Glendora Plumbing

GLENDORA PLUMBING J. Howard Jenks, d/b/a Glendora Plumbing and Plumbers and Steamfitters Local 398, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada , AFL-CIO Joint Council of the Brotherhood of Independent Workers, affiliated with the National Federation of Independent Unions (Glendora Plumbing) and Plumbers and Steamfitters Local 398, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO and Glendora Plumbing Service , Party of Interest and Party to the Contract. Case 31-CA-331 and 31-CB-91 May 31, 1967 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZAGORIA On November 2, 1966, Trial Examiner Eugene K. Kennedy issued his Decision in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, Respondent Employer filed exceptions to the Trial Examiner's Decision and a supporting brief, and the General Counsel filed limited exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and the briefs, and the entire record in this case and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following additions. We agree with the Trial Examiner that Glendora Plumbing, herein called Glendora, and Glendora Plumbing Service, herein called Service, constitute a single-integrated business entity and that employees of Glendora and Service comprise a single unit appropriate for purposes of collective bargaining. For a number of years J. Howard Jenks has been engaged in the plumbing business under the i On February 22, 1966, UA Business Representative Battany told Mr. Jenks that he heard that Mr. Jenks had signed a BIW agreement. Mr. Jenks replied that his wife had signed the agreement Upon Battany 's accusation that this was a subterfuge, 165 NLRB No. 1 101 fictitious name of Glendora Plumbing and has had a collective-bargaining agreement with the Charging Party, herein referred to as the UA. The latest agreement was entered into on July 1, 1963, and was effective through June 30, 1966. Prior to 1964, Glendora had a service department as well as a new construction department. The service department, with a normal complement of two or three employees, engaged in servicing, repair of plumbing and heating systems, small additions, and remodeling jobs, but did no new construction work. Late in 1963, the service department was largely discontinued although it continued to perform some service or maintenance work for some of Glendora's general contractor customers. In May or June 1964, a certificate of doing business under the fictitious name of Service was obtained by Orra Jenks, the wife of the owner of Glendora. Around that same time, Mr. Jenks offered a job of serviceman with Service to Glendora employee Golden who had been performing such work for Glendora. Golden was instructed by Mr. Jenks to prepare a pickup truck belonging to Glendora for use as a service truck by Service. Since its inception, Service has used the same offices, telephone, post office box, toolroom, storage facilities, and entrance as did Glendora. Each had free access to the other's equipment. Until late February 1966, all the regular employees of Service had been previously employed by Glendora and there was a substantial interchange of employees of the two. During this period, work of Service was the same as that performed by the service department of Glendora prior to 1964; Glendora and Service performed work for the same customers, Glendora warranting its work to the general contractor for a year and Service fulfilling this warranty by performing the necessary repairs, with Mr. Jenks supervising both operations. On February 18, 1966, Mr. Jenks told John Sherwood, UA member employed by Glendora, that he was going to try doing a job with Respondent Union, herein known as the BIW, and see what happened. On February 21, 1966, Service signed a collective-bargaining agreement containing a union- security clause with BIW.1 On that same day, Mr. Jenks held a meeting with several of his employees including some who were members of the UA. During that meeting, Mr. Jenks told the employees that he was going to assign the remainder of the Coral 60 housing tract job to Service under the BIW contract. (Part of the work on that tract was at that time being performed by Glendora.) Mr. Jenks also told the employees that the work in the service department would go up in volume and the plumbing department would go down. Mr. Jenks told the employees the cost of joining the BIW and Mr. Jenks replied , "Well, it may be a subterfuge, but it's a legal way of getting around the current labor agreement what we had in effect at that time." 299-352 0-70-8 102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD concluded by saying he would like them to take the application for the BIW, which was on Mrs. Jenks' desk in the room, to their homes, look it over, and bring it back if they decided to fill it out. On this same day Mr. Jenks told Glendora employee Rex Waterman that he was thinking of going into this new Union, that he might go under doing it, but he was going to give it a try. After February 21, 1966, the payroll records of Glendora and Service showed a marked change. In the payroll period immediately preceding February 21, Glendora had 18 production employees. Two weeks later Glendora had only two. Eleven employees, all members of the UA, were laid off by Glendora.2 As to Service, from a complement of two full-time employees and five occasional part- time employees in February, it expanded to a total of seven full-time employees and two part-time employees by May 1966. By August 1966, Service had expanded to 19 full-time employees, including about 14 new employees who had previously worked neither for Glendora or Service. None of the employees laid off by Glendora were recalled for work with Service at this or any time. After February 21, 1966, Glendora subcontracted at least three new construction jobs to Service. In addition, Service began to bid on new construction, for which Mr. Jenks did the estimating and supervision. Prior to that date, Service had done no new construction work. The foregoing demonstrates beyond any reasonable doubt that Glendora and Service were operated as a single-integrated business entity. Accordingly, we reject Respondent Employer's contention that the employees of Glendora and Service constituted two separate bargaining units; we also find, in view of the foregoing, that service employees were an accretion to the control unit of which UA was at all relevant times the exclusive bargaining representative.3 It follows from the foregoing that Respondent Employer was not free to negotiate a contract with Respondent Union covering employees of Service, and that by so doing and by transferring work from Glendora to Service for performance under such contract, it withdrew and withheld recognition from the UA in violation of Section 8(a)(5); it unlawfully assisted Respondent Union in violation of Section 8(a)(2); and it interfered with, restrained, and coerced its employees in the exercise of their right to Y Of the five remaining , one quit and four joined the BIW and were put on the Service payroll. 3 The Trial Examiner found that, as of February 21, 1966, the UA was the majority representative of such unit because 12 of 18 employees on Glendora's payroll were members of UA At that time Service had two employees on its payroll , a circumstance which does not affect the UA's majority status In any event, the agreement between Respondent Employer and UA covering the employees of Service and Glendora continued in effect until June 30, 1966. Since the total complement of employees of Glendora and be represented for purposes of collective bargaining by a representative of their own choice in violation of Section 8(a)(1). We also find that Respondent Employer's entire course of conduct, particularly its selection of members of UA for layoff, its transfer of work from Glendora to Service, and its failure to recall the laid- off employees to perform work for Service when Service substantially increased its work force in July and August, constituted discrimination in the terms and conditions of employment of members of UA because of such membership in violation of Section 8(a)(3) and (1) of the Act. Contrary to Respondent Employer's contentions, neither the fact that Mr. Jenks later requested referrals from the UA hiring hall for employment with Glendora, nor the fact that he informed the UA that he was willing to negotiate a new contract on behalf of Glendora negatives the compelling inference of discriminatory motivation flowing from the facts set forth above. In each case it is clear that Mr. Jenks sought to limit employment of UA members and to limit recognition of the UA as their bargaining representative solely to so much of Glendora's operations as he chose to continue. Also, at the time of these later events, Mr. Jenks had already transferred Glendora work to Service for performance under the BIW contract and he did not recall the laid-off employees to perform such work for Service or to work for Service when he substantially increased its work force in July or August. In all the circumstances, his later dealings with the UA serve to confirm rather than dispel the discriminatory motivation for the layoff of UA members. Accordingly we adopt the Trial Examiner's finding that Respondent Employer violated Section 8(a)(3) in terminating the employment of 11 UA members on February 21, 1966.4 We also find that Respondent BIW violated Section 8(b)(2) and (1)(A) by entering into a union- security agreement with Respondent Employer at a time when it did not represent an uncoerced majority of employees in the appropriate unit. THE REMEDY Having found that Respondent Employer and Respondent Union executed a collective-bargaining agreement containing a union-security provision at a time when another union, the UA, was the statutory Service was reduced during the month of February , we cannot assume that work always would have been available for all the 11 employees laid off but for the fact that they were members of the UA However, these employees were entitled to be recalled when Service added to its payroll. As the Trial Examiner indicated, the availability of work will have to be ascertained at the compliance stage of this proceeding in order to determine the amount of backpay to which these employees are entitled. The amount of work performed by the two discnmmatees called to work by Glendora must also be taken into account in determining their backpay. GLENDORA PLUMBING 103 bargaining representative of Respondent Employer's employees, we shall order Respondents to cease performing, enforcing, or giving effect to the agreement dated February 21, 1966, and jointly and severally to reimburse all employees of Glendora and Service for moneys paid by them or deducted from their earnings for initiation fees, dues, assessments, or other obligations of membership in Respondent Union.5 Moreover, in accordance with our decision in Isis Plumbing & Heating Co., 138 NLRB 716, and Quality Coal Corporation, 139 NLRB 492, we shall include an allowance for interest thereon to be computed in the manner set forth in Seafarers International Union of North America, Great Lakes District, 138 NLRB 1142. We shall also order that Respondent Employer withdraw and withhold recognition of the Respondent Union, and the Respondent Union to cease acting as the collective-bargaining agent of Respondent Employer's employees until that labor organization is certified as the exclusive representative of Respondent Employer's employees. We shall further order Respondent Union to cease and desist from causing Respondent Employer to discriminate against employees in violation of Section 8(a)(3) by entering into and maintaining an agreement which conditions employment with Respondent Employer on membership in Respondent Union at a time when it was not the representative of an uncoerced majority of these employees, and order Respondent Company to cease and desist from assisting the Respondent Union in violation of Section 8(a)(2) by entering into a contract with it unless and until it is certified as the representative of its employees. Having found that by entering into a contract with the Respondent Union, Respondent Employer withdrew recognition from the UA in violation of Section 8(a)(5), we shall order Respondent Employer, upon request, to bargain with the UA as the statutory representative of its employees. Having found that Respondent Employer has discriminated against those employees who were members of the UA in violation of Section 8(a)(3) and has not recalled or reemployed them, and that such discrimination has been caused by Respondent BIW, we shall order Respondent Employer to offer employees Robert Holmes, Wynn Kaufman, John Sherwood, Rex Waterman, Victor Dimit, Roger Ferguson, William Kehr, Richard Markland, Charles Mathis, Ronald Rayfield, and Larry Samuels immediate and full reinstatement to their former or substantially equivalent positions and, if necessary, discharge any replacements hired in their stead. We shall also order Respondents jointly and severally to reimburse these employees for loss of wages caused by Respondent Employer's discriminatory acts. Loss of pay shall be computed in accordance with the formula prescribed in F.W. Woolworth Company, 90 NLRB 289, together with 6 percent interest per annum as prescribed in Isis Plumbing and Heating Co., supra. Respondent Employer's unfair labor practices, as found, strike at the heart of rights guaranteed employees by the Act. Unless appropriately restrained, there is reasonable ground to anticipate that Respondent Employer, in the future, will infringe upon other rights guaranteed to employees. We shall, therefore, order Respondent Employer to cease and desist from infringing in any manner upon the rights guaranteed employees by Section 7 of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that: A. Respondent Employer, J. Howard Jenks, d/b/a Glendora Plumbing and Orra Jenks, d/b/a Glendora Plumbing Service,6 its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Assisting the Joint Council of the Brotherhood of Independent Workers, affiliated with the National Federation of Independent Unions, or any other labor organization, and from otherwise interfering with the representation of its employees through a labor organization of their own choosing. (b) Recognizing the Joint Council of the Brotherhood of Independent Workers, affiliated with the National Federation of Independent Unions, or any successor thereto, as the representative of any of its employees for dealing with them with respect to rates of pay, wages, hours of employment, or any other terms and conditions of employment, unless and until such labor organization shall have been certified by the Board as the exclusive representative of the employees of Glendora and Service. (c) Performing, enforcing, or giving effect to the collective-bargaining agreement of February 21, 1966, with Joint Council of the Brotherhood of Independent Workers, affiliated with the National Federation of Independent Unions, or entering into or enforcing any extention, renewal, modification, or supplement thereof, or any superseding collective- bargaining agreement with said labor organization. (d) Refusing to bargain collectively with United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, as the exclusive representative of its employees in the following unit which the 5 Kennch Petrochemicals, Inc., 149 NLRB 910, Downtown Bakery Corp , 139 NLRB 1352 6 Although no charge was filed against Service, we find that it had actual notice of this proceeding and its interests were fully represented Since we also find that Glendora and Service comprise a single-integrated business entity for purposes of the Act, our Order shall run against Service as well as Glendora Cf. Frost Lumber Industries, 101 NLRB 659 104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Board finds appropriate for the purposes of collective bargaining: All employees of Glendora and Service performing plumbing, heating, and piping work, and also plumbing repair work in the counties of Los Angeles, Orange, Riverside, San Bernadino, Imperial, San Diego, Ventura, Santa Barbara, and San Luis Obispo, but excluding office clerical employees, professional employees, guards, watchmen, and supervisors as defined in the Act. (e) Discouraging membership in the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, by discharging employees or otherwise discriminating in any manner in respect to their tenure of employment or any terms or condition of employment. (f) In any other manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization, as authorized in Section 8(a)(3) of the Act, as amended, by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Withdraw and withhold all recognition from the Joint Council of the Brotherhood of Independent Workers, affiliated with the National Federation of Independent Unions, as a representative of any of its employees, for the purpose of dealing with them with respect to rates of pay, wages, hours of employment, or other terms or conditions of employment, unless or until said organization shall have been certified as such representative by the Board. (b) Jointly and severally with Respondent Union reimburse those employees who became members of Respondent Union after the execution of the collective-bargaining agreement of February 21, 1966, for moneys paid by them or deducted from their earnings for initiation fees, dues, assessments, or other obligations of membership in Respondent Union, together with interest at the rate of 6 percent per annum, in the manner set forth in the section of the Board's Decision and Order entitled "The Remedy." (c) Upon request, bargain collectively with the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, as the exclusive representative of the employees in the aforesaid appropriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. (d) Offer those employees listed in that section of the Board's Decision and Order entitled "The Remedy" immediate and full reinstatement to their former or substantially equivalent position without prejudice to their seniority or other rights and privileges originally enjoyed by them, dismissing, if necessary, any replacements hired in their stead, and jointly and severally with Respondent Union make them whole for any loss of pay they may have suffered by reason of Respondent's discrimination against them, with backpay and interest to be computed as prescribed in the section of this Decision and Order entitled "The Remedy." (e) Notify any employees if presently serving in the Armed Forces of the United States of their right to reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (f) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to ascertain the amount of backpay due under the terms of this Order. (g) Post at its place of business in Glendora, California, copies of the attached notices marked "Appendix A" and "Appendix B."7 Copies of said notices, to be furnished by the Regional Director for Region 31, after being signed by the appropriate representatives, shall be posted by Respondent Employer immediately after receipt thereof, and be maintained by Respondent Employer for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its employees are customarily posted. Reasonable steps shall be taken by Respondent Employer to insure that said notices are not altered, defaced, or covered by any other material. (h) Mail to the Regional Director for Region 31 copies of the attached notice marked "Appendix A" for posting by the Respondent Union. Copies of said notice, to be furnished by said Regional Director, after being duly signed by the representatives of Glendora and Service, shall be forthwith returned to said Regional Director for such posting. (i) Notify the Regional Director for Region 31, in writing, within 10 days from the date of this Decision and Order, what steps the Respondent Employer has taken to comply herewith. B. The Respondent Union, Joint Council of the Brotherhood of Independent Workers, affiliated with the National Federation of Independent Unions, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Acting as the collective-bargaining representative of the employees of Respondent Employer in the unit heretofore found appropriate by the Board, for the purpose of dealing with said Respondent Employer concerning rates of pay, ' In the event that this Order is enforced by a decree of a words "a Decision and Order" the words "a Decree of the United United States Court of Appeals , there shall be substituted for the States Court of Appeals Enforcing an Order " GLENDORA PLUMBING wages, hours of employment, or other terms or conditions of employment, unless and until such labor organization shall have been certified by the Board as the exclusive representative of such employees. (b) Performing, enforcing, or giving effect to its collective-bargaining agreement of February 21, 1966, with Glendora Plumbing Service, or entering into or enforcing any extension, renewal, modification, or supplement thereof, or any superseding collective-bargaining agreement with Respondent Employer. (c) Causing or attempting to cause Respondent Employer to discriminate against employees in violation of Section 8(a)(3) of the Act by entering into or maintaining any agreement with Respondent Employer at a time it is not the representative of an uncoerced majority of these employees, which conditions employment on membership in Respondent Union, or in any other manner causing or attempting to cause Respondent Employer to discriminate against any employee in violation of Section 8(a)(3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Jointly and severally with the Respondent Employer reimburse those employees who became members of Respondent Union after execution of the collective-bargaining agreement of February 21, 1966, for moneys paid by them or deducted from their earnings for initiation fees, dues, assessments, or other obligations of membership in Respondent Union, and jointly and severally with Respondent Employer make whole the employees listed in that section of the Board's Decision and Order entitled "The Remedy" for any loss of pay they may have suffered by reason of the discrimination practiced against them, together with interest at the rate of 6 percent per annum, in the method set forth in the section of the Board's Decision and Order entitled "The Remedy." (b) Post at its business office and meeting hall copies of the attached notices marked "Appendix A" and "Appendix B."8 Copies of said notices, to be furnished by the Regional Director for Region 31, after being duly signed by the appropriate representatives, shall be posted by the Respondent Union immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicious places, including all places where notices to its employees are customarily posted. Reasonable steps shall be taken by the Respondent Union to insure that said notices are not altered, defaced, or covered by any other material. (c) Mail to the Regional Director for Region 31 signed copies of the attached notice marked "Appendix B" for posting by Glendora Plumbing and Glendora Plumbing Service. Copies of said notice, to be furnished by said Regional Director, after being duly signed by the Respondent Union's 105 representative, shall be forthwith returned to said Regional Director for such posting. (d) Notify the Regional Director for Region 31, in writing, within 10 days from the date of this Decision and Order, what steps the Respondent Union has taken to comply herewith. 9 See fn 7. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that: WE WILL NOT assist the Brotherhood of Independent Workers, or any other labor organization , or otherwise interfere with the representation of our employees through a labor organization of their own choosing. WE WILL NOT recognize the Brotherhood of Independent Workers, or any successor thereto, as the representative of any of our employees for dealing with us with respect to rates of pay , wages, hours of employment, or other terms and conditions of employment, unless and until such labor organization shall have been certified by the Board as the exclusive representative of our employees. WE WILL NOT perform, enforce, or give effect to the collective-bargaining agreement of February 21, 1966, with the Brotherhood of Independent Workers, or enter into or enforce any extension, renewal, modification, or supplement thereof, of any superseding collective-bargaining agreement with said labor organization. WE WILL NOT discourage membership in the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO, by discharging employees or otherwise discriminating in any manner in respect to their tenure of employment or any term or condition of employment. WE WILL NOT in any other manner interfere with, restrain , or coerce employees in the exercise of rights guaranteed in Section 8 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization, as authorized in Section 8(a)(3) of the Act. WE WILL withdraw and withhold all recognition from the Brotherhood of Independent Workers, as a representative of any of our employees for the purpose of dealing with them with respect to rates of pay , wages, 106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hours of employment , or other terms or conditions of employment , unless or until said organization shall have been certified as such representative by the Board. WE WILL jointly and severally with Respondent Union reimburse those employees who became members of Respondent Union after the execution of the collective -bargaining agreement of February 21, 1966, for moneys paid by them or deducted from their earnings for initiation fees, dues, assessments , or other obligations of membership in Respondent Union. WE WILL, upon request , bargain collectively with the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO, as the exclusive representative of our employees in the bargaining unit described below, and, if an understanding is reached, embody such understanding in a signed agreement. Said bargaining unit is: All employees of Glendora Plumbing and Glendora Plumbing Service performing plumbing, heating, and piping work, and also plumbing repair work in the counties of Los Angeles, Orange, Riverside, San Bernadino , Imperial, San Diego , Ventura, Santa Barbara, and San Luis Obispo, but excluding office clerical employees, professional employees , guards, watchmen , and supervisors as defined in the Act. WE WILL offer those employees listed below immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges originally enjoyed by them, and jointly and severally with Respondent Union make them whole for any loss of pay they may have suffered by reason of Glendora's discrimination against them. Robert Holmes Victor Dimit Rex Waterman Richard Markland William Kehr Larry Samuels Ronald Rayfield John Sherwood Wynn Kaufman Roger Ferguson CHARLES MATHIS J. HOWARD JENKS D/B/A GLENDORA PLUMBING (Employer) Dated By (Representative) (Title) ORRA D. JENKS D/B/A GLENDORA PLUMBING SERVICE (Employer) Dated By (Representative) (Title) Note: We will notify any employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 10th Floor, Bartlett Building, 215 West Seventh Street, Los Angeles, California 90014, Telephone 688-5850. APPENDIX B NOTICE TO ALL MEMBERS OF JOINT COUNCIL OF THE BROTHERHOOD OF INDEPENDENT WORKERS Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that: WE WILL NOT act as the collective-bargaining representative of the employees of Glendora Plumbing and Glendora Plumbing Service in the unit found appropriate by the Board, for the purpose of dealing with said Companies concerning rates of pay, wages, hours of employment, or other terms or conditions of employment, unless and until this labor organization shall have been certified by the Board as the exclusive representative of those employees. WE WILL NOT perform, enforce, or give effect to our collective-bargaining agreement of February 21, 1966, with Glendora Plumbing Service or enter into or enforce any extension, renewal, modification, or supplement thereof, or any superseding collective-bargaining agreement with Glendora Plumbing or Glendora Plumbing Service. WE WILL NOT cause or attempt to cause Glendora Plumbing and Glendora Plumbing Service to discriminate against employees in violation of Section 8(a)(3) of the Act by entering into or maintaining any agreement with them which requires as a condition of employment membership in Respondent Union, or in any other manner causing or attempting to cause Glendora Plumbing and Glendora Plumbing Service to discriminate against any employee in violation of Section 8(a)(3) of the Act. WE WILL jointly and severally with Glendora Plumbing and Glendora Plumbing Service reimburse those employees who became GLENDORA PLUMBING members of our organization after execution of the collective-bargaining agreement of February 21, 1966, for moneys paid by them or deducted from their earnings for initiation fees, dues, assessments, or other obligations of membership in our organization, and make whole the employees listed below for any loss of pay they may have suffered by reason of the unlawful discrimination against them. Robert Holmes Victor Dimit Rex Waterman Richard Markland William Kehr Larry Samuels Ronald Rayfield John Sherwood Wynn Kaufman Roger Ferguson CHARLES MATHIS JOINT COUNCIL OF THE BROTHERHOOD OF INDEPENDENT WORKERS, AFFILIATED WITH THE NATIONAL FEDERATION OF INDEPENDENT UNIONS (Labor Organization) Dated By (Representative) (Title) This notice must remain poster' for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. If members have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 10th Floor, Bartlett Building, 215 West Seventh Street, Los Angeles, _ California 90014, Telephone 688-5850. 107 Brotherhood of Independent Workers, affiliated with the National Federation of Independent Unions, herein called Respondent Union or the BIW failed to file an answer. Because of this default and consonant with the motion of the General Counsel the allegations of the complaint applying to Respondent Union are deemed admitted. Findings of fact, conclusions of law, and a recommended order will be issued based on the allegations of the complaint relating to Respondent Union. Upon a consideration of the entire record, including my observation of the demeanor of the witnesses and briefs filed by the General Counsel and Respondent Employer, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY AND THE JURISDICTION OF THE BOARD J. Howard Jenks, an individual, d/b/a Glendora Plumbing, herein called Respondent or Glendora is engaged in the plumbing business at 540 South Pasadena Avenue, Glendora, California. In the course and conduct of its business operations during the calendar year of 1965, a representative year, he purchased and received goods and materials valued in excess of $50,000 from enterprises located in the State of California which enterprises purchased and received said goods directly from enterprises located outside the State of California. Orra D. Jenks, an individual, the wife of J. Howard Jenks, has a certificate to do business under the fictitious name of Glendora Plumbing Service. She allegedly has a plumbing business at the same address as her husband using the same offices and shop.2 There is no contention that her business meets the jurdictional standards of the Board. In the complaint the General Counsel also alleges that she and her husband constitute a single employer engaged in commerce within the meaning of the Act.3 II. THE LABOR ORGANIZATIONS INVOLVED TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE EUGENE K. KENNEDY, Trial Examiner: A hearing in this matter was held in Los Angeles, California, on August 30 and 31, 1966.1 The complaint alleges violations of Section 8(a)(1), (2), (3), and (5) of the National Labor Relations Act, as amended, herein the Act, as well as violations of Section 8(b)(1)(A) and (2). The Joint Council of the District 16, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO, the Charging Party in both cases, herein called the UA, is a labor organization within the meaning of the Act.4 The Joint Council of the Brotherhood of Independent Workers, affiliated with the National Federation of Independent Unions, herein called Respondent Union or the BIW is a labor organization within the meaning of the Act. ' The consolidated complaint was issued on June 30,1966 The original charge in Case 31-CA-331 was filed on February 24, 1966. The amended charge in Case 31-CA-333 was filed on February 28, 1966 The original charge in Case 31-CB-91 was filed on February 24, 1966 The amended charge in Case 31-CB-91 was filed on February 28, 1966 2 No charges were filed against her, she is not listed as a respondent in the complaint , and consequently no order can issue against her This has particular significance in connection with an alternate position indicated in the complaint to the effect that an appropriate unit would consist of the employees of Jenks and his wire even if they were regarded as separate employers This may be an appropriate unit but in the absence of a charge against Mrs. Jenks, it is clear no order can be issued to compel her to engage in collective bargaining in a multiemployer unit. 9 Hereinafter the business in the name of J Howard Jenks will be called Glendora and the business in the name of Orra Jenks will be designated as Service This is done for the sake of clarity in setting forth the events involved and does not necessarily indicate separate business entities ' In a motion included in his brief the General Counsel moved to change the designation Local 398 to District Council No 16 and the designation Plumbers to UA Although such change does not appear necessary it is consonant with the established proof and the motion is hereby granted. 108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE UNFAIR LABOR PRACTICES A. Background Events For several years Glendora had a collective- bargaining agreement with the UA. The latest one was entered into on July 1,1963, and was effective through June 30,1966. This agreement contained a union-security provision. Prior to 1964 Glendora had a service department as well as a new construction department. The service department engaged in servicing, repair of plumbing and heating systems, small additions, and remodeling jobs. It did not engage in new construction work. Its usual regular complement of employees was approximately two or three. In the later part of 1963, the service department was largely discontinued although some service or maintenance work continued to be performed for some of Glendora's general contractor customers. A certificate of doing business under the fictitious name of Glendora Plumbing Service (herein Service) was obtained by Orra Jenks in May or June 1964. Mr. Jenks offered Glendora employee Golden a job with Service. Golden was instructed by Mr. Jenks to prepare one of Glendora's pickup trucks for service use by Service. Since its inception, Service used the same offices, premises , and facilities as Glendora. Service and Glendora received their mail at the same post office box and used the same telephones. The service work performed by Service was of the same type as performed by the service department of Glendora. Service has access and used Glendora's equipment and Service equipment was used by Glendora. There was a substantial amount of interchange between the employees of Service and Glendora. All of the regular employees of Service have formerly been employees of Glendora. Mr. Jenks (owner of Glendora) made the estimates for the larger jobs done by Service. Mr. Jenks also supervised larger jobs of Service. B. The Appropriate Unit The key issue in the determination of the appropriate unit is whether the employees of Service should be included. This issue in turn revolves on the question of whether Service and Glendora are the same employer. Stated generally the question is whether Service (Orra Jenks) is merely a name and a tool of Glendora (J. Howard Jenks) to avoid the UA contract and to operate under the BIW contract. Some of the considerations touching on this point have been indicated above. The factors indicating Glendora and Service are separate entities will be set forth followed by those indicating they are the same enterprise. 1. Indicia that Glendora and Service are separate business entities a. Glendora and Service each have their certificates of fictitious name. b. Orra Jenks (Service) signs paychecks for Service employees while Mr. Jenks (Glendora) signs paychecks for employees of Glendora and there are separate payroll records. c. Commencing in 1966 Glendora paid Service for work done for Glendora by Service employees. d. Golden, a Service employee had a business card showing 546 South Pasadena, Glendora (town), as the office of Service. The address of Glendora Plumbing is 540 South Pasadena, Glendora.5 2. Indicia that Glendora and Service are one enterprise in substance and only separate in form a. Prior to the certificate of doing business under a fictitious name being issued to Service, Glendora had a service department doing the same type of plumbing work as Service performed. b. The pickup truck fitted out by employee Golden in 1964 for use by Service was registered in the name of J. Howard Jenks (Glendora) and obtained from Glendora. Until the advent of the BIW in 1966, Service employed primarily nonunion employees. c. Glendora and Service use the same offices, the same phone, and use a common toolroom and storage facilities, and also have a common entrance. d. There was a substantial interchange of employees between Glendora and Service. After the former Glendora employees started working for Service in 1964, they worked for Glendora approximately one-third of the time. They were also paid by Glendora until the last part of 1966. In addition, the record reflects that Glendora employees Carrion, Quiroz, Tones, Kaufman, Holmes, and Sherwood were used for service calls after the formal creation of Service in 1964. In the same period the record also reflects Glendora employee Wakeman made 15 or 20 service calls and was paid for this work by Glendora. e. Glendora employee Holmes made 10 to 15 calls for Service. Service, in addition to using Glendora's tools and material, used Glendora's trucks. f. Mr. Jenks, d/b/a Glendora Plumbing, supervised the major jobs of Service and gave advice in connection with performance of Service jobs. g. Glendora and Service did work for the same customers. Glendora would warrant its work to general contractors for a year in connection with construction work. Service fulfilled this warranty by doing the necessary repairs to fulfill this warranty. It. In connection with one project in 1966 a Glendora employee performed the prefabrication in the shop and the installation was done by Service employees on the project which involved 38 new homes. i. The building at 546 South Pasadena, Glendora, although given as an address for Service was used only for storage of materials which were used principally by Glendora. j. At the February 21, 1966, meeting J. Howard Jenks (Glendora) had with his employees, he spoke about the benefits of the BIW contract. At this same meeting he stated the work of the service section would increase and the work of the plumbing department would decrease. After the meeting Mr. Jenks (Glendora) offered employee Golden, a Glendora employee, a job with Service. k. Employees called Glendora Plumbing Service the "service department." 1. Work done for Glendora and Service was put on the same timecard by employees. in. Glendora employee Wakeman testified credibly and without contradiction that at the time he was laid off, Mr. Jenks told him "that they were thinking of going into the new Union, the Brotherhood of Independent Workers and he did mention at the time he might go under doing it, but he was going to give it a try." 5 The building at 546 South Pasadena contains no offices but is used only for storage of materials used mainly by Glendora GLENDORA PLUMBING 109 n. After the prehire agreement was signed by Service with the BIW in February 1964, Glendora "subconstructed" at least four new construction jobs to Service. Prior to the execution of the BIW contract, Service had never done any new construction work. Mr. Jenks did the estimating for these jobs and also for other jobs on which Service bid. Orra Jenks testified she assumed her husband Mr. Jenks supervised the jobs performed by Service. There is no evidence in the record that Mrs. Jenks ever reimbursed Mr. Jenks for his work done for Service. o. After February 21, 1966, approximately the time Service and the BIW executed a collective-bargaining agreement , Glendora's payroll showed a dramatic change. In the payroll period immediately preceding February 21, 1966, Glendora had 18 production employees. Two weeks later Glendora employed only two. Of the 16 remaining, 1 quit and 11 were laid off allegedly for lack of work and the remaining 4, the only employees of Glendora who at that time apparently joined the BIW,6 were put on the Service payroll. The two employees retained by Glendora continued in its employ until June 30, 1966. During this same period five new employees were hired by Glendora for short periods. After June 30,1966, Glendora had no employees. In the case of Service, from a complement of at best two full-time employees and five occasional part-time employees in February it expanded to a total of seven full- time employees and two part-time employees. By August 1966 Service had expanded to 19 full-time employees including about 14 who had previously worked neither for Glendora nor Service. 3. Prefatory finding on nature of entity of Glendora and Service and the appropriate unit The above circumstances establish that Mr. Jenks (Glendora) established and effectively controlled Service. The record suggests the role of Orra Jenks was essentially clerical. It seems apparent that Service was originally established to employ nonunion men and then later was used by Mr. Jenks as a vehicle to avoid the UA contract Glendora had with it.7 In summary it is found that Service, from the standpoint of substance, has no separate status. It is a part of, or an appendage of, Glendora or it may be said accurately that Service and Glendora are the same business entities for purposes of determining obligations imposed by the Act. In view of this, the appropriate unit is that contained in the agreement between Glendora and the UA, which expired in June 1966, containing a union-security and exclusive hiring provision. Accordingly it is found that the appropriate unit includes all employees of Glendora (and Service) covering all employees performing plumbing, heating, and piping work and also plumbing repair work,8 in the counties of Los Angeles, Orange, Riverside, San Bernadino, Imperial, San Diego, Ventura, Santa Barbara, and San Luis Obispo, but excluding office clerical employees, professional employees, guards, watchmen, and supervisors as defined in the Act. Since the UA represented a majority of Glendora's employees as of February 1966 (12 of 18 on payroll) and since as it is specifically found the unfair labor practices of Glendora did not affect the right of the UA to represent its employees, it is found that at all times material the UA represented a majority of the employees of Glendora (and Service). C. Unlawful Assistance As found above, the UA is the lawful representative of all production employees of Glendora and Service. In view of this, Section 8(f)e plays no part as a defense to the unlawful assistance extended to Service. At the time of the execution of the agreement with Service, the UA was the lawful representative of all the production employees of Glendora and Service. Hence the unlawful agreement executed by Service with the BIW is unlawful support and violative of Section 8(a)(2). Barney Wilkerson Construction Company, 145 NLRB 704,705-706. D. The Failure to Bargain Glendora's unlawfully withdrawing recognition from the UA as the bargaining representative of Glendora and Service employees, which constitute a single unit, is a clear violation of Section 8(a)(1) and (5). Barney Wilkerson, supra at 706. E. Alleged Unlawful Discrimination The events outlined above depict a plan to replace employees who were members of the UA with employees who were members of the BIW. This plan was confirmed to Glendora employee Sherwood by Mr. Jenks when he was laid off on February 18, 1966. Terminating the employment of an individual because of union membership or the lack of it is unlawful discrimination and a violation of Section 8(a)(3). In his brief the General Counsel claims the following as alleged discriminatees, which claim is supported by the record. Robert Holmes Roger Ferguson Wynn Kaufman William Kehr John Sherwood Richard Markland Rex Waterman Charles Mathis Victor Dimit Ronald Rayfleld LARRY SAMUELS The above were all members of the UA (General Counsel's Exhibit 13). At the meeting of February 21, 1966, at which Mr. Jenks was telling the employees about the BIW contract, Holmes spoke up and said he did not want anything to do with it. 6 G.C Exh. 3 7 Business Representative Battany on February 22, 1966, told Mr. Jenks he had heard that Jenks had signed a BIW agreement. Jenks replied that his wife had signed the agreement . Battany then made the accusation that this was a subterfuge Jenks answered , "Well, it may be a subterfuge , but it's a legal way of getting around the current labor agreement that we had in effect at the time." 8 G.C Exh. 7(a), sec. II, 10(48) 9 As far as applicable, Section 8(f) provides: "It shall not be an unfair labor practice . for an employer engaged primarily in the building and construction industry to make an agreement covering employees engaged (or who, upon their employment, will be engaged) in the building and construction industry with a labor organization of which building and construction employees are members (not established, maintained , or assisted by any action defined in section 8(a) of this Act as an unfair labor practice) because (1) the majority status of such labor organization has not been established under the provisions of section 9 of this Act prior to the making of such agreement,. 110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All the above employees were laid off shortly before or after February 21, 1966.10 All of them were entitled to be recalled by July 1966 at the latest. The number and identity of employees entitled to be recalled at an earlier date will of necessity have to be determined at the compliance stage of this proceeding. F. Respondent BIW As previously noted, the Respondent BIW, by failing to answer the complaint against it, admitted the truth of the allegations thereof and findings and conclusions and an order will be issued against Respondent BIW based on the allegations of the complaints. The BIW executed a collective-bargaining agreement with Service on February 21, 1966, which contained a clause requiring membership in the BIW as a condition of employment. At no time material has the BIW represented an uncoerced majority of the employees of Service or Glendora. Since February 21, 1966, BIW has maintained the aforesaid agreement in effect. The BIW since February 21, 1966, on various dates exacted initiation fees, dues, and other fees from employees of Service under the terms of the said collective-bargaining agreement. By the aforesaid acts the BIW attempted to cause and did cause Glendora and Service to discriminate against employees in violation of Section 8(a)(3) of the Act, and did thereby engage in, and is thereby engaging in, unfair labor practices within the meaning of Section 8(b)(2) of the Act. As a result of said agreement the BIW caused Glendora and Service to discriminate against employees Robert Holmes, Wynn Kaufman, John Sherwood, Rex Waterman, Victor Dimit, Roger Ferguson, William Kehr, Richard Markland, Charles Mathis, Ronald Rayfield, and Larry Samuels. IV. THE EFFECT OF UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent Glendora is engaged in commerce within the meaning of the Act. 2. Respondent BIW and the UA are labor organizations within the meaning of the Act. 3. By discriminating with respect to the employment of Robert Holmes, Wynn Kaufman, John Sherwood, Rex Waterman, Victor Dimit, Roger Ferguson, William Kehr, Richard Markland, Charles Mathis, Ronald Rayfield, and Larry Samuels, Respondent Glendora and Service have engaged in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 4. By recognizing the BIW and executing a collective- bargaining agreement when it did not represent an uncoerced majority of its employees, Glendora and Service have committed unfair labor practices within the meaning of Section 8(a)(2) of the Act. 10 The exact dates of the layoff will have to be determined from the original records as the copies in evidence are illegible In addition, at the compliance stage of this proceeding, the 5. By withdrawing recognition from the UA and failing and refusing to bargain with it when it was the majority representative of its employees, Respondent Glendora and Service have engaged in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By the foregoing conduct and by stating that the work of the service department would increase and the work of the plumbing department would decrease as part of an attempt to induce employees to join the BIW, Respondent Glendora and Service have engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 7. By executing a collective-bargaining agreement containing a union-security provision when it did not represent an uncoerced majority of the employees and by causing Glendora and Service to discriminate against the employees named in paragraph 3, above, Respondent BIW has committed unfair labor practices within the meaning of Section 8(b)(2) and (1)(A) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of the Act. THE REMEDY Having found that Glendora and Service and the BIW have engaged in certain unfair labor practices it will be recommended that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. By reason of the discriminations practiced against them, it will be recommended that the employees discriminated against listed in paragraph 3, Conclusions of Law, be reimbursed for any loss of wages caused by such discrimination. Loss of pay shall be computed in accordance with the formula proscribed in F.W. Woolworth Company, 90 NLRB 289, together with 6 percent interest per annum, as proscribed in Isis Plumbing and Heating Co., 138 NLRB 716. By reason of such discrimination practiced against them it will be recommended that employees discriminated against listed in paragraph 3, Conclusions of Law, be reimbursed for initiation fees, dues,- and any other fees exacted from them in accordance with the collective- bargaining agreement between Service and the BIW. It will be recommended that Glendora and Service and the BIW be jointly and severally liable for the aforesaid loss of wages, initiation fees, dues, and any other fees payable under the contract between Service and the BIW. It will be further recommended that the aforesaid discriminatees be offered reinstatement to their same or substantially equivalent positions. It will be recommended that Glendora and Service, upon request, recognize and bargain with the UA as the collective-bargaining representative of its production employees. It will be recommended that Glendora and Service withdraw recognition and cease giving effect to any collective-bargaining agreement with the BIW. It will be recommended that Glendora and Service and the BIW cease and desist from such unfair labor practices as indicated above or any of a like nature. It will also be recommended that Glendora and Service and the BIW post notices labeled Appendixes A and B, respectively. [Recommended Order omitted from publication.] availability of work before July 1966 will have to be ascertained in connection with an inquiry as to backpay entitlement