Pacific Erectors, Inc.

PACIFIC ERECTORS, INC. 421 Pacific Erectors, Inc. and International Association of Bridge, Structural & Ornamental Iron- workers, Local No. 29. Case 36-CA-3159 June 8, 1981 DECISION AND ORDER On April II, 1978, Administrative Law Judge Russell L. Stevens issued the attached Decision in this proceeding. Thereafter, Respondent and the Intervenor 1 filed exceptions and supporting briefs, and the Charging Party filed a brief in opposition to the exceptions by Respondent and the Interve- nor. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings, 2 and conclusions of the Administrative Law Judge and to modify his remedy. 3 Chairman Fan- 1 Sheet Metal Workers International Association Local 16. 2 We agree with the Administrative Law Judge that Respondent vio- lated Sec. 8(a)(5) of the Act when it unilaterally abrogated its agreement with the Union at a time when the majority of the unit employees at the Tualatin Jobsite were union members. The Board has held that an em- ployer is not free to repudiate an 8(!) agreement where. as here, a maJor- ity of the unit employees supported the union at the time of repudiation. See, generally, NL.R.B. v. Local Union No. /03. International Association of Bridge, Structural and Ornamental Iron Worker., AFL-C/0. et a/. [Higdon Contracting Company], 434 U.S. 355 (1978). In his Decision, the Administrative Law Judge stated that Respondent should have resolved the dispute concerning its dissatisfaction with the quality of employees referred through the hiring hall "within the confines of the existing contract," rather than proceeding to execute a contract with the Sheet Metal Workers. Respondent points out that the Iron- workers contract was a short-form agreement. Thts fact, however, does not detract from the Administrative Law Judge's proper conclusion that Respondent was required to abide by the Ironworkers' contract. Nor is this fact necessarily inconsistent with the Administrative Law Judge's conclusion that Respondent should have sought to resolve its disputes "within the confines of the exisung contract." On the contrary, we inter· pret the Administrative Law Judge's remark in this respect as a proper statement that Respondent, particularly in view of the contract, was re- quired to work with the Ironworkers toward a mutually acceptable solu- tion to the problems of concern to both of them. We do not construe that remark as a factual statement that the contract contained a grievance mechanism. Indeed, the Administrative Law Judge prefaced his remark in this respect by noting that the parties' contract specifically excluded the master agreement's grievance and arbitration provisions. In sec. Ill of his Decision, the Administrative Law Judge inadvertently refers to November 22, 1977, as the date Respondent commenced follow- ing the terms and conditions of the then current master labor agreement. However, the date should be November 22, 1974-the date Respondent executed the short-form compliance agreement. The Decision is hereby corrected to show November 22, 1974. Finally, Respondent has excepted to certain credibility findmgs made by the Administrative 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 Prod- ucts. Inc., 91 NLRB 544 (1950), enfd. 188 F2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. 3 Respondent and the Intervenor have excepted to that portion of the Administrative Law Judge's remedy making eligible for backpay the three employees who were discharged by Respondent and the seven em- ployees who walked otT the jobsite in apparent protest of those dis- charges. We agree with Respondent and the Intervenor that backpay should not be awarded to these employees. However, we do so for rea- sons apart from those asserted by Respondent and the Intervenor. In our 256 NLRB No. 66 ning agrees that other possible jobsite locations are outside the scope of the complaint herein. Further, while the Chairman has previously indicated dis- agreement with the construction of Section 8(t) and related sections of the statute as applied herein, 4 he notes that in NL.R.B. v. Local 103, Iron Workers, supra, the Supreme Court held that such a construction is a tenable one. Accordingly, he has decided to follow that position, 6 and there- fore joins in adopting the Administrative Law Judge's recommended Order, as modified herein. 6 ORDER Pursuant to Section 10{c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied below, and hereby orders that the Respondent, Pacific Erectors, Inc., Portland, Oregon, its offi- cers, agents, successors, and assigns, shall take the action set forth in said recommended Order, as so modified: 1. Delete paragraph 2(a) and substitute the fol- lowing: "(a) Upon request, apply to the Tualatin jobsite the terms and conditions of the 1977-80 Master Labor Agreement to the extent consistent with the short-form memorandum agreement. The appropri- ate unit is: judgment, it appears that the seven employees engaged in an economic strike in support of the dtscharged employees, rather than voluntarily ter- minated their employment as contended by Respondent and Intervenor. As there appears to be no evtdence that the seven strikers unconditional- ly requested reinstatement and as there has been no allegation or finding that the separation of any of the 10 employees from Respondent's employ resulted from any unfair labor practice, we find that Respondent is not obligated to furnish backpay to these employees. • See his position set forth in dissenting or concurring opinions in R. J. Smith Construction Co., Inc., 191 NLRB 693 (1971); Rullman Construction Company. and Rullman Corporation, Joint Employer., 191 NLRB 701 ( 1971 ); Dee Cee Floor Covering. Inc. and its Alter Ego and/or Successor. Dagin-Akrab Floor Covering. Inc., 232 NLRB 421 (1977). • See the Chairman's concurring opinion in D'Angelo & Khan, Inc.. 248 NLRB 396 (1980). The Chairman notes, however, that the language of the Iron Workers decision suggests that a different statutory construction is also tenable and within the Board's competence. • In his Decision, the Administrative Law Judge noted that Respond- ent signed a short-form compliance agreement which adopted in pertinent part the terms of the 1974-77 Master Labor Agreement (MLA) executed between the Oregon-Columbia Chapter, Associated General Contractors of America, Inc., et a/., and the Union. The Administrative Law Judge further noted that a successor MLA had been executed effective July 1, 1977, to June 30, 1980. This latter agreement is the one which Respond- ent is currently bound and required to apply at the Tualatin jobsite. See Ted Hicks and Associates, Inc., 232 NLRB 712 (1977); New York Typo- graphical Union No. 6 (Clark & Fritts. Inc.), 236 NLRB 317 (1978); Phoe- nix Air Conditioning, Inc., 231 NLRB 341 (1977). However, since the short-form compliance agreement by its terms adopts only certain terms and conditions of the current MLA. we shall modify the Admimstrative Law Judge's recommended Order to provide that Respondent adhere to the terms and conditions of the 1977-80 MLA only to the extent consist- ent with the short-form memorandum agreement, and that it apply those terms and conditions only to the Tualatin jobsite-the appropriate unit herein. 422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All employees of the Employer engaged in construction work at the Sports Complex (Tualatin) jobsite in Beaverton, Oregon, ex- cluding office clerical employees, professional employees, guards, and supervisors as defined in the Act." 2. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. The Act gives employees the following rights: To engage in self-organization To form, join, or assist any union To bargain collectively through repre- sentatives of their own choice To engage in activities together for the purpose of collective bargaining or other mutual aid or protection To refrain from the exercise of any or all such activities. WE WILL NOT refuse to recognize and bar- gain with, or honor any labor agreement reached with, International Association of Bridge, Structural & Ornamental Ironworkers, Local No. 29, as the exclusive representative of our employees in an appropriate unit, con- cerning rates of pay, wages, hours of employ- ment, and other conditions of employment, at any time when that labor organization is enti- tled to recognition at any of our construction projects. WE WILL NOT assist or give support to Sheet Metal Workers International Association Local 16 by recognizing or entering into or enforcing collective-bargaining agreements with that labor organization as the exclusive representative of employees on any of our projects, when International Association of Bridge, Structural & Ornamental Ironworkers, Local No. 29, or any other labor organization, is the lawfully recognized bargaining repre- sentative of such employees or holds a valid collective-bargaining agreement covering such employees; or by otherwise recognizing the above-mentioned Sheet Metal Workers Inter- national Association Local 16 when such Union is not entitled to recognition under the Act. WE WILL, upon request, apply to the Tuala- tin jobsite the terms and conditions of the 1977-80 Master Labor Agreement to the extent consistent with the short-form memo- randum agreement. The appropriate unit is: All employees of the Employer engaged in construction work at the Sports Complex (Tualatin) jobsite in Beaverton, Oregon, ex- cluding office clerical employees, profession- al employees, guards, and supervisors as de- fined in the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their rights to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, to engage in concerted ac- tivities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities except to the extent that such rights may be affected by an agreement requiring membership in a labor or- ganization as a condition of employment, as authorized by the Act. PACIFIC ERECTORS, INC. DECISION STATEMENT OF THE CASE RussELL L. STEVENS, Administrative Law Judge: This matter was heard in Portland, Oregon, on February 23, 1978. 1 The complaint, issued November 30, is based on a charge filed August 26 by International Association of Bridge, Structural & Ornamental Ironworkers, Local No. 29. The complaint alleges that Pacific Erectors, Inc. (Re- spondent), violated Section 8(a)(5), (2), and (I) of the National Labor Relations Act (Act). All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-ex- amine witnesses, to argue orally, and to file briefs. Briefs, which have been carefully considered, were filed on behalf of the General Counsel, Respondent, Charging Party, and Intervenor. 2 Upon the entire record, and from my observation of the witnesses and their demeanor, I make the following: 1 All dates hereinafter are within 1977, unless stated to be otherwise. 2 Sheet Metal Workers International Association Local 16 (Sheet Metal Workers) intervened at the hearing, upon motion of its counsel, without objection, granted by the Administrative Law Judge. At the hearing, Respondent amended its answer to deny, rather than to admit, the allegations of par. 5 of the complaint relating to the appropriate unit. PACIFIC ERECTORS, INC 423 FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent is, and at all times material herein has been, an Oregon corporation with an office and place of business in Portland, Oregon, where it is engaged in the construction industry as a roofing contractor. During the past 12 months, which period is representative of all times material herein, Respondent performed services valued in excess of $50,000 for employers and contrac- tors who are engaged in interstate commerce. I find that Respondent is, and at all times material herein has been, an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED International Association of Bridge, Structural & Or- namental Ironworkers, Local No. 29, is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. Ill. THE ALLEGED UNFAIR LABOR PRACTICES A. Background3 Respondent is a corporation that has been in business since November 1974. Richard Abrams (Abrams) is the corporate secretary and one of the stockholders, and his wife is the corporate president. Abrams is the general manager of the business, and visits the jobsites each day. He has been a member of the Union for many years, and is thoroughly familiar with the trade. Respondent has had a collective-bargaining agreement with the Union since November 22, 1974. The agreement is a "short form" type, which adopts by reference, a master agreement between the Oregon-Columbia Chap- ter, Associated General Contractors of America, Inc., and certain other employer groups, and the Union, effec- tive 7-1-74 through 6-30-77. The master agreement pro- vides, inter alia, for a method of termination. The former master agreement was followed by a similar agreement effective 7-1-77 through 6-30-80. Neither the master agreement nor the short-form agreement was terminated at any time by either party involved herein. Since November 22, 1977, Respondent has followed the terms and conditions of the aforesaid short-form and master agreements, and has employed only union mem- bers on all its jobs. Respondent did not contract with, or employ any members of, the Sheet Metal Workers at any time prior to August 18, 1977. Respondent's principal business is the installation of sheet metal roofs, but it also installs sheet metal siding on buildings. On June 1, 1977, Respondent commenced in- stallation of sheet metal roof on a tennis court building within a sports complex in Tualatin, Oregon. The roof primarily consisted of a bottom layer of sheet metal upon which was laid a pad of insulation material affixed in place by subgirts, with a top layer of sheet metal then 3 Most facts essential to resolution of the issues are not m diSpute. This background summary is based on uncontradicted and credlled testimony of witnesses for the General Counsel and Respondent. affixed to the building. 4 Respondent's initial crew con- sisted entirely of ironworkers transferred from another of Respondent's jobs. Thereafter, until August 18, all of Re- spondent's employees 5 on the tennis court job were iron- workers. Because of very hot weather during the summer, an agreement was reached between Respondent and its em- ployees on the tennis court job, whereby the employees worked from 6 a.m. to 2:30 p.m., with a half hour for lunch and no overtime payment. By the end of the work- day on August 17, insulation had been laid on the bottom sheet metal, but it had not been tied down with subgirts. During the evening or night of August 17 a wind came up, and blew the insulation to the ground. When Abrams came to the site on August 18 he saw what had hap- pened, and laid off three employees. The remaining em- ployees refused to work because of what they thought was an injustice to the three who were laid off. During an interval 6 when neither the job foreman nor Abrams was with the employees, they installed the insulation and subgirts. Respondent's work on the building then was ap- proximately 40 percent complete. Abrams paid the em- ployees off, and telephoned a representative of the Sheet Metal Workers, which union for some time had been trying to obtain work for its employees, with Respond- ent. After their conversation, Abrams went to see the Sheet Metal Workers representative, and the two of them executed a collective-bargaining agreement on that same day, August 18. Leroy Worley (Worley), the Union's finar.cial secretary-treasurer and business repre- sentative, heard from employees about the incident at the tennis court, and about the Sheet Metal Workers agree- ment with Respondent, and on August 19 he talked with Abrams on the telephone, to protest Respondent's ac- tions. The situation was left unchanged, and Worley then called a representative of the Sheet Metal Workers, who verified that an agreement had been signed with Re- spondent. Since August 18 Respondent has not requested any employees from the Union. In September, four iron- worker employees were used by Respondent, and, there- after, only one such employee, a supervisor, was used. Otherwise, all Respondent's employees since August 18 have been sheetmetal workers. B. Contentions of the Parties The General Counsel contends that Respondent's col- lective-bargaining agreement with the Union covers all Respondent's employees at the Tualatin jobsite, that Re- spondent has not repudiated the agreement, that the Sheet Metal Workers agreement is not a prehire con- tract, and that Respondent's execution of an agreement with the Sheet Metal Workers violated Section 8(a)(5) and (2) of the Act. • A separate contract for the Siding was awarded to another company. • At one time Respondent had a nonunion supervisor on the job for a limited period of time. • There IS a confl1ct in testimony relative to the cause of this interval. Yeager\ test1mony that it occurred when the foreman, at the employees' request. went to see Abrams about writmg the remaining employees up as layoffs, rather than qu1ts, in order that they could obtain unemploy- ment msurance, !Iii credited 424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent contends that the Union's employees were unable or unwilling to perform work at the Tualatin job- site and that the Union refused to accept Respondent's offer to use a composite crew on the Tualatin job, there- by justifying the Sheet Metal Workers contract. C. Discussion The fact that Respondent has not repudiated its agree- ment with the Union is shown by Respondent's hire of ironworker employees for jobs other than the one in- volved herein, after August 18. Further, Respondent continues at the present, to employ an ironworker super- visor and to make payments on his behalf to the Union's trust funds. The fact that the Union had majority status on the Tualatin jobsite at all times until August 18 is shown by the record evidence, and is not in issue. It is not entirely clear that the parties intended that the Ironworkers contract would be a prehire agreement, but actions of the parties after they signed the agreement and exclusion in the short-form agreement of the basic con- tract's provisions for settling grievances indicate that the contract, in its effect, was a prehire agreement. It is found that the contract was for prehire purposes, within the purview of Section 8(f) of the Act, and that the Iron- workers had majority status on all jobs performed by Respondent from date of the contract until August 18, 1977. The question then is presented as to whether or not Respondent breached its agreement on August 18. The fact is not disputed, that Respondent executed an agreement with the Sheet Metal Workers on August 18, without first attempting to obtain an alternate crew from the Ironworkers. The merits of the dispute on August 18 are not in issue and were not fully litigated, but it ap- pears that Respondent's termination of the work crew that day possibly was not justified. However, a finding on that point is not necessary, and is not made. The matter is important only to the extent that it is raised in argument by Respondent and the Intervenor, with the contention that the crew abandoned the work, or quit their jobs. It is argued that such abandonment, or quits, justified Respondent's execution of an agreement with the Sheet Metal Workers. That argument is not accepted. The dispute at the worksite was between Respondent and its employees. The basic contract then existing be- tween Respondent and the Union had provisions relating to settlement of disputes, but the short-form agreement states that such provisions are not binding upon the par- ties. That, however, is of no weight in determining whether or not Respondent breached the agreement without legal cause. It is clear that a dispute arose on August 18, resulting in the discharge of three Iron- workers employees. The remainder of the Ironworkers employees then asked for reinstatement of the three dis- chargees, or, in the alternative, for a layoff of them- selves. However, Abrams did not treat the matter as a dispute between Respondent and the employees. Rather than attempt to resolve the problem through the Union, Abrams immediately sought out the Sheet Metal Work- ers and signed a contract with them. Respondent now attempts to separate the rights and duties of the employees from those of the Union, and such cannot, as a legal matter, be done. The employees and the Union were entitled to orderly resolution of the work dispute within the confines of the existing con- tract. 7 Respondent extends its argument, by contending that, for several years, there has been argument in the indus- try as to whether installation of metal roofing and siding is work to be assigned to Ironworkers, or to Sheet Metal Workers. Respondent argues that the Union was notified on August 19, after the Sheet Metal Workers agreement was signed, that it was willing to use Ironworkers on the job, as composite crews with Sheet Metal Workers. This argument is not pursuasive. Assuming the existence of a jurisdictional dispute generally known in the industry, such a dispute cannot be settled in the arbitrary manner herein exhibited by Respondent. Its existing, valid con- tract already had settled the matter, at least so far as the Tualatin job was concerned. Further, the offer to use composite crews is a weak reed, since Respondent con- tends that it has been dissatisfied with the work of Iron- workers employees for a long period of time. Respond- ent now contends, on the one hand, that Ironworkers are unsatisfactory, yet on the other hand, that it will accept them, provided Sheet Metal Workers also are on the job. The Sheet Metal Workers contract cannot be consid- ered as a prehire contract for the Tualatin job since the job was approximately 35 percent or 40 percent com- plete when the agreement was signed on August 18. At the time the Sheet Metal Workers contract was signed, there were no Sheet Metal Workers on the job, thus the Sheet Metal Workers did not then enjoy majority status. That status was created later, through the illegal actions of Respondent. Respondent primarily is engaged in the construction industry, and the Ironworkers are construction employ- ees. As discussed above, Respondent's contract with the Union appears to be a prehire agreement, but whether it is or not, it was a valid, existing contract as of August 18. If it is considered to be a prehire agreement, it rip- ened into a fully enforceable agreement at the outset of the Tualatin job, when only Ironworkers employees were hired. 8 The majority held by the Ironworkers at the time is not challenged. If it is not considered to be a prehire agreement, it is clear that the contract was hon- ored and accepted by Respondent at all times prior to August 18, and thus was fully enforceable. In either case, Respondent's actions in breaching the contract without 7 Respondent also contends that some Ironworkers employees were not satisfactory, and that Respondent was not successful in obtaining res- olution of employee problems through the Union's representatives. That contention primarily is based on the general and conclusionary testimony of Abrams, who is not credited. Abrams' testimony is contrary to the tes- timony of Worley, who is credited. However, assuming, a'!fuendo, that some of the Union's employees and its representatives were not satisfac- tory from Respondent's point of view, that fact would not justify Re- spondent's unilateral and precipitous breach of its contract with the Union. 8 Ruttmann Construction. Company, and Ruttmann. Corparation, Joint Employers, 191 NLRB 701 (1971). PACIFIC ERECTORS, INC. 425 prior notice to, or bargaining with, the Union constituted a violation of Section 8(a)(5) and (I) of the Act. 9 The agreement Respondent signed with the Sheet Metal Workers covered the same work, at the same site, then within the existing agreement between Respondent and the Ironworkers. The result was a change of work force, and a change of bargaining representative for that work force, without bargaining with, and over the pro- test of, the Ironworkers. The contract was solicited, en- tered into, and signed by and at the request of Abrams. Such action assisted and gave support to the Sheet Metal Workers in violation of Section 8(a)(2) and (I) of the Act.Io IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE The activities of Respondent, set forth in section III, above, occurring in connection with the operations de- scribed in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor dis- putes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Pursuant to Section IO(c) of the Act, as amended, it is recommended that Respondent be ordered to cease and desist from engaging in the unfair labor practices found, and to take certain affirmative action designed to effectu- ate the policies of the Act. The complaint alleges, and it is found, that the appro- priate unit involved herein is: All employees of the Employer engaged in con- struction work at the Sports Complex jobsite in Beaverton, Oregon excluding office clerical em- ployees, professional employees, guards and super- visors as defined in the Act. The complaint also alleges representation status of the Union on the basis of Section 8(f) of the contract. The General Counsel presented and argued the case on the basis of the Tualatin job alone, and seeks in his brief backpay for employees at only the Tualatin job. The remedy herein, thus, will be limited to the Tualatin job- site. It has been found that Respondent unlawfully with- drew recognition from the Union as the exclusive bar- gaining representative of employees on the Tualatin sports complex job, and refused to honor its bargaining contract with the Union, which was effective at all times relative to said job. It also has been found that Respond- ent unlawfully assisted the Sheet Metal Workers by rec- ognizing it as the exclusive representative of employees on the Tualatin job. As discussed supra, the dispute at the worksite on August 18 was not fully litigated. Fur- ther, the complaint contains no 8(a)(l) or (3) allegations. • Davis Industries. Inc.: Stag Construction, Inc.: and Add Miles, Inc., 232 NLRB 946 (1977): Mountain Stare.< Construction Company. Inc., 207 NLRB 139 (1'173). 10 Davis Industries. Inc .. supra: Mountain Stares Construction Co .. Inc .. supra. Thus, there is no issue relative to reinstatements. Howev- er, the Ironworkers contract should have been applied until the end of the Tualatin job, which would have re- quired dispatch to the job of employees then on the Iron- workers out-of-work list, when job opportunities were available. Those opportunities, however, were given to Sheet Metal Workers. Therefore, it is recommended that Respondent be ordered to pay backpay to all such out- of-work Ironworkers employees who were supplanted by Sheet Metal employees on the Tualatin job for the period of that job, between August 19 and the date each such Ironworkers employee was dispatched to another job, less any interim earnings. It is further recommended that the Sheet Metal Work- ers contract be declared null and void, and that the Iron- workers contract be applied to all construction projects performed or to be performed by Respondent during the effective period of the aforesaid Ironworkers contract, unless and until a valid bargaining agreement is entered into with another labor organization covering Respond- ent's employees. As requested by the General Counsel, it is not recom- mended that any backpay be awarded for any job other than the Tualatin job discussed herein. CONCLUSIONS OF LAW 1. Respondent, Pacific Erectors, Inc., is an employer primarily engaged in the construction industry, and in commerce within the meaning of Sections 2(6) and (7) and 8(f) of the Act. 2. International Association of Bridge, Structural & Ornamental Ironworkers, Local No. 29, and Sheet Metal Workers International Association Local 16 are labor or- ganizations within the meaning of Sections 2(5) and 8(f) of the Act. 3. The following unit is, and at all times material herein has been, an appropriate unit for the purpose of collective bargaining within the meaning of Section 9(b) of the Act: All employees of the Employer engaged in con- struction work at the Sports Complex jobsite in Beaverton (Tualatin), Oregon excluding office cleri- cal employees, professional employees, guards and supervisors as defined in the Act. 4. At all times material herein, a majority of the em- ployees in the bargaining unit described above in para- graph 5 have been represented by the Union for the pur- pose of collective bargaining and, by virtue of Sections 8(f) and 9(a) of the Act, the Union has been, and now is, the exclusive representative of all employees in said unit for the purpose of collective bargaining with respect to rates of pay, hours of employment, and other terms and conditions of employment. 5. By withdrawing recognition from the Ironworkers as the exclusive representative of the employees in the aforesaid appropriate unit, and by breaching its collec- tive-bargaining agreement with the Ironworkers and re- fusing to honor the conditions of employment therein provided before the completion of the Tualatin project without consulting and bargaining with the Ironworkers, 426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent engaged in unfair labor practices in violation of Section 8(a)(5) and (1) of the Act. 6. By recognizing the Sheet Metal Workers as exclu- sive representative of the Tualatin job employees, by in- cluding those employees in an agreement entered into with the Sheet Metal Workers, and by enforcing said agreement with respect to the Tualatin job employees, all events occurring while Respondent was engaged in work at Tualatin and while the Ironworkers were the ex- clusive bargaining representative of such employees pur- suant to a valid collective-bargaining contract, Respond- ent engaged in unfair labor practices in violation of Sec- tion 8(a)(2) and (I) of the Act. 7. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section IO(c) of the Act, as amended, I hereby issue the following rec- ommended: ORDER 11 The Respondent, Pacific Erectors, Inc., Portland, Oregon, its offi:ers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to recognize and bargain with, or honor any labor agreement reached with, International Associ- ation of Bridge, Structural & Ornamental Ironworkers, Local No. 29, as the exclusive representative of employ- ees in an appropriate unit, concerning rates of pay, wages, hours of employment, and other conditions of employment, at any time when that labor organization is entitled to recognition on any of Respondent's construc- tion projects. (b) Assisting or giving support to Sheet Metal Work- ers International Association Local 16, by recognizing, or entering into or enforcing collective-bargaining agree- ments with, that labor organization as the exclusive rep- resentative of employees on any of Respondents' projects when the above-mentioned Ironworkers or any other labor organization is the lawfully designated bargaining representative of such employees or holds a valid collec- 11 In the event no exceptions are tiled 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, he adopted by the Board and become its findings, conclusions, and Order, and all ObJections thereto shall be deemed waived for all purposes. live-bargaining agreement covering such employees; or by otherwise recognizing or contracting with the above- mentioned Sheet Metal Workers when such union is not entitled to recognition under the Act. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their right to self-organization, to form, join, or assist labor or- ganizations, to bargain collectively through representa- tives of their own choosing, to engage in concerted ac- tivities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as au- thorized by the Act. 2. Take the following affirmative action, which is nec- essary to effectuate the policies of the Act: (a) Make whole all Ironworkers employees for any loss of earnings they may have suffered by reason of the discrimination against them, as set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other re- cords necessary or useful in analyzing the amount of backpay due under the terms of this recommended Order. (c) Post at its offices in Portland, Oregon, the attached notice marked "Appendix." 12 Copies of said notice, on forms provided by the Regional Director for Region 19, after being duly signed by Respondent's authorized rep- resentatives, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not al- tered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 9, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 1 ' 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 Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relattons Board."