McDaniel Electric

126 313 NLRB No. 11 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1 There is no evidence in the record detailing the Respondent’s employment pattern before October 1992. Accordingly, the only rel- evant time period before us for consideration in determining whether the Respondent employed a stable one-man unit, is the period from October 1992 through February 1993. 2 Apart from the Respondent’s above-recited history, we are unable to discern from the record the exact number of days and weeks that the Respondent employed other employees at the project. The Re- spondent stipulated at the hearing that employee payroll records in- troduced by the General Counsel ‘‘represent the total payroll for McDaniel Electric.’’ In its brief in support of exceptions, the Re- spondent contends that certain hours listed on these payroll records pertain to work performed on a different, nonunit project outside San Bernandino County that is not covered by the collective-bargaining agreement. At the hearing, however, the judge noted that the payroll records contained references to the other worksite outside San Bernandino County but that the General Counsel had stated on the record that these notations were erroneous ‘‘and shouldn’t be there.’’ In response, the Respondent stated at the hearing that it had ‘‘no in- formation to believe that that’s not correct,’’ but that it might be ap- propriate for the Respondent’s owner, Oscar McDaniel, to testify on that matter. The judge then indicated that he had no objection to the stipulation and Oscar McDaniel never testified. Later in the hearing, the General Counsel attempted to clarify the stipulation so as to en- compass the earlier representations regarding the allegedly erroneous notations. The Respondent objected on the basis that ‘‘the record re- flects what we stipulated to.’’ The General Counsel replied that ‘‘I’ll leave it as it stands.’’ In view of this state of ambiguity, we are un- able to construe the stipulation as establishing, on this record, that all the work hours listed on the payroll records necessarily reflect work performed only at the San Bernandino County project. Accord- ingly, contrary to the judge, our above calculations are based on work hours, set forth in the payroll records, which are not in dispute and which all parties agree pertain to the San Bernandino County jobsite. Oscar David McDaniel d/b/a McDaniel Electric and International Brotherhood of Electrical Work- ers, Local 477, AFL–CIO. Case 31–CA–19638 November 23, 1993 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS DEVANEY AND RAUDABAUGH On June 30, 1993, Administrative Law Judge Mi- chael D. Stevenson issued the attached decision. The Respondent filed exceptions and a supporting brief, the General Counsel filed an answering brief, and the Re- spondent filed a reply brief. The National Labor Relations Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rul- ings, findings, and conclusions and to adopt the rec- ommended Order. We agree with the judge that the Respondent vio- lated Section 8(a)(5) and (1) by repudiating the terms of a current collective-bargaining agreement with IBEW Local 477 (the Union). For the reasons set forth below, we adopt the judge’s findings that the Respond- ent did not employ a stable one-man bargaining unit that would privilege repudiation of the agreement. Facts On December 3, 1978, the Respondent, an electrical contractor in the construction industry, executed a let- ter of assent (Letter of Assent-A) authorizing Southern Sierra Chapter, National Electrical Contractors Asso- ciation (NECA) to act as its collective-bargaining rep- resentative for the purpose of negotiating contractual terms with the Union. The letter of assent, by its terms, remained effective until terminated by timely written notice to NECA and the Union. The Respond- ent stipulated at the hearing that it has not sent a ter- mination letter either to NECA or to the Union. The most recent bargaining agreement between Southern Sierra Chapter, NECA and the Union is ef- fective from June 1, 1992, through May 31, 1995. The 1992–1995 agreement, covering jobsites in the counties of San Bernandino, Inyo, and Mono, California, pro- vides that the Union shall be the exclusive referral source of employment applicants for the Respondent. The agreement also provides that the Respondent shall regularly contribute on behalf of unit employees to various IBEW-NECA benefit trust funds. In October 1992, the Respondent commenced work at a construction project in San Bernandino County.1 At the time of the March 16, 1993 hearing in this pro- ceeding, the Respondent had worked at the project for 21 weeks. It is undisputed that the Respondent em- ployed unit employee Richard Harris at the project on a regular basis. At various times, the Respondent also employed two other employees at the project. Thus, between November 30, 1992, and February 26, 1993, the Respondent employed two or more employees at the project during at least 5 weeks of this 13-week pe- riod, including all three employees for 5 workdays dur- ing the most recent workweek in evidence at the hear- ing (the week ending February 27, 1993). Employee Marcelino Lepe worked at the project with employee Harris for at least 12 days over 3 weeks between No- vember 30, 1992, and February 26, 1993, including the week ending February 27, 1993. Employee Mario Magdaleno worked with Harris at the project for 7 days over 3 weeks between January 29, 1993, and Feb- ruary 26, 1993, including the week ending February 27, 1993.2 The Respondent stipulated at the hearing that ‘‘from the start of this job’’ in San Bernandino County, it has failed to abide by any of the terms and conditions set forth in the 1992–1995 bargaining agreement. Discussion As the judge found, the 1992–1995 bargaining agreement is an 8(f) agreement enforceable under John Deklewa & Sons, 282 NLRB 1375 (1987), enfd. sub nom. Iron Workers Local 3 v. NLRB, 843 F.2d 770 (3d Cir. 1988). By virtue of the Respondent’s execution of 127 MCDANIEL ELECTRIC 3 See generally John Deklewa & Sons, supra at 1376, 1389 fn. 62 (employer engaged in no projects between September 1983 and May 1984 in which it directly employed unit employees covered by bar- gaining agreement; Board held that ‘‘(a)n 8(f) contract is enforceable throughout its term although at a given time there may not be any employees to which the contract would apply’’). 4 As explained above, the focus of our inquiry in this 8(a)(5) case is whether the employer maintains a stable one-man unit. Because the critical inquiry here is directed to the scope of the employer’s work force, the individual voting eligibility standards of Daniel Con- struction Co., 133 NLRB 264 (1961), are not controlling. Letter of Assent-A and its failure to notify the Union and NECA of its termination in a timely manner, the Respondent is bound by the 1992–1995 bargaining agreement unless, as the Respondent contends, it had no more than one employee performing unit work at all material times. Haas Garage Door Co., 308 NLRB 1186, 1187 (1992). For the reasons below, we agree with the judge that the Respondent violated Section 8(a)(5) and (1) as alleged. The Board has long recognized the principle that collective bargaining presupposes that there is more than one eligible person who desires to bargain. Luckenbach Steamship Co., 2 NLRB 181, 193 (1936). And the Board has recognized that if it is not empow- ered to direct an election and to certify a one-man unit, it logically follows that the Act precludes the Board from directing an employer to bargain with respect to such a unit. Foreign Car Center, 129 NLRB 319 (1960). In short, when the employee complement at issue has no ‘‘collective’’ character, and thereby has no meaningful relationship to the practice and proce- dure of collective bargaining that underlies the statu- tory framework, it is altogether appropriate for the Board to withhold its statutory representational and un- fair labor practice processes. Before we will withhold those processes, however, we will require proof that the purportedly single-em- ployee unit is a stable one, not merely a temporary oc- currence. Thus, in Wilson & Sons Heating, 302 NLRB 802 (1991), the Board found that there was not a sta- ble one-employee unit even though the employer em- ployed only one permanent employee for a 9-month period, encompassing a 4-month period before repudi- ation of the contract and a 5-month period after the re- pudiation. At other critical times, including the most recent period preceding the hearing and at the time of contract execution, the employer there employed more than one employee. Here, the Respondent at the outset of the San Bernandino County project employed but one em- ployee. In the last 13-week period preceding the hear- ing it employed two or more employees during at least 5 of those weeks. In the final workweek of that period it employed three employees for 5 workdays. This most recent employment pattern reveals the existence of a larger work force in the unit than is indicated by the initial employment on the project, and is more than enough to offset the Respondent’s employment for a time of only one employee. Indeed, the Respondent’s employment history at the project is typical, as the judge noted, of employment fluctuations in the con- struction industry. Accordingly, we agree with the judge that the Respondent’s recent employment of two or more employees at the project cannot be considered insignificant and that such employment belies the Re- spondent’s argument that it employs there a stable one- employee unit that is not collective in character.3 Further, although the Respondent contends that it performed no work within the jurisdiction of the Union for many years preceding the October 1992 com- mencement of work in San Bernandino County, and, therefore, employed no unit employees during that pe- riod, the record, as noted, is silent regarding the Re- spondent’s employment pattern before October 1992. In any event, even assuming that the Respondent’s as- sertions are accurate, it is our view that the Respond- ent’s most recent employment history is more relevant to our inquiry than are more remote periods when the Respondent purportedly was not engaged in business at all in the locality covered by the bargaining agreement. Finally, we find that the cases relied on by the Re- spondent, in which the Board found a stable one-man unit, are factually distinguishable. In Stack Electric, 290 NLRB 575, 577 (1988), the employers there em- ployed more than one employee for only about 2 weeks over a 3-year period, and employed no more than one employee during the remainder of that period. At the time of the hearing, the employers had em- ployed no more than one employee continuously for several months. In Searls Refrigeration Co., 297 NLRB 133, 135 (1989), one of two individuals at issue was found to be a supervisor and, following his exclu- sion, only a one-man employee unit, at most, re- mained. In D & B Masonry, 275 NLRB 1403, 1408– 1410 (1985), the employer employed only one em- ployee at the time of the hearing and the most recently laid-off unit employees had no reasonable expectation of reemployment, or worked elsewhere. In Garman Construction Co., 287 NLRB 88, 94 (1987), there was no factual dispute that the employer employed only one unit employee. And in Haas Garage Door Co., supra, two of the three individuals at issue were found to be independent contractors, leaving, at most, one unit employee.4 Accordingly, we adopt the judge’s finding that the Respondent violated Section 8(a)(5) and (1) by repudi- ating its obligations under the 1992–1995 bargaining agreement with the Union. ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge and 128 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1 All dates herein refer to 1992 unless otherwise indicated. 2 All agree that Respondent is an employer primarily engaged in the building and construction industry. Because Respondent volun- tarily entered into a collective-bargaining relationship with the Union by virtue of the Letter-of-Assent-A without regard to whether the Union had the support of a majority of the employees, or indeed without regard to whether there were any employees at the time, I conclude that an 8(f) relationship has been established initially and through succeeding contracts. Stack Electric Co., 290 NLRB 575, 577 (1988); Bifco Corp., 291 NLRB 1015, 1015 (1988). orders that the Respondent, Oscar David McDaniel d/b/a McDaniel Electric, Anaheim, California, its offi- cers, agents, successors, and assigns, shall take the ac- tion set forth in the Order. Ann L. Weinman, Esq., for the General Counsel. Wayne A. Hersh and Jon G. Miller, Esqs., of Irvine, Califor- nia, for the Respondent. Robert B. Bowen, Business Representative, of San Bernardino, California, for the Charging Party. DECISION STATEMENT OF THE CASE MICHAEL D. STEVENSON, Administrative Law Judge. This case was tried before me at San Bernardino, California, on March 16, 1993,1 pursuant to a complaint issued by the Re- gional Director of Region 31 for the National Labor Rela- tions Board on December 23 and which is based on a charge filed by International Brotherhood of Electrical Workers, Local 477, AFL–CIO (the Union) on November 17. The complaint alleges that Oscar David McDaniel d/b/a McDaniel Electric (Respondent) has engaged in certain viola- tions of Section 8(a)(1) and (5) of the National Labor Rela- tions Act (the Act). Issues Whether Respondent, while a party to an 8(f) agreement with the Union, failed to abide by and repudiate the agree- ment in violation of the Act. All parties were given full opportunity to participate, to in- troduce relevant evidence, to examine and to cross-examine witnesses, to argue orally, and to file briefs. Briefs, which have been carefully considered, were filed on behalf of the General Counsel, the Charging Party, and Respondent. On the entire record of the case, and from my observation of the witnesses and their demeanor, I make the following FINDINGS OF FACT I. RESPONDENT’S BUSINESS Respondent admits that for all times material herein it is a sole proprietorship owned by Oscar McDaniel d/b/a McDaniel Electric and engaged in the construction business as an electrical contractor and having an office and principal place of business located in Anaheim, California. Respond- ent, in the course and conduct of its business operations, an- nually sells goods or provides services valued in excess of $50,000 to customers or business enterprises within the State of California, which customers or business enterprises them- selves meet one of the Board’s jurisdictional standards, other than the indirect inflow or indirect outflow standard. Further- more, Respondent, in the course and conduct of its business operations, annually derives gross revenues in excess of $250,000. Accordingly, it admits, and I find, that it is an em- ployer engaged in commerce and in a business affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Respondent admitted and stipulated during the hearing (Tr. 9), and I find, that International Brotherhood of Electrical Workers, Local 477, AFL–CIO, is a labor organization with- in the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICE A. The Facts On December 3, 1978, Respondent executed a Letter of Assent-A (G.C. Exh. 2), the effect of which is that Respond- ent has, since that time, been bound to a series of successive collective-bargaining agreements (Inside Wireman’s Agree- ment) between the Union and Southern Sierras Chapter, Na- tional Electrical Contractors Association (NECA). The agree- ments, including the most recent which is effective between June 1, 1992, through May 31, 1995 (G.C. Exh. 3), cover jobsites located in San Bernardino, Inyo, and Mono Counties within the State of California. The last agreement requires, inter alia, that the Union be the exclusive source of employment referrals for Respondent (G.C. Exh. 3, p. 21) and that Respondent regularly contribute certain payments to benefit trust funds on behalf of its unit employees (G.C. Exh. 3, p. 72 et. seq.). Since early October (G.C. Exh. 4(a)) Respondent has per- formed work as an electrical subcontractor at a construction project called the Cooley Ranch Elementary School, located in Colton, California, which in turn is located within San Bernardino County. The general contractor on this same project is Gentosi Brothers, to whom Respondent submitted weekly payroll records, dated for weeks ending October 3 through February 27, 1993 (G.C. Exhs. 4(a)–4(aa)). At hearing, the parties agreed and stipulated that for all times material to this case, Respondent has not complied with the terms and conditions of the agreement with the Union nor has Respondent sent a termination letter to the Union or to NECA (Tr. 19–20). B. Analysis and Conclusions The parties do not dispute that for all times material to this case, Respondent and the Union had a collective-bargaining relationship governed by Section 8(f) of the Act.2 Accord- ingly, I look first to the Board’s decision in John Deklewa & Sons, 282 NLRB 1375 (1987), enfd. sub nom. Iron Work- ers Local 3 v. NLRB, 843 F.2d 770 (3d Cir. 1988), for guid- ance. In that case, the Board overruled previous interpreta- tions of Section 8(f) and held that prehire agreements made pursuant to Section 8(f) are ‘‘binding, enforceable and not subject to unilateral repudiation throughout their term (id. at 1389 fn. 62). To ensure that employers and unions had avail- able appropriate means for redress, the Board also stated in Deklewa that a collective-bargaining agreement permitted by 129 MCDANIEL ELECTRIC 3 In her brief, p. 4, the General Counsel refers to the ‘‘jobsite pay- roll records for the weeks ending September 27, 1992 ‘‘This appears to be a mistake since the first payroll record in evidence is for the week ending October 3 (G.C. Exh. 4(b)). Furthermore, when the General Counsel first introduced the records, she described the first date as October 3, 1992 (Tr. 15). Section 8(f) shall be enforceable through the mechanisms of Section 8(a)(5) and Section 8(b)(3). The principles established by the Board’s decision in Deklewa & Sons are subject to an exception where applica- ble. As explained by the Board in Stack Electric Co., supra, 290 NLRB at 577: In D & B Masonry, 275 NLRB 1403 (1985), the Board adopted the judge’s discussion of this issue at 1408. It is settled that if an employer employs one or fewer unit employees on a permanent basis that the employer, without violating Section 8(a)(5) of the Act, may with- draw recognition from a union, repudiate its contract with the union, or unilaterally change employees’ terms and conditions of employment without affording a union an opportunity to bargain. SAC Construction Co., 235 NLRB 1211, 1230 (1978); Sunray Limited, 258 NLRB 517, 518 (1981); Chemetrons Corp., 268 NLRB 335 (1983). The basis for permitting an employer to en- gage in this conduct was explained by the Board in Foreign Car Center, 129 NLRB 319, 320 (1960), as follows: The Board has held that it will not certify a one-man unit because the principles of collective bargaining presuppose that there is more than one eligible per- son who desires to bargain. The Act therefore does not empower the Board to certify a one-man unit. By parity of reasoning, the Act precludes the Board from directing an employer to bargain with respect to such a unit. While we have held that the Act does not preclude bargaining with a union on behalf of a single employee, if an employer is willing, we have never held that an employer’s refusal to bargain with a representative on behalf of a one-man unit is a re- fusal to bargain within the meaning of Section 8(a)(5). See also Jervis B. Webb Co., 302 NLRB 316, 317 fn. 7 (1991). As its sole defense in the instant case, Respondent con- tends that it had only a single unit employee, Richard Harris; Respondent concludes therefore, that ‘‘employers with one or fewer unit employees are free to: (1) withdraw recognition from a Union; (2) repudiate their purported contracts with a Union, or (3) unilaterally change their employees terms and conditions of employment without affording a Union an op- portunity to bargain.’’ (Br. pp. 3–4, Tr. 14–15). The General Counsel, on the other hand, contends that Re- spondent employed four unit employees, Harris, Brian McDaniel (son of Respondent’s owner), Mario Magdaleno, and Marcelino Lepe (Tr. 22–23). Because none of the four alleged unit employees testified, I must look to Respondent’s payroll records (G.C. Exh. 4) to resolve the issue. Summary of Payroll Records3 For Week Ending Brian McDaniel Richard Harris Mario Magdaleno Marcelino Lepe 10/3 ........................................................... (G.C. Exh. 4(b)) ....................................... 9/30 (8 hrs.), 10/1 (1 hr.) 9/30 (8 hrs) 10/10 ......................................................... (G.C. Exh. 4(c)) ....................................... 10/7 (4 hrs.), 10/8 (8 hrs.) 10/8 (8 hrs.) 10/17 ......................................................... (G.C. Exh. 4(d)) ....................................... 10/12 (3 hrs.), 10/14 (4 hrs.) ................................................................ 10/15 (8 hrs.) 10/24 ......................................................... (G.C. Exh. 4(e)) ....................................... 10/19 (7 hrs.), 10/21 (8 hrs.) 10/21 (8 hrs.), 10/22 (8 hrs.) ................................................................ 10/22 (8 hrs.) 10/31 ......................................................... (G.C. Exh. 4(f)) ........................................ 10/27 (2 hrs.), 10/28 (7 hrs.) 10/27 (2 hrs.), 10/28 (7 hrs.) ................................................................ 10/29 (8 hrs.) 10/29 (8 hrs.) 11/7 ........................................................... (G.C. Exh. 4(h)) ....................................... 11/2–11/6 (8 hrs./day) 11/2–11/6 (8 hrs./day) 11/l4 .......................................................... (G.C. Exh. 4(i)) ........................................ 11/9–11/13 (8 hrs./day) 11/9–11/13 (8 hrs./day) 11/21 ......................................................... 130 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 In its brief, p. 3, the Union describes Brian McDaniel as ‘‘fore- man on the project.’’ Because he is excluded from the unit based on his status as son of the owner, it is unnecessary to consider the question as to whether Brian McDaniel was a statutory supervisor. Further, this issue was never litigated. Summary of Payroll Records3—Continued For Week Ending Brian McDaniel Richard Harris Mario Magdaleno Marcelino Lepe (G.C. Exh. 4(j)) ........................................ 11/16–11/20 (8 hrs./day) 11/16–11/20 (8 hrs./day) 11/28 ......................................................... (G.C. Exh. 4(k)) ....................................... 11/23 (8 hrs.), 11/24(8 hrs.) 11/23 (8 hrs.), 11/24 (8 hrs.) ................................................................ 11/25 (4 hrs.) 11/25 (4 hrs.) 12/5 ........................................................... (G.C. Exh. 4(m)) ...................................... 11/30–12/4 (8 hrs./day) 11/30–12/4 (8 hrs./day) 11/30–12/4 (8 hrs./day) 12/12 ......................................................... (G.C. Exh. 4(n)) ....................................... 12/7–12/11 (8 hrs./day) 12/7–12/11 (8 hrs./day) 12/7–12/11 (8 hrs./day) 12/19 ......................................................... (G.C. Exh. 4(o)) ....................................... 12/14–12/18 (8 hrs./day) 12/14–12/18 (8 hrs./day) 12/14–12/18 (8 hrs./day) 12/26 ......................................................... (G.C. Exh. 4(p)) ....................................... 12/21 (8 hrs.), 12/22 (8 hrs.) 12/21 (8 hrs.), 12/22 (8 hrs.) 12/21 (8 hrs.) ................................................................ 12/22 (8 hrs.) 1/2/93 ........................................................ (G.C. Exh. 4(q)) ....................................... 12/28 (8 hrs.), 12/29 (8 hrs.) 12/28 (8 hrs.), 12/29 (8 hrs.) 12/28 (8 hrs.) ................................................................ 12/30 (8 hrs.) 12/29 (8 hrs.) 1/9/93 ........................................................ (G.C. Exh. 4(s)) ....................................... NO WORK NO WORK NO WORK NO WORK 1/16/93 ...................................................... (G.C. Exh. 4(t)) ........................................ 1/11 (6 hrs.), 1/12 (6 hrs.) ................................................................ 1/13 (6 hrs.), 1/14 (2 hrs.) 1/23/93 ...................................................... (G.C. Exh. 4(u)) ....................................... 1/19 (2 hrs.), 1/21 (5 hrs.) ................................................................ 1/22 (6 hrs.) 1/30/93 ...................................................... (G.C. Exh. 4(v)) ....................................... 1/25–1/29 (8 hrs./day) 1/25–1/29 (8 hrs./day) 1/29 (8 hrs.) 2/6/93 ........................................................ (G.C. Exh. 4(x)) ....................................... 2/1–2/5 (8 hrs./day) 2/1–2/5 (8 hrs./day) 2/2 (8 hrs.) 2/13/93 ...................................................... (G.C. Exh. 4(y)) ....................................... 2/10 (8 hrs.), 2/12 (8 hrs.) 2/10 (8 hrs.), 2/12 (8 hrs.) 2/20/93 ...................................................... (G.C. Exh. 4(z)) ....................................... 2/15 (2 hrs.), 2/16 (6 hrs.) 2/15 (2 hrs.), 2/16 (6 hrs.) ................................................................ 2/17 (8 hrs.) 2/17 (8 hrs.) 2/27/93 ...................................................... (G.C. Exh. 4(aa)) ..................................... 2/22–2/26 (8 hrs./day) 2/22–2/26 (8 hrs./day) 2/22–2/26 (8 hrs./day) 2/22–2/26 (8 hrs./day) In analyzing the payroll records, I first disregard Brian McDaniel because, as the son of Respondent’s owner, he is not an ‘‘employee’’ pursuant to Section 2(3) of the Act.4 ‘‘Where the employer does business as a sole proprietorship [as is true here], it is clear that the employer’s children . . . are statutorily excluded.’’ II Hardin, Developing Labor Law 1633 (3d Ed. 1992) citing Johnson Metal Products, 161 NLRB 844 (1966). Turning next to the payroll records, I count 21 weeks of work and 1 week of no work. For the first 9 weeks; Re- spondent had only a single unit employee, Harris. Thereafter beginning the week ending December 5, Respondent had 131 MCDANIEL ELECTRIC 5 The Deklewa footnote reads as follows: ‘‘Accordingly, the Re- spondent’s defense that it employed no ironworkers when it repudi- ated the contract is without merit. An 8(f) contract is enforceable throughout its term, although at a given time there may not be any employees to which the contract would apply.’’ 6 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and rec- ommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes. more than a single employee on 8 out of the remaining 13 weeks. In Haas Gargage Door Co., 308 NLRB 1186, 1187 (1992), the Board stated: [T]he Board has held that the one-man unit rule applies in an 8(f) context. That rule provides that when a unit consists of no more than a single permanent employee at all material times, an employer has no statutory duty to bargain and thus, will not be found in violation of the Act for disavowing a bargaining agreement and re- fusing to bargain. [Emphasis added.] The Board then reversed the administrative law judge and dismissed the case finding that Respondent had no employ- ees doing unit work. Despite the Board’s flat statement quoted above, other cases reflect that the Board does not intend to apply me- chanically the ‘‘one man unit’’ rule. For example, in Searls Refrigeration Co., 297 NLRB 133 (1989), the Board af- firmed the decision of the administrative law judge rec- ommending dismissal of a case though Respondent had em- ployed two persons on a part-time basis over a period of 2 months out of a 27-month period. One of the two persons may have been a supervisor. However, the administrative law judge in Searls Refrigeration Co. noted that in Stack Electric Co., the Board applied the ‘‘one man unit’’ rule to one of the respondents (North Town), even though North Town em- ployed two employees during 2 weeks of the 3-year contract term. The administrative law judge concluded that, ‘‘appar- ently, the Board considered the 2-week period to be insignifi- cant under the circumstances’’ (id. at 135). The work performed by the two- or three-person unit in the present case for the weeks in question cannot be consid- ered insignificant. Rather the facts here show the type of fluctuation in unit size which would be typical for many em- ployers during construction work and which is the basis for Section 8(f) of the Act. In Garman Construction Co., 287 NLRB 88 (1987), the Board reversed the administrative law judge and found application of the ‘‘one man unit’’ rule to be proper in that case. However, in Garman Construction, supra at 89 fn. 8, the Board added: We note that had the facts been different and the unit of operating engineers been subject to fluctuations in size, only temporarily decreasing in size to a single em- ployee unit, the Respondent’s actions would have vio- lated Section 8(a)(5) of the Act. See Deklewa above at fn. 62.5 Respondent’s argument that the repudiation occurred dur- ing the initial 2 months, after which it was free to disavow the 1978 agreement would allow an employer to manipulate its work schedule to defeat its bargaining obligations. Only by looking at the total work schedule for all the weeks in issue can a proper decision be reached. By examining the total work schedule in this case and all other relevant evidence, I find that Respondent has violated Section 8(a)(5) and (1) of the Act because under the cir- cumstances present in this case, the Board’s one-person unit defense is not available. I further find that Respondent’s au- thorities of Stack Electric, and D & B Masonry may be dis- tinguished on their facts and do not apply to this case. THE REMEDY Having found that Respondent has engaged in an unfair labor practice, I will recommend that it be ordered to cease and desist and take certain affirmative actions designed to ef- fectuate the policies of the Act. The Respondent will be or- dered to make whole, as prescribed in Ogle Protection Serv- ice, 183 NLRB 682 (1970), any employees for losses they may have suffered as a result of the Respondent’s failure to adhere to the contract, with interest, as computed in New Ho- rizons for the Retarded, 283 NLRB 1173 (1987). CONCLUSIONS OF LAW 1. The Respondent, Oscar David McDaniel d/b/a McDaniel Electric, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union, International Brotherhood of Electrical Workers, Local 477, AFL–CIO, is a labor organization with- in the meaning of Section 2(5) of the Act. 3. The following described employees of Respondent con- stitute a unit appropriate for the purposes of collective bar- gaining within the meaning of Section 9(b) of the Act: Included: All inside wiremen, including journeymen and apprentices employed by Respondent in San Bernardino, Inyo and Mono Counties, California. Excluded: All other employees, guards and super- visors as defined in the Act. 4. By repudiating its current collective-bargaining agree- ment with the Union, by refusing to honor and abide by the terms of article IV, referral procedure of the 1992–1995 In- side Wireman’s Agreement between the Union and Southern Sierras Chapter of NECA and by refusing to make trust fund contributions as required by the same agreement, the Re- spondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (5) of the Act. 5. These unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommended6 ORDER The Respondent, Oscar David McDaniel d/b/a McDaniel Electric, Anaheim, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Repudiating its current collective-bargaining agreement (Inside Wireman’s Agreement) with the Union. 132 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 7 If 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.’’ (b) Refusing to honor and abide by the terms of article IV, referral procedure of the 1992–1995 Inside Wireman’s Agreement. (c) Refusing to make trust fund contributions as required by the same agreement. (d) In any like or related manner interfering with, restrain- ing, or coercing employees in the exercise of the rights guar- anteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act. (a) Honor and adhere to the current collective-bargaining agreement (Inside Wireman’s Agreement) entered into by the Southern Sierra Chapter of NECA and the Union. (b) Make all past due and current trust fund contributions as required by the same agreement referred to in 2(a) above. (c) Make whole any employees, in the manner set forth in the remedy, for any losses they may have suffered as a result of the Respondent’s failure to adhere to its contract. (d) Preserve and, on request, make available to the Board or its agents for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (e) Post at its Anaheim, California office, copies of the at- tached notice marked ‘‘Appendix.’’7 Copies of the notice, on forms provided by the Regional Director for Region 31, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vio- lated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT repudiate our current collective-bargaining agreement (Inside Wireman’s Agreement) with the Inter- national Brotherhood of Electrical Workers, Local 477, AFL–CIO. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL honor and adhere to the current collective-bar- gaining agreement entered into for the period June 1, 1992, through May 31, 1995, between the Southern Sierras Chapter of NECA and the Union. WE WILL make all past due and current trust fund con- tributions as required by the same agreement referred to im- mediately above. WE WILL make employees whole for any losses they may have suffered as a result of our failure to adhere to the col- lective-bargaining agreement described above. OSCAR DAVID MCDANIEL D/B/A MCDANIEL ELECTRIC