Superior Sprinkler, Inc.

204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Superior Sprinkler, Inc., and William Augusto d/b/a William Augusto Fire Protection Services and Road Sprinkler Fitters Local . Union 669, a/w United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada. Case 1-CA-10673 December 10, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND, MEMBERS FANNING AND JENKINS On April 26, 1976, Administrative Law Judge Herbert Silberman issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions -and a supporting brief, and counsel for the General Counsel filed an exception and a brief in support. Respondent filed a reply brief to the General Counsel's exception. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order,' as modified herein. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge as modified below and hereby orders that the Respon- dents, Superior Sprinkler, Inc., and William Augusto d/b/a William Augusto Fire Protection Services, Worcester, Massachusetts, their respective officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as modified herein: 1. Substitute the following for paragraph 1(d): "(d) In any other manner interfering with , restrain- ing, or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act." 2. Substitute the attached notice for that of the Administrative Law Judge. 1 We find that the Administrative Law Judge's Decision provides an adequate remedy to the unlawful conduct found herein. Therefore, we find no merit in the General Counsel's cross-exception to the Administrative Law Judge's recommended Remedy. 227 NLRB No. 37 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE - NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discourage membership in Road Sprinkler Fitters Local Union 669, a/w United Association of Journeymen and Apprentices of the Plumbing and Pipe- Fitting Industry of -the United States and Canada, or any,other labor organization, by constructively discharging em- ployees through the imposition of the unlawful conditions of employment, or by otherwise dis- criminating' against any of our employees. WE WILL NOT make or effect any change in the wages, hours, or other terms or conditions of employment of, employees in the collective-bar- gaining unit described below without first giving notice to the above-named Union and affording the Union an opportunity to engage in collective bargaining with respect to any such change. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them in Section 7 of the National Labor Relations Act. WE WILL offer to Edmond Fleming, Walter Fleming, Norman Young, Stephen Riendeau, and Edward Parzyck reinstatement to their former positions or, if those jobs no longer exist, to substantially equivalent positions, without preju- dice to their seniority or other rights and privileg- es, and WE WILL make them whole for any loss of earnings they may have suffered by reason of our unlawful discrimination against them, together with interest at the rate of 6 percent per annum. WE WILL, upon request, bargain collectively with Road Sprinkler Fitters Local Union 669, a/w United Association of Journeymen and Appren- tices of the Plumbing and Pipe Fitting Industry of the United States and Canada, as the exclusive representative of all our employees in the unit described below, and if an agreement is reached we will embody it in a signed contract. The appropriate unit is: All employees engaged in the installation and maintenance of fire protection systems in the geographic areas defined in article 6 of the 1973 agreement between Superior Sprin- kler, Inc., and the above-named Union, exclusive of office clerical employees and all supervisors as defined in Section 2(11) of the Act. SUPERIOR SPRINKLER, INC. WILLIAM AUGUSTO D/B/A WILLIAM AUGUSTO FIRE PROTECTION SERVICES SUPERIOR SPRINKLER, INC. DECISION STATEMENT OF THE CASE HERBERT SILBERMAN, Administrative Law Judge: Upon a charge and an amended charge filed by the above-named Union on May 9 and June 26, 1975, respectively, a complaint was= issued on July 3, 1975, alleging that Respondent Superior Sprinkler, Inc., herein called Superior or the Company, has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended. At the hearing the complaint was amended in various respects, including the addition of another party Respon- dent.' Supenor filed an answer denying that it has engaged in the alleged unfair labor practices. A hearing in this proceeding was held in Boston, Massachusetts, on January 2 and 3, 1976. Following the close of the hearing, the parties filed briefs with me. Upon the entire record in the case, I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENTS Superior, a Massachusetts corporation which has been doing business in Worcester, Massachusetts, has been engaged in the -sale, installation, and service of fire protection equipment. In the conduct of its business Superior annually has provided services valued in excess of $50,000 in States other than the Commonwealth of Massa- chusetts and has purchased goods valued in excess of $50,000 from suppliers who are engaged in interstate commerce. Superior admits, and I find, that it is an employer engaged in commerce -within the meaning of Section 2(6) and (7) of the Act. - William Augusto, who is an officer and the principal strockholder of Superior, since on or about October 29, 1975, has been engaged in the same business as Superior under the name and style of William Augusto Fire Protection Services. It is alleged in the complaint as amended, and denied -by Respondents, that William Augusto is the alter ego, or successor to the business, of Superior. II. THE LABOR ORGANIZATION INVOLVED Road Sprinkler Fitters Local- Union 669, a/w United Association of Journeymen and Apprentices of the Plumb- ing and Pipe Fitting Industry of the United States and Canada, herein 'called Local 669' or the Union, is a labor organization within the meaning of Section 2(5) of the Act i The caption in this proceeding is hereby amended to reflect the addition or William Augusto d/b/a William Augusto Fire Protection Services as a In. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues 205 Since 1963 the Company has recognized and has had continuous collective-bargaining, agreements with the Union covering a unit of the Company's employees. The last agreement between the parties expired on March 31, 1975. The complaint alleges, that, in violation of Section 8(a)(5), since April 17, 1975, Superior has refused and continues to refuse to bargain collectively with the Union as the exclusive representative of its employees in the contractual unit; since April 18, 1975, Superior has bar- gained directly and individually with -employees in the contractual unit concerning their wages and other condi- tions of their employment and has granted wage increases to such employees; and since April 11, 1975, Superior unilaterally changed the wages and conditions of employ- ment of employees in the contractual unit by discontinuing payments on behalf of its employees , to the union health and welfare- fund and vacation fund. The complaint further alleges that between April 30 and May 2, 1975, Superior constructively discharged its employees Edmond P. Flem- ing, Walter F. Fleming, Edward A. Parzyck, Norman Young, and Stephen Riendeau by conditioning their further employment with Superior upon the employees' performing nonunion work. The complaint, as amended, further alleges that William Augusto d/b/a William Augusto Fire Protection Services is the alter ego, or successor to the business, of Superior.and therefore is jointly and severally liable with Superior for remedying any unfair labor practices found to have been committed by Superior. B. Background Historically the Union has negotiated collective-bargain- ing agreements with the National Automatic Sprinkler and Fire Control Association, Inc., herein referred to as the Association, covering the multiemployer unit composed of the Association's members. Independent contractors not members of the Association have been given the opportuni- ty to enter into identical agreements with the Union. Although Superior was never a member of the Association, since 1963 it has recognized the Union as the representative of a unit of its employees and has been party to successive collective-bargaining agreements with the Union which in every instance were identical with the Association agree- ment. The last agreement between Superior and the Union is dated May 8, 1973, and was effective retroactively from April 1, 1973, to March 31, 1975. The unit of employees covered by the agreement was: All employees engaged in the installation and mainte- nance of fire protection systems in the geographic areas defined in Article 6 of the 1973 agreement between the parties exclusive of office clerical employees and all supervisors as defined in Section 2(11) of the Act. Respondent in this proceeding in accordance with the motion granted at the hearing. 206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD During the times relevant to this proceeding, Superior, and since October 29, 1975, also William Augusto d/b/a William Augusto Fire Protection Services, has had collec- tive-bargaining agreements with Sprinkler Fitters Local Union 550, a/w United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, herein referred to as Local 550.2 On October 7, 1974, the Union sent a letter to the Association and to all independent contractors (employers not members of the Association who independently were parties to agreements with the Union) advising that the Union wished to negotiate amendments of and modifica- tions to the subsisting agreement, that the Union expected to commence negotiations with the Association, and that "[w]hen a full accord is reached with the Association, the final agreement will, of course, be submitted to you." About March 7, 1975, the Union sent to the independent contractors, including Superior, an interim agreement for signature which extended the term of the 1973 agreement with certain modifications from April 1, 1975, until a new standard agreement should be reached with the Associa- tion. With the interim agreement was a covering letter explaining that as the Union and the Association might not reach agreement upon a new contract by March 31, 1975, and in order to maintain uninterrupted contractual rela- tions with the independent contractors they were being asked to consider entering into the interim agreement. Thomas W. Hanna, president and business manager of the Union, testified that, although in the past Superior had entered into similar interim agreements with the Union,3 the Company did not sign the March 1975 interim agreement nor did it communicate with the Union in regard thereto.4 The Union and the Association reached agreement upon a new contract prior to the March 31, 1975, expiration date of the subsisting contract. On April 17, 1975, the new agreement was mailed by the Union to the independent contractors with a covering letter which, in pertinent part, reads: "This is to notify you that the rank and file of Local 669 has ratified our new Agreement. Enclosed please find two (2) copies for your signature. Please sign both copies and return to this office. I will sign and return one copy for your records." Superior did not sign the new agreement nor did it communicate with the Union. William Augusto testified that his only objection to the contract was that the wage increase was too much. C. The Constructive Discharges 1. Stephen Riendeau Stephen Riendeau had been employed by the Company as a sprinkler fitter since 1967. He testified that about 8 p.m. on April 25, 1975, in a telephone conversation with William Augusto he mentioned that he had heard that the Z Although William Augusto testified that he is party to a collective- bargaining agreement with Local 550, the record is not clear as to whether he assumed the agreement between Superior and Local 550 or has entered into a separate agreement with Local 550 - 7 Hanna also testified that it is not uncommon for independent contrac- tors to reject the interim agreement and to request negotiations with the Union Company was going nonunion and wanted to know whether it was true. Augusto answered that he had not made up his mind but would let Riendeau know by May 2 and at that time Riendeau could do whatever he wanted. About 7:45 a.m. on May 2, Riendeau went to the Compa- ny's office where he met Augusto who asked Riendeau what he was doing there instead of being at his job. Riendeau said that he wanted to find out whether the Company was going nonunion . Augusto responded that he definitely was going nonunion. Riendeau then advised Augusto that he (Riendeau) could not work nonunion, to which Augusto answered, "Well, this is it." Riendeau then left. Augusto's testimony differs from that of Riendeau in that, according to Augusto, Riendeau asked whether Augusto was going to sign the union contract and he replied, "I've got until midnight tonight as far as I'm concerned to get that contract in the mail." Riendeau responded that he did not think Augusto was going to do that and Augusto answered that if Riendeau was a mindreader he was a better man than Augusto. That ended the conversation. 2. Edmond Fleming Edmond Fleming, who was hired as a sprinkler fitter by the Company in February 1975, testified that on April 24 or 25 while he was in the Company's office, in a conversation with William Augusto, the latter said that "in no way was he going to sign that [union] contract." Edmond Fleming further testified that between 4 and 4:30 p.m. on April 30 he telephoned William Augusto to find out what Augusto wanted done with the truck and the tools which Fleming had been using on a job that had been just completed. Augusto informed Edmond Fleming that there would be no work for him the next day, May 1, "[b ]ut there would be work Friday, May 2, non-union. So I told him I couldn't work non-union. He told me to think it over and call him that night." Fleming telephoned Augusto that evening and informed Augusto that he would not work nonunion. William Augusto testified that he did not speak with Edmond Fleming between Monday, April 28, and Friday, May 2, 1975, and that Fleming did not report for work on May 2. 3. Norman Young Norman Young began working for the Company as a sprinkler fitter in 1970. He testified that after 6 p.m. on April 30 he received a telephone call from William Augusto who said that there would be no work for him the next day but that he "could come in on Friday non-union." Young responded that he would not be in on Friday and that Augusto was making a mistake "in not going for the union contract." During the conversation, according to Young, he 9 General Counsel contends that "Respondent's behavior under the interim agreement constituted acceptance of that agreement, that is, the payment of the Union wage scale he acted as if he were bound by that agreement " This proposition is academic because the Union reached an agreement with the Association prior to March 31, 1975, so that the interim agreement by its terms never became operative SUPERIOR SPRINKLER, INC. asked what the wages would be and Augusto said that he would pay "a substantial rate." Young further testified that the next morning he tele- phoned the union business agent, Wesley Wilder, and told Wilder to put him on the unemployment list as his job had ended because William Augusto was going nonunion. William Augusto denied having had any conversation with Norman Young between April 28 and May 2. 4. Walter Fleming Walter Fleming, who began working for the Company in 1967, testified that on the night of May 1 he was informed 6y another employee that the Company was going non- union. The next morning Walter Fleming went to the Company's office where he met William Augusto. Augusto asked Walter Fleming if he was going to work. Fleming replied not unless Augusto signed the union contract. Augusto answered that "there was no way that he was going to sign the contract." Fleming then said that he was sorry it had to happen this way but he had been in the Union for 25 years and had too much to lose if he left the Union. Fleming then departed. William Augusto testified that Walter Fleming came to his office on the morning of May 2 dust as Stephen Riendeau left. Riendeau had told Augusto that he (Rien- deau) was going to a meeting that Union Business Agent Wesley Wilder had called for 9 a.m. at the Holiday Inn. When Fleming entered the office, Augusto asked him, "Is it the same thing? ... Are' you going to that same meeting?" Walter Fleming answered, "Yes. I'm sorry it happened this way, Bill, but I've got to go to the meeting." They shook hands and Walter Fleming left. William Augusto testified that not until after May 2, 1975, did he tell any employee that he would go nonunion. 5. Edward Parzyck Edward Parzyck was hired in August 1973 as an apprentice sprinkler fitter and worked for the Company until May 11, 1975. William Augusto testified that about 7:45 a.m. on May 2, 1975, Parzyck came to the office to pick up some fittings. Augusto asked him whether he was going to the union meeting and Parzyck responded, "I don't know, I haven't made up my mind yet." Parzyck took the fittings and left. Parzyck testified that on April 22, 1975, while William Augusto was inspecting the job at which Parzyck was working Augusto said that he did not think he was going to sign the new union contract. Parzyck further testified that he had attended the union meeting in the morning of May 2, 1975, and there learned that the Company had not signed the contract with the Union. Nevertheless, he continued working for the Company until May 11, at which time, according to Parzyck, "I just finished working. I went home.... I had made up my mind that I wanted to stay in the Union if it was possible." Several days later, either May 13 or 14, Parzyck told Augusto that he would no longer work for the Company. William Augusto testified that on May 2, 1975, he received a letter from the Union directing him to release Edward Parzyck because Parzyck was delinquent in his 207 correspondence course lessons and in the payment of his union dues. The next day Augusto spoke to Parzyck about the matter. After Parzyck read the letter from the Union, he said, "Well, I guess this makes the difference, I'm out of the Union anyway so I might as [well] work." Parzyck then asked what he would be paid and Augusto said the same wages he was then getting and the Company would pay for his Blue Cross-Blue Shield coverage. According to Augusto, during this conversation, he told Parzyck unless there were futher negotiations with the Union he was going to operate nonunion. Augusto testified that for the period from May 2 to May 11, 1975, he made no contributions to the union trust funds with respect to fringe benefits for Edward Parzyck. D. The Refusal To Bargain In accordance with arrangements made the evening before, Union Business Agent Wesley Wilder met with the Company's sprinkler fitters at 9 a.m. on Friday, May 2, 1975. The topic of discussion was whether the Company was going nonunion. Wilder informed the group that he would speak with William Augusto and see what he could do about the situation. Wesley Wilder testified that he met with William Angus- to about 11 a.m. on May 2. When Wilder came into the office, he asked Augusto what he intended to do with regard to the union contract. Instead of answering the question, Augusto asked what right the Union had to pull his men from their jobs. Wilder further testified: And I explained to him that we had that right under the contract, that if he called us for people, he had not signed the interim agreement, we did not have an agreement with him, and we had no obligation to supply him with men when he had not complied with the agreement. I believe at that point he said that from the actions that had taken place that morning, that he would have signed the agreement, but now that the Union had taken this action that he wasn't going to sign the agreement, that he was going to go non-union. And I said, Bill, well, that's your prerogative, you don't have to sign the agreement, you don't have to employ our people, and if that's what you want to do, go ahead and do it. I said that was his alternative to do whatever he wanted to, it was his company, and he said, Well, I've run this thing for 15 years, and the Union isn't going to come in here now to tell me what I can do,and what I can't do, and he said that I can take my union and shove it. William Augusto's version of the meeting differs from Wilder's. According to Augusto, Wilder, who was standing in the doorway of Augusto's office, asked "[W]hat are your intentions, are you going to sign the contract." Augusto answered, "No, I want to negotiate." Wilder responded, "Sign the contract and we'll negotiate." Augusto refused saying, "If I sign the contract there is no negotiation." The meeting concluded with Wilder threatening that if Augusto did not sign the contract he would never work again. Augusto responded, "This is the end, sorry, if we can't talk 208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD there is no need of going on any further, I'm willing to sit down and talk." Wilder then left. William Augusto's secretary, Patricia Field, testified that her desk is at the end of the corridor about 20 feet from Augusto's office and that she overheard Wilder say to Augusto, "Sign the contract and we will negotiate," and Augusto respond, "No." That is all she heard of the conversation which lasted from 10 to 15 minutes. E. Resolution of Facts Except for the testimony of Patricia Field, which I deem valueless, there is no corroboration of the testimony of any of the witnesses. In significant respects the testimony of William Augusto conflicts with the testimony of all General Counsel's witnesses except Edward Parzyck. There are no factors which suggest that the testimony of General Counsel's witnesses is any more probable or reasonable than that of Respondents' witnesses. Examination of all the witnesses was relatively short and the testimony of none was impeached. Thus, the question of where the truth lies turns upon my assessment of the credibility of the witnesses who appeared before me which is based almost entirely upon their demeanor on the witness stand. I am of the opinion that William Augusto was not a candid witness, that where necessary he framed his testimony to fit within the structure of the Respondents' defense, and that his testimony was less reliable than the testimony of General Counsel's witnesses. I credit Wilder's version of the May 2 conversation with William Augusto. I find that William Augusto on or about April 25 told Edmond Fleming that he was not going to sign the union contract, and that on Apnl 30 he told Edmond Fleming and Norman Young that when they reported for work on May 2 it would be on a nonunion basis. I further find that, on May 2, Augusto told Stephen Riendeau that he was going nonunion and Walter Fleming that he was not going to sign the union contract. However, William Augusto did not tell any employee that it was a condition of continued employment with the Company that the employee give up his union membership. F. Conclusions In accordance with the practice that had been observed since 1963, when the Union reached an agreement with the Association in March 1975, it forwarded copies of the agreement to the Company for signature. If the Company did not intend to sign the agreement and wished to negotiate other terms, it was under an obligation to inform the Union of its desires in that respect.5 Otherwise, based on the experience of 12 years, the Union had every reason to expect that the Company would sign and would return the 1975 agreement. Nevertheless, Union Business Agent Wesley Wilder called upon William Augusto on May 2, 1975, to ascertain what his intentions were in regard to the contract. In no uncertain terms Augusto informed Wilder that he was not going to sign the agreement and that he was going nonunion. This constituted effective notification to the Union that the Company no longer would recognize and deal with the Union as the representative of its employees. As all the employees then working for the Company in the appropriate unit were members of the Union, the refusal of the Company to negotiate with the Union concerning the terms of an agreement to succeed the one that had expired on March 31, 1975, constituted a refusal to bargain collectively in violation of Section 8(a)(5). General Counsel contends that the Company further violated its collective-bargaining obligations by being delinquent for 3 months in making payments which were due in April 1975 to the benefits funds provided for under the 1973-75 contract, and for its failure to make payments to the benefits funds with respect to the work done by Edward Parzyck between May 2 and May 11, 1975. 1 find in agreement with General Counsel that by discontinuing payments to the benefits funds for work performed by Parzyck after May 2, 1975, without first giving notice to the Union and affording the Umon an opportunity to engage in collective bargaining with respect to such change Respon- dents have further violated Section 8(a)(5).6 However, I do not find that the Company's late payments constituted violations of the Act. General Counsel also contends that the Company unlaw- fully bargained directly and individually with its employees in derogation of the exclusive bargaining status of the Union by informing Norman Young on April 30 that if he returned to work on May 2 he would be paid a substantial rate and by informing Edward Parzyck on May 3 that his rate of pay would be the same as he had been receiving under the expired contract and that the Company would pay his premiums for Blue Cross-Blue Shield coverage but would not make contributions to the Union's benefits funds on his account. These alleged unlawful acts were minimal and are subsumed by my finding that the Company on and after May 2, 1975, has refused to bargain collectively with the Union. The recommended Order herein will adequately remedy this alleged violation of Section 8(a)(5) as it "necessarily includes a prohibition against bargaining with individual employees." 7 The Charging Party in its brief assumes a state of facts with respect to -the alleged constructive discharges that is unsupported by the evidence and is contrary to the allegations of the complaint. The Charging Party argues that, where an employer "conditions employment upon the relinquishment of union membership and as a result, his employees choose to terminate their employment relation- ship rather than accede to such condition," there is a violation of Section 8(a)(3). While this is an accurate statement of Board law, the credited evidence does not support the assertion that the Company imposed as a condition of employment upon its sprinkler fitters that they give up their membership in the Union. To the extent that the term "nonunion" was used by William Augusto in his conversations with the sprinkler fitters it was in the context of expressed position that he would not sign the contract proposed by the Union and beginning on Friday, May 2, the employees who worked for him would not be covered by the terms of the proposed contract and, therefore, would 3 William Augusto testified he knew that in the past the Umon had negotiated with various independent contractors departures from the contract it had reached with the Association 6 Latin Quarter Cafe, Inc, 182 NLRB 997 (1970) 7 See Marquis Elevator Company, Inc, 217 NLRB 461 (1975). SUPERIOR SPRINKLER, INC. be working "non-union." All the sprinkler fitters were members of'the Union and all except Parzyck refused to work for the Company after they were informed that the Company would not execute the union agreement. Parzyck continued to work until May 11. There is no specific evidence in the record that the sprinkler fitters would have been subject to, union discipline had they continued working for the Company after May 2. However, Edmond Fleming testified, "I couldn't work nonunion ...." And Walter Fleming testified that he told Augusto he could not work nonunion, that "I'm going to lose too much .. `cause I'd been in (the Union) for 25 years." This testimony suggests that some of the sprinkler fitters believed that their membership in the Union or benefits to which they might be entitled as union members might be in jeopardy if they worked for a company that did not have a contract with the Union. However, this fear on the part of the sprinkler fitters was not inspired by the Company and the record in this case does not establish that there was an objective basis for such fear.s Furthermore, the issue framed by the complaint is that the Company constructively discharged the five named employees "by conditioning further employment upon performing non-union work" and is not the issue that the Charging Party poses in its brief. The facts in this case do not fall within any clearly defined principle of law. On one hand, it is beyond dispute that following the expiration of a collective-bargaining agreement, even in the construction industry, an employer, not guilty of an unlawful refusal to bargain with the representative of its employees, who continues operations has not constructively discharged those employees who will not work without a union contract. Although in such instance the employer is "conditioning further employment upon performing non-union work," those employees who refuse to work either are strikers or are voluntary quits. On the other hand, as stated in Masdon, 9 a "constructive discharge can occur where continued employment is conditioned upon employee abandonment of rights guaran- teed them under the Act." As the facts in Masdon illustrate, the principle that employees are constructively discharged who are forced "to abandon their concerted activities as the price for continued employment" is not easily applied. In that case the employer had violated Section 8(a)(1) by threats to close down and move the plant before he would recognize the union. Nevertheless, the Board, reversing the decision of the Administrative Law Judge, held that the employees who thereupon ceased working were not con- structively -discharged. The Board explained, "[W]e are unable to find, on the basis of the record before us, that Masdon's threat to close the plant forced the employees to abandon their concerted activities as the price for contin- ued employment. Masdon did not in fact discharge or 8 Compare: Marquis Elevator Company, Inc., supra, where, based upon somewhat similar evidence, the Board found that the employer "unlawfully and knowingly [created ] conditions that made it impossible for [its employ- ees ] to maintain their union membership" in the face of the employer's impermissible repudiation of its contract with and withdrawal of recognition from its employees' collective-bargainuig representative 9 Masdon Industries, Inc, 212 NLRB 505 (1974) 10 See also United Contractors IncorporatedandJMCOTrucking Incorpo- rated Joint Employers, 220 NLRB 463 (1975), where the,Board adopted the following reasoning of the Administrative Law Judge. "I would nonetheless conclude that Respondent, by offering them work only under nonunion 209 threaten to discharge the strikers. Nor were his remarks so interpreted by the striking employees." More closely resembling the facts in the instant proceed- mg are cases in which employers were held to have constructively-discharged employees who left their employ after the employers had repudiated subsisting collective- bargaining agreements and had withdrawn recognition from the contracting unions. Thus,- in Marquis Elevator, Company, Inc., 217 NLRB 461 (1975), the Board decided that by such conduct the employer "unlawfully and knowingly [created] conditions that made it impossible for [the employees] to maintain their union membership and continue to work for the Respondent." However, in the same case the Board refused to find a constructive discharge with respect to an employee who quit his employment 2 months earlier when he was informed by the employer that the employer intended to terminate its relationship with the Union. The distinction between the two situations, according to the Board, is that "[w]hile resigning in the face of the unlawful withdrawal of union recognition and termination of existing union benefits and membership is one thing, quitting in anticipation that such may take place later on,is an entirely different matter." 10 In John E. Holkko d/b/a Lifetime Shingle Company, 203 NLRB 688, 693 (1973), the Board held that an employer had constructively discharged employees, who left his employ after he had repudiated his subsisting collective- bargaining agreement and had informed his employees that he was not going to give effect to.the increases called for by the contract and that he was going nonunion. In that case the employer had been informed by his employees that they could not work in a nonunion shop because it was against the union bylaws and, in the circumstances, the Board found that the employees were required to give up their union membership as a condition of continued employ- ment.u In Barwise Sheet Metal Co., Inc., a Division of Airtron, Inc., et al., 199 NLRB 372, 373 (1972), also a case where the employer repudiated a, subsisting, collective-bargaining agreement, the Board held, "Thus, Thompson's and Duck- ett's decisions to quit their jobs at American were directly inspired by Marvel's telling them the Respondents were going nonunion and demanding that they decide between the Union and further employment under nonunion conditions. The warning was clear; Respondent would no longer offer union work. This conduct clearly establishes discrimination based on antiunion considerations in viola- tion of Section 8(a)(3)." Very much in point is an older case, Blue Cab Company and Village Cab Company, 156 NLRB 489 (1965), enfd. 373 F.2d 661 (C.A.D.C., 1967). The decision there represents a conditions [in repudiation of a subsisting collective-bargaining agreement], constructively discharged them in violation of Section 8(a)(1) and (3) of the Act. Barwise Sheet Metal, Inc, 199 NLRB 372 " 1 See Johnson Electric Company, Inc., and William A Johnson and Albert M. Johnson d/b/a Johnson Electric Company, 196 NLRB 637,644,(1972), where the Board adopted the following reasoning of the Administrative Law Judge "[T]o require Quesinberry and Eidson to lose or reject their union membership or to quit employment with Respondent, the Respondent clearly caused Quesmberry and Eidson to quit their employment, thereby constructively discharging them in violation of Section 8(a)(3) and (1) of the Act." 210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD significant extension of the rationale in an earlier case, Ra- Rich Manufacturing Corporation, 12 where the Board stated, "While Resko permitted Baker to decide whether to continue in the Respondent's employ, Baker could not so continue in conformity with the Respondent's policy unless he repudiated the Union Under the Act, a choice of this character may not validly be imposed upon employees and is in contravention of the Act. An employee who, when forced by his employer to make such a choice, chooses to exercise his right under the Act to join or assist a labor organization and leaves his employment rather than con- form to such a management policy, is constructively discharged." 13 Relying on Ra-Rich, the Board in Blue Cab held that employees were constructively discharged where, upon the expiration of a collective-bargaining agreement, the employer unlawfully withdrew recognition from the union and thereupon forced his employees to make a selection between, on the one hand, working under a discriminatorily inaugurated arrangement and, on the other hand, exercising their right to be represented by their statutory bargaining agent. The Board reiterated, "Plainly, `a choice of this character may not validly be imposed upon employees and is in contravention of the Act.' " 14 Unlike Kantminga & Roodvoets, Inc., 198 NLRB 208 (1972), cited by General Counsel and Charging Party, where the employer was found to have constructively discharged employees by conditioning continued employ- ment or reinstatement on giving up union membership, Superior was unconcerned as to whether or not its sprinkler fitters continued their membership in the Union. However, Superior unlawfully refused to bargain with the Union and thus, as in Blue Cab, offered its employees the choice of accepting the employer's unlawful repudiation of its statu- tory bargaining obligations and working under unlawfully imposed conditions of employment or quitting their em- ployment. Thus, the employees' continued employment would be conditioned upon their abandonment of rights guaranteed them under the Act, that is, the right to bargain collectively through representatives of their own choosing. Forcing employees to make such a choice; namely, to work under illegally imposed conditions or to quit their employ- ment "discourages union membership almost as effectively as actual discharge." 15 Accordingly, I find, as alleged in the complaint, that the Company constructively discharged Edmond Flemmg, Walter Fleming, Norman Young, Steph- en Riendeau, and Edward Parzyck and thereby violated Section 8(a)(1) and (3) of the Act. I further find that Parzyck was constructively discharged on May 14, 1975, when he informed his employer that he would no longer work under the nonunion conditions imposed by Superior and that the other four employees were constructively discharged on May 2, 1975, as of which dates they ceased working for the Company. 12 Ra-Rich Manufacturing Corporation, 120 NLRB 503, 506 (1958), enfd 276 F 2d 451 (C A 2, 1960) 13 In enforcing the Board 's Order, the court stated, "Whether the respondent explicitly discharged Baker for his union activity or only conditioned his retention on disavowal of the union, the conduct was unlawful Imposing such a condition on continued employment discourages union membership almost as effectively as actual discharge " N L R B v Ra- Rich Manufacturing Corporation, 276 F 2d 451, 454 (C A 2, 1960) 14 Blue Cab Company and Village Cab Company, 156 NLRB at 491 G. Individual Liability of William Augusto Superior is a close corporation. Sixty percent of its stock is owned by William Augusto and 40 percent by Jack Coggswell. Originally Coggswell, who is an engineer, designed the sprinkler systems which were installed by the Company and Augusto supervised the installations and the work force. In 1972 Coggswell was forced from active participation in the business 16 and since that time Augusto has been solely responsible for the direction of the affairs of Superior, although Coggswell continues as a stockholder. Superior's offices were located in Worcester, Massachu- setts, which is within the temtonal jurisdiction of the Union. At least until May 1975 Superior did work in the territories of both Local 669 and Local 550 and had collective-bargaining agreements with both labor organiza- tions.17 Beginning in May 1975 all work performed by Superior within the temtonal jurisdiction of Local 669 was done with nonunion employees. However, Superior continued its contractual relations with Local 550 and employed its members for work in that labor organization's temtory. Thus, after May 1975, through conduct which violated the strictures of the Act, Superior was engaged in a double- breasted operation, amved at, not through careful planning and design which might have obtained Board sanction as in the Gerace case,18 but through the petulant reaction of William Augusto to what he considered an unjustified confiscatory wage increase negotiated between the Union and the Association. William Augusto testified that he first considered liqui- dating Superior in 1972 "when I fired Jack Coggswell," but was unable to do so because of various problems that intervened, such as difficulty in collecting receivables and discharging accounts payable and completing work under contract. However, Superior ceased operations in Novem- ber 1975 and is now in the process of liquidation. William Augusto testified that the principal reason for liquidating Superior was his inability to negotiate a contract with the Union, although financial problems and his desire to end Coggswell's ownership interest in the Company also were contributing factors. On October 29, 1975, the following letter, which is signed Superior Sprinkler, Inc. by William E. Augusto, was mailed to Local 550: "We will be liquidating Superior Sprinkler, Inc. during the month of November. Our new name will be Bill Augusto Sprinkler Company." Augusto explained, "I have a contract [with Local 550] but I had to notify [Local 550] that I was changing my name from Superior Sprinkler, Inc. to Bill Augusto Fire Protection." Augusto further testified that in November 1975 it was his intention to undertake no new work in Local 669 territory but only to service jobs in that area which were previously installed by Superior. 15 N LR B v Ra-Rich Manufacturing Corporation, supra. 16 Augusto testified, "I fired him Four years ago " 17 Occasionally, Superior employees who were members of Local 669 worked for the Company, usually as foremen , in Local 550 territory In such instances the employees deposited travel cards with Local 550 18 Gerace Construction, Inc. and Helger Construction Company, Inc, 193 NLRB 645 (1971). See Penfield, The Double-Breasted Operation in the Construction Industry, 27 Labor Law Journal 89 (Feb 1976) SUPERIOR SPRINKLER, INC. 211 William Augusto further testified that when the liquida- tion of the business of Superior was begun in November 1975 he continued the identical business in his individual capacity under the name and style of William Augusto Fire Protection Services.19 He operates out of his home in Shrewsbury, Massachusetts, which is located within the territorial jurisdiction of Local 550 and his intention is to do work only in areas within the territorial jurisdiction of that labor organization. However, he services former customers of Superior who are located within Local 669's territorial jurisdiction. William Augusto has acquired all the tools and equip- ment formerly owned by Superior which have been appraised at or about $4,200. He also employs the secretary who worked for Superior and two sprinkler fitters who are members of Local 550 and who formerly worked for Superior. The undisputed evidence is that William Augusto since November 1975 has continued the identical business conducted by Superior, except only that he has stopped bidding for new work within the territorial jurisdiction of Local 669. From at least 1972 until the liquidation of Superior was begun in November 1975, William Augusto was in sole and complete charge of the business and the affairs of Superior. The only change that occurred thereaf- ter, other than the described restriction in bidding for new work, is the change in the structure of the business organization under which William Augusto is conducting business. Prior to November 1975, he was conducting business through the device of a corporation whereas thereafter he has continued the same business in his individual capacity. The structure of a business organization, whether it is a corporation, a partnership, or some other form, does not necessarily insulate the enterprise from liability for the unfair labor practices of a related organization. "Where necessary to safeguard the statutory rights, the Board may view separate legal entities as a single employing enter- prise."20 "[P]aper arrangements that do not reflect the business realities"21 should not be permitted to frustrate the effectuation of the purposes of the Act. I find, in agreement with General Counsel, that William Augusto presently,doing business as William Augusto Fire Protec- tion Services for the purposes of the Act is a single employer with, or the alter ego of, Superior and is therefore responsi- ble for remedying the unfair labor practices of Superior.22 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondents set forth in section III, above, -occurring in - connection with their operations described in section I, above, have a close, intimate, and 19 Although not entirely clear from the record, it would apppea that William Augusto acquired the former customers of Superior, andwithr in the territorial Jurisdiction of Local 550 submitted bids for the same type of work as Superior had bid for prior to November 1975. 20 N L R B. v Gibralter Industries, Inc., & International Trailer Co., Inc., et a!, 307 F.2d 428, 431 (C.A 4, 1962), cert. denied 372 U S. 911 (1963). Accord: Radio & Television Broadcast Technicians Local Union 1264, International Brotherhood of Electrical Workers, AFL-CIO v. Broadcast Service of Mobile, Inc., 380 U.S. 255, 256 (1965); Sakrete of Northern California, Inc, 140 NLRB 765 (1963), enfd. 332 F 2d 902 (C.A N orthern 1964), cert. denied 379 U.S. 961 (1965). substantial relationship 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. V. THE REMEDY Having found that Respondents have engaged in certain unfair labor practices, I shall recommend that they cease and desist therefrom and that they take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondents unlawfully have refused to bargain collectively with the Union, I shall recommend that they be ordered to bargain collectively with the Union, upon request, with respect to rates of pay, wages, hours of employment, and other terms and conditions of employ- ment for the employees in the appropriate unit described below. I shall also recommend that any understanding that the parties may reach shall be embodied in a signed agreement. Having found that Respondents unlawfully terminated Edmond Fleming, Walter Fleming, Norman Young, and Stephen Riendeau on May 2, 1975, and Edward Parzyck on May 14, 1975, I shall recommend that Respondents offer them immediate and full reinstatement to their former jobs or, if such jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make each of them whole for any loss of earnings he may have suffered by reason of the discrimina- tion against him by payment to him of a sum of money equal to that which he normally would have earned from the aforesaid date of his discharge to the date of Respon- dents' offer of reinstatement,23 less his net earnings during such period. The backpay provided for herein shall be computed by calendar quarter in accordance with the method prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950). Interest at the rate of 6 percent per annum shall be added to the net backpay and shall be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). In her brief General Counsel argues that "[r ]einstatement should be to the same or substantially equivalent positions with William Augusto Fire Protection Services, working in the Worcester jurisdiction of Local 669. Anything less than this, the traditional remedy, would be a denial of justice to the Union and a mockery of the Board processes. In the alternative, Counsel for General Counsel proposes rein- statement with full backpay to the same or substantially equivalent positions with William Augusto Fire Protection Services, or at the very least, full backpay to date for Young, Riendeau, Parzyck and the Flemings." I am uncertain what General Counsel is requesting, different from the conventional remedy for unlawful discharges. If 21 N.LR B. v. Deena Artware, Inc., 361 U.S. 398,403 (1960). ' 22 The October 29, 1975, letter to Local 550 signed by William Augusto reflects his personal recognition of the fact that in his individual capacity he is continuing the business of Superior 23 Respondents also are ordered to make the contributions to the union benefits funds required by the terms of the 1973-75 contract between the Union and the Company on behalf of Edward Parzyck for the period from May 2 to May 11, 1975. 212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD General Counsel is requesting that an order somehow be framed to compel William Augusto to bid for and to obtain the same volume of work within the territorial jurisdiction of Local 669 as Superior had been doing in years past, I believe that such order would be impractical to enforce and that there is no precedent for such order in a case of this nature, and I shall not recommend that remedy. Upon the basis of the foregoing findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. William Augusto d/b/a William Augusto Fire Pro- tection Services is the alter ego of Superior Sprinkler, Inc., and is responsible jointly and severally with Superior Sprinkler, Inc., to remedy the unfair labor practices found herein. 2. By constructively discharging Edmond Fleming, Walter Fleming, Norman Young, and Stephen Riendeau on May 2, 1975, and Edward Parzyck on May 14, 1975, thereby discouraging membership in the Union, Respon- dents have engaged in and are engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 3. On and after May 2, 1975, by failing and refusing to bargain collectively with the Union as the designated exclusive representative of the employees in the appropriate unit described below and by unilaterally changing the compensation of employees in said unit without first giving notice to the Union and affording the Union an opportuni- ty to engage in collective bargaining with respect to such change, Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 4. By reason of the foregoing, Respondents have interfered with, restrained, and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act, and thereby have engaged in and are engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record in this proceeding, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 24 Respondents Superior Sprinkler, Inc., and William Au- gusto d/b/a William Augusto Fire Protection Services, Worcester, Massachusetts, their respective officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in Road Sprinkler Fitters Local Union 669, a/w United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, by constructively 24 In the event no exceptions are filed as provided by Sec. 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations , be adopted by the Board and become its findings, conclusions , and Order, and all objections thereto shall be deemed waived for all purposes. discharging their employees through the imposition of illegal conditions of employment, or by otherwise discrimi- nating against any of their employees in regard to their hire, tenure of employment, or other terms or conditions of their employment. (b) Refusing to bargain collectively with the above- named Union as the exclusive representative of all employ- ees in the unit described below. (c) Making or effecting any change in the wages, hours, or other terms or conditions of employment of employees in the collective-bargaining unit described below without first giving notice to the Union and affording the Union an opportunity to engage in collective-bargaining with respect to any such change. (d) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively with Road Sprink- ler Fitters Local Union 669, a/w United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, as the exclusive representative of all the employees in the below- described unit and, if an agreement is reached, embody it in a signed contract. The appropriate collective-bargaining unit is: All employees engaged in the installation and mainte- nance of fire protection systems in the geographic areas defined in article 6 of the 1973 agreement between Superior Sprinkler, Inc., and the Union, exclusive of office clerical employees and all supervisors as defined in Section 2(11) of the Act. (b) Offer Edmond Fleming, Walter Fleming, Norman Young, Stephen Riendeau, and Edward Parzyck immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority and other rights and privileges, and make them whole for any loss of earnings they may have suffered by reason of the unlawful discrimi- nation against them in the manner set forth in the section in this Decision entitled "The Remedy." (c) 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 analyze the amounts of backpay due under the terms of this recommended Order. (d) Post at their offices copies of the attached notice marked "Appendix."25 Copies of said notice, on forms provided by the Regional Director for Region 1, after being duly signed by Respondents' representatives, shall be posted by them immediately upon receipt thereof, and be maintained by them for 60 consecutive days thereafter, in 25 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " SUPERIOR SPRINKLER, INC. 213 conspicuous places, including all places where notices to (e) Notify the Regional Director forRegion 1, in writing, employees are customarily posted . Reasonable steps shall within 20 days from the date of this Order, what steps be taken by Respondents to insure that said notices are not Respondents have taken to comply herewith. altered, defaced, or covered by any other material.