Yellowstone Plumbing, Inc.

YELLOWSTONE PLUMBING 993 Yellowstone Plumbing, Inc. and Dean Schneider and Local 30, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO. Cases 19-CA-17846, 19-CA-17854, and 19-CA-18336 20 November 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On 9 January 1987 Administrative Law Judge Roger B. Holmes issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed a reply brief. The National Labor Relations Board has delegat- ed 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, I and conclusions, to modify his remedy, 2 and to adopt the recommended Order as modified. We agree with the judge's finding that the Re- spondent committed numerous independent 8(a)(1) violations and that it violated Section 8(a)(3) and (1) by laying off and failing to reinstate employee Dean Schneider. We disagree„ however, with the judge's finding that the Respondent violated Sec- tion 8(a)(5) and (1) by withdrawing recognition from and refusing to bargain With the Union after contract expiration, for reasons set forth below. The Respondent, a plumbing contractor, was party to a multiemployer agreement with the Union as well as a separately bargained housing agreement. The parties stipulated that the master agreement and the housing agreement were effec- tive through 31 August 1985. On 9 April 1985 the Respondent's president, Floyd Lovejoy, informed the Union that the Respondent intended to termi- nate all its agreements with the Union and that it no longer considered itself represented by any mul- tiemployer group or association for the purposes of collective bargaining. Following the contract's ex- i The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect 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 2 In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 ( 1987), interest on and after 1 January 1987 shall be computed at the "short -term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 US C § 6621 Interest on amounts accrued prior to 1 January 1987 I the effective date of the 1986 amendement to 26 U S C § 6621) shall be computed in accordance with Florida Steel Corp., 231 NLRB 651 (1977) piration the Respondent withdrew recognition from the Union, refused to bargain with it, and uni- laterally changed the unit employees' wages and working conditions. The judge found this conduct violative of Section 8(a)(5) and (1) of the Act. In our recent decision in John Deklewa & Sons,3 we held that in cases involving bargaining relation- ships arising under Section 8(f) of the Act either party may repudiate upon contract expiration. As we stated in Deklewa: Beyond the operative term of the contract, the signatory union acquires no other rights and privileges of a 9(a) exclusive representative. Unlike a full 9(a) representative, the 8(f) union enjoys no presumption of majority status on the contract's expiration and cannot picket or strike to compel renewal of an expired agree- ment or require bargaining for a successor agreement. At no time does it enjoy a pre- sumption of majority status, rebuttable or oth- erwise, and its status as the employees' repre- sentative is subject to challenge at any time.4 In this case there is no evidence that the bargain- ing relationship between the Respondent and the Union is other than one arising under Section 8(f), and no party has sought to prove that it is. s Indeed, the General Counsel acknowledges the Union's 8(f) status in her brief filed after Deklewa issued, but seeks to distinguish that case, arguing the Respondent's withdrawal of recognition was tainted by bad faith, and therefore Deklewa should not apply. The General Counsel contends that the Respondent is not free to repudiate its collective- bargaining relationship upon contract expiration be- cause it refused to bargain for a new contract on the basis of a pending decertification petition later found to be tainted by the Respondent's own mis- conduct. Although we agree that the Respondent unlawfully encouraged the decertification effort, that misconduct does not warrant an exception to our policy under Deklewa. As noted above, under Deklewa the Union en- joyed no presumption of majority status on expira- tion of the collective-bargaining agreement . There- fore, although the Respondent would not be free to repudiate that agreement during its term, we find that it was under no obligation to bargain with the Union over a successor agreement. Consequently, and applying the principle that "the obligations we impose on an 8(f) employer through our applica- tion of Section 8(a)(5) to 8(f) agreements are limit- ed to prohibiting the unilateral repudiation of the 3 282 NLRB 1375 (1987) 4 Deklewa, supra at 1387 5 Id fn 41 286 NLRB No. 93 994 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD agreement until it expires or until the employer's unit employees vote to reject or change their rep- resentative"s and in accordance with our an- nounced policy to apply Deklewa retroactively,' we shall dismiss the 8(a)(5) allegations in the com- plaint. Further, because under Deklewa the Union enjoyed no presumption of majority status on the expiration of the collective-bargaining agreement and the Respondent was not obligated to bargain with the Union as of that time, we find that the Respondent was free to tell employees that after 1 September 1985 the shop would be nonunion and that their wages would not be lowered if the em- ployees went nonunion. Accordingly, we shall also dismiss the allegation that the Respondent violated Section 8(a)(1) based on these statements. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Yellowstone Plumbing, Inc., Billings, Montana, its officers, agents, successors, and as- signs, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 1(a). "(a) Threatening employees that the Respondent would shut down if the Company did not go non- union; encouraging its employees to file a petition to decertify the Union; and telling an employee that he was being laid off from work because the Respondent did not want the employee involved in the middle of the trouble or problems between the Respondent and the Union, and that the employee could come back to work after September, which was the month the contract between the Respond- ent and the Union was to expire." 2. Delete paragraphs 1(c) and 2(c) and (d) and reletter the subsequent paragraphs. 3. Substitute the attached notice for that of the administrative law judge. 6 Deklewa, supra at 1387 ' Id at 1389 To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT threaten you that we will shut down if the Company does not go nonunion; en- courage you to file a petition to decertify the Union or tell you that you are being laid off from work because of union activities, and that you can come back to work after the contract between our company and the Union expires. WE WILL NOT lay off Dean Schneider and fail to recall him to his former job, or to a substantially equivalent job, because of his union membership and activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL offer Dean Schneider immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent posi- tion, without prejudice to his seniority or any other rights or privileges previously enjoyed, and make him whole for any loss of earnings and other bene- fits suffered as a result of the discrimination against him, less any net interim earnings, plus interest. WE WILL notify Dean Schneider that we have removed from our files any reference to his dis- charge and that the discharge will not be used against him in any way. YELLOWSTONE PLUMBING, INC. James C. Sand, Esq., for the General Counsel. Doris M. Poppler, Esq. (Davidson & Poppler), of Billings, Montana, for the Respondent. Dean Schneider of Laurel, Montana, for himself as an in- dividual Charging Party. Joseph W. Duffy, Esq., of Great Falls, Montana, for the Charging Party Union. 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 ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. DECISION STATEMENT OF THE CASE ROGER B. HOLMES, Administrative Law Judge. Dean Schneider filed on 4 October 1985 the unfair labor prac- tice charge in Case 19-CA-17846. I usually will refer to Charging Party Schneider in this decision as Schneider. Local 30, United Association of Journeymen and Ap- prentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO filed on 7 October 1985 the unfair labor practice charge in Case 19-CA- YELLOWSTONE PLUMBING 995 17854. I usually will refer to the Charging Party Union in this decision as the Union. The Regional Director for Region 19 of the National Labor Relations Board, who was acting on behalf of the General Counsel of the Board, issued on 14 November 1985 an order consolidating cases, consolidated com- plaint and notice of hearing in Cases 19-CA-17846 and 19-CA-17854. The General Counsel alleged that the Re- spondent, Yellowstone Plumbing, Inc., had engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. I usually will refer to the Re- spondent in this decision as the Employer. The Employer entered into an informal settlement agreement which contained a nonadmission clause, and which was approved on 12 December 1985 by the Re- gional Director. Neither Schneider nor the Union en- tered into that settlement agreement. The Union filed on 27 May 1986 the unfair labor prac- tice charge in Case 19-CA-18336. On 20 June 1986 the Regional Director revoked his approval of the settlement agreement in Cases 19-CA- 17846 and 19-CA-17854 on the grounds that the Em- ployer had failed to comply with the terms of the settle- ment agreement. . The Regional Director also issued on 20 June 1986 a second order consolidating cases, consolidated complaint and notice of hearing in Cases 19-CA-17846, 19-CA- 17854, and 19-CA-18336. The General Counsel alleged in that consolidated complaint that the Employer had en- gaged in unfair labor practices within the meaning of Section 8(a)(1), (3), and (5) of the, Act. The Employer filed on 1 July 1986 an answer to that consolidated com- plaint; denied that the Employer had engaged in the al- leged unfair labor practices; and raised certain affirma- tive defenses to the General Counsel's allegations. I heard the evidence in this consolidated proceeding on 12, 13, and 14 August 1986 at Billings, Montana. I set 18 September 1986 as the time for filing posthearing briefs. The General Counsel and the attorney for the Re- spondent filed such briefs. On 22 September 1986 a motion to strike and Respondent's brief in support of motion were received from the attorney for the Re- spondent. On 25 September 1986 [ issued an order that permitted the General Counsel to file a response to the motion to strike by 10 October 1986. On 26 September 1986 the General Counsel's response to motion to strike was received from the General Counsel. On 3 October 1986 Charging Party Union's response to motion to strike was received. On 16 October 1986 I issued an order denying motion to strike. Under Section 102.26 of the Board's Rules and Regulations, such motions and orders are part of the record in this proceeding, and, therefore, it is not necessary to reiterate those matters here. FINDINGS OF FACT AND CONCLUSIONS 1. JURISDICTION The Employer is engaged in the residential and com- mercial plumbing business as a contractor. The Employ- er is a Montana corporation and has an office and place of business in Billings, Montana. During the 12 months preceding the issuance of the second order consolidating cases, consolidated complaint and notice of hearing, the Employer sold and shipped goods or provided services valued in excess of $50,000 from its facilities within the State of Montana to customers outside of Montana, or the Employer sold and shipped goods or provided serv- ices valued in excess of $50,000 to customers within Montana, which customers were engaged in interstate commerce by other than indirect means. Based on the pleadings and the evidence presented in this proceeding, I find that the Employer has been at all times material, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION Based on the pleadings and the evidence presented in this proceeding, I find that the Union has been at all times material, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Evidence The findings of fact in this section and in the other sections of this decision are based on credited portions of the testimony given by the witnesses at the hearing in this proceeding. In making credibility resolutions, I have considered primarily the demeanor of the witnesses as they related their versions of the facts on the witness stand. In addition, I have considered such factors as whether the witnesses were identified with one of the parties to the proceeding; the likelihood of the witnesses having a bias for or against one of the parties; whether the witnesses had an interest in the outcome of the litiga- tion; the probability of the testimony given by the wit- nesses; the consistency or the inconsistency of the wit- nesses' versions; whether the record reflects a basis for the witnesses' knowledge of the events about which the witnesses testified (see Rule 602 of the Federal Rules of Evidence); whether the answers by the witnesses to cer- tain questions on direct examination were to leading questions, except as permitted by Rule 611(c) of the Fed- eral Rules of Evidence; and the matters brought out on the record by the attorneys which the attorneys urge are matters affecting the credibility of the witnesses. I also have considered the perception, the memory, and the ability of the witnesses to relate past events accurately. Finally, in making the findings of fact, I have been guided by the holding that it is common that a trier of fact will believe some of the testimony of witnesses, but not necessarily believe all of the witnesses' testimony. The court held in NLRB v. Universal Camera Corp., 179 F.2d 749, 754 (2d Cir. 1950): "It is no reason for refusing to accept everything that a witness says, because you do not believe all of it; nothing is more common in all kinds of judicial decisions than to believe some and not all." In addition, certain findings of fact throughout the de- cision are based on documentary evidence which was in- troduced by the attorneys at the hearing. There are no allegations in the General Counsel's con- solidated complaint that any unfair labor practices oc- 996 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD curred prior to July 1985. Thus, none of the events in this section are alleged to be unfair labor practices. In- stead, the events in this section provide some back- ground evidence to the events which are in issue as to whether those events constitute unfair labor practices. Floyd Lovejoy is the president of the Employer, and Beverly Lovejoy is the secretary-treasurer of the Em- ployer.' Floyd Lovejoy and Beverly Lovejoy are hus- band and wife. They are the principal stockholders of the Employer. The Employer has been in business for about 23 years as a plumbing contractor for both residen- tial and commercial work. The Employer is located in Billings, Montana. Floyd Lovejoy and Beverly Lovejoy also are the principal stockholders and officers of an- other corporation known as JSA Plumbing. That compa- ny is located in Bozeman, Montana. Floyd Lovejoy II is the manager of JSA Plumbing. Floyd Lovejoy II is the oldest son of Floyd Lovejoy and Beverly Lovejoy. Floyd Lovejoy II had participated in the Union's ap- prenticeship training program, and he became a journey- man plumber in the Union. Dan Lovejoy is the younger son of Floyd Lovejoy and Beverly Lovejoy. At the time of the hearing, Dan Lovejoy was registered with the State of Montana Plumbing Apprenticeship Program in Bozeman, Montana.' General Counsel's Exhibit 11(a) is a copy of an agree- ment between the Master Plumbers of the Billings Con- tractors' Council, Incorporated and the Union. The doc- ument usually was referred to for convenience at the hearing as the master agreement. Appendix A of the master agreement contains 50 definitions of work, which is covered by that collective-bargaining agreement. Gen- eral Counsel's Exhibit 11(b) is a copy of a document known as the Supplemental Housing and Service Agree- ment. That agreement was between the Employer and the Union. That agreement usually was referred to for convenience at the hearing as the housing agreement. The scope of the work covered by the housing agree- ment is set forth in section 22 entitled "Scope of Work." The wage rates to be paid for work performed under the housing agreement are set forth in section 23 entitled "Wage Rates." Among other things, the housing agree- ment provides that the hourly wage rate for journeymen shall be 60 percent of the prevailing journeyman's rate of pay set forth in the master agreement.3 The parties stipulated that the master agreement and the housing agreement were the contracts that the Em- ployer and the Union had through 31 August 1985. Both Floyd Lovejoy and former union business repre- sentative, Monty Patterson, testified that the scope of the work covered by the collective-bargaining agreement was different from and broader in scope than the type of work which requires a person to have a State of Mon- tana plumbing license. Respondent's Exhibit 9 is a copy of the State of Montana statutes in Title 37, Chapter 69, I The first and the last names of Floyd Lovejoy and Beverly Lovejoy will be used in this decision in order to distinguish between references to each one of them 2 The foregoing findings are based on credited portions of the testimo- ny of Floyd Lovejoy and Beverly Lovejoy Floyd Lovejoy II and Dan Lovejoy did not testify at the hearing in this proceeding 2 The foregoing findings are based on documentary evidence which deal with the licensing of plumbers under state law. A comparison of Respondent's Exhibit 9 with Gen- eral Counsel's Exhibit 11(a) reveals the validity of the observations of Floyd Lovejoy and Patterson. I conclude that, in order to determine the scope of the bargaining unit work in this proceeding, the master agreement must be examined to see if that document defines the type of work covered by the bargaining unit. As indicated above, Appendix A to the master agreement contains 50 definitions of the type of work covered by that collec- tive-bargaining agreement. Thus, the document itself de- fines the scope of the bargaining unit here. In these cir- cumstances the definition of bargaining unit work is gov- erned by the earlier collective-bargaining agreement. One should not look to the statutes concerning the li- censing of plumbers to find out what the scope of the bargaining unit work is. At the time of the hearing Monty Patterson was em- ployed by the 4-G Plumbing and Heating Company. He was working as a journeyman plumber for that company. From August 1978 until January 1986, Patterson was a business agent of the Union. Patterson explained at the hearing that, in order for a person to be on any of the Union's referral lists, the person must have passed a union journeyman's plumbers examination or come up through the Union's apprenticeship program. In addition to those qualifications a person must also have worked for a sufficient time in the area. The Union has referral lists that are known as the A, B, and C lists. In order to be on the Union's A list, a person must have been a jour- neyman plumber with 4 years of experience. The Union also has a separate list of persons who are qualified to perform residential plumbing work. That list is known as the residential list. In order to be on that list a person has to possess, or be able to obtain, a State of Montana jour- neyman plumbers license, and the person has to have 4 years of experience in the trade. Patterson further ex- plained that a journeyman plumber, who thought that he had a better chance of getting work on the residential list, could make a request to the Union that his name be placed on the residential list. In order to become a member of the Union, an applicant first would have to certify to the Union that that person had 4 years of expe- rience in a particular craft, such as a plumber or as a pipefitter. Then the person would have to pass the Union's examination . A person may become a union member while that person is undergoing an apprentice- ship. Such an apprentice would have a 6-month proba- tionary period after which his work would be evaluated by the Union's apprenticeship council.' Beginning in 1983 and continuing into 1984, there were disputes between the Union and the Employer. The disputes resulted from complaints received by the Union from other contractors who viewed the Employer to be engaged in unfair competition with them. Those other plumbing contractors told the Union that they believed that the Employer was performing commercial work under the housing agreement when the jobs were in 4 The foregoing findings are based on credited portions of the testimo- ny of Patterson YELLOWSTONE PLUMBING 997 excess of the dollar limits of the housing agreement. In addition, union members informed the Union that there were employees of the Employer who were not mem- bers of the Union.5 Also in either 1983 or 1984 Floyd Lovejoy complained to the Union that he was unable to compete with nonunion companies who were performing work cheaper than the Employer. In 1984 Floyd Love- joy contacted Attorney Alden Pedersen. Floyd Lovejoy told Attorney Pedersen that the Employer could not compete anymore, and that Floyd Lovejoy wanted to get out of the Union. As a result of the foregoing, Attor- ney Pedersen sent a letter dated 2 July 1984 to the Union. Respondent's Exhibit 4 is a copy of that letter. The letter stated: "You are hereby notified that Yellow- stone Plumbing Co, Inc. is terminating all agreements with you." Respondent's Exhibit 5 is a copy of a letter dated 13 September 1984 from Floyd Lovejoy to the Union. In that letter Floyd Lovejoy requested that the Union respond to his earlier request. The Union in- formed Floyd Lovejoy that the letter of 2 July 1984 had not been sent by registered mail, and that the letter was also untimely. Therefore, the Union rejected the notice. The Employer continued to operate as a union shop until 1 September 1985.6 On 2 October 1984 there was a meeting between the Employer and the Union with regard to a grievance that the Union had filed against the Employer. Present at the grievance meeting were: Floyd Lovejoy; Clifford T. Powell, who was business manager of the Union; Attor- ney Joseph W. Duffy, who is the attorney for the Union; Monty Patterson; and Jim Leichner. One of the topics discussed at the grievance meeting was the fact that two of the Employer's plumbers were not union members. Those persons were Herman A. Ballerstein and Craig Fiebiger. The Union requested that they comply with the Union's security clause in the collective-bargaining agreement, and that Ballerstein and Fiebiger make appli- cation to join the Union. Another topic pertained to Dan Lovejoy and Jerry Hopkins. They had been working for the Employer as plumbing apprentices, but they were not registered to do so. The Union requested that Dan Lovejoy and Hopkins be terminaled. Floyd Lovejoy tes- tified at the hearing in this proceeding that he was upset with the Union regarding that request. Floyd Lovejoy explained that when he had served for a couple of years on the apprenticeship board, he had known of conces- sions that had been made to other plumbing contractors, and one such concession had been made in 1980 to Floyd Lovejoy. As a result of the grievance meeting, Floyd Lovejoy said that he terminated Dan Lovejoy from em- ployment with the Employer, and that he sent Dan Lo- vejoy to work for JSA Plumbing in Bozeman. Floyd Lo- vejoy told Patterson that he would terminate Hopkins as an apprentice plumber, but he wanted to rehire Hopkins as a laborer. Patterson said that he had no objection to the rehiring of Hopkins as a laborer. In the presence of Patterson, Floyd Lovejoy told Hopkins that Hopkins b The foregoing findings are based on credited portions of the testimo- ny of Patterson. 6 The foregoing findings are based on credited portions of the testimo- ny of Floyd Lovejoy and on documentary evidence was to be a laborer, and that Hopkins could not use the tools of the trade. Floyd Lovejoy also told Hopkins that he would give Hopkins trouble if Hopkins did so. At the hearing in this proceeding Floyd Lovejoy explained that his reference to using the tools of the trade referred to connecting and disconnecting plumbing.' Another sub- ject discussed at the grievance meeting was the Union's contention that the Employer had failed to pay certain fringe benefits that were owed. Another topic that was discussed at the grievance meeting was the Employer's hiring practices. Still another topic discussed at the grievance meeting pertained to the Union's contention that the Employer was performing work under the terms of the housing agreement at a lower wage rate and with- out the payment of fringe benefits to employees, when such work should have been performed under the terms of the master collective-bargaining agreement with the Union. 8 On 4 October 1984 Attorney Duffy prepared a letter and sent a copy of that letter to Floyd Lovejoy and an- other copy to Attorney Pedersen. In that letter Attorney Duffy set forth the understanding which had been reached with regard to certain matters One such matter was that a payroll audit was to be performed with regard to the fringe benefit payments which were owed by the employer. Another matter was that the Union was to be notified by 16 October 1984 of verification of all of the work that had been performed by the Employer during the preceding 12 months under the supplemental housing agreement. In that connection it was to be verified which portions of such work were under $10,000, which was the dollar limit for the housing agreement at that point in time. Another matter was that Floyd Lovejoy was to advise his employees no later that 11 October 1984 that his employees must comply with the Union's security clause in the collective-bargaining agreement.9 On 25 October 1984 Patterson, in his capacity as the training coordinator of the Billings Piping Industry Joint Apprenticeship & Training Committee, wrote a letter to Floyd Lovejoy. Respondent's Exhibit 7 is a copy of that letter. Enclosed with that letter was a copy of an opinion that had been rendered on 18 April 1979 by the Labor Standards Division of the Department of Labor and In- dustry of the State of Montana. Patterson's letter to Floyd Lovejoy made reference to that opinion of the Labor Standards Division in denying Floyd Lovejoy's request for an exemption for Dan Lovejoy from the es- tablished apprentice selection procedures.' 9 During the period of time between 2 October and 8 November 1984, Floyd Lovejoy attempted to set up a meeting between the Employer's employees and the Union's representatives. One such meeting was arranged for Powell to attend, and a later such meeting was ar- ranged for Patterson to attend. Neither Powell nor Pat- 7 The foregoing findings are based on credited portions of the testimo- ny of Floyd Lovejoy 8 The foregoing findings are based on credited portions of the testimo- ny of Powell 9 The foregoing findings are based on credited portions of the testimo- ny of Attorney Duffy 10 The foregoing findings are based on credited portions of the testi- mony of Floyd Lovejoy and on documentary evidence 998 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD terson attended the meeting with the Employer's em- ployees during that period of time." On 8 November 1984 Patterson met at the Employer's shop with the employees of the Employer and the em- ployees of JSA Plumbing. 112 General Counsel's Exhibit 2 and Respondent's Exhibit 6 are copies of a letter dated 5 December 1984 from Patterson to Floyd Lovejoy with regard to the meeting that had been held on 8 November 1984. The letter stated that agreement had been reached at that meeting; Ballerstein and Fiebiger would make ap- plication for membership in the Union within 5 days; Dan Lovejoy and Hopkins would be terminated immedi- ately because they were not registered apprentices or li- censed journeymen; and JSA Plumbing employees would not be assigned to work in the Union's jurisdiction with- out the approval of the Union. The letter further stated that the first and last items set forth above had been complied with, but that the Union had not received ter- mination notices for Dan Lovejoy and Hopkins.13 Pat- terson stated at the hearing in this proceeding that he later received such termination notices with regard to both Dan Lovejoy and Hopkins. 114 Between the date of the grievance meeting held on 2 October 1984 and the date when the Union filed a Sec- tion 301 lawsuit against the Employer on 30 November 1984, Attorney Duffy had a telephone conversation with Beverly Lovejoy. After that conversation was conclud- ed, Attorney Duffy prepared a memorandum of the sub- stance of that telephone call. Beverly Lovejoy was the one who initiated the call. She told Attorney Duffy that she did not agree with his characterization in his letter of what had occurred at the grievance meeting. She told him that she disagreed with his letter, and she indicated that Floyd Lovejoy had a tape recording of the griev- ance meeting. Attorney Duffy replied that he had been unaware of that fact. Later on in the telephone conversa- tion Beverly Lovejoy told Attorney Duffy that she did not believe that Attorney Duffy's legal prowess was par- ticularly remarkable, and she suggested that maybe At- torney Duffy should return to law school. Beverly Love- joy also told Attorney Duffy that she was recording their telephone conversation, and that their conversation was on the speaker telephone at that time. Attorney Duffy then told Beverly Lovejoy that tape recording telephone conversations in the State of Montana without the knowledge of the party being tape recorded was a criminal offense. Attorney Duffy also told Beverly Love- joy that since Attorney Pedersen was her attorney that Attorney Duffy preferred to talk with Attorney Peder- sen and not to speak directly with Beverly Lovejoy. At- torney Duffy told Beverly Lovejoy that he was simply trying to ensure that there was compliance with the col- lective-bargaining agreement. He told her that the Union had gone through the grievance machinery; that the Union had resolved the matter and got an understanding 11 The foregoing findings are based on credited portions of the testi- mony of Floyd Lovejoy and Beverly Lovejoy 12 The foregoing findings are based credited portions of the testimony of Floyd Lovejoy and Patterson 13 The foregoing findings are based on documentary evidence 14 The foregoing findings are based on credited portions of the testi- mony of Patterson from Floyd Lovejoy that Floyd Lovejoy would comply; and that Attorney Duffy saw no reason for them to pro- long their telephone conversation. Attorney Duffy also told her that the Union intended fully to enforce the Union's rights under the contract, and if those rights were not complied with voluntarily, it was the Union's intention to file a lawsuit against the Employer.1B Immediately after the telephone conversation between Attorney Duffy and Beverly Lovejoy, Attorney Duffy telephoned Attorney Pedersen. At that time Attorney Duffy was advised that Attorney Pedersen was with cli- ents. Nevertheless, Attorney Duffy did have a telephone conversation with Attorney Pedersen on that date. At- torney Duffy told Attorney Pedersen that he thought it was inappropriate for Beverly Lovejoy to call him in light of the fact that Beverly Lovejoy had counsel. At- torney Duffy also told Attorney Pedersen that he was not pleased by the aspersions that Beverly Lovejoy had cast on him. Attorney Duffy also told Attorney Pedersen that he did not like to have telephone conversations tape recorded without the permission of the parties. Attorney Duffy also said that the Union intended to file a Section 301 lawsuit against the Employer if the Union could not get voluntary compliance. Attorney Duffy said at the hearing that he may have mentioned his frustration with the amount of correspondence that he had had with At- torney Pedersen in that matter and the affidavits Attor- ney Duffy had received from Floyd Lovejoy who indi- cated that there had been no jobs valued over $10,000 in the preceding year. Attorney Duffy stated at the hearing that he had examined the papers regarding some of those jobs, and he had determined that some of them had been over $10,000 in value. Attorney Duffy denied in his testi- mony that he had told Attorney Pedersen that it was At- torney Duffy's intention to break the Company, or to put the Company out of business, or any words to that effect. Attorney Duffy testified that he had never made such a statement to any contractor at any time during the 17 years that Attorney Duffy had been practicing labor law. Attorney Duffy denied that he made that statement to Attorney Pedersen or to Beverly Lovejoy at any other time. He said that he had never made such a statement.16 15 The foregoing findings are based on credited portions of the testi- mony of Attorney Duffy Beverly Lovejoy did not discuss the foregoing telephone conversation during the course of her testimony at the hearing. 16 The foregoing findings are based on credited portions of the testi- mony of Attorney Duffy I have considered the different version given by Attorney Pedersen, but I find that Attorney Duffy's testimony is more probable than Attorney Pedersen's version According to Attorney Pe- dersen, Attorney Duffy told him in a telephone conversation- "This is in- tended to break the company " However, Attorney Pedersen acknowl- edged at the hearing in this proceeding that he did not recall the exact words which had been used by Attorney Duffy In the opinion of Attor- ney Pedersen, Attorney Duffy was angry at the time, and it was his im- pression that Attorney Duffy was out to get the Company. Attorney Pe- dersen testified that he was shocked that the statement had come from an attorney Particularly in view of Attorney Duffy's many years of experi- ence in labor law, I find that it was improbable that Attorney Duffy made such a statement This credibility resolution is based on the lack of probability of Attorney Pedersen's version of the conversation, and his acknowledgment as noted above that he could not recall the exact words used by Attorney Duffy In crediting Attorney Duffy's account rather Continued YELLOWSTONE PLUMBING 999 On 27 February 1985 Floyd Love joy wrote a letter to the Union and requested that the Union send him a list of plumbers who were on the "housing only" list. In his letter to the Union, Floyd Lovejoy stated that the build- ing trades employees who had been dispatched to the Employer for work on housing had been unacceptable Floyd Lovejoy stated in his letter that due to their low productivity his labor cost was making it impossible for him to compete against other plumbing contractors. 17 On 2 April 1985 the Board of Plumbers of the Depart- ment of Commerce of the State of Montana wrote a letter which was addressed to all licensed master plumb- ers. Floyd Lovejoy is a master plumber. The letter re- ferred to the strict enforcement of a section of the Mon- tana Licensure Law from that day forward. A photostat- ic copy of the law in question was attached to the letter. Also attached to Respondent's Exhibit 8 was a response to the Board of Plumbers from Floyd Lovejoy with regard to Dan Lovejoy and Hopkins. The response indi- cated that Dan Lovejoy and Hopkins wanted to register and to start their apprenticeships. Floyd Lovejoy re- turned the form to the Board of Plumbers on 4 April 1985. Floyd Lovejoy stated at the hearing that he was unable to register Hopkins as an apprentice. 18 On 9 April 1985 Floyd Lovejoy addressed a letter to Powell as business manager of the Union. Respondent's Exhibit 1 is a copy of that letter. In summary, the letter gave notice to the Union of the Employer's intention to terminate all of its agreements with the Union, and 'the letter further notified the Union that the Employer was not represented by any multiemployer group or associa- tion for the purposes of collective bargaining . Powell ac- knowledged at the hearing in this proceeding that he had received timely Respondent's Exhibit 1. i s During the years that Powell served as business man- ager of the Union, Powell received notice from various employers or from employer groups advising the Union that the employers or employer groups wished to termi- nate collective- bargaining agreements with the Union. On a couple of occasions the Union also sent notice to employers of the Union's intention to terminate collec- tive-bargaining agreements when those agreements were to expire. Normally, on receiving such a notification from an employer, the Union normally set up bargaining negotiations to talk with the employer about what the next collective-bargaining agreement would contain. In the event the Union did not want to deal with the em- ployer, the Union let the contract expire. Powell gave as an example employers who were inactive companies. Powell also recalled one company that had informed Powell that it was going out of business. That company involved Michael Sabatich.20 Gerald R. Frisby is the owner of City Service Plumb- ing and Heating, which is engaged in small residential and small commercial plumbing business in Billings, Montana. Frisby has been a plumber for 35 years, and Frisby is a licensed master plumber. During the past 5 years prior to the time he testified at the hearing in this proceeding, Frisby has employed as many as 30 employ- ees However, by the time of the hearing, he had only two employees. Frisby attributed that fact to the state of the economy. Frisby said that his company previously had been a union shop for 22 or 23 years. However, by letter dated 25 June 1985 Frisby gave notice to the Union of his intention to terminate the company's con- tract with the Union. Respondent's Exhibit 3 is a copy of that letter. Attached to Respondent's Exhibit 3 is a postal service receipt, which is given to a person who deposits a letter to be sent by registered mail. That receipt also is dated 25 June 1985. At the time that Frisby sent the letter, Frisby had no employees. Thereafter, the Union did not contact Frisby. Frisby did continue in the plumb- ing business.21 Prior to July 1985 Floyd Lovejoy began experiencing problems with the state of his health due to tension and stress. At the hearing in this proceeding Floyd Lovejoy said that the tension had started with, the union griev- ances against him and the filing of the Union' s lawsuit against the Employer. In addition, two employees, Allen and Rolleson, were causing problems for Floyd Lovejoy because of their poor workmanship at the Rimrock Inn project. In July 1985 Floyd Lovejoy had a medical ex- amination by two physicians. Floyd Lovejoy was ad- vised that stress was causing him to experience high blood pressure and to develop blood clots. His physician also advised Floyd Lovejoy to "cut down, or it'll kill you." As a result of the foregoing, Floyd Lovejoy termi- nated both Allen and Rolleson, and he cut back on the bidding of jobs. However, it was not the intention of Floyd Lovejoy to cease business. In addition, Beverly Lovejoy, Floyd Lovejoy II, and Dan Lovejoy took on additional business duties in order to take some of the burden of the business off of Floyd Lovejoy.22 than Attorney Pedersen's account, I am not relying on the demeanor of Attorney Duffy The reason is that Attorney Pedersen was the last wit- ness called by the Respondent in the Respondent's case By that time in the hearing, Attorney Duffy had left the hearing in order to attend to other legal business Therefore, without objection, Attorney Duffy gave his testimony by telephone during the General Counsel's rebuttal case Attorney Duffy was at his office in Great Falls, Montana , and the other participants in the hearing listened to his testimony on a speaker tele- phone in Billings, Montana 17 The foregoing findings are based on documentary evidence is The foregoing findings are based on credited portions of the testi- mony of Floyd Lovejoy and on documentary evidence 19 The foregoing findings are based on credited portions of the testi- mony of Powell and on documentary evidence 20 The foregoing findings are based on credited portions of the testi- mony of Powell 21 The foregoing findings are based on credited portions of the testi- mony of Frisby and on documentary evidence I conclude that the testi- mony given by Fnsby does not impeach the testimony given by Powell. Powell's testimony described what the normal practice of the Union was in such situations An exception to the Union's practice pertained to inac- tive companies Since Frisby had no employees at the time, Fnsby's com- pany may have been considered to be an inactive company at that point in time, although Frisby continued his business and did have two employ- ees at the time of the hearing in this proceeding The evidence does not establish that the Union had knowledge of the latter fact 22 The foregoing findings are based on credited portions of the testi- mony of Floyd Lovejoy and Beverly Lovejoy 1000 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD B. The Alleged Violations of Section 8(a)(1) of the Act 1. Allegations The General Counsel alleged the following in para- graph 6 of the consolidated complaint to be violations of Section 8(a)(1) of the Act: 6. Respondent, acting through its agent , Floyd Lo- vejoy, engaged in the following acts and conduct at its facilities in Billings, Montana, in 1985. (a) In or about the end of July, threatened its em- ployees with the closure of its business if the em- ployees did not go non-union and promised its em- ployees that their wages would not be lowered if they went non-union. (b) Since in or about July, encouraged its em- ployees to circulate and file a petition seeking to de- certify the Union. (c) In or about mid-August, threatened its em- ployees with cut back and/or closure of the busi- ness if its employees did not go non-union. (d) On or about August 20 , informed an employ- ee that he was being laid off because Respondent did not want him in the middle of the problems be- tween the Union and Respondent, and that if the employee wanted to go non-union , to reapply after September 1. 2. Facts With regard to the General Counsel's allegations in paragraph 6(a) quoted above, Dean Schneider was present in the Employer's shop one morning when Floyd Lovejoy spoke to the employees about the Union. Schneider believed that the event occurred either in late June or July 1985. Because Schneider said that on the same occasion Floyd Lovejoy told Schneider that Floyd Lovejoy was laying off Wayne Rolleson at that time, I find that the event occurred in July 1985, as both Rolle- son and Allen were laid off from work at that time. (See sec. A.) In addition to Schneider and Floyd Lovejoy, also present at the Employer's shop that morning were Herman Ballerstein, Jerry Hopkins, Wayne Rolleson, and Jim Allen. Floyd Lovejoy told the employees that he had to file a letter with the NLRB 30 days in advance in order to leave the Union; that he thought there would be, or that he knew there would be, somebody to come out in order to take a vote; that he hoped that everybody could leave the Union or go nonunion; that if they could not, or if it did not go that way, he would be forced to shut down the Company.23 On 29 July 1985 Floyd Lovejoy had a conversation about the Union with employees Ballerstein and Craig Fiebiger. Schneider was not present at that conversation. At the hearing in this proceeding Floyd Lovejoy admit- 23 The foregoing findings are based on credited portions of the testi- mony of Schneider Ballerstem did not have a good recollection of that event. However, Ballerstem acknowledged at the hearing in this proceed- ing that Floyd Lovejoy might have said something to the effect that Floyd Lovejoy might be required to close the shop if Floyd Lovejoy was forced to remain in the Union ted that he told Ballerstein and Fiebiger that after 1 Sep- tember 1985 the Employer's shop would be nonunion. Floyd Lovejoy also admitted that he told those employ- ees that Floyd Lovejoy was getting out of the Union, and that if the employees stayed in the Union while the Company was nonunion, the employees might be subject to fines by the Union. Floyd Lovejoy further admitted that he told those employees that there would be no de- crease in wages or anything.24 With regard to the General Counsel's allegations in paragraph 6(c) quoted above, Fiebiger recalled a conver- sation in August 1985 with Floyd Lovejoy with regard to the Union. Ballerstein also was present. The conversa- tion took place in front of the Employer's shop before working hours. Fiebiger recalled that Floyd Lovejoy told the two employees that Floyd Lovejoy did not think that he could make it financially if he remained in the Union, and that Floyd Lovejoy would have to close the shop down if he had to remain in the Union.25 With regard to the Genera, Counsel's allegations in paragraph 6(b), Fiebiger recalled another conversation which took place after the conversation just described above with regard to the General Counsel's allegations in paragraph 6(c). On this latter occasion Floyd Lovejoy asked Fiebiger and Ballerstein to stop by the Employer's office and to sign a petition to get out of the Union. Fie- biger said that he and Ballerstein went to the office after work that day and signed two documents. Ballerstein also recalled at the hearing the occasion when Floyd Lo- vejoy had told Ballerstein and Fiebiger to stop by the Employer's office after work that day. Ballerstein said that the event occurred shortly before Ballerstein mailed the original petition to NLRB. Floyd Lovejoy discussed with Ballerstein the process of how Ballerstein could get out of the union by filing a petition with NLRB. Floyd Lovejoy gave Ballerstein the information as to how that process worked. Ballerstein received the forms for the first petition, which he subsequently filed either from Floyd Lovejoy or Beverly Lovejoy. Floyd Lovejoy ad- mitted at the hearing in this proceeding that he had given the forms to Ballerstein and Fiebiger to file the pe- tition with NLRB. Beverly Lovejoy admitted at the hearing in this proceeding that her handwriting was on 24 The foregoing findings are based on admissions made by Floyd Lo- vejoy Based on the credibility criteria previously set forth in section A, I have not credited Floyd Lovejoy's other versions of his conversations with the employees In one account Floyd Lovejoy stated that he had given numerous reasons to his employees as to why he was terminating the union contract Those reasons that he said he gave included the grievance meeting with the Union, the Union's lawsuit against the Em- ployer, his belief that the Union was out to get him, that if the Union wanted the Employer to be a union contractor, the Union would have dropped the lawsuit because he had done everything possible to satisfy the Union, the lack of productivity of the building trades employees whom the Union had dispatched to him, the Union's failure to dispatch to the Employer a housing plumber, the scope of work which was per- formed by nonunion employees who did not require a plumber's license, and his opinion that the Employer could not compete with nonunion contractors because of the Employer's higher wage rates 23 The foregoing findings are based on credited portions of the testi- mony of Fiebiger YELLOWSTONE PLUMBING 1001 the envelope in which Ballerstein placed the first petition he filed with NLRB.26 In order to place the foregoing facts with regard to the General Counsel's allegations in paragraph 6(b) in context, it is necessary to review certain of the Joint Ex- hibits that were introduced into evidence by the attor- neys at the hearing in this proceeding. Joint Exhibits 1(a) through (i) are documents that relate to Cases 19-RM- 1937 and 19-RM-1938. Specifically, Joint Exhibit 1(c) is the document that relates only to Case 19-RM-1937. Joint Exhibit 1(a) is a copy of a letter dated 29 July 1985 from the Respondent's attorney to Region 19 of NLRB. That letter forwarded to Region 19 copies of a RM peti- tion and a RD petition, which were marked as Joint Ex- hibits 1(b) and 1(c), respectively. Joint Exhibit 1(d) is a copy of a letter dated 6 August 1985 from the Respond- ent's attorney to the Union. That letter advised the Union that both of the employees of JSA Plumbing were the sons of the owner of JSA Plumbing, and the letter asserted that both of those employees no longer wished to be represented by the Union. Joint Exhibit 1(e) is a copy of an affidavit given by Floyd Lovejoy on 6 August 1985 before a notary public and in support of the petition involving the Employer. Joint Exhibit 1(f) is a copy of employee lists for the Employer and for JSA Plumbing. That document lists as employees of the em- ployer: Dean Schneider, journeyman plumber; Herman Ballerstein, journeyman plumber; Craig Fiebiger, jour- neyman plumber; Floyd Lovejoy, journeyman and master plumber; and Beverly Lovejoy, secretary. That document also lists for JSA Plumbing the following em- ployees: Floyd Lovejoy II, manager, and Dan Lovejoy, laborer. Joint Exhibit 1(g) is a copy of a letter dated 13 August 1985 from the Respondent's attorney to Region 19. That letter asked for withdrawal of the petitions in Cases 19-RM-1937 and 19-RM-1938. Joint Exhibit 1(h) is a copy of a letter dated 15 August 1985 from the Acting Regional Director to the Union. That letter ad- vised the Union that the petition in Case 19-RM-1937 had been withdrawn. Joint Exhibit 1(i) is a copy of a letter dated 15 August 1985 from the Acting Regional Director to the Union. That letter advised the Union that the petition in Case 19-RM-1938 had been withdrawn. Joint Exhibit 2(a) is the envelope addressed to Region 19 of NLRB with the return address of Ballerstein. The envelope was postmarked in Billings, Montana, with the postmark date of 21 August 1985. Joint Exhibit 2(b) is a copy of the petition filed on 23 August 19135 in Case 19- UD-385. That petition indicates that it was signed by Ballerstein . Joint Exhibit 2(c) is a copy of a letter dated 28 August 1985 from a field examiner of Region 19 of NLRB to Ballerstein. That letter refers to a conversation between Ballerstein and the field examiner wherein Bal- lerstein indicated that it was Ballerstein's intention to file a petition for decertification of the Union rather than a petition for withdrawal of union ,shop authority. There- fore, the letter indicates that the field examiner enclosed 26 The foregoing findings are based on credited portions of the testi- mony of Fiebiger and Ballerstem Based on the credibility criteria previ- ously set forth in sec A, I have not credited the versions given by Floyd Lovejoy and Beverly Lovejoy except for the admissions noted above copies of the proper petition forms for Ballerstein, and the field examiner indicated that the petition may be filed with Region 19 after 1 September 1985, which was the expiration date of the then-current contract. The field ex- aminer also enclosed a withdrawal request form for Bal- lerstein's use in withdrawing the petition in Case 19- UD-385. Joint Exhibit 2(d) is the withdrawal request form in Case 19-UD-385, which indicates that the re- quest was submitted by Ballerstein and approved by the Regional Director on 9 September 1985. Joint Exhibit 2(e) is a copy of a letter dated 9 September 1985 from the Acting Regional Director to the Employer with copies to Ballerstein and the union. That letter advised the parties that Case 19-UD-385 had been withdrawn. Joint Exhibit 3(a) is a copy of the petition filed on 13 September 1985 in Case 19-RD-2404. That document in- dicates that it was signed by Ballerstein.27 With regard to the General Counsel' s allegations in paragraph 6(d) quoted above, those allegations pertain only to the statements to Dean Schneider at the time that the Employer laid off Schneider from work, as distin- guished from the 8(a)(1) and (3) allegations pertaining to the layoff itself as alleged in paragraph 7 of the General Counsel's complaint. The events pertaining to the allega- tions in paragraph 7 of the General Counsel's complaint will be set forth in section C. On Tuesday, 20 August 1985, Floyd Lovejoy telephoned Schneider and asked Schneider to come to the Employer's office, which at that time was located at Floyd Lovejoy's house. Schnei- der then drove to the Employer's office. Beverly Love- joy also was present in the house, but she was not present during the conversation between Floyd Lovejoy and Schneider. Floyd Lovejoy told Schneider that Schneider had to be laid off, and that work was coming to an end. Floyd Lovejoy also told Schneider that Floyd Lovejoy did not want Schneider in the middle of things between Floyd Lovejoy and the Union because Floyd Lovejoy knew that there would probably be some trou- ble or some problems over it, and Floyd Lovejoy did not want Schneider involved in them. Schneider replied that he appreciated it, and that Schneider had enjoyed working for Floyd Lovejoy. Floyd Lovejoy then told Schneider that Schneider could come back to work for the Employer after September. Beverly Lovejoy admit- ted at the hearing in this proceeding that after Floyd Lo- vejoy had spoken with Schneider, she told Schneider that she hoped to see him later on after September.28 27 The findings in the foregoing paragraphs are based on documentary evidence 28 The foregoing findings are based on credited portions of the testi- mony of Schneider Based on the credibility criteria previously set forth in section A, I have not credited the accounts of Floyd Lovejoy and Beverly Lovejoy regarding this event, except with regard to the admis- sion set forth above by Beverly Lovejoy In Floyd Lovejoy 's version, Floyd Lovejoy said that he gave Schneider three reasons for his layoff Those were that the Employer was out of work, that Floyd Lovejoy wanted Schneider to get on the Union's hiring hall list ahead of a number of other employees who he anticipated would be laid off by another em- ployer, and that the Internal Revenue Service had called the Employer and was going to garnishee Schneider 's wages With regard to the IRS telephone call, Schneider acknowledged at the hearing that Beverly Lovejoy had telephoned Schneider's wife about a week before Schneider Continued 1002 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 3. Conclusions Based on the findings of fact set forth above with regard to the General Counsel's allegations in paragraphs 6(a) and 6(c), I conclude that the preponderance of the evidence supports the General Counsel' s allegations. I conclude that Floyd Lovejoy's statements to the employ- ees on those occasions constituted a threat that the Em- ployer would close its business if the Employer did not go nonunion . Thus, the possible closure of the Employ- er's business was directly linked to whether the Union continued to represent the Employer's employees. I fur- ther conclude that Floyd Lovejoy' s statements on those occasions were not a carefully phrased prediction based on objective facts which conveyed to the employees the Employer's belief as to demonstrably probable conse- quences beyond his control. NLRB v. Gissel Packing Co., 395 U.S. 574, 618 (1969). In the context of Floyd Love- joy's conversation with Fiebiger and Ballerstein on 29 July 1985, I also conclude that Floyd Lovejoy made a promise to those employees that their wages would remain the same after the Company went nonunion. Therefore, I further conclude that the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act as alleged in the General Counsel's complaint paragraphs 6(a) and 6(c). Based on the findings of fact set forth above with regard to the General Counsel's allegations in complaint paragraph 6(b) I conclude that Floyd Lovejoy encour- aged Fiebiger and Ballerstein to file a petition to decerti- fy the Union. The Board held in its decision in Eastern States Optical Co., 275 NLRB 371, 372 (1985): Thus, we agree that it is unlawful for an employer to initiate a decertification petition," solicit signa- tures for the petition,9 or lend more than minimal support and approval to the securing of signatures and the filing of the petition. 10 In addition, while an employer does not violate the Act by rendering what has been termed "ministerial aid," t t its actions must occur in a "situational context free of coercive conduct."12 In short, the essential inquiry is wheth- er "the preparation, circulation, and signing of the petition constituted the free and uncoerced act of the employees concerned." KONO-TV-Mission Tele- casting, 163 NLRB 1005, 1006 (1967). 11 Placke Toyota, Inc, 215 NLRB 395 (1974) 11 Times-Herald, Inc, 253 NLRB 524 (1980) 12D&HMfg Co,supra at 403. Under the circumstances described above in the find- ings of fact, I conclude that Floyd Lovejoy's encourage- ment to Fiebiger and Ballerstein to file a petition to de- certify the Union did not occur in a context free of coer- cive conduct in view of the threats to close the Employ- er's business if the Employer did not go nonunion. In view of such threats to the employees with regard to the future of the Employer's business, I conclude that the filing of the petitions with NLRB was not the free and uncoerced act of the employees concerned. Therefore, I conclude that the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act as alleged in the General Counsel's complaint paragraph 6(b). Eastern States Optical Co., supra. Based on the findings of fact set forth above with regard to the General Counsel's complaint allegations in paragraph 6(d), I conclude that the evidence showed that Floyd Lovejoy told Schneider that Schneider was being laid off from work because Floyd Lovejoy did not want Schneider involved in the middle of the trouble or prob- lems between Floyd Lovejoy and the Union. I further conclude that the evidence showed that Floyd Lovejoy told Schneider that Schneider could come back to work after September. The significance of that date was that the contract between the Respondent and the Union was to expire before 1 September 1985. I further conclude that telling an employee the foregoing is coercive of the employee's rights under Section 7 of the Act. Shawnee Milling, 265 NLRB 710 (1982); Kranco, Inc., 228 NLRB 319 (1977); Woody's Truck Stops, 258 NLRB 705 (1981); and Major Cab Co., 255 NLRB 1383 (1981). I further conclude that the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act by the foregoing conduct. C. The Alleged Violations of Section 8(a)(1) and (3) of the Act 1. Allegations The General Counsel alleged the following in para- graph 7 of the consolidated complaint to be violations of Section 8(a)(1) and (3) of the Act: s Inter-Mountain Dairymen, 157 NLRB 1590, 1613 (1966) s D & H Mfg Co, 239 NLRB 393, 404 (1978) was laid off, and that Beverly Lovejoy had told Schneider's wife that the Internal Revenue Service had called and asked if Schneider had worked for the Employer. In the prehearing affidavit of Floyd Lovejoy on 10 June 1986, Floyd Lovejoy did not state that he mentioned any problem with the IRS at the time that Floyd Lovejoy informed Schneider of his layoff Beverly Lovejoy testified at the hearing that she had received a telephone call from a person who said that she was an agent of the Inter- nal Revenue Service in Utah That person asked Beverly Lovejoy wheth- er Dean Schneider was working for the employer Beverly Lovejoy re- sponded by asking the person whether Schneider was in trouble. The telephone caller laughed and again asked whether Schneider worked for the employer Beverly Lovejoy responded, yes The person then told Beverly Lovejoy that she would be hearing from them Apparently, Bev- erly Lovejoy made the assumption based on the foregoing that the IRS was going to garnishee Schneider's wages 7. (a) On or about August 22, 1985, Respondent, by its agent, Floyd Lovejoy, laid off employee Dean Schneider. (b) Since Schneider's layoff, as described above in subparagraph 6(a) [7(a)], Respondent has failed and refused , and continues to fail and refuse to rein- state Schneider to his former or substantially equiv- alent job. (c) Respondent engaged in the conduct described above in subparagraphs 7(a) and (b) because Re- spondent believed that the employee named therein supported or assisted the Union, and engaged in concerted activities for the purposes of collective bargaining or other mutual aid or protection, and in YELLOWSTONE PLUMBING 1003 order to discourage employees from engaging in such activities or other concerted activities for the purpose of collective bargaining, or other mutual aid or protection. 2. Facts Dean Schneider has been a member of the Union since April 1974. Schneider is a journeyman plumber. Schnei- der was dispatched from the Union's hiring hall to work for the Employer on a project known as the Rimrock Inn. Schneider served as the union steward on that job. When the Rimrock Inn job was completed, Floyd Love- joy told Schneider that Floyd Lovejoy could keep Schneider working if Schneider was willing to work for the lower wage scale on other jobs. Schneider agreed to do so. However, when there was additional work known as "building trades work," the Employer paid Schneider the higher wage rate of a building trades journeyman plumber. 29 General Counsel's Exhibit 8(a) is a copy of the Em- ployer's payroll record for Schneider for the pay periods which ended on 3 July 1985 through 21 August 1985. That document shows that the date that the Employer hired Schneider was 18 October 1984. The document shows that the date that Schneider was released from employment was 21 August 1985. The document further shows that his rate of pay was $18.85. However, the document further shows that Schneider performed some work for the Employer at the wage rate of $11.31. For the payroll periods ending 3, 10, and 17 July 1985, Schneider worked 40, 30, and 18 hours, respectively, for the Employer at the wage rate of $18.85 an hour. For the payroll period ending 17 July 1985. Schneider also worked 6 hours for the Employer at the wage rate of $11.31 an hour. For the payroll period ending 24 July 1985, Schneider worked 12-1/2 hours for the Respondent at the wage rate of $18.85 and 27-1/2 hours at the wage rate of $11.31 an hour. For the payroll period ending on 31 July 1985, Schneider worked 32 hours for the Em- ployer at the wage rate of $18.85 an hour and 8 hours at the wage rate of $11.31 an hour. For the payroll periods ending on 7, 14, and 21 August 1985, Schneider worked 40, 40, and 31-1/2 hours, respectively for the Employer at the wage rate of $18.85 an hour.30 General Counsel's Exhibit 7(a) is a copy of the Em- ployer's timecard for Schneider for the month of August 1985. That document indicates that Schneider worked at the Blue Creek School project during that period of time. The document shows that the last day that Schnei- der worked for the Employer was Tuesday, 20 August 1985. The document shows that the payroll period ended on Wednesday, 21 August 1985.31 On two or three occasions during the summer of 1985, Floyd Lovejoy spoke with Schneider regarding the union pension plan. During those conversations Floyd Lovejoy asked Schneider how long Schneider had been a member of the local union. Schneider informed Floyd 29 The foregoing findings are based on credited portions of the testi- mony of Schneider 30 The foregoing findings are based on documentary evidence 3'The foregoing findings are based on documentary evidence Lovejoy that Schneider was just a few months away from being vested in the Union's pension plan.32 General Counsel's Exhibit 9 is a copy of the Employ- er's notice of termination of Schneider. The Employer's reason stated on that document as the reason for termi- nating Schneider was "reduction in force." The docu- ment shows as the last day worked by Schneider for the Employer to be 20 August 1985. His termination date shown on that form is shown to be 21 August 1985. The document is dated also 21 August 1985 over the signa- ture of Floyd Lovejoy.33 The reasons that were given by Floyd Lovejoy to Schneider at the time that the Employer laid off Schnei- der from work have already been set forth in section B with regard to the General Counsel's allegations in para- graph 6(d) of the consolidated complaint. In summary, the credited findings established that two reasons were given to Schneider at that point in time. One was that the Employer's work was coming to an end. The other reason was that Floyd Lovejoy did not want Schneider involved in the middle of the trouble or problems be- tween Floyd Lovejoy and the Union. As already estab- lished in the findings of fact in section B, Schneider was told that he could come back to work for the Employer after September. As already set forth in the findings of fact in section B, the findings establish that the telephone call in which the Employer had received from someone who said he was an IRS agent was not given by Floyd Lovejoy to Schneider at the time that Floyd Lovejoy laid off Schneider from work. The last project on which Schneider worked for the Employer was the Blue Creek School project. Just prior to the layoff of Schneider by the Employer, Schneider had begun what is known as finishing work. That work involved setting the fixtures; trimming the fixtures; and hooking up a water heater. Fiebiger was helping Schnei- der with the water lines, and Hopkins was insulating the water lines. In Schneider's opinion, there was approxi- mately a week's work left on that job as of the last day that Schneider worked there.34 Fiebiger said that he, Schneider, and Hopkins had been working on the Blue Creek School project during the summer of 1985. At the time that Schneider was laid off from work, Schneider and Fiebiger had been install- ing fixtures. Fiebiger said that after Schneider was laid off, Fiebiger performed what is known as punch-list work. General Counsel's Exhibit 7(c) contains copies of some of the Employer's timecards for Fiebiger. Those documents show that Fiebiger worked on the following dates at the Blue Creek School project after the termina- tion of Schneider: 22 August 1985, 1-1/2 hours; 29 32 The foregoing findings are based on credited portions of the testi- mony of Schneider Based on the credibility criteria previously set forth in section A, I have not credited the accounts of Floyd Lovejoy and Beverly Lovejoy who gave testimony which conflicts with the testimony of Schneider In summary, their version was that Floyd Lovejoy encour- aged Schneider to remain a member of the Union, and if it came to a vote, for Schneider to vote for the Union so that Schneider would not lose his union pension plan 33 The foregoing findings are based on documentary evidence. 34 The foregoing findings are based on credited portions of the testi- mony of Schneider 1004 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD August 1985, 4-1/2 hours; 30 August 1985, 7 hours; 2 September 1985, 8 hours; 3 September 1985, 4-1/2 hours; 6 September 1985, 2-1/2 hours.35 General Counsel's Exhibit 8(c) contains copies of cer- tain of the Employer's payroll records for Fiebiger for the payroll period ending 3 July 1985 through 18 Sep- tember 1985 . That document shows that Fiebiger was hired on 26 February 1981 by the Employer. The "date released" item is left blank. His rate of pay shown on the document was $13 an hour. However, the document also shows that Fiebiger worked at the wage rate of $18.85 an hour on certain occasions. With regard to the payroll period which ended on 3 July 1985, Fiebiger worked 37 hours for the Employer at the wage rate of $13 an hour. For the payroll period ending on 10 July 1985, Fiebiger worked 9 hours for the Employer at $13 an hour, and Fiebiger worked 14-1/2 hours for the Employer during that payroll period at $18.85 an hour. For the payroll period ending on 17 July 1985, Fiebiger worked 8 hours for the Employer at $18.85 an hour. For the payroll period ending on 31 July 1985, Fiebiger worked 24 hours for the Employer at $13 an hour. For the payroll period ending on 7 August 1985, Fiebiger worked 30-1/2 hours for the Employer at $18.85 an hour, and Fiebiger worked 9-1/2 hours for the Employer during that pay- roll period at $13 an hour. For the payroll period ending on 14 August 1985, Fiebiger worked 22 hours for the Employer at $13 an hour, and Fiebiger worked 18 hours for the Employer during that payroll period at $18.85 an hour. For the payroll period ending on 21 August 1985, Fiebiger worked 15-1/2 hours for the Employer at $18.85 an hour, and Fiebiger worked 10 hours for the Employer during that payroll period at $13 an hour. For the payroll period ending on 28 August 1985, Fiebiger worked 24 hours for the Employer at $13 an hour, and Fiebiger worked 1-1/2 hours for the Employer during that payroll period at $18.85 an hour. For the payroll period ending on 4 September 1985, Fiebiger worked 24 hours for the Employer at $18.85 an hour, and Fiebiger worked 7 hours for the Employer during that payroll period at $13 an hour. For the payroll period ending on 11 September 1985, Fiebiger worked 12-1/2 hours for the Employer at $13 an hour, and Fiebiger worked 2-1/2 hours for the Employer during that payroll period at $18.85 an hour. For the payroll period ending on 18 Sep- tember 1985, Fiebiger worked 8 hours for the Employer at $13 an hour. S 6 Robert Jam is the president of Travis-Jam, Incorporat- ed. Travis-Jam is a general contractor in the construction business. Travis-Jam had a contract for modifications to the Blue Creek School near Billings, Montana. The Em- ployer in this case was the plumbing subcontractor on that project. The daily reports of Travis-Jam revealed that a plumber last appeared at the Blue Creek School project on 8 October 1985. The last date that plumbers had performed regular work on that project was on 3 35 The foregoing findings are based on credited portions of the testi- mony of Fiebiger and documentary evidence 36 The foregoing findings are based on documentary evidence September 1985. After that date, the type of work per- formed at that project was "punch-list work."37 Respondent's Exhibit 12 is a copy of the Employer's statement that the Employer sent to Travis-Jam with regard to the plumbing work that the Employer had per- formed at the Blue Creek School project. The document is dated 25 August 1985. The document revealed that the base bid by the Employer for the work to be performed at the Blue Creek School project was $14,999. Accord- ing to Beverly Lovejoy, General Counsel's Exhibit 12 reflected the final billing by the Employer to Travis-Jam for the Blue Creek School project. She explained that there was what is known as a 10-percent hold-back, which meant that amount was withheld by the customer until all of the "punch-list work" had been completed. Beverly Lovejoy said that the Employer was not paid by Travis-Jam until 25 October 1985.38 After Fiebiger had completed his work for the Em- ployer, Floyd Lovejoy telephoned Fiebiger in either Oc- tober or November 1985 and asked Fiebiger to come back to work for the Employer. Floyd Lovejoy asked Fiebiger if Fiebiger could work on some weekends be- cause Floyd Lovejoy was behind and needed some help. Fiebiger replied no, and he explained that his name was on the union's list, and he did not think that the Union would permit Fiebiger to work for the Employer just on weekends.3 a Rather than rely on the recollections of the witnesses with regard to work performed both before and after the layoff of Schneider, I have examined the Employer's records that were introduced at the hearing in this pro- ceeding. General Counsel's Exhibit 8(b) contains copies of certain of the Employer's payroll records for Baller- stein. That document shows 29 August 1983 as the date that Ballerstein was hired by the Employer. The "date released" item is blank. The document shows that Baller- stein's rate of pay was $12 an hour. For the payroll period ending on 3 July 1985, Ballerstein worked 40 hours for the Employer at $12 an hour, which was his wage rate throughout this period. That document also shows the following number of hours worked by Baller- stein for the following payroll periods: 10 July 1985, 24 hours; 17 July 1985, 40 hours; 24 July 1985, 16 hours; 31 July 1985, 24 hours; 7 August 1985, 39-1/2 hours; 14 August 1985, 40 hours; 21 August 1985, 40 hours; 28 August 1985, 40 hours; 4 September 1985, 14-1/2 hours; 11 September 1985, 28-1/2 hours; 18 September 1985, 40 hours; 25 September 1585, 29 hours; 2 October 1985, 35 hours; 9 October 1985, 40-1/4 hours; 16 October 1985, 42 hours; 22 October 1985, 40 hours; 30 October 1985, 40 hours; 6 November 1985, 40 hours; 13 November 1985, 39-1/2 hours; 20 November 1985, 32 hours; 27 Novem- ber 1985, 24-1/2 hours; 4 December 1985, 8 hours; 11 December 1985, 14-3/4 hours; 17 December 1985 the entry "NLRB" and $56.76; 18 December 1985, 24 hours; 37 The foregoing findings are based on credited portions of the testi- mony of Jam 39 The foregoing findings are based on credited portions of the testi- mony of Beverly Lovejoy and on documentary evidence 39 The foregoing findings are based on credited portions of the testi- mony of Fiebiger YELLOWSTONE PLUMBING 25 December 1985, 31 hours; 1 January 1986, 25 hours; 8 January 1986, 40 hours; 15 January 1986, 40 hours; 22 January 1986, 40 hours; 29 January 1986, 40 hours; 5 February 1986, 40 hours; 12 February 1986, 40 hours; 19 February 1986, 16 hours; 26 February 1986, 19-1/2 hours; 5 March 1986, 6 hours; 12 March 1986, 8 hours; 19 March 1986, 40 hours; and 26 March 1986, 40 hours.40 General Counsel's Exhibit 7(b) contains copies of some of the Employer's timecards for Ballerstein for 1985 and 1986. In addition to the information regarding Ballerstein set forth above, General Counsel's Exhibit 7(b) shows the following number of hours worked by Ballerstem for the payroll period ending dates indicated: 9 April 1986, 40 hours; 16 April 1986, 40 hours; 23 April 1986, 41 hours; 30 April 1986, 36 hours; 7 May 1986, 40 hours; 14 May 1986, 40 hours; 21 May 1986, 41 hours; 28 May 1986, 32 hours; and 4 June 1986, 40 hours.' i General Counsel's Exhibit 8(d) contains copies of cer- tain of the Employer's payroll records for Hopkins. That exhibit shows that Hopkins was hired by the Employer on 22 July 1984. The document does not show a "date released." The document shows that his rate of pay was $8 an hour. The document shows the following number of hours worked by Hopkins for the payroll period ending dates indicated: 3 July 1985, 19-1/2 hours; 10 July 1985, 8 hours; 24 July 1985, 6-1/2 hours; 31 July 1985, 24 hours; 7 August 1985, 40 hours; 14 August 1985, 40 hours; 21 August 1985, 13-1/2 hours; 11 September 1985, 5-1/2 hours; 18 September 1985, 6-1/2 hours; 2 October 1985, 2-1/2 hours; 9 October 1985, 8 hours; 16 October 1985, 29 hours; 30 October 1985, 24 hours; 6 November 1985, 39 hours; 13 November 1985, 39 hours; 20 Novem- ber 1985, 16 hours; 4 December 1985, the entry "NLRB" and $14; 17 December 1985, the entry "NLRB" and $106; 18 December 1985, 16 hours; 25 December 1985, 16-1/2 hours; 1 January 1986, 16 hours; 8 January 1986, 28 hours; 15 January 1986, 8 hours; 22 January 1986, 33 hours; 29 January 1986, 24 hours; 5 February 1986, 40 hours; 12 February 1986, 16 hours; 19 March 1986, 40 hours; and 26 March 1986, 36 hours.42 General Counsel's Exhibit 7(d) contains copies of cer- tain timecards of Hopkins. In addition to the information set forth above, General Counsel's Exhibit 7(d) shows the following number of hours worked by Hopkins for the payroll periods indicated: 2 April 1986, 24 hours; 9 April 1986, 32 hours; 16 April 1986, 40 hours; 23 April 1986, 41 hours; I May 1986, 40 hours; 14 May 1986, 40 hours; 21 May 1986, 42-1/2 hours; and 28 May 1986, 28 hours.43 General Counsel's Exhibit 8(e) contains a copy of the Employer's payroll record for Maynard Day. The docu- ment shows that Day was hired on 30 October 1985 and that he was released on 8 November 1985. His rate of pay is shown as $13. For the payroll period ending 30 October 1985, Day worked 16 hours for the Employer. 40 The foregoing findings are based on documentary evidence 41 The foregoing findings are based on documentary evidence 42 The foregoing findings are based on documentary evidence 43 The foregoing findings are based on documentary evidence 1005 For the payroll period ending 6 November 1985, Day worked 32 hours for the Employer.44 General Counsel's Exhibit 7(e) contains copies of two of the Employer's timecards for Day. Those documents indicate that Day worked for the Employer at the IGA jobsite 8 hours on 29 October 1985, on 30 October 1985, 8 hours; on 31 October 1985, 8-1/2 hours; on 1 Novem- ber 1985, 8 hours; and on 4 November 1985, 8-1/2 hours on 2 November 1985, Day worked 7 hours for the Em- ployer remodeling a bathroom at a bazar .45 General Counsel's Exhibit 8(f) contains a copy of the Employer's payroll record for William P. Flynn. That document shows that the date of hire of Flynn was 3 November 1985, and the date of his release from employ- ment was 22 November 1985. The document shows that Flynn's rate of pay was $11 an hour. However, the doc- ument also shows that he worked certain hours for the Employer at $10 an hour. For the payroll period ending 6 November 1985, Flynn worked 24 hours for the Em- ployer at $11 an hour. For the payroll periods ending 13 and 20 November 1985, Flynn worked 8 hours for the Employer at $10 an hour .46 General Counsel's Exhibit 7(f) is a copy of the Em- ployer's timecard for Flynn. That document shows that Flynn worked for the Employer at the IGA jobsite on 4, 5, and 6 November 1985 for 8 hours each day. The doc- ument also shows that on 31 October 1985 and on 1 No- vember 1985 Flynn worked for JSA Plumbing on a motel in Bozeman.47 General Counsel's Exhibit 12(a) is a copy of a letter dated 25 November 1985 from the Respondent's attorney to Region 19. The letter enclosed a copy of the settle- ment agreement executed on behalf of the Employer and the Employer's check in the amount of $562.42. The letter also advised the Regional Director that the Re- spondent would offer employment to Schneider in ac- cordance with the agreement. The letter stated that the Employer only had one employee working at that time due to business conditions and the weather. The letter further advised that the Employer would offer Schneider reinstatement as soon as a job became available, and that Schneider would be the first person employed .411 General Counsel's Exhibit 12(b) is a copy of a letter dated 6 December 1985 from Floyd Lovejoy to Schnei- der. The letter stated: This is to advise you that Yellowstone Plumbing, Inc., offers you reinstatement to your former em- ployment. At the present time the company has no work and is not hiring. However, we will notify you of our first job opening. Due to the economic conditions of our company, our present wage rate for your classification is $10 an hour. The foregoing finding is based on documentary evi- dence. 44 The foregoing findings are based on documentary evidence 45 The foregoing findings are based on documentary evidence 48 The foregoing findings are based on documentary evidence 47 The foregoing findings are based on documentary evidence 48 The foregoing findings are based on documentary evidence 1006 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD As indicated in the Statement of the Case, the Region- al Director approved on 12 December 1985 an informal settlement agreement with the Employer. Neither Schneider nor the Union entered into that settlement agreement. The settlement agreement contained a nonad- mission clause.49 General Counsel's Exhibit 12(c) is a copy of a letter dated 23 December 1985 from the Respondent's attorney to Region 19. The letter stated- I have held up on sending the second letter to Mr. Schneider offering him $18.00 an hour as the only job which Yellowstone Plumbing, Inc. has in prospect is under their housing contract type of work which pays $14.00 an hour. I am also a little hesitant to send a second letter to Schneider offer- ing a different wage which the company cannot afford to pay. As we have paid Mr. Schneider the lump sum and have offered him reinstatement to a substantial equivalent position except for the pay rate, can you think of an alternative that we could take in order to finalize the matter. The foregoing findings are based on documentary evi- dence. Schneider acknowledged that he had received a check from the Employer, and that he had cashed the Employ- er's check. Schneider also acknowledged that he had re- ceived a copy of a letter which indicated that the Com- pany would offer him employment at the wage rate of $10 an hour. He examined General Counsel's Exhibit 12(b) on the witness stand, and he acknowledged that he had received a copy of that letter. Schneider also ac- knowledged that he had received a copy of Respondent's Exhibit 2, which was a copy of a letter dated 12 Decem- ber 1985 from the Regional Director. That letter advised Schneider, as an individual Charging Party, and Attor- ney Duffy, as the attorney for the Charging Party Union, that in view of the settlement agreement in Cases 19-CA-17846 and 19-CA-17854 that the Regional Di- rector had determined that it would not effectuate the purposes of the Act to institute further proceedings at that time. Therefore, the Regional Director stated in the letter that he was refusing to reissue a complaint in that matter. The letter also advised Schneider and Attorney Duffy of their right to appeal the Regional Director's action.50 On 9 January 1986 the Union dispatched Schneider to work for Wagner's Mechanical. That job lasted from 9 January to 14 February 1986. About 5 p.m. on 9 January 1986 Schneider received a telephone call from Floyd Lo- vejoy. Floyd Lovejoy asked Schneider if Schneider would go back to work for him. Schneider replied that he could not just go back to work for Floyd Lovejoy and that Schneider had to go through the union hall. Floyd Lovejoy told Schneider that Floyd Lovejoy had to know if Schneider was going back to work or not. Schneider again said that Schneider had to go through the union hall. Schneider then asked Floyd Lovejoy how long a job was it. Floyd Lovejoy told Schneider that the job was just a couple of days, and that it was all that Floyd Lovejoy had right then. Floyd Lovejoy then told Schneider that Schneider would be receiving a letter from Floyd Lovejoy stating that Schneider had denied employment.51 General Counsel's Exhibit 12(d) is a copy of a letter dated 13 January 1986 from the Respondent's attorney to Schneider. That letter stated: Please be informed that under the settlement agreement between the NLRB and Yellowstone Plumbing, Inc., you are entitled to reinstatement to your former job at $18.00 per hour. As stated in Mr. Lovejoy's letter of December 6, 1985, his com- pany will notify you of its first opening and offer you the opportunity to return to work. The foregoing findings are based on documentary evi- dence. Schneider pointed out at the hearing that he had received the foregoing letter subsequent to his conversa- tion on 9 January 1986 with Floyd Lovejoy. General Counsel's Exhibit 12(e) is a copy of a letter dated 14 January 1986 from Floyd Lovejoy to Schnei- der. That letter stated: As per our telephone conversation on January 13, 1986, at approximately 8:30 p.m. I asked you if you wanted to come back to work for Yellowstone Plumbing, Inc. You stated that you had just went to work for another company and you wanted to con- tinue with that company. Therefore, we will fill that job with another worker. The foregoing findings are based on documentary evi- dence. As indicated above in the credited testimony of Schneider, I have credited his account as to the date and time, as well as the substance, of his conversation with Floyd Lovejoy. General Counsel's Exhibit 1(h) is a copy of a letter dated 20 June 1986 from the Regional Director to the Employer with copies to the other parties. That letter stated: As a result of an administrative investigation into complaints that your firm has failed to comply with its commitments entered into in the settlement of Cases 19-CA-17846 and -17853 [-17854], which I approved on December 12, 1985, I have concluded that those complaints have merit and that it will therefore be appropriate to revoke my approval of that settlement, and reissue complaint on those cases. Those matters will be further consolidated with Case 19-CA-18336, which our investigation also shows to be a meritorious charge. By separate letter, and for the reasons set forth therein, I am also revoking the Decision and Order heretofore issued in Case 19-RD-2404 and redismissing it on 49 The foregoing findings are based on documentary evidence so The foregoing findings are based on credited portions of the testi- mony of Schneider and documentary evidence 51 The foregoing findings are based on credited portions of the testi- mony of Schneider YELLOWSTONE PLUMBING grounds of unlawful coercion by your company against employees. Accordingly, you are hereby notified that my ap- proval of the Settlement Agreement in Cases 19- CA-17846 and -17853 [-17854] is hereby revoked. The foregoing findings are based on documentary evi- dence. 3. Conclusions A Regional Director may set aside an informal settle- ment agreement when a respondent has failed to comply with the terms of that settlement agreement. Section 101.9(e)(2) of the Board's Statements of Procedure pro- vides: "In the event the respondent fails to comply with the terms of an informal settlement agreement, the re- gional director may set the agreement aside and institute further proceedings." See Henry I Siegel Co., 143 NLRB 386 (1963); Interstate Paper Supply Co., 251 NLRB 1423 (1980); Bingham-Williamette Co., 199 NLRB 1280 (1972); Roadway Express, 254 NLRB 668 (1981); Hatfield Truck- ing Service, 270 NLRB 136 (1984); and Universal Blanch- ers, 275 NLRB 1544 (1985). I conclude that the Regional Director was justified in setting aside the informal settle- ment agreement in this proceeding because of the Re- spondent's failure to comply with all of the terms of that settlement agreement. In particular, the Respondent failed to make a valid offer of reinstatement to Schnei- der. In its decision in Hickory's Best, Inc., 267 NLRB 1274, 1275 (1983), the Board held: "Employees who are discri- minatorily discharged are entitled to unequivocal and un- conditional offers of reinstatement to their former jobs, if they still exist; and, if those jobs do not exist, then to equivalent positions." In its decision in Seligman & Associates, 273 NLRB 1216 (1984), the Board held: As a wrongdoer, the Respondent bears the burden of remedying its unfair labor practices."' We impose no hardship by requiring that it meet that burden by making a clear, unequivocal, legitimate reinstatement offer even in the face of a discrimina- tee's apparent understanding and repudiation of the concept of reinstatement. 11 See Electrical Workers IUE Y. NLRB, 426 F.2d 1243, 1251- 52 (D C Cir 1970) In its decision in Michael M. Schaefer, 246 NLRB 181 (1979), the Board held: Furthermore, it is also well established that a dis- criminatee, upon receiving an offer of reinstatement, has a fundamental right to a reasonable time to con- sider whether to return.6 While we do not attempt to prescribe what is reasonable in every circum- stance, we find that the time allotted by Respondent was totally inadequate. Here, [the discriminatee] would have had to inform Respondent of his inten- tions the same day that he received the phone call 1007 from [a nonsupervisory employee of that Respond- ent.] 6 William Dong, an Individual Proprietorship, d/b/a Woodland Supermarket, 237 NLRB 1481 (1978), Penco Enterprises Inc, Penco of Ohio, and Acoustical Contracting and Supply Corp, 216 NLRB 734, 735 (1975) Based on the foregoing precedents, I conclude that Floyd Lovejoy's offer of employment on 9 January 1986 to Schneider was not a valid offer of reinstatement to Schneider. Schneider was not given a reasonable amount of time to consider Floyd Lovejoy's offer because Floyd Lovejoy required Schneider to give him an immediate response. As indicated above in the Michael M. Schaefer decision, Schneider had a fundamental right to a reasona- ble time in which to consider whether to return to work for the Employer. The Board found in the Michael M. Schaefer case that requiring the discriminatee to inform that company of his response on the same day that he had received a telephone call from that company was in- adequate. I reached the same conclusion here. Further- more, the wage rate which was stated in Floyd Love- joy's letter of 6 December 1985 to Schneider was $10 an hour. Although no mention was made of a specific wage rate during the 9 January 1986 telephone conversation between Floyd Lovejoy and Schneider, the $10 wage rate offer was the only one in existence at that point in time. That wage rate was lower than the two wage rates that Schneider had earned when Schneider previously had been employed by the Employer. His earlier wage rates had been $18.85 an hour and $11.31 an hour. More- over, the $10 wage rate offer in Floyd Lovejoy's letter of 6 December 1985 was lower than the $12 an hour wage rate which the Employer was paying to Ballerstein both in December 1985 and January 1986. The letter from the attorney for the Respondent to Schneider with an $18 an hour wage rate did not arrive until after the offer of employment had already been made to Schnei- der by Floyd Lovejoy. Because Floyd Lovejoy had re- quired an immediate response to his offer on 9 January 1986, I conclude that the letter from the attorney for the Respondent, which was mailed on 13 January 1986, did not remedy the defect in the Employer's earlier offer. In summary, Schneider was not given a reasonable opportu- nity to consider the Employer's offer, and the offer of $10 an hour was inadequate. Therefore, I conclude as in- dicated above that the Regional Director was justified in setting aside the informal settlement agreement because of the Respondent's failure to comply with the terms of that settlement agreement. Based on the findings of fact and conclusions already set forth in section B and based on the findings of fact set forth above in section C, I conclude that the evidence established Schneider's union membership and union ac- tivity in being the union shop steward on the Rimrock Inn project; the Employer's knowledge of Schneider's union membership and activity; the Employer's animus towards the Union as shown by the unfair labor practices as described in section B, and those continuing unfair labor practices which will be described in section D herein; and the true motivation for Schneider's layoff 1008 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD from work because the Employer did not want Schnei- der involved in the middle of the trouble or problems be- tween the Employer and the Union, but that Schneider could come back to work for the Employer after the union contract had expired . The last reason stated to Schneider at the time of his layoff explains the timing of the Employer's layoff of Schneider just before the union contract was to expire. In view of the foregoing, I con- clude that the General Counsel has established a prima facie case that the Employer laid off from work Dean Schneider and has failed to recall him to work because of his union membership and activities . Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 ( 1st. Cir 1981), cert. denied 455 U. S. 989 (1982). Because the General Counsel has presented evidence that established a prima facie showing that protected conduct was a motivating factor in the Employer 's layoff and failure to recall Schneider , the burden then shifts to the Employer to demonstrate that the Employer would have taken the same action even in the absence of the protected conduct. In its decision in Hunter Douglas, Inc., 277 NLRB 1179 (1985), the Board held: The employer cannot carry this burden merely by showing that it also had a legitimate reason for the action, but must "persuade" that the action would have taken place absent the protected conduct "by a preponderance of the evidence ." Roure Bertrand Dupont, Inc., 271 NLRB 443 ( 1984); NLRB v. Transportation Management Corp., 462 U.S. 393 (1983). If an Employer fails to satisfy its burden of persuasion, a violation of the Act may be found. Bronco Wine Co., 256 NLRB 53 (1981). Although work was nearing an end at the Blue Creek School project, some work remained to be done at that jobsite, and that work was performed after the layoff of Schneider. The evidence also revealed that the Employer has had work performed by its employees on projects after the Blue Creek School project was finished. There- fore, in addition to the work which remained to be done at the Blue Creek School project at the time that the Employer laid off Schneider, there subsequently was ad- ditional work on other projects which Schneider could have performed if the Employer had recalled Schneider to work. As indicated in the findings of fact, the Em- ployer gave Schneider only two reasons at the time that the Employer laid off Schneider . One was that work was coming to an end , and the other one was that Floyd Lo- vejoy did not want Schneider involved in the Employ- er's trouble or problems with the Union . As indicated above, I conclude that the latter reason revealed the true motivation for Floyd Lovejoy 's decision to layoff Schneider at that time. I further conclude that the Em- ployer has not met its burden under the Wright Line de- cision. Accordingly, I further conclude that the Re- spondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act by laying off from work Dean Schneider and by failing to recall Schneider to his former job, or to a substantially equiva- lent job, because of Schneider's union membership and activities. D. The Alleged Violations of Section 8(a)(1) and (5) of the Act 1. Allegations The General Counsel alleged the following in para- graph 8 of the consolidated complaint to be violations of Section 8(a)(1) and (5) of the Act: 8. (a) On or about December 2, 1985, Respondent, by letter from Counsel , advised the Union that it would no longer recognize the Union as the exclu- sive collective-bargaining representative of its em- ployees in the Unit. (b) Since November 27, 1985 , and continuing to date, Respondent has, without first bargaining with or notifying the Union, unilaterally modified wages and working conditions then in effect as provided in the most recently expired agreement of the parties by, inter alia, failing and refusing to pay required benefits, failing to utilize the exclusive hiring hall, failing to pay required wages, and otherwise repudi- ating its bargaining obligation with the Union. (c) On or about January 24, 1986, in February 1986, and since, Respondent has refused repeated requests and demands by the Union for renewed recognition and bargaining. 2. Facts General Counsel's Exhibit 5 is a copy of a telegram from Floyd Lovejoy to the Union . The date of the tele- gram is 29 August 1985. The telegram stated: Notification was sent Local 30 by certified letter of April 9, 1985 that Yellowstone Plumbing, Inc. in- tended to terminate its current labor agreements with Local 30. No response was received. Have been notified by NLRB of employee petition to de- certify . On determination of union status by NLRB the company will set a date for bargaining session if so ordered. The foregoing findings are based on documentary evi- dence. Union Business Manager Powell acknowledged at the hearing that he had received a copy of General Counsel's Exhibit 5. Beverly Lovejoy acknowledged at the hearing in this proceeding that after the end of August 1985 the Em- ployer has not made any payments or filed any reports with the health and welfare trust fund. Joint Exhibit 3(a) is a copy of the decertification peti- tion filed on 13 September 1985 in Case 19-RD-2404 by Ballerstein. Joint Exhibit 3(b) is a copy of the Decision and Order issued on 18 October 1985 in Case 19-RD-2404 by the Regional Director. In summary, the decision indicates that the Regional Director concluded that there was no contract bar to an election; that the evidence presented in that proceeding did not establish that Yellowstone Plumbing, Inc., and JSA Plumbing were alter egos; that the Employer had only one employee at the time of the YELLOWSTONE PLUMBING 1009 hearing in that proceeding, and no concrete plans to hire additional employees; that the Employer had no firm commitments for future work; and, therefore, it would be inappropriate to direct that an election be held at that time because NLRB will not certify a one-person unit for the purposes of collective bargaining Accordingly, the Regional Director ordered that the petition in Case 19-RD-2404 be dismissed. The Regional Director's deci- sion indicated that the Union had argued in its brief that the petition should be dismissed because the Board's processes could not be utilized to certify a one-person unit. The Regional Director's decision also stated that the Employer had taken no position with respect to the question of the one-person unit. General Counsel's Exhibit 6 is a copy of a letter dated 25 November 1985 from the attorney for the Respondent to the Union. That letter stated: It is Yellowstone Plumbing, Inc.'s position that the NLRB ruled that a single member unit will not be certified for the purposes of collective bargaining and therefore, an election for decertification was in- appropriate and dismissed . This would automatical- ly decertify the unit. Therefore , until such time as future employees are hired who desire to be repre- sented as a bargaining unit by the union, and be- cause Yellowstone Plumbing's single employee has indicated his withdrawal from the union, we regard Yellowstone Plumbing's relationship with the union to be terminated as of August 31, 1985. The findings in the foregoing paragraphs are based on the documentary evidence indicated. Powell acknowledged at the hearing that he had re- ceived a copy of General Counsel's Exhibit 6. Prior to his receipt of a copy of that letter, Powell had not re- ceived any notice from the Employer to the effect that the Employer was no longer paying fringe benefits; no longer utilizing the Union's hiring hall; or that the Em- ployer was changing the wages, hours, and working con- ditions after 1 September 1985.52 Robert Papin became the business manager of the Union on 8 January 1986. Papin replaced Powell in that position with the Union. Prior to his becoming the busi- ness manager of the Union, Papin had not had any deal- ings with the Employer. However, Powell briefed Papin with regard to the status of the Union's relationship with the Employer. As a result of receiving a check in the mail from Floyd Lovejoy for his union dues to be paid up through January 1987, Papin attempted to contact Floyd Lovejoy in person either on 23 or 24 January 1986. Papin drove to the IGA store in Laurel , Montana, in order to see Floyd Lovejoy. However, Floyd Lovejoy was not at that location when Papin arrived Papin then telephoned the Employer's office, but Floyd Lovejoy was not there at that time, so he left a message . Floyd Lovejoy later returned Papin's call that afternoon. Papin told Floyd Lovejoy in their telephone conversation that the Union had received Floyd Lovejoy's check for his union dues; that Papin understood that there was a problem going on between the Union and the Employer; that Papin did not know Floyd Lovejoy at all; that Papin had never met Floyd Lovejoy; and that they should meet either at the Employer's shop or at the Union's office. Floyd Lovejoy told Papin that he was not going to hire any persons that the Union had, or sign an agreement with the Union be- cause of the caliber of the persons that the Union had. Floyd Lovejoy also told Papin that he thought that he was going to take a withdrawal card in case Floyd Lo- vejoy had to go to California. Subsequently, Papin re- ceived a letter from Floyd Lovejoy who requested a withdrawal card from the Union and also requested that his union dues be refunded. Shortly thereafter, Papin also received a letter from Beverly Lovejoy who enclosed some photocopies of portions of the Union's constitution. Papin stated at the hearing that the Union had not issued a withdrawal card to Floyd Lovejoy because Floyd Lo- vejoy had not come to the Union in person and filled out a certificate. In addition, a deposit is required. Then the matter goes to the Union's executive board. Papin also stated that union charges had been filed against Floyd Lovejoy, and that the Union's executive board had im- posed a fine on Floyd Lovejoy. Papin gave his opinion at the hearing in this proceeding that Floyd Lovejoy was in violation of the Union's constitution by remaining a member of the Union, but continuing in the plumbing business without being signatory to the Union's collec- tive-bargaining agreement. On 9 June 1986 a settlement conference was held before a Federal magistrate with regard to the Union's lawsuit pending against the Employer. During the course of that conference, the Union requested that the Employ- er comply with the terms of the Union's collective-bar- gaining agreement . The Employer refused to do so. No agreement was reached at that conference.53 With regard to the unit, it is not necessary to repeat here the findings of fact that previously have been set forth in section C with respect to the facts disclosed from the Employer's payroll records of certain employ- ees and the Employer's timecards for certain employees. I find that those records show that the amount of hours worked and the number of employees have fluctuated during the time periods of those records, but that the unit has continued to exist at all times material. Floyd Lovejoy acknowledged at the hearing that there had been times in past years when the Employer's work force had been reduced to just one employee. That had occurred prior to 1985. On those earlier occasions Floyd Lovejoy had not served notice on the Union that the Employer would no longer recognize the Union as the collective-bargaining representative of the Employer's employees. Floyd Lovejoy explained at the hearing that the busiest time of the year for the Employer was from July until there was a freeze. He said the slowest time of the year for the Employer was in March and April. sa The findings in the foregoing paragraphs are based on credited por- tions of the testimony of Papin Floyd Lovejoy agreed in his testimony 52 The foregoing findings are based on credited portions of the tests- that no agreement was reached at that conference and, as a result, the mony of Powell case went to trial in United States District Court. 1010 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Floyd Lovejoy also testified: "There reaches a point in time during the year when it's slack, yes. And it's some- thing that-I always say it's feast or famine; you've either got too much work, or you don't have any at all."54 During the spring and the summer of 1986, the Em- ployer had four or five plumbers working for the Em- ployer. Those persons were in addition to Hopkins, who the Employer urges is a laborer.55 During the years that Powell served as the business manager of the Union, Powell said that he dealt with as many as 30 plumbing contractors. It was Powell's experi- ence that from time to time some of those plumbing con- tractors would run out of work and either have one em- ployee or no employees at all. In Powell's experience, none of those plumbing contractors had ever terminated their bargaining relationship with the Union on that basis. 56 During the years that Patterson worked as a union business agent, there were 22 plumbing contractors who had collective-bargaining agreements with the Union. Based on Patterson's experience in dealing with those contractors Patterson found that there were occasions when those plumbing contractors had just one employee or no employees at all. Patterson attributed those situa- tions to the weather conditions; economic conditions; or the lack of success of a particular plumbing contractor in bidding for work. In Patterson's experience, none of those plumbing contractors had ever advised the Union that the contractors considered that they no longer had bargaining units.57 The testimony of Frisby has already been set forth in section A. His testimony revealed how the number of employees of his company, City Service Plumbing and Heating, fluctuated in his plumbing business. At one time he had 30 employees ; at the time he notified the Union of his intention to terminate the contract he had no em- ployees; and at the time of the hearing in this proceeding he had two employees.58 With regard to the IGA project in Laurel, Montana, Robert Jam, the president of Travis-Jam, Inc., said at the hearing that he solicited pricing information from sub- contractors, including Yellowstone Plumbing, prior to making Travis-Jam's bid on 17 September 1985. Travis- Jam was successful and was awarded the contract for the IGA job on 18 September 1985. Yellowstone Plumbing was the low bidder for the plumbing work on that project. The proposed subcontracts for the IGA project were mailed on 25 September 1985 to the subcontractors. General Counsel's Exhibit 4 is a copy of the written bid by Yellowstone Plumbing to Travis-Jam for the IGA project. The bid is dated 1 October 1985. The bid was accepted by Travis-Jam on 10 October 1985, and the ac- 54 The foregoing findings are based on credited portions of the testi- mony of Floyd Lovejoy as The foregoing findings are based on credited portions of the testi- mony of Beverly Lovejoy 56 The foregoing findings are based on credited portions of the testi- mony of Powell 67 The foregoing findings are based on credited portions of the testi- mony of Patterson 68 The foregoing findings are based on credited portions of the testi- mony of Frisby ceptance of Yellowstone Plumbing's bid was received by the Employer on 15 October 1985. General Counsel's Exhibit 14 revealed that the amount of Yellowstone Plumbing's bid for the IGA project was $52,870.69 General Counsel's Exhibit 3 is a copy of the bid made by Yellowstone Plumbing for the Western Heritage Re- model project for High Tech Construction. The date of that bid was 2 October 1985. The subcontract was awarded to Yellowstone Plumbing, and the work was done in December 1985. In November 1985 the Employ- er prepared a bid for plumbing work at the King of Glory Church. The Employer received the subcontract for that work, but it was not done until the spring of 1986. The amount of the work was under $1,500.60 Floyd Lovejoy acknowledged at the hearing that he did not contact the Union's hiring hall to see if the Union had any persons available for work on any of the foregoing projects because, in his view, the Union's con- tract had expired on 1 September 1985, and thus, in his view, the Employer was nonunion. Certain facts already have been set forth in sections A and C with regard to Jerry Hopkins. Until November 1984 Hopkins worked as an apprentice plumber for the Employer. Since November 1984 the Employer has clas- sified Hopkins as a laborer. The Employer has taken the position in this proceeding that Hopkins was not part of the unit. The General Counsel and the Charging Party have taken the position that Hopkins continued to per- form certain bargaining unit work after November 1984, and that Hopkins has been in the bargaining unit at all times material herein. In November 1984 and in several conversations there- after, Floyd Lovejoy has given instructions to Baller- stein, Fiebiger, and Hopkins that Hopkins was not to work with the tools of the trade. Notwithstanding those instructions, Hopkins did perform some bargaining unit work after November 1984, according to the testimony of Hopkins, Schneider, and Fiebiger.6 i The Employer had a contract to perform the plumbing work at a project which was known as the Foote Street Ware- house. Both Hopkins and Schneider worked on that project for the Employer in 1985. Hopkins installed the gas line at that project. Hopkins cut the steel pipe to the correct size, and Hopkins threaded the pipe. Hopkins then assembled the pipe and attached the pipe to the gas heaters and to the gas main . Hopkins also used a backhoe to dig a ditch in which to lay the pipe. Five heaters had to be hung about 12 to 14 feet off of the ground. Hop- kins assisted Schneider in hanging those heaters . In addi- tion, Hopkins cut PVC pipe to be used for drains. Floyd Lovejoy was at the Foote Street warehouse jobsite while Hopkins was cutting that pipe . Floyd Lovejoy told Hop- kins that he would rather not have Hopkins cut the pipe because Hopkins was close to the road. At the hearing 68 The foregoing findings are based on credited portions of the testi- mony of Jam and documentary evidence 60 The foregoing findings are based on credited portions of the testi- mony of Floyd Lovejoy and documentary evidence 81 The foregoing findings are based on credited portions of the testi- mony of Hopkins, Schneider, and Fiebiger Floyd Lovejoy and Baller- stein also testified that Floyd Lovejoy had given such instructions re- garding Hopkins YELLOWSTONE PLUMBING 1011 Hopkins explained that at that point in time Hopkins was working at the end of the building which faced Laurel Road.62 The Employer had a plumbing contract to perform work at a project known as the Rax Restaurant . Hopkins worked on that project in 1985 for the Employer. Hop- kins performed work relating to the laying of a storm sewer. He operated a backhoe in order to dig a trench at the project and had the responsibility for grading the work so that the pipe would drain properly. He ran the pipe to the street. Laying the pipe required Hopkins to measure the distances and to cut the pieces of pipe to fit. The pipe used was PVC pipe. In addition, there were be- tween four and six manholes to be put in place on the project and carried all of the materials on that job. Hop- kins believed that he worked with Jim Allen on that project. 68 The Employer also had a plumbing contract to per- form work at a project known as the Keebler warehouse. Hopkins worked with Schneider in 1985 for the Employ- er on that project. He assisted Schneider in putting up roof drains; installing hangers; and hanging 6- and 8-inch pipe. That pipe was awkward to handle, and thus both Hopkins and Schneider carried and handled that pipe.64 The Employer had a plumbing contract to perform work at what was known as the Blue Creek School project. Both Hopkins and Schneider worked on that project for the Employer in 1985. Both Hopkins and Schneider removed several fixtures from the project, such as toilets, urinals, and a drinking fountain. Hopkins also was involved in removing old cast iron pipe from the project. In addition, Hopkins dug trenches and insu- lated pipe in the crawl space.65 The Employer also had the plumbing contract to per- form certain work during the summer of 1985 at a project known as the Brandywine Apartment complex. At times Hopkins worked by himself on that project, and at other times he worked with Fiebiger and Ballerstein. Hopkins installed fixtures at that project, such as sinks, toilets, and water heaters. Hopkins carried those fixtures onto the project and put those fixtures in place. Hopkins also dug trenches for a sanitary sewer and carried pipe onto the jobsite.66 As indicated earlier, the Employer had a subcontract to perform plumbing work at the IGA jobsite. Hopkins worked at that project during 1986 for the Employer. Hopkins dug trenches; cut pipe; installed gas pipe; in- stalled hangers for roof drains; carried pipe for those roof drains; installed roof drains; insulated copper pipe 62 The foregoing findings are based on credited portions of the testi- mony of Hopkins and Schneider. 63 The foregoing findings are based on credited portions of the testi- mony of Hopkins 64 The foregoing findings are based on credited portions of the testi- mony of Hopkins and Schneider 65 The foregoing findings are based on credited portions of the testi- mony of Hopkins and Schneider 66 The foregoing findings are based on credited portions of the testi- mony of Hopkins and Fiebiger Based on the credibility criteria previous- ly set forth in section A, I have not credited the testimony of Ballerstein to the contrary water lines; and carried pipe and materials at the job- site.67 The Employer had the plumbing contract to perform work at a project known as the Westpark Retirement Center. Hopkins worked on that project for the Employ- er in 1986. Hopkins worked with a journeyman plumber whose name was Jerry Bokma. Floyd Lovejoy instruct- ed Hopkins to hook up drains on that project. On one occasion while Hopkins was performing that work in the crawl space, a State of Montana inspector came on the jobsite. Bokma then informed Hopkins that the inspector was on the jobsite, and Bokma told Hopkins to come out of the crawl space. At that time Hopkins was connecting pipe in the crawl space. Hopkins stated at the hearing that he previously had been instructed to be on guard about State of Montana inspectors coming on the job- sites.6 8 The Respondent urges that Union Representatives Pat- terson and Papin made promises to Hopkins that Hop- kins would be given special treatment in his application for a State of Montana plumbers license as a result of the testimony Hopkins gave at the hearing in this unfair labor practice proceeding and at the trial involving the Union's lawsuit against the Employer. The Respondent urges that the foregoing casts a very serious doubt on Hopkins' motives in testifying. (See pp. 24-31 of the Re- spondent's posthearing brief.) The first time that Hopkins spoke with Patterson about getting a State of Montana journeyman plumbers license was on 8 November 1984. At that time Patterson informed Hopkins that, if Hopkins was going to continue to perform the same kind of work that Hopkins had been doing prior to 8 November 1984 as an apprentice plumber, Hopkins would have to apply for a State of Montana plumbers license. Patterson and Hopkins then discussed Hopkins' work experience. By adding the time that Hopkins had worked for the Em- ployer with the time that Hopkins had worked for an earlier employer, Boise Cascade, Hopkins still did not have sufficient time to qualify for a State of Montana plumbers license. Hopkins believed at that time that he was 6 months short of having the 4 years of experience that was required. Therefore, Hopkins did not apply for a State of Montana plumbers license on 8 November 1984. During that conversation Hopkins also asked Pat- terson about the Union's apprenticeship program. Patter- son informed Hopkins that Hopkins could not get into the middle of that program, and Patterson advised Hop- kins to go to work for someone other than the Employ- er. For awhile Hopkins did work for John Braden, but Hopkins performed laborer's work for Braden. At the time of the trial in the case involving the Union's lawsuit against the Employer, Hopkins again spoke with Patterson about applying for a State of Mon- tana journeyman plumbers license. At that time they dis- cussed using the transcript of the record in that trial to 67 The foregoing findings are based on credited portions of the testi- mony of Hopkins Based on the credibility criteria previously set forth in section A, I do not credit the testimony of Ballerstem to the contrary. 66 The foregoing findings are based on credited portions of the testi- mony of Hopkins 1012 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD justify additional time for Hopkins which he needed in order to qualify for a State of Montana license. About a month or 6 weeks prior to the time that Hop- kins testified at the hearing in this proceeding, Patterson and Hopkins had a conversation on the street. Patterson told Hopkins on that occasion to come down to the Union; to pick up an application; and that Patterson would assist Hopkins in filling out the application. Pat- terson told Hopkins that they wanted to try to get the time that Hopkins had worked for the Employer to count towards the time needed for Hopkins to be able to take the test to become a journeyman plumber. On the day that Hopkins testified at the hearing in this proceed- ing, both Patterson and Papin expressed to Hopkins their willingness to assist Hopkins in getting a license. The findings in the foregoing paragraphs are based on credited portions of the testimony of Hopkins and Patter- son. I have considered the foregoing in connection with the credibility criteria previously set forth at the outset of section A of this decision. Notwithstanding the com- posite testimony summarized above, I found Hopkins to be a credible witnesss, and I have accepted his testimony based on the factors referred to in section A. Joint Exhibit 3(c) is a copy of the Order Vacating De- cision and Order Dismissing Petition in Case 19-RD- 2404. The document indicates that it was issued on 20 June 1986. In part, the Order stated: On October 15, 1985, the undersigned issued a Decision and Order in the above-entitled case be- cause it was determined that there was then only one person in the unit. On November 14, 1985, pur- suant to charges filed in Cases 19-CA-17846 and 17854, a consolidated complaint was issued alleging, inter aha, that Respondent has illegally coerced em- ployees into filing the decertification petition. Al- though an informal settlement had been entered into in this case, I have determined to revoke said settle- ment and reissue complaint for reasons of noncom- pliance. In view of the allegations that the petition was filed pursuant to unlawful pressure, it has been fatally tainted and must be dismissed, on that basis rather than the original basis for dismissal. Accordingly, it is hereby ordered that the peti- tion is dismissed. Joint Exhibit 3(d) is a copy of a request for review in Case 19-RD-2404. That document is dated 1 July 1986, and it was signed by the Respondent's attorney. In the request for review, the Employer and Ballerstein, who was the petitioner in that case, sought review by the Board in Washington, D.C., of the Regional Director's order vacating decision and order dismissing petition. In summary, the request for review urged that the Union had failed to exhaust its administrative remedies in Case 19-RD-2404, that no appeal had been filed to the origi- nal decision by the Regional Director in that case; that the Employer had operated its business in reliance on the Regional Director's original decision; that the Employer would be irreparably damaged by the Regional Direc- tor's vacating of his original decision; that the Union had argued in its brief to the Regional Director that the peti- tion should be dismissed because the Board's processes could not be utilized to certify a one-person unit; that the Employer had taken no position with regard to the one- person unit question; the Employer recited its view of the bargaining history and the findings by the Regional Director in the original decision; and the Employer urged that the Employer had relied on the Regional Di- rector's original decision in not bargaining with the Union. Joint Exhibit 3(e) is a copy of the Board's Order with regard to the Request for Review filed by the Employer and the petitioner in Case 19-RD-2404. In part, the Board's Order stated: The Board concludes that the Employer's and Petitioner's request for review of the Regional Di- rector's Order Vacating Decision and Order Dis- missing Petition raises no substantial issues warrant- ing reversal of the Regional Director's action. Ac- cordingly, dismissal of the petition is affirmed sub- ject to its reinstatement, if appropriate, on applica- tion after the unfair labor practice proceeding's dis- position. The Board's Order also provided that the petitioner in the decertification case, Ballerstein, would be made a party in interest in the unfair labor practice proceeding to the extent that Ballerstein would be entitled to the re- ceipt of a copy of the Order or other document which finally disposed of the unfair labor practice proceeding. The Board's Order was by a panel majority of Member Johansen and Member Babson. Chairman Dotson dissent- ed and would have reinstated the petition and held it in abeyance pending the disposition of the unfair labor practice case. The Board's Order is dated 5 August 1986. The findings in the foregoing paragraphs are based on documentary evidence. 3. Conclusions Based on the credited findings of fact set forth above, and the findings of fact set forth in earlier sections of this decision referenced above, I conclude that the bargaining unit continued in existence at all times material in this proceeding. Finger Lakes Plumbing Co., 253 NLRB 406 (1980). The Board found in that case that the bargaining unit continued in existence even during the times when there was no unit work performed and no unit employ- ees were employed. Thus, I conclude that the fluctuation in the number of employees in the Employer' s unit in this case does not warrant the conclusion that the bar- gaining unit ceased to exist. The findings of fact revealed that it was a common occurrence among plumbing con- tractors in the geographical area of the Employer for their number of employees to fluctuate due to economic and weather conditions. Those fluctuations in the number of employees also had occurred in the Employ- er's operation in this case. In his decision in D & B Ma- sonry, 275 NLRB 1403, 1409 (1985), Administrative Law Judge Jerrold H. Shapiro held: It is also settled that in the construction industry, an industry characterized by intermittent employment, YELLOWSTONE PLUMBING 1013 that laid-off employees, who have a reasonable ex- pectation of reemployment within a reasonable time in the future, and thus have a continuing interest in the Employers' working conditions, are included in a bargaining unit as eligible voters. Daniel Construc- tion Co., 133 NLRB 264 (1961), modified 167 NLRB 1078 (1967). In view of the foregoing, I further conclude that the fact that the employees of the Employer did not have continuous employment, and were laid off from work for periods of time, did not alter the fact that they were part of a bargaining unit which continued to exist. In addi- tion, I conclude that the evidence established that Hop- kins performed bargaining unit work, and that Hopkins was a member of the bargaining unit at all times material in this proceeding. I conclude that the fact that Hopkins also performed some nonbargaining unit work does not preclude him from being included in the bargaining unit. In addition, as set forth in section C, I have concluded that the Employer discriminatorily laid off Schneider from work and has discriminatorily failed to recall him to work, and, therefore, I conclude that Schneider has been a member of the bargaining unit at all times materi- al here. In its decision in Hearst Corp., 281 NLRB 764 (1986), the Board held: Decertification petitions, of the type signed by the employees here, will generally be sufficient to cast doubt on a union's continued majority status if signed by a majority of the employees, and will afford an employer a reasonable basis for withdraw- ing recognition from a labor organization, provided that, prior thereto, the employer has not engaged in conduct designed to undermine employee support for, or cause their disaffection with, the union.7 Where an employer engages in such conduct, the decertification petitions will be found to have been tainted by the employer's unfair labor practices and the latter, consequently, will be precluded from re- lying on the tainted petition as a basis for question- ing the union's'continued majority status and with- drawing recognition from that labor organization.8 7 Hydro Conduit Corp, 254 NLRB 433 (1981), Sanderson Farms, Inc, 271 NLRB 1477, 1480 (1984) See also Master Slack Corp, 271 NLRB 78 In 1 (1984), and Hotel Employees Local 19 v NLRB, [785 F 2d 796 (9th Or 1986)] 8 Pittsburgh & New England Tnicking Co, [249 NLRB 833], Chicago Magnesium Casting, [256 NLRB 668] See also Mark Twain Marine Industries, 254 NLRB 1 095, 1114- 1115 (1981) In view of the foregoing, I conclude that the Respond- ent's affirmative defense that it relied on the Regional Director's original decision in Case 19-RD-2404 does not have merit under the circumstances of this case. As set forth in section B, I have earlier concluded that the Respondent unlawfully encouraged its employees to file a petition to decertify the union. Thus, the filing of a de- certification petition and ultimately the Regional Direc- tor's decision after a hearing in that matter resulted from the Employer's unlawful action. The Regional Director based his decision on the facts, which were before him at that time, as recited in his decision which is in evidence in this proceeding. However, the Regional Director did not have all of the true facts before him when he issued his original decision. Subsequently, when other facts came to light, the Regional Director revoked his original decision. As pointed out in the Board's decision in Hearst Corp., supra at 765: "For as the Board has previously stated, an employer who engages in efforts to have its employees repudiate their union must be held responsible for the foreseeable consequence of its conduct." I con- clude that the Regional Director's original decision in Case 19-RD-2404 was a foreseeable consequence of the Employer's unlawful action in encouraging its employees to file the decertification petition, and also a foreseeable consequence of the testimony which the Regional Direc- tor relied on in his original decision. In the circum- stances, I conclude that the Employer's affirmative de- fense lacks merit. I further conclude from the findings of fact that the Employer's withdrawal of recognition from the Union was not made in good faith, and that the Employer's withdrawal of recognition from the Union took place in the context of other unfair labor practices in violation of Section 8(a)(1) and (3) of the Act (See secs. B and C.) I further conclude that the Union's majority status in the bargaining unit was dissipated by the Employer's unfair labor practices, and that the Employer has had a con- tinuing obligation to recognize and to bargain with the Union. Finally, I further conclude that the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (5) of the Act by withdrawing rec- ognition from the Union; by failing to thereafter recog- nize and bargain with the Union; by making unilateral changes in the wages and working conditions of unit em- ployees, as alleged in the General Counsel's consolidated complaint. Burger Pits, 273 NLRB 1001 (1984); Abbey Medical/Abbey Rents, 264 NLRB 969 (1982); Cobb Thea- tres, 260 NLRB 856 (1982); Robertshaw Controls Co., 263 NLRB 958 (1982); and Hotel Employers Assn., 213 NLRB 651 (1974). CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. The Charging Party Union is a labor organization within the meaning of Section 2(5) of the Act 3. The Respondent has engaged in unfair labor prac- tices within the meaning of Section 8(a)(1) of the Act by threatening employees that the Respondent would close its company if the company did not go nonunion; by promising employees that their wages would remain the same after the company went nonunion; by encouraging its employees to file a petition to decertify the Union; and by telling an employee that he was being laid off from work because the Respondent did not want the em- ployee involved in the middle of the trouble or problems between the Respondent and the Union, and that the em- ployee could come back to work after September, which was the month the contract between the Respondent and the Union was to expire. 1014 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4. The Respondent has engaged in unfair labor prac- tices within the meaning of Section 8(a)(1) and (3) of the Act by laying off from work Dean Schneider and by failing to recall him to his former job, or to a substantial- ly equivalent job, because of his union membership and activities. 5. The Respondent has engaged in unfair labor prac- tices within the meaning of Section 8(a)(1) and (5) by withdrawing recognition from the Union and thereafter by failing and refusing to recognize and bargain with the Union as the collective-bargaining representative of the Respondent's employees in the unit described below; and by making unilateral changes in the wages and working conditions of its unit employees without notice to and bargaining with the Union as the collective-bargaining representative of the Respondent's unit employees in that the Respondent failed to pay the benefit contributions on behalf of its unit employees as provided for in the ex- pired collective-bargaining agreement between the Re- spondent and the Union, failed to use the Union's exclu- sive hiring hall in accordance with that collective-bar- gaining agreement, failed to pay its employees the wage rates of that collective- bargaining agreement and other- wise repudiated the Respondent's bargaining obligation to the Union. The appropriate bargaining unit is: All journeymen and apprentice plumbers em- ployed by the Respondent, excluding supervisors and guards as defined in the Act. 6. The unfair labor practices described above affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Because I have found that the Respondent has en- gaged in certain unfair labor practices within the mean- ing of Section 8(a)(1), (3), and (5) of the Act, I shall rec- ommend to the Board that the Respondent be ordered to cease and desist from engaging in such unfair labor prac- tices and to take affirmative action designed to effectuate the policies of the Act. I shall recommend to the Board that the Respondent be ordered to offer Dean Schneider immediate and full reinstatement to his former job or, if his job no longer exists, to a substantially equivalent position of employ- ment, without the loss of his seniority or any other rights and privileges. I shall further recommend to the Board that the Re- spondent be ordered to make whole Dean Schneider for any loss of earnings and other benefits resulting from the discrimination against him. Backpay is to be computed in accordance with the Board's decision in F. W. Wool- worth Co., 90 NLRB 289 (1950), with interest on such backpay to be computed in accordance with the Board's decisions in Isis Plumbing Co., 138 NLRB 716 (1962); Florida Steel Corp., 231 NLRB 651 (1977); and Olympic Medical Corp., 250 NLRB 146 (1980). In accordance with the Board's decision in Sterling Sugars, 261 NLRB 472 (1982), I shall recommend to the Board that an expunction remedy be included in the Order. I shall further recommend to the Board that the Respondent be ordered to make whole its unit employees for any losses they may have suffered by reason of the Respondent's unfair labor practices found in accordance with the Board's decisions in Kraft Plumbing, 252 NLRB 891 (1980), enfd. 661 F.2d 940 (9th Cir. 1981); Ogle Pro- tection Service, 183 NLRB 682 (1970), plus interest as pre- scribed in Florida Steel Corp., supra, and Merryweather Optical Co., 240 NLRB 1213 (1979). The General Counsel has requested that a visitatorial clause be included in the remedy. I conclude that the General Counsel has not presented evidence in this pro- ceeding that establishes that such a clause is necessary. Accordingly, I hereby deny the General Counsel's re- quest for a visitatorial clause. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed69 ORDER The Respondent, Yellowstone Plumbing , Inc., Billings, Montana, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Threatening employees that the Respondent would close its Company if the Company did not go nonunion; promising employees that their wages would remain the same after the Company went nonunion; encouraging its employees to file a petition to decertify the Union; and telling an employee that he was being laid off from work because the Respondent did not want the employee in- volved in the middle of the trouble or problems between the Respondent and the Union, and that the employee could come back to work after September, which was the month the contract between the Respondent and the Union was to expire. (b) Laying off from work Dean Schneider and failing to recall him to his former job, or to a substantially equivalent job, because of his union membership and ac- tivities. (c) Withdrawing recognition from the Union and fail- ing and refusing to recognize and bargain with the Union as the collective-bargaining representative of the Re- spondent's employees in the unit described below; making unilateral changes in the wages and working conditions of its unit employees without notice to and bargaining with the Union as the collective-bargaining representative of the Respondent's unit employees by failing to pay the benefit contributions on behalf of its unit employees as provided for in the expired collective- bargaining agreement between the Respondent and the Union; by failing to use the Union's exclusive hiring hall in accordance with that collective-bargaining agreement; by failing to pay its employees the wage rates of that collective-bargaining agreement; and by otherwise repu- 69 If no exceptions are filed as provided by Sec. 102 46 of the Board's Rules and Regulations, the findings , conclusions, and recommended Order shall , as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses YELLOWSTONE PLUMBING 1015 diating the Respondent's bargaining obligation to the Union. The appropriate bargaining unit is: All journeymen and apprentice plumbers em- ployed by the Respondent, excluding supervisors and guards as defined in the Act. (d) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer Dean Schneider immediate and full reinstate- ment to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed, and make him whole for any loss of earnings and other benefits suffered as a result of the discrimina- tion against him, in the manner set forth in the remedy section of the decision. (b) Remove from its files any reference to the unlawful discharge and notify the employee in writing that this has been done and that the discharge will not be used against him in any way. (c) On request, bargain with the Union as the exclusive representative of the employees in the following appro- priate unit concerning wages, terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agreement: All journeymen and apprentice plumbers em- ployed by the Respondent, excluding supervisors and guards as defined in the Act. (d) Make whole the employees in the bargaining unit for any losses they may have suffered by reason of the Respondent's unfair labor practices found in the manner described in the remedy section of this decision. (e) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (f) Post at its office in Billings, Montana, copies of the attached notice marked "Appendix."70 Copies of the notice, on forms provided by the Regional Director for Region 19, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (g) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 70 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 Nation- al 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."