Island Construction Co.

ISLAND CONSTRUCTION CO., INC., ETC. 13 left the office manager in charge. Johnson had no authority to shift employees from one job to another unless specifically directed to do so by Berry, and he had no authority to hire or fire. Although he criticized employees for poor work, he had no authority to discipline them. In a piehearing statement he made for the Board, he characterized himself as a leadman. He was paid on an hourly basis. On this evidence, I decided that Johnson was not a supervisor within the meaning of the Act Although Johnson spoke openly to other employees about the subject of the Union and indicated his disapproval and told the employees that they could have done better by going direct to Berry rather than going into the Union and that the Company would not buy a package deal from the Union and would close down and do the work in Houston first, there is no evidence that Berry authorized Johnson to make these statements, that he approved of his making the statements, or even knew that Johnson had made them There is no basis for inferring an authorization or adoption of Johnson's words from anything said by Berry on April 19, 1961, as alleged in the complaint. IV. THE EFFECT OF TILE UNFAIR LAIIOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of the Respondent described in section 1, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. Upon the basis of, the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By interfering with, restraining, and coercing employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is en- gaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] Island Construction Co., Inc., and/or Pearl Harbor Heights Developers, a Joint Venture I and ILWU Local 142 (Building, Supply, Construction and Maintenance Division ), Petitioner. Case No. 37-RC-731. January 3, 7,962 DECISION AND ORDER Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before John Al. Dyer, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Rodgers and Leedom]. Upon the entire record in this case the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act. 1 The Employer's name appears as corrected at the hearing 135 NLRB No. 1. 14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The labor organizations involved claim to represent certain em- ployees of the Employer.2 3. No question affecting commerce exists concerning the repre- sentation of employees of the Employer within the meaning of Sec- tion 9(c) (1) and Section 2(6) and (7) of the Act, for the following reasons: Island Construction Co. is engaged in the construction of housing in the State of Hawaii. It has also entered into a joint venture with Waiahole Water Co., Ltd., for the construction of a housing develop- ment in the Pearl Harbor Heights area. Island Construction Co. and the joint venture, known as Pearl Harbor Heights Developers, are re- ferred to herein as the Employer. On or about October 31, 1960, a representative of the Intervenor met with the Employer, claimed that it represented a majority of the em- ployees of both enterprises, and requested negotiation of collective- bargaining agreements. The Employer stated that it would require proof of the Intervenor's majority status and that it would not enter into negotiations until such proof was furnished. Either that day or the next day, November 1, 1960, a representative of the Petitioner met with Mr. Pao, president of Island Construction Co. and manager of the joint venture, also demanding recognition on the basis of its claim that it represented a majority of the carpenters and carpenter helpers at all the various jobsites at which the Employer was then working .3 When Pao refused to negotiate with the Pe- titioner, he was advised that it, would file a petition and proceed to a Board-conducted election if the Employer so desired. Pao stated that although he had no contracts with any labor organiaztion at that time, he would have to think the matter over before dealing further with the Petitioner. The Parties agreed that they would meet on call at some later time but no definite appointment was made. On November 8,- 1960, representatives of the Intervenor presented the Employer with authorization cards signed by a majority of the employees of both enterprises. The cards were checked against the Employer's payroll list, and since the Employer was satisfied that the Intervenor had established its majority status, it negotiated and entered into identical but separate agreements with the Intervenor for each enterprise. The agreements require newlyhired employees to join the Union not later than the eighth day of their employment. Having heard rumors that bargaining agreements had been signed with the Intervenor, the Petitioner, on November 10, filed the instant 2 United Brotherhood of Carpenters & Joiners of America, Local 745, AF7 CIO, was permitted to intervene at the healing on the basis of its current collective-bargaining agreements with the Employer 3It appears that prior to the hearing the Petitioner was not aware that the Employer consisted of tww o separate legal entities Hence, the Petitioner demanded recognition in a single unit and filed one petition covering the employees of both enterprises ISLAND CONSTRUCTION CO., INC., ETC. 15 petition with the Board. The Employer and the Intervenor contend that their agreements are bars to this petition, and accordingly moved to dismiss the petition on that ground. The Petitioner asserts that the contracts are not bars on the ground that the final proviso to Section 8(f) of the Act specifically negates the validity of the Employer's and Intervenor's contention. Section 8 (f) of the Act provides in pertinent part, as follows : (f) It shall not be an unfair labor practice under subsections (a) and (b) of this section for an employer engaged primarily in the building and construction industry to make an agreement covering employees engaged (or who, upon their employment, will be engaged) in the building and construction industry with a labor organization of which building and construction employ- ees are members (not established, maintained, or assisted by any action defined in section 8 (a) of this Act as an unfair labor prac- tice) because (1) 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; or (2) such agreement requires as a condition of employment, membership in such labor organization after the seventh day following the beginning of such employment or the effective date of the agreement, which- ever is later, . . . Provided further, That any agreement which would be invalid, but for clause (1) of this subsection, shall not be a bar to a petition filed pursuant to section 9 (c) or 9 (e) . The proviso states that an agreement lawful under Section 8(f) may nonetheless not serve as a bar to a petition when the majority status of the contracting union has not been established pursuant to Section 9. A union obtains exclusive representative status by establishing that a majority of the employees in an appropriate unit have selected it as their representative, either in a Board-conducted election, pursuant to Section 9(c) or by other voluntary designation, pursuant to Section 9(a). A union selected under either subsection of Section 9 is entitled to recognition as the representative of the employees and to negotiate an agreement on their behalf. We see no justification to limit Section 8(f) (1) as meaning that the union's rep- resentative status may only be acquired by certification, or that recog- nition accorded under Section 9(a) is not an equally suitable method for determining whether the proviso to Section 8(f) applies. Here, the Employer is engaged in the building and construction industry and has entered into agreements with the Intervenor (not established, maintained, or assisted by the Employer) ,4 which proved its majority in a manner recognized as valid under Section 9(a). We conclude, A Charges alleging a violation of Section 8(a) (2) with respect to the recognition of the Intervenor by the Employer were found to be without merit by the Regional Director. 16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD therefore, that the agreements entered into pursuant to such recogni- tion remain as bars despite the proviso to Section 8 (f) .5 The Petitioner also contends that, even if the Board finds that the agreements here are bars despite the proviso to Section 8 (f), the Board should nevertheless find that the Petitioner's "substantial claim" for recognition prior to the execution of the agreements is sufficient ground for directing an election here. In advancing this contention, the Petitioner relies upon Greenpoint Sleep Products, 128 NLRB 548, in which the Board construed the "substantial claim" rule of Deluxe Metal Furniture Company, 121 NLRB 995, 998, to cover situations where a petitioner was lulled into a false sense of security by an em- ployer who led it 'to believe that recognition would not be granted or any contract be entered into with any union until after a Board elec- tion. 'In the. instant case, in the face of the Petitioner's demand for recognition and offer to submit' to a Board election, Pao, the Em- ployer's president, indicited only that he would think the matter over and that a further meeting would have to be held. We believe that these statements fall short of a commitment by the Employer that no union would be recognized except pursuant to a Board-directed elec- tion. Accordingly, we reject this contention of the Petitioner and grant the motion of the Intervenor and the Employer to dismiss the petition.' [The Board dismissed the petition.] 58 S. Burford, Inc, 130 NLRB 1641, is distinguishable from the instant case. In Burford, the agreement was held not to be a bar since it had been entered into as a prehire contract, that is, at a time when the contracting unions had not and could not have demonstrated their majority status under Section 9 6 Since we are dismissing the petition on the above grounds, we find it unnecessary to consider the contentions of the parties on other issues in the case Brookside Industries, Inc. and Louise J. Moore. Case No. 11-CA- 1697. January 4, 1962 DECISION AND ORDER On April 24, 1961, Trial Examiner Louis Libbin issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the Intermediate Report attached hereto. He further found that the Respondent had not engaged in certain other unfair labor practices alleged in the com- plaint and recommended that such allegations be dismissed. There- 135 NLRB No. 4.