Automatic Sprinkler Corp. of America

401 319 NLRB No. 57 ‘‘AUTOMATIC’’ SPRINKLER CORP. 1 The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an admin- istrative law judge’s credibility resolutions unless the clear prepon- derance of all the relevant evidence convinces us that they are incor- rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. The date that the Respondent originally planned to complete the subcontracting of all sprinklerfitter labor work at sec. IV, A, par. 5, of the judge’s decision should be August 31, 1995. ‘‘Automatic’’ Sprinkler Corporation of America and Figgie International Inc., a Single or Joint Employer and Road Sprinkler Fitters Local Union No. 669 of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada ‘‘Automatic’’ Sprinkler Corporation of America and Figgie International Inc., a Single or Joint Employer and Pipe Fitters Local Union No. 120 of Cleveland, Ohio, United Association of Jour- neymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL–CIO ‘‘Automatic’’ Sprinkler Corporation of America and Figgie International Inc., a Single or Joint Employer and Road Sprinkler Fitters Local Union No. 692 of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada ‘‘Automatic’’ Sprinkler Corporation of America and Figgie International Inc., a Single or Joint Employer and United Association of Journey- men and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Union 536 ‘‘Automatic’’ Sprinkler Corporation of America and Figgie International Inc., a Single or Joint Employer and Sprinkler Fitters Local Union No. 542, affiliated with United Association of Journeymen & Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada ‘‘Automatic’’ Sprinkler Corporation of America and Figgie International Inc., a Single or Joint Employer and Sprinkler Fitters and Appren- tices Union Local No. 281, affiliated with United Association of Journeymen and Ap- prentices of the Plumbing and Pipefitting In- dustry of the United States and Canada ‘‘Automatic’’ Sprinkler Corporation of America and Figgie International Inc., a Single or Joint Employer and Sprinkler Fitters and Appren- tices Local Union 314 ‘‘Automatic’’ Sprinkler Corporation of America and Figgie International Inc., a Single or Joint Employer and Sprinkler Fitters and Appren- tices Local Union No. 699, UA, AFL–CIO ‘‘Automatic’’ Sprinkler Corporation of America and Figgie International Inc., a Single or Joint Employer and Sprinkler Fitters Local Union No. 696 of the United Association of Journey- men and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada ‘‘Automatic’’ Sprinkler Corporation of America and Figgie International Inc., a Single or Joint Employer and Sprinkler Fitters and Appren- tices Local Union No. 483 of the United Asso- ciation of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada ‘‘Automatic’’ Sprinkler Corporation of America and Figgie International Inc., a Single or Joint Employer and Sprinkler Fitters Local Union 676, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada ‘‘Automatic’’ Sprinkler Corporation of America and Figgie International Inc., a Single or Joint Employer and Sprinkler Fitters Local Union No. 709 of the United Association of Journey- men and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada. Cases 8–CA–26201, 8–CA–26471, 8– CA–26333, 8–CA–26454–1 (formerly 4–CA– 22747), 8–CA–26454–2 (formerly 5–CA–24283), 8–CA–26454–3 (formerly 6–CA–26399), 8–CA– 26454–4 (formerly 13–CA–32462), 8–CA–26454– 5 (formerly 17–CA–17319), 8–CA–26454–6 (for- merly 19–CA–23298), 8–CA–26454–7 (formerly 19–CA–19870), 8–CA–26454–8 (formerly 32– CA–13389), 8–CA–26454–9 (formerly 34–CA– 6556), and 8–CA–26454–10 (formerly 21–CA– 30069) October 25, 1995 DECISION AND ORDER BY CHAIRMAN GOULD AND MEMBERS COHEN AND TRUESDALE On December 30, 1994, Administrative Law Judge Claude R. Wolfe issued the attached decision. The Re- spondent filed exceptions and a supporting brief, the General Counsel filed a cross-exception, and the Gen- eral Counsel and the Union each filed an answering brief to the Respondent’s exceptions. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs, and has decided to affirm the judge’s rulings, findings,1 and 402 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 We also agree with the judge that restoration of the Respondent’s sprinklerfitting operations is an appropriate remedy based on the Re- spondent’s unlawful subcontracting of the work that employees rep- resented by the 12 Local Unions formerly performed. Although the judge noted, at fn. 13 of his decision, that the Respondent may intro- duce evidence at the compliance stage of this case to demonstrate that restoration of these operations is unduly burdensome, we find merit in the General Counsel’s and the Union’s argument that the judge erred by failing to provide that the Respondent can only present previously unavailable evidence in order to make this show- ing in compliance. See Compu-Net Communications, 315 NLRB 216 fn. 3 (1994). We will modify the judge’s order and notice. In so doing, we note that the Respondent chose not to litigate the restora- tion issue before the judge at the unfair labor practice hearing. 3 The other eight Locals with which the Respondent had a bargain- ing relationship, as discussed below, enjoyed 9(a) status. 4 We find that, in any event, an employer cannot discriminatorily terminate employees, even after an 8(f) contract expires. The expira- tion of an 8(f) contract simply privileges a withdrawal of recogni- tion, not a discriminatory discharge of employees. 5 Member Cohen agress that the subcontracting violated Sec. 8(a)(3), and therefore finds it unnecessary to pass on whether that subcontracting also violated Sec. 8(a)(5) of the Act. 6 Thus, the present case is clearly distinguishable from Oklahoma Fixture Co., 314 NLRB 958, 959–960 (1994), in which the Board found that the employer had no duty to bargain about its decision to subcontract electrical work as the employer had legitimate con- cerns about its legal liability and the risk of losing customers if the work was improperly done. Because labor costs were not a factor in that employer’s decision to subcontract such work, the Board con- cluded that the subcontracting decision there, unlike in this case, in- volved considerations of corporate strategy fundamental to preserva- tion of the enterprise that were outside the scope of mandatory bar- gaining. 7 In the absence of exceptions, we do not pass on whether the Re- spondent further violated Sec. 8(a)(5) by terminating the unit em- ployees represented by the four 8(f) Locals before any of their col- lective-bargaining agreements expired. conclusions and to adopt the recommended Order as modified.2 We adopt the judge’s finding that the Respondent violated Section 8(a)(3) of the Act by subcontracting the unit work and discriminatorily laying off the unit employees. In so concluding, we stress that in the Re- spondent’s internal document containing the sub- contracting plan titled ‘‘Pro Forma III–A’’ the Re- spondent stated that it expected to gain, inter alia, the following benefits from its subcontracting decision: Gain control of labor costs [emphasis in original] . . . Eliminate labor negotiations; Eliminate costs associated with union grievances . . . Allow ‘‘Automatic’’ to become competitive against non- union contractors. Thus, there is direct evidence here showing that the Respondent’s decision to subcontract the unit work was discriminatorily motivated as it sought to rid itself of union-represented employees. Regarding Locals 120, 542, 676, and 696 that had 8(f) bargaining status,3 we specifically note that the Respondent’s collective- bargaining agreements with these Locals had varying expiration dates and that, in each case, the agreements had not yet expired before the Respondent discharged the unit employees. Because the Respondent clearly was obligated under John Deklewa & Sons, 282 NLRB 1375 (1987), enfd. sub nom. Iron Workers Local 3 v. NLRB, 843 F.2d 770 (3d Cir. 1988), cert. denied 109 S.Ct. 222 (1988), to honor the terms of these 8(f) agreements until they expired, we find that the Re- spondent acted unlawfully in terminating these unit employees for antiunion considerations before expira- tion.4 We also agree with the judge that the Respondent violated Section 8(a)(5) by refusing to bargain with those eight Locals that had 9(a) bargaining status about the decision to subcontract unit work and the effects of that decision, as well as over successor collective- bargaining agreements.5 It is clear that the Respond- ent’s subcontracting decision was a mandatory subject of bargaining under Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203, 214 (1964), because the Re- spondent in effect substituted the subcontractors’ em- ployees for its own. The record discloses that the Re- spondent continues to install and maintain sprinkler systems and that labor costs, which the Local Unions had substantial authority to control, constituted the principal basis for the Respondent’s subcontracting de- cision.6 Furthermore, as the judge found, the Respond- ent did not bargain in good faith over this mandatory subject of bargaining as it presented the Local Unions with a fait accompli and then sought to have them en- gage in the futile act of bargaining about that decision. Yet, the most compelling proof of the Respondent’s bad-faith bargaining in this case is our finding above that the subcontracting decision was discriminatorily motivated. The Board has consistently held that an em- ployer’s subcontracting decision cannot be a legitimate entrepreneurial decision exempt from bargaining when, as here, antiunion considerations are at the heart of the alleged fundamental change in the direction of the cor- porate enterprise. See, e.g., Equitable Resources Explo- ration, 307 NLRB 730, 732–733 fn. 11 (1992).7 ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge as modified below and orders that the Respondent, ‘‘Automatic’’ Sprinkler Corporation of America and Figgie International Inc., a single or joint employer, Cleveland, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 2(a). ‘‘(a) Reinstate the subcontracted operations that em- ployees represented by Locals 669, 120, 692, 536, 542, 281, 314, 699, 696, 483, 676, and 709, formerly per- formed, unless it is shown at the compliance stage of 403 ‘‘AUTOMATIC’’ SPRINKLER CORP. this proceeding that it is unduly burdensome to rein- state those operations. 2. Substitute the attached notice for that of the ad- ministrative law judge. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT terminate employees in order to en- gage in nonunion subcontracting. WE WILL NOT unilaterally subcontract bargaining unit work. WE WILL NOT refuse to bargain with Local Unions 669, 692, 536, 281, 314, 699, 483, and 709 United As- sociation of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL–CIO concerning our decision and the effects thereof of subcontracting all work per- formed by employees represented by those Unions. WE WILL NOT refuse to bargain with Local Unions 669, 692, 536, 281, 314, 699, 483, and 708 concerning successor collective-bargaining agreements. WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL reinstate the subcontracted operations that employees represented by Locals 669, 120, 692, 536, 542, 281, 314, 699, 696, 483, 676, and 709 formerly performed, unless it is shown at the compliance stage of this proceeding that it is unduly burdensome to rein- state those operations. WE WILL offer reinstatement to all employees who were terminated as a result of our unlawful sub- contracting and WE WILL make them whole for any loss of earnings they suffered by reason of that unlaw- ful termination, with interest. WE WILL, on request, bargain with Local Unions 669, 692, 536, 281, 314, 699, 483, and 709 concerning the decision to subcontract and its effects on employ- ees, and for successor collective-bargaining agree- ments. WE WILL, on request, furnish Local 669 with infor- mation previously requested and relevant and reason- ably necessary to its function as a collective-bargaining representative of our sprinklerfitter employees. ‘‘AUTOMATIC’’ SPRINKLER CORPORA- TION OF AMERICA AND FIGGIE INTER- NATIONAL INC. Allen Binstock and Paul C. Lund, Esqs., for the General Counsel. Donald F. Woodcock and Paul Mancino, Esqs., for the Re- spondent Employers. William W. Osborne Jr., Esq., for the Charging Parties. DECISION STATEMENT OF THE CASE CLAUDE R. WOLFE, Administrative Law Judge. This con- solidated case was litigated before me in Cleveland, Ohio, on 12 days in September and October 1994 pursuant to charges filed and served1 and a second amended consolidated com- plaint issued on August 12, 1994. The General Counsel al- leges ‘‘Automatic’’ Sprinkler Corporation of America (ASCOA) and Figgie International Inc. (Figgie) (jointly re- ferred to as the Respondent) are a single employer or joint employers who have violated Section 8(a)(5), (3), and (1) of the National Labor Relations Act by constructing and imple- menting a plan to subcontract all work performed by em- ployees represented by the Unions involved herein without giving the Unions prior notice or opportunity to bargain on this decision and its effects, all in order to discourage union membership, and by refusing to furnish Locals 669 and 699 with certain information to which they were entitled. The Re- spondent denies it has violated the Act and proffers certain affirmative defenses. lllll 1 The charges and amended charges in this proceeding were filed and served on the dates set forth below after the designation of the local union of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL–CIO (United Associa- tion) which filed them. The case numbers (Case) in parentheses are the case numbers originally assigned to those charges. Case Local Filing date Service date Type of charge 8–CA–26201 669 3–4–94 3–7–94 initial 8–CA–26471 669 6–21–94 6–22–94 initial 8–CA–26333 120 4–28–94 4–29–94 initial 8–CA–26454–1 692 5–13–94 5–13–94 initial (4–CA–22747) 8–CA–26454–2 536 3–15–94 3–18–94 initial (5–CA–24283) 404 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD On the entire record, and after carefully considering the demeanor of the witnesses and the very able posthearing briefs of the parties, I make the following FINDINGS OF FACT I. BUSINESS OF ASCOA AND FIGGIE ASCOA is a division of Figgie, an Ohio corporation, with an office and place of business in Cleveland, Ohio, and has been engaged, among other things, in the installation, repair, maintenance, and service of fire sprinkler systems (sprinklerfitter work). During the 12 months preceding the issuance of the second amended consolidated complaint, ASCOA, in the course and conduct of its business oper- ations, purchased and received goods and services valued in excess of $50,000 directly from suppliers located outside the State of Ohio. At all times material to this proceeding, Figgie has been and is a corporation, and ASCOA and American La France are divisions of the Figgie corporation. Although ASCOA has its own offices, management, and supervision, ASCOA provides services for and makes sales to Figgie and other divisions of Figgie, and maintains its own personnel, all of which both ASCOA and Figgie concede to be the case, the record clearly shows that, although ASCOA preliminarily formulates and administers its own business practices and labor policy, that formulation and administration is subject to the approval of directors and officers of Figgie, who annually convene with ASCOA officers to jointly formulate policies and practices as they did with the decision to subcontract all of ASCOA’s sprinkler installation work that is at issue in this proceeding. Moreover, the assertion, which is uncon- tradicted by probative evidence, by ASCOA and Figgie in their answer to the second amended complaint that ASCOA has no separate ownership or directors is, in my view, a con- cession that Figgie controls the policies and practices of ASCOA. This is consistent with Figgie’s June 30, lllll Continued Case Local Filing date Service date Type of charge . . . 5–4–94 5–9–94 amended 8–CA–26454–3 542 5–10–94 5–10–94 initial (6–CA–26399) 6–16–94 . . . 6–16–94 6–16–94 amended 8–CA–26454–4 281 4–26–94 5–3–94 initial (13–CA–32462) . . . 5–26–94 6–9–94 amended 8–CA–26454–5 314 4–7–94 4–7–94 initial (17–CA–17319) 8–CA–26454–6 699 3–29–94 3–29–94 initial (19–CA–23298) 8–CA–26454–7 696 5–10–94 5–11–94 initial (22–CA–19870) 8–CA–26454–8 483 8–18–93 8–18–93 initial (32–CA–13389) . . . 4–8–94 4–8–94 amended 8–CA–26454–9 676 4–8–94 4–8–94 initial (34–CA–6556) . . . 5–10–94 5–11–94 1st amend . . . 5–17–94 5–19–94 2d amend 8–CA–26454– 10 709 5–18–94 5–19–94 initial (21–CA–30069) 1994 quarterly report to the Securities and Exchange Com- mission, which is a consolidated report of Figgie and its sub- sidiaries. In sum, Figgie and ASCOA are a single-integrated business enterprise controlled by Figgie. The complaint al- leges, Respondent in its answer admits, and I find that Figgie and ASCOA have been, at all times material to this proceed- ing, engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATIONS At all times material, Local Unions 669, 120, 692, 536, 542, 281, 314, 699, 696, 483, 676, and 709 (collectively called the Local Unions or individually referred to by their number) have been labor organizations within the meaning of Section 2(5) of the Act. All but Locals 120, 542, 676, and 696 enjoy the represent- ative status described in Section 9(a) of the Act as follows: Representatives designated or selected for the pur- poses of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representative of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment: Locals 120, 542, 676, and 696 were parties to agreements with Respondent entered into pursuant to Section 8(f) of the Act, which reads in relevant part: It shall not be an unfair labor practice under sub- sections (a) and (b) of this section for an employer en- gaged primarily in the building and construction indus- try to make an agreement covering employees engaged (or who, upon their employment, will be engaged) in the building and construction industry with a labor or- ganization of which building and construction employ- ees are members (not established, maintained, or as- sisted by any action defined in section 8(a) of this Act, as an unfair labor practice) because (1) the majority sta- tus of such labor organization has not been established under the provisions of section 9 of this Act to the making of such agreement. III. SUPERVISORS AND AGENTS At all times material to this proceeding, except as specifi- cally noted, the following named individuals held the posi- tions set forth opposite their names and have been super- visors for Figgie or ASCOA within the meaning of Section 2(11) of the Act and agents for Figgie or ASCOA within the meaning of Section 2(13) of the Act as specifically des- ignated opposite their names: Harry Figgie, Jr. Chairman and CEO Figgie International to 5–18– 94 David R. Gross Manager/Employee Relations Figgie International Inc. James Nelson Manager, Employee Benefits Figgie International Inc. Owen G. Stout President, ASCOA John J. Gullo, Jr. Director Human Resources 405 ‘‘AUTOMATIC’’ SPRINKLER CORP. 2 The facts here found are the result of a synthesis of the credited portions of the testimony, the exhibits, stipulations, and consideration of logical consistency and inherent probability. Although I will not in the course of this decision advert to all of the record testimony or documentary evidence, it has been weighed and considered. To the extent that testimony or other evidence not mentioned might ap- pear to weigh against the findings of fact, that evidence has not been disregarded but has been rejected as incredible, lacking in probative worth, surplusage, or irrelevant. ASCOA Richard Douglass Operations Manager-Cleveland Hub ASCOA Arthur D. O’Neill Operations Manager, ASCOA Baltimore Hub since 7–1–93 Phil Skufis Sales Manager, ASCOA Baltimore Hub Richard Butts Manager, ASCOA Kansas City Hub H. Ray Wilkerson Operations Manager, ASCOA Cleveland Hub until 1–16–94 District Service Manager, ASCOA Youngstown thereafter William Wales Project Manager, ASCOA Baltimore Hub Wade Sylvester Sales Manager, ASCOA Cleveland Hub to 1–1–94 District Manager, ASCOA Detroit thereafter Allen C. Sands Project Manager, ASCOA Donald Maupin District Service Supervisor, ASCOA Louisville Tony Iannarelli District Service Supervisor, ASCOA Boston until 6–30–94 Michael May Regional Superintendent until 7–1–93 Operations Manager, ASCOA Los Angeles Hub thereafter Roy Comer Contract Representative, ASCOA Los Angeles Hub from 7–1– 93 to 9–3–93 Dwight Bickler District Service Supervisor, ASCOA Kent, Washington, from 7–1– 93 to 2–11–94 Rick Waldo District Service Supervisor, ASCOA Kent, Washington, since 3– 16–94 Keith Millard District Service Representative, ASCOA Kent, Washington, from 11– 1–93 to 2–18–94 Larry Goeckner Superintendent, ASCOA Los Angeles Hub until 9–1–93 thereafter Project Manager, ASCOA Los Angeles Hub Len Bass Service Manager, ASCOA Los Angeles Hub IV. THE ALLEGED UNFAIR LABOR PRACTICES2 A. The Change in Operations The Respondent had successive collective-bargaining agreements covering its sprinklerfitter employees who were members of the Charging Locals and other local unions of the United Association for many years until the agreements were terminated in the course of the 1992–1994 events pres- ently before me. These agreements were between the Charg- ing Locals and local unions and the National Fire Sprinkler Association (NFSA), a multiemployer bargaining association who bargained with the unions on behalf of Respondent and its other employer members signatory to the NFSA contract. Respondent’s sprinklerfitter employees were primarily en- gaged in the installation, alteration, maintenance, repair, and service of fire control systems manufactured and sold by ASCOA. These employees also performed inspection work and made efforts to sell ASCOA’s products and related serv- ices. It is Respondent’s practice to hold annual meetings chaired by Figgie officers and participated in by officers and other representatives of Figgie and ASCOA for the purpose of re- viewing past company performances and planning action for the future. These deliberations result in ‘‘Hardcore’’ plans, which are in fact 5-year budget projection plans modified, updated, and extended yearly. Such a meeting was held in November 1992. The participants, Figgie’s and ASCOA’s of- ficers and representatives, agreed to a plan (the Neutral Plan) earlier developed by Owen Stout, ASCOA’s president, which provided ASCOA would become a general contractor and would subcontract out all sprinklerfitter work after its current collective-bargaining agreements with the locals unions rep- resenting its sprinklerfitters expired. Stout testified the transi- tion to general contractor status and the elimination of direct employment of sprinklerfitters should result in various bene- fits, including the elimination of negotiations with unions and the cost of grievances, the reduction of administrative labor costs, and the minimization of excessive labor costs on some contracts. According to Michael Siedler, ASCOA’s controller, it was calculated that the subcontracting of the sprinklerfitter work would result in a gross savings of about $3.7 million per year, which would be derived from the freedom from paying fringe benefits to the sprinklerfitters, a saving on leased vehi- cles of 45 percent, a saving of about $158,000 on road tools, and a reduction in administrative costs. His calculations did not include the estimation of savings from reduced labor rates. Siedler concedes, however, that no such analysis was presented or discussed at the 1992 Hardcore meeting, and the figures he recites, which include 1993, were but recently de- veloped by him. Respondent decided at the November 1992 meeting that its plan to be a general contractor would become effective in 406 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD January 1993 and subcontracting of all sprinklerfitter labor work would be completed by August 31, 1994. Although Respondent dubbed this new program the ‘‘Neu- tral Plan,’’ it would appear from the testimony of Respond- ent’s witnesses, notably President Stout, that Respondent’s primary concern was to increase its share of the fire protec- tion market by being free from the unions’ collective-bar- gaining agreements’ restrictions on subcontracting that for- bade Respondent to subcontract to nonunion firms, and, being thus freed, Respondent would penetrate the market share held by nonunion firms because it could then sub- contract to the lowest bidder, union or nonunion. Respond- ent’s officials had discussed the possibility of becoming a nonunion company in prior years, but had taken no steps to do so. Here they did. Respondent’s documents titled ‘‘Pro Forma III–A, B, and C,’’ prepared after the 1992 Hardcore meeting, which de- scribe its plans for 1993 and thereafter, set forth the opening of 22 new service locations to take place on the expiration of its labor contracts, and specifically notes in Pro Forma III–B that 11 of these locations ‘‘will open as Neutral (non- union) operations.’’ Pro Forma III–A in its first three pages is far more reveal- ing concerning Respondent’s intentions. Those pages are set forth below: PRO FORMA III–A NEUTRAL OPERATIONS PROJECT DESCRIPTION A project with the goal of modifying ‘‘Automatic’’ Sprinkler’s approach to providing for the labor content of its contracting business thereby positioning ‘‘Auto- matic’’ as a leading fire protection general contractor servicing both union and non-union markets within the fire protection industry at the expiration of the current union contract agreements. We must carry out this modification in such a man- ner so as to prevent labor union problems during the transition in order to maintain profitable market share of the union fire protection market. This change will provide us the following benefits: Gain control of labor costs on projects Minimizes the risk potential for labor cost over- runs on contracts Not signatory to any union contract, its pay de- mands and its work rules Eliminate labor negotiations Eliminate costs associated with union grievances Passes workers compensation and salary costs at- tributable to direct hire of labor force to subcontrac- tor Reduce vehicle costs Eliminate road tool costs Reduce Broadview Heights administration costs associated with union labor Allow ‘‘Automatic’’ to bid both union and non- union projects . . . . Allow ‘‘Automatic’’ to become competitive against non-union contractors Gives more focus on extras on each project Entrance into residential market Execution of this plan must be done with caution so as not to violate any term of existing union contracts and so as not to cause a work slow down by the union labor force on contracts in progress. ‘‘Automatic’’ will change its method of doing busi- ness from one of a fire protection contractor providing its own labor force to that of a fire protection general contractor whereby the labor requirements for contracts sold will be fulfilled through subcontractors who are ei- ther union or nonunion as required. ‘‘Automatic’’ is signatory to 20 labor union contracts with the last one expiring 8/31/95. Puerto Rico Local 669/821 not addressed as the union is possibly withdrawing from island. Existing contract has been extended to 12/31/92. The neutral plan will be implemented as follows: ‘‘Automatic’’ will change its focus on labor pro- curement beginning 1/4/93 to meet our goal of neu- tral operations. Notify individual unions and NFSA as appropriate of our intentions not to renew the contract. Seek out quotations for sub-contract labor from small union sprinkler companies for all new contract bids beginning 1/4/93. Identify ‘‘company-oriented’’ fitters who might set up union installation companies if ‘‘Automatic’’ will assist with set up No new contracts to be performed with in-house fitters after labor contract expiration dates. If current backlog completion date exceeds labor contract expiration—subcontract balance to new in- stallation company This plan will be completed on 8/31/95 as the last contract expires. At this point, ‘‘Automatic’’ can operate in all parts of the United States as a non-union contractor in areas where we can’t compete now because of our union af- filiation. ‘‘Automatic’’ could continue to subcontract to union labor companies on the jobs required. The total domestic sprinkler market is approximately $4.8 billion. The union segment is $2.2 billion and the non-union segment is $2.6 billion. As a neutral contractor (general contractor), ‘‘Auto- matic’’ can participate competitively in the total fire protection market. This is the way to grow the com- pany. We expect to almost double our contract volume by 1997. . . . . To do this we must restructure our organization to put more sales personnel into the new areas when we become neutral (non-union areas). We will begin this re-structuring in 1994 to be in place by 1/1/95. Expediting this would interfere with the efforts necessary to put the main ingredient of this plan in motion—developing sources to subcontract the labor. 407 ‘‘AUTOMATIC’’ SPRINKLER CORP. By letter of February 10, 1993, Stout timely withdrew ASCOA’s membership in NFSA. The following day, Feb- ruary 11, 1993, Stout advised the local unions representing ASCOA sprinklerfitters of ASCOA’s withdrawal from NFSA, and sent the following message to ASCOA’s district managers: By now you know that we withdrew from the NFSA. The attached letter has been sent to the local unions to notify them of our action. I need each of you to contact the Business Agent in your area and ask to sit down with them to discuss this change. Don’t wait for them to call you. Here is why we withdrew: Economics—We feel we can better utilize our money and efforts to grow our business. Growth—We feel the NFSA is not in tune with how bad the industry really is. We will be out of business unless we grow. NFSA membership limits our potential for this. Control—We want to control as much of our fu- ture as we can and not bea me-too contractor. Union Relationship—This will force us to work directly with the local unions for the benefit of both. We are not planning to be a non-union contractor. Please limit your discussions to these topics. Any- thing else is risky and could be harmful to ‘‘Auto- matic.’’ Thereafter, Respondent increased its subcontracting but ap- parently restricted it to union employers signatory to the unions’ collective-bargaining agreements with NFSA as re- quired by that (the NFSA) agreement, to which the Charging Locals and other unions are signatory. Respondent took pains to advise union representatives it was not going to sub- contract to nonunion employers. For example, Respondent ASCOA’s president, Stout, in a March 1993 confidential memo to ASCOA’s district managers related that he had told then Local 669 business manager Harold Simpson ‘‘We will subcontract/joint venture with only union companies. We do not plan to use non-union. We will work to the letter of our contracts.’’ Simpson agrees that Stout so advised him, and credibly adds that Stout emphasized Respondent would be signatory to a union agreement in future years. Simpson re- calls in an article for the May 1993 edition of the Local 669 newsletter that ‘‘the company has also informed us that it may go out of the installation business altogether. Whatever ‘‘‘Automatics’ true plan, we must be ever vigilant and ag- gressively defend our work.’’ This quotation does not estab- lish Local 669 then knew Respondent had decided to sub- contract all installation work and no longer employ persons represented by Local 669 for Respondent’s sprinklerfitter labor requirements. Respondent’s testimony from Stout and Gullo and the content of the Pro Formas shows it was Re- spondent’s plan to subcontract to unionized companies only when necessary. Respondent notified each Local Union as its contract ex- pired. Thereafter, the exchanges between the Charging Locals and Respondent varied. Local 669 Respondent sent the following letter to Local 669 on January 28, 1994: This is to serve notice that ‘‘Automatic’’ Sprinkler Corporation of America intends to terminate the Agreement presently in effect between it and your Union, effective with the termination dated March 31, 1994. You are further notified that ‘‘Automatic’’ Sprinkler Corporation of America has made a good- faith business decision to permanently and unequivo- cally alter the basic direction of its business whereby it will no longer employ persons represented by your Union in the installation, alteration, maintenance, re- pair and service of the ‘‘Automatic[’’] Sprinkler fire control systems. It is the intention of ‘‘Automatic’’ Sprinkler Corporation of America to implement that fundamental change in its business effective April 1, 1994. In the event that you desire to discuss this business decision and the effects thereof on members of your Union who are or were employed by ‘‘Auto- matic’’ Sprinkler Corporation of America, please give me a call. You may be assured the Company will negotiate in good faith with you concerning this business decision and its effects on those employees affected by the decision. Local 669 responded by letter of February 7, 1994 as follows: Dear Mr. Stout: In light of your letter of January 28, 1994, this is a request for information on behalf of Local 669 re- garding certain business decisions that ‘‘Automatic’’ (or its parent company) has, or may have made which would vitally affect bargaining unit members represented by Local 669: 1. If ‘‘Automatic’’ has made any company-wide or district-wide decision(s) to permanently sub- contract or otherwise transfer some or all of its oper- ations as of a certain date, what specific decision was made, when was the decision made, why was it made, and by whom? If Local 669 was given any of- ficial notice of this decision, please forward us a copy of the notice. Did ‘‘Automatic’’ offer to bar- gain with the Union regarding either the decision or its effects upon unit employees? If so, please de- scribe when such offer was made. 2. If ‘‘Automatic’’ made decision(s) to lay off a portion of the Local 669 bargaining unit, or, for that matter, the entire unit, please advise as to when the decision was made, and why it was made. Prior to January 28, 1994, was Local 669 given notice of and/or an opportunity to bargain with ‘‘Automatic’’ about this decision and/or its effect? 3. Has ‘‘Automatic’’ determined to close all or part of its installation operation at some time in the future? If so, when was the decision made and when does ‘‘Automatic’’ intend to close its installation op- erations? When was Local 669 notified? Did ‘‘Auto- matic’’ offer to bargain? 408 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4. Please forward to this office the following doc- umentary information: —any and all subcontract agreements, or joint venture agreements, or any other contracts or agree- ments by ‘‘Automatic’’ (and/or its parent) covering, in whole or in part, the transfer of, subcontracting joint venturing or sharing of bargaining unit work as described in Article 18 of our agreement; —corporate resolutions or other ‘‘Automatic’’ business records indicating when the decisions dis- cussed in paragraphs 1–3 above were made, and the reason(s) why they were made; and —any Company records indicating the potential effect upon unit employees of these decisions or any projected studies of cost savings to the Company as a consequence of some or all of these decisions. We need this information within fourteen (14) days. The Union’s legitimate need for this information should be obvious. Without it, we can not protect unit employ- ees from the effects of adverse business decisions by ‘‘Automatic.’’ The information will also be useful to Local 669 for negotiation of a new agreement, effective April 1, 1994. To the extent that ‘‘Automatic’’ has made some or all of the decisions discussed above, this letter will also constitute a demand that ‘‘Automatic’’ cease and desist from this conduct immediately and make whole af- fected unit employees, as well as a demand by the Union to bargain about the decision(s) and their effects upon represented employees. Respondent replied to Local 669 on February 15, 1994, by letter as follows, in pertinent part: As stated in our letter to you dated January 28, 1994, ‘‘Automatic’’ Sprinkler has made a good faith business decision to permanently and unequivocally alter the basic direction of our business whereby we will no longer employ persons represented by your Union in the installation, alteration, maintenance, repair or serv- ice of automatic fire control systems. In our letter dated January 28, 1994, we offered to negotiate in good faith with you concerning this busi- ness decision and its effects on those employees af- fected by the decision. Your February 7th correspondence requested the an- swers to certain specific questions with regard to the Company’s decision and seeks certain documents. I have prepared a draft response and am attempting to gather documents responsive to your request. Our legal counsel was tied up in negotiations last week out of town when I received your request and is out of the country until next week. I will ask him to review your request upon his return to the office to assist the Com- pany in complying with its bargaining obligations. Therefor, I wanted to inform you that the company will respond to your request as expeditiously as possible upon the return of our counsel. This reply was followed by another letter from Respondent to Local 669 dated March 8, 1994, reading: Following is a reply to your letter dated February 7, 1994. As stated in our letter to you dated January 28, 1994, ‘‘Automatic’’ Sprinkler has made a good faith business decision to has made a good faith business decision to permanently and unequivocally alter the basic direction of our business whereby we will no longer employ per- sons represented by your Union in the installation, al- teration, maintenance, repair or service of automatic fire control systems. We will sub-contract the labor needed to conduct the installation, alteration, maintenance, repair or service of automatic fire control systems to a contractor that has a collective bargaining agreement your Union, per Arti- cle 18 of the current collective bargaining agreement. In our letter to you dated January 28, 1994, we of- fered to negotiate in good faith with you concerning this business decision and its effects on those employ- ees affected by the decision. In approximately the Fall of 1992, we began to re- examine our manner of conducting business in the hopes of making the enterprise more competitive and thus more profitable. ‘‘Automatic’s’’ President, Owen Stout (‘‘Stout’’), concluded that the Company’s direc- tion and operations had to change to make these goals possible. He concluded that it would be more cost effi- cient for ‘‘Automatic’’ to cease providing its own labor force, in favor of becoming a general contractor which would acquire the labor force required for its contracts through subcontractors. Stout believed that smaller sub- contractors could be more competitive with their labor estimates. Stout, however, not wanting to alienate the Union nor wanting to violate the collective bargaining agreement, decided that the Company would sub- contract only with construction companies that were parties or signatory to labor agreements. In order to im- plement this plan, the Company decided that it would have to withdraw from NFSA and, furthermore, that it would not renew all of its labor contracts with the var- ious locals. Stout discussed the Company’s goals and the fun- damental change in the Company’s operations in early March 1993 with Vern Simpson, the Business Manager of Local 669 which was a party to a collective bargain- ing agreement with NFSA/‘‘Automatic’’ covering sprin- kler fitters throughout the Country wherever autono- mous Locals of the Internationals, had no jurisdiction. A memorandum concerning this meeting which sets forth the Company’s planned changes in operations was circulated to all of ‘‘Automatic’s’’ District Managers on March 8, 1993. ‘‘Automatic’’ took the first step in implementing this new operating plan in early February 1993 when it for- mally withdrew from NFSA. In a memorandum to all District Managers dated February 11, 1993, Stout ex- plained his reasons for the withdrawal (copy enclosed). Stout decided that the Company’s withdrawal from NFSA would allow it to work more closely with the Locals and therebyprepare them for ‘‘Automatic’s’’ up- coming changes in operations. Although ‘‘Automatic’’ would no longer be employing members of the Locals directly, it would be employing their members through 409 ‘‘AUTOMATIC’’ SPRINKLER CORP. 3 In March 1994, Local 669 commenced a series of requests for information on various items unrelated to the issues raised by Re- spondent’s January 28, 1994 letter to Local 669. The requests are not relevant to those issues and are therefore not here considered. subcontractors and therefore the Company desired a closer, mutually beneficial relationship with both the Locals and their members. ‘‘Automatic’’ has not re- joined NFSA since its withdrawal in February 1993. During approximately this same period of time, ‘‘Automatic’’ began formatting its subcontracting pro- cedures. The Company developed a ‘‘form’’ sub- contract agreement to be used in the purchase of sprin- kler fitter labor. The form agreement, among other things, required that the subcontractor be a party or sig- natory to a collective bargaining agreement. The con- tract also contained warranty, payment, insurance and liability provisions. The subcontract form, with attached documents, has come to be known as the ‘‘S Order’’ at ‘‘Automatic’’. The ‘‘S Order’’ was circulated to all of ‘‘Automatic’s’’ District Managers on June 29, 1993 (copy enclosed). In March 1993, ‘‘Automatic’’ began the next phase of its reorganization. In the period between March 31, 1993 and September 15, 1993, collective bargaining agreements between NFSA/‘‘Automatic’’ and Local 183 in Milwaukee, Local 483 in San Francisco, Local 709 in Los Angeles and Local 550 in Boston expired. By the time of the expiration dates of the contracts in those areas. ‘‘Automatic’’ had successfully transformed its operations in each area into that of a general con- tractor and, as a result, no longer employed members of these Locals. Instead, all of the Company’s labor needs were provided for by union subcontractors with the end result being mutually beneficial: ‘‘Automatic’’ had successfully reorganized and union members did not lose any work. Since May 20, 1993, ‘‘Automatic’’ has begun to bid all of its prospective contracts in Local 669’s jurisdic- tion as a general contractor with the intention of sub- contracting the labor requirements. Projects awarded to ‘‘Automatic’’ have already been or will soon be sub- contracted by ‘‘Automatic’’ in accordance with the sub- contracting provisions of the current agreement between it and Local 669. ‘‘Automatic’’ has taken all steps necessary to changes its operations from that of being a direct em- ployer of sprinkler fitters or other members of Local 669 to that of being a general contractor that sub- contracts for its labor. ‘‘Automatic’’ Sprinkler has not violated and is not violating any provision of the current collective bar- gaining agreement by subcontracting the labor on our projects. We will not cease and desist from implement- ing our business decision. Enclosed and listed below are all documents that we deem relevant. There are no Corporate resolutions nor similar documents which reflect this decision making process. 02–05–93—Internal memo about withdrawal from NFSA. 02–10–93—Letter to NFSA about withdrawing member- ship. 02–11–93—Letter to Figgie International concerning ‘‘Automatic’s’’ withdrawal from NFSA. 02–11–93—Form letter that was sent to all unions (in- cluding 669) concerning ‘‘Automatic’s’’ withdrawal from NFSA. 02–11–93—Memo to all District Managers advising them to meet with Business Agency to explain our business decision. 03–08–93—Memo to all District Managers concerning a meeting between ‘‘Automatic’’ and 669’s Business Manager, Vern Simpson. 04–05–93—Letter to 669 members from Vern Simpson, Business Manager, Local 669. 04–23–93—Memo to Calfee, Halter, & Griswold about Labor Subcontracting. 05–26–93—Memo to all District Managers transmitting copy of Procedure 8–2 on Subcontracting Labor. 06–28–93—Procedure 8–2 rewritten and revised as Pro- cedure 8–5, Subcontract Labor. 01–28–94—Letter to 669 concerning ‘‘Automatic’s’’ business decision. 02–07–94—Letter from 669 responding to ‘‘Automat- ic’s’’ 1–28–94 letter. 02–15–94—Letter to 669 with ‘‘Automatic’s’’ response to 2–7–94 letter. In the event that you desire to discuss this business decision and the effects thereof on members of your Union who are or were employed by ‘‘Automatic’’ Sprinkler Corporation of America, please give me a call. You may be assured the Company will negotiate in good faith with you concerning this business deci- sion and its effects on those employees affected by the decision.3 By letter of April 22, 1994, Local 669 requested Respond- ent to furnish, among other things, the information listed in the following questionnaire: QUESTIONNAIRE Please provide the following information for ‘‘Auto- matic’’ Sprinkler Corporation of America (‘‘Auto- matic’’), American LaFrance Fire Protection Company (‘‘American LaFrance’’), Figgie International (‘‘Figgie’’) and any other companies affiliated with those organizations for the time period January 1, 1991, unless otherwise stated: 1. The date and State of incorporation of each com- pany. 2. All past and present office addresses and tele- phone numbers of each company office and facility, and the dates thereof. 3. The office address and employment history (in- cluding job titles and responsibilities), for the period January 1, 1991 to date, of a) each present company of- ficer and/or director and b) each former company offi- cer and/or director who was employed at any time dur- ing that period. 4. The name and employment history (including job titles and responsibilities) of each current or former di- 410 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD rector, officer, supervisor, and/or employee of any of the companies who at any time since January 1, 1991 has been or was employed by any of the other compa- nies in any capacity. 5. The State or States in which each company has been and/or is qualified or registered to do business, and the dates the company has so qualified or reg- istered. 6. The names under which each company trades or does business, or has traded or done business. 7. The names and addresses of all persons, corpora- tions or other entities owning stock (and the percentage of their ownership) in each company as of January 1 of each year from 1991 to date. 8. The nature of the business of each company, in- cluding products, services, customers and locations of manufacturing, fabricating and/or sales facilities. 9. The name, title, employer and job duties of any persons who are, or who have been, responsible in any way for labor relations and/or personnel relations for each company, the period of time during which each of these persons was assigned these responsibilities, and each person’s employer during each such period of time. 10. The name, title, employer of each person who had, or has responsibility for hiring, firing and super- vising employees in each company, the period of time during which each of these persons was assigned these responsibilities, and each person’s employer during each such period of time. 11. Do the companies, jointly or in common, own, occupy, or lease real property? If so, the location of the real property and the terms of the lease. 12. Do the companies use or lease real property of any of the others? If so, the location of the real prop- erty and the terms of the lease. 13. Do the companies, jointly or in common, own, or lease facilities and/or equipment? If so, the type and location of these facilities and equipment and the terms of the lease or other agreement for use. 14. Do the companies lease or use facilities and/or equipment of any of the others? If so, the type and lo- cation of these facilities and equipment and the terms of the lease or other agreement for use. 15. Do the companies own, jointly or in common, bank accounts, notes, bonds and/or types of securities? If so, the type and monetary value of the bank account and/or security. real property? If so, the location of the real property and the terms of the lease. 16. The date, terms, and parties to each contract, commitment of understanding, whether oral or written, under which the companies have been and/or are jointly obligated to engage in business activity. 17. The date, terms and parties to each contract, commitment or understanding, whether oral or written, between the companies under which one of the compa- nies has been and/or is required or authorized to use the services, facilities, personnel, or equipment of the other company. 18. The date, terms, parties to and persons entering into each contract, commitment, or understanding, whether oral or written, between the companies. 19. The date, terms, parties to and persons entering into each contract, commitment, or understanding, whether oral or written, under which one of the compa- nies agreed to loan, sell and/or contribute equipment, services, money and/or any other things of value to the other company. 20. The date and substance of each bid submitted by one company for work to be performed in whole or in part by the other company. 21. The date and substance of each contract entered into by one company for work which was, or is being performed in whole or in part by the other company. 22. The identity of each person or entity that guaran- teed or bonded the performance of each contract en- tered into by any of the above-named companies. 23. The name, effective, dates, terms and class of eli- gible employees, supervisors, officers and/or directors of each health, life insurance, pension, incentive, stock option, retirement and/or similar benefit plan offered by each company and whether employees, supervisors, of- ficers and/or directors of each health, life insurance, pension, incentive, stock option, retirement and/or simi- lar benefit plan offered by each company and whether employees, supervisors, officers and/or directors of one company participate in, or are eligible to participate in the plan of another company. 24. The nature and terms of any lines of credit, re- volving credit or other credit arrangements offered by one company to the other company, the dates on which such credit was extended, the amount of credit ex- tended, and the parties to each extension of credit. 25. The nature and amount of indebtedness owned by each company to any of the other companies on Jan- uary 1 of each year from 1991 to date. 26. The dates, participants and substance of each meeting, conference and/or discussion attended by one or more shareholders, directors, officers, supervisors and/or employees of Automatic and/or Figgie at which the formation and/or function of American LaFrance was discussed. 27. Copies of those portions of all documents, in- cluding but not limited to correspondence, memoranda, notes, and minutes, which refer, directly or indirectly, to the formation, dissolution, and/or function of Amer- ican LaFrance. 28. Identify the banking institution, branch location, and account number of each company’s bank account and payroll accounts. 29. Identify where and by whom each company’s ac- counting, corporate and other business records are kept. 30. Who prepares the payroll and tax returns for each company? 31. Provide each company’s business license number for each state where it does business. 32. Provide the carrier and policy number for each company’s workers’ compensation insurance and health insurance. 33. Provide each company’s taxpayer identification number. 34. Provide the name, social security number, date of hire, wage and fringe rates for each employee of Amer- 411 ‘‘AUTOMATIC’’ SPRINKLER CORP. 4 NLRB v. Acme Industrial Co., 385 U.S. 432 (1967); NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956). ican LaFrance that has performed or that is performing bargaining unit work, since January 1, 1991. That same day, John Gullo, Respondent’s director of human resources forwarded a copy of Pro Forma III–A to Local 669. Gullo is credited that he had not previously furnished Local 669 the document because he was unaware of the doc- ument’s existence. This is not implausible given the fact it was prepared in limited copies and distributed to a very few high-level officials before Gullo entered his position as direc- tor of human resources. Tommy Preuett, Trustee of Local 669, responded to Gullo’s April 22, 1994 submission on May 11, 1994, as fol- lows: In reply to your letter of April 22, 1994 we seriously doubt that you have provided all of the information re- quested by Local 669. No substantive response has been received with regard to the Union’s request dated April 22, 1994 having to do with American LaFrance. We also request that you re-review your files to see if any other responsive documents have been ‘‘inadvert- ently overlooked.’’ With respect to the newly provided document, ‘‘PRO-FORMA III–A,’’ is it a complete document? When was it prepared and by whom? Were there PRO- FORMA’s I or II or III–B? What specific actions have been taken by ‘‘Automatic’’ and/or Figgie International, to achieve the goals and/or objectives set forth in the documents that you have provided us with, including PRO FORMA III–A? Any additional documents regarding the ‘‘Neutral Plan’’ in your files or in those of Figgie International are requested. Thank you for your cooperation. This moved Gullo to respond as follows on May 19, 1994: Reference: Your letter dated 05–11–94 Dear Mr. Preuett: We have responded to your letter dated 04–22–94, via our letter dated 04–29–94. In our letter, we an- swered your questions regarding American LaFrance Fire Protection (a business segment of Interstate Engi- neering, a division of Figgie International) and included a response to your questionnaire. In your letter of 05– 11–94, what specifically is it that you are alleging we did not respond to? There is no need for me to AGAIN re-review our files for any documents. I stated in my April 22, 1994 letter to you that I had already done this. That is how I located the document titled ‘‘PRO-FORMA III–A, NEUTRAL OPERATIONS’’. Your request that I AGAIN review documents and files already reviewed is burdensome and I believe an attempt by you to waste my time and resources. Regarding the document ‘‘PRO-FORMA III–A, NEUTRAL OPERATIONS’’ it is a complete document. The only part of the document that I did not provide to you is a Profit and Loss Summary due to the Neutral Operations Plan, for the years 1993 through 1997. This document contains confidential and proprietary financial information, which you have no need of, nor right to. The document ‘‘PRO-FORMA III–A,’’ was prepared in the November 1992 by the President and Controller of ‘‘Automatic’’ Sprinkler. ‘‘PRO-FORMA III’’ is just a numbering scheme de- veloped by Figgie International for identifying projects within the divisions. The number scheme is as follows: PRO-FORMA I—These are projects that involved the consulting firm of Boston Consulting Group. ‘‘Automatic’’ Sprinkler had no such projects. PRO-FORMA II—These are projects that in- volved the consulting firm of DeLoitte & Touche. ‘‘Automatic’’ Sprinkler had no such projects. PRO-FORMA III—These are projects that were being handled solely by the given division. ‘‘Auto- matic’’ Sprinkler had no three projects: PRO FORMA III-A, Neutral Operations Plan; PRO FORMA III–B, Service Operations Plan; and PRO FORMA III–C, International Expansion Plan. PRO FORMA III–B and C are not related to any union nor labor relations and are therefore, not provided to you. PRO-FORMA IV—These are projects that in- volved capital expenditures, ‘‘Automatic’’ Sprinkler had no such projects. Regarding your question about ‘‘What specific ac- tions have been taken by ‘‘Automatic’’. . . to achieve the goals and/or objectives set forth. . .’’, I suggest you re-read all the correspondence and information we have been supplying to you. The correspondences and information state what actions ‘‘Automatic’’ has and is taking. Please advise if you are available to meet and dis- cuss the terms and conditions of a unit of employees restricted to welders at the Monroe, Indiana fabrication shop of ‘‘Automatic’’ Sprinkler and whether you wish to meet to discuss the specific aspects of the ‘‘Auto- matic’’ business plan which are appropriate for pur- poses of collective bargaining. Local 669’s above-noted requests for information to ASCOA are reasonably related to Local 669’s function as a collective-bargaining representative and to union contract en- forcement and must therefore be produced.4 I am inclined to agree with Respondent that it had in considerable part re- sponded to Local 669’s requests referred to in the complaint and detailed above, but the refusal to furnish Pro Formas III– B and C, which are part of the ‘‘Neutral plan’’ and thus of use to Local 669 in evaluating the situation confronting it, was an impermissible refusal to furnish relevant information. I have noted that Local 669, simultaneously with these re- quests, was asking for information on various and sundry other matters, all of which seemed to have been appro- priately replied to. Thereafter, Local 669 and Respondent continued to ex- change letters concerning Respondent’s disposition of its sprinklerfitters. The Respondent requested negotiations, but 412 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD none took place. Although the letters of Respondent to the various Charging Locals proposed bargaining on Respond- ent’s decision to subcontract all the collective-bargaining unit’s work and its effects on union member employees, it is absolutely clear from the many statements and letters of Respondent, as well as its answers to complaints issued, that Respondent always took the position its decision was irrev- ocable and not a bargainable issue. Respondent did, however, offer to bargain over the effects of its action. This was not acceptable to Local 669 or any of the other Charging Locals, thus the matter came before me for trial. Local 120 ASCOA President Owen Stout directed the following letter to Lawrence Smith, financial secretary-treasurer of Local 120, on January 28, 1994: This is to serve notice that ‘‘Automatic’’ Sprinkler Corporation of America intends to terminate the Agree- ment presently between it and your Union, effective with the termination dated April 15, 1994. You are fur- ther notified that ‘‘Automatic’’ Sprinkler Corporation of America has made a good-faith business decision to permanently and unequivocally alter the basic direction of its business whereby it will no longer employ per- sons represented by your Union in the installation, al- teration, maintenance, repair and service of the ‘‘Auto- matic’’ Sprinkler fire control systems. It is the intention of ‘‘Automatic’’ Sprinkler Corporation of America to implement that fundamental change in its business ef- fective April 1, 1994. In the event that you desire to discuss this business decision and the effects thereof on members of your Union who are or were employed by ‘‘Automatic’’ Sprinkler Corporation of America, please give me a call. You may be assured the Company will negotiate in good faith with you concerning this busi- ness decision and its effects on those employees af- fected by the decision. Smith replied to Stout’s letter on February 7, 1994, as fol- lows: Pursuant to the provisions of the Labor Management Relations Act, as amended, and Article XVII, of the ex- isting labor agreement with this Union, you are hereby notified that the Union wishes to discuss with you the renewal, with modifications of our existing agreement, effective as of May 1, 1994. If renewal of the labor agreement or a new agreement is not entered into by that date, this constitutes notice that the Union reserves the right to take such legal action as the law permits. This does not constitute an intent to hereby terminate the existing Welfare and Pension Plans established by Employer contributions pursuant to separate agreements and declarations of trust. The Union offers to meet and confer with you for the purpose of discussing these modifications, kindly acknowledge receipt of this communication indicating a time and place for said meeting. ASCOA Director of Human Resources John Gullo replied to Smith’s letter on February 15, 1994, as follows: In reply to your February 7, 1994 letter offering to meet and confer with us for the purpose of discussing modifications to the collective bargaining agreement, we refer you to our letter dated January 28, 1994, in which we advised you of the Company’s intention to terminate the agreement effective with its termination date. As stated in our letter to you dated January 28, 1994, ‘‘Automatic’’ Sprinkler has made a good faith business decision to permanently and unequivocally alter the basic direction of our business whereby we will no longer employ persons represented by your Union in the installation, alteration, maintenance, repair or serv- ice of automatic fire control systems. In our letter dated January 28, 1994, we offered to negotiate in good faith with you concerning this busi- ness decision and its effects on those employees af- fected by the decision. Our legal counsel is out of town until next week. When he returns, we will contact you regarding a time and place to meet to discuss the effects our business de- cision will have on those employees affected by the de- cision. Thereafter, representatives of Respondent and Local 120 met on March 29, 1994, and discussed a contract termination agreement. In April 1994, their lawyers exchanged drafts of such an agreement, but no such agreement acceptable to both parties was reached. Local 692 Respondent sent the same January 28, 1994 letter to Local 692 as it did to Local 120, with the single exception being a contract termination date of April 30, 1995. John Gallagher, the business manager of Local 692, credibly testifies this was the first notice he received from ASCOA with respect to the information the notice contained regarding ASCOA’s termination of its contract agreement with Local 692 and that ASCOA would no longer employ members of Local 692 to do its sprinklerfitter work (there is no mention of subcontracting in the letter). He recalls, how- ever, that Respondent did subcontract two jobs in February 1994, to two contractors signatory to the Local 692 collec- tive-bargaining agreement. Local 536 After receiving the same January 28, 1994 letter with the correct contract expiration date of May 31, 1994, for Local 536 Robert Fique, the business manager and financial sec- retary-treasurer of Local 536, sent a letter to Harry Figgie Jr., chairman of the board of Figgie International, but did not get a reply from him. ASCOA did, however, send him a letter requesting negotiations. Fique in his response agreed to this request. Respondent in turn sent Fique another letter, this time confirming a negotiations’ meeting date of April 28, 1994. He is credited that this was the first time Respondent told him of its decision not to use Local 536’s members for its sprinklerwork. Fique met with Respondent’s attorney, Donald Woodcock, ASCOA’s director of human resources, Gullo, and ASCOA’s Baltimore district manager, Arthur D. O’Neil on April 28, 1994, at Respondent’s Baltimore office. Fique insisted Re- 413 ‘‘AUTOMATIC’’ SPRINKLER CORP. spondent restore his union’s collective-bargaining unit before any negotiations begin. All but 2 of the 14 Local 536 mem- bers employed by ASCOA had by then been laid off. Re- spondent, by Attorney Woodcock, took the position it did not have to reinstate the laid-off employees. Presented with a contract termination agreement from Attorney Woodcock, Fique refused to sign it. The meeting ended with the parties maintaining the same positions they started with. There have been no further negotiations between Local 536 and Re- spondent. Local 542 Ralph Boss, business manager of Local 542, also received Respondent’s January 28, 1994 letter, informing him that Re- spondent was going to terminate its contract agreement with Local 542 upon expiration of their contract. Local 542’s con- tract expiration date was June 30, 1994. Boss called ASCOA president Owen Stout and asked for an explanation why Re- spondent planned to terminate the agreement. Stout told him Respondent’s new plan was a business decision. On April 5, 1994, Personnel Director Gullo wrote Boss advising his (Gullo’s) letter of January 28, 1994, was notice to open ne- gotiations regarding Respondent’s ‘‘business decision and the effects thereof on your members.’’ As I have heretofore noted, this language is misleading because Respondent had always regarded its decision to terminate its contract agree- ments with all the unions to be final and not subject to nego- tiating. All Respondent was really offering, as its contacts with Local 542 and the other locals demonstrate, was a con- tract termination agreement and effects bargaining. Boss and Jack Braun, a member of the Local 542 negotiat- ing committee, met with ASCOA human resources director, Gullo, Respondent’s attorney, Woodcock, and Figgie’s man- ager of employee relations, David R. Gross, on May 2, 1994, at the Union’s office. Boss was presented with a contract ter- mination agreement which, like that presented to the other affected Locals, proposed (1) termination of the collective- bargaining relationship, as of June 30, 1994, (2) continued recognition of the Union until all bargaining unit members were terminated, (3) continuance of employee benefit pro- grams in accordance with the terms of the existing contract, and (4) good-faith efforts by Respondent to secure the af- fected employees employment elsewhere with Respondent’s subcontractors. Boss advised he would forward the document to his lawyer. The termination agreement was never agreed to. When Boss inquired if subcontracting would be confined to union contractors, Attorney Woodcock replied it would not. There was no change in Respondent’s position, nor were there any agreements reached between the parties. Local 281 Thomas Collins, business manager of Local 281, received the same January 28, 1994 letter except for the contract ter- mination date, which was May 31, 1994 for his union. He is credited that during a one-on-one meeting with ASCOA President Owen Stout on February 7, 1994, Stout confirmed ASCOA would subcontract its sprinklerfitter work. Business Manager Collins and his legal counsel met with Respondent’s Representatives Gullo, Gross, and Woodcock on April 27, 1994. He refused to sign the contract termi- nation agreement Attorney Woodcock presented to him. He was advised, as were the others present, that Respondent had no plans to sign any new collective-bargaining agreement and would be subcontracting its sprinklerfitter labor work. Collins urged that Respondent consider the Union’s new agreement with NFSA that was about to be completed and would permit employer subcontracting. Respondent agreed to take a look at the agreement Local 281 would reach with NFSA. Collins agreed to submit the successor agreement to Respondent for consideration on its completion, and subse- quently did so. There was no response from Respondent’s representatives after Collins sent the NFSA contract to them for review. There were no further meetings of Local 281 and Respondent on the matter. Local 314 The January 28, 1994 letter to Local 314 was the same as the others except for a contract expiration date of June 30, 1994. According to Michael Poston, the business manager of Local 314, Respondent’s contract with his local had an Ever- green clause and rolled over and therefore did not expire. I need not decide this issue. Poston states the January 28, 1994 letter was the first notification he had received that Respond- ent was not intending to use members of Local 314 to do its sprinklerfitter work. He next received an April 5, 1994, letter from Gullo purporting to be a notice to open negotia- tions on Respondent’s business decision to permanently ter- minate its contract agreement with his union and its effects on members of Local 314. After some communications be- tween Gullo and Poston concerning a meeting date, Local 314’s attorney advised Gullo by FAX on April 28, 1994, that the Union did not recognize the legality of Respondent’s business decision and that a condition precedent to effects bargaining would be the restoration of the status quo ante. That ended the communications between the two parties. Local 699 Stout’s January 28, 1994 letter to Local 699, showing a contract termination date of June 30, 1995, drew a response from Local 699’s attorney requesting discussion of the Re- spondent’s decision and its effect on Respondent’s Local 699 member employees. There were no further communications between the parties according to Donald Ellefson, business manager of Local 699. Local 696 After receiving ASCOA’s President Stout’s January 28, 1994 letter, which noted a contract expiration date of June 30, 1994, for Local 696, a meeting was scheduled. Richard Hodavance, business manager of Local 696, two business agents of the Local, and its attorney met with Respondent’s representatives Gullo and Gross, and Respondent’s attorney Woodcock on May 12, 1994. After Attorney Woodcock ex- plained Respondent’s decision to subcontract sprinklerfitter labor, Hodavance asked if Respondent’s subcontracting would be limited to union contractors. Attorney Woodcock’s response was that Respondent would not do so, but would subcontract to reputable contractors. Local 696’s attorney asked if Respondent would enter into a collective-bargaining agreement requiring Respondent’s subcontracting be to con- tractors that are Local 696 signatories. Respondent declined to so do. Attorney Wodcock suggested ASCOA might be 414 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD amenable to project agreements. Hodavance stated Local 696 had not and would not enter into project agreements. To this statement Woodcock replied that if that was the case, ASCOA would not employ any Local 696 employees and would subcontract labor from other contractors. There was some discussion of severance pay for members of Local 696 employed by ASCOA. No agreement was reached on this or other substantive matters. Local 483 Local 483’s contract agreement with ASCOA expired Au- gust 1, 1993. Respondent, on July 30, 1993, laid off all of its employees in the collective-bargaining unit represented by Local 483, and refused to negotiate a successor agreement with the Local. Nevertheless, ASCOA President Stout sent the following communications to Local 483, which suggest Respondent considered itself bound to Local 483 by a subse- quent extension agreement between Local 483 and Castle Sprinkler Company. November 28, 1993 Mr. Lloyd C. Barton Business Manager Sprinkler Fitters & Apprentices Local 483 23314 Cabot Boulevard Hayward, CA 94545 RE: ‘‘Automatic’’ Sprinkler Corporation of America Dear Mr. Barton: As of July 1, 1993, ‘‘Automatic’’ Sprinkler Corpora- tion of America had entered into a joint-employment relationship with Castle Sprinkler Company. Castle si- multaneously offered employment to all ‘‘Automatic’’ fitters employed at that time for which there was avail- able work. On behalf of the joint-employment relation- ship, Castle Sprinkler Company has since entered into an extension of the collective bargaining agreement with Local 483 that it and ‘‘Automatic’’ were signatory to. It seems to me that that collective bargaining agree- ment is in full force and effect as to ‘‘Automatic.’’ In- asmuch as ‘‘Automatic’’ Sprinkler Corporation of America is deemed a signatory by virtue of the actions of its joint-employer to that contract, then the union is also bound to the same terms and conditions with ‘‘Automatic.’’ In the event that you desire to discuss this joint em- ployment relationship and the effect it has had on ‘‘Automatic’s’’ former employees and your union, please feel free to give me a call. ‘‘Automatic’’ Sprinkler Corporation of America Very truly yours, Owen G. Stout President and: November 30, 1993 Mr. Lloyd C. Barton Business Manager Sprinkler Fitters & Apprentices Local 483 23314 Cabot Boulevard Hayward, CA 94545 RE: Picket Line at Dixon University, Harrisburg, PA Job Site Dear Mr. Barton: We have been notified that your local has established a picket line at our jobsite in Harrisburg, PA. The picket line and strike is in violation of the agree- ment between ‘‘Automatic’’ Sprinkler Corporation of America—Castle Sprinkler Company and your local. As stated in our letter to you dated November 29, 1993, as of July 1, 1993, ‘‘Automatic’’ Sprinkler Cor- poration of America had entered into a joint-employ- ment relationship with Castle Sprinkler Company. On behalf of the joint-employment relationship, Castle Sprinkler Company has since entered into an extension of the collective bargaining agreement with Local, 483 that it and ‘‘Automatic’’ were signatory to. Inasmuch as ‘‘Automatic’’ Sprinkler Corporation of America is deemed a signatory by virtue of the actions of its joint-employer to that agreement, then the union is also bound to the same terms and conditions with ‘‘Automatic.’’ We request that you please remove the picket line promptly. Your failure to do so will necessitate legal action. We hold your local strictly liable for any dam- ages and costs we may incur due to this illegal action. Very truly yours, Owen G. Stout President Barton wrote to President Stout on December 1, 1993 dis- puting, among other things, ASCOA’s theory that ASCOA and Castle Sprinkler Company were joint employers. After further exchanges, Gullo wrote Barton on April 22, 1994, as follows: Dear Mr. Barton: The complaint by the National Labor Relations Board referenced in your April 13 letter, among other things, contends that ‘‘Automatic’’ Sprinkler Corpora- tion of America (ASCOA) and Castle Sprinkler Com- pany are joint employers of certain employees, who are members of your Union and are covered by a Collec- tive Bargaining Agreement. ASCOA has acknowledged that certain facts could support that theory and on that basis contends that its joint employer, (under the theory espoused by your Union and the National Labor Rela- tions Board), Castle Sprinkler Company has entered into a Collective Bargaining Agreement with your Union for a one (1) year term which expires July 31, 1994. This being so, employees of ASCOA have been em- ployed, consistent with its business operations, by its joint employer, Castle Sprinkler Company. Accordingly, there is no basis for reinstating and making whole em- ployees who were not terminated but were simply transferred from the payroll of one joint employer to the payroll of another; a mere administrative detail un- 415 ‘‘AUTOMATIC’’ SPRINKLER CORP. related to the actual employment status of the employ- ees. ASCOA has now determined that it desires to termi- nate any such joint employment relationship with agree- ment with Castle Sprinkler Company, as alleged, or any other sprinkler company, effective August 1, 1994. Meanwhile, ASCOA believes it is important that the parties meet to discuss these important issues. Please provide me with all of your available dates for a meet- ing during the months of May and June for the purpose of discussing the termination of the joint employment relationship between ASCOA and Castle Sprinkler Company and the negotiations of the subcontracting of installation and repair work; and the decision and the effects of that decision on the ASCOA/Castle Sprinkler Company employees. Local 676 ASCOA President Stout’s January 28 letter to Local 676 noted its contract expiration date was July 31, 1994. The Local’s counsel on April 6, 1994, requested subcontracting information from Stout. This request was replied to by Gullo’s letter of April 8 containing information of the nature requested. Pursuant to a further request from Local 676, Gullo furnished the Local with additional information. Local 676 then withdrew a charge it had filed on April 18, 1994, alleging a refusal of Respondent to provide the Union the in- formation it had requested. Local 709 On May 26, 1993, Stout wrote James Duffy, business manager of Local 709, that the Local’s contract would termi- nate on September 1, 1993, in accordance with its terms. Thereafter, Local 709 negotiated a contract extension date to August 31, 1995, with NFSA. By virtue of its earlier with- drawal from NFSA, the Respondent was not party to this ex- tended agreement and declined to agree on an extended agreement with Local 709. The members of the bargaining unit at ASCOA represented by Local 709 were laid off on August 31, 1993. Many, if not all of the members, were then employed by a union employer who was the subcontractor succeeding to the same kind of sprinklerfitter labor pre- viously done by ASCOA with the aforesaid unit members. Duffy subsequently met with Stout in November 1993. Stout then told him, as had Michael May, ASCOA’s oper- ations manager in Los Angeles, in August 1993, that ASCOA was subcontracting its sprinklerfitter labor. Duffy credibly states May also told him in February 1993, when May was the district manager for ASCOA in Los Angeles, California, that Respondent had a 5-year plan to become a general contractor. May added he did not know what that meant, but that was what he had been told. A memo from Gullo to Respondent’s counsel and manager of employee relations, Gross, dated June 8, 1994, relates the following concerning Duffy’s November 10, 1993 meeting with Stout: On or about November 10, 1993, Duffy did visit our Broadview Heights office to informally meet with Stout. They discussed the construction market in Los Angeles. The general feeling was that the market was very bad and would not likely improve in the near fu- ture. Stout explained to Duffy our plan to subcontract our labor. Duffy asked if ‘‘Automatic’’ would be willing to sign a collective bargaining agreement with local 709. Stout remarked the this was a subject that needed to be discussed in formal negotiations and was not something he could commit to without discussion with individuals at Figgie International. That is all Stout recalls regarding the meeting. Gullo’s memo in this regard is reliable hearsay with pro- bative worth. American Art Clay Co., 148 NLRB 1209, 1219 fn. 16 (1964). Respondent has refused to negotiate successor bargaining agreements with all of the Charging Locals. After termination of the various Local’s contracts, a num- ber of the ASCOA employees who had lost their jobs with the implementation of the ‘‘Neutral Plan’’ became sub- contractors to ASCOA with the aid of ASCOA including the use of vehicles and other equipment which the subcontractors bought or leased from Respondent. Some of ASCOA’s new subcontractors undertook that role at the suggestion and en- couragement of ASCOA officials who were instructed to so do by their superiors. Many other employees became em- ployees of subcontractors. This is not surprising given the special expertise they possessed in sprinklerfitting. Other unit employees became salaried inspectors for ASCOA. B. Discussion and Conclusions 1. The refusal to furnish information The Board in W-L Molding Co., 272 NLRB 1239, 1240 (1984), succinctly summarized the law applicable to situa- tions like that here presented in the following terms: [A] broad discovery-type standard is applicable to re- quests for information relevant to a union’s functions of negotiating and policing compliance with a collective- bargaining agreement. NLRB v. Acme Industrial Co., 385 U.S. 432, 437 (1967); General Motors v. NLRB, 700 F.2d 1083, 1088 (6th Cir. 1983); NLRB v. Rock- well-Standard Corp., 410 F.2d 953, 957 (6th Cir. 1969). ‘‘[I]t is not the Board’s function in this type case to pass on the merits of the Union’s claim that Re- spondent breached the collective bargaining agreement or . . . committed an unfair labor practice.’’ NLRB v. Rockwell-Standard Corp., 410 F.2d at 957. ‘‘Thus, the union need not demonstrate actual instances of contrac- tual violations before the employer must supply infor- mation.’’ Boyers Construction Co., 267 NLRB 227, 229 (1983). ‘‘Nor must the bargaining agent show that the information which triggered its request is accurate, non- hearsay, or even ultimately reliable.’’ Ibid. ‘‘The Board’s only function in such situation is in acting upon the probability that the desired information was relevant, and that it would be of use to the union in carrying out its statutory duties and responsibilities.’’’ NLRB v. Rockwell-Standard Corp., 410 F.2d at 957 quoting NLRB v. Acme Industrial Co., 385 U.S. at 437. 416 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 5 Iowa Beef Packers, Inc., 144 NLRB 615 (1963). 6 Wachter Construction, Inc., 311 NLRB 215 (1993). 7 Respondent’s reliance on Mine Workers District 31 v. NLRB, 131 LRRM 3131 (D.C. Cir. 1989), is misplaced because the facts in that case bear no resemblance to those presently before me. Accord: General Motors v. NLRB, 700 F.2d at 1088. [Footnote omitted.] The facts before me suggest the Union’s requested and de- nied information is arguably relevant and would be of use to Local 669 in its role as a collective-bargaining representative of Respondent’s employees. The failure to completely pro- vide that information therefore violated Section 8(a)(5) and (1) of the Act as the complaint alleges. With respect to Respondent’s suggestion that Local 669’s numerous requests for various other information unrelated to the requests at issue herein were intended to hinder or im- pede Respondent in the negotiating process and therefore caused Local 669 to lose any statutory right it had to the in- formation here requested, citing NLRB v. Wachter Construc- tion, 23 F.3d 1378 (8th Cir. 1994), I first note with respect that I am bound to follow Board precedent,5 and here the Board disagreed with the circuit court.6 Moreover, the record in the instant case shows no persuasive evidence other than the bulk of the requests (to which Gullo responded with no apparent difficulty) to support a harassment theory whereas Wachter contained clear evidence of deliberate harassment by a union official. There is no solid evidence that Local 669 was posing its various requests for the purpose of harassment or that its requests, which were largely responded to, were irrelevant to any legitimate union concern. That Respondent may suspect harassment does not make it so. 2. The ‘‘Neutral Plan,’’ its purposes and implementation Respondent would have me believe that the development and implementation of the ‘‘Neutral Plan’’ was pure as driv- en snow, free from discriminatory intent, and a fundamental change in Respondent’s business. Exceptionally able counsel for the Respondent skillfully argued that conclusion. I cannot agree, although I admire the advocacy. Reduced to its sim- plest terms, what we have here is a Respondent eager to dis- pose of union representation of its employees and the result- ing bargaining agreement restricting it from freewheeling in its contracting for the installation of its product. Pro Forma III–A clearly demonstrates Respondent’s dislike of the re- strictions imposed on it by union representation of its em- ployees, and its desire to be a union-free employer. Respond- ent had contemplated the possibility of going nonunion for some time prior to its adoption of the ‘‘Neutral’’ plan, and after some misgivings, took the plunge. Thereafter, as its messages to its supervisors and its assurances to union agents of continuing relations demonstrate, Respondent went to con- siderable pains to mislead the unions into believing that it was merely extending its subcontracting. The suspicion of Business Manager Simpson of Local 669 and others that Re- spondent was up to something more, and the advice ASCOA’s president, Stout, gave to Duffy after Respondent had laid off all of its Local 709 employees that it would henceforth be a general contractor, are no substitute for Re- spondent’s prior notice of its real intent to be nonunion. Re- spondent had carefully avoided any overt subcontracting to nonunion employers prior to its January 28, 1994 notice of intention to destroy all its union sprinklerfitter units as cir- cumstances permitted, i.e., contract terminations, even to the extent of misleading its district managers via its February 11, 1993 memo assertion the new program would force Re- spondent to work directly with the Unions for the benefit of both. Its concealment commenced with its notice to NFSA that it intended to bargain individually with the Unions, con- tinued with its reassurances to Simpson that there would be contractual relationships with Local 669 in the future, and its care in avoiding overt nonunion connections until its dra- matic announcement of January 28, 1994. That announce- ment itself was designed to mislead the Unions. It invited bargaining on Respondent’s decision to no longer employ the Locals’ members, but the record clearly shows Respondent had no intention of bargaining on its decision. All Respond- ent was willing to do was discuss the effects of its decision on the laid-off employees and secure a written agreement from the Unions to terminate its collective-bargaining rela- tionships. 3. Affirmative defenses Respondent raises several defenses to justify its behavior. It contends that clauses in the various collective-bargaining agreements permitting Respondent to subcontract to other employers who have collective-bargaining agreements with the unions constitute waivers of bargaining rights concerning subcontracting during the term of those agreements. Al- though the clauses do permit subcontracting to other employ- ers signatory to incumbent unions’ agreements, they certainly do not permit subcontracting to nonunion firms, nor do they prohibit bargaining on subcontracting upon the expiration of the collective-bargaining agreements. They do not waive the right to bargain over a decision to destroy bargaining units through the use of subcontracting or the implementation of such a decision.7 The Respondent also contends the Union’s waived their rights to bargain over Respondent’s decision by failing to re- quest bargaining after learning of Respondent’s ‘‘General Contractor Decision’’ throughout the course of 1993. The fact is that all the Unions really knew was that there was an increase in subcontracting by Respondent in some areas. Re- spondent deliberately concealed its decision to totally sever connections with the Unions until January 28, 1994, and even then, as above noted, falsely advised the Unions its de- cision was bargainable. I do not believe the Unions were re- quired to decipher the various conflicting signals given them by the Respondent or its unrevealed intentions. It was Re- spondent’s obligation to promptly and completely advise the Unions of its plans to no longer hire union member sprinklerfitter laborers when its plans were solidified if it ex- pected the Unions to request bargaining on the decision. By depriving the Unions of such prompt knowledge and embark- ing on a course of deception, the Respondent forfeited any claim it might have otherwise had that the Unions waived their rights to bargain on its decision. Respondent further urges that the Charging Parties waived the right to bargain on the ‘‘General Contractor Plan’’ by failing to respond to Respondent’s requests to bargain with them accompanying its written notices of implementation of 417 ‘‘AUTOMATIC’’ SPRINKLER CORP. 8 See, e.g., Barnard Engineering Co., 295 NLRB 226, 249 (1989). 9 NLRB v. Great Dane Trailers, 388 U.S. 26 (1967). its plan. The quick response to this assertion is that a party is not required to engage in a futile act. The record firmly establishes that the Respondent had absolutely no intention of bargaining about the ‘‘Neutral Plan.’’ The Unions did not waive bargaining rights by failing to take part in Respond- ent’s charade. The argument of Respondent that, because Locals 120, 542, 696, and 676 had an 8(f) agreement with Respondent, Respondent was free under John Deklewa & Sons, 282 NLRB 1375 (1987), to terminate the contracting relationship at the contract’s expiration date without notice or invitation to bargain is accurate, but that does not insulate Respondent from liability for conduct violative of Section 8(a)(3) of the Act. I am persuaded, for reasons set forth below, Respond- ent’s conduct was motivated by antiunion animus and vio- lated Section 8(a)(3) of the Act with respect to all of the af- fected employees represented by all the Charging Unions, whether represented pursuant to a 9(a) or 8(f) arrangement. As a separate defense, Respondent contends complaint al- legations are time barred by Section 10(b) of the Act, which provides, in relevant part, ‘‘[N]o complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made.’’ It is, however, well settled that the deliberate concealment of unlawful conduct tolls the 10(b) period and the burden is on the respondent to show the charging party was clearly and unequivocally put on notice of the conduct complained of prior to the commencement of the six months period set forth in the statute.8 Here Respond- ent concealed its decision to totally dispose of union rep- resentation of its sprinklerfitters until January 28, 1994. I do not believe the Unions were required to affirmatively ferret out every intention of the Respondent which it even withheld from its own supervisors, note the failure of Respondent to even advise its director of human resources, Gullo, of the ex- istence of its Pro Forma documents until after it advised the Unions of its plans on January 28, 1994. Accordingly, I con- clude Section 10(b) provides no defense to Respondent’s conduct. Concluding Findings I agree with General Counsel that the primary aim of Re- spondent, as shown by the content of Pro Formas III–A and B and the concealment of its ultimate intent from not only the Unions but its own managers, was to rid itself of union representation in order to indulge itself in nonunion sub- contracting. This conduct, in the words of the Supreme Court,9 was ‘‘so inherently destructive of employee interests’ that it may be deemed proscribed without need for proof of an underlying improper motive . . . [and] carries with it ‘‘unavoidable consequences which the employer not only foresaw but which he must have intended’’ and thus bears ‘‘its own indicia of intent.’’ Furthermore, General Counsel has shown that the desire to rid itself of the Local Unions, thereby discouraging union ac- tivity, was at the very least one of the motivating factors in its decision to become a general contractor and subcontract all its sprinkler installation work. Respondent therefore is obliged to show by a preponderance of the evidence it would have done so in the absence of union representation of its employees. Wright Line, 251 NLRB 1083 (1980); NLRB v. Transportation Management Corp., 462 U.S. 393 (1983). Re- spondent has not carried this burden. I therefore find Re- spondent’s conduct in terminating its union member employ- ees, severing its relationships with the contracting unions, turning toward nonunion subcontracting, and concealing its ultimate plan from the Unions violated Section 8(a)(3) and (1) of the Act whether the reasoning in Great Dane, supra, or Wright Line, supra is applied. Respondent also violated Section 8(a)(5) of the Act by its conduct of not giving the 9(a) unions prior notice of and op- portunity to bargain on its decision to subcontract all its sprinkler installation work and to thereby replace its union employees with those of nonunion or other more malleable employers. The Supreme Court noted in Fibreboard Corp. v. NLRB, 379 U.S. 203, 215 (1964) that: ‘‘the replacement of employees in the existing bargaining unit with those of an independent contractor to do the same work under similar conditions of employment—is a statutory subject of collec- tive bargaining.’’ The Board has followed that precedent where the employer’s decision to subcontract does not turn on a change in the scope, nature, or direction of its business and is amenable to collective bargaining. Executive Cleaning Services, 315 NLRB 227 (1994); Compu-Communications, 315 NLRB 216 fn. 2 (1994); Acme Die Casting, 315 NLRB 202 fn. 1 (1994). Contrary to Respondent’s argument, all that happened here was a substitution of one group of workers to perform the work of another, and not a change in the scope and direction of the enterprise which continues to manufac- ture, sell, and arrange the installation of sprinkler systems which it subsequently inspects with its own employees. The only difference is that subcontractors’ employees now do the same work as ASCOA’s sprinklerfitters had previously done, and utilize the same vehicles, tools, and other equipment ASCOA employees had used to do the same type work. The above-quoted statement in Fibreboard fits this situation ex- actly, and Respondent’s concealment of its decision and the failure of Respondent to give timely notice to the Unions of its decision and thus provide them with an opportunity to bargain when it yet had some bargaining power did not sat- isfy its statutory obligation. Your Host, Inc., 315 NLRB 295 (1994). Accordingly, I find that the Respondent (Figgie and ASCOA) violated Section 8(a)(5) and (1) of the Act by adopting and implementing its decision to subcontract all its sprinklerfitter labor without giving prior notice to the 9(a) unions named in this decision and without providing them with an adequate opportunity to bargain over the decision and/or its effects on ASCOA employees. Moreover, by re- jecting the requests of the 9(a) unions, whose majority status is not in question, to bargain successor agreements, Respond- ent again violated Section 8(a)(5). I have previously noted that Respondent failed and refused to furnish Local 669 with certain information to which it was entitled because that information as relevant and necessary to Local 669’s function as the collective-bargaining representa- tive of certain of ASCOA’s employees and for contract en- forcement efforts. I therefore now find the failure and refusal of Respondent to furnish Local 669 with that information violated Section 8(a)(5) and (1) of the Act. See Acme and Truitt, supra. 418 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 10 Under New Horizons, interest on and after January 1, 1987, is computed at the ‘‘short-term Federal rate’’ for the underpayment of taxes as set out in the 1986 amendment to 26 U.S.C. Sec. 6621. 11 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and rec- ommended Order shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and all objections to them shall be deemed waived for all purposes. General Counsel also alleges Respondent unlawfully re- fused to furnish Local 669 with information, citing the fol- lowing February 15, 1994 letter from Local 699’s attorney to ASCOA’s president, Owen Stout, as the unanswered re- quest. Dear Mr. Stout: This office represents Local 699 and they have asked us to review your letter of January 28, 1994 directed to Don Ellefson, the business manager. They have requested I correspond with you to ex- press their desire to discuss the business decision set forth in your letter and the effect thereof on the mem- bers of Local 699 who may be employed by Automatic Sprinkler. They need to clearly understand the inten- tions of Automatic Sprinkler and acquire as much infor- mation as possible to determine the effects on the em- ployees and the impact on the collective bargaining agreement. They would request a meeting with you or your rep- resentative as much in advance of the April 1, 1994 date as may be possible. Please feel free to contact Mr. Ellefson directly to establish the manner and time of meeting. Your cooperation in this regard will be much appre- ciated. I do not believe this letter conveys an express request suffi- cient to trigger Respondent’s obligation to reply. Accord- ingly, I find no merit in the allegation. The termination of one McGuire and other employees spe- cifically named as discriminatees in the complaint was caused by Respondent’s implementation of its subcontracting plan, which violated Section 8(a)(5), (3), and (1) of the Act. The discharge of these employees, as well as all other sprinklerfitters terminated by Respondent in the illegal imple- mentation, is therefore a violation of Section 8(a)(3) of the Act. CONCLUSIONS OF LAW 1. The Respondent (Figgie and ASCOA) is a single-inte- grated business enterprise and an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Local Unions enumerated in the case caption are each labor organizations within the meaning of Section 2(5) of the Act. 3. Each of the Local Unions was at all times material to this proceeding party to a collective-bargaining agreement covering a unit of Respondent’s sprinklerfitters. 4. By terminating the employees represented by all the Local Unions who filed the charges in this proceeding and severing its contractual relationships with said Local Unions in order to engage in nonunion subcontracting, thereby dis- couraging union membership, Respondent violated Section 8(a)(3) and (1) of the Act. 5. By unilaterally subcontracting unit work, by refusing to bargain concerning successor agreements with Locals 669, 692, 536, 218, 314, 699, 483, and 709, and by failing to give them prior notice and an opportunity to bargain, and by re- fusing to bargain with them over the decision and effects of subcontracting all the work being performed for Respondent by its employees represented by said Local Unions, and by terminating said employees, Respondent violated Section 8(a)(5) and (1) of the Act. 6. By refusing to furnish Local Union 669 with requested information that is relevant and reasonably necessary to its function as the collective-bargaining representative of a unit of Respondent’s employees, the Respondent violated Section 8(a)(5) and (1) of the Act. 7. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY In addition to the usual cease-and-desist and notice-posting requirements, I shall recommend Respondent be: (1) required restore all of its subcontracted operations previously per- formed by employees represented by the Local Unions enu- merated in this Decision, whether they be Section 9(a) or 8(f) representatives; (2) reinstate all employees terminated as a result of the subcontracting, and make them whole for monetary losses caused by the subcontracting. Backpay, with interest, shall be computed in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest com- puted as prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987);10 (3) bargain with the 9(a) representa- tives concerning its decision to subcontract and its effects on unit employees and for successor agreements; and (4) furnish the information to Local 669 which I have found was unlaw- fully withheld. I shall also recommend a broad cease-and-de- sist order because of the national scope and seriousness of Respondent’s unfair labor practices. Hickmott Foods, 242 NLRB 1357 (1979). On these findings of fact and conclusions of law and on the entire record, I issue the following recommended11 ORDER The Respondent, Figgie International Inc. and ‘‘Auto- matic’’ Sprinkler Corporation of America, a single-integrated business enterprise, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Terminating union-represented employees whether their representative enjoys 9(a) or 8(f) status, and unilaterally sev- ering bargaining relationships with unions selected by em- ployees as their sole collective-bargaining representative, in accord with Section 9(a) of the Act for the purpose of engag- ing in nonunion subcontracting, and thereby discouraging union activity. (b) Unilaterally subcontracting unit work and failing to give prior notice and an opportunity to bargain to the 9(a) representatives over the decision to and effects of sub- contracting sprinklerfitter labor. (c) Refusing to furnish Local 669 with requested informa- tion relevant and reasonably necessary to its function as the 419 ‘‘AUTOMATIC’’ SPRINKLER CORP. 12 The national scope of Respondent’s conduct, the seriousness of that conduct, and the willingness of Respondent to engage in decep- tion in order to avoid its responsibilities under the Act requires a broad cease-and-desist order. Hickmott Foods, 242 NLRB 1357 (1979). 13 Respondent may introduce evidence, if there is any, at the com- pliance stage of this proceeding to demonstrate restoration of the subcontracted operations involved herein is unduly burdensome. See Compu-Net, supra at fn. 3. 14 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading ‘‘Posted by Order of the National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.’’ collective-bargaining representative of Respondent’s employ- ees. (d) Refusing to bargain successor agreements with Section 9(a) bargaining representatives of Respondent’s employees. (e) In any other manner interfering with, restraining, or co- ercing its employees in the exercise of rights guaranteed them in Section 7 of the Act.12 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act. (a) Restore all of the subcontracted operations previously performed by employees represented by Locals 669, 120, 692, 536, 542, 281, 314, 699, 696, 483, 676, and 709.13 (b) Reinstate all employees represented by said unions and terminated as a result of the subcontracting and make them whole for any loss of earnings they suffered by reason of that unlawful termination, said backpay to be computed in the manner described in the remedy section of this decision. (c) Bargain with Local Unions 669, 692, 536, 281, 314, 699, 483, and 709, upon request, concerning the decision to subcontract and its effects on employees, and for successor collective-bargaining agreements. (d) Furnish the requested information to Local 669 that I have found was unlawfully withheld by Respondent. (e) Preserve and, on request, make available to the Board or its agents for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (f) Post at all its offices in the continental United States, copies of the attached notice marked ‘‘Appendix.’’14 Copies of the notice, on forms provided by the Regional Director for Region 8, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent imme- diately upon receipt and maintained for 60 consecutive days thereafter, in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the no- tices are not altered, defaced, or covered by any other mate- rial. (g) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply.