V M Construction Co.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD V M Construction Co., Inc. and Orange County Dis- trict Council of Carpenters, United Brotherhood of Carpenters and Joiners of America, AFL-CIO Valdemar Montalvo, d/b/a V M Construction Co. and Los Angeles County District Council of Carpenters, United Brotherhood of Carpenters and Joiners of America, AFL-CIO. Cases 21-CA-16284 and 21- CA- 16354 March 29, 1979 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND TRUESDALE On October 19, 1978, Administrative Law Judge Richard J. Boyce issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions, and the General Counsel filed limited cross-excep- tions and briefs in support thereof and in answer to Respondent's exceptions. In addition, the Charging Parties filed answering briefs to Respondent's excep- tions. 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,2 as modified herein. I Because Respondent unilaterally abrogated the agreement with the Union at a time when the majority of the unit employees were union mem- bers, we find that Respondent's reliance on R. J. Smith Construction Co., Inc., 191 NLRB 693 (1971), and other cases involving contractual relation- ships under Sec. 8(f) of the Act is misplaced. The Board has not held that an employer is free to repudiate an 8(f) agreement where, as here, a majority of the unit employees supported the union at the time of repudiation. See, generally, N.LR.B. v. Local Union No. 103, International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO [Higdon Con- tracting Company], 434 U.S. 355 (1978). Accordingly, we find it unnecessary to consider, and do not rely on, the Administrative Law Judge's statement that the facts of this case "removle] the situation from conventional 8(f) analysis." Respondent has excepted to certain credibility findings made by the Ad- ministrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. 2Member Penello would limit the remedy herein to the duration of the projects under way at the time Respondent repudiated its agreement with the Union. To do otherwise would, in his view, go beyond the intent of Sec. 8(f) of the Act. Because an 8(f) agreement does not create a presumption of majority status, a union, to enforce the contract, must show that it represents a majority of employees. (Higdon Contracting Company, supra.) Where, as here, an employer hires on a project-by-project basis, majority status can be shown for only those projects then under way. Dee Cee Floor Covering, Inc., et al., 232 NLRB 421 (1977). Thus, Member Penello does not view an 8(f) 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, as modified be- low, and hereby orders that the Respondent, V M Construction Co., Inc., and Valdemar Montalvo, d/b/a V M Construction Co., Riverside, California, a single employer, its officers, agents, successors, and assigns, shall take the action set forth in the Adminis- trative Law Judge's recommended Order, as so modi- fied: 1. Delete paragraph l(d) and substitute the follow- ing: "(d)In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed them by Section 7 of the Act." 2. Delete paragraph 2(d) and substitute the follow- ing: "(d) Upon union request, make all contributions to the health and welfare, pension, vacation, and other trusts, retroactive to July 1, 1977, as required by the Memorandum Agreement and the Master Labor Agreement that became effective on that date." 3. Substitute the attached notice for that of the Administrative Law Judge. agreement, in these circumstances, as enforceable beyond the projects under way. Had Respondent herein waited until the projects had been completed, it would be free to repudiate its agreement with the Union. In Member Penello's view, the remedy ordered by the majority would interfere with Respondent's privileges under Sec. 8(f) of the Act. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing in which all parties had an opportuni- ty to present evidence, the National Labor Relations Board has found that we committed certain unfair labor practices and has ordered us to post this notice. We intend to abide by the following: Section 7 of the National Labor Relations Act gives all employees the following rights: To organize themselves To form, join, or support unions To bargain as a group through a representa- tive they choose To act together for collective bargaining or other mutual aid or protection To refrain from any or all such activity ex- cept to the extent that the employees' bargain- 241 NLRB No. 84 584 V M CONSTRUCTION CO. ing representative and employer have a collec- tive-bargaining agreement which imposes a lawful requirement that employees become union members. WE WILL NOT refuse to abide by the terms of our collective-bargaining agreement with the Southern California Conference of Carpenters, representing the district councils and local unions affiliated with the United Brotherhood of Carpenters and Joiners of America in the 11 southern California counties. WE WILL NOT refuse to recognize and bargain collectively, concerning wages, hours, and other terms and conditions of employment, with the Southern California Conference of Carpenters, or its designates, as the exclusive bargaining rep- resentative of employees in this appropriate unit: All carpentry employees, including craft fore- men, employed by the contractor within the work jurisdiction of the United Brotherhood of Carpenters and Joiners of America, AFL-CIO, in the area known as southern California, and more particularly described as the counties of Los Angeles, Inyo, Mono, Orange, Riverside, San Bernardino, Imperial, Ventura, Santa Bar- bara, San Luis Obispo, and Kern; excluding all noncarpentry employees, executives, civil engi- neers and their helpers, superintendents, assist- ant superintendents, master mechanics, time- keepers, messenger boys, office workers, or any other employee above the rank of craft foreman. WE WILL NOT unilaterally change any terms or conditions of employment of employees in the above unit during the life of any union contract without first reaching agreement with the Union about such changes. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of rights under the Act. WE WILL, upon union request, recognize and bargain with the Southern California Conference of Carpenters, or its designates, concerning the employees in the above-described unit. WE WILL, upon union request, rescind any or all unilateral changes made on and after July 1, 1977, in wages, hours, and other terms and con- ditions of employment of employees in the above-described unit. WE WILL, upon union request, give effect, retroactive to July 1, 1977, to any or all terms and conditions set forth in the memorandum agreement and the master labor agreement that became effective on that date, and make whole our employees and would-be employees for losses suffered by reason of our previous failure to comply with those agreements, including the hiring-hall provisions, with interest. WE WILL, upon union request, make all contri- butions to the health and welfare, pension, vaca- tion, and other trusts, retroactive to July 1, 1977, as required by the memorandum agreement and the master labor agreement that became effective on that date. V M CONSTRUCTION CO., INC. AND VALDE- MAR MONTALVO, D/B/A V M CONSTRUC- TION CO. DECISION STATEMENT OF THE CASE RICHARD J. BOYCE, Administrative Law Judge: This con- solidated matter was heard before me in Riverside and Los Angeles, California, on May 4 and 5 and June 5, 6, and 7, 1978. The charge in Case 21-CA-16284 was filed on De- cember 28, 1977, by Orange County District Council of Carpenters, United Brotherhood of Carpenters and Joiners of America, AFL-CIO. That in Case 21-CA-16354 was filed on January 30, 1978, by Los Angeles County District Council of Carpenters, United Brotherhood of Carpenters and Joiners of America, AFL-CIO. The consolidated com- plaint issued on February 16, 1978, was amended during the trial, and alleges certain violations of Section 8(a)(1), (3), and (5) of the National Labor Relations Act (Act) by V M Construction Co., Inc., and Valdemar Montalvo, d/b/a V M Construction Co., as a single employer. 1. JURISDICTION Valdemar Montalvo began business as a carpentry sub- contractor in April 1976. Until July 1, 1977, he operated out of Walnut, California, as a proprietorship under the style of V M Construction Co. He since has operated out of Riverside as a California corporation entitled V M Con- struction Co., Inc. The parties have stipulated that the pro- prietorship and the corporation are a single employer for purposes of this proceeding, and the two hereafter will be referred to as Respondent. Respondent annually purchases goods and materials of a value exceeding $50,000 from suppliers within California who had obtained such goods and materials directly from outside the State; and is an employer engaged in and affect- ing commerce within Section 2(2), (6), and (7) of the Act. I. LABOR ORGANIZATIONS The United Brotherhood of Carpenters and Joiners of America (United Brotherhood), the Southern California Conference of Carpenters (Conference), and the district councils (including the Charging Parties) and local unions affiliated with the United Brotherhood and the Conference, all are labor organizations within Section 2(5) of the Act. 585 DECISIONS OF NATIONAL LABOR RELATIONS BOARD t11. ISSUES The complaint alleges that between July I and December 30, 1977, Respondent departed from the terms and condi- tions of its bargaining agreement with the United Brother- hood and its affiliates, including the Charging Parties. "without prior notification to or bargaining with the United Brotherhood or any of its affiliates," thereby violating Sec- tion 8(a)(5) and ( ): and that its motivation in so doing was "to avoid hiring employees who were members of or repre- sented by the Union." making the same conduct violative of Section 8(a)(3) and (1). The answer denies any wrongdoing. IV. ilE AI.I.E(;E) UNFAIR lAHOR I'RA(II(TS A. Facts. Respondent's first job was as a rough-framing subcon- tractor on a condominium project in Los Angeles County. On April 13, 1976 a few days after the job's start- it en- tered into a memorandum agreement with the Conference, which is comprised of all district councils (including the Charging Parties) and local unions affiliated with the United Brotherhood in 11 southern California counties.' The memorandum agreement bound Respondent to "comply with all the terms... as set forth in the Agreement referred to as the Master Labor Agreement between South- ern California General Contractors and the United Broth- erhood ... dated July 27, 1974 .... " Among the terms of the master labor agreement were an 8-day union-security clause, provision for the operation of exclusive hiring halls by the affiliated local unions, and a requirement that cov- ered employers contribute to designated health and welfare, pension, vacation, and other trusts. The master labor agreement in essence defined the bar- gaining unit as follows: All carpentry employees, including craft foremen, employed by the Contractor within the work jurisdiction of the United Brotherhood of Carpenters and Joiners of America, AFI CIO, in the area known as South- ern California, and more particularly described as the coun- ties of Los Angeles, Inyo, Mono, Orange, Riverside, San Bernardino, Imperial, Ventura, Santa Barbara, San Luis Obispo, and Kern; excluding all noncarpentry employees, executives, civil engineers and their helpers, superinten- dents, assistant superintendents, master mechanics, time- keepers, messenger boys, office workers, or any other em- ployee above the rank of craft foreman. The complaint alleges, the answer admits, and it is concluded that this is an appropriate unit for purposes of the Act. The memorandum agreement, by its terms, was to "re- main in full force and effect until June 15, 1977, and shall continue from year to year thereafter, unless either party shall give written notice to the other of a desire to change or cancel it at least sixty (60) days prior to June 15, 1977, or June 15 of any succeeding year." The master labor agree- ment likewise was to run until June 15, 1977, and beyond absent appropriate notice of intent to change or cancel. The memorandum agreement specified that, unless the requisite I Namely. Los Angeles, Orange, San Bernardino, Riverside, Imperial. Ventura, Santa Barbara, San Luis Obispo, Kern, Inyo, and Mono. notice were given, the parties "shall be bound by any re- newals or extensions of the Master Labor Agreement .... or any new Agreements agreed to by the signatory parties to the Master Labor Agreement .... " Respondent adhered to the terms and conditions estab- lished by the master labor agreement, as concerns some but not all of its employees doing unit work, until July 1, 1977. With the adoption of the corporate mode on July 1., how- ever, it deemed itself to have escaped that commitment and stopped using union hiring halls altogether, making trust contributions, or otherwise respecting the previous commit- ment. This was done without notice to the United Brother- hood or any of its affiliates. By Montalvo's admission, a major, if not the sole reason, fobr forming the corporation was to escape the application of the memorandum agreement. The asserted provocation had been the refusal of one of the local hiring halls, in the spring of 1977, to "clear" an undisclosed number of workers to Respondent because of a dispute between the local and a prime contractor on a project on which Respondent was engaged. In that connection, the prime contractor, The Mize Company, wired the local on May 5 that it regarded the refusal to clear workers to Respondent "as a strike or refusal to honor your contract with" Respondent, and warned that, "unless this activity ceases immediately, we will withhold recognition of your local and hire help from any available source and continue said employment for the duration of the job." In the same connection, on May 6, M. K. Sullivan, a labor relations consultant acting for Re- spondent and another subcontractor on the project, filed an unfair labor practice charge against the local and two other labor organizations not here involved, alleging violations of Section 8(b)(4)(B) of the Act.2 As stated above, Respondent did not observe the terms and conditions established by the master labor agreement, even before July 1. 1977, with respect to all of its employ- ees. Some were treated as if they were independent contrac- tors being paid on a lump-sum basis. Nothing was withheld from their pay. and no contributions were made on their behalf to the union trusts. This practice is known as "lump- ing," and Respondent's engagement in it was clandestine- as shown by the maintenance of separate payroll records for these employees, the existence of which was disclosed belatedly and with reluctance during the trial. While lump- ing is common in the carpentry trade in southern Califor- nia, the record affords no basis for inferring that the United Brotherhood or its affiliates knew or should have known of Respondent's extensive indulgence in it. The record is in some doubt concerning the makeup of Respondent's complement on April 13, 1976, when it en- tered into the memorandum agreement. It is reasonably clear that there were five identifiable carpenters on the pay- roll at the time, of whom four then belonged to an affiliate of the United Brotherhood. The fifth applied for member- ship on April 22. Montalvo testified at one point that five others-reputedly lump-sum recipients-also were em- ployed on April 13, only to testify elsewhere that this was doubtful. Regardless, three of those five were union mem- 2 Case 21 -CC- 1867. 586 V M CONSTRUCTION CO. bers, as well. As of June 30, 1977. the last day Respondent gave heed to the memorandum agreement, it had 68 nonsu- pervisory carpenters, counting lump-sum payees, of whom 39 either were members of one or the other of the various affiliates or had applications under active consideration. Two of three supervisory foremen on June 30 also were members, with the membership of the third having been cancelled that very day. Respondent at times performed on more than one project at a time. There was some employee interchange from project to project, some employee carry- over from completed to new projects, and payroll records were not segregated by project. Although contending that its action was warranted by a lack of union majority status, Respondent proffered no ob- jective grounds for ever doubting majority. Neither Respondent nor any affiliate of the United Brotherhood tendered timely written notice of a desire to change or cancel the memorandum agreement. On July 8, 1977, the aforementioned M. K. Sullivan, purporting to represent Respondent and 32 other contractors, met for bargaining with Joseph Eickholt, business representative for the Los Angeles County District Council of Carpenters, at which time Eickholt refused to negotiate concerning con- tractors who had not given timely notice.' On December 30, 1977, Respondent entered into a new memorandum agree- ment, expressly adopting a new master labor agreement, which had gone into effect the preceding July I. B. Conclusions It is concluded, there having been no proper notice by either side of a desire to change or cancel the memorandum agreement entered into on April 13. 1976, that that agree- ment automatically renewed, and that Respondent thereby was bound by the master labor agreement that became ef- fective on July , 1977. Ted Hicks and Associates, Inc., 232 NLRB 717 (1977). It is further concluded that Respondent's unilateral repu- diation of its contractual commitment as of July 1, 1977, and the attendant unilateral change in various terms and conditions of employment, violated Section 8(a)(5) and (1) as alleged. Amado Electric, Inc., 238 NLRB 37 (1978); Haberman Construction Company, 236 NLRB 79 (1978): John E. Halkko d/b/a Lifetime Shingle Company, 203 NLRB 688 (1973); The Irvin-McKelvy Companv, 194 NLRB 52 (1971). Respondent's contention is rejected that its conduct was licensed by a lack of union majority at the time of repudi- ation, that contention turning on a mistaken factual prem- ise. Dee Cee Floor Covering, Inc., et al., 232 NLRB 421 (1977), in which the Board concluded that no violation had derived from an employer's repudiation of a prehire con- tract permitted by Section 8(f) of the Act, and in so doing stated that the union must demonstrate majority at each affected jobsite to render such repudiation unlawful, is in- Eickholt is credited that he took this position, Sullivan's testimony to the contrary notwithstanding. Eickholt's demeanor was convincing and his recall generally excellent. Moreover. in those instances in which his memory was uncertain. he candidly so stated, resisting the temptation to testify selr-serv- ingly further enhancing his credibility Sullivan did not evince a compara- ble degree of sincerity under oath. apposite. The repudiation in that case occurred between projects, when there were no employees on the payroll. In the present case, on the other hand, there not only were a payroll and a union majority at the time of repudiation, there was a union majority when the memorandum agree- ment was entered into, removing the situation from conven- tional 8(f) analysis. Beyond that, the appropriateness of a multiproject unit is established by the pleadings, obviating an assessment of majority at each project separately; by employee interchange among overlapping projects and carryover from completed to new projects: and by the non- segregation, by project, of payroll records. Cf. Haberman Construction Compan)', supra at fn. 5 and accompanying text. Respondent's added contention that any violations oc- curred outside the 6-month limitation period of Section 10(b) likewise is rejected. The first of the two charges herein was filed on December 28, 1977,-within 6 months of the repudiation. Moreover, Respondent gave neither the United Brotherhood nor any of its affiliates reason to know of the repudiation until some time after its occurrence, pre- sumably when the nonpayment of trust fund contributions assumed proportions suggestive of cessation as opposed to delinquency. As stated in Don Burgess Construction Corpo- ration, et al., 227 NLRB 765, 766 (1977): The period of limitations prescribed by Section 10(b) does not begin to run on an alleged unfair labor prac- tice until the person adversely affected is put on notice of the act constituting it. Finally. Respondent's contention is rejected that the re- fusal of the one local to clear workers from its hiring hall justified Respondent's action. The record fails to establish the numbers involved in the union refusal, making it impos- sible to evaluate its materiality in the context of the entire agreement, Respondent, far from declaring the agreement terminated because of this asserted breach, continued to adhere to the contractual obligation two or so months longer and then resorted to the device of incorporating in a misguided effort to escape the obligation. Inasmuch as the remedv would not be affected by a find- ing that Respondent's conduct violated Section 8(a)(3) as well as 8(a)(5), there is no need to address the General Counsel's allegation that it did. CON(CIUSIONS OF LAW I. By repudiating the memorandum agreement and the master labor agreement incorporated therein that became effective on July 1., 1977, and by unilaterally changing cer- tain terms and conditions of employment as an incident of that repudiation, as found herein. Respondent engaged in unfair labor practices violating Section 8(a)(5) and (I) of the Act. 2. These untfair labor practices affect commerce within Section 2(6) and (7) of the Act. 3. It is unnecessary to pass on the allegation that Re- spondent violated Section 8(a)(3) of the Act. 587 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER4 The Respondent, V M Construction Co., Inc., and Valde- mar Montalvo, d/b/a V M Construction Co., a single em- ployer, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Refusing to abide by the terms of its collective-bar- gaining agreement with the Southern California Conference of Carpenters, representing the district councils and local unions affiliated with the United Brotherhood of Carpen- ters and Joiners of America in the 11 southern California counties. (b) Refusing to recognize and bargain collectively, con- cerning wages, hours, and other terms and conditions of employment, with the Southern California Conference of Carpenters, or its designates, as the exclusive bargaining representative of the employees in this appropriate unit: All carpentry employees, including craft foremen, employed by the contractor within the work jurisdiction of the United Brotherhood of Carpenters and Joiners of America, AFL- CIO, in the area known as Southern California, and more particularly described as the counties of Los Angeles, Inyo, Mono, Orange, Riverside, San Bernardino, Imperial, Ven- tura, Santa Barbara, San Luis Obispo, and Kern; excluding all noncarpentry employees, executives, civil engineers and their helpers, superintendents, assistant superintendents, master mechanics, timekeepers, messenger boys, office workers, or any other employee above the rank of craft foreman. (c) Unilaterally changing any terms or conditions of em- ployment of employees in the above unit during the life of any union contract without first reaching agreement with the Union about such changes. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of rights under the Act. 2. Take this affirmative action: (a) Upon union request, recognize and bargain with the Southern California Conference of Carpenters, or its desig- nates, concerning the employees in the above-described unit. (b) Upon union request, rescind any or all unilateral All outstanding motions inconsistent with this recommended Order hereby are denied. 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 be deemed waived for all purposes. changes made on and after July 1, 1977, in wages, hours, and other terms and conditions of employment of employ- ees in the above-described unit. (c) Upon union request, give effect, retroactive to July 1, 1977, to any or all terms and conditions set forth in the memorandum agreement and the master labor agreement that became effective on that date, and make whole its em- ployees and would-be employees for losses suffered by rea- son of its previous failure to comply with those agreements, including the hiring-hall provisions, with interest., (d) Upon union request, make all contributions to the health and welfare, pension, vacation, and other trusts, re- troactive to July 1, 1977, as required by the memorandum agreement and the master labor agreement that became ef- fective on that date, with interest. (e) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records neces- sary to analyze the amounts owing under the terms of this Order. (f) Post at its offices and jobsites English- and Spanish- language copies of the attached notice marked "Appen- dix."6 Copies of said notice, on forms provided by the Re- gional Director for Region 21, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and shall be maintained by it for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to em- ployees customarily are posted. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (g) Notify the Regional Director for Region 21, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. The allegation that Respondent violated Section 8(a)(3) of the Act is dismissed. I Backpay for those incurring loss because of Respondent's noncompliance with the hiring-hall provisions shall be computed in accordance with F. W. Woolworth Company. 90 NLRB 289 (1950). Interest, wherever provided for, shall be computed as prescribed in Florida Steel Corporation, 231 NLRB 651 (1977). See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). 6 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 "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 588