Acme Marble & Granite Co.

National Labor Relations Board - Board Decisions

Aug 9, 1984

271 N.L.R.B. 908 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Acme Marble & Granite Co., Inc. and Construction
and General Laborers' Local Union 1290, affili-
ated with Laborers' International Union of
North America, AFL-CIO. Case 17-CA-8556
9 August 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 30 April 1980 Administrative Law Judge
James T. Rasbury issued the attached decision. The
General Counsel and the Charging Party filed ex-
ceptions and a supporting brief. Thereafter, the Re-
spondent filed cross-exceptions with a supporting
brief and an answering brief to the exceptions of
the General Counsel and the Charging Party.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the recommended Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
DECISION
STATEMENT OF THE CASE
JAMES T. RASBURY, Administrative Law Judge. This
case was tried before me in Kansas City, Kansas, on Sep-
tember 27, 1979. A complaint was issued on May 29,
1979, based on a charge filed by the Construction and
General Laborers' Local Union 1290 (the Union) on Oc-
tober 12, 1978, alleging that Acme Marble & Granite Co.
(Respondent) had violated Section 8(a)(1) and (5) of the
National Labor Relations Act (the Act), in that Re-
spondent had refused to abide by the terms and condi-
tions of the collective-bargaining agreement between the
Respondent and the Union effective from May 23, 1977,
to March 31, 1980.
On the entire record' including my observation of the
demeanor of the witnesses and after giving due consider-
ation to the very excellent briefs filed by the General
Counsel, the Respondent, and the Charging Party, I
make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a State of Louisiana corporation, is
engaged in the construction of mausoleums at various lo-
cations throughout the United States including a site at
83d Street and Quivera Road, Lenexa, Kansas (the facili-
I The General Counsel's unopposed motion to correct the transcript in
several particulars is granted, and the motion is incorporated in the exhib-
it file as ALJ Exh. 1.
ty). The Respondent, in the course and conduct of its
business operations within the State of Louisiana, annual-
ly purchases goods and services valued in excess of
S50,000 directly from sources located outside the State of
Louisiana. The Respondent, in the course and conduct of
its business operations within the State of Louisiana, an-
nually sells goods and services valued in excess of
$50,000 directly to customers located outside the State of
Louisiana.2 Respondent admits and I find the Respond-
ent to be, and at all times material to have been, an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
1. LABOR ORGANIZATION
The Union is now, and at all times material has been, a
labor organization within the meaning of Section 2(5) of
the Act.
111. THE ALLEGED UNFAIR LABOR PRACTICE
The Facts
The facts of this case are not in serious dispute and
have been taken primarily from stipulations entered into
by the party and from undenied or unrefuted testimony.
As stated earlier, Respondent is a cemetery developer
engaged in the development of mausoleums throughout
the United States. It has performed work in approximate-
ly 36 States. Normally it is engaged in approximately 30
to 40 such jobs per year. Respondent employs approxi-
mately 12 superintendents who supervise the work at the
various locations. In some instances the work is per-
formed on a nonunion basis and in other instances on a
union basis. The decision as to whether a job would be
bid on a union or nonunion basis is made prior to the
submission of the bid to the customer. That decision de-
pends on a variety of factors, including the work force
available in the area, the kinds of subcontractors avail-
able, and similar type decisions by the owners. In the
event that a decision is made to perform the work on a
union basis, and the Company elects to perform the
work itself rather than through a general contractor, the
Company talks with the representatives of the local labor
organizations involved, secures copies of their agree-
ments, and discusses the use of their people on the
project. Under these circumstances it might execute
agreements with a business agent and use the union refer-
rals of employees exclusively. Frequently the Company
elects to have the work performed through a local gen-
eral contractor with one or more of their superintendents
available to direct and to supervise the work of the gen-
eral contractor.
Respondent began a project on September 27, 1976, at
Mount Olivet Cemetery in Jackson County, Missouri. At
various times during October 1976, Respondent em-
ployed eight laborers on this particular project. Respond-
ent began a project on October 3, 1976, at Mount Calva-
ry Cemetery in Wyandotte County, Kansas, during Oc-
2 Par. 2 of the General Counsel's complaint was amended at the hear-
ing to reflect the jurisdictional data set forth above.
271 NLRB No. 147
908
ACME MARBLE & GRANITE CO.
tober 1976 where they employed three laborers on the
project.
Respondent entered into a "me too" type of contract
stipulation with Locals No. 264, 555, and 1290 of the
Western Missouri and Kansas Laborers District Council
of the Laborers, International Union of North America,
AFL-CIO, which was dated October 27, 1976. 3 The col-
lective-bargaining agreements set forth as an appropriate
unit all employees performing any type of construction
work, which has historically and traditionally been per-
formed by laborers in the geographic area of the agree-
ment, for the term of the agreement. Article II of the
agreement sets forth the jurisdiction of the agreement
and extends to and includes work performed in the coun-
ties of Jackson, Clay, Platte, Ray, Cass, Saline, Lafay-
ette, and Carroll in Missouri; and Wyandotte, Johnson,
and Miami in Kansas.
The Wyandotte County Mount Calvary project and
the Jackson County Mount Olivet project were Re-
spondent's only projects in 1976 and 1977 within the
geographical jurisdiction of the collective-bargaining
agreements. A majority of the laborers at each site were
members of the Union throughout the duration of the
construction period (see Jt. Exhs. 4-A through 4-I for a
list of the employees and their union affiliation).
The work at the Jackson County Mount Olivet Ceme-
tery was completed on March 20, 1977. The work at the
Wyandotte County Mount Calvary Cemetery project
was completed on July 17, 1977. From July 17, 1977,
until July 28, 1978, Respondent performed no work on
projects within the geographical jurisdiction of the col-
lective-bargaining agreements.
On July 28, 1978, Respondent began work on a
project at Resurrection Cemetery located in Johnson
County, Kansas, which is within the geographical juris-
diction of the collective-bargaining agreement then in
effect between the parties (Jt. Exh. 3, art. II).
While there is no contention that Respondent failed to
follow the terms of the collective-bargaining agreements
on either of the first two projects (the Mount Calvary
and Mount Olivet projects), Respondent does not deny
having employed laborers without use of any referral
system from the Union on the Resurrection Cemetery
project in Johnson County. The fringe benefits and sup-
plemental dues provided for in article VIII, page 15 of
the contract were not paid by Respondent. The General
Counsel offered no evidence and there appears to be no
contention made by the parties that any of the employees
at the Resurrection Cemetery project had ever designat-
ed the Union as their collective-bargaining representa-
tive. Respondent does not deny that it did not adhere to
the terms of the collective-bargaining agreements insofar
as the work performed at the Resurrection job was con-
cerned.
I There is no evidence that the Respondent signed an association con-
tract or became part of a multiemployer unit. The contract stipulation
merely binds the parties to adhere to the contract between the unions and
the Builders' Association of Missouri (see Jt. Exhs. 1, 2, and 3).
Analysis and Contentions of the Parties
The General Counsel contends that under certain cir-
cumstances the traditional concept of Section 9(a) of the
Act is equally applicable to employers in the b:iilding
and construction industry on projects of short dtiration.
In this instance the General Counsel views the U dion as
having become a 9(a) representative, because the con-
tract entered into by the parties extended exclusive rec-
ognition of the Union through a specified area; and on or
about the date the contract was executed the Union rep-
resented a majority of the Respondent's employees in the
geographical area covered by the contract. The General
Counsel seeks to ignore the specific language of Dee Cee
Floor Covering, 232 NLRB 421 (1977), as a situation ap-
plying to a more traditional 8(f) type of relationship. The
General Counsel desires to regard this situation as a 9(a)
relationship in view of the manner in which the initial
contracts were signed.
Respondent argues that Congress specifically ex-
pressed a contrary opinion in the report of the House of
Representatives' Committee on Education and Labor (I
Leg. Hist. 759, 777, 1959) wherein the report makes clear
that the House considered each construction project as a
separate unit or employing entity in which under
"Wagner Act ruling" the absence of majority status ren-
dered unlawful exclusive bargaining contracts. Thus, Re-
spondent observes, it became necessary to enact Section
8(f) of the Act. Respondent further argues that if the
geographical jurisdiction of the union defined the unit, a
union once having established majority status on one
building project within the geographical area of the con-
tract, would require no remedial legislation to maintain
such status for subsequent projects within the same geo-
graphical unit of the collective-bargaining agreement.
The Board in R. J. Smith Construction Co., 191 NLRB
693 (1971), held that a union which is party to an 8(f)
agreement does not acquire an irrebuttable presumption
of majority status. Unlike the current situation, in R. J.
Smith supra, the employer had a stable complement of
employees; however, the majority were not union mem-
bers and at no time during the parties' contractual rela-
tionship had the Union ever proven to be a majority rep-
resentative. In the Smith case the Board decided that
there had been no violation, because the General Coun-
sel and the Charging Party failed to prove majority sup-
port for the Union at any time.
The Charging Party argues that it is clear that during
the term of a contract of reasonable duration the Board
has determined that "no question concerning representa-
tion [may] validly be raised." Hexton Furniture Co., 111
NLRB 342, 344 (1955). Accordingly it argues when Re-
spondent withdrew recognition from the Union during
the middle of a contract term it violated Section 8(a)(5)
of the Act. The Charging Party argues that Respondent
makes the mistaken assumption that Section 8(f) governs
all agreements between employers and unions in the con-
struction industry. The Charging Party contends that
Section 8(f) provides only a limited exemption from the
normal operation of the labor act and cites language
from the U.S. Supreme Court in Iron Workers Local 103
(Higdon Contracting), 434 U.S. 335, 350 (1978), wherein
909
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Court stated it is "undisputed that when the Union
successfully seeks majority support, the prehire agree-
ment attains the status of a collective-bargaining agree-
ment executed by the employer with a union represent-
ing a majority of the employees in the unit." The Charg-
ing Party further argues that they had achieved majority
support in a multisite unit and that there is no evidence
that a majority of the employees at the Resurrection job
did not support Local 1290 even though they were not
menbers of the Union.
The arguments and briefs submitted by each of the
parties involved in this case have been exceptional and
this has been a difficult case to decide. Nevertheless I am
impressed by the fact that there is nothing in the Act to
indicate that the Union's geographical jurisdiction estab-
lishes the bargaining unit and by the precise and clearcut
language of the Board as set forth in Dee Cee Floor Cov-
ering, supra, page 42:
Such prehire agreements do not, however, give rise
to the presumption of a majority status on behalf of
the union. Thus where a union fails to prove that it
has obtained majority status among the employer's
employees an employer may withdraw recognition
from that union and/or make unilateral changes in
the contractual working conditions without thereby
violating Section 8(a)(5) of the Act.
The Board went on to say, "The mere fact that the
Union might indeed have represented a majority of the
employees at Respondent Dee Cee's previous jobsites is
of no consequence inasmuch as the Union must demon-
strate its majority at each new jobsite in order to invoke the
provisions of Section 8(a)(5) of the Act" (emphasis sup-
plied). This language seems to be crystal clear and com-
pletely dispositive of the instant situation and I herewith
find that Respondent, Acme Marble and Granite Co.,
had every legal right to ignore their agreement with the
Union at the Lenexa, Kansas project and did not violate
Section 8(a)(5) of the Act.
CONCLUSIONS OF LAW
1. The Respondent is an employer within the meaning
of Section 2(2) of the Act, engaged in commerce and in
an industry affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The Respondent has not engaged in the unfair labor
practices alleged in the General Counsel's complaint in
this proceeding for the reasons which have been set forth
hereinabove.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed4
ORDER
It is ordered that the complaint be dismissed in its en-
tirety.
4 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
910