G. Helleman Brewing Co., Inc.

G. HEILEMAN BREWING CO. G. Heileman Brewing Co., Inc. and Local Union 309, International Brotherhood of Electrical Workers, AFL-CIO. Case 14-CA-17796 August 25, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT 1 On December 13, 1985, Administrative Law Judge Marvin Roth issued the attached decision. The Respondent filed exceptions and a supporting brief, and the Charging Party filed an answering 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, fmdings,2 and conclusions and to adopt the recommended Order, as modified.3 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, G. Heileman Brewing Co., Inc., Belle- 991 ville, Illinois, its officers, agents, successors, and as- signs, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraphs 1(a) and (b). "(a) Failing or refusing to recognize and bargain collectively in good faith with Local Union 309, International Brotherhood of Electrical Workers, AFL-CIO as the exclusive collective-bargaining representative of the employees in the appropriate unit consisting of all maintenance electricians em- ployed at its Belleville, Illinois plant, or unilaterally changing the wages, hours, and other terms and conditions of employment of the unit employees without prior notice to the Union and without af- fording the Union an opportunity to meet and bar- gain concerning such matters as such representa- tive. "(b) Terminating maintenance electricians at its Belleville plant without affording the Union prior notice and an opportunity to negotiate and bargain concerning any change in subcontracting arrange- ments and its effect on the unit employees." 2. Substitute the following for paragraph 2(b). "(b) Recognize and, on request, bargain in good faith with the Union as the exclusive bargaining representative of the unit employees." 3. Substitute the attached notice for that of the administrative law judge. ' Member Johansen did not participate in the decision on the merits. ' The Respondent has excepted to some of the judge 's credibility find- ings. The Board's established practice 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. In part III,A, of his decision, the judge inadvertently ascribes to G. Heileman Brewing Plant Manager Allen Lacombe's testimony that in early 1981 he could not use electrician Alfred Valetin because Valetin was not eligible to do construction work outside the Heileman plant. The decision is corrected to reflect the testimony of Lowry Superintendent George Fischer Jr. We also modify the remedy portion of his decision to reflect that the Respondent is found to be in violation of Sec. 8(aXl) and (5) and not Sec. 8(aXl) and (3). We do not adopt the judge's finding that the Respondent violated Sec. 8(a)(5) by breaching contractual obligations to the Union . The complaint alleged only that the Respondent violated Sec . 8(ax5) by the unilateral subcontracting of the electrical maintenance work to Bianco Electric Co. (Bianco), and the issue of whether the Respondent breached a collective- bargaining agreement with the Union was not fully litigated . We shall modify the recommended Order and notice accordingly. Member Cracraft notes that in its brief the Respondent does not con- test the judge's finding that the decision to subcontract the electrical maintenance work to Bienco was a mandatory subject of bargaining. In light of the other reasons given by the judge for rejecting the Re- spondent's waiver defense, Member Cracraft finds it unnecessary to rely on the judge's finding that the Respondent "was in fact bound by a col- lective-bargaining agreement, effective through August 1985." ' In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after January 1, 1987, shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U.S.C. § 6621. Interest on amounts accrued prior to January 1 , 1987 (the effective date of the 1986 amendment to 26 U.S.C. § 6621 ), shall be computed in accordance with Florida Steel Corp., 231 NLRB 651 (1977). 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. WE WILL NOT fail or refuse to recognize and bargain collectively and in good faith with Local Union 309, International Brotherhood of Electrical Workers, AFL-CIO as the exclusive bargaining representative of our employees in the appropriate unit consisting of all maintenance electricians em- ployed at our Belleville, Illinois plant. WE WILL NOT unilaterally change the wages, benefits, and other terms and conditions of employ- ment of the unit employees without prior notice to Local 309 and without affording Local 309 an op- portunity to meet and bargain concerning such matters as such representative. WE WILL NOT terminate maintenance electricians at our Belleville plant without affording Local 309 prior notice and an opportunity to negotiate and 290 NLRB No. 121 992 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD bargain concerning any change in subcontracting arrangements and its effects on the unit employees. 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 Gerald Warden, Joseph Poell, Lawrence O'Dell, Elwood Harres, Albert Lorent- zen, Tom Chasteen, and Dave Pusa immediate and full reinstatement to the positions of employment which they occupied in December 1984, either jointly with Lowry Electric Company, it being willing, or if not, as our employees, dismissing if necessary anyone who may have been hired or as- signed to perform the work that they had been per- forming prior to January 1, 1985, or if their former positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights, privileges, and benefits previously en- joyed, and WE WILL make them whole for any loss of earnings and benefits they may have suffered by reason of their unlawful terminations, with interest. WE WILL recognize and bargain in good faith with Local 309 as the exclusive collective-bargain- ing representative of the unit employees. WE WILL reimburse the various trust funds es- tablished under the prevailing basic inside agree- ment between Southwestern Illinois Division, NECA and Local 309, for any failure of contribu- tions from Lowry Electric Company by reason of our failure to employ maintenance electricians under the subcontracting arrangement. G. HEILEMAN BREWING, INC. Stephen D. Smith, Esq., for the General Counsel. Ralph E. Kennedy, Esq. and Daniel R. Begian, Esq, of St. Louis, Missouri, for the Respondent. Sally Barker, Esq., of St. Louis, Missouri, for the Charg- ing Party. DECISION STATEMENT OF THE CASE MARVIN ROTH, Administrative Law Judge. This case was heard at St. Louis, Missouri, on 19, 20, and 21 August 1985. The charge was filed on 8 January 1985 by Local Union 309, International Brotherhood of Electrical Workers, AFL-CIO (the Union) The complaint, which issued on 11 June 1985, alleges that G. Heileman Brew- ing Co., Inc. (the Company or Respondent) violated Sec- tion 8(a)(1) and (5) of the National Labor Relations Act. The gravamen of the complaint, in sum, is that (1) the Company and Lowry Electric Co. (Lowry) were joint employers of employees performing electrical mainte- nance work at the Company's Belleville, Illinois facility, (2) the Union was the designated and recognized collec- tive-bargaining representative of these employees in an appropriate unit, and (3) the Company violated its bar- gaining obligations by subcontracting the electrical main- tance work to Bienco Electric Co. (Bienco) without prior notice to the Union and without affording the Union an opportunity to negotiate and bargain concern- ing such subcontracting and its effects. The Company by its answer denies these allegations, and further contends that the complaint should be dismissed by reason of the General Counsel's failure to join Lowry and Bienco as parties to this proceeding, and that the Union failed to exhaust its contractually established grievence and arbi- tration procedure.' All named parties were afforded full opportunity to participate, to present relevant evidence, to argue orally, and to file briefs. The General Counsel, the Union, and the Company each filed a brief. On the entire record in this case2 and from my obser- vation of the demeanor of the witnesses, and having con- sidered the briefs submitted by the parties, I make the following FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT The Company, an Illinois corporation, maintains an office and brewery at Belleville, Illinois, where it is en- gaged in the production and distribution of beer, related malt beverages, and other products. In the operation of its business, the Company annually sells and ships from its Belleville plant, goods and materials valued in excess of $50,000 directly to points outside of Illinois. I find, as the Company admits, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. As the named Respondent is an employer engaged in commerce, I find that it would effectuate the policies of the Act for the Board to assert its jurisdiction in this case. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background: The Brewery Operation, the Union's Representative Status, and Developments Leading to the Subcontracting Arrangement Between the Company and Lowry The Belleville brewery has been in existence since at least the early 1940s. From 1954 until 1975 Carling Brewing Company operated the brewery. In 1975 Car- ling was acquired by National Brewing Company, the re- sulting firm being known as Carling National, and in April 1979 that firm was acquired by the Company. (The plant itself has sometimes been called the Stag Brewery, although many brands of beer are produced there.) The brewery employees have for many years been represent- I These procedural arguments are closely related to and dependent upon my findings concerning the merits of the present case Therefore I shall consider them in that context 2 Errors to transcript have been noted and corrected G. HEILEMAN BREWING CO. 993 ed by various labor organizations. The Teamsters Union represented the production and some maintenance em- ployees. District #9 of the Machinists Union, Local #101 of the Plumbers and Pipefitters Union, and the present union have historically represented the plant maintenance employees in their respective crafts. Since the 1940s the Union has represented the maintenance electricians as the brewery, and those employees were, until August 1980, covered by a series of collective-bar- gaining contracts between the Union and the firm oper- ating the brewery. On acquiring the brewery, the Com- pany assumed the bargaining obligations of its predeces- sor. As of that time there was in effect a collective-bar- gaining contract between Carling National and the Union covering the maintenance electricians at the plant, and effective by its terms from 15 April 1975 through 14 April 1979. The Company initially anticipated that it would close the brewery. In March 1979 the Company jointly negotiated a closing agreement, entitled "Crafts- men Memorandum of Understanding" with the three maintenance craft unions. The agreement covered the effect of termination of operations, including servance pay, and specifically provided that if the Company re- sumed operations, it would operate under the existing collective-bargaining contracts for 90 days, after which the contracts would be open for negotiations or modifi- cations.3 Following the acquisition the Company laid off its employees, including the maintenance electricians. However, the Company subsequently decided to resume operations at the brewery, and in August the Company recalled the eight maintenance electricians who had pre- viously worked there.' Thereafter the Company negoti- ated new or modified contracts with the Machinists and Pipefitters Unions, but requested that the present Union await the outcome of those negotiations . In the meantime the electricians worked under an extension agreement of the 1975-1979 contract, which provided for a 70-cent- per-hour wage increase. The Company eventually exe- cuted contracts with the Machinists and Pipefitters Unions which each provided for annual wage increases ranging from 40 to 47 cents per hour over a 3-year period. In early 1980 the Company and the Union com- menced their negotiations, and the maintenance electri- cians continued to work under an extension agreement. Union Assistant Business Manager James Hankins, ac- compained by maintenance electricians Gerald "Red" Warden and Alfred Valentin, represented the Union, and all three were presented as the General Counsel wit- nesses in this proceeding . Plant Manager Allen LaCombe and Industrial Relations Manager Charles Rhein repre- sented the Company, and they were presented as Com- pany witnesses. I am not persuaded that any of these wit- nesses gave a complete and accurate picture of the 1980 The closing agreement was nominally between Carling National and the unions, because the Company was awaiting SEC approval for its ac- quisition of Carling National. Plant Manager Allen LaCombe and Indus- trial Relations Manager Charles Rhein, who signed the agreement for Carling National, remained in their respective position after the acquisi- tion. 4 The eight electricians were Gerald Warden, Joseph Poell, Elwood Harres, Lawrence O'Dell, Edmond French, Alfred Valentin, Albert Lor- entzen, and Lindell Zimmerman. negotiations. Hankins was not credible in certain specific respects, and the employees tended to be somewhat vague in their recollection of the negotiations , LaCombe and Rhein, while denying certain specific aspects of Han- kins' testimony, were sparse in their description of the negotiations, and did not specifically explain how it came about that the Company proposed subcontracting the electrical maintenance work. However, on considering the overall tenor of the witnesses' testimony, a clearer picture emerges. It is evident that the Company was con- cerned about the wage disparity between the electricians and the other maintenance crafts. It is undisputed that the electricians were paid at a higher rate than the ma- chinists and pipefitters. In response to my question, Plant Manager LaCombe testified in sum that in 1980 the Company wanted to subcontract the electrical work be- cuase (1) the Company was finding it difficult to obtain qualified, competent electricians, which sometimes had to be done on short notice; and (2) the Company initially planned to operate the brewery on a seasonal basis, and therefore needed an electrical subcontractor in order to be assured of a ready pool of electricians. However, this would not explain whey the Company proposed subcon- tracting after the negotiations were under way. (Rhein testified that LaCombe proposed subcontracting at the second bargaining session in 1980.) Electricians Warden and Valentin both testified, in sum, that the parties were having difficulty in reaching agreement on the terms of a collective-bargaining contract, and that the Company proposed subcontracting as a means of breaking what ap- peared to be a deadlock in negotiations. By subcontract- ing to a union firm, the Company would not be able to reduce the electricians' wage scale. However, it would be in a position to disvow responsibility for electricians' wage rates. Therefore, although I do not credit the testi- mony of Hankins in all its aspects, I credit his testimony to the effect that the Company proposed subcontracting as a means of justifying to the other union, why the elec- tricians were receiving a higher rate of pay.5 The Union was not adverse to the idea of subcontract- ing, although it expressed some concerns. Hankins asked if the Company might eventually train Teamsters, i.e., production unit employees , to perform electrical mainte- nance work. Lacombe answered that the Company would not do this. The employees expressed concern about what would happen to them . LaCombe answered that they could be transferred to the contractor's pay- roll.2 Both parties understood that the electrical mainte- 6I do not credit Hankin's testimony that LaCombe referred to the other union contracts as "crap." I find it unlikely that LaCombe would so disparage the contracts he had negotiated and thereby encourage the Union to demand higher wages . I also do not credit Hankins' testimony that the Pipefitters and Machinists took wage cuts in 1979. Rhein and La- Combe testified in detil concerning the wage increase negotiated for the other units, and their testimony was corroborated by Pipefitters Business Agent Joseph Nebgen, who was presented as the General Counsel's wit- ness. Nevertheless, as indicated, the electricians were paid more than the other company employees, and this resulted in problems when the Com- pany negotiated with the other uniors. 6 This finding is based on the credited testimony of LaCombe and Rhein. I do not credit Hankin's testimony that LaCombe wanted the con- tractor to agree to a seniority list in order that the Company could retain Continued 994 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD nance work would be contracted to a union firm, select- ed by the Company, which was a signatory to the area contract between the Union and the local chapter of Na- tional Electrical Contractors Association (NECA), a multiemployer bargaining association. Therefore the em- ployees would be covered by that contract, except to the extent that different terms and conditions were negotiat- ed. The Union agreed that the Company and the Union could negotiate shift differentials and starting times which differed from those in the NECA contract, and they did so. The Union informed the Company that under the NECA contract, there would have to be a working foreman on the job. By July 1980 the Company and the Union reached agreement on the terms and con- ditions of subcontracting insofar as they affected the em- ployees. However, they did not reduce their agreement to writing. Instead the Company next selected a subcon- tractor. The Company awarded the electrical mainte- nance work to Lowry, an established union electrical contracting firm which was a member of NECA and sig- natory to the current NECA contract with the Union. It is undisputed that at all times the Company and Lowry were and are separately owned, and operated and con- trolled firms, engaged in different businesses, and did not constitute a single employer under the Act. On 5 August 1980 the Union and Lowry executed a "Maintenance Work Supplement to the Prevailing Inside Agreement Between Local Union 309 of the I.B.E.W. and Lowry Electric Company," which by its terms was limited to the performance of maintence work at the Company's brewery. The phrase "prevailing inside agreement" referred to the current NECA contract, and the agreement signed on 5 August 1980 constituted an addendum to the NECA contract (I shall hereafter refer to the agreement as the "Addendum"). The Addendum, which was effective by its terms for the duration. of the NECA contract, specifically incorporated all the provi- sions of the prevailing NECA contract except as modi- fied by the Addendum. (The current NECA contract was scheduled to expire on 1 September 1981.) The Ad- dendum incorporated the shift schedules and premium pay rates which were negotiated and agreed on by the Union, and contained additional provisions which im- posed requirements on the Company. Thus the Adden- dum required both Lowry and the Company to post their safety and health rules "at conspicuous places throughout the job," and provided that Lowry and the Company "reserve the right to send into the area of work as many supervisors and engineers either deems necessary but they shall not perform any work." On 6 August 1980 the Company and Lowry entered into a written contract agreement whereby Lowry agreed to "provide all supervision and labor according to" the Ad- dendum. However, Lowry was not required to furnish tools or materials. Under this contract, the Company agreed to provide Lowry "with information as to senior- ity of electricians, size of crew needed from time to time its experienced employees . The Union, rather than the Company, was concerned about the job security of all of those employees . Because sub- sequent developments , it is evident that the Company valued some of those employees , but was not satisfied with the performance of others. and dismissal of employees." The Company further agreed to reimburse Lowry for the cost of wages, fringe benefits funds under the NECA contract and other pay- roll costs imposed by law, plus a 3-1/2-percent contrac- tor fee. On signing its agreements with the Company and the Union, Lowry commenced providing maintenance electricians at the brewery, using the seven employees who had until then been working regularly for the Com- pany (all of those recalled in August 1979, except Zim- merman). The Company informed Lowry that it wanted Warden as foreman, and he was so designated. Assistant Business Manager Hankins testified that about 1 Septem- ber 1980 he prepared and Lowry and the Union signed a memorandum of understanding which listed the seven employees in order of their seniority, based on company employment records, and provided that they would be laid off and recalled in accordance with their seniority date. A comparison of this memorandum with prior Company seniority rosters indicates some minor different in seniority dates, but the employees maintained their po- sitions on the seniority roster (in order, Warden, Poell, O'Dell, Harres, French, Valentin, and Lorentzen). Han- kins testified that he mailed a copy of the memorandum of understanding to the Company. Plant Manager La- Combe testified that he never saw the memorandum. Hankins testified that he prepared the memorandum be- cause the Company requested such an agreement. As in- dicated, I have found that the Union requested and the Company agreed that the present employees would be retained. Hankins further testified that the Company and the Union agreed that the Addenda agreements between Lowry and the Union would be renewed on an annual basis and concurrently with the NECA contracts. The Addendum and each renewal provided that it "shall run concurrently with the term" of the NECA contract and "shall apply to any contractor who has been recognized by a Letter of Assent to" the NECA contract. However, a comparison of the contract agreements between the Company and Lowry, the Addenda agreements between Lowry and the Union and the NECA contracts indicates that although they were usually executed in August, they did not always run for concurrent periods. The Addenda agreements were renewed annually, effective as of 1 Sep- tember of each year (1981-1984). The contract agree- ment between the Company and Lowry, originally effec- tive for a 2-year period, was renewed on 5 August 1982 for an additional 2-year period,, and was renewed on 5 August 1984, effective until 31 December 1984. (The cir- cumstances concerning this last renewal will be discussed at a later point in this decision.) The NECA contract which was in effect from 1 September 1979 to 1 Septem- ber 1981 was periodically renegotiated and successive contracts were effective from 1 September 1981 through 31 August 1983, 1 September 1983 through 31 August 1984, and 1 September 1984 through 31 August 1986. The Company never signed the Addendum agreement or renewal, did not participate in NECA negotiations, and never signed a "Letter or Assent" to be bound by the NECA contract, although the NECA contract provided that it would apply to all firms who signed such letter of assent. The Union routinely informed the Company of G. HEILEMAN BREWING CO. 995 changes in pertinent wage rates and benefit payments under the NECA contract. The Company had mainte- nance subcontracting arrangements at other plants. How- ever, although Lowry had numerous contracts to per- form electrical work, including from time to time , jobs at the brewery, this was its only maintenance contract. As indicated, there are some conflicts in testimony concerning the agreements among the Company, Lowry, and the Union. Resolution of these conflicts has been hampered by the fact that the individuals who executed the initial Addendum agreement between Lowry and the Union were not presented as witnesses in this proceed- ing. However, on consideration of the pertinent docu- ments, particularly the contract agreement between the Company and Lowry, certain salient and crucial facts emerge. First and foremost, the Company contractually agreed that the electrical maintenance work would be performed in accordance with the Addendum and the NECA contract. Specifically, the Company agreed that Lowry would provide supervision and labor in accord- ance with the Addendum, and the Addendum expressly incorporated "all of the provisions" of the NECA con- tract except as modified by the Addendum. Second, it is evident from the comparison of the Addendum with the testimony concerning the negotiations between the Com- pany and the Union that the Addendum, although not signed by the Company, was in fact negotiated by the Company and reflected the results of those negotiations. Moreover, the Company indicated its approval of the Addendum when it signed the contract with Lowry, thereby agreeing that maintenance work would be per- formed in accordance with the Addendum. Third, it is evident from the language of the contract agreement and the Addendum that all parties anticipated that the Com- pany would exercise supervisory authority over the maintenance electricians . The Company specifically agreed to provide Lowry with information about "dis- missal of employees." This provision would be superflu- ous unless the Company actually had the power to termi- nate the employees. This power was particularly signifi- cant for the regular employees who had previously worked for the Company, and who, as will be discussed, continued to perform most of the maintenance work. If the Company wished to terminate an employee who had initially been furnished by Lowry, then Lowry could simply transfer that employee to another job. However, the employees who had previously worked for the Com- pany were not qualified under the NECA contract to perform outside construction work . Therefore the Com- pany had life or death power over their jobs . The con- tract agreement further provided that the Company would provide Lowry with information about "seniority of electricians." This information would also be superflu- ous unless, as was actually the case, the Company under- stood and agreed that the employees who previously worked for the Company would be retained by reason of and in accordance with their seniority with the Compa- ny. The Addendum provided that both the Company and Lowry reserved the right to send supervisors and engineers into the work area, "but they shall not perform any manual work." It is evident from this provision that the Company, Lowry, and the Union anticipated that the Company would have at least authority to supervise the manner in which the maintenance electricians performed their work. As will be discussed, only the Company reg- ularly sent supervisors "into the area of work." B. Day-to-Day Operations Under the Subcontract Between the Company and Lowry After the Company subcontracted the electrical main- tenance work to Lowry, the electricians who were for- merly on the Company's payroll continued to perform their work in the same manner as they had done before. They did not fill out a job application for Lowry. They continued to report for work at the brewery, and never had occasion to report to Lowry's facility. They punched the same timeclock (using the Company's cards) as the maintenance employees who were directly em- ployed by the Company (pipefitters, machinists, and some oilers). As agreed by the Company and the Union, they worked the same shifts as the other maintenance employees. Those shifts differed both from the shifts worked by the Company's production employees and from Lowry's employees engaged in outside work. As working foreman, Gerald Warden compiled weekly timesheets from the daily timecards , and turned in the sheets the Company Electrical Superintendent Richard Voss, who forwarded them to Lowry. Lowry prepared the paychecks, made all deductions, and sent the checks to Voss. Warden or an acting foreman would pick up the paychecks and distribute them to employees. The electri- cians' weekly pay period was the same as that for other Lowry employees. There were normally seven mainte- nance electricians regularly on duty during a 24-hour period. Four electricians worked the day shift (7 a.m. to 3 p.m.). Two, including Warden, were assigned to the bottle shop and two to the brewhouse . The facilities were about one block apart. Two electricians were as- signed to the second shift (3 to 11 p.m.). They were based at the bottle shop , but serviced the entire plant. One electrician was assigned to the third shift (11 p.m. to 7 a.m.). When replacements were needed, Voss would notify the Lowry vice president and superintendent, George Fischer, who would refer them from Lowery's complement of employees. From time to time, Lowry furnished electricians on a temporary basis in accordance with the Company's needs, e.g., as replacements for em- ployees on sick leave or vacation, or to meet special maintenance problems which required additional help. These employees worked on other Lowry jobs when they were not working at the brewery . However, the Company needed permanent replacements when Edmond French died and Alfred Valentin retired. Lowry furnished replacements, and two of these (Tom Chasteen and Dave Pusa) worked at the brewery on a permanent basis and became part of the regular crew. As indicated, the remaining electricians, who had formerly been on the Company's payroll did not work on other Lowry jobs. The maintenance electricians were primarily trouble- shooters, i.e., their function was to correct electrical problems and maintain electrical equipment in such a manner as to assure continuity of production operations. 996 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Therefore their work was complementary to that of other maintenance employees and closely involved with production. The electricians furnished their own hand tools, and the Company furnished all power tools and other supplies and equipment. Lowery did not furnish any tools and materials. Lowery also did not regulary assign a supervisor to the brewery. Lowry Vice Presi- dent and Superintendent Fischer testifeid that during the period from August 1980 through December 1984 he went to the brewery only 5 or 6 times in connection with maintenance work, although he regularly visited other Lowry jobsites and indeed, went to the brewery some 25 to 30 times during the same period in connec- tion with other jobs or bidding for jobs. Fischer ex- plained that he had no reason to go to the brewery in connection with maintenance work because he did not know what had to be done. It is evident from the nature of the work involved that Fischer was correct. The work of the maintenance electricians was so closely re- lated to the Company's normal production operation that only the Company could exercise meaningful supervision over that work. Nonetheless the Company contends (Br. 21, 36) in sum that the maintenance electricians were skilled personnel who were capable of performing their work as needed, without supervisory direction, and that consequently neither the Company nor Lowry super- vised their work on a regular basis.' To a considerable extent the Company's position is accurate. The electri- cians performed most of their work on an "as needed" basis. Superintendent Voss, production or other mainte- nance employees, and even rank-and-file production em- ployees could and did inform the electricians of needed repairs simply by paging them over the plant intercom system. An announced "red" condition meant a break- down which stopped production and therefore had to be handled immediately. An announced "green" condition meant a less serious problem which did not require prior- ity attention. When electricians (usually on the first shift) were unable to reach or complete jobs on their shift, then Superintendent Voss, Warden, or another electri- cian (usually Joseph Poell, who worked with Warden and sometimes served as acting foreman) would enter the jobs Voss' ledger book. When electricians on succeeding shifts reported to work, they would check the ledger book to see what jobs remained to be done. Usually second- and third-shift electricians had more time to per- form nonpriority work. As these jobs were completed, the electricians would so indicate in the ledger book. Under this system, it was seldom necessary for Voss or any other supervisor to exercise supervisory rather than technical discretion by deciding to what work had to be performed and which employees should perform the work. This did not mean that the electricians worked without day-to-day supervision. Rather, the evidence in- dicates that when supervisory authority was exercised, it 4 The Company does not contend that electrician Warden was a Lowry supervisor by reason of his status as "Foreman " under the NECA contract In any event, Warden was primarily engaged in performing electrical maintenance work, and his functions as foremen , to the exetent that they might be arguably regarded as supervisory , were routine in nature and did not involve the exercise of such discretion , in the interests of the employer, as would qualify him a a supervisor under the Act. was usually done at the first level by Superintendent Voss, and at a higher level by Plant Manager LaCombe or Industrial Relations Manager Rhein, usually in consul- tation with the Union or Lowry. The complaint in this case alleges, and the anwser admits, that Voss is and was at all times material the Company's electrical superin- tendent, and a supervisor and agent of the Company within the meaning of the Act. If so, then it is difficult to see who Voss would be supervising unless it were the maintenance electricians. In fact, Voss was their supervi- sor, and they so regarded him as their supervisor.8 Joseph Poell testifeid about two instances in which a question arose concerning the placement of certain elec- trical switches. In each instance Voss decided how and where the switches should be installed, although the electrician or electricians involved preferred to do it dif- ferently. Electrician Alfred Valentin similarly testified concerning two occasions on which another company maintenance supervisor instructed an electrician to redo certain work which in the opinion of the supervisor had not been done properly. Poell testified that when he re- ported to work each day, he and Voss would discuss what jobs had to be performed, and they would go through the ledger book and work orders together. When the Company needed an electrician or electricians to work overtime, Voss would so inform Valentin, who was the Union's shop steward, indicating how many were needed and when they would work. Valentin, in accordance with prior practice before subcontracting, would assign those employees with the least accumulated overtime in order to equalize distribution of overtime. He would post their names on the electricians' bulletin board, and if an employee declined overtime, he would give it to someone else. Lowry was never notified of such overtime work unless more electricians were needed, in which case Voss called Lowry Superintend- ent Fischer, indicating time and shifts. Voss was present about 10 percent of the time that the electricians were working, he was usually present when they were work- ing on a major breakdown, and he would usually come by when they were working on a weekend. He also pro- vided them with diagrams when necessary. Although Voss was a trained and experienced electrician, he did not normally perform manual work unless the electri- cians needed assistance. At a higher lever, Plant Manager LaCombe and Indus- trial Relations Manager Rhein became involved in the supervisory process. The Company was dissatisfied with electrician Valentin's performance. In early 1981 Lowry Superintendent Fischer met with LaCombe, at Voss' re- quest, concerning Valentin. LaCombe said his work was not good or fast enough, and he asked Fisher to get rid of him. LaCombe said he could not use him because he was not eligible to do outside construction work, but would fire him if LaCombe so requested. LaCombe said he would give Valentin another chance. In 1983 Voss told Assistant Business Manager Hankins that LaCombe 8 Voss was not presented as a witness in this proceeding The evidence concerning his duties substantially consists of the testimony of the Gener- al Counsel's employee witnesses, and documents which were presented in evidence G. HEILEMAN BREWING CO. 997 was still dissatisfied with Valentin's performance, and asked when he was going to retire (Valentin eventually retired in June 1984). In 1982 LaCombe asked Fischer to come to the brewery to talk to electrician O'Dell, be- cause his work was too slow. Fischer came a few days later, but Lacombe told him that the matter was settled. On another occasion Rhein told Fischer that an electri- cian who had initially been referred by Lowry was con- stantly talking and interfering with work, and that La- Combe wanted him off the Company's property. Fischer answered that he was a good electrician , but he agreed to transfer the employee.. Fischer testified that he never disciplined the maintenance employees or even discussed their work (except to talk to Warden about mistakes on the timesheets), but would give them a "pep talk" if sug- gested by Voss Rhein. In sum, Lowry never took the ini- tiative in monitoring emloyee performance, and the Company never asked Lowry to do so. Rather, the Com- pany monitored individual performance , and decided what action should be taken if it believed that the em- ployee's performance was substandard. Fischer would express his opinion, but would either carry out the Com- pany's decision or let the Company resolve the matter. As indicated, the Company was aware that rejection of any of the initial crew of electricians was tantamount to discharge. Rhein also sought to become involved in the hiring process, although his efforts in this regard never reached fruition. In 1983 Rhein told Hankins that La- combe ,wanted a particular electrician to work at the brewery. Hankins said he would try to get him, but the electrician. was not hired or referred by Lowry. Also in .l983, Rhein proposed to Hankins that the Company could use college students as summer help for electrical maintenance work and suggested a wage rate of $5 per hour..Hankins agreed, subject to approval by the em- ployeesiat tle brewery, but Rhein subsequently decided not to hire-summer help. Neither Rhein nor Hankins in- dicated that such summer help would have to be referred through Lowry. The parties stipulated in this proceeding that Worker's Compensation claims were filed only against Lowry and were paid by Lowry's insurer. The evidence is inconclu- sive regarding formal grievance handling because no contractual grievances were filed after the Company sub- contracted the electrical maintenance work . Jurisdiction- al disputes were always resolved by the stewards for the respective crafts or units. However, on at least one occa- sion the Company dealt directly with the Union in re- solving an informal grievance. Hankins testified without contradiction that in early 1984 Hankins told Rhein that electrician Lorentzen wanted to work the day shift. Rhein said he wanted Lorentzen on nights , and they agreed that there should be no shift preference. The maintenance electricians continued to enjoy benefits which were available to company employees but not to nonemployees, and they enjoyed such benefits either be- cause of a continuation of past practices or through ne- gotiations with the Company in which Lowry was not involved. The Company had programs whereby it awarded prizes of beer or small amounts of cash to the employees at the plant as a reward for overall plant safety or productivity . These programs were known re- spectively as "safety bingo," "production beer," "No lost time accident beer" and "monthly beer." Prior to sub- contracting, the maintenance electricians participated in and were eligible for prizes under these programs. After subcontracting began, Steward Valentin asked Rhein if they could remain in the programs. After consulting with LaCombe, Rhein informed the Union that they could do so. The parties stipulated that these programs covered "all persons performing services at the plant ," including maintenance electricians. However, no evidence was in- troduced which would indicate that any persons not on the Company's payroll, other than the maintenance elec- tricians, fell into this category. The maintenance electri- cians had the use of a company lunchroom facility, and those who worked regularly at the brewery had their own lockers, and stored their tools at or near their work- bench. These regular electricians were always invited to the Company's Christmas party for its employees, but were not invited to Lowry's party. Electrician Poell, who had worked at the brewery since 1964 , testified in sum that his working conditions remained substantially the same after the Company subcontracted the electrical maintenance work, except that he now received his pay- check from Lowry. C. Developments Leading to the Subcontracting to Bienco, and the Company's Alleged Unlawful Conduct As indicated, in August 1984 the Company and Lowry renewed their contract agreement only until 31 Decem- ber 1984, although their preceding agreements had run for 2-year periods.9 None of the company or Lowry offi- cials who were presented as witnesses in this proceeding, testified directly concerning the reason for this short re- newal term. However, the evidence indicates that the Company was concerned about what it regarded as esca- lating wage rates under the NECA contract, and was de- termined to avoid the impact of those rates . In Decem- ber 1983 the Company and the Pipefitters Union were engaged in contract negotiations. The Pipefitters Union wanted wage parity with the electricians . Pipefitters' business agent, Nebgen, testified without contradiction that the Company's attorney told him that no one in the units would make more than the pipefitters, and that parity would be at the pipefitters' rate, not the electri- cians' rate. Hankins testified that in January , following a conversation with Nebgen , he called Rhein and said that he heard that the Company's attorney threatened to get the Union. Rhein answered that there was no problem, that this was just bargaining tactics, but that he would like to talk to Hankins after the Pipefitters negotiations were completed . However, he never contacted Hankins. Nebgen testified that he did not discuss the Pipefitters negotiations with the Union. Whether he did or did not, it is evident that Hankins somehow learned about what the Company said in those negotiations. Most significant- ly, the uncontroverted testimony of Nebgen and Hankins concerning the Company's statements demonstrates that (1) the Company was determined to significantly reduce the wage rates for its electricians even to the point of 9 All dates in this section are for 1984 unless otherwise indicated. 998 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD making a commitment to the Pipefitters in this regard, and (2) the Company attempted to conceal its aim from the Union, and indeed, avoided dealing with the Union concerning the matter of wage rates. The Union did not learn until late August, when it asked Lowry to sign a 1- year renewal of the Addendum, that the Company and Lowry had extended their contract agreement only through December 1984, i.e., that unlike prior years, the agreement would come up for renewal during the term of the Addendum. Lowry President Oliver Hartman, who was presented as the General Counsel witness, testi- fied that he so informed the Union, and that the Union told him that they would go along with that arrange- ment. I credit Hartman's testimony in this regard.10 In the meantime, Hankins heard as early as July 1984 that the Company was shopping around among electrical contractors for a lower rate. Plant Manager LaCombe testified that in early November, before he contacted Lowry about a renewal of their agreement, he instructed Rhein to solicit bids for the electrical maintenance work. In mid-November (probably the week of 12 Novem- ber), at the Company's request, Hartman and Fischer of Lowry met with company officials LaCombe and Rhein at the brewery. All four testified concerning the meeting. However, their versions of the meeting, although differ- ing in some aspects, conflict in only one significant re- spect. LaCombe told Hartman that their contract would expire soon, and that the Company needed a $5-per-hour reduction in the electricians' base wage rate. He asked Hartman to talk to the Union to see if they would accept the reduction. Hartman said he would get back to the company officials after he spoke to the Union. Hartman and Fischer testified that LaCombe said the reduction was "non-negotiable." LaCombe and Rhein testified that LaCombe did not make such a statement. I credit the Lowry officials. First, it was in their interest to present the Company's position to the Union in the most flexible light possible because if they failed to reach agreement Lowry would be out of a contract. Therefore it is un- likely that Hartman would have represented to the Union, as he did, that the Company's demand was non- negotiable, unless the Company actually said so. Second, as has been and will be discussed, the Company's overall course of conduct indicates that it was taking a nonnego- tiable stance because the Company was determined to substantially reduce the electricians' wage rate, with or without the Union, and preferably without. The next development was a meeting at the union hall between Hankins and the two Lowry officials. Although there is considerable confusion in the testimony of these three witnesses as to when they met, the overall testimo- ny concerning the course of developments indicates that Hartman was probably correct when he testified that they met some 3 to 7 days after the Lowry officials met 10 Hankins testified that Hartman did not inform him of the limited re- newal until December 1984 an,' that until then he assumed that the Com- pany and Lowry renewed their agreement for another 1-year period However, Hankins admitted that in September 1984 Union President Faust told him that Hartman said the Company wanted a 6-month exten- sion If so, then it is probably that the Union would have checked to de- termine whether in fact Lowry signed a renewal agreement of such short duration with the Company. i i I credit the testimony of Hartman and Fischer concerning their meeting. Hartman reported what LaCombe told him, i.e., that the Company wanted a $5-per-hour reduction in the base wage rate, which would be nonnegotiable. Hankins said that he did not think that the employees would accept such a cut, but that he would talk to Hartman . Shortly thereafter, in late November, LaCombe called Hartman and asked him whether there had been any "progress " Hartman an- swered that Hankins had to get with the employees.12 The Union did not contact Hartman until after Christ- mas. On December 26, Hankins told him that a $5 base wage reduction was unacceptable, but the Union might put together a package of cuts totaling $2.40 per hour which would not include a reduction in the base wage rate. Hartman promptly informed LaCombe of the Union's position, but LaCombe did not respond to the proposal On 27 December Hartman proposed to La- Combe that he meet directly with Hankins. LaCombe declined, asserting that his contract was with Lowry. LaCombe told Hartman that Lowry no longer had a contract, but could submit a bid for the maintenance work. On 28 December Hankins presented Hartman with a proposed document for signature by the Company, Lowry, and the Union, by which the Company acknowl- edged its status as a joint employer and obligation to bar- gain with the Union if it terminated its relationship with Lowry. That same day Hartman telephoned LaCombe and told him that the Union would agree to cuts in the range of $2.50 to $3 per hour if the Company signed the document. LaCombe answered that the Company could not sign such a document. Hartman delivered the docu- ment to LaCombe the next day. On 31 December Han- kins told Hartman to inform the Company that the Union would agree to cuts totaling $2.50 per hour with- out the document. Hartman immediately informed Indus- trial Relations Manager Rhein of the Union's proposal. After consulting with LaCombe, Rhein called back and informed Hartman that the Union's proposal was "too little, too late."13 On 1 January 1985 the Company exe- 11 Hankins was obviously far off base when he testified that he met with the Lowry officials on 12 December. Indeed he subsequently admit- ted that he learned from Union President Faust in late November that the Company wanted a $5- or $6-per-hour wage cut LaCombe testified that he called Hartman about 10 days after their meeting and learned that Hartman had already talked to Hankins I find that the Lowry officials met with Hankms in the latter part of November, before Thanksgiving 12 I credit LaCombe's testimony concerning this conversation I do not credit the testimony of Superintendent Fischer about a three-way conver- sation in early December among LaCombe , Hartman, and Fischer in which Hartman allegedly said that the Union made no offer because the Company said its proposal was nonnegotiable , and LaCombe said the Company might be willing to negotiate a wage reduction of $3 per hour The testimony of the other witnesses (Hankins, Hartman, LaCombe, and Rhein) indicates that the Union did not state a position until late Decem- ber, and the Company never indicated a willingness to accept anything less than a $5-per-hour wage reduction " The foregoing findings concerning developments during the last week of December are substantially based on the testimony of LaCombe and Rhein Although I have credited Hartman's testimony in certain re- spects, LaCombe was the only witness to present a coherent and chrono- logically accurate account of those developments G. HEILEMAN BREWING CO. 999 cuted a maintenance contract with Bienco, which does not have a contract with the Union , and Bienco com- menced performing the electrical maintenance work with its own complement of employees . By letter dated 3 Jan- uary 1985, Hankins demanded that the Company bargain directly with the Union concerning "the terms and con- ditions of employment of employees performing electri- cal work." By reply letter dated 4 January 1985, La- Combe denied that it was a joint employer of those em- ployees, and asserted that the Union's dispute was solely with Bienco. D. Analysis and Concluding Findings The Company asserted in its answer, by way of affirm- ative defense, that the "Union has failed to exhaust its contractually established grievance and arbitration proce- dure." The Company has evidently abandoned this asser- tion, having presented neither evidence nor argument in support thereof. Because the Company's contention that it has no contractual or other bargaining obligation to the Union, it is evident that the subject matter of the present complaint cannot be resolved through any agreed-upon contractual grievance and arbitration proce- dure. Therefore I find this affirmative defense without merit, and I shall proceed to consider the merits of this case. I agree with the General Counsel (Br. 13) that in ad- dressing the merits, the first question to be decided is whether the Company and Lowry were joint employers of the maintenance electricians employed at the brewery during the period from August 1980 through 31 Decem- ber 1984. If not, then the Company owed no contractual or other bargaining obligation to the Union, and there- fore the complaint would have to be dismissed. In Laerco Transportation, 269 NLRB 324, 325 (1984), the Board recently had occasion to define joint employer status in the following language: The joint employer concept recognizes that two or more business entities are in fact separate but that they share or codetermine those matters governing the essential terms and conditions of employment. Whether an employer possesses sufficient indicia of control over petitioned-for employees employed by another employer is essentially a factual issue. To establish joint employer status there must be a showing that the employer meaningfully affects matters relating to the employment relationship such a hiring, firing, discipline, supervision, and di- rection. In sum, separate firms that "share, or co-determine, those matters governing essential terms and conditions of em- ployment" of the employees involved are joint employ- ers of those employees, regardless of whether the firms are commonly owned, operated, or controlled. NLRB v. Greyhound Corp., 368 F.2d 778 (5th Cir. 1966), citing Boire v. Greyhound Corp., 376 U.S. 473 (1964). Accord: NLRB v. Checker Cab Co., 367 F.2d 692, 698 (6th Cir. 1966), cert. denied 385 U.S. 1008 (1967); NLRB v. Browning-Ferris Industries, 691 F.2d 1117, 1121 -1124 (3d Cir. 1982).14 Applying the foregoing principles to the present case, I fmd that the Company and Lowry shared and codeter- mined the matters governing essential terms and condi- tions of employment of the maintenance electricians em- ployed at the brewery, and therefore were the joint em- ployers of those employees. First and foremost, the Com- pany and the Union in fact directly negotiated and agreed on the overall framework of terms and conditions of employment under which the maintenance electricians would work. They agreed that the employees would be covered by the NECA contract, except in certain par- ticulars, including starting times and shift differentials. They agreed to retain the employees who had been on the Company's payroll, and that consequently the em- ployees would retain their jobs in accordance with their company seniority notwithstanding that they would be on Lowry's payroll. The Addendum agreement, which governed terms and conditions of employment , although signed by Lowry actually reflected the negotiations and agreements between the Company and the Union. Simi- larly the memorandum of understanding on seniority, al- though signed by Lowry, reflected the verbal agreement on job retention that was negotiated between the Com- pany and the Union. Thereafter the Company alone de- termined when additional employees were needed, how many were needed, and for how long, and what shifts they would work. Lowry selected additional or replace- ment employees to meet the Company 's needs. However, throughout the period from August 1980 through De- cember 1984, most of the work was performed by former company employees, i.e., those employees who retained their jobs by reason of agreement between the Company and the Union. The Company, the Union, and Lowry, through their interrelated agreements, further agreed that the Company as well as Lowry would have the right to supervise and even terminate the employees. In practice, only the Company exercised meaningful supervision over the day-to-day work of the employees. As discussed, the Company through its supervisory personnel, principally Electrical Superintendent Voss, supervised and directed the work of the employees to the extent that it deter- mined that such supervision and direction were neces- sary. Indeed the nature of the work involved, i.e., main- tenance work which was closely related and essential to the Company's normal production operations, effectively precluded Lowry from playing any meaningful role in day-to-day supervision and direction of work . The Com- pany alone determined when employees would work 14 The "joint employer" concept is distinct from that of "single em- ployer." Unfortunately, as the court observed in Browning-Ferris, the terms have sometimes been used interchangeably, with some resulting confusion as to the definition and conditions present in each type of rela- tionship. "A 'single employer' relationship exists where two nominally separate entities are actually part of a single integrated enterprise so that, for all purposes, there is in fact only a 'single employer" ; i.e., when there is interrelation of operations together with centralized control of labor relations, common management, and common ownership of finan- cial control. Browning-Ferris, supra at 1122; NLRB v. M. P. Building Corp., 411 F.2d 567 (5th Cir. 1969). In the present case, the General Counsel does not contend that the Company and Lowry constitued a single employer. 1000 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD overtime, and by informal understanding with the Union's steward, and without any notice to or consulta- tion with Lowry, permitted the steward to designate those employees who would work weekend overtime. The Company initiated disciplinary action, determined what action was warranted, and Lowry, although it might make recommendations, invariably deferred to the Company's decision in this regard. As indicated, the Company was not a member of NECA, did not sign a letter of assent to be bound by the NECA contract, and unlikely Lowry, did not participate in contract negotia- tions between NECA and the Union. However, the Company did deal directly with the Union or the em- ployees concerning terms and conditions of employment which were not specifically governed by the NECA contract or the Addendum. Thus the Company informal- ly discussed and resolved grievances with the Union, and granted benefits to the maintenance electricians which were available to company employees, but not to other Lowry or noncompany employees. It is also significant that the Company did not, by subcontracting the electri- cal maintenance work, manifest a desire to relinquish control over that work, the employees performing that work, on their terms and conditions of employment. Rather as discussed, the Company subcontracted the work to avoid the appearance of granting a higher wage rate to the electricians than to other maintenance crafts, although the Company was well aware that by subcon- tracting to a union electrical contractor, the electricians would in fact be paid a higher rate than the other crafts. Therefore the evidence demonstrates that the Company and Lowry were joint employers of the maintenance electricians at the Belleville brewery Sun-Maid Growers v. NLRB, 618 F.2d 56 (9th Cir. 1980), is precisely in point. Sun-Maid, like the present case, involved a pro- ducer (in that case, a raisin processor) who arranged to have its maintenance electricians placed on the payroll of an outside contractor. In affirming the Board's finding that Sun-Maid was the joint employer of the mainte- nance electricians, the court held as follows (618 F.2d at 59): A joint employer relationship exists when an em- ployer exercises authority over employment condi- tions which are within the area of mandatory col- lective-bargaining. . . . Here, Sun-Maid controlled the electricians' work schedules, assigned the work and decided when additional electricians were needed. These actions amply support the Board's finding that Sun-Maid was the joint employer of the electricians. In the present case, all the factors relied on by the court are present. Specifically, the Company controlled the electricians' work schedules (in accordance with its own agreement with the Union), assigned the work to the extent such assignment was necessary, and decided when, how many, and for how long additional electri- cians were needed. Moreover, as discussed above, the Company exercised authority over employment condi- tions in other respects, including discipline, granting of benefits, and informal adjustment of grievances. 1 s The next questions presented concern the appropriate bargaining unit and the Union's representative status. The complaint alleges, and the answer denies, that all maintenance electricians employed at the Company's Belleville facility, excluding office clerical employees, professional employees, guards, and supervisors as de- fined in the Act and all other employees constitute a unit appropriate for collective bargaining. The Company con- tends (Br. 43) that "a unit limited to Lowry electricians working at the brewery is inappropriate in view of the fact that they frequently worked elsewhere, and in view of the fact that Lowry frequently transferred its electri- cians from other facilities to work at the brewery." The complaint further alleges, and the answer denies, that since 6 August 1980 the Union has been the designated exclusive collective-bargaining representative of the as- serted unit, and that the Union has been recognized as such representative by the Company. However, in its brief the Company makes clear that it does not dispute the Union's representative status vis-a-vis Lowry and NECA, albeit in a larger unit. Rather the Company's denial of representative status is based on its denial of joint employer status, and consequent position that it owes no bargaining obligation to the Union. The General Counsel's unit position presents some problems First, the General Counsel has presented no evidence that either the Company or Lowry ever recog- nized the Union as representative of a unit that was de- fined in the language of the complaint. None of the con- tracts or related documents that were presented in evi- dence contain such a unit description. Second, the cases principally relied on by the General Counsel as authority for the asserted unit (Sun-Maid Growers, 239 NLRB 346, 352-353 (1978), enfd. 618 F.2d 56, 59-60 (1980), and U.S. Pipe & Foundry Co., 247 NLRB 139, 142 (1980)), stand for the proposition that a larger unit would be appropri- ate, although under the authority of those cases the Company would nevertheless be obligated to bargain with the Union concerning that portion of the unit for which the Company occupied joint employer status. However, on consideration of the evidence in this case, I find that the General Counsel's position is substantially correct, and that in fact the Company and the Union have historically bargained for the unit as described in the complaint, although they did not define that unit in the same language as the complaint. For some 35 years, the Company and its predecessors recognized, bargained with, and executed collective-bargaining agreements with is Furniture Distribution Center, 234 NLRB 751 (1978), principally relied on by the Company (Br 37-38) is distinguishable on its facts In that case, Compton performed warehousing and delivery functions for FDC The Board held that FDC was not the joint employer of Comp- ton's warehousemen and drivers, finding that Compton alone handled all personnel actions including grievances, suspensions and new hiring, and instituted work rules and demonstrated the extent of its control over labor relations by closing the warehouse on one occasion against the wishes of FDC and without consulting FDC In the present case, unlike Furniture Distribution Center, only the alleged joint employer (the Com- pany) exercised day-to-day supervision and direction over the employees involved, including assignment of work and overtime and determining the number of employees needed and when they were needed G. HEILEMAN BREWING CO. 1001 the Union covering only the maintenance electricians at the Belleville facility. The 1975-1979 contract, which as modified was extended by the Company and the Union until August 1980, defined the unit by stating that: "The Employer recognizes the Union as the exclusive bargain- ing agent for all maintenance electricians at its Belleville, Illinois plant." That unit did not, either before or after 1980, include any of the categories which are excluded from the unit as described in the complaint. Although as requested by the Company, Lowry designated a "fore- man" as required under the NECA contract, that fore- man was not a supervisor within the meaning of Section 2(11) of the Act. To the extent that Gerald Warden per- formed functions that were arguably supervisory, those functions were routine or clerical in nature, did not in- volve the exercise of supervisory discretion, and com- prised only a small portion of his work. Warden spent nearly all of his time performing electrical maintenance, i.e., unit work. Neither Voss nor any other company su- pervisor or engineer was ever included in the bargaining unit. The Company's other maintenance employees and its production employees were represented by other labor organizations in other bargaining units. It is possi- ble to find, under the authority of Sun-Maid and U.S. Pipe & Foundry, that since August 1980 the maintenance electricians were included in a larger unit, i.e., either en- compassing all Lowry's employees or all employees cov- ered by the NECA contract. However, in light of the facts in this case, such a finding is not warranted. The maintenance electricians were at all times covered by a separate agreement, i.e., the Addendum , which was ne- gotiated by the Company and the Union and executed by Lowry and the Union. They were covered by the NECA contract by virtue of the agreements among the Company, Lowry, and the Union, and as modified by those agreements. To a significant extent, their terms and conditions of employment, including seniority rights, nature of work performed, starting times, shift differen- tials, and privileges and benefits, differed from that of other Lowry employees. Contrary to the Company's ar- gument, there was not frequent interchange among the maintenance electricians and other Lowry employees. Throughout the entire period from August 1980 through December 1984, most of the electrical maintenance work was performed by employees who had previously been on the Company's payroll , who worked exclusively at the brewery, and who could not work elsewhere for Lowry because they were not qualified to perform out- side work for Lowry. After French died and Valentin retired, they were eventually replaced by employees who had also worked at the brewery on a regular basis. Interchange was substantially confined to those employ- ees who as needed supplemented or replaced the seven maintenance electricians who worked regularly at the brewery. Moreover, in light of the language of the NECA contract, it is questionable whether the mainte- nance employees could be included in a unit encompass- ing all Lowry employees or all employees covered by that contract. The NECA contract does not contain an inclusive unit description . However, the contract does provide that : "The Employer shall be a person, firm or corporation whose principal business is electrical con- tracting." This language indicates that the Union and NECA contemplated that the employer signatories to the NECA contract would be electrical contractors. The Company is not engaged in the business of electrical con- tracting. The Company, Lowry, and the Union could agree, as they did, that the maintenance employees would be covered by provisions of the NECA contract. However, this agreement would not automatically oper- ate to place the employees in a larger unit, particularly where the joint employer would not qualify as a signato- ry to the contract. Rather, the language of the NECA contract tends to support the General Counsel 's position. Therefore, I find, in agreement with the General Coun- sel, that the maintenance electricians employed at the brewery, with the indicated exclusions, constitute an ap- propriate unit for collective bargaining.18 I further find that at all times material the Union was the exclusive collective-bargaining representative of the unit employ- ees, i.e., the maintenance electricians at the brewery. Those employees were continuously covered by collec- tive-bargaining contracts which contained a union -securi- ty clause, and they were union members. Neither the Company nor Lowry disputed that the Union was their representative. Indeed in November 1984, the Company asked Lowry to deal with the Union in that capacity. Rather, the Company's denial of representative status was based on the erroneous premise that it was not an employer of the maintenance electricians. As the Company was the joint employer of the main- tenance electricians in an appropriate unit, and the Union was the exclusive collective-bargaining representative of that unit, it follows that the Company was obligated to recognize and bargain with the Union concerning the terms and conditions of their employment . Therefore the next question presented is whether the Company violated that obligation when it subcontracted the electrical main- tenance work to Bienco. 17 The Company contends (Br. 38-40) that assuming arguendo, the Company had a duty to bargain with the Union, the Union failed to act with due diligence because it did not request the Company to bargain until 3 January 1985, after the Company subcon- tracted the maintenance work to Bienco . Therefore, the 16 Assuming arguendo that a larger unit were appropriate, this would not relieve the Company of its obligation to bargain as joint employer of the maintenance electricians . See Sun-Maid and U.S. Pipe & Foundry, supra. 17 The General Counsel contends (Br. 31-32 ) that the Company's deci- sion to subcontract the maintenance work to Bienco rather than Lowry, even standing alone, was a mandatory subject of bargaining. I agree. The Company's decision involved "the replacement of employees in the exist- ing bargaining unit with those of an independent contractor to do the same work under similar conditions of employment," Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203, 215 (1974). Therefore, Fibreboard, rather than First National Maintenance Corp. v. NLRB, 452 U.S. 666 (1981), would govern. See also Whitehead Bras. Co., 263 NLRB 895, 898- 899 (1982). The General Counsel also correctly points out that the Com- pany's decision turned on labor costs. See Otis Elevator Co., 269 NLRB 891, 892 (1984). However, the Company's decision also involved other changes in terms and conditions of employment , including termination of employees with seniority rights, and substantial reductions or other changes in wages and fringe benefits, including reduction in the base wage rate amounting to much more than $5 per hour. All these changes involved mandatory subjects of bargaining . See Sun-Maid, 239 NLRB at 355. 1002 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Company argues that the Union waived any right to complain that the Company violated Section 8(a)(5) of the Act. I find this argument without merit. The Compa- ny's argument is based on an erroneous premise, because in late December the Union did, through Lowry, submit counterproposals to the Company's demand for a $5-per- hour reduction in the base wage rage. The demand was the only proposal ever submitted by the Company to the Union, either directly or indirectly. It is true that the Union waited for about a month before it responded to the Company's demand, and that the Union failed to offer an explanation for the delay. However, the Compa- ny's argument fails for more fundamental reasons. First, the Union was under no obligation to bargain or agree concerning any reduction in wage rates because the Company was bound by a collective-bargaining agree- ment effective through August 1985 The Addendum, al- though signed by the Union and Lowry, was negotiated by the Company and the Union and reflected the results of their 1980 negotiations. As a result of those negotia- tions, the Company and the Union understood and agreed that the maintenance electricians would be cov- ered by wage rates under the NECA contract, except as modified by their agreements on shift differential. The Company reduced its commitment to writing when it agreed with Lowry that the unit employees would be covered by the Addendum, which specifically provided that the unit employees would be covered by the NECA contract except as modified by the Addendum. Thereaf- ter the Addendum was renewed annually in accordance with the agreements between the Company and the Union. Therefore, and by reason of its status as joint em- ployer, the Company was in fact a party to the Adden- dum, and the Union was not obligated to bargain over terms and conditions that differed from those provided in the Addendum until the Addendum came up for renew- al. See 0. Voorhees Painting Co., 275 NLRB 779 (1985).18 Second, even if the Company could lawfully compel the Union to negotiate concerning wage rates, the Company effectively prevented any meaningful bar- gaining by refusing to meet and deal directly with the Union. The Company and the Union originally negotiat- ed the Addendum, which governed the terms and condi- tions of employment of the maintenance electricians. Under their agreement, the employees were paid hourly wage rates as provided in the NECA contract. The Company proposed to change that agreement when it demanded a $5-per-hour reduction in the base wage rate. As the Company had originally negotiated the terms of the Addendum, and only the Company was proposing to change those terms, it follows that the Company was an essential party to any negotiations Instead, the Company presented an ultimatum to Lowry for submission to the Union without giving Lowry any authority to negotiate over the matter. However, LaCombe also made clear 18 Although the Union learned that the Company and Lowry renewed their subcontracting agreement only until the end of 1984, the Union did not waive its rights under the Addendum by failing to protest this ar- rangement The Union could properly assume that whatever the term of the subcontract agreement, the Company would continue to abide by the terms of the Addendum, in accordance with their longstanding agree- ments from the time he presented the Company's demand that the Company would not meet or deal directly with the Union concerning its demand. t 9 In these circumstances, Lowry could function only as a messenger between the Company and the Union. Therefore, assuming that the Company's demand was a mandatory subject of bargain- ing, the Company violated Section 8(a)(5) of the Act by refusing to meet and deal directly with the Union con- cerning that demand. It is settled law that face-to-face negotiations between the "bargaining principals" (here the Company and the Union) is "an elementary and es- sential condition of bona fide bargaining." Colony Furni- ture Co., 144 NLRB 1582, 1589 (1963); Redway Carriers, 274 NLRB 1359 (1985).20 Third, the Company effectively precluded any mean- ingful bargaining when it characterized its own demand as "non-negotiable." Because of this characterization, it is understandable that the Union would be at a loss to present any immediate responses. Fourth, even if the Company's demands were a mandatory subject of bar- gaining, and the parties bargained in good faith to an im- passe, this would have permitted the Company only to unilaterally implement a $5-per-hour wage reduction. The Company could have done this by placing the main- tenance electricians on its own payroll. Instead the Com- pany not only terminated its subcontracting arrangement with Lowry, but also terminated employees with con- tractual seniority rights, and entered into a subcontract with another contractor which provided for wage reduc- tions amounting to substantially more than $5 per hour, as well as loss of employees benefits. All this was done by the Company without giving the Union notice or an opportunity to bargain concerning such matters. In sum, I find that the Company failed and refused to recognize and bargain with the Union, and violated its contractual obligations to the Union by terminating employees with seniority rights, subcontracting the electrical mainte- nance work to Bienco, reducing wages, and otherwise changing terms and conditions of employment of mainte- nance electricians employed at the Company's Belleville facility. The Company thereby violated Section 8(a)(1) and (5) of the Act. For reasons which will be discussed, the Company's contention that the complaint should be dismissed for failure to join Lowry and Bienco as parties to this proceeding is more properly addressed to the matter of remedy, and therefore will be discussed in the remedy section of this decision. 19 Therefore the Company' s argument that the Union did not make a timely request for bargaining with the Company is erroneous because the Company had already infomed the Union through Lowry that it would not engage in such bargaining 201 do not agree with the Company's suggestion at the hearing that the most-favored-nation clause in the NECA contract precluded any meaningful bargaining over wages The Union did not "adamantly" stand on the NECA contract Rather as indicated the Union offered to make concessions in the area of wage costs See NLRB Y Superior Fireproof Door & Sash Co, 289 F2d 713, 718 (2d Cir 1961) Moreover the lan- guage of the NECA contract indicates that the clause would not be ap- plicable to the Company The clause (sec 2 05 of the NECA contract) applies when the Union grants better terms and conditions to "any other Employer in the electrical contracting industry " However, the Company is not engaged in the electrical contracting business G. HEILEMAN BREWING CO. 1003 CONCLUSIONS OF LAW 1. The Company is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and at all times material has been a joint employer with Lowery of maintenance electricians employed at the Company's Belleville facility. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. All maintenance electricians employed at the Com- pany's Belleville, Illinois facility, excluding office clerical employees, professional employees, guards, and supervi- sors as defined in the Act any all other employees consti- tute a unit appropriate for the purpose of collective bar- gaining within the meaning of Section 9(b) of the Act. 4. At all times material, the Union has been and is the exclusive collective-bargaining representative of the em- ployees in the unit described above. 5. By refusing to recognize and bargain with the Union as the representative of the unit employees, and violating its contractual obligations to the Union by ter- minating employees with seniority rights, subcontracting the electrical maintenance work to Bienco, reducing wages, and otherwise changing terms and conditions of employment of maintenance electricians employed at the Belleville facility, the Company has violated and is vio- lating Section 8(a)(1) and (5) of the Act. 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has committed viola- tions of Section 8(a)(1) and (3) of the Act, I shall recom- mend that it be required to cease and desist therefrom, and from like or related conduct, and take certain affirm- ative action designed to effectuate the policies of the Act. I find for all purposes, including remedy, that Lowry and Bienco are not indispensable parties to this proceeding. The complaint charges only the Company with unfair labor practices , and the General Counsel re- quests remedial relief which is addressed to and requires action only by the Company . The relief sought by the General Counsel (Br. 36-37), insofar as pertinent to the operations of Lowry and Bienco, is substantially identical to the remedy which was granted by the Board and ap- proved by the court of appeals in Sun-Maid, supra. Sec also Hillside Manor Health Related Facility, 257 NLRB 981, 986 (1981), enfd. mem. 697 F.2d 294 (2d Cir. 1982). Specifically, the General Counsel requests that the Com- pany be ordered to offer to reestablish the subcontracting arrangement with Lowry, and that if Lowry is unable or unwilling to reemploy the maintenance electricians and resume its obligations under the subcontract, the Compa- ny be obligated to offer reinstatement directly to the maintenance electricians and employ them as part of its own work force. The proposed order would substantially provide for restoration of the status quo without requir- ing Lowry to resume its subcontracting arrangement. I find, on the authority of Sun-Maid and Hillside, that the proposed relief is appropriate in this case, and that such relief does not require that either Lowry or Bienco be joined as a party in interest. In Hillside, neither the former subcontractor (Environmental) nor the new sub- contractor (Blaine) were named as parties in interest, nor was the former subcontractor (Control) in Sun-Maid (Sun-Maid terminated its contract with Control and per- formed the work in question with its own employees. Therefore there was no current subcontractor). Never- theless the Board in both cases, and the court in Sun- Maid granted and approved the proposed remedy, and in the process distinguished Mobil Oil Corp., 219 NLRB 511 (1975), enf. denied sub nom. Alaska Roughnecks & Drillers Assn. v. NLRB, 555 F.2d 732 (9th Cir. 1977), on which the Company principally relies (Br. 41-42). They did so for reasons which would also distinguish the present case from Mobil. Thus in Sun-Maid both the Board and the court pointed out that in Mobil the union's alleged representative status was based on a Board elec- tion proceeding in which the alleged joint employer was not named as an employer or given an opportunity to participate, contrary to the Board's rules. In Hillside, the Board pointed out, as it did in Mobil itself, that in Mobil "neither the contract termination nor the actual displace- ment of unit employees was alleged as a violation of the Act;" and therefore the proposed remedy would "require reinstitution of a legitimately terminated contract" with a firm (Santa Fe) which was not a party to the unfair labor practices proceeding and not represented in the proceed- ing. In the present case, the complaint alleged and I have found that the termination and displacement were unlaw- ful. Moreover, in Mobil the recommended order would require reinstitution of the contract between Mobil and Santa Fe, i.e., would require action by Santa Fe, whereas in the present case, as in Sun-Maid and Hillside, the remedy would simply require the named Employer to offer to reestablish the contract. The Company's reliance on Consolidated Edison Ca v. NLRB, 305 U.S. 197, 233 (1938), is also misplaced. That case stands for the propo- sition that the Board cannot set aside a collective-bar- gaining contract on the grounds that the employer un- lawfully dominated, interfered with, or assisted the signa- tory union, unless the union is named as a party in inter- est in the unfair labor practice proceeding. The Board's Rules and Regulations (Sec. 102.8) have since provided that such a labor organization is a party to the proceed- ing. However, the Supreme Court's rationale has not been extended to other forms of contractual arrange- ments, including subcontracting between employers. Thus in Fibreboard Paper Products Corp. v NLRB, supra 379 U.S. at 215-217, the Supreme Court approved the Board's ' remedial order, which required Fibreboard to resume its former maintenance operation with its own unit employees, although the subcontractor (Fluor) was not named as a party in interest in the proceeding. See also Syufy Enterprises, 220 NLRB 738, 741 (1975). I shall recommend that the Company be ordered to recognize and on request bargain in good faith with the Union as the exclusive collective-bargaining representa- tive of the unit employees, and to maintain and give full effect to collective-bargaining contracts covering those employees. I shall further recommend that the Company be ordered to offer Gerald Warden, Joseph Poell, Law- rence O'Dell, Elwood Harres, Albert Lorentzen, Tom 1004 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Chasteen, and Dave Pusa (the maintenance electricians who were working regularly at the brewery as of De- cember 1984) immediate and full reinstatement to their former positions or, if such positions no longer exist, to substantially equivalent positions of employment without prejudice to their seniority or other rights and privileges previously enjoyed, dismissing if necessary anyone who may have been hired or assigned to perform the work that they had been performing prior to 1 January 1985 The Company shall be ordered to effect these offers of reinstatement by first offering to reestablish its subcon- tracting arrangement with Lowry. If Lowry is unable or unwilling to reemploy the maintenance electricians and resume its obligations under that arrangement, then the Company shall offer reinstatement to the maintenance electricians as part of its own work force. I shall further recommend that the Company be ordered to make whole all the above-named employees for any loss of earnings and benefits they may have suffered by reason of their terminations. Backpay shall be computed in accordance with the formula approved in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest computed in the manner and amount prescribed in Florida Steel Corp., 231 NLRB 651 (1977).21 The Company shall also be ordered to re- imburse the various trust funds established under the NECA contract for any failure of contributions from Lowry by reason of the Company's unlawful termination of its subcontracting arrangement with Lowry and fail- ure to employ maintenance electricians under the ar- rangement. In accordance with Board policy, the amount of interest if any due on such payments shall be deter- mined at the compliance stage of this proceeding Merryweather Optical Co., 240 NLRB 1213, 1216 fn. 7 (1979). The Company shall also be required to preserve and make available to the Board, or its agents, on re- quest, payroll and other records to facilitate the compu- tation of backpay due. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed22 ORDER The Respondent, G. Heilman Brewing Co., Inc., Belle- ville, Illinois, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing or refusing to recognize and bargain collec- tively in good faith with Local Union 309, International Brotherhood of Electrical Workers, AFL-CIO as the ex- clusive collective-bargaining representative of the em- ployees in the appropriate unit consisting of all mainte- nance electricians employed at its Belleville, Indiana plant, failing or refusing to honor collective-bargaining agreements applicable to those employees, or unilaterally changing the wages, hours, and other terms and condi- tions of employment of the unit employees without prior " See generally Isis Plumbing Co, 138 NLRB 716, 171-721 (1962). 22 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 notice to the Union and without affording the Union an opportunity to meet and bargain concerning such matters as such representative. (b) Terminating maintenance electricians at its Belle- ville plant in violation of their contractual seniority rights or without affording the Union prior notice and an opportunity to negotiate and bargain concerning any change in subcontracting arrangements and its effect on the unit employees. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights under Section 7 of the Act 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer Gerald Warden, Joseph Poell, Lawrence O'Dell, Elwood Harres, Albert Lorentzen, Tom Chas- teen, and Dave Pusa immediate and full reinstatement to their former positions of employment in the manner set forth in the remedy section of this decision, dismissing if necessary anyone who may have been hired or assigned to perform the work that they had been performing prior to 1 January 1985 or, if their former positions no longer exist, to substantially equivalent positions, without preju- dice to their seniority or other rights, privileges, and benefits previously enjoyed, and make them whole for any loss of earnings and benefits they may have suffered by reason of their unlawful terminations, as set forth in the remedy section of this decision. (b) Maintain and give full effect to collective-bargain- ing agreements covering the unit employees, including the maintenance work supplement to the prevailing inside agreement between the Union and Lowry Electric Company and the memorandum of understanding gov- erning seniority rights, unless and until a new agreement or agreements are negotiated or the employees bargain in good faith to an impasse in accordance with the require- ments of Section 8(d) of the Act. (c) Reimburse the various trust funds established under the prevailing basic inside agreement between South- western Illinois Division, NECA, and the Union, for any failure of contributions from Lowry Electric Company by reason of Respondent's unlawful termination of its subcontracting arrangement with Lowry and failure to employ maintenance electricians under that arrangement. (d) 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. (e) Post at its Belleville, Illinois place of business, copies of the attached notice marked "Appendix "23 Copies of the notice, on forms provided by the Regional Director for Region 14, after being signed by the Re- spondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained 23 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 " G. HEILEMAN BREWING CO. 1005 for 60 consecutive days in conspicuous places including (f) Notify the Regional Director in writing within 20 all places where notices to employees are customarily days from the date of this Order what steps the Re- posted. Reasonable steps shall be taken by the Respond- spondent has taken to comply. ent to ensure that the notices are not altered, defaced, or covered by any other material.