Ditzler Mechanical Contractors

610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ditzler Mechanical Contractors, Inc. and Francis X. tlement agreement. The Respondent's answer was, by McGowan and Local Union No. 598, United As- letter, also reinstated. sociation of Journeymen and Apprentices of the The case was heard before me at Richland, Washing- Plumbing and Pipe Fitting Industry of the ton, on November 4, 1980. The General Counsel ap- United States and Canada, AFL-CIO, Party to peared through counsel. The Charging Party appeared in the Contract. Case 19-CA-11634 person. As a party to a collective-bargaining agreement with the Respondent, Local Union No. 598, United As- December 9, 1981 sociation of Journeymen and Apprentices of the Plumb- DECISION AND ORDER ing and Pipe Fitting Industry of the United States and Canada, AFL-CIO (hereinafter referred to as the BY MEMBERS FANNING, JENKINS, AND Union), appeared through counsel. However, the Re- ZIMMERMAN spondent did not appear at the hearing. Its counsel, in a telephone conversation with me, stated that the Re- On September 10, 1981, Administrative Law spondent's decision not to appear was consciously made Judge Frederick C. Herzog issued the attached De- and was not based on any scheduling conflict. I advised cision in this proceeding. Thereafter, the Charging her that we would go forward with the hearing; she Party filed exceptions and a supporting brief. voiced her agreement and understanding. Pursuant to the provisions of Section 3(b) of the Thus, while not all parties were present at the hearing, National Labor Relations Act, as amended, the Na- it is clear that each party had an opportunity to be pres- tional Labor Relations Board has delegated its au- ent, to participate, to present evidence, and to examine thority in this proceeding to a three-member panel. and cross-examine witnesses. Based on the record thus The Board has considered the record and the at- compiled, as well as my review of the briefs filed by tached Decision in light of the exceptions and brief counsel for the General Counsel and the Union, I make and has decided to affirm the rulings, findings, and the following: conclusions of the Administrative Law Judge and FINDINGS OF FACT to adopt his recommended Order. I. COMMERCE ORDER The Respondent is an Oregon corporation with its pri- Pursuant to Section 10(c) of the National Labor mary offices and place of business in Albany, Oregon, Relations Act, as amended, the National Labor Re- where it is engaged as a plumbing contractor. During the lations Board adopts as its Order the recommended 12 months preceding the issuance of the complaint Order of the Administrative Law Judge and herein, it had gross sales and services valued in excess of hereby orders that the Respondent, Ditzler Me- $500,000. During that same period, it sold and shipped goods, or provided services to customers outside the chanical Contractors, Inc., Albany, Oregon, its offi- goods, or provded services to customers outside the State of Oregon or sold and shipped goods or provided cers, agents, successors, and assigns, shall take the services to customers within the State of Oregon (with action set forth in the said recommended Order. said customers themselves being engaged in interstate commerce by other than indirect means), all of which had a total value in excess of $50,000. Additionally, STATEMENT OF THE CASE during the 12 months preceding the issuance of the com- plaint herein, it purchased and caused to be delivered at FREDERICK C. HERZOG, Administrative Law Judge: its facility within the State of Oregon goods and materi- On August 1, 1979, a charge was filed by Francis X. als valued in excess of $50,000 directly from sources out- McGowan, an individual (hereinafter referred to as the side the State of Oregon or from suppliers within the Charging Party), against Ditzler Mechanical Contractors, State of Oregon which in turn obtained such goods and Inc. (hereinafter referred to as the Respondent), alleging materials directly from sources outside said State. that the Respondent violated Section 8(a)(l) and (2) of Based on the foregoing admitted allegations of the the Act. Based thereon a complaint was issued by the complaint, I find that the Respondent is engaged in com- Regional Director for Region 19 of the National Labor merce and in operations affecting commerce within the Relations Board on August 17, 1979, alleging that the meaning of Section 2(6) and (7) of the Act. Respondent violated Section 8(a)(1) and (2) of the Act. The Respondent's answer to the complaint admitted cer- II. THE LABOR ORGANIZATION INVOLVED tain factual allegations but denied any wrongdoing. It is undisputed and I find that the Union, Local Union Thereafter, in February 1980, the Respondent entered No. 598, United Association of Journeymen and Appren- into an informal settlement agreement. The Charging tices of the Plumbing and Pipe Fitting Industry of the Party did not join in this agreement. However, in May United States and Canada, AFL-CIO, is a labor organi- 1980, the Regional Director withdrew his previous ap- zation within the meaning of Section 2(5) of the Act. proval of the settlement agreement and reinstated the original complaint based on his assertion that the Re- spondent had failed to comply with the terms of the set- 259 NLRB No. 84 610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ditzler Mechanical Contractors, Inc. and Francis X. tiement agreement. The Respondent's answer was, by McGowan and Local Union No. 598, United As- letter, also reinstated. sociation of Journeymen and Apprentices of the The case was heard before me at Richland, Washing- Plumbing and Pipe Fitting Industry of the ton, on November 4, 1980. The General Counsel ap- United States and Canada, AFL-CIO, Party to peared through counsel. The Charging Party appeared in the Contract. Case 19-CA-11634 person. As a party to a collective-bargaining agreement with the Respondent, Local Union No. 598, United As- December 9, 1981 sociation of Journeymen and Apprentices of the Plumb- DECISION AND ORDER in g a nd Pip e Fitting Industry of the United States and Canada, AFL-CIO (hereinafter referred to as the BY MEMBERS FANNING, JENKINS, AND Union), appeared through counsel. However, the Re- ZIMMERMAN spondent did not appear at the hearing. Its counsel, in a telephone conversation with me, stated that the Re- On September 10, 1981, Administrative Law spondent's decision not to appear was consciously made Judge Frederick C. Herzog issued the attached De- and was not based on any scheduling conflict. I advised cision in this proceeding. Thereafter, the Charging her that we would go forward with the hearing; she Party filed exceptions and a supporting brief. voiced her agreement and understanding. Pursuant to the provisions of Section 3(b) of the Thus, while not all parties were present at the hearing, National Labor Relations Act, as amended, the Na- it is clear that each party had an opportunity to be pres- tional Labor Relations Board has delegated its au- ent, to participate, to present evidence, and to examine thority in this proceeding to a three-member panel. and cross-examine witnesses. Based on the record thus The Board has considered the record and the at- compiled, as well as my review of the briefs filed by tached Decision in light of the exceptions and brief co un se l for th e General Counsel and the Union, I make and has decided to affirm the rulings, findings, and t h e following: conclusions of the Administrative Law Judge and FINDINGS OF FACT to adopt his recommended Order. I. COMMERCE ORDER The Respondent is an Oregon corporation with its pri- Pursuant to Section 10(c) of the National Labor mary offices and place of business in Albany, Oregon, Relations Act, as amended, the National Labor Re- where it is engaged as a plumbing contractor. During the lations Board adopts as its Order the recommended 12 months preceding the issuance of the complaint Order of the Administrative Law Judge and herein, it had gross sales and services valued in excess of hereby orders that the Respondent, Ditzler Me- $ 500 ,00 0 . During that same period, it sold and shipped chanical Contractors, Inc., Albany, Oregon, its offi- g oo d s, or p rov id ed se r v ic es t o c u s to mer s o ut side t h e 'hanical Cntractors 'nc., .'', °n , iState of Oregon or sold and shipped goods or provided cers, agents, successors, and assigns, shall take the services to customers within the State of Oregon (with action set forth in the said recommended Order. said customers themselves being engaged in interstate commerce by other than indirect means), all of which had a total value in excess of $50,000. Additionally, STATEMENT OF THE CASE during the 12 months preceding the issuance of the com- plaint herein, it purchased and caused to be delivered at FREDERICK C. HERZOG, Administrative Law Judge: its facility within the State of Oregon goods and materi- On August 1, 1979, a charge was filed by Francis X. als valued in excess of $50,000 directly from sources out- McGowan, an individual (hereinafter referred to as the side the State of Oregon or from suppliers within the Charging Party), against Ditzler Mechanical Contractors, State of Oregon which in turn obtained such goods and Inc. (hereinafter referred to as the Respondent), alleging materials directly from sources outside said State. that the Respondent violated Section 8(a)(l) and (2) of Based on the foregoing admitted allegations of the the Act. Based thereon a complaint was issued by the complaint, I find that the Respondent is engaged in com- Regional Director for Region 19 of the National Labor merce and in operations affecting commerce within the Relations Board on August 17, 1979, alleging that the meaning of Section 2(6) and (7) of the Act. Respondent violated Section 8(a)(l) and (2) of the Act. The Respondent's answer to the complaint admitted cer- 11. THE LABOR ORGANIZATION INVOLVED tain factual allegations but denied any wrongdoing. It is undisputed and I find that the Union, Local Union Thereafter, in February 1980, the Respondent entered No. 598, United Association of Journeymen and Appren- into an informal settlement agreement. The Charging tices of the Plumbing and Pipe Fitting Industry of the Party did not join in this agreement. However, in May united States and Canada, AFL-CIO, is a labor organi- 1980, the Regional Director withdrew his previous ap- zation within the meaning of Section 2(5) of the Act. proval of the settlement agreement and reinstated the original complaint based on his assertion that the Re- spondent had failed to comply with the terms of the set- 259 NLRB No. 84 610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ditzler Mechanical Contractors, Inc. and Francis X. tiement agreement. The Respondent's answer was, by McGowan and Local Union No. 598, United As- letter, also reinstated. sociation of Journeymen and Apprentices of the The case was heard before me at Richland, Washing- Plumbing and Pipe Fitting Industry of the ton, on November 4, 1980. The General Counsel ap- United States and Canada, AFL-CIO, Party to peared through counsel. The Charging Party appeared in the Contract. Case 19-CA-11634 person. As a party to a collective-bargaining agreement with the Respondent, Local Union No. 598, United As- December 9, 1981 sociation of Journeymen and Apprentices of the Plumb- DECISION AND ORDER in g a nd Pip e Fitting Industry of the United States and Canada, AFL-CIO (hereinafter referred to as the BY MEMBERS FANNING, JENKINS, AND Union), appeared through counsel. However, the Re- ZIMMERMAN spondent did not appear at the hearing. Its counsel, in a telephone conversation with me, stated that the Re- On September 10, 1981, Administrative Law spondent's decision not to appear was consciously made Judge Frederick C. Herzog issued the attached De- and was not based on any scheduling conflict. I advised cision in this proceeding. Thereafter, the Charging her that we would go forward with the hearing; she Party filed exceptions and a supporting brief. voiced her agreement and understanding. Pursuant to the provisions of Section 3(b) of the Thus, while not all parties were present at the hearing, National Labor Relations Act, as amended, the Na- it is clear that each party had an opportunity to be pres- tional Labor Relations Board has delegated its au- ent, to participate, to present evidence, and to examine thority in this proceeding to a three-member panel. and cross-examine witnesses. Based on the record thus The Board has considered the record and the at- compiled, as well as my review of the briefs filed by tached Decision in light of the exceptions and brief co un se l for th e General Counsel and the Union, I make and has decided to affirm the rulings, findings, and t h e following: conclusions of the Administrative Law Judge and FINDINGS OF FACT to adopt his recommended Order. I. COMMERCE ORDER The Respondent is an Oregon corporation with its pri- Pursuant to Section 10(c) of the National Labor mary offices and place of business in Albany, Oregon, Relations Act, as amended, the National Labor Re- where it is engaged as a plumbing contractor. During the lations Board adopts as its Order the recommended 12 months preceding the issuance of the complaint Order of the Administrative Law Judge and herein, it had gross sales and services valued in excess of hereby orders that the Respondent, Ditzler Me- $ 500 ,00 0 . During that same period, it sold and shipped chanical Contractors, Inc., Albany, Oregon, its offi- g oo d s, or p rov id ed se r v ic es t o c u s to mer s o ut sid e t h e 'hanical Cntractors 'nc., .'', °n , iState of Oregon or sold and shipped goods or provided cers, agents, successors, and assigns, shall take the services to customers within the State of Oregon (with action set forth in the said recommended Order. said customers themselves being engaged in interstate commerce by other than indirect means), all of which had a total value in excess of $50,000. Additionally, STATEMENT OF THE CASE during the 12 months preceding the issuance of the com- plaint herein, it purchased and caused to be delivered at FREDERICK C. HERZOG, Administrative Law Judge: its facility within the State of Oregon goods and materi- On August 1, 1979, a charge was filed by Francis X. als valued in excess of $50,000 directly from sources out- McGowan, an individual (hereinafter referred to as the side the State of Oregon or from suppliers within the Charging Party), against Ditzler Mechanical Contractors, State of Oregon which in turn obtained such goods and Inc. (hereinafter referred to as the Respondent), alleging materials directly from sources outside said State. that the Respondent violated Section 8(a)(l) and (2) of Based on the foregoing admitted allegations of the the Act. Based thereon a complaint was issued by the complaint, I find that the Respondent is engaged in com- Regional Director for Region 19 of the National Labor merce and in operations affecting commerce within the Relations Board on August 17, 1979, alleging that the meaning of Section 2(6) and (7) of the Act. Respondent violated Section 8(a)(l) and (2) of the Act. The Respondent's answer to the complaint admitted cer- 11. THE LABOR ORGANIZATION INVOLVED tain factual allegations but denied any wrongdoing. It is undisputed and I find that the Union, Local Union Thereafter, in February 1980, the Respondent entered No. 598, United Association of Journeymen and Appren- into an informal settlement agreement. The Charging tices of the Plumbing and Pipe Fitting Industry of the Party did not join in this agreement. However, in May united States and Canada, AFL-CIO, is a labor organi- 1980, the Regional Director withdrew his previous ap- zation within the meaning of Section 2(5) of the Act. proval of the settlement agreement and reinstated the original complaint based on his assertion that the Re- spondent had failed to comply with the terms of the set- 259 NLRB No. 84 610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ditzler Mechanical Contractors, Inc. and Francis X. tiement agreement. The Respondent's answer was, by McGowan and Local Union No. 598, United As- letter, also reinstated. sociation of Journeymen and Apprentices of the The case was heard before me at Richland, Washing- Plumbing and Pipe Fitting Industry of the ton, on November 4, 1980. The General Counsel ap- United States and Canada, AFL-CIO, Party to peared through counsel. The Charging Party appeared in the Contract. Case 19-CA-11634 person. As a party to a collective-bargaining agreement with the Respondent, Local Union No. 598, United As- December 9, 1981 sociation of Journeymen and Apprentices of the Plumb- DECISION AND ORDER in g a nd Pip e Fitting Industry of the United States and Canada, AFL-CIO (hereinafter referred to as the BY MEMBERS FANNING, JENKINS, AND Union), appeared through counsel. However, the Re- ZIMMERMAN spondent did not appear at the hearing. Its counsel, in a telephone conversation with me, stated that the Re- On September 10, 1981, Administrative Law spondent's decision not to appear was consciously made Judge Frederick C. Herzog issued the attached De- and was not based on any scheduling conflict. I advised cision in this proceeding. Thereafter, the Charging her that we would go forward with the hearing; she Party filed exceptions and a supporting brief. voiced her agreement and understanding. Pursuant to the provisions of Section 3(b) of the Thus, while not all parties were present at the hearing, National Labor Relations Act, as amended, the Na- it is clear that each party had an opportunity to be pres- tional Labor Relations Board has delegated its au- ent, to participate, to present evidence, and to examine thority in this proceeding to a three-member panel. and cross-examine witnesses. Based on the record thus The Board has considered the record and the at- compiled, as well as my review of the briefs filed by tached Decision in light of the exceptions and brief co un se l for th e General Counsel and the Union, I make and has decided to affirm the rulings, findings, and t h e following: conclusions of the Administrative Law Judge and FINDINGS OF FACT to adopt his recommended Order. I. COMMERCE ORDER The Respondent is an Oregon corporation with its pri- Pursuant to Section 10(c) of the National Labor mary offices and place of business in Albany, Oregon, Relations Act, as amended, the National Labor Re- where it is engaged as a plumbing contractor. During the lations Board adopts as its Order the recommended 12 months preceding the issuance of the complaint Order of the Administrative Law Judge and herein, it had gross sales and services valued in excess of hereby orders that the Respondent, Ditzler Me- $ 500 ,00 0 . During that same period, it sold and shipped chanical Contractors, Inc., Albany, Oregon, its offi- g oo d s, or p rov id ed se r v ic es t o c u s to mer s o ut sid e t h e 'hanical Cntractors 'nc., .'', °n , iState of Oregon or sold and shipped goods or provided cers, agents, successors, and assigns, shall take the services to customers within the State of Oregon (with action set forth in the said recommended Order. said customers themselves being engaged in interstate commerce by other than indirect means), all of which had a total value in excess of $50,000. Additionally, STATEMENT OF THE CASE during the 12 months preceding the issuance of the com- plaint herein, it purchased and caused to be delivered at FREDERICK C. HERZOG, Administrative Law Judge: its facility within the State of Oregon goods and materi- On August 1, 1979, a charge was filed by Francis X. als valued in excess of $50,000 directly from sources out- McGowan, an individual (hereinafter referred to as the side the State of Oregon or from suppliers within the Charging Party), against Ditzler Mechanical Contractors, State of Oregon which in turn obtained such goods and Inc. (hereinafter referred to as the Respondent), alleging materials directly from sources outside said State. that the Respondent violated Section 8(a)(l) and (2) of Based on the foregoing admitted allegations of the the Act. Based thereon a complaint was issued by the complaint, I find that the Respondent is engaged in com- Regional Director for Region 19 of the National Labor merce and in operations affecting commerce within the Relations Board on August 17, 1979, alleging that the meaning of Section 2(6) and (7) of the Act. Respondent violated Section 8(a)(l) and (2) of the Act. The Respondent's answer to the complaint admitted cer- 11. THE LABOR ORGANIZATION INVOLVED tain factual allegations but denied any wrongdoing. It is undisputed and I find that the Union, Local Union Thereafter, in February 1980, the Respondent entered No. 598, United Association of Journeymen and Appren- into an informal settlement agreement. The Charging tices of the Plumbing and Pipe Fitting Industry of the Party did not join in this agreement. However, in May united States and Canada, AFL-CIO, is a labor organi- 1980, the Regional Director withdrew his previous ap- zation within the meaning of Section 2(5) of the Act. proval of the settlement agreement and reinstated the original complaint based on his assertion that the Re- spondent had failed to comply with the terms of the set- 259 NLRB No. 84 DITZLER MECHANICAL CONTRACTORS 611 Ill. THE UNFAIR LABOR PRACTICE Elam also sought to down-play the importance and sig- nificance of his role as the president of the Union. Thus, A. The Issues Presentedfor Determination throughout his testimony and that of other witnesses for The complaint alleges that the Respondent violated the Union, the office of the presidency of the Union was Section 8(aX2) and (1) of the Act by virtue of the fact depicted as largely ceremonial. It was admitted that that one of its supervisors and agents also served as the Elam presides over membership meetings of the Union, president of the Union and established its policies and but it was disputed that he had any real input in the col- procedures, and participated in the affairs and meetings lective-bargaining process, in the resolution of griev- of the Union. Additionally, the question regarding the ances, or in recruiting new members for the Union. In- appropriate remedy for such actions is presented. stead, his role as presiding officer of the Union's meet- The Union asserts several arguments disputing the ings was portrayed as one lacking in discretion, gov- General Counsel's contention that a prior settlement ered only by Robert's Rules of Order, and giving him agreement between the Regional Director and the Re- no more power or authority within the Union than that spondent should be set aside or that unfair labor prac- of any other rank-and-file member. In this connection it tices have been committed. was noted that Ditzler is a small contractor and that its collective-bargaining agreement with the Union is only B. The Conduct Upon Which the Complaint is Based one of some 106 such agreements which the Union and The Res t h n is a c r wh is h e its 2,000 to 2,100 members have within the Union's juris- The Respondent herein is a contractor with its home diction office at Albany, Oregon, some 35 miles south of Port- land, Oregon. However, it also operates in the area of C. Discussion and Conclusions southeastern Washington, primarily in the tri-cities area of Pasco, Richland, and Kennewick. In order to carry 1. First of all, the Union contends that the settlement out its operations in southeastern Washington it has an agreement herein should not have been set aside by the office located in the tri-cities area. Regional Director and that I may not properly make For 2-1/2 years prior to the hearing herein, such oper- findings based on conduct which was merged into the ations were headed by William "Billy" James Elam. settlement agreement. I disagree. Despite difficulty in de- During this 2-1/2 year period Elam served as the Re- termining exactly how this settlement agreement was spondent's "general foreman" and, as was judicially ad- breached,' it is clear from Elam's testimony that the set- mitted by the Respondent's answer to the complaint tlement agreement's provisions included, as a minimum, a herein, Elam was the Respondent's superintendent at all requirement that he elect to divest himself of one of the times material herein, acting as the Respondent's agent offices he held. It is equally clear from Elam's testimony and supervisor within the meaning of Section 2(11) and that he failed and refused to abide by this provision, for, (13), respectively, of the Act. While Elam testified that as he testified, he became indignant when told about the he spent a substantial portion of his time performing the terms of the agreement. Therefore, he decided to contin- actual manual labor associated with the Respondent's op- ue in both positions. At the time of the hearing herein, eration as a small contractor, it is clear that he served for he was still the Respondent's superintendent and he was approximately 2-1/2 years without layoff or interruption still the Union's president. as the coordinator and head of the Respondent's general Indeed, the Union's position herein is not that Elam operations in southeastern Washington. This involved co- has satisfied the terms of the settlement agreement, but ordination of several projects at various times. It appears that the General Counsel has failed to prove that it that such projects involved crews of anywhere from one should be set aside. Alternatively, the Union asserts that, to six employees, as well as foremen. The foremen were even if the General Counsel has done so, the law does deemed to be responsible for the day-to-day operations not require such an election between offices by a low- on the various jobsites, and each foreman reported di- level supervisor in the building and construction indus- rectly to Elam. Elam reported only to Ditzler, and try. Ditzler made the 5-hour drive from the home office in The Respondent's postsettlement conduct is shown Albany, Oregon, to the tri-cities area only once each through the testimony of Elam to warrant the Regional week. Director's action in setting aside the settlement agree- The General Counsel's complaint herein is based on ment. For the Respondent failed to abide by the terms of the fact that throughout this period of time Elam was the agreement and, instead, obstinately continued the serving as the superintendent for the Respondent, he also very conduct which had been the subject of the settle- served as the president of the Union with which Ditzler ment agreement; i.e., continuation in both offices. Obvi- had a collective-bargaining relationship. Apparently, ously, where the Respondent fails to abide by an agree- Ditzler has entered into successive collective-bargaining ment and engages in further conduct contrary to the agreements with the Union since approximately 1972. terms of the agreement, the Regional Director has no While the collective-bargaining agreement which was ef- choice but to set it aside under the terms of Section fective at the time of the hearing herein was not offered in evidence, Elam testified that it was a 3-year contract 'This difficulty is caused by the fact that the counsel for the General providing for a termination date in June 1982. Counsel ,ailed to place into evidence the notice to employees which, pre- sumbly, was attached to the settlement agreement itself, which is in evi- As he had done while testifying about his responsibil- dence as G.C. Exh. (i) Absent the notice to employees, I am unable to ities and duties as superintendent for the Respondent, tell with precision just what the terms of the settlement agreement were. DITZLER MECHANICAL CONTRACTORS 611 Ill. THE UNFAIR LABOR PRACTICE Elam also sought to down-play the importance and sig- nificance of his role as the president of the Union. Thus, A. The Issues Presentedfor Determination throughout his testimony and that of other witnesses for The complaint alleges that the Respondent violated the Union, the office of the presidency of the Union was Section 8(aX2) and (1) of the Act by virtue of the fact depicted as largely ceremonial. It was admitted that that one of its supervisors and agents also served as the E l a m presides over membership meetings of the Union, president of the Union and established its policies and b u t it w a s disputed that he had any real input in the col- procedures, and participated in the affairs and meetings lective-bargaining process, in the resolution of griev- of the Union. Additionally, the question regarding the ances, or in recruiting new members for the Union. In- appropriate remedy for such actions is presented. stead, his role as presiding officer of the Union's meet- The Union asserts several arguments disputing the ings w a s portrayed as one lacking in discretion, gov- General Counsel's contention that a prior settlement emed only by Robert's Rules of Order, and giving him agreement between the Regional Director and the Re- no more power or authority within the Union than that spondent should be set aside or that unfair labor prac- of any other rank-and-file member. In this connection it tices have been committed. w as noted that Ditzler is a small contractor and that its collective-bargaining agreement with the Union is only B. The Conduct Upon Which the Complaint is Based one of some 106 such agreements which the Union and The Respondent herein is a contractor with its home its 2,000 to 2,100 members have within the Union's juris- The Respondent herein is a contractor with its home diction. office at Albany, Oregon, some 35 miles south of Port- land, Oregon. However, it also operates in the area of C. Discussion and Conclusions southeastern Washington, primarily in the tri-cities area of Pasco, Richland, and Kennewick. In order to carry 1. F irst of all, the Union contends that the settlement out its operations in southeastern Washington it has an agreement herein should not have been set aside by the office located in the tri-cities area. Regional Director and that I may not properly make For 2-1/2 years prior to the hearing herein, such oper- findings based on conduct which was merged into the ations were headed by William "Billy" James Elam. settlement agreement. I disagree. Despite difficulty in de- During this 2-1/2 year period Elam served as the Re- termining exactly how this settlement agreement was spondent's "general foreman" and, as was judicially ad- breached,' it is clear from Elam's testimony that the set- mitted by the Respondent's answer to the complaint tlement agreement's provisions included, as a minimum, a herein, Elam was the Respondent's superintendent at all requirement that he elect to divest himself of one of the times material herein, acting as the Respondent's agent offices he held. It is equally clear from Elam's testimony and supervisor within the meaning of Section 2(11) and that he failed and refused to abide by this provision, for, (13), respectively, of the Act. While Elam testified that as he testified, he became indignant when told about the he spent a substantial portion of his time performing the terms of the agreement. Therefore, he decided to contin- actual manual labor associated with the Respondent's op- ue in both positions. At the time of the hearing herein, eration as a small contractor, it is clear that he served for he was still the Respondent's superintendent and he was approximately 2-1/2 years without layoff or interruption st ill the Union's president. as the coordinator and head of the Respondent's general Indeed, the Union's position herein is not that Elam operations in southeastern Washington. This involved co- has satisfied the terms of the settlement agreement, but ordination of several projects at various times. It appears that the General Counsel has failed to prove that it that such projects involved crews of anywhere from one should be set aside. Alternatively, the Union asserts that, to six employees, as well as foremen. The foremen were even if the General Counsel has done so, the law does deemed to be responsible for the day-to-day operations not require such an election between offices by a low- on the various jobsites, and each foreman reported di- level supervisor in the building and construction indus- rectly to Elam. Elam reported only to Ditzler, and try. Ditzler made the 5-hour drive from the home office in The Respondent's postsettlement conduct is shown Albany, Oregon, to the tri-cities area only once each through the testimony of Elam to warrant the Regional week. Director's action in setting aside the settlement agree- The General Counsel's complaint herein is based on ment. For the Respondent failed to abide by the terms of the fact that throughout this period of time Elam was the agreement and, instead, obstinately continued the serving as the superintendent for the Respondent, he also very conduct which had been the subject of the settle- served as the president of the Union with which Ditzler ment agreement; i.e., continuation in both offices. Obvi- had a collective-bargaining relationship. Apparently, ously, where the Respondent fails to abide by an agree- Ditzler has entered into successive collective-bargaining ment and engages in further conduct contrary to the agreements with the Union since approximately 1972. terms of the agreement, the Regional Director has no While the collective-bargaining agreement which was ef- choice but to set it aside under the terms of Section fective at the time of the hearing herein was not offered in evidence, Elam testified that it was a 3-year contract This difficulty is caused by the fact that the counsel for the General providing for a termination date in June 1982. Counsel .ailed to place into evidence the notice to employees which, pre- sumbly, was attached to the settlement agreement itself, which is in evi- As he had done while testifying about his responsibil- dence as G.C. Exh. l(i). Absent the notice to employees, I am unable to ities and duties as Superintendent for the Respondent, tell with precision just what the terms of the settlement agreement were. DITZLER MECHANICAL CONTRACTORS 611 Ill. THE UNFAIR LABOR PRACTICE Elam also sought to down-play the importance and sig- nificance of his role as the president of the Union. Thus, A. The Issues Presentedfor Determination throughout his testimony and that of other witnesses for The complaint alleges that the Respondent violated the Union, the office of the presidency of the Union was Section 8(aX2) and (1) of the Act by virtue of the fact depicted as largely ceremonial. It was admitted that that one of its supervisors and agents also served as the E l a m presides over membership meetings of the Union, president of the Union and established its policies and b u t it w a s disputed that he had any real input in the col- procedures, and participated in the affairs and meetings lective-bargaining process, in the resolution of griev- of the Union. Additionally, the question regarding the ances, or in recruiting new members for the Union. In- appropriate remedy for such actions is presented. stead, his role as presiding officer of the Union's meet- The Union asserts several arguments disputing the ings w a s portrayed as one lacking in discretion, gov- General Counsel's contention that a prior settlement emed only by Robert's Rules of Order, and giving him agreement between the Regional Director and the Re- no more power or authority within the Union than that spondent should be set aside or that unfair labor prac- of any other rank-and-file member. In this connection it tices have been committed. w as noted that Ditzler is a small contractor and that its collective-bargaining agreement with the Union is only B. The Conduct Upon Which the Complaint is Based one of some 106 such agreements which the Union and The Respondent herein is a contractor with its home its 2,000 to 2,100 members have within the Union's juris- The Respondent herein is a contractor with its home diction. office at Albany, Oregon, some 35 miles south of Port- land, Oregon. However, it also operates in the area of C. Discussion and Conclusions southeastern Washington, primarily in the tri-cities area of Pasco, Richland, and Kennewick. In order to carry 1. F irst of all, the Union contends that the settlement out its operations in southeastern Washington it has an agreement herein should not have been set aside by the office located in the tri-cities area. Regional Director and that I may not properly make For 2-1/2 years prior to the hearing herein, such oper- findings based on conduct which was merged into the ations were headed by William "Billy" James Elam. settlement agreement. I disagree. Despite difficulty in de- During this 2-1/2 year period Elam served as the Re- termining exactly how this settlement agreement was spondent's "general foreman" and, as was judicially ad- breached,' it is clear from Elam's testimony that the set- mitted by the Respondent's answer to the complaint tlement agreement's provisions included, as a minimum, a herein, Elam was the Respondent's superintendent at all requirement that he elect to divest himself of one of the times material herein, acting as the Respondent's agent offices he held. It is equally clear from Elam's testimony and supervisor within the meaning of Section 2(11) and that he failed and refused to abide by this provision, for, (13), respectively, of the Act. While Elam testified that as he testified, he became indignant when told about the he spent a substantial portion of his time performing the terms of the agreement. Therefore, he decided to contin- actual manual labor associated with the Respondent's op- ue in both positions. At the time of the hearing herein, eration as a small contractor, it is clear that he served for he was still the Respondent's superintendent and he was approximately 2-1/2 years without layoff or interruption st ill the Union's president. as the coordinator and head of the Respondent's general Indeed, the Union's position herein is not that Elam operations in southeastern Washington. This involved co- has satisfied the terms of the settlement agreement, but ordination of several projects at various times. It appears that the General Counsel has failed to prove that it that such projects involved crews of anywhere from one should be set aside. Alternatively, the Union asserts that, to six employees, as well as foremen. The foremen were even if the General Counsel has done so, the law does deemed to be responsible for the day-to-day operations not require such an election between offices by a low- on the various jobsites, and each foreman reported di- level supervisor in the building and construction indus- rectly to Elam. Elam reported only to Ditzler, and try. Ditzler made the 5-hour drive from the home office in The Respondent's postsettlement conduct is shown Albany, Oregon, to the tri-cities area only once each through the testimony of Elam to warrant the Regional week. Director's action in setting aside the settlement agree- The General Counsel's complaint herein is based on ment. For the Respondent failed to abide by the terms of the fact that throughout this period of time Elam was the agreement and, instead, obstinately continued the serving as the superintendent for the Respondent, he also very conduct which had been the subject of the settle- served as the president of the Union with which Ditzler ment agreement; i.e., continuation in both offices. Obvi- had a collective-bargaining relationship. Apparently, ously, where the Respondent fails to abide by an agree- Ditzler has entered into successive collective-bargaining ment and engages in further conduct contrary to the agreements with the Union since approximately 1972. terms of the agreement, the Regional Director has no While the collective-bargaining agreement which was ef- choice but to set it aside under the terms of Section fective at the time of the hearing herein was not offered in evidence, Elam testified that it was a 3-year contract This difficulty is caused by the fact that the counsel for the General providing for a termination date in June 1982. Counsel .ailed to place into evidence the notice to employees which, pre- sumbly, was attached to the settlement agreement itself, which is in evi- As he had done while testifying about his responsibil- dence as G.C. Exh. l(i). Absent the notice to employees, I am unable to ities and duties as Superintendent for the Respondent, tell with precision just what the terms of the settlement agreement were. DITZLER MECHANICAL CONTRACTORS 611 Ill. THE UNFAIR LABOR PRACTICE Elam also sought to down-play the importance and sig- nificance of his role as the president of the Union. Thus, A. The Issues Presentedfor Determination throughout his testimony and that of other witnesses for The complaint alleges that the Respondent violated the Union, the office of the presidency of the Union was Section 8(aX2) and (1) of the Act by virtue of the fact depicted as largely ceremonial. It was admitted that that one of its supervisors and agents also served as the E l a m presides over membership meetings of the Union, president of the Union and established its policies and b u t it w a s disputed that he had any real input in the col- procedures, and participated in the affairs and meetings lective-bargaining process, in the resolution of griev- of the Union. Additionally, the question regarding the ances, or in recruiting new members for the Union. In- appropriate remedy for such actions is presented. stead, his role as presiding officer of the Union's meet- The Union asserts several arguments disputing the ings w a s portrayed as one lacking in discretion, gov- General Counsel's contention that a prior settlement emed only by Robert's Rules of Order, and giving him agreement between the Regional Director and the Re- no more power or authority within the Union than that spondent should be set aside or that unfair labor prac- of any other rank-and-file member. In this connection it tices have been committed. w as noted that Ditzler is a small contractor and that its collective-bargaining agreement with the Union is only B. The Conduct Upon Which the Complaint is Based one of some 106 such agreements which the Union and The Respondent herein is a contractor with its home its 2,000 to 2,100 members have within the Union's juris- The Respondent herein is a contractor with its home diction. office at Albany, Oregon, some 35 miles south of Port- land, Oregon. However, it also operates in the area of C. Discussion and Conclusions southeastern Washington, primarily in the tri-cities area of Pasco, Richland, and Kennewick. In order to carry 1. F irst of all, the Union contends that the settlement out its operations in southeastern Washington it has an agreement herein should not have been set aside by the office located in the tri-cities area. Regional Director and that I may not properly make For 2-1/2 years prior to the hearing herein, such oper- findings based on conduct which was merged into the ations were headed by William "Billy" James Elam. settlement agreement. I disagree. Despite difficulty in de- During this 2-1/2 year period Elam served as the Re- termining exactly how this settlement agreement was spondent's "general foreman" and, as was judicially ad- breached,' it is clear from Elam's testimony that the set- mitted by the Respondent's answer to the complaint tlement agreement's provisions included, as a minimum, a herein, Elam was the Respondent's superintendent at all requirement that he elect to divest himself of one of the times material herein, acting as the Respondent's agent offices he held. It is equally clear from Elam's testimony and supervisor within the meaning of Section 2(11) and that he failed and refused to abide by this provision, for, (13), respectively, of the Act. While Elam testified that as he testified, he became indignant when told about the he spent a substantial portion of his time performing the terms of the agreement. Therefore, he decided to contin- actual manual labor associated with the Respondent's op- ue in both positions. At the time of the hearing herein, eration as a small contractor, it is clear that he served for he was still the Respondent's superintendent and he was approximately 2-1/2 years without layoff or interruption st ill the Union's president. as the coordinator and head of the Respondent's general Indeed, the Union's position herein is not that Elam operations in southeastern Washington. This involved co- has satisfied the terms of the settlement agreement, but ordination of several projects at various times. It appears that the General Counsel has failed to prove that it that such projects involved crews of anywhere from one should be set aside. Alternatively, the Union asserts that, to six employees, as well as foremen. The foremen were even if the General Counsel has done so, the law does deemed to be responsible for the day-to-day operations not require such an election between offices by a low- on the various jobsites, and each foreman reported di- level supervisor in the building and construction indus- rectly to Elam. Elam reported only to Ditzler, and try. Ditzler made the 5-hour drive from the home office in The Respondent's postsettlement conduct is shown Albany, Oregon, to the tri-cities area only once each through the testimony of Elam to warrant the Regional week. Director's action in setting aside the settlement agree- The General Counsel's complaint herein is based on ment. For the Respondent failed to abide by the terms of the fact that throughout this period of time Elam was the agreement and, instead, obstinately continued the serving as the superintendent for the Respondent, he also very conduct which had been the subject of the settle- served as the president of the Union with which Ditzler ment agreement; i.e., continuation in both offices. Obvi- had a collective-bargaining relationship. Apparently, ously, where the Respondent fails to abide by an agree- Ditzler has entered into successive collective-bargaining ment and engages in further conduct contrary to the agreements with the Union since approximately 1972. terms of the agreement, the Regional Director has no While the collective-bargaining agreement which was ef- choice but to set it aside under the terms of Section fective at the time of the hearing herein was not offered in evidence, Elam testified that it was a 3-year contract This difficulty is caused by the fact that the counsel for the General providing for a termination date in June 1982. Counsel .ailed to place into evidence the notice to employees which, pre- sumbly, was attached to the settlement agreement itself, which is in evi- As he had done while testifying about his responsibil- dence as G.C. Exh. l(i). Absent the notice to employees, I am unable to ities and duties as Superintendent for the Respondent, tell with precision just what the terms of the settlement agreement were. 612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 101.9(e)(2) of the Board's Statements of Procedure, local constitution provides that he should do so "with Series 8, as amended. World-Wide Press, Inc., 242 NLRB voice" but no vote, while the International Union's con- 346 (1979); Tompkins Motor Lines, Inc., 142 NLRB 1, 3 stitution provides that he shall be "over" all committees. (1963), enforcement denied on other grounds 337 F.2d Under these circumstances, it appears quite evident 325 (6th Cir. 1964); cf. Henry I. Siegel Co., Inc., 143 that prudent employees of the Respondent would, when NLRB 386, enfd. 328 F.2d 25 (2d Cir. 1964); United exercising their right to freely engage in union activities Dairy Co., 146 NLRB 187 (1964). without interference from their employer, experience Thus, I find and conclude that the General Counsel some degree of inward restraint. Before taking issue with should prevail on the threshold questions of whether or the views expressed by Elam in any of the workings of not the Respondent engaged in further unfair labor prac- the various committees of which he is necessarily a tices following approval of the settlement agreement, and member, any employee of the Respondent would think that those unfair labor practices are sufficient to warrant twice, for the duties of a union officer, vested with "gen- setting aside that agreement.2 eral supervisory control over all matters pertaining to 2. The Union contends that the General Counsel's case the general welfare of the Local Union," are manifestly must fall because there is no evidence of intent to im- much greater than "ceremonial." properly influence employees or members of the Union Based on the considerations set out above, I find and by or on behalf of the Respondent by Elam. However, conclude that the Respondent violated Section 8(a)(2) this argument is without merit for such a showing is ir- and (1) of the Act by permitting its supervisor and agent relevant. Janesville Products Division, Amtel, 240 NLRB to continue to hold office as the president of the Union. 854, 860 (1979), and cases cited therein. Instead, the proper inquiry is whether or not there has been such a THE REMEDY mingling of supervisory and employee-representative functions as to deny the Respondent's employees rights The record in this case contains no evidence indicating under the Act to be represented in collective-bargaining that Elam the Respondent, or the Union has, in fact, co- matters by individuals who have a single-minded loyalty operated in such a way as to actually deny employees to their interests. Jeffrey Manufacturing Company, Screw rights. Additionally, there is no evidence that the Union Conveyor Division, 208 NLRB 75 (1974). The facts in this has been so infused with the Respondent's presence as to case demonstrate such a "mingling" of supervisory and justify a finding that the Union has been "dominated" by employee representative functions as to make the viola- the Respondent. If such evidence existed it would war- tion of the Act seem obvious. rant the revocation of the Union's certification. Abilene In light of the fact that Elam was the overseer, not Area Sheet Metal Contractors, 236 NLRB 1652 (1978). In- merely of the Respondent's employees, but also of the stead, the evidence here merely indicates supervisory Respondent's foremen, Elam must be found to be a participation in union affairs. 3 "high-level" supervisor, not a simple or low-level Under such circumstances including my consideration "master mechanic." Welsbach Electric Corporation, 236 of the fact that the Respondent has not complied with an NLRB 503 (1978). Further, his long and uninterrupted informal settlement agreement which must have con- tenure as superintendent for the Respondent's entire op- tained, at the least, a cease-and-desist provision, it is nec- erations in southeastern Washington belies any claim that essary to set aside the existing collective-bargaining Elam was no more than a "transitory" supervisor, typical agreement between the Respondent and the Union. 4 Bisso of the building and construction industry. Nassau and Towboat Company, Inc., 192 NLRB 885 (1971); Janesville Suffolk Contractors'Association, Inc., 118 NLRB 174, 184 Products Division, Amtel, supra Abilene Area Sheet Metal (1957); Detroit Association of Plumbing Contractors, 132 Contractors, supra. However, the evidence shows that the NLRB 658, 659 (1961). Union had an established relationship with the Respond- The duties of the president of a local union affiliated ent for some years before Elam's employment as a su- with the United Association of Journeymen and Appren- pervisor. The record evidence, moreover, affords no tices of the Plumbing and Pipe Fitting Industry of the basis for questioning the majority status of the union. United States and Canada are set forth in the latter's Thus, requiring that Elam, the supervisor, be separated constitution. Similarly, the constitution of the Union sets from the administration of the Union and participation in forth the duties of its president. The provisions of the its affairs, and requiring that the collective-bargaining said constitutions differ only slightly on this subject agreement be set aside, will suffice to remedy the 8(a)2) matter. Each provides for the president to preside over violation found herein.' More specifically, I do not find all meetings of the local union and to do so under Rob- ert's Rules of Order, though the International Union pro- I do not regard the evidence that Elam participated in the adjustment vides further that he do so in accord with commonsense. of grievances as a member of a committee for the Union as having suffi- Each constitution provides that the president of the local cient probative value to b tae any findingshe h g hn. 'I In light of the fact that the Union participated in the hearing herein union "shall have a general supervisory control over all mat- such a finding is warranted. ters pertaining to the general welfare of the Local Union." 'The General Counsel's statements of position regarding the remedy in (Emphasis supplied.) Finally, it is provided that the presi- this matter have been less than helpful to me. At the hearing I inquired of dent shall be an ex officio member of all committees; the lecebrgaing the General Counsel's position on whether or not the col lective-bargaining agreement between the parties should be set aside. She responded that, not having previously thought of the matter, she would 2 In this connection I have considered the Respondent's presettlement reserve comment and answer my inquiry in her brief. However, the brief conduct only as background evidence. See discussion Jake Schlegal, Jr., fails to answer this issue. Instead, it merely points out, accurately, that d/b/a Aurora and East Denver Trash Disposal, 218 NLRB 1, 9 (1975). Continued 612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 101.9(e)(2) of the Board's Statements of Procedure, local constitution provides that he should do so "with Series 8, as amended. World-Wide Press, Inc., 242 NLRB voice" but no vote, while the International Union's con- 346 (1979); Tompkins Motor Lines, Inc., 142 NLRB 1, 3 stitution provides that he shall be "over" all committees. (1963), enforcement denied on other grounds 337 F.2d Under these circumstances, it appears quite evident 325 (6th Cir. 1964); cf. Henry I. Siegel Co., Inc., 143 that prudent employees of the Respondent would, when NLRB 386, enfd. 328 F.2d 25 (2d Cir. 1964); United exercising their right to freely engage in union activities Dairy Co., 146 NLRB 187 (1964). without interference from their employer, experience Thus, I find and conclude that the General Counsel some degree of inward restraint. Before taking issue with should prevail on the threshold questions of whether or the views expressed by Elam in any of the workings of not the Respondent engaged in further unfair labor prac- the various committees of which he is necessarily a tices following approval of the settlement agreement, and member, any employee of the Respondent would think that those unfair labor practices are sufficient to warrant twice, for the duties of a union officer, vested with "gen- setting aside that agreement.2 eral supervisory control over all matters pertaining to 2. The Union contends that the General Counsel's case the general welfare of the Local Union," are manifestly must fall because there is no evidence of intent to im- much greater than "ceremonial." properly influence employees or members of the Union Based on the considerations set out above, I find and by or on behalf of the Respondent by Elam. However, conclude that the Respondent violated Section 8(a)(2) this argument is without merit for such a showing is ir- and (1) of the Act by permitting its supervisor and agent relevant. Janesville Products Division, Amtel, 240 NLRB to continue to hold office as the president of the Union. 854, 860 (1979), and cases cited therein. Instead, the proper inquiry is whether or not there has been such a THE REMEDY mingling of supervisory and employee-representative T r in t cs .s.. functions as to deny the Respondent's employees rights T h e a re c o r dt n et h n s c as e c o n t a , s n o ev U d en c e hasinfa cg under the Act to be represented in collective-bargaining ot h a t E l am d t h e Ra pway" 1 o r t h e Union has, in fact, co- matters by individuals who have a single-minded loyalty rpghsted An such a way as to actually deny employees to their interests. Jeffrey Manufacturing Company, Screw has bsee Additionally, tere is no evidence that the Union Conveyor Division, 208 NLRB 75 (1974). The facts in this jhas been so infused with the Respondent's presence as to case demonstrate such a "mingling" of supervisory and st l f y a fi n d in g t h at tb e U n lo n has been "dominated" by employee representative functions as to make the viola- th e Respondent. If such evidence existed it would war- tion of the Act seem obvious. r an t t h e revocation of the Union's certification. Abilene In light of the fact that Elam was the overseer, not A r ea S h eet M et al Contractors, 236 NLRB 1652 (1978). In- merely of the Respondent's employees, but also of the s t ead , t h e evidence here merely indicates supervisory Respondent's foremen, Elam must be found to be a participation in union affairs. 3 "high-level" supervisor, not a simple or low-level Under such circumstances including my consideration "master mechanic." Welsbach Electric Corporation, 236 o f t h e f a c t that the Respondent has not complied with an NLRB 503 (1978). Further, his long and uninterrupted informal settlement agreement which must have con- tenure as superintendent for the Respondent's entire op- tained, at the least, a cease-and-desist provision, it is nec- erations in southeastern Washington belies any claim that e ss a r y t o se t a s id e th e existing collective-bargaining Elam was no more than a "transitory" supervisor, typical agreement between the Respondent and the Union. 4 Bisso of the building and construction industry. Nassau and Towboat Company, Inc., 192 NLRB 885 (1971); Janesville Suffolk Contractors'Association, Inc., 118 NLRB 174, 184 Products Division, Amtel, supraw Abilene Area Sheet Metal (1957); Detroit Association of Plumbing Contractors, 132 Contractors. supra. However, the evidence shows that the NLRB 658, 659 (1961). Union had an established relationship with the Respond- The duties of the president of a local union affiliated ent for some years before Elam's employment as a su- with the United Association of Journeymen and Appren- pervisor. The record evidence, moreover, affords no tices of the Plumbing and Pipe Fitting Industry of the b a si s f o r questioning the majority status of the union. United States and Canada are set forth in the latter's Thus, requiring that Elam, the supervisor, be separated constitution. Similarly, the constitution of the Union sets from the administration of the Union and participation in forth the duties of its president. The provisions of the it s affairs, and requiring that the collective-bargaining said constitutions differ only slightly on this subject agreement be set aside, will suffice to remedy the 8(a)(2) matter. Each provides for the president to preside over violation found herein.' More specifically, I do not find all meetings of the local union and to do so under Rob- ert's Rules Of Order, though the International Union pro- I d o not regard the evidence that Elam participated in the adjustment vides further that he do so in accord with commonsense. of grievances as a member of a committee for the Union as having suffi- Each constitution provides that the president of the local cien' probative value to base any findings thereon. Each constitution provides that the president of the local ,,In light of the fact that the Union participated in the hearing herein union "shall have a general supervisory control over all mat- such a rinding is warranted. ters pertaining to the general welfare of the Local Union." 'The General Counsel's statements of position regarding the remedy in (Emphasis supplied.) Finally, it is provided that the presi- th is mat e r h av e be en les s than helpful to me. At the hearing I inquired of dent Shall be an ex off-lew member of all committees; the h e r regarding the General Counsel's position on whether or not the col- dent shall be'an ex off memer of all committees; the lective-bargaining agreement between the parties should be set aside. She responded that, not having previously thought of the matter, she would 2 In this connection I have considered the Respondent's presettlement reserve comment and answer my inquiry in her brief. However, the brief conduct only as background evidence. See discussion Jake Schlegai, Jr., fails to answer this issue. Instead, it merely points out, accurately, that d/b/a Aurora and East Denver Trash Disposal, 218 NLRB 1, 9 (1975). Continued 612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 101.9(e)(2) of the Board's Statements of Procedure, local constitution provides that he should do so "with Series 8, as amended. World-Wide Press, Inc., 242 NLRB voice" but no vote, while the International Union's con- 346 (1979); Tompkins Motor Lines, Inc., 142 NLRB 1, 3 stitution provides that he shall be "over" all committees. (1963), enforcement denied on other grounds 337 F.2d Under these circumstances, it appears quite evident 325 (6th Cir. 1964); cf. Henry I. Siegel Co., Inc., 143 that prudent employees of the Respondent would, when NLRB 386, enfd. 328 F.2d 25 (2d Cir. 1964); United exercising their right to freely engage in union activities Dairy Co., 146 NLRB 187 (1964). without interference from their employer, experience Thus, I find and conclude that the General Counsel some degree of inward restraint. Before taking issue with should prevail on the threshold questions of whether or the views expressed by Elam in any of the workings of not the Respondent engaged in further unfair labor prac- the various committees of which he is necessarily a tices following approval of the settlement agreement, and member, any employee of the Respondent would think that those unfair labor practices are sufficient to warrant twice, for the duties of a union officer, vested with "gen- setting aside that agreement. 2 eral supervisory control over all matters pertaining to 2. The Union contends that the General Counsel's case the general welfare of the Local Union," are manifestly must fall because there is no evidence of intent to im- much greater than "ceremonial." properly influence employees or members of the Union Based on the considerations set out above, I find and by or on behalf of the Respondent by Elam. However, conclude that the Respondent violated Section 8(a)(2) this argument is without merit for such a showing is ir- and (1) of the Act by permitting its supervisor and agent relevant. Janesville Products Division, Amtel, 240 NLRB to continue to hold office as the president of the Union. 854, 860 (1979), and cases cited therein. Instead, the proper inquiry is whether or not there has been such a THE REMEDY mingling of supervisory and employee-representative T r in t cs .s.. functions as to deny the Respondent's employees rights T h e a re c o r dt n et h n s c as e c o n t a , s n o ev U d en c e hasinfa cg under the Act to be represented in collective-bargaining ot h a t E l am d t h e Rinpscha a °r the Union has, in fact, co- matters by individuals who have a single-minded loyalty rpghsted A t such a way as to actually deny employees to their interests. Jeffrey Manufacturing Company, Screw hash be Additionally, tere is no evidence that the Union Conveyor Division, 208 NLRB 75 (1974). The facts in this jhas been so infused with the Respondent's presence as to case demonstrate such a "mingling" of supervisory and st l f y a fi n d in g t h at tb e U n lo n has been "dominated" by employee representative functions as to make the viola- th e Respondent. If such evidence existed it would war- tion of the Act seem obvious. r an t t h e revocation of the Union's certification. Abilene In light of the fact that Elam was the overseer, not A r ea S h eet M et al Contractors, 236 NLRB 1652 (1978). In- merely of the Respondent's employees, but also of the s t ead , t h e evidence here merely indicates supervisory Respondent's foremen, Elam must be found to be a participation in union affairs. 3 "high-level" supervisor, not a simple or low-level Under such circumstances including my consideration "master mechanic." Welsbach Electric Corporation, 236 o f t h e f a c t that the Respondent has not complied with an NLRB 503 (1978). Further, his long and uninterrupted informal settlement agreement which must have con- tenure as superintendent for the Respondent's entire op- tained, at the least, a cease-and-desist provision, it is nec- erations in southeastern Washington belies any claim that essa'r t o se t a s id e th e existing collective-bargaining Elam was no more than a "transitory" supervisor, typical agreement between the Respondent and the Union. 4 Bisso of the building and construction industry. Nassau and Towboat Company, Inc., 192 NLRB 885 (1971); Janesville Suffolk Contractors'Association, Inc., 118 NLRB 174, 184 Products Division, Amtel, supraw Abilene Area Sheet Metal (1957); Detroit Association of Plumbing Contractors, 132 Contractors. supra. However, the evidence shows that the NLRB 658, 659 (1961). Union had an established relationship with the Respond- The duties of the president of a local union affiliated ent for some years before Elam's employment as a su- with the United Association of Journeymen and Appren- pervisor. The record evidence, moreover, affords no tices of the Plumbing and Pipe Fitting Industry of the b a si s f o r questioning the majority status of the union. United States and Canada are set forth in the latter's Thus, requiring that Elam, the supervisor, be separated constitution. Similarly, the constitution of the Union sets from the administration of the Union and participation in forth the duties of its president. The provisions of the it s affairs, and requiring that the collective-bargaining said constitutions differ only slightly on this subject agreement be set aside, will suffice to remedy the 8(a)(2) matter. Each provides for the president to preside over violation found herein.' More specifically, I do not find all meetings of the local union and to do so under Rob- ert's Rules Of Order, though the International Union pro- I d o not regard the evidence that Elam participated in the adjustment vides further that he do so in accord with commonsense. of grievances as a member of a committee for the Union as having suffi- Each constitution provides that the president of the local cien' probative value to base any findings thereon. Each constitution provides that the president of the local ,,In light of the fact that the Union participated in the hearing herein union "shall have a general supervisory control over all mat- such a rinding is warranted. ters pertaining to the general welfare of the Local Union." 'The General Counsel's statements of position regarding the remedy in (Emphasis supplied.) Finally, it is provided that the presi- th is mat e r h av e be en les s than helpful to me. At the hearing I inquired of dent Shall be an ex off-lew member of all committees; the h e r regarding the General Counsel's position on whether or not the col- dent shall be'an ex off memer of all committees; the lective-bargaining agreement between the parties should be set aside. She responded that, not having previously thought of the matter, she would 2 In this connection I have considered the Respondent's presettlement reserve comment and answer my inquiry in her brief. However, the brief conduct only as background evidence. See discussion Jake Schlegal, Jr., fails to answer this issue. Instead, it merely points out, accurately, that d/b/a Aurora and East Denver Trash Disposal, 218 NLRB 1, 9 (1975). Continued 612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 101.9(e)(2) of the Board's Statements of Procedure, local constitution provides that he should do so "with Series 8, as amended. World-Wide Press, Inc., 242 NLRB voice" but no vote, while the International Union's con- 346 (1979); Tompkins Motor Lines, Inc., 142 NLRB 1, 3 stitution provides that he shall be "over" all committees. (1963), enforcement denied on other grounds 337 F.2d Under these circumstances, it appears quite evident 325 (6th Cir. 1964); cf. Henry I. Siegel Co., Inc., 143 that prudent employees of the Respondent would, when NLRB 386, enfd. 328 F.2d 25 (2d Cir. 1964); United exercising their right to freely engage in union activities Dairy Co., 146 NLRB 187 (1964). without interference from their employer, experience Thus, I find and conclude that the General Counsel some degree of inward restraint. Before taking issue with should prevail on the threshold questions of whether or the views expressed by Elam in any of the workings of not the Respondent engaged in further unfair labor prac- the various committees of which he is necessarily a tices following approval of the settlement agreement, and member, any employee of the Respondent would think that those unfair labor practices are sufficient to warrant twice, for the duties of a union officer, vested with "gen- setting aside that agreement.2 eral supervisory control over all matters pertaining to 2. The Union contends that the General Counsel's case the general welfare of the Local Union," are manifestly must fall because there is no evidence of intent to im- much greater than "ceremonial." properly influence employees or members of the Union Based on the considerations set out above, I find and by or on behalf of the Respondent by Elam. However, conclude that the Respondent violated Section 8(a)(2) this argument is without merit for such a showing is ir- and (1) of the Act by permitting its supervisor and agent relevant. Janesville Products Division, Amtel, 240 NLRB to continue to hold office as the president of the Union. 854, 860 (1979), and cases cited therein. Instead, the proper inquiry is whether or not there has been such a THE REMEDY mingling of supervisory and employee-representative T r in t cs .s.. functions as to deny the Respondent's employees rights T h e a re c o r dt n et h n s c as e c o n t a , s n o ev U d en c e hasinfa cg under the Act to be represented in collective-bargaining ot h a t E l am d t h e Rin p0 scha a °r the Union has, in fact, co- matters by individuals who have a single-minded loyalty rpghsted A t such a way as to actually deny employees to their interests. Jeffrey Manufacturing Company, Screw hash be Additionally, tere is no evidence that the Union Conveyor Division, 208 NLRB 75 (1974). The facts in this jhas been so infused with the Respondent's presence as to case demonstrate such a "mingling" of supervisory and st l f y a fi n d in g t h at tb e U n lo n has been "dominated" by employee representative functions as to make the viola- th e Respondent. If such evidence existed it would war- tion of the Act seem obvious. r an t t h e revocation of the Union's certification. Abilene In light of the fact that Elam was the overseer, not A r ea S h eet M et al Contractors, 236 NLRB 1652 (1978). In- merely of the Respondent's employees, but also of the s t ead , t h e evidence here merely indicates supervisory Respondent's foremen, Elam must be found to be a participation in union affairs. 3 "high-level" supervisor, not a simple or low-level Under such circumstances including my consideration "master mechanic." Welsbach Electric Corporation, 236 o f t h e f a c t that the Respondent has not complied with an NLRB 503 (1978). Further, his long and uninterrupted informal settlement agreement which must have con- tenure as superintendent for the Respondent's entire op- tained, at the least, a cease-and-desist provision, it is nec- erations in southeastern Washington belies any claim that e ss a r y t o se t a s id e th e existing collective-bargaining Elam was no more than a "transitory" supervisor, typical agreement between the Respondent and the Union. 4 Bisso of the building and construction industry. Nassau and Towboat Company, Inc., 192 NLRB 885 (1971); Janesville Suffolk Contractors'Association, Inc., 118 NLRB 174, 184 Products Division, Amtel, supraw Abilene Area Sheet Metal (1957); Detroit Association of Plumbing Contractors, 132 Contractors. supra. However, the evidence shows that the NLRB 658, 659 (1961). Union had an established relationship with the Respond- The duties of the president of a local union affiliated ent for some years before Elam's employment as a su- with the United Association of Journeymen and Appren- pervisor. The record evidence, moreover, affords no tices of the Plumbing and Pipe Fitting Industry of the b a si s f o r questioning the majority status of the union. United States and Canada are set forth in the latter's Thus, requiring that Elam, the supervisor, be separated constitution. Similarly, the constitution of the Union sets from the administration of the Union and participation in forth the duties of its president. The provisions of the it s affairs, and requiring that the collective-bargaining said constitutions differ only slightly on this subject agreement be set aside, will suffice to remedy the 8(a)(2) matter. Each provides for the president to preside over violation found herein.' More specifically, I do not find all meetings of the local union and to do so under Rob- ert's Rules Of Order, though the International Union pro- I d o not regard the evidence that Elam participated in the adjustment vides further that he do so in accord with commonsense. of grievances as a member of a committee for the Union as having suffi- Each constitution provides that the president of the local cien' probative value to base any findings thereon. Each constitution provides that the president of the local ,,In light of the fact that the Union participated in the hearing herein union "shall have a general supervisory control over all mat- such a rinding is warranted. ters pertaining to the general welfare of the Local Union." 'The General Counsel's statements of position regarding the remedy in (Emphasis supplied.) Finally, it is provided that the presi- th is mat e r h av e be en les s than helpful to me. At the hearing I inquired of dent Shall be an ex off-lew member of all committees; the h e r regarding the General Counsel's position on whether or not the col- dent shall be'an ex off memer of all committees; the lective-bargaining agreement between the parties should be set aside. She responded that, not having previously thought of the matter, she would 2 In this connection I have considered the Respondent's presettlement reserve comment and answer my inquiry in her brief. However, the brief conduct only as background evidence. See discussion Jake Schlegai, Jr., fails to answer this issue. Instead, it merely points out, accurately, that d/b/a Aurora and East Denver Trash Disposal, 218 NLRB 1, 9 (1975). Continued DITZLER MECHANICAL CONTRACTORS 613 it necessary that the Respondent withdraw and withhold tively through a representative of their choosing, and to recognition from the Union. Jeffrey Manufacturing Cor- engage in other concerted activities for the purposes of pany, supra. By setting aside the collective-bargaining collective bargaining or other mutual aid or protection, agreement between the parties, it should be expressly un- or to refrain from engaging in such activities, except to derstood that the Respondent is not thereby required to the extent permitted by Section 8(a)3) and Section 8(f) depart from, or vary, any of the substantive terms, condi- of the Act. tions, and benefits for employees currently in effect. Bisso 2. Take the following affirmative action necessary to Towboat Company, supra. effectuate the policies of the Act: (a) Post at its offices in Albany, Oregon, and in the tri- CONCLUSIONS OF LAW cities area of the State of Washington copies of the at- 1. The Respondent is an Employer engaged in com- tached notice marked "Appendix." 8 Copies of said merce and in operations affecting commerce within the notice, on forms provided by the Regional Director for meaning of Section 2(6) and (7) of the Act. Region 19, after being duly signed by the Respondent's 2. The Union is a labor organization within the mean- authorized representative shall be posted by the Re- ing of Section 2(5) of the Act. spondent immediately upon receipt thereof, and be main- 3. By permitting a supervisor to serve as the president tai n ed by it for 60 consecutive days thereafter, in con- of the Union, thereby necessarily involving him in the spicuouS places, including all places where notices to em- establishment of the Union's policies and procedures and ployees are customarily posted. Reasonable steps shall be requiring his participation in the affairs and meetings of taken by the Respondent to insure that the notices are the Union, the Respondent has interfered with the ad- not altered, defaced, or covered by any other material. ministration of the Union in violation of Section 8(a)(2) (b) Sign and return by mail to the Regional Director and (1) of the Act. for Region 19, immediately upon receipt from him, 4. The Respondent did not violate the Act in any copies of the attached notice, marked "Appendix," for manner other than as specified above." posting by the Union, should it desire to do so. (c) Notify the Regional Director for Region 19, in ORDER 7 writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. The Respondent, Ditzler Mechanical Contractors, st Inc., Albany, Oregon, its officers, agents, successors, and In the event that this Order is enforced by a Judgment of a United assigns, shall: States Court of Appeals, the words in the notice reading "Posted by 1. Cease and desist from: Order of the National Labor Relations Board" shall read "Posted Pursu- (a) Assisting and encouraging membership in Local ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." No. 598, United Association of Journeymen and Appren- tices of the Plumbing and Pipe Fitting Industry of the AP United States and Canada, AFL-CIO, by permitting any supervisor, as defined in Section 2(11) of the Act, to NOTICE To EMPLOYEES serve as the president of the labor organization.POSTED BY ORDER OF THE (b) In any like or related manner interfering with, re- NATIONAL LABOR RELATIONS BOARD straining, or coercing employees in the exercise of their An Agency of the United States Government rights to self-organization, to form a labor organization, to join or assist Local Union No. 598, United Association WE WILL NOT permit General Foreman and Su- of Journeymen and Apprentices of Plumbing and Pipe perintendent William "Billy" James Elam or any Fitting Industry of the United States and Canada, AFL- other supervisor to serve as a union officer or rep- CIO, or any other labor organization, to bargain collec- resentative. WE WILL NOT give effect to our current collec- there is no issue of "domination" involved in this case and states that the tive-bargaining agreement with Local 598, and WE General Counsel seeks the "usual remedies," making no effort to brief or WILL NOT change the wages and other conditions of argue the question of just what they may be. Instead, the General Coun- sel's brief goes on to state, "It should be further noted that this is not a employment under the contract. limited request and General Counsel further seeks any and all remedies WE WILL NOT unlawfully interfere with the oper- deemed necessary and appropriate by the Adminstrative Law Judge." ation of any union of your choice. ' All outstanding motions inconsistent with these Conclusions of Law WE WILL NOT in any like or related manner in- are hereby denied. 'In the event no exceptions are filed as provided by Sec. 102.46 of the terfere with, restrain, or coerce employees in the Rules and Regulations of the National Labor Relations Board, the find- exercise of their rights under Section 7 of the Act. ings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board andDITZLER MECHANICAL CONTRACTORS, become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes.INC. DITZLER MECHANICAL CONTRACTORS 613 it necessary that the Respondent withdraw and withhold tively through a representative of their choosing, and to recognition from the Union. Jeffrey Manufacturing Com- engage in other concerted activities for the purposes of pany, supra. By setting aside the collective-bargaining collective bargaining or other mutual aid or protection, agreement between the parties, it should be expressly un- or to refrain from engaging in such activities, except to derstood that the Respondent is not thereby required to the extent permitted by Section 8(a)3) and Section 8(f) depart from, or vary, any of the substantive terms, condi- of the Act. tions, and benefits for employees currently in effect. Bisso 2. Take the following affirmative action necessary to Towboat Company, supra effectuate the policies of the Act: (a) Post at its offices in Albany, Oregon, and in the tri- CONCLUSIONS OF LAW cities area of the State of Washington copies of the at- 1. The Respondent is an Employer engaged in com- tac h e d n o tic e marked "Appendix." 8 Copies of said merce and in operations affecting commerce within the n o tic e, o n fo r m s provided by the Regional Director for meaning of Section 2(6) and (7) of the Act. Region 19 , after being duly signed by the Respondent's 2. The Union is a labor organization within the mean- authorized representative, shall be posted by the Re- ing of Section 2(5) of the Act. spondent immediately upon receipt thereof, and be main- 3. By permitting a supervisor to serve as the president tain ed by it fo r 60 consecutive days thereafter, in con- of the Union, thereby necessarily involving him in the spicuous places, including all places where notices to em- establishment of the Union's policies and procedures and ployees are customarily posted. Reasonable steps shall be requiring his participation in the affairs and meetings of taken by the Respondent to insure that the notices are the Union, the Respondent has interfered with the ad- no t altered, defaced, or covered by any other material. ministration of the Union in violation of Section 8(a)(2) (b) Sign and return by mail to the Regional Director and (1) of the Act. fo r Region 19, immediately upon receipt from him, 4. The Respondent did not violate the Act in any copies o f t h e attached notice, marked "Appendix," for manner other than as specified above." posting by the Union, should it desire to do so. (c) Notify the Regional Director for Region 19, in ORDER 7 writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. The Respondent, Ditzler Mechanical Contractors, s t pa o mh Inc., Albany, Oregon, its officers, agents, successors, and , I the event that this Order is enforced by a Judgment of a United assigns, shall: States Court of Appeals, the words in the notice reading "Posted by 1. Cease and desist from: Order of the National Labor Relations Board" shall read "Posted Pursu- (a) Assisting and encouraging membership in Local ant t o a Judgment of the Uni ted States Court of A ppeals Enforcing an -,' '., -- . B . .. B " " .~~~~~~Order of the National Labor Relations Board." No. 598, United Association of Journeymen and Appren- tices of the Plumbing and Pipe Fitting Industry of thePPENIX United States and Canada, AFL-CIO, by permitting any supervisor, as defined in Section 2(11) of the Act, to NOTICE To EMPLOYEES serve as the president of the labor organization. POSTED BY ORDER OF THE (b) In any like or related manner interfering with, re- NATIONAL LABOR RELATIONS BOARD straining, or coercing employees in the exercise of their An Agency of the United States Government rights to self-organization, to form a labor organization, to join or assist Local Union No. 598, United Association WE WILL NOT permit General Foreman and Su- of Journeymen and Apprentices of Plumbing and Pipe perintendent William "Billy" James Elam or any Fitting Industry of the United States and Canada, AFL- other supervisor to serve as a union officer or rep- CIO, or any other labor organization, to bargain collec- resentative. WE WILL NOT give effect to our current collec- there is no issue of "domination" involved in this case and states that the tive-bargaining agreement with Local 598, and WE General Counsel seeks the "usual remedies," making no effort to brief or WILL NOT change the wages and Other conditions of argue the question of just what they may be. Instead, the General Coun- sel's brief goes on to state, "It should be further noted that this is not a employment under the contract. limited request and General Counsel further seeks any and all remedies WE WILL NOT unlawfully interfere with the oper- deemed necessary and appropriate by the Adminstrative Law Judge." ation of any union of your choice. I All outstanding motions inconsistent with these Conclusions of Law WE WILL NOT in any like or related manner in- are hereby denied. In the event no exceptions are filed as provided by Sec. 102.46 of the terfere with, restrain, or coerce employees in the Rules and Regulations of the National Labor Relations Board, the find- exercise of their rights Under Section 7 of the Act. ings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and DITZLER MECHANICAL CONTRACTORS, become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes.INC. DITZLER MECHANICAL CONTRACTORS 613 it necessary that the Respondent withdraw and withhold tively through a representative of their choosing, and to recognition from the Union. Jeffrey Manufacturing Com- engage in other concerted activities for the purposes of pany, supra. By setting aside the collective-bargaining collective bargaining or other mutual aid or protection, agreement between the parties, it should be expressly un- or to refrain from engaging in such activities, except to derstood that the Respondent is not thereby required to the extent permitted by Section 8(a)3) and Section 8(f) depart from, or vary, any of the substantive terms, condi- of the Act. tions, and benefits for employees currently in effect. Bisso 2. Take the following affirmative action necessary to Towboat Company, supra effectuate the policies of the Act: (a) Post at its offices in Albany, Oregon, and in the tri- CONCLUSIONS OF LAW cities area of the State of Washington copies of the at- 1. The Respondent is an Employer engaged in com- tac h e d n o tic e marked "Appendix." 8 Copies of said merce and in operations affecting commerce within the n o tic e, o n fo r m s provided by the Regional Director for meaning of Section 2(6) and (7) of the Act. Region 19 , a ft e r being duly signed by the Respondent's 2. The Union is a labor organization within the mean- authorized representative, shall be posted by the Re- ing of Section 2(5) of the Act. spondent immediately upon receipt thereof, and be main- 3. By permitting a supervisor to serve as the president tained by it for 60 consecutive days thereafter, in con- of the Union, thereby necessarily involving him in the spicuous places, including all places where notices to em- establishment of the Union's policies and procedures and ployees are customarily posted. Reasonable steps shall be requiring his participation in the affairs and meetings of taken by the Respondent to insure that the notices are the Union, the Respondent has interfered with the ad- no t alt e re d , d efaced, or c over ed by any o t h er material. ministration of the Union in violation of Section 8(a)(2) (b) Sign and return by mail to the Regional Director and (1) of the Act. fo r Region 19, immediately upon receipt from him, 4. The Respondent did not violate the Act in any copies o f t h e attached notice, marked "Appendix," for manner other than as specified above." posting by the Union, should it desire to do so. (c) Notify the Regional Director for Region 19, in ORDER 7 writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. The Respondent, Ditzler Mechanical Contractors, s t pa o mh Inc., Albany, Oregon, its officers, agents, successors, and , I the event that this Order is enforced by a Judgment of a United assigns, shall: States Court of Appeals, the words in the notice reading "Posted by 1. Cease and desist from: Order of the National Labor Relations Board" shall read "Posted Pursu- (a) Assisting and encouraging membership in Local ant t o a Judgment of the Uni ted States Court of A ppeals Enforcing an -,' '., -- . B . .. B " " .~~~~~~Order of the National Labor Relations Board." No. 598, United Association of Journeymen and Appren- tices of the Plumbing and Pipe Fitting Industry of thePPENIX United States and Canada, AFL-CIO, by permitting any supervisor, as defined in Section 2(11) of the Act, to NOTICE To EMPLOYEES serve as the president of the labor organization. POSTED BY ORDER OF THE (b) In any like or related manner interfering with, re- NATIONAL LABOR RELATIONS BOARD straining, or coercing employees in the exercise of their An Agency of the United States Government rights to self-organization, to form a labor organization, to join or assist Local Union No. 598, United Association WE WILL NOT permit General Foreman and Su- of Journeymen and Apprentices of Plumbing and Pipe perintendent William "Billy" James Elam or any Fitting Industry of the United States and Canada, AFL- other supervisor to serve as a union officer or rep- CIO, or any other labor organization, to bargain collec- resentative. WE WILL NOT give effect to our current collec- there is no issue of "domination" involved in this case and states that the tive-bargaining agreement with Local 598, and WE General Counsel seeks the "usual remedies," making no effort to brief or WILL NOT change the wages and Other conditions of argue the question of just what they may be. Instead, the General Coun- sel's brief goes on to state, "It should be further noted that this is not a employment under the contract. limited request and General Counsel further seeks any and all remedies WE WILL NOT unlawfully interfere with the oper- deemed necessary and appropriate by the Adminstrative Law Judge." ation of any union of your choice. I All outstanding motions inconsistent with these Conclusions of Law WE WILL NOT in any like or related manner in- are hereby denied. In the event no exceptions are filed as provided by Sec. 102.46 of the terfere with, restrain, or coerce employees in the Rules and Regulations of the National Labor Relations Board, the find- exercise of their rights Under Section 7 of the Act. ings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and DITZLER MECHANICAL CONTRACTORS, become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes.INC. DITZLER MECHANICAL CONTRACTORS 613 it necessary that the Respondent withdraw and withhold tively through a representative of their choosing, and to recognition from the Union. Jeffrey Manufacturing Com- engage in other concerted activities for the purposes of pany, supra. By setting aside the collective-bargaining collective bargaining or other mutual aid or protection, agreement between the parties, it should be expressly un- or to refrain from engaging in such activities, except to derstood that the Respondent is not thereby required to the extent permitted by Section 8(a)3) and Section 8(f) depart from, or vary, any of the substantive terms, condi- of the Act. tions, and benefits for employees currently in effect. Bisso 2. Take the following affirmative action necessary to Towboat Company, supra effectuate the policies of the Act: (a) Post at its offices in Albany, Oregon, and in the tri- CONCLUSIONS OF LAW cities area of the State of Washington copies of the at- 1. The Respondent is an Employer engaged in com- tac h e d n o tic e marked "Appendix." 8 Copies of said merce and in operations affecting commerce within the n o tic e, o n fo r m s provided by the Regional Director for meaning of Section 2(6) and (7) of the Act. Region 19 , after being duly signed by the Respondent's 2. The Union is a labor organization within the mean- authorized representative, shall be posted by the Re- ing of Section 2(5) of the Act. spondent immediately upon receipt thereof, and be main- 3. By permitting a supervisor to serve as the president tained by it for 60 consecutive days thereafter, in con- of the Union, thereby necessarily involving him in the spicuous places, including all places where notices to em- establishment of the Union's policies and procedures and ployees are customarily posted. Reasonable steps shall be requiring his participation in the affairs and meetings of taken by the Respondent to insure that the notices are the Union, the Respondent has interfered with the ad- no t alt e re d , d efaced, or c over ed by any o t h er m at eri al . ministration of the Union in violation of Section 8(a)(2) (b) Sign and return by mail to the Regional Director and (1) of the Act. fo r Region 19, immediately upon receipt from him, 4. The Respondent did not violate the Act in any copies o f t h e attached notice, marked "Appendix," for manner other than as specified above." posting by the Union, should it desire to do so. (c) Notify the Regional Director for Region 19, in ORDER 7 writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. The Respondent, Ditzler Mechanical Contractors, s t pa o mh Inc., Albany, Oregon, its officers, agents, successors, and , I the event that this Order is enforced by a Judgment of a United assigns, shall: States Court of Appeals, the words in the notice reading "Posted by 1. Cease and desist from: Order of the National Labor Relations Board" shall read "Posted Pursu- (a) Assisting and encouraging membership in Local ant t o a Judgment of the Uni ted States Court of A ppeals Enforcing an -,' '., -- . B . .. B " " .~~~~~~Order of the National Labor Relations Board." No. 598, United Association of Journeymen and Appren- tices of the Plumbing and Pipe Fitting Industry of thePPENIX United States and Canada, AFL-CIO, by permitting any supervisor, as defined in Section 2(11) of the Act, to NOTICE To EMPLOYEES serve as the president of the labor organization. POSTED BY ORDER OF THE (b) In any like or related manner interfering with, re- NATIONAL LABOR RELATIONS BOARD straining, or coercing employees in the exercise of their An Agency of the United States Government rights to self-organization, to form a labor organization, to join or assist Local Union No. 598, United Association WE WILL NOT permit General Foreman and Su- of Journeymen and Apprentices of Plumbing and Pipe perintendent William "Billy" James Elam or any Fitting Industry of the United States and Canada, AFL- other supervisor to serve as a union officer or rep- CIO, or any other labor organization, to bargain collec- resentative. WE WILL NOT give effect to our current collec- there is no issue of "domination" involved in this case and states that the tive-bargaining agreement with Local 598, and WE General Counsel seeks the "usual remedies," making no effort to brief or WILL NOT change the wages and Other conditions of argue the question of just what they may be. Instead, the General Coun- sel's brief goes on to state, "It should be further noted that this is not a employment under the contract. limited request and General Counsel further seeks any and all remedies WE WILL NOT unlawfully interfere with the oper- deemed necessary and appropriate by the Adminstrative Law Judge." ation of any union of your choice. I All outstanding motions inconsistent with these Conclusions of Law WE WILL NOT in any like or related manner in- are hereby denied. In the event no exceptions are filed as provided by Sec. 102.46 of the terfere with, restrain, or coerce employees in the Rules and Regulations of the National Labor Relations Board, the find- exercise of their rights Under Section 7 of the Act. ings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and DITZLER MECHANICAL CONTRACTORS, become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes.INC.