trial. In re-
lying on portions of their testimony, I have considered
the responsible positions occupied by each of the nine
witnesses in their respective businesss and organizations.
These were knowledgeable persons, but, of course, I
KEPHART PLUMBING 615
have considered whether the record demonstrates a basis
for their knowledge concerning the particular facts about
which they gave testimony, and the effect of the passage
of time on recollections. In addition, I have considered
their potential interest in the outcome of the litigation.
Also, I have given consideration to whether a witness'
account is consistent with the accounts of other wit-
nesses, documentary evidence, stipulations, and uncon-
troverted facts. I will set forth in the findings of fact the
accounts that appear to me to be accurate and reliable.
Additionally, many findings of fact will be based on nu-
merous pieces of documentary evidence introduced by
the parties at the trial.
A. Certain Facts That Are Not in Dispute
The efforts of the lawyers for all three parties to work
out stipulations and agreements at the trial should be
noted here Their cooperation with regard to certain
facts, which were not in dispute in this case, saved time
and expense for all three parties during the trial proceed-
ings. Some of those matters are set forth in this section,
while other matters either have already been set forth, or
will be referred to later in this decision.
Lee and Rita Kephart are the parents of Jack Kephart.
Lee Kephart has been a member of the Union for ap-
proximately 30 years, and he remained a member in good
standing at the time of the trial. Lee Kephart was presi-
dent of Kephart Plumbing, Inc. from September 1975,
when the Company was incorporated, through June
1981. As president of the Respondent, Lee Kephart had
authority at all relevant times to act on behalf of Ke-
phart Plumbing, Inc. regarding its operations, including
the execution of documents. Pursuant to that authority,
Lee Kephart signed the document that was introduced
into evidence at the trial as General Counsel's Exhibit 2;
the authorization that was introduced into evidence as
General Counsel's Exhibit 6, and the resignation that was
introduced into evidence as General Counsel's Exhibit 7.
Lee Kephart worked for the Respondent at various times
from 1975 through 1978. (See the stipulations at Tr. 233-
234 and 239.)
Rita Kephart was the secretary-treasurer of Kephart
Plumbing, Inc. from September 1975, when the Compa-
ny incorporated, until June 1981. As the secretary-treas-
urer, she had the authority to act on behalf of the Re-
spondent regarding its operations, including the execu-
tion of documents. Pursuant to that authority, Rita Ke-
phart signed the authorization, which was introduced
into evidence at the trial as General Counsel's Exhibit 3.
The Respondent, by Rita Kephart, or by Lynne Kephart
and Kerrie Lyons Enoch in accordance with the instruc-
tions given by Rita Kephart, sent monthly transmittals to
the administrator of the trust funds for the Union from
June 1975 through October 1980, and made contributions
to the various plans and funds involved, as reflected in
those transmittals, pursuant to her understanding of an
obligation that the Respondent had to the Union. Rita
Kephart worked at various times in the Respondent's
office from April 1979 through May 1980, during which
time she received various notices from the Santa Clara
Valley Contractors Association. (See the stipulations at
Tr. 234-236.)
The monthly transmittal reports were made, executed,
and transmitted to the administrator for the funds with
knowledge of the specific instructions set forth on the
forms. The signatures on the documents, which were in-
troduced into evidence as General Counsel's Exhibit 8,
are the signatures of Lynne Kephart and Kerrie Lyons
Enoch. (See the stipulations at Tr. 48-49, 237 and 248.)
Any employee whose name appears on such transmittal
forms is, in fact , a member of the Union. (See the stipula-
tion at Tr. 595-596.)
Jack Kephart had been a member of the Union until
July 21, 1980, when he submitted a request for an honor-
able withdrawal, which was approved by the Union on
July 31, 1980. (See the stipulation at 240, and see G.C.
Exh 36.)
The Respondent requested from the union hiring hall
the dispatch of those employees whose names are reflect-
ed on the documents that were introduced into evidence
as General Counsel's Exhibit 37, and the Union sent
those employees to work for the Company. (See the stip-
ulation at Tr. 253.)
The Respondent received in 1980 from the Santa Clara
Valley Contractors Association certain hardhats and first
aid kits that were offered to members of that association
(See the stipulation at Tr. 236, and see G C Exhs 32 and
33)
B. Certain Events Commencing in 1975
Introduced into evidence as General Counsel's Exhibit
2 was a copy of the "Signature Page" which had been
signed for the Respondent by Lee Kephart on June 23,
1975. The document indicates that the Respondent
would abide by the provisions set forth in the agreement
between the Union and the Residential Plumbing and
Mechanical Contractors of Northern California. Also on
June 23, 1975, Lee Kephart made a written request to
the Union for the employment of Jack Kephart. (See
G.C. Exh. 27) With regard to the number of plumbers
employed by the Respondent at that point in time, Jack
Kephart testified at the trial, "there was only one, me."
He has worked with the tools of the plumbing trade
"almost daily" since the Respondent has been in business.
On November 21, 1975, Jack Kephart made a written
request to the Union for Jerry Mashburn to report for
work on that date. (See G.C. Exh. 29.) The Union hon-
ored that "by name" request. (See G.C. Exhs. 28 and 30,
which appear to be photocopies of the same document).
C. Certain Events Commencing in 1977
Introduced into evidence as Charging Party's Exhibit
1 was a copy of a letter dated January 28, 1977, from the
Respondent to the Peninsula Plumbing Industry Trust
Fund and the Union's Health and Welfare Trust fund.
The Respondent's letter asked for a waiver of a late pay-
ment fee on contributions made that month to the funds.
In May 1977 the Santa Clara Valley Contractors Asso-
ciation was formed. Sometimes at the trial it was re-
ferred to as the Valley Contractors Association, but Ex-
ecutive Manager Gates said the reference is to the same
entity. For convenience, it will be referred to simply as
616 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the association, rather than by its full name. When an-
other organization is mentioned, the name of that organi-
zation will be specified.
The association was established as a nonprofit corpora-
tion for the purposes of negotiating collective-bargaining
agreements with the Union and also to promote the
plumbing industry. The association has officers, a board
of directors, and an executive manager. Bylaws were not
adopted by the board of directors until February 22,
1978. (See G.C. Exh. 9.) Notwithstanding the provisions
of section 8 in article X of the 1978 bylaws, Gates said,
"They do not have a formal membership application,
no." Instead, an employer who signs a written authoriza-
tion to the association is considered to be a member of
the association. Gates explained, "They request to come
into the association and sign an authorization, and come
in.,,
General Counsel's Exhibit 6 is a copy of an authoriza-
tion by the Respondent to the association to negotiate
and execute on its behalf collective-bargaining agree-
ments with the Union for the period 1977-1979. The
document is dated April 28, 1977.
General Counsel's Exhibit 7 is a copy of Respondent's
resignation from the Residential' Plumbing and Mechani-
cal Contractors of Northern California. The document is
dated June 22, 1977.
A copy of a one-page agreement dated August 29,
1977, between the association and the Residential Plumb-
ing and Mechanical Contractors of Northern California
was introduced into evidence as General Counsel's Ex-
hibit 31. The Respondent's name is listed among those
employers who had authorized the association to repre-
sent them.
General Counsel's Exhibit 26 is a copy of a collective-
bargaining agreement between the Union and the asso-
ciation. The effective dates of that first collective-bar-
gaining agreement between those parties were July 1,
1977, through June 30, 1979. The Respondent is listed on
the "Membership Roster 1977-78" of the association,
which is attached to the contract. (See p. 59 of the book-
let introduced as G.C. Exh. 26.) The contract contains
what is commonly referred to as a union-security clause.
(See sec. 8 of art. II at 2-3 of G.C. Exh. 26.) The con-
tract also contains what is commonly referred to as an
exclusive hiring hall system. (See art. III at 3-8, G.C.
Exh. 26.)
D. Certain Events Commencing in 1979
Introduced into evidence as Charging Party's Exhibit
2 was a copy of a letter dated February 28, 1979, to the
Respondent from the Peninsula Plumbing Industry Trust
Fund and the Union's health and welfare trust fund re-
garding the payment of premiums for medical coverage.
General Counsel's Exhibit 3 is a copy of Respondent's
second authorization to the association. It is dated May
23, 1979, and, unlike the first authorization to the asso-
ciation, the second authorization does not have a time
limitation. Among other things, the document authorizes
the association to negotiate and execute on its behalf col-
lective-bargaining agreements with the Union.
General Counsel's Exhibit 34 is a copy of a letter
dated June 27, 1979, from the union "to all contractors."
It indicates that the union membership had ratified the
1979-1980 collective-bargaining agreement, and it sets
forth certain provisions of the new contract.
General Counsel's Exhibit 25 is a copy of the second
collective-bargaining agreement between the Union and
the association. It has effective dates from July 1, 1979,
through June 30, 1980. Pages 1 through 5 of the booklet
introduced as General Counsel's Exhibit 25 set forth the
agreed-on modifications to the first collective-bargaining
agreement provisions. The union-security clause and the
exclusive hiring hall provisions are located in the same
places as they were in the initial agreement.
E. Certain Events Commencing in 1980
Introduced into evidence as General Counsel 's Exhibit
12 was a copy of a letter dated February 12, 1980, from
the association to its employer-members. The letter per-
tained to a general membership meeting to be held on
February 19, 1980, to discuss the upcoming contract ne-
gotiations . General Counsel's Exhibit 13 is a copy of the
minutes of that general membership meeting. General
Counsel's Exhibit 14 is a copy of the minutes of a subse-
quent general membership meeting held by the associa-
tion on March 27, 1980.
A copy of a letter dated April 7, 1980, from the Union
to the association regarding the commencement of nego-
tiations for a new contract was introduced into evidence
as General Counsel 's Exhibit 10. A copy of a letter dated
May 1 , 1980, from the Union to the association regarding
the first negotiation session for a new contract to be held
on May 7, 1980, was introduced into evidence as General
Counsel 's Exhibit 11.
Prior to the commencement of contract negotiations in
May 1980 between the association and the Union , the as-
sociation received no communication from the Respond-
ent regarding the Respondent 's earlier authorization to
the association, which has been previously described.,
Gates made copies of all the employer authorizations on
file with the association , and Gates gave those copies to
the union representatives at the time that contract negoti-
ations began in May 1980.
General Counsel 's Exhibit 15 is a copy of a letter
dated May 13, 1980, from the association to its members.
It informs the members of the initial negotiating session
between the association and the Union being held on
May 7, 1980, and of the initial proposals made. General
Counsel 's Exhibit 16 is a copy of a memo dated May 19,
1980, entitled , "Negotiations Update." It also pertains to
the contract proposals made at the May 7, 1980 meeting.
General Counsel 's Exhibit 17 is a copy of a letter
dated July 8, 1980, from the association to its members.
It is entitled , "Contract Changes and Calendar." Gates
said a copy of that letter , along with a copy of the new
contract ratified by the Union, was mailed to each
member of the association. He said copies of the letter
and' contract were mailed to the Respondent . General
Counsel 's Exhibit 18 is a copy of the association's pro-
posal, which the Union had ratified on July 8, 1980.
General Counsel's Exhibit 35 is a copy of a letter dated
July 9, 1980, from the Union "to all signatory contrac-
tors" regarding the new contract wage rates.
KEPHART PLUMBING 617
A copy of the third collective-bargaining agreement
between the association and the Union was introduced in
booklet form as General Counsel's Exhibit 24. It has ef-
fective dates of July 1, 1980, through June 30, 1983. A
union-security clause is found in section 8 of article II on
pages 2-3, and exclusive hiring hall provisions are found
in article III on pages 3-8 of the booklet. The Respond-
ent's name is included among those employers listed on
the association's "Membership Roster" 1980-83 attached
to the contract.
Charging Party's Exhibit 3 is a copy of a letter dated
July 25, 1980, from the Union's trust funds to the Re-
spondent regarding the late payment of contributions by
the Respondent in July 1980 to the pension trust fund,
health and welfare trust fund, and the apprentice training
trust fund.
In July 1980, Jack Kephart told Union Representative
Williams that they were going to close down the busi-
ness. Williams asked Kephart what he was going to do,
and Kephart replied that he was getting into another, line
of work. A copy of a letter dated August 6, 1980, from
the attorney for the Respondent and addressed to the
Plumbers trust funds was introduced into evidence as
General Counsel's Exhibit 4. The letter indicates that a
copy was sent to the Union. The letter sets forth the Re-
spondent's position, and states, inter alia, "For the rea-
sons set forth herein, we hereby rescind and abrogate all
agreements with Plumbers Local 393 retroactively to
1975." The ]letter is typewritten single-spaced and is 11
pages long. Rather than reproduce the contents here, the
letter is in evidence for review by persons having a need
to do so.
Business Representative Williams said that General
Counsel's Exhibit 4 was the only notice he had that -the
Respondent was not complying with the Union's collec-
tive-bargaining agreement. Up to that point in time, Wil-
liams had not visited any jobsites where the Respond-
ent's employees were working. Williams never received
a call from any contractor complaining that the Re-
spondent was operating with nonunion employees. While
Williams acknowledged that the Union received copies
of the monthly transmittal reports sent by employers to
the trust funds, he said the Union had not policed com-
pliance by the employers unless a problem arose. In addi-
tion to Williams, the Union also employed on a full-time
basis, Robert Duffey as business manager and Ray Bor-
gette as a business representative . Williams estimated that
the Union had 12 to 20 job stewards.
Prior to August 6, 1980, the Respondent had not in-
formed either the association or the Union of the Re-
spondent's position that it was not a member of the asso-
ciation, and that it was not bound to any contract with
the Union. Jack Kephart testified during cross-examina-
tion by the attorney for the Charging Party:
Q. Now, did you personally ever address a com-
munication to Mr. Gates telling him not to send you
these notices because you are not a member of the
association?
A. No.
Q. Did you ever orally inform him that you were
not a member of the association?
A. No.
Q. Did you ever in writing inform him that you
were not a member of the association?
A. I-no, I don't thing so.
Q. All right, did you ever orally inform the union
that you were not a member of the Santa Clara
Valley Contractors Association?
A. No.
Q. Did you ever in writing inform the union that
you were not a member of the Santa Clara Valley
Contractors Association?
A. No.
Q. Did you ever send a written communication
to the union indicating that you did not feel- that
you were bound unto any agreement with the union
prior to August 6, 1980?
A. No.
Q. Did you ever send any communication to Mr.
Gates prior to August 6 of 1980 informing him that
you did not feel that you were bound' into any
agreement with Local 393?
A. No.
After a copy of General Counsel's Exhibit 4 was re-
ceived by the Union on August 12, 1980, the Union
began to monitor the Respondent's plumbing permit re-
quests filed at the city inspection department. As a result
of that course of action, Williams went to a jobsite on
Minnesota Avenue in San,Jose where Williams observed
persons working for the Respondent who had not been
dispatched through the Union's hiring hall. Williams re-
turned to the union office and prepared a citation. Intro-
duced into evidence as General Counsel's Exhibit 19 was
a copy of a letter dated September 22, 1980, from the
Union to the association. It alleged that the Respondent's
employees at the Minnesota Avenue jobsite were not ob-
tained by the Respondent from the Union's hiring hall.
General Counsel's Exhibit 20 is a post office receipt for
delivery of General Counsel's Exhibit 19. A similar letter
dated September 26, 1980, was introduced into evidence
as General Counsel's Exhibit 21. The post office receipts
for that document were introduced into evidence as
General Counsel's Exhibit 22.
After receipt of the citation regarding the Respondent,
Gates telephoned Jack Kephart and advised him of the
citation. According to Gates, Kephart replied, "that
doesn't have anything to do with me." Gates then tele-
phoned Williams to ascertain if the Union had cited the
wrong location. Afterwards, Gates once again tele-
phoned Kephart. During that conversation, Kephart in-
formed Gates that his company was nonunion while his
father's company was union. That was the first occasion
on which Gates had been told that the Respondent was
"non-union." Thereafter, Gates wrote Kephart a letter
dated October 7, 1980, a copy of which was introduced
into evidence as General Counsel's Exhibit 23. It was
stipulated that the letter was received by the Respond-
ent. (See Tr. 157-158.)
A copy of a letter dated November 10, 1980, from the
attorney for the Union to the Respondent was intro-
duced into evidence as Charging Party's Exhibit 5. It
pertains to alleged conduct by agents of the Respondent,
618 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
who, in the Union's view, were interfering with the
Union's following of the Respondent's trucks.
A copy of a letter dated November 18, 1980, from the
attorney for the Union to the Respondent was intro-
duced into evidence as Charging Party's Exhibit 4. It
pertains to the fact that no reply had been received to
the Union's letters alleging violations of the contract by
the Respondent on the Minnesota Avenue job. It was
stipulated that the Respondent made no response to the
foregoing two letters because the Respondent never ac-
knowledged receipt of those letters. (See Tr. 328.)
In November 1980, the Respondent was aware that a
greivance had been filed against the Respondent by the
Union. The Respondent never met for the adjustment of
that grievance inasmuch as the Respondent was under
the impression that the Respondent was no longer, and
was not at any time, signatory or bound to a collective-
bargaining agreement with the Union. The Respondent
refused to meet with the Joint Conference Board by
reason of the foregoing position. (See the stipulations at
Tr. 327-328.)
F. Facts Pertaining to Certain Employers
Based on his observation during his visits to various
jobsites of plumbing employers during the years 1977
through 1981, Business Representative Williams was able
to give his estimates of the size of all but 4 of the 26 em-
ployers who are listed as members of the association in
General Counsel's Exhibit 24. His frame of reference for
that testimony was to consider a contractor with 6 or
less employees to be small in size; 6 to 40 employees to
be medium in size, and more than 40 employees to be
large in size. (See Tr. 703-720.) Joe Amaral Plumbing,
Inc., Central Service Co., Inc., Charter Plumbing, Inc.,
W. L. Hickey Sons, Inc., Lanoie Plumbing, O. C.
McDonald Co., Inc., McDonald-University, Therma
Trane, and University Mechanical fell into the category
of employers with a large number of employees. Wil-
liams estimated that about 400 members of the union
were employed by contractors in the association during
1978, 1979, 1980, and 1981, but that the number de-
creased to about 300 union members at the time of the
trial. There were approximately 1650 members of the
Union at the time that Williams testified. According to
Williams, the Union has enforced the union-security
clause and the exclusive hiring hall provisions in the
Union's contracts. He gave examples at the trial in sup-
port of his testimony.
Joseph P. Parisi has been the president of Therma
Trane since the Company went into business. Actually,
the business began under a different name in 1967, but
since 1971 the business has been operated under its
present name. Parisi also has served as the president of
the Santa Clara Valley Contractors Association since its
inception. Previously, Thelma Trane had been a member
of the Greater Bay Area Plumbing Contractors Associa-
tion, and then the Company had been a member of the
Residential Plumbing and Mechanical Contractors Asso-
ciation. However, Parisi said that he and other Santa
Clara Valley contractors felt like they wanted to have an
association that met their needs, so the Santa Clara
Valley Contractors Association was formed. Therma
Trane authorized the association to act on its behalf in
negotiations with the Union in 1977, 1979, and 1980.
The number of plumbers employed by Therma Trane
varied between 85 and 120 during each year of 1977,
1978, 1979, and 1980. Therma Trane is one of the two
largest employers in the association. All the plumbers
employed by Therma Trane came to work for that coin-
pany from the Union's hiring hall. Parisi said that the
company never hired a plumber "off the street." In addi-
tion to his being president of the company, Parisi also
worked as the general foreman for the company until
sometime prior to the trial. He placed most of the calls
to the Union's hiring hall for the dispatch of plumbers to
work for the company, and he collected most of the dis-
patch slips from plumbers who came to work for the
company. The foreman collected dispatch slips from the
others. Those dispatch slips were placed in the employ-
ee's personnel folders at the company. Parisi had no
reason to believe that any of those plumbers were not
members of the Union. During the years from 1977 to
1980, the company was never requested by the Union to
discharge a plumber because the plumber had not
become a member of the Union, but during that time
period, the company had received four or five communi-
cations from the Union requesting that the company dis-
charge a plumber because he was not in good standing
with the Union.
According to Parisi, he had not received any informa-
tion concerning the failure of any contractor in the asso-
ciation to comply with the hiring hall provisions in the
agreement, nor did he receive any complaint , as presi-
dent of the association, that another contractor was not
using the Union's hiring hall. In addition, Parisi said that
he was not told that any contractor was not using the
Union's hiring hall. He acknowledged at the trial that if
someone had violated the collective-bargaining agree-
ment, the person would not likely tell others that he was
doing so.
Charles J. Viso, who is a vice president at Joe Amaral
Plumbing, Inc., said that company was a member of the
association. According to Viso, the general superintend-
ent of the company calls the Union's hiring hall for the
dispatch of plumbers to work for that employer. During
the period between 1974 and 1977, Viso worked as a
field superintendent, and he made such calls to the Union
to request the dispatch of plumbers. On occasions when
the Union had no one available, the company has hired
employees outside the hall such as "steamcard men," but
the company then cleared those persons through the
Union's hiring hall. Viso said that he had no knowledge
of any plumbing employees who had worked for the
company who had not been cleared through the Union's
hiring hall.
While he worked as a field supertindendent, Viso went
from job to job and observed the plumbers who worked
for the company. He knew the majority of the employ-
ees who worked for the company. According to Viso,
the employees received wages and fringe benefits in ac-
cordance with the collective-bargaining agreement with
the Union. He gave these estimates as to the number of
plumbers who were employed by the company: 1976, 50
KEPHART PLUMBING
plumbers; 1977, 85 plumbers; 1978, 90 plumbers; 1979, 80
to 85 plumbers; and 1980, 55 to 70 plumbers.
William B. Ramirez has been the managing officer of
L. C. Bohart Plumbing Company for about 14 years.
The company has been in existence since 1948, and it has
always been located in Santa Clara County. The duties
performed by Ramirez include the bidding, contracting,
purchasing, and the hiring and firing of employees.
During the years from 1977 through 1980, the number of
plumbers employed by Bohart Plumbing ranged from 12
to 25 employees. He estimated that 12 or 13 plumbers
worked during 1980 on a regular basis for the company.
The company has hired all its plumbers through the
union hiring hall. The 'company authorized the associa-
tion to bargain on its behalf-with the Union in the collec-
tive-bargaining negotiations in 1977 and 1980.
Frank Ciari is the president of Frank Ciari Plumbing
and Heating , Inc. That company had been in business for
approximately 5 years at the time of the trial , but Ciari
himself had been working in the plumbing industry since
July 1961. The company has been a member of the asso-
ciation since it came into existence, and the company has
been operating its business under the terms of the ,collec-
tive-bargaining agreements with the Union since 1977.
During the years 1977 through and including 1980, Ciari
Plumbing employed approximately a dozen plumbers.
All of those plumbers were referred to Ciari Plumbing
through the Union, and all the plumbers were union
members and represented by the Union for collective-
bargaining purposes . (See the stipulation at Tr. 630)
Edward Calcany has been the general manager and
vice president of W. L. Hickey Sons, Inc. for 3 years.
Previously, he had held the position of general superin-
tendent and acting general managaer of that company
since 1949. The number of plumbers employed by W. L.'
Hickey has averaged about 85 to 100 employees during
the years 1977 through 1980. The company has obtained
its plumbers by contacting the Union and requesting that
plumbers be dispatched to work for the company.
During discussions in 1980 with certain of the other con-
tractors who are members of that association, Calcany
said that the method of hiring plumbers through the
union hiring hall was brought up, but it was not brought
to his attention that any contractor in the association was
failing to comply with the hiring hall provisions.
Steve Jackson is the owner of a plumbing business,
that is known as San Jose Mechanical, and that has been
in existence since 1978. He was a member of the Union
from 1959 until he obtained an honorable withdrawal
from the Union in 1970. The company authorized the as-
sociation to negotiate and execute collective -bargaining
agreements on its behalf with the Union since 1978. The
company employed about 10 to 12 plumbers in 1978; 10
to 20 plumbers in 1979, and 10 to 15 plumbers in 1980.
Jackson has hired his plumbers through the Union's
hiring hall . Jackson said at the trial that it had not come
to his attention from 1978 to the time that he testified at
the trial that any member of the association had been in
violation of the collective-bargaining agreement, nor that
any contractor in the association had not used the
Union's hiring hall.
619
Prior to 1978, Jackson worked as an estimator for
Central Service Plumbing Company during the years
1976 and 1977. His duties during that period of time in-
volved visiting the company's jobsites on occasion. He
estimated that there were 80 to 100 plumbing employees
working for Central Service in 1976 and 1977. During
that, time, Jackson knew of no violations by the company
of the hiring hall provisons. For the 8 years prior to
1970, Jackson had held a different position with Central
Service. During that earlier period of time, he worked as
a superintendent. He said at the trial that he knew of no
plumbing employees of the company who were not hired
through the Union's hiring hall and who were not mem-
bers of the Union.
As noted previously, Jack Kephart has worked in the
plumbing industry for a number of years, and he was a
member of the Union for many years until the time of his
honorary withdrawal from the union membership. In
earlier years, he had worked for Central Service Compa-
ny, and Kephart stated at the trial, "I know a lot of their
plumbers, and their superintendent, and estimators, and
the owner." (See Tr. 547.) He admitted at the trial that,
so far as he knew, Central's plumbers have been union
members. During his cross-examination by the attorney
for the Charging Party, certain admissions were made by
Kephart:
Q. Central Service, how large were they in 1975?
A. I don't know. They're huge. They might have
had 300 plumbers. I'm not clear. But they have a
lot.
Q. In 1975 were they employing union plumbers?
A. Oh, yes.
Q. In 1976 and '77 were they employing union
plumbers?
A. Always.
Q. And how large were they in those years?
A. Very, very large, to my knowledge.
Q. In excess of 300 union plumbers?
A. Possibly.
Q. How about '78, '79 and '80? Do you know
what their range was, first of all?
A. The range for the number of plumbers?
Q. Yeah.
A. It might have dwindled some during that
time. But they're very large. They're probably the
largest plumbing contractor in the valley.
Q. Roughly, what would their range have been
in 1978?
A. Maybe 300 plumbers.
Q. And were those 300 union plumbers?
A. To my knowledge.
Q. Do you have any knowledge that any of them
were not union plumbers?
A. None.
Q. Okay. Do you have any knowledge that any
of Central's employees, plumbers, were not
member[s] of Local 393 at any time between 1975
and 1980?
A. I don't believe they've ever had any.
Q. I'm sorry?
620 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
A. I don 't believe they've ever had any non-
union plumbers.
Q. They've all been plumbers who were members
of 393.
A. To my knowledge.
Q. And what do you base that on? Is that be-
cause you 're familiar with their operations?
A. I know a lot of their plumbers , and their su-
perintendents , and estimators , and the owner.
Q. Do you know a lot of their plumbers?
A. Yes.
Q. And are they all union plumbers?
A. Yes.
Q. And has anybody ever said anything which
leads you to believe that any of them are not union
plumbers?
A. No.
The average number of plumbers employed by the Re-
spondent on each job was two plumbers. Sometimes the
Respondent had more than one job being performed at
the same time. Kephart testified, "Seventy-nine was one
of my busiest years. I probably had no less than ten
people.",In 1980 there were about six plumbers working
for the Respondent. General Counsel's Exhibit 37 con-
sists of the union's membership records for Jerry Mash-
burn, Roger Garcia, Michael Opray, Wayne Sloan, Mi-
chael Smith, Randy Laney, and Paul Kephart, Jr., during
the period from 1977 through 1981. It was stipulated that
the Respondent requested the dispatch of those employ-
ees from the Union's hiring hall, and that they were sent
to work for the Respondent. (See Tr. -253.) The monthly
transmittals, which were introduced into evidence as
General Counsel's Exhibit 8, have already been referred
to earlier in this decision. However, Kephart said that
the Respondent obtained other employees, who had not
been dispatched from the Union's hiring hall, and for
whom the Respondent had not made any trust fund con-
tributions. Kephart explained, "Most of the time I hired
them off the street. Sometimes I'd hire them from the
union hall." At the time that he testified on October 22,
1981, Kephart said that the Respondent employed four
plumbers who had not been hired through the Union's
hiring hall and for whom no trust fund contributions had
been paid by the Respondent. They were: John Lyons,
Ray Lyons, Mark Mills, and Dave Gonzales.
During the cross-examination of Kephart by the attor-
ney for the Charging Party, Kephart was asked, "Give
me examples of other employers who are members of the
Santa Clara Valley Contractors Association who employ
non-union workers to your knowledge." (See Tr. 532.)
Kephart refused on the witness stand to answer that in-
quiry, and the attorney for the Charging Party moved to
strike certain testimony by Kephart. (See Tr. 535.) Ke-
phart also refused to answer the question, "Do you know
any other employers, members of the Santa Clara Valley
Contractors Association , who have a similar arrangement
with their employers as you do specifically with respect
to one wage scale for union members and another wage
scale for non-union members?" (See Tr. 539.) Further-
more, Kephart indicated to the attorney for the Charging
Party that he would answer every question posed to him
along those lines with a "no comment" response. (See
Tr. 539.) The attorney for the Charging Party asked that
adverse inferences be drawn based on Kephart's failure
to respond to those particular questions during cross-ex-
amination. I indicated that I would rule on the Charging
Party's requests in this decision. (See Tr. 550-552.)
Regarding the Charging Party's motion to strike, I
will grant the motion in particular concerning Kephart's
other answers at transcript pages 531 and 532: (1) "I
don't like to expound on this. There's not a plumbing
contractor in this town that doesn't break the rules.
None of them"; (2) "They all do"; and (3) "It's surviv-
al."
Regarding the Charging Party's request to draw ad-
verse inferences concerning the subsequent line of in-
quiry, I will grant the Charging Party's request and draw
inferences that Kephart had no such knowledge of the
subject matter of that inquiry.
Conclusions
Without reiterating here all the findings of fact that
have been set forth in earlier sections, I conclude that
facts show that the Respondent became a part,of a multi-
employer unit after the Respondent authorized the asso-
ciation to negotiate with the Union and to execute a col-
lective-bargaining agreement with the Union on behalf of
the Respondent. That first authorization was dated April
28, 1977. (See G.C. Exh. 6 and sec. C.)
As explained by Gates at the trial, the association did
not have a formal membership application. Instead, the
practice was to accept as members those employers who
signed an authorization to the association. (See sec. C.)
Accordingly, I conclude that the Respondent became a
member of the association in 1977 in accordance with
the customary practice of the association, notwithstand-
ing the provisions in the subsequently adopted bylaws.
As noted in section here, the Respondent resigned from
the Residential Plumbing and Mechanical Contractors of
Northern California. (See also G.C. Exh. 7.)
After the Respondent became a member of the associa-
tion, the first collective-bargaining agreement between
the association and the Union came into effect. (See G.C.
Exh. 26 and sec. D.) The Respondent continued its par-
ticipation in the multiemployer unit as evidenced by the
Respondent's second authorization to the association and
the second collective-bargaining between the association
and the Union. (See G.C. Exhs. 3 and 25 and sec. D.) As
noted in the findings of fact, the Respondent's second au-
thorization to the association had no time limitation on
that authorization and, thus, it was unlike the Respond-
ent's first authorization in that respect.
Notwithstanding the communications to the associa-
tion members regarding the negotiations for the third
collective-bargaining agreement between, the association
and the Union, and thereafter the notice of the successful
conclusion of those negotiations, it is undisputed that the
Respondent had not withdrawn its authorization to the
association or notified either the association or the Union
of the Respondent's position that it was not a member of
the association and not bound to any contract with the
Union, until the letter was sent on August 6, 1980. (See
KEPHART PLUMBING 621
sec. E.) Therefore, it was not until after negotiations had
taken place for the third collective-bargaining agreement
that the Respondent made known its position. The Re-
spondent's position was disclosed in the letter dated
August 6, 1980, from the attorney for the Respondent to
the trust funds with a copy or that letter to the Union.
(See G.C. Exh. 4 and sec. E.) Up to that point in time,
the evidence does not show that the Union was aware
that the Respondent did not always abide by the terms of
the contract, nor does the evidence show that the Union
acquiesced in the Respondent's conduct in sometimes fol-
lowing the Union's contract and sometimes not doing so.
Significantly, August 6, 1980, is the earliest date stated
in the General Counsel's complaint on which an unfair
labor practice is alleged to have occurred. (See par. 12 of
G.C. Exh, 1(c).) The unfair labor practice charge was
filed on January 26, 1981, and served on January 27,
1981. (See G.C. Exhs. 1(a) and 1(b).) Because the only
unfair labor practices by the Respondent are alleged to
have occurred "since on or about August 6, 1980," I
conclude those allegations in the General Counsel's com-
plaint pertain to the Respondent's conduct within 6
months of the filing and service of the unfair labor prac-
tice charge. Accordingly, I conclude that the statute of
limitations provisions in Section 10(b) of the Act do not
preclude the finding of the unfair labor practices alleged
by the General Counsel in this proceeding. See the
Board's decision in Pullman Building Co., 251 NLRB
1048 (1980). See also Pacific Intercom Co., 255 NLRB
124 (1981); Don Burgess Construction, 227 NLRB 765
(1977); JJCFIndustries, 231 NLRB 83 (1977).
Having concluded that the Respondent became a part
of the multiemployer unit, I must look to the multiem-
ployer unit to determine whether the Union enjoyed ma-
jority status among those employees. As noted in the
findings of fact, each one of the three collective-bargain-
ing agreements negotiated between the association and
the Union contained a union-security clause. Considering
that fact together with the findings of fact set forth in
section 8 here, L conclude that the General Counsel and
the Charging Party have established that the Union en-
joyed majority status in the multiemployer unit at the
times relevant here. In this connection, note especially
the testimony of the various employer officials, as well as
the testimony of Union Representative Williams, and the
admissions made by Jack Kephart. Such testimony is per-
suasive that the Union had majority support in the multi-
employer unit, particularly where there is no convincing
evidence that the Union did not have such majority sup-
port. Thus, I conclude that Respondent was not free
about August 6, 1980, to refuse to abide by the collec-
tive-bargaining agreement and to refuse the request for
an audit, as alleged Iin paragraph 12 of the General Coun-
sel's complaint. I conclude that the arguments advanced
by the General Counsel and the Charging Party are per-
suasive that , by the Respondent 's actions noted above,
the Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(1) and (5) of the Act.
Authorized Air Conditioning Co., 236 NLRB 131 (1978),
enfd . 606 F . 2d 899 (9th Cir. 1979); Amado Electric, 238
NLRB 37 (1978).
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The following employees constitute a unit appropri-
ate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All employees employed by the employer mem-
bers of the Santa Clara Valley Contractors associa-
tion, including those employers who have author-
ized the association to be their collective bargaining
representative, performing work as set forth in Arti-
cle I, Section 3, and the Appendix of the collective
bargaining agreement between the association and
the union, which expires on June 30, 1983; but ex-
cluding all other employees, guards, and supervisors
as defined in the Act.
4. At all times material , the Union has been the exclu-
sive collective-bargaining representative of the employ-
ees in the above-described unit.
5. The Respondent has engaged in unfair labor prac-
tices within the ' meaning of Section 8(a)(1) and (5) of the
Act by failing and refusing to bargain in good faith with
the union by the following acts and conduct:
Since on or about August 6 1980, refusing to
abide by the terms of the collective-bargaining
agreement between the association and the union,
which has effective dates of July 1, 1980, through
June 30, 1983, and by refusing to submit to an audit.
6. The unfair labor practices set forth above affect
commerce within the meaning of Section 2(6) and (7) of
the Act.
THE REMEDY
Because I have found that the Respondent has en-
gaged in unfair labor practices within the meaning of
Section 8(a)(1) and (5) of the Act, I shall recommend to
the Board that the Respondent be ordered to cease and
desist from engaging in those unfair, labor practices and
to take certain affirmative action to remedy those unfair
labor practices.
[Recommended Order omitted from publication.]