Ryan Heating Co., Inc.

National Labor Relations Board - Board Decisions

Jan 31, 1990

297 N.L.R.B. 619 (N.L.R.B. 1990)

RYAN HEATING CO 619
Ryan Heating Company, Inc. and Locals Union No.
2, International Union of Operating Engineers,
AFL-CIO. Case 14-CA-19497
January 31, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On January 11, 1989, Administrative Law Judge
George F McInerny issued the attached decision
The General Counsel and the Union filed excep-
tions and supporting briefs, and the Respondent
filed an answering brief, cross-exceptions, and a
brief in support of its cross-exceptions
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
The complaint alleged that the Respondent vio-
lated Section 8(a)(5) and (1) of the Act by refusing
to execute a written contract embodying an agree-
ment about terms and conditions of employment it
had reached with the Union The judge dismissed
the complaint We reverse
Since 1966 the Respondent and the Union have
been parties to a senes of 8(1) "prehire" agree-
ments, the most recent of which was effective from
April 1, 1985, to March 31, 1988, 2 covering the
Respondent's employees engaged in the installation,
maintenance, overhaul, repair, renovation, or re-
building of air conditioning, refrigeration, and heat-
ing units or systems The Respondent, negotiating
through an informal employers' association, bar-
gained with the Union over a contract to succeed
the one expiring on March 31, 1988 3 It was under-
stood that the employers involved would not be
bound by any agreement reached by the associated
employers and the Union No agreement was
reached by the expiration date of the then-current
contract
'The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are Incorrect 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 at one point in his decision erroneously states that the
most recent collective-bargaining agreement between the Respondent and
the Union was entered into on April 31, 1988 We correct this inadvert-
ent error
3 All dates are in 1988 unless otherwise indicated
Bargaining ;continued, but the Respondent noti-
fied the Union on May 2 that it was going to im-
plement the employer association's last offer, which
included reductions in wages and benefits The Re-
spondent's bargaining unit employees then went on
strike and set up a picket line at the Respondent's
premises The judge found, and we agree, that on
May 7 the Respondent, bargaining directly with
the Union rather than through the employer's asso-
ciation, orally agreed on a new contract, which the
Respondent's president stated he would sign on
May 10 On May 9, however, the Respondent noti-
fied the Union that it would not sign the agree-
ment, and no agreement was in fact signed The
strike ended on May 16
The judge found that "[u]nder orthodox princi-
ples of labor relations law, Respondent would be
obligated to execute a written contract comprising
the agreement reached through collective bargain-
ing and failure so to do is a violation of Sec-
tion 8(a)(5) of the Act" The judge concluded,
however, that the Respondent committed no viola-
tion by refusing to sign the 8(1) contract to which
it had agreed because its agreement had been co-
erced by the Union's strike and picketing The
judge reached this conclusion on the basis of lan-
guage in the Board's decision in John Deklewa &
Sons, 282 NLRB 1375 (1987), indicating that after
an 8(1) agreement has expired, the employer is to
be free from coercive 'union efforts, including
strikes and picketing, to compel the adoption of a
successor agreement 4
In our recent decision in Laborers Local 1184
(NVE Constructors), 296 NLRB 1325 (1989), how-
ever, we recognized that these statements in
Deklewa were inaccurate and held that a correct
statement of the law is that an employer must be
free from unlawful coercion (as manifested, for ex-
ample, by unlimited picketing) to ensure that an
8(1) agreement is voluntary within the meaning of
that section The Board therefore concluded that,
at least regarding an employer that has employees,
recognitional and organizational picketing by a mi-
nority union in the construction industry is not
barred by Section 8(b)(7)(C) of the Act, and thus is
not unlawfully coercive, if the picketing meets the
time limitations set forth in Section 8(b)(7)(C)
NVE Constructors, above
4 In Deklewa, the Board reinterpreted certain aspects of 8(f) law and
held, among other things, that 8(1) agreements are enforceable and cannot
be repudiated dunng their term and that, after expiration of an 8(1) agree
ment, the union enjoys no presumption of majonty status and either party
may repudiate the 8(f) bargaining relationship The decision in Deklewa
also made the statements on which the judge relied indicating that an em-
ployer could not be compelled by stnkes and picketing to adopt a succes-
sor 8(f) agreement
297 NLRB No 91
620 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Section 8(b)(7)(C) prohibits recogmtional or or
gamzational picketing by a noncertified union
where the picketing has been conducted without an
election petition being filed "within a reasonable
period of time not to exceed 30 days ' As the
Board noted in NVE Constructors, above, slip op at
6, the "reasonable period of time' requirement in
Section 8(b)(7)(C) for picketing without a petition
being filed generally has been interpreted as being
30 days, except when picketing has been accompa-
nied by violence or other picket line misconduct,
or when the picketing union is barred by the Act
from being certified as the representative of the
unit employees
In the present case, the Union had conducted
picketing of the Respondent's premises for 6 days
when the Respondent and the Union reached
agreement on a new contract There is no conten
tion or evidence showing that there was any vio-
lence or picket line misconduct or that the Union is
barred by the Act from being certified as the unit
employees' representative
Under these circumstances, there is no basis for
concluding that the Respondent's assenting to a
new 8(f) agreement with the Union was the prod-
uct of unlawful coercion Accordingly, we find
that the "orthodox principles" of labor law to
which the judge referred are applicable here and,
thus, by refusing to sign the contract to which it
had orally agreed, the Respondent violated Section
8(a)(5) and (1) of the Act See H J Heinz Co v
NLRB, 311 US 514 (1941), Waste Systems Corp,
290 NLRB 1214 (1988)
REMEDY
Having found that the Respondent has violated
Section 8(a)(5) and (1) of the Act by refusing since
May 9, 1988, to execute an agreed-on contract with
the Union, we shall order the Respondent to cease
and desist and, on request, to execute a written col-
lective bargaining agreement embodying the par-
ties' May 7, 1988 agreement and to give retroactive
effect to the agreement from the effective date of
the contract We shall further order the Respond-
ent to make employees whole for any losses they
may have suffered as a result of the failure to exe-
cute the agreement, with such amounts to be corn
puted in the manner set forth in Ogle Protection
Service, 183 NLRB 682 (1970), enfd 444 F 2d 502
(6th Cm 1971), plus interest, to be computed in the
manner prescribed in New Horizons for the Retard-
ed, 283 NLRB 1173 (1987)
ORDER
The National Labor Relations Board orders that
the Respondent, Ryan Heating Company, Inc , St
Louis, Missoun, its officers, agents, successors, and
assigns, shall
1 Cease and desist from
(a) Refusing to execute a wntten 8(f) collective-
bargaining agreement embodying as May 7, 1988
agreement with Locals Union No 2, International
Union of Operating Engineers, AFL-CIO
(b) 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) On request, promptly execute and give retro
active effect to a written collective-bargaining
agreement embodying its May 7, 1988 agreement
with the Union as the exclusive representative of
its employees covered by the collective-bargaining
agreement, which constitutes an appropriate unit
(b) Make unit employees whole for any losses
they may have suffered as a result of the failure to
execute the May 7, 1988 agreement in the manner
set forth in the remedy section of this decision
(c) 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
(d) Post at its facility in St Louis, Missouri,
copies of the attached notice marked "Appendix "5
Copies of the notice, on forms provided by the Re-
gional Director for Region 14, after being signed
by the Respondent's authonzed representative,
shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive
days in conspicuous places mcludmg 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 matenal
(e) Notify the Regional Director in wntmg
within 20 days from the date of this Order what
steps the Respondent has taken to comply
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 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
RYAN HEATING CO 621
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 refuse to execute a wntten 8(f)
collective-bargaining agreement embodying our
May 7, 1988 agreement with Locals Union No 2,
International Union of Operating Engineers, AFL-
CIO as the exclusive representative of the employ-
ees in the bargaining unit
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, on request, promptly execute and give
retroactive effect to a written collective-bargaining
agreement embodying our May 7, 1988 agreement
with the Union as the exclusive representative of
the employees in the bargaining unit, which is
composed of the employees covered by the agree-
ment
WE WILL make employees in the bargaining unit
whole for any losses they may have suffered as a
result of our failure to execute the agreement, with
interest
RYAN HEATING COMPANY, INC
Mary J Tobey, Esq , for the General Counsel
Ira M Potter, Esq (Phelan & Potter), of St Louis, Mis-
souri, for the Respondent
Barry J Levine, Esq , of St Louis, Missouri, for the
Charging Party
DECISION
GEORGE F MCINERNY, Administrative Law Judge
Based upon a charge filed on May 16, 1988, 1 by Local
Union No 2, International Union of Operating Engi-
neers, AFL-CIO (the Union), the Regional Director of
Region 14 of the National Labor Relations Board (the
Regional Director and the Board), issued a complaint on
June 16, alleging that Ryan Heating Company, Inc (the
Company or Respondent), had violated and was continu-
ing to violate Section 8(a)(1) and (5) of the National
Labor Relations Act, as amended, 29 U S C § 151 et
seq (the Act) The Respondent filed a timely answer de-
nying the commission of any unfair labor practices
Pursuant to a notice of hearing contained in the said
complaint a hearing was held before me at St Louis,
Missouri on August 11, 1988, at which all parties were
' An dates herein are in 1988 unless otherwise specified
represented by counsel, and had the opportunity to
present testimony and documentary evidence, to examine
and cross-examine witnesses, to make motions and to
argue orally
After the hearing, briefs were filed by the Respondent
and the General Counsel These bnefs have been careful-
ly considered
Based on the entire record, and upon my observation
of the witnesses, and their demeanor, I make the follow-
ing
FINDINGS OF FACT
I JURISDICTION
Ryan Heating Company, Inc is a Missouri corporation
engaged from its principal office and place of business in
St Louis, in the installation, maintenance and repair of
heating and air-conditioning units, primarily in private
residences During the 12 months ending May 31, 1988,
the Company purchased and received at its St Louis fa-
cility, goods and materials valued at over $50,000 from
other businesses in the State of Missouri, which business-
es, in turn, had received such goods and materials direct-
ly from points outside the State of Missouri The com-
plaint alleges, the answer admits, and I find that the
Company is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act
II THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find
that the Union is a labor organization within the meaning
of Section 2(5) of the Act
III THE ALLEGED UNFAIR LABOR PRACTICES
A Introduction
The parties stipulated that the Company and the
Union entered into a collective-bargaining agreement in
1966 covering employees engaged in the installation,
maintenance, overhaul, repair, renovation and rebuilding
of air-conditioning refrigeration and heating units or sys-
tems Since 1966, the parties have entered into successive
contracts, the most recent of which was effective by its
terms from April 1, 1985, to March 31, 1988
It was further stipulated that the most recent collec-
tive-bargaining agreement between the Company and the
Union was entered into on April 31, 1988
There was no disagreement about the fact that, in
March, several employers in the air-conditioning and
heating industry joined together under the leadership of
Wayne Stumpf, president of K-C Heating, Cooling and
Sheet Metal, Inc to negotiate a new contract with the
Union It was understood that those employers involved
would not be bound by any agreement reached by the
associated employers and the Union Ryan Heating Com-
pany was listed as associated with this group Negotia-
tions did take place in February, March, and April, but
as of the end of the latter month no agreement had been
reached
622 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
B Negotiations Between the Company
Rudolph L (Rudy) Smith, organizer and assistant bum
ness manager of the Union testified that about April 19
the association presented what was described as a last
offer, and informed the Union that the individual em
ployers were going to implement that offer on May 2
Smith stated that on receipt of this information, he con
tacted each individual contractor and asked whether that
contractor was going to implement the association s last
offer (which included cuts in wages and benefits) or was
going to continue to pay the old contract wages and ben
efits Smith told the contractors that if they were going
to implement the new proposals the Union would take
strike action against them if not then they would not be
struck
James P (Jim) Ryan president of Respondent told
Smith that he was not going to implement the associa
lion s new proposals and Smith told him that the Union
would not take strike action against him at that time
However, on May 2, after Respondent s employees had
been at work for 2 hours Ryan informed them that he
was going to implement the cuts The Union then called
10 employees out on strike and set up a picket line at the
Company s premises
In the period between April 19 and May 2 the Union
had held a meeting at which the Association s proposals
were rejected, and the Union formulated a list of nine
proposals of its own which were sent out to the several
employers involved 2
On May 6 Smith and Jim Ryan had a conversation in
which they discussed the possibility of putting Ryan s
employees back to work at the old rates Smith stated
that he pointed out that Ryan had been offered that al
ternative that he had agreed but then had changed his
mind 3 In any event on Saturday May 7 in the after
noon, Ryan called Smith and they discussed the Union s
list of nine proposals After some discussion according
to Smith Ryan said that he would sign the agreement on
Tuesday May 10 Smith asked why it would be signed
on Tuesday and Ryan said that there was going to be a
meeting of the association on that day and he wanted to
explain to the other members why he was signing
The following Monday, May 9, Smith, accompanied
by Vergil L Belfi the Union s business manager went
to Respondent s premises and met there with Jim Ryan
There was some discussion about retroactivity as Ryan
studied the Union s proposals and Belfi said that they
could work that out Ryan finished looking over the pro
posals and stated again that he would sign the document
on Tuesday morning The union representatives then said
they would remove the pickets from Respondent s prem
ises on Tuesday morning Ryan added that his employees
would not be called back to work on Thursday morning
as he had to line up work for them to do Belfi and Ryan
shook hands and the two union officials left the office
2 Jim Ryan testified that he received a copy during the week of May 2
3 Ryan s version of this conversation was that he asked about putting
the men back As the old rates and that Smith said he did not know the
answer and would get back to Ryan on It Smith denied this last state
ment
Later that day Ryan called Belfi on the telephone and
informed him that he couldn t sign the agreement
Belfi demanded to know why but Ryan would not give
a reason
Ryan s version of these events is quite different As
previously noted Ryan talked to Smith on May 6 about
returning to the old wage rates The telephone conversa
tion on the afternoon of May 7 was in Ryan s view a
followup on that According to Ryan Smith informed
him that the Union could not return the employees to
work once they went out until the contract was signed
Smith then asked Ryan to sign the contract Ryan re
plied that he would let him know Tuesday morning 4
The conversation ended with Smith saying Okay we 11
hear from you Tuesday
On May 9 Ryan stated that Smith and Belfi came in
to his office and presented him with two copies of the
Union s proposals Ryan denied reading or studying the
proposals but did discuss certain parts of the document,
such as a 1 year term and vacation days He denied that
he had even agreed to sign or accept the Union s propos
als
After the Tuesday meeting, Ryan testified that he
called Smith and informed him that he was not going to
sign the contract
Ryan did not sign the Union s proposals the strike
ended on May 16 and at least one of Ryan s employees
his nephew Richard Robbm resigned from the Union
and returned to work on May 16
In evaluating this conflicting testimony I find that the
union officials Smith and Belfi were the more credible I
base this first on their demeanor Both Smith and Belfi
impressed me as candid, open and consistent in their tes
timony Ryan, on the other hand was more guarded as
well as seeming confused about details For example
why would Smith and Belfi have come to Ryan s office
on the morning of May 9 if as Ryan stated Smith had
concluded their conversation on May 7 by saying that he
would hear from Ryan on Tuesday May 10 after the
contractors meeting Ryan s explanation that he and
Smith might have been talking about two different things
in their Saturday afternoon conversation
Beyond the issues of demeanor and consistency, I find
the testimony of Ryan s nephew and employee Richard
Robben to be credible and completely corroborative of
Smith and Belfi Robben stated unequivocally that Ryan
told him on Saturday the 7th that he had agreed to sign
and further that Robben could tell that to the other em
ployees 5
Accordingly I find that Ryan had agreed to sign the
document containing the Union s proposals for a new 3
year contract and then reneged, and refused to sign
Under orthodox principles of labor relations law Re
spondent would be obligated to execute a written con
tract comprising the agreement reached through collec
tive bargaining (Sec 8(d) of the Act) and failure so to
do is a violation of Section 8(a)(5) of the Act H J
4 Ryan seemed confused about this conversation indicating in his testi
mony that when he spoke to Smith about signing he meant signing to
gether with the other contractors
a Robben was the Union s shop steward at that time
RYAN HEATING CO 623
Heinz Co, 311 US 514 (1941) However, the parties all
agree that the contracts which the Union and Respond-
ent had negotiated and observed from 1966 to 1988 were
contracts entered into under the provisions of Section
8(1) of the Act, applicable to the building and construc-
tion industry There is nothing in this record to indicate
that the Union ever established its majority status under
the provision of Section 9 of the Act
C The 8(f) Issue
In support of their respective positions the General
Counsel and the Respondent have both cited the recent
case of John Deklewa & Sons, 282 NLRB 1375 (1987) In
her brief the General Counsel argues that since Deklewa
held that an employer violates Section 8(a)(5) of the Act
where it repudiates a collective-bargaining agreement en-
tered into under the provisions of Section 8(1), that the
role in Deklewa does not apply here
As noted above, there is no question but that Jim
Ryan agreed to sign the memorandum containing the
Union's proposals—then he reneged, and refused to sign
However, there is another factor here which was consid-
ered by the Board in Deklewa That is, the fact of the
Union's strike and the influence of that strike on Ryan's
actions Smith testified credibly that Ryan had agreed
before the strike began on May 2 that he would continue
to honor the old contract terms, without implementing
the give-back proposals formulated by the association
Ryan reneged on that agreement, but then, as I infer
and find, he became concerned about the effect the strike
was having on his business This concern led him to con-
tact Smith on Friday, May 6, to ask if he could, at that
point, go back to the old conditions Ryan asked Smith if
the latter would call off the pickets and allow the men to
return to work On Smith's refusal, whether that refusal
occurred on Friday or on Saturday, Ryan then agreed to
sign the union proposals
While the General Counsel is correct that Deklewa
does not permit repudiation of an 8(f) agreement, the
Board also states that after the contract has expired
the signatory union will enjoy no majority presump-
tion and either party may repudiate the 8(1) rela-
tionship The signatory employer will be free, at all
times, from any coercive union efforts, including
strikes and picketing, to compel the negotiation
and/or adoption of a successor agreement [282
NLRB at 1386 1
Further defining this aspect of its decision, the Board
continued
Beyond the operative term of the contract, the sig-
natory union acquires no other rights and privileges
of a 9(a) exclusive representative Unlike a full 9(a)
representative, the 8(f) union enjoys no presumption
of majority status on the contract's expiration and
cannot picket or strike to compel renewal of an ex-
pired agreement or require bargaining for a succes-
sor agreement At no time does it enjoy a presump-
tion of majority status, rebuttable or otherwise, and
its status as the employees' representative is subject
to challenge at any time [282 NLRB at 1387]
In this case there is no question that the Respondent's
response, first to the threat of a strike, and picketing, was
to attempt to forestall the effects of such economic
action, and to the onset of the strike, was to agree to
sign the Union's proposals It is clear, and I find, that the
impact of the strike action caused Ryan to agree, and
that he would not have signed absent that coercive con-
duct by the Union As I understand the meaning of
Deklewa, framed by those passages quoted above, an
agreement compelled by a strike or picketing is unlawful,
and the failure of Respondent, as here, to sign an agree-
ment coerced by a strike and picketing is not a violation
of Section 8(a)(5) and (1)
CONCLUSIONS OF LAW
1 The Respondent, Ryan Heating Company, is an em-
ployer within the meaning of Section 2(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 Respondent has not violated Section 8(a)(5) and
(1) of the National Labor Relations Act
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed 6
ORDER
The complaint is dismissed in its entirety
6 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall- be deemed waived for all pur-
poses