Dependable Tile Company

710 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Jack E. Hartman, a Sole Proprietorship, d/b/a De- pendable Tile Company and Tile Layers Local Union No. 19, Bricklayers and Allied Craftsmen of America, AFL-CIO. Case 20-CA-16909 April 28, 1988 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On April 21, 1987, Administrative Law Judge William L. Schmidt issued the attached supplemen- tal decision. The Charging Party and the Respond- ent filed exceptions and supporting briefs. The General Counsel filed as its answering brief the brief and supplemental letter it submitted to the judge. 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, fmdings, 1 and conclusions as modified. In this backpay proceeding, a dispute arose as to the amount of reimbursement due certain trust funds and the amount of backpay due employees. The General Counsel's specification alleges that the Respondent owes employees the difference be- tween hourly rates specified in the 1981-1983 agreement and the rate paid for all hours worked from the period April 1, 1983, to August 14, 1986, and owes the trust funds the full amounts of the contributions specified in the contract in the 1981- 1983 agreement for the same period. The Respond- ent concedes the accuracy of the rates but claims no backpay or trust fund reimbursement is due after the 1981-1983 contract expired because it timely withdrew from the Association on July 11, 1983, before formal negotiations began for a new contract. A major source of contention between the par- ties is the legal significance of a meeting held July 8, 1983, between three members of the Associa- tion's negotiation committee and union negotiators to discuss forthcoming negotiations for a successor agreement. Under Retail Associates, 120 NLRB 388, 395 (1958), we "refuse to permit the withdrawal of an employer or a union from a duly established multiemployer bargaining unit, except upon ade- We correct the judge's inadvertent reference to April 1, 1980, as the date the strike commenced. The correct date is April 1, 1981 In the first paragraph in sec. C of his decision, he also inadvertently refers to the period from April 1, 1983, through September 30, 1983, as the period the Respondent was bound to the agreement The correct date is April 1, 1981. quate written notice given prior to the date set by the contract for modification, or to the agreed- upon date to begin the multiemployer negotia- tions." We agree with the judge that the July 11, 1983 withdrawal letter was timely. 2 We find that formal negotiations for contract modification did not begin until August 3, 1983. The parties specifically agreed between themselves to designate the July 8 meeting as an informal one. Moveover, the parties had a history of engaging in exploratory talks before the formal opening of negotiations. Formal negotiations , which began in January 1981 were preceded with meetings held in April, July, No- vember, and December 1980 in which "both gener- al and specific items relating to contract negotia- tions were discussed." Dependable Tile Co., 268 NLRB 1147, 1150 (1984). Accordingly, negotia- tions did not commence on July 8, and the Re- spondent's withdrawal from multiemployer bar- gaining on July 11 was timely. Although the Respondent timely withdrew from the contract, there remained a rebuttable presump- tion of union majority status requiring the Re- spondent, in general, to maintain the terms and conditions of employment in effect until either a new agreement was bargained, the Union waived its right to bargain, or a bargaining impasse was reached. Crest Floors & Plastics, 274 NLRB 1230 (1985). We adopt the judge's findings that the Union's majority standing was not rebutted nor has the Union waived its right to bargain. The Re- spondent and the Union stipulated at the hearing that they have not engaged in collective bargaining since April 1, 1981. Based on the preceding, we agree with the judge that the Respondent is also liable for the period following the termination of the 1981-1983 agreement until August 14, 1986, as alleged by the General Counsel. Accordingly, we adopt the judge's findings that the Respondent is required to make specified pay- ments to two employees and to the trust funds. In so doing, however, we note that the General Counsel in the amended backpay specification al- leged that the backpay period ran from April 1, 1981, to August 14, 1986. We find the Respond- ent's liability during this period has been decided by the Ninth Circuit in this case, 3 which enforced the Board's finding that the Union's relationship to the Respondent and its employees was that of a 2 We find it unnecessary, therefore, to rely on the judge's alternative rationale, which found that even assuming that the July 8 meeting repre- sents the start of the bargaining process, the Respondent acted "to extri- cate itself from group bargaining so soon thereafter as to cause no known disruption." 3 774 F.2d 1376 (9th Cir. 1985). 288 NLRB No. 82 DEPENDABLE TILE CO. 711 Section 9(a) representative and that the Respondent had unlawfully refused to honor its contract with the Union. We do not pass on the issue of the Re- spondent's liability for, or the effect of the Board's decision in John Deklewa Sons' on, periods sub- sequent to the specified backpay period.5 ORDER The National Labor Relations Board orders that the Respondent, Jack E. Hartman, a sole propri- etorship, d/b/a Dependable Tile Company, Sacra- mento, California, its officers, agents, successors, and assigns, shall pay to Richard Bertilson $678.02 and to David 'Hill $1117.84 with interest to be computed in the manner prescribed in New Hori- zons for the Retarded6 less withholdings for state and Federal income taxes. The Board further orders that the Respondent shall pay to the North- ern California Tile Industry Welfare and Security Fund the sum of $33,939.77 plus interest and penal- ty payments assessed in accord with Merryweather Optical Co., 240 NLRB 1213 (1979), on all unpaid contributions. 4 282 NLRB 1375 (1987) 5 [See order granting motion to modify backpay period in 292 NLRB No. 116] 6 In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), Interest on and after January 1, 1987, shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U.S.C. § 6621. Interest on amounts accrued prior to January 1, 1987 (the effective date of the 1986 amendment to 26 U.S C. § 6621), shall be computed in accordance with Florida Steel Corp., 231 NLRB 651 (1977). Andrew H. Baker, Esq., for the General Counsel. Ronald W. Brown, Esq. (Thierman, Simpson, & Cook), of Sacramento, California, for Respondent. Diane Sidd-Champion, Esq. (McCarthy, Johnson & Miller), of San Francisco, California, for the Charging Party. SUPPLEMENTAL DECISION STATEMENT OF THE CASE WILLIAM L. SCHMIDT, Administrative Law Judge. A dispute exists in compliance stage of this proceeding con- cerning the amount of backpay due employees and the amount of reimbursement due certain trust funds. 1 To re- solve that dispute, the Acting Regional Director of NLRB Region 20 issued a bacicpay specification and notice of hearing on 30 May 1986. Respondent filed a timely answer disputing certain aspects of the specifica- tion. Subsequently, on 5 September 1986, the Regional Di- rector for NLRB Region 20 issued an amended backpay specification which, in essence, altered the premises on which backpay and trust fund reimbursements were cal- culated for the period following 30 September 1983. Re- 1 The underlying case on the merits is reported at 268 NLRB 1147 (1984) enfd. as modified 774 F.2d 1376 (9th Cir. 1985). spondent filed a timely amended answer renewing its original position and denying its liability on the revised premise alleged by the Regional Director. I heard this matter on 1 and 10 October 1986 at Sacra- mento, California. At the outset of the hearing, the Gen- eral Counsel filed a written motion to amend the amend- ed specification. In essence, the General Counsel's motion was designed to restore the theory of the original specification and to continue the specification's allega- tions through 14 August 1986. Respondent supported the motion' but the Union vigorously opposed the General Counsel's amendment. After extensive argument, I grant- ed the General Connsel's motion with leave to the Union to adduce evidence supporting its theory. See Plasterers Local 5 (John Phillips), unofficially reported at 62 LRRM 1641 (1966). The Respondent promptly answered orally, admitting certain aspects of the twice amended specifica- tion and denying others. On the basis of the entire record, my observation of the witnesses as they testified, and the posthearing briefs filed on behalf of each party, 2 I make the following FINDINGS OF FACT I. THE MAKE-WHOLE REMEDY A. Pleadings The Board's order in the underlying case requires Re- spondent to give effect to the 1981-1983 collective-bar- gaining agreement between the Union and the Associat- ed Tile Contractors of Northern California (Association) and to make its employees and trust funds established for their benefit whole for losses suffered by Respondent's failure to give effect to that agreement. The specification claims Respondent owes employees the difference be- tween the hourly rates specified in the 1981-1983 agree- ment and the rate paid for all hours worked from 1 April 1981 to present. The specification also alleges Respond- ent owes the trust funds the full amounts of the contribu- tions specified in the contract in the 1981-1983 agree- ment for the period 1 April 1981 to present. The basis for the specification's theory at the hearing is that Re- spondent and the Union have not negotiated a successor agreement to the one in effect from 1 April 1981 through 30 September 1983 nor reached an impasse attempting to do so. Respondent concedes the accuracy of the rates and computations the General Counsel has utilized in deter- 2 On 20 February 1987 the Board issued a decision in John Deklewa & Sons, 282 NLRB 1375. The Board held there that an 8(1) agreement could not be repudiated during its term but, in fiiture and all pending cases, unions signatory to 8(1) agreements would enjoy no presumption of ma- jority status at their conclusion. Accordingly, the Board noted that either party was free to repudiate an 8(1) relationship on the termination of any extant 8(1) agreement. In fashionmg the make-whole remedy in Deklewa the Board limited the reimbursement remedy to only amounts due through the term of the agreement in effect at the time the employer had repudiated the 8(f) relationship with its employees' representative. In view of the potential impact of Deklewa on the outcome here, I notified the parties on 10 March 1987 that any supplement to their posthearing briefs dealing with the impact of Deklewa would be considered if re- ceived by the close of business on 23 March. All parties filed supplemen- tal briefs. 712 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD mining the backpay and trust fund reimbursements due under the specification's assumptions. However, Re- spondent claims no backpay or trust fund reimbursement is due after the 1981-1983 contract expired on 30 Sep- tember 1983 because it timely withdrew from the Asso- ciation and was thereafter under no statutory duty to bargain or maintain the status quo under the expired 1981-1983 agreement because: (1) the Union lacked ma- jority support in the single-employer unit; (2) the sepa- rate unit was an inappropriate single-employee unit as of 30 September 1983; (3) the Union refused to bargain with the Respondent for a single-employer unit after 30 Sep- tember 1983; and (4) the Union abandoned the unit after the expiration of the 1981-1983 agreement. Alternatively, Respondent contends the Union waived its right to bar- gain over the trust funds and, as the Union failed to give Respondent notice that it ended the 1981 strike, all em- ployees employed after that strike commenced were re- placement workers for whom Respondent was free to set wages and benefits unilaterally. Respondent also alleges that the amounts due the trust funds were the subject of a separate lawsuit resulting in a judgment in favor of the trust funds. The Union argues that Respondent still has not effec- tively withdrawn from the Association and, hence, the specification as amended at the hearing erroneously cal- culates the wages and trust fund reimbursements after 30 September 1983 on the basis of the 1981-1983 agreement rather than each successor agreement. B. Evidence Respondent joined the Association in 1979 and became bound by the then existing agreement which, by its terms, was effective through 31 March 1981. Soon after it joined the Association, Jack Hartman, Respondent's owner, became a member of the Association's negotiat- ing committee and actively participated in early negotiat- ing sessions held in April, July, November, and mid-De- cember 1980. Negotiations substantially in advance of the termination of these parties' agreements is common. In late December 1980, Hartman notified the Union in writing that he was withdrawing from the Association effective 31 March 1981 and would only be bound in the future by an individually signed contract. Others did likewise apparently at the Association's suggestion but some subsequently reactivated their Association member- ship. Hartman paid no Association dues after 31 March 1981 and there is no evidence Hartman participated in Association affairs of any sort after that date. On the contrary, Respondent defended this action and instituted an RM petition in an unsuccessful effort to extricate itself from the multiemployer unit as of 31 March 1981. A three-member Board panel with Chairman Dotson dis- senting found in this proceeding that Hartman acted in- consistent with the late-December 1980 withdrawal notice principally by his participation in negotiating ses- sions with the Union as a member of the Association's negotiating committee between 20 January and 31 March 1981. Accordingly, the panel majority concluded that Respondent "nullified its withdrawal from multi-employ- er bargaining." The Ninth Circuit agreed and enforced the Board's order with only a minor modification. Because no new agreement had been reached on 31 March 1981, the Union called on employees in the Asso- ciation-wide unit to commence striking their employers on 1 April 1980. As of that date, Respondent employed three unit employees. Hartman testified that one employ- ee "quit" the morning the strike commenced and the other two left without working that day. On approxi- mately 7 April 1981 the latter two employees returned to work. Later, in informal discussions with these two em- ployees, Hartman learned that they no longer supported the Union. In the meantime, the Association executed an interim agreement with the Union on 7 April 1981. At that time the Union was informed Hartman was no longer an As- sociation member. On the execution of the interim agree- ment the Union ceased striking Association employers. Hartman, however, refused the Union's request to exe- cute the interim agreement, altered Respondent's wage scale, and ceased making trust fund payments as of 1 April 1981. The Union continued its strike against Re- spondent for an undisclosed period. Indeed, no specific notice was ever provided to Hartman that the strike had been concluded. In May 1981 the Association furnished the Union with a written list of contractors who had resigned. Respond- ent was listed. The Union was also told by Association representatives, however, that many contractors would rejoin the Association when a final agreement was reached. The Association and the Union executed a final agree- ment known as the "yellow book" in November 1981 which by its terms was effective from 1 April 1981 to 30 September 1983. Respondent never executed nor abided by the terms of the yellow book agreement. Respond- ent's refusal to execute the yellow book agreement led the Union to tile the charges in this case. About 26 July 1983 the Association notified the Union of its desire to modify the yellow book agreement. Obvi- ously that came as no surprise to the Union as two mem- bers of the Association's negotiating committee had met on 8 July 1983 with union representatives to discuss the forthcoming negotiations for a successor agreement.3 Specific areas of the existing agreement in need of modi- fication were raised by both sides. There is no evidence that Respondent knew of the arrangements for the 8 July meeting or that the Association gave any notice to its members concerning the meeting. The Union believes that the 8 July meeting signaled the start of negotiations for the purposes of preventing any employer withdraw- als from the Association in 1983. Its principal representa- tive, however, acknowledged that the Association repre- sentatives insisted on labeling the 8 July session an "in- formal" meeting. By letter dated 11 July 1983 Respondent sent a letter to the Union calling attention to the then pending litiga- tion in this case and stating: - Nonetheless, if the National Labor Relations Board or a court of competent jurisdiction should 3 The two Association representatives were officers of the two largest contractors in the Association. DEPENDABLE TILE CO. 713 determine that our client was bound to [the 1981- 1983] agreement, this should serve as notice of ter- mination pursuant to its terms. This shall also serve to reiterate our client's with- drawal of any bargaining authority it may have ever delegated to any multi-employer association. If any negotiations take place with your labor organi- zation, it will only be on a single employer basis. The Union's counsel responded by a letter dated 22 July that the "purported notice of termination and with- drawal contained therein are without effect and will not be accepted by the Union." Apart from the litigation, nothing further happened between the parties until July 1986 when the Employer offered to negotiate with the Union for a new agreement on a single-employer basis. In the meantime, the Union negotiated a series of succes- sor agreements with the Association effective for the pe- riods 1 October 1983 to 30 September 1984; 1 October 1984 to 30 September 1985; and 1 October 1985 to 31 March 1988. On 30 June 1983 an action was commenced against Respondent by the trust funds. The complaint in that case alleged Respondent owed the funds $894.41 for Jan- uary 1981 (pursuant to the 1979-1981 agreement) and an unspecified sum under the 1981-1983 agreement. That case resulted in a consent judgment entered in favor of the trust funds. Subsequently, the trust funds executed against Respondent collecting $1,699.84 less marshal's costs of $168.60, or a net amount of $1,531.24. C. Argument To achieve full reimbursement here, the General Counsel's specification and subsequent arguments ad- vance the following theory: 1) the backpay period began 1 April 1981 and continues to the present; 2) for the period from 1 April 1983 through 30 September 1983 Respondent was bound specifically to the 1981-1983 agreement so it is required to reimburse on the basis of the agreement itself; and 3) for the period following 30 September 1983 Respondent is obliged to reimburse on the basis of the wage rates and trust fund contributions contained in the 1981-1983 agreement as Respondent and the Union never bargained a successor agreement, nor reached an impasse attempting to do so, and Respondent is required by operation of law to continue the 1981- 1983 agreement's wage rates and trust contributions in effect.4 In the General Counsel's view the Respondent's 11 July 1983 letter "constituted a timely and effective withdrawal from multi-employer bargaining and the multi-employer agreement under the terms of the Agree- ment and under Retail Associates, Inc., 120 NLRB 388 (1958)." The General Counsel believes that Deklewa has no impact whatsoever on this case. In this connection, the General Counsel notes that the Ninth Circuit has already entered a final order under Section 10(e) enforcing the 4 As the specification's approach is divided into two separate penods in this manner, the discussion below will refer to the "first" penod-1 April 1981 through 30 September 1983—and the "second" penod—all time since 30 September 1983 Board's Order, as modified. Accordingly, the General Counsel urges that I "give full force and effect to the Court of Appeals Order in this case." The Union differs with the General Counsel's assess- ment only about the effect of the 11 July letter and the rationale concerning Deklewa's inapplicability. It contests the General Counsel's conclusion that the 11 July 1983 letter was a timely and effective withdrawal from multi- employer bargaining because bargaining had commenced with the 8 July 1983 meeting between Association and Union negotiators. For this reason the Union argues that Respondent's 11 July letter was untimely. And as Re- spondent did not subsequently attempt to withdraw from multiemployer bargaining, the Union claims that reim- bursement in the second period should be based on each successive Association-Union agreement rather than the 1981-1983 wage levels and trust contributions. Consistent with its belief that Respondent never timely withdrew from multiemployer bargaining, the Union argues that Deklewa does not apply here because Respondent was bound to the successive agreements in the second period on the basis of its inclusion in the multiemployer bargain- ing unit rather than on any previous 8(f) relationship.5 Respondent's dispute with the General Counsel con- cerns the length of the backpay period. First, Respond- ent argues that it has no liability at all because the Union's April 1981 strike against it has never ceased. Ac- cordingly, Respondent urges that I find that all of its workers since 1 April 1981 are actually striker replace- ments and that it is entitled to unilaterally establish their wages and benefits. Absent such findings, Respondent next proposes that its backpay liability be terminated either on 22 July 1983 or 30 September 1983. Respond- ent believes that the Union's 22 July 1983 letter is tanta- mount to a waiver of its right to bargain concerning wages and trust fund contributions so its liability should cease at that point. Alternatively Respondent claims the Union's failure to bargain after 11 July 1983 suggests that it abandoned the unit. In any event, Respondent is con- vinced its liability should 'terminate as of 30 September 1983 as it had no duty to recognize the Union or main- tain the status quo thereafter because: (1) it rebutted the Union's presumed postagreement majority status; and (2) the unit ceased to be appropriate between June 1983 and January 1986 as only one employee was employed. Re- gardless of the foregoing, Respondent seeks an offset for the amount collected pursuant to the trust funds lawsuit. As for Deklewa, Respondent argues that at the very least its liability should cease with the termination of the 1981-1983 agreement because no mandatory bargaining obligation would exist after that period under the Deklewa decision. However, Respondent further asserts that this case should be reconsidered ab initio in light of the Deklewa decision and the complaint should be dis- 5 The Union concedes only for argument purposes that its relationship with Respondent was pursuant to Sec. 8(f); it does not concede in fact that its agreements with the Respondent were ever prehire agreements By contrast, Respondent asserts that neither an election nor a card check has ever occurred to establish the Union's majonty status under Sec 9 In light of my conclusion below, I deem It unnecessary to reopen the heanng to resolve this factual dispute 714 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD missed. As I lack such authority, this latter argument is not considered. D. Conclusions In a backpay proceeding the burden is on the General Counsel to establish the gross backpay due by means of a reasonable formula designed to approximate what em- ployees would have earned absent the unfair labor prac- tice. NLRB v. Pilot Freight Carriers, 604 F.2d 375 (5th Cir. 1979); NLRB v. Brown & Root, Inc., 311 F.2d 447 (8th Cir. 1963). Uncertainties in fixing the backpay due are resolved against the wrongdoer. NLRB v. Miami Coca-Cola Bottling Co., 360 F.2d 569 (5th Ctr. 1966). Here the order requires Respondent to "make whole its employees and union trust funds for losses, if any, they have suffered as a result of [Respondent's] refusal to abide by the [Association's] agreement, with interest. . . ." The formula in this case is for all intents and pur- poses dictated by the order; Respondent is required to reimburse the employees and the trust funds for the dif- ferences between what they actually received and what they would have received under the applicable agree- ment from 1 April 1981 forward to the point when Re- spondent was no longer obliged to give effect to the 1981-1983 agreement or its successors. Accordingly, I find the reimbursement theory employed by the General Counsel here is a justifiable formula. . The General Counsel's theory for the first period as- sumes that there was an agreement in effect between Re- spondent and the Union for the period 1 April 1981 through 30 September 1983. The specification theory for the second period is premised on the z existence of a re- buttable presumption of union majority status requiring Respondent, in general, to maintain the terms and condi- tions of employment in effect until either a new agree- ment was bargained, the Union waived its right to bar- gain, or a bargaining impasse was reached. Crest Floors & Plastics, 274 NLRB 1230 (1985). If it is assumed that the Respondent-Union relation- ship existed pursuant to Section 8(f), Deklewa seemingly alters the foundation of the General Counsel's theory for the second portion of the backpay period because that case holds that a union enjoys no majority presumption at the end of an 8(1) agreement. Rather than requiring a construction industry employer to maintain the status quo, Deklewa permits the total repudiation of the bar- gaining relationship at the conclusion of an 8(1) agree- ment if the Union has not been certified or voluntarily recognized. But for the consideration described below, I agree with Respondent that Deklewa would preclude re- imbursement for the second period. Although the Board chose to announce that Deklewa would apply to all pending cases at whatever stage, I find it impossible to reconcile that instruction with the specific order here. In addition to requiring Respondent to make its employees and the trust funds whole, the order also requires Respondent to bargain, on request, with the Union. Obviously, as the order in this case pre- dated Deklewa, there was an underlying assumption that Respondent's bargaining obligation was not terminable with the 1981-1983 agreement. The impact of applying Deklewa with full force here would, in effect, void that portion of the order requiring Respondent to bargain with the Union. Presumably too, Deklewa would not re- quire the restoration of the status quo ante, but the spe- cific order seemingly requires such for meaningful bar- gaining. Allied Products, 218 NLRB 1146 (1975). There- fore, it would be incongruous to hold that Respondent has no postagreement liability because it had no duty to bargain with the Union on the basis of Deklewa although, at the same time, there is an outstanding order enforced by the Ninth Circuit requiring Respondent to bargain. Accordingly, as the order here imposes a postagreement bargaining obligation as a part of an overall scheme to effectuate the purposes of the Act, I find that the court- imposed obligation justifies the General Counsel's reim- bursement theory for the second portion of the backpay period. The Union's claim that the reimbursement for the second portion of the backpay period should be based on each successive agreement lacks merit. Even if it is as- sumed that Respondent had not previously withdrawn from the Association, I am satisfied that Respondent's 11 July 1983 withdrawal was timely. Although it is true that the 8 July 1983 meeting between representatives of the Association and the Union is, as the Union claims, vested with certain characteristics of collective bargain- ing, this meeting occurred before the agreement was re- opened formally for modification. The findings in the un- derlying case suggest that the practice of engaging in early talks leading to contract modifications was not un- usual between the Association and the Union. In addi- tion, Respondent and the Association seemingly agreed long ago that Respondent had severed their connection. Hence, it is unlikely that the Association or its represent- atives would haNw felt compelled to keep Respondent abreast of developments concerning forthcoming bar- gaining arrangements in order to permit a timely with- drawal. The Union on the other hand was aware of Re- spondent's claim that it was not a part of the multiem- ployer unit and was contesting that claim. Obviously, Respondent was in a perilous position to determine when the Association and the Union—who had a history of en- gaging in exploratory talks long in advance of contract termination—were actually preparing to begin bargain- ing. Moreover, there is plainly no agreement between the Association and the Union that formal bargaining had begun as of 8 July. Equally as plain is the fact that the vast bulk of bargaining commenced in August after the Association had reopened the agreement.6 Based on the above circumstances, I conclude that it would be most inequitable to find that Respondent's 11 July letter constitutes an untimely withdrawal under the unusual circumstances present here. The rules in Retail Associates and its progeny were designed to stabilize the bargaining process by preventing employers bound to group bargaining from—as it is often put—having "two bites at the apple." This is not one of those cases. Al- though Respondent was not successful in extricating itself from the legal consequences of the 1981 bargaining, 6 The Union also claims to have sent a reopening letter but its repre- sentative was unable to say when the Union had done so DEPENDABLE TILE CO. 715 its efforts to do so produced a situation that left it in the position of an outsider to the affairs of the Association and the Union by mid-1983. Consequently, even if it is assumed that the 8 July meeting represents the start of the bargaining process, Respondent acted again to extri- cate itself from group bargaining so soon thereafter as to cause no known disruption. Accordingly, I find that Re- spondent was not bound to Association-Union agree- ments following the expiration of the 1981-1983 agree- ment. With respect to the Respondent's arguments, it is plainly entitled to an offset for the net amount that the trust funds have collected by executing on the consent judgment. To hold otherwise would result in an imper- missible double reimbursement. See Story Oldsmobile, 145 NLRB 1647, 1652 (1964) (the vacation pay issue). How- ever, as it appears that one basis for that lawsuit was to collect $894.41 due under the 1979-1981 agreement that is not involved here I have credited Respondent here with $636.83, the difference between the net amount col- lected by execution ($1531.24) and the amount apparent- ly applicable to the earlier agreement ($894.41). For pur- poses of computing interest and penalties this sum shall be allocated to the earliest period. Respondent's remaining arguments lack merit. As to Respondent's claim that the Union's majority standing was rebutted on the basis of informal remarks made to Hartman by employees at some unspecified time follow- ing the l981 strike, I find in view of the unremedied unfair labor practices that Respondent is not entitled to interpose that defense to' its liability here. It is well estab- lished that a reasonable doubt as to a union's continued majority standing must be asserted in good faith and in a context free of unlawful employer activity causing disaf- fection from the union. NLRB v. Sky Wolf Sales, 470 F.2d 827 (9th Cir. 1972). In circumstances such as exist here Respondent has the added burden of showing that its unlawful conduct did not contribute to the disaffec- tion. Warehouse Markets, 216 NLRB 216 (1975). By showing only that some disaffection may have occurred, Respondent has not met that burden. This is especially true where, as here, the findings establish that Respond- ent unilaterally altered its terms of employment follow- ing the expiration of its agreement with the Union on 31 March 1981 and refused to give effect to the bargain the Union struck with the Association on or about 7 April 1981. Clearly, it is reasonable to presume that such con- duct wonld demonstrate to employees the Union's inabil- ity to serve them in the same manner as other unit em- ployees employed at other shops and that this circum- stance could lead to employee dissatisfaction with their representation on which Respondent now relies. Without an affirmative showing that the employee disaffection oc- curred for some reason unrelated to its own unlawful conduct accords the wrongdoer with a potential benefit flowing directly from its unlawful conduct. For this reason, I reject Respondent's claim that it has sufficiently rebutted the Union's majority standing so as to terminate its liability on the conclusion of the 1981-1983 agree- ment. Respondent's claim that it has no liability here because those employees it employed following the commence- ment of the April 1981 strike were all strike replace- ments for whom it was legally entitled to unilaterally es- tablish employment conditions is also rejected. Those employees for whom backpay is claimed immediately following the strike were employees who struck the Re- spondent from the outset of the strike and subsequently returned to work. Respondent's claim that they were re- placements for themselves is indeed novel. But the argu- ment fails because it ignores the fundamental conclusion reached in this case that Respondent was bound to the 1981-1983 agreement at the same time and in the same manner as all other Association employers. That agree- ment would be applicable to even replacements so long as they continued as unit employees. Accordingly, I reject Respondent's claim that it was entitled to unilater- ally establish employment conditions for returning strik- ers or any other unit employees. The Union has neither abandoned this unit nor waived its right to bargain as Respondent claims. The Union's lengthy pursuit of this case fully refutes the abandonment claim. And clearly the Respondent's 11 July 1983 letter provides no basis for obliging the Union to act at the risk of waiving its right to bargain as it simply is not a straightforward request to bargain. Although the Re- spondenes July 1986 letter does provide the Union with Written demands for changes Respondent would incorpo- rate in an agreement, the fact that Respondent has yet to restore the status quo ante precludes a basis on which meaningful bargaining can occur. Allied Products, supra. Accordingly, I fmd that the Union has not abandoned nor waived its right to bargain in a manner or context which would terminate Respondent's liability here. Finally, Respondent's claim that its liability should be extinguished following the 1981-1983 agreement because the unit was an inappropriate single employee unit be- tween June 1983 and January 1986 is rejected. Respond- ent's claim is misleading to a certain extent. Of course, until the 1981-1983 agreement expired, the unit was a multiemployer unit encompassing the employees of all Association members including Respondent. From April 1981 to October 1983, three individuals were employed by Respondent albeit not all at the same time but on a sufficiently regular basis to establish a continuing interest in unit conditions. From October 1983 to February 1985 only one employee was employed by Respondent but that fact standing alone does not establish that this unit had been permanently reduced to a single employee. Indeed, the fact that Respondent employed five separate individuals from February 1985 through 14 August 1986 suggests just the opposite. The Board has long recognized that employment pat- terns in the construction industry often involves periods of diminished employment opportunity and consequently special consideration must be given to that fact of life if any employee interest in unit conditions is to be accord- ed legal significance See, e.g., Daniel Construction Co, 133 NLRB 264 (1961). More recently the Board in its Deklewa decision reiterated the special considerations ap- plicable in this industry to insure full protection of con- struction employees right to collective bargaining. John Deklewa & Sons, 282 NLRB 1375 (1987). As Respond- 716 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ent's employment pattern discloses periods when it em- ployed two or more individuals interspered with periods when it employed a single—but not always the same— employee, I find the evidence insufficient to establish that Respondent's unit has at any time been permanently reduced to a single employee. Finger Lakes Plumbing & Heating Co., 253 NLRB 406 (1980). At the very least, Respondent's employment pattern raises sufficient doubt concerning this issue to warrant resolving the doubt against Respondent. Accordingly, I cannot conclude that it would be appropriate to terminate Respondent's liabil- ity at any time during the backpay period here on the ground that Respondent had no duty to bargain due to an inappropriate single employee unit. CONCLUSION OF LAW On the basis of the foregoing and the entire record, I conclude that Respondent's obligation under the Board's Order as enforced by the Ninth Circuit will be dis- charged by the payment of $678.02 to Richard Bertilson and $1117.84 to David Hill plus accrued interest required by law less withholdings for state and Federal income taxes, and by the payment of $33,939.77 to the Northern California Tile Industry Welfare and Security Fund plus interest and penalty payments assessed in accord with Mertyweather Optical Co., 240 NLRB 1213 (1979), on all unpaid contributions and that Respondent's liability con- tinues to accrue in the manner specified in the amended backpay specification. /