East Kentucky Paving Corp.

National Labor Relations Board - Board Decisions

May 19, 1989

293 N.L.R.B. 1132 (N.L.R.B. 1989)

1132 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
East Kentucky Paving Corporation and United
Steelworkers of America, AFL-CIO-CLC Case
9-CA-25546
May 19, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On February 7, 1989, Administrative Law Judge
Claude R Wolfe issued the attached decision The
Respondent filed exceptions and a supporting brief,
and the Charging Party 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 and to adopt the recommended Order
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, East Ken-
tucky Paving Corporation, Grayson, Kentucky, its
officers, agents, successors, and assigns, shall take
the action set forth in the Order
James R Schwartz Esq for the General Counsel
James U Smith III Esq, for the Respondent
Franklin G Shuler Jr Esq, for the Charging Party
DECISION
STATEMENT OF THE CASE
CLAUDE R. WOLFE Administrative Law Judge This
proceeding was litigated before me on October 19 1988
at Lexington Kentucky pursuant to charges filed by the
Union and served on July 7 1988 and complaint subse
quently issued on August 15, 1988 alleging Respondent
violated Section 8(a)(5) and (1) of the National Labor
Relations Act (the Act) by failing to honor and continue
in full force and effect an existing collective bargaining
agreement it has with the Union Respondent denies the
commission of unfair labor practices
After considering the evidence before me and the able
posttrial briefs of all parties I make the following
FINDINGS OF FACT
I JURISDICTION
Respondent is a corporation with an office and place
of business in Grayson, Kentucky, and is engaged in bi
tuminous asphalt paving operations During the 12
months preceding the issuance of the complaint, Re
spondent in the course and conduct of its business, pur
chased and received at its Grayson, Kentucky facility
products, goods, and materials valued in excess of
$50 000 directly from points located outside the State of
Kentucky Respondent is an employer engaged in com
merce within the meaning of Section 2(2) (6) and (7) of
the Act
II LABOR ORGANIZATION
The Union is a labor organization within the meaning
of Section 2(5) of the Act
III THE ALLEGED UNFAIR LABOR PRACTICES
Respondent is a member of Highway Contractors
Inc which is composed of employers engaged in high
way construction and negotiates collective bargaining
agreements on their behalf Highway Contractors, Inc
currently has such an agreement with the Union with a
term of July 1 1986, to June 30 1989 Respondent con
cedes, and I find that this agreement covers its paving
operations
Prior to January 1988, Respondent owned and operat
ed portable asphalt manufacturing plants and performed
asphalt paving Respondent sold its asphalt manufactur
ing business which was not covered by the collective
bargaining agreement on January 5, 1988, because Jack
Ruth Respondents sole owner, had become extremely
ill and was unable to continue the business as he had in
the past In addition to the manufacturing portion of his
business, Ruth also sold about 90 percent of Respond
ent s asphalt laying equipment to Mountain Enterprises
Inc, a competitor Thereafter Ruth entered into a hand
shake agreement with Billy D Meade, the former owner
and current operator of Lehman Meade, which has been
owned by Apex Corporation a subsidiary of Ashland
Oil, Inc since June 1987 Lehman Meade operates four
asphalt plants in the Central Kentucky area The essence
of the agreement between Respondent and Lehman
Meade is that the two companies jointly bid on highway
projects and then, after securing a contract as a result of
these bids Lehman Meade produces and delivers asphalt
mix to East Kentucky who then applies it to the road
way Each company keeps track of its costs for its por
tion of the work At the conclusion of a project these
costs are tabulated and reimbursed by Respondent s
office personnel from payments there received from the
Kentucky Department of Transportation Profits or
losses remaining after the reimbursement of costs are
shared equally by Respondent and Lehman Meade The
record shows that Respondent and Lehman Meade had
operated as joint adventurers on other occasions com
mencing in 1985 It appears from the uncontroverted tes
timony of Charles Cantrell, the Union s president that he
first became aware of a joint venture between these two
employers some time in September, October or Novem
ber 1987 when Jack Ruth told him that Lehman Meade
and Respondent were going to perform a highway
paving job as a joint venture, and the job would be run
by East Kentucky Paving At that time, Cantrell told
him the Union could not accept a nonunion bridge sub
contractor but Cantrell did not then protest the joint
venture proceeding About a month to 6 weeks thereaf
ter he and Ruth had another conversation wherein he
told Ruth the Union would not object to him using a
293 NLRB No 141
EAST KENTUCKY PAVING CORP
nonunion bridge contractor Cantrell vacationed in Flori
da from December 26 or 27, 1987, until the first few
days in March when he returned to Kentucky Shortly
thereafter an employee visited his home and advised him
he had been fired by Lehman Meade from the joint ven
ture job with Respondent When Cantrell said he did not
think the employee had been working for Lehman
Meade because that was Respondents job the employee
continued to insist he had been working for Lehman
Meade On April 17 or 18, 1988, Cantrell told Ernest
Thompson, a field representative for the Union, he had
been told of subcontractors on the job, and asked
Thompson to check it out Thompson went to the jobsite
on April 19 where he spoke to Neil Bruckner, Respond
ent s superintendent On inquiry , Bruckner advised that
Respondent was the general contractor and had some
nonunion subcontractors Thompson told Bruckner the
contract between the Union and Respondent required
subcontractors to become signatory thereto There was
no discussion of a joint venture Thompson asked Bruck
ner to have Jack Ruth call him or Cantrell to get the
matter straightened out Receiving no call , Thompson re
turned to the project on April 28 and met with Respond
ent s superintendent Tom Cannon and filed an oral griev
ance with him claiming noncompliance with the collec
tive bargaining agreement because the subcontractors
were not signatory thereto The agreement does not on
its terms require the filing of a written grievance to acts
vate the procedure There was no discussion of a joint
venture with Cannon
On May 12 1988 , the following letter was sent to
Highway Contractors Inc
Upon notice from you regarding a union gnev
ance on the Man 0 War Project in Lexington and a
request for a hearing date of the alleged grievance
please be advised of the following
1 The reference project work is being performed
as a Joint Venture and therefore is not subject to
the jurisdiction of the Union Contract
2 Provision of the Union Agreement including
Article 13 Grievance Procedure and Arbitration
are not applicable to the work performed on this
project or the Joint Venture
3 Therefore the Joint Venture will not appear
before the grievance committee nor appear to be
bound by a decision reached by said committee
Sincerely,
East Kentucky Paving Corporation
and Lehman Meade Company a Joint Venture
/s/ J E Ruth
J E Ruth, President
/s/ B D Meade
B D Meade , President
On May 23 1988, Thompson wrote the following
letter to the Managing Secretary of Highway Contrac
tors Inc
Re East Kentucky Paving Co Grievance
1133
Dear Mr Clemons
On May 3 1988 in accordance with the Griev
ance Procedure of the Collective Bargaining Agree
ment , the Union submitted a grievance against the
above reference Company to the 3rd Step of the
Grievance Procedure As of this date, no meeting
has been held nor scheduled to hear the case
As a reminder, the FOURTH Step of the Griev
ance Procedure states Any grievance that is not
brought before the Joint Grievance Committee, in
Step 4 within thirty (30) days after the event giving
rise to the grievance (excluding fringe benefits)
grievance being presented to the Committee within
the thirty (30) day limit
The grievance was filed with East Kentucky
Paving Co on April 28, 1988 Therefore I suggest
that you take immediate steps to schedule the 4th
step meeting on or before May 28, 1988 Otherwise,
the Union will take the position that the Company
has forfeited the grievance
Clemons answered Thompson by letter of May 24,
1988, reading in part , as follows
It is our understanding that East Kentucky
Paving Co is part of a joint venture and that such
joint venture is engaged in construction work on
the Man 0 War Boulevard The joint venture is,
however, no signatory to the Agreement Not su
prisingly, it is the position of the East Kentucky
Paving Co Joint Venture that it is not covered
under terms of the Agreement and that the High
way Contractors, Inc lacks jurisdiction to pursue
such grievance
We have been advised by counsel that the posi
tion taken by the joint venture is legally defensible
A decision of the National Labor Relations Board
has held that a joint venture is not subject to the
contractual obligations of its participants
Therefore, the Highway Contractors Inc must
take the position that the grievance machinery of
the Agreement is not applicable to this project and
that the Joint Grievance Committee does not have
jurisdiction over the referenced grievance
However if it is ultimately determined by either
the National Labor Relations Board or by a Court
of competent jurisdiction that the East Kentucky
Paving Co Joint Venture is subject to the terms
and provisions of the Agreement , we will process
the grievance in accordance with the terms of the
contract The Highway Contractors Inc will not
however , presume jurisdiction over the Joint Ven
ture and invoke the grievance processes of the
Agreement
Moreover contrary to the position taken in your
May 23 1988 letter the Highway Contractors Inc
does not agree that the failure to process this gnev
ance on behalf of East Kentucky Paving Co Joint
Venture will result in a forfeiture of that grievance
in accordance with the terms and provisions of the
Agreement Rather , it is the position of the High
way Contractors Inc that all proceedings relating
1134 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
to the above referenced grievance must be held in
abeyance until a determination has been made re
garding the jurisdiction of the Highway Contrac
tors, Inc to hear and decide such grievance
By letter of June 15, 1988, Clemons notified Thomp
son, as a fourth step answer to the grievance by High
way Contractors Inc as follows
The question of whether the East Kentucky
Paving Company Joint Venture is subject to the
provisions of the Heavy and Highway Agreement is
a legal conclusion under which the Highway Con
tractors, Inc lacks the authority and capacity to
decide That question will ha-a to be resolved by
the National Labor Relations Board If East Ken
tucky Paving Company Joint Venture is found to
be subject to the terms and provisions of the Heavy
and Highway Agreement then, in that event, the
Highway Contractors, Inc will review the pertinent
facts involved in this case, in light of that decision,
to see if the contract has been violated
However, until such a determination regarding
the legal status of East Kentucky Paving Company
Joint Venture has been made by the NLRB the
Highway Contractors, Inc declines to render a final
determination in this matter Accordingly, the
grievance is remanded from current consideration
The question is whether by entering into their joint ad
ventures Lehman Meade and Respondent became a new
employing entity which rendered Respondent's contract
with the Union inapplicable The answer to that question
I believe must be No ' To support its contention the
answer should be Yes Respondent relies on Wood
workers Local 5 265 (Willamette Lumber) i and Grove
Hendrickson 2 Both are clearly distinguishable on their
facts and are not applicable to the situation before me In
Woodworkers the Willamette National Lumber Company
and the Santiam Lumber Company both engaged in log
ging and lumber milling , entered into a joint venture pur
suant to a written agreement under which they set up a
third company Suttle Lake Logging Company, to take
logs from a specified area The agreement provided for
an equal sharing by Willamette and Santiam of the man
agement of Suttle Lake and the profit or loss from its
logging operations Suttle Lake had a separate bank ac
count books, and records, was registered as an employer
for tax purposes and state employee compensation plans,
and met its payroll from its own funds Similarly in
Grove Hendrickson that corporation entered into a joint
venture with Hendrickson Bros Inc for the purpose of
bidding on a construction project The joint venture was
called Grove Hendrickson which, pursuant to the agree
ment between the two corporations which formed it,
became the sole employer of the employees involved in
the venture , maintained a separate bank account separate
books of account, and separate withholding and social
security tax accounts, and selected its own foreman and
1 107 NLRB 1141 (1954)
2 109 NLRB 209 (1954)
gave him the sole authority to hire an fire those employ
ees under his supervision
In both Woodworkers and Grove Hendrickson the joint
venture was a separate entity and an employer within the
meaning of the Act The facts in the instant case warrant
no such conclusion There is no written agreement con
cerning the joint venture, nor does the joint venture
exists as a separately named entity with separate bank ac
counts, payroll books of account, tax accounts or em
ployees The only documentation with a governmental
agency of the joint venture s existence is the notation by
the two companies on their bids for state highway work
that they are a joint venture Respondent s and Lehman
Meade s production and paving operations under the
joint venture arrangement are the same as they were and
would be without that arrangement The only real differ
ence is their financial arrangement Respondent has the
same employees and supervisors performing joint venture
paving as it had outside the joint venture arrangement
continues to date to submit its employees union dues to
the Union along with the fnnge benefit payments re
quired by the collective bargaining agreement, pays the
wages required by that agreement, issues payroll checks
for the wages from a checking account it has maintained
at a Grayson Kentucky bank for 31 years, has its offices
at Grayson Kentucky, withholds and submits social se
curity and income tax payments to the appropriate au
thorities on its employees behalf, submits unemployment
compensation insurance moneys for these employees
issues W 2 forms to paving employees showing Respond
ent as their employer, and files its own income tax re
turns reflecting, inter alia its share of the profit or loss
from joint venture projects The Lehman Meade asphalt
production facility is not covered by a union contract
None of its employees work on the paving operation or
under Respondent's supervision They are paid by
Lehman Meade issued W 2 forms by that entity and re
ceive no personnel services from Respondent which re
quires a conclusion that all such services for asphalt pro
duction employees are furnished by Lehman Meade at its
Lexington Kentucky offices
There is no interchange between paving and asphalt
production employees nor is there any common supervi
lion The paving work is supervised by Ruth and Re
spondent s two superintendents none of whom has been
shown to supervise anyone at the asphalt plant With re
spect to Meade s testimony that he goes every morning
to the asphalt plant to see that production is going well
and then checks at the jobsite that delivery of the asphalt
has been made, and anything that needs to be done on
the job while I in there I am persuaded he is here re
porting that he daily monitors production delivery, and
quality of his product Anything that needs to be done
on the job while I in there is I conclude a reference to
matters relating to the quality or quantity of the asphalt
mix delivered rather than to actual paving operations
Meade's presence is not required for the actual paving
work which is overseen by Ruth and his superintendents
but Meade s presence might well be required if there
were questions regarding the suitability of the asphalt
EAST KENTUCKY PAVING CORP
mix There is no persuasive evidence Meade supervises
any paving employees and I find does not
The State of Kentucky recognizes Respondent and
Lehman Meade as a joint venture for highway paving
contract purposes and they are indeed joint adventurers
in the sense that they are lending their respective re
sources and skills to a single cooperative enterprise, the
paving of state highways Notwithstanding state recogni
tion of these two firms as a joint venture, the record is
clear that each remains a single separate and distinct em
ployer who has decided for practical reasons to work
with the other, devoting its individual resources to that
portion of the enterprise those resources are especially
equipped to accomplish It is a simple formula Lehman
Meade provides the asphalt mix, Respondent lays it, and
they equally share the resulting profit or loss None of
this changes the character of Respondent as a single stat
utory employer employing a unit of employees represent
ed by the Charging Union There has been no change in
the employer/employee relationship The mere attach
merit of the title joint venture to the arrangement be
tween Respondent and Lehman Meade, although legal
and acceptable by the State of Kentucky for purposes of
highway contracting, cannot operate to defeat Respond
ent's continuing obligation to honor its collective bar
gaining agreement when, as here, there has been no real
change in the employing entity
Contrary to Respondent, the complaint does not
allege , and the General Counsel does not argue that the
Union contract should be applied to the joint venture in
its entirety The allegation and contention are simply
that Respondent has unlawfully refused to honor its ex
isting collective bargaining agreement There is no claim
that the contract should be applied to Lehman Meade or
the joint venture as an entity The situation is quite
simple The Union protested the subcontracting of work
by Respondent and Respondent took the position such a
grievance could not be maintained because its collective
bargaining agreement with the Union is not applicable to
Respondent while it is engaged in the joint venture with
Lehman Meade The General Counsel contends that Re
spondent s position in this regard is an unlawful repudi
ation of the contract in violation of Section 8(a)(5) and
(1) of the Act
Respondent argues that if it is required to abide by its
union agreement while involved in the joint venture,
Lehman Meade and the joint venture would be deprived
of their constitutional right to freely contract Respond
ent also urges that because Kentucky places no subcon
tracting restrictions on successful bidders the joint ven
lure has the right to subcontract with whomever it
chooses, and this right of the joint venture and Lehman
Meade would be impermissibly limited by the application
of the union contract to the joint venture This right to
contract and subcontract argument misses the point All
that is before me is whether Respondent unlawfully re
pudiated its agreement with the Union Whether the
Union s grievance has merit or whether others can freely
contract are not before me It was clearly the filing of
the grievance that prompted Respondents letter of repu
diation, but whether it is properly filed or meritorious is
not what I am called on to decide Those issues are mat
1135
ters to be resolved through the contractual grievances
procedure The fact that I may find, as I do, that the
contract is applicable to Respondents operations under
the joint venture arrangement will not answer the ques
tion of the merit of the grievance
The Union has not, as Respondent contends it has
waived any claim that its contract applies when Re
spondent is in the joint venture relationship with
Lehman Meade It is well settled that a waiver of a stat
utory right will not be lightly inferred and must be ex
pressed in clear and unmistakable language 3 Moreover,
the record shows the Union did not become aware Re
spondent was repudiating its contract until after it pre
sented its grievance to the job superintendent The Union
filed a timely charge when it learned of that repudiation
The burden of proving waiver is on Respondent,' and
Respondent has not met that burden
The contract at issue is an 8(f) agreement,5 is enforces
ble and Respondent may not lawfully repudiate it during
its term except as a consequence of the results of a
Board representation election 6 Respondents letter to
Highway Contractors, Inc on May 12, 1988, is a clear
repudiation of the collective bargaining agreement which
I find applicable to its employees at all times it has been
engaged in the joint venture with Lehman Meade, and
Respondents position stated before me makes it clear
Respondent has not considered itself bound by that
agreement at any time during its involvement in the joint
venture Respondents repudiation of the agreement vio
lates Section 8(a)(5) and (1) of the Act
CONCLUSIONS OF LAW
1 East Kentucky Paving Corporation (Respondent) is,
and has been at all times material to this proceeding, an
employer engaged in commerce within the meaning of
Section 2(2) (6) and (7) of the Act
2 United Steelworkers of America , AFL-CIO-CLC
(Union) is a labor organization within the meaning of
Section 2(5) of the Act
3 Respondent 's paving employees as described in the
current collective bargaining agreement between the
Union and Highway Contractors , Inc (the Association)
to which Respondent is a party constitute a unit appro
priate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act
4 At all times since July 1 1986, the Union has been
and is now the exclusive representative of all employees
in the above described unit for purposes of collective
bargaining
5 By failing to abide by the terms of the collective
bargaining agreement effective July 1, 1986 , and by repu
diating that collective bargaining agreement , Respondent
has violated Section 8(a)(5) and (1) of the Act
a Armco Inc 279 NLRB 1184 1220 (1986)
4 Litton Systems 283 NLRB 973 fn 6 (1987)
5 Sec 8(f) of the Act permits collective bargaining agreements in the
construction industry to require union membership after 7 days of em
ployment rather than the 30-day requirement set forth in Sec 8(a)(3) of
the Act for other employing industries The contract before me requires
membership after 11 days
6 Viola Industries 286 NLRB 306 (1987)
1136 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
THE REMEDY
In addition to the usual cease and desist notice posting
requirements I shall recommend certain affirmative
action by Respondent be required Although the parties
agreed at trial and in posttrial briefs that Respondent has
continued to submit union dues and fringe benefit pay
ments to the Union pays the contractually required
wage rates and requires new employees to join the
Union I believe it appropriate to assure that all such
payments continue to be made in accord with contrac
tual requirements Accordingly, I shall recommend Re
spondent be ordered in the event it has discontinued
such payments or altered employee wage rates, to make
whole, in the manner prescribed in Ogle Protection Serv
ices, 183 NLRB 682, 683 (1970), any of its bargaining
unit employees who suffered loss of wages as a result of
such conduct by giving retroactive effect to the terms
and conditions of the collective bargaining agreement of
fective July 1, 1986 with interest on any amounts due
paid in the manner prescribed in New Horizons for the
Retarded 7 In accordance with John Deklewa & Sons, 282
NLRB 1375 (1987), this make whole remedy does not
extend beyond the expiration date of the 1986-1989 con
tract The question of whether interest must be paid on
the trust fund contributions shall be left to the compli
ance stage of this proceeding Merryweather Optical Co,
240 NLRB 1213 (1979)
On these findings of fact and conclusions of law and
on the entire record I issue the following recommend
ed8
ORDER
The Respondent East Kentucky Paving Corporation
Grayson Kentucky, its officers, agents successors, and
assigns shall
1 Cease and desist from
(a) Repudiating collective bargaining agreements when
there is no legal justification for so doing
(b) Failing to honor and apply the collective bargain
ing agreement between Respondent and the Union effec
tive on its terms from July 1, 1986 to June 30 1989 cov
ering a unit of Respondents employees described in that
agreement including its paving employees
(c) In any like or related manner interfering with re
straining or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Honor and apply all the terms and conditions of
the collective bargaining agreement between Respondent
and the Union, effective on its terms from July 1 1986
to June 30 1989, and covering a unit of Respondent s
7 In accordance with the decision in New Horizons for the Retarded 283
NLRB 1173 ( 1987) interest on and after 1 January 1987 shall be comput
ed at the short term Federal rate for the underpayment of taxes as set
out in the 1986 amendment to 26 U S C § 6621
a 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 put
poses
employees described in that agreement including its
paving employees
(b) Make whole with interest the employees in the
above described bargaining unit for any loss of wages of
benefits they may have suffered because of Respondent s
failure to honor and apply the terms and conditions of
the collective bargaining agreement effective on its terms
from July 1986 to June 30, 1989, including appropriate
contributions to employee benefit trust funds, in accord
ance with the remedy section of this decision
(c) Preserve and on request, make available to the
Board or its agents for examination and copying all pay
roll records social security payment records, timecards
personnel records and reports, and all other records nec
essary to analyze the amount of backpay due under the
terms of this Order
(d) Post at its offices in Grayson, Kentucky copies of
the attached notice marked `Appendix 'e Copies of the
notice, on forms provided by the Regional Director for
Region 9, after being signed by the Respondents author
ized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecu
tive days in conspicuous places including all places
where notices to employees are customarily posted Rea
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re
spondent has taken to comply
9 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
at 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 or
dered us to post and abide by this notice
Section 7 of the Act gives employees these rights
To organize
To form join or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec
tion
To choose not to engage in any of these protect
ed concerted activities
WE WILL NOT repudiate collective bargaining agree
ments when there is no legal justifiction for doing so
WE WILL NOT fail to honor and apply the collective
bargaining agreement between us and United Steelwork
EAST KENTUCKY PAVING CORP 1137
ers Union of America, AFL-CIO-CLC, effective July 1,
1986, to June 30, 1989 , and covering our employees de
scribed in that agreement including our paving employ
ees
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act
WE WILL honor and apply the terms of the collective
bargaining agreement described above
WE WILL make whole, with interest, the employees in
the bargaining unit for any loss of wages or benefits they
may have suffered as a result of our failure to honor and
apply the terms of the above described collective bar
gaining agreement , including any appropriate contribu
tions we failed to make to employee benefit trust funds,
in accordance with the Order of the Board
EAST KENTUCKY PAVING CORPORATION