Kraft Plumbing and Heating, Inc.

KRAF I'PI.LIMBIN(i ANI) HEA'IN(. INC Kraft Plumbing and Heating Inc. and Local Union No. 469 of the United Association of Journey- men and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada. Case 28-CA-5335 September 30, 1980 DECISION AND ORDER BY CHAIRMAN FANNING ANI) MEMBIRS JENKINS ANI) PENE I. O On May 14, 1980, Administrative Law Judge Roger B. Holmes issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief, and the General Counsel filed an answering brief to Respondent's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein.2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended ' Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's estahlished policy not to overrule an administrative law judge's resolutions with respect to credi- hbility unless the clear preponderance of all of the relevant evidence cotn- vinces us that the resolutions are incorrect Standard Dry Wall Productrs. Inc.. 91 NLRB 544 (195()). enfd 188 F2d 362 (3d Cir 1951). We have carefully examined the record and find no basis for reversing his findings. = As part of his remedy, the Administrative Law Judge recommended that Respondent he ordered to reimburse the trust funds provided for in the collective-bargaining agreement for those contributions Respondent has failed to make o behalf of unit employees. noting, however, that the Hoard does not provide for the addition of interest at a fixed rate on un- lawfully withheld fund payments. See Merrywrauther Optical Company. 240 NLRB 1213 (1979). In addition, we shall order Respondent to make em- ployees whole by reimbursing them for any medical, dental. r other ex- penses ensuing from Respondent's unlawful failure to make such required contributions This shall include reimbursing employees for any medical or dental hills they have paid directly to health care providers that the contractual policies would have covered, as well as any premiums they may have paid to third-party insurance compaines to coninue medical and dental coverage in the absence of Respondent's required conlribu- tions to the appropriate funds. Further, we shall order Respondent to re- imburse employees for any contrihutionls they themselves may have made for the maiitenance of the coniractual health and welfare pensioln. indus- try and apprenticeship funds after Respondent unlawfully discontinued contributions to those funds birrmo Mechanical Corp.. 249 NLRB 669 (1190(); 4ngeluv Block C.. Inc .4nari. Inc.. 250 NLRB 8h8 19(80). Inlter- est on all such umn shall be paid i the manner prescribed in Ilorida Steel Corporalton. 231 NI RB 651 (1977) Sec. generally, Ioi Pllrmhing & HIeating Co(. 138 NI RiB 716 (1962) Member Jenkins would compute in- lerest in accordance ith his dissenl i Onmpia Medical (orp . 250 NI R 14h (19S() Order of the Administrative Law Judge, as modi- fied below, and hereby orders that the Respondent. Kraft Plumbing and Heating, Inc., Tempe, Arizo- na, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Substitute the following for paragraph 2(d): "(d) Make whole the employees in the appropri- ate unit by transmitting the contributions owed to the Union's health and welfare, pension, industry and apprenticeship funds pursuant to the terms of its collective-bargaining agreement with the Union. and by reimbursing unit employees for any medi- cal, dental, or any other expenses ensuing from Re- spondent's unlawful failure to make such required contributions. This shall include reimbursing em- ployees for any contributions they themselves may have made for the maintenance of the Union's health and welfare, pension, industry and appren- ticeship funds after Respondent unlawfully discon- tinued contributions to those funds; for any premi- ums they may have paid to third-party insurance companies to continue medical and dental coverage in the absence of Respondent's required contribu- tions to such funds; and for any medical or dental bills they have paid directly to health care provid- ers that the contractual policies would have cov- ered. All payments to employees shall be made with interest." 2. Insert the following as paragraph 2(e) and re- letter subsequent paragraphs accordingly: "(e) Reimburse the Union for losses due to Re- spondent's failure to honor the dues-deduction au- thorizations of its employees in the appropriate unit." 3. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WIIL NOT fail and refuse to furnish cer- tain payroll records to Local Union No. 469 of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada when those records are requested by the Union and are necessary to the performance by the Union of its collective-bargaining func- tions. WE WILL NOT refuse to recognize and bar- gain collectively with the Union as the exclu- sive collective-bargaining representative in the 252 NLRB No. 126 DIECISIONS ()F NATIONA. I.ABO()R RELATIONS B()ARI) unit of our employees described below. The appropriate collective-bargaining unit is: All employees of Kraft Plumbing and Heat- ing, Inc., engaged in plumbing work as de- fined in the collective-bargaining agreement between the Plumbing and Air Conditioning Contractors of Arizona and the Union, ex- cluding all other employees, guards and su- pervisors as defined in the National Labor Relations Act. Wt WI.L NOT repudiate and fail to honor, abide by, and apply the terms of the collec- tive-bargaining agreement between the Associ- ation and the Union referred to above. WtL WIl.L NOT unilaterally discontinue com- pliance with the hiring hall provisions of the applicable collective-bargaining agreement re- ferred to above. WL: WILL NOT unilaterally discontinue monthly contributions to the health and wel- fare, pension, industry and apprenticeship funds provided for in the applicable collective- bargaining agreement referred to above. Wl WI.l. NOT fail to honor the dues-deduc- tion authorizations of unit employees and fail to disburse such dues to the Union in accord- ance with the terms of the applicable collec- tive-bargaining agreement referred to above. WE WILL NOT unilaterally institute a new health and welfare plan covering unit employ- ees. WE WILL NOT unilaterally increase the wage rates of unit employees. WI Wit. NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of the rights guaranteed to them by the National Labor Relations Act. WE WlL.t. forthwith furnish to the Union the payroll records previously requested by the Union. WIE wit.l. recognize and, upon request, bar- gain collectively with the Union as the exclu- sive collective-bargaining representative of the employees of our Company in the bargaining unit described above, and WE wIl.. embody in a signed agreement any understanding which may be reached. WE Wt.l. reimburse the Union for the losses due to our failure to honor the union dues-de- duction authorizations of unit employees. WI wllt. honor, abide by, and apply the terms of the existing collective-bargaining agreement referred to above. WE Wi.l. make whole our unit employees for their loss of wages and benefits resulting from our failure to apply the terms of the col- lective-bargaining agreement referred to above, and resulting from our unilateral ac- tions. Wt wil. make whole our unit employees by transmitting the contributions owed to the Union's health and welfare, pension, industry and apprenticeship funds pursuant to the terms of its collective-bargaining agreement with the Union, and by reimbursing unit employees for any medical, dental, or any other expenses en- suing from our unlawful failure to make such required contributions. This shall include reim- bursing employees for any contributions they themselves may have made for the mainte- nance of the Union's health and welfare, pen- sion, industry, and apprenticeship funds after we unlawfully discontinued contributions to those funds; for any premiums they may have paid to third-party insurance companies to continue medical and dental coverage in the absence of our required contributions to such funds; and for any medical or dental bills they have paid directly to health care providers that the contractual policies would have cov- ered. WE Wii.. pay to our employees appropriate interest on such moneys. KRAFr PLUMBING AND HEATING, INC. DECISION ROGER B. HOI.ME., Administrative Law Judge: The original unfair labor practice charge in this case was filed on May 10, 1979, by Local Union No. 469 of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, herein called the Union. (See G.C. Exh. l(a).) The first amended unfair labor practice charge in this case was filed on June 8, 1979, by the Union. (See G.C. Exh. l(c).) The second amended unfair labor prac- tice charge in this case was filed on June 11, 1979, by the Union. (See G.C. Exh. I(e).) The Regional Director of Region 28 of the National Labor Relations Board, herein called the Board, who was acting on behalf of the General Counsel of the Board, issued on June 22, 1979, a complaint and notice of hearing against Kraft Plumbing and Heating, Inc., herein called the Respondent. (See G.C. Exh. I(g).) At the beginning of the hearing in this proceeding, counsel for the General Counsel moved to amend his complaint. I granted the General Counsel's motion. The General Counsel alleges that the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (5) of the National Labor Relations Act, as amended, herein called the Act. In summary, the General Counsel alleges that the Respondent violated Section 8(a)( ) and (5) of the Act by: X892 KRAFT PLUMBING AND HEATING, INC. (I) Failing and refusing to furnish to the Union certain payroll records which had been requested by the Union. (2) Refusing to recognize and bargain with the Union as the collective-bargaining representative in a unit of the Respondent's employees. (3) Repudiating and refusing to honor and abide by the terms of a collective-bargaining agreement between the Respondent and the Union. (4) Discontinuing compliance with the hiring hall pro- visions of the contract. (5) Discontinuing monthly contributions to the health and welfare, pension, industry and apprenticeship funds provided for in the contract. (6) Refusing to honor the dues-deduction authoriza- tions of unit employees and failing to transmit such dues to the Union. (7) Instituting a new health and welfare plan covering unit employees. (8) Increasing the wage rates of unit employees. The Respondent filed an answer to the General Coun- sel's complaint and, inter alia, denied the commission of the alleged unfair labor practices. (See G.C. Exh. l(i).) At the hearing, the Respondent's answer was amended to deny the additional allegations which were amended into the General Counsel's complaint, and to add to the Re- spondent's answer a defense under Section 10(b) of the Act. A pretrial motion to strike was filed on August 24, 1979, by counsel for the General Counsel. The General Counsel sought to have stricken paragraphs 1, 3, and 6 in the Respondent's answer. (See G.C. Exh. l(j).) The Deputy Chief Administrative Law Judge, James T. Barker, granted the General Counsel's motion, in part, with regard to paragraphs I and 6 of the Respondent's answer. He referred the portion of the General Counsel's motion relating to paragraph 3 to the Administrative Law Judge to be designated to conduct the hearing. (See G.C. Exh. I(q).) At the outset of the hearing, I denied the General Counsel's pretrial motion to strike the Re- spondent's denial of the allegations set forth in paragraph 3 of the General Counsel's complaint. The hearing was held before me on November 6, 7, and 8, 1979, at Phoenix, Arizona. The time for filing briefs was set for December 13, 1979. Both counsel for the General Counsel and the attorneys for the Respond- ent made closing arguments on the record after the pres- entation of the evidence, and they both filed briefs, which have been considered. FINI)INGS 01 FACT A. The witnesses In alphabetical order by their last names, the following 17 persons appeared as witnesses at the hearing in this proceeding: Dorothy Allen is the credit manager and the accounts payable supervisor of Phoenix Pipe & Supply, which is located in Phoenix, Arizona. Jerry Baker is the president of Mesa N. O. Nelson Company, Incorporated, which is located in Mesa, Ari- zona. Bruce Biehler is the branch manager and also a sales- man for Larsen Supply Company, Incorporated, which is located in Tempe, Arizona. KAennelh Ray Brooks is the business manager of the Union, which is the Charging Party in this case. Steve Buterhaugh is an employee of the Burner Com- pany located in Phoenix. Dell Campbell is the credit manager of Smith Pipe & Steel Company, which has offices in Phoenix and Tucson, Arizona. Jerry R. Corley is the business agent of the Union. .Neil Folkmaln is the owner of Arizona Water Works Supply located in Tempe. John Douglas lfehnt is an attorney with law offices lo- cated in Tempe. Carl Kraft is the president of the Respondent. Howard Kraft is the president of Climate Control In- corporated, which is located in Phoenix. M.ike KraJi is the sole owner of Mike Kraft Plumbing Company. He is the father of Carl Kraft. Henry Pierce is the vice president in charge of purchas- ing and collections of Sunny Pipe & Supply Company, Incorporated. which is located in Phoenix. Ray Scare is the office manager of the Hajoca Corpo- ration of Phoenix. Ken Steele is the branch manager of Pioneer Plumbing Supply, an AMFAC Company, which is located in I'hoenix. Joseph Stertz is the executive director of the Plumbing & Air Conditioning Contractors of Arizona, which is a multiemployer bargaining association, and which for convenience has been referred to simply as the Associ- ation. Edward SzaJfroniec is the manager of Keenan Pipe and Supply of Mesa. B. Credibility resolutions In addition to observing the demeanor of the witnesses while they were giving their testimony in this proceed- ing, I have also given consideration to other factors, such as the positions held by the various witnesses and their interest in the outcome of the litigation. Viewed in the context of certain facts, which were established or admitted, I have also given consideration to the inherent probability of certain testimony, and whether such testi- mony is consistent or inconsistent with other established facts. The findings of fact to be made herein will rest upon portions of the testimony given by Brooks, Corley, Helm, Carl Kraft, Mike Kraft, and Stertz. Particularly with regard to the testimony offered by Carl Kraft, the parties have different viewpoints as to his credibility. Carl Kraft gave an affidavit, which was sworn to on June 27, 1979, and in which he relates, among other things, events concerning a verbal contract between the Respondent and a general contractor to perform work at the Western Electric facility on December 26, 1978. Counsel for the General Counsel introduced a copy of that affidavit as General Counsel's Exhibit 22. In that statement, Carl Kraft stated, inter alia, the following: "Since Respondent had his regular employees working at IDECISIONS OF NATIONAL LABOR RELATIONS BO()ARD capacity, it contacted the Union Hall to request two (2) men for the job in question." The Attorneys for the Re- spondent argued in their brief: At trial the government suggested that Respond- ent did call the hiring hall for workers and based upon that suggestion, argued that such action some- how showed Respondent to be a signatory to the Agreement and bound thereby. The evidence does not show such action by Respondent and, therefore, no sequence of events based upon the alleged call to the hiring hall may be used to imply signatory status in Respondent. Carl Kraft was quite clear with regard to the call to the hiring hall. Carl Kraft testified that the gen- eral contractor for a particular job "took the liberty of calling the hall for two men" in Respondent's name (ORP 420). Respondent did not request any- thing of the union. Union representative Kenneth Brooks testified lie did not know who called the hiring hall (ORP 304). Therefore, the only evidence is that a third party contacted the hiring hall. The government's conten- tion fails. On the other hand, counsel for the General Counsel argue in their brief the following: However at the hearing Carl Kraft directly con- tradicted the statement he had made in his affidavit at a point in time closer to the incident in question. Carl Kraft testified that it was not the Respondent who had made the call to the Union for the referral but rather the general contractor. This is totally in- consistent with the Respondent's prior statement and clearly impeaches the witness. Kraft's denial that his prior statement is accurate regarding such a crucial item is particularly outrageous in view of the fact that the Respondent's prior statement was prepared by its own counsel! In connection with the foregoing, see also pages 393- 401 of the transcript of the proceedings. Another matter to be considered regarding the reliability of the testimo- ny given by Carl Kraft at the hearing was his response to questions concerning his signing of a surety bond re- quired under the Union's collective-bargaining agree- ment. In this connection, see General Counsel's Exhibit 13 and see also transcript pages 431-434. Particularly un- convincing was Carl Kraft's assertion that he had signed the surety bond "accidentally, I suppose." Still another matter to be considered regarding the credibility of the testimony by Carl Kraft was his testi- mony regarding the corporate checks which had been paid to the Association for membership dues. In this con- nection, see transcript pages 422-423. According to Carl Kraft's version, the amounts of the corporate checks paid to the Association were credited to debts which were owed by Carl Kraft and the corporation to his father, Mike Kraft. Finally, the testimony by Carl Kraft conflicts with the testimony of Corley regarding conversations between the two persons. After considering all of the foregoing mat- ters, I credit Corley's version of his conversations. I do not credit the testimony of Carl Kraft regarding the re- quest for the referral of employees to the Western Elec- tric facility; that the signing of the surety bond was merely an accident, and that the corporate checks for dues to the Association were made in partial payment of loans previously obtained by Carl Kraft and the corpora- tion from Mike Kraft. I found the testimony of the various suppliers of mate- rials to the Respondent to be credible, but it is not neces- sary to set forth their accounts in view of the conclusion that the Respondent has been a member of the Associ- ation at all times material herein, and that the Board may exercise its jurisdiction based on the commerce facts per- taining to members of that multiemployer bargaining as- sociation. C. he business operations of Mike Krafi Plumbing Company Mike Kraft has been the sole owner of Mike Kraft Plumbing Company for the past 33 to 34 years. He has primarily performed repair work. He described his cus- tomers as being "hundreds of them," and such customers had included Rosarita Foods and Safeway Stores. At one time Mike Kraft had employed as many as 10 or 12 em- ployees, but by December 1974 Mike Kraft had only two employees. They were Ernest Burgos and Arthur Scott Brown. Both of those persons were longtime employees of Mike Kraft Plumbing, and by December 1974 both had been referred through the Union's hiring hall to work for Mike Kraft Plumbing Company. Since 1974 Mike Kraft has been what he described as "semi-retired." He unsuccessfully tried to sell his business to a third party prior to its incorporation. In November or December 1974 Mike Kraft contacted Attorney Helm, whose practice of law includes estate planning and tax planning. Mike Kraft expressed to At- torney Helm his concern about the amount of the estate taxes which would have to be paid after his death. Attor- ney Helm explained: "Mr. Kraft, in his lifetime had accu- mulated enough money so that under the old tax code that we had, he was going to be subject to reasonably substantial taxes and he came to me for advice on what to do about it." Mike Kraft was advised that he could reduce his estate by making a gift of assets valued at $30,000 to his son, Carl Kraft, who desired to go into business. Mike Kraft could thereby take advantage of a lifetime exemption from gift taxation of $30,000 under the Internal Revenue Code. Attorney Helm explained: "At the time, as I recall it, I suggested that the easiest way to do it was to be in the form of a corporation so that we could just transfer a share of stock to Carl. As I recall, that's what we did." The parties entered into the following stipulation re- garding this matter: It is hereby stipulated by and between the parties that on or about December 20, 1974 Kraft Plumbing & Heating, Inc. was incorporated. The incorpora- tors of said corporation were Carl Kraft and Mi- chael Kraft, Jr. Subsequently, at the organizational 894 KRAFT PLUMBING AND EATIN(iG, INC. meeting of Kraft Plumbing & Heating, Inc. held on or about December 20, 1974, Michael Kraft, Jr. of- fered to convey most equipment and inventory of the plumbing and heating business that he had oper- ated as a sole proprietorship prior to incorporation to the corporation for the sum of $25,500 to be paid by the corporation issuing to Michael Kraft, Jr. and Mae Lenore Kraft, 25,500 shares of its common stock. The meeting accepted Michael Kraft's offer and on December 24, 1974 issued to Michael Kraft, Jr. and Mae Lenore Kraft Stock Certificate No. I evi- denced by a copy of said certificate which will be included at this point in the record. This certificate represents 27,700 shares. The difference between 25,500 shares and the 27,700 shares indicated on the stock certificate is equal to 2,000 additional shares given by the corporation to Mr. & Mrs. Kraft so that the corporation could assume and use the trade name Kraft Plumbing & Heating if it so desired, said name representing good will. On the same date, Mr. & Mrs. Kraft then gifted all said shares of stock to Carl Kraft. Mr. & Mrs. Kraft retaining no shares in the corporation. A copy of the minutes of the organizational meeting of the corporation which includes a list in- dicating the assets transferred is also attached herein. The documents referred to in the stipulation were re- ceived into evidence as Joint Exhibits I and 2. Included in the property transferred were inventory merchandise valued at $12,150; tools and equipment valued at $3,050; office equipment valued at $500; autos and trucks valued at $9,800, and goodwill valued at $2,000. With regard to the goodwill and use of the pro- prietorship's name, the minutes of the organizational meeting reveal the following: Michael Kraft, Jr. then offered to permit the Cor- poration to assume and to use the trade name Kraft Plumbing & Heating with the necessary addition of Inc. for the additional consideration of Two Thou- sand Dollars ($2,000.00). Mr. Kraft stated that by accepting this offer, the Corporation would also be entitled to whatever good will was attached to the use of that name in the community and that the Corporation would not have to disclaim any rela- tionship to the preexisting proprietorship nor would the Corporation have to distinguish between itself and the prior proprietorship in any literature, letter- head, advertisement or contractual arrangement. After discussion, it was moved, seconded and unani- mously. RESOLVED, that the Corporation accepts Mr. Kraft's offer to transfer the name and good will and that the Corporation issue Two Thousand (2,000) shares of its common stock at a par value of One Dollar a share in return for the good will. Mike Kraft said that he kept one truck for himself, and also that he retained his personal tools. He said that he did not keep any office equipment. His son, Carl Kraft, assumed the lease on the building at 215 West First Street in Tempe. Since that time in 1974, Mike Kraft has had no em- ployees. He described the types of jobs which he had performed since December 1974 as follows: Q. (By Mr. Janofsky) Tell me, Mr. Kraft, what kinds of jobs have you done since the transfer of assets to your son in 1974? A. I've done the plumbing in a house-we have a summer home in the mountains. I've done a house up on the golf course in Pine Tops Lake Country Club; done a house up there last summer. I've certain people, mainly elderly people- there's a minister I have in mind, and so on, that just wait for me. They'll call the shop and have my son contact me. Sometimes I'm home and some- times "I'm not. They try to call me at home. Since that time, Mike Kraft has maintained a summer home about 180 miles from Phoenix in the mountains near Show Low, Arizona. During the summer months he spends a couple of weeks at a time at his summer home. As Mike Kraft testified at the hearing regarding his busi- ness, I'm not looking for it. When it comes in, I'll do it. I'm not encouraging business." Regarding the physical condition of Mike Kraft by the time of the hearing, see the representations made by the attorneys for the Respondent at transcript pages 336 and 337. D. The Business Operations of Kraft Plumbing & Hearing, Inc. There are three officers of the Respondent corpora- tion. Carl M. Kraft is the president of the corporation. His mother, Leonore Kraft, is the secretary of the corpo- ration. His father, Mike Kraft, is the treasurer of the cor- poration. Since transfer of the stock in the corporation from his father on December 20, 1974, Carl Kraft has been the sole owner of the Respondent. According to Carl Kraft, the Respondent performs repair and remodel plumbing work, which he said was similar to that which was per- formed by Mike Kraft Plumbing Company. The corpora- tion has its office at the same location as previously had been occupied by Mike Kraft Plumbing Company. In the issue of the telephone directory which was cur- rent at the time of the hearing, the corporation did not use its corporate name in its yellow pages advertisement, but instead it listed itself as "Kraft Plumbing & Heating Company." At the time of the transfer of the assets to the corpora- tion, the Respondent employed both of the employees who had previously performed plumbing and service work for Mike Kraft Plumbing Company. They were Scott Brown and Ernest Burgos. No new employment applications were filled out by those two persons at that time. The Respondent employed only those two persons to perform plumbing and service work until October 1, 1977, when the Respondent hired another employee. Brown continued his employment with the Respondent 895 DECISIONS OF NATIONAL LABOR RELATIONS BOARD until the summer of 1978, and Burgos was still employed by the Respondent at the time of the hearing. Carl Kraft stated that the Respondent paid Brown and Burgos the wage rates which were set forth in the Union's contract, and that the Respondent had submitted fringe benefit contributions on behalf of those employees until the Respondent ceased to do so on January 1, 1979. The Respondent also had transmitted union dues deduc- tions until the Respondent ceased doing so concerning Burgos on January 1, 1979. The Respondent has hired other employees since Oc- tober 1, 1977, without resort to the Union's hiring hall. The Respondent gave no notice to the Union that it was not utilizing the union hiring hall. As will be described later, the Respondent did request the Union to refer two employees in December 1978. Carl Kraft acknowledged that he paid those two employees money for appearing for work and made fringe benefit contributions to the trust funds on their behalf. Carl Kraft acknowledged that the Respondent had ac- quired some of the customers of Mike Kraft Plumbing Company, but he said that he did not know how many of them were acquired by the Respondent. He did give Rosarita Foods as the name of one of the larger custom- ers of Mike Kraft Plumbing Company, and one which the Respondent had acquired. Carl Kraft had worked at times in the past for his father before the corporation was formed. Carl Kraft said that he was familiar with some of the customers who had been serviced by his fa- ther's company. Carl Kraft acknowledged at the hearing that the Respondent had submitted checks drawn on the corporate account and signed by him to the Plumbing & Air Conditioning Contractors of Arizona. In January 1979 and again in October 1979, the Re- spondent gave wage increases in varying amounts to its employees. On or about February 1, 1979, the Respond- ent began a new health and welfare plan for its employ- ees. The Respondent did not consult with the Union prior to the taking of such actions. E. Matters Pertaining to the Plumbing and Air Conditioning Contractors of Arizona The Plumbing and Air Conditioning Contractors of Arizona has been in existence for about 29 years. That entity was usually referred to at the hearing as the Asso- ciation, and for convenience it will be referred to by that name herein. Among other things, the Association en- gages in collective bargaining with unions on behalf of the employer members of the Association, unless the member notifies the Association to the contrary. Climate Control is one of the members of Plumbing and Air Conditioning Contractors of Arizona. Climate Control had been a member of that Association for sev- eral years at the time of the hearing in November 1979. During the previous year, Climate Control had pur- chased goods and materials valued in excess of $50,000 from outside the State of Arizona, and Climate Control had brought those goods into Arizona directly from out- side the State. Those facts were true not only for the previous year, but also for the prior calendar year. One of the unions which has negotiated agreements with the Association is the Union involved in this pro- ceeding. Among the purposes of the Union is the negoti- ation with employers and employer associations for agreements pertaining to employees' wages, fringe bene- fits, working rules, working conditions, grievance proce- dures, and hiring halls. Employees are members and par- ticipate in the Union. Introduced into evidence as General Counsel's Exhibit 2 was a copy of a collective-bargaining agreement be- tween the Association and Local Union 469 and Local Union 741 of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada. The effective dates of that agreement were June 1, 1972, through May 31, 1975. A copy of another collective-bargaining agreement be- tween the same parties was introduced into evidence as General Counsel's Exhibit 3. The effective dates for that contract were June 14, 1975, through June 30, 1978. Introduced into evidence as General Counsel's Exhibit 4 was a copy of still another collective-bargaining agree- ment between the same parties. The effective dates of that agreement are from July 1, 1978, through June 30, 1981. General Counsel's Exhibit 4A and General Coun- sel's Exhibit 4B are supplemental agreements to General Counsel's Exhibit 4, which were entered into by the par- ties to those contracts. According to Executive Director Stertz, the members of the Association are businesses or companies. The re- cords of the Association show that Mike Kraft Plumbing & Heating became a member of the Association in 1952. The Association prepares lists or rosters of its mem- bers. Copies of such rosters were introduced into evi- dence as General Counsel's Exhibit 8, A through D. Those documents show the company's name, address, telephone number, and the name of the person consid- ered by the Association to be the principal representative of that Company. The 1974 roster of the members of the Association was introduced as General Counsel's Exhibit 8. On that roster there appears "Kraft Plbg. & Htg. Co." Mike Kraft's name appears underneath the company's name. The 1975 roster of members of the Association was in- troduced into evidence as General Counsel's Exhibit 8A. On that roster there appears "Kraft Plumbing & Heating Co." Once again, Mike Kraft's name appears underneath the company's name. The 1976 roster of members of the Association was introduced into evidence as General Counsel's Exhibit 8B. On that document there appears "Kraft Plumbing & Heating Co." Carl Kraft's name ap- pears underneath the company's name on the 1976 roster. The 1978 roster was introduced into evidence as General Counsel's Exhibit 8C, and the 1979 roster was introduced into evidence as General Counsel's Exhibit 8D. On both of those rosters the company's name appears the same as in General Counsel's Exhibit 8B, and Carl Kraft's name appears underneath the company's name on both rosters. F. The Conversation Between Stertz and Mike Kraft In 1974 or early 1975 there was a telephone conversa- tion between Stertz and Mike Kraft. During that conver- sation Mike Kraft informed Stertz that "he was turning 896 KRAFT PLUMBING AND HEATING, INC the business over to his son, Carl. and he was going to become less active in the Association work." Stertz explained at the hearing that Mike Kraft had held various offices in the Association, and at one time Mike Kraft was the state president. Stertz said that he was never advised that Mike Kraft was going to resign from the Association, and he said that he had never re- ceived a written resignation from him. Stertz acknowl- edged that Carl Kraft had never submitted an application for membership with the Association, nor had Kraft Plumbing & Heating, Inc. Since 1975 Carl Kraft has not attended any Association meetings, but Mike Kraft has continued to attend Association functions. According to Stertz, he was not notified prior to Janu- ary 1979 that Kraft Plumbing & Heating was withdraw- ing its membership from the Association, nor was he no- tified that it was revoking the Association's authority to bargain on its behalf and to enter into collective-bargain- ing agreements. Similarly, the Union's Business Manager, Brooks, said that he had not been advised that the com- pany was withdrawing from the Association or that it was revoking the Association's authority to bargain on its behalf. Brooks was not aware of the corporate name of the Respondent, and Stertz did not believe that the change in the company's name was ever discussed with him. G. Membership Dues Paid by the Respondent to the Association Members of the Association are sent bills by the Asso- ciation for their membership dues. Stertz explained that Mike Kraft Plumbing & Heating had been billed for dues by the Association since 1952. He said that the Association continued to bill the compa- ny for its membership dues after the telephone conversa- tion between Stertz and Mike Kraft in 1974 or early 1975. He said that the membership dues continued to be paid to the Association by check. Copies of bills sent by the Association to the company were introduced into evidence as General Counsel's Ex- hibits 7A through 7KK. The Association received pay- ment for membership dues by check until January 1979. The earliest bill for Association membership dues was in- troduced as General Counsel's Exhibit 7KK, which is dated November 7, 1975. That document shows that the bill for membership dues was addressed to: Kraft Plumb- ing & Heating Co, 215 W. First St., Tempe, AZ 85281. The last bill in chronological order is General Counsel's Exhibit 7F, which is dated April 3, 1979. That bill was for membership dues in the Association for January, February, March, and April 1979. Stertz explained at the hearing that there were some differences in spelling of the company's name due to the typing of the bills by different secretaries. For example, on some of the Association bills there appears "Co." and on other bills there appears "Company." (See, for exam- ple, G.C. Exh. 7.) Sometimes the name was abbreviated on some bills. For example, there appears "Kraft Plbg. & Htg. Co." (See, for example, G.C. Exh. 7.) On September 11, 1978, Stertz wrote a letter on the Association's letterhead stationery to Carl Kraft regard- ing a delinquency in the firm's dues. A copy of that letter was introduced into evidence as General Counsel's Exhibit 11. In pertinent part, it states: Carl Kraft Kraft Plumbing & Heating Co. 215 West First Street Tempe, AZ 85281 Carl: In keeping with the By-laws, I must write you and advise that your firm is delinquent in dues in the amount of $60,000. This covers the months of June, July, August and September. Please give this your personal attention, as when delinquent dues exceed the regulations of the By- laws, it is my duty to report same at a meeting of the Association. The membership dues requested in the foregoing letter were subsequently paid by the Respondent to the Associ- ation. H. The Checks Sent by the Association to the Respondent Introduced into evidence as General Counsel's Exhibit 10A was a copy of a letter dated July 8, 1977, from the Association to the Respondent. In pertinent part, it states: Kraft Plumbing & Heating, Inc. 215 West First Street Tempe, AZ 85281 Carl: It is with pleasure that we enclose herewith a check made payable to Kraft Plumbing & Heating, Inc. in the amount of $92.00, which is a dividend due you via our State Compensation Fund Insurance Plan. Introduced into evidence as General Counsel's Exhibit 10B was a copy of a letter dated August 6, 1976, from the Association to the Respondent. In pertinent part, it states: Mr. Carl Kraft Kraft Plumbing & Heating, Inc. 215 W. First St. Tempe, AZ 85281 Carl: It is our pleasure to enclose a Dividend Check from the Arizona State Compensation Fund in the amount of $133. Had you not been a member and participated on an individual basis, you would have received $59. By being a member you received an additional benefit of $74. Carl, I hope that the next dividend year gives you a larger return. We can all work together in accom- plishing this by stressing "safety." Please give my regards to Mike. According to Stertz, the Respondent had to be a member of the Association in order to be entitled to the 897 DECISIONS OF NATIONAL LABOR RELATIONS BO)ARD refund through the Association's plan. Stertz stated that Carl Kraft never returned either check referred to above, nor did Carl Kraft claim at that time that the Re- spondent was not a member of the Association and thus not entitled to the money he received. I. Bulletins Distributed to Members of the Association Members of the Association were sent bulletins regard- ing the status of negotiations. Copies of such bulletins during a timespan from May 7, 1974, to September 25, 1978, were introduced into evi- dence as General Counsel's Exhibits 9 through 9Q. Copies of those bulletins had been distributed to Kraft Plumbing & Heating Co. Other examples of communications from the Associ- ation to its members regarding negotiations were intro- duced into evidence as General Counsel's Exhibits 5 and 6. Those documents are dated March 19, 1976, and Feb- ruary 10, 1978, respectively. At the hearing an envelope from the Association was identified as being addressed to: "Carl Kraft, Mike Kraft Plumbing & Heating." The envelope was postmarked December 22, 1978. An addressograph plate had been used to address that communication. The Association also supplies a copy of its roster of members to the Union. The Union then sends out notices to those members listed on the Association roster. (For example, see G.C. Exh. 12A, which is dated February 28, 1975, and G.C. Exh. 12B, which is dated April 24, 1978.) J. Payments to the Trust Funds and Transmittal of Union Dues Trust funds are established under the terms of the col- lective-bargaining agreement which was introduced into evidence as General Counsel's Exhibit 4. According to Brooks, Kraft Plumbing & Heating had made contribu- tions to such funds for "a good number of years," and as late as December 1978 for two employees, Alan Johnson and Richard Wilson. Brooks identified General Counsel's Exhibit 16 as being a standard form used by contractors who are sig- natory to the collective-bargaining agreement, and who report the fringe benefit payments for employees who have worked for the contractor. General Counsel's Ex- hibit 16 shows payments made for 4 hours worked each by Johnson and by Wilson. The payments are to the health and welfare fund, the pension fund and the indus- try program fund. In addition, the document reveals that union dues were transmitted by the Company for those employees. There is still another employee's name on the form, but it is illegible on that photostat. However, an- other photostat of the same document was subsequently introduced into evidence as General Counsel's Exhibit 17D, and that photostat shows that the employee's name was Burgos. The document shows that he worked 152 hours as a metal tradesman, and that contributions were made by the employer to a separate health and welfare fund and separate industry program fund. The employ- er's name is shown as "Kraft Plumbing & Heating Co." Beside the signature line on the document appears "Carl M. Kraft by L. K." Besides the title line appears "owner." General Counsel's Exhibit 17A through 17NNN are copies of similar forms, all of which were submitted under the employer's name of "Kraft Plumbing & Heat- ing Co." during the period from January 1, 1974, through May 1979. Some forms list no employees and no contributions. (For example, see G.C. Exh. 17A for May 1979.) The form for February 1974 shows "Michael Kraft" by the signature line and "owner" by the title line. (See G.C. Exh. 17MMM.) The form for March 1974 shows the same information. (See G.C. Exh. 17LLL.) In addi- tion, the form for April 1974 also discloses the same in- formation. (See G.C. Exh. 17KKK.) For May 1974 "Carl Kraft" appears beside the signa- ture line with the title space left blank. (See G.C. Exh. 17JJJ.) For July 1974 what appears to be "M. Rledu" is written by the signature line and "bkker" by the title space. (See G.C. Exh. 17HHH.) For August 1974 what appears to be "Carl Kraft by A. Arner" is written beside the signature line and "Bkkter" by the title line. (See G.C. Exh. 17GGG.) What appears to be "Ed Harrington" is written beside the signature line and "Acctg" is written by the title line on the reports submitted between October 1974 and July 1976 with one exception which is blank in both of those spaces. (See G.C. Exhs. 17GG through 17JJ; 17LL through 17XX; and 17AAA through 17EEE.) General Counsel's Exhibit 17KK is the exception to the above. The report for August 1976 shows "C.M. Kraft" by the signature line and "owner (L. K.)" by the title line. (See G.C. Exh. 17FF.) On the reports submitted during the period of time from September 1976 through April 1978 what appears to be "Ed Harrington" and "Acctg" are shown by signa- ture lines and title lines respectively. (See G.C. Exhs. 17L through 17Z; and 17AA through 17EE.) Thereafter, except for the report previously described for December 1978, the spaces were left blank beside the signature line and the title line. (See G.C. Exhs. 17A; 17B; 17C; and 17E through 17K.) General Counsel's Ex- hibit 17D is the exception to the foregoing. As noted above, "Kraft Plumbing & Heating Co." is listed as the employer on all of the foregoing reports from January 1974 through May 1979. Payments to the funds were unilaterally discontinued by the Respondent after its payments in January 1979 for the hours worked by its employees during the previous month. Transmission of union dues, which had been deducted from the employee's wages, also was unilaterally discon- tinued after the payments for December 1978. Brooks pointed out at the hearing that Burgos was still em- ployed by the Respondent at the time of the hearing and that the Union had not received any revocation of Burgos' previously executed union dues-checkoff author- ization. 898 KRAFT PLl'MHIN(i AND) HEATINU, INC. K. The Suretv Bond A surety bond executed by an employer is a require- ment of the collective-bargaining agreements with the Union. The Union's practice is not to dispatch workers to an employer unless the employer has signed a surety bond for the workers' wages and fringe benefits. A copy of a surety bond dated July 16, 1976, by "Kraft Plumbing & Heating, Inc." and signed by Carl M. Kraft was introduced into evidence as General Counsel's Exhibit 13. In pertinent part, it states: KNOW ALL MEN BY THESE PRESENTS: That we, KRAFT PLUMBING & HEATING, INC., as principal, and FIDELITY & DEPOSIT COMPANY OF MARYLAND as surety, a corpo- ration duly qualified to act as surety in the State of Arizona, are held and firmly bound unto Local Unions 469 of the United Association of Journey- men and Apprentices of the Plumbing and Pipefit- ting Industry of the United States and Canada, for the use and benefit of the employees of the principal and any other parties to whom wages or benefits are to be paid under the terms of the Arizona Pipe Trades Agreement of June 14, 1975, together with any modification, renewal, extension or supplemen- tal thereof, and the terms of any subsequent Arizona Pipe Trades Agreement which may be entered into between the parties, as obligee, in the sum of TWO THOUSAND & 00/100 - Dollars ($2,000.00) for the payment of which, said principal binds itself and its successors, and surety binds itself and its succes- sors, jointly and severally, firmly by these presents. The condition of the above obligation is such, that whereas said principal, as a contractor has en- tered into a collective bargaining agreement dated June 14, 1975 (generally known as the Arizona Pipe Trades Agreement), with obligee providing among other things for the payment of wages to and bene- fits for his employees. Now, if the said principal shall pay such wages and any other benefits, to the employees or to any other party named in said Arizona Pipe Trades Agreement to whom they are to be paid in the manner and at the time when such sums are to be paid, then this obligation is to be void, otherwise, to remain in full force and effect. It is expressly understood that so far as wages are concerned the liability of the surety hereunder shall be limited to ten days' wages each for employees of the principal. It is further understood that the obligee shall notify the surety of any default of the principal's obligations under this bond, such notice to be made by registered or certified mail within thirty days after any wage default, or ninety days after any other default occurs. It is also expressly provided that as a further con- dition hereof this bond shall be construed to cover all reasonable expenses incurred by any party in the collection of any of the sums due under the terms and provisions of said Arizona Pipe Trades Agree- ment. It is further expressly agreed that the surety may cancel its liability hereunder at any time upon mail- ing thirty days' written notice, in advance, to the principal and the obligee Union herein named, and that the liability of the surety hereunder shall cease upon the expiration of the thirty days after the de- livery of said notice. It is further expressly agreed by and between all parties named in this bond that the total aggregate liability of the surety for all claims shall be limited to the face amount of this bond, irrespective of the number of years this bond is in force. L. The Use of the Union's Hiring Hall Both Arthur Brown and Ernest Burgos were referred by the Union to work for "Kraft Plumbing." A copy of a union referral slip dated in December 1974 for Burgos was introduced into evidence as General Counsel's Exhibit 18. Another referral slip dated Septem- her 20, 1978, for Burgos was introduced into evidence as General Counsel's Exhibit 20. Both Brown and Burgos paid dues to the Union. Brown had paid such dues from 1952 to the time of the hearing, and Burgos had paid such dues from 1974 to January 1979. (In this connection, see also G.C. Exhs. 19A and 19B.) A copy of a union referral slip for Alan R. Johnson to work for "Kraft Plumbing" at Western Electric was in- troduced into evidence as General Counsel's Exhibit 14. That document is dated December 26, 1978. A similar referral slip for Richard R. Wilson to work for "Kraft Plumbing" at Western Electric was introduced into evi- dence as General Counsel's Exhibit 14B. That document is also dated December 26, 1978. M. The Events in December 1978 As a result of a conversation sometime in early De- cember 1978 between Corley and a union member, Arthur Scott Brown, Corley and another union Business Agent, Ron Harvill, went to the Respondent's premises on December 27, 1978. Around 7:20 a.m. on that date, Corley observed two people arrive at the Respondent's premises in a truck. The two persons unlocked the gate and went inside. They put some things in the truck, and then they locked the gate and left the Respondent's premises about 7:40 a.m. Corley and Harvill followed the two persons to 70th Street and Camelback. Corley and Harvill then went on the premises at that location. Corley observed that the persons were performing plumbing work. Corley questioned one of the workers as to whether he was working for "Kraft Plumbing Compa- ny." The worker replied, "Yes." Corley then asked him if he had gone through the dispatch hall. The worker re- plied, "No." Corley inquired as to the worker's name, and the worker referred Corley to the shop. Corley left. About 9 a.m. on that day Corley returned to the Re- spondent's premises, and he spoke with a lady, who 899 DECISIONS OF NATIONAL LABOR REI.ATIONS BOARD Corley identified at the hearing as being Carl Kraft's mother. Corley asked to talk with Kraft. During his direct examination by Counsel for the General Counsel, Corley testified: And she said Carl Kraft is not here but I can beep him. So she did and within a few minutes Carl Kraft called. I said Carl I've been out to the job at 70th Street & Camelback. I guess you know what I found. He said, yes I do, what do we do now. I asked him if he would come in so we could go through his books. He said, well, I'm way out on the Black Canyon and I'll be in in about an hour. Approximately 10:00 o'clock Carl came in, drove through the gate, got out of his truck. I walked up to him. We introduced ourselves, and he had told me that he had terminated the two new hires out of the Western Electric plant. I told him, geez, I wish you hadn't done that. Q. Can you tell us the names of those men? A. It was Alan Johnson and Richard Wilson. Q. How did they come to work for Kraft? A. They had picked up a work order the day before and was to report that morning to the West- ern Electric job. Q. They were referred out of the hall? A. Yes, they were referred out of the hiring hall. Q. Okay. A. Like I said, I mentioned to him that I wished he hadn't done this. I had full intentions of getting things straightened out. Then Carl said how do I become non-signatory. I told him, Carl it's out of the question at this time. It takes 60 days prior to the expiration date of the contract which is in '81. I again asked Carl if I could look into his books. He told me that his attorney advised him not to at this time. I then left and went into my office. Q. Was anyone else present when this conversa- tion took place? A. No, it was just Carl and I. Q. For what purpose did you request to see his payroll records? A. Number one, I wanted to see who he did have employed. I wanted to make sure that the fringes were being reported, turned in, this and that. The Union filed a protest regarding this matter under the grievance procedure of the collective-bargaining agreement. The case was scheduled for hearing, but the Respondent did not appear. Thereafter, the Union filed the unfair labor practice charge which is involved in this proceeding. Introduced into evidence as General Counsel's Exhibit 15 was a copy of a "Notice of Termination" for Richard R. Wilson. The document is on a form which is supplied by the Union to contractors. The form indicates that Wilson was hired and terminated on the same date, i.e., December 27, 1978. The firm's name shown on the form is "Kraft Plbg & Htg Inc." The document is dated De- cember 27, 1978, and it shows "Carl M. Kraft owner by LK." N. Conclusions In its decision in Saks & Company d/b/a Saks Fifth Avenue, 247 NLRB No. 128 (1980), the Board stated the following: The Board has held that, in determining succes- sorship, the keystone is whether there is substantial continuity of the employing industry.6 Continuity of the employing industry requires consideration of the work done . . as well as consideration of the work force .... Miami Industrial rucks, Inc., 221 NLRB 1223 (1975), where the Hoard recognized a successorship to a portion of the pred- ecessor's operation to wit, one product line with the successor con- tinuing to service it for the same customers employing four service employees, three of whom were employees of the predecessor See also Mondovi Foods Corporalion, 235 NLRB 1080, fn 8 (1978). Without repeating here all of the findings of fact which have previously been set forth herein, I conclude that there was a "substantial continuity of the employing industry" in this case. The Respondent corporation con- tinued the same type of plumbing repair and remodeling work which Mike Kraft Plumbing had performed. The Respondent operated its business out of the same loca- tion as Mike Kraft Plumbing had previously occupied. The corporation immediately employed both of the em- ployees of Mike Kraft Plumbing who had been perform- ing plumbing and service work for that company. The Respondent applied the existing collective-bargaining agreement with the Union regarding the payment of wage rates to those employees and the payment of fringe benefits for those employees. There were no new em- ployees hired by the Respondent for that type of work until October 1, 1977. The sole owner of Mike Kraft Plumbing was instru- mental in the formation of the Respondent corporation, and Mike Kraft transferred certain assets to the corpora- tion in exchange for shares of stock in the corporation. Then Mike Kraft immediately made a gift of those shares of stock to his son, Carl Kraft, who thereafter has been the sole owner of the Respondent corporation. Signifi- cantly, Mike Kraft continued to be one of the three offi- cers of the Respondent corporation at the time of the hearing. The other two officers of the corporation were Mike Kraft's wife and Mike Kraft's son. By virtue of the transfer of certain assets to the corporation, a substantial amount of the equipment previously operated by Mike Kraft Plumbing became the equipment utilized by the Respondent. Mike Kraft retained only his own tools and one truck. While Mike Kraft has continued to perform some plumbing work, he candidly stated at the hearing that he was semiretired. He has had no employees since the formation of the Respondent corporation. Consider- ing his semiretirement, his physical condition, the trans- fer of the substantial amount of his equipment to the Re- spondent corporation, and the fact that he has had no employees it cannot be fairly said that the Respondent is 900 KRAFT PLUMBING AND HEATING, INC. not a successor employer to the business formerly oper- ated by Mike Kraft Plumbing. At least some of the former customers of Mike Kraft Plumbing were acquired by the Respondent. However, that factor seems to be of less significance under the par- ticular circumstances of this case when one considers the nature of the plumbing repair and remodeling work being done, and the types of customers for whom the work has been performed. As noted above, the Respondent corporation applied initially the terms of the collective-bargaining agreement with regard to paying the wages and fringe benefits to the two employees who had previously worked for Mike Kraft Plumbing. The Respondent subsequently did not utilize the Union's hiring hall provided for in the collec- tive-bargaining agreement until December 26, 1978, when the Respondent did request the Union to refer two employees to work for the Respondent at the Western Electric facility. The Respondent paid membership dues to the Associ- ation by checks drawn on the corporate bank account. I conclude that the Respondent therefore, in effect, contin- ued the membership of Mike Kraft Plumbing in the As- sociation. As indicated previously herein in Section B, I have not credited the version given by Carl Kraft that the amounts of the corporate checks paid to the Associ- ation for membership dues were in partial payment for loans made to Carl Kraft and the corporation by Mike Kraft. It is significant that the Respondent never gave notice to the Association, nor to the Union, that the Association did not have authority to bargain collectively on behalf of the Respondent. Instead, the Respondent paid mem- bership dues by means of corporate checks, as indicated above, and also the Respondent received moneys from the Association as a member. In this connection see Gen- eral Counsel's Exhibits 10A and 10B. The Respondent has never returned those checks, or those amounts of money to the Association, nor did the Respondent claim at the time that it received the moneys that the Respond- ent was not a member of the Association. As noted previously in the findings of fact, the Re- spondent did execute a surety bond in accordance with the terms of the collective-bargaining agreement. For the reasons previously stated in Section B herein, I have not accepted Carl Kraft's account that his signing of that surety bond was an accident. After considering all of the foregoing, I conclude that the Respondent corporation is a successor employer to Mike Kraft Plumbing. First Food Ventures, Inc., 229 NLRB 1228 (1977). I further conclude that the Respond- ent has been a member of the Association since the in- ception of the Respondent and that the Respondent has been bound to the collective-bargaining agreement nego- tiated on its behalf by the Association. Consistent with the foregoing, I find that the Board should properly assert its jurisdiction over the business operations of the Respondent. Insulation Contractors of Southern California, Inc., 110 NLRB 638 (1954). At the request of the counsel for the General Counsel, I have taken judicial notice of the Board's decision in Local Union 469 of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada (Mackey Plumbing Co.), 228 NLRB 298 (1977). In that decision, the Board found, inter alia, the following: "Mackey is a member of Plumb- ing and Air Conditioning Contractors of Arizona, an as- sociation of employers engaged in the plumbing industry which exists for the purpose, inter alia, of negotiating collective-bargaining agreements with the Respondent Union." Note also the findings regarding jurisdiction over the members of that Association as set forth at page 301 of the decision by Administrative Law Judge Russell L. Stevens. The testimony of Howard Kraft, the presi- dent of Climate Control Incorporated, as set forth in the findings of fact herein, establishes the currency of the Board's jurisdiction over a member of that same Associ- ation. In this connection, note the Board's holding re- garding the applicability of various time periods in con- sidering the assertion of the Board's jurisdiction, Reliable Roofing Company, Inc., 246 NLRB No. 118, fn. 1 (1979). In view of the foregoing, I conclude that the Board may exercise its jurisdiction over the Respondent based upon the commerce facts pertaining to members of that mul- tiemployer bargaining association. Based upon the testimony given by Brooks, Corley, and Stertz, as well as the documentary evidence referred to in the findings of fact, I conclude that the Union meets the definition of a labor organization as set forth in Section 2(5) of the Act. In its decision in Don Burgess Construction Corporation d/b/a Burgess Construction and Donald Burgess and Verlon Hendrix d/b/a V & B Builders, 227 NLRB 765 (1977), the Board held at 766: "The period of limitations prescribed by Section 10(b) does not begin to run on an alleged unfair labor practice until the person adversely affected is put on notice of the act constituting it." The Board referred to its earlier decision in Wisconsin River Valley District Council of the United Brotherhood of Car- penters and Joiners of America, AFL-CIO (Skippy Enter- prises, Inc.), 211 NLRB 227 (1974). In this connection, see also the Board's decisions in Hot Bagels and Donuts of Staten Island, Inc., 227 NLRB 1597 (1977); AMCAR Division of ACF Industries, Inc., 231 NLRB 83 (1977), and AMCAR Division, ACF Industries Incorporated, 234 NLRB 1063 (1978). Accordingly, I conclude that the Respondent's affirm- ative defense that Section 10(b) of the Act precludes the finding of unfair labor practices to be without merit. After considering all of the foregoing matters set forth herein, I conclude finally that a preponderance of the evidence establishes that the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (5) of the Act as alleged in the General Counsel's complaint. CONCLUSIONS OF LAW 1. The Respondent is a successor employer to the busi- ness formerly operated by Mike Kraft Plumbing Compa- ny. 2. The Respondent has been at all times material herein a member of the Plumbing and Air Conditioning Contractors of Arizona, which is a multiemployer associ- 901 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ation of employers engaged in the construction industry, and which exists for the purpose, inter alia, of engaging in collective bargaining and negotiating collective-bar- gaining agreements with the Union on behalf of employ- er members of that Association. 3. The Plumbing and Air Conditioning Contractors of Arizona has been authorized by the Respondent, at all times material herein, to bargain collectively on behalf of the Respondent with the Union concerning the wages, hours, and other terms and conditions of employment of the Respondent's employees who perform plumbing work. 4. The Plumbing and Air Conditioning Contractors of Arizona and the Union have been parties to successive collective-bargaining agreements, the latest of which is effective by its terms from July 1, 1978, through June 30, 1981, and thereafter from year to year unless notice of termination is given. The terms of that collective-bar- gaining agreement and the subsequent amendments there- to are reflected in General Counsel's Exhibits 4, 4A, and 4B, which were introduced into evidence at the hearing in this proceeding. 5. The Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 6. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 7. The following employees of the Respondent consti- tute a unit appropriate for the purposes of collective bar- gaining within the meaning of Section 9(b) of the Act: All employees of the Respondent engaged in plumbing work as defined in the current collective- bargaining agreement between the Plumbing and Air Conditioning Contractors of Arizona and the Union, and excluding all other employees, guards and supervisors as defined in the Act. 8. The Union has been, at all times material herein, the exclusive representative of all of the employees in the above-described appropriate unit for the purposes of col- lective bargaining. 9. By the following acts and conduct the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(l) and (5) of the Act: (a) Failing and refusing to furnish to the Union certain payroll records requested by the Union and necessary to the performance by the Union of its collective-bargaining functions. (b) Refusing to recognize and bargain with the union as the collective-bargaining representative in the unit of the Respondent's employees described above. (c) Repudiating and failing to honor, to abide by, and to apply the terms of the collective-bargaining agreement between the Association and the Union described above. (d) Unilaterally discontinuing compliance with the hiring hall provisions of the applicable collective-bar- gaining agreement described above. (e) Unilaterally discontinuing monthly contributions to the health and welfare, pension, industry and apprentice- ship funds provided for in the applicable collective-bar- gaining agreement described above. (f) Unilaterally failing to honor the dues deduction au- thorizations of unit employees and failing to disburse such dues to the Union in accordance with the terms of the applicable collective-bargaining agreement described above. (g) Unilaterally instituting a new health and welfare plan covering unit employees. (h) Unilaterally increasing the wage rates of unit em- ployees. 10. The unfair labor practices set forth above affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Since I have found that the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(l) and (5) of the Act, I shall recommend to the Board that the Respondent be ordered to cease and desist from engaging in those unfair labor practices. I shall also recommend to the Board that the Respond- ent take certain affirmative action in order to effectuate the policies of the Act. Such affirmative action will in- clude the payment of backpay to unit employees who have lost wages and other benefits as a result of the Re- spondent's unfair labor practices described above. Back- pay will be computed in accordance with the Board's de- cisions in F. W. Woolworth Company, 90 NLRB 289 (1950); Isis Plumbing & Healing Co., 138 NLRB 716 (1962), and Florida Steel Corporation, 221 NLRB 651 (1977). Such affirmative action to remedy the Respondent's unfair labor practices will also include an order to make appropriate payment to the funds for the fringe benefits of its employees as provided for in the applicable collec- tive-bargaining agreement previously described. Howev- er, in accordance with Board decisions, I shall not pro- vide for interest to be added to such payments. Fitzpa- trick Electric. Inc., 242 NLRB 739 (1979). Finally, I shall recommend to the Board a narrow cease-and-desist order. Hickmott Foods, Inc., 242 NLRB 1357 (1979). Upon the basis of the foregoing findings of fact, con- clusions of law, and the entire record in this proceeding, and pursuant to the provisions of Section 10(c) of the Act, I hereby issue the following recommended: ORDER The Respondent, Kraft Plumbing and Heating, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Failing and refusing to furnish to the Union certain payroll records requested by the Union and which are necessary to the performance by the Union of its collec- tive-bargaining function. I In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "P'sted I'ursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board" 902 KRAFT PLUMBING AND HEATING, INC. (b) Refusing to recognize and bargain with the Union as the collective-bargaining representative in the unit of the Respondent's employees described below. (c) Repudiating and failing to honor, to abide by, and to apply the terms of the collective-bargaining agreement between the Plumbing and Air Conditioning Contractors of Arizona and the Union. The terms of that collective- bargaining agreement and the subsequent amendments thereto are set forth in General Counsel's Exhibits 4, 4A, and 4B. (d) Unilaterally discontinuing compliance with the hiring hall provisions of the applicable collective-bar- gaining agreement described above. (e) Unilaterally discontinuing monthly contributions to the health and welfare, pension, industry and apprentice- ship funds provided for in the applicable collective-bar- gaining agreement described above. (f) Unilaterally failing to honor the dues-deduction au- thorization of unit employees and failing to disburse such dues to the Union in accordance with the terms of the applicable collective-bargaining agreement described above. (g) Unilaterally instituting a new health and welfare plan covering unit employees. (h) Unilaterally increasing the wage rates of unit em- ployees. The appropriate collective-bargaining unit is: All employees of the Respondent engaged in plumbing work as defined in the collective-bargain- ing agreement between the Plumbing and Air Con- ditioning Contractors of Arizona and the Union, ex- cluding all other employees, guards, and supervisors as defined in the Act. (i) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of the rights guaranteed them by the Act. 2. Take the following affirmative action which is deemed necessary in order to effectuate the policies of the Act: (a) Recognize and, upon request, bargain collectively with the Union as the exclusive collective-bargaining representative of the employees of the Respondent in the bargaining unit previously described above, and embody in a signed agreement any understanding which may be reached. (b) Honor, abide by, and apply the terms of the exist- ing collective-bargaining agreement between the Associ- ation and the Union during the life of that contract. (c) Make whole its unit employees for their loss of wages and other benefits which resulted from the Re- spondent's unfair labor practices, and pay to those em- ployees appropriate interest on such amounts of money as more fully described in The Remedy section of this Decision. (d) Make appropriate contributions to the trust funds as provided for in the applicable collective-bargaining agreement previously described, and make reimburse- ment to the Union for the losses due to the Respondent's failure to honor the union dues-deduction authorizations of its employees. (e) Forthwith provide to the Union the payroll records previously requested by the Union. (f) Preserve and, upon request, make available to agents of the Board for examination and copying, the payroll records, social security records, timecards, per- sonnel records, and all of the other records necessary to analyze the amount of money due under the terms of this Order. (g) Post at its Tempe, Arizona, facility, copies of the attached notice marked "Appendix." 2 The Regional Di- rector of Region 28 of the Board will provide copies of the notice to the Respondent. After the Respondent's representative has signed those copies, the Respondent shall post those notices immediately after receiving them. The Respondent shall maintain such notices for 60 con- secutive days after they have been posted in conspicuous places, including all of the places where the Respondent customarily posts notices to its employees. The Respond- ent shall also take reasonable steps to ensure that the no- tices are not altered, defaced, or covered by any other material during the posting period. (h) Within 20 days from the date of this Order, the Re- spondent shall write a letter to the Regional Director of Region 28 of the Board and tell him what the Respond- ent has done to comply with the terms of this Order. In the event that no exceptions are filed, as provided by Sec. 102.46 of the Board's Rules and Regulations. the findings, conclusions and rec- ommended Order herein shall. as provided by Sec. 102.48 of the Board's Rules and Regulations. he adopted by the Board and become its findings, conclusions, ad Order, and all objections thereto shall he deemed waived for all purposes 903