The Irvin-McKelvy Co.

52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD David F. Irvin and James B. McKelvy, partners, d/b/a The Irvin-McKelvy Company and International Union of District 50, Allied and Technical Workers of the United States and Canada 1 and United Mine Workers of America,2 Party to the Contract. Case 6-CA-4659 November 6, 1971 DECISION AND ORDER* BY CHAIRMAN MILLER AND MEMBERS FANNING, JENKINS, AND KENNEDY On February 19, 1970, Trial Examiner Robert Cohn issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel, the Respondent, and the Party to the Contract filed exceptions to the Trial Examiner's Decision, together with supporting briefs. The Res- pondent later filed a reply brief and the Party to the Contract filed an answering brief. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, the briefs, and the entire record in the case, and hereby adopts the findings,3 conclusions, and recommendations of the Trial Examiner, as herein modified. The Respondent is in the business of building preparation and material handling facilities for coal mine operators in the bituminous coal mine fields, and employs approximately 18 employees. These employees were not represented for collective-bar- gaining purposes by any labor organization prior to June 1964. At that time it became necessary for Respondent to recognize District 50 or the Mine Workers in order to obtain work. Accordingly, in 1964, Respondent signed a collective-bargaining agreement with District 50 covering Respondent's construction employees. This contract contained a union-security clause, and the Company also deduct- ed dues from the employees and remitted them to District 50. In October 1966 the same parties signed a supplemental agreement which related solely to * On June 1, 1972, the Board granted Respondent's Motion To Clarify Order of the National Labor Relations Board and ordered that By its Decision and Order , the Board intended that when the Respondent, on any project, new or old, continues to use a work complement constituting an appropriate unit of which a majority continues to consist of members of District 50, the Respondent is not free to sign a contract with the United Mine Workers of America, or any other labor organization covering the said unit. wages. On June 27, 1967, the parties adopted an industrywide contract which had been negotiated and executed between the Coal Mine Construction Con- tractors Association, Inc. (herein called CMCCA), and District 50, which was effective June 1, 1967, to May 31, 1970. The contract, which covered the same employees as the June 1964 agreement, also contained a union-security clause and checkoff clause. In late 1968 Respondent was advised by several of its customers that in order to get their business the work would have to be done with Mine Workers labor. Thereupon the Respondent joined the Associa- tion of Bituminous Contractors (herein called ABC), and was thereby able to avail itself of an agreement between ABC and the United Mine Workers negotiat- ed on December 10, 1968, although Respondent's contract with District 50 still had another year and 5 months to run. Respondent's contract with District 50 contained a "most favored nations" clause, which in effect stated that if District 50 executed any contract or agreement with any employer performing construction work in coal mine lands and said contract was more favorable in its provisions than any of the provisions contained in the CMCCA-District 50 contract, which Respon- dent had adopted, that any employer signatory to the CMCCA contract may have identical provisions inserted in its contract upon request and such provisions shall immediately become in full force and effect. On October 29, 1968, District 50 entered into a contract with Zeni-McKinney-Williams Corporation, an employer-member of the CMCCA. That agree- ment provided that the employer would become a party to and abide by all the terms and provisions of the CMCCA contract with District 50 except that it was a "project agreement" rather than an agreement running from June 1967 to May 31, 1970. On December 9, - 1968, the general counsel of CMCCA notified District 50 that it considered the "project agreement" provision of the Zeni-McKin- ney-Williams contract to be more favorable than the fixed term provision in the CMCCA contract and that, pursuant to the "most favored nations" clause the existing agreement was binding on the employer members only for the period of time required for the construction of the particular project presently being worked on. On December 27, 1968, the president of District 50 disagreed with the CMCCA interpretation i Herein called District 50 The name of the Charging Party is hereby corrected in the caption and wherever it appears to conform to its constitutional change of name. 2 Herein called Mine Workers 3 The Respondent and the Party to the Contract have requested oral argument. This request is hereby denied because the record, the exceptions, and the briefs adequately present the issues and positions of the parties. 194 NLRB No. 8 THE IRVIN-Mc KELVY COMPANY 53 of the said "most favored nations" clause and said that the CMCCA contract should remain in full force and effect until its expiration on May 31, 1970. However, the general counsel of CMCCA thereafter informed the Respondent that after completion of each project on which it was then working, it would be free to apply the contract which had been negotiated between ABC and the Mine Workers. As Respondent had three or four different jobs going it decided to commence recognition of the Mine Workers on April 1, when essentially all of the major portions of any work that it was doing would be terminated. After April 1, Respondent recognized the Mine Workers as the collective-bargaining agent of its construction employees, who were the same employ- ees who had been previously covered by the District 50 contract, and applied the contract which had been negotiated by ABC with the Mine Workers. At issue here is whether Respondent violated Section 8(a)(1), (2), (3), and (5) of the Act when, on or after April 1, 1969, Respondent applied the provision of a collective-bargaining agreement it had with the United Mine Workers rather than a collective-bar- gaining agreement it had with District 50. Respondent contends that its contract with District 50 was illegal because District 50 was an illegally assisted Union. It further contends that the contract was not binding after March 31, 1969, the point at which substantially all of Respondent's projects started during the term of the contract were finished, because of the invocation of the "most favored nations" clause making the agreement a "project agreement." The Board is not in agreement with Respondent's contention that District 50 was an illegally assisted Union. Although District 50 did not show that it had majority status at the time it executed any of its contracts with Respondent, such contracts are specifi- cally allowed in the construction industry by Section 8(f) of the Act. Therefore, the contract between Respondent and District 50 was a lawful contract. We find merit in Respondent's contention that the invocation of the "most favored nations" clause after District 50 entered into a "project only" agreement with a competitor of Respondent caused its contract with District 50 to become a project agreement. Therefore, at the termination of each project on which it was then working, it was free to terminate its relationship with District 50. Respondent was not, however, free to withdraw recognition completely from District 50 on March 31, 1969, as not all projects were completed, and District 50 members were working on the incompleted projects. 4 R. J. Smith Construction Co, Inc, 191 NLRB No. 135 5 Virginia Electric and Power Company v. N.L.R.B., 319 U.S. 533. Although we have held that an 8(f) contract, standing alone, creates no presumption of majority status,4 in the instant case it is conceded that all of Respondent's unit employees were members of District 50 by virtue of compliance with the union- security clause in the contract. Therefore, District 50 was still the representative of employees working on projects which carried over after March 31 where Distnct 50 had majority status, and Respondent was thus obliged to negotiate with District 50 over the employees on these projects. It was not free at those projects to take any unilateral action with respect to wages, hours, or conditions of employment or to withdraw recognition and confer it on another union. By its action on March 31, and thereafter, of ceasing recognition altogether of District 50, and of recogniz- ing the UMW as the representative of the employees working on the projects not yet completed where District 50 had majority status, Respondent violated Section 8(a)(5) and 8(a)(2) of the Act. Further, it was in violation of Section 8(a)(3) and (1) because of its conduct in requiring employees on projects still in progress to join the UMW as a condition of continued employment. The termination of the District 50 contract, howev- er, did leave Respondent free to enter into genuine prehire 8(f) agreements on any subsequent projects with any union it wished, so long as it did not employ at such projects a work force of which a majority were District 50 members. The General Counsel excepts to the Trial Examin- er's refusal to reimburse the employees for dues, initiation fees, and assessments which they were required to pay to the Mine Workers pursuant to the union-security and checkoff provisions of Respon- dent's contract with this Union. We find merit in this exception. Since Respondent unlawfully executed and applied the Mine Workers agreement to projects where District 50 had majority status employees on these projects who were compelled thereunder to join and maintain membership in such labor organization as a condition of employment are entitled to reim- bursement for moneys thus exacted from them.5 Employees who were already members of the Mine Workers when employed by Respondent are not entitled to this reimbursements Identification of these employees shall be left for determination in the compliance stages of this proceeding. In view of our findings of fact and law herein, we also find that the Recommended Order of the Trial Examiner is in part inappropriate. We will therefore order that Respondent take the appropriate action necessary to bring it in compliance with our findings herein. 6 Cowles Communications, Inc., 170 NLRB 1596, fn. 3. 54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, David F. Irvin and James B. McKelvy, Partners, d/b/a The Irvin-McKelvy Company, Indiana, Penn- sylvania, its agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain with District 50 at any time when that labor organization is lawfully entitled to recognition on any of Respondent's projects. (b) Assisting or contributing support to the Mine Workers, or any other labor organization, on any projects where District 50 is the lawful representative of the employees. (c) Giving effect to the contract with the Mine Workers or any modification, renewal, or extension thereof on any projects covered by Respondent's contract with District 50. (d) Requiring membership in the Mine Workers as a condition of employment on any projects covered by Respondent's contract with District 50, or in any manner interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed by Section 7 of the Act, except to the extent that such rights may be affected by a valid contract requiring membership in a labor organization as a condition of employment. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Withdraw and withhold recognition from the Mine Workers as the collective-bargaining represent- ative of Respondent's employees who are working on projects covered by the District 50 contract unless and until such labor organization shall have been certified by the National Labor Relations Board. (b) Reimburse its employees working on projects covered by the District 50 contract who were not already - members of the Mine Workers for all initiation fees, dues, and other moneys which they were required to pay under the terms of the Mine Workers union-security agreement applied subse- quent to April 1, 1969. (c) Continue to bargain with District 50 and to give effect to and abide by its contract with District 50 until the completion of any projects covered by such contract. (d) Post at its premises in Indiana, Pennsylvania, and at each of its projects copies of the attached notice marked "Appendix." 7 Copies of said notice, on forms provided by the Regional Director for Region 6, after being duly signed by Respondent's representa- 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 be changed to read "Posted tive, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 6, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that all allegations of the complaint not specifically found to be in violation of the Act be, and they hereby are, dismissed. MEMBER FANNING, concurring in part and dissenting in part: I concur with the majority's findings of violations of the Act, as far as they go. However, I would go further and agree with the Trial Examiner that Respondent was in violation of the Act on and after March 31, 1969, for ceasing recognition of District 50, recogniz- ing the Mine Workers and applying the contract with that Union, and causing its employees to join the Mine Workers as a condition of employment. These violations were present after March 31, not only on projects where District 50 had majority status but on any of Respondent's projects thereafter where Res- pondent recognized the Mine Workers prior to the proper termination date of its contract with District 50. I am not in agreement with the majority conclusion that, because of the invocation of the "most favored nations" clause, Respondent was free to change its long-term contract with District 50 to a "project agreement" and cease relations-with District 50 upon completion of each project. Rather, I agree with the Trial Examiner's finding that the parties did not intend at the time of the making of the agreement that the "most favored nations" clause should be invoked to shorten the term of the contract. Therefore, the contract remained in full force and effect after March 31 and was so at the time Respondent extended recognition to the Mine Workers. Moreover, the evidence shows that the Respondent herein has a substantially stable work force which had for almost 5 years been represented by a labor organization with which the Respondent had continu- ous collective-bargaining agreements. In such an instance, it is reasonable to infer that the employees have vested interests in benefits and programs offered by a union such as pension funds, insurance plans, and numerous other supplemental benefits, which interests are jeopardized, or least made much more pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board." THE IRVIN-Mc KELVY COMPANY 55 costly for the employee, by the unilateral action of the employer in ceasing recognition of that union and recognizing another union as the collective-bargain- ing representative ^ of these employees. Such action is grossly unfair to these employees, and I cannot conclude that Congress intended the application of Section 8(f) to result in such a detrimental and inequitable forefeiture of the rights and benefits vested in employees by virtue of a contract authorized by that section of the Act. The majority states that Respondent is free to apply any contract it wishes on any new projects, as long as it does not employ a work force made up of a majority of District 50 members. This is stated after finding that Respondent's complete construction work force was made up of District 50 members. It appears to me that this conclusion by the majority leaves the Respondent in a position whereby it can use the work force it has had for years only if these employees switch their union affiliation to the union recognized by Respondent on that project. In other words, the continued employment of the Respondent's employ- ees would be conditioned on their repudiation of membership in District 50 and acceptance of mem- bership in the Mine Workers. Such action by the Respondent of giving its work force such an alterna- tive would appear on its face to be yet another violation of Section 8(a)(3). Based on all the foregoing and in accordance with the dissent in R. J. Smith Construction Co., Inc., supra., I would find that the Respondent violated Section 8(a)(1), (2), (3), and (5) of the Act by failing and refusing to apply the District 50 agreement after March 31, 1969, and by executing and applying an agreement with the Mine Workers, including a union- security provision, on and after April 1, 1969. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial in which both sides had the opportunity to present their evidence, the National Labor Rela- tions Board has found that we violated the law and has ordered us to post this notice and to keep our word about what we say in this notice. WE WILL withdraw and withhold recognition from the United Mine Workers of America and cease giving effect to the December 1968 contract with that organization, or to any renewal or extension thereof, on any of our projects which are covered by our contract with International Union of District 50, Allied and Technical Workers of the United States and Canada, until such time as the United Mine Workers of America shall have been certified by the National Labor Relations Board. WE WILL reimburse our employees working on projects covered by the District 50 contract who were not already members of the United Mine Workers of America for all initiation fees, dues, and other moneys which they were required to pay under the terms of the Mine Workers union- security agreement applied subsequent to April 1, 1969, with interest at the rate of 6 percent per annum. WE WILL NOT refuse to bargain with Interna- tional Union of District 50, Allied and Technical Workers of the United States and Canada, at any time when it is lawfully entitled to recognition, and WE WILL give effect to our contract with such Union until its termination, or any extension thereof. WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist International Union of District 50, Allied and Technical Workers of the United States and Canada, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining, or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such rights may be affected by a valid agreement requiring membership in a labor organization as a condition of employment con- sistent with Section 8(a)(3) of the Act. Dated By DAVID F. IRVIN AND JAMES B . MCKELVY, PARTNERS, D/B/A THE IRVIN-MCKELVY COMPANY (Employer) (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted'for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 1536 Federal Building, 1000 Liberty Avenue, Pittsburgh, Pennsylvania 15222, Telephone 412-644-2977. 56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD TRIAL EXAMINER'S DECISION III. THE UNFAIR LABOR PRACTICES STATEMENT OF THE CASE ROBERT COHN, Trial Examiner: This case was heard before me in Pittsburgh, Pennsylvania, on December 18, 1969,1 upon a complaint and notice of hearing, dated November 18, issued by the General Counsel of the National Labor Relations Board through the Regional Director for Region 6, and an answer filed on behalf of David F. Irvin and James B. McKelvy, Partners, d/b/a The Irvin-McKelvy Company (herein the Respondent or Company) dated November 28 .2 The principal issue presented is whether Respondent violated Section 8(a)(1), (2), (3), and (5) of the National Labor Relations Act, as amended (herein the Act), when, on or about April 1, it ceased to recognize District 50 as collective-bargaining representative of its construction employees and commenced recognizing United Mine Workers of America (herein U.M.W. or the Mine Workers) as collective-bargaining representative of the same employ- ees. At the hearing, all parties were given full opportunity to present evidence, to examine and cross-examine witnesses, to argue orally on the record, and to file briefs. Oral argument was waived. Helpful, posthearing briefs have been received from counsel for the General Counsel and counsel for the Respondent, which have been carefully considered. Upon the entire record in the case,3 including my observation of the witnesses and their demeanor, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE COMPANY Respondent is a partnership engaged in construction work in and about coal mines, with its principal office located in Indiana, Pennsylvania. During an annual period, Respondent receives goods and materials valued in excess of $50,000 directly from outside the Commonwealth of Pennsylvania for use within said State. I find, as the Respondent concedes, that the Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED The complaint alleges, the answer admits, and I find, that District 50 and Mine Workers are now, and have been at all times material, labor organizations within the meaning of Section 2(5) of the Act. 1 All dates hereinafter refer to the calendar year 1969 unless otherwise specified. 2 The original charge was filed by International Union of District 50, United Mine Workers of America (herein District 50) on July 9, amended November 17 3 On January 20, 1970, counsel for the General Counsel filed with the Trial Examiner a motion to correct the transcript of proceedings in a A. Background The facts giving rise to the issues in this case are not essentially in dispute, and may be summarized as' follows: As previously noted, the Respondent is a contracting firm engaged primarily in the business of building preparation and material handling facilities for coal mine operators in the bituminous coal mine fields. The principal classifica- tions of workers employed are welders and steelworkers, which numbered approximately eighteen (18) as of the time of the hearing. (Resp. Exh. 2.) Prior to June 1964, Respondent's employees were not represented for collective-bargaining purposes by any labor organization. However, at that time, according to the uncontradicted testimony of James B. McKelvy (a partner in the enterprise), the Company became involved in some contract work in the State of Ohio and the partners were informed that they could not do the work unless they were affiliated with either District 50 or the Mine Workers. Accordingly, McKelvy contacted an official of District 50 and subsequently signed a collective-bargaining agreement with that organization covering the Respondent's construc- tion employees. That contract contained a union-security clause, and the Company also, upon authorization, deducted dues from the employees and remitted them to District 50. On October 30, 1966, the same parties signed a supplemental agreement to the June 1964 agreement, which related solely to wages. On June 27, 1967, the parties, indicating a mutual desire to -become parties to an industrywide agreement, adopted the industry contract which had been negotiated and executed between the Coal Mine Construction Contractors Association, Inc. (herein CMCCA) and District 50, which was effective June 1, 1967, to May 31, 1970. That contract, covering the same employees of the Respondent who were encompassed under the June 1964 agreement, also contained union-security and checkoff clauses which were, as far as the record shows, complied with by the Respondent .4 B. Events Leading up to Recognition of the Mine Workers 1. Respondent becomes a member of ABC In October 1968, an event occurred which was to have a significant impact upon the Respondent's business opera- tions, for in that month a contract was signed between the coal mine operators and the Mine Workers (known as the National Bituminous Coal Wage Agreement of 1968) which contained a section entitled "Construction Work," as follows: All construction of mine or mine-related facilities certain respect, which motion was served on all other parties to the proceeding. No opposition to such motion having been filed with me, and the contents of the motion being in accord with the recollection of the Trial Examiner, the motion is hereby granted. 4 Although the Respondent adopted the collective-bargaining agreement negotiated by CMCCA, the Company never became a member of that association. THE IRVIN-Mc KELVY COMPANY including erection of mine tipples and sinking shafts which is not performed by the operator may be performed by such outside contractors as are designat- ed by the operator and such work will be under the jurisdiction of the United Mine Workers of America in the manner and to the extent permitted by law.5 Respondent was advised by several of its customers (coal mine operators) that in order to get business, the work would have to be done with United Mine Workers of America labor. Whereupon, in late 1968 or early 1969, Respondent joined the Association of Bituminous Contrac- tors (herein called ABC), an organization which had been formed to negotiate collective-bargaining agreements on behalf of its members with the Mine Workers. As a member of ABC, Respondent was able to avail itself of the agreement which ABC had negotiated with the Mine Workers on December 10, 1968. However, Respondent was obviously not in a position at that time to recognize the Mine Workers as collective-bargaining representative of its employees because of the existence of its agreement with District 50 which had another year and 5 months to run. Nevertheless, at or about this time, an event occurred which Respondent seized upon as a lever to terminate its contract with District 50. These events may be described as follows. 2. The implementation of the "most favored nations" clause Article XIV, section 3, of the CMCC-District 50 contract (which Respondent had adopted), provides as follows: In the event any contract or agreement is executed on or after the date of this agreement between the union and any employer (as that term is defined in this agreement) performing construction work on coal mine lands, and said contract or agreement is more favorable to the employer in its provisions than any of the provisions of this agreement, then the Association or any employer who is signatory hereto may have identical provisions inserted in this agreement upon request and said provisions shall immediately become in full force and effect.6 On October 29, 1968, District 50 entered into an agreement with a contractor named Zeni-McKinney- Williams Corporation, an employer-member of the Coal Mine Construction Contractors Association, which agree- ment covered the construction of a coal washing plant project for the Consolidation Coal Company, at Rowland, West Virginia. That agreement provided that the employer would become a party to and abide by all the terms and provisions of the Association contract with District 50 "for the period of time required for the construction of the aforementioned coal washing plant." In other words, Zeni- McKinney-Williams and District 50 entered into an agreement incorporating all the terms and provisions of the Association agreement except for the term thereof (June 1, 1967, to May 31, 1970), and their agreement thereby became what is known in the industry as a "project agreement." Pursuant to its contractual obligations with CMCCA, the 5 G.C. Exh. 6, p 14. 6 This paragraph is commonly referred to as a "most favored nations" 57 president of District 50, on November 5, 1968, notified CMCCA of the aforesaid agreement with Zeni-McKinney- Williams. Whereupon, on December 9, 1968, E. Riley Casey, Esq., secretary and general counsel of CMCCA, dispatched a letter to the president of District 50. This letter noted that the Union and Zeni-McKinney-Williams had recently entered into a project agreement ; that CMCCA considered the terms thereof more favorable to it than the existing contract; and that therefore pursuant to the "most favored nations" clause above quoted, the existing agreement was to be binding on the employer-members only "for the period of time required for the construction of the particular project they may presently be working on." In other words, CMCCA took the position that the project clause in the Zeni-McKinney-Williams agreement was more favorable to CMCCA than the long-term contract presently existing, and therefore requested that such clause be immediately inserted in the Association agreement instead of the termination clause presently existing. On December 27, 1968, the president of District 50 responded to Casey disagreeing with his interpretation of the said "most favored nations" clause, and argued that the existing contract between District 50 and CMCCA should remain in full force and effect until its expiration on May 31, 1970. Nevertheless, Casey, as secretary and general counsel to ABC, explained to James McKelvy of the Respondent, in early 1969, the effect of the conversion of the CMCCA-Distnct 50 contract from a term to a project contract, and advised McKelvy that at the completion of each project on which he was then working he would be free to apply the contract which had been negotiated between ABC and the Mine Workers. Having been advised that his contract with District 50 had been converted to a project-type contract rather than a term contract, McKelvy ceased applying the District 50 contract on March 31 and commenced recognition of the Mine Workers on April 1. McKelvy explained that Respondent determined to switch over from District 50 to the Mine Workers at one particular time rather than project by project ". . . since most of our men were on location, 3 or 4 different jobs, that it would probably be more convenient to all concerned, to establish the date, we would simply cut off all District 50, and go into UMWA as of that date, and that date was determined to be April 1, 1969." McKelvy further explained that although all the projects had not been entirely completed on that date, ". essentially all of the major portions of any work that we were doing had terminated by or about on April 1, one project carried over for a few days into April." Accordingly, after April 1, Respondent recognized the Mine Workers as the collective-bargaining representative of its construction employees, who were the same employees that had been previously covered by the District 50 contract, and thereafter Respondent applied the contract which had been negotiated by ABC with the Mine Workers. According to such agreement, Respondent deducted dues from its employees and submitted same to the Mine Workers.7 clause. r It appears from Resp. Exh 2 that as of April 1 Respondent's (Continued) 58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. ANALYSIS AND CONCLUDING FINDINGS A. The Appropriate Unit The complaint herein alleges the following unit as appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act: All construction employees of Respondent working on construction jobs, but shall not include start-up technicians, guards, technicians employed by original equipment manufacturers, persons engaged in engineer- ing or clerical work, timekeepers, superintendents, assistant superintendents, general foremen and fore- men. Although the foregoing allegation was denied in the answer to the complaint filed on behalf of the Respondent, it appears that the unit description corresponds substantial- ly with that contained in the collective-bargaining agree- ment originally signed by Respondent and District 50 in June 1964, and there is no evidence that such unit was changed from that time until the Respondent terminated its contract with District 50 on March 31, 1969. In the light of such history of collective bargaining and since Section 9(b) of the Act specifically sanctions an employer unit as one which may be appropriate for the purposes of collective bargaining, I find that such unit is an appropriate one for collective bargaining within the meaning of Section 9(b) of the Act. B. The Status of District 50 on March 31, 1969 The Respondent contends that on March 31 it was privileged to terminate its agreement with District 50 since the same was ". . . invalid and not binding on the Company since District 50 was, at the time of the agreement's execution, an illegally assisted union." (Co. br., p. 11.) I do not agree with this contention. At the outset, considering equitable principles, such contention comes with ill grace from the person who engaged in the conduct constituting the alleged illegal assistance, having enjoyed the fruits thereof for approximately 5 years. But, in any event, it seems well-established that Section 10(b) of the Act would preclude any finding of whether or not recognition by the Company of District 50 in 1964 constituted illegal assistance.8 In addition, I note a lack of any evidence that the employees objected to such recognition, or that they sought any assistance from the National Labor Relations Board, or any other agency, with an objective of ridding themselves of District 50. Nor did they, at the end of the contract term (in 1967) file any petition for an election to redetermine their representative's status. Moreover, I note, as Respondent concedes (Co. br., p. 11, fn. 2), that the original contract between Respondent and District 50 could be considered to be a valid prehire agreement under Section 8(f). Although the 1967 agreement would not be so protected under the rule explicated in complement of employees numbered approximately 15, Swanlek, Yarger, and Fmk having been lured subsequent to April 1. ' 8 See Local Lodge No. 1424, International Association of Machinist, AFL-CIO [Bryan Manufacturing Co.] v. N L R B, 362 U.S 411 (1960). 9 162 NLRB 476, 478. 10 Cf. Shamrock Dairy, Inc., 119 NLRB 998, 1002. Bricklayers & Masons International Union Local 3 (Eastern Washington Builders),9 it would seem that the presumption of regularity and legality would prevail.10 Under these circumstances, there being no evidence of a question concerning representation appearing in 1967, it was not unproper or illegal for Respondent to have signed that agreement. Accordingly, District 50 was entitled to representative status for the duration of that contract (until May 31, 1970) 11 unless, as Respondent contends, the term was shortened by proper implementation of the "most favored nations" clause. C. The Impact of the "Most Favored Nations" Clause It is to be recalled that one of the provisions of the CMCCA-District 50 contract, which was incorporated by reference in the Respondent's contract with District 50, was a clause commonly referred to as the "most favored nations" clause, above-quoted in section III, B, 2. Respondent contends that such clause, in itself "legally objectionable,"12 was properly invoked by Respondent following District 50's subsequent contract with Zeni- McKinney-Williams, and as a result the CMCCA-District 50 contract "was converted to a project agreement, terminating with the completion of each individual construction project on which the Company was engaged at the time of the clause's invocation." (Co. br., pp. 13-14.) Counsel for the General Counsel contends that this clause "does not apply" because it was not intended by the parties to relate to the duration of the contract. (G.C. br. pp. 5-6.) Recalling that this is an affirmative defense placing the burden of persuasion upon the Respondent on this issue, I am not persuaded that the parties intended for the clause to cover the term of the contract; rather, it appears that the Respondent seized upon this apparently fortuitous circum- stance to escape the burden of recognition of District 50 in order to recognize the Mine Workers as collective-bargain- ing representative of its construction employees. Thus, I am in full accord with Respondent in its statement of the purpose of such clause: "The obvious intent of such a clause is to preserve uniform wages, hours and working conditions, by giving all signatories to the basic agreement assurance that they will be treated on a parity with other companies performing similar work with whom the Union subsequently negotiates." (Resp, br., p. 14.) Clearly, such clauses are designed to eliminate economic advantages of one employer over another within the same industry. They thus relate to substantive provisions in the agreement and not to its term, since term does not, in itself, have anything to do with competitive advantage or disadvantage.' The foregoing conclusion is reflected by an analysis of the language of the CMCCA-District 50 agreement itself. Thus the clause in question speaks of "provisions" of this agreement. In the preamble to the agreement (art. 1), a 11 Ibid 12 Since the legality of the clause itself was not attacked by the General Counsel either in the complaint or at the hearing, that issue was not litigated. In the absence of definitive Board law to the contrary, I will assume the legality of such a clause under the Act, for the purpose of disposing of the ultimate issue herein. THE IRVIN-Mc KELVY COMPANY 59 distinction is made between "provision" and "term" of the agreement as follows: It is mutually understood that the following terms and conditions relating to the employment of the employees covered by this Agreement have been decided upon by means of collective bargaining and that the following provisions will be binding upon the parties signatory during the term of this Agreement and any renewal thereof. [Emphasis supplied.] It is true that there is some evidence in the record that the matter of different types of contracts as relates to tenure (term, project, and area) was discussed during the negotiations of the CMCCA-District 50 agreement. Howev- er, this testimony, which is somewhat vague, does not serve to justify departure from the normal intent of such clauses, in the light of the specific contract language hereinabove adverted to. Accordingly, under the particular circum- stances of this case wherein the employer was seeking to escape its obligations under the District 50 agreement for the purpose of signing a prehire contract with the Mine Workers, I find that the Respondent wrongfully invoked the "most favored nations" clause, and that it could not legally serve to terminate the Respondent's collective- bargaining agreement with District 50. However, I do not rest my decision in this case solely on this ground, since I find, infra, that the Respondent's defense based upon the asserted applicability of Section 8(f) of the Act is also without merit. D. The Applicability of Section 8(f) It is the contention of the Respondent that since it had the right, pursuant to the invocation of the "most favored nations" clause, to terminate its agreement with District 50 on March 31, it was then legally free to apply a prehire agreement, like the ABC-UMW agreement, without regard to whether District 50 had a claim of representing the Company's employees. Counsel for the General Counsel argues that even assuming, arguendo, the Company had a right to terminate the District 50 agreement, it was not privileged to recognize the UMW under the circumstances of this case since a question concerning representation was pending. I agree with the General Counsel. Respondent concedes that were this a case involving a mine, mill, or factory, i.e., not in the building and construction industry, it would have been a clear violation for Respondent to have immediately recognized the Mine 13 Midwest Piping & Supply Co., 63 NLRB 1060 See also N L R B v Signal Oil and Gas Co, 303 F 2d 785, 786-787, 788 (C A. 5, 1962), where the court said. 1W ]hen an employer is faced with conflicting claims of oval unions and a serious question exists as to which union represents a majority of employees , the employer must adhere to a policy of strict neutrality. The employer must withhold recognition of either union until the rivalry is settled at the polls in a Board-conducted, secret election 14 Sec. 8(f) of the Act, enacted in 1959, provides in full as follows- It shall not be an unfair labor practice under subsections (a) and (b) of this section for an employer engaged primarily in the building and construction industry to make an agreement covering employees engaged (or who, upon their employment , will be engaged) in the building and construction industry with a labor organization of which building and construction employees are members (not established, maintained , or assisted by any action defined in section 8(a) of this Act as an unfair labor practice) because (1) the majority status of such labor organization has not been established under the provisions of Workers as the collective-bargaining representative of its employees following termination of its contract with District 50 since such mere termination of a contract would not have obliterated District 50's claim to represent the employees.13 However, Respondent argues that the Mid- west Piping doctrine does not apply in this situation because the employer is engaged primarily in the building and construction industry and is therefore privileged, under Section 8(f) of the Act, to recognize a labor organization as collective-bargaining representative of its construction employees without regard to whether the majority status of such labor organization has been established under Section 9 of the Act.14 The legislative history of Section 8(f) teaches that Congress sought by this enactment to create an exemption for the building and construction industry from some of the strictures of the Act which existed at the time. S. Rep. No. 187 on S. 1555, 86th Cong., 1st sess., described the situation as follows: In the building and construction industry it is customary for employers to enter into collective bargaining agreements for periods of time running into the future, perhaps I year or in many instances as much as 3 years. Since the vast majority of building projects are of relatively short duration, such labor agreements necessarily apply to jobs which have not been started and may not even be contemplated. The practice of signing such agreements for future employment is not entirely consistent with Wagner Act rulings of the NLRB that exclusive bargaining contracts can lawfully be concluded only if the union makes its agreement after a representative number of employees have been hired. One reason for this practice is that it is necessary for the employer to know his labor costs before making the estimate upon which his bid will be based. A second reason is that the employer must be able to have available a supply of skilled craftsmen ready for quick referral. A substantial majority of the skilled employees in this industry constitute a pool of such help centered about their appropriate craft union. If the employer relies upon this pool of skilled craftsmen, members of the union, there is no doubt under these circumstances that the union will in fact represent a majority of the employees eventually hired.15 The report noted other provisions of Sec. 8(f) "... which take into account the occasional nature of employment in the section 9 of this Act prior to the making of such agreement, or (2) such agreement requires as a condition of employment, membership in such labor organization after the seventh day following the beginning of such employment or the effective date of the agreement , whichever is later, or (3) such agreement requires the employer to notify such labor organization of opportunities for employment with such employer, or gives such labor organization an opportunity to refer qualified applicants for such employment, or (4) such agreement specifies minimum training or experience qualifications for employment or provides for priority in opportunities for employment based upon length of service with such employer, in the industry or in the particular geographical area, Provided That nothing in this subsection shall set aside the final proviso to section 8(a)(3) of this Act. Provided further, That any agreement which would be invalid, but for clause (1) of this subsection, shall not be a bar to a petition filed pursuant to section 9(c) or 9(e) is 1 Leg Hist. 424 (1959) 60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD building and construction employee [sic ]. It does so by reducing from 30 days to 7 the grace period before which the employee may be required to join the union. The reduction in this time allowance reflects the normally short employment period for construction employees." [Emphasis supplied.] This section, being in the nature of an exception from the general rule, must be strictly construed. While Respondent qualifies as an employer in the building and construction industry, it is readily apparent that the situation here does not fall within the intent and spirit of Section 8(f). That is to say, the Respondent did not need to enter into a prehire agreement for the purpose of ". . . hav[ing] available a supply of skilled craftsmen ready for quick referral," since he already had a complement of employees of longstanding tenure with the firm, who worked on several projects concurrently. Nor does the instant situation reflect "the occasional nature of employment of the building and construction employee" who may work for several different employers within the space of a year due to the relatively short duration of building projects. Rather, the Respondent here had a "stable working force" 16 and merely desired to change the collective-bargaining representative of such force from one union to another so that he would be able to qualify for contracting work with coal mine operators who were contractually obligated with the Mine Workers. I find and conclude that Section 8(f) was not written to accomplish such purpose and that, under the circumstances extant in the instant case, Respondent was bound to play by the ordinary rules of the game and have the representation question established through procedures prescribed in Section 9 of the Act.17 In view of all the foregoing, I find and conclude that Respondent violated Section 8(a)(1) and (5) of the Act by withdrawing recognition from District 50 at a time when the Respondent was bound to continue such recognition under a valid and binding contract, and by failing to maintain such contract in effect for the remainder of its term. I also find and conclude that Respondent violated Section 8(a)(1) and (2) in assisting the Mine Workers by extending recognition and contracting with it, and violated Section 8(a)(1) and (3) by requiring membership in the Mine Workers as a condition of employment, and will recommend an appropriate remedy. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the Respondent's operations described in section I, above, have a close, 16 "See the discussion of Congressman Thompson, comparing, the transitory and sporadic nature of employment in the building and construction industry and the fixed nature of employment in manufacturing. II Leg. Hist. of the Labor- Management Reporting and Disclosure Act of 1959, pp. 1577(3)-1578(2)," cited in Oilfield Maintenance Company, Inc., 142 NLRB 1384, fn 5 See also Bricklayers, Local 3, supra, fn. 9, where the Board held Sec. 8(f) inapphcable in a case involving employees who "have previously been hired." iz Respondent argues that the second proviso to Sec. 8(f) would retain freedom of choice to its employees by enabling District 50 to file a petition under Sec. 9(c) which would not be barred by the prehire agreement. However, this presupposes a situation in the building and construction intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. VI. THE REMEDY Having, found that the Respondent has engaged in certain unfair labor practices, I will recommend that it cease and desist therefrom and take certain affirmative action which will effectuate the policies of the Act. Having found that the Respondent unlawfully recognized and contracted with the Mine Workers, thus assisting that organization, it will be recommended that it withdraw recognition from the Mine Workers and cease giving effect to the December 10, 1968, contract, or any supplement, extension, or renewal thereof. Contrary to the request of counsel for the General Counsel, however, I do not believe that an order is warranted requiring Respondent to reimburse dues, initiation fees, and assessments the employees may have paid to the Mine Workers subsequent to April 1. Unlike the cases cited by him (G.C. br., p. 8), the record herein contains no evidence of employer solicitation or coercion of membership in the Mine Workers other than that contained in the union-security clause of the contract. Only recently, the U.S. Court of Appeals for the Ninth Circuit has indicated, after a review of the Supreme Court Decisions on the issue, that this was too slender a reed upon which to base an order requiring restitution of dues and assessments.18 In Intalco, the court noted: There is no specific finding that any of the employees suffered any loss or objected to the payment of dues. No distinction was made between those employees who wanted the union and voluntarily agreed to a dues check-off and those whose dues were checked off only because of the requirement of the collective bargaining agreement. In the instant case, not only is there a lack of evidence that any employee suffered loss or objected to the payment of dues, there is affirmative evidence that the employees benefited economically from the Mine Workers contract which contains substantially higher wage rates than the District 50 agreement. Thus, to require Respondent to reimburse the employees under these circumstances would secure to them an unwarranted windfall. Upon the basis of the above findings of fact, and upon the entire record in this case, I make the following: industry to which Sec. 8(f) is applicable. For reasons hereinabove set forth, I have found that such a situation did not exist with Respondent who already had a complement of employees of longstanding tenure of employment. If Respondent's theory of the section were allowed to hold, these employees might be subjected to the imposition of a half-dozen different unions per year (according to the number of projects contracted by Respondent) and be put to the responsibility of petitioning the Board for elections to replace them, a situation clearly not contemplated by Congress. 18 See Intalco Aluminum Corporation v N LR.B., 417 F 2d 36, 41 (September 19, 1969). See also Local 60, Carpenters [Mechanical Handling SystemsI v. N.LR B, 365 U.S. 651 (1961). THE IRV1N-Mc KELVY COMPANY 61 CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. District 50 and the Mine Workers are each labor organizations within the meaning of Section 2(5) of theAct. 3. By recognizing and entering into a contract with the Mine Workers, the Respondent has interfered with, restrained, and coerced employees in the exercise of rights guaranteed in Section 7 of the Act, and has contributed support to the Mine Workers in violation of Section 8(a)(1) and (2) of the Act. 4. By entering into a contract with the Mine Workers requiring membership in that organization as a condition of employment, the Respondent has discriminated in regard to hire or tenure of employment to encourage membership in the Mine Workers and to discourage membership in District 50, and has thus engaged in unfair labor practices within the meaning of Section 8 (a)(1) and (3) of the Act. 5. By terminating its contract with District 50 on March 31, 1969, and refusing to recognize and bargain with that labor organization thereafter, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (5) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.]