D & B Masonry

National Labor Relations Board - Board Decisions

Aug 15, 1985

275 N.L.R.B. 1403 (N.L.R.B. 1985)

D & B MASONRY
Donnie M . • Parris , a Sole Proprietorship d/b/a D &
B Masonry and International Union of Brick-
layers & Allied Craftsmen , Local Union ' No. 12,
affiliated with International Union of Bricklay-
ers & Allied Craftsmen .of America, AFL-CIO.
Case 32-CA-6067
15 August 1985
DECISION AND ORDER -
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 21 November 1984 Administrative Law
Judge Jerrold H.; Shapiro issued the attached deci-
sion. The General Counsel filed exceptions and a
supporting brief, and the Charging Party filed
cross-exceptions and a supporting brief. The Re-
spondent filed limited cross-exceptions, and a brief
in support of the judge's decision. -
The National Labor Relations Board has delegat-
ed its authority 'in this proceeding to a' three-
member panel.
The Board has considered the decision and the
record in light of the exceptions' and briefs and
has decided to affirm the judge's rulings, findings,
and conclusions and to adopt the recommended
Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint- is dis-
missed.
i The General Counsel and the Charging Party have excepted to some
of the judge's credibility findings The Board's established policy is not to
overrule an administrative law judge's credibility resolutions unless the
clear preponderance of all the relevant evidence convinces us that they
are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd
188 F 2d 362_(3d Cir 1951) We have carefully examined the record and
find no basis for reversing the findings
DECISION
STATEMENT OF THE CASE
JERROLD H. SHAPIRO, Administrative Law Judge. The
hearing in this case'held August 16, 1984, is based on-,an
unfair labor practice charge filed by Bricklayers Local
Union No: 12 (the'Union) on November 16, 1983, and a
complaint issued January 26, 1984, on behalf of the Gen
eral Counsel of the National Labor • Relations Board
(Board) by the Regional Director for Region 32 of the
Board, alleging that Donnie M Parris, a sole proprietor-
ship, d/b/a D & B Masonry (Respondent) has engaged
in unfair labor practices' within the meaning of Section
8(a)(5) and (1) of the National Labor Relations Act'
More specifically, the complaint alleges that Respondent
was obligated-to abide by-the terms and conditions of its
collective-bargaining contract with the Union until
August 31, 1984, but that, in violation of its 'statutory
1403
duty to bargain, Respondent on June 17", 1983 notified
the Union that, effective August 31, 1983, it intended to
repudiate' the terms of this 'contract and withdraw recog-
nition from the Union, and since August 31, 1983, Re-
spondent has refused to implement and/or•abide by the
terms and- conditions of its contract, with the Union and
has engaged in this conduct without the consent of the
Union and without affording the Union an opportunity
to bargain about this conduct-or-the effects of the con-
duct. Respondent filed an answer and an amended
answer denying the commission of the alleged unfair
labor practices.
On the entire record,' from my observation of the de-
meanor of the witnesses, and having considered the
posthearing briefs, I make the following2
FINDINGS'OF FACT
1. JURISDICTION AND THE UNION'S STATUS AS A
LABOR ORGANIZATION
Respondent is a California sole proprietorship with its
office and place of business in Stockton, - California,
where it is engaged in the business of performing mason-
ry services in the construction industry on 'a retail and
nonretail basis. During the 12-month period immediately
prior to the issuance of the complaint herein,- the Re-
spondent, in the course and conduct of its business oper-
ations, sold goods or services valued in excess of $50,000
to. customers or business enterprises within the State of
California, which customers or business enterprises them-
selves meet one of;the Board's jurisdictional standards
other than the indirect inflow or indirect outflow stand-
ards. Respondent admits, and I find, that it is an employ-
er engaged in commerce- within the meaning, of Section
2(6) and (7) of the Act. Likewise, Respondent admits,
and 'I find, that the Union is a labor organization within
the-meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Evidence
1. Respondent's collective-bargaining relationship
with the Union
Since it started doing business as a masonry contractor
in 1977,` Respondent has been party to successive-collec-
tive-bargaining • contracts with the Union covering his
bricklayers. The complaint, as amended at the outset of
The General Counsel's Motion to'Correct Record by substituting
correct and complete copies of Jt Exhs I and 5 for these exhibits in the
duplicate exhibit file is granted I note that the original exhibit file con-
tains true and complete copies of those exhibits
2 Respondent, at the start of the hearing, moved that the instant case
be reconsolidated with Case 32-CA-6303 and that the hearing be post-
poned pending the decision of the-Regional Director to proceed on the
complaint issued in that case or to administratively dismiss it for a lack of
jurisdiction For reasons expressed at the hearing, I denied Respondent's
motion In his posthearing brief, Respondent moves that I "reopen the
record to receive evidence on the prejudicial effect the severance order
has had upon Respondents " This motion is denied because Respondent
was afforded ample opportunity during the hearing to submit such evi-
dence when Respondent moved that 'the instant case be reconsolidated
with Case 32-CA-6303
275 NLRB No. 193
1404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the hearing, alleges, and the Respondent admits, that all
journeymen and apprentice bricklayers employed by Re-
spondent at all jobsites at which Respondent provides
masonry services, excluding office clerical employees,
guards and supervisors as defined by the-Act, constitute
an appropriate bargaining unit and that at all times mate-'
rial herein the Union, by virtue of Section 9(a) of the
Act, -has been the exclusive collective-bargaining repre-
sentative of the employees in this unit. -
-Respondent's most recent collective-bargaining con-
tract with the Union covering his bricklayers was the
Masonry Master Agreement between an employers' asso-
ciation, the Builders Exchange of Stockton; Inc (Ex-
change), and the Union. Respondent is not a member of
the Exchange and is not otherwise represented by the.
Exchange for collective-bargaining purposes. Respondent
became a party to the aforesaid Masonry Master Agree-
ment (Exchange Agreement) as an independent employer
by signing a document on November 19, 1981, entitled
"Agreement between [Union] and Independent Employ-
er" (Independent Employer Agreement), which, in perti-
nent part, reads as follows:3 -
The undersigned employer„ not a member of or
represented for collective bargaining purposes by
the Builders' Exchange of Stockton, Inc., agrees to
abide by the term of the (Tile)(Masonry) Master,
Agreement . between the Builders' Exchange of
Stockton, , Inc. (hereafter • "the Exchange") - and
International Union of Bricklayers & Allied.Crafts-
men; Local-Union #12, California (hereafter "the
Union"), effective (hereafter "ihe
Exchange Agreement") by any amendments entered
into by the Uniori and the Exchange (hereafter
"Subsequent - Exchange Agreement(s)"), including
any amendments or modifications thereto.. This
Agreement may be terminated by either the Union
or the undersigned employer by giving notice of in-
tention to terminate this Agreement at least -sixty
(60) days prior to the expiration date of the Ex-
change Agreement, unless a Subsequent Exchange
Agreement. has been entered into, in which case
written notice of intention to terminate must be
given at least sixty (60) days prior to the expiration
date of such Subsequent Exchange Agreement. This
Agreement shall become effective as of. the 'date
shown below and shall continue in effect for the du-
ration of the Exchange Agreement; for- the' duration
of any amendments or modifications to the : Ex-
change Agreement executed-by the Union and the
Association; and for the duration of-any)-Subsequent
Exchange Agreement, including any amendments or
modifications thereto.
The sections in the exchange agreement, sections :3, 4,
and 5, which-deal with the duration' of the agreement
3 Likewise, Respondent previously'had bound itself to abide by the
terms of the 1976-1978 and 1978-1981 Exchange Agreements by signing
Independent Employer agreements The language of these Independent
Employer agreements signed by Respondent-differs -from' the Respond-
ent's November 19, 1981 Independent Employer Agreement . • .. , •
and. alterations , - deletions, additions, or changes to the
agreement , read as follows- -
Section 3. The duration of this Agreement shall
lie from September 1, 1981, through August 31,
1983, and shall continue in force and effect until the
Employer or the Employee [referring to the Union],
hereinafter referred -to as "either party" shall desire
a change.
Section 4. Should either party- desire Alteration,
Deletion, or Addition to any Article, Section or
Sub-section of this Agreement, it,is agreed that:
(A) the party desiring the Alteration, Deletion or
Addition shall serve the other party notice, in writ-
ing, of intent to call a meeting of the Grievance
Committee representing each party
(B) the party receiving the notice shall, within
sixty (60) days of receipt of said notice, set the time
and place of said meeting.
(C) 'should the Grievance Committee represent-
ing each party fail to-reach a mutual agreement on
the Alteration, Deletion or Addition, then and in
that event, said Article, Section or Sub-section shall
remain in force and effect for the duration of the
Agreement.
Section 5. "Should- either party desire change in
this Agreement, prior to the termination date of said
Agreement, it is agreed that:
(A) the party desiring the change shall serve
notice, in writing , to the other party at least ninety
(90) days prior to the effective date of said change
or expiration date of this Agreement whichever be
the later.
(B)- the party receiving the notice shall set the
time and place for the initial meeting of the Arbitra-
tion Boards of the two parties Time and place of
subsequent meetings shall be by mutual agreement.
(C) any change, affecting - wages and/or fringe
benefits, shall be retroactive to the ninetieth (90th)
day following the posted date of said written notice.
The section in the Exchange Agreement titled "Defini-
tions" defines "Employer" as "all employers bound by
this Agreement through their delegation of bargaining
right to the Association . and all employers-bound by this
Agreement through individually signing this Agree-
ment."
The circumstances surrounding Respondent's signing
of the November 19, 1981 Independent Employer Agree-
ment are as follows. Respondent was obligated to honor
the terms of the 1978-1981 Exchange Agreement by
virtue' of signing as an independent employer. The 1978-
198.1 Exchange Agreement was scheduled by its terms to
expire August 31, 1;981. Late in August 1981, the Union
and Exchange entered into the successor 1981-1983 Ex-
change Agreement Between November 5 and' 12, 1981
Milton Stirm; the Union's- business representative and fi-
nancial secretary,, visited Respondent and gave him a
copy of the 1981-1983 Exchange Agreement with an at-
tached copy of the Independent Employer Agreement
and,asked him to sign the Independent Employer Agree-
ment Respondent-.replied by stating. that "[he] ought to
D & B -MASONRY
just get out of the Union" because he could not compete
against nonunion contractors. Stirm told him that he was
stuck with the Exchange -Agreement because he had
failed to send the Union a notice to terminate it. Re-
spondent stated that he ' would keep the agreements
which Stirm had given him and consider the matter Re-
spondent in fact read the 1981-1983 Exchange Agree-
ment and the attached Independent Employer Agree-
ment. Thereafter, on November 19, 1981, Stirm visited
Res'poudent"at -a` jobsiie where Respondent was working.
Respondent, in response to Stirm's inquiry, indicated that
he had not signed the Independent Employer Agree-
ment Stirm responded by warning Respondent that if
Respondent failed to sign that contract- that Stirm would
have- to shut the job down, whereupon Respondent
signed the Independent Employer Agreement.4 -
Respondent • testified that the' reason he• indicated to
Stirm that he wanted to go nonunion was due to the
competition from the nonunion contractors which had
caused him -to lose at least one job. When.asked-why he
signed the November 19, 1981 Independent Employer
Agreement, Respondent testified that he felt that since
he had failed to give notice to the Union to terminate the
1978-1981 Exchange Agreement that there was nothing
for him to argue about, so he signed The Independent
Employer Agreement with. the hope that the Union
would be able to sign his nonunion competitors to con-
tracts.
The 1981-1983. Exchange Agreement was scheduled
by its terms to expire August 31, 1983. 'The agreement
provided for two wage increases; one on the effective
date of the agreement and the other on January 1, 1982
The agreement further provided that on September. 1,
1982, the subject of wages would be reopened for negoti-
ations. Regarding the subject of dues checkoff, the 1981-
1983' Exchange Agreement obligated the employers to -
withhold from the wages of each employee the'sum of
22 cents per man-hour worked and to pay this sum of
money, which was designated as'"dues check-off," into a
trust fund for the Union to use to-defray its operating ex-
penses
Late in May 1982, the Exchange's. executive vice presi-
dent, Charles Gaff, suggested to;,the Union's financial
secretary and business representative, Milton Stirm, that, -
because of the poor state of the economy,- the parties,
with respect tto the . September ,1,. 1982 contractual wage
reopener, agree to a wage freeze. Stirm proposed that if
the Union agreed to a wage freeze, that the Exchange
agree to extend the 1981-1983 Exchange Agreement for
1 year and to increase the dues checkoff from 22 cents to ,
30 cents an hour. Graff and Stirm agreed, .that the Ex
change's and Union's negotiation committees would meet
on June-8, 1982, to.discuss these matters. - _ - - : -
When the negotiating committees met on June 8,..1982,
the Union offered a written proposal entitled "Proposed
Changes in, Masonry Master, Agreement" which' pro.
posed -a freeze on, wages with a, provision that the wage'
4 Insofar as Stirm'sdescription of the circumstances leading to Re-
spondent's signing of the November 19. 1981 Independent 'Employer
Agreement differs from Respondent's, I have credited Respondent's de-
scription because ; demeanorwise , Respondent impressed me as the more
credible,witnesss when they testified about these matters :., . -
1405
situation be reassessed March 1, 1983; that the 1981-1983,
Exchange Agreement. be extended for, 1 year to August
31, 1984, with a provision that wages be reopened for
negotiation September 1, •1983; and that the employers' -
dues-checkoff contributions-be increased to 30 cents an
hour effective July 1, 1982. The Exchange' s negotiators
agreed to this proposal, which was reduced into writing
in the form of an amendment to the 1981-1983 Exchange
Agreement and signed by the parties This amendment,
which is dated June 8, 1982, reads as follows:
AMENDMENT NO. 1' TO MASONRY MASTER
AGREEMENT --
This Agreement changes the Sections listed below
to the Masonry Master Agreement dated September
ARTICLE, I,, SECTION. 3-Change duration of
this Agreement from August 31, 1983 to August 31,
1984.
ARTICLE III, SECTION 4-Change date on
OPEN item from 9/1/82 to 3/1/83 and 9/1/83
ARTICLE III, SECTION 8-Effective July 1,
1982, change amount - from Twenty -two cents (22
cents) to Thirty cents (30 cents).
All other, provisions of this Masonry Master Agree-
ment , shall remain unchanged. ,
This amendment extended the' 1981 - 1983 Exchange
Agreement for 1 year , from August 31, 1983, to August
31, 1984, froie wages until September 1, 1983, at which
time wages ould' be reopened for negotiations , and in-
creased the" ' amount of the dues checkoff from 22 cents to
30 cents per hour effective July 1, 1982,
Neither the Union nor the Exchange gave Respondent
notice of the negotiations which .-, culminated - in the
above -described ' amendment of the 1981-1983 Exchange
Agreement . Respondent was notified by the Union only
after the negotiations were concluded and -the . amend-
ment entered intolby. the parties.'
On June 17, 1983,- Walter-E. Plumb, a labor-relations
and-management consultant; on behalf of the Respond-
ent, wrote the Union as follows: •
Please be advised that this office-is authorized to
represent. D & B Masonry in all labor relations mat-
ters (copy of authorization attached) This shall fur-
ther serve to cancel any and all prior authorizations
to represent, whether written, verbal, or,implied, as
may; have been executed with, or, asserted by, any
other, parties. „ • , . ; ,
5 The Exchange's, practice is to notify, by form letter, all of the em-
ployers it represents about ithe scheduled: negotiations for a new Ex-
change Agreement, or for the amendment of an existing exchange agree-
ment, and to invite the employers to attend the negotiations The Ex-
change also sends these identical letters to other employers , who, like Re-
spondent , are not represented by the Exchange but are obligated to abide
by the terms of an Exchange Agreement by virtue of having signed an
Independent Employer Agreement However , due to the request of the
Union , some of these Independent Employers including Respondent, are
not given the aforesaid notification by the Exchange -
1406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This shall further serve as notice of the Employ=
er's desire to cancel The Masonry Master Agree-
ment with your union effective midnight, August
31, 1983. D'& B Masonry does not have a group of
employees which would constitute a unit appropri-
ate for the purposes of collective bargaining, there-
fore, it is our belief that there is- no obligation to
bargain with your union. .
. If you have any questions, or require clarifica-
tion, kindly contact the, undersigned.
On July 5, 1983, the Union's lawyer, Marsha S.
Berzon, wrote Plumb in response to his June 17, 1983
letter, as follows:
- Bricklayers and Allied Craftsmen Local No. 12
has asked me to respond to your letter of June 17,
1983.
As the enclosed document shows, D & B Mason-
ry on November 19, 1981 bound itself to the terms
of the Master Agreement then in effect between the
Builders' Exchange of Stockton and Bricklayers
Union, Local 12. D & B Masonry further agreed to
be bound by "any subsequent agreements entered
into by the Union and the Exchange." The binding
effect of the enclosed document extends' "for the
duration of any amendments or modifications to the
Exchange Agreement executed by the Union and
the Association."
As I am sure you are aware, on June 8, 1982 the
Builders'. Exchange of Stockton and Bricklayers,
Local 12 entered into an agreement that, inter alia,
extended the outstanding collective 'bargaining
agreement to August 31, 1984. There is no question
that the enclosed agreement -between D& B Mason-
ry and Local 12 was in effect on June 8, 1982.
As the plain language of the enclosed document
shows, D & B Masonry is therefore fully bound by
the terms -of the collective bargaining agreement
presently in effect between the Builders' Exchange
and Local 12 until that agreement expires on
August 31, 1984. Your purported cancellation of the
Masonry Master Agreement as of midnight, August
31, 1983 is therefore ineffective.
On July 11, 1983, Plumb wrote Attorney Berzon in re-
sponse to her July 5; 1983 letter, as follows:
This is in response to your letter of July 5, 1983
In citing the excerpt from the Independent Em-
ployer Agreement, you chose to overlook the pro-
vision which states, "This Agreement.may be termi-
nated by either the union or the-undersigned em-
ployer by giving written notice of intention to ter-
minate this Agreement at.least sixty (60) days prior,
to the expiration date of the Exchange Agreement,
unless a subsequent. Exchange Agreement has been
entered into, in which case written notice of, inten=
tion to terminate must be given at least sixty (60)
days prior to the expiration date of such subsequent
Exchange Agreement "
The June 8_19821982 Agreement you referred to was
not a "Subsequent Exchange Agreement," it was
"Amendment No 1"; and whereas it provided for a
change in the duration of the present Agreement,
that does not negate the Independent Employers
right to terminate his Agreement pursuant to the
above Termination provision.
If an Independent Employer was bound by - an
amendment between the Association and the ' union
which provided for a .change in duration to that
Agreement, it would be possible for the Association
and the, union to effect successive amendments that
would result - in the Independent Employer never
having the opportunity to assert his right to termi-
nate said Agreement, and all amendments subse-
quent thereto. •
The Employer entered into the current Agree-
ment with the expressed right to terminate that
,Agreement upon giving the required sixty (60) days
notice-prior to the stated expiration date -.
Said notice has been duly served,- and all terms
and conditions set forth therein shall be inoperative
after midnight, August 31, 1983.
On July 14, 1983, Attorney Berzon wrote Plumb in re-
sponse to his July 11, 1983 letter, as follows:
This, is in response to your letter of July 11, 1983.
It remains our position that the'entire Agreement,
read in context, clearly states that it shall remain in
effect for the duration of any amendments to the
Exchange Agreement. Since the present "expiration
date of the Exchange Agreement" is therefore not
until August, 1984, your' client, remains bound at
least until that date.
Contrary to your assertion, an Independent Em-
ployer certainly can , terminate the agreement, as
long as he gives the union notice at least , sixty days
before the expiration date of the Exchange Agree-
ment. However, an Employer cannot give notice
after the expiration date has. been extended and
hope to take advantage of the earlier, superseded
date. - -
Bricklayers Local 12 fully intends to enforce.the
Agreement between it and your client Should D &
B Masonry -.violate or repudiate that Agreement
prior to its expiration on August 31, 1984, we are
fully. prepared to file the necessary legal proceed-
ings with the National Labor Relations Board or
the courts -
_The'Plumb-Berzon correspondence concluded on July
18, 1983, when, Plumb wrote Attorney Berzon, as fol-
lows: •
In reference to your letter of July 14, 1983, we
disagree with your position.
Timely 'notice has been filed pursuant'to the ter-
mination language of the Agreement signed by the
Employer. . . --
D & B Masonry will' not be bound by, or comply
with any of the terms and conditions of the Brick-
layers & Allied Craftsmen Local No. 12, California
Independent Employer' Agreement after midnight,'
D-& B MASONRY 1407
August 31, 1983;- and will repudiate any alleged
agreement extending. beyond said date.
Do what you will. Our position is clear.
As a ' matter of fact, Respondent, after midnight
August 31, 1983, repudiated the terms and conditions of
the 1981-1983 Exchange Agreement and has since that
date failed to abide by the terms of that agreement and
the June 8, 1982 amendment to that agreement.
2. The'number of employees in the appropriate unit
As I have indicated supra , in his answer to the amend-
ed complaint,- Respondent admitted that all of the. brick-
layers employed by Respondent at,all jobsites at which
Respondent provided masonry services 'constituted an
appropriate bargaining unit . This is the unit of Respond-
ent's employees represented by the Union who were
covered by the 1981-1983 Exchange Agreement by
virtue of the November 19, 1981 Independent Employer
Agreement signed by Respondent The record contains
the names and employment dates of Respondent's brick-
layers employed from January 1983 to August 16, 1984,
the date,of the hearing in this case. This evidence can be
briefly summarized-as follows. '
Respondent's brother, Robert Parris, was employed as
a bricklayer by Respondent. during this entire period of
time, January_1983 to August 16, 1984. .
Eddie Cole. was employed by Respondent as a brick-
layer from January to April 1983, when he quit his job
with. Respondent to go to work for another employer
and was replaced by Ollie Mabrey6 who worked for Re-
spondent as a bricklayer the last 2 weeks of April 1983,
when he was laid off for lack of work.7 Thereafter, at
some undisclosed point of time, Respondent, when it
needed the services of a bricklayer, offered the job to
Mabrey who turned it down.
Jim Frazier was employed by Respondent as a brick-
layer from September 6 to approximately October 6,
1983,8 when he was reassigned by Respondent to do hod
carrier, work because Respondent felt he, was not quali-
fied to do bricklaying work. Frazier was still employed
as a hod carrier by, Respondent as of the date of the
hearing in ,this case.9, _
6 Before hiring Cole in January 1983, Respondent had initially sought
to hire Mabrey for that job, but Mabrey at. the time was working for an-
other employer and, because of this, rejected Respondent's job offer,
which led to Cole's employment 1
1.
`
The record reveals that at some point of time not identified in the
record, but before January 1983, Respondent employed Mabrey and Cole
as bricklayers at the same time However , the record does not reveal the
circumstances of this employment, its'duration, or how it ended
8 Frazier learned that' Respondent needed a bricklayer from a help
wanted ad Respondent had placed in a local newspaper
9 Union Business Representative Stirm testified that in March 1984 he
observed Frazier'on two separate occasions working for Respondent-
the first time for approximately 20 minutes and approximately 30 minutes
the second time-and that each time Frazier, was doing the type of brick-
layer's work covered by the 1981-1983 Exchange Agreement Respond-
ent'testified'that the kind of bricklaying work which Stirm observed Fra-
zier performing was usual and customary for hod carriers to do, especial-
ly if they were employed by small contractors such as Respondent Re-
spondent further testified that after he was reassigned to his position as a
hod carrier, Frazier spent approximately only 1 percent of his working
time doing bricklaying work I am of ' the view that ' Stirin's aforesaid tes-
timony is insufficient to impugn the reliability of Respondent's - testimony
Bill Colvin was employed by Respondent as a brick-
layer, from September 20, 1983, until May 1984. There is
no evidence concerning the circumstances surrounding
his hire or termination.
From Colvin's termination in May 1984 until August
16, 1984, the date of the hearing, Respondent-only em-
ployed one bricklayer, Respondent's brother, Robert
Parris. However, early in 1984, on a date or dates not set
forth in the record, Respondent subcontracted bricklay-
ing work to Tom Washburn for three different jobs, pur-
suant to a verbal agreement wherein Respondent agreed
to pay, and in fact paid, Washburn for labor and materi-
als supplied to Respondent. Respondent testified that the
only time he has ever subcontracted bricklaying work in-
volved his 1984 subcontracts with Washburn.
Respondent testified that his business, because of its
nature, requires only two full-time bricklayers, himself
and his brother, Robert Parris, and that only once in a
while does his business require the employment of a
third bricklayer (Tr. 107), and further testified that in
November 1981, when he spoke to Union Business Rep-
resentative Stirm prior to signing the November 19, 1981
Independent Employer Agreement, it was his intention
to continue to operate his business employing as brick-
layers just himself and his brother "and possibly once in
a while, one other bricklayer." (Tr. 115.)10
Respondent also testified that from April 1983 to the
date of the hearing, August 16, 1984, he has bid on be-
tween 20 and 30 jobs, the same number of jobs which
Respondent has bid on in the past. Also Respondent tes-
tified that since April 1983 his gross revenues have in-
creased from what they were before that date. Lastly,
Respondent testified that since April 1983 his company,
approximately 50 percent of the time, has been working
on two projects simultaneously.
3. Robert Parris' supervisory status
As indicated' supra, Respondent's brother, Robert
Parris (Parris), has 'been employed at all times material
by Respondent.' Parris spends 99 percent, of his work
time working with the tools as a bricklayer Pursuant to
the industry practice of having a hod carrier work with
a bricklayer as his helper, Parris works with a hod carri-
er as his helper The hod carrier sets up Parris' scaffold-
ing, supplies him with the materials he needs to do his
job, and cleans up and performs other "gopher" duties as
assigned. As indicated supra,' Parris and Respondent's
other bricklayers[ were represented by the Union, where-
as ,the-hod carriers-employed by Respondent were repre-
sented by the Laborers Union in a separate bargaining
unit,separate and apart from the bricklayers.
I therefore find that although Frazier, since his reassignment from-brick-
layer to hod carrier, has performed bricklaying, work, that in comparison
to the•amoiint of time spent m doing hod. carrier work, the bricklaying
work only takes up a de minimis amount of his total working time
10 In his posthearing brief, Respondent asserts that in April 1983 Re-
spondent decided to conduct his business in a manner which reduced the
number of bricklayers to at most one employee This misstates the
record Respondent, as described above, testified in effect that his busi-
ness, due to its nature , has always, even prior to April 1983, only re-
quired two full-time bricklayers, himself and`liis brother, and that only
once in a while does' it require the employment -of a third bricklayer
1408 DECISIONS OF NATIONAL LABOR. RELATIONS BOARD
Respondent testified that normally the only communi-
cations pertaining to work between Parris and his hod
carrier would be Parris' telling the hod carrier what ma-
terials Parris needed to do his bricklaying work. Re-
spondent testified that Parris does not give the hod carri-
er any other instructions (Tr. 147,,L.25 to Tr. 149, L 16).
On the rare occasions when there is another bricklayer
employed by Respondent on the same jobsite as.Parris,
Respondent testified that at the start of the workday
Parris tells the other bricklayer what needs to be done,
i.e.,. which house to work on or what part of the house
to work on. More specifically, Respondent testified that
when Bill Colvin, who was employed by Respondent as
a bricklayer from September ,1983 to April 1984, worked
on the same jobsite as Parris, that at the start of the
workday Parris told him what work there was to do and
where to work and that after that Colvin worked on his
own without any instruction (Tr. 149, L. 23 to Tr. 152,
L. 21).
Respondent testified that he was absent approximately
50 percent of the time from the jobsites where his broth-
er worked as a bricklayer (Tr. 100, LL. 16-18) and that
in his absence he told his brother what he wanted the
other workers to do and told him that if they,did not do
their work "to get onto them" and "to make sure the job
gets done," and also told the other workers that his
brother knew what he wanted done and that they should
do what his brother told them. Respondent further testi-
fied that his brother "could send someone home" and
that when there were "problems" on a jobsite when Re-
spondent was absent, that his brother would usually tell
Respondent about the problems and most of the time
would consult with him about the problems and some-
times ask for Respondent's recommendation about what
to do about the problems. -
On those jobsites where his brother is not working,
Respondent testified that at the start of the workday Re-
spondent goes to the jobsite and shows the bricklayer
what he wants done, then leaves and does not return
until the afternoon to check the job; whereas, normally
Respondent does not check his brother's job
Lastly, Respondent testified that his brother has never
hired or fired anyone. However, when asked whether his
brother had the authority to fire someone when Re-
spondent was absent from the jobsite, Respondent testi-
fied "if it was necessary."
B -Discussion and Conclusions
In: support of the allegation that Respondent violated
Section 8(a)(5) by repudiating the 1981-1983 Exchange
Agreement on August 31, 1983, the General Counsel
contends that Respondent was • obligated to honor the
agreement until August 31, 1984, because its June 17,
1983 cancellation notice to the Union was untimely in re-
lationship to the June- 1982, amendment of the agree-
ment, which, among other things,- extended the agrees
ment for another year. In support of the further allega-
tion that Respondent violated Section 8(a)(5) by with-
drawing recognition from the Union on June 17, 1983,
and by unilaterally changing the unit employees' terms
and conditions of employment on August.31, 1983, with-
out affording the Union an opportunity to bargain, the
General Counsel points to the undisputed evidence that
Respondent engaged in this conduct which, the General
Counsel contends, as-a matter-of law, constitutes a refus-
al to bargain within the meaning of Section 8(a)(5) of the
Act. -
Respondent takes the position that- its withdrawal of
recognition from the Union-on June 17, 1983, its' cancel-
lation of the 1981-1983 Exchange Agreement effective
August 31, 1983, and its subsequent-unilateral, change of
the employees' terms and conditions of employment set
by that agreement, did not violate Section 8(a)(5) be-
cause the unit of employees involved, Respondent's,
bricklayers, did not constitute an appropriate unit for
bargaining inasmuch as Respondent employed only,one
or less bricklayer on a permanent basis; thus, Respondent
was not legally obligated to bargain with the Union. Re-
spondent also argues that even if the unit was an appro-
priate one for bargaining, the allegation that Respondent
illegally repudiated the 1981-1983 Exchange Agreement
on August 31, 1983, should be dismissed because, by
virtue of its June 17, 1983 notice of termination to the
Union, the Respondent effectively terminated the agree-
ment as of August 31, 1983. But, regarding the undis-
puted evidence that on June 17, 1983, Respondent with-
drew recognition from the Union and on August 31,
1983, changed 'employees' terms and conditions of em-
ployment without affording the Union an opportunity to
bargain, Respondent offers no defense other than its con-
tention that it was not obligated to recognize and bargain
with the Union for a unit of one or less, employees.
In agreement with Respondent, I am persuaded, for
the reasons set forth hereinafter, that the complaint must
be dismissed in its entirety because the record fails to es-'
tablish that Respondent employed more than one bar-'
gaining unit employee on a permanent basis.
It is settled that if an employer employs one or fewer.
unit employees on a permanent basis that the- employer,
without violating Section 8(a)(5) of the Act, may with-
draw recognition from a union, repudiate its contract -
with the union, or unilaterally change employees' terms
and conditions of employment without affording a union
an opportunity to bargain. SAC Construction 'Co, 235
NLRB 1211, 1230 (1978); Sunray Limited, 258 NLRB
517, 518 (1981); Chemetrons Corp., 268 NLRB 335 (1983).
The basis for permitting an employer to engage in this
conduct was explained by the Board in Foreign Car
Center, 129 NLRB 319, 320 (1960), as follows:
The Board has held that it will not certify a one-
man unit because-the principles of collective bar-
gaining presuppose that there is more than one eligi-
ble person who desires to bargain. The Act there-
fore does-not empower the Board. to certify a one-
man unit. By parity of reasoning, the Act precludes
the Board from directing an employer to bargain
with respect to such a unit., While we have held
that the Act-does not preclude bargaining with a
union on behalf of a single employee, if an employ-
er is willing, we have never held that an employer's
refusal to bargain with a representative on behalf of
a one-man unit is a refusal to bargain within the
meaning of Section 8(a)(5).
D & B MASONRY 1409
It is also settled that in the construction industry, an in-
dustry characterized by intermittent employment, that
laid-off employees, who have a reasonable expectation of
reemployment within a reasonable time in the future, and
thus have a continuing interest in the employers' work-
ing conditions , are included in a bargaining unit as eligi-
ble voters Daniel Construction Co., 133 NLRB 264
(1961), modified 167 NLRB 1078 (1967). In this regard,
it has' been Tong held that voting eligibility is extended
only to those laid-off employees who have "a reasonable
expectation of reemployment within a reasonable time in
the -future " NLRB v. Jess Jones Sausage Co., 309 F.2d
664, 665 (4th Cir. 1962). See also General ,Motors Corp.,
92 NLRB 1752, 1753 (1951).
In the instant case, Respondent testified that because
of the nature of his business he only requires two full-
time bricklayers, himself and his brother Robert Parris,
and that only infrequently does the business require the
employment of a third bricklayer. An analysis of the em-
ployment history of the bricklayers employed by Re-
spondent during the 19-1/2 month period from January
1983 to mid-August 1984 shows that during this period
Robert Parris was in fact Respondent's only regular full-
time bricklayer and that for 13 of those months Respond-
ent at various times employed 4 other bricklayers: Cole,
Mabrey, Frazier, and Colvin.
Cole, who was employed approximately 3-1/2 months,
quit his employment in mid-April 1983, to take a job
with another employer." Mabrey worked for only 2
weeks in April 1983 and thereafter, on a date not identi-
fied in the record, rejected a job offer from Respondent.
There is no evidence that when Respondent laid Mabrey
off in April 1983 for lack of work that Respondent
promised to recall him or otherwise gave him reason to
believe that he would be reemployed by Respondent
within a reasonable time in the future. Frazier worked
for Respondent as a bricklayer for a month in Septem-
ber-October 1983, after which he was permanently reas-
signed to the position-of hod carrier. Lastly, there is no
evidence that the fourth bricklayer, Colvin, who was
employed from late September 1983 until May 1984, ever
worked for Respondent previously or that Respondent
promised him that he would be reemployed for future
work or otherwise gave him reason to believe that he
would be reemployed by Respondent within a reasonable
time in the future
To sum up, as described supra, Respondent's custom-
ary bricklaying work is performed by one regular full-
time employee, Robert Parris and, as the need arises, by
an additional bricklayer whom Respondent hires on an
ad hoc basis i z and, when the work is done, lays off this
I note the Board specifically excludes from the voting, unit those
employees who quit voluntarily prior to the completion of the last job
for which they were employed Daniel"Construction Co, 167 NLRB 1078,
1081 (1967)
11 The record reveals that Respondent normally employs no more than
one extra bricklayer at a time The only time more than one extra brick-
layer was employed at the same time during the period from January
1983 to August 1984 was when Frazier and Colvin were employed as
bricklayers at the same time for approximately 2 weeks
extra bricklayer. 'There is no evidence that the extra
bricklayer is given an expectation that he will be reem-
ployed in the future. That the Respondent is-not commit-
ted to reemploying a bricklayer whom he -has employed
in the past is illustrated by the fact that in hiring Frazier
as a bricklayer the Respondent relied upon a help
wanted ad in the newspaper, and that there is no evi-
dence that two of the four bricklayers employed by Re-
spondent, Frazier and Colvin, were ever previously em-
ployed by Respondent. It is this lack of evidence that the
laid-off bricklayers, who were employed intermittently
by Respondent, have a reasonable expectation of reem-
ployment within a reasonable time in the future, which
persuades me that the General Counsel has failed to es-
tablish that they have a community of interest with
Robert Parris in Respondent's working conditions. Ac-
cordingly, I find that they are casual employees, who are
not part of the appropriate unit. It follows that during all
times material herein the appropriate unit consisted of no
more than a single employee, Robert Parris, who was
employed regularly on a permanent basis 13 In view of
this circumstance, Respondent was under no statutory
obligation to bargain with the Union. I therefore for this
reason shall recommend that the complaint be dismissed
in its entirety
Crispo Cake Cone Co., 190 NLRB 352 (1971), and Cre-
scendo Broadcasting, 217 NLRB 697 (1975), cited by the
General Counsel, are inapposite In those cases, the Gen-
eral Counsel established that a bargaining unit comprised
of two or more regularly employed employees existed at
some point in time. Under this circumstances, applying
the principle that a state of affairs shown to exist is pre-
sumed to continue until the contrary is shown, the Board
held that the respondent employers `had the burden of
proving that the units were reduced to one or less unit
employees. Here there is no evidence that at any time
Respondent employed more than one regular unit em-
ployee on a permanent basis Respondent's testimony,
which is not impugned by the whole record, is that Re-
spondent only employed one regular bricklayer on a per-
manent basis and, as the business requires, hires other
bricklayers on an intermittent basis.
Likewise, Finger Lakes Plumbing & Heating Co., 253
NLRB 406 (1980), cited by the General Counsel, is inap-
posite because there the record showed that the employ-
er employed a permanent and stable work force of unit
employees, albeit they were employed intermittently
Here the record does not establish that the bricklayers
employed by Respondent on an intermittent basis com-
prised a permanent and stable group of workers. The
sole evidence of stability among this group of workers
consists of the fact that prior to January 1983, at an un-
disclosed point in time, Cole and Mabrey had worked for
Respondent for an undisclosed period of time, that they
were again employed by Respondent in 1983, Cole for 3-
13 Respondent argues that Parris is not a unit employee because he is
either a statutory supervisor or that, due to his relationship with Re-
spondent, he does not have a community of interest with the other brick-
layers employed by Respondent I have not considered these contentions
because even if Parris is a rank-and-file employee, as I have assumed, the
unit would be comprised of only one employee
1410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1/2 months .and Mabrey for 2 weeks, and that Mabrey
was offered reemployment by Respondent in 1983 on
two or more occasions. This evidence, in my view, is too
skimpy to establish that the bricklayers employed by Re-
spondent •ori an intermittent basis constitute a permanent
and stable work force or that either Mabrey or Cole had
reasonable expectations of reemployment with Respond-
ent during the periods they were laid off.
Lastly, I note that it is the absence of a showing that
the laid-off. bricklayers employed by Respondent on an
intermittent basis constitute a stable and permanent work
force which distinguishes the instant case .from Daniel
Construction" Co., 133 NLRB 264 (1961), where laid-off
employees were found to be eligible to vote in a repre- poses
sentation election. If they had worked, 30 days within the
year preceding the election, or 45 days -within 2 years.
On these findings of fact and conclusions, of law and
on the entire record , I issue the following recommend-
ed14
ORDER
The complaint is dismissed in its entirety.
19 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations , the findings , conclusions , and recommended
Order shall , as provided in Sec 102 48 of the Rules, be adopted ' by .the
Board and all objections to them shall be deemed waived for all pur-