E. L. Wagner Co., Inc.

National Labor Relations Board - Board Decisions

May 31, 1989

294 N.L.R.B. 493 (N.L.R.B. 1989)

E L WAGNER CO
E. L. Wagner Company, Inc. and Local Union No.
146, Laborers International Union of North
America, AFL-CIO. Case 39-CA-3510
May 31, 1989
DECISION AND ORDER
By CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On June 7, 1988, Administrative Law Judge
Raymond P. Green issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed an answering
brief.
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 only to the extent consistent with this
Decision and Order.
The judge found that a collective-bargaining re-
lationship pursuant to Section 9(a) of the Act exist-
ed between the Respondent and the Union because
the relationship predated 1959 and the enactment
of Section 8(f) of the Act. On that basis the judge
found that the Respondent failed to bargain in
good faith in violation of Section 8(a)(5) and (1)
and Section 8(d), and discouraged union member-
ship in violation of Section 8(a)(1) and (3), by fail-
ing, since December 8, 1986, to make contractually
required contributions to the Union's fringe benefit
fund on behalf of bargaining unit employees who
were not members of the Union; violated Section
8(a)(5) and (1) by withdrawing recognition from
the Union and refusing to bargain regarding the
changes in the terms and conditions of employ-
ment; and violated Section 8(a)(5) and (1) by failing
to supply the names and addresses of its employees
in the unit to the Union. We reverse in part.
The Respondent is engaged in the business of
constructing swimming pools in the State of Con-
necticut, and has had a collective-bargaining rela-
tionship with the Union covering its employees
since before 1959 and the enactment of Section 8(f)
of the Act. Historically, the Respondent and Union
have not met to negotiate contracts, but the Re-
spondent has executed acceptance agreements pur-
suant to which it agreed to be bound by contracts
made between the Connecticut Laborers' District
Council (a bargaining unit of which the Union is
part) and two multiemployer bargaining associa-
tions-Associated General Contractors (AGC) and
Connecticut Construction Industries Association
493
(CCIA). The Respondent is not a member of either
multiemployer association.
In addition to executing various acceptance
agreements, the Respondent signed an interim
agreement in 1981 to avoid being involved in a
strike against the multiemployer associations. That
agreement, effective from April 1, 1981, to March
31, 1984, bound the Respondent to the subsequent
final Building (AGC) and Heavy & Highway
(CCIA) agreements for those years. Those agree-
ments contained successor clauses by which the
Respondent would be bound by subsequent AGC
and CCIA agreements unless timely notice was
given. No timely notice was given and the Re-
spondent became bound to the 1984-1987 AGC
and CCIA agreements. The CCIA agreement,
under which the Respondent was making benefit
fund contributions, expired May 31, 1987.
December 8, 1986, the Respondent stopped
making benefit fund contributions for its employees
who were not union members. On January 30,
1987, it sent the Union notice of termination. The
president and owner of the Respondent, John
Gedney, testified that he withdrew recognition
from the Union on April 30, 1987. On May 22,
1987, the Respondent filed an election petition with
the Board that was later dismissed by the Regional
Director because of this proceeding.' On June 5,
1987, the Union requested the names and addresses
of all the Respondent's employees. The Respondent
never responded to the Union's demand and, on
June 8, 1987, the Union filed the unfair labor prac-
tice charges in this case.
In Brannan Sand & Gravel Co., 289 NLRB 977,
979 (1988), issued after the judge's decision in this
case, the Board held that construction industry col-
lective-bargaining relationships established before
the enactment of Section 8(f) of the Act cannot be
presumed to be 9(a) relationships, but that full 9(a)
status in construction industry relationships will
only be found if the "union has been certified fol-
lowing a Board election or has been recognized on
1 On August 25, 1988, the Board in Case 39-RM-40 affirmed the Re-
gional Director's dismissal of the petition, but relying on a different ra-
tionale We found, as we do here, that the relationship between the par-
ties was pursuant to Sec 8(t) of the Act as there was no evidence that
the Union had ever achieved majority status within the meaning of Sec
9(a) of the Act Further, the evidence in that proceeding showed only
that the parties were bound to the AGC agreement, which expired on
April 30, 1987, and that the petition was not filed until May 22, 1987
(The CCIA agreement, which expired on May 31, 1987, was not in evi-
dence in that proceeding) Applying John Deklewa & Sons, 282 NLRB
1375 (1987), sub nom Iron Workers Local 3 v. NLRB, enfd 843 F 2d 770
(3d Cir 1988), we found that after the parties' 8(f) agreement expired on
April 30, the Union enjoyed no presumption of majority status and, as
the Union had made no present claim of majority status, the petition was
properly dismissed As the 8(f) relationship between the parties ended on
May 31, 1987, and no party has requested reconsideration in Case 39-
RM-40, we find no cause at this time to reinstate the petition
294 NLRB No. 38
494 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the basis of an affirmative showing of majority sup-
port."
John Deklewa & Sons, supra, set out the princi-
ples to be applied in 8(f) cases, and cases since
Deklewa have clarified the means by which a party
can prove 9(a) status in construction industry bar-
gaining relationships. As the Board stated in Ameri-
can Thoro-Clean, 283 NLRB 1107, 1108-1109
(1987), under Deklewa, the party to an 8(f) relation-
ship that is asserting 9(a) status,
would have the burden of affirmatively prov-
ing the existence of such a relationship,
through either (1) a Board-conducted repre-
sentation election or (2) a union's express
demand for, and an employer's voluntary
grant of, recognition to the union as bargain-
ing representative, based on a showing of sup-
port for the union among a majority of the
employees in an appropriate unit.
There is no evidence here that the parties' rela-
tionship is anything but an 8(f) relationship, be-
cause there is no evidence of a Board-conducted
election nor an express demand for and voluntary
grant of recognition to the Union as a majority
representative of the employees at any time during
their relationship. We thus conclude that the Re-
spondent's collective-bargaining relationship with
the Union was an 8(f) relationship.
Therefore, the obligation to bargain is deter-
mined by the following principles as set out in
Deklewa:
(1) a collective-bargaining agreement permit-
ted by Section 8(f) shall be enforceable
through the mechanisms of Section 8(a)(5) and
Section 8(b)(3); (2) such agreements will not
bar the processing of valid petitions filed pur-
suant to Section 9(c) and Section 9(e); (3) in
processing such petitions, the appropriate unit
normally will be the single employer's employ-
ees covered by the agreement; and (4) upon
the expiration of such agreements, the signato-
ry union will enjoy no presumption of majori-
ty status, and either party may repudiate the
8(f) bargaining relationship. [282 NLRB at
1377-1378.]
In applying Deklewa to this case, we uphold in
part the judge's conclusion that the Respondent
violated the Act. The parties' collective-bargaining
agreement is enforceable under Section 8(a)(5) of
the Act. However, the Union enjoyed no presump-
tion of majority status following the contract's ex-
piration date of May 31, 1987. The Respondent
was entitled to repudiate its bargaining relationship
on that date and could lawfully refuse to negotiate
or adopt a successor agreement.
Accordingly, we find that the Respondent violat-
ed Section 8(a)(1), (3), and (5) of the Act by failing
to make the contractually required benefit fund
contributions for employees who were not mem-
bers of the Union , under the 1984-1987 CCIA
Heavy & Highway Agreement , from December 8,
1986, to May 31, 1987, and shall limit the make-
whole remedy accordingly .2 We also find that the
Respondent violated Section 8(a)(5) and (1) by
withdrawing recognition from the Union on April
30, 1987, approximately 1 month before the 8(f)
bargaining relationship expired . Further , the Re-
spondent did not violate Section 8 (a)(5) and (1) by
its failure to supply the Union with the names and
addresses of its employees because the Union's
demand , on June 5, 1987 , was after the 8 (f) collec-
tive-bargaining relationship had ended , and during
a period of time when the Respondent no longer
had any contractual obligations toward the Union.
ORDER
The Respondent, E. L. Wagner Company, Inc.,
Bridgeport, Connecticut, its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Withdrawing recognition during the term of
a collective-bargaining agreement from Local
Union No. 146, Laborers International Union of
North America, AFL-CIO as the exclusive collec-
tive-bargaining representative of the Respondent's
employees covered by the agreement.
(b) Refusing to adhere to, until the May 31, 1987
expiration date, its 1984-1987 collective-bargaining
agreement with the Union.
(c) Unilaterally ceasing to make contributions to
the Union's fringe benefit funds as provided in the
collective-bargaining agreement that was binding
on the Respondent until May 31, 1987.
(d) Discouraging membership in the Union by
failing and refusing to apply the terms and condi-
tions of the aforesaid collective-bargaining agree-
ment to all employees who were in the bargaining
unit.
(e) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
2 Because the provisions of employee benefit fund agreements are vari-
able and complex, the Board does not provide at the adjudicatory stage
of the proceeding for the addition of interest at a fixed rate on unlawfully
withheld fund payments Therefore, any additional amount owed with re-
spect to the health and welfare fund and pension plan shall be determined
in accordance with the procedure set forth in Merryweather Optical Co,
240 NLRB 1213, 1216 fn 7 (1979)
E L WAGNER CO
(a) Make whole unit employees by making all
fringe benefit contributions, as provided in the ap-
plicable collective-bargaining agreement, which
were not paid from December 8, 1986, to May 31,
1987, and which would have been paid in the ab-
sence of the Respondent's unilateral discontinuance
of contributions, and by reimbursing unit employ-
ees for any expenses ensuing from the Respondent's
failure to make those contributions.
(b) Preserve and, on 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.
(c) Post at its place of business copies of the at-
tached notice marked "Appendix."3 Copies of the
notice, on forms provided by the Regional Direc-
tor for Region 34, after being signed by the Re-
spondent's authorized representative, shall be
posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in
conspicuous places including all places where no-
tices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or
covered by any other material.
(d) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
3 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 Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT, during the term of a collective-
bargaining agreement, repudiate that agreement
and withdraw recognition from Local Union No.
146, Laborers International Union of North Amer-
ica, AFL-CIO as the exclusive collective-bargain-
ing representative of our employees covered by the
agreement.
WE WILL NOT unilaterally cease making contri-
butions to the Union's fringe benefit funds as pro-
495
vided in the collective-bargaining agreement that
was binding on us from 1984 to May 31, 1987.
WE WILL NOT discourage membership in the
Union by failing and refusing to apply the terms
and conditions of the collective-bargaining agree-
ment to all employees who are in the bargaining
unit.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL make whole our unit employees by
making all fringe benefit contributions, as provided
in the applicable collective-bargaining agreement,
which were not paid from December 8, 1986, to
May 31, 1987, and which would have been paid
absent our unilateral discontinuance of such contri-
butions, and by reimbursing unit employees for any
expenses ensuing from our failure to make such
contributions.
E. L. WAGNER COMPANY, INC.
Michael A. Marciones, Esq., for the General Counsel.
Robert E. Jackson, Esq., for the Respondent.
Robert M. Chevrie, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. This
case was heard by me in January 1988. The charge was
filed on 8 June 1987, an amended charge was filed on 22
July 1987, and a second amended charge was filed on 13
August 1987 The complaint was issued on 3 September
1987 and alleged in substance.
(1) That the Union has been the collective-bargaining
representative of the Employer's laborers since before
1959.
(2) That since 8 December 1986 (a period within 6
months of the charge being filed), the Respondent, in
violation of Section 8(a)(1), (3), and (5) of the Act has
failed to make certain contractually required payments to
various benefit funds on behalf of bargaining unit em-
ployees who were not members of the Union.
(3) That since on or about 5 June 1987, the Respond-
ent, in violation of Section 8(a)(1) and (5) of the Act, has
refused to furnish to the Union the names and addresses
of its employees.
(4) That in or about June 1987 the Respondent has
withdrawn recognition from the Union
A critical issue in this case is whether the Union has
historically been the bargaining agent by virtue of Sec-
tion 9(a) or Section 8(f) of the Act. The Employer con-
tends that to the extent it recognized the Union, such
recognition was pursuant to Section 8(f). The General
Counsel and the Union contend that recognition was ini-
tially accorded to the Union prior to 1959 and before
Section 8(f) was enacted. They therefore contend that
496 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
such recognition was granted in accordance.with Section
9(a) of the Act.
Section 8(f), inter alia, permits an employer and a
union, in the construction industry, to enter into collec-
tive-bargaining agreements notwithstanding that the
Union does not represent a majority of the employees in
the unit for which recognition has been granted. The
Board's interpretation of the law governing this provi-
sion of the Act is set forth in John Deklewa & Sons, 282
NLRB 1375 (1987).
Based on the entire record in this case' including my
observation of the demeanor of the witnesses, and after
considering the briefs filed, I make the following
FINDINGS AND CONCLUSIONS
A. Jurisdiction
The Respondent admits and I find that it is an employ-
er engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act. I also conclude that the
Union is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
B. Operative Facts
The Employer through one of its divisions is engaged
in the business of constructing swimming pools.2 It had
been, for many years, located in Darien, Connecticut.
However, in December 1986, it moved to Bridgeport,
Connecticut.
The founder of the Company was Edward P Wagner.
In January 1987 the business was purchased by Wagner's
son-in-law, John C. Gedney, who has been employed by
the Company since 1963. Since about 1983, Gedney has
been the Company's president.
The building of swimming pools in Connecticut and
Westchester is seasonal. In this regard, the record shows
that the Company, for many years, has employed a core
group of laborers who return to work each season. Addi-
tional laborers are hired as needed. The season normally
runs from March through November.
There has existed a long-term collective-bargaining re-
lationship between the Company and the Union. Gedney
acknowledged that the Company has abided by the
terms of various union contracts since the time he has
been employed. Moreover, in his pretrial affidavit,
Gedney stated that he had been informed (no doubt by
his father-in-law), that a collective-bargaining relation-
ship with the Union dates back to the 1930s. Similarly,
Vincent Falcioni who was a vice president of the Com-
pany and who was employed from 1946 to 1986, testified
that for the period of his employment, the Company has
employed union laborers and has been known as a
"union pool builder." Richard Weiss, the executive di-
rector of the Connecticut Laborers Funds, testified that
the various funds which are administered by his office
received moneys from employers having contracts with
the Union. He produced documents showing that during
' The unopposed motion by the Respondent to correct the transcript Is
granted
2 A second division of the Company services swimming pools That di-
vision and its employees are not involved in this case
the period from July to December 1956, the Respondent
made such contributions to the various funds on behalf
of persons employed by it. (These were the oldest pay-
ment records of the Respondent that Weiss could find
and he testified that old contribution records generally
no longer exist.)
Based on the above, I conclude that the evidence es-
tablishes that the Company recognized the Union before
1959 in relation to its employees who were engaged in
the construction of swimming pools (i.e., laborers)
The evidence shows that, historically, the Company
and the Union have not met face to face to negotiate
contracts Rather, the practice has been for the Company
to execute an "Acceptance of Agreements" pursuant to
which it agrees to be bound to the contracts made be-
tween the Connecticut Laborers' District Council (of
which Local 146 is a part), and two multiemployer bar-
gaining associations. The Associations, neither of which
the Respondent is a member, are the Associated General
Contractors of Connecticut Inc. (AGC), and the Con-
necticut Construction Industries Association Inc.
(CCIA). The agreement with the AGC covers building
construction work and the CCIA agreement covers
heavy, highway, and tunnel work. Although agreeing to
be bound to both contracts (which are substantially simi-
lar), it seems that the Respondent, throughout the years,
has paid the wages and benefits set forth in the CCIA
contracts.
On 1 April 1981 the Respondent and Local 146 en-
tered into an "Interim Agreement." In doing so the Em-
ployer agreed to be bound by the contracts with the
aforesaid Associations when they were executed, effec-
tive from 1 April 1981 to 31 March 1984. This interim
agreement was made because there was a strike in
progress against the Associations, and the Respondent
opted to avoid the strike by signing the interim agree-
ment. Because the Respondent agreed in advance to be
bound by the Associationwide contracts when made, it
was not necessary for the Respondent to subsequently
sign the usual "Acceptance of Agreements." Ultimately
contracts were executed between the Connecticut Labor-
ers' District Council and the two Associations
With respect to the period 1984 to 1987, the evidence
shows that the Company neither signed an interim agree-
ment nor an "Acceptance of Agreements." Nevertheless,
the evidence shows that there was "agreement" by the
Company to be bound by the Association contracts in
effect during that period of time. For one thing the 1978
Acceptance of Agreements stated that the employers
agreed to be bound by "any successor agreements"
unless the employer or the Union "gives timely, written
notice to the other party of its intentions to change or
terminate a particular collective bargaining agreement in
accordance with its terms." (No notice of termination
was given by the Union or the Company after the 1981
to 1984 contract expired.) Also, the evidence shows that
during the 1984-to-1986 period, the Employer complied
with the wage and benefit provisions of the CCIA con-
tract at least insofar as those of its employees who were
union members Finally, the evidence shows that the
Company and the Union negotiated about several prob-
E L WAGNER CO
lems during this period which entailed interpretation of
the contract.3
As of December 1986 and before the seasonal layoff,
the Respondent as evidenced by its remittance reports,
had 11 employees working in the construction division.
On 30 January 1987 the Employer sent a mailgram to
the Local 146's offices This read:
To the extent we may be bound to collective bar-
gaining agreements with your union and to the
extent said agreements are scheduled to expire this
year but may automatically renew absent notice to
terminate or renegotiate a successful agreement,
said notice is hereby given.
(The word successful is obviously a typographical error
and is meant to be successor.)
The Union's business agent, Roy Varbero, denied that
he received the mailgram described above However, he
conceded that there are three other unions sharing the
building and that mail for all is haphazardly handled
Varbero acknowledged that because the mail distribution
procedure is somewhat chaotic, even certified mail has
been lost. I therefore cannot attribute the failure of the
Union's officials to receive the mailgram to be the re-
sponsibility of the Company On the contrary, I believe
the Company took reasonable means to notify the Union
and that its notice was sufficient under the terms of the
Acceptance of Agreements
At the end of March 1987 the Employer began rehir-
ing for the new season.4 The evidence shows
Whether
Contribu-Time of RecallName of Employee Member of tions Madeor Hire Union to Benefit
Funds
I M. Cerquiera March Yes Yes
2 E Cerra March Yes Yes
3 A Colacicco March Yes Yes
4 E Texeira March Yes Yes
5' J Texeira March Yes Yes
6 M Granata March Yes Yes
7 J Biasetti March No No
8 T Underhill March No No
9 G Thomas April Yes Yes
10 D Colacicco April Yes Yes
11 D Escaleira April No No
12 A Pinto April No No
13 L Munoz April No No
14 J Portella May No No
3 One problem arose when the funds did an audit and discovered that
the Company had failed to make fund contributions for some of its em-
ployees in 1984, 1985, and 1986 (The employer claimed that these indi-
viduals had not done bargaining unit work) Ultimately, the dispute was
resolved whereby the employer paid the arrearages for some but not all
the employees for whom claims were made Two employees signed affi-
davits to that effect, but they were not in the unit and the funds relin-
quished claims as to these two
4 In March the employer held a meeting with its union employees and
told them it had given notice to the Union of its intent to terminate the
contract
497
On 31 March 1987 the collective- bargaining 'agreement
expired and on 20 May the Employer filed a petition for
an election in Case 39-RM-40 In the affidavit filed with
the RM petition, the Employer claimed that there were
16 employees in the unit of which only 7 were union
members
On 5 June 1987 the Union's lawyer wrote the Compa-
ny as follows-
.
This office represents Laborers' Local 146 and
the Connecticut District Council of Laborers'. I
hereby request that you provide me with the names
and home addresses of all employees on your pay-
roll from January 1, 1987 to the present. Please for-
ward the response to this request directly to this
office.
The Company did not respond, although at the hear-
ing, it took the position that it would furnish the names
and addresses of the bargaining unit employees pursuant
to Excelsior Underwear, 156 NLRB 1236 (1966), if and
when an election is ordered
On 8 June 1987 the Union filed the instant unfair labor
practice charge. Thereafter the Acting Officer in Charge
of Subregion 39 held the RM petition in abeyance pend-
ing investigation of the alleged unfair labor practices.
The RM petition was subsequently dismissed on 28 Sep-
tember 1987 (subject to reinstatement), because the Su-
bregion issued this complaint which, in its opinion, made
allegation which, if proven, would preclude the existence
of a question concerning representation. This was ap-
pealed to the Board on 5 October 1987.
There is no dispute that the Company has withdrawn
recognition from the Union. Nevertheless, despite taking
the position that it has no further contractual obligations
to the Union, the Company has continued to make con-
tributions to the union funds on behalf of those of its em-
ployees who are union members. Such contributions
have been made, however, at the rates set forth in the
expired contracts. The Company has continued to make
these contributions in an effort to maintain the status quo
pending the outcome of this case before the National
Labor Relations Board.
Analysis
Regarding the withdrawal of recognition, the Employ-
er contends that whatever agreements it had with the
Union were pursuant to Section 8(f) of the Act and that
its withdrawal , at the agreements' termination date, was
therefore permissible under John Deklewa & Sons, 282
NLRB 1375 (1987).
The General Counsel contends, however, that the un-
derlying collective -bargaining relationship was not one
pursuant to Section 8(f), but rather was made under Sec-
tion 9(a) of the Act. As such, the General Counsel
argues that the rules governing when a company may
lawfully withdraw recognition are those applicable to
the everyday types of bargaining relationships outside
the construction industry. Thus, the General Counsel
contends that in order to justify its withdrawal of recog-
nition upon the termination of the contract, the employer
must affirmatory prove that it had objective grounds for
498 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
having a good-faith doubt as to the Union's continuing
majority status See, e g., Hearst Corp., 281 NLRB 764
(1986). I think the General Counsel is correct.
In my opinion the evidence establishes that the collec-
tive-bargaining relationship between the Company and
the Union dates from before 1959. Thus, Gedney, in an
affidavit, stated that as far as he knew the collective-bar-
gaining relationship dated back to the 1930s. Also, Fal-
cioni, previously a vice president of the Company, testi-
fied that the Company has employed union laborers
during the period of his employment, which was from
1946 to 1986, and that it has been known as a "union
pool builder." Other evidence, in the form of old
records, shows that the Company has made contributions
to union funds on behalf of its employees since at least
1956. In short, the General Counsel has adduced substan-
tial evidence of a collective-bargaining history dating
back before 1959 and the Company has not presented
any contrary evidence. Moreover, it is plain that the bar-
gaining history has entailed recognition on behalf of em-
ployees working as laborers in the construction of swim-
ming pools.
Section 8(f) of the Act, which permits minority recog-
nition of a union in the construction industry, was en-
acted in 1959. Prior to that time, employers, and unions
in the construction industry operated under the same
rules as any other employers insofar as establishing and
maintaining collective-bargaining relationships. Thus, any
recognition of a union by an employer in the construc-
tion industry before 1959 had to be governed by Section
9(a) and not Section 8(f) of the Act
Under Section 9(a) an employer and a union can law-
fully enter into a collective-bargaining relationship (via
voluntary recognition), if the union in fact represents a
majority of the employer's employees in an appropriate
unit. If such recognition is granted at a time when the
union does not represent a majority, then such recogni-
tion would violate Section 8(a)(2) of the Act. Ladies
Garment Workers (Bernhard-Altmann) v. NLRB, 366 U S
731 (1961).
The evidence in.this case establishes not only that the
initial bargaining relationship was created before 1959
(and therefore under Section 9(a)), but also that it has
been unbroken, with successive agreements over the
years. In view of the unbroken bargaining history since
before 1959, evidence (if any existed) to show that the
initial recognition was based on minority status, would
not be permitted because of Section 10(b) of the Act.
Morse Shoes, 231 NLRB 13 (1977), enfd. 591 F.2d 542
(9th Cir. 1979). Moreover, the Respondent has not at-
tempted to produce any evidence purporting to show
that recognition in this case was initially given at a time
when the Union did not represent a majority of the
Company's laborers
In view of the above, it is evident to me that at the
expiration of the 1984-1987 contract, the Union was enti-
tled to a presumption of continuing majority status
which the Respondent has not rebutted 5 As stated by
5 In fact, the records introduced into evidence tend to establish that as
of the end of May 1987 when the RM petition was filed, a majority of
the laborers in the Company's construction division were union members
the Board in Stratford Visiting Nurses Assn., 264 NLRB
1026 (1982):
It is well established that upon expiration of a
collective-bargaining agreement a union enjoys a re-
buttable presumption that its majority representative
status continues. This presumption is rebutted if an
employer affirmatively establishes either (1) that its
refusal to bargain was predicated on a good-faith
doubt, based on objective considerations, of the
union's majority status, or (2) that at the time of the
refusal to bargain a majority of the unit employees
in fact did not wish to have the union as their col-
lective-bargaining representative. The burden of re-
butting the presumption rests on the employer.
The Respondent points to three factors to estab-
lish that the Union in fact lacked majority status:
only two of the six unit employees were union
members; only two of the six employees were on
dues checkoff, and two, or three, of the six employ-
ees testified at the hearing that they did not want
the Union to represent them as of the refusal-to-bar-
gain date. None of these factors establishes lack of
majority support. It is well established that neither
the number of employees who are union members
nor the number on dues checkoff demonstrates lack
of majority support.
The complaint also alleges that from a period com-
mencing 6 months prior to the filing of the charge (6 De-
cember 1986), the Employer had not made contributions
to the benefit funds, as required by contract, on behalf of
those of its laborers who were not members of the
Union. This is essentially conceded by the Employer. It
contends, however, that under John Deklewa, supra, it
was enticed to terminate the bargaining relationship on
the expiration of the contract (31 March), and that
having given notice in January 1987 to terminate the
agreement, it therefore had no further contractual obliga-
tions after 31 March 1987.6 Under this theory, the Em-
ployer would contend that it had no obligation to make
fund contributions on behalf of any of its employees
whether or not they were members of the Union
While Respondent's theory would be viable if we were
considering an 8(f) bargaining relationship, it cannot be
sustained if the relationship was pursuant to Section 9(a)
of the Act. Thus, where a 9(a) relationship was in effect,
the Employer could not withdraw recognition except in
the circumstances described above As I have previously
concluded that the Respondent's withdrawal of recogni-
tion was unlawful, it was not free to unilaterally change
the terms and conditions of the expired contract. In Buck
Brown Contracting Co., 272 NLRB 951, 953 (1984), the
Board held that a company violated Section 8(a)(5) by
Thus, of 14 employees, 8 were union members and 6 were new hires who
had not joined the Union (No evidence was presented to show that the
six new hires had refused to join the Union ) 1
6 It is not entirely clear to what extent there were employees who
were not union members who were employed between 8 December 1986
and 31 March 1987 As noted above, J Biasetti and T Underhill may
have been hired a few days before 31 March
E L WAGNER CO.
ceasing to make contributions to certain benefit funds on
the expiration of the contract. It stated.
It is well settled that an employer violates Section
8(a)(5) and (1) when it unilaterally changes or discontin-
ues existing terms and conditions of employment-in-
cluding contributions to contractual fringe benefit
funds-upon the expiration of a collective-bargaining
agreement unless: (1) the union has waived bargaining on
the issue; or (2) the parties have bargained to impasse
and the unilateral change is reasonably encompassed by
the employer's preimpasse proposals. It also is well set-
tled that an employer acts in derogation of its bargaining
obligation under Section 8(d) if it unilaterally changes or
otherwise repudiates terms or conditions of employment
contained in a collective-bargaining agreement during
the life of that agreement.7
I therefore conclude that the employer violated Sec-
tions 8(a)(1) and (5) and 8(d) of the Act when it unilater-
ally changed terms and conditions of employment by
failing to make contributions to benefit funds on behalf
of certain employees. (Whether these "changes" were
made before or after the last contract expired is not ma-
terial However, Section 10(b) of the Act, would limit
the amount of any money owing to a period commenc-
ing 6 months prior to the filing of the charge.) Addition-
ally, as the evidence shows that fund contributions were
not made only as to those employees who were not
members of the Union, it is concluded that this constitut-
ed a violation of Section 8(a)(3) of the Act as well. F &
C Transfer Co., 277 NLRB 591, 596 (1985); Prestige Bed-
ding Co., 212 NLRB 690 (1974) Cf. B. G. Costich & Sons
v. NLRB, 613 F.2d 450 (2d Cir. 1980).
The Union claims that the Respondent not only violat-
ed the Act as described above, but also asserts that the
Respondent is bound to honor the new contracts execut-
ed with the Employer Associations covering the period
1987 to 1991. The Union contends that any moneys
owed pursuant to a remedial order should therefore be
measured by the terms of the new contracts and not by
the terms of the expired contracts. I do not agree.
The Union's contention is based on the assertion that
the Employer did not give notice as required under the
Acceptance of Agreements and therefore the Employer
automatically agreed to be bound by the latest Associa-
tionwide contracts Even assuming the continued viabili-
ty of the 1978 Acceptance of Agreements signed by the
Employer, the fact remains that on 30 January it did give
notice to terminate or renegotiate a successor agreement.
Thus, while I have concluded that the Employer contin-
ues to be bound to recognize and bargain with the
Union, I cannot conclude that it has agreed to be bound
to the 1987-1991 Association Agreements. Therefore,
absent agreement, there is no legal basis to hold that the
Employer is obligated to comply with its terms. H. K.
Porter Co. v. NLRB, 397 U.S. 99 (1970).
I also conclude that the Respondent violated Section
8(a)(5) of the Act by failing to furnish the names and ad-
dresses of employees. The Board has held that such in-
formation is presumptively relevant when requested by
See also Hen House Market No 3 v NLRB, 428 F 2d 133 (8th Cir
1970)
499
the recognized collective-bargaining representative Mon-
santo Co., 268 NLRB 1381 (1984)
While it is true that the Union's request may have
been overbroad in that it asked for the names and ad-
dresses of all the employees on the Company's payroll, I
do not think that this is sufficient to defeat the 8(a)(5)
claim The Union has represented the employees in the
Company's construction division for many years and it
has never claimed to represent any of the Company's
other employees In these circumstances, it therefore
should be evident to any reasonable person, that the
Union's request was meant to encompass only the bar-
gaining unit employees. If the Company had any ques-
tion as to the cope of the Union's information request, it
did not seek clarification from the Union Instead it
chose to ignore the request See La Guardia Hospital, 260
NLRB 1455, 1463 (1982).
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(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. All laborers employed by the Respondent in its con-
struction division excluding all other employees, office
clerical employees, professional employees, guards and
supervisors as defined in the Act, constitute a unit appro-
priate for collective bargaining within the meaning of
Section 9(b) of the Act
4 At all times material, the Union has been the exclu-
sive collective-bargaining representative within the
meaning of Section 9(a) of the Act on behalf of the
aforesaid unit of employees.
5. By withdrawing recognition from the Union and
thereafter refusing to recognize and bargain with the
Union regarding any changes in the terms and conditions
of employment, the Respondent engaged in and is engag-
ing in unfair labor practices within the meaning of Sec-
tion 8(a)(5) and (1) of the Act
6 By failing, since 8 December 1986, to make contri-
butions to the Union's fringe benefit funds on behalf of
bargaining unit employees who were not members of the
Union in accordance with the collective-bargaining
agreement, the Respondent has failed to bargain in good
faith in violation of Section 8(a)(1) and (5) and Section
8(d) of the Act and has discouraged membership in the
Union in violation of Section 8(a)(1) and (3) of the Act
7. By refusing to supply the names and addresses of its
employees in the unit described above in paragraph 3,
the Respondent has failed to bargain in good faith in vio-
lation of Section 8(a)(1) and (5) of the Act
THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I shall order the Respondent
to cease and desist therefrom and to take certain affirma-
tive action designed to effectuate the policies of the Act
I have found that the Respondent, since 8 December
1986, has failed to make contributions on behalf of cer-
tain of its unit employees to the Union's fringe benefit
500 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
funds. To remedy this I shall recommend , in accordance
with Buck Brown Contracting Co., 272 NLRB 951, 954
(1984), that the Respondent make its unit employees
whole by paying all fringe benefit contributions , as pro-
vided in the applicable collective -bargaining agreements,
which have not been paid since 8 December 1986 and
which would have been paid absent the Respondent's un-
lawful discontinuance of such contributions , and by reim-
bursing unit employees for any expenses ensuing from
the Respondent 's failure to make such contributions.8
9 I leave to the compliance stage the question of whether the Respond-
ent must pay any additional amounts into the fringe benefit funds in order
to satisfy the "makewhole" remedy These additional amounts may be de-
termined, depending on the circumstances of each case, by reference to
the provisions in the documents governing the funds as issued and, where
there are no governing provisions , to evidence of any 'loss directly attrib-
I shall also order the Respondent to turn over to the
Union the names and addresses of any and all bargaining
unit employees , employed by the Company since 1 Janu-
ary 1987.
As there is no evidence that Respondent has engaged
in conduct which would indicate an attempt to evade
compliance with a Board order , I do not believe that the
General Counsel 's request for a broad visitatorial clause
would be justified . See Cherokee Marine Terminals, 287
NLRB 1080 ( 1988).
[Recommended Order omitted from publication.]
utable to the unlawful withholding action , which might include the loss
of return on investment of the portion of funds withheld , additional ad-
ministrative costs, etc , but not collateral losses See Merryweather Optical
Co, 240 NLRB 1213 (1979)