Bay Area Sealers

BAY AREA SEALERS Gordon L. Rayner and Frank H. Clark, d/b/a Bay Area Sealers and Auto, Marine & Specialty Painters Union Local No. 1176. Cases 32-CA- 98 (formerly 20-CA-11734) and 32-CA-824 August 13, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND TRUESDALE On March 23, 1978, Administrative Law Judge Maurice M. Miller issued the attached Decision in Case 32-CA-98. In May 1978, Respondent filed ex- ceptions and a supporting brief, and the Union filed a brief in support of the Decision. On June 1, 1978, the General Counsel filed a complaint in Case 32- CA-824, alleging Respondent's refusal in March 1978 to accede to the Union's request to inspect its payroll records. On August 4, 1978, the Board issued an Order which, inter alia, consolidated the foregoing cases and remanded the proceeding for a further hearing before Administrative Law Judge Miller, who, on December 18, 1979, issued the at- tached Supplemental Decision. Thereafter, Re- spondent and the General Counsel each filed ex- ceptions and supporting briefs, Respondent filed an answering brief, and the Union filed cross-excep- tions, a supporting brief, and a telegraphic state- ment. The Board has considered the record and the at- tached Decision and Supplemental Decision in light of the exceptions, cross-exceptions, and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge, with certain modifications, and to adopt his recom- mended Order, as modified herein. i. The Administrative Law Judge found, and we agree, that the Union was the Section 9(a) majority representative of the full-time and regular part-time crew members in the bargaining unit on May 14, 1975, when Respondent, a nonmember of the Park- ing and Highway Improvement Contractors Asso- ciation, and the Union signed the then-current 1973-75 master contract between the latter and the Association. 2 I Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect Standard Dry Wall Products. Inc.. 91 NLRB 544 (1950). enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings We also find no evidence to support Respondent's allegation that the Ad- ministrative Law Judge was prejudiced against Respondent. 2 In addition, the Administrative Law Judge properly found that the contract was renewed for a 3-year period ending October I. 1978. and was automatically renewable thereafter in the absence of notice by either party of intent to modify or terminate it 251 NLRB No. 17 In determining the Union's majority status, the Administrative Law Judge found that there were five crew members in the unit3 on May 14, 1975, and that as of that date four of them had signed valid cards which authorized the Union to bargain on their behalf. However, the Administrative Law Judge excluded from the unit as a "special status employee" Charles McDaniel, who also worked as a crew member, because () he was told, upon being hired by Respondent early in 1975, that he would be given a chance to become a partner if the business prospered in the coming year,4 (2) he was notified by Respondent that contract talks with the Union's representative would take place on May 14, 1975, and "happened" to be present during some of those talks, (3) he was engaged in sales- work, the calculation of job estimates, and formal bid preparations, and, when so occupied, was given the use of Respondent's car, and (4), unlike the em- ployees in the unit, he was salaried. Respondent correctly contends that McDaniel should be included in the unit on the ground that he devoted a substantial portion of his time to pro- duction work as a crewmember. Thus, the record shows that McDaniel spent 70 percent or more of his time in such production tasks from March 1975 to the end of that year, and that it was not until late 1976 or 1977 that the major part of his duties was in sales and the preparation of estimates. As McDaniel performed a substantial amount of bar- gaining unit work along with the other crew mem- bers both before and on May 14, 1975, and for a considerable time thereafter, we find that he had a strong community of interest with them that outweighed the fact that he was salaried and was present during a portion of the contract talks in which there is no evidence that he participated. That McDaniel subsequently concentrated on sales and estimates does not militate against our finding that he belonged in the bargaining unit in view of his duties as a crew member in the crucial period when the parties signed the contract. Accordingly, we find that the bargaining unit on May 14, 1975, consisted of six employees, including McDaniel. However, the Union's status as the Sec- tion 9(a) representative remains in tact as the four employees who signed authorization cards still con- stituted a majority of the six employees in the unit. 2. As found by the Administrative Law Judge, the contract in this case terminated on October 1, 1978. Because of the contract's expiration, the Ad- ministrative Law Judge limited Respondent's obli- a James Gordon. Douglas Harris. Jesus Lahborin. Warren LaHara. Iand Terry itz ' The record show, that McDaniel did not thereafter achiesc lthat po< sition 89 90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gation to honor the terms and conditions of the contract to the period following Respondent's uni- lateral repudiation of the contract and the con- tract's expiration date. Respondent's obligation to make the employees whole for any loss of pay or fringe benefits occasioned by Respondent's unlaw- ful repudiation of the agreement, therefore, ceased as of the contract's expiration date. For the reasons set forth below, we disagree with this portion of the Administrative Law Judge's remedy. Although an employer's contractual obligations cease with the expiration of the contract, those terms and conditions established by the contract and governing the employer-employee, as opposed to the employer-union, relationship survive the contract and present the employer with a continu- ing obligation to apply those terms and conditions, unless the employer gives timely notice of its inten- tion to modify a condition of employment and the union fails to timely request bargaining, or impasse is reached during bargaining over the proposed change. See Sir James, Inc., 183 NLRB 256 (1970); Wayne's Olive Knoll Farms, Inc., d/b/a Wayne's Dairy, 223 NLRB 260 (1976); Sioux Falls Stock Yards Company, 236 NLP.B 543 (1978); James A. McBrady, Inc., and Maine Erection, Inc., 238 NLRB 847 (1978). See also N.L.R.B. v. Haberman Con- struction Company, 618 F.2d 288 (5th Cir. 1980). The record shows that Respondent unilaterally re- pudiated its contract with the Union in July 1976 and has since that time failed to implement its terms. Thus, Respondent's action in 1978 in send- ing a termination notice and offering to enter into negotiations for a new contract with the Union, which did not reply thereto, was made after a pro- longed unilateral refusal on Respondent's part to carry out the provisions of their then-existing con- tract. In light of these unlawful changes by Re- spondent 2 years earlier without consulting or bar- gaining with the Union, Respondent's termination notice and belated offer to bargain 5 did not affect Respondent's continuing obligation to apply the terms and conditions of the terminated contract be- cause Respondent failed to make a timely request to bargain over proposed rather than long-accom- plished unilateral changes. In view of the foregoing, we shall order Respondent to make whole all unit employees for any loss of pay and benefits resulting from its continuing refusal to apply the terms and conditions of the expired agreement. 3. The Administrative Law Judge properly found that Respondent further violated Section " Although the Union did not reply to Resxpondent's 1978 offer to bar- gain, it is still entitled to request bargaining because negotiations against a background of unremedied unfair labor practice. would have been an ex- ercise in futility. 8(a)(5) of the Act by refusing to grant the Union's March 1978 request to review its payroll records. However, as he inadvertently omitted a reference thereto in his remedial Order, we shall make the appropriate modification therein. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied and set out in full below, and hereby orders that the Respondent, Gordon L. Rayner and Frank H. Clark, d/b/a Bay Area Sealers, San Jose, Cali- fornia, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to recognize and bargain collective- ly, upon request, concerning rates of pay, wages, hours, and other terms and conditions of employ- ment with Auto, Marine & Specialty Painters Union Local No. 1176, as the exclusive bargaining representative of its employees in the following ap- propriate unit: All full-time and regular part-time employees of Respondent, excluding office clerical em- ployees, salesmen/estimators, guards, and su- pervisors as defined in the Act. (b) Refusing the Union's request to review Re- spondent's payroll records. (c) Failing or refusing to make the payments to the Union's health, welfare, and pension trust funds as required by the terminated 1975-78 agreement. (d) Unilaterally altering for unit employees any of the terms and conditions of employment which are specified in the 1975-78 contract. (e) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which the Board finds necessary to effectuate the policies of the Act: (a) Recognize and, upon request, bargain with the above-named labor organization as the exclu- sive representative of all the employees in the ap- propriate unit with respect to rates of pay, wages, hours, and other terms and conditions of employ- ment, and, if an understanding is reached, embody such understanding in a signed agreement. (b) Grant the Union's request to review the pay- roll records of Respondent. (c) Make the unit employees whole by paying to them those wages and monetary benefits lost by reason of Respondent's mid-term repudiation of the BAY AREA SEALERS 91 1975-78 agreement. The amount of wages and benefits that Respondent is required to pay shall bear interest thereon to be computed in a manner consistent with Florida Steel Corporation, 231 NLRB 651 (1977), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Respondent's obligation to make these employees whole continues until it negotiates in good faith with the Union to a new agreement or to an impasse. (d) Pay to the appropriate trust funds the contri- butions required by the 1975-78 agreement to the extent that such contributions have not been made or that the employees have not otherwise been made whole for their ensuing medical expenses, and continue such payments until Respondent ne- gotiates in good faith with the Union to an agree- ment or to an impasse. 6 (e) Preserve and, upon 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. (f) Post at its place of basiness in San Jose, Cali- fornia, copies of the attached notice marked "Ap- pendix." 7 Copies of said notice, on forms provided by the Regional Director for Region 32, after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Re- spondent to insure that said notices are not altered, defaced, or covered by any other material. (g) Notify the Regional Director for Region 32, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 6 Because the provisions of employee benefit fund agreements are sari- able and complex. the Board does not provide at the adjudicator) stage of a proceeding for the addition of interest at a fixed rate on unlawfully withheld fund payments. We leave to the compliance stage the question whether Respondent must pay an) additional amounts nto the benefit funds in order to satisfy our "make-whole" remedy. These additional amounts may be determined. depending upon the circumstances of each case, by reference to provisions in the documents governing the funds at issue and, where there are no governing provisions, by evidence of any loss directly attributable to the unlawful withholding action, which might include the loss of return on investment of the portion of funds withheld. additional administrative costs. etc, but not collateral losses See Merryweathcr Optical Compuny, 240 NILRB 1213 (1979) In the event that this Order is enforced b) a Judgment of a United States Court of Appeals. the words in ithe notice reading "Posted Order of the National Labhor Rclations Board" shall read "P'osted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National 1 abor Relations Board " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. WE WILL NOT refuse to recognize or bar- gain collectively, upon request, concerning rates of pay, wages, hours, and other terms and conditions of employment with Auto, Marine & Specialty Painters Union Local No. 1176, as the exclusive bargaining representa- tive of the employees in the following appro- priate unit: All of our full-time and regular part-time employees, excluding office clerical employ- ees, salesmen/estimators, guards, and super- visors as defined in the Act. WE WILL NOT refuse the aforesaid Union's request to review our payroll records. WE WILL NOT fail or refuse to make the payments to the Union's health, welfare, and pension trust funds as required by the termi- nated 1975-78 agreement. WE WILL NOT unilaterally alter for unit em- ployees any of the terms and conditions of em- ployment which are specified in the 1975-78 contract. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them in Section 7 of the Act. WE WILL recognize and, upon request, bar- gain with the Union as the exclusive repre- sentative of all employees in the appropriate bargaining unit, and, if an understanding is reached, embody such understanding in a signed agreement. WE WILL grant the Union's request to review our payroll records. WE WILL make whole bargaining unit em- ployees for any pay or monetary fringe bene- fits lost because of our mid-term repudiation of the 1975-78 agreement plus interest. WE WILL pay to the appropriate health, welfare, and pension trust funds the contribu- tions required by the 1975-78 agreement to the extent that such contributions have not been made or that the employees have not other- BAY AREA EALERS 9' 92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD wise been made whole for their ensuing medi- cal expenses, and continue such payments until we negotiate in good faith with the Union to an agreement or to impasse. GORDON L. RAYNER AND FRANK H. CLARK, D/B/A BAY AREA SEALERS, INC. DECISION STATEMENT OF THE CASE MAURICE M. MILLER, Administrative Law Judge: Upon a charge and amended charge filed on July 26 and December 9, 1976, respectively, both of which were duly served, the General COunsel of the National Labor Relations Board caused a complaint and notice of hear- ing dated December 10 to be issued and served on Gordon L. Rayner and Frank H. Clark, d/b/a Bay Area Sealers, designated as Respondent within this Decision. Therein, Respondent was charged with the commission of unfair labor practices within the meaning of Section 8(a)(5) and (I) of the National Labor Relations Act, as amended. Respondent's answer, duly filed, conceded cer- tain factual allegations within the General Counsel's complaint, but denied the commission of any unfair labor practice. Pursuant to notice, a hearing with respect to this matter was held in San Jose, California, on May 16, 1977, before me. The General Counsel, Complainant Union, and Respondent were represented by counsel. Each party was afforded a full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence with respect to pertinent matters. Since the hearing's close, the General Counsel's representative, Complainant Union's counsel, and Respondent's counsel have filed briefs; these briefs have been duly considered. FINDINGS OF FACT Upon the entire testimonial record, documentary evi- dence received, and my observation of the witnesses, I make the following findings of fact: 1. JURISDICTION Respondent raises no question herein with respect to the General Counsel's jurisdictional claims. Upon the complaint's relevant factual declarations-specifically, those set forth in detail within the second paragraph thereof-which are conceded to be correct, and upon which I rely, I find that Respondent herein was (throughout the period with which this case is con- cerned) and remains, an employer within the meaning of Section 2(2) of the Act, engaged in commerce and busi- ness operations which affect commerce within the mean- ing of Section 2(6) and (7) of the statute. Further, with due regard for presently applicable jurisdictional stand- ards, I find assertion of the Board's jurisdiction in this case warranted and necessary to effectuate statutory ob- jectives. 11. COMPLAINANT UNION Auto, Marine & Specialty Painters Union Local No. 1176, designated as Complainant Union within this Deci- sion, is a labor organization within the meaning of Sec- tion 2(5) of the Act, as amended, which admits certain of Respondent's employees to membership. IlI. UNFAIR LABOR PRACTICES A. Issues This case, despite the superficially simple, straightfor- ward situation from which it derives, presents several subtle questions. The General Counsel's representatives have raised three substantial questions, merely; these may be summarized as follows: 1. Whether Respondent's management negotiated and signed a collective-bargaining contract with Complainant Union herein, pursuant to which Respondent became committed to comply with a subsistent contract, which Complainant Union had previously negotiated with a multiemployer group. 2. Whether, when Complainant Union subsequently re- opened and renegotiated a modified Association contract, for a further 3-year term, Respondent remained bound thereby. 3. Whether Respondent's management withdrew rec- ognition from Complainant Union as the collective-bar- gaining representative of that firm's employees; whether Respondent's management unilaterally modified certain employee benefit programs defined within the collective- bargaining contract, pursuant to which their firm re- mained bound; and, whether Respondent subsequently failed or refused to arbitrate Complainant Union's conse- quent grievances, consistent with contractual require- ments. With respect to these several questions, the General Counsel's representatives seek affirmative determinations. Respondent's counsel, however, notes general denials. Further, Respondent contends that, following its conced- ed commitment to be bound by Complainant's subsistent Association contract, Complainant Union substantially "abandoned" or "repudiated" their contractual consen- sus, through persistent failures to police or seek Re- spondent's compliance therewith; and that, when Com- plainant Union's representative subsequently solicited Re- spondent's compliance with their renewed Association contract, the partnership was, therefore, neither commit- ted to comply with Complainant Union's purported con- tract, nor to arbitrate that labor organization's contrac- tual breach claims. Finally, Respondent notes that Com- plainant Union had-subsequent to its charge herein, but before this case was heard-filed suit in United States district court to compel Respondent's arbitration with re- spect to several claimed contractual grievances; that a district court judgment had been rendered, with respect to Complainant Union's suit, bottomed upon a determina- tion that petitioner labor organization had "repudiated and breached" the collective-bargaining contract upon which it relied, through a course of conduct which "ef- fectively abandoned" any contract with Respondent herein; and that, consistent with this determination, Corn- BAY AREA SEALERS 93 plainant Union's petition to compel arbitration had been dismissed. Respondent contends that this district court decision, which found "no collective bargaining agree- ment in effect" between Respondent and Complainant Union herein, should be considered dispositive of the General Counsel's present case, consistent with res judi- cata principles. B. Facts 1. Respondent's business a. History Respondent partnership commenced business oper- ations during August 1974; the firm had been formed to perform asphalt seal coating and surface repair work. More particularly, the firm lays down slurry seal com- pounds-composed of oil, sand, and various other mate- rials-with which streets, airfields, highways, parking lots, and various other surfaces are coated, to prevent or repair damage. (Gordon L. Rayner, initially Respondent partnership's general manager, had previously had no in- dustry experience; his partner Frank H. Clark had, how- ever, superintended a Sacramento-based slurry seal firm. In that capacity, Clark had previously dealt with Com- plainant Union's business representative, within a 2-year period.) During February 1975, Respondent completed its first "substantial" project, "or Denver Meat Company, San Jose, California. Sometime thereafter, shortly before the situation with which this case is concerned devel- oped, Respondent was awarded a subcontract to seal coat various concrete floors within Dow Chemical Com- pany's Martinez, California, plant. Respondent partner- ship's subsequent contract projects, throughout the period with which this case is concerned, will be noted-further-wherever relevant, within this Decision. The record herein, though not detailed, warrants a de- termination that- subsequent to various developments detailed within this Decision, and shortly before the present case was heard-Respondent partnership was dis- solved. Since April 1, 1977, so Gordon Rayner testified, Respondent's business has been incorporated. So far as the record shows, however, this legal transformation nei- ther reflected, nor derived from, ownership changes. Re- spondent proffers no contention within its pleadings, de- fensive presentation, or closing brief that its changed legal status should affect the present case's disposition. b. Seasonal pattern Substantially, Respondent's yearly business oper- ations-like those pursued by various other firms within the slurry seal industry generally-follow a seasonal pat- tern. Work outdoors, whether performed for private business firms or government bodies, can be performed only when surfaces, scheduled for coating, have been dry. In California, therefore, slurry seal work is normally performed between June and November; during the 3 winter months thereafter, work outdoors will normally be nonexistent or severely limited. Some larger firms, so Complainant Union's business representative credibly testified, may nevertheless pro- vide wintertime "shop work" for a few workers. The record, herein, suggests that Respondent partnership, fol- lowing a November 1975 shutdown, did retain some em- ployees (their number not specified) who performed equipment repair work. Normally, most contract projects for slurry seal work are generated by cities, counties, school districts, and various other public bodies. Their project awards will routinely be granted pursuant to bid procedures. In most cases, during each year's first quarter-January, Febru- ary, and March-these governmental entities plan their yearly projects. Thereafter, within a 3-month period- between March and May normally-contractor's bids are solicited. Then, within a 15-day period following some designated bid closing date, contract awards are publi- cized. The successful contractors have a 10-day grace period within which to post their performance bonds. Then, notices to proceed issue; therein, some overall period for the particular project's completion will nor- mally be specified. Before May 1975 Respondent partnership had received no contract awards, calling for performance on publicly funded projects. With respect to whether some partner- ship bids concerned with such projects had previously been filed, the present record reflects Rayner's specula- tion, that "probably a couple" bids had been prepared and submitted; no further determination, with respect thereto, would be warranted. 2. Complainant Union's contract with Respondent a. Complainant Union's bid for recognition Early in May 1975, Leslie Moore, Complainant Union's business representative, was notified-by Paint- ers Union Local 741's representative-that Respondent's crew had been discovered on Dow Chemical's Martinez plant project; that he, Business Representative Davidson, had determined Respondent's workers were nonunion; that complaints had therefore been registered with Dow Chemical's general contractor; and that Respondent's work had consequently been halted. Business Representative Moore's testimony, with regard to Respondent's purported cessation of work, clearly derives from hearsay. With respect thereto, Rayner credibly testified that no complete "shutdown" had developed; Respondent's partner declared that Dow Chemical's general contractor had merely requested his firm to suspend regular shift work temporarily, and to complete its contract project during night hours. For present purposes, the presumptive record conflict be- tween Moore's testimony and Rayner's proffered recol- lection-with regard to some purported work stop- page-need not be resolved. Shortly thereafter, Frank Clark, Respondent's partner, telephoned Complainant Union's business representative. With respect to their conversation, Moore testified-cre- dibly and without contradiction-that Clark declared his firm would negotiate a collective-bargaining contract, if Complainant Union would "release" their Dow Chemi- cal project, and thus permit its completion. Moore con- curred; Respondent's project was subsequently complet- ed. BAY AREA SEALERS 93 94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD With respect to subsequent developments, Complain- ant Union's business representative, testifying credibly and without contradiction, declared that Respondent partnership's Dow Chemical crew members, following their project's completion, sought union representation; that he (Moore) thereupon met with four of Respond- ent's five-member crew, who were then "laid off' or "not working" between company projects; that he re- ceived four signed union designation cards from Re- spondent's workers; and that he subsequently solicited a conference with Respondent's partners-set for Wednes- day, May 14, 1975, specifically-during which negotia- tions looking toward a collective-bargaining contract might be concluded. b. Contract negotiations On May 14, Moore, together with a Painters Union business representative, visited Respondent's headquar- ters. There, he gave Clark and Rayner copies of Com- plainant Union's previously negotiated 1973-1975 master contract with Parking and Highway Improvement Con- tractors Association, Inc. A general discussion followed. Complainant Union's business representative testified- credibly and without contradiction-that when he visited Respondent's office he likewise had in his possession four designation cards, signed by Respondent's workers. However, no questions were raised-so Moore de- clared-with regard to such cards; Respondent's partners never challenged Complainant Union's majority repre- sentation claim. Moore's testimony warrants a determina- tion-which I make-that Complainant Union's signed designation cards were therefore neither mentioned nor displayed. Though Complainant Union's business representative and Respondent's partner Gordon Rayner have both tes- tified herein that Frank Clark signed Complainant Union's proffered contract before their conference con- cluded, their presently proffered recollections reflect sev- eral sharp conflicts regarding the discussion which pre- ceded Clark's signature. These conflicts, since they sig- nificantly affect both the General Counsel's case and Re- spondent's defense, will require detailed consideration. (1) The General Counsel's presentation The contract which Business Representative Moore presented for Respondent partnership's consideration was a State of California working agreement, previously ne- gotiated and signed-with an October 1, 1973, effective date-between Parking and Highway Improvement Con- tractors Association, Inc., on behalf of various member employers, and Complainant Union, Automotive Marine Production Finishers, Equipment Maintenance and Public Service Local No. 1798, and various Painters Union locals which might become contractually bound parties thereafter. For present purposes, the designated contract's substantive provisions need not be reviewed herein. The document's duration provision, article XVI, should be noted, however; that provision read: 1. This Agreement shall remain in full force and in effect from October , 1973, to October 1, 1975, and shall be continued from year to year thereafter unless either party to this Agreement shall, during the month of June preceding any anniversary date commencing with 1975, give to the other party writ- ten notice of the intention to modify or terminate this Agreement. If such notice to modify, amend or terminate this Agreement is served by either party in accordance with this provision, negotiations shall commence within fifteen (15) days after said notice has been received. Any change in wages or condi- tions arrived at through negotiations, shall become effective October 1, of the appropriate year, regard- less of the date of (sic) this Agreement may be signed. 2. Notwithstanding the above provisions, and during the term of this Agreement, including any automatic renewals or extensions thereof, the Em- ployer agrees that any contract amendments or condi- tions or wages or hours negotiated with the industry shall become applicable to and a part of this Agree- ment as of the same effective date. [Emphasis sup- plied.] The designated contract's substantive terms were dis- cussed for more than 1-1/2 hours. Throughout this period, so Moore recalled, Rayner retained a copy of Complainant Union's Association contract, within which he frequently underlined portions. Several matters were considered in detail. Among others, Moore recalled questions, raised with respect to whether Complainant Union would require one of Re- spondent's partners to become a member, should both be working-simultaneously-on some single project; since Clark and Rayner represented, in this connection, that they did not expect to run jobs wherein both partners would be working on the same project simultaneously, Complainant Union's business representative signified his organization's willingness to waive partner membership requirements. Some references were made to Respondent possibly becoming an Association member. According to Moore, Respondent's partner, Frank Clark, raised questions with regard to his firm's future contract compliance; Complainant Union was requested to waive Respondent's full compliance temporarily be- cause of business conditions. Regarding their discussions in this connection, Complainant Union's business repre- sentative testified: Yes. There was some discussion to the effect that they had a few little jobs left to complete, and then there wouldn't be any real work starting until the contracts were let the following spring for work to be done in the summer of 1976 .... Q. Did the partners make either-Did either of the partners make a request of you based upon this? A. Yes. They requested that we back away from full enforcement of the contract until they complet- ed what work they had under contract and to give them a little time, a little running room to get set for the work period during the summer of '76, which we agreed to do. Q. You agreed not to enforce the contract at that time? BAY AREA SEALERS A. Not to push it. Q. Was there any discussion at this meeting as to how long you would hold enforcement in abey- ance? A. Only to the extent until they were able to bid some work that would be of sufficient size to re- quire a number of employees, and give them a chance to get into business .... Their position was that they were just getting started into the busi- ness, and that there were no jobs coming up in the near future, but getting more or less set to really go into business in the year of 1976, that they would start their bidding when the contracts started coming out. When they got a job of sufficient size to make it meaningful, we would put the contract into effect. Further, Complainant Union's business representative tes- tified: First, that he "understood" Respondent partner- ship then had merely a few small contracts, which would be completed before June 1: second, that he was told Re- spondent partnership currently had no pending bids which had previously been submitted; third, that no sig- nificant contract awards would be made before the forth- coming year. While a witness, Moore claimed-finally- that he had derived a clear "impression" from their talks that Clark would telephone him, when Respondent sub- sequently received contract a:wards performable during the forthcoming season. With such a consensus reached, Moore testified, Clark signed two copies of Complainant Union's current Asso- ciation contract without change. Retaining one contract copy, Respondent's partner returned the second. Rayner, so Moore recalled, did request another legible contract copy or copies, for partnership use: Complainant Union's business representative declared while a witness that such copies were dispatched to Respondent partnership, by mail, within a day or two thereafter. (2) Rayner's divergent recollections While a witness, Respondent's partner Gordon Rayner proffered testimony, with regard to this May 14 confer- ence, which differed from Moore's in several significant respects. He conceded that Frank Clark had telephoned Complainant Union's business representative, to suggest contract discussions; further, he conceded that Clark had then been "familiar" with Complainant Union's current contract. (Clark did not testify herein. When this case was heard, he was working in Concord, California. No continuance for the purpose of taking his testimony at some later date was requested.) According to Rayner, no questions were raised-when their May 14 conference began-with respect to Complainant Union's designation cards, signed by Respondent's workmen; no person pres- ent mentioned a possible Board representation petition. Respondent's partner testified, however, that Com- plainant Union's business representative declared (when their conference began) that "everything" done would be subject to an employee election. According to Rayner. Moore declared that Respondent's workmen would have to be "informed" with respect to their conference's con- summation, and would have to declare their readiness to "go along" therewith. Complainant Union's business rep- resentative (so Respondent's partner recalled) declared or suggested that he would return within a few days, to meet with Respondent's workers. When requested to define his recollections, specifically regarding a projected election's purpose, Rayner later testified initiailly that he understood his firm's workers would be called upon to "verify" their collective-bargaining contract: that a posi- tive vote, on their part, would be required before such a contract could become effective. Subsequently. howNever. Respondent's partner declared his "understanding" that his firm's employees would vote "whether or not to join the union" or "whether or not this [Complainant Union] is the union of their choice." According to Rayner. Moore never returned, no employee vote was ever con- ducted. Following Moore's preliminary comment, so Respond- ent's partner recalled, Complainant Union's current As- sociation contract was reviewed. According to Rasner, Moore provided two contract copies-one clear. legible copy which Clark finally signed as Respondent's repre- sentative, together with a defective "illegible" copy. (Re- spondent's partner described this purported second cops. Its first two pages, he recalled, were clear. Its remaining pages, within a purported 22-page document. ere "triple" printed, with several pages missing.) The record reflects Rayner's less-than-certain recollection that Com- plainant Union's defective contract copy was either taken away or "disposed of' during their conference; he declared that the copy was "not there" when Complain- ant Union's representative left. Respondent's partner re- ported that Moore had been requested, during their con- ference, to provide Respondent with a legible cop of their signed agreement, and that Moore had promised such a copy. When queried further, however, Rayner conceded that he had reviewed a contract copy during their May 14 discussion-and that he had "marked up" whatever copy he reviewed; he could not "remember" which copy that was. When questioned by the General Counsel's representa- tive with respect to whether Respondent's future busi- ness prospects had been discussed, Rayner provided qualified responses. His testimony with respect thereto, summarized in relevant part, reads as follows: Q. [By Mr. Rhoads] During your conversation with Mr. Moore in May. were there any discussions at that time about our prospects for the future. any bids outstanding, or what jobs you thought you were going to get, anything like that'? A. There was discussion of the jobs that we had at the time. Which, as I say, they didn't amount to very much. Q. What was the discussion? A. That those should be included in the contract. [Note: This may possibly be a mistranscription. The record, considered in totality, suggests that Rayner may have testified, or meant to testify, that a con- sensus was reached for the exc luioUn of Respond- ent's small current project backlog from contract coverage.] 91; DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. How much were those-what was the value of those jobs at that time? A. I think the largest was about $800 or $900 and there was probably three or four of those. They were just a handful. Q. Were there any prospects or any discussion about what your jobs were going to be in the future, what you thought might be coming up, what you might succeed in? A. Well, we knew what we would be-we had purchased a slurry seal machine, and it was in the process of being made ready so that we could bid these other jobs. Q. My question is: Was any of this discussed at the meeting with Mr. Moore? A. I believe it was. Q. Well, do you remember anything that was said, or are you just- A. [Interrupting] No. The conversation was such that it went through several fields: what other con- tractors were doing, what we hoped to do, what other people were in the field .... Well, I wouldn't give to you word for word. I'm just ex- plaining what was talked about. Q. Well, I'm asking you from your recollection, what do you recall was said about your business prospects in the future months of 1975. Do you re- member any conversatiol at all? A. I don't remember any particulars. When questioned previously by Respondent's counsel, Rayner had recalled a discussion during which Business Representative Moore had been told Respondent would require merely "a couple of weeks" to complete several "small" contracts previously received, for which partner- ship bids had been prepared without considering union terms. Complainant Union's negotiator-so Rayner re- called-had, with Clark's request in mind, declared his willingness to consider June 1, 1975, their contract's ef- fective date. Upon this understanding, Clark had signed Complain- ant Union's proffered Association contract, without change. The document in question, proffered for the record, reflects Clark's signature, in Respondent's behalf; however, it bears no entry reflective of his signature date. Nor does it contain a written notation, regarding its effective date, so far as Respondent partnership was con- cerned. (3) Conclusions Since the record herein reflects several testimonial conflicts, particularly with regard to matters discussed during the May 14 contract negotiations now under con- sideration, some credibility determinations with respect thereto will be required. In that connection, certain pre- liminary comments should be made. My determinations set forth herein-particularly with regard to Moore's and Rayner's respective testimonial re- citals-derive primarily from my observations of their witness-chair demeanor. Cf. Maremont Corporation, 229 NLRB 746 (1977). I have, however, further considered the complete record. In that connection, I have--with respect to both witnesses-considered whether their tes- timony reflected "internal" consistency, whether their testimony was susceptible to possible "external" verifica- tion, and whether it could be considered consistent with the natural logic of probability. Further, I have proceed- ed with due regard for relevant judicial pronouncements defining a trier of fact's role. See, particularly, Universal Camera Corporation v. N.L.R.B., 340 U.S. 474, 496 (1951); N.L.R.B. v. Walton Manufacturing Company & Loganville Pants Co., 369 U.S. 404, 408 (1962); and N.L.R.B. v. J. P. Stevens & Co., 464 F.2d 1326, 1328 (2d Cir. 1972); compare, further, Penasquitos Village, Inc. v. N.L.R.B., 565 F.2d 1074 (9th Cir. 1977), in this connec- tion. Mindful of these pronouncements, I have concluded that Rayner's testimony-so far as his proffered recollec- tions differ from those of Complainant Union's business representative-merits no credence. My conclusions in this regard rest upon several considerations. First: With regard to Rayner's contention that Moore specifically declared their negotiated contract's effectu- ation would be contingent upon some sort of workers' vote, I note Moore's forthrightly proffered, categorical denial, which I credit, that such a commitment was made. Likewise, I note his credible denial, proffered with Business Representative Downey's corroboration, that any promise to return-for the purpose of discussing Complainant Union's contract with Respondent's crew members-was volunteered. Concededly, Respondent's crew members were "not working" when Clark signed Complainant Union's con- tract; no showing has been made herein that they could have been gathered together, conveniently, within Re- spondent's San Jose facility, for consultations with Com- plainant Union's business representative. In this connection, I futher note that Rayner's signed prehearing statement, given at a time much closer to the conference now under consideration, contains no refer- ence whatsoever to Moore's purported "election" com- mitment. Finally, I note the lack of certainty displayed by Respondent's partner regarding the question which his firm's workmen would purportedly have been re- quested to decide. When queried by Respondent's coun- sel, Rayner substantially testified that he "understood" there would be a contract verification or ratification vote; when questioned further by the General Counsel's representative, he testified that he "understood" his firm's crew members would be requested to confirm Complainant Union's designation as their collective-bar- gaining representative. Such less-than-consistent testimo- ny clearly derived from Rayner's rationalized supposi- tions carries no persuasion. Second: With respect to Rayner's reiterated claims that Business Representative Moore provided Respondent partnership with a defective "illegible" copy of Com- plainant Union's proposed contract, I note-again-the business representative's straightforward denial that such a poor contract copy had been produced. Further, I note record testimony-proffered by Business Representative Moore, Rayner himself, and Charles McDaniel, Re- spondent's contract estimator-clearly sufficient to war- rant a determination that Rayner had, during their May 96 BAY AREA SEALERS 14 discussions, both "marked up" and frequently "under- lined" textual material within a copy of Complainant Union's proposed contract, then in his possession. A pho- tocopy of Complainant Union's current Association con- tract, which Rayner's partner, Frank Clark, finally signed-proffered for the record and received without challenge or contradiction-contains no underlined por- tions; neither does it contain marginal notations. I consid- er it highly improbable that Rayner would have spent his time "marking up" or "underlining" some triple-printed "illegible" contract copy. Upon this record, I conclude- despite Rayner's contrary testimony-that Respondent's partner had been provided with a clean, legible contract copy. Third: With respect to Rayner's proffered recollection that Business Representative Moore had committed Complainant Union to defer their negotiated contract's effective date to June 1, 1975, I note Moore's circum- stantially detailed and credibly consistent testimony that-pursuant to Clark's request-their contract's effec- tuation had been consensually deferred to some indefinite future date, following Respondent's presumptive 1976 procurement of contract awards sufficiently sizable to re- quire substantial crews, and thereby render complete compliance with the contract meaningful. In this connec- tion I further note Rayner's testimony: That, when his partner signed Complainant Union's contract, their firm's project backlog then compassed merely "three or four" small jobs; and that a newly purchased slurry seal ma- chine, which would make it possible for Respondent to bid larger projects, had not yet been readied. Further, I note Rayner's failure to recall specifically whether Re- spondent partnership had any previously submitted bids still outstanding which might produce further contracts. The record warrants a determination that various Cali- fornia cities, counties, and school districts, plus other governmental bodies, normally solicit bids on previously owned projects during March, April, and May, within any given calendar year. Clearly, therefore, Complainant Union's business representative-when notified on May that Respondent's partnership had no previously pre- pared bids outstanding for possible future publicly fi- nanced projects-could reasonably have presumed Re- spondent would procure no sizable governmental project contracts within the remaining months of 1975. Mindful of Clark's and Rayner's May 14 concessions, I consider it highly "probable" that both partners would have solicited Complainant Union's forbearance-with respect to their contract compliance-for a relatively lengthy, indefinite period, pending their prospective de- velopment of some significant business volume. Moore's proffered recollection that they did make such a request, and that he conceded Complainant Union's willingness to defer their contract's complete effectuation, merits cre- dence. c. Subsequent developments (I) Complainant Union's claimed course of conduct With Respondent's contractual commitment memorial- ized, through Clark's signature, Business Representative Moore sent the Parking and Highway Improvement Contractors Association Clark's signed copy. The Asso- ciation's executive director was notified, however, that Respondent's contract would "become effective" June 1, 1975: Moore reported that there would be approximately five or six steady workmen. Likewise, Complainant Union's business representative sent the International Brotherhood of Painters and Allied Trades Union and Industry National Pension Fund copies of Respondent's signed contract, declaration of trust, and participation agreement, which-so Moore reported-would "become effective" on June 1, thereafter. Moore requested the fund's administrator to "set up the necessary procedures" with Respondent partnership for pension participation. This meant, so Complainant Union's business repre- sentative testified, that Fund Administrator Percy, within the fund's Washington, D.C., headquarters, was being re- quested to send Respondent report forms for future use, within which to report any hours worked-monthly-by partnership employees. While a witness, Moore declared that such written notices directed to Pension Fund per- sonnel were required with respect to contract signatories. but that he did not believe Respondent would immedi- ately have workers for whom contributions would be re- quired. Complainant Union's business representative could not testify, from personal knowledge, with respect to wheth- er Pension Fund representatives ever sent Respondent any report forms thereafter, or whether they communi- cated otherwise, with Respondent partnership. And Moore conceded that-throughout 1975's remaining months-he never revisited Respondent's headquarters; that he personally received no communication from Re- spondent's management representatives; and that no rep- resentative of Complainant Union received any reports from Contractors Association representatives, or member firms, regarding Respondent's presumptive noncompli- ance with contractual commitments. More particularly, Moore testified that, during the months in question, he personally received no telephone calls from Respondent partnership regarding any ques- tions which they might have had; that no partnership employees communicated with him, relative to contract grievances; and that no member of Complainant Union's clerical staff ever notified him that Clark or Rayner had telephoned. Moore did recall two telephone conversations with a union member, one McCabe, then in Respondent's employ following a prior priod of service with a differ- ent, contractually covered firm. Sometime during Octo- ber or November 1975, Moore testified, McCabe had called to determine whether he could qualify for benefits under Complainant Union's health and welfare fund. Moore had checked; during his return telephone call, McCabe had been notified that he had exhausted his "banked" hours with respect to which fund contributions had been forwarded by his previous employer, thereby exhausting his health and welfare fund coverage. Ac- cording to Moore, McCabe had never raised a question with respect to whether he had accumulated "banked" hours and consequent benefit rights under Respondent's recently signed contract: Complainant Union's business 97 98 DI)ICISIONS OF NATIONAL LABOR RELATIONS BOARD[ representative concededly had never checked that possi- bility himself-so he testified-because he "believed" that McCabe had joined Respondent partnership's staff in some managerial capacity. Business Representative Moore, when queried further with respect to whether the Automotive Industry's Wel- fare fund-which would, thereafter, be receiving Re- spondent partnership's health and welfare contribu- tions-had ever been requested to send the partnership monthly report forms, declared that he had never noti- fied the fund's administrator with regard to Respondent's adherence to the Contractors Association contract; and that he had never requested welfare fund personnel to send Respondent monthly report forms. According to Moore, such a request would merely have required a telephone call, directed to the designated fund's Oakland, California, headquarters; he had been planning a notice to the Automotive Industry's welfare fund, so he claimed, sometime in May or June 1976, when Com- plainant Union would presumably have referred work- men to Respondent partnership for that calendar year's busy season. In this connection, Complainant Union's business rep- resentative testified-without challenge or contradic- tion-that consistently with their signed contract, both Clark and Rayner were privileged to provide for their personal coverage under Complainant Union's contrac- tual health and welfare progkams; that their privilege in this connection had been discussed during their May 14 conference, previously noted; that both men had de- clared they would consider qualifying for health and welfare coverage; but that he (Business Representative Moore) had never heard from them, pro or con, with regard to their decision. (2) Respondent's claimed course of conduct While a witness, Respondent's partner Gordon Rayner testified, consistent with Business Representative Moore's proffered recollection, that, following their May 14, 1975, contract signing, neither Clark nor he received pension or welfare fund notices specifying their contribu- tion rates for covered workers, or designating where or when contribution remittances should be sent. During August 1975, so Rayner recalled, some representative of the Parking Area Industry Education Fund-which Con- tractors Association solely administered-had telephoned to ask why Respondent's contractually mandated contri- butions for that fund had not been remitted for previous months. Respondent's partner had purportedly replied- so his testimony shows-that remittances had not been forwarded because Respondent had received no legible contract copy, and therefore did not know the designat- ed fund's contribution rate. According to Rayner, the Education Fund's spokesman had then declared that he would telephone Business Representative Moore and have him "straighten out" their situation. Respondent's partner declared that Business Representative Moore never telephoned to discuss the partnership's Education Fund contribution problem; further, he testified that the designated fund's spokesman never called back. For him- self, Rayner concededly never pursued the matter. Further, Rayner testified extensively with regard to several telephone calls which he, together with Respond- ent's secretary, purportedly made while seeking to com- municate with Complainant Union's business representa- tive. Respondent's partner testified that he personally tele- phoned three times; that he spoke with a union secretari- al worker on each occasion; and that, during his first two telephone contacts, he merely left messages requesting Complainant Union's business representative to return his calls. Further, Rayner reported a third telephone call, sometime during the latter part of August 1975, during which he had purportedly told Complainant Union's sec- retarial clerk his reasons for calling. According to Rayner, he had declared: First, that Respondent could not complete forms which the Parking Area Industry Education Fund had concededly forwarded sometime previously, since those forms contained no information regarding the designated fund's contractually mandated contribution rate, and since Business Representative Moore, despite his purported promise, had allegedly never supplied Respondent with a legible contract copy; second, that Respondent could not provide partnership employees with specific information regarding their con- tractually defined health and welfare benefit coverage, since the firm had never been supplied with Association contract copies, descriptive materials wherein the medi- cal benefits provided for covered workers were de- scribed, or statements which reflected the Automotive Industry's welfare fund eligibility which Respondent's purportedly covered workmen enjoyed. While a witness, Rayner claimed that-following his telephoned description of Respondent's problems-he had requested copies of Complainant Union's Association contract, together with relevant "medical plan" informa- tion. Respondent's partner testified that he was merely provided with a booklet thereafter wherein "medical plan" benefits, which contractually covered workmen might claim, were described. According to Rayner, Complainant Union's headquarters secretary never sent him a copy of his firm's previously signed contract. When queried further, however, Respondent's partner conceded that no partnership representative had ever fol- lowed his telephoned request with a followup written re- quest for contract copies directed to Complainant Union's business representative or headquarters person- nel. Before this case was heard, Rayner had described within a signed statement a subsequent August or Sep- tember 1975 telephone conversation, during which he (Rayner) had purportedly spoken with Complainant Union's business representative; Respondent's partner had claimed, within his signed statement, that Moore had during their purported conversation set a date when he would visit Respondent's headquarters to discuss health and welfare coverage problems, but that his (Moore's) visit had never been consummated. However, when queried further, Rayner conceded that his partner, Frank Clark, had telephoned Complainant Union's business rep- resentative; that he (Rayner) had not heard the business representative's side of their conversation; and that his signed statement's reference to Moore's purported "visit" HAY AREA SEALERS 99 promise reflected a mere "hearsay" recapitulation of Clark's subsequent report regarding their supposed con- versation. With respect to Employee McCabe's supposed medical coverage problems-noted tangentially in Business Rep- resentative Moore's testimony-Rayner purportedly re- called that, sometime during August 1975, McCabe had reported Complainant Union's failure or refusal to con- firm his rights with respect to current medical benefit coverage; and that their crew member's report had sub- sequently persuaded Respondent's partners to help McCabe satisfy certain current medical expenses, and later to procure unilaterally some "medical plan" cover- age for their firm's workers. Respondent's partner fur- ther declared that his firm's workers had never been granted contractually mandated sick leave or vacation privileges. Bay Area Sealers, so Rayner claimed, had fi- nally formulated its very own sick leave and vacation programs. (3) Summary Rayner's testimony, with regard to Respondent part- nership's purported contacts with Complainant Union's business representative following their May 14 contract's execution, when compared and contrasted with Business Representative Moore's proffered recollections, does reveal some minor conflict. However, their testimonial differences may be largely reconciled. My comments with respect to their possible reconciliation will be subse- quently detailed within this Decision. (4) Respondent's postcontract business Previously within this Decision, references have been made to Rayner's testimony that before his partner, Frank Clark, signed Complainant Union's proffered con- tract they had discussed the partnership's prospect with regard to work on further 1975 contract projects; Re- spondent's partner, so his proffered recollections show, substantially conceded that their firm's future contract prospects had not been specifically canvassed. Rayner and Clark had mentioned their "few . . . small" current projects, presumably scheduled for completion within 2 weeks. In fact, Respondent partnership was contemporaneous- ly submitting bids with respect to various publicly funded projects within its business field. During May 1975, several bids ("probably a couple") were or had been filed; during the following month "probably" six bids were submitted. Respondent partnership submitted 6 more bids in July, and 15 or 20 during August, plus 10 more within the month which followed. Rayner specu- lated that "probably" one-third of his firm's bids had been successful, resulting in various June, July, and August contract awards. Work on these publicly funded projects-so Respondent's partner declared-had kept his firm continuously busy between June I and Novem- ber 1975, when Respondent partnership had concededly suspended contract performance-turning, instead, to re- quired equipment repairs. (Rayner's testimony further warrants a determination that within the 6-month period noted Respondent had concurrently completed various "private" projects, when not preoccupied with publicly financed contracts.) Within the period noted, Respondent partnership's various crews had worked on contracts with a cumulative gross value of several hundred thou- sand dollars. While a witness, Rayner provided two speculative "estimates" regarding their value. At one point, he declared that Respondent partnership had com- pleted $400,000 worth of contract projects; subsequently, he claimed that Respondent's workmen had completed contract projects worth $560,000, cumulatively. More particularly, Rayner cited two publicly funded (projects completed during July and August 1975 for the city of Newark, California, and Napa County specifical- ly) which had each generated $18,000 in gross contract remuneration for Respondent partnership. None of his firm's further 1975 projects had been concerned with contracts worth more than $15,000, separately consid- ered. While a witness, Rayner declared. credibly and with- out contradiction, that within Respondent's field some 70 percent of gross contract remuneration would be spent for materials; that 22 percent would be required to satis- fy any given contractor's labor costs plus "overhead" ex- penses; and that 8 percent would, normally, constitute net profits. (With respect to his testimonial speculation that Respondent's various June-November 1975 contract projects had produced a $400,000 gross, Respondent's partner declared that $32,000 would therefore have con- stituted Respondent partnership's profit, for the period designated.) Throughout this period, Respondent's pro- jects had been completed with crew complements which varied in size. According to Rayner, the firm's normal "average" crews had compassed 7 workers; 10 workmen had been required for the partnership's largest crew. Considered in totality, the present record warrants a determination, that Respondent's partners never notified Complainant Union's business representative within the 6-month period noted-that subsequent to May 14 their firm had received late spring and summer contract awards sufficient in size and number to permit a continu- ation of normal, full-time business operations throughout the calendar year's conventional busy season. 3. Complainant Union's Association contract renewal Meanwhile, sometime in June 1975 presumably, Com- plainant Union had dispatched form letters, directed to "all [signatory] contractors" privy to that organization's master 1973-75 contract; therein, such signatory contrac- tors were notified of Complainant Union's desire to "open the contract" for negotiations. In relevant part, Complainant Union's letter read as follows: In accordance with Article XVII [sic] Duration of Agreement, of the Collective Bargaining Agree- ment headed: HAY AREA SEALERS 99 100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WORKING AGREEMENT EFFECTIVE OCTOBER 1, 1973 by and between PARKING AND HIGHWAY IMPROVEMENT CONTRACTORS ASSOCIATION, INC. and AUTO, MARINE AND SPECIALTY PAINTERS UNION NO. 1176 MISCELLANEOUS MAINTENANCE PAINTERS UNION LOCAL NO. 1873 and SUCH OTHER LOCAL UNIONS OF THE BROTHERHOOD OF PAINTERS THROUGH NEGOTIATIONS AND HAVING JURISDICTION GRANTED BY THE BROTHERHOOD OF PAINTERS BECOMING PARTY TO THIS AGREEMENT. and signed by Gerson Ribnick for the Association and Leslie K. Moore for the Unions and individual employers who have become signatory individually [sic]. Likewise be advised that this opening does not, nor can it be interpreted as a termination of the agreement [sic]. Complainant Union further suggested that a July meet- ing should be held "with the Association and its mem- bers and any or all of the nonmembers of the Associ- ation" contractually bound, during which proposals for contractual amendments could be reciprocally submitted. Negotiations thereafter, during August and September, were suggested so that a contractual consensus "prior to October 1, 1975" might be reached. The designated letter's reference to article XVII, "Du- ration of Agreement," reflected a typographical error. Clearly, article XVI was meant. Readers of this Deci- sion, however, should further note that the letter's first purported "sentence" cannot be parsed; it consists of nothing but a lengthy, descriptive prepositional clause, with no proper subject, verb, or grammatical object stated. While a witness, Business Representative Moore declared, however, that Complainant Union had intended proper notice to signatory contractors that their contract should be considered "open for negotiations" concerned with modifications merely. And the record, considered in totality, suggests that Complainant Union's letter was re- alistically thus construed. A copy of Complainant Union's form letter, bearing a typewritten July 15, 1975, date, was dispatched to Re- spondent partnership; the record, herein, reflects a stipu- lation by Respondent's counsel that Frank Clark re- ceived the letter on July 21, thereafter. Article XVI, within the Association's multifirm 1973- 1975 contract, had provided for that contract's continu- ance "from year to year thereafter" unless "either party" privy thereto provided the other party with written notice "during the month of June preceding any anniversa- ry date commencing with 1975" regarding its desire to modify or terminate their contract. Changes in wages or conditions thereafter were to become effective October 1, within the calendar year during which consensus had been reached. As previously noted, however, article XVI contained a further provision, which read as follows: Notwithstanding the above provisions, and during the term of this agreement, including any automatic renewals or extensions thereof, the Employer agrees that any contract amendments or conditions or wages or hours negotiated with the Industry shall become applicable to and a part of this Agreement as of the same effective date. With this contractual language in mind, readers of this Decision should note that, before Respondent's partner Frank Clark received Complainant Union's July 15 letter, no partnership representative had given Complainant Union notice "during the month of June preceding" their contract's designated 1975 anniversary date, specifying Respondent partnership's desire for their contract's modi- fication, amendment, or termination. Further, so far as the record shows, Complainant Union received no verbal or written response, from any partnership representative, regarding its July 15 notification letter. Sometime thereafter, following negotiations which have not been detailed for the present record, Complain- ant Union reached a contractual consensus with Parking and Highway Improvement Contractors Association, Inc., functioning on behalf of its member-employer affili- ates. Their consensus was memorialized within a com- plete "Working Agreement" with an October 1, 1975, ef- fective date, negotiated for a 3-year term. So far as the record shows, Respondent partnership-through a non- member signatory of the Contractors Association's prior contract, privileged to submit proposals for contract modification-never participated in those negotiations which preceded the new Association contract's execu- tion; I so find. 4. Complainant Union's request for contract compliance a. July 1976 developments Early in July 1976, Complainant Union's business rep- resentative learned, from the Sacramento Sierra Building and Construction Trade Council's secretary, that Sacra- mento County had, pursuant to Respondent partnership's successful bid, granted the firm a substantial county "road repair" contract. Within the 2-week period which followed, Moore telephoned Respondent several times. He could not, however, reach Frank Clark; Respondent's office secretary reported that both Clark and Rayner were working on partnership projects, and were current- ly unavailable. According to Moore, Respondent's secre- tary was told, during one of their conversations, that: . . .with the big job going on in Sacramento, it was time that we should get our contract into oper- ation, and that I had to sit down with Frank Clark to get the matter going .... In reply, Respondent partnership's secretary, so Moore's credible, uncontradicted testimony shows, commented that Respondent was "just a little" company; finally, she BAY AREA SEALERS 101 characterized Business Representative Moore's several telephone calls as harassment. b. Complainant Union's subsequent communications with Respondent On Monday, July 19, Complainant Union's counsel, pursuant to Business Representative Moore's request, sent Respondent a letter protesting the position, pre- sumptively taken by the firm, that it could not properly be considered bound pursuant to currently effective col- lective-bargaining commitments. Counsel's letter, in rele- vant part, read as follows: You have apparently taken the position that you are not presently bound to the current collective-bar- gaining agreement, but that position is in error, be- cause you failed to terminate the previous agree- ment, and it was therefore extended by operation of contract and law for two years, until 1978. If you repudiate this agreement, I have been authorized to file unfair labor practice charges against your com- pany, and to proceed with all relevant grievances. So far as the record shows, this letter, which Respondent would presumably have received within a day or two, provoked no response. Having received no reply by Friday, July 23, Complainant Union's business repre- sentative himself sent Respondent a second letter. There- in, he noted that his legal counselor's Monday, July 19 letter had presumably been ignored. Moore's communi- cation continued as follows: I therefore request and demand that we move to Step 2, Article 10 and request a meeting in my office at 10:00 a.m. Tuesday, July 27, 1976, at which time I shall have parties representing labor in attendance and you have the obligation to have two (2) employers present that are not owners or em- ployees of your firm. So that we may proceed with the settlement of the grievance that has been sub- mitted to you. Respondent's partners were further notified that a failure of response on their part, with respect to Moore's re- quest and demand, would cause Complainant Union's counsel to file Board charges no later than Wednesday, July 28, thereafter. On Monday, July 26, presumably following Respond- ent's receipt of Business Representative Moore's July 23 letter, the firm's secretary and Moore had a telephone conversation. (The record reflects a testimonial conflict with regard to which party initiated the call; for present purposes, no resolution of this conflict seems required.) Respondent's office secretary reported Rayner's absence from the city; she declared that he would, therefore, be unable to attend Moore's Tuesday, July 27, grievance conference, but could arrange to be present, sometime thereafter, should their conference date be rescheduled. Complainant Union's business representative mentioned various complaints-which he had purportedly received from union members-with regard to Respondent's recent procurement of several substantial contract awards. The partnership's secretary noted a denial, how- ever, reiterating her prior contention that Respondent merely maintained a relatively "small" business. Further, she promised to support her contention with a specific recapitulation of Respondent's contract situation. After their conversation, Respondent's secretary dis- patched a letter directed to Complainant Union's business representative. Therein, she listed some 33 public con- tract projects, with respect to which bids had been solic- ited. She reported that Respondent had submitted bids with respect to 32 projects, but had received merely 6 contract awards. When queried during this case with regard to his firm's 1976 business, Rayner testified that Respondent's six contract awards had been received during the year's late spring and early summer months; that the firm's first calendar year project, performed for the city of Pied- mont, had been commenced during late May 1976; and that work on Respondent's largest public project, for Sacramento County, had begun during July, thereafter, relatively early. While a witness, Rayner contended that four of Respondent's six listed 1976 projects had consti- tuted the partnership's first "substantial" jobs since the firm's February 1975 Denver Meat Company project, previously noted. 5. Litigation chronology a. Complainant Union's unfair labor practice charge On Monday, July 26, Complainant Union's counsel filed the initial charge which initiated the present pro- ceeding. Therein, Respondent was charged with 8(a)(1), (3), and (5) violations "within the last six months imme- diately preceding" counsel's charge, because it had "re- pudiated" its collective-bargaining contract with Com- plainant Union herein. b. Complainant Union's petition to compel arbitration On August 19, 1976, while the Board's Regional Office was presumably investigating the Complainant Union's previously filed charge, the organization's counsel filed a petition to compel arbitration with the United States dis- trict court, directed to Respondent herein. The petition, docked as Case C-76-1752-LHB, was filed consistent with Section 301 of the Labor Manage- ment Relations Act, 61 Stat. 156, 29 U.S.C. §185. There- in, Complainant Union charged "Bay Area Sealers, Inc," with several 1973-1975 contract violations. Specifically, Respondent was charged with (1) failure to use contrac- tually mandated hiring procedures; (2) failure to make contractually required trust fund contributions; (3) failure to pay contractually defined wages; and (4) further con- tract violations. Complainant Union further claimed that Respondent had refused its demand with respect to proc- essing grievances-bottomed upon these contract viola- tions-through their contractually defined arbitration procedure. Some court directive, compelling Respondent to cease its refusal to arbitrate with regard to the matters designated, was requested. (My factual determinations herein with regard to Complainant Union's petition, to- gether with its subsequent disposition, derive from a stip- ulation proffered for the record, documentary material A AREA SEALERS lot 102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD received in connection therewith, and relevant district court records, with respect to which I have taken official notice.) Thereafter, on August 20, the district court judge signed an Order To Show Cause, with respect to Complainant Union's petition. Various documentary sub- missions were subsequently prepared for the district court judge's consideration; two hearings were conduct- ed, on September 10 and November 5, 1976, respective- ly. Therein, Bay Area Sealers contended and sought to prove that Complainant Union itself had previously "re- pudiated" their negotiated contractual consensus through a denial of contractual benefits for company workmen: consequently, Respondent contended, no contract could be considered currently viable, pursuant to which arbi- tration might be compelled. Complainant Union prof- fered no testimony calculated to counter Respondent's factual claim that their contract had been "repudiated" or "abandoned;" union counsel rested their defense, rather, upon threshold legal contentions that Respond- ent's contract "repudiation" claim raised questions which should be reserved solely for their contractually desig- nated arbitrator's consideration, rather than for district court consideration, preliminary to that arbitrator's con- sideration of Complainant Union's substantive contract violation charges. c. Subsequent developments On December 8, 1976, following Complainant Union's final November 10 submission of its petition to compel arbitration, for district court consideration, union counsel filed a first amended charge with the Board's Regional Office herein. Respondent was charged, therein, with 8(a)(l) and (5) unfair labor practices "since on or about June, 1976, and continuing to date" through its unilateral failure to enforce and comply with contractual collec- tive-bargaining commitments. On December 9, however, the district court judge issued findings of fact and conclusions of law with re- spect to Complainant Union's Section 301 petition. In relevant part, the district court judge found that Com- plainant Union had indeed "repudiated and breached" its collective-bargaining contract with Respondent herein, by a continuing course of conduct which had "effective- ly abandoned" their contractual consensus. The judge concluded that: (1) there is no collective bargaining agreement in effect between Bay Area Sealers and the Auto, Marine & Specialty Painters Union, Local 1176. (2) Petitioner is not entitled to compel arbitration. A judgment dismissing Complainant Union's petition, bottomed upon these conclusions, was subsequently en- tered. Nevertheless, on December 10, the General Coun- sel's formal complaint herein, bottomed upon Complain- ant Union's revised 8(a)(l) and (5) charges, was promul- gated and duly served. Late in January 1977, Complainant Union filed a timely notice of appeal from the district court judge's findings of fact, and conclusions, and consequent judg- ment. When the present Board case came on for hearing before me, Complainant Union's appeal with respect to its petition to compel arbitration was still pending before the Court of Appeals for the Ninth Circuit. C. Discussion and Conclusions 1. Preliminary statement a. Contentions of the parties With matters in this posture, the General Counsel's po- sition, challenging the propriety of Respondent's course of conduct, should be comprehensively restated. Essen- tially, the General Counsel's representative contends first that Respondent became a nonmember contract signato- ry, privy to Complainant Union's then-current 1973-75 Association agreement, on May 14, 1975, when Respond- ent's partner Frank Clark signed a contract copy. (In this connection, the General Counsel's presentation reflects a concession that despite Clark's failure to designate his signature's date the partnership's contractual commit- ment did carry a nominal effective date, June 1, 1975. The General Counsel contends, however, that Moore, Clark, and Rayner negotiated a verbal "side agreement" pursuant to which Complainant Union consensually "agreed" that their contract's complete effectuation would be delayed, pending Respondent's receipt of some substantial contract awards.) Secondly, the General Counsel contends that Respondent's short-term contrac- tual commitment was "automatically renewed" thereaf- ter, when both parties subsequently failed to request their contract's modification or termination (during June 1975 specifically) pursuant to article XVI's provisions therein. In this connection, the General Counsel's representa- tive notes within his brief that pursuant to article XVI, section 2, "contract amendments or conditions or wages or hours" negotiated by "Industry" spokesmen with Complainant Union herein, were to become "applicable to and a part of' the partnership's contract. Accordingly, the General Counsel contends that when Complainant Union subsequently negotiated a new 3-year Association contract (with an October 1, 1975, effective date), Re- spondent became committed, pursuant to Complainant Union's revised and renewed commitments, for that con- tract's full 1975-78 term. This contention may be legally sound. For present purposes, however, no determination need be made with respect to whether Respondent's con- tractual commitments were really "continued from year to year" because it failed to give some June 1975 notice, or whether the firm became retroactively bound, for a 3- year contract term, concurrently with comparable Asso- ciation commitments subsequently negotiated. Thirdly, the General Counsel contends that Complain- ant Union's postponement of complete effectuation, with respect to Respondent's contractual commitments, de- rived from their "side agreement" and reflected no "re- pudiation" or "abandonment" with respect to Respond- ent's contractual privity. Thus, so the General Counsel contends, Respondent partnership's ultimate refusal to concede Complainant Union's contractually grounded recognition claims, coupled with the firm's failure to make contractually mandated health and welfare and pension contributions, while formulating and pursuing BAY AREA SEALERS 103 separate fringe benefit programs, constituted a refusal to bargain, statutorily proscribed. Respondent's counsel herein substantially concedes the partnership's May 14, 1975, contractual commitment, though he claims his clients had then consensually nego- tiated a June I effective date; the partnership, however, categorically denies any verbal "side agreement" pursu- ant to which the designated contract's complete "effectu- ation" would be deferred. In this connection, Respond- ent's contention that Clark's signature merely reflected a tentative commitment-conditioned upon some type of vote within the partnership's crew complement which Complainant Union would conduct thereafter-has been rejected. Previously within this Decision, I have found Respondent's contention lacking in persuasive record support. Instead, Respondent claims, contrariwise, that Com- plainant Union has unilaterally refrained from pressing for their agreement's effectuation for more than a year; the labor organization's laches, so Respondent contends, should be considered sufficient to signify its decisive "re- pudiation" or "abandonment" of their putative contract. Specifically, Respondent contends that Complainant Union's business representative never provided a legible copy of their agreement, despite Rayner's timely verbal requests; that Moore never provided requested "informa- tion" with regard to Respondent's contractual rights and responsibilities; and that Coriplainant Union's contrac- tually designated trust funds never required contributions or provided fringe benefit coverages, purportedly negoti- ated for Respondent's workmen. Notably, Respondent makes no contention now that Complainant Union lacked majority support (within the partnership's employee complement) when Clark signed its proffered Association contract. Further, no conten- tions have been proffered herein either that Complainant Union subsequently lost its majority representative status, or that Respondent partnership currently possesses some reasonable ground for doubt with regard to Complainant Union's continued majority designation. While a witness, Rayner did testify that-shortly following Complainant Union's July 1976 demand for contract compliance-he polled Respondent's 14-member crew, discovering there- by that "none" currently desired union membership. However, Complainant Union was never notified with regard to Respondent's purported discovery; nor have Respondent's partners contended herein that Rayner's poll supports their claimed release from Complainant Union's contract. For present purposes, therefore, no question with regard to Complainant Union's continued representative status requires resolution. Should Re- spondent's proffered contract "repudiation" contention be found meritorious, no determination with regard to Complainant Union's purportedly contemporaneous loss of majority representative status would be required. Pari passu, should Respondent's specific contention be reject- ed, possible claims that Complainant Union can no longer demonstrate majority support-belatedly prof- fered, because based upon discoveries made during their contract's presumptively renewed term-could not be considered timely. Cf. Hexton Furniture Company, 111 NLRB 342, 344 (1955), in this connection. In short, Respondent's defense herein derives solely from its contention, consistently maintained, that Com- plainant Union's deliberate or negligent failure to require any contractual compliance warranted their purported contract's nullification. In support of Respondent's factual contention that Complainant Union herein-subsequent to their collec- tive-bargaining contract's negotiation-had "repudiated" and "breached" whatever consensual commitments that document purportedly memorialized, counsel argues that the United States district court's disposition of Complain- ant Union's petition to compel arbitration should be con- sidered determinative, consistently with resjudicata prin- ciples. And, as persuasive precedent arguably supportive of this proposition, Respondent's counsel cites a Ninth Circuit Court of Appeals decision. .L.R.B. v. Walter E. Ieyman d/b/a Stanwood Thriftmart, 541 F.2d 796, 800 (9th Cir. 1976) (designated Heyman hereinafter), wherein court enforcement, with respect to Walter E. Heyman, d/ b/a Stanwood Thriftmart, 216 NLRB 852 (1975) (desig- nated Stanwood Thriftmart hereinafter), was denied. Within its decision, the court of appeals declared that: . . .The crux of the matter is what effect the Board must give a United States District Court judgment which is antithetical to the Board's subsequent de- termination regarding the validity of a collective- bargaining agreement. The continued existence of a contract previously rescinded by the court was a premise of the Board's findings.... . . .Our concern, however, is with the Board hold- ings relative to the existence of the contract, as the contract underlies these [previously detailed] find- ings of unlawful conduct.... We are of the opinion that the jurisdictional grant within 301 carries with it both the powers necessary to enforce judgments and to give judgments effect in such quasi-judicial forums as the NLRB, through the appli- cation of such doctrines as res judicata or collateral es- toppel . . . Although the authority of the Board to deal with an unfair labor practice which also violates a collec- tive-bargaining agreement is not displaced by §301, the Board's authority does not supplant the jurisdic- tion of the courts. .. . An implicit collateral attack, launched through the filing of charges premised on the contract, may not be entertained by the Board under the guise of different policy consider- ations. When a judgment is pleaded in another jurisdic- tion, the question is whether the judgment is res ju- dicata, and where the judgment determines a right under federal statute, "that decision is 'final until re- versed in an appellate court, or modified or set aside in the court of its rendition."' . . . The Board was faced with the same parties: essentially the BAY AREA SEALERS 103 104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD same contract issue, albeit implicitly, that existed in the district court; the same Union arguments; and the presence of a judicially decreed rescission. To fail to give any effect to the district court's judgment would here render 301 nugatory and defeat the inten- tions of Congress that alternative forums be available and that contract violations be left "to the usual proc- esses of the law" . . . The Board's authority . . . does not extend in the first instance to contract litigation, nor does the Board itself have requisite jurisdiction, as would a court of appeals, to waive a judicial doctrine such as res judicata .... In the absence of a valid contract, by virtue of the district court judgment of rescission, repudiation and refusal to negotiate could not constitute unfair labor practices. [Emphasis supplied.] Relying upon these decisional pronouncements, Re- spondent's counsel would have the Board consider itself "bound" by the district court's determination, previously noted that "there is no collective-bargaining agreement in effect" between Complainant Union and Respondent partnership. In reply, the General Counsel argues that-where the sole question before this Board is whether Respondent's conduct flouted Section 8(a)(5)'s prohibition-only the Board initially has the jurisdicton to make that determi- nation. Stanwood Thriftmart, supra at 853. And, the Gen- eral Counsel cogently suggests, that, while the Board's Stanwood Thriftmart decision was denied enforcement, administrative law judges are nevertheless required to apply such established Board precedents, which the Board or the Supreme Court have not reversed. Ford Motor Company (Chicago Stamping Plant), 230 NLRB 716, 718, fn. 12 (1977); Peter Paul, Inc., 185 NLRB 281, 289 (1970); Iowa Beef Packers, Inc., 144 NLRB 615, 616 (1963); Novak Logging Company, 119 NLRB 1573, 1575- 76 (1958); Insurance Agents' International Union, AFL- CIO (The Prudential Insurance Company of America), 119 NLRB 768, 773 (1957); cf. Sierra Development Company d/b/a Club Cal-Neva , 231 NLRB 22, 23, fns. 4, 5 (1977). In short, the General Counsel contends-consistent with the Board's Stanwood Thriftmart decision-that, despite the conceivably persuasive thrust of the Ninth Circuit's subsequent Heyman rationale, the district court's disposi- tion of Complainant Union's petition to compel Respond- ent's submission to arbitration should not be considered determinative herein with respect to the question of Re- spondent's continued commitment; that the present record, considered in totality, preponderantly warrants a factual conclusion that Respondent was, throughout the period material herein contractually bound; and that Re- spondent's refusal to acknowledge, honor, implement, or comply with its contractual obligations therefore consti- tuted a refusal to bargain, statutorily proscribed. b. Questions presented Clearly, with matters in this posture, the parties have joined issue with respect to some significant threshold questions. Since Respondent's primary res judicata con- tention-should it be found meritorious-would presum- ably be dispositive of the General Counsel's claim that Respondent's course of conduct flouts a currently viable contract, and therefore merits Board proscription, that contention together with Respondent's supportive pres- entation merits detailed consideration. First: The significance of the Stanwood Thriftmart (de- cision-wherein this Board refused to consider a previ- ously rendered district court judgment controlling, with respect to its disposition of matters within its statutory jurisdiction-must be weighed. Should that decision be considered the clearly "established Board precedent" which I must "apply" herein when contemplating Re- spondent's proffered res judicata contention? The Gener- al Counsel so contends; I have not, however, been per- suaded. In Stanwood Thriftmart, this Board refused to consider itself bound by a prior court order which "purported to rescind" the particular contract which, so the General Counsel contended, Walter E. Heyman had, without war- rant, flouted. The Board, however, noted that the district court's directive, proffered for its consideration, had been bottomed upon a subsidiary judicial determination that the concerned labor organization, before the court, had at material times lacked majority status; mindful of this, the district court had concluded that the execution of that labor organization's challenged contract, together with its subsequent enforcement, had involved statutory unfair labor practices. In short, the district court's favor- able judgment, with respect to Stanwood Thriftmart's prayer for contract rescission, had clearly derived from the court's application of statutory, Board-defined labor relations law. With respect to matters completely suscep- tible of determination within its statutorily defined juris- dictional sphere, the Board declared that its formal "de- termination on the merits" should stand regardless of prior decisions, conceivably in conflict therewith, which district courts might render in Section 301 suits. See Stanwood Thriftmart, supra at 853, fn. 5, in this connec- tion. The present case, however, raises a different question. The particular district court decision which Respondent partnership proffers as determinative herein, derives from factual determinations and conclusions reached and de- clared within the broader parameters of general contract law. In Smith v. Evening News Association, 371 U.S. 195, 197-200 (1962), the Supreme Court held that the Board's jurisdiction to deal with unfair labor practices which also violate collective-bargaining contracts is not exclusive, and does not destroy district court jurisdiction in Section 301 suits, with respect to contractual breaches. Inter alia, however, the Court noted that, "If, as Respondent strongly urges, there are situations in which serious prob- lems will arise from both the court's and the Board having jurisdiction over acts which will amount to an unfair labor practice, we shall face those cases when they arise." See, in this connection, 11 Leg. Hist. 1043 (LMRA, 1947) (Remarks of Senator Murray). The pres- ent case may conceivably present such a problem. Fur- ther, see Amalgamated Association of Street, Electric Rail- way & Motor Coach Employees of America v. Lockhart, 403 U.S. 274, 298, 300-301 (1971), in this connection. BAY AREA SEALERS 105 Compare National Rejectors Industries v. United Steel- workers of America, 562 F.2d 1069 (8th Cir. 1977). With the coordinate jurisdiction of this Board and Federal dis- trict courts in Section 301 cases thereby confirmed, Re- spondent's resjudicata contention herein really raises this question: When determining whether a particular re- spondent's conduct constitutes a proscribed unfair labor practice, must this Board give consideration or deference to a previously rendered district court decision concerned with a factual predicate basic to the Board's final unfair labor practice determination, whenever that court decision disposes of matters clearly within the court's Section 301 ju- risdictional competence and not within the Board's exclusive competence -e.g., questions concerned with a contract's continued viability or proper construction? More particu- larly: When such a court decision exists, must this Board consider it part of the record from which a final unfair labor practice determination should be derived; and, if so, should that court decision be given determinative weight-consistent with res judicata or collateral estoppel principles-or need the Board merely consider it? My research to date reveals no Board decision-ren- dered since Section 301's passage-wherein these specific questions have been confronted or determined. In short, despite the General Counsel's contrary suggestion, I have found no recent "established Board precedent" clearly relevant herein, which, on its face constrains my rejection of Respondent's res 'udicata contention without further consideration. 2. Respondent's resjudicata contention a. Res judicata or collateral estoppel Respondent's counsel, within his formal answer, pleads the district court's judgment with respect to Complainant Union's petition to compel arbitration previously noted as "binding upon the Administrative Law Judge of the National Labor Relations Board" consistently with res judicata principles. Strictly speaking, however, that doc- trine may not be properly applicable. Conventionally defined, the doctrine provides that "an existing final judgment rendered upon the merits, without fraud or collusion, by a court of competent jurisdiction, is conclusive of causes of action and of facts or issues there- by litigated, as to the parties and their privies, in all other actions in the same or any other judicial tribunal of con- current jurisdiction." (Emphasis supplied.) 46 Am. Jur. 2d 558, "Judgments," section 394 f. These prerequisite cri- teria conceivably may not have been satisfied, with re- spect to the district court judgment now under consider- ation. That district court judgment, which Respondent herein proffers as determinative-though currently both "viable" and "final" since it has neither been vacated nor as yet reversed-has been appealed. It was appealed before this Board case was heard, particularly because of the court's presumptive rejection of Complainant Union's plea challenging its jurisdiction of the subject matter. Though clearly reflective of the district court judge's dispositive concurrence with Respondent's testimonially supported contract "repudiation" or "abandonment" con- tention, proffered to counter Complainant Union's peti- tion, the court's decision merely suggests a sub silentio re- jection with respect to Complainant Union's replicatory plea. And, finally, the General Counsel may arguably be considered a nonconcerned "stranger to the judgment" which the district court rendered, rather than Complain- ant Union's privy, bound thereby. Respondent's counsel herein proffers the district court's determination with which we are concerned, not to preclude the General Counsel's relitigation of Com- plainant Union's contractual "arbitration" demands, but to preclude relitigation-within the present statutory Board proceeding-with respect to certain underlyingfac- tual matter and legal questions resolved, specifically, or by necessary implication, through the district court's dis- position. Judgments proffered in subsequent litigation for such purposes have been described as proffered for "col- lateral estoppel" purposes. Research suggests, however, that courts have frequently discussed resjudicata and col- lateral estoppel doctrines interchangeably, when disposing of so-called claim preclusion and factual issue preclusion questions. United States v. Utah Construction & Mining Company, 384 U.S 394, 421-422 (1966); Commissioner of Internal Revenue v. Sunnen, 333 U.S. 591, 597-598 (1948). See Cromwell v. County of Sac, 94 U.S. 351, 352 (1876); Independent Petroleum Workers of America, Inc. v. American Oil Company, 324 F.2d 903 (7th Cir. 1963). Indeed, one court has commented that, when a party finds himself barred from relitigating some matter, it can make little difference to him by what name the lethal doctrine is called. 46 Am. Jur. 2d 564, "Judgments," sec- tion 397. Herein, therefore, both terms will be employed without regard for fine distinctions. b. Collateral estoppel in Board proceedings Any resolution of Respondent's contention with regard to the purportedly preclusive significance of the district court's dismissal of Complainant Union's petition must begin with the statute. Inter alia, Section 10(a) therein provides that: The Board is empowered . . . to prevent any person from engaging in any unfair labor practice . . This power shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, law, or otherwise. Consistent with this statutory provision, the Supreme Court has held that Federal district courts lack any juris- diction to prevent or preclude constitutionally permissi- ble Board proceedings directly through injunctive pro- ceedings. Myers v. Bethlehem Shipbuilding Corporation, 303 U.S. 41, 48 (1938). Query: May parties concerned with some resolution of factual or legal questions-prop- erly determinable in Board proceedings conducted within this Agency's statutorily defined jurisdictional sphere-preclude de novo Board determinations with re- spect to such questions, indirectly, by procuring decisions purportedly dispositive with respect thereto, rendered in collateral proceedings by courts functioning clearly within their general sphere of jurisdictional competence? Before Section 301's passage, the Board, relying upon the statutory provision previously noted, held consistent- ly that court judgments or decrees. rendered in collater- BAY AREA SEALERS 105 106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ally related suits between private parties, would not be considered dispositive in Board proceedings, subsequent- ly maintained. See, e.g., South Atlantic Steam Ship Com- pany, 12 NLRB 1367, 1369, fn. 2 (1939), enfd. 116 F.2d 480 (5th Cir.); Williams Manufacturing Company, 6 NLRB 135, 143-144 (1938); National Electric Products Corporation, 3 NLRB 475. 500-503 (1937). Further, com- pare M & M Woodworking Company, 6 NLRB 372, 373, 381-382 (1938), set aside 101 F.2d 938 (9th Cir.). The court of appeals, therein, though it reversed the Board's decision on the merits, made no reference to a Federal district court decision which had been proffered for the Board's consideration as determinative or persuasive. The Board's refusal to consider a previously rendered court decision preclusive, with respect to matters within its statutorily defined jurisdictional competence, was nei- ther judicially challenged, nor rejected. See, generally, 2 Davis, "Administrative Law Treatise," sec. 18.11, in this connection. Since the Labor Management Relations Act's passage, several Ninth Circuit Court of Appeals' decisions have been rendered-consistent with the principle set forth in United States v. Utah Construction and Mining Company, supra-holding that factual determinations reached in Board cases should be considered res judicata in subse- quent court proceedings, and that collateral estoppel doc- trines preclude the relitigation therein of factual ques- tions previously decided in firly conducted Board mat- ters. Paramount Transport Systems v. Chauffeurs, Team- sters and Helpers Local 150, IBT, 529 F.2d 1284 (9th Cir. 1976); Mead's Market v. Retail Clerks International Asso- ciation Local Union No. 839, AFL-CIO, 523 F.2d 1371 (9th Cir. 1975); Paramount Transport Systems v. Chauf- feurs, Teamsters and Helpers, Local 150, IBT, 436 F.2d 1064, 1065-66 (9th Cir 1971); see Davis, Administrative Law of the Seventies, sec. 18.02, p. 428. See, also, Edward D. Sultan Company, Ltd. v. Miscellaneous Service Workers, Drivers and Helpers, Local 427, 95 LRRM 3081 (June 6, 1977, D.C. Hawaii); and Eazor Express, Inc. v. General Teamsters Local 326, IBT, 388 F.Supp. 1264 (D.C.Del. 1975). These decisions, however, do not neces- sarily provide persuasive precedential support for res ju- dicata governance in reciprocal situations. 2 Davis, Ad- ministrative Law Treatise, sec. 18.11, p. 623. Therein, Professor Davis notes that: . . [once] the allocation of power to the agency has been established, the agency's determination may be res judicata for purposes of a later judicial decision, but a judicial decision is likely not to be res judicata for purposes of a later administrative decision. Thus, in Washington Terminal Co. v. Bos- well, [124 F.2d 235 (D.C. Cir. 1941), affd. 319 U.S. 732 (1942) by a divided Supreme Court], a carrier which had been unsuccessful in a proceeding before the National Railroad Adjustment Board was held barred from maintaining a suit for a declaratory judgment in court on the same question. But in Slocum, General Chairman, Lachawanna Division No. 30, Order of Railroad Telegraphers v. Delaware, Lachawanna & Western Railroad Co., 339 U.S. 239, 244 (1950) the Supreme Court declared by way of dictum: "If a court in handling such a case must consider some provision of a collective-bargaining agreement, its interpretation would of course have no binding effect on future interpretations by the [NRA] Board." Subsequently, the Supreme Court confirmed a properly authorized state court's power to compel contractual ar- bitration, with respect to matters cognizable in Board proceedings and susceptible of determination within the agency's statutorily defined jurisdictional competence. Carey v. Westinghouse Electric Corporation, 375 U.S. 261 (1964). The Court reiterated its Smith v. Evening News Association comment that "the possibility of conflict is no barrier to resort to a tribunal other than the Board." Nevertheless, it declared that: Should the Board disagree with the arbiter . . . the Board's ruling would, of course, take precedence .... Arbitral awards . . . concerning unfair labor practices may later end up in conflict with Board rulings .... [Yet] . . . [T]he superior authority of the Board may be invoked at any time. This, with respect to presumptively dispositive arbitral awards rendered in judicially compelled proceedings. Though not conclusive-with respect to this Board's pu- tatively "superior authority" in situations comparable with the present matter-the Court's language, quoted, certainly suggests that determinations reached in Section 301 court proceedings, or contractually mandated arbi- tration proceedings conducted pursuant to judicial direc- tion, need not be considered dispositive in subsequent Board matters. Consistent with this view, the Fifth Circuit Court of Appeals has held-with particular reference to "diamet- rically conflicting orders of a District Court and of the National Labor Relations Board arising out of a work as- signment dispute" between a concerned employer and two competing labor unions-that the Board's jurisdic- tional dispute determination took precedence, and that the district court's Section 301 judgment patently in con- flict therewith should be vacated. New Orleans Typo- graphical Union No. 17, International Typographical Union, AFL-CIO v. N.L.R.B., enfg. 152 NLRB 587 (1965), 147 NLRB 191 (1964); New Orleans Typographical Union No. 17 v. N.L.R.B., 368 F.2d 755, 763, 766-767 (5th Cir. 1966). The court of appeals did note, however, that since these cases were concerned with a jurisdiction- al dispute the particular situation presented was con- trolled by Section 10(k)'s specific language. In this con- nection, the court declared: We are of the opinion that under the circumstances the pending Board proceedings did not preempt the Section 301 jurisdiction of the Court . . . Congress is vested with sole power over the jurisdiction of both the district court and the Board. In statutes of equal dignity, it has conferred one power on the Courts and another on the Board. While it could have done so, Congress has not enacted that mere pendency of a charge which could lead to a Section 10(k) determination shall stay the hand of the Court BAYAREA SEALERS 107 in a Section 301 Petition . . . We think [the Su- preme Court's Carey v. Westinghouse decision] means filing a Section 301 complaint would not pre- clude Board action .... We are of the opinion, of course, that once the [Board's] determination is made and becomes final, then it takes precedence over the Section 301 arbitration proceedings ... When the Board acted, its order was entitled to pre- cedence. Congress definitely intended that a Section 10(k) determination should be a permanent settle- ment of the dispute. In short, the Fifth Circuit's decision holds, particularly with reference to Board determinations in Section 10(k) and Section 8(b)(4)(D) cases, that conflicting district court decisions, previously rendered in collaterally relat- ed Section 301 suits, should not be given res judicata or collateral estoppel deference. Compare N.L.R.B. v. Team- sters, Chauffeurs, Warehousemen & Helpers, Local o. 631, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, AFL-CIO, 403 F.2d 667, 670-673 (9th Cir. 1968); and N.L.R.B v. Stafford Trucking, Inc., 371 F.2d 244, 249 (7th Cir. 1966), in this connection. Within its previously noted Heyman decision, the Ninth Circuit Court of Appeals recognized that, within a factual setting comparable to that which Vew Orleans Ty- pographical Union, supra, presented, Board determinations may indeed take precedence over other proceedings. The Court, however, declared in relevant part that: Our concern, however, is with the Board holdings relative to the existence of the contract, as the con- tract underlies these findings of unlawful conduct. This presents a different question: What consideration must the Board give to the judgment of rescission? We are of the opinion that the jurisdictional grant within Section 301 carries with it both the powers necessary to enforce judgments and to give judg- ments effect in such quasi-judicial forums as the NLRB, through the application of such doctrines as res judicata or collateral estoppel .... To fail to give any effect to the District Court's judgment would here render Section 301 nugatory and defeat the intentions of Congress that alternative forums be available and that contract violations be left "to the usual processes of the law." [Emphasis supplied.] In so holding, the Heyman court concluded, with refer- ence to a case of first impression so far as presently con- cluded research discloses, that the Board's powers do not extend "in the first instance to" contract litigation, and that the Board lacks "requisite jurisdiction" which would permit a waiver of judicial resjudicata doctrines. Since Respondent's counsel, herein, presses Heyman's persuasive relevance, that decision's basic rationale clear- ly merits review and critical determination. c. The Heyman case (I) History Considered retrospectively, the Heyman-Stanwood Thriftmart litigation has followed a particularly convo- luted course. It began with a State of Washington superi- or court action, Trust Fund Services v. Walter E. Heyman d/b/a Stanwood Thriftmart, wherein a trust fund's assign- ee sued for contractually mandated health and welfare and pension trust fund contributions which had purport- edly become delinquent. Heyman, therein, countered- inter alia-with a defensive contention that the succes- sive contracts which purportedly underlay Trust Fund Service's claim lacked validity, since the labor organiza- tion privy thereto had not represented a majority of his employees when those contracts were signed. While this superior court action was pending, the defendant therein sued the labor organization directly concerned in Federal district court. Walter Heyman. d/ba Thriftmart v. Team- sters Local 38, No. 506-73C2 (filed August 22, 1973). Therein, Heyman sought rescission with respect to their currently relevant contract. contending that its conceded execution had involved certain designated unfair labor practices; his prayer for rescission, therefore, rested upon contentions similar to those which he had previously proffered defensively within the State of Washington action. The State of Washington court thereafter denied Hey- man's motion to withhold further consideration of Trust Fund Service's lawsuit pending a Federal district court decision with regard to their purportedly underlying contract's legality. Eventually, the state court entered judgment for Trust Fund Services. The court concluded that upon the record no conclusion with respect to Heyman's liability under the first of two purportedly successive contracts would be warranted; however, his further defense-that Teamsters Local 38's most recent contract lacked valid- ity because the labor organization had not represented a majority of his employees when it was signed-was spe- cifically rejected. On May 13, 1974, General Teamsters Local 38, IBT, filed an 8(a)(5) charge with the Board against Walter E. Heyman d/b/a Stanwood Thriftmart; Heyman was charged, therein, with unilateral refusals to make welfare and pension trust fund payments, and further refusals to bargain-through a notice directed to the labor organiza- tion concerned that he intended to terminate their agree- ment; through his withdrawal of recognition from that organization; and through his refusal to negotiate a new collective-bargaining cbntract. On October 10, 1974, the General Counsel's complaint issued bottomed upon these charges; responding, Heyman conceded the course of conduct with which he had been charged, but still con- tended that his last contract with General Teamsters Local 38, IBT, had been signed at a time when that labor organization had not been designated by a majority of his employees within the contractually defined bar- gaining unit, and that the agreement was therefore illegal and void. Shortly thereafter, on October 24, 1974, the Federal district court, presumably without reference to the pend- ing Board proceeding, granted Heyman summary judg- ment, with regard to his petition for contract rescission. Inter alia, the court concluded that General Teamsters Local 38 had not, actually, represented a majority of AY AREA SEALERS 107 108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Heyman's employees when the challenged contract was signed; and that, since the Washington Superior Court had failed to find any prior collective-bargaining con- tract, with respect to which both parties had been privy, there could be no legal presumption that Local 38 had represented a majority of Heyman's workers when their challenged contract was signed. Essentially, the Federal district court held that-since the state trial court's deci- sion had established that there had been no prior collec- tive-bargaining contract-Local 38's defense, bottomed upon its contention that Heyman's current contract, con- cededly signed, should be considered valid because that labor organization's continued majority status at material times could be legally presumed, was a precluded defense, consistent with "collateral estoppel" doctrine. No appeal was taken from this district court judgment. Thereupon, with respect to the General Counsel's complaint in the Board proceeding previously noted, Heyman pleaded that the Federal district court's contract rescission decree-since it reflected that court's refusal to find a legal "contractual presumption" with respect to Local 38's majority status when the contract challenged therein was signed-should preclude any Board determination that Local 38 had negotiated a currently valid contract with Heyman, which the latter had subsequently flouted. On March 4, 1975, this Board rejected Heyman's pre- clusion contentions. Walter E. Heyman d/b/a Stanwood Thriftmart, 216 NLRB 852 1975). Responding to the General Counsel's Motion for Summary Judgment, the Board held: First, that any contract, lawful on its face, raises a presumption that the contracting union had been the majority representative when it was signed; second, that this presumption prevails during the designated con- tract's stated term, and thereafter; third, that Section 10(b) of the statute precluded Heyman's belatedly prof- fered contention that Local 38 lacked majority status either when initially recognized, or when their relevant contract was signed; fourth, that Heyman could not, nev- ertheless, rely upon the Federal district court's contract rescission decree to overcome the presumption of major- ity status raised by his facially valid contract, since "only the Board, initially, has the jurisdiction" to determine whether Section 8(a)(5) of the statute had been violated. Subsequently, the State of Washington Court of Ap- peals considered Heyman's appeal from the superior court judgment rendered in connection with Trust Fund Services' suit for fringe benefit contributions, previously noted. Trust Fund Services v. Heyman, 550 P.2d 547, 93 LRRM 3081. This tribunal held inter alia, that the state trial court below had properly refused to consider Hey- man's current contract invalid, for the specific reasons which he has proffered in defense: First, because deter- minations with regard to unfair labor practices-which Heyman had claimed he, together with Local 38, had committed-constitute "exclusively a function of the Federal system" pursuant to statute, citing San Diego Building Trades Council v. Garmon, 359 U.S. 236, 244 (1959); second, because Heyman's defensive contention (proffered more than 6 months after the relevant con- tract's execution) had been tardily pressed since Section 10(b) of the Act would have barred its consideration in Board proceedings. The state court of appeals cited Local Lodge No. 1424, International Association of Ma- chinists, AFL-CIO v. N.L.R.B., 362 U.S. 411 (1960), in this connection. Meanwhile, however, this Board had petitioned the Ninth Circuit Court of Appeals for enforcement of its Stanwood Thriftmart order, previously noted. On July 21, 1976, the court of a appeals declined to enforce the Board's order, setting forth its rationale within the deci- sion previously noted herein. N.L.R.B. v. Walter E. Heyman d/b/a Stanwood Thriftmart, 541 F.2d 796 (9th Cir. 1976). Noting that General Teamsters Local 38 had not appealed the Federal district court's summary judg- ment order, the court of appeals declared in relevant part that: . . Where the judgment determines a right under Federal statute, ". . . that decision is 'final until re- versed in an appellate court, or modified or set aside in the court of its rendition."' Accordingly, the Ninth Circuit concluded that the Board erred when it failed to give "any effect" to the district court's judgment, since that failure: . . . would here render Section 301 nugatory and defeat the intentions of Congress, that alernative forums be available and that contract violations be left "to the usual processes of the law." [Emphasis supplied.] With particular reference to the contract rescission ques- tion which the conflicting Federal district court and Board decisions had raised, the court of appeals com- mented that the principal "issue" which the Board's peti- tion for enforcement presented concerned the effect of the district court's contract rescission order on the Board's presumption of validity, with respect to Local 38's current contract. In that connection, the court of ap- peals noted that: By coupling Section 10(b) with the presumption, the Labor Board would create an irrebuttable pre- sumption having the substantive law effect that was rejected in [Local Lodge No. 1424, International As- sociation of Machinists v. N.L.R.B., supra]. Clearly, the district court order is not time-barred by Sec- tion 10(b) . . . . To utilize the presumption in the fashion of the Board, giving no consideration to the district court order, makes the presumption of irrebut- table force, not subject to clear, cogent, convincing evi- dence .... As a statute creating a presumption which operates to deny a fair opportunity to rebut would not afford due process .... a Labor Board presumption to the same effect would also suffer shortcomings. [Emphasis supplied.] So holding, the court of appeals found the district court judgment of rescission determinative with respect to "the absence of a valid contract" and concluded that Hey- man's repudiation of his claimed liability for trust fund contributions, coupled with his subsequent refusal to ne- gotiate new agreements, could not constitute unfair labor practices. BAY AREA SEALERS 109 Thereafter, on June 16, 1977, the State of Washington supreme court concluded Trust Fund Services' parallel state court litigation. Trust Fund Services v. Heyman, d/ b/a Thriftmart, 565 P.2d 805, 95 LRRM 3040. That final appellate tribunal rejected Heyman's several contentions, on review: First, that the state court of appeals should have considered the previously rendered Federal district court Heyman judgment a "controlling precedent" with respect to the claimed invalidity of the relevant contract, pursuant to which Trust Fund Services' claims were being pressed; second, that the state supreme court should likewise consider the subsequently rendered Ninth Cir- cuit Court of Appeals Heyman decision a controlling precedent, while disposing of his (Heyman's) petition for review. Recognizing that Section 301 of the Labor Man- agement Relations Act did not destroy the "established jurisdiction of state courts" over suits to enforce labor contracts-while requiring state tribunals to follow "the federal law, as fashioned by the federal courts" when disposing of such cases-the state supreme court de- clared, nevertheless, that neither of the Federal court de- terminations noted could reasonably be considered "con- trolling precedents" with regard to the claimed invalidity of the contract underlying the state litigation. The court noted that: * . . [The] federal district court lacked jurisdiction to set aside the contract and particularly to set it aside on the ground that an unfair labor practice was involved. The jurisdiction bestowed upon fed- eral district courts in 29 U.S.C. Section 185(a) [Sec- tion 301(a) of the Labor-Management Relations Act of 1947] is jurisdiction to enforce contracts, not to invalidate them .... We are cited to no case, other than the one decided by the federal district court in this instance, in which a federal court has rescinded a contract under the authority of Section 185 . .. . But assuming that such jurisdiction exists, a court cannot grant rescission on the basis of an unfair labor practice. The NLRB has exclusive original jurisdiction to determine unfair labor prac- tices. [Citing San Diego Building Trades Council v. Garmon, supra, with other cases.] There are cases in which the state and federal courts may function even though unfair labor practices are involved, as where . . . a breach of contract is also, and inciden- tally, an unfair labor practice [citing Amalgamated Association of Street, Electric Railway and Motor Coach Employees v. Lockridge, 403 U.S. 274, 297 (1971) . . . It is not suggested that any of these ex- ceptions [to the general rule with respect to NLRB's exclusive original jurisdiction] was applica- ble in [Heyman's] federal court action .... We must conclude that the [Ninth Circuit panel] deci- sion, overlooking as it did the fact that the federal district court did not have jurisdiction over the sub- ject matter before it, is out of harmony with the language, as well as the policy and purpose of the NLRA and the United States Supreme Court cases which have construed it .... [It] is not persuasive precedent in this action. Substantially, therefore, the State of Washington su- preme court confirmed Heyman's responsibility to make health and welfare and pension trust fund contributions contractually required, despite the Ninth Circuit Court of Appeals' refusal to confirm a Board determination that his prior failure to maintain such contribution payments, coupled with his subsequent refusal to deal with the labor organization concerned, constituted a statutorily proscribed refusal to bargain. (2) The case's relevance and significance With matters in this posture, Respondent's previously noted contention-that the Ninth Circuit's recent Heyman decision should be considered a persuasive pre- cedent herein, pursuant to which this Board should now deem the Federal district court's disposition of Com- plainant Union's petition resjudicata with respect to their contract's current viability- clearly merits further dis- cussion. Upon due consideration, I have-with all due re- spect-concluded that the Ninth Circuit's decision pro- vides no persuasive justification for Board deference herein to the relevant Federal court determination pre- mised upon Complainant Union's purported "repudi- ation" or "abandonment" with respect to contractual ar- rangements previously negotiated. My reasons-but- tressed with some explication where germane, together with relevant citations-may be summarized as follows: First: Consistent with the State of Washington supreme court's decision, previously noted herein, I have conclud- ed that the Ninth Circuit Court of Appeals, within its Heyman decision, found a district court judgment worthy of resjudicata or collateral estoppel deference, de- spite conceivable questions which could arguably have been raised regarding the district court's lack of subject matter jurisdiction. Whether Section 301, which permits district court suits for labor contract violations, would likewise permit suits for labor contract rescissions need not be considered; suffice it to say that no language, within the relevant court decisions, suggests that Federal courts, when requested to enforce collective-bargaining contracts, may deny enforcement decrees solely on claimed "unfair labor practice" grounds. Within the Su- preme Court's Lockridge decision, supra at 301, Mr. Jus- tice Harlan declared the principle of Smith v. Evening News applicable solely to those disputes which are gov- erned by the terms of the collective-bargaining agree- ment itself. Further, compare Farmer, Special Administra- tor v. United Brotherhood of Carpenters and Joiners of America, Local 25, 430 U.S. 290, 301-305 (1977), in this connection. Decisions which could have been, or should have been, considered preempted-consistently with San Diego Building Trades Council v. Garmon rationale-may not warrant deference, when proffered as dispositive in collaterally related administrative proceedings. Second: Herein, the district court's dismissal of Com- plainant Union's petition to compel arbitration-unlike the court's rescission decree given deference in Heyman's situation-did not derive from any determination that some "unfair labor practice" had been committed. How- ever, the district court may likewise have lacked subject BAY AREA SEALERS 109 110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD matter jurisdiction, though for a different reason. When pleading responsively to Respondent's contract "repudi- ation" defense-before the district court judge-Com- plainant Union contended, consistent with a Supreme Court and several courts of appeals decisions, that con- tract "repudiation" and "abandonment" defenses could not properly be considered preliminarily by courts in proceedings to compel arbitration, but that such defenses should be referred for determination within the arbitral process. International Union of Operating Engineers, Local 150, AFL-CIO v. Flair Builders, Inc., 406 U.S. 487, 491- 492 (1972); Local 81, American Federation of Technical Engineers, AFL-CIO v. Western Electric Company, Inc., 508 F.2d 106, 109 (7th Cir. 1974); H & M Cake Box, Inc. v. Bakery and Confectionery Workers International Union of Amercia, Local No. 45, 493 F.2d 1226 (Ist Cir. 1972); General Dynamics Corp. v. Local 5, Industrial Union of Marine and Shipbuilding Workers of America, AFL-CIO, 469 F.2d 848 (Ist Cir. 1972); see, also, Granny Goose Foods, Inc. v. Brotherhood of Teamsters & Auto Truck- drivers Local No. 70, 88 LRRM 2029, 2031-34, 76 LC10,710 (D.C. Cal.); Local No. 552 United Brick and Clay Workers of America, AFL-CIO v. Hydraulic Press Brick Company, 371 F.Supp. 818 (E.D.Mo., 1974); Oper- ating Engineers Local 542 v. Penn State Construction, Inc., 356 F.Supp. 512 (D.C. Pa.). The district court herein, nevertheless, seems to have rejected Complainant Union's contention, sub silen io, since it permitted Re- spondent partnership to produce record support for its contract "repudiation" claims. Complainant Union then proffered no evidence calculated to contradict Respond- ent's factual presentation; it merely reasserted its legal deferral contention. The district court judge thereupon found Respondent's contract "repudiation" defense meri- torious. With matters in this posture, the District Court's determination purportedly bottomed upon Respondent's factual presentation-though technically "final" pending possible appellate reversal-may arguably be considered unworthy of res judicata or collateral estoppel deference because rendered without proper subject matter jurisdic- tion. Third: Quoting another court, one court of appeals has declared that "[When] traditional concepts of res judicata do not work well, they should be relaxed or qualified to prevent injustice." United States v. Smith, 482 F.2d 1121, 1123 (8th Cir. 1973); see Davis, Administrative Law of the Seventies, sec. 10.83, p. 431. Since the district court's determination-which Respondent would have the Board consider dispositive-derives from a record wherein no true "issue" had been joined, and no factual conflicts resolved, with respect to Respondent's "repudi- ation" defense, the present case may well present a situa- tion wherein the court's judgment-in the interest of jus- tice-should not be considered controlling; Respondent's defensive contention then could be considered herein with reference to a fully developed record. Fourth: Despite the Ninth Circuit's comment, that a failure to give the district court's judgment some effect "would here render Section 301 nugatory" and defeat a congressional purpose to provide alternative forums for the consideration of contract violations which might concurrently be considered unfair labor practices, I note that one Court of Appeals has declared an 8(b)(4)(D) de- termination, bottomed upon a prior 10(k) proceeding, ju- dicially enforceable-while concurrently vacating a dis- trict court judgment, previously rendered in Section 301 proceedings, wherein a judicially mandated arbitration award, diametrically in conflict with the Board's subse- quent work assignment determination, had been con- firmed. New Orleans Typographical Union No. 17 v. N.L.R.B., et al., 368 F.2d 755, 757, 763, 766-767 (5th Cir. 1966). The court therein did hold that pending Board proceedings, pursuant to Sections 8(b)(4)(D) and 10(k), had not preempted the district court's Section 301 juris- diction to compel contractual arbitration, and thereafter to compel compliance with the consequent arbitral deci- sion. Nevertheless, the court held that, when rendered, this Board's final determination, regarding the work as- signment dispute which both tribunals had considered, took "precedence" over the District Court's disposition of Section 301 arbitration proceedings. In Heyman, the Ninth Circuit noted that New Orleans Typographical Union was distinguishable, since no ques- tions had been raised therein regarding some underlying contract's viability. Nevertheless, the Fifth Circuit's deci- sion certainly reflects a judicial recognition that-with respect to matters clearly resolvable within this Board's jurisdictional competence- determinations by the Board may take precedence over previously rendered district court judgments conflicting therewith. Further, I note the Sixth Circuit Court of Appeals' recognition that contradictory determinations, reached by this Board in one case and by a district court in Sec- tion 303 proceedings, may both stand. See N.L.R.B. v. Deena Artware, Inc., 198 F.2d 645, 652-653 (6th Cir. 1952); and United Brick & Clay Workers of America v. Deena Artware, Inc., 198 F.2d 637, 642-643 (6th Cir.); Gentry Industrial Service v. United Slate, Tile and Con- struction Roofers, Anderson Local 250, 87 LRRM 3161, 3163-64, 75 LC¶10,495 (Ct. App. Ind.). Further, see Kipbea Baking Company. Inc. v. Strauss, 218 F.Supp. 696, fn. 5 (Dictum, D.C.N.Y. 1963). The Sixth Circuit, within its decision last cited, confirmed a jury verdict, which it found properly reached, that certain picketing, chal- lenged in district court Section 303 proceedings, merited a damage award. The court then declared: We recognize that this finding is contrary to the finding in the companion case of N.L.R.B. v. Deena Artware Inc., supra, in which the Trial Examiner found that the picketing of the area of construction which caused the cessation of work by the general contractors was on the part of the Teamster's Union and not by the Appellants, which finding we have upheld and on which we have based a ruling in that case. Under our existing system of courts, juries, ad- ministrative agencies, and appellate review, such findings, even though inconsistent, are not invalid, and one does not destroy the other. The two pro- ceedings, even though arising out of the same labor dispute, were heard by separate fact finding agen- cies. The witnesses in the two procceedings were not the same. The cross-examination of some wit- nesses who testified in both proceedings was not by BAY AREA SEALERS III the same attorney. Necessarily, the evidence pro- duced in the different proceedings by such testimo- ny was not identical. Each fact finding agency was entitled to make its own decision, upon the evi- dence before it. Though this Court on review rec- ognizes the inconsistency, and may not be in accord with one of the two rulings if it was making the ruling as a matter of original jurisdiction, it does not have the right to set aside such ruling, if in case of the jury verdict, it is supported by substantial evi- dence, or in.the case of the Labor Board proceed- ing, it is supported by substantial evidence on the record considered as a whole. In our opinion, the respective findings are so supported in each of the two proceedings. Finally, I note the Court's decisional language in N.L.R.B. v. Hutrig Sash & Door Co., Inc., 377 F.2d 963 (8th Cir. 1967). The Eighth Circuit Court of Appeals therein considered a respondent firm's contention that the Board lacks jurisdiction to determine whether Sec- tion 8(a)(5) has been violated, (a) whenever the Board would be required, preliminarily, to interpret a collec- tive-bargaining contract, or (b) whenever the relevant contract contains grievance procedure and arbitration provisions. The court considered both N.L.R.B. v. C & C Plywood Corp., 385 U.S. 421 (1967), and NL.R.B. v. Acme Industrial Co., 385 U.F. 432 (1967); it concluded that this Board had not exceeded its jurisdiction. In that connection, the court declared: We detect in the two decisions [C & C Plywood, and Acme Industrial Co. a desire, and perhaps even a policy, on the part of the Court to give impetus to the various ways of settling labor disputes; to expe- dite these matters; to avoid delay either in the courts or in the arbitration process; to emphasize and protect, in cases of doubt, and to give priority to, statu- torily declared rights; to regard as no more than sec- ondary any contract interpretation aspect of what is regarded as basically an unfair labor practice dis- pute or as merely related to primary Board function under the Act; to take a broad and not a narrow or technical approach o the Act and to the multiplicity of channels available for resolving disputes; and not to close the door upon Board expertise when such re- straint is clearly not violative of congressional man- date. [Emphasis supplied.] These judicial comments clearly reflect a generalized reaffirmation of the Board's jurisdictional competence to determine matters properly within its statutorily defined sphere, without being constrained to grant Federal dis- trict court judgments, rendered in closely related Section 301 proceedings, controlling res judicata or collateral es- toppel deference. Fifth: Within its Heyman decision, the Ninth Circuit dealt with a focal point of concern not presented herein. The court of appeals noted, particularly with reference to Heyman's contractual situation, that the Board had, without proper warrant, created a clearly "irrebutable" presumption, with substantive law force when it held (a) that Heyman's concededly signed contract warranted a presumption regarding the majority representative status of the labor organization privy thereto, on the contract's execution date, and (b) that Section 1O(b)'s 6-month stat- ute of limitations precluded Heyman's belated challenge, before the Board in 8(a)(5) proceedings, with regard to the concerned labor organization's presumptive majority status. Within the court's view, Board presumptions with respect to which concerned respondents have been denied fair opportunities for rebuttal do not afford such respondents due process. With respect to Heyman's situa- tion, therefore, the court held that the Board should have given "consideration" to the district court's judg- ment of rescission, consistent with "res judicata" princi- ples, since the Board's definitive refusal to consider that judgment had completely foreclosed Heyman's sole meaningful defense. In this case, however, the Board's failure or refusal to consider the district court dismissal of Complainant Union's petition would carry no compa- rably preclusive consequences. Respondent's partnership could still present-for the record, within this Board proceeding-whatever proofs it could muster, calculated to support its contract "repudiation" or "abandonment" defense. Compare Sierra Development Company d/b/a Club Cal-Neva, 231 NLRB 22, 23, fn. 4, in this connec- tion. And, actually, Respondent partnership has herein made its record. Thus, the situation with which the Ninth Circuit's decision dealt may properly be consid- ered legally and factually distinguishable from the situa- tion presented on this record. Mindful of these considerations, I conclude that the Heyman decision provides no persuasive precedent for a determination herein that the district court's dismissal of Complainant Union's petition for arbitration should, without more, be considered dispositive with respect to the General Counsel's 8(a)(5) contentions. With due regard for the record made before me, those contentions must now be resolved. 3. Respondent's refusal to bargain a. The partnership's contractual commitment With reference to the contractual relationship between Complainant Union and Respondent partnership herein, certain conclusions may properly be considered warrant- ed. First: The record reveals without dispute that Frank Clark, Respondent's partner, communicated his desire to discuss a collective-bargaining contract during a tele- phone conversation with Complainant Union's business representative. While a witness, Gordon Rayner, Clark's partner, further conceded that Moore had been contact- ed because Clark felt unionization would provide "pretty substantial" benefits, and because their firm would prob- ably be seeking "bid contracts" with respect to which a successful contractor's compliance with collectively bar- gained standards might be required. I so find. Second: The record clearly warrants a determination that-directly consequent upon their May 14, 1975, dis- cussion at Respondent's San Jose headquarters-the part- nership's principal spokesman signed Moore's proffered copy of Complainant Union's then-current 1973-75 Asso- BAY AREA SEALERS 'It 112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ciation contract. Thereby, Respondent became a non- member contract signatory, bound for the balance of that contract's designated term. While a witness, Rayner did contend that Clark's sig- nature reflected their firm's "conditional" commitment merely, which was to become a firm commitment fol- lowing some sort of favorable "vote" registered by Re- spondent's workmen. For several reasons-noted previ- ously within this Decision-that contention has been re- jected. Considered in totality, the present record warrants a determination that despite Clark's failure to date his con- tract signature the parties were consensually committed to consider June 1 as their contract's nominal effective date. (Presumably, since the parties were being commit- ted to contractual terms which were subject to modifica- tion or termination some 4-1/2 months thereafter, Moore felt constrained to designate some effective date within the period during which those terms would remain in force.) In correspondence, drafted on May 14 and pre- sumably dispatched on that date, Moore did notify the Parking and Highway Improvement Contractors' Associ- ation, and his Union's national pension fund, that June I would mark Respondent's contractual commitment. While a witness, Complainant Union's business repre- sentative further testified, however, that-consistent with a request which Clark had presented before signing Complainant Union's contract form-he [Moore] had conceded Complainant Union's willingness to deter their contract's complete effectuation, pending Respondent's prospective procurement of contract awards sufficiently sizable to require substantial work crews. Previously within this Decision, Moore's proffered recollection, regarding his declared willingness to refrain from "pushing" contract compliance, until Respondent partnership "got a job" sufficiently large to render their contract's effectuation meaningful, has been credited. Though somewhat anomalous, perhaps, the business rep- resentative's deferral commitment, considered in context, reflected a reasonable accommodation worthy of belief. With respect thereto, the General Counsel's representa- tive, within his brief, cogently notes: Such an agreement was entirely understandable given the circumstances under which Respondent was operating at the time of negotiations. Respond- ent was a small company with limited prospects for the immediate future. Having recently completed its work at Dow Chemical Company, its men were idle and it had only a "handful" of small jobs re- maining to be completed. Moreover, in accordance with industry practice, most jobs had already been bid in February, March, and April, leaving Re- spondent without significant future prospects. Thus, on May 14, Respondent by all appearances was not in a position to obtain work of a material size before Spring 1976. It was in this context that Moore agreed to allow some "running room." Though Respondent partnership did, subsequently, pro- cure a number of contract awards, which-so Rayner testified-kept a significant crew complement busy, be- tween June I and November 1975 continuously, nothing in the present record would warrant a determination that Clark or Rayner had any definite knowledge, with re- spect to their firm's short-term business prospects, when their May 14 contractual consensus with Complainant Union was reached. With due regard for the reasonable probabilities, therefore, I conclude that Clark would most likely have considered himself constrained to re- quest Complainant Union's forebearance-with regard to their contract's effectuation-pending Respondent's de- finitive procurement of some substantial contracts; I reaf- firm my determination herein that Business Representa- tive Moore's testimonial recollecton, with respect there- to, merits credence. Though Respondent's conformance with its contrac- tual commitments had been consensually deferred, those commitments were renewed automatically when the par- ties privy thereto, both Complainant Union and Re- spondent partnership, failed to request their newly signed contract's modification or termination during June 1975, consistent with that document's article XVI require- ments. The designated contractual provision required any party privy thereto-who might desire their agreement's modification, amendment, or termination-to give "the other party" written notice of their desire "during the month of June preceding" their contract's October 1, 1975, termination date. With regard to the timeliness of Complainant Union's contractually mandated written notice to Parking and Highway Improvement Contrac- tor's Association, Inc., relative to their agreement's modification, the record herein must be considered silent. Considered in totality, the record does suggest, more or less persuasively, that Complainant Union's written notice was probably timely served. For present purposes, however, no determination in that regard seems required. There can be no doubt, nevertheless, that Complainant Union's separately prepared July 15 notice, specifically directed to "Bay Area Sealers" alone, because the firm was considered a nonmember signatory contractually bound, was belatedly served. Standing alone, that notice could not have forestalled "automatic renewal" with regard to Respondent's contractual commitments. (Previ- ously within this Decision, the designated letter's mistak- en contract reference, together with its failure to make sense grammatically, have been noted. Nothing within the present record, however, would warrant a determi- nation that the letter's recipients were really misled to their prejudice thereby; Respondent makes no such con- tention herein.) Thus, had Respondent partnership then been confronted with some conflicting representation claim, Complainant Union's contract would have barred any challenge with regard to that organization's repre- sentative status. See Delux Metal Furniture Company, 121 NLRB 995, 1002 (1958). Therein, this Board declared its determination: . . .to eliminate its present rule that a party receiv- ing a late notice under the automatic renewal clause may, by conduct with respect thereto, waive its be- latedness, thereby having the contract treated as though timely notice had been given. .... An un- BAY AREA SEALERS 113 timely notice will, instead, be treated merely as a request for modification by mutual assent unless the parties thereafter clearly terminate the contract Similar rules of construction, should reasonably be con- sidered warranted herein. Complainant Union's belated July 15 notice to Respondent partnership- so I find- merely conveyed that labor organization's request for their contract's modification by mutual consent. Re- spondent, however, neither acknowledged such a re- quest's receipt, nor vouchsafed a reply with respect thereto. Compare The Oakland Press Co., a subsidiary of Capital Cities Communications, Inc., 229 NLRB 476 (1977). The partnership's silence, despite Clark's conced- ed July 21 receipt of Complainant Union's notification letter, sufficed to confirm their contract's automatic re- newal-subject to that document's further provision (pre- viously noted), whereby "contract amendments or condi- tions or wages or hours" negotiated with Association representatives were to become "applicable to and a part or' such a renewed agreement, on that agreement's re- newal date. With Respondent's contractual commitments thus re- newed, subject to possible modification consistent with a contemporaneously renegotiated Association contract, some question could conceivably be raised herein regard- ing the renewed contract's designated term. Was it merely "continued from year to year" following its Oc- tober 1, 1975, renewal-or did Respondent's contract necessarily incorporate new article XVI language found within the renegotiated Association agreement, pursuant to which it would "remain in full force and in effect from October 1, 1975, to October 1, 1978" with a further provision for continuation from year to year thereafter? For present purposes, this question need not be resolved. The General Counsel's complaint herein challenges the propriety of Respondent's course of conduct within its renewed contract's first year; thus, no determination re- garding that document's possible continued viability should be required. However, see Ted Hicks & Associates, Inc., 232 NLRB 712 (1977), in this connection. b. Respondent's contract "repudiation" contention Despite Respondent's testimonial and documentary presentation-proffered to support its contention that Complainant Union had, sometime before its renewed July 1976 demands for contract compliance, repudiated or relinquished its collective-bargaining role-no deter- mination would be herein warranted that Complainant Union had "repudiated" or decisively "abandoned" col- lective-bargaining relations with Respondent partnership. My conclusion, that Respondent partnership's defensive contention merits rejection for lack of persuasive record support derives from several considerations. First: Respondent's reliance upon Complainant Union's presumptive failure to police its contract or press for the partnership's compliance therewith-for 13 months- must be considered misplaced. Complainant Union's for- bearance merely reflected the organization's good-faith willingness to comply with Respondent's request that their contract's full-scale effectuation should be deferred. Respondent, though it contends that Business Repre- sentative Moore had consented to consider June 1, 1975, their contract's effective date, notes in his testimony that Complainant Union was really committed to refrain from "pushing" for contract compliance pending Respondent's procurement of sufficient work to render their contract's effectuation meaningful. And, since Respondent partner- ship subsequently received a significant number of con- tract awards during 1975's midsummer months, which its crew completed between mid-June and November of that year, the firm suggests that Complainant Union's failure to press for contract compliance during the 6- month period designated constituted "laches" sufficient to negate their continued contractual relationship. With respect to this contention, the General Counsel's repre- sentative notes that: Nowhere in the record is there a showing that Re- spondent advised the Union, or that it obtained in- dependent information, about Respondent's volume of work during the fall and winter of 1975, or at any subsequent time. The only information passed by Respondent to the Union during this period in- volved a request for copies of the health and wel- fare plan and collective-bargaining agreement . . . Additionally, Moore had no reason to suspect Re- spondent had obtained jobs of any substance in light of the industry's bidding practice and Respondent's general compliance with the wage terms of the con- tract. I find these observations, proffered with record support, persuasive. In this connection particularly I note Re- spondent's tacitly conceded failure to notify Complainant Union's business representative-despite the primary knowledge, which both of the firm's partners must have shared, regarding its resurgent 1975 business volume and business prospects-that some reciprocal effectuation of their respective contractual commitments would then be warranted. Frank Clark had-for reasons which he con- sidered good and sufficient-solicited Moore's contrac- tual proposals. And, subsequently, when Respondent's sustained business volume and manpower utilization had presumably reached levels with respect to which some mutual compliance with contract terms might reasonably have been considered feasible, necessary, or desirable, Respondent's partners certainly could have notified Complainant Union's business representative. Since they had concededly considered collective bargaining initially reasonably calculated to promote their personal and busi- ness concerns, they may properly be faulted for their failure to provide Complainant Union with information regarding their relatively substantial business volume. In any event, their present contention that Business Repre- sentative Moore should be considered blameworthy- solely because he failed or neglected to procure informa- tion regarding their business operations from secondary sources-surely merits rejection. Second: Business Representative Moore's conduct sub- sequent to Respondent's May 14 contractual commitment reflects neither Complainant Union's lack of capacity to represent Respondent's workmen, nor its lack of willing- BAY AREA SEALERS 113 114 DECISIONS ()F NATIONAL LABOR RELATIONS BOARD ness to do so. In Hershey Chocolate Corporation, 121 NLRB 901, 911 (1958), the Board reaffirmed its deci- sional principle that a collective-bargaining representa- tive will be considered defunct when "unable or unwill- ing" to represent workers. In Road Materials. Inc., 193 NLRB 990, 991 (1971), this principle was subsequently held applicable with respect to situations wherein labor organizations have been charged with "abandoning" their putative contract's administration. I note, in this connection, Moore's letters-promptly dispatched to the Parking and Highway Improvement Contractors Association, and its parent organization's na- tional pension fund-that Respondent had become a con- tract signatory. The record is silent with respect to whether Respondent was thereafter provided with na- tional pension fund report forms, or whether the firm was requested to forward fund contributions. Rayner's testimony, however, warrants a determination that Re- spondent was promptly provided with Association report forms, and that some Association representative later so- licited the firm's contributions for the Parking Area In- dustry Education Fund described within the Association contract's preamble. Clearly, Respondent's partners were thereby put on notice-particularly with regard to their responsibility for Education Fund contributions with re- spect to which Complainant Union shared no direct con- cern that they were considered contractually bound. Their response-so Rayner's estimony shows-was lim- ited to pleas that they had never been properly advised with respect to the nature and scope of their contribution commitments; they never took positive steps themselves to determine what these obligations were. Further, I note Complainant Union's July 15, 1975, no- tification, dispatched to Respondent partnership, that the organization's "proposals for amendment" with respect to their 1973-75 collective-bargaining contract would shortly be submitted, and that comparable proposals, from the partnership, would be received. This July 15 letter-though it may not have been dispatched consist- ent with article XVl's notice requirement, within the contract which Respondent's partner had signed just 2 months previously-clearly constituted a sufficient notice that Complainant Union considered their collective-bar- gaining relationship viable despite Business Representa- tive Moore's verbal commitment to refrain from "push- ing" for contract compliance. Respondent's partners, however, vouchsafed no response. They neither con- firmed, questioned, nor repudiated their contractual com- mitment previously manifested. They never suggested a desire to participate in negotiations looking toward their contract's modification. Previously within this Decision, I have found Re- spondent's silence reflective of the partnership's willing- ness to permit their contractual commitment's automatic renewal, subject to whatever modifications Complainant Union and the Parking and Highway Improvement Con- tractors Association might negotiate. At this point, I note further that Respondent's failure to respond, when con- fronted with Complainant Union's notification letter, within 9 weeksfollowing their contract's negotiation, consti- tuted a tacit acknowledgment with respect to that con- tract's continued life. Thereafter, concededly, Complainant Union made no cognizable effort, for many months, to police Respond- ent's contract compliance; so far as the record shows, Respondent partnership was never supplied with a copy of the labor organization's renegotiated Association con- tract. Previously within this Decision, however, I have found that Complainant Union's quiescence derived from those representations-proffered by Clark and Rayner specifically-which persuaded Business Representative Moore that Respondent's contract projects and manpow- er requirements would be nonexistent or miniscule, possi- bly for 12 months thereafter. With matters in this pos- ture, Respondent's contention now that Complainant Union knowingly "failed" or "neglected" to discharge its responsibilities as representative of Respondent's work- men carries no persuasion. Third: Respondent's further contention-that Com- plainant Union, despite its receipt of several telephone requests for "information" with regard to Respondent's precise contractual commitments, neglected to respond- merits rejection likewise. Should the Board consider a determination warranted, arguendo, that Rayner did tele- phone Complainant Union's headquarters twice, without result, Moore's failure to return those calls could not rea- sonably have persuaded Respondent's partner, under the circumstances, that Complainant Union had relinquished its previously conceded representative status. Rayner had merely requested Moore's response without describing his call's purpose. When, during his third telephone call, Rayner did finally request "information" particularly with regard to Respondent's contractual trust fund con- tribution commitments, and with regard to medical bene- fits for which Respondent's workmen might qualify, his queries were at least partially satisfied; Complainant Union's office secretary sent Respondent a brochure, wherein the "health and welfare" benefits provided for contractually covered workmen were described. Though Respondent's partner arguably may never have been supplied with extra copies of Complainant Union's 1973-75 contract, nor with a definitive verbal or written recapitulation of Respondent's trust fund contri- bution commitments, the Union's nonfeasance, though re- grettable, provides no definitive demonstration that its business representative "never intended to establish a real bargaining relationship" covering Respondent's work- men. Compare Glenlynn, Inc. d/b/a McDonald's Drive In Restaurant, 204 NLRB 299, 302-303, 308-309 (1973), in this connection. Previouily within this Decision, Rayner's claim that Respondent was never supplied with a legible contract copy has been rejected. Should the Board nevertheless consider a determination warranted, arguendo, that Complainant Union's headquarters negli- gently failed to provide further contract copies, such fail- ures-considered in context-demonstrate no lack of willingness to police a current contract. I note, in this connection, that-during August and September 1975 particularly- Complainant Union's Association contract was being renegotiated. Respondent's contractual com- mitments, therefore, would presumably have been sub- ject to modification, shortly. Complainant Union's head- quarters personnel could conceivably have concluded BAYAREA SEALERS 115 that supplying Respondent with copies of a contract scheduled for replacement would constitute a meaning- less gesture. In this connection, I note further that Respondent's partners, despite their putative failure to receive satisfac- tion following telephone calls, never sent Complainant Union's business representative a written request for con- tract copies, wherein their trust fund contribution com- mitments could be found. Having failed to provide Com- plainant Union with timely notice that their negotiated or renewed contract's prompt effectuation would be warranted, necessary, or desirable, Respondent's partners can hardly contend, persuasively, that their purported telephone requests for contract "information" should have been taken more seriously, or that Business Repre- sentative Moore's failure to respond reflected his "repu- diation" with respect to their contractual consensus. Fourth: Business Representative Moore, though con- cededly questioned by Respondent's employee McCabe regarding his "medical benefits" coverage, never was told that partnership workmen had performed sufficient 1975 work to qualify for "Health and Welfare and Dental" benefits, consistent with Exhibit "B" Schedule "A" within Complainant Union's current Association contract. And McCabe, so Moore credibly testified, was never flatly denied benefit coverage; responding to his query, Moore notified him that his "eligibility" for fund- financed medical benefits bottomed upon "banked" hours worked for a different, contractually covered firm had been exhausted. McCabe did not-so far as the present record shows-question Moore's report; specifically, Complain- ant Union's business representative was never told, by Respondent's workman that he (McCabe) should have received health and welfare fund credit for hours worked in Respondent's hire. (McCabe did not testify. According to Rayner, he merely proffered a hearsay report-following a telephone conversation with Com- plainant Union's business representative-that he had been told he did not have coverage.) In short, Complain- ant Union was never really called upon to take affirma- tive action on behalf of Respondent's employees. Busi- ness Representative Moore's response when confronted with McCabe's simple question hardly constitutes a per- suasive "showing" that Complainant Union lacked a will- ingness to represent Respondent's contractually covered workmen. With matters in this posture, Respondent's contract "repudiation" or "abandonment" defense merits rejection for lack of record support. Certainly, no determination could be considered warranted herein that "the parties never entered into a true collective-bargaining relation- ship." Compare Glenlynn Inc. d/b/a McDonald's Drive-In Restaurant, supra; Bender Ship Repair Company, Inc., 188 NLRB 615, 616 (1971); Ace-Doran Hauling & Rigging Co., 171 NLRB 645, 646 (1968). Likewise, the present record suggests something more than a casually generat- ed "intermittent" collective-bargaining relationship, con- sensually punctuated with "unilateral and bilateral" con- tract modifications. Compare Hill Plumbing Company, et al., 190 NLRB 232, 233 (1971). Complainant Union cannot be charged fairly with definite conduct constitut- ing a complete "repudiation, abandonment or total breach" with respect to contractual commitments previ- ously memorialized, sufficiently gross to warrant Re- spondent's determination that its commitments might properly be considered nugatory. Boeing Airplane Com- pany v. Aeronautical Industrial District Lodge No. 751, In- ternational Association of Machinists, 91 F.Supp. 596, affd. 188 F.2d 356 (9th Cir. 1951). Nor has any showing been made herein that Complainant Union's failure to press, promptly, for Respondent's contract compliance persuad- ed partnership employees to prepare or file a timely de- certification petition. Compare Colonial Manor Convales- cent & Nursing Center, 188 NLRB 861 (1971), with Bio- Medical Applications of New Orleans, Inc. d/b/a Greater New Orleans Artificial Kidney Center, 233 NLRB 1467, 1468 (1977). Should the Board nevertheless consider a determination warranted, arguendo, that Complainant Union had, for a time, been "negligent" with respect to discharging its responsibility to police Respondent's con- tract compliance, the present record would call for a finding that Respondent's contractually covered work- men have failed properly to avail themselves of opportu- nities to utilize Complainant Union's service. Road Mate- rials, Inc., supra. In short, no quintessential predicates for Respondent's contract "repudiation" contention have been provided. c. Respondent's unilateral conduct With Respondent partnership's substantive defense re- jected, the propriety of the firm's course of conduct within the period with which this case is concerned re- quires consideration. The statute, within an 8(d) proviso, declares that- where a collective-bargaining contract has been negotiat- ed and given effect-the duty to bargain collectively "shall also mean that no party to such contract shall ter- minate or modify such contract" save in situations where proper notices regarding the contract's proposed termi- nation or modification have been given the other parties privy thereto; where the party desirous of termination or modification has offered to meet and confer with other parties for the purpose of negotiating a new or modified contract; and where timely notification has been given certain specified Federal and state agencies. A failure or refusal to bargain collectively-conformably, inter alia, with those requirements-constitutes a statutorily defined unfair labor practice, which Section 8(a)(5) proscribes. Herein, there can be no doubt that Respondent's part- ners, together with their corporate successor, Bay Area Sealers, Inc., have withdrawn recognition from Com- plainant Union as their workers' designated and selected collective-bargaining representative; that they have failed and refused to acknowledge, honor, implement or comply generally with terms and conditions of work set forth within a collective-bargaining contract previously negotiated with Complainant Union, and subsequently renewed for a further term; that they have-more par- ticularly-failed and refused to provide certain contrac- tually mandated contributions for "Health and Welfare" and "Pension" trust funds; and that they have unilateral- ly provided a separately funded "medical benefit" pro- gram, together with sick leave and vacation benefits for BAY AREA SEALERS 115 116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD their workers, without regard for consensually negotiat- ed contractual commitments. With due regard for Rayner's testimonial concessions, previously noted herein, I so find. The repudiation of a valid, subsistent collective-bar- gaining contract clearly violates the statute. N.L.R.B. v. Hydes's Supermarket, 339 F.2d 568, 572 (9th Cir. 1964). Board determinations to that effect have been sustained regardless of the particular respondent employer's state of mind. N.L.R.B. v. M. & M. Oldsmobile, Inc., 377 F.2d 712, 716-717 (2d Cir. 1967); N.L.R.B. v. Bardahl Oil Company, 399 F.2d 365, 369-370 (8th Cir. 1968); Old King Cole, Inc. v. N.L.R.B., 260 F.2d 530, 532 (6th Cir. 1958). "There are situations in which it is not enough that an employer is convinced he is right." N.L.R.B. v. M & M Oldsmobile, Inc., supra at 716; this is one of them. The fact that Respondent's partners have repudiated con- tractual commitments midway through their term's re- newed term might likewise constitute a breach of con- tract, for which Complainant Union may have another remedy, specifically a Section 301 suit for damages or contract enforcement. That possibility, however, cannot displace this Board's jurisdiction to deal with and remedy unfair labor practices committed. Compare Rego Park Nursing Home, 230 NLRB 725-727 (1977); Nassau County Health Facilities Association, Inc., et al., 227 NLRB 1680 (1977), and cases therein cited; see, further, Cartwright Hardware Co., Inc., 229 NLRB 781 (1977), and Hexton Furniture Company, supra, in this connection. Concurrently with its claimed "release" from contrac- tual commitments negotiated consensually with Com- plainant Union herein, Respondent partnership conceded- ly procured its separate "medical benefit" coverage for partnership employees, though the firm could have pro- cured such benefits, for covered workers, through con- tractually mandated contributions to Complainant Union's "Health and Welfare and Dental" trust fund. Further, Respondent partnership-so Rayner's testimony shows-promulgated sick leave and vacation leave poli- cies separately. The Board has consistently found con- cerned employers responsible for statutorily proscribed "refusals to bargain" when they have changed terms and conditions of employment, without giving a contractual- ly recognized labor organization proper opportunities to bargain with regard to such changes. Modifications with regard to contractually mandated health and welfare, pension and vacation programs-together with sick leave policies-clearly "affect" terms and conditions of work. Herein, Respondent partnership's failure or refusal to remit contractually required contributions to Complain- ant Union's health and welfare and pension funds, and the partnership's unilateral procurement of separate "medical benefit" coverage for contractually covered workers, together with its unilateral promulgation of sick leave and vacation policies, reflect separately cognizable refusals to bargain, statutorily proscribed. See, e.g., Ted Hicks and Associates, Inc., 232 NLRB 712 (1977); Walter E. Heyman d/b/a Stanwood Thriftmart, 216 NLRB 852. And Respondent's subsequent refusal to concede the pro- priety of Complainant Union's July 1976 demand for contract compliance likewise constituted a withdrawal of recognition and refusal to bargain, violative of Section 8(a)(5) and (1) of the statute. The record herein provides no definitive information with respect to Respondent partnership's wage rate schedule, throughout the period with which this case is concerned, save for several sug- gestions that partnership workers did receive compensa- tion which may possibly have matched Complainant Union's contractually defined wage rate schedules. Upon this record therefore, no determination would now be warranted that Respondent partnership has modified wage schedules without regard for its prior contractual commitments; the Board's conclusions, with respect to whether remedial readjustments of Respondent's wages paid and payable may be required, must be deferred pending compliance proceedings. Within his complaint, the General Counsel's repre- sentative has further charged Respondent with "failing and refusing to arbitrate grievances arising under the col- lective-bargaining agreement" with which this case has been concerned. Those grievances, so far as the record shows, relate exclusively to Respondent's withdrawal of recognition and refusal to bargain, Respondent's failure to provide contractually required trust fund contributions, and Respondent's patently "unilateral" changes with re- spect to certain terms and conditions of work. Since the firm's course of conduct-thus summarized-has been found herein, deserving of statutory proscription, and since Respondent's future compliance with specific reme- dial directives, which will be found set forth hereinafter, would provide Complainant Union and Respondent's contractually covered workers with complete relief, no present determination, with regard to Respondent's fail- ure or refusal to arbitrate grievances seems required. Thus, questions which conceivably could be raised, with regard to whether such a failure or refusal to participate in contractually mandated arbitration may properly be deemed a statutory unfair labor practice, need not be considered. Within their respective briefs, the General Counsel's representatives and Complainant Union's counsel, have taken slightly divergent positions with respect to when Respondent's withdrawal and refusal to bargain became manifest, and with respect to which particular date should mark the commencement of Respondent partner- ship's obligation relative to contract compliance. The record herein suggests rather persuasively that Respondent's business, and consequent manpower re- quirements, may really have reached comparatively sub- stantial levels within the 6-month, June-November 1975 period, sufficient to call for some notice to Complainant Union that their May 14 contract's effectuation would be warranted. However, Complainant Union's charge herein was filed July 26, 1976; Section 10(b) of the statute therefore would preclude any determination now that Respondent partnership's putative 1975 failures of com- pliance, with respect to contractual requirements, consti- tuted proscribed refusals to bargain. Complainant Union seeks a determination therefore that Respondent partnership repudiated its contractual commitments in June 1976, presumably because the firm had, sometime within that month, reached (for the first time within 10(b)'s limitation period) levels of business BAY AREA SEALERS 117 operation and manpower utilization which should have warranted their contract's effectuation. The General Counsel's representatives, however, have requested a re- medial directive, pursuant to which Respondent would be required to restore contractually mandated benefits, with a July 1976 retroactive date. This request, though proffered without a supportive rationale, may possibly have been bottomed upon the General Counsel's demonstration that Complainant Union received notice, with respect to Respondent's suc- cessful bid for Sacramento County's road repair contract, sometime during the month designated; Business Repre- sentative Moore and Complainant Union's counsel clear- ly pressed Respondent's partners thereafter for compli- ance with their contractual commitments. Upon this record, I consider a determination appropri- ate that Respondent's withdrawal of recognition and consequent refusal to bargain became manifest-despite Complainant Union's lack of formal notice with respect thereto-sometime during June 1976, when Clark and Rayner failed or refused to call for their previously ne- gotiated and renewed contract's effectuation, consistent with consensual understandings previously reached. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Respondent's course of conduct set forth in section III, above, occurring in connection with Respondent's busi- ness operations set forth in section 1, above, a close, inti- mate, and substantial relationship to trade, traffic, and commerce among the several States; absent correction, such conduct would tend to lead to labor disputes bur- dening and obstructing commerce, and the free flow of commerce. In view of these findings of fact, and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Respondent Gordon L. Rayner and Frank H. Clark, d/b/a Bay Area Sealers, and its conceded successor, Bay Area Sealers, Inc., are, employers within the meaning of Section 2(2) of the Act, engaged in commerce and busi- ness activities which affect commerce within the mean- ing of Section 2(6) and (7) of the Act, as amended. 2. Auto, Marine & Specialty Painters Union, Local No. 1176, is a labor organization within the meaning of Section 2(5) of the Act, which admits certain employees of Respondent and Bay Area Sealers, Inc., to member- ship. 3. All employees of Respondent and/or Bay Area Sealers, Inc., excluding office clerical employees, guards and supervisors as defined in the National Labor Rela- tions Act, as amended, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act, as amended. 4. Throughout the period with which this case is con- cerned, Auto, Marine & Specialty Painters Union Local No. 1176, has been, and remains the exclusive representa- tive of employees within the unit hereinabove defined, for the purposes of collective bargaining with respect to their rates of pay, wages, hours of employment and other terms and conditions of employment. By their refusal to recognize and bargain collectively during June 1976 and thereafter with the labor organization herein designated; by their unilateral changes with regard to certain em- ployee fringe benefit programs defined within a collec- tive-bargaining contract, absent compliance with certain prerequisite procedural steps defined within Section 8(d) of the Act, as amended; by their failure or refusal to make contractually required payments to the designated labor organization's health and welfare and pension trust funds; and by their failure and refusal to acknowledge, honor, implement, or comply generally with the terms and conditions set forth within a subsistent collective- bargaining contract with Auto, Marine & Specialty Painters Union Local No. 1176, with respect to which they may properly be considered bound, Respondent and Bay Area Sealers, Inc., have engaged in, and continue to engage in, unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, as amended. 5. The aforesaid unfair labor practices are unfair labor practices which affect commerce within the meaning of Section 2(6) and (7) of the Act, as amended. THE REMEDY Since I have found that Respondent has committed and has thus far failed to remedy certain specific unfair labor practices which affect commerce, I shall recom- mend that it be ordered to cease and desist therefrom and to take certain affirmative action, including the post- ing of appropriate notices, designed to effectuate the policies of the Act, as amended. [Recommended Order omitted from publication.] SUPPLEMENTAL DECISION STATEMENT OF THE CASE MAURICE M. MILIER, Administrative Law Judge: Pursuant to Board directives which will be summarized hereinafter, this consolidated matter was heard on Octo- ber 25, 1978, and June 26, 1979, in San Jose, California, before me. The case's prior history warrants recapitula- tion. 1. The original case Upon duly filed charges and the General Counsel's duly served complaint served (followed by a formal hearing bottomed thereon), my decision in Case 32-CA- 98 (dated March 23, 1978) was served on the parties. Therein, I found, inter alia that Respondent, a partner- ship (which, shortly before the General Counsel's case was heard, had become a California corporation), had violated Section 8(a)(5) and (1) of the statute by refusing to bargain with Complainant Union and by "refusing to acknowledge, honor, implement or comply with the col- lective bargaining contract" which Respondent had ne- gotiated with Complainant Union on May 19, 1975, fol- lowing that contract's subsequent renewal for a 3-year term, with an October 1, 1978, termination date. With respect to my decision, Respondent filed excep- tions, plus a supporting brief. Relying on the Supreme Court's decision in NL.R.B. v. Iron Workers, Local BAY AREA SEALERS 117 118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union No. 103, International Association of Bridge, Struc- tural and Ornamental Iron Workers, AFL-CIO, (Higdon Contracting Co.), 434 U.S. 335 (1975), and collaterally de- rivative Board Decisions, Respondent's counsel contend- ed (for the first time) that my Decision reflected failures to find: first, that Respondent, throughout the relevant period, was an employer primarily engaged in the build- ing and construction industry; second, that the May 1975 contract which Respondent and Complainant Union had negotiated was a mere "prehire agreement" within the purview of Section 8(f) of the statute; third, that Re- spondent had lawfully refused to effectuate the contract, during its initial term and purportedly renewed term, be- cause Complainant Union had "neither possessed nor demonstrated" majority representative status in May 1975 when the contract was signed, or during June-July 1976, when Complainant Union had demanded compli- ance therewith. Upon these stated grounds, Respondent sought the complaint's dismissal or, alternatively, the case's remand for further hearing concerning the firm's newly raised "pre-hire" contentions. 2. The second case In the meantime, shortly before my March 1978 Deci- sion issued, Complainant Union's counsel had, by letter, requested Respondent to make its 1976-77 payroll rec- ords "available for inspection" by Complainant Union, because of that designated organization's claimed status as the "authorized representative" of Respondent's work- men. Respondent through its corporate president, Gordon Rayner, had denied Complainant Union's re- quest to inspect the firm's payroll records. Upon a charge which Complainant Union had thereupon filed shortly after my Decision's issuance, the General Coun- sel had served a complaint on Respondent dated April 28, 1978 (Case 32-CA-824); therein, the General Counsel had charged Respondent with 8(a)(5) and (1) violations, bottomed upon the firm's March 1978 refusal to comply with Complainant Union's request to inspect the firm's designated payroll records. Respondent's duly filed answer had requested this second complaint's dismissal; the firm had contested the General Counsel's assertion that Complainant Union held majority representative status, with respect to Respondent's workmen, within any conceivably appropriate bargaining unit. On June 1, 1978, the General Counsel filed motions to consolidate Case 32-CA-824 with Case 32-CA-98, and to grant summary judgment with respect to Case 32- CA-824, contending that no questions of fact or law pre- sented therein would require a hearing for their disposi- tion. 3. The Board's remand On August 4, 1978, the Board issued an Order consoli- dating cases, remanding proceeding for further hearing, and denying Motion for Summary Judgment; therein, the Board directed me to receive evidence with respect to Complainant Union's request to inspect Respondent's payroll records. Further, the Board directed me to re- ceive "evidence" proffered in light of Higdon Contracting Co., supra, relating to Respondent's newly raised con- struction industry and "pre-hire" contentions, and Sec- tion 8(f)'s applicability to the consolidated cases. 4. The proceedings on remand On October 25, 1978, the remand hearing with respect to these consolidated cases commenced. Respondent proffered testimonial and photographic evidence calcu- lated to demonstrate its primary "engagement" within the building and construction industry; that testimony was received without challenge or contradiction. Further, however, Respondent's counsel-contending that the Board's remand directive mandated a full in- quiry regarding Complainant Union's majority repre- sentative status during May 1975 specifically-sought to introduce testimony and documentary evidence calculat- ed to reveal, inter alia, the size and composition of Re- spondent's total employee complement, at the time of Complainant Union's recognition demand, and their col- lective-bargaining contract's consequent execution. The General Counsel's representative and Complainant Union contended that Respondent's testimonial and documen- tary proffers-which clearly reflected the firm's purpose to challenge and relitigate various factual determinations. within my prior decision herein above noted, concerned with Complainant Union's majority representative status during May 1975, and various material periods thereafter-should, consistent with "settled [decisional] principles" and con- ventional Board practice, be considered precluded. Confronted with these conflicting contentions regard- ing the nature and scope of Respondent's proffered "evi- dence" which the Board's remand directives, properly construed, would require or permit, I concluded that Re- spondent should not be permitted to proffer previously available business records and/or related testimony-spe- cifically for the purpose of challenging or contradicting my prior factual determinations-with respect to Complainant Union's May 1975 procurement of designation cards from Respondent's workmen, the firm's total employee complement within a presumptively appropriate bargain- ing unit when Complainant Union sought recognition and Respondent's contractual commitment, or Complain- ant Union's consequent majority representative status when Respondent's principal, Frank Clark, memorialized his firm's formal adherence to that labor organization's industrywide contract. Respondent's counsel was, how- ever, notified that testimonial and documentary proffers limited in purpose would be received, calculated to reveal Respondent's personnel recruitment procedures, coupled with the firm's policies and practices relative to employee hire and tenure, since such proffered "evi- dence" would presumably bear upon determinations which might be required with respect to whether Re- spondent's complement of workmen at material times held statutorily defined "employee" status. Further, Re- spondent's counsel was notified that Section 8(f)'s dispos- itive "applicability" would be determined with reference to a record containing my prior factual findings, plus whatever further factual determinations Respondent's presentation on remand might warrant, consistent with my prescribed limitations. ------- BAY AREA SEALERS .... My determinations, in this connection, derived from my construction of several presumptively relevant Board Decisions, drafted and promulgated pursuant to Section 10(c) of the statute. This Board has consistently held so far as my research discloses that, absent "extraordinary" circumstances, testimonial or documentary proffers de- tailed for the first time within post-hearing briefs-calcu- lated to support a newly conceived defense belatedly presented, or to provide further evidentiary support for a defense previously litigated, considered, and rejected- will not be received or considered, absent some showing that such evidence was newly discovered or not previ- ously available. N.L.R.B. Rules and Regulations, Series 8, as amended, Section 102.48(d)(1). See N.L.R.B. v. Sea- farers International Union of North America, Atlantic. Gulf Lakes & Inland Waters District, AFL-CIO (Isthmi- an Lines, Inc.), 496 F.2d 1363, 1365 (5th Cir. 1974), enfg. 202 NLRB 657, 658 (1973); N.L.R.B. v. Local Union #74, International Association of Marble. Slate and Stone Polishers, Rubbers and Sawyers. Tile and Marble Setters, Helpers, and Marble Mosaic and Terrazzo Workers' Help- ers of the United States and Canada, AFL-CIO (The Blak- ley Granite, Marble & Tile Co., Inc.), 471 F.2d 43, 46 (7th Cir. 1973), enfg. 190 NLRB 36 (1971); V.L.R.B. v. Yale Manufacturing Company, Inc., 356 F.2d 69, 71 (Ist Cir. 1966), enfg. 150 NLRB 1102, 1103, fn. 1 (1965), in this connection. Compare Briggs & Stratton Corporation, 244 NLRB No. 112, fn. 1 (1979); Heat Research Corporation, 243 NLRB No. 33. fn. I (1979); Fort Vancouver Plywood Company, 235 NLRB 635, fn. 1 (1978); Keokuk Gas Serv- ice Co., 233 NLRB 496, fn. 1 (1977); California Pacific Signs, Inc., 233 NLRB 450 (1977); Brooklyn Nursing Home, Inc. d/b/a Sassaquin Convalescent Center, 223 NLRB 267 (1976); Union Electric Company, 219 NLRB 1081, 1086-87, fn. 2 (1975); K & W Trucking. Inc., d/b/a Circle Transport, 215 NLRB 127 (1974); Nova Services Company, 213 NLRB 95, fn. 1 (1974), further, in this connection. In Lehigh Lumber Company and Brown-Borhek Compa- ny, 230 NLRB 1122, 1128 (1977), Administrative Law Judge Kaplan's Decision (with which the Board con- curred) reflects his consideration of Board policy, re- garding the resolution of newly conceived defenses belat- edly proffered. He commented that: Counsel for Respondents argues additionally and for the first time in his brief that the union bargaining relationship is void ab initio on the basis that the most recent collective-bargaining agreement and its predecessor agreements [which the General Counsel had proffered for the record to support a presump- tion of the Union's majority status] contained a con- struction industry union-security clause [and, there- fore, could not properly be relied upon for the Gen- eral Counsel's purpose] .... In the instant case it cannot be determined conclusively whether Section 8(f) of the Act (construction industry proviso) ap- plies to either of the companies involved herein. It was not raised in the answer, nor was the matter liti- gated, although Respondents has the opportunity to do so .... Under all the circumstances noting particu- larly that the matter had not been litigated I find it inappropriate to consider this dejfi nse at this tag (o the proceeding. [Interpolations provided to promote clarity. Emphasis supplied.] The Board's subsequent determination that Lehigh Lunm- ber's conduct had violated Section 8(a)(5) and (I) of the statute was upheld by the Court of Appeals for the Third Circuit, without opinion. Lehigh Lumber suihse- quently petitioned the Supreme Court for a rit of cer- tiorari. Within the Solicitor General's memorandum in opposition, filed on the Board's behalf, the Supreme Court was told that: The sole question presented in the petition is wheth- er the collective agreement was improperly relied upon to establish a rebuttable presumption that the Union enjoyed majority support. That que.tion. however, is not properly presented here: the Ad- ministrative Law Judge refused to conlsider the con- tention because it was not timely raised during the hearing. Accordingly, the only issue presented on this record is the propriety, in the circunmstaces of this case, of the Administrative Las Judge's refusall to consider petitioner's belated contention after the closing of the record . .. In any e'.cnt, the Ad- ministrative Law Judge's ruling swas correct. At Ith. hearing petitioner not only failed to ad' ance Ith contention, but actually advanced a totally different and indeed inconsistent contention . . . ad peti- tioner challenged the General Counsel' reliulnc on the presumption arising from the contract during the hearing, the General Counsel would hauve had the op- portunity to introduce other evidence to e tahlh mna- joritv status. Because petitioner's failure to timely raise its contention precluded the introduction of relevant evidence to rebut it. considerations of air- ness and orderly administrati e procedure dictated that petitioner not reap a tactical ad'iantagc from its dilatory conduct. [Emphasis supplied.] Persuaded by comparable considerations I concluded that Respondent's current counsel should be precluded from testimonial and documentary proffers clearly coin- cerned with relevant "evidence" previously known llandl available, which Respondent's original counsel, when Case 32-CA-98 was first heard, could have produced-- calculated to challenge my factual determinations fa ith re- spect to Complainant Union's May 1975 majority repre- sentative status, bottomed uon that case's presumptively complete record. Confronted with my preclusive determination, Re- spondent's counsel pressed a formal appeal, which the Board was requested to consider. Counsel contended that my ruling-without proper warrant-precluded: first. proof regarding the number of orkers compassed within Respondent's May 1975 payroll complement second, proof calculated to facilitate determinations w;ith respect to whether particular workers, w.hen found on Respondent's May 1975 payroll, held permanent or tent- porary positions; third, proof calculated to facilitate de- terminations with respect to whether "sonic or all of such persons" shown on Respondent's payroll should or BA AREA EALERS II 120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD should not be considered compassed within a bargaining unit deemed appropriate for collective-bargaining pur- poses; fourth, inquiries regarding the circumstances under which Respondent's purported employees had signed Complainant Union's designation cards; fifth, inquiries calculated to facilitate determinations regarding the iden- tity of those persons who had allegedly signed such cards. Further, Respondent's counsel contended that my rulings, by precluding such proof and lines of inquiry, would effectively prevent Respondent from demonstrat- ing Complainant Union's lack of majority representative status when the parties reached their May 14, 1975, con- tractual consensus: first, since Respondent would be pre- cluded thereby from establishing that Complainant Union's purportedly signed designation cards (four in number) had not really constituted designations signed by a majority of the firm's May 14, 1975, payroll com- plement; second, since Respondent would be barred thereby from pressing inquiries which might reveal that Complainant Union's cards had been signed by persons who were not on the firm's May 1975 payroll; third, since Respondent would thereby likewise be denied whatever chance there might be to demonstrate that the firm's workmen "employed on a permanent basis" had not signed designation cards. On March 16, 1979, Respondent's appeal was granted; the Board directed a resumption of this recessed remand proceeding for the purpose, inter alia, of taking evidence concerning: (1) whether the Union's collective-bargain- ing contract with Respondent was a prehire contract under Section 8(f) of the Act, and (2) the Union's major- ity status in May 1975 and at all other relevant times. 5. Further remand proceedings Pursuant to the Board's Order, the recessed remand hearing was reconvened on June 26, 1979; each party was afforded a full opportunity to be heard, to examine and cross-examine witnesses, and to produce evidence with respect to matters within the clarified scope of the Board's remand directive. Since the hearing's close, briefs have been received from the General Counsel's representative, Complainant Union's counsel, and Respondent's counsel. These briefs have been duly considered. Upon the entire testimonial record, documentary evi- dence received, and my observation of the witnesses, I make the following: FINDINGS OF FACT 1. RESPONDENT'S BUSINESS Respondent commenced business, functioning as a partnership, during August 1974. Initially, the firm did asphalt repair work on streets, highways, airfields, play- grounds, and parking lots, replacing "broken or failed" pavement areas. Respondent, likewise, did striping; fur- ther it manufactured and installed parking lot bumpers and "speed" bumps. During October 1974 the firm began providing seal "coating" for concrete surfaces. After May 1975, following Respondent's acquisition of a so- called Slurry Seal machine, plus related equipment, the firm provided "slurry seal" coating for various asphalt surfaces. With respect thereto, Gordon Rayner, formerly a member of Respondent partnership, testified: Slurry seal is a manufacture and application of an asphalt product which resurfaces existing pavement and gives it extended life and protection from the elements. . . . The type of work involves prepara- tion of a lot to be seal coated which may involve repairing failed asphalt on that lot, the preparation of the lot for the seal coat . ... barricading, and the application of the slurry seal. Also, we have to select, purchase and deliver the asphalt emulsion to the job site. ... The major piece of equipment, the one that is used the most on the job, is a slurry seal machine which is mounted on a conventional type of truck. Supporting that machine you have an oil tanker truck and trailer. You have again the loader, the front-end rubber tired loader to load the aggre- gate into the machine. We have a flat bed [truck] to carry equipment to the job site, pickup trucks, dump trucks, that sort of equipment. After May 1975, the firm continued to perform both as- phalt repair work and slurry seal applications. Most of Respondent's work-between 45 and 50 percent-was being done for municipalities and governmental bodies; some 20 percent was being done for other construction or repair contractors. The firm likewise was doing work for private industrial firms, residential property owners, and small shopping centers. Upon this record, determination seems clearly war- ranted that Respondent, throughout the period with which this case is concerned, was engaged primarily in the building and construction industry. For present decisional purposes, we may presume- indeed, we must presume-that when Congress legislat- ed, with respect to building and construction specifically, it used these terms consistent with their customary usage in common parlance, but with due regard for their tech- nical significance. Carpet, Linoleum and Soft Tile Local Union No. 1247 of the Brotherhood of Painters, Decorators and Paper Hangers of America, AFL-CIO (Indio Paint and Rug Center), 156 NLRB 951, 957-958 (1966). And repair work or resurfacing work, performed on high- ways, concrete floors, or paved areas generally, has con- ventionally been considered "construction" work. See U.S. Dept. of Commerce, Bureau of the Census, Census of Consruction Industries (1972), vol. 1, Industry and Special Statistics, appendix A. Therein, the Census Bureau has defined construction, in relevant part, thusly: Construction covers . . . the maintenance and repair of immobile structures.... "Structures" are defined broadly to include . . . such works as high- ways and streets . . . and all similar work which is built into or affixed to the land. . . . Construction is composed of two broad categories of activities: (1) New construction and (2) maintenance and repairs. . . . "Maintenance and repairs" relates to the resto- ration of . . . structures or their related service facilities, including replacement of integral parts BAY AREA SEALERS 121 . . . street and highway patching and minor resur- facing are included. Likewise, the Standard Industrial Classification Manual (1972), published by the U.S. Government's Office of Management and Budget, Statistical Policy Division (see Division C, Construction, pp. 45, 49), classified general contractors primarily engaged in: Asphalt paving: roads, sidewalks, streets . . . Park- ing lot construction . . . Resurfacing streets and highways . . . Street maintenance or repairs . As construction contractors in heavy construction, com- passing new work, additions, and improvements, plus maintenance and repair on miscellaneous projects not di- rectly concerned with building construction. Clearly, Respondent's routine contract services throughout the period with which we are concerned constituted work performed within the parameters of the Federal Government's "construction contractor" classifi- cation. See NVew Enterprise Stone and Lime Company, Inc. and Blair Bedford Paving CompanI, 172 NLRB 2157, 2158, fn. 4 (1968), in this connection. I so find. II. COMPI.AINANT UNION No questions have been raised herein with regard to Complainant Union's status. Upon this record, however, there can be no doubt whatsoever that Complainant Union has admitted building and construction workmen as members. Nor can there be doubt that Complainant Union's 1973 75 Association contract (with respect to which Respondent became a May 1975 nonmember sig- natory) purported to cover the firm's workmen, who were doing or, following their hire, would be doing "building and construction" work. I so find. Within arti- cle V, section 3 of that contract, specific union-security provisions for workmen hired by "an employer engaged primarily in the building and construction industry" were, inter alia, set forth. Their propriety has not thus far been challenged herein. III. COMPIAINANT UNION'S MAJORITY STATUS With matters in their present posture, the Board's clarified remand directives clearly call for determina- tions, first, concerning Complainant Union's claimed achievement of majority representative status during May 1975, coupled with that organization's continued right to claim such status at relevant times thereafter. Presumably, with those determinations made, conclusions may be reached with respect to whether Complainant Union's May 1975 collective-bargaining contract with Respondent should be considered a contract validated consistent with Section 9(a)'s requirements, or rather a mere "prehire" contract, valid for certain limited pur- poses, consistent with Section 8(f)'s provisions and the Board's relevant decisional principles bottomed thereon. Since, however, Complainant Union cannot presently produce designation cards purportedly signed. within the period with which we are concerned, by particular workmen then compassed within Respondent's crew, de- terminations with respect to Complaint Union's majority status must necessarily be reached: first, by defining func- tionally the group of workmen within Respondent's total personnel complement, which generally should hav e been considered a viable "unit" for collective-bargaining purposes, during the period with which this case is con- cerned; second, by designating the relcvant payroll period or periods within which the number of workmen proper- ly comprised within that defined bargaining unit should be determined; third, by counting the total number of partnership workmen, properly comprised within the de- fined bargaining unit, who. consistent waith xsell-settled decisional principles, should have been considered Re- spondent's regular "employee' group, during the rele- vant payroll period or periods. within which Complain- ant Union purportedly achieved majority representative status; fiurth, by deciding whether Complainant nion's testimonially grounded claiml (that tour signed designa- tion cards had timely been procured from Respondent's crewmembers) merits credence. ith due regard for the complete record herein: fijih, by determining hether Complainant Union's purportedl signed designation cards (fiund to be. arguably. fiour in number) should or should not be considered a majority of Respondent's total "employee" complement. during a relevant pay period or periods, within a defined bargaining unit deemed appropriate for collectixe-bargaining purposes. To these several tasks, attention must now turn. A. Respondent's Bargainining Unit Defined ir Present Purposes 1. Facts a. Contract services performed by Respondent befi)re Complainant Union s recognition Between August 1974 (when Respondent commenced business) and May 1975 the firm provided no services (with a single possible exception) for publicly funded governmental bodies, such as counties, municipalities, school districts, or other tax-supported entities. Its pro- jects were performed, rather, for private business enter- prises. While a witness during this remand proceeding, Gordon Rayner could recall no time period (within the 10-month span noted) when Respondent was performing services simultaneously on more than one project. These jobs-so Rayner testified, credibly and without contra- diction-required and still require the surface application of "seal coatings" primarily of two types: one would have been a coal tar seal, the other would have been a so-called "Walk Top" resurfacing compound. Respond- ent purchases both types of materials, ready for use, in drums. The materials are dumped, directly, onto the sur- face being treated; they are, then, spread by crew- members wielding long-handled squeegees. Such work, so the record shows, requires no specialization of func- tions; Respondent's crew members-all of them--per- form the same type of work. During the first week of May 1975, Respondent's crew resurfaced a San Jose retail store's parking lot; during that week, Rayner testified, the firm "may have" handled several "small" contract projects. A AREA SEAERS 121 122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Between Sunday, May 4, and Wednesday, May 21, Respondent's partners and personnel were fully preoccu- pied with work on the firm's newly purchased Slurry Seal machine, together with certain functionally related vehicles; Rayner testified that these machines required various modifications, calculated to ready them for Cali- fornia-style slurry seal work. The firm's Slurry Seal ma- chine had been purchased, sometime during April 1975 presumably, from a Connecticut seller; Respondent's salesman/estimator, Charles McDaniel, had driven it cross-country. He had reached Respondent's San Jose headquarters facility-so his testimony shows-by April 3(); Rayner, however, recalls his arrival sometime during May's first full week. Respondent's first project thereaf- ter-which required the Slurry Seal machine's utiliza- tio-was a publicly funded school district job, complet- ed during May's last full week. Slurry seal operations, so Rayner's credible testimony shows. normally require five- or six-man crews. The crew members perform distinct, specialized functions, de- scribed for the record as follows: I. Line Driver (applicator operator): Drives, ma- neuvers, and positions the slurry seal truck, so that seal coatings may be spread on designated surface areas. 2. Top Man: Maintains the required constant flow of previously loaded "aggregate" onto the ma- chine's conveyor belt, which provides the material for a final "slurry seal" mixture. 3. Mixer Operator: Lays out the job site, deter- mines the composition of required slurry seal mix- tures, sets up the slurry seal truck's mixer machine, runs it throughout the project's performance, and- when necessary-directs other crew members. 4. Squeegee Man: While on foot, spreads slurry seal mixtures to project locations which the ma- chine cannot reach, and smooths out surface var- iances between different "paths" of material laid down by the machine. (On some projects, two squeegee men may be required.) 5. Shuttle Man: Used on large projects, which may require two Slurry Seal machines; drives empty machines from project sites to nearby materi- al stockpiles, recharges the vehicles with asphalt emulsion, fills them with water, loads them with "aggregate" using a front-end loader, and drives them back to project sites. During the period with which this case is concerned, however, Respondent's projects required no shuttle man; sometimes they required merely one squeegee handler. b. Respondent's recruitment practices Throughout the period with which this decision has thus far been concerned, Respondent recruited workmen primarily through the State of California Employment Development Department's San Jose employment serv- ice office. Employment service personnel were told that the firm was doing seal coating and resurfacing work on concrete; according to Gordon Rayner, the service therefore considered Respondent a building trades con- tractor. Nevertheless, so Rayner testified, most of the workmen referred by the service had no record of previ- ous experience specifically within Respondent's field, or even within the construction industry generally. Their work experience records varied. When workmen were referred (so Rayner's credible testimony, proffered without challenge or contradiction, shows), they were hired for work on specific projects then in progress, or directly in prospect. Newly hired workers were told: If at the end of that time there was no more work, then they did not have work to do. If at the end of that job we had another job to go to, then they would continue working. These workers, so the record shows, were told that they "had a job" for the duration of the particular project for which they had been hired, and that they would be given preferential consideration for subsequent projects. They were not told, however, that they would be for- mally laid off, or terminated, when their work on Re- spondent's current project was completed, nor were they told that people would be newly hired for Respondent's next project. These procedures, I find, Respondent did not follow. In practice, when Respondent's projects were complet- ed, the firm "usually" had some successor project sched- uled to start that very day, the next day, or within a rel- atively short period. Rayner credibly testified that: . . .as it turned out, we got enough jobs so we didn't have too much down time. We did lose some people because they would be off for three or four 'days and they would find other work. However, when Respondent's partners knew (before a particular project's completion) that some new project was scheduled to commence, directly, or within some determined time thereafter, workmen currently em- ployed would be notified that further work would subse- quently be available for them. Sometimes, Rayner re- called, particular workers hired for one project, or successive projects, might not be "available" for work on Respondent's next job; the firm's management repre- sentatives, however, would retain or recall workers, pre- viously employed, save in situations when their services might not be needed for Respondent's next prospective project. I so find. When Respondent performed contract jobs at project sites located outside the San Jose metropolitan area, the firm did not hire workers locally; workers retained from previously completed projects, or recruited in San Jose, were transported to the particular project's distant loca- tion. In connection with a Dow Chemical Company job which will be discussed further within this decision, Re- spondent brought four workmen from San Jose to the designated firm's Pittsburg, California, project location, some 50 miles distant; their "overnight" stay expenses were then paid by the firm. BAY AREA SEALERS 12 c. Contract services performed by Respondent after Complainant Union's recognition During June 1975, Respondent provided contract serv- ices for San Francisco's airport, the city of Pleasanton, and several "small" projects listed for bids by various municipalities. These jobs required Respondent's newly purchased Slurry Seal machine; the firm's crew comple- ment compassed the various specializations and numeri- cal composition previously noted within this Decision. Respondent's projects were commenced and completed seriatim; none was simultaneously pursued. After July 1, Respondent continued to handle pro- jects-never specified as to number for the present record-which required its Slurry Seal machine's utiliza- tion. Additionally, the firm completed a substantial play- ground resurfacing project for the Cupertino, California, school district; that project required services provided by a four-man squeegee crew. It commenced shortly after July 4 and was completed in September 1975 after some 40 working days. After September, Respondent completed a substantial number of resurfacing projects for Union Oil Company. Concurrently, the firm performed some asphalt patching and repair work; likewise, several contract projects which required Respondent's Slurry Seal machine were completed. This situation continued, without significant change, until 1975's winter seasonal slowdown necessitated lay- offs. When 1976's spring season commenced, however, Respondent purchased a second Slurry Seal truck. The firm's business volume reflected continued growth during that year, 1977, and thereafter. Recent developments, which presumably will have no bearing upon matters properly considered directly rele- vant with respect to this remand proceeding, but which may conceivably affect this Board's possible remedial directives, will be noted hereafter within this Decision. d. Respondent's crew complements during periods material herein Between August 1974 and May 1975, while Respond- ent was providing asphalt repair and seal coating serv- ices, the firm's nonspecialized "squeegee" crews had nor- mally compassed three to four, or four to six employees, plus one or both of Respondent's partners. According to Rayner's proffered recollections, four- to six-man crews, plus a partner or partners, had been common. While a witness during the remand proceedings, Rayner testified that some of Respondent's jobs had required eight-man crews; he recalled four such projects. When queried fur- ther, however, he could not recall crews of the designat- ed size on calendar year 1975 projects; they may have been performed during the previous year. Respondent's payroll records for 1974 and the first few weeks of January 1975 have not, however, been pro- vided for the record. The records produced warrant de- terminations that between Sunday, January 26, and Sat- urday, May 3, specifically, the firm's payroll roster ex- panded, with some sporadic fluctuations, from three to six employees; between Sunday, March 3()., and Saturday, April 5, however, seven men were listed on Respond- ent's payroll record. Throughout the period with which this case is con- cerned, Respondent maintained calendar week pay peri- ods. Until Friday, February 14. Rayner's records reflect a Friday payday, covering services rendered during the workweek then drawing to a conclusion; thereafter, Re- spondent's partner prepared payroll checks on Mondays or Tuesdays, covering services rendered during the pre- ceding calendar week. During this 14-week period, Respondent's crew com- plements rarely worked full 40-hour weeks spread over 5 working days; their service records normally reveal lesser periods of service, compensated at regular hourly rates, plus frequent overtime work. Of some 11 men listed on the firm's payroll, during the 14-seek period now under consideration, 4 performed services within only two pay periods; another, Carlos Torrez, worked within the last two pay periods noted, and within two pay periods thereafter. Jay Jarboe worked within six pa) periods. Don Fuqua performed services within eight pas periods; his subsequent service record will be discussed further hereinafter. Three employees-Joe Staron, Doug- las Harris, and Terry Litz-worked during 12, 13, and 14 pay periods, respectively. Finally, Charles McDaniel started full-time work during March 19 7 5's first full cal- endar week; his particular status on Respondent's payroll roster will be considered subsequently within this Deci- sion. Between Sunday, May 4, and Wednesday. May 21. Respondent performed no contract services: the partner- ship's crew complement worked on the firm's newl pur- chased Slurry Seal truck and related equipment, readying it for project use. Respondent's payroll roster v ithin this period will be subsequently reviewed, when required. within this Decision. The firm's first project, requiring its Slurry Seal machine, was completed during May 19 7 5's last full week. During June 1975, Respondent completed two substan- tial Slurry Seal projects, plus several "small" municipal projects. These jobs were performed serially with a fise- or six-man crew complement which matched the special- ized job descriptions noted previously herein. After July 1, Respondent's workload required a five- or six-man Slurry Seal crew, plus a four-man "squeegee" crew for the substantial school district playground resur- facing project previously noted. Between September 1975 and Respondent's win:er-season shutdown, the firm carried a full Slurry Seal crew. and four men s. ho worked on several successive Union Oil Company resur- facing projects, plus a two- or three-man crew for small asphalt "patching" repair jobs. During 1976, following Respondent's purchase of a second Slurry Seal truck, the firm "ran" three full crews. plus a partial crew, with a presumptive "average" cress complement numbering 18 to 20 men; this situation con- tinued throughout the following calendar year. During 1977's spring months, effective April I, as noted pre,i- ously within this Decision. Respondent became a Califor- nia corporation. So far as the record shows, howe\ cr. this legal change did not affect the firm's oswnership. nor BAY AREA SEALERS 123 124 I)ECISIONS ()F NATIONAL IABOR RELATIONS BOARD did it affect Respondent's business operations. Through- out calendar year 1978, Rayner credibly testified, the firm's payroll roster "averaged" between 20 and 24 workers weekly. 2. Discussion and conclusions With matters in this posture, determinations with re- spect to Complainant Union's majority status in May 1975 and at all other relevant times must necessarily be predicated upon some preliminary determinations regard- ing the nature and scope of the bargaining unit which this Board should consider appropriate for collective-bar- gaining purposes herein. Only then will further determi- nations be possible, with regard to that unit's specific composition and numerical size, during the periods with which this case is concerned. In Case 32-CA-98, the General Counsel contended that the bargaining unit should compass "all employees of the employer" save for certain conventionally ex- cluded categories. Though Respondent's answer noted a formal denial with respect to the General Counsel's con- tention, whatever questions such a denial might have raised were not litigated. And since the General Coun- sel's complaint defined a bargaining unit "presumptively appropriate" for collective-bargaining purposes, my first Decision herein contained a conclusion of law that "all employees of Respondent and/or Bay Area Sealers, Inc.," save for classifications conventionally excluded, should be considered compassed therein. In Case 32-CA-824, consolidated with the remand herein, the General Counsel's complaint contained a bar- gaining unit description calculated to compass "all full- time and regular part-time employees employed by Bay Area Sealers, Inc," exclusive of conventionally distin- guished categories. Respondent's formal answer again contained a straightforward denial. When this consoli- dated case was heard, however, the General Counsel's refined bargaining unit contention was never specifically challenged by Respondent's counsel, save for several suggestions that particular persons found on Respondent's payroll roster at material times, should or should not be considered compassed therein. Since some bargaining unit definition, more particular- ized than the General Counsel's comprehensive formula- tion, now seems required, I have reviewed Complainant Union's negotiated 1973-75 Association contract, with respect to which Respondent concededly became a May 1975 nonmember signatory, to determine whether a more precisely tailored definition could have been found there- in. In Case 32-CA-98, the General Counsel essentially contended that Respondent had refused to bargain col- lectively with Complainant Union by withdrawing rec- ognition from that organization as the collective-bargain- ing representative of Respondent's employees within a consensually negotiated contract unit, which the General Counsel equated with the bargaining unit defined within his complaint. References to Complainant Union's con- tract therefore would seem to be fully warranted. Unfortunately, Complainant Union's negotiated 1973- 75 contract, particularly in this respect, can hardly be considered a model of clarity. It contains no single, pre- cisely drafted recognition clause. For present purposes, I find three distinct contractual provisions must be read, in material part, conjunctively: Article IV. Recognition. The contractor hereby recognize[s] the Union as the sole and exclusive col- lective-bargaining representative of all employees of the contractor signatory hereto . . . whose princi- pal business is that which is covered and over [whose employees] the Union has jurisdiction . . . as such jurisdiction is defined by the Building and Construction Trades Department of the American Federation of Labor, AFL-CIO. Article VI. Employers. . Employers signatory to this agreement shall be classified as follows: Con- tractors who are specialty contractors and whose principal contracting business is the execution of contracts requiring the . . . ability to perform the following operations covered by this Agreement. 2. All painting, application and installation of lines, arrows, bumpers, curbs, etc., on parking lots, air fields, highways, game courts and other such surfaces. 3. The handling, painting and installing of all car stops, all traffic regulatory work . . . . 6. Seal coating, slurry coating and other surface protection . . . . 9. Manufacturing and installation of all car stops . .and all traffic regulator materials .... II11. The preparation and maintenance of all sur- faces as outlined above. 12. It is the intention of this Agreement that all Employers having employees, with the exclusion of those normally excluded by the National Labor Re- lations Board, that is, supervisory employees, guards, executives, shall be subject to this Agree- ment where such employees, as a matter of inclu- sion, [perform work involving], but not limited to . working on concrete bumpers . . . installation of . . . barricades and protective devices . . . seal coatings, slurry coating and other protective coat- ings and line removal. [Bracketed language supplied to correct grammatical errors, reform incomplete sentences, and promote clarity.] Considered in totality, these contractual provisions, within my view, provide a workable "bargaining unit" definition, for present purposes, with respect to Respond- ent's employees with whom this case is directly con- cerned. (See, in this connection, the job classifications listed within the Association contract's Exhibit A, Wages and Classification, with their related wage rates.) When required within this Decision, some more concise formu- lation, however, will be recommended. Respondent's counsel suggests for the first time within her brief, submitted with reference to the present remand record, that a proper bargaining unit herein should com- pass "all persons" who had worked for Respondent before the May 11-17, 1975, payroll period during which Frank Clark signed Complainant Union's proffered con- tract, and who performed any type of service, likewise, within that particular payroll period, save for office cleri- cal employees, guards and supervisors. With due regard BAYAREA SEALERS 125 for Respondent's contractual commitments, however, I have concluded that Complainant Union was consensual- ly recognized as the representative of merely those workmen, on Respondent's payroll, who were then per- forming, or would perform, services of the type de- scribed within their collective-bargaining contract. Upon this record, Respondent's status as a contractor whose "principal contracting business" fell within the param- eters defined in Complainant Union's contract and who hired workmen to perform work of the type described therein cannot be doubted. Whether particular workmen, found on Respondent's payroll sometime during the May 11-17, 1975, payroll period material herein, held the type of tenure which would warrant their consideration as bargaining unit members for present purposes, or shared a genuine com- munity of interest with their fellows on Respondent's pay- roll roster sufficient to warrant their bargaining unit in- clusion, will be considered later within this Decision. B. Complainant Union 's Designation Card Claims I. Facts When Case 32-CA-98 was heard on May 16, 1977, Complainant Union's business representative testified without challenge or contradiction regarding the circum- stances under which he received designation cards signed by four of Respondent's workmen. Moore's testi- monial recollections, proffered 2 years after the specific events with which the case was concerned, revealed: First, that Complainant Union's business representative had learned early in May 1975--"a few days before May 14"-that Respondent was then performing services with a nonunion crew within a Dow Chemical Company plant located in the Martinez-Concord-Pittsburg, Cali- fornia, vicinity. When this case was heard, both original- ly and on remand, none of the witnesses could declare with certainty where Dow Chemical's plant was located. That firm's current telephone book listing, with respect to which I take official notice, reveals that its plant fa- cility is located on Loveridge Road, in Pittsburg, Cali- fornia; however, the present record suggests that Dow Chemical's general contractor for its plant construction and/or renovation project, Duffel Financial Corporation, may have considered the project located in Concord, California. Second, that Frank Clark, Respondent's partner (pre- sumably prompted by complaints registered with Dow Chemical's general contractor (regarding Respondent's nonunion status by a local Painters union representative) had "shortly thereafter" telephoned Moore; Clark had declared his willingness to negotiate a collective-bargain- ing contract. Third, that sometime "after the completion of the Dow Chemical job" the workmen employed by Respondent, who were temporarily laid off at the time, had gone to the San Jose, California, offices of Painters Union Local No, 507, seeking representation. Fourth, that Local No. 507's business representative, then "arranged for a meeting" between Moore and the workmen concerned. Fifth, that, during this meeting, which four of Re- spondent's workmen had attended, Moore had received four designation cards signed by those present. Moore's testimony, when this case was first heard, reflected his recollection (with regard to which I did not then consid- er a factual determination required) that he received these designation cards "two days to a week" before his May 14 conference with Respondent's partners. Sixth, that Complainant Union's business representative had thereupon solicited a conference with Respondent's partners, during which negotiations looking toward a collective-bargaining contract might be concluded Seventh, that Moore had conferred with Respondent's partners, at Respondent's San Jose office, on May 14, thereafter. Eighth, that during this May 14 conference there had been "discussion to the effect that they had five people on their payroll," but that they were then on layoff status. When Case 32-CA-98 was first heard, Respondent's partner, Gordon Rayner, testified that during their May 14 conference one workman, Warren LaHara, had been the "only employee" then present on Respondent's prem- ises; Rayner declared that Respondent's crew members had not been "laid off" but that they "weren't working" that day. Ninth, that following some discussion with respect to Complainant Union's proffered Association contract terms Frank Clark had signed that contract in Respond- ent's behalf. Tenth, that Respondent's partner, before signing Com- plainant Union's proffered contract, had neither request- ed any documentary proof with respect thereto. Eleventh, that Moore, therefore, had neither men- tioned, nor produced, the four designation cards then in his possession. Twelfth, that Complainant Union's designation cards, signed by Respondent's workmen, had thereafter been "destroyed" since they had not been "used" and were no longer considered "necessary" following Respondent's adherence to Complainant Union's contract. Thirteenth, that Complainant Union's business repre- sentative, when summoned to testify 2 years after these developments, could not recall the names of Respond- ent's workmen who had signed designation cards. Moore's May 16, 1977, testimony, summarized herein, was neither challenged, contradicted, nor significantly undermined, during his May 16 cross-examination or Re- spondent's original defensive presentation. And since the business representative's proffered recollections-consid- ered in totality-carried no "death wound" sufficient to generate distrust regarding their credibility, I found them worthy of credence. When Case 32-CA-98 was first heard, Respondent's counsel made no contention before me that Complainant Union had failed to prove its receipt of signed designa- tion cards sufficient in number to demonstrate majority support within the firm's employee complement, thereto- fore, as of the date when Clark had signed that organiza- tion's proffered Association contract. I did not therefore consider myself required to make a specific finding, in BAY AREA SEALERS 25 120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hacc verba, with respect thereto. My conclusion, with re- spect to Moore's credibility regarding his procurement of four signed designation cards, was consequently sub- sumed within my final determination that, throughout the period with which the case before me was con- cerned, Complainant Union had been qualified to claim exclusive recognition as the collective-bargaining repre- sentative of Respondent's employees within a bargaining unit deemed appropriate for that purpose. With due regard for Moore's credible testimony, then, I concluded that the General Counsel had-within the record made before me-sustained his burden of proof with regard to Complainant Union's procurement of four signed designation cards, and that organization's conse- quent majority representative status. Compare Retail Clerks International Association, AFL-CIO, 153 NLRB 204, 226-227 (1965), enfd. 366 F.2d 642, 647-648 (D.C. Cir. 1966); further, see United Steel Workers of America, AFL-CIO (Northwest Engineering Company), 158 NLRB 624, 627-629 (1966), enfd. 376 F.2d 770, 772 (D.C. Cir. 1967), in this connection. Where an employer has not contested the existence of a majority, when a demand for recognition was presented, the General Counsel need prove merely through credible testimony that a majority had in fact signed cards, and that some opportunity for their inspection had been available. 2. Discussion and conclusions Upon remand, however, Respondent's counsel has be- latedly mounted a challenge with respect to Moore's credibility, regarding his procurement of four designation cards. Within her brief, counsel presently contends that: In the absence of actual authorization cards alleged- ly obtained, and given the Union's inability to either date the time of obtaining the cards or identify the individuals who signed cards, there is no competent evidence establishing that any cards were in fact signed. On October 25, 1978, when these proceedings on remand were first convened-3 years and 5 months after the par- ticular events with which the parties were concerned- Complainant Union's business representative, by then re- tired, testified pursuant to Respondent's subpena. When queried with respect to those matters which must now be considered subject to question, Moore reported: First, that he met with Respondent's workmen at Local No. 507's San Jose office, during the evening hours of "the day before" his conference with Respond- ent's partners; though he could not recall the day of the week, he "believed" that his meeting with Respondent's employees had therefore taken place on May 13. Second, that he could not recall the names of the workmen pres- ent. Third, that "within a few days" following Respond- ent's adherence to Complainant Union's contract, he [Moore] destroyed the designation cards which he had then been given by throwing them out in the trash. Fourth, that he had disposed of those cards because "they were no longer of any value" following Respond- ent partnership's "friendly, amicable" contract signing, and there was no reason to retain them "cluttering up the record" thereafter. On June 26, 1979, when the remand proceedings re- convened, more than 4 years after the developments now considered relevant and material herein, Moore further testified: First, that Complainant Union's designation cards had been signed by crewmembers who had worked on Re- spondent partnership's Dow Chemical job and "other" jobs; second, that following his never-dated telephone conversation with Frank Clark, previously noted, during which Respondent's possible adherence to Complainant Union's contract had been discussed, he [Moore] had re- ceived a telephone report from Local 507's business rep- resentative that the latter (Downey) had met with four or five of Respondent's workmen, and that he wanted some of Complainant Union's form designation cards, which were sent to him; third, that when he (Moore) subsequently met with Respondent's four workmen, after their workday's conclusion, at Local No. 507's office, he received their signed designation cards; fourth, that his meeting with these workmen had taken place on a day when they had reportedly been working; fifth, that his meeting with Respondent's workmen had taken place within "a week to ten days" following his discovery that Respondent had been performing services on Dow Chemical's project. In this connection, Respondent pro- duced testimony, purportedly buttressed by documenta- tary evidence, that Respondent's work on Dow Chemi- cal's project had in fact been performed over three weekends-between February 1 and 5, on February 15 and 16, and on March 1 and 2, 1975, respectively. sixth, that Respondent's workmen had then reported they had finished their Dow Chemical job, and had returned to subsequent work within the San Jose area; seventh, that he (Moore) had met with Respondent's partners "two or three" days after receiving the workmen's signed desig- nation cards. Further, when supplied with Moore's August 2, 1976, sworn statement pursuant to her belated request, Re- spondent's counsel elicited testimony from Complainant Union's business representative: First, that a statement within his affidavit, fixing Re- spondent's contract execution date in June 1975 was er- roneous, since the contract now in question had been signed on May 14 by Respondent's partner. second, that his affidavit's reference to Respondent's performance of a Dow Chemical job in Contra Costa County "after" the firms collective-bargaining contract was signed had like- wise been mistaken. When queried further by Complainant Union's coun- sel, Moore recalled that none of the workmen who gave him signed cards had reported themselves "terminated" or "no longer associated" with Respondent partnership; that they had "discussed" their previous work on Re- spondent's Dow Chemical project, which had been fin- ished; that they had given him (Moore) the "impression" they considered themselves Respondent's regular, normal crew; and that while some of their fellow workers might have been "off" that day, they constituted Respondent's regular "Slurry Seal" crew. BAY AREA SEALERS 127 With matters in this posture, Respondent's contention on remand-that the General Counsel has failed to dem- onstrate by "credible" or "convincing" evidence Com- plainant Union's possession of four designation cards, previously signed by the designated firm's workmen, when Respondent was presented with that organization's current Association contract-merits Board rejection for several reasons: First, Moore's conceded failure within his August 2, 1976, sworn statement to describe correctly the temporal relationship between Respondent's work on Dow Chemi- cal's Pittsburg facility and the firm's contract signing date, coupled with his presumptive failure to recall therein the contract's verifiable May 14, 1975, execution date, should generate no significant doubts regarding his capacity to recall the general course of events correctly, with sufficient clarity to warrant factual determinations bottomed thereon. Certainly, no conclusion could legiti- mately be considered warranted at this late date with re- spect to whether his two concededly "erroneous" factual recitals reflected genuine memory lapses, or whether they reflected mere thoughtless misstatements, which he had subsequently failed to notice and correct. Further, his questioned statements were not closely related; they were discrete. The facts which he mistakenly reported were both subject to ready "extrinsic" verification or re- buttal; within their context, they could not have really misled or confused readers of his statement, or reviewers of the present record. And, since Moore's narrative recit- als mesh overall in several respects with Gordon Rayner's proffered recollections, their credibility may properly be considered buttressed thereby. Second, though Complainant Union's business repre- sentative has indeed proffered some discrepant testimoni- al recitals with respect to when Respondent's presence on Dow Chemical's project first came to his notice, and with respect to various successive time lapses between that date, the subsequent date on which he received four designation cards signed by Respondent's crew members, and the May 14 date when he presented Respondent's partners with Complainant Union's Association contract, his consistently reiterated claim that he had indeed col- lected four signed designation cards very shortly before his May 14 conference with Clark and Rayner cannot be considered undermined. I have noted, in this connection, the business repre- sentative's testimony: first, that the workmen who gave him signed cards reported they had worked on Respond- ent's Dow Chemical project and some subsequent con- tract projects; second, that these workmen, when they tendered their designations, were currently working for Respondent within the San Jose area; third, none of Complainant Union's card signers, then, described them- selves as terminated, or no longer "associated" with Re- spondent partnership; fourth, that they described them- selves, rather, as Respondent's regular "slurry seal" crew. With reference to these testimonial claims, I note Gordon Rayner's testimony (previously summarized herein) that during the first week of May 1975, Respond- ent's crew had resurfaced a San Jose retail store's park- ing lot; further, he testified that between May 4 and 21 Respondent's partners and hired personnel had been busy-presumably within the firm's San Jose headquar- ters facility-preparing Respondent's newly purchased Slurry Seal machine and related vehicles for future utili- zation. Respondent's payroll records further reveal that during this period two of five workmen who had per- formed services on Respondent's previously completed Dow Chemical project had still been in Respondent's hire. And Rayner's testimony, which will be reviewed within a subsequent section of this Decision, likewise re- flects his recollection that shortly before the period now under consideration Respondent had placed newspaper advertisements for men qualified to perform slurry seal work, and that three workmen had been hired for that purpose, during the firm's May 4-10 pay period. Rayner's proffered recollections, conjoined with Re- spondent's payroll records, thus provide tangential cor- roboration for Moore's testimonial claim that he received Complainant Union's four designation cards very shortly before his May 14 conference with Respondent's part- ners. The four-man group, whose members tendered signed cards, could have (consistent with Moore's testi- mony) compassed, inter alia, some longtime worker, or more than one worker, who had performed services on Respondent's Dow Chemical project; likewise, it could, consistent with his testimony, have included some work- man, or workmen, newly hired, particularly for services on Respondent's prospective "slurry seal" crew. Thus, despite the fact that Moore's testimony, prof- fered on remand, may reveal some lack of certainty with respect to relevant dates, time lapses, and temporal rela- tionships between the various material developments herein, I remain satisfied that he did receive four union designation cards, signed by workmen then in Respond- ent's hire, before he conferred with Respondent's part- ners regarding their adherence to Complainant Union's collectively bargained contract. See Krispy Kreme Dough- nut Corp., 245 NLRB No. 135, fn. 1 (1979), in this con- nection. Whatever discrepancies his testimony considered in totality may reveal can reasonably be attributed to the passage of time since the various events dealt with herein took place; time's passage would presumably have mag- nified the normal, foreseeable frailties characteristic of human memory. Convinced of this, I find Respondent's present challenge with respect to Moore's credibility, particularly regarding his procurement of four signed designation cards, lacking in persuasive thrust. Respondent's further contention that Complainant Union's representative, assuming, arguendo, that he did indeed receive four signed cards, nevertheless probably procured them under circumstances which should vitiate his claim that they constituted Complainant Union a ma- jority representative at material times, will be considered further within this Decision. C. Complainant Union's Representative Status Some determinations must now be reached with re- spect to whether Complainant Union's four cards consti- tuted designations signed by a majority of the concerned workers on Respondent's bargaining unit roster during May 1975 or various other periods material herein. Upon this record, however, such determinations will require BAY ~ ARE SEAER .127. 128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD something more than simple numerical comparisons. Cer- tain preliminary questions, particularly with regard to whether Respondent's May 1975 work force possessed a primarily "transient" or "stable" character, and likewise with regard to whether that work force compassed a representative complement of regularly employed work- men, must now be resolved. 1. Respondent's work force Intermittent work constitutes one hallmark characteris- tic of the construction industry; many construction con- tractors maintain no regular complement of qualified workers, but hire workmen when they are needed. Dee Cee Floor Covering, Inc., and its Alter Ego and/or Succes- sor, Dagin-Akrab Floor Covering Inc., 232 NLRB 421 (1977). Particular construction workers, therefore, may work for many employers, and for none of them continu- ously. Daniel Construction Company, Inc., 133 NLRB 264, 267 (1961); 167 NLRB 1078 (1967). Nevertheless, there have been cases presented to this Board for disposi- tion which have been concerned with construction indus- try firms with relatively permanent "stable" work forces, which they move from project to project. Respondent's recruitment practices and personnel man- agement policies, throughout the period with which this case is concerned, have more closely resembled those characteristic of construction contractors with regular or relatively "stable" crew complements rather than those pursued by firms which routinely recruit "temporary" or "transient" workers job by job. True, Respondent's re- cruitment programs have, within the period now under consideration, brought the firm some employees who- disenchanted by their concededly "dirty" working condi- tions, or management's sometime failures to provide reg- ular, 5-day-per-week, full-time work-have left their po- sitions following comparatively short periods of service. Such labor turnover has never been a phenomenon, how- ever, confined to construction industry tradesmen; within manufacturing and commercial establishments with con- ventionally "stable" work forces, likewise, turnover rates have frequently been matters of managerial concern, throughout this Nation's business scene. There can be no doubt, nevertheless, that Respond- ent's partners have consistently striven to recruit "regu- lar" employees, whose availability for continued service in Respondent's hire-from project to project-could be counted on, so long as the firm had work currently in progress or foreseeably in prospect. When Complainant Union's business representative presented Respondent with a proposed contract-during the second full calen- dar week of May 1975-there were two workers on that partnership's payroll who had been working "regularly" for more than 16 weeks. Likewise, there were three workers-newly hired during the previous week for service as members of Respondent's prospective "slurry seal" crew-who continued to work "regularly" on Re- spondent's successive contract projects throughout the year's second quarter, and presumably beyond. With matters in this posture, Complainant Union's ma- jority representative status should not be determined by comparing that organization's total number of signed designation cards with the total number of Respondent's present and past "employees" presumptively qualified for bargaining "unit" inclusion, first, by virtue of their work experience in Respondent's hire during the particular pay period within which that firm became a contract signato- ry and/or, secondarily, by virtue of their work experi- ence in Respondent's hire for some given number of days within a prior time period or periods. In short, the proper bargaining "unit" head count for present purposes should not be determined consistent with the Board's lib- eralized standard for determining "voting eligibility" in connection with construction industry representation elections. Compare Contractor Members of the Associated General Contractors of California, Inc., 209 NLRB 363, 365 (1974); Daniel Construction Company, Inc., supra, in this connection. Indeed, Respondent's counsel herein makes no such contention regarding the bargaining unit's composition: within her brief she suggests, rather, that: . . . all persons who had previously worked for Bay Area Sealers and who performed work during the week of May 19 specifically, as previously noted, the May I I-May 17 calendar week pay period must constitute the unit employed as of the time of contract execution. [Interpolation provided for clarification. Emphasis supplied.] Subject to certain qualifications, I would concur. Clear- ly, the bargaining unit considered appropriate for collec- tive-bargaining purposes herein should be confined to full-time and regular part-time employees who-during the pay period noted-performed work considered sub- ject to Complainant Union's Association contract, while in Respondent partnership's hire. Further, employees whose service records, during that particular pay period, fail to demonstrate their "substantial" or "meaningful" community of interest with Respondent's full-time and regular part-time workers should be excluded; I so find. 2. Respondent's representative complement Within her brief, Respondent's current counsel notes that, during 1976 specifically, the firm's crew comple- ment compassed 18 to 20 workers; thereafter, throughout calendar year 1978, Respondent's expanded payroll roster presumably "averaged" between 20 and 24 work- ers weekly. However, Respondent makes no specific contention herein that its May 14, 1975, work force should not be considered a representative "employee" complement with respect to which Complainant Union's majority status should be measured. Had such a conten- tion been proffered, it would merit rejection. Upon this record, there can be no doubt that Respondent's May 14, 1975, crew complement was sufficiently large to handle the firm's prospective contract projects; with due regard for their level of business operations, they were fully manned. Further the firm's crewmembers, during the payroll period considered crucial herein, were patently considered competent to perform whatever job functions Respondent's asphalt repair, seal coating, and prospective "slurry seal" projects would require; clearly they consti- tuted a representative complement. Respondent's subse- quently "expanded" business operations were, during BAY AREA SEALERS May 1975 particularly, merely matters of purpose and hopeful expectation; they had not even reached a con- crete planning stage. Certainly no steps looking toward their prospective implementation had yet been taken. 3. The composition of Respondent's bargaining unit crew With matters in this posture, Respondent's present contention that its formal May 14, 1975, commitments memorialized a contractual relationship legitimatized by Section 8(f) solely-rather than a relationship validated consistent with Section 9(a)'s provisions-must now be considered. a. Preliminary statement In this connection, some preliminary comments would seem required, however, with particular reference to the present record. When Case 32-CA-98 was first heard, my conclusion therein that Section 8(a)(5) had been vio- lated subsumed a factual determination, bottomed upon Business Representative Moore's unchallenged testimony that Complainant Union had represented a majority of Respondent's workmen (within a bargaining unit appro- priate for collective-bargaining purposes) when their contractual consensus was reached. Respondent's present contention on remand, that Complainant Union could le- gitimately claim nothing more than a Section 8(f) con- tractual relationship, therefore constitutes an affirmative defense. With respect thereto, Respondent must necessar- ily bear the burden of proof. This Board has held that the burden of proof, with respect to determinations re- garding Section 8(f)'s dispositive applicability in particu- lar cases, lies with the party seeking to avail itself of that section's exculpatory provisions. See Zidell Explorations, Inc., 175 NLRB 887, 892 (1969); Indio Paint and Rug Center, 156 NLRB 951, fn. (1966), in this connection. Within his brief, the General Counsel's representative notes, cogently, that any contrary rule would require the production of affirmative proof sufficient to establish a primafacie case, within any 8(a)(5) or 8(b)(3) proceeding, that the bargaining relationship under consideration did not involve building and construction industry . . . par- ties, or, if it did, that the concerned labor organization had been recognized, possibly many years earlier, when it represented a provable minority, at some time when the bargaining unit compassed a representative comple- ment, and so forth. In this case, therefore, Respondent must demonstrate, preponderantly, that Complainant Union's contract-because that labor organization's ma- jority status had not been established (consistent with Section 9(a)'s provisions) before Respondent partnership became a contract signatory-should be statutorily privi- leged and considered beyond 8(a)(3) strictures, solely by virtue of Section 8(f)'s exculpatory reach. Only then, presumably, could Respondent's counsel finally contend with any prospect of success that, consistent with the Board's Higdon Contracting Company rationale, no 8(a)(5) refusal-to-bargain charge should be considered sustained herein. To satisfy Respondent's burden, then, two determina- tions must preponderantly be found warranted: first, that the firm's bargaining unit complement, during the pay period concededly crucial herein, contained a specifically determined number of workers; and, second, that Com- plainant Union's claimed designation cards (four in number) should not be considered a majority showing within the bargaining unit thus constituted. To those questions, we must now turn. b. Respondent s payroll roster On Monday, May 19, Respondent paid nine employees presumably for services performed in connection with bargaining "unit" work during the preceding May 11- May 17 calendar week. This group therefore constitutes the total work force with which this case is concerned. On Wednesday, May 21, Respondent paid James Free- mon for services rendered on Saturday, May 17. Free- mon, who had previously been driving a truck for an- other firm, had been recruited for "line driver" work that day handling Respondent's newly activated "Slurry Seal" machine. So far as the record shows, after Satur- day, May 17, he worked merely one more day, sometime within the second calendar week thereafter. Respondent makes no contention that he should have been counted within the firm's bargaining unit when it became a con- tract signatory. Of Respondent's nine-member work force, paid for services rendered during the crucial week herein, four-Douglas Harris, Jesus Laborin, Warren LaHara, and James Gordon-were then clearly full-time or regular part-time hourly paid workers. Harris had been working regularly for more than 15 weeks, save during a single April 1975 pay period. LaHara, Laborin, and Gordon, though newly hired within Respondent's preceding pay period (on Wednesday, May 17, presum- ably), worked regularly (though slightly less than full time) thereafter through the last full pay period within the calendar year's second quarter, and beyond that pay period. The four workers named should clearly be con- sidered compassed within the bargaining unit with which this case is concerned. Terry Litz, hired in January 1975, worked regularly thereafter; he performed "unit" services, I find, through- out the calendar year's first and second quarters. Re- spondent's payroll records show he was last compensat- ed for services during the firm's June 15-21 pay period. Litz was hourly paid through May 3. Thereafter, for a 3- week period through May 24, he was salaried; he re- ceived $180 weekly. Rayner's testimony warrants deter- minations that Litz had requested a chance to learn "sales" and "estimating" work within Respondent's field; that he had been paid a fixed salary, during the period noted, so that his income during that period would be guaranteed; that during the period in question he had spent merely 30 percent of his time doing "sales" and "estimating" work, with the balance of his working time spent on Respondent's production crews; and that-sub- sequent to May 25 specifically-he had performed hourly paid services, working regularly, though slightly less than full time, on Respondent's production crews. Litz should be included, within Respondent's bargaining unit count. Eastern Rock Products. Inc., 239 NLRB 892, 893, fn. 5 (1978); cf. Boston Pet Suppiv. Inc., 227 NLRB 129 130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1891, 1898 (1977). Though he provided during the cru- cial May 11-17 week temporary "dual function" serv- ices, he clearly retained a substantial "community of in- terest" with Respondent's full-time and regular part-time production workers concerning their wages, hours, and conditions of work. Joe Staron had been hired for bargaining "unit" work in January 1975; he had worked more or less regularly through Respondent's March 16-22 pay period. Then, he had resigned. When rehired sometime during April 1975 he had worked a significant number of hours during three successive pay periods. However, during Respond- ent's next two pay periods, ending on May 10 and May 17, respectively, Staron had worked merely single days-never specified-within each successive week. While a witness, Rayner could not recall the date, within the relevant May 11-17 pay period, when Staron worked; he merely testified, that May 14 had not been that day. Whatever the day, the worker in question per- formed no services in Respondent's hire thereafter. Upon this record, no determination that Staron should be counted a bargaining "unit" member for present purposes would be warranted. Compare De Luca Brothers, Inc., 201 NLRB 327, 329-330 (1973) (Daniel Skarbink); Cole- craft Mfg. Co. Incorporation, 162 NLRB 680, 689 (1967) (Anthony Romano). Rayner testified that Staron was not working on May 14; no testimony has been proffered, however, calculated to prove that he worked alternative- ly thereafter. Ergo, Staron's last day of work could have been prior to May 14; if so, he could no longer have been properly considered a bargaining unit member, either on or after that date. With matters in this posture, Respondent's testimonial and documentary presentation cannot be considered sufficient to satisfy its burden of proof, with respect to Staron's May 14 bargaining unit membership. David Fuqua entered Respondent's employ during February 1975; he worked regularly thereafter-within every week except one-for 2 months. On Monday, April 21, Fuqua reported for work; he picked up his pay- check for 2 day's work within Respondent's previous April 13-19 pay period. Fuqua did not report for work thereafter, however, during the balance of Respondent's April 20-26 pay period, or the two pay periods which followed. (He was not paid, personally or by mail, during this period for his April 21 services since he had not turned in his timecard.) After April 21 Fuqua disap- peared; though Respondent sought his services, he could not be reached at his home address. At one time, within the 3-week period now under consideration, he was sought for questioning-so Rayner testified-by the police. On Monday, May 19, Fuqua subsequently report- ed for work; he received a $145.29 paycheck, but Re- spondent's payroll records contain no entry showing his days, or total hours, previously worked. Rayner testified that Fuqua's May 19 paycheck, inter alia, covered his compensation for services previously rendered on April 21, for which his timecard had finally been submitted; the transcript reflects a presumably mis- spoken reference to the date in question. Respondent's partner could not, however, recall Fuqua's April 21 hours of work; nor could he recall Fuqua's compensation for that particular day. Rayner's testimony further re- flects nothing more than his "thought" or "belief' that Fuqua had subsequently resumed work, specifically, during the crucial May 11-17 pay period with which this case is concerned, and that Fuqua's services, during that particular week, had presumably been provided within a 3-day period; Respondent's partner could not, however, recall those days, precisely. Fuqua's May 19 paycheck, which included belated compensation for his April 21 services, provides no reliable basis for "inferences" with regard to his subsequent days of service. Between Monday, May 19, and Thursday, May 22, Fuqua worked 29 regular time hours, plus slightly more than 9 hours overtime, compensated at time-and-a-half rates. He was paid off on Friday, May 23, and performed no services for Respondent following that date. Upon this record, Fuqua's inclusion within Respond- ent's proposed bargaining unit head count would not be warranted. The record contains no reliable, probative "evidence" that he worked during the crucial calendar week herein. However, should a determination based on Rayner's less-than-positive recollections be considered warranted, arguendo, that Fuqua did indeed work 3 days within Respondent's May 11-17 pay period, those 3 days could have been May 15, 16, and Saturday, May 17, since James Freemon's service on the latter date persua- sively suggests it was a working day. (The possibility that Fuqua could have worked on May 12, 13, and Wednesday, May 14, may be disregarded; Rayner testi- fied without qualification that only LaHara, was working on the latter date.) If so, Fuqua's work record would show a significant lapse between April 21, after which he disappeared, and May 14, the relevant date herein. And, with matters in that posture, Respondent's concededly speculative testimonial and documentary presentation can hardly be considered sufficient to justify a conclusion that Fuqua should have been considered a bargaining unit member on May 14 specifically. With due regard for his service record, Fuqua cannot reasonably be deemed a "somewhat . . . sporadic" workman with a sufficient continuing interest in Respondent's terms and conditions of work to warrant his unit inclusion. Rather, he could legitimately be compared with a resigned ex-employee who reports to resume work the day following a labor organization's recognition demand. See Local Union No. 707, Highway and Local Motor Freight Driver, Dockmen and Helpers International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Clare- mont Polychemical Corporation), 196 NLRB 613, 623 (Alvin Shavis), at fn. 15 (1972), and cases therein cited. Alternatively, Fuqua's situation could be likened to that of some workman who, on the relevant date, could not (based on the evidence presented) claim a reasonable ex- pectancy of reemployment, and thus could not claim a current community of interest with other workmen on that date sufficient to justify his inclusion within their bargaining unit. See Lawrence Rgging, Inc., 201 NLRB 1094, 1095 (1973), in this connection. Viewed either way, Fuqua's less-than-clear payroll status, during Respond- ent's May 11-17 payroll period, will hardly warrant his inclusion within Respondent's defined bargaining unit, BAY AREA SEALERS 131 for the purpose of determining whether Complainant Union-on May 14 specifically-represented a majority of Respondent's construction industry workmen. Carlos Torrez was hired on Tuesday, April 22; he worked a substantial number of hours during that calen- dar week and both following weeks. According to Rayner, Torrez received a telephone call informing him that his mother was sick, in Los Angeles; he left San Jose on Saturday, May 10, and did not return to work until Thursday, May 15. Respondent's payroll records show that Torrez worked 9 regular time hours, plus 5 overtime hours, during the firm's May 11-17 payroll period. Those records, however, do not reveal his specif- ic workdays. According to Rayner's proffered recollections, Torrez worked a full day on May 15, plus a partial day on Friday, May 16. He received a second telephone call, and left for Los Angeles forthwith. His mother died, and he never returned to work. On May 20, Respondent re- corded his resignation. Torrez should not be counted a bargaining unit member for present purposes. See Dee Knitting Mills, Inc., Dippy Knits, Inc. and Three D. Knitting Mills, Inc., 214 NLRB 1041, 1048 (1974) (Marie Reina), in this con- nection. Therein, the Board concurred with an adminis- trative law judge's conclusion that Reina should not be considered a bargaining unit member, for the purpose of measuring the concerned union's majority status on the date when it requested recognition. The administrative law judge's conclusion had been based upon record evi- dence that Reina had-7 days previously-declared she was quitting; the fact that she had not been working on the critical date; and her sporadic work record thereaf- ter. Torrez' situation may reasonably be considered com- parable. His first 5-day Los Angeles trip, though not a verbal "statement" that he was quitting, clearly suggest- ed a considerable likelihood that he might not return. He had not returned, and was not working, on May 14, the critical date herein. And his work record thereafter was certainly sporadic; he abruptly left within 2 days and never returned. He should not be considered part of Re- spondent's bargaining unit complement. Charles McDaniel, though hired pursuant to prelimi- nary negotiations conducted during January and Febru- ary 1975, first appeared on Respondent's payroll during the initial payroll period of March 1975. He had been en- gaged for sales work, the calculation of job "estimates" concerned with Respondent's possible contract projects, and formal bid preparations. Before being hired, so the record shows, McDaniel had been given assurances: first, that he would retain his position permanently so long as Respondent's business continued, or so long as he chose to remain with the firm; and second, that-should Re- spondent's business prosper during its first year-he would be given a chance thereafter to purchase a part- nership interest therein. Throughout the period with which this case is concerned, McDaniel was salaried; pursuant to Respondent's previously negotiated commit- ment, he received $250 weekly, while working a full- time 5-day week. According to Rayner, he was consid- ered a permanent employee, because of his multiple tal- ents. Between March and July 1975, however, McDaniel's sales/estimation work and bid preparation responsibilities had consumed comparatively little of his working time. Some 70 percent of his time, during each week through- out this period, had been spent working directly with Respondent's hourly paid production crews busy on con- tract projects; further, he had done maintenance, fabrica- tion, or modification work, when required, on Respond- ent's vehicles and mobile equipment. While so engaged, however, McDaniel had not been required to maintain ti- mecard records. Rayner testified, with McDaniel's tan- gential corroboration, that during February 1975, before taking on his full-time salaried position, the latter had done "squeegee" work for 2 days on Respondent's Dow Chemical project. Thereafter, he had taken time off, to clear up some "loose ends" related to his previous em- ployment and certain personal problems, before his March 1975 commencement of full-time salaried service. McDaniel concededly had not functioned in supervisory capacities; Respondent's partners, Frank Clark and Rayner, who during this period had worked routinely, separately or together with their crewmembers, provided required supervision. When not requisitioned for service with Respondent's hourly rated production crews during the period now under consideration, McDaniel would handle the firm's direct mail "job solicitation" program. And whenever Respondent's sales promotion leaflets or brochures, dis- patched by mail, did evoke responses from potential cus- tomers, McDaniel would (like his partnership superiors) call upon the people who had thereby shown some inter- est with respect to engaging Respondent's services; he would provide them with "estimates" detailing Respond- ent's proffered services and possible job charges. When required, he would help Clark and Rayner prepare Re- spondent's formal "bids" for dispatch to prospective pri- vate clients, general contractors, or local government bodies. According to Rayner, Respondent's returns from its direct mail sales solicitation program-during the early months of 1975 particularly-had been meager, since the firm had not yet then received much public "exposure" within its chosen field. Consequently, there had been comparatively little sales/estimating bid work for McDaniel during these early months; most of his time had been spent on production crew work. During the second 6 months of 1975, however, Respondent's sales and bid preparation work had expanded somewhat; but McDaniel's services had been "mostly" required never- theless on production crews. Sometimes, he had worked as Respondent's designated "top man" with the firm's Slurry Seal crew. While doing sales/job estimation work, during this period and throughout his subsequent service, McDaniel had the use of a partnership-owned car, and was reimbursed for the car's operating expenses. Starting with Respondent's winter slow season during December 1976, and through the 2 calendar years which followed, McDaniel spent the major part of his time in sales work and job estimate preparation. Further. he was delegated responsibility for making preliminary "arrange- ments" plus required administrative "line out" prepara- HAY AREA SEALERS 131 132 DECISIONS OF NATIONAL LABOR RELATIONS B13()ARD tions with respect to Respondent's more substantial. pub- licly funded, contract projects. McDaniel remained with Respondent, for 4 years, until February 1979, when he resigned; he never became a partner. Upon this record, McDaniel should not belatedly be considered a member of Respondent's bargaining "unit" complement during the period with which this case is concerned. See Groehn Spotting Fixtures Co., Inc., 224 NLRB 842, 843 (1976) (Iceberg); cf. Stephen Davis and Michael Provenzano d/b/a Carlton's Market, 243 NLRB No, 137 (1979) (ALJD, sec. 11 C-Kurji). True, during the 3-month period which preceded Complainant Union's May 14, 1975, contract proffer, and for some months thereafter, he spent most of his time performing bargaining "unit" work, together with Respondent's hourly paid crewmembers. Considered in totality, how- ever, the record herein clearly warrants a determination that throughout his period of service McDaniel enjoyed special status. Respondent's partners had notified him beforehand with respect to Business Representative Moore's pros- pective May 14 visit, during which contract talks would be conducted. When Moore arrived, McDaniel just "happened" to be present in Respondent's office. Though he had not theretofore been specifically invited, he was not requested to leave; he remained throughout the con- tract talks which were then conducted. None of Re- spondent's hourly paid crewmembers shared McDaniel's demonstrated "accessibility" with reference to his part- nership superiors. By virtue of his particular status, McDaniel was af- forded "work privileges and advantages" which Re- spondent's hourly paid crew members did not share; these privileges and advantages clearly sufficed to negate any meaningful "community of interest" between McDaniel and Respondent's production crewmembers. He should be excluded from the firm's bargaining "unit" count. In summary: Respondent's bargaining "unit" crew complement during the firm's May 11-17 payroll period-with which Complainant Union's designation card "showing" must be compared-should be consid- ered limited to five full-time and regular part-time work- ers: Harris, Litz, Laborin, Gordon, and LaHara, specifi- cally. I so find. In this connection, Moore's never-contradicted testi- mony (when Case 32-CA-98 was first heard, before the question of Respondent's precise crew complement became a subject of controversy), that during his May 14 conference with Respondent there were "discussions" with regard to "five people" then on Respondent's pay- roll, should be noted. That testimony's congruence with my present factual determinations persuasively suggests within my view that Respondent's partners themselves then considered their firm's May 11-17 bargaining "unit" roster limited to those workers whom I have now found compassed therein. Respondent's further contention, that Complainant Union's claimed designation cards-because of the cir- cumstances under which they were presumably pro- cured-constituted no majority showing within any con- ceivable bargaining "unit" complement must now be considered. 4. Complainant Union's designation card showing Within Respondent's brief, the contention is proffered, purportedly in reliance upon Business Representative Moore's testimony, that Complainant Union's four claimed designation cards must have been obtained, shortly following completion of the firm's Dow Chemi- cal Company contract job, from crewmembers who had worked on that project. Proceeding from this factual premise, Respondent's counsel would have this Board note (1) that, according to Respondent's records, the firm's work at Dow Chemical's plant, which had com- menced during February 1975, was completed within that year's March 1-2 weekend period; (2) that Respond- ent had retained five hourly paid workers-Staron, Harris, and Litz, plus two more men, Bob Brown and Dave LaCariere-for seal coating work, which they per- formed in conjunction with Clark, Rayner, and McDan- iel, plus a volunteer, at Dow Chemical's plant; (3) that Respondent's payroll records show Brown and LaCar- iere had ceased work for Respondent, after limited serv- ice, during successive February 1975 pay periods, pre- sumably before the Dow Chemical job's completion date. Relying upon these matters of record, Respondent's counsel contends, finally, that Complainant Union's busi- ness representative-with four designation cards purport- edly signed, shortly following the Dow Chemical job's March 1975 completion, by workmen who had presum- ably provided services on that project-could not, under any circumstances, have been holding authorizations sub- mitted by a majority of Respondent's bargaining "unit" complement within the May 11-17 payroll period during which Respondent became a contract signatory. In this connection, Respondent's counsel contends that no more than three members of the firm's Dow Chemical crew-Staron, Harris, and Litz-remained working members of Respondent's nine-member bargaining "unit" complement during the crucial payroll period herein. I have, however, found previously herein that Respond- ent's bargaining unit complement within that particular payroll week-with Staron, inter alia, not counted- compassed no more than five full-time and regular part- time workers. Respondent's brief, when read in conjunc- tion with my final "unit" determination, would suggest a contention nevertheless that (confronted with a bargain- ing unit, arguendo, limited to five workmen) the Union's representative could merely have produced two cards, at the most, signed by Harris and Litz, since those designa- tion cards which Brown, LaCariere, or Staron might have signed would no longer have been relevant. Re- spondent's counsel, within her brief, argues that two cards-compared with any conceivable May 14 bargaining "unit" complement rationally determined-would not have constituted Complainant Union a majority representative. Counsel's contentions, however, carry no persuasion. They derive from a purported factual foundation which the present record, considered in totality with due regard for reasonable or logical probabilities, will not support. BAY AREA SEALERS 133 When first summoned by the General Counsel's repre- sentative, Business Representative Moore was questioned with respect to particularly relevant developments which had transpired 2 years previously. Subsequently, when summoned by Respondent's counsel during the present remand proceeding, Complainant Union's representative was queried further with regard to those developments; of course, they had by then receded even further into past history. Having observed Moore's witness-chair behavior, I was convinced when this case was first heard (and still remain persuaded) that his testimony regarding the se- quence of events with which we are concerned was throughout proffered with straightforward sincerity. Further, that testimony derived from his best recollec- tion. The complete record herein, when closely scrutinized, does reveal certain discrepancies within the business rep- resentatives successive testimonial recitals-particularly with regard to time spans between Respondent's comple- tion of Dow Chemical's seal coating project, Complain- ant Union's subsequent procurement of four signed desig- nation cards, and May 14, when Respondent became a contract signatory. Those discrepancies cannot reason- ably be considered prompted by some deliberate purpose to mislead. They derive presumably from time's passage; the passage of time has conventionally been considered a substantial factor reasonably calculated to mist human memory. Nevertheless, when considered within their total record context, Business Representative Moore's variously proffered recollections do not really becloud his basic testimonial declaration that Respondent's crew- members provided him with union designation cards very shortly before his May 14 conference with Re- spondent's partners. True, Complainant Union's business representative tes- tified-when first summoned-his meeting with Re- spondent's "temporarily laid off" employees, who had performed work on Dow Chemical's seal coating proj- ect, took place "after" that project's completion. He proffered no testimonial statements, however, regarding the time lapse between the project's completion and his subsequent conference with Respondent's crewmembers. With respect thereto "inferences" must, therefore, be drawn. On balance, no determination would be warrant- ed that Complainant Union's representative met with Re- spondent's workers directly following their work on Dow Chemical's facility. In that connection, I have noted Moore's subsequent testimony: first, that Respondent's workmen, who had worked on Dow Chemical's floors, had returned to San Jose and worked on "other" jobs thereafter, before they made inquiries regarding union representation; second, that Respondent's workmen vis- ited the San Jose headquarters of Painters Union Local No. 507, for the purpose of making such inquiries, before their conference with Complainant Union's business rep- resentative convened (during which their signed designa- tion cards were delivered); third, that Business Repre- sentative Moore's conference with Respondent's work- men took place 2 days to a week before his prearranged May 14 conference with Respondent's partners. Upon this original record, Respondent's double contention- that Moore's conference with the firm's workmen must have taken place directly following the March 1975 com- pletion of Dow Chemical's project, and that he must have received designation cards solely from people who had served on Respondent's Dow Chemical crew complement previously-can hardly, be considered persuasively vali- dated. On remand, when summoned by Respondent, Com- plainant Union's business representative did testify, inter alia, that his "designation card" meeting with Respond- ent's workmen had taken place with in a week to 10 days after he learned about Respondent's presence on Dow Chemical's project. When queried further, however, he declared:first, that by the time he met with Respondent's crewmembers they had finished the Dow Chemical job and were working on some "other" San Jose projects; second, that when he met them they were visiting Local No. 507's San Jose headquarters directly after their work- ing day's conclusion, while still wearing their work clothes; third, that none of Respondent's workmen, with whom he spoke, had described themselves as terminated, or no longer associated with the firm; and fourth, that their conversation had given him the specific "impres- sion" they considered themselves Respondent's regular, normal crew. Such testimony, considered in totality, per- suasively suggests that Moore's previously noted witness- chair reference to some "week" or "10-day" time span (between his initial acquisition of knowledge regarding Respondent's Pittsburg, California, project, and his sub- sequent meeting with the firm's crewmembers) should be deemed derived from a momentary misconception, bot- tomed presumably upon telescopically compressed memories. When first queried by Respondent's counsel on remand, Complainant Union's representative had re- called his meeting with Respondent's workmen "10 days before" his May 14 conference with Respondent's part- ners. Ultimately, Moore testified that he met with Clark and Rayner 2 or 3 days after he received the designation cards signed by Respondent's crewmembers. With matters in this posture, the record-considered in totality provides no persuasive, preponderant, support for Respondent's affirmative present contention that: . . .the Union, even in the light of its own testimo- ny that it had procured four cards from Dow Chemical crew members, could not have held ma- jority status at the time the agreement was conclud- ed. Rather, Business Representative Moore's testimony- when evaluated with due regard for the circumstances under which it was proffered, and with due regard for its collateral record support-provides sufficient warrant view for a determination that Respondent's workmen tendered their signed designation cards sometime shortly before May 14, within the May 11-17 payroll period with which we are concerned. With respect to this reli- ance upon portions of Moore's composite testimony, to the exclusion of other portions, see N.L.R.B. v. Universal Camera Corporation, 179 F.2d 749, 750, 754, (2d Cir. 1950); the court therein notes that triers of fact may properly credit part of a witness' testimony, while refus- BAY AREA SEALERS 133 134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing to accept other portions. Respondent's presentation on remand suggests no persuasive rationale whatsoever for some contrary factual conclusion that Business Rep- resentative Moore got four signed cards from the firm's Dow Chemical project workers and then delayed or postponed Complainant Union's recognition demand for some 10 weeks. A request to confer regarding a pro- posed contract-directly following the Union's procure- ment of designation cards-would seem more compatible with logical probabilities. I so find. D. Conclusion On May 14, when Complainant Union requested rec- ognition and Respondent's partner, Frank Clark, signed that organization's Association contract, then in force, the Union represented a majority of the firm's current full-time and regular part-time employees, within the bar- gaining unit found appropriate herein for collective-bar- gaining purposes. IV. RESPONDENT'S 8(F) DEFENSE Herein, Respondent presently contends that when Frank Clark signed Complainant Union's proffered Asso- ciation contract his signature memorialized a mere "pre- hire" agreement within the purview of Section 8(f) of the Act; and that Respondent's partners, thereafter, law- fully "refused to acknowledge, honor, implement or comply" therewith, since Complainant Union had, so Re- spondent asserts, neither claimed nor commanded major- ity representative status, either when the contract in question was signed, or, subsequently, when union de- mands for compliance therewith were presented. In that connection, Respondent relies upon Board pre- cedents which hold that construction industry contracts, validly concluded-consistent with Section 8(l)'s provi- sions with labor organizations not qualified to claim major- ity status at the time of their conclusion, generate no subse- quent presumption of majority status during their terms, and therefore may be repudiated at will-save when the labor organizations concerned can demonstrate that they subsequently became qualified as majority representatives, before they demanded contract compliance, or concur- rently with such demands. See Local No. 150, Interna- tional Union of Operating Engineers (R. J. Smith Construc- tion Co., Inc.), 191 NLRB 693, 694 (1971), enforcement denied 480 F.2d 1186 (D.C. Cir. 1973), decision on remand 208 NLRB 615 (1974); see, likewise, that case's companion, Ruttmann Construction Company and Ruit- mann Corporation, Joint Employers, 191 NLRB 701, 702 (1971). These decisions have, since their promulgation re- ceived the Supreme Court's imprimatur within a collater- ally relevant case. See N.L.R.B. v. Local Union No. 103, International Association of Bridge, Structural & Ornamen- tal Iron Workers, AFL-CIO [Higdon Contracting Co. l 434 U.S. 335 (1978), enfg. 216 NLRB 45 (1975), specifically. Within her brief, Respondent's counsel concedes, how- ever, that should the present record warrant a determina- tion that Complainant Union herein "possessed majority status" when Respondent became a nonmember signato- ry privy to that organization's proffered Association con- tract the Board could "find a Section 8(a)(5) violation" bottomed upon Respondent's failure to honor or comply with contractual commitments. The Board's R. J. Smith Decision, previously noted, concerned a construction industry firm which-like Re- spondent herein-had functioned with a fairly "stable complement of employees" subject to a fairly "modest" turnover. Further-like Respondent herein-the con- cerned firm had become privy to master contracts previ- ously negotiated and signed following discussions where- in: No issue as to the Union's representative status was . . . raised by Respondent, nor was the Union's demand for a new agreement based on any [express- ly articulated] claim that it represented a majority of Respondent's equipment operators. [Interpolation supplied.] The Board there concurred with a Trial Examiner's de- termination that R. J. Smith had not violated Section 8(a)(5) and/or Section 8(d) of the statute, through certain unilateral changes, which modified contractually defined wage rates; that determination was bottomed principally upon the General Counsel's record concession that "at no time during the parties' [valid 8(f) pre-hire] contrac- tual relationship" had complainant labor organization therein been the majority representative of R. J. Smith's workmen. No such concession, however, can be found within the present record. And, previously within this supplemental decision I have found, contrariwise, that before Business Representative Moore sought Respondent's May 14 com- mitment with respect to Complainant Union's current Association contract that labor organization had, in fact, been designated as their representative, by a majority of Respondent's full-time and regular part-time workmen, within a unit appropriate for collective-bargaining pur- poses. Respondent's testimonial and documentary presen- tation-on remand-has been found insufficient to counter the General Counsel's prima facie showing, pre- viously proffered and reiterated, with respect to Com- plainant Union's majority representative status. Respondent's May 14 contractual commitment clearly cannot properly be considered a conventional construc- tion trade "pre-hire" agreement within the commonly recognized meaning of that term. See Local No. 150, In- ternational Union of Operating Engineers v. N.L.R.B., 480 F.2d 1186, 1189, fns. 3 and 4 (D.C. Cir. 1973), in this connection. Nor, upon the present record, can it proper- ly be considered a contract with a labor organization whose "majority status ... has not been established under the provisions of Section 9 of this [National Labor Relations] Act" prior to Respondent's adherence thereto. In short, it cannot be considered the type of commitment for which Complainant Union could claim validity solely because it qualified, when negotiated, for Section 8(f)'s statutorily limited privilege. Rather, the present record, considered in totality, warrants determinations, consistent with my factual findings previously noted, that Com- plainant Union could properly claim recognition as the 9(a) representative of Respondent's workmen; that Re- spondent's partner, when he signed Complainant Union's BAY AREA SEALERS 135 proffered Association contract, granted such recognition; that Complainant Union could properly have required Respondent's compliance with its contractual commit- ments within that contract's term; and that Respondent's failures of compliance, during a successor contract's term-found within my prior decision herein-constitut- ed refusals to bargain statutorily proscribed. Complainant Union's counsel-within his brief filed in connection with the present remand proceeding-cur- rently contends that whatever the present record may show Respondent should in any event be considered "collaterally estopped" herein from challenging the exist- ence of Complainant Union's contract. Within my March 23, 1978, Decision, with respect to Case 32-CA-98 specifically, reference was made to Complainant Union's Section 301 suit to compel arbitra- tion regarding Respondent's purported failures of con- tract compliance; Respondent's defense therein that Complainant Union had "abandoned" or "repudiated" their concededly negotiated contractual consensus; the district court's concurrence with Respondent's defensive contention; and Complainant Union's determination to appeal the district court's consequent dismissal, with re- spect to its Section 301 petition. On June 29, 1978, the Court of Appeals for the Ninth Circuit reversed the Dis- trict Court's dismissal. Auto, Marine & Specialty Painters Local No. 1176 v. Bay Area Sealers, Inc., 577 F.2d 609. The court of appeals found that Bay Area Sealers had stipulated the "initial existence" of their collective-bar- gaining contract, and concluded that the persuasive thrust of the firm's "abandonment" or "repudiation" de- fense should be resolved in directed arbitration proceed- ings. Such proceedings have not thus far been convened; pursuant to consensual arrangements, the parties have deferred their resort to arbitration, pending the present case's disposition. Specifically, Complainant Union contends that the Ninth Circuit's basic determination regarding its con- tract's formal "existence" should be considered binding for present purposes. However, since I have concluded upon the record that Complainant Union should be con- sidered a demonstrable Section 9(a) representative, privy to a contract properly negotiated with Respondent part- nership, I would find a comparable determination bot- tomed upon counsel's "collateral estoppel" contentions neither warranted nor required. Should such a determination, arguendo, be considered necessary, however, I would consider myself constrained to hold, contrary to Complainant Union's contention, that the Ninth Circuit's decision carries no dispositive "collateral estoppel" thrust, specifically with respect to questions which have been discussed herein. The court was presented with a jurisdictional, rather than a sub- stantive, question. Its decision reflects merely a determi- nation that Respondent was privy to a subsisting con- tract, pursuant to which Complainant Union could prop- erly seek arbitration regarding "all" disputes and griev- ances; the court was not required to decide whether Complainant Union had negotiated that contract while a properly qualified 9(a) representative of Respondent's workmen, or whether it was merely privy to contractual commitments which Section 8(f) alone could validate. Further, such determinations, had they been sought, would presumably have been considered beyond the court's primary jurisdictional reach. See Waggoner, et al. v. R. McGray. Inc., et al., 607 F.2d 1229, (9th Cir. 1979), in this connection. The court of appeals held therein that because the Board has been granted primary jurisdiction with respect to matters within its statutorily defined competence the Federal courts should not serve as "ini- tial arbiters" with respect to unfair labor practice ques- tions, when such questions have been raised, by way of defense, within Section 301 actions.) My conclusions with respect to Complainant Union's 9(a) representative status, in short, must rest upon the complete record made, herein, during both the initial hearing held, on the General Counsel's complaint in Case 32-CA-98, and the present remand proceedings. When a labor organization has been found qualified to claim majority status-concurrently with its demand for recognition-within a construction firm's permanent em- ployee complement, the concerned firm must be consid- ered obligated to recognize that labor organization's 9(a) representative status for both current and prospective jobsites, throughout their consequentially negotiated con- tract's term-and, further, throughout any successor agreement's term bottomed upon their first contract's pro forma renewal. The Board's decision in Dee Cee Floor Covering, Inc., 232 NLRB 421 (1977), dictates no contrary conclusion. That case clearly should be considered distinguishable; the Board found therein that Dee Cee-which had ini- tially signed a concerned labor organization's contract- had not maintained a "regular complement of employ- ees" but had hired workmen as needed, and that Dee Cee's alter ego/successor Dagin-Akrab Floor Covering, Inc., had not had "employees working for it" when it subsequently signed a similar collective-bargaining con- tract. The case therefore clearly fell within the Board's R. J. Smith and Ruttman Construction decisional rubric. This case does not. See Haberman Construction Company, 236 NLRB 79, fn. 5 (1978), Board Member Murphy's comment. Most recently, the Board has specifically "dis- avowed" suggestions that Dee Cee Floor Covering's rationale should be considered applicable to 9(a) bargain- ing relationships, comparable with the relationship found present herein. See G. M. Masonry Co., 245 NLRB No, 54, fn. 1 (1979). This conclusion necessarily derives from-and com- ports with-the Board's well-settled decisional rule that "where there is a collective-bargaining agreement in effect between an employer and a union which is the statutory bargaining agent for the employees covered by the contract, that union enjoys an irrebutable presump- tion of majority status" throughout that agreement's term. See Precision Striping, Inc., 245 NLRB No. 34 (1979), citing Hexton Furniture Company, 111 NLRB 342 ((1955), in this connection. Compare Pioneer Inn Asso- ciates d/b/a Pioneer Inn and Pioneer Inn Casino v. N.L.R.B., 578 F.2d 835, 838-840 (9th Cir. 1978), enfg. 228 NLRB 1263 (1977), and cases therein cited. I have so found, with respect to Complainant Union specifically, BAY AREA SEALERS 135 136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD within my first decision drafted to dispose of Case 32- CA-98; upon remand, herein, I reaffirm that conclusion. My determinations set forth herein comport clearly with the Board's decision in Local Union No. 103, Inter- national Association of Bridge, Structural and Ornamental Iron Workers. AFL-CIO (Higdon Contracting Company), 216 NLRB 45 (1975), bottomed upon its prior R. J. Smith and Ruttman Construction decisions, previously noted. In Higdon, wherein Respondent Union was charged with an 8(b)(7)(C) violation, the Board found that: Neither at the time the contract between the Re- spondent Union, therein, and the Charging Party's alter ego companion firm was executed, nor thereaf- ter did the Union claim to, or in fact, represent a majority of Higdon Construction's employees. Consequently, the Board concluded that Respondent Union's contract, though currently viable, was merely a lawfully executed 8(f) contract; that no presumption of majority status, bottomed upon its negotiation, could properly be claimed; that the contracting firm's duty to honor it was therefore limited conformably with the cir- cumscribed validity of 8(f) agreements, defined within the Board's prior Decisions; and that: For the Board to allow the Respondent to picket to enforce an 8(f) agreement . . . which Respondent could not enforce by means of obtaining an 8(a)(5) bargaining order, is to permit it to do by indirection what it could not do directly [Emphasis supplied] Conversely, the Board's decision suggests necessarily that-when labor organizations, qualified to represent workmen within a defined bargaining unit pursuant to Section 9(a) of the statute, seek a particular employer's compliance with a previously negotiated contract-such organizations may lawfully picket, without regard for 8(b)(7)(C)'s stricture, or seek an 8(a)(5) bargaining direc- tive. The Supreme Court, within its Higdon decision, previ- ously noted, which reflected its concurrence with this Board's construction of the statute, (435 U.S. 335, 343- 344), declared that: The Board holds that an employer's refusal to honor a collective-bargaining contract executed with the union having majority support is a refusal to bar- gain and an unfair labor practice under 8(a)(5). Ex- tended picketing by the union attempting to enforce the contract thus seeks to require bargaining, but as the Board applies the Act, 8(b)(7)(C) does not bar such picketing. Building & Construction Trades Council of Santa Barbara County (Sullivan Electric Co.), 146 NLRB 1086 (1964) . . . [The] Sullivan Electric rule does not protect picketing to enforce a contract entered into pursuant to 8(f) where the union is not and has never been the chosen representa- tive of a majority of the employees in a relevant unit. Neither will the Board issue a 8(a)(5) bargaining order against an employee (sic) refusing to abide by a 8(f) contract unless the complaining union can dem- onstrate its majority status in the unit. .... [Empha- sis supplied.] .... Consistent with these decisional formulations, the Court noted (434 U.S. 335, 352) that the Board's Sullivan Elec- tric decision would permit picketing to enforce contracts "with a union actually representing a majority of the em- ployees" within a defined bargaining unit. The Board's brief in Higdon, previously filed with the Court, described Sullivan Electric as a case wherein "an uncertified union representing a majority of the employ- ees in an appropriate unit" had been accorded recogni- tion voluntarily by the concerned employer, who there- upon had "entered into a labor agreement" with the des- ignated union, consequent upon such recognition. By parity of reasoning, labor organizations in the con- struction trades which "actually" represent a majority of some concerned employer's workmen- or whose prima facie showing of majority status cannot be considered persuasively rebutted-would certainly qualify for 8(a)(5) relief. Thus, Complainant Union herein cannot legiti- mately be denied the bargaining directive which the General Counsel's representative seeks. In this connection, some consideration of Sullivan Elec- tric, which this Board still presumably considers a viable precedent, may be warranted. The complainant electrical contractor therein had-some 4 years previously signed a collective-bargaining contract with the Building and Construction Trades Council of Orange County, which committed the firm to perform work, within the geo- graphical jurisdiction of 12 designated Southern Califor- nia building and construction trades councils, pursuant to signed agreements with "appropriate" craft unions affili- ated with the particular council within whose jurisdic- tion such work would be performed. Sullivan's contract with the Orange County Council was to remain in force for slightly more than a year, and from year to year thereafter, absent timely notices-which "either party" might give-regarding that party's desire for their con- tract's modification or termination. Within the 4-year period which followed, no notices of modification or ter- mination generated by either party were given; the Board's Trial Examiner found, with the Board's concur- rence, that when he heard the case Sullivan Electric's 4- year-old contract, which had been periodically renewed, was therefore still in force. Whatever the testimonial or documentary record- made before the Board's Trial Examiner when Sullivan Electric was heard-may show his published decision re- flects no factual determination that the Orange County Council, functioning on behalf of constituent labor orga- nizations, had demonstrated or claimed majority repre- sentative status within Sullivan Electric's craft worker complement, concurrently with their contract's execu- tion. Nevertheless, the Board's Trial Examiner declared himself constrained upon the record made before him to presume the legality of Sullivan Electric's obligation. The Board concurred; it designated Sullivan Electric's commitment as "an existing valid collective-bargaining contract" between the parties. BAYAREA SEALERS 137 When Sullivan Electric, some 4 years after that collec- tive-bargaining contract's execution, commenced work on a construction project within Santa Barbara County, that county's Building and Construction Trades Council, and two concerned craft unions, learned-for the first- time that the firm had 4 years previously signed the col- lective-bargaining contract noted. These labor organiza- tions thereupon demanded Sullivan Electric's compliance with its still "existing valid" contractual commitments, and picketed to compel the firm's compliance with their demands. The Board found that "long before the disput- ed picketing commenced" Sullivan Electric had "recog- nized and extended bargaining rights" to the Santa Bar- bara Council, and that council's constituent craft union re- spondents; it concluded therefore that when those labor organizations picketed a Sullivan Electric project in their county their conduct was not "designed to attain" statu- torily proscribed objectives. The Board's conclusion suggests its basic determina- tion was that Sullivan Electric's several respondent labor organizations were qualified 9(a) majority representa- tives, who could have, properly, requested contract compli- ance, countering any refusal with 8(a)(5) charges. The respondent labor organizations therein had (so the Trial Examiner's published Sullivan Electric decision shows) filed an 8(a)(5) charge bottomed upon that firm's purported contract breach. And the Board's Regional Director had refused to proceed with a complaint bot- tomed thereon. The Sullivan Electric record, however, does not reflect his reason for dismissing the charge. Certainly, no conclusion would be warranted now that his refusal to proceed with an 8(a)(5) complaint had been bottomed upon some determination that the labor organi- zations concerned could not have claimed or demonstrat- ed 9(a) majority status. If, as the Board declared within its Higdon brief-pre- viously noted-the respondent labor organizations charged in Sullivan Electric, could properly have been considered, upon the record made therein, uncertified unions "representing a majority of the employees" within a unit appropriate for collective-bargaining purposes, then Complainant Union herein surely must be consid- ered qualified for such a designation. Respondents' record presentation within the present remand proceed- ing should not dictate a contrary determination. Complainant Union's contractual relationship with Re- spondents herein may therefore properly be considered a 9(a) relationship; Respondents' contention that their con- sensus should be considered legally "privileged" solely by virtue of 8(f)'s provisions merits rejection. V. COMPLAINANT UNION'S INFORMATION REQUEST A. Facts On March 14, 1978, shortly before my first Decision in Case 32-CA-98 issued, Complainant Union's counsel sent Respondents a letter wherein the firm was requested to make certain "information" available for union review. Specifically, the Union's counsel-contending that Complainant Union was the "authorized representa- tive" of Respondents' employees-requested: ". . . that you [Respondents] make your payroll records available for inspection by the union for the years 1976 and 1977 ."Within his written response, dated March 17, 1978, Gordon Rayner, functioning as Respondents' cor- porate president, declared that Complainant Union would never be permitted to review his firm's payroll records. Eleven days later, following the March 23 issuance of my Case 32-CA-98 Decision, Complainant Union's 8(a)(5) and (1) charge in Case 32-CA-824 bottomed upon Rayner's refusal was filed. B. Conclusion The statutory duty of employers to provide relevant information requested by the collective-bargaining repre- sentatives of their employees has long been recognized. In that connection, further, the Board's sole criterion for determining whether requested data must be produced has been that data's relevance-specifically, the Board determines whether the information sought may legiti- mately be considered "reasonably necessary" for the proper performance of the requesting labor organiza- tion's representative role. The Board has consistently held with judicial concur- rence that wage and related data, particularly pertaining directly to workers within a contractually defined bar- gaining unit, will be considered presumptively relevant. Respondents herein challenge none of these basic deci- sional principles. Primarily, counsel contends rather that Complainant Union's purported failure to demonstrate majority representative status, concurrently with its demand for Respondents' payroll records, should pre- clude Board sanctions herein. Since I have found, how- ever, that Respondents have not, upon this record sus- tained their contention that Complainant Union could not properly claim majority status-factually or pursuant to some legal presumption-their present claim that Re- spondents' refusal to provide requested payroll records for Complainant Union's review flouted no legal duty must be rejected. In her brief, Respondents' counsel suggests four fur- ther reasons, however, which should dictate Case 32- CA-824's dismissal. Her contentions, I find, carry no persuasion. First: the fact that Complainant Union's re- quest was sent and received shortly before my finding was made, with respect to Complainant Union's repre- sentational status, could not render that organization's re- quest for relevant information untimely; Complainant Union's majority status had previously been conceded. Second: Complainant Union's request for Respondent's payroll records could not properly be considered overly broad; since Frank Clark and Business Representative Moore had reached a definitive "sidebar" consensus that Complainant Union would not seek Respondent partner- ship's compliance with contractual commitments before the firm had demonstrably hired some "substantial" number of bargaining unit workmen, union representa- tives could reasonably request data calculated to facili- tate a determination with respect to when such a suffi- cient employee complement had actually been engaged. Third: the fact that Complainant Union's counsel submit- ted his request for information directly to Respondents, BAN' AREA SEALRS '37 138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD notwithstanding his presumptive "knowledge" that Re- spondents had retained substitute legal counsel in con- nection with their related NLRB proceeding, which had not theretofore been resolved, did not render Rayner's refusal to permit Complainant Union's review of his firm's payroll records privileged. Compare N.L.R.B. v. Autotronics, Inc., 596 F.2d 322 (8th Cir. 1979). Complain- ant Union's request for access to Respondents' payroll records had been bottomed upon preexistent claims of contract right; further, the request's presentation had not been tainted beforehand with a putative "cloud of impro- prieties" calculated to prejudice Respondents' position with reference to pending litigation. With matters in their present posture, Respondents' counsel cannot legiti- mately claim that Complainant Union's direct request re- flected its counsel's lack of regard for professional ethics. Fourth: Respondents' present claim that Complainant Union's request represented mere "harassment" likewise carries no persuasive thrust. Complainant Union's reason- able "need" for permission to review Respondents' pay- roll records has previously herein been noted; such a review would conceivably have facilitated mutually satis- factory determinations, first, with respect to when Re- spondents' prior commitment to contractual compliance should have been deemed operative, and with respect to which of Respondents' workmen should have thereafter been considered "eligible" for whatever wage and fringe benefits contract coverage might provide. Upon the present record, therefore, I find that Re- spondents' refusal to grant Complainant Union's March 1978 request to review payroll records, covering a rele- vant period within their renewed contract's term, consti- tuted a refusal to bargain statutorily proscribed. V. POSSIBLE REMEDY MODIFICATIONS Since I found within my first Decision herein that Re- spondents have committed, and have thus far failed to remedy, certain specific unfair labor practices which affect commerce, I shall, consistent with my determina- tions upon remand set forth herein, reaffirm my recom- mendations that Respondents be ordered to cease and desist therefrom, and to take certain affirmative action, including the posting o appropriate notices, designed to effectuate statutory policies. Developments since my previous Decision's issuance, however, persuasively suggest that because of certain changed circumstances my recommendations may re- quire modification. Those changed circumstances there- fore merit discussion. A. The Termination of Respondents' Bargaining Duty Within my first Decision, I recommended that the Re- spondents, Gordon L. Rayner and Frank H. Clark, d/b/ a Bay Area Sealers, and its successor, Bay Area Sealers, Inc., be required to signify their willingness to acknowl- edge, honor, implement, and comply with their previous- ly signed contract, as modified, throughout its renewed 3-year, 1975-78 term, giving that contract retroactive effect between June 1976 and its designated termination date. That contract, of course, contained a duration clause which provided for its renewal automatically from year to year, absent timely written notices, given "during the month of June preceding any anniversary date com- mencing with 1978" regarding either party's intention to seek their contract's modification or termination. Subse- quent to my first decision, with respect to Case 32-CA- 98 herein, Respondent gave Complainant Union the con- tractually specified notice. Within a letter dated June 20, 1978, and dispatched by certified mail, Respondents' counsel-functioning on behalf of Bay Area Sealers, Inc.-notified Complainant Union's business representative that: Without waiving its position that it has not been party to any enforceable collective-bargaining agreement with the Union and its further position that Local 1176 has in any event repudiated any such agreement, and without waiving its right to present such positions, inter alia, before any judicial or administrative body, Bay Area Sealers, Inc. hereby serves Auto, Marine & Specialty Painters union Local No. 1176 notice of its desire to termi- nate effective October 1, 1978, any collective-bar- gaining agreement which Local 1176 states is in effect between it and Bay Area Sealers, Inc. Bay Area Sealers, Inc., in accordance with Section 8(d)(2) of the National Labor Relations Act, further offers to meet and confer with Local 1176 for the purpose of negotiating a new contract. Any such meeting will be on a single-employer basis. As Local 1176 is aware, Bay Area Sealers, Inc. has not in the past been a member of a multiemployer asso- ciation nor has it negotiated on a multiemployer as- sociation basis. Complainant Union has not, since its receipt of Respond- ents' notice, sought negotiations with the firm, looking toward their terminated contract's modification, renewal, or replacement. Accordingly, my remedial recommendations should be modified to limit Respondents' obligation to honor con- tractual commitments, confining that obligation to the period between June 1976 and October 1, 1978, when the firm's contractual relationship with Complainant Union terminated. Similarly, Respondents' obligation to make employees whole for losses of pay, or monetary fringe benefits-together with the firm's obligation to make contractually required trust fund contributions-should be considered lifted, as of their renewed contract's desig- nated termination date. B. Respondents' Corporate Dissolution Testifying in Respondents' behalf on June 26, 1979, during these remand proceedings, Gordon Rayner re- ported that earlier during the month Bay Area Sealers, Inc., had initiated "dissolution" proceedings, pursuant to certain Internal Revenue Service requirements. Further, he reported that a certificate of corporate dissolution had been "filed" with the California Secretary of State's office. Consistent with these developments, the corporate assets have been divided; when the present remand pro- ceedings were heard, the corporation's creditors were "in the process of being paid off' directly. Rayner has BAY AREA SEALERS 139 formed a new company, California Paving Maintenance Company, which when he testified was doing business in Sacramento, California; four workmen, previously em- ployed by Bay Area Sealers, Inc., were currently work- ing for Rayner's new firm. Five of the corporation's 20 former workmen continued in Clark's employ; according to Rayner, Clark has resumed business as Frank Clark, d/b/a Bay Area Sealers, with a San Jose, California, headquarters location. With matters in this posture, questions regarding the li- abilities of Gordon Rayner and Frank H. Clark, respec- tively-with particular reference to the "make whole" requirements, the trust fund "contribution" requirements, and the notice posting requirements set forth within my previously recommended Order-may conceivably arise. Resolutions with respect to such questions should they develop-may, however, properly be deferred; they should be resolved in compliance proceedings, conse- quent upon this Board's concurrence with my recom- mendations herein. [Recommended Order omitted from publication.]