G.M. Masonry Co.

(;. M. MASONRY CO. G. M. Masonry Co. and Southern California District Council of Laborers, affiliated with l,aborer's Inter- national Union of North America, AFL-CIO. Case 21 CA 16676 September 24. 1979 DECISION AND ORDER BY MEMBERS JENKINS. PNtL()O, AND) MURPItY On November 21, 1978, Administrative Law Judge Timothy D. Nelson issued the attached Decision in this proceeding. Thereafter, the Charging Party filed exceptions and a supporting brief, and the General Counsel filed limited exceptions and a supporting brief. 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, findings.' and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge and hereby or- ders that the complaint be, and it hereby is, dismissed in its entirety. I In adopting the Administrative Law Judge's Decision we disavow an) inference which may appear therein suggesting that the rationale of Dee Cee Floor Covering. inc and irs Alter Ego and/or Successor. Dagin.Akrah Floor Covering. Inc., 232 NLRB 421 (1977), is applicable to 9(a) bargaining rela- tionships. DECISION STATEMENT OF THE CASE TIMOTHY D. NELSON. Administrative Law Judge: This matter was heard by me in Los Angeles. California, on Sep- tember 14. 1978. On June 12, 1978. the Regional Director for Region 21 issued a complaint and notice of hearing in the above-captioned matter, based upon an unfair labor practice charge filed on May 17, 1978, alleging violations of Section 8(a)(5) and (I) of the National Labor Relations Act. as amended, 29 U.S.C. §151, et seq., herein called the Act. All parties have been afforded full opportunity to appear. to introduce evidence, to examine and cross-examine wit- nesses. and to file briefs.' Based upon the entire record. the briefs filed n behalf of the parties, and my observation of the demeanor of the witnesses I make the follo ing: FINDIN(GS OF A(CI I. JRISI)I( 'ION The complaint alleges, the answer admits, and I find that G. M. Masonry Co., hereinafter called Respondent. has been at all times material herein engaged as a masonry sub- contractor in the building and construction industry in Southern California with an office located in Santa Ana. California. During the representative 12-month period pre- ceding the issuance of the complaint Respondent performed services valued in excess of $50,000 for customers located within the State of California, each of which in turn annu- ally purchases and receives goods and products valued in excess of $50.000 directly from suppliers located outside the State of California. Therefore. I find that Respondent is and has been at all times material herein an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INV()I. EI) As alleged in the complaint and admitted by Respon- dent's answer thereto, at all times material herein Southern California District Council of Laborers, affiliated with La- borer's International Union of North America, AFL-CIO, herein called the Union, has been a labor organization within the meaning of Section 2(5) of the Act. I further find that Local Union No. 652. Laborers' International Union of North America. AFL. CIO. hereafter called Local 652. is and has been at all times material herein a labor organiza- tion within the meaning of Section 2(5) of the Act and is an affiliate of the Union. Ill. THE ISSUES Whether on and after April 25, 1978.2 Respondent was privileged in its admitted refusal to recognize the Union as the exclusive collective-bargaining representative of certain of its masonry employees, in its admitted repudiation of, and in its refusal to apply to those masonry employees the terms and conditions of employment embodied in a collec- tive-bargaining agreement entered into between Respon- dent and the Union on or about April 24. IV. THE A.LEGED UNFAIR LtABOR PRA( TI(IS The essentially uncontroverted background facts' are as follows: Respondent, Gary M. Gideon. d/b/a G. M. Ma- sonry Co.. performs masonry work primarily on apartments I The Union appeared at the hearing through counsel hut did not file a brief. Briefs were timel filed by the General Counsel and Respondent and received due consideration. 2 Unless otherwise specified all dates are In 1978 In m judgment, not all of the facts set forth hereinafter are relevant to my disposition of the case They are nevertheless included in deference to certain positions taken by the parties which require reference to them. 245 NLRB No. 54 267 DE('ISIONS O() NATIONAL LABOR RELA'IHONS BOARD and new housing tracts pursuant to subcontracts which it receives from general contractors. Respondent has no per- manent staff of' construction employees but, rather, hires them as it obtains subcontracts for specific projects. In July 1976, shortly after entering the subcontracting business. Respondent was engaged on a masonry job at an unspecified location or Comer C'onstruction Compalny. It had one employee working at the time and had been on the job for less than I week when Gideon was approached bh a representative from local 652. who asked Gideon if his em- ployee "was in the Union." After Gideon identified himself as a "nonunion contractor." the Local 652 representative said "either you sign the agreement . . . or I am going to shut down the job." As Gideon put it, being new to the business and out of concern for the impact that picketing might have on his ability to continue in business, he agreed to sign a labor agreement tendered by the representative. That agreement, signed by Giideon on July 6, 1976, was captioned "Brick Tenders Short-Form agreement." The Union and its affiliated local unions, including Local 652. were identified as the labor organizations party to that con- tract. The contract purported to cover all "mason tenders" (sometimes referred to as "brick tenders"). employed by signatory contractors or subcontractors working in a large geographical area encompassing Los Angeles Count? and the greater surrounding Southern California area. II con- tained, inter alia, a requirement that employees he hired pursuant to an exclusive nondiscriminatory referral system to be operated by the local unions comprising the Union. It also contained a union-security provision as well as provi- sion for contractor payments into health and welfare and pension trust funds on behalf of covered employees. By its terms the contract was effective between the dates of May 1, 1974, and June 15, 1977, with provision for automatic renewal on an annual basis thereafter absent 60 days' writ- ten notice prior to the scheduled June 15. 1977. expiration date of either party's desire to "modify, amend or negotiate changes." Thereafter, for each month in the period July 1976 to May 1977, Respondent made monthly trust contributions and filed regular monthly reports to the trust signed by Gideon and identifying employees on whose behalf contri- butions were being made. Respondent's trust contribution reports reflect payments having been made on behalf of no more than two employees in any given monthly period. It was further stipulated by the parties and I find that at all times during the period July 6, 1976. until at least June4 15. 1977, "the Union acquired and maintained a status as a representative of the majority of Respondent's employees." The manner in which said "majority" was acquired and maintained is not evident from the record, Presumably, however, such "majority" would occur in due course pursu- ant to Respondent's honoring of the exclusive hiring hall and union-security provisions of the contract in effect dur- ing that period. 4 In restating the parties' stipulation at the hearing I inadvertently referred to the date of "Jul/ IS, 1977." The correct latter date. as is plain froim the discussion which preceded my restatement, is June I5. 1977. Accordingly. I have set forth the correct date in the above finding. The record is silent as to any action which the Union may have taken to forestall automatic renewal of said con- tract in the period before June 15. 1977: however. on June 1,. 1977. Gideon mailed a letter to the Union. received in due course. which stated in pertinent part: Gentlemen: This is mv notification to ou that as of June 15, 1977 1 am terminating the contract I signed with the l.aborers' ocal t652. dated July 6, 1976. Thereafter, Respondent submitted a report on a standard reporting form to the above-mentioned trusts purporting to cover hours worked in the month of June 1977 which con- tained the names of no employees and which also contained the handwritten notation entered by Gideon: "agreement was cancelled period." Respondent did not file any further signed trust fund reports after the June 1977 reporting pe- riod, and, so far as this record discloses, it failed to make any trust contributions whatsoever, even though the record indicates that it continued to perfiorm subcontracting work on various jobs within the Union's jurisdictional area. The record further sketchily discloses that commencing on or about August 1, 1977. Local 652 picketed one of Respondent's projects at Placentia, Calilfornia. This resulted in the filing b Respondent, through its labor relations rep- resentative, M. K. Sullivan. of' three separately captioned unfair labor practice charges under Section 8(hb)(3) and (4)(B) of the Act. The 8(b)(3) charges included the allega- tion that Local 652 had sought to force Respondent to "sign an illegal contract to be negotiated by others." The charges were eventually the subject of an informal settlement agree- ment containing a nonadmission clause, approved by the Regional Director for Region 21 on September 19, 1977. In that agreement L.ocal 652 promised. inter alia, to bargain, "upon request." with Respondent in an appropriate unit set forth therein. Following the above-described settlement agreement in September 1977 Respondent had at least one subcontract- ingjob for Comer Construction Company at a site on Giar- den Grove Boulevard in the city of Orange, California. This work was performed sometime during the period Septem- ber 1977 to February 1978. This job was apparently per- formed on a "nonunion" basis, the record failing to indicate anything to the contrary. It appears that the work was only intermittently performed at that time due to an unusually rainy season. Respondent hired one Carlos Godinez in the first week of December 1977. Although Godinez was a member of the Union (or one of its constituent locals the record is not clear on this point), and Gideon was aware of this fct. Gideon hired him "directly" and not through the Union's hiring hall. The record does not disclose whether (iodinez was working on the project in the city of Orange or on some other project which Respondent may have had at the time of Godinez' commencement of employment, Gideon having no specific recollection on that point.5 5 Godinez was called as a witness by counsel for the General Counsel. hut he was not asked which project he had been working on when first hired. It could not have been the "Brea" project discussed below. since. bh stipulation olf the parties. Respondent did not begin operations at the Brea project until "the end ol January 1978" (see Resp. Exh 2. par. I). 268 G. M. MASONRY CO. There were no further contacts between Respondent and the Union after the August 1977 picketing of the Placentia project until on or about the following February I. At that time Respondent was working on a new construction job for Comer Construction Company in the city of Brea, Cali- fornia, which Respondent had begun at "the end of Janu- ary 1978" (see fn. 5). On February I Local 652 Business Agent Dave Atkinson had a conversation with Gideon at the Brea jobsite. The nature of said conversation is not evi- dent from the record. On the following day. February 2. pickets appeared at the Brea jobsite carrying signs bearing the legend: "Ron Comer Construction unfair to Laborers Local 652." 6 On February 7 Respondent, through its labor relations representative, Sullivan, filed charges with the Regional Di- rector for Region 21 in Cases 21 CC-2014 and 21 CE-201. naming not only the Union and Local 652 but also "Build- ing & Construction Trades Council of Orange County." The charges alleged, in substance, that the three above- named entities had violated Section 8(b)(4)(A) and (B) and 8(e) of the Act. The foregoing unfair labor practice charges were dis- missed by the Regional Director for Region 21 on February 23. That administrative dismissal was not appealed by Re- spondent. In dismissing the "CE" case the Regional Direc- tor noted: "there is insufficient evidence to establish that the picketing constituted a reaffirmation of any agreement violative of Section 8(e) of the Act or that any of the charged parties engaged in any conduct violative of Section 8(e) of the Act." With respect to the "CC" case, the Re- gional Director noted: "there is insufficient evidence to es- tablish that the picketing was for an object prohibited by Section 8(b)(4)(B) of the Act. Rather it appears that the picketing was primary activity privileged by the proviso to Section 8(b){4)(B) of the Act."' Following that legal skirmish Respondent continued to work for Comer Construction Company at the Brea jobsite without further contact with the Union until on or about April 19. During that period Godinez was employed con- tinuously. On March 17 an additional laborer, Reyes Jime- nez, was also hired. Jimenez, like Godinez, was hired di- rectly by Respondent "off the bank" as it were and not through the auspices of any hiring hall operated by the Union or any of its constituent locals.' I This finding is based on the unconiradicled testimony orGideon as to the content of the picket signs. Gideon had first been asked by the General Counsel whether "the Laborers' Union were picketing you on that project." Gideon answered: "yes they were." but he promptly corrected himself. say- ing that the pickets were against Comer Construction Company and bore the legend quoted above. 'The foregoing recital is mentioned here for the sole purpose of providing an understanding of the history of this case. It ought to be made clear. however, as I did at the heanng. that the Regional Director's conclusions as set forth in the February 23 dismissal letter do not constitute evidence as to the character of the picketing in question, nor are they binding upon me In any other respect. IThere is a probably immaterial conflict between the above finding and the written stipulation of the parties, received as Resp. Exh. 2, on this point. According to par. I I of the written stipulation. "G. M. began masonry op- erations at the Brea project at the end of January 1978. with three (3) em- ployees. two of whom were laborers and the third, a brick mason. These same three employees remained working for G. M. on the Brea project a all times material herein [Emphasis added.]" Specific evidence received at the On April 19 Local 652 picketed Respondent at its Brea project until April 24. 9 The picket signs stated: "G. M. Ma- sonry Unfair to Local 652. Not Paying Prevailing Wages and Fringe Benefits." On the morning of April 24. acting under pressure from his general contractor. Gideon sent word through one of the pickets that he wished to speak with Local 652 agent Atkinson about signing a contract. Later that morning Gideon and Atkinson spoke briefl. Gideon expressed a willingness to sign a new contract. pro- vided that the Union would agree to certain requests as follows: that the Union would abandon any claim it might have against Respondent for "retroactive pa" or "fines": that the Union would "clear" Godinez to work anywhere he wanted to: and that Jimenez would be permitted to join the Union and remain working for Respondent on the Brea project. Atkinson replied that he would "take care of' Re- spondent. and Gideon thereupon signed a new contract ten- dered by Atkinson. That new contract was a preprinted document captioned "Brick Tenders Short Form Agree- ment 1977-1982" containing terms substantiali\ identical to those in the earlier agreement which Respondent had signed in July 1976 but with different wage and fringe bene- fit rates. Its stated term was from July 1, 1977. through June 15. 1982. On April 25. however. Respondent filed a petition tor representation election in Case 21-RM-1892. failing to mention the existence of the contract with the Union signed on the preceding day. On Ma I . for reasons which are unclear on this record but which may be related to the filing of a companion charge under Section 8(b)(7)(C) of the Act. the Regional Director for Region 21 directed that an elec- tion be conducted in that "RM" case. On June 14. follow- ing the filing of the instant charge. however. the Regional Director issued on Order vacating direction of election and dismissing petition in the "RM" case stating, in pertinent part, as follows: subsequent investigation revealed that the object of the conduct giving rise to the aforementioned direction of election was not initial recognition but rather was the obtaining of a successor collective-bargaining agree- ment, that such a successor agreement was executed Iby the Union and Respondentl on April 24. 1977 [sic] * . . . * hearing based on Respondent's payroll records indicated that the second laborer. Jimenez. was hired on March 17 rather than at the beginning of the project "at the end of January 1978" Accordingly. I hase ignored the par- ties' stipulation in this particular respect. preferring instead to rely upon the more specific evidence received at the hearing. 9 Pursuant to charges filed by Respondent's representative on April 25 In Cases 31 CC 2038 1 and 21 CE-207, the Regional Director for Region 21 issued a consolidated complaint on May 25 which alleged. in substance. Ihat said picketing violated Sec. 8(b}4{A) and (e) of the Act because the picket- ing was for the alleged purpose of requiring Respondent to sign a contract containing. inter aia, provisions violative of Sec. 8(e). That matter is now pending before the Board pursuant to the parties' joint motion and an ac- companying stipulation of fact (which latter document was received in this case as Resp. Exh. 2. for supplementary background purposes). I denied Respondent's motion made at heanng to adjourn the hearing until such time as the Board had decided the foregoing cases. I hereby futher dens Respon- dent's renewed motion of similar effect made in its brief 269 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The aforementioned valid collective bargaining agree- ment between the parties acts as a bar to the holding of an election herein. Accordingly, I shall vacate the di- rection of election and dismiss the petition.' °] At all times since its execution of the April 24 contract, however, Respondent has failed to apply its terms to its employees and has refused to recognize and bargain with the Union as the representative of its employees. V. DISCUSSION ANI) ANALYSIS Although somewhat convoluted in a detailed retelling, the relevant background facts may be summarized as fol- lows. After signing an initial agreement with the Union in July 1976 Respondent honored that agreement until the fol- lowing June, during which time a majority of its employees on its various projects were represented by the Union. Since June 1977 and to date Respondent has performed subcon- tracting work on a new series of different projects using employees hired through its own devices who have received wages and benefits determined by Respondent unilaterally and without regard to the provisions of any union contract. Its execution of a new contract with the Union at the Brea project on April 24 signaled a change in Respondent's pat- tern of "nonunion" operations, but the April 24 contract was promptly ignored and disavowed thereafter, and Re- spondent has continued, in fact, to perform subcontracting work as if it had no obligation to recognize the Union or to honor the April 24 agreement. At no time on or after April 24 is there any affirmative indication that a majority of Respondent's employees at the Brea project desired repre- sentation by the Union. The most that the record shows in this regard is that one employee, Godinez, was a member of a local of the "Laborers" Union. A. Summary of the Parties' Contentions In addition to a secondary defense dealt with hereafter. Respondent argues primarily that the April 24 contract was a "pre-hire" agreement of the type contemplated by Section 8(f) of the Act" which, under previous Board rulings.'2 as 1' In so holding the Regional Director appears to have decided in a repre- sentation case context essentially the same question posed herein (see discus- sion, infra). To the extent that it might be argued that Sec. 102.67(f) of the Board's Rules and Regulations bars "relitigation" of that issue in this "re- lated subsequent" unfair labor practice case, I find that such an argument was waived by full litigation of the issue herein without objection from the General Counsel or the Union. See City Motor Cornpany. Inc., 214 NLRB 298 (1974); Barwood, Inc.. 209 NLRB 19 (1974). " Sec. 8(f) states in pertinent part: (f) It shall not be an unfair labor practice ... for an employer en- gaged primanly in the building and construction industry to make an agreement covering employees engaged .. in the building and con- struction industry with a labor organization of which building and con- struction employees are members ... because (I) the majority status of such labor organization has not been established under the provisions of section 9 of this Act prior to the making of such agreement .... Pro- videdfurther, That any agreement which would be invalid. but for clause (I) of this subsection, shall not be a bar to a petition filed pursuant to section 9(c) or 9(e). [Emphasis supplied.] I R. J. Smith Construction Co.., Inc., 191 NLRB 693 (1971), enforcement denied 480 F.2d 1186 (D.C. Cir. 1973); see also its companion, Ruttman Construction Company, etc., 191 NLRB 701, 702 (1971), wherein the Board ratified by the Supreme Court in Higdon Contracting Com- pany,' 3 Respondent was free to repudiate at will unless the Union in fact represented a majority of its employees at the time of repudiation. Noting that the record fails to reflect that a "majority", i.e., both of its then-employed laborers, desired representation by the Union, a prima flie burden which Respondent claims the General Counsel must shoul- der, Respondent contends that it was free under the forego- ing authorities to repudiate the April 24 contract on the day after its execution. The General Counsel contends that on April 24 the Union enjoyed a continuing "presumption" of "majority status" deriving from the contractual relationship in the year following the execution of the July 1976 contract, dur- ing which time a majority of Respondent's employees sup- ported the Union. Thus, conceding that no more than a repudiatable Sec- tion 8(f) relationship existed upon execution of the July 1976 contract, the General Counsel argues that the parties' relationship ripened into a full. "Section 9(a)" relationship which Respondent was not free to repudiate after the Union eventually commanded "majority" support among Respondent's employees. Under established principles. therefore. the General Counsel contends that Respondent had an obligation to recognize the Union when confronted with renewed demands in April. absent a "good faith doubt, based upon objective considerations"'4 that the Union no longer enjoyed majority support in the unit. The General Counsel further correctly argues that where such a "Section 9(a)" relationship exists the burden shifts to Re- spondent to show that there is a good-faith basis for doubt- ing the Union's majority-a burden which the General Counsel correctly notes is not ordinarily satisfied where, as here, it is simply shown that one of' two unit employees is not a "member" of the Union. In these circumstances, ac- cording to the General Counsel's theory'. the April 24 con- tract signed by Gideon was not a mere "pre-hire" agree- ment under Section 8(f) but was a valid, conventional, collective-bargaining agreement, carrying with it a full obli- gation on Respondent's part under Section 8a)(5) and (d) of the Act to recognize the Union and to implement its provisions during its term. described execution of a "pre-hire" agreement under Sec. 8(f ) as being "merely a preliminary step that contemplates further action for the develop- ment or a full bargaining relationship" ' N L.R.B. v. Local Union No. 103. Inrernationul sociaturion of Bridge,. Structural and Ornamental Iron Workers. AFL CIO (Higdan Conracting Co.) 98 S.Ct. 651 (1978). in which the Court stated (at p. 658) The employer's duty to bargain and honor the [Sec. 8(f)j contract is contingent on the union attaining majority support at the arious con- struction sites. '' Since the right to decline further recognition based on an employer's "good faith doubt," etc., exists only after a union contract has expired, this argument must assume, as I have for purposes of' this Decision. that the first contract had fully terminated upon its stated expiration date in June 1977. As a matter of law. that contract might still have been in effect immediately before the signing of the new agreement, in slew of the "automatic renewal" provisions contained therein and the fact that there is no evidence that it was terminated or opened for renegotiation in a timely fashion (that is. prior to the final 60 days of its stated term). The Union also appears to have assumed that Respondent's June 1. 1977, "termination" letter was effective. notwith- standing its contractual untimeliness, since it never claimed that a contract was in effect between it and Respondent between June 15. 1977. and April 24. 1978. 270 G. M. MASONRY CO. Addressing himself to Respondent's argument under Sec- tion 8(f), the General Counsel states that "Section 8(f) is applicable only to initial contracts," citing portions of the Decision of the Administrative Law Judge in Haberman Construction Company. 236 NLRB 79 (1978). as well as Bricklayers & Masons International Union. Local ,No. 3 (Eastern Washington Builders Chapter of A GC 162 NLRB 476 (1966). From that base, the General Counsel contends that the April 24 contract was a "successive" as opposed to an "initial" -agreement. carrying with it the irrehuttable presumption that the Union enjoyed majority status al the time of its execution. Accordingly. so the argument goes, Respondent was unable to invoke any right otherwise exist- ing under Section 8(f) to repudiate the April 24 contract and the attendant recognitional and bargaining relationship with the Union at any time during the term of the April 24 contract. B. Conclusions The General Counsel's argument is seriously flawed by the fact that it not only misconstrues the import of the Board's decision in Haberman, supra.' but it also omits ref- erence to what I deem to be dispositive Board precedent to the contrary. In Dee Ccce Floor Covering, Inc.. et al., 232 NLRB 421 (1978), as here, the employer and the construc- tion union involved had had a prior contractual relation- ship based on a contract signed in 1973. followed by em- ployment on subsequent projects of mostly union members and application of the 1973 contract's terms and benefits to those employees. In April 1975 the employer signed the same 1973 agreement with the same union but used a differ- ent business name. The Board found that the "employer" was the same in both instances--the changed business name having merely reflected an alter ego. When the em- ployer was awarded a new construction subcontract in Au- gust 1975 it refused to apply the April 1975 contract to workers employed on that new project. In disagreement with the Administrative Law Judge on this point, the Board found the April 1975 agreement to be no more than a Sec- tion 8(f) "pre-hire" agreement which was: not binding on the Respondent for purposes of Section 8(a)(5) until such time as the Union demonstrated that it enjoyed the support of a majorit of Respondent's em- ployees employed at the newl Ft. Riley project. [Dee Cee, supra at 422 Emphasis supplied.] Moreover, in language which appears to meet and dis- pose of the General Counsel's contrary contention in this case, the Board stated: Furthermore, the mere fact that the Union might in- deed have represented a majority of the employees at Respondent Dee Cee's previous jobsites is of no conse- quence inasmuch as the Union must demonstrate its ma- i~ In affirming the Administrative Law Judge's finding of a Sec. 8l(aiS) violation in Haberman, supra. the Board took pains not to rel on that por- lion of the judge's opinion on which the General Counsel has placed great reliance herein. See Haberman, supra at fn. I. There the Board rested its affirmance on the fact that the record affirmatively showed that the union had the support of the majonty of unit employees "at the time of repudl- ation." jorit ' at each news jobsuie in order to nvoke the provi- sions of Section 8(a)(5) of the Act. [Id. Emphasis supplied.', The lessons of Dee (C, supra, and Irin-McAKeh', .supra, seem plain enough, and they cannot he reconciled with the General Counsel's position herein. Those cases clearly re- quire a project-by-project inquiry into the majority status of' the construction labor organization which would invoke rights under Section 8(a)(5) of the Act. Such an inquiry may not be aided by a "continuing presumption" of major- ity status deriving from the labor organization's majorit' status on earlier projects but, rather, requires some atirma- tive indication that the labor organization enijosed majorit support on the project in existence at the time of' the alleged wrongful repudiation." Other cases cited by the General Counsel. Ealt.crn I .s/- ington Builders Chapter A GC, supra, and Dll~a Builing and Construction Trades (Counil ( Islla ( ountIr ( )s.tlru - lionl Emplovers' .ssociaio,. Inc.), 164 NI.RB 938 (1967), are not inconsistent with this approach. Both cases arose in clearly distinguishable factual and legal contexts. The Board did not, in either case. fcus on the question of the majority status of the unions involved ivi-a-vis the hargain- ing units in question. While it is true that in each case the Board suggested that the provisions of Section 8f) were not addressed to the types of "successive" bargaining relation- ships therein involved, it also appears that the Board as- sumed that the unions were the majority representatives in each unit based on the evidence reflecting an unbroken his- tory of' successive collective-bargaining agreements hich had been successively honored. Under such circumstances, a majority of employees on a project covered bhs a given union contract will ordinarily he members of the union in- volved bh the employ er's routine resort to the union's hiring hall and routine application of the union-securitl clause. il for no other reasons. Accordingly. I do not read those cases as creating a jural presumption of the tpe urged b, the General Counsel herein. Moreover. unlike the cases just discussed, as of April 24 Respondent and the Union had nlt been parties to a con- '6'Citing David F Iin, al. d H'a The Intl-,lf Ael' ( tmpani. 194 NLRB 52 (1971 ). entforcement dened In part 475 F 2d 1265 (3d Cir 1973). case cited by the General Counsel on brief herein. but which is otal! at odds with the proposition which he urges. It s true that the Board. In is McKelv,. upra. found that the employer therein had violated Sec (a)(5) hs repudiating a contract initially entered into pursuant to Sec (itI, hut it .iA critical to that result that the union was found, n act. to hase represented a majority of the employees emplo3er's employees ho were ,aorking n the project at the time of repudiation. See lnin tfcAcli . uprs at 53 h ,as underscored hb the fact that the Board noted that the contract in qllet'on would not present the employer from entering nto agreements .ith rlal unions and. [by inferencel. with no union at all "on any uhslqutn prWo- ects . so long as it did not employ at u(h proJet a 'ork hIrce iIt hich a majority were [members of the union with which the emploer hd signed the initial pre-hire agreementsl. [Emphasls supplied]" See /lr nit AcA. supra at 53 The Supreme Court appears to hase embraced this ers dltin, tion. uh rtlenlt., in the discussion of lInn-IlcAKeli contained n tlldt Contracting supra at 65R I This is not t say that "presumptions" night nt cme nlo pla is here. for example a union attains majorit support in the earlier stages oi a con- struction project or which it initially signed a prehire contract bat u here the signatory employer repudiates the agreement and the bargaining relationship later on in the same project due to an asserted ioss. n the meaintime. oit Hrih majorit) support the Board's comments in Haberman. ilprai at tn I uig- gest that such questions hase et to be finalls leiermined 271 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tinuous unbroken bargaining relationship involving succes- sive application of union contracts at all of Respondent's projects: and the signing of the April 24 agreement did not constitute a mere renegotiation in due course of an old agreement which had expired or was about to expire. More accurately, there had been no contract or bargaining rela- tionship between the parties fr almost I year prior to the signing on April 24 of a new contract.l While, based on the rule of Dee Cee, supra, this distinction would not appear material in any case, it must be observed that the General Counsel's characterization of the April 24 contract as merely "successive" involves a straining of the facts. Since the record fails to indicate that the Union enjoyed the support of a majority of the employees employed at Respondent's Brea, California, project at any time prior to Respondent's repudiation of the April 24 contract, I con- clude that such repudiation was lawful and privileged un- der Section 8(f) of the Act. See Dee Cee, supra. Accord- a" In this regard, I do not find persuasive the General Counsel's contention that Respondent's filing of an 8(b)(3) charge against the Union in August 1977 may be treated as proof' that the Union was entitled to recognition as the majority representative of Respondent's employees during the June 1977 to April 1978 hiatus period. While the charge and the informal settlement thereof may be taken as an indication that Respondent's labor relations representative. Sullivan. believed that such a relationship existed, it is just as possible that the charge was for the sole tactical purpose of minimizing the effects of picketing at the time. In any case, Sullivan's "assumptions" in this regard do not establish in law what did not otherwise exist in fact. With equal lack of logic, it could be argued that the fact that the Union never filed an unfair labor practice charge under Sec. 8(a)(5) during the period June 1977 to April 24, 1978. but. rather. resorted to picketing as the sle means of reestablishing a relationship with Respondent may be taken as evidence that the Union had no right to recognition as the statutory representative of Respondent's employees during that period. ingly. I shall recommend dismissal of the complaint in its entirety. In view of the foregoing disposition I do not find it neces- sary to consider Respondent's secondary defenses to its re- pudiation of the April 24 agreement based on claims that the agreement was void because it was signed under "du- ress" and/or in response to allegedly unlawful picketing un- der Section 8(b)(4)(A) of the Act for an object proscribed by Section 8(e) of the Act. CONCI.U;SIONS ()F LAW I. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union and Local 652 are both labor organiza- tions within the meaning of Section 2(5) of the Act. 3. Respondent did not commit unfair labor practices as alleged in the complaint by repudiating the April 24 con- tract and refusing to accord recognition to the Union there- after as the bargaining representative of its employees. Upon the foregoing findings of fact, conclusions of' law. and the entire record and pursuant to Section 10(c) of the Act I hereby issue the following recommended: ORDER' The complaint is dismissed in its entirety. 19 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings. conclusions. and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations. be adopted by the Board and become its findings. conclusions. and Order, and all objections thereto shall he deemed waived or all purposes, 272