D & B Masonry

D & B MASONRY Donnie M. • Parris, a Sole Proprietorship d/b/a D & B Masonry and International Union of Brick- layers & Allied Craftsmen, Local Union ' No. 12, affiliated with International Union of Bricklay- ers & Allied Craftsmen .of America, AFL-CIO. Case 32-CA-6067 15 August 1985 DECISION AND ORDER - BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 21 November 1984 Administrative Law Judge Jerrold H.; Shapiro issued the attached deci- sion. The General Counsel filed exceptions and a supporting brief, and the Charging Party filed cross-exceptions and a supporting brief. The Re- spondent filed limited cross-exceptions, and a brief in support of the judge's decision. - The National Labor Relations Board has delegat- ed its authority 'in this proceeding to a' three- member panel. The Board has considered the decision and the record in light of the exceptions' and briefs and has decided to affirm the judge's rulings, findings, and conclusions and to adopt the recommended Order. ORDER The recommended Order of the administrative law judge is adopted and the complaint- is dis- missed. i The General Counsel and the Charging Party have excepted to some of the judge's credibility findings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362_(3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings DECISION STATEMENT OF THE CASE JERROLD H. SHAPIRO, Administrative Law Judge. The hearing in this case'held August 16, 1984, is based on-,an unfair labor practice charge filed by Bricklayers Local Union No: 12 (the'Union) on November 16, 1983, and a complaint issued January 26, 1984, on behalf of the Gen eral Counsel of the National Labor • Relations Board (Board) by the Regional Director for Region 32 of the Board, alleging that Donnie M Parris, a sole proprietor- ship, d/b/a D & B Masonry (Respondent) has engaged in unfair labor practices' within the meaning of Section 8(a)(5) and (1) of the National Labor Relations Act' More specifically, the complaint alleges that Respondent was obligated-to abide by-the terms and conditions of its collective-bargaining contract with the Union until August 31, 1984, but that, in violation of its 'statutory 1403 duty to bargain, Respondent on June 17", 1983 notified the Union that, effective August 31, 1983, it intended to repudiate' the terms of this 'contract and withdraw recog- nition from the Union, and since August 31, 1983, Re- spondent has refused to implement and/or•abide by the terms and- conditions of its contract, with the Union and has engaged in this conduct without the consent of the Union and without affording the Union an opportunity to bargain about this conduct-or-the effects of the con- duct. Respondent filed an answer and an amended answer denying the commission of the alleged unfair labor practices. On the entire record,' from my observation of the de- meanor of the witnesses, and having considered the posthearing briefs, I make the following2 FINDINGS'OF FACT 1. JURISDICTION AND THE UNION'S STATUS AS A LABOR ORGANIZATION Respondent is a California sole proprietorship with its office and place of business in Stockton, - California, where it is engaged in the business of performing mason- ry services in the construction industry on 'a retail and nonretail basis. During the 12-month period immediately prior to the issuance of the complaint herein,- the Re- spondent, in the course and conduct of its business oper- ations, sold goods or 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 stand- ards. Respondent admits, and I find, that it is an employ- er engaged in commerce- within the meaning, of Section 2(6) and (7) of the Act. Likewise, Respondent admits, and 'I find, that the Union is a labor organization within the-meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. The Evidence 1. Respondent's collective-bargaining relationship with the Union Since it started doing business as a masonry contractor in 1977,` Respondent has been party to successive-collec- tive-bargaining • contracts with the Union covering his bricklayers. The complaint, as amended at the outset of The General Counsel's Motion to'Correct Record by substituting correct and complete copies of Jt Exhs I and 5 for these exhibits in the duplicate exhibit file is granted I note that the original exhibit file con- tains true and complete copies of those exhibits 2 Respondent, at the start of the hearing, moved that the instant case be reconsolidated with Case 32-CA-6303 and that the hearing be post- poned pending the decision of the-Regional Director to proceed on the complaint issued in that case or to administratively dismiss it for a lack of jurisdiction For reasons expressed at the hearing, I denied Respondent's motion In his posthearing brief, Respondent moves that I "reopen the record to receive evidence on the prejudicial effect the severance order has had upon Respondents " This motion is denied because Respondent was afforded ample opportunity during the hearing to submit such evi- dence when Respondent moved that 'the instant case be reconsolidated with Case 32-CA-6303 275 NLRB No. 193 1404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the hearing, alleges, and the Respondent admits, that all journeymen and apprentice bricklayers employed by Re- spondent at all jobsites at which Respondent provides masonry services, excluding office clerical employees, guards and supervisors as defined by the-Act, constitute an appropriate bargaining unit and that at all times mate-' rial herein the Union, by virtue of Section 9(a) of the Act, -has been the exclusive collective-bargaining repre- sentative of the employees in this unit. - -Respondent's most recent collective-bargaining con- tract with the Union covering his bricklayers was the Masonry Master Agreement between an employers' asso- ciation, the Builders Exchange of Stockton; Inc (Ex- change), and the Union. Respondent is not a member of the Exchange and is not otherwise represented by the. Exchange for collective-bargaining purposes. Respondent became a party to the aforesaid Masonry Master Agree- ment (Exchange Agreement) as an independent employer by signing a document on November 19, 1981, entitled "Agreement between [Union] and Independent Employ- er" (Independent Employer Agreement), which, in perti- nent part, reads as follows:3 - The undersigned employer„ not a member of or represented for collective bargaining purposes by the Builders' Exchange of Stockton, Inc., agrees to abide by the term of the (Tile)(Masonry) Master, Agreement . between the Builders' Exchange of Stockton, , Inc. (hereafter • "the Exchange") - and International Union of Bricklayers & Allied.Crafts- men; Local-Union #12, California (hereafter "the Union"), effective (hereafter "ihe Exchange Agreement") by any amendments entered into by the Uniori and the Exchange (hereafter "Subsequent - Exchange Agreement(s)"), including any amendments or modifications thereto.. This Agreement may be terminated by either the Union or the undersigned employer by giving notice of in- tention to terminate this Agreement at least -sixty (60) days prior to the expiration date of the Ex- change Agreement, unless a Subsequent Exchange Agreement. has been entered into, in which case written notice of intention to terminate must be given at least sixty (60) days prior to the expiration date of such Subsequent Exchange Agreement. This Agreement shall become effective as of. the 'date shown below and shall continue in effect for the du- ration of the Exchange Agreement; for- the' duration of any amendments or modifications to the : Ex- change Agreement executed-by the Union and the Association; and for the duration of-any)-Subsequent Exchange Agreement, including any amendments or modifications thereto. The sections in the exchange agreement, sections :3, 4, and 5, which-deal with the duration' of the agreement 3 Likewise, Respondent previously'had bound itself to abide by the terms of the 1976-1978 and 1978-1981 Exchange Agreements by signing Independent Employer agreements The language of these Independent Employer agreements signed by Respondent-differs -from' the Respond- ent's November 19, 1981 Independent Employer Agreement . • .. , • and. alterations, - deletions, additions, or changes to the agreement, read as follows- - Section 3. The duration of this Agreement shall lie from September 1, 1981, through August 31, 1983, and shall continue in force and effect until the Employer or the Employee [referring to the Union], hereinafter referred -to as "either party" shall desire a change. Section 4. Should either party- desire Alteration, Deletion, or Addition to any Article, Section or Sub-section of this Agreement, it,is agreed that: (A) the party desiring the Alteration, Deletion or Addition shall serve the other party notice, in writ- ing, of intent to call a meeting of the Grievance Committee representing each party (B) the party receiving the notice shall, within sixty (60) days of receipt of said notice, set the time and place of said meeting. (C) 'should the Grievance Committee represent- ing each party fail to-reach a mutual agreement on the Alteration, Deletion or Addition, then and in that event, said Article, Section or Sub-section shall remain in force and effect for the duration of the Agreement. Section 5. "Should- either party desire change in this Agreement, prior to the termination date of said Agreement, it is agreed that: (A) the party desiring the change shall serve notice, in writing, to the other party at least ninety (90) days prior to the effective date of said change or expiration date of this Agreement whichever be the later. (B)- the party receiving the notice shall set the time and place for the initial meeting of the Arbitra- tion Boards of the two parties Time and place of subsequent meetings shall be by mutual agreement. (C) any change, affecting - wages and/or fringe benefits, shall be retroactive to the ninetieth (90th) day following the posted date of said written notice. The section in the Exchange Agreement titled "Defini- tions" defines "Employer" as "all employers bound by this Agreement through their delegation of bargaining right to the Association . and all employers-bound by this Agreement through individually signing this Agree- ment." The circumstances surrounding Respondent's signing of the November 19, 1981 Independent Employer Agree- ment are as follows. Respondent was obligated to honor the terms of the 1978-1981 Exchange Agreement by virtue' of signing as an independent employer. The 1978- 198.1 Exchange Agreement was scheduled by its terms to expire August 31, 1;981. Late in August 1981, the Union and Exchange entered into the successor 1981-1983 Ex- change Agreement Between November 5 and' 12, 1981 Milton Stirm; the Union's- business representative and fi- nancial secretary,, visited Respondent and gave him a copy of the 1981-1983 Exchange Agreement with an at- tached copy of the Independent Employer Agreement and,asked him to sign the Independent Employer Agree- ment Respondent-.replied by stating. that "[he] ought to D & B -MASONRY just get out of the Union" because he could not compete against nonunion contractors. Stirm told him that he was stuck with the Exchange -Agreement because he had failed to send the Union a notice to terminate it. Re- spondent stated that he ' would keep the agreements which Stirm had given him and consider the matter Re- spondent in fact read the 1981-1983 Exchange Agree- ment and the attached Independent Employer Agree- ment. Thereafter, on November 19, 1981, Stirm visited Res'poudent"at -a` jobsiie where Respondent was working. Respondent, in response to Stirm's inquiry, indicated that he had not signed the Independent Employer Agree- ment Stirm responded by warning Respondent that if Respondent failed to sign that contract- that Stirm would have- to shut the job down, whereupon Respondent signed the Independent Employer Agreement.4 - Respondent • testified that the' reason he• indicated to Stirm that he wanted to go nonunion was due to the competition from the nonunion contractors which had caused him -to lose at least one job. When.asked-why he signed the November 19, 1981 Independent Employer Agreement, Respondent testified that he felt that since he had failed to give notice to the Union to terminate the 1978-1981 Exchange Agreement that there was nothing for him to argue about, so he signed The Independent Employer Agreement with. the hope that the Union would be able to sign his nonunion competitors to con- tracts. The 1981-1983. Exchange Agreement was scheduled by its terms to expire August 31, 1983. 'The agreement provided for two wage increases; one on the effective date of the agreement and the other on January 1, 1982 The agreement further provided that on September. 1, 1982, the subject of wages would be reopened for negoti- ations. Regarding the subject of dues checkoff, the 1981- 1983' Exchange Agreement obligated the employers to - withhold from the wages of each employee the'sum of 22 cents per man-hour worked and to pay this sum of money, which was designated as'"dues check-off," into a trust fund for the Union to use to-defray its operating ex- penses Late in May 1982, the Exchange's. executive vice presi- dent, Charles Gaff, suggested to;,the Union's financial secretary and business representative, Milton Stirm, that, - because of the poor state of the economy,- the parties, with respect tto the . September ,1,. 1982 contractual wage reopener, agree to a wage freeze. Stirm proposed that if the Union agreed to a wage freeze, that the Exchange agree to extend the 1981-1983 Exchange Agreement for 1 year and to increase the dues checkoff from 22 cents to , 30 cents an hour. Graff and Stirm agreed, .that the Ex change's and Union's negotiation committees would meet on June-8, 1982, to.discuss these matters. - _ - - : - When the negotiating committees met on June 8,..1982, the Union offered a written proposal entitled "Proposed Changes in, Masonry Master, Agreement" which' pro. posed -a freeze on, wages with a, provision that the wage' 4 Insofar as Stirm'sdescription of the circumstances leading to Re- spondent's signing of the November 19. 1981 Independent 'Employer Agreement differs from Respondent's, I have credited Respondent's de- scription because; demeanorwise , Respondent impressed me as the more credible,witnesss when they testified about these matters :., . - 1405 situation be reassessed March 1, 1983; that the 1981-1983, Exchange Agreement. be extended for, 1 year to August 31, 1984, with a provision that wages be reopened for negotiation September 1, •1983; and that the employers' - dues-checkoff contributions-be increased to 30 cents an hour effective July 1, 1982. The Exchange' s negotiators agreed to this proposal, which was reduced into writing in the form of an amendment to the 1981-1983 Exchange Agreement and signed by the parties This amendment, which is dated June 8, 1982, reads as follows: AMENDMENT NO. 1' TO MASONRY MASTER AGREEMENT -- This Agreement changes the Sections listed below to the Masonry Master Agreement dated September ARTICLE, I,, SECTION. 3-Change duration of this Agreement from August 31, 1983 to August 31, 1984. ARTICLE III, SECTION 4-Change date on OPEN item from 9/1/82 to 3/1/83 and 9/1/83 ARTICLE III, SECTION 8-Effective July 1, 1982, change amount - from Twenty -two cents (22 cents) to Thirty cents (30 cents). All other, provisions of this Masonry Master Agree- ment , shall remain unchanged. , This amendment extended the' 1981 - 1983 Exchange Agreement for 1 year, from August 31, 1983, to August 31, 1984, froie wages until September 1, 1983, at which time wages ould' be reopened for negotiations, and in- creased the"' amount of the dues checkoff from 22 cents to 30 cents per hour effective July 1, 1982, Neither the Union nor the Exchange gave Respondent notice of the negotiations which .-, culminated - in the above-described ' amendment of the 1981-1983 Exchange Agreement. Respondent was notified by the Union only after the negotiations were concluded and -the . amend- ment entered intolby. the parties.' On June 17, 1983,- Walter-E. Plumb, a labor-relations and-management consultant; on behalf of the Respond- ent, wrote the Union as follows: • Please be advised that this office-is authorized to represent. D & B Masonry in all labor relations mat- ters (copy of authorization attached) This shall fur- ther serve to cancel any and all prior authorizations to represent, whether written, verbal, or,implied, as may; have been executed with, or, asserted by, any other, parties. „ • , . ; , 5 The Exchange's, practice is to notify, by form letter, all of the em- ployers it represents about ithe scheduled: negotiations for a new Ex- change Agreement, or for the amendment of an existing exchange agree- ment, and to invite the employers to attend the negotiations The Ex- change also sends these identical letters to other employers , who, like Re- spondent , are not represented by the Exchange but are obligated to abide by the terms of an Exchange Agreement by virtue of having signed an Independent Employer Agreement However , due to the request of the Union, some of these Independent Employers including Respondent, are not given the aforesaid notification by the Exchange - 1406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This shall further serve as notice of the Employ= er's desire to cancel The Masonry Master Agree- ment with your union effective midnight, August 31, 1983. D'& B Masonry does not have a group of employees which would constitute a unit appropri- ate for the purposes of collective bargaining, there- fore, it is our belief that there is- no obligation to bargain with your union. . . If you have any questions, or require clarifica- tion, kindly contact the, undersigned. On July 5, 1983, the Union's lawyer, Marsha S. Berzon, wrote Plumb in response to his June 17, 1983 letter, as follows: - Bricklayers and Allied Craftsmen Local No. 12 has asked me to respond to your letter of June 17, 1983. As the enclosed document shows, D & B Mason- ry on November 19, 1981 bound itself to the terms of the Master Agreement then in effect between the Builders' Exchange of Stockton and Bricklayers Union, Local 12. D & B Masonry further agreed to be bound by "any subsequent agreements entered into by the Union and the Exchange." The binding effect of the enclosed document extends' "for the duration of any amendments or modifications to the Exchange Agreement executed by the Union and the Association." As I am sure you are aware, on June 8, 1982 the Builders'. Exchange of Stockton and Bricklayers, Local 12 entered into an agreement that, inter alia, extended the outstanding collective 'bargaining agreement to August 31, 1984. There is no question that the enclosed agreement -between D& B Mason- ry and Local 12 was in effect on June 8, 1982. As the plain language of the enclosed document shows, D & B Masonry is therefore fully bound by the terms -of the collective bargaining agreement presently in effect between the Builders' Exchange and Local 12 until that agreement expires on August 31, 1984. Your purported cancellation of the Masonry Master Agreement as of midnight, August 31, 1983 is therefore ineffective. On July 11, 1983, Plumb wrote Attorney Berzon in re- sponse to her July 5; 1983 letter, as follows: This is in response to your letter of July 5, 1983 In citing the excerpt from the Independent Em- ployer Agreement, you chose to overlook the pro- vision which states, "This Agreement.may be termi- nated by either the union or the-undersigned em- ployer by giving written notice of intention to ter- minate this Agreement at.least sixty (60) days prior, to the expiration date of the Exchange Agreement, unless a subsequent. Exchange Agreement has been entered into, in which case written notice of, inten= tion to terminate must be given at least sixty (60) days prior to the expiration date of such subsequent Exchange Agreement " The June 8_1982 1982 Agreement you referred to was not a "Subsequent Exchange Agreement," it was "Amendment No 1"; and whereas it provided for a change in the duration of the present Agreement, that does not negate the Independent Employers right to terminate his Agreement pursuant to the above Termination provision. If an Independent Employer was bound by - an amendment between the Association and the ' union which provided for a .change in duration to that Agreement, it would be possible for the Association and the, union to effect successive amendments that would result - in the Independent Employer never having the opportunity to assert his right to termi- nate said Agreement, and all amendments subse- quent thereto. • The Employer entered into the current Agree- ment with the expressed right to terminate that ,Agreement upon giving the required sixty (60) days notice-prior to the stated expiration date -. Said notice has been duly served,- and all terms and conditions set forth therein shall be inoperative after midnight, August 31, 1983. On July 14, 1983, Attorney Berzon wrote Plumb in re- sponse to his July 11, 1983 letter, as follows: This, is in response to your letter of July 11, 1983. It remains our position that the'entire Agreement, read in context, clearly states that it shall remain in effect for the duration of any amendments to the Exchange Agreement. Since the present "expiration date of the Exchange Agreement" is therefore not until August, 1984, your' client, remains bound at least until that date. Contrary to your assertion, an Independent Em- ployer certainly can , terminate the agreement, as long as he gives the union notice at least, sixty days before the expiration date of the Exchange Agree- ment. However, an Employer cannot give notice after the expiration date has. been extended and hope to take advantage of the earlier, superseded date. - - Bricklayers Local 12 fully intends to enforce.the Agreement between it and your client Should D & B Masonry -.violate or repudiate that Agreement prior to its expiration on August 31, 1984, we are fully. prepared to file the necessary legal proceed- ings with the National Labor Relations Board or the courts - _The'Plumb-Berzon correspondence concluded on July 18, 1983, when, Plumb wrote Attorney Berzon, as fol- lows: • In reference to your letter of July 14, 1983, we disagree with your position. Timely 'notice has been filed pursuant'to the ter- mination language of the Agreement signed by the Employer. . . -- D & B Masonry will' not be bound by, or comply with any of the terms and conditions of the Brick- layers & Allied Craftsmen Local No. 12, California Independent Employer' Agreement after midnight,' D-& B MASONRY 1407 August 31, 1983;- and will repudiate any alleged agreement extending. beyond said date. Do what you will. Our position is clear. As a ' matter of fact, Respondent, after midnight August 31, 1983, repudiated the terms and conditions of the 1981-1983 Exchange Agreement and has since that date failed to abide by the terms of that agreement and the June 8, 1982 amendment to that agreement. 2. The'number of employees in the appropriate unit As I have indicated supra, in his answer to the amend- ed complaint,- Respondent admitted that all of the. brick- layers employed by Respondent at,all jobsites at which Respondent provided masonry services 'constituted an appropriate bargaining unit . This is the unit of Respond- ent's employees represented by the Union who were covered by the 1981-1983 Exchange Agreement by virtue of the November 19, 1981 Independent Employer Agreement signed by Respondent The record contains the names and employment dates of Respondent's brick- layers employed from January 1983 to August 16, 1984, the date,of the hearing in this case. This evidence can be briefly summarized-as follows. ' Respondent's brother, Robert Parris, was employed as a bricklayer by Respondent. during this entire period of time, January_1983 to August 16, 1984. . Eddie Cole. was employed by Respondent as a brick- layer from January to April 1983, when he quit his job with. Respondent to go to work for another employer and was replaced by Ollie Mabrey6 who worked for Re- spondent as a bricklayer the last 2 weeks of April 1983, when he was laid off for lack of work.7 Thereafter, at some undisclosed point of time, Respondent, when it needed the services of a bricklayer, offered the job to Mabrey who turned it down. Jim Frazier was employed by Respondent as a brick- layer from September 6 to approximately October 6, 1983,8 when he was reassigned by Respondent to do hod carrier, work because Respondent felt he, was not quali- fied to do bricklaying work. Frazier was still employed as a hod carrier by, Respondent as of the date of the hearing in ,this case.9, _ 6 Before hiring Cole in January 1983, Respondent had initially sought to hire Mabrey for that job, but Mabrey at. the time was working for an- other employer and, because of this, rejected Respondent's job offer, which led to Cole's employment 1 1. ` The record reveals that at some point of time not identified in the record, but before January 1983, Respondent employed Mabrey and Cole as bricklayers at the same time However, the record does not reveal the circumstances of this employment, its'duration, or how it ended 8 Frazier learned that' Respondent needed a bricklayer from a help wanted ad Respondent had placed in a local newspaper 9 Union Business Representative Stirm testified that in March 1984 he observed Frazier'on two separate occasions working for Respondent- the first time for approximately 20 minutes and approximately 30 minutes the second time-and that each time Frazier, was doing the type of brick- layer's work covered by the 1981-1983 Exchange Agreement Respond- ent'testified'that the kind of bricklaying work which Stirm observed Fra- zier performing was usual and customary for hod carriers to do, especial- ly if they were employed by small contractors such as Respondent Re- spondent further testified that after he was reassigned to his position as a hod carrier, Frazier spent approximately only 1 percent of his working time doing bricklaying work I am of 'the view that 'Stirin's aforesaid tes- timony is insufficient to impugn the reliability of Respondent's - testimony Bill Colvin was employed by Respondent as a brick- layer, from September 20, 1983, until May 1984. There is no evidence concerning the circumstances surrounding his hire or termination. From Colvin's termination in May 1984 until August 16, 1984, the date of the hearing, Respondent-only em- ployed one bricklayer, Respondent's brother, Robert Parris. However, early in 1984, on a date or dates not set forth in the record, Respondent subcontracted bricklay- ing work to Tom Washburn for three different jobs, pur- suant to a verbal agreement wherein Respondent agreed to pay, and in fact paid, Washburn for labor and materi- als supplied to Respondent. Respondent testified that the only time he has ever subcontracted bricklaying work in- volved his 1984 subcontracts with Washburn. Respondent testified that his business, because of its nature, requires only two full-time bricklayers, himself and his brother, Robert Parris, and that only once in a while does his business require the employment of a third bricklayer (Tr. 107), and further testified that in November 1981, when he spoke to Union Business Rep- resentative Stirm prior to signing the November 19, 1981 Independent Employer Agreement, it was his intention to continue to operate his business employing as brick- layers just himself and his brother "and possibly once in a while, one other bricklayer." (Tr. 115.)10 Respondent also testified that from April 1983 to the date of the hearing, August 16, 1984, he has bid on be- tween 20 and 30 jobs, the same number of jobs which Respondent has bid on in the past. Also Respondent tes- tified that since April 1983 his gross revenues have in- creased from what they were before that date. Lastly, Respondent testified that since April 1983 his company, approximately 50 percent of the time, has been working on two projects simultaneously. 3. Robert Parris' supervisory status As indicated' supra, Respondent's brother, Robert Parris (Parris), has 'been employed at all times material by Respondent.' Parris spends 99 percent, of his work time working with the tools as a bricklayer Pursuant to the industry practice of having a hod carrier work with a bricklayer as his helper, Parris works with a hod carri- er as his helper The hod carrier sets up Parris' scaffold- ing, supplies him with the materials he needs to do his job, and cleans up and performs other "gopher" duties as assigned. As indicated supra,' Parris and Respondent's other bricklayers[ were represented by the Union, where- as ,the-hod carriers-employed by Respondent were repre- sented by the Laborers Union in a separate bargaining unit,separate and apart from the bricklayers. I therefore find that although Frazier, since his reassignment from-brick- layer to hod carrier, has performed bricklaying, work, that in comparison to the•amoiint of time spent m doing hod. carrier work, the bricklaying work only takes up a de minimis amount of his total working time 10 In his posthearing brief, Respondent asserts that in April 1983 Re- spondent decided to conduct his business in a manner which reduced the number of bricklayers to at most one employee This misstates the record Respondent, as described above, testified in effect that his busi- ness, due to its nature, has always, even prior to April 1983, only re- quired two full-time bricklayers, himself and`liis brother, and that only once in a while does' it require the employment -of a third bricklayer 1408 DECISIONS OF NATIONAL LABOR. RELATIONS BOARD Respondent testified that normally the only communi- cations pertaining to work between Parris and his hod carrier would be Parris' telling the hod carrier what ma- terials Parris needed to do his bricklaying work. Re- spondent testified that Parris does not give the hod carri- er any other instructions (Tr. 147,,L.25 to Tr. 149, L 16). On the rare occasions when there is another bricklayer employed by Respondent on the same jobsite as.Parris, Respondent testified that at the start of the workday Parris tells the other bricklayer what needs to be done, i.e.,. which house to work on or what part of the house to work on. More specifically, Respondent testified that when Bill Colvin, who was employed by Respondent as a bricklayer from September ,1983 to April 1984, worked on the same jobsite as Parris, that at the start of the workday Parris told him what work there was to do and where to work and that after that Colvin worked on his own without any instruction (Tr. 149, L. 23 to Tr. 152, L. 21). Respondent testified that he was absent approximately 50 percent of the time from the jobsites where his broth- er worked as a bricklayer (Tr. 100, LL. 16-18) and that in his absence he told his brother what he wanted the other workers to do and told him that if they,did not do their work "to get onto them" and "to make sure the job gets done," and also told the other workers that his brother knew what he wanted done and that they should do what his brother told them. Respondent further testi- fied that his brother "could send someone home" and that when there were "problems" on a jobsite when Re- spondent was absent, that his brother would usually tell Respondent about the problems and most of the time would consult with him about the problems and some- times ask for Respondent's recommendation about what to do about the problems. - On those jobsites where his brother is not working, Respondent testified that at the start of the workday Re- spondent goes to the jobsite and shows the bricklayer what he wants done, then leaves and does not return until the afternoon to check the job; whereas, normally Respondent does not check his brother's job Lastly, Respondent testified that his brother has never hired or fired anyone. However, when asked whether his brother had the authority to fire someone when Re- spondent was absent from the jobsite, Respondent testi- fied "if it was necessary." B -Discussion and Conclusions In: support of the allegation that Respondent violated Section 8(a)(5) by repudiating the 1981-1983 Exchange Agreement on August 31, 1983, the General Counsel contends that Respondent was • obligated to honor the agreement until August 31, 1984, because its June 17, 1983 cancellation notice to the Union was untimely in re- lationship to the June- 1982, amendment of the agree- ment, which, among other things,- extended the agrees ment for another year. In support of the further allega- tion that Respondent violated Section 8(a)(5) by with- drawing recognition from the Union on June 17, 1983, and by unilaterally changing the unit employees' terms and conditions of employment on August.31, 1983, with- out affording the Union an opportunity to bargain, the General Counsel points to the undisputed evidence that Respondent engaged in this conduct which, the General Counsel contends, as-a matter-of law, constitutes a refus- al to bargain within the meaning of Section 8(a)(5) of the Act. - Respondent takes the position that- its withdrawal of recognition from the Union-on June 17, 1983, its' cancel- lation of the 1981-1983 Exchange Agreement effective August 31, 1983, and its subsequent-unilateral, change of the employees' terms and conditions of employment set by that agreement, did not violate Section 8(a)(5) be- cause the unit of employees involved, Respondent's, bricklayers, did not constitute an appropriate unit for bargaining inasmuch as Respondent employed only,one or less bricklayer on a permanent basis; thus, Respondent was not legally obligated to bargain with the Union. Re- spondent also argues that even if the unit was an appro- priate one for bargaining, the allegation that Respondent illegally repudiated the 1981-1983 Exchange Agreement on August 31, 1983, should be dismissed because, by virtue of its June 17, 1983 notice of termination to the Union, the Respondent effectively terminated the agree- ment as of August 31, 1983. But, regarding the undis- puted evidence that on June 17, 1983, Respondent with- drew recognition from the Union and on August 31, 1983, changed 'employees' terms and conditions of em- ployment without affording the Union an opportunity to bargain, Respondent offers no defense other than its con- tention that it was not obligated to recognize and bargain with the Union for a unit of one or less, employees. In agreement with Respondent, I am persuaded, for the reasons set forth hereinafter, that the complaint must be dismissed in its entirety because the record fails to es-' tablish that Respondent employed more than one bar-' gaining unit employee on a permanent basis. 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 engage 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 bar- gaining presuppose that there is more than one eligi- ble person who desires to bargain. The Act there- fore 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 employ- er 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 refusal to bargain within the meaning of Section 8(a)(5). D & B MASONRY 1409 It is also settled that in the construction industry, an in- dustry characterized by intermittent employment, that laid-off employees, who have a reasonable expectation of reemployment within a reasonable time in the future, and thus have a continuing interest in the employers' work- ing conditions, are included in a bargaining unit as eligi- ble voters Daniel Construction Co., 133 NLRB 264 (1961), modified 167 NLRB 1078 (1967). In this regard, it has' been Tong held that voting eligibility is extended only to those laid-off employees who have "a reasonable expectation of reemployment within a reasonable time in the -future " NLRB v. Jess Jones Sausage Co., 309 F.2d 664, 665 (4th Cir. 1962). See also General ,Motors Corp., 92 NLRB 1752, 1753 (1951). In the instant case, Respondent testified that because of the nature of his business he only requires two full- time bricklayers, himself and his brother Robert Parris, and that only infrequently does the business require the employment of a third bricklayer. An analysis of the em- ployment history of the bricklayers employed by Re- spondent during the 19-1/2 month period from January 1983 to mid-August 1984 shows that during this period Robert Parris was in fact Respondent's only regular full- time bricklayer and that for 13 of those months Respond- ent at various times employed 4 other bricklayers: Cole, Mabrey, Frazier, and Colvin. Cole, who was employed approximately 3-1/2 months, quit his employment in mid-April 1983, to take a job with another employer." Mabrey worked for only 2 weeks in April 1983 and thereafter, on a date not identi- fied in the record, rejected a job offer from Respondent. There is no evidence that when Respondent laid Mabrey off in April 1983 for lack of work that Respondent promised to recall him or otherwise gave him reason to believe that he would be reemployed by Respondent within a reasonable time in the future. Frazier worked for Respondent as a bricklayer for a month in Septem- ber-October 1983, after which he was permanently reas- signed to the position-of hod carrier. Lastly, there is no evidence that the fourth bricklayer, Colvin, who was employed from late September 1983 until May 1984, ever worked for Respondent previously or that Respondent promised him that he would be reemployed for future work or otherwise gave him reason to believe that he would be reemployed by Respondent within a reasonable time in the future To sum up, as described supra, Respondent's custom- ary bricklaying work is performed by one regular full- time employee, Robert Parris and, as the need arises, by an additional bricklayer whom Respondent hires on an ad hoc basis i z and, when the work is done, lays off this I note the Board specifically excludes from the voting, unit those employees who quit voluntarily prior to the completion of the last job for which they were employed Daniel"Construction Co, 167 NLRB 1078, 1081 (1967) 11 The record reveals that Respondent normally employs no more than one extra bricklayer at a time The only time more than one extra brick- layer was employed at the same time during the period from January 1983 to August 1984 was when Frazier and Colvin were employed as bricklayers at the same time for approximately 2 weeks extra bricklayer. 'There is no evidence that the extra bricklayer is given an expectation that he will be reem- ployed in the future. That the Respondent is-not commit- ted to reemploying a bricklayer whom he -has employed in the past is illustrated by the fact that in hiring Frazier as a bricklayer the Respondent relied upon a help wanted ad in the newspaper, and that there is no evi- dence that two of the four bricklayers employed by Re- spondent, Frazier and Colvin, were ever previously em- ployed by Respondent. It is this lack of evidence that the laid-off bricklayers, who were employed intermittently by Respondent, have a reasonable expectation of reem- ployment within a reasonable time in the future, which persuades me that the General Counsel has failed to es- tablish that they have a community of interest with Robert Parris in Respondent's working conditions. Ac- cordingly, I find that they are casual employees, who are not part of the appropriate unit. It follows that during all times material herein the appropriate unit consisted of no more than a single employee, Robert Parris, who was employed regularly on a permanent basis 13 In view of this circumstance, Respondent was under no statutory obligation to bargain with the Union. I therefore for this reason shall recommend that the complaint be dismissed in its entirety Crispo Cake Cone Co., 190 NLRB 352 (1971), and Cre- scendo Broadcasting, 217 NLRB 697 (1975), cited by the General Counsel, are inapposite In those cases, the Gen- eral Counsel established that a bargaining unit comprised of two or more regularly employed employees existed at some point in time. Under this circumstances, applying the principle that a state of affairs shown to exist is pre- sumed to continue until the contrary is shown, the Board held that the respondent employers `had the burden of proving that the units were reduced to one or less unit employees. Here there is no evidence that at any time Respondent employed more than one regular unit em- ployee on a permanent basis Respondent's testimony, which is not impugned by the whole record, is that Re- spondent only employed one regular bricklayer on a per- manent basis and, as the business requires, hires other bricklayers on an intermittent basis. Likewise, Finger Lakes Plumbing & Heating Co., 253 NLRB 406 (1980), cited by the General Counsel, is inap- posite because there the record showed that the employ- er employed a permanent and stable work force of unit employees, albeit they were employed intermittently Here the record does not establish that the bricklayers employed by Respondent on an intermittent basis com- prised a permanent and stable group of workers. The sole evidence of stability among this group of workers consists of the fact that prior to January 1983, at an un- disclosed point in time, Cole and Mabrey had worked for Respondent for an undisclosed period of time, that they were again employed by Respondent in 1983, Cole for 3- 13 Respondent argues that Parris is not a unit employee because he is either a statutory supervisor or that, due to his relationship with Re- spondent, he does not have a community of interest with the other brick- layers employed by Respondent I have not considered these contentions because even if Parris is a rank-and-file employee, as I have assumed, the unit would be comprised of only one employee 1410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1/2 months .and Mabrey for 2 weeks, and that Mabrey was offered reemployment by Respondent in 1983 on two or more occasions. This evidence, in my view, is too skimpy to establish that the bricklayers employed by Re- spondent •ori an intermittent basis constitute a permanent and stable work force or that either Mabrey or Cole had reasonable expectations of reemployment with Respond- ent during the periods they were laid off. Lastly, I note that it is the absence of a showing that the laid-off. bricklayers employed by Respondent on an intermittent basis constitute a stable and permanent work force which distinguishes the instant case .from Daniel Construction" Co., 133 NLRB 264 (1961), where laid-off employees were found to be eligible to vote in a repre- poses sentation election. If they had worked, 30 days within the year preceding the election, or 45 days -within 2 years. On these findings of fact and conclusions, of law and on the entire record , I issue the following recommend- ed14 ORDER The complaint is dismissed in its entirety. 19 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended 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 pur-