NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,551, WILLIAMS PIPELINE COMPANY and PLUMBERS AND PIPEFITTERS LOCAL UNION NO. 99, UNITED ASSOCIATION OF JURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY OF THE UNITED STATES AND CANADA, AFL-CIO., (Nov. 23, 1994), National Labor Relations Board, (Nov 23, 1994)

WILLIAMS PIPELINE COMPANY and PLUMBERS AND PIPEFITTERS LOCAL UNION NO. 99, UNITED ASSOCIATION OF JURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY OF THE UNITED STATES AND CANADA, AFL-CIO.

315 NLRB No. 86.Case Nos. 33-CA-9828 and -9851. November 23, 1994 Joel A. Harmatz, Administrative Law Judge..

Before Gould, Stevens and Browning.

Judy Poltz, for General Counsel. Gene Williams, pro se, Flora, Illinois, and David E. Krchak (Thomas, Mamer & Haughey), Champaign, Illinois, for Respondent. William C. Cavanagh (Cavanagh and O’Hara), Springfield, Illinois and Ricky S. Terven, Bloomington, Illinois, for Charging Party.

Interference--Coercive Remarks--Union Talk.--An employer’s remark that there was “too much talking going on” and that the employer was going to put a stop to it, made during a union organizing campaign constituted interference with its employees’ right to freely select a bargaining representative. The employer’s reference pertained to an employee’s protected activities in soliciting union support to enforce the payment of prevailing wages on a project. Section 8(a)(1).

Back reference: ¶3770.082.

Unilateral Changes by Employer--Work Conditions--Wages and Hiring.--By unilaterally failing to pay its employees contractual wages and by hiring employees in violation of contractual hiring hall provisions in a collective bargaining agreement, an employer violated its bargaining duty. The employer deliberately gave a union neither notice nor an opportunity to bargain over the changes in working conditions, instead informing the union that there was no bargaining relationship. Section 8(a)(5).

Back reference: ¶3145.483.

Refusal to Bargain--Fact Finding--Refusal to Recognize Union.--On the facts, an employer violated its bargaining duty by completely repudiating its bargaining contract, reached with a union two months earlier, including withdrawing recognition from the union and failing to deduct and remit union dues. Section 8(a)(5).

Discrimination--Antiunion Motives--Discharge of Unionist.--By discharging an employee in reprisal for his concerted discussion of wage issues and his enlisting union support in that regard, an employer discriminated against him. The employer had previously demonstrated union animus by threatening the employee for talking to and about the union. Section 8(a)(3).

Back reference: ¶4010.409.

From Text of Board’s Decision

On December 29, 1993, Administrative Law Judge Joel A. Harmatz issued the attached decision. The General Counsel filed limited exceptions, a supporting brief, and a brief in partial support of the administrative law judge’s decision. The Respondent filed exceptions and a supporting brief.

. . .

The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings, [1] and conclusions as modified and to adopt the recommended Order as modified and set forth in full below.

1. The judge found, and we agree, that the Respondent violated Section 8(a)(3) of the Act by unlawfully terminating Jay Logan. In Making this determination, the judge credited Glen Pride’s testimony that, when asked why Logan was not offered employment at the New Baden, Illinois job, the Respondent’s owner, Gene Williams, responded that “there was too much talking going on and he was going to [put] a stop to it one way or another.” When Pride asked what kind of “talking,” Williams said, “I [Williams] know what he [Logan] was talking about.” [2]

The judge did not address the issue whether Williams’ statement violated Section 8(a)(1) apparently because this matter was not specifically alleged in the complaint. For the reasons set forth below, we find merit in the General Counsel’s exception and find Williams’ statement to be unlawful.

“It is well settled that the Board may find and remedy a violation even in the absence of a specified allegation in the complaint if the issue is closely connected to the subject matter of the complaint and has been fully litigated.” Pergament United Sales, [1987-90 CCH NLRB ¶15,750] 296 NLRB 333, 334 (1989), enfd. [117 LC ¶10,438] 920 F.2d 130 (2d Cir. 1990).

The first part of this test is easily satisfied here. The complaint alleges, inter alia, that Williams made other coercive statements to employees in Violation of Section 8(a)(1) and that Williams discharged Logan in violation of Section 8(a)(3) discharge allegation, and the General Counsel asserts that the Williams statement is evidence of the Respondent’s hostility toward protected union activity. In fact, the judge properly relied on Williams’ “too much talking” remark in concluding that he unlawfully discharged Logan. Accordingly, we find that there is a close connection between the violation sought and the subject matter of the complaint.

We also find that the second part of the Pergament test is satisfied. At the hearing, there was no objection to Pride’s testimony, and the Respondent had an opportunity to cross-examine the witness and further explore the issue. Accordingly, we find that the issue was fairly and fully litigated.

On the merits, we find, in agreement with the judge, that the record as a whole supports the inference that the reference to “too much talking” pertained to Logan’s protected activities in enlisting the Union’s support to enforce the payment of prevailing scale wages at the Hey worth, Illinois job site. By stating that he “was going to put a stop” to such protected activities, “one way or another,” Williams threatened employees with retaliation in violation of Section 8(a)(1) of the Act. [3]

2. The judge found no merit in the complaint allegations that the Respondent violated Section 8(a)(5) and (1) of the Act by failing to pay its employees wages in accordance with the contract wage scale and by failing to make benefit fund contributions on their behalf. For the reasons set forth below, we disagree.

The record establishes that, except for Marty Schuler, the apprentice referred by the Union, the Respondent did not pay contract wages or remit fringe benefit contributions for its employees during periods when they were engaged in pipefitting work at the Heyworth, Illinois jobsite covered by the contract. The judge reasoned that the Respondent was not required to pay contractual wages and benefits to these employees because there was no showing that they had achieved journeyman status or that they were enrolled in an apprenticeship program.

We find that the judge fundamentally misconstrued the contract. Although article III of the collective-bargaining agreement specifies rates of pay only for journeymen and apprentices, the coverage of the contract is set forth in article VII of the agreement, not article III. Article VII provides as follows:

This Agreement covers the rates of pay, hours and working conditions of all employees engaged in the installation of all plumbing and/or pipefitting systems and component parts thereof, including ... and all other work included in the trade jurisdiction of the United Association, as set forth in Appendix A which is incorporated herein and made a part of this Agreement.”

Appendix A states, inter alia, that the agreement shall apply to “all Employees of an Employer employed to perform or performing plumbing, heating, and piping work” within the Union’s geographical jurisdiction. There is nothing in the contract stating that employees performing pipefitting work are excluded from coverage by reason of their lack of skill, training, or experience.

Here, the credited evidence establishes that the Respondent’s employees performed pipefitting work within the Union’s geographical jurisdiction. Therefore, we find that the contract expressly covers “the rates of pay, hours, and working conditions” of the Respondent’s employees. [4] Accordingly, we conclude, contrary to the judge, that the Respondent violated Section 8(a)(5) and (1) of the Act by its failure to pay contractual wages to and remit fringe benefits on behalf of its employees who performed plumbing and pipefitting work.

3. The General Counsel excepts to the judge’s failure to find that the Respondent violated Section 8(a)(5) by repudiating the collective-bargaining agreement with the Union and by withdrawing recognition from the Union. We agree with the General Counsel and find that the Respondent repudiated its collective-bargaining agreement immediately after executing it on March 3, 1992, and withdrew recognition from the Union in violation of Section 8(a)(5) and (1) of the Act.

Although the Respondent executed a contract with the Union on March 3, 1992, covering pipefitting work on the Heyworth, Illinois jobsite, the only time it ever followed the contract was with respect to the payment of wages and benefits for one apprentice referred from the union hiring hall. [5] Thus, the Respondent never paid its own pipefitter employees the wages provided in the contract and never made any of the required benefit contributions on their behalf. Even the Respondent’s token adherence to the contract proved to be short lived because the apprentice worked at most 4 weeks during the first phase of the project (approximately March 3--April 3, 1992). The undisputed testimony shows that when the Respondent returned to Heyworth in May for the second phase of the job, Williams hired new employees without even notifying the Union that he had returned, evicted Union Business Manager Terven when he came to the jobsite to protest the contract violation, and adamantly stated to Terven that “our apprentice had screwed him to death and that he didn’t want any more from the local.”

Viewing the record evidence as a whole, it is apparent that this Respondent never had any intention of complying with its core contractual obligations. The Respondent’s failure to pay its regular employees contract wages and fringes from day one is especially telling. As the Board stated in Oak Cliff-Golman Baking Co., [1974 CCH NLRB ¶26,085] 207 NLRB 1063, 1064 (1973), enfd. mem. [77 LC ¶11,049] 505 F.2d 1302 (5th Cir. 1974), cert denied [77 LC ¶11,115] 423 U.S. 826 (1975), an employer’s decision “to pay its employees for the remainder of the contract’s [term] at wage rates below those provided in the collective-bargaining agreement affects what is perhaps the most important element of the many in the employment relationship which Congress remitted to the mandatory process of collective bargaining under the Act.” The Board correctly reasoned that because so many contract terms are dependent upon the wage rate provision, “a clear repudiation of the contract’s wage provision ... amounts, as a practical matter, to the striking of a death blow to the contract as a whole, and is thus, in reality, a basic repudiation of the bargaining relationship.”

Oak Cliff-Golman was explicitly followed on this point in Caamano Bros., [1991-92 CCH NLRB ¶16,788] 304 NLRB 24, 27-28 (1991). In that case, the Board held, citing Oak Cliff-Golman, that the employer “effectively repudiated the [collective-bargaining] agreement by failing to apply wage and benefit provisions to the covered employees.” A close examination of the facts of that case shows that the Board dated the repudiation as of November 1, 1988, even though the employer made contractual health benefit contributions on behalf of at least some unit employees as late as February 1989. [6]

In sum, on March 3, 1992, before the ink was even dry on the signature page, the Respondent disregarded the contract’s critical economic provisions. Two months later, when the Respondent returned to the Heyworth jobsite after a brief hiatus, it failed to notify the Union of its presence, and it hired employees in violation of the contractual hiring hall provision. The Respondent made not the slightest effort to resolve its differences with the Union and informed the business manager in no uncertain terms that there was no bargaining relationship between them. On these facts, it would exalt form over substance to accord any weight to the Respondent’s payment of contractual wages and fringes to the one apprentice for a 4-week period. The preponderance of the evidence persuades us to find, in accordance with Oak Cliff-Golman and Caamano Bros., that the Respondent effectively repudiated the collective-bargaining agreement on March 3, 1992. Accordingly, the Respondent’s remedial obligations date from that time.

4. The judge found that the Respondent did not violate Section 8(a)(5) and (1) by its failure to deduct and remit union dues. Relying on the Union’s failure to submit checkoff authorization to the Respondent, the judge found that the Respondent had no checkoff obligation. We disagree.

As the judge correctly stated in his decision, the Act prohibits an employer from deducting and remitting union dues unless the employees has executed a written dues-checkoff authorization. Normally, the employer has no checkoff obligation until presented with a signed authorization. In this case, however, we have found that as of March 3, 1992, the Respondent repudiated its collective-bargaining relationship with the Union. It would have been futile for the Union to present dues-checkoff authorizations to the Respondent after the Respondent repudiated the contract. [7] Therefore, we find that after repudiating the contract on March 3, 1992, the Respondent violated Section 8(A)(5) of the Act by failing to deduct and remit union dues for those employees who had signed checkoff authorizations, and shall order the Respondent to remit to the Union dues for employees who signed checkoff authorizations as of that date. [8]

[Partial Dissent]

Member Stephens, dissenting in part: I agree with my colleagues in their resolution of all issues except that I would not issue a general reinstatement order to remedy the contract repudiation violation, [9] and, for the following reasons, I would find that the repudiation of the contractual relationship occurred on May 19, 1992, rather than, as my colleagues have found, on March 3, the date of the contract execution.

As the undisputed facts show, after signing the contract, the Respondent abided by it in part--accepting a referral (Marty Schuler) from the Union’s hiring hall and paying him wages and benefits pursuant to the contract. It seriously breached the contract in other respects, however, by evading the hiring hall in its use of two employees and by not paying contract wages and benefits to employees other than Schuler because of its ill-founded contention that the contract did not apply to them. This conduct clearly warranted a finding of unilateral contract modification in violation of Section 8(a)(5) and (1), but my colleagues’ conclusion that it warrants a finding of total repudiation of the contractual relationship is, in my view, based on a misreading of Board precedent.

In Oak Cliff-Golman Baking Co., 207 NLRB 1063, 1064 (1973), enfd. mem. 505 F.2d 1302 (5th Cir. 1974), cert. denied, 423 U.S. 826 (1975), the Board found that the respondent employer, like the Respondent here, violated Section 8(a)(5) by unilaterally modifying important provisions of the contract. As reflected in the Order adopted by the Board in that case, [10] the Board did not enlarge the contract modification violation into a broader finding of total contract repudiation and withdrawal from the bargaining relationship. The language on which my colleagues rely was employed to answer the respondent employer’s argument that breaches of contract should be dealt with solely through judicial enforcement procedures and should not be dealt with as unfair labor practices by the Board. The Board was making the point that it was acting within its statutory mandate in remedying an employer’s repudiation of a contract clause embodying so important a term and condition of employment as wages.

In Caamano Bros., 304 NLRB 24 (1991), also cited by my colleagues, the judge’s decision states that the respondent “admitted substantially” all the General Counsel’s evidence concerning contract repudiation, id. at 27, and defended solely on the meritless ground that it was not bound by the contract “at all.” Id. at 28. The Board adopted the judge’s decision with only two brief footnotes. Under the circumstances, it does not appear that the contract-repudiation-versus-contract modification issue presented here was actually argued and decided in Caamano Bros. Therefore, I do not regard the case as controlling precedent on that question.

In sum, I agree that the General Counsel proved by a preponderance of the evidence that the Respondent engaged in a total repudiation of the contract on May 19, 1992, when Williams rebuffed all attempts of Union Business Manager Terven to discuss apparent contract violations and ejected him from the premises with the declaration that he wanted no more workers from the union hall. I do not agree that the record establishes a total repudiation prior to that date.