Finger Lakes Plumbing & Heating Co., Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Finger Lakes Plumbing & Heating Co., Inc., and United Association of Journeymen and Appren- tices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Union No. 13. Case 3-CA-9262 November 19, 1980 DECISION AND ORDER By CHAIRMAN FANNING ANI) MEMBI.RS JENKINS ANI) PLNI-I.O On June 18, 1980, Administrative Law Judge Jerry B. Stone issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief, the Charging Party filed exceptions, the General Counsel filed cross- exceptions, and Respondent and the Charging Party filed answering briefs to each other's excep- tions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision' in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,2 and conclusions3 of the Administrative Law ' The year 1979 i In 9 f the Adninistrative I.aw Judge's Decision is an apparent typographical error; the record establishes that Respondent's president, 'Theodore Bogart, testified in effect that his la't 'visit to the Canandaigua site wals around December 1978 Respondenlt ha's excepted tl certain credibility findings made by Ihe Administrative l aw Judge It s the Board'. etablishied plicy nlot to overrule an admiiistratti'e law jludge's resolutionl with respect to credi- hilit) unless the clear preponderance of all of the relevlant evidence con- vinces us that the re'.olutions are incorrect Sandard Dry WaI/ Products, Inc.. 91 NI.RB 544 (1950(), efd 188 F 2d 362 (3d Cir 1951 W have carefully examined the record and find iii basis for reversing his findings ' We agree with the Administrative Law Judge's finding hat the bar- gaining unit in questioll here continued in cxisclice at all times relevant to this proceeding, icluding through the period between mid-March through early June 1979, when no unit work was performed and rlo unit employees were emploed In so finding. we note the particular stahility of Respondent' unit work force during he perinod January 1976 through March 1979 I)uring his 39-molth period. the average monthly unit work force was five employees, with a high of eight employees in Janu- ary and February 1978 and a low of no employees i May 1976 I)uring the cours.e of this entire period huwe'.er. Repondent employed nly 10 different employees in the unit i queslion Indeed, the Union's buiness representative during this period. Rbert Scott testified without contra- diction that, when Respondent needed periodically to increase the size of its wrk force. it would attempt to rehire unit employees which it had previously employed. In his regard. Respondent's presidelt also testfied that, when he needed to increase the size of his work force, he planned "as to what man was available, and I knew where they were'" Bogarl would cntact the employee, who in turl wuld advise the Uion f his employmeint or reemploymcnt by Respondent. Thus. during the 3 9-nmlith period from January 1976 through March 1979. employees Burgett, Bricco, Burgess, and Marino were employed in 36, 33, 33, and 29 of those months, respectively. and employees Akens. Rogers, and Clark were employed i 21. 19, and 12 months, respectively In light of his evidence. the Administrative Law Judge's finding is well supptrted, as discussed more fully in sec. III111 of his Decision. tha the bargaining unit in question contillued throughout and after the March-June 1979 hiatus in the perfirmance of unit work ad employment of unit employees 253 NLRB No. 49 modified herein. THE RM F.I)Y As discussed more fully in the attached Decision, the Administrative Law Judge found, and we affirm, that Respondent violated Section 8(a)(5)., (3), and (1) of the Act by, inter alia, unilaterally and discriminatorily changing terms and conditions of employment following the May 31, 1979, expira- tion of the collective-bargaining agreement be- tween it and the Union, in derogation of its on- going obligation to bargain with the Union about any such changes. One of the unlawful changes ef- fected by Respondent was the cessation of pay- ments of contractually mandated contributions for certain fringe benefits, as enumerated and described in article VII of the May 1, 1976-May 31, 1979, collective-bargaining agreement. 4 Accordingly, and in addition to the other reme- dial measures recommended by the Administrative Law Judge, which we adopt, we shall order Re- spondent to pay all delinquent contributions since June 1979 to the funds and plans listed in footnote 4, supra, and to continue to pay such contributions until such time as Respondent negotiates in good faith with the Union to a new agreement or to an impasse. 5 Article VII of the aforementioned collective-bar- gaining agreement also provides that all delinquent contributions (as defined therein) are subject to mandatory liquidated damages for each fund, in an amount equal to 10 percent of the sum required to be submitted to that fund. Thus, the contract shows an agreed-upon method for determining the addi- tional costs to the funds caused by delinquent pay- ments, and it is appropriate that the remedy herein take the agreed-upon method into consideration. Therefore, we shall also order Respondent to pay into the above-specified funds, as liquidated dam- ages, an additional sum amounting to 10 percent of the delinquent contributions due those funds. Peer- less Roofing Co., Ltd., supra. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- 4 Specifically, the Group Insurance lan. P isilon Plan, Apprenticeship 'ITraining and Education Fund, Journeyman Education Trating Fund, Mechanical Contractors Industry Ad'ancetelit Program, Vacation Fund, Holiday Fund, and Annuity Fund Art. Vll (f the aforementioned cotract also lists "Dues Checkoff" as "Fringe Benefit " Unlike its cessa- tioil of payments for the other fringe heinefits set out above. Respondent's cessation of deduction and retnisionl l the Uniln of employee union dues was not unlawful Perle Rfing Co., Ltd., 247 NLRB N 72, sl oip. pp 12 13 (1980) ' Peerl- Rfing Co.. Ltd. upra. Sir Jame. Inc.. K183 NLRB 256. 261 (197(); cf. (urpenuler SprinAlr Corpration. 238 NLRB 974 (1978), en- forcement denied in relevant part 6(5 F 2d 60 (2d Cir 1979) FINGER LAKES P'I.LMHING & HEATING CO. lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied below, and hereby orders that the Respondent, Finger Lakes Plumbing & Heating Co., Inc., Geneva, New York, its officers, agents. successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Insert new paragraphs 2(d) and (e) as follows, and reletter the subsequent paragraphs accordingly: "(d) In accordance with the terms set out in arti- cle VII of the May 1, 1976 - May 31, 1979, collec- tive-bargaining agreement between the parties, pay all delinquent contributions since June 1979 to the following funds or plans: Group Insurance Plan, Pension Plan, Apprenticeship Training and Educa- tion Fund, Journeyman Education Training Fund, Mechanical Contractors Industry Advancement Program, Vacation Fund, Holiday Fund, and An- nuity Fund; and continue to pay such contributions until such time as Respondent negotiates in good faith with the Union to a new agreement or to an impasse. "(e) In accordance with the terms set out in arti- cle VII of the aforementioned collective-bargaining agreement, pay into the above-specified funds, as liquidated damages, an additional sum amounting to 10 percent of the delinquent contributions due those funds pursuant to paragraph 2(d) of this Order. " 2. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NOTICE TO EMPI OYEES POSTED BY ORDER OF THE NATIONAL. LABOR RELATIONS BOARD An Agency of the United States Government WE WIL.L NOT make unilateral changes con- cerning rates of pay, wages, benefits, hours, and other terms and conditions of employment of employees in the below-listed appropriate bargaining unit, nor will we otherwise refuse to bargain collectively with or unlawfully withdraw recognition from United Association of Journeymen and Apprentices of the Plumb- ing and Pipefitting Industry of the United States and Canada, Local Union No. 13, as the exclusive representative of the employees in the bargaining unit described below. All plumbers, steamfitters and pipefitters em- ployed by us in commercial jobs (as more completely described in the contract we had with said Union for 1976-79), excluding office clerical employees, professional em- ployees, guards and supervisors as defined in the Act. WI wti I. NOr discourage membership in the above-named Union or in any other labor or- ganization, by discriminating against employ- ees, laid-off employees, or applicants for em- ployment, through the imposition of illegal conditions of employment or by otherwise dis- criminating against any of our employees in regard to hire, tenure, or conditions of their employment. WE WIl. NOT in any other manner interfere with, restrain, or coerce employees in the exer- cise of the rights guaranteed them in Section 7 of the Act except to the extent that such rights may be affected by lawful agreements in ac- cordance with Section 8(a)(3) of the Act. WE WIL.t., upon request, bargain with the above-named Union, as the exclusive repre- sentative of all employees in the bargaining unit described above, with respect to rates of pay, wages, hours, and other terms and condi- tions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. WE Wi.i. offer to Kenneth Akens, Kenneth Page, and John Armstrong immediate and full instatement to the position each would have been instated in absent the discrimination against each or, if such position no longer exists, a substantially equivalent position, with- out prejudice to seniority or other rights, and make each of them and all employees hired on and after May 31, 1979, whole for any loss of pay or other benefits suffered by reason of the discrimination against them. WE Wll ., in accordance with the terms of the May 1, 1976-May 31, 1979, collective-bar- gaining agreement between us and the Union, pay all delinquent contributions since June 1979 to the following funds or plans: Group Insurance Plan, Pension Plan, Apprenticeship Training and Education Fund, Journeyman Education Training Fund, Mechanical Con- tractors Industry Advancement Program, Va- cation Fund, Holiday Fund, and Annunity Fund. WE Wll.I continue to pay such contributions until such time as we negotiate in good faith with the Union to a new agreement or to an impasse. WI: wil.l also pay into those funds and plans, as liquidated damages, an additional sum amounting to 10 percent of the delinquent con- tributions due on those funds and plans. 407 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All of our employees are free to become or remain, or refrain from becoming or remaining, members of any labor organization, except to the extent provided by Section 8(a)(3) of the Act. FINGER LAKES PLUMBING & HEAT- ING CO., INC. DECISION STATEMENT OF THE CASE JERRY B. STONE, Administrative Law Judge: This pro- ceeding, under Section 10(b) of the National Labor Rela- tions Act, as amended, was heard pursuant to due notice on February 25 and 26, 1980, at Canandaigua, New York. The charge was filed on August 13, 1979. The com- plaint in this matter was issued on September 27, 1979. The issues concern whether the Respondent has violated Section 8(a)(l), (3), and (5) by withdrawal of recognition of the Union and refusing to meet or bargain with the Union, and by unilaterally changing the terms and condi- tions and benefits of employment of employees in a de- fined appropriate bargaining unit without notice to or bargaining with the Union. All parties were afforded full opportunity to partici- pate in the proceeding. Briefs have been filed by all par- ties and have been considered. ' Upon the entire record in the case and from my obser- vation of witnesses, I hereby make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER 2 Finger Lakes Plumbing & Heating Co., Inc., the Re- spondent, is, and has been at all times material herein, a corporation duly organized under, and existing by virtue of, the laws of the State of New York. At all times material herein, Respondent has main- tained its principal office and place of business at 601 West Washington Street, in the city of Geneva, and State of New York, and various other jobsites in New York State, and is, and has been at all times material herein, continuously engaged in the business of providing and performing plumbing and air-conditioning construc- tion services and related services.3 ' My Order, dated May 28, 1980, correcting the record in certain re- spects is marked as ALJ Exh. No. I and is received into the record z The facts herein are based on the pleadings and admissions therein except as otherwise indicated. 3 The above findings follow the complaint allegations. Respondent adnits the allegations excepting the portion relating to "and various other job sites in New York State, and is, and has been at all times mate- rial herein, continuously engaged in the business of providing and per- forming plumbing and air-conditioning construction services and related services." The facts reveal that the Respondent has performed plumbing and air-conditioning construction services and related services at jobsites in the State of New York other than Geneva before May 31, 1979, and plumbing construction services after May 31, 1979, the date of expiration of a collective-bargaining agreement. The facts reveal that Respondent's work force has fluctuated in the past, that for a period of several months before May 31, 1979, Respondent was not actively employing employees in the bargaining unit involved in this case. However, Respondent contin- ued during such period of time to bid for work customarily performed by Annually, in the course and conduct of its business, Respondent purchases and receives goods and materials in New York State valued in excess of $50,000, which goods and materials originate outside the State of New York. Annually, Respondent performs work or services in New York State valued in excess of $50,000 for other employers over whom the Board would assert jurisdic- tion under its direct jurisdictional standards. As conceded by Respondent and based on the forego- ing, it is concluded and found that the Respondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOI.VED 4 United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Union No. 13, is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. Ill. THE UNFAIR LABOR PRACTICES A. Preliminary Issues: Supervisory Status 5 At all times material herein, T. Bogart occupied the position of president of Respondent, William A. Clark occupied the position of superintendent, and both have been and are now agents of Respondent, acting on its behalf, and supervisors within the meaning of Section 2(11) and (13) of the Act. B. The Appropriate Bargaining Unit All plumbers, steamfitters, and pipefitters employed by Respondent in commercial jobs (as more completely de- scribed in the contract received in evidence in this pro- ceeding as G.C. Exh. 2), excluding office clerical em- ployees, professional employees, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 6 bargaining unit employees and subsequent to but close in time to the ex- piration of the collective-bargaining agreement on May 31, 1979, engaged in work customarily performed by bargaining unit employees. Consider- ing these facts, it is concluded and found that the General Counsel has established that Respondent, at all times material herein, has maintained its principal office and place of business at 601 West Washington Street. in Geneva, New York, and various other jobsites in New York State, and is, and has been at all times material herein, continuously engaged in the business of providing and perfiorming plumbing and air-conditioning con- struction services and related services. The facts are based on the pleadings and admissions therein. 5 The facts are based on the pleadings and admissions therein. 5 Respondent admits that the described unit is an appropriate bargain- ing unit during the time of the contract referred to therein Respondent denies that such unit has continued to exist after May 31, 1979, because it ceased employing members of Local 13 of the Union and had no obliga- tion to bargain with the Union because the Union was not the exclusive collective-bargaining representative as a result of loss of majority status after May 31, 1979. The facts in this case reveal that Respondent has con- tinued in business concerning "commercial" plumbing and air-condition- ing work until and after May 31, 1979, had no objective basis to doubt the Union's majority status, and had an obligation to bargain with the Union as to any changes in employment conditions of employees in the appropriate bargaining unit. The contract in effect to May 31, 1979. re- Continued 408 FINGER LAKES PLUMBING & HEATING CO, C. The 1976-79 Collective-Bargaining Agreement 7 For a number of years Respondent has been a member of the Mechanical Contractors Association of Rochester, Inc., a multiemployer bargaining association, and/or bound by a contract or contracts between the Associ- ation and the Union. The most recent contract, covering the Respondent's employees in the appropriate unit pre- viously found, between the Association and the Union, and to which Respondent was bound, was effective by its terms for the period May 1., 1976, to May 31, 1979. D. The Respondent s Concern Over Losing Work Toward the last of 1978, Respondent's president, Bogart, telephoned Local 13's business manager, Farrell, and expressed a hope to get together with the Union to discuss his concern over losing work in the Geneva area because of the union scale. Bogart sent the following similar communication to Farrell by letter dated January 2, 1979, but there did not ensue a meeting between the Union and Bogart: January 2, 1979 Mr. Christopher Farrell U. A. Local 13 1645 St. Paul Street Rochester, New York 14621 Dear Sir: I hope you enjoyed the Holiday Season and look forward to a good year in 1979. My concern at this time is with our industry and the number of unemployed men in our area. In checking on jobs which normally were our custom- ers; I find that nearly a million dollars of work was done by open shop contractors last year. There were numerous jobs ranging from $500,000.00 down that got away because we are out of range with the price we have to charge. I have discussed this with several of the local delegates in the building trades and I find other trades have a sliding scale thus en- abling them to use union men and compete in the industry. If something like this could be worked out in our old Local 74 area I feel it would be good for the Local, at least until the bad economy blows over; and in turn enhance our positions. We have the A.B.C. open shop knocking on our door, but this is not our intent-however we would like to be competitive. I would like to have lunch with you someday and talk this over. Awaiting your reply, I remain; ferred to "commercial" plumbing and air-conditioning. The Union and other employers also have contracts regarding "residential" plumbing and air-conditioning There is no conention that the Respondent employs em- ployees who perfiorm "residential" plumbing and air-conditioning work Considering the filats and the parties' contentions, the overall facts per- suade and I conclude and find that the bargaining unit as set out is an appropriate bargaining unit I The facts are based on the credited testimony of Farrell, stipulationls. the record as a whole, and some admissions in the pleadings The con- tract referred to was between the Charging Part) Union and the Re- spondent Yours truly, T. Bogart E. he Union's Request for Bargaining-January 26, 1979 On January 26, 1979, the Union sent the Respondent, and apparently other members of the Mechanical Con- tractors Association of Rochester, Inc., and Association of Plumbing-Heating-Cooling Contractors of Rochester, Inc., a letter requesting bargaining as is revealed by the following: January 26, 1979 Dear Sir: Please be advised that our organization wishes to renegotiate our contract with you which expires midnight May 31st, 1979. The items to be negotiated are wages, hours, working conditions, jointly administered plans and all other items in the present agreement. This is to serve as 60 days' notice as required by Article VIII, Section I of our present Articles of Agreement of the Mechanical Contractors Associ- ation of Rochester, Inc. and Association of Plumb- ing-Heating-Cooling Contractors of Rochester. Inc. and Local Union No. 13 of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, and all ether pertinent statutes. Very truly yours, Chris Farrell Business Manager U. A. Local #13 F. The Respondelnts Withdrawal From the Multiemployer Group On or about March 13, 1979, Respondent timely with- drew from the Association and bargaining as a part of the multiemployer group referred to above, except that Respondent continued to be bound by the contract reached through multiemployer bargaining with the Union until the expiration date of the contract on May 31, 1979.' At or around the time of Respondent's withdrawal from the multiemployer group, Respondent transmitted a letter to the Union as follows: March 13, 1979 Local 13, United Association 1645 St. Paul Street Rochester, New York 14621 Re: Agreement-Mechanical Contractor's Associ- ation of Rochester and Local 13, U.A. Gentlemen: This is to advise you that pursuant to Article VIII of the current collective bargaining agreement that ' the facts are not disputed and are established h the pleadings and additions therein 409 I)tCISI()NS ()F NAI()NAI. IAB()OR R.AT'IONS O()AR Finger L.akes Ilumbiing and leating Co.. Inc. hereby gives notice to Local 13, United Association that it hereby terminates its agreement with I ocal 13, U.A. effective upon the expiration of the current collective bargaining agreement. This is to further advise you that this corporation will liave submitted its resignation as a member to the Mechanical Contractor's Association of Roches- ter. This corporation will not he bound by any collec- tive bargaining agreement which may be negotiated by the above nanmed association or the Conference Committee vwhich it may designate for the purpose of negotiating a collective bargaining agreement. Upon the cf'fectik date of the termination of the collective-bargaining agreemenlt with your uitori, thiis corporation will conduct labor relations tor and n( its ow ni behalf on an independent basis. Very truly yours, FINGER LAKFS PI UMBING AN[) HlEAIINC CO., INC. by T. Bogart, President (j. I7he Union 's Request to the Respondent for Bargaining April 24. 1979 On April 24, 1979, the Union transmitted a letter as follows to the Respondent: April 24, 1979 Mr. T. Bogart Presidelt Finger akes Plumbing & leating Co., Inc. 601 West Washingtlon Street Jelleva, New York 14456 Dear Mr. Bogart: We are prepared to meet with you, for the pur- pose of renegotiating our agreement with your com- pany, which expires May 31st, 1979. We will be available to meet on May 11th, 1979, at 10:00 a.m., at the Local #13 Union Office, 1645 Saint Paul Street, Rochester, New York, to com- mence negotiations. Please contact this office to confirm this meeting. Sincerely, Chris Farrell Business Manager U.A. ocal #13 H. he Re.spondent's Declination to Bargain May 3, 1979 On May 3, 1979, the Respondent transmitted a letter as follows to the Union: May 3, 1979 Mr. Chris Farrell United Association Local Union No. 13 1645 St. Paul Street Rochester, New York 14621 Dear Mr. Farrell: This will acknowledge receipt of your letter of April 24th, 1979 and meeting on May 11, 1979. We are not employing any Local 13 members or plumb- ers and ill not be negotiating, therefore, we will not be attending the meeting. Yours truly, 'r. Bogart I. he Continuation a 'the Bargaining Unit The Respondent's work force for the bargaining unit employees has fluctuated in the past. Employees were laid off and recalled. Essenltially when the Respondent needed to recall or to hire employees, Respondent simply sought out employees who were members of l.ocal 13 and employed the same. In the last few months of Respondent's 1976 79 contract covering commercial plumbing and air-conditioninlg work and employees en- gaged in such work, Responidenit did niot have employees actively engaged in such work. Respondent's major conteiition appears to be that the employinig unit ceased \wheil its last active employee in such unit ceased work and that its obligation to bargain with the Union ceased, that thereafter when it employed employees, such employees were employed in a new unit and Respondent was free to set its own terms and condi- tions of employment. Such contentions are based on a misunderstanding of what constitutes a continuationi of a bargaining unit. In a unit f employees involvinig a normal fluctuatinig demand for employees, as in building and construction work, the employee work force is deemed to he that of employees who are actively workilg and those who have a reason- able expectancy of further employment even though on layoff status. Since the Respondent continued throughout the period of time of the old collecti ve-bargaining agree- ment to seek work of the type normally performed by bargaining unit employees, and subsequent to May 31, 1979, has successfully obtained substantial work of such a character and has employed employees to perform such work, the facts require a finding that the bargaining unit has continued at all times relevant to this proceed- ing. J. The Union Bargaining Status The facts are largely undisputed that the Union en- joyed the status of exclusive bargaining representative of the employees in the appropriate bargaining unit found herein until May 31, 1979. Board and case law clearly reveal that as a result of the 1976-79 collective-bargain- ing agreement, the Union is presumed to have enjoyed the status of having been designated by a majority of the employees in the appropriate bargaining unit to be the representative of such employees and as a result of such designation by a majority of employees to be the exclu- sive collective-bargaininIg representative of such employ- ees. Further, Respondent's withdrawal from the multiem- ployer bargaining group would not adversely affect such status of the Union because the presumption of major designation is presumed to have been evenly spread throughout the bargaining unit. 410 IINGER I.AKES lPt iMHING & 8tt11 ;\tIN(i C() It is thus clear that, absent some objective consider- ations, the Respondent was obligated to bargain with thile Union on April 24, 1979. when the lUnion requested bar- gaining, and on May 3, 1979, when the Respondent re- fused to bargain with the Union. The facts are clear that the Respondent has refused to bargain with the Union at all times since May 3, 1979. The Respondent would contend that its failure to employ employees for the last months before May 31, 1979, reveals objective considerations to raise a doubt as to the Union's majority status. Such contentions must bh rejected. As indicated, Respondent's work force hargain- ing unit is one of fluctualting si/e. Absent evidence to the contrary, it is to be presumed thatl the Union's majority status would continue at the same ratio with new hires or recalls to work. In this case, the facts do not reveal any evidence that any enmploce was discontent with the Union as representative of the employees, Nor is there any evidence that employee disconteint with the Union has been made known to the employer. Rather, the facts reveal that the Respondent was concerned about tle effect of union scale upon his bids anid the obtaiing of work and had decided during the term of his contract with the Union to operate nonunion after the expiration of such contract. Thus, in the period of time Januar to March 1979, Bogart spoke to Kenineth Akens who had formerly been actiely enmployed by the Respondent. At the time of the Januiar> to March 1979 conxersations. Akens was employed by the U.S. Government at thile Veterans lHospital in Canandaigua. Bogart at such linic had men working at the Veterans Hospital. What oc- curred is revealed by the following credited excerpts from Akens' testimony " Q. Do you know approximatel when these were'? A. Well, sometime in January, 1979. 1 got done there; the last day that I worked there was March 16th, 197". Q. Did you have a conversation with Mr. Bogart at any of these times? A. Yes, a few times we had a general conversa- tion. He asked me what I was going to do when I got done work. I said I didn't. He said, if I need work to come and see him. Q. Did he say anything else about it'" A. It would be strictly non-Union K. The Violation of Section 8(a)(5) b Withdrawal of Recognition rom the Union The General Counsel contends and the Respondent denies that the Respondent violated Section 8(a)(5) and (1) of the Act by the withdrawal of recognition of the Union on May 3, 1979, and by refusal thereafter to meet or bargain with the Union as requested. The only real issues presented are whether the appro- priate bargaining unit continued, and whether the Union I Bogarl tesnfied in dental of the aforesaid onversaionll and lestific in effecl hal his last itl to he (ananldaigusa itc vsas ;rounu d l)ceniher 1979 C onsiderilig tiogart' testimonial demeatnoir. h logical colnsisten>l of facts. and Akcns' Icstinm lllal deimealnor, I Im persuaded Ih l Akcls ap- peared to he a mlor rlhablc aild trultsw orlh, \illlness I credit Akenl' Its limony over Ihal of tlogarl has cotillued to have majoriy status and to be the ex- clusive collectlie-bargaining representatisV of the em- ployees in Ihe appropriate collectis e-bargaining unit As has been indicated, the ficts reveal that the appropriate collecti e-bargainlllg ulllit ontinued tit exist throughout the time of the 197 7 collective-hargaininig agreement and after such contract. The facts also reveal that cir- cumstances to overcome the presumption of majority to be accorded the Union because of the contractual rela- tionship have not been revealed. Thus. it is clear that at the time of Respondent's May 3, 1979, withdra, al of recognition front the Union. Respondent had the obliga- lion to continue to recoglnie and to bargain with the lnioni The facts reveal that Respondenlt has failed to recognize and to bargain with the Union at all tinles since May 3, 197Q. Accordinllly. it must be found that Respondeitl. b such ahoe-referred-to conduct. has io- lated Section X(a)(5) and (1) of the .Act It is so found and conc luded. l. 'hf ' L'llaterall Changes IThe facts are clear that after Ma} 31, 19779 Rspond- ent engaiged in ork of the tpe normally performed hv bargainling unit employees and employed emiplovees to perforn sucIh work. The ternm, conditionls, and benefits of employment of the emplo ees performing such work were different from the terms. conditions, and helnefits of employmelt ils ha d been ill effect during the termn of the 1976 79 contr;lct hetlweenl the Respondenit ad thce Union. Although the Unlion had requested hargaining with the Respondent on Aipril 24, 1979, Respondent had refused to meet or hbargain ith the Union ad set the chanlged lerins, wages, and conditioils f enlplovnIent Wvilhout bargaininig about the same. It has alrcad\ been found that Respondents refusal to bargain with the niotl on and after May 3, 1979. consti- tuted a viol;ltioi of Secioni (a)(5) aid () of the Act. 13\ such collduct, alnd b a self-dleterminatioln to gco on- unionl and ignore the Unrion, and byv indication of the sanlie to employees, Respondent, was ot in a positiont to raise a good-faith doubt ithinl the meaning of lerre/ Machine Co., 173 NLRB 148() (06h). Respondenit .as obligated to bargain with the Union as to any change in terms. wages. benefits, and conditions of employment of employees in the appropriate bargaining unit. Respond- ent's change in terms, wages, benefits, and conditions of employment of employees in the appropriate bargaining unit without bargaining with the Union about such changes constituted conduct violative of Section 8(a)(5) and () of the Act. It is so concluded and found Since the overall facts clearly reveal that Respondent's changes in wages, terms, benefits, anrid conditions iot' em- ployment were because Respondent had decided that its jobs would be nonunion, such changes also constituted conduct violative of Section 8(a)(3) aid (1) of the Act. M. 7he Discrimination in Eplovnment As indicated above, the unilateral changes in terms, wages. benefits. and conditions of emnplo)meit made bh Respondent, constituted conduct violative of Section 8(a)(3) and (I) of the Act. It is clear that such changes. 4 11 DECISIONS OF NATIONAI. L.AB()R RLATIONS BO()ARD to the extent adverse to the preexisting terms, wages, benefits, and conditions of employment, constituted con- duct discriminatory to the employees who sought em- ployment or were hired as employees on and after May 31, 1979. The facts reveal that the Respondent discussed with Kenneth Akens, at some point of time between January and March 16, 1979, the fact that future employment would be on a nonunion basis."' The credited testimony of Armstrong and Page reveals that Bogart and another supervisor discussed with them employment opportuni- ties for them around that time and that the same were to be on a nonunion basis and at rates different from the 1976-979 collective-bargaining agreement. Neither Armstrong, Akens, nor Page was employed by the Respondent. All credibly testified in effect that they did not want to work nonunion or for lower wages. Al- though it appears that some question may arise as to whether some of the jobs were actually for higher or lower wages, the conditioning of a job as nonuntion or without pension benefits, constitutes evidence of discrim- ination. The General Counsel alleges and the Respondent denies that "Since on or about the date alleged, Re- spondent conditioned employment of the employees or applicants named below' on acceptance of wages and conditions of employment which were substantially infe- rior to those provided for in the contract described in paragraph VII of the complaint; Ken Akens, March 16, 1979. John Armstrong, mid-June, 1979, Kenneth Page, mid-June, and additional unknown persons employed by the Respondent to perform plumbing, heating and steam- fitting work, June 1, 1979, and continuing to date." Considering the facts found, it is clear that the unilat- eral changes constituted discrimination toward Arm- strong, Akens, and Page, and to the employees who were hired by the Respondent on and after May 31, 1979. Such conduct of unilateral changes and condition- ing of employment was violative of Section 8(a)(3) and (I) of the Act. IV. Tll IFITECT OI I HE UNIAIR I ABOR PRACIICE S UIPON COMMIRCE The activities of the Respondent set forth in section III, above, occurring in connection with the Respond- ent's operations described in section 1, above, have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. TIHI REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the meaning of "I It is clear that the effect of the Respondent's ilnonunion plicy ad changes in ages, terms. benefits. and conditions of emplioymelit related Iit employees a;nd applicanls on and after May 31. 197i9 i Although Bogart testlfied to some extent in denial of Arnstrong's and I'age's testirloiny. , I note that Bogart's testimonly ultimaiely corrobo- rated Armstrong's testimony aboul Armstrong's concern about his pen- sion I found Armstrong's and Paige' testimony more helicsable and credit their version ,of faclts over Hogaris w here in conflict Section 8(a)(5) and (1) of the Act. it will be recommend- ed that Respondent be required to cease and desist there- from, and, upon request, bargain collectively with the Union as the exclusive representative of all employees in the appropriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. Having found that Respondent has made unilateral changes in terms, wages, conditions, and benefits of em- ployment, in violation of Section 8(a)(5), (3), and (1) of the Act, it will be recommended that Respondent cease and desist from making such unilateral changes, and that Respondent bargain in good faith with the Union as re- gards changes in terms, wages, benefits, and conditions of employment. Having found that Respondent has conditioned em- ployment of Armstrong, Akens, and Page, and of the employees who were hired on and after May 31, 1979, in the appropriate bargaining unit, upon acceptance of terms, wages, benefits, and conditions of employment at variance with terms, wages, benefits, and conditions of enmployment ii existence prior to Respondent's unlawful unilateral changes of such wages, terms, benefits, and conditions of employment, it will be recommended that Respondent reinstate Armstrong, Akens, and Page to such jobs as they would ha,e received absent Respond- ent's conditioning of employment upon its unilateral and unlawful determination of wages terms, benefits, and conditions of employment. It call be determined in the compliance proceeding what jobs, if any, Armstrong, Akens, or Page would have received absent the discrimi- nation against them. Further, it will be recommended that Respondent make whole Armstrong, Akens, and Page, ad all employees hired oni and after May 31, 1979, for any loss of wages or other benefits suffered as a result of the discrimination against them. Backpay is to be computed i accordance with the formula set forth in 1 W. Woolworth Comnpany, 90 NLRB 289 (1950), with inlterest as prescribed in FIlorida Sluate Corporation, 231 NLRB 651 (1977). 12 Respondent's unfair labor practices are of such a nature that a broad cease-and-desist order is needed to fully dissipate the effect of the unfair labor practices and to prevent further unfair labor practices. Upon the basis of the above findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS or LAW 1. The Respondent, Finger Lakes Plumbing & Heating Co., Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Union No. 13, is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. 3. All plumbers, steamfiltters, and pipefitters employed by Respondent in commercial jobs (as more completely described in the contract received in evidence in the unfair labor practice hearing on February 25. 1980, in See, gerierall . lAi Plumrnbirn lIteuring Co., 138 NLRB 716 (1962) 412 FIN(;IR l.AKKES PIl.lMHING & ItAT FIN( C(() Case 3-CA-9262). excluding office clerical employees, professional employees, guards and supervisors as de- fined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. At all times material herein, the Union. set forth above, represented a majority of employees in the above appropriate bargaining unit, and has been the exclusive representative of said employees for the purpose of col- lective bargaining within the meaning of Section 9(a) of the Act. 5. By withdrawing recognition from and refusing to bargain with the Union on and after May 3, 1979, and by unilaterally changing existing wages, benefits, terms, and conditions of employment of unit employees on and after May 31, 1979, Respondent engaged in conduct violative of Section 8(a)(5) and (1) of the Act. 6. By the making of such unilateral changes in terms, wages. benefits, and conditions of employment and by conditioning employment upon acceptance of the changed terms, benefits, wages, and conditions of em- ployment, Respondent engaged in conduct violative of Section 8(a)(3) and (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) ad (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER ' The Respondent, Finger Lakes Plumbing & Heating Co., Inc., Geneva, New York, its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Unlawfully withdrawing recognition from United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Union No. 13, as the exclusive collec- tive-bargaining representative of employees in the below listed appropriate bargaining unit, refusing to bargain collectively with said Union, and from making unilateral changes, all with respect to rates of pay, wages, benefits, hours, and other terms and conditions of employment of employees in the below listed appropriate bargaining unit: All plumbers, steamfitters and pipefitters employed by Respondent in commercial jobs (as more com- pletely described in its contract with said Union for 1976-79), excluding office clerical employees, pro- fessional employees. guards and supervisors as de- fined in the Act. (b) Discouraging membership in United Association of Journeymen and Apprentices of the Plumbing and Pipe- ':' In the event no xceptions are filed as provtded by Sec 102 46 of the Rules and Rcgulatiois of the Naillnal .lhbor Relations Hlord. ti findings, conclusions, and recommended Order herein shall. a pros idcd in Sec 102 4 of the Rules and Rgulallions. he ildoptld bh the Itbalrd .nd hecomce is findings, conclusions. anrid Order and all (ohjcoitnlls thereto shall be deemed val:ed fr all prposes fitting Industry of the United States and Canada, Local Union No. 13, or any other labor organization. discrimi- nating against its employees, laid-off employees. or appli- cants for employment, through the imposition of illegal conditions of employment, or by otherwise discriminat- ing against an of its employees in regard to hire, tenure, or conditions of their employment. (c) In any other manner interfering with, restraining. or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act except to the extent that such rights may be affected by lawful agreements in accord with Section 8(a)(3) of the Act. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Upon request, bargain with the ahove-named labor organization as the exclusive representative of all em- ployees in the aforesaid appropriate unit with respect to rates of pay, wages, hours, and other terms and condi- tions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. (b) Offer to Kenneth Akens, Kenneth Page, and John Armstrong immediate and full instatement to such posi- tion as each would have been instated absent the discrim- ination against each, or, if such position no longer exists, to a substantially equivalent position without prejudice to each's seniority, or other rights previously enjoyed, and make each of them and all employees employed on and after May 31, 1979, whole for any loss of pay or other benefits suffered by reason of the discrimination against each in the manner described above in the section enti- tIed "The Remedy" (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other re- cords necessary to analyze the amount of backpay due under the terms of this recommended Order. (d) Post at Respondent's place of business at Geneva, New York. and at all jobsites, copies of the attached notice marked "Appendix.""4 Copies of said notice, on forms provided by the Regional Director for Region 3, after being duly signed by Respondent's representatives, shall be posted by it immediately upon receipt thereof, and be maintained by Respondent for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall he taken by Respondent to insure that said notices are not altered, defaced, or cov- ered by any other material. (e) Notify the Regional Director for Region 3, in writ- ing, within 20 days from the date of this Decision, what steps the Respondent has taken to comply herewith. I- IS :ULRHIR ORDERHI.) that the allegations of unlaw- ful conduct not specifically found to be violative herein be dismissed. I4 the :seilt that this ()rdecr is nfi)rced h5 a Judgmtnlt of .i triled Slates C(urt of Appeals the Hords il the iotic readlllg "'osied h Order of thle Nalial Il.ahor Relations Board shall rad "Posted ursu- tlit h a Jludnllc'nl tI !tcl [1 ite'd Staites ()url of Appeails Eitforcliig an ()rder of lthe Nll il I ihor Rellltlrs ItllIrd 41