Meekins, Inc.

126 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Meekins, Inc. and Southern California District Council of Laborers, AFL-CIO. Case 21-CA- 23645 ' July 29, 1988 DECISION AND ORDER By CHAIRMAN STEPHENS AND MEMBERS BABSON AND CRACRAFT On October 15, 1985, Administrative Law Judge Richard D. Taplitz issued the attached decision. The General Counsel and the Charging Party filed exceptions and supporting briefs, and the Respond- ent filed an answering brief. 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 only to the extent consistent with this Decision and Order. It is undisputed that the Respondent entered into its relationship with the Union pursuant to Section 8(f) of the Act. In John Deklewa & Sons, Inc., 282 NLRB 1375 (1987), enfd. sub nom. Iron Workers Local 3 v. NLRB, 843 F.2d 770 (3d Cir. 1988), the Board overruled R. J. Smith Construction Co., 191 NLRB 693 (1971), enf. denied sub nom. Operating Engineers Local 150 v. NLRB, 480 F.2d 1186 (D.C. Cir. 1973), abandoned the conversion doctrine,2 and modified unit scope rules in 8(f) cases. As more fully set forth in Deklewa, supra at 1377, the Board decided to apply the following principles in 8(f) cases. (1) [A] collective-bargaining agreement permit- ted by Section 8(f) shall be enforceable through the mechanisms of Section 8(a)(5) and Section 8(b)(3); (2) such agreements will not bar the processing of valid petitions filed pur- suant to Section 9(c) and Section 9(e); (3) in processing such petitions, the appropriate unit normally will be the single employer's employ- ees covered by the agreement; and (4) upon the expiration of such agreements, the signato- ry union will enjoy no presumption of majori- ty status, and either party may repudiate the 8(f) bargaining relationship. Deklewa further held that "[i]n light of the legis- lative history and the traditional prevailing practice in the construction industry," in which the Re- spondent is engaged, "we will require the party as- serting the existence of a 9(a) relationship to prove it,"$ through either (1) a Board-conducted repre- sentation election or (2) a union's express demand for, and an employer's voluntary grant of, recogni- tion, based on a showing of support for the union among a majority of the employees in an appropri- ate unit.4 Under Deklewa, we find that the General Coun- sel, while asserting that the Respondent is bound to recognize the Union under Section 9(a), has failed to establish that the relationship between the Re- spondent and the Union is anything other than an 8(f) relationship . There is no substantiated claim, nor any evidence, that a Board election was held or that there was a demand for and voluntary grant of recognition to the Union at any time premised on a showing of support for the Union among a majority of the Respondent's employees.5 Further applying Deklewa to the instant case, we reverse the judge and conclude that the Respond- ent violated Section 8(a)(5) and (1) of the Act. The contractual history shows that on November 1, 1983, the Respondent entered into a short-form agreement with the Union, which bound it to a master agreement between various employer asso- ciations and the Southern California District Coun- cil of Laborers, AFL-CIO. The contract was ef- fective until June 15, 1986. By letter dated June 26, 1984, written in response to a June 4, 1984 letter of complaint from the Union, the Respondent repudi- ated article V, paragraph C, of the master agree- ment.6 By letter dated December 20, 1984, the Re- spondent repudiated the entire agreement. The complaint alleges that by the above conduct the ' We note that the Respondent did not except to the judge 's decision not to reach the defenses raised by the Respondent to the judge Accord- ingly, these defenses are not before us and we do not pass on them. Nonetheless, we note that were we to consider these defenses, we would find them to be without merit . Specifically, regarding the defense raised under Sec. 10(b), we note that even assuming that the repudiation of the collective-bargaining agreement took place, as argued by the Respondent, on November 1, 1983, the date of the execution of the contract, there is insufficient evidence of clear notice to the Union of this repudiation prior to the Respondent's June 26, 1984 and December 20, 1984 letters to the Union See, e.g, L. C. Cassidy & Sons, Inc, 185 NLRB 920, 926 (1970) 2 Under the conversion doctrine , a collective-bargaining relationship/- agreement permitted under Sec 8(f) could convert into one cognizable under Sec. 9(a) on the basis of a showing that during a relevant period the union enjoyed the support of a majority of the employer 's employees in an appropriate unit a Deklewa, 282 NLRB at 1385 fn 41 4 Ibid. ° The General Counsel excepts to the judge's finding that the General Counsel has not established by a preponderance of the credible evidence that the Union represented a majority of the employees in the bargaining unit at any relevant time We find it unnecessary to pass on the judge's finding in this regard because such finding is predicated on precedent overruled by Deklewa ° Art. V, par C states: The Contractor shall not perform any work with employees at the site of the construction, alteration, painting or repair of a building, structure, or other work which comes within the recognized juris- diction of the Carpenters, Cement Masons, Operating Engineers, or Teamsters, unless the contractor is signed to an appropriate current labor agreement with the appropriate craft 290 NLRB No. 21 MEEKINS, INC Respondent has violated Section 8(a)(5) and (1) of the Act. Under the first Deklewa principle, the collective- bargaining agreement is enforceable under Section 8(a)(5) of the Act. However, under the fourth prin- ciple, the Union enjoyed no presumption of majori- ty status following the contract's expiration date of June 15, 1986, and thus at that point the Respond- ent was free to repudiate the 8(1) bargaining rela- tionship. Therefore, we find that the Respondent violated Section 8(a)(5) and (1) of the Act by repu- diating the 1983-1986 contract with the Union during the contract term and shall limit the make- whole remedy accordingly. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, we shall order that it cease and desist and take certain affirmative action necessary to effectuate the policies of the Act. We shall order the Respondent to make its employees whole, as prescribed in Ogle Protection Service, 183 NLRB 682, 683 (1970), for any losses they may have suffered as a result of the Respond- ent's failure to adhere to the contract from 6 months before the December 17, 1984 charge to the expiration of the agreement on June 15, 1986, with interest as computed in New Horizons for the Retarded.? ORDER The National Labor Relations Board orders that the Respondent, Meekins, Inc., Riverside, Califor- nia, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Withdrawing recognition during the term of a collective-bargaining agreement from Southern California District Council of Laborers, AFL-CIO, as the exclusive collective -bargaining representative ' 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 US C § 6621 Interest on amounts accrued prior to January 1, 1987 (the effective date of the 1986 amendment to 26 US C § 6621), shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977) Because the provisions of employee benefit fund agreements are vari- able and complex, the Board does not provide at the adjudicatory stage of the proceeding for the addition of interest at a fixed rate on unlawfully withheld fund payments Therefore , any additional amount owed with re- spect to the health and welfare fund, pension fund, vacation fund, train- ing and retraining fund, construction industry advancement fund shall be determined in accordance with the procedure set forth in Merryweather Optical Co, 240 NLRB 1213, 1216 fn 7 (1979) Our make-whole remedy includes the requirement that the Respondent remit to the Union all dues and fees that it should have deducted from employees' wages remitted pursuant to the terms of the collective-bar- gaining agreement 127 of the Respondent's employees covered by the agreement. (b) Repudiating its 1983-1986 collective-bargain- ing agreement with the Union until the June 15, 1986 expiration date. (c) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Make whole the above-described employees for any losses they may have suffered as a result of the Respondent's failure to adhere to the contract from 6 months before the December 17, 1984 charge until the contract's expiration date on June 15, 1986. The appropriate unit is: All job-site construction laborers employed by the Employer, excluding all other employees, clerical employees, guards and supervisors as described in the Act. (b) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, 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. (c) Post at its Riverside, California office copies of the attached notice marked "Appendix."8 Copies of the notice, on forms provided by the Re- gional Director for Region 21, 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 including all 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. (d) Sign and return to the Regional Director suf- ficient copies of the attached notice marked "Ap- pendix" for posting by the Union, if willing, in conspicuous places where notices to employees and members are customarily posted. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 8 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 Nation- al 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 " 128 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government which have been carefully considered, were filed on behalf of the General Counsel and the Company. On the entire record,' and from my observation of the witnesses and their demeanor, I make the following FINDINGS OF FACT The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT during the term of a collective- bargaining agreement repudiate that agreement and withdraw recognition from Southern California District Council of Laborers, AFL-CIO as the ex- clusive collective-bargaining representative of our employees covered by the agreement. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL make our employees whole for any losses they may have suffered as a result of our failure to adhere to the 1983-1986 contract with the Union until it expired on June 15, 1986. MEEKINS, INC. Lana Hill Parke, Esq., for the General Counsel. Wilson Clark, Esq. (Clark & Tonigal), of Marina del Rey, California, for the Company. DECISION STATEMENT OF THE CASE RICHARD D. TAPLITZ, Administrative Law Judge. This case was tried in Riverside, California, on June 5, 1985. The charge was filed on December 17, 1984, by Southern California District Council of Laborers, AFL- CIO (the District Council or the Union). The complaint, which issued on January 31, 1985, alleges that Meekins, Inc. (Respondent or the Company) violated Section 8(a)(5) and (1) of the National Labor Relations Act. Issue The Company entered into a construction industry contract with the Union at a time when the Union did not represent the majority of the Company 's employees. The contract was lawful under Section 8 (f) of the Act but was unenforceable at that time . The key issue is whether the Union subsequently obtained majority status so that the contract became enforceable and the Compa- ny's renunciation of that contract constituted a violation of Section 8(a)(5) and (1) of the Act. The Company has raised a number of defenses unrelated to the majority status question that need be resolved only if it is found that the Union did obtain majority status. All parties were given full opportunity to participate, to introduce relevant evidence , to examine and cross-ex- amine witnesses, to argue orally, and to file briefs. Briefs, 1. JURISDICTION The Company, a California corporation with an office and place of business at 6293 Redley Road, Riverside, California, is a general contractor in the construction in- dustry in the counties of Los Angeles, Orange, River- side, and San Bernardino , California. During the year im- mediately preceeding issuance of the complaint, the Company performed services valued in excess of $50,000 for customers located in California, each of which, in turn, during the same period of time, purchased and re- ceived goods valued in excess of $50,000 directly from suppliers located outside the State of California. The complaint alleges, the answer admits, and I find that the Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The complaint alleges that the Union is a labor organi- zation within the meaning of Section 2(5) of the Act. The Company in its amended answer denies that allega- tion. The Union is a District Council that, under the au- thority of its International , and on behalf of itself and its affiliated locals, negotiates and services various collec- tive-bargaining agreements with employers. A number of laborers locals in Southern California are affiliated with the District Council. Among them are Locals 300, 652, and 1184. Although the affiliated locals do negotiate some manufacturing agreements, the District Council is responsible for all construction industry agreements. Each affiliated local selects delegates to the District Council based on a vote of the membership. The number of delegates depend on the size of the membership of each affiliate. Section 2(5) of the Act defines a labor or- ganization as "any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wage, rates of pay, hours of employment, or conditions of work." Em- ployees who are members of the affiliated locals partici- pate in the District Council through the delegates that they elect to that Council. The District Council exists in whole or in part to negotiate contracts with employers on behalf of the affiliated locals. The District Council meets all the requirements of the definition of a labor or- ganization. See Plumbers Local 388 (Featherly Construc- tion), 252 NLRB 452, 453-435 (1980), enfd. 703 F.2d 565 (6th Cir. 1982). In Southern California District Council of Laborers (Hahn, Inc.), 194 NLRB 471 (1971), 2 the Board held the very District Council involved in the instant case to be a labor organization within the meaning of I The Company's unopposed motion to correct the transcript of the record is granted. 2 The basic decision in that case was reported at 180 NLRB 364 (1969), enf denied on other grounds 443 F 2d 220 (9th Cir 1971) MEEKINS, INC. Section 2(5) of the Act. I find that the District Council is a labor organization within the meaning of that section II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background The Company is a general contractor in the construc- tion industry. Most of the Company's work involves the digging of trenches and laying of pipe. Company em- ployees use hand equipment such as shovels and picks to dig trenches and then lay the pipe in the trenches. That work is generally considered to be within the jurisdiction of the Laborers Union. Company employees also operate backhoes, loaders, cranes, and other heavy eqipment in the performance of their work. That work is generally considered to be within the jurisdiction of the Operating Engineers Union. In addition, employees drive water trucks over which the Teamsters generally have jurisdic- tion. The issues in this case all concern a bargaining unit of construction laborers Though the parties are in disagree- ment with regard to which employees should be includ- ed in a laborers bargaining agreement, they agree and I find that the following unit is appropriate for the pur- poses of collective bargaining within the meaning of Sec- tion 9(b) of the Act: All job-site construction laborers employed by the Employer, excluding all other employees, clerical employees, guards and supervisors as defined in the Act. At one time, the Company had collective-bargaining agreements with both the District Council (Laborers) and with Local 12 of the Operating Engineers Those contracts expired sometime in 1983 after the Company gave timely notification of its intention to terminate them. Sometime after the Company gave its timely notice of intention to terminate the contracts, Charles Meekins, a 25-percent owner and vice president of the Company, met with Kenny Bell, a representative of Laborers Local 1184, and Bob Dye, and representative of Local 12, Op- erating Engineers. The union representatives asked Mee- kins to sign a contract and Meekins replied that he would not do so and that the Company was involved in litigation with Local 12. During the last week of October 1983, Kenny Bell, the Laborers representative, came to Charles Meekins' office without a representative from the Operating Engineers. Bell asked Meekins to sign a laborers agreement. Charles Meekins, who had recent problems with the Operating Engineers but no such problems with the Laborers, agreed to sign. Bell left a "Laborers' Short-Form Agree- ment For The Construction Industry" with Meekins. On November 1, 1983, Charles Meekins signed it and deliv- ered it to the District Council. -The agreement bound the Company to the 1983-1986 Southern California Master Labor Agreement (MLA) between various employer as- sociations and the District Council. The termination date of the MLA is June 15, 1986. 129 The Master Labor Agreement to which the Company bound itself contained a new provision that had not ap- peared in prior contracts. At the time he signed the short-form agreement, Charles Meekins was unaware of that provision It was article V,C, which read- The Contractor shall not perform any work with employees at the site of the construction, alteration, painting, or , repair of the building, structure, or other work which comes within the recognized ju- risdiction of the Carpenters; Cement Masons, Oper- ating Engineers, or Teamsters, unless the Contrac- tor is signed to an appropriate current labor agree- ment with the appropriate craft. Charles Meekins credibly testified that if he had known of that provision he would not have signed the short- form agreement. After signing the agreement, the Company abided by some of the terms of the contract and disregarded others. The first complaint that the Company received from the District Council concerning an alleged failure to abide by the terms of the contract was in a letter dated June 4, 1984, from Alexander Civitan, an attorney for the District Council. Though Civitan was the attorney for the Laborers (District Council) and the Company was bound by an agreement with the Laborers, the letter referred to article V, paragraph C of the Master Labor Agreement and asserted that the Company had violated that clause by performing work within the jurisdiction of the Operating Engineers when the Company was not sig- natory to an agreement with the Operating Engineers. By letter dated June 26, 1984, Wilson Clark, an attor- ney for the Company, responded to the District Coun- cil's claim that the Company had violated the Master Labor Agreement. The letter stated: . . . we hereby repudiate the pre-hire provisions contained in Article V, paragraph C of the South- ern California Master Labor Agreement, pursuant to 29 U S.C. 158(1) and established NLRB and Su- preme Court authority On December 20, 1984, Clark, on behalf of the Com- pany, once again wrote to the District Council. In that letter, the Company stated that it "repudiated ab initio" the Master Labor Agreement and the short-form agree- ment, and that the Company had ceased making contri- butions to the various construction laborers trusts for Southern California. The General Counsel concedes, and I find, that at the time the Company bound itself to the short-form agree- ment and the Master Labor Agreement, a majority of the Company's employees had not designated the District Council as their exclusive bargaining representative The Company does not obtain its employees through union hiring halls. Though there is some employee turn- over, the employee complement is basically a stable one. Employees are assigned from job to job. They are not hired for a particular job and then terminated at the completion of that job. 130 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD B. The Enforceability of Construction Industry Contracts 1. The underlying law As a general rule, it is unlawful for an employer to enter into a collective-bargaining contract with the union when the union does not represent a majority of that em- ployer's employees.3 However, a special exception exists for employers in the construction industry. With excep- tions not relevant here, Section 8(t) of the Act provides that it is not an unfair labor practice for a construction industry employer to enter a collective-bargaining agree- ment with a construction industry union even though "the majority status of such labor organization has not been established under the provisions of Section 9 of this Act prior to the making of such agreement ." In a non- construction industry contract situation , a presumption arises from the mere existence of a lawful contract that the union represents a majority of the employees throughout the life of the contract.4 However, there is no such presumption arising from the existence of a con- struction industry contract where the union did not rep- resent a majority of the employees at the time that the contract was executed. In such circumstances, though the contract is not unlawful, it is unenforceable until such time as the union obtains majority status. If such majority status is obtained , the contract becomes en- forceable and an employer's renunciation of the contract constitutes a refusal to bargain in violation of Section 8(a)(5) of the Act. No such violation exists unless the union has obtained majority status, even where the em- ployer unilaterally repudiates the agreement during its term.5 The outstanding Board law in this regard was ap- proved by the United States Supreme Court in NLRB v. Iron Workers Local 103 (Higdon Contracting Co.), 434 U.S. 335 (1978), in which the Court held: Section 8(f) is an exception to this rule [that con- tracting with a minority union violates the Act]. The execution of an agreement with a majority union, an act normally an unfair practice by both employer and union , is legitimated by Section 8(f) when the employer is in the construction industry. The exception is nevertheless of limited scope, for the usual rule protecting the union from inquiry into its majority status during the terms of a collective- bargaining contract does not apply to prehire agree- ments. A proviso to the section declares that a Sec- tion 8(f) contract, which would be invalid absent the section, "shall not be a bar to a petition filed, pursuant to section 9(c) or 9(e)." The employer and its employees-and the union itself for that matter- may call for a bargaining representative election at any time. The proviso exposing unions with prehire agree- ments to inquiry into their majority standing by 3 Ladies Garment Workers (Bernhard-Altman) v. NLRB, 366 U.S 731 (1%1). 4 Sahara-Tahoe Hotel, 229 NLRB 1094 (1977), enfd 581 F.2d 767 (9th CiT. 1978). "R. J. Smith Construction Co., 191 NLRB 6932 ( 1971), enf. denied 480 F.2d 1186 (D.C. Cir. 1973). elections under Section 9(c) led the Board to its de- cision in R. J. Smith: An employer does not commit an unfair practice under Section 8(a)(5) when he re- fuses to honor the contract and bargain with the union and the union fails to establish in the unfair labor practice proceeding that it has ever had ma- jority support. As viewed by the Board, a "prehire agreement is merely a preliminary step that contem- plates further action for the development of a full bargaining relationship." Ruttmann Construction Co., 191 NLRB 701, 702 (1971). The employer's duty to bargain and honor the contract is contin- gent on the union's attaining majority support at the various construction sites. In NLRB v. Irvin, 475 F.2d 1265 (C.A. 3, 1973), for example, the prehire contract was deemed binding on those projects at which the union had secured a majority but not with respect to those projects not yet begun before the union had terminated the contract. The requirement that the General Counsel establish the Union's majority status on a jobsite-to-jobsite basis is ap- propriate where an employer hires different crews for each jobsite. That is not the situation in the instant case. Respondent does not use the Union's hiring hall and does not hire employees for a particular job and then dis- charge them at the end of the job. Respondent's employ- ees are shifted from one job to the next. Although there is some turnover among Respondent 's employees, there is basically a permanent and stable work force.6 In Preci- sion Striping, 245 NLRB 169 (1979),7 the Board held that where a union, which was originally recognized under Section 8(f) of the Act, later achieves majority status among employees who make up the permanent, stable work force, the contract becomes fully binding and the union enjoys an irrebuttable presumption of majority status for the duration of the agreement. In the instant case, Respondent and the District Coun- cil signed an 8(f) construction industry contract at a time when the Union did not represent the majority of Re- spondent's employees. Respondent's employees are hired for indefinite terms rather than on a jobsite -by-jobsite basis. There is a permanent, stable work force within the meaning of Precision Striping, supra. As no presumption of majority status can arise from the existence of the construction industry agreement, the General Counsel has the burden of establishing that the Union achieved majority status during the term of the contract. In the absence of such proof of majority, there can be no find- ing that Respondent refused to bargin in violation of Section 8(a)(5) of the Act even though the Respondent did renounce the contract. As is set forth in more detail below, in order to estab- lish the Union's majority status, the General Counsel must prove each of the following: ( 1) Chris Meekins per- forms so much operating engineers' work that his com- munity of interest is not aligned with the laborers and he is excluded from the Laborers unit. (If Chris Meekins is included in the laborers unit, then the District Council 6 Construction Erectors, 265 NLRB 786, 788 ( 1982). 7 See also Hageman Underground Construction, 253 NLRB 60 (1980). MEEKINS, INC. could not have obtained majority status. ) (2) Dale Mee- kins, Dean Meekins, Larry V. Meekins, Mike Meekins, and Woodrow J. Meekins should be excluded from the laborers unit because they are the sons of fathers who own 25 percent of the corporation and are corporate of- ficers. (If the sons are included in the laborers unit, the District Council could not have obtained majority status.) (3) The District Council obtained majority status among the employees in the bargaining unit as distin- guished from the employees who physically worked during the week that majority status was claimed. (4) It was sufficient for the Union to have majority status in 6 weeks out of a total of 56 weeks. 2. The failure to establish that the Union represented a majority of Respondent's employees in the bargaining unit as distinguished from employees who physically worked during particular weeks At the times relevant herein, four employees in the bargaining unit have authorized locals of the District Council to represent them." By stipulation of the parties, Joint Exhibit 1(G) was re- ceived in evidence. The stipulation identified that exhibit as follows: "Exhibit (G)-Three-page chart showing the names of certain employees employed by Meekins, Inc., for the week of October 29, 1983 [the week in which the short-form agreement was signed] through November 17, 1984 [the Company repudiated the MLA by letter dated December 20, 1984]. Each week of employment for each individual is indicated by an `X' in the appropriate line and column." The chart lists 18 names. They are Don Bennett Jr., E Bowe, L Frias, R. Hinojosa, T. Hinojosa, Chris Meekins, Dale Meekins, Dean Meekins, Gary Mee- kins, Larry Meekins Jr. (also referred to as Larry V. Meekins), Mike Meekins, Woodrow J. Meekins, M. McIver, Rick Rose, Gerrardo Serrano, Gerald Taja, Jeff Taranto, and Kirby Tonissen. The General Counsel con- cedes that all of those employees are properly included in the bargaining unit except for Chris, Dale, Dean, Larry V., and Mike and Woodrow J. Meekins. Though there is a serious question concerning the eligibility of those six employees, for the purpose of this section of the decision, I will assume that the General Counsel is cor- rect in contending that all six are properly excluded. That leaves 12 employees in the bargaining unit during various parts of the 56 weeks covered by Joint Exhibit 1(G). Joint Exhibit 1(G), together with the evidence regard- ing union affiliation, establishes that in 6 weeks out of the 56 weeks listed on the exhibit, a majority of the employ- ees who worked were affiliated with the District Coun- cil. The record shows the following: Employee Union Affiliation E. Bowe Laborers Local 1184 L. Frias Laborers Local 652 R Hinojosa None T. Hinojosa Laborers Local 300 8 These were Edwin Bowe, Louis Frias, Gerardo Serrano, and T Hin- ojosa 131 Gary Meekins None R. Rose None Gerado Serrano Laborers Local 652 Week of June 23, 1984 E. Bowe Laborers Local 1184 L. Frias Laborers Local 652 R. Hinojosa None T. Hinojosa Laborers Local 300 R Rose None Week of August 25, 1984 E. Bowe Laborers Local 652 Week of September 1, 1984 L. Fraios Laborers Local 652 Week of September 15, 1984 R. Hinojosa None Week of November 17, 1984 T. Hinojosa Laborers Local 300 Gary Meekins None There is some ambiguity with respect to what Joint Exhibit 1(G) means. The stipulation refers to an "X" mark for each "week of employment." In introducing the exhibit, the General Counsel referred to it as show- ing employment times of employees. An examination of the exhibit itself leads to the conclusion that it shows the weeks in which employees actually worked. It does not appear to indicate employees who were in the bargaining unit but for one reason or another did not actually work that week. Employees who were on vacation, on tempo- rary leave, and on sick leave, as well as employees who were laid off but had a reasonable expectation of recall would all be employees in the bargaining unit whether they worked in a particular week or not.9 They would have to be counted in determining whether the Union had majority status. However, it does not appear that any such employees are included on Joint Exhibit 1(G). Many of the employees listed are shown as not having worked for certain weeks within the 56-week period. One employee, Gary Meekins, apparently worked 54 out of those 56 weeks. The only weeks in which there is no "X" on the chart for him are December 17, 1983, and June 23, 1984. Other employees had more missing weeks, but the exhibit shows that they worked both before and after those weeks I am unable to infer from anything in the record that Gary Meekins or those other employees were terminated or otherwise lost their status as bargain- ing unit employees during those weeks that they were not actually on the job. If any inference is warranted, it would be that such employees remained in the bargain- ing unit. In any event, the General Counsel has the burden of proof in this regard and she has not established that they lost their status as bargaining unit employees. There are 6 weeks in which the General Counsel claims that the Union has majority status. The first was June 9, 1984. Employees Jeff Taranto and Kirby Tonis- sen did not work that week or the week before. Howev- er, of the preceeding 31 weeks, Tonissen worked every 9 See D & B Masonry, 275 NLRB 1403 (1985) 132 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD week and Taranto worked 28 weeks. Neither worked in the month of June but both resumed work on July 7. Taranto continued to work through the week of August 18 and Tonissen through the week of July 28, 1984. There is no explanation in the record of why Taranto and Tonissen were absent from work for the month of June. However, the General Counsel has not established that they ceased to be employees within the bargaining unit. If either or both of them are counted as employees in the bargaining unit, then the Union would not have majority status during the week of June 9, 1984. The second week in which majority is claimed is June 23, 1984. That was 1 of the 2 weeks during the 56-week period that Gary Meekins did riot work. In the absence of further evidence, the assumption is clearly warranted that Gary Meekins was an employee in the bargaining unit during the entire 56-week period. In addition, that was one of the June 1984 weeks in which Jeff Taranto and Kirby Tonissen did not work. As indicated above, they also should be included in the bargaining unit for those weeks even though they did not work. If any or all of those three employees were included in the bargaining unit, the Union would not have had a majority for that week. The third week was August 25, 1984. That week em- ployee Rick Rose did not work. He had worked the pre- vious 16 weeks and he worked again the week of Sep- tember 8, 1984. He did not work from then through the week of November 17, 1984, which was the last week listed on Joint Exhibit 1(G). The 2-week gap in his em- ployment for August 25 and September 1 are not ex- plained in the record. He worked both before and after those weeks and the inference is warranted that he was still an employee in the bargaining unit during that 2 weeks' absence. With the inclusion of Rose in the bar- gaining unit, the Union did not have a majority during that week. The next week was September 1, 1984. That was the second week that Rick Rose did not work, but for the reasons stated above, the General Counsel has not established that he had been terminated or otherwise removed as an employees in the bargaining unit. The next week was September 15, 1984 . Rick Rose had worked the previous week but did not work any of the following 10 weeks that are listed on Joint Exhibit 1(G). That 2- 1/2 month absence is unexplained and there is no indication whether he came back to work after No- vember 17, 1984. A similar situation exists with regard to Jeff Taranto and Kirby Tonissen . who were out for even longer periods. In addition, M. McIver worked on Sep- tember 22, 1984, and for the 7 following weeks. There is no indication of when McIver was actually hired and became an employee in the bargaining unit. If any of those employees are counted as bargaining unit employ- ees, the Union did not have a majority on September 15. The last week is November 17, 1984. McIver had worked the 8 weeks preceding November 17, 1984, which was the last day shown on Joint Exhibit 1(G). There is no indication whether McIver was out for just that 1 week or for a longer period. The General Counsel has not established that McIver lost his status as an em- ployee in the bargaining unit during that week. In short, I find that the General Counsel has not estab- lished by a preponderance of the credible evidence that the Union represented a majority of the employees in the bargaining unit at any relevant time. It follows that the Company did not refuse to bargain in violation of Sec- tion 8(a)(5) of the Act when it renounced the collective- bargaining agreement. 3. The contention that if a majority was obtained at any time during the life of the contract , the contract became enforceable Even if we were to assume that the General Counsel was correct in urging that Chris Meekins and the five sons of the corporate shareholders should be excluded from the bargaining unit, and were further to assume that the Union has majority status on 6 out of 56 weeks listed on Joint Exhibit 1(G), the complaint would still have to be dismissed. The General Counsel's contention that a contract be- comes enforceable if the Union obtains majority status at any time during the term of the contract is supported by some Board law. In Hageman Underground Construction, 253 NLRB 60, 62 (1980), the Board said that if a union achieves majority status "at any time" during the term of a contract, the union is entitled to an irrebutable pre- sumption of majority status for the duration of the agree- ment. However, in Construction Erectors, 265 NLRB 786, 787 (1982), the Board elaborated on its concept of a "permanent and stable" work force, saying: At the outset, we believe it is important to em- phasize that the determination of whether a work force is "permanent and stable" is more than a me- chanical exercise in tabulating the makeup, longevi- ty, and fluctuation of a group of employees. For in making the determination, the Board ultimately is deciding whether the work force is of such a nature that a showing of majority support made at a par- ticular point in time reasonably can be said to have significance at a subsequent time. That logic applies both to the determination of whether there was a "permanent and stable" work force and to whether the Union obtained majority status in such a work force. Looking at the record as a whole, I am unable to find that the atypical weeks in which the Union may have had majority status could be reasonably said "to have significance at a subsequent time." There is not even a contention that a majority of the employees were union supporters in 50 out of the 56 weeks listed on the exhibit. The typical rather than the atypical situation should be controlling. It follows that the 8(f) construc- tion industry contract remained unenforceable and that the Company did not violate Section 8(a)(5) of the Act by renouncing it. As indicated above, the General Counsel contends that Chris Meekins, as well as the five sons of owners and of- ficers of the corporation , should be excluded from the bargaining unit. For the sake of argument, I have as- sumed in section B,2 and 3 above, that such exclusions were justified. In fact, there is substantial question whether any of those persons should be excluded. How- MEEKINS , INC 133 ever, such unit eligibility questions need not be resolved in this case. Even if those issues are decided in a way that is most favorable for the General Counsel , the Gen- eral Counsel still has not established a violation of Sec- tion 8(a)(5) of the Act. In a like vein , there is no need to consider a number of defenses raised by Respondent that do not pertain to the majority status issue Though those defenses, as well as the unit eligibility issues, may be of considerable academic interest, their resolution is not necessary to the disposition of this case and they there- fore will not be considered. CONCLUSION OF LAW The General Counsel has not established by a prepon- derance of the credible evidence that the Company vio- lated the Act as alleged in the complaint [Recommended Order omitted from publication ]