Mk-Ferguson Co.

776 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD MK-Ferguson Company and United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada. Case 11-CA-12576 September 27, 1988 DECISION AND ORDER William G. Jeffery, Esq. (Dies, Morrison & Rinker), of Se- attle, Washington, and Charles P. Roberts, III, Esq. (Haynsworth, Baldwin, Miles, Johnson, Greaves & Ed- wards), of Greensboro, North Carolina, for the Re- spondent. Ellen O. Boardman and Robert Matisoff, Esgs (O'Don- oghue & O'Donoghue), of Washington , D.C., for the Charging Party. BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY On December 12, 1988, Administrative Law Judge Hutton S. Brandon issued the attached deci- sion. The General Counsel and Charging Party filed exceptions and supporting briefs, and the Respond- ent filed a brief in answer to the exceptions. 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, I and conclusions2 and to adopt the recommended Order. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. ' 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 2 We adopt the judge's conclusion that the Respondent did not violate Sec. 8(a)(5) and ( 1) by excluding the inspector/tester and sketcher posi- tions from the bargaining unit In this regard , we find that although the Respondent and the Union at the May 22, 1987 meeting agreed to trans- fer the B F Shaw employees to the Respondent's project , there is insuf- ficient objective evidence to establish that the parties reached a meeting of the minds as to whether the employees in the above positions would be "rolled over" within their Shaw classifications as unit jobs for the project In so finding , we specifically do not rely on the judge's specula- tion concerning the likelihood of whether the Respondent's representa- tives would agree to include these positions in the unit . Whether a meet- ing of the minds was reached is determined not by the parties ' subjective inclinations, but by their intent as objectively manifested in what they said to each other On the basis of that objective standard , we find that the General Counsel has not shown by preponderance of the evidence that the parties agreed to include the disputed classifications in the unit Further, we find it unnecessary to reach the issues of whether the parties reached a separate oral 8(f) agreement on May 22 or modified the project agreement, and whether the May 22 agreement was consistent with the project agreement. In adopting the judge's finding that the Union had not achieved status under Sec . 9(a) as the majority representative of the B . F. Shaw employ- ees, Member Devaney notes that no exceptions were filed to the judge's findings on this point George Carson, II, Esq., for the General Counsel. DECISION STATEMENT OF THE CASE HUTTON S. BRANDON, Administrative Law Judge. This case was tried in Aiken, South Carolina, August 23- 25, 1988 . The charge was filed by United Association of Journeymen and Apprentices of the Plumbing and Pipe- fitting Industry of the United States and Canada (UA or the Union), on December 22, 1987 .1 The complaint was issued February 29, 1988, alleging that MK-Ferguson Company (Respondent or Company) violated the good- faith bargaining requirements of Section 8(a)(5) and (1) of the National Labor Relations Act (the Act) by unilat- erally, without consultation with the Union excluding ..all inspectors and sketchers (engineer helpers)" from the agreed-upon collective-bargaining unit. The critical issue is whether Respondent agreed , or was otherwise legally bound, to recognize the Union as bargaining representa- tive of the inspectors and sketchers when Respondent agreed with the Union to hire employees of the Benja- min F. Shaw Company (Shaw) following assumption by Respondent of the work on the Savannah River Project previously performed by Shaw. On the entire record2 including my observation of the demeanor of the witnesses, and after consideration of the briefs filed by the General Counsel , the Union, and Re- spondent, I make the following FINDINGS OF FACT I. JURISDICTION Respondent is a construction company with a jobsite located at the Savannah River Project near Aiken, South Carolina, where it is engaged in construction work. During the 12 months preceding issuance of the com- plaint Respondent received at its construction site in South Carolina goods and raw materials valued in excess of $50,000 directly from points outside the State of South Carolina. On these facts which are admitted by Respond- ent the complaint alleges, and I find, that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The complaint also alleges, Respondent admits, and I further find that the Union is a labor organization within the meaning of the Act. ' All dates are in 1987 unless otherwise indicated. 2 Respondent's unopposed motion to correct the transcript, dated Oc- tober 14, 1988, is granted and received in evidence as R Exh 17. 296 NLRB No. 96 MK-FERGUSON CO. A. Background The Savannah River Plant is a facility engaged in the production of nuclear components of the country's de- fense arsenal. It is located on a reservationconsisting of approximately 200,000 acres and is operated under the authority and supervision of the U.S. Department of Energy. However, the E. I. DuPont Company has been charged with the actual operation of the facility since the facility was created in 1950. DuPont employs a number of employees in the basic construction trades. While DuPont has been the prime contractor at the facility the development and maintenance of the facility has been continuous over the years requiring constant use of sub- contractors for construction activities employing thou- sands of employees in numerous crafts, trades, and skills. This case involves essentially two of these subcontrac- tors, Respondent and Shaw. Shaw was a subcontractor on the facility during its ini- tial construction during the early 1950s. Shaw served as the mechanical subcontractor responsible for planning, building, and testing of the complex piping systems nec- essary for the operation of the nuclear facility. Shaw em- ployed employees skilled in the plumbing and pipefitting craft, and since the beginning of its work it had been sig- natory to successive collective-bargaining agreements with the Union covering employees engaged in work within the Union's trade jurisdiction. The last collective- bargaining agreement between Shaw and the Union was effective from May 1, 1984, until April 30, 1987, and was by mutual agreement extended through September 1987. Although the bargaining agreement was executed by the Union, Local 150 of the Union supplied the employees for Shaw's work through a referral system referring em- ployees from among both its own membership as well as other locals and sources. It is undisputed that under its scheme of operation Shaw utilized employees in two classifications which provided the basis for the contro- versy in this case: (1) sketchers and (2) inspectors and testers, hereafter inspectors/testers. In September 1987, Shaw used about 54 sketchers in a total work force of about 838 employees at the Savannah River Project (SRP). Essentially they were used to draw or draft pipe systems to be fabricated and constructed by field personnel experienced in the plumbing and pipefit- ting craft. In addition sketchers under Shaw performed a "take-off" function, i.e., preparation of a parts and mate- rials list from the drawings necessary for the completion of the particular job. It is clear that many of the sketch- ers came from the ranks of pipefitters and possessed the basic plumbing-pipefitting skills. Further, sketching is and has been a subject for training within Local 150's ap- prenticeship program. Initially, although several of the sketchers were mem- bers of the Union, they were salaried and were not rep- resented by the Union. Ira Logan, a former supervisor of Shaw who retired in 1979, testified that in the late 1960s the sketchers became disgruntled because their salaries were being exceeded by the hourly rated craft employees and because being salaried they risked layoffs in slack work periods without an opportunity to be transferred into field work in the craft. A meeting was conducted among the sketchers by Shaw's job superintendent, Tom 777 Rhiner. According to Logan, after discussion at the meeting the "concerns of everybody in the meeting was that [the sketchers] would go Union or go to the hourly basis." It is undisputed that thereafter the sketchers became hourly paid and were represented by the Union. Shaw in September employed about 36 inspectors/- testers (who had pipefitting skills, experience or knowl- edge) in a testing and inspecting department organized by DuPont and operated under DuPont's supervision. Since this department was operated under DuPont it in- cluded inspectors/testers employed by other contractors in various other construction crafts. It was the function of Shaw's inspectors/testers to inspect and test by nonde- structive means pipe and material installed by pipefitters. It is undisputed that the Shaw inspectors/testers were traditionally included in the pipefitter bargaining unit, al- though, like the sketchers, they were not specifically re- ferred to in the collective-bargaining agreement. Respondents3 was relatively a newcomer to the SRP having obtained a contract for projects in connection with the SRP's Nava Fuels Section and Defense Waste Section in 1983. Respondent was to employ pipefitters in these projects as well as certain other crafts, and negoti- ated with the Building and Construction Trades Depart- ment of the AFL-CIO for a project agreement covering its work. Various representatives of the building trades unions took part in these negotiations including Robert W. Baynes, an International representative of the Union herein. The agreement was executed on July 19, 1983, and was effective for the duration of the project. It cov- ered various crafts employed by Respondent in "the rec- ognized historical and traditional craft jurisdiction of the signatory Unions," including the UA, but the signatory unions specifically disclaimed jurisdiction over, inter alia, "Inspectors" and "professional engineers and their help- ers." The agreement thus described a single unit made up of several crafts with employment conditions universal to all, and wages set for all on the basis of a periodic survey scheme. The project agreement was modified in 1985 to note the change of name of Respondent and to extend the agreement with Respondent from the Nuclear Fuels and Defense Waste projects to the entire SRP. This agree- ment as extended was effective at all times material to the instant case. Critical to the instant case is Respondent's employment prior to September 1987, of employees in the classifica- tions of inspectors and engineer helpers, both of which were not covered in Respondent's project agreement. Respondent's inspectors were cross-trained to inspect the work and product of more than one craft. There is an ongoing certification process of inspectors, and training of inspectors has been more formalized with more formal instruction in keeping with Respondent's quality assur- ance system. Respondent's inspectors have been treated as company staff and subject to transfers to projects other than SRP. 8 At the time of its initial contract on the project Respondent was known as Morrison-Knudson Co, Inc. 778 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Although it is not entirely clear whether they were specifically designated as either engineer helpers, sketch- ers, or technicians, Respondent employed several em- ployees in positions claimed by the Union to be the equivalent of the sketcher-pipe technicians employed by Shaw. Contrary to Shaw's use of sketchers, however, Respondent used these people more in design and engi- neering functions with substantially less drafting or sketching. B. The Replacement of Shaw by Respondent DuPont had historically operated the SRP utilizing a number of subcontractors, but in late 1986 DuPont was ordered by DOE to replace the fee contracts with an eye toward establishing a general and mechanical contractor for all future site construction work. Accordingly, the Shaw contract was put out for bid in early June 1987. A number of contractors submitted bids but ultimately the selection process dwindled down to four final bidders, one of whom was Respondent. Shaw bid the contract through Shaw's parent corporation , Blount Construction Company. In the process of soliciting bids DuPont made clear that it wanted testing and inspection done by nonmanual (nonbargaining unit) employees, and requested that bid- ders relate how inspection would be treated if they were successful. In addition , DuPont sought assurances from the bidders regarding their ability to maintain a rigid Nu- clear Quality Assurance I program (NQA I). Finally, DuPont, seeking a smooth transition of work to the suc- cessful bidder, requested that the bidders relate how they would handle the maintenance of the work force to ac- complish a smooth transition of work and to avoid the possible delays and expense attendant to obtaining new security clearances for any new work force. It was Respondent's effort to respond to DuPont's last concern noted above that provides the basis for the argu- ments of the General Counsel and the Union regarding the violations of the Act attributed to Respondent. C. The May 22 Meeting Between Representatives of Respondent and the Union Uncontroverted testimony reveals that around May 9 or 10, Respondent's then manager of industrial relations, Bob Byrnes, telephoned Baynes of the Union concerning the bidding at SRP and sought a meeting with Baynes to discuss the transition of workers if Respondent was suc- cessful on its bid to be the general and mechanical con- tractor. Baynes testified he "believed " Byrnes asked for a "rollover" of Shaw employees. A meeting was arranged for May 22. In the meantime Byrnes also arranged to meet with Joe Maloney of the building trades department to discuss application of Respondent's project agreement to the work it was bidding upon . A meeting was arranged for May 20, and Byrnes, along with Respondent's then di- rector of industrial relations, Robert Hokaj, and Re- spondent's Vice President William Hughes, met with Maloney as scheduled. During this meeting it was agreed that Respondent's project agreement with the building trades department would apply to the work to be award- ed if Respondent was successful in its bid. Byrnes and Hokaj thereafter met with Baynes in the latter's office in Washington, D.C. on May 22. The par- ties are in agreement that Byrnes reported to Baynes that Respondent's project agreement would be applicable if Respondent was the successful bidder on the SRP. Baynes agreed. The parties differ with respect to wheth- er Byrnes and Baynes agreed to a complete "rollover" of Shaw employees. Baynes' testified he pointed out that he wanted a complete rollover so that Respondent would not "pick and choose" employees to retain. Ac- cording to Baynes, Byrnes agreed. Byrnes testified that he explained to Baynes the need for an orderly turnover if Respondent was the successful bidder and he wanted to assure DuPont in an oral pres- entation in connection with the bid that Respondent had discussed the turnover with the Union and that an order- ly transition could be accomplished . Byrnes denied using the word "rollover" in the meeting with Baynes but ac- knowledged that Baynes used it and while he would not admit to agreement with a "complete rollover" he testi- fied there was agreement that Respondent would hire all of Shaw's employees . Hokaj generally supported Byrnes' testimony. Although Byrnes, Baynes, and Hokaj did discuss job superintendents being outside the scope of the agreement and hence the bargaining unit, there was no dispute that the parties did not discuss inspectors/testers, sketchers, pipe technicians, or any other classifications. D. Respondent 's Successful Bid and the Transition from Shaw In early June Respondent made its oral presentation to DuPont in support of its bid . Part of that presentation in- cluded a response to a previously posed question of DuPont regarding labor relations. The question and Re- spondent's answer was as follows: Labor Relations How do you propose to follow the practice of using non-manual personnel, rather than foreman, for sketching and material take-off? Apply scope of MK-Ferguson project labor agreement. Craft labor performing sketching and material take off are not covered by the scope. Non-manual personnel will perform these func- tions as per our current practice. MK-Ferguson will hire craft labor as covered by the project agreement on October 1, 1987. Anticipate objections by the Local United Asso- ciation and prepare for resolution during the transi- tion period. On July 23 or 24 Respondent was advised that its bid had been accepted. On July 24 Byrnes called Baynes and advised him of this fact, and told him that Respondent * A "rollover" was defined by the witnesses as the hiring by a success- ful bidder of the old contractor's employees within the same classification in which they had previously been employed MK-FERGUSON CO. 779 would employ all the Shaw employees . However, Byrnes further told Baynes that Respondent would roll the Shaw people who were performing sketching and in- spection-testing duties back into the craft as fitters or welders and would use nonmanual employees to do the work they had been engaged in. Baynes testified that he immediately disputed this position saying it was contrary to the agreement for a complete rollover reached on May 22. According to Byrnes' testimony, Baynes' re- sponse was more tempered with Baynes only expressing uncertainty as to the acceptability of this disposition of these two classifications. There followed an exchange of correspondence. The Union in a letter to Respondent dated August 20 protest- ed Respondent's intended disposition of the two disputed classifications. The letter signed by Marvin J. Boede, the Union's general president, but drafted by Baynes and the Union's attorneys stated: When the United Association informally agreed to a "rollover" of the United Association members at the project from B . F. Shaw to MK-Ferguson, we did so on the express assumption that no United As- sociation jobs would be lost in the transition. The company's assurances that those employees from the sketching and T and I Departments will be reas- signed to other positions is not satisfactory, since you are still talking about the loss of nearly ninety traditional United Association positions at the project. Respondent replied by letter from Byrnes dated Sep- tember 1 in which Respondent took the position that its project agreement with the building trades department to which the Union was a party controlled the situation and was applicable to the pipefitters hired by Respondent on the SRP. The letter pointed out that it had been Re- spondent's practice on the SRP over the preceding 4 years, as well as on other projects , to employ nonbar- gaining unit personnel to perform field engineering tasks like sketching and quality control functions and it intend- ed to continue this practice. No agreement was reached between the parties on the disputed classifications and on September 28 Respondent assumed its position as the general and mechanical con- tractor on the SRP. In doing so it retained in its employ- ee complement in excess of 800 employees in various crafts, including 25 pipefitters, it already had working at SRP, and hired all the employees previously working for Shaw who desired to continue working at the site.5 Al- though it hired all Shaw's craft employees without appli- cation, applications were required for those sketchers and inspectors/testers who rejected a return to manual work in the craft, and sought to continue with Respond- ent in work of the type they had been performing with Shaw. These applicants were hired by Respondent as pipe technicians or engineer helpers, in the case of s More specifically , from Respondent's figures which are not disputed by the General Counsel or Charging Party Respondent hired and added 805 Shaw employees including 36 sketchers and 26 inspectors/testers to its complement of 849 employees already covered by the project agree- ment sketchers, and quality control inspectors, in the case of the inspectors/testers. E. Arguments of the Parties Counsel for the General Counsel argues that Respond- ent was a legal successor to Shaw in a unit of pipefitter journeymen and apprentices "including inspectors and sketchers (engineer helpers)" the unit alleged in the com- plaint herein . In essence the General Counsel and the Union contend that Shaw had recognized the Union as the 9(a)6 representative of its employees in the unit and that Respondent, as successor to Shaw, upon its determi- nation to hire all employees of Shaw was obligated to recognize and bargain with the Union as the 9(a) repre- sentative of unit employees . When Respondent unilateral- ly determined to change the scope of the unit by exclud- ing the sketchers and inspectors/testers, from the unit and by thereafter admittedly changing their wages and fringe benefits, it breached its bargaining obligations under Section 8(a)(5) of the Act, the argument goes. See Carolina Telephone & Telegraph Co., 258 NLRB 1387 (1981); Arizona Electric Power, 250 NLRB 1132 (1980). See also NLRB v. Katz, 369 U.S. 736 (1962). That the Union was in fact a majority representative of Shaw's unit employees was demonstrated, according to Counsel for the General Counsel, by the uncontroverted fact that all the 838 employees of Shaw , based on the testimony of A. Frank Williams, business manager of Local 150, and union records, were members of the Union during the month of September. Even if there was no 9(a) relationship between Shaw and the Union, the General Counsel 's argument contin- ues, Respondent by its conduct in May recognized the Union as the 9(a) representative of the unit employees, and having extended such recognition to the Union Re- spondent was thereafter not free to withdraw it or unilat- erally change the terms and conditions of unit employ- ees. Knowing that it would hire all of Shaw's employees Respondent, as successor to Shaw, was required to con- sult with their bargaining agent before setting the initial terms of their employment . See Denham Co., 206 NLRB 659 (1973). Noting that Respondent relies upon the project agreement to justify its actions counsel for the General Counsel claims that Respondent's letter to the Union dated September 1 did not "ultimately rely upon the contract claim" and instead made the argument that Respondent "traditionally" employed nonunit personnel for sketching and quality control functions such as in- specting. Thus, the counsel for the General Counsel and the Union reject the proposition that the case simply in- volves a matter of contract interpretation. Finally, the General Counsel and the Union argue al- ternatively that even if the relationship between Re- spondent and the Union is governed by Section 8(f)7 of 6 The reference is to Sec. 9(a) of the Act which accords exclusive rep- resentative status to a labor organization "designated or selected for the purposes of collective bargaining by a majority of the employees in a unit appropriate for such purposes " r Sec 8(f) of the Act provides, inter alia, that it is not an unfair labor practice under the Act for an employer engaged "primarily in the build- Continued 780 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the Act rather than Section 9(a), Respondent still must be found to have violated Section 8 (a)(5) and (1) of the Act by its unilateral action. The May 22 agreement on a "complete rollover" according to the General Counsel would constitute a valid and enforceable 8(f) agreement even though it was oral . Respondent breached this valid agreement which was executory in nature and which could not have expired prior to its provisions having been carried out. In regard to this latter point the Gener- al Counsel relies upon the holding in John Deklewa & Sons, 282 NLRB 1375 (1987), that, "when parties enter into an 8(f) agreement they will be required . . . to comply with that agreement." Briefly stated Respondent's arguments are that the Union never enjoyed 9(a) status at Shaw and therefore there was no presumption of continuing majority status when Respondent employed Shaw's former employees, and the principles of successorship do not apply. Re- spondent further contends that no voluntary recognition and 9(a) relationship resulted from the discussions be- tween the parties on May 22 because it had not hired any employees at the time and had not even been award- ed the contract by DuPont. Assuming Shaw had a 9(a) relationship with the Union Respondent did not succeed to that relationship because it was not shown that Re- spondent succeeded to the Shaw bargaining unit in light of Respondent's recognition of an existing multicraft bar- gaining unit . But even assuming the appropriateness of the unit contended by the Union, Respondent claims there was no real continuity between Respondent and Shaw so as to make the former the successor of the latter. In any event, Respondent asserts the Union waived any claim to representation of Shaw sketchers and inspectors/testers by agreeing to a project agreement under which these classifications were excluded. Finally, with respect to the 8(f) argument of the General Counsel and the Union, Respondent contends that Respondent al- ready was party to an 8(f) agreement covering the con- templated work and that agreement which excluded in- spectors and sketchers (engineer helpers) could not be changed since by its terms it could be modified only by mutual consent and by being reduced to writing and signed. On its facts the instant case appears to be an extremely unique one, but one not beyond the application of estab- lished Board law. First it is readily apparent that the em- ployers involved herein, Shaw and Respondent , are en- gaged in the building and construction industry. Indeed, as already noted the complaint describes Respondent as a construction company engaged in construction work. Normally, one would expect that its contractual agree- ments with a labor organization would be negotiated and governed by the provisions of Section 8(f) and that body of Board law set forth in Deklewa, supra, as clarified and explained in subsequent Board cases including Brannan Sand & Gravel Co., 289 NLRB 977 (1988). However, the instant case occurs under unique circumstances, and in mg and construction industry " to make a bargaining agreement with a union whose majority status "has not been established under the provi- sions of Sec. 9 of the Act," i.e., voluntary recognition based on a show- ing of majority support or certification of the union by the Board after a Board-conducted election. light of the arguments of the parties requires analysis of the respondent-union relationship under Section 9(a) as well. It is initially clear, and I conclude, that the Union did not achieve 9(a) status in the representation of the Shaw unit employees. In Deklewa, supra, the Board, overruling 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 conver- sion doctrine which held that a collective-bargaining relationship/agreement permitted under Section 8(f) could convert into one cognizable under Section 9(a) on the basis of a showing that during a relevant period the Union enjoyed the support of a majority of the employ- er's employees in an appropriate unit . Deklewa, supra at 1377, went on to modify the unit scope rules in 8(f) cases and adopted the following principles in such cases: (1) [A] collective-bargaining agreement permitted 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 pursuant to Section 9(c) and Section 9(e); (3) in processing such petitions, the ap- propriate unit normally will be the single employ- er's employees covered by the agreement; and (4) upon expiration of such agreements, the signatory union will enjoy no presumption of majority status, and either party may repudiate the 8 (f) bargaining relationship. The Board went on to hold in Deklewa that in light of the legislative history and the traditional prevailing prac- tice in the construction industry it would require the party claiming the existence of a 9(a) relationship to prove it through either a Board-conducted representation election or a union's express demand for, and an employ- er's voluntary grant of, recognition based on a showing of support for the Union among a majority of the em- ployees in an appropriate unit . These points were reaf- firmed and strictly applied in American Thoro-Clean, Ltd., 283 NLRB 1107 (1987), and Meekins, Inc., 290 NLRB 126 (1988). And in Precision Striping, 284 NLRB 1110 (1987), the Board pointed out that an employer poll in certain circumstances prior to initial recognition, would suffice to create a Section 9 construction industry bar- gaining relationship. In the more recent Board decision in Brannan Sand & Gravel Ca, supra, the Board rejected the argument that a 9(a) relationship in the construction industry could be es- tablished by proving that the collective-bargaining rela- tionship was initiated before the enactment of Section 8(f). Thus, no presumption of a union's majority status in the construction industry attaches by virtue of a long and continuous bargaining relationship entered into before the enactment of Section 8(f). Considered in light of the foregoing principles, it is evident that the Union did not enjoy a 9(a) collective- bargaining relationship with Shaw, notwithstanding its long contractual relationship with Shaw in the unit. There was absolutely no evidence presented by the Gen- eral Counsel that the relationship was based upon a MK-FERGUSON CO. Board-conducted election or voluntary recognition based upon a Union demand and showing of support for the Union among a majority of Shaw's unit employees. The fact that the great majority if not all of the unit employees were shown to be members of the Union and on whose behalf Shaw made monthly deductions for union pension fund contributions does not satisfy the re- quirement for establishing 9(a) status set out in Deklewa. In McLean County Roofing, 290 NLRB 685 (1988), rely- ing on Deklewa, the Board reversed an administrative law judge's conclusions that a 9(a) relationship between an employer and a union in the construction industry was established as a result of a permanent and stable work force made up of employees the majority of whom financially supported the union with their dues and for whom the employer made regular dues and pension de- ductions. I find no merit to the argument of the Union that the testimony of Logan establishes voluntary recognition of the Union as representative of the sketchers and that im- plicit in such recognition is Shaw 's acknowledgment of the majority status of the Union in the overall unit. First in this regard, I find Logan's testimony insufficient to es- tablish a valid polling of the sketchers reflecting their desire for union representation. His vague recollection, understandable in light of the lapse of approximately 20 years, indicates only a consensus revealed through some means which Logan could not specifically recall. No valid polling under circumstances contemplated in Preci- sion Striping was shown . Moreover, Shaw's willingness to include the sketchers in the overall unit adds nothing to its initial willingness to execute a bargaining agree- ment with the Union which would satisfy the burden set out in Deklewa to establish a 9(a) relationship . In short there was no Board-conducted election or voluntary rec- ognition in the overall unit based on a showing of major- ity support in that unit. Here, unlike the situations in San Clemente Publishing Corp., 167 NLRB 6 (1967), enfd. 408 F.2d 367 (9th Cir . 1969), and Brown & Connolly, 237 NLRB 271 (1978), enfd. 593 F.2d 1373 (1st Cir. 1979), cited in the Union's brief, there were no valid polls in the overall unit or a "convincing demonstration of sup- port" by employees wearing union buttons accompany- ing the union representative to the employer president's office. The General Counsel argues that at the time of the May 22 meeting the "conversion doctrine" was still the law with respect to pre-1959 bargaining relationships since the Board in Deklewa did not address such relation- ships and did not do so until Brannan Sand & Gravel, supra. The Union was therefore the 9(a) representative of Shaw employees to whom Respondent succeeded as a result of "conversion." I find no merit to this argument for while pre-1959 relationships were not specifically ad- dressed in Deklewa no exceptions to rejection of the con- version doctrine were noted. Moreover, during 1987 the conversion doctrine as applied to pre-1959 relationships was under attack . The Brannan case was pending at the time of the Deklewa decision and involved a factually similar situation long predating the May meeting of the parties herein . In light of Deklewa there would be no reason for either party at the time to believe that a 9(a) 781 relationship between Shaw and the Union had come about as a result of "conversion ." Rejection of the con- version doctrine by the Board in Brannan was universal and retroactive to all pre-1959 bargaining relationships in the building and construction industry . If this were not so then all pre-1959 relationships in that industry would have been converted to 9(a) relationships before Brannan on the basis of "existing law," including the employer in Brannan . Clearly, that was not the result or the Board's intent in Brannan. Obviously, a 9(a) relationship can be established be- tween an employer and a union engaged in the construc- tion industry as the General Counsel argues, but the manner for doing so is clearly set forth in Deklewa which allows no exceptions . The General Counsel argues that the Board's general statement regarding establishment of a 9(a) relationship in the construction industry in Bran- nan was not exhaustive or exclusive . This was demon- strated, the argument goes, by the Board's notation that its ruling in Brannan was not inconsistent with a prior Board ruling in Carmichael Construction Co., 258 NLRB 226 fn. 1 (1981), enfd. 728 F.2d 1137 (8th Cir. 1984), where an employer in the construction industry was found to have specifically recognized the majority status of the union and thereby granted it 9(a) status. However, Carmichael is clearly distinguishable on its facts from the instant case for in that case the employer admitted that the recognized union enjoyed majority status. There was no such admission by Respondent here nor was there such an admission shown by Shaw. There is an additional reason why Respondent may not be regarded as the legal successor to Shaw so as to make it bound by any extension of recognition by Shaw to the Union in the pipefitters' unit. Respondent was not legally obligated to adopt the Shaw-Union bargaining agreement . NLRB v. Burns Security Services, 406 U.S. 272 (1972). And it is clear, and no one contends otherwise, that Respondent did not specifically adopt the Shaw- Union contract. Quite the opposite, the Union and Re- spondent agreed that Respondent's project agreement would control their relationship. That agreement cov- ered a broad multicraft unit of which the plumbing and pipefitter craft was only a smaller part.8 Thus, notwith- standing the fact that Respondent hired Shaw's unit em- ployees and in spite of the assumption of work formerly done by Shaw at essentially the same location, I con- clude Respondent was not the legal successor to Shaw bound to recognize the Union as the representative of its employees. In short, although Respondent might other- wise meet the traditional criteria for a successor as out- lined in Aircraft Magnesium, 265 NLRB 1344 (1982),9 cited in the General Counsel's brief, except for its failure to take physical or financial assets from Shaw the unique factual situation here precludes that application of the 8 Based on Respondent 's undisputed figures the former employees of Shaw hired by Respondent when it assumed Shaw 's work on September 28 were less than the number on Respondent's payroll in the multicraft project agreement. 8 These criteria are similarities in (1) business operations; (2) plant; (3) work force, (4) jobs and working conditions, (5) supervisors; (6) machin- ery and equipment and methods of production , and (7) product or serv- ice. See also Fall River Dyeing Corp. Y. NLRB, 482 U S 27 (1987) 782 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD traditional criteria by virtue of absorption of the Shaw unit into Respondent's multicraft unit and the Union's ac- knowledgement that the project agreement and its multi- craft unit would control the relationship with Respond- ent.10 Cf. Anheuser-Busch, Inc., 246 NLRB 29 (1979). The unit of Respondent's employees alleged in the com- plaint herein limited to the former employees of Shaw is thus inappropriate. In considering the contentions of the General Counsel and the Union that 9(a) recognition and status was ac- corded the Union by Respondent in the May 22 meeting it is initially apparent that at that time Respondent em- ployed no Shaw unit employees . Indeed, it had not even been awarded work for which the former Shaw employ- ees would be utilized, and there was no way of being as- sured that it would receive the work. I am mindful of Board law cited by the General Counsel that a successor employer is obligated to consult with the bargaining rep- resentative of its predecessor 's unit employees concern- ing the initial terms of their employment at the point the successor manifests an intention to retain all or a majori- ty of the unit employees." However, as already noted the instant case does not present a normal successorship situation . Notable distinctions here include the fact that any initial terms of employment were already met by the project agreement to which the Union was a party and the fact that while Respondent on May 22 intended to hire Shaw's employees if it was the successful bidder, there was no way of knowing on May 22 that it would be the successful bidder. Under these circumstances, it is difficult to perceive how the May 22 meeting can be re- garded as having produced anything other than an 8(f) prehire agreement which the Third Circuit Court of Ap- peals in enforcing the Board's decision in Deklewa, supra at 773, defined as "a contract agreed to by an employer and a union before the workers to be covered by the con- tract have been hired." There is no showing in this record that Respondent through Byrnes by conduct or statement acknowledged that the Union was the representative of a majority of Shaw's employees. Clearly, there was no specific demand for recognition as majority representative made by Baynes to Respondent at the May 22 meeting or before. Further, there was no offer to prove, or an at- tempt to prove, the Union's majority status by Baynes. Respondent's conduct and the Union's conduct was in no way inconsistent with, or different from, a normal pre- 1° Art. VIII of Respondent's project agreement provides that it "shall in every instance apply to and control construction at the site and take precedence over provisions of local or national agreements which may conflict with the terms of this Agreement , except as provided in Art IV " The exceptions referred to in art IV were concerned with the ap- plication of the National Tank Manufacturers Agreement, the Stack Agreement , and the Cooling Tower Agreement, none of which have ap- plication in the instant case The same article also provides that the agreement "represents the complete understanding of the parties , and any EMPLOYERS and their Subcontractors at any tier shall not be required to sign any other agreement with the UNIONS or any other union inso- far as construction work on this project is concerned " i i The Supreme Court recognized this possibility in Burns, supra, saying that where "it is perfectly clear that the new employer plans to retain all of the employees in the unit . it will be appropriate to have him initially consult with the employees' bargaining representative before he fixes terms " 406 U .S at 295 hire recognition agreement under the principles of Deklewa and an agreement to apply the terms of a con- tract to which the Union and Respondent were already parties if Respondent became the general and mechanical contractor. Further, contrary to the assertion in the Gen- eral Counsel's brief that "Byrnes approached the UA as the employees' 9(a) representative," there was nothing in Byrnes' "approach" or conduct at the May 22 meeting inconsistent with simple acknowledgement that the Union was the 8(f) contractual representative of Shaw's employees. Considering all the foregoing, I find the General Counsel and Union have failed to establish a 9(a) rela- tionship between Shaw and the Union to which Re- spondent succeeded. And, as Respondent argues, the Union could not acquire greater status with a successor than it had with the predecessor merely as a result of succession . The Shaw-Union relationship can only be re- garded as one based on Section 8(f). Therefore, no pre- sumption of majority support of the Union can be based upon the Shaw-Union relationship. With respect to the alternate theory advanced by the General Counsel and the Union regarding the existence of an enforceable 8(f) agreement, Respondent initially argues that the complaint did not allege an 8(f) issue and objects to consideration of the issue herein. I find no merit to this argument. The 8(a)(5) allegation of the com- plaint is sufficiently broad to encompass an 8(f) theory. Moreover, the issue was raised both before the hearing and during the hearing in motions and opening state- ments. All parties treated the issue fully in their respec- tive briefs. I conclude that the issue has been fully and fairly litigated so that no impediment from a due-process standpoint to a decision on the merits of the 8(f) issue exists. Turning to the merits of this issue I have no difficulty in concluding that any agreement reached between the parties in the nature of an agreement to hire Shaw em- ployees would constitute an 8(f) agreement. It obviously would be an agreement between a union and employer in the construction industry covering work not yet ac- quired and employees not yet hired. But the real issue is exactly what did the parties agree to and was that agree- ment repudiated by Respondent during its effective term. While it is undisputed that the parties agreed that the project agreement would apply if Respondent was the successful bidder, it is disputed whether the parties agreed to something else, the rollover of all Shaw em- ployees within their Shaw classifications, an agreement which on its face would appear to be contrary to the project agreement's exclusion, at least, of inspectors. I conclude that there was no meeting of the minds on this matter and no clear agreement reached between the par- ties.12 In reaching this conclusion I do not credit that testimony of Baynes that claims agreement on a "com- plete rollover." I do not attribute to Baynes an intention 12 The Board in McLean County Roofing, 290 NLRB 685 ( 1988), in dis- cussing the Deklewa principles at 686: Implicit in these new governing principles is the fundamental re- quirement that the parties to an 8(f) relations reach a meeting of the minds on all material terms and voluntarily enter into an agreement MK-FERGUSON CO. to prevaricate, however. But I received the distinct im- pression that he was testifying in more precise language than that actually used . And while Baynes even by ad- mission of Respondent's witness used or may have used the term "rollover" in the discussion in reference to Re- spondent's hiring Shaw employees, it is clear neither party specifically defined the term within the conversa- tion on May 22. Even if Byrnes and Hokaj understood the term to require the maintenance of the employees within the same classification after hired by Respondent they admitted to no such agreement . The only classifica- tion specifically referred to by Baynes was foremen whom he wanted a specific commitment from Respond- ent to hire within the Shaw classifications. If there had been agreement on a "complete rollover," there would have been no need to refer to specific inclusion of fore- men. And although Baynes testified he stated at the meeting that he did not want any "picking and choos- ing" by Respondent, he admitted herein that he was re- ferring to people, as well as classifications' 3 and used the term "everybody" in connection with the rollover. Every- body refers to people, not classifications . Further, in his testimony Baynes initially did not define "rollover" in terms of employment in the same classification. He also expressed uncertainty in his testimony regarding whether Byrnes used the term "rollover" in his pre-May 22 tele- phone conversation with Baynes setting up the meeting. Baynes testified that he "believed " Byrnes used that term in connection with the transition from Shaw if Respond- ent was awarded the work. There are additional reasons why I conclude that Baynes, contrary to his testimony, did not make clear that he was seeking a total rollover in all classifications and Respondent did not agree to commit to such a roll- over. Thus, after Respondent became the successful bidder and it was clear that the parties had a dispute re- garding the unit inclusion of inspectors/testers and sketchers, the Union in its August 20 letter to Respond- ent advised Respondent: When the United Association informally agreed to a "rollover" of United Association members of the project from B . F. Shaw to M-K Ferguson, we did so on the express assumption that no United Associa- tion jobs would be lost in the transition. [Emphasis added.] Had Baynes believed that he, Byrnes and Hokaj had ex- changed language constituting a specific agreement to "rollover" all Shaw employees in classification it is un- likely the above letter would have used such a vague term as "express assumption" in referring to the parties' agreement. Moreover, I find it doubtful that Byrnes and Hokaj would have expressly agreed to a "rollover" commit- ment which would have included inspectors/testers and 10 That Respondent agreed to "no picking and choosing" is evidenced by its ultimate offer of employment to all Shaw employees , including in- spectors and sketchers who, when they did not desire to return to man- ualcraft work, were allowed to apply for work as inspectors and engineer helpers. Moreover, Byrnes admitted he agreed with Baynes to take all the Shaw employees. 783 sketchers when Respondent expressly had sought agree- ment from the Building and Trades Department of the AFL-CIO and the Union on application of the project agreement and knew that it would rely upon that agree- ment to exclude the inspectors/testers and sketchers from the unit. Byrnes and Hokaj obviously anticipated union objections to the exclusion of the disputed classifi- cations if Respondent succeeded Shaw. Byrnes candidly admitted as much in his testimony . Further, on May 27, Byrnes advised Dupont that Respondent anticipated ob- jections by the Union to utilizing nonmanual personnel for sketching and material take off. However, being more concerned with obtaining a commitment for a smooth transition in order to placate Dupont, Byrnes and Hokaj specifically failed to raise any anticipated issues with Baynes. They were content to allow Baynes to "assume" that the application of the project agreement would not result in any losses in classifications as a result of the transition from Shaw to Respondent. Thus, their conduct in dealing with Baynes may be regarded as, at best, less than candid. Nevertheless, I am not persuaded that they intentionally created in Baynes' mind the belief as opposed to his own assumption that the transition would incorporate a rollover in all instances within clas- sification separate from any provisions of the project agreement. It must be recalled that the May 22 discus- sion regardless of whatever terminology was used was prefaced by, and in the context of, the initial agreement between the parties at the beginning of the meeting that the project agreement would govern their relationship if Respondent was the successful bidder. I therefore find that neither Byrnes or Hokaj reached a "meeting of the minds" with, or made a commitment to, Baynes to "roll- over" Shaw inspectors/testers and sketchers within their classifications, or that they otherwise waived the position that the project agreement excluded these classifications from the bargaining unit. t4 Finally, in this regard, as Respondent's brief argues, any waiver by Respondent of reliance on the project agreement to exclude the disputed classifications would constitute a modification of the project agreement which expressly excluded "Inspectors" and "Professional engi- neers and their helpers." As noted, Respondent had oper- ated for 4 years under the project agreement excluding these classifications and those employees doing the same work as the former Shaw inspectors/testers and sketch- ers. The project agreement by its terms not only super- seded all other agreements, but it also prohibited amend- ment or supplementation "except by mutual consent of the parties hereto, reduced to writing and duly signed by each." t s No written agreement flowed from the May 22 14 The Union argues in its brief that Respondent 's contention that the project agreement excludes the former Shaw inspectors and former Shaw sketchers as engineer helpers is incorrect Whether or not Respondent's position is correct it is at least sufficiently reasonable and well founded to be advanced in good faith, particularly in view of Respondent's past 4- year practice under the project agreement which indisputably had ex- cluded those persons doing the same work as the former Shaw inspectors and sketchers 15 Project agreement, art. Xl. 784 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD meeting between Baynes, Byrnes, and Hokaj . Although as the Union argues, under certain circumstances there may be oral modification of an agreement despite its pro- hibitions otherwise, the instant case presents no circum- stances warranting a modification finding . There is no evidence herein to suggest that the parties understood themselves to be modifying the project agreement. Even if they did, it does not appear that they had the authority to do so since it was negotiated by the building and trades department on behalf of all the signatory unions including the Union herein. Obviously, the building trades department was not party to any modification. In light of all of the above I find and conclude that the parties herein reached an enforceable 8(f) agreement only to hire all of Shaw's unit employees in the event Re- spondent was successful in its bid for the general and mechanical work on the SRP. I find, however, that there was no meeting of the minds and no specific agreement that Shaw's inspectors/testers and sketchers would be hired by Respondent within the unit . In the absence of such agreement I find no breach or repudiation of agree- ment in Respondent's employing employees in these clas- sifications outside the unit in conformance with Respond- ent's interpretation and practice under the project agree- ment. Consequently, I find Respondent did not violate Section 8(a)(5) and (1) of the Act with respect to unilat- erally excluding the inspectors/testers and sketchers from the bargaining unit when it assumed the work for- merly done by Shaw. CONCLUSIONS OF LAW 3. All employees of Respondent at the Savannah River Project engaged in the recognized historical and tradi- tional craft jurisdiction of the Unions including the UA who are signatory to Respondent's project agreement, excluding executives, professional engineers and their helpers, superintendents, assistant superintendents, in- spectors, timekeepers, messengers, clerical employees, employees above the position of craft general foremen, and all guards and supervisors as defined in the Act con- stitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 4. The Union has not been established as the majority collective-bargaining representative under Section 9(a) of the Act of the employees in the unit set forth above in paragraph 3, but Respondent and the Union agreed under Section 8(f) of the Act to the application of Re- spondent's project agreement covering employees in the unit described in paragraph 3 in the Union's traditional craft jurisdiction. 5. Respondent did not breach an agreement with the Union or otherwise violate Section 8(a)(5) and (1) of the Act on or after September 28, 1987, when it excluded from the unit set forth above in paragraph 3 those former employees of B. F. Shaw Co., employed in the classifications of inspectors/testers and sketchers. 6. The Respondent has not in any other manner violat- ed Section 8(a)(5) and (1) of the Act. On these findings of fact and conclusions of law and on the entire record in this case, I issue the following recommended" 1. Respondent, MK-Ferguson Company, is an employ- er in the building and construction industry engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, is a labor organization within the meaning of Section 2(5) of the Act. ORDER The complaint is dismissed in its entirety. 16 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- poses