E.E.C., Inc.

National Labor Relations Board - Board Decisions

Mar 20, 1990

297 N.L.R.B. 943 (N.L.R.B. 1990)

EEC, INC 943
Expert Environmental Control, Inc. d/b/a/ E.E.C.,
Inc. and Colorado Laborers' District Council
and Affiliated Local Union No. 578. Case 27-
CA-10354
March 20, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On September 29, 1989, Administrative Law
Judge William L Schmidt issued the attached deci-
sion The Respondent filed exceptions with sup-
porting argument 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 bnef and has
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the recommended Order
as modified 1
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Expert Environmental Control, Inc
d/b/a E E C, Inc , Colorado Springs, Colorado,
and Mission, Kansas, its officers, agents, successors,
and assigns, shall take the action set forth in the
Order as modified
1 Substitute the following for paragraphs 1(c)
and (d)
"(c) Constructively discharging and threatening
to discharge its employees by insisting that they
resign membership in a labor organization as a con-
dition of employment
"(d) Reclassifying and threatening to reclassify
employees to avoid dealing with the employees'
collective-bargaining representative"
' The judge failed to Include in his recommended Order and notice
complete provisions relating to the 8(a)(1) threats found and a complete
statement of the reinstatement rights of 8(a)(3) chscnmmatees Michael
Johnson and Frank Reynolds We shall modify the recommended Order
and substitute a new notice including the appropriate remedial language
The Respondent excepts to the judge s recommended remedy requiring
It to make whole Johnson and Reynolds from the date of their construc-
tive discharges on January 9, 1988, until the date of valid offers of rein-
statement The Respondent claims that remedial relief should terminate
with the April 1988 cessation of the Fort Carson construction project
from which the discnminatees were constructively discharged In accord-
ance with Dean General Contractors, 285 NLRB 573 (1987), we will
permit the Respondent to litigate this remedial Issue during the compli-
ance process In doing so, however, we note the absence of exception to
the judge's findings that Reynolds was a core employee at the time of his
discharge and that Johnson would have been considered for future em-
ployment as a core employee
2 Substitute the following for paragraphs 2(b)
and (c), and reletter the subsequent paragraphs
"(b) Offer Michael Johnson and Frank Reynolds
immediate and full reinstatement to their former
jobs or, if those jobs no longer exist, to substantial-
ly equivalent positions, without prejudice to their
seniority or any other rights or privileges previous-
ly enjoyed, and make them whole for any loss of
earnings and pther benefits suffered as a result of
the discrimination against them, in the manner set
forth in the remedy section of the judge's deci-
sion"
3 Substitute the attached notice for that of the
administrative law judge
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 mail 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 representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities
WE WILL NOT repudiate or refuse to abide by
any collective-bargaining agreement with Colorodo
Laborers' District Council and affiliated Local
Union No 578 during the term of the agreement
WE WILL NOT constructively discharge or thea-
ten to discharge employees by conditioning their
continued employment upon resigning their mem-
bership in a union
WE WILL NOT reclassify or threaten to reclassify
employees to avoid dealing with their collective-
bargaining representative
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 employees, trust funds estab-
lished for their benefit, and Colorado Laborers'
District Council and affiliated Local Union No 578
whole for all losses incurred, together with interest
as provided by law, because we did not adhere to
297 NLRB No 168
944 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the project agreement in effect at our Fort Carson
job in 1987 and 1988
WE WILL offer Frank Reynolds and Michael
Johnson immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to
their seniority or any other rights or pnvileges pre-
viously enjoyed and WE WILL make them whole
for any loss of earnings and other benefits resulting
from their discharge, less any net interim earnings,
plus interest
WE WILL notify them that we have removed
from our files any reference to their discharge and
that the discharge will not be used against them in
any way
EXPERT ENVIRONMENTAL CONTROL, INC
Gene Chavez Esq , for the General Counsel
Barry A Seldin, Esq , of Englewood, Colorado, for the
Respondent
Gilbert Ortiz, Business Manager, Laborers' Local 578,
Colorado Springs, Colorado, for the Charging Party
DECISION
STATEMENT OF THE CASE
WILLIAM L SCHMIDT, Administrative Law Judge
Colorado Laborers' District Council and affiliated Local
Union No 578 (Charging Party or Union) filed a charge
against Expert Environmental Control, Inc d/b/a
E E C, Inc (Respondent or Company) on January 19,
1988 The charge alleges that the Company engaged in
unfair labor practices within the meaning of Section
8(a)(1), (3), and (5) of the National Labor Relations Act
(NLRA or Act)
Based on that charge, the Regional Director for
Region 27 of the National Labor Relations Board
(NLRB or Board) issued a complaint and notice of hear-
ing before an administrative law judge alleging that the
Respondent had threatened employees and constructive-
ly discharged two employees to discourage employee
union activity, and had unlawfully refused to bargain
with the Union as the representative of its employees
Respondent filed a timely answer to the complaint de-
nying that it had engaged in the unfair labor practices al-
leged Respondent's answer further alleges facts in the
nature of affirmative defenses explained more fully
below
I heard this matter on February 28 and March 1, 1989,
at Colorado Springs, Colorado Having carefully re-
viewed the record, considered the credibility of the wit-
nesses who appeared before me and studied the posthear-
ing briefs filed on behalf of the General Counsel and the
Respondent, I conclude that Respondent engaged in cer-
tain unfair labor practices based on the following
FINDINGS OF FACT
I THE ALLEGED UNFAIR LABOR PRACTICES
A The Pleadings
The complaint alleges that on or about January 9,
1988, Respondent's president, David Metzler, told em-
ployees (1) that they would have to quit the Union or be
fired from Respondent's employ, and (2) if they would
drop out of the Union, Respondent would "hide" them
from the Union and thereby remove them from coverage
of the existing collective-bargaining agreement General
Counsel alleges this conduct independently violated Sec-
tion 8(a)(1) of the Act
The complaint also alleges that Respondent violated
Section 8(a)(3) of the Act by constructively discharging
Mike Johnson and Frank Reynolds on or about January
9, 1988, in order to discourage union activities
The complaint further alleges that on or about No-
vember 20, 1987, Respondent executed a collective-bar-
gaining agreement with the Union as the exclusive repre-
sentative of an appropriate unit of its employees under
Section 9(a) of the Act That unit, it is alleged, included
all of Respondent's employees employed at a Fort
Carson, Colorado jobsite excluding office clerical em-
ployees, guards, professional employees and supervisors
as defined in the Act
Since November 20, 1987, the complaint alleges, Re-
spondent violated Section 8(a)(5) of the Act by (1) fail-
ing and refusing to meet and bargain with the Union
concerning mandatory subjects of bargaining, (2) with-
drawing recognition of the Union as the exclusive em-
ployee representative, (3) refusing payments on behalf of
employees to fringe benefit funds as provided in the col-
lective-bargaining agreement with the Union, (4) unilat-
erally changing wage rates and employment conditions
of unit employees, and (5) reclassifying employees to
wrongfully exclude them from the unit
Respondent's answer admits that it has refused to rec-
ognize the Union as the exclusive representative of its
employees since November 20, 1987, but denies all of the
other conduct alleged to be unlawful in the complaint
Affirmatively, the answer alleges that Respondent (1)
at no time recognized the Union as the employee bar-
gaining representative, (2) was entitled to repudiate any
prehire agreement allegedly executed as well as any rec-
ognition of the Union as the employee representative, (3)
may not be required by the Board to give effect to any
"members only" agreement executed with the Union,
and (4) did not perform any work at Fort Carson which
was within the Union's jurisdiction
Finally, at the hearing Respondent was permitted to
adduce evidence in support of its claim that Frank Reyn-
olds would have been discharged for cause shortly after
his employment separation based on information Re-
spondent acquired that he attempted to sell marijuana to
other employees at the jobsite involved
EEC, INC " 945
B Background
1 The Respondent
Respondent, a corporation with headquarters in the
Kansas City suburb of Mission, Kansas, is a subcontrac-
tor in the building and construction industry specializing
in asbestos abatement work ' The range of services Re-
spondent performs includes asbestos removal or encapsu-
lation, the installation of asbestos-free insulation, and ac-
tivities incidental to such work
According to David Metzler, Respondent's president
and owner, the bulk of Respondent's projects have been
located in Missouri, Iowa, Kansas, Nebraska, and Colo-
rado but it has had occasional contracts in California and
Washington, D C The only project involved in this dis-
pute was located at Fort Carson, a U S Army installa-
tion located near Colorado Springs, Colorado, where Re-
spondent was awarded a subcontract to remove asbestos
insulation and to remsulate within a building complex
formerly utilized as the post hospital Respondent's Fort
Carson project lasted from mid-November 1987 to mid-
April 1988
In the spring of 1987, Respondent performed similar
work at a water treatment facility in the Colorado
Springs area At this time, Respondent executed a collec-
tive-bargaining agreement with the Union and hired
some members of Local 578 for that project
Respondent maintains a relatively permanent crew of
supervisory and nonsupervisory employees trained in as-
bestos removal and handling who are transferred from
jobsite to jobsite Typically, the Company's core crew is
supplemented with temporary workers hired from the
local labor pool where its projects are located Follow-
ing the completion of the water treatment project, a few
of the employees hired locally in Colorado Springs were
added to the core crew and transferred to projects out-
side Colorado
At the time of this dispute, Respondent's nonsuperviso-
ry core crew consisted of approximately 40 employees
Some were transferred to the Fort Carson job when that
work commenced in November 1987 Thereafter, addi-
tional core employees were assigned to the Fort Carson
job
2 The labor organizations2
The Colorado Laborers' District Council (District
Council) is an intermediate organization serving its affili-
ated local unions Among other duties, its representatives
negotiate standard agreements with employer groups in
the State of Colorado
One of the standard agreements negotiated by the Dis-
trict Council is known as the Statewide Laborers' Inde-
pendent Contractors Building Agreement (Statewide
Agreement) By its terms, this agreement applies to work
and employees on "all industrial, institutional, and corn-
' Respondent admitted that at the times material here its direct inflow
in Colorado exceeded $50,000 Accordingly, I find Respondent meets the
Board s nonretall standard for exercising jurisdiction and that It would ef-
fectuate the purposes of the Act for the Board to Intervene in this labor
dispute
2 The parties stipulated that the Union is a labor organization within
the meaning of Sec 2(5) of the Act
mercial construction work performed in the State of Col-
orado" The current Statewide Agreement is effective
for a term from May 1, 1987, through April 30, 1990
Respondent executed a predecessor Statewide Agree-
ment in the spring of 1987, presumably for work at the
water treatment plant
Although the Statewide Agreement provides that the
Union is to be the exclusive employee representative of
employees covered thereunder, key employees of signa-
tory out-of-state contractors who might otherwise be
represented under the terms of the Statewide Agreement
are frequently excluded from coverage
Among other provisions, the current Statewide Agree-
ment also includes a union-security clause requiring em-
ployees to become members of the affiliated local union
having jurisdiction "within 8 days" of their employment,
a union operated nondiscriminatory hinng hall requiring
signatory employers to "give the Union first opportunity
to furnish all classes of employment that are provid-
ed for [in the Statewide Agreement]", and a dues-check-
off provision requiring signatory employers to deduct
and remit "administrative dues" set at 22 cents per hour
in the Statewide Agreement
Laborers' Local 578 (Local 578) is an affiliate of the
District Council which represents employees in a vanety
of industries in the Colorado Springs area To become a
full member of this local union, individuals (at least those
employed in the building and construction industry) must
pay a $320 initiation fee and monthly dues of $16 The
hourly based "administrative dues" provided for in the
Statewide Agreement are over and above the monthly
dues
Local 587 operates a hiring hall from its Colorado
Springs headquarters A significant number of registrants
on the Union's out-of-work lists have previous experi-
ence on asbestos abatement projects and possess certifi-
cates reflecting that they have undergone the requisite
physical examinations required in order to be employed
on such projects Moreover, Local 587 refers registrants
on its out-of-work lists for participation in a union spon-
sored "asbestos awareness" seminar where they receive
instruction in the proper handling of asbestos materials
C The Dispute Chronology
1 Negotiation and execution of an agreement
In October 1987, Gilbert Ortiz, business manager for
Local 578, telephoned Metzler to inquire if the Company
would be willing to sign an agreement with the Union
for the Company's project at Fort Carson Metzler said
that he would and agreed to meet with the Union when
he came to Colorado Springs
On November 18, 1987, Ortiz and Local 578 Business
Representative Nick Evans met with Metzler for over an
hour at his motel room in Colorado Springs to discuss an
agreement for the Fort Carson job
It is not disputed that the Metzler and the union repre-
sentatives came to an agreement that day and that the
agreement was for the duration of the Fort Carson
project only The dispute concerns the scope of the
agreement
946 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Metzler asserts that he negotiated a "members only"
agreement with the Local 578 representatives on No-
vember 18 He claims the negotiated agreement provides
that if union members were hired, they would be paid a
certain wage rate plus an hourly contribution for the
Union's health and welfare fund as well as an hourly
contribution for union dues In addition, Metzler claims
that the Company's core employees were excluded en-
tirely from the agreement with Local 578
Metzler explained that as a result of his understanding
the Company, through the payroll period ending January
12, 1988, had three different pay rates Those employees
classed as asbestos workers—most of whom appear to be
core employees—were paid $13 26 per hour or above
All remaining employees were classed as laborers How-
ever, those laborers who were in some manner identified
to the Company's payroll office as being union members
were paid at the rate of $10 per hour The remaining la-
borers were paid $9 69 per hour This was done, Metzler
explained, to compensate for the added expenses union
laborers incurred as a result of their membership
Union witnesses Ortiz and Evans on the other hand
claim that Metzler was provided with copies of the
Union's then current standard agreement during their
November 18 meeting Both are in agreement that
Metzler objected to executing the agreement without
three modifications They claim that Metzler wanted (1)
only a project agreement, (2) to exempt nine core em-
ployees then on the project from any requirement that
they pay the Union's initiation fee, and 3) that special
wage and contribution rates apply to this particular job 3
There is no dispute about the fact that the union repre-
sentatives agreed to prepare a document reflecting the
accord reached on November 18 and deliver it to
Metzler's motel for his review and execution
The task of delivering the contract documents to
Metzler's motel fell to Evans He claims to have deliv-
ered copies of a single page document on the Union's let-
terhead, copies of the Statewide Agreement and copies
of some fringe benefit trust forms including fringe benefit
bond documents required under the Statewide Agree-
ment Evans explained what he wanted Metzler to sign
Metzler told Evans that if everything appeared in order
after review by his attorney, he would sign the docu-
ments and leave them at the motel desk
On November 20, Evans returned to Metzler's motel
and was given a packet by the desk clerk containing a
copy of the letterhead document and a copy of the State-
wide Agreement Evans did not check at that time to see
if the returned copy of the Statewide Agreement bore
Metzler's signature
However, both Ortiz and Evans claim to have seen a
copy of a Statewide Agreement executed by Metzler ap-
parently while the documents related to the project were
being processed through the Local 578 office to the Dis-
trict Council office later in November Metzler strongly
denied that he ever saw, signed, or intended to be bound
by, any terms in the Statewide Agreement
3 Ortiz claimed the special wage rates were Intended only as a floor,
the Company, Ortiz asserted, was free to pay whatever It wanted above
that wage rate
The General Counsel introduced three exhibits which,
he claims, reflect the agreement concluded by these par-
ties The first is the letterhead document (G C Exh 17)
containing the genuine signatures of both Ortiz and
Metzler It provides in haec verba as follows
PROJECT AGREEMENT AMENDMENT
TO THE MAY 1, 1987 TO APRIL 30, 1990
STATEWIDE LABORERS' INDEPENDENT
CONTRACTORS BUILDING AGREEMENT
This is a one time project agreement to DACA-
45-87-C-0213 for the removal of asbestos at Ft
Carson, located in Colo Spgs, Colo This agreement
shall be adhered to except that the following condi-
tions shall apply
1 Hourly wage $8 54 with overtime after 40
hours
2 Health and Welfare $1 24 per hour
3 Service Dues $0 22 per hour
4 Education and Training $000
5 Vacation $000
6 Pension $000
7 Employees of the employer from Kansas shall
be excluded
This project agreement shall expire at the end of
the job
/s/Gilbert Ortiz /s/David Metzler
Gilbert Ortiz David Metzler
Business Manager E E C Inc
Date 11-20-87 Date 11/20/87
The second (G C Exh 19) is a xerographic copy of
the employer signature page of the current Statewide
Agreement containing a signature which Metzler admits
is genuine 4 This document also contains a marginal
insert referring again to the project agreement number
and the fact that the agreement is to expire at the end of
the project
The third (G C Exh 22) is a complete copy of the
Statewide Agreement beanng what purports to be
Metzler's signature on behalf of the Company and
Evan's signature on behalf of the Union Metzler denies
that his purported signature on this document is genuine
and even Evans conceded that it did not appear to be the
same as shown on the other two agreement exhibits
Shortly after the events above, Metzler left Colorado
Springs to tend business elsewhere He did not return
until after Chnstmas In his absence, Willard King and,
subsequently, Newton Crabb (job superintendents for the
Company) were in charge of the project
2 Local 578 policing of the agreement
Metzler acknowledges that the Company never called
the Union to seek any employees It was also stipulated
' However, Metzler claims he has no recollection of having executed
the document He asserts that the first time he saw the document was
when It was shown to him by a field examiner from the General Coun-
sel's office during the investigation of the charge in this case
EEC, INC

947
that the Company never remitted any funds to the
Union's health and welfare benefit trust fund Likewise,
even though dues were withheld for certain employees,
those amounts were never remitted to the Union
In December 1987 Evans and Local 578 Representa-
tive Gilbert Lucero visited the Fort Carson project
Evans said that on his first visit only a few employees
were present and little was going on He inquired of
King concerning the Company's plans to call the Union
for men King reported that there were startup difficul-
ties but he anticipated hiring more employees soon
Having received no requests to dispatch men by later
that month, Evans returned to the jobsite and noticed
several new employees on the job Evans spoke with Job
Superintendent Crabb about the situation and claims that
Crabb, who did not testify in this proceeding, said he 'did
not care if the men were Union or nonunion, the Compa-
ny just wanted to get the job done Evans says that he
reminded Crabb that the Company had an agreement
with the Union which required it to call the Union for
employees
Later that same month, Lucero asked King for a list of
employees on the job King told Lucero to appoint a job
steward and the Company would provide it to that indi-
vidual who in turn could relay it to the Union
Michael Johnson, an out-of-work union member hifed
at the Fort Carson project outside the hiring hall dis-
patch procedures, 5 was appointed job steward He says
he was told in a meeting with King, Evans, and Lucero
to have employees who had previously been hired "sign
a referral to join the union" Johnson said that he con-
fronted Crabb one day about not hinng employees
though the hiring hall Crabb told Johnson that he hired
from a stack of applications he had from "a lot of starv-
ing people"
Frank Reynolds, a company core employee, claims
that when he reported to the Fort Carson project in De-
cember, 6 Crabb told him that he would have to clear
with the Union before he could put him to work Reyn-
olds immediately went to the union hall where he made
a down payment on the initiation fee and was provided
with a referral to the job
On January 4, 1988, Ortiz and Lucero visited the job
to learn why the Company was not, aceordmg to Ortiz,
"calling our people from the union hall" Crabb claimed
that no one told him of such a requirement Ortiz told
Crabb that he "would have to send all the people down
to the union hall to pay initiation fees and sign the union
paperwork" Crabb told Ortiz that he did not have any
problem with that but he had all the employees they
needed on the job at that time Ortiz told Crabb the
Union had no problem as long as "they go in and join
the union"
5 Johnson, a union member for the past 6 years, worked for the Com-
pany in the spring at the water treatment project and went to Kansas
City to continue his employment However, he only worked 1 day in
Kansas City and then returned to the Colorado Springs area He did not
work again for the Company until hired at Fort Carson (according to
payroll records) on December 16
5 In fact, the payroll records reflect that Reynolds first commenced
working at Fort Carson on November 18
Metzler claims that following their visit he discovered
union forms on Crabb's desk seeking the discharge of
certain employees, including Frank Reynolds 7 Later,
Metzler asked Crabb what the forms were about Crabb
explained that one of the union representatives left them
and he discussed the matter with the employees who in
turn joined the Union Metzler told Crabb that was ridic-
ulous because the Company did not have any agreement
requiring anyone to join the Union
3 The dispute erupts
Lucero said that three "local laborers" hired by the
Company came to the union hall as a result of the Janu-
ary 4 job visit Through these employees Lucero learned
of "two or three more" who had not cleared the union
hall Lucero returned to the jobsite on January 5 to
search for these individuals During this visit, Lucero en-
countered Metzler who told him that he was harassing
the employees and that "he didn't have nothing to do
with us" Metzler ordered Lucero off the jobsite Lucero
left promptly without an argument
Metzler explained that Lucero came to the jobsite and
gave him another form requesting that an employee be
discharged He told Lucero that the system was not
going to work that way and to have Ortiz telephone
him
Metzler and Ortiz spoke by telephone at least once or
twice on January 5 Ortiz said that Metzler accused him
of harassing the employees Ortiz asserted to Metzler
that he was only on the job to speak with Crabb about
sending employees to the union hall to join and that
Crabb agreed to do so Metzler, according to Ortiz: then
rejoined with "I'm the boss I'm the total dictator on
[the] job, and I'm not going to have none of that" Both
Ortiz and Metzler agree that a heated exchange fol-
lowed Later, however, Metzler agreed to meet with
Ortiz and District Council Representative Ted Doxtater
on January 7 at a local restaurant to discuss their dispute
The parties were unable to compose their differences
at the January 7 meeting On the contrary, their relation-
ship completely broke down In Metzler's words, he said
"good-bye" to the Union Metzler charged that the
union agents demanded that he fire all the people work-
ing for him and hire those provided by the Union which
he refused to do Instead, Metzler told the union agents
that after the current pay period, he would no longer
employ laborers because he intended to put them all to
work as asbestos workers
According to Doxtater, Metzler stated, in effect, that
there was no union at the jobsite and that he would get
rid of employees Metzler made it clear to Doxtater that
the Company did not intend to comply with the State-
wide Agreement and the "amendment" it executed on
November 20, 1987
Ortiz claims that Metzler stated that he would fire all
of the laborers, make 'them all insulators and, thereafter,
not have anything to do with the Union
7 If these forms exist, their whereabouts is unknown No such requests
were Introduced at this hearing
0-
948

DECISIONS .OF THE NATIONAL LABOR RELATIONS BOARD
On January 9 Metzler announced to employees assem-
bled to receive their pay that "we were no longer going
to be party to any agreements with the union," or "we
weren't going to be union anymore "8 Metzler also told
the employees that he would no longer withhold union
dues and that everyone would be promoted to the asbes-
tos worker classification with the increase in pay
Respondent's payroll records reflect that following the
payroll period ending January 12, 1988, no employee
except the jobsite secretary was classified as a laborer
Rather, all employees were classified as asbestos work-
ers In addition, all workers so classified were paid
$13 26 per hour or above, the hourly rate paid to em-
ployees classed as asbestos workers through January 12
Until January 12, employees classed as laborers were
paid $9 69 or $10 per hour
The parties stipulated that Respondent never remitted
to the Union any fringe benefit contributions on behalf of
any employee at the Fort Carson project Likewise, the
Company never remitted any dues on behalf of any Fort
Carson employee but Metzler asserted that amounts
withheld for dues were returned to those employees who
requested it Brett Dick, a Fort Carson employee, con-
firmed that his dues moneys were returned upon his re-
quest
4 The constructive discharge claims
Among those present to collect pay on January 9 was
Michael Johnson, the union steward, Frank Reynolds
and Brett Dick Under established procedure, employees
lined up in the hallway outside the jobsite office and en-
tered one at a time to collect their pay If an employee
wanted to cash the check immediately, Metzler had cash
on hand for that purpose However, according to
Metzler, he always called upon foreman James Philyaw
whose office was across the hall to witness the check
cashing in order to avoid disputes later over the counting
of a proper amount of cash Hence, Metzler said that
Philyaw was in and out of the office that day
Reynolds, Johnson, and Dick claim that they were at
the head of the pay line in that order on that date Reyn-
olds claims that when he entered the office only the sec-
retary was present in addition to Metzler and himself
When Metzler handed over Reynolds' check, Reynolds
protested immediately when he noticed his pay rate had
been reduced from $13 26 to $10 Metzler told Reynolds
that happened because he joined the Union Reynolds
blamed Crabb for that which Crabb—who by then was
also in the office—denied Metzler sided with Reynolds
and promised an added payment to make up the differ-
ence 9 Metzler then told Reynolds that the project was
"going nonunion" and if he did not want to drop out of
the Union, he did not have a job Metzler, Reynolds said,
promised to "hide [him] as an Insulator" from the Union
Reynolds responded with expletives and walked out
8 Both quotations are from Metzler's testimony at different times in the
hearing
9 Metzler agreed that he had an exchange with Reynolds over the re-
duced pay and that he explained the shortage occurred as a result of a
notice to the payroll employees that Reynolds had joined the Union The
payroll records confirm a supplementary payment to Reynolds the fol-
lowing pay period
Johnson entered the office next He claims that
Metzler asked if he was the union steward and he replied
that he was Metzler then told Johnson that the Compa-
ny was no longer going to have anything to do with the
Union and that he would have to quit the Union or be
terminated Metzler also told Johnson that he would
make him an insulator to "hide" him from the Union
From this, Johnson assumed that he was fired if he con-
tinued with the Union
Both Johnson and Dick corroborate the essence of the
statements Reynblds claims that Metzler made to him on
this occasion Dick further corroborates the essence of
the statements Johnson claims that Metzler made to him
shortly thereafter
Metzler denied that he gave Reynolds and Johnson an
ultimatum to drop their union membership or be fired
On the contrary, Metzler asserted that neither Reynolds
nor Johnson came to work after January 9 but they were
not discharged However, for reasons discussed more
fully below, Metzler claimed that had Reynolds returned
to work, he would have been discharged the following
week
James Philyaw, at the time a foreman on the Compa-
ny's Fort Carson project, said that he was in the office
with Metzler on January 9 when Reynolds and Johnson
came in for their pay Although Philyaw recalled that
Reynolds mentioned something about being "shorted a
couple of hours," he denied that Metzler said anything to
anyone to the effect that "they had to quit or join any-
thing or be fired"
On January 11, Reynolds and Johnson went to the
Local 578 offices where they reported what had oc-
curred the previous Saturday While there, they signed a
notarized statement reciting the qua-the-Union-or-be-
fired ultimatum Later, they either visited or telephoned
several regulatory agencies concerning the Company's
alleged failure to comply with various laws and regula-
tions concerning the handling and disposition of asbestos
materials As a consequence of their reports, work at the
jobsite was interrupted for an extended period of time
Reynolds telephoned Metzler at the jobsite on January
13 to inquire about the additional pay that he was due
He claims that Metzler told him on this occasion to stay
off the job because of the anger of other crew members
over the suspension of work On January 15 Reynolds
and Johnson went to the job for their pay It is unclear if
they spoke with Metzler on this occasion However,
Metzler said that the general contractor insisted that
their automobile sticker permitting them to enter the
military post be physically removed from their automo-
bile before they received their final pay
5 The affirmative defense concerning Reynolds
Metzler asserted that among the matters reported to
authorities by Reynolds was that there was widespread
drug abuse on the job When this report reached John
Bowman, the general contractor, Metzler was asked
pointedly to explain what was going on and he promised
Bowman that he would find out
According to Metzler, he began making inquiries
among employees about drugs on the job and several
EEC, INC 949
employees came forward accusing Reynolds of selling
marijuana on the jobsite
In October 1988, Respondent purportedly requested
several employees to sign 'statements concerning their
personal knowledge about Reynolds' alleged attempts to
sell marijuana at the Fort Carson job Respondent at-
tempted to introduce these statements in evidence
through Metzler to prove the truth of the matters assert-
ed in the employee statements They were rejected as
hearsay
One employee, Randy Robin, was called by Respond-
ent in support of this contention Robin asserted that on
one occasion at the Fort Carson job while he was work-
ing with Reynolds in a tunnel, Reynolds offered to sell
him some marijuana Thereafter, Respondent reoffered
Robin's October 1988 written statement and it was re-
ceived In that statement, Robin recites simply that on
several occasions Reynolds offered to sell him marijuana
at Fort Carson
Reynolds denies that he used or attempted to sell mari-
juana or other narcotics while working on the Fort
Carson job
D Further Findings and Conclusions
1 The 8(a)(5) allegations
I am satisfied that Respondent bound itself to amended
terms of the Statewide Agreement merely through the
execution of the project agreement amendment (G C
Exh 17) To hold otherwise on the basis of the testimo-
ny and the argument made in this case would vary the
plain meaning of the project agreement In reaching the
conclusion that Respondent was bound to the Statewide
Agreement as amended by the project agreement, I do
not rely in any fashion on the document (G C Exh 22)
containing signatures of questionable genuineness
The title of General Counsel Exhibit 17 states as clear-
ly as possible that the document is an amendment to the
Statewide Agreement Moreover, the second sentence in
the body of the project agreement amendment providing
that "This agreement shall be adhered to except that the
following conditions shall apply" makes no sense what-
soever if the amendment is construed as a fully self-con-
tained agreement without reference to the Statewide
Agreement specifically described in the title as the agree-
ment being amended
I find the contrary claims of Metzler and the union
witnesses concerning the scope of the agreement to lack
credibility I am satisfied that their views are a conse-
quence of their dispute and not their failure to come to a
meeting of minds as Respondent argues The circum-
stances here show adequate reason for both the Respond-
ent and the Union to alter their view about the bargain
struck, reduced to writing and executed on November 20
to accommodate their self-interest
The project agreement here is a classic prehire agree-
ment permitted under Section 8(f) of the Act 10 Al-
I ° In view of this conclusion, I find the appropriate unit here to be all
laborers employed by the Company on its Fort Carson job, excluding the
Company's permanent employees transferred to Fort Carson from other
locations, clerical and professional employees, guards, and supervisors as
defined in the Act City Electric Inc, 288 NLRB 443 fn 3 (1988)
though the complaint alleges that the Union was an ex-
clusive representative under Section 9(a) of the Act,
General Counsel made no attempt to prove that status at
the hearing and, like the Respondent, otherwise tried and
argued this case on the theory that, at best, this matter
rises and falls on the validity of doctrines pertaining only
8(f) agreements
Because such agreements are frequently entered into
by parties who have no prior relationship and before sig-
nificant work is undertaken, the ability to foresee contin-
gencies—and provide for them in an agreement—is, to
say the least, constricted Consequently, bargaining for
an 8(f) agreement is usually limited to exceptions the par-
ties are willing to make in local conditions
Here, Metzler claims that the Union quickly agreed on
November 18 to apply terms significantly below those
the Union negotiated with local contractors to its mem-
bers who, on their own, acquired employment at Fort
Carson On the other hand, the Union claims that the
language pertaining to the "Kansas" exclusion applied
only to certain parts of the Statewide Agreement—and
not other parts—for but nine core employees who hap-
pened to be on the job when the agreement was negoti-
ated I find these assertions by both sides are impermissi-
ble attempts to vary the plain terms of their written
agreement Inter-Lakes Engineering Go, 217 NLRB 148
(1975)
The fact that Metzler confirmed his signature on the
signature page of the current Statewide Agreement
(G C Exh 19) but could not explain how or when it got
there lends credence, in my judgment, to the repeated
claims by Ortiz and Evans that Metzler was provided
with copies of the Statewide Agreement on both No-
vember 18 and 19 This conclusion is further buttressed
by Metzler's acknowledgment that he was aware on
those dates of terms the Union wanted I find it highly
improbable that Ortiz and Evans went to their Novem-
ber 18 meeting with Metzler unprepared to present the
Statewide Agreement for signature
On the other hand, I find it equally implausible that
the Union would have prepared the "Kansas" exclusion
language as it appears in the project agreement if only a
few of these employees were to be excluded from only
portions of the Statewide Agreement
In reaching the foregoing conclusions, I have been, to
be sure, further troubled by General Counsel Exhibit 22
I agree with both Metzler and Evans that the signature
thereon purporting to be that of Metzler does not appear
to be genuine Ultimately, however, I have concluded
that the evidence surrounding that document and its in-
troduction into evidence is simply insufficient to find that
a fraud was intended in view of the other documentary
evidence in this case
Nevertheless, I find, contrary to the General Counsel's
contention, that the project agreement amendment plain-
ly excludes all of Respondent's core employees Every-
one agrees that the meaning of the words "Employees
from Kansas" is nothing but a shorthand reference
to the core employees who had previously worked for
Respondent at other locations before being transferred to
the Fort Carson job On the basis of the clear language
950 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
in the project agreement, I reject the contention of the
General Counsel and the Union's witnesses that only cer-
tain of Respondent's core employees were exempt from
the Statewide Agreement for limited purposes
Concluding as I have that the contentions and testimo-
ny of the parties in this case are wholly unreliable for
purposes of understanding the correct interpretation of
their contract, I find the parties here concluded an agree-
ment requiring, in essence, that the Respondent apply the
Statewide Agreement to all local employees hired to sup-
plement its regular employees As Respondent admitted-
ly repudiated the project agreement during its term, I
find Respondent violated Section 8(a)(5) of the Act John
Deklewa & Sons, 282 NLRB 1375 (1987), enfd sub nom
Iron Workers Local 3 v NLRB, 843 F 2d 770 (3d Cir
1988)
Although Metzler did not announce repudiation of the
agreement until January, it is clear that the agreement
was given only minimal application by the Company
from the outset Entirely aside from aspects of the State-
wide Agreement which the Company ignored, its bad
faith toward even the terms appearing on the face of the
project amendment is evident from its failure to remit
union dues and health and welfare contributions
Respondent's legal arguments also require disposition
It argues that Deklewa has never been adopted by the
Court of Appeals for the 10th Circuit where this case
anses and, in fact, is contrary to the Supreme Court's
holding in McNeff v Todd, 461 U S 260 (1983), and New
Mexico District Council v Jordan & Nobles Construction,
802 F 2d 1253 (10th Cir 1986) In both cases, it was held
that an agreement under Section 8(f) is voidable at any
time prior to the acquisition of majority support by the
contracting union However, as both cases predate
Deklewa and apply the pre-Deklewa conversion doctrine,
and as the Board fully addressed the "tension" which ex-
isted between McNeff (and by extension, New Mexico
District Council) and Deklewa in its decision, I view
myself as bound to follow the resolution the Board
reached until the Supreme Court specifically rules on the
holding in Deklewa or some similar case applying the
Board's holding therein 1 i
2 The 8(a)(1) and (3) allegations
Reynolds and Johnson were constructively discharged
within the meaning of Section 8(a)(3) of the Act In
reaching this conclusion I credit the testimony of Reyn-
olds, Johnson, and Dick (notwithstanding their relation-
ship to each other) concerning Metzler's ultimatum to
Reynolds and Johnson in the jobsite office on January 9
The ultimatum to get out of the Union or be fired and
that he would attempt to hide them from the Union
under a different classification is consistent with
Metzler's then concurrent conduct Thus, by his own ad-
mission, Metzler told other employees that same day that
the job thereafter would be nonunion Likewise, Re-
spondent in the remaining payroll penods did reclassify
"However, in Wyoming Laborers v Morgen L Oswood, 850 F 2d 613
fn 14 (10th Or 1988), the Tenth Circuit's attention was drawn to
Deklewa in oral argument Because of the posture of Wyoming Laborers
before the court, It expressed no opinion concerning its view of Deklewa
employees it had previously classified as laborers As re-
flected by its timing and the expense incurred, this con-
duct was obviously done for the purpose of attempting
to remove those -employees from the Union's claim that
the project agreement applied to anyone at Fort Carson
By doing so, Respondent perceived, in my judgment,
that it had accomplished a "non-union" status as Metzler
admittedly announced on January 9
I have reached the foregoing conclusion notwithstand-
ing Philyaw's testimony about the January 9 conversa-
tions he purportedly overheard Philyaw's vagueness was
excessive If, indeed, he could have been standing in one
of the office doorways outside the view of Reynolds,
Johnson, and Dick as Respondent contends in its brief,
his account concerning the issue over the shortage in
Reynold's pay suggests strongly that he was not fully
comprehending what was occurring Although both
Reynolds and Metzler agreed that their discussion at that
time concerned the effect of Reynold's union member-
ship on his pay, Philyaw's assertion that it concerned a
shortage in hours does not inspire confidence that he was
paying attention The only forceful assertion made by
Philyaw, apart from his credentials, was that no ultima-
tum was delivered by Metzler Given the expressed af-
fection he had for his employment with the Company
and its future prospects, I do not rely on Philyaw's ac-
count of the January 9 events
Moreover, there is agreement by everyone except Phi-
lyaw that secretary Dina Garrett was present on January
9 And there is general agreement that Newton Crabb
entered the room dunng Metzler's conversation with
Reynolds No explanation was provided for Respond-
ent's failure to call these witnesses nor did Respondent
claim that it lacked present control resulting from sepa-
rated employment Accordingly, I infer that these critical
witnesses would not support the denials of Metzler and
Philyaw on the ultimatum issue
It is settled that confronting an employee with the
choice between his job and membership in a chosen
union is an unfair labor practice within the meaning of
Section 8(a)(3) This is true regardless of the choice
made by the employee White-Evans Service Co, 285
NLRB 81 (1987) Accordingly, I conclude Respondent
violated Section 8(a)(3) as alleged
I further find that the ultimatum and Metzler's state-
ment to employees concerning their reclassification—
made in the context of repudiating the project agree-
ment—independently violated Section 8(a)(1) of the Act
as the complaint alleges The ultimatum was a direct and
impermissible threat of discharge grounded on the em-
ployees' exercise of a Section 7 right to belong to a
union The reclassification statement was designed to
interfere with employees' Section 7 right to be represent-
ed by a labor organization
3 Respondent's affirmative defense as to Reynolds
The serious charge Respondent leveled against Reyn-
olds is not supported by credible evidence
Robin's testimony and his written statement are con-
tradictory Contrary to his testimony, the written state-
EEC, INC 951
ment asserts that Reynolds made several attempts to sell
marijuana to him at the Fort Carson job
Moreover, Robin's naked claim that Reynold's offer
occurred while the two were working together in a job-
site tunnel seems improbable In rebuttal, General Coun-
sel elicited testimony from Dick concerning the protec-
tive head gear and clothing these asbestos workers are
required to wear and the extreme difficulty they have
communicating with each other 12 It would seem proba-
ble that an individual bent on doing a quick drug deal
would choose more ideal circumstances
And, contrary to Metzler's claim, Robin did not come
forward to volunteer infofmation about Reynolds during
the week of January 11 Rather, Robin claims that
Metzler elicited the information in October 1988, long
after the Fort Carson job was completed
Given the flimsy nature of Respondent's evidence on
such a serious matter, the acknowledged ill will many
employees harbored toward Reynolds, and Reynolds'
emphatic denial that he offered marijuana for sale at Fort
Carson, I find that Respondent has failed to sustain this
affirmative defense with any reliable evidence
E Respondent's Motion to Reopen
Following the close of hearing and before briefs were
due, Respondent filed a motion to reopen the record in
this proceeding for "purposes of allowing the admission
of the Affidavit of Mr Doxtater "
I issued an order granting Respondent leave to include
in its brief an affidavit supporting its motion which ex-
plained the circumstances surrounding its late discovery
of this evidence and the reasons why such evidence
could not have been previously discovered with due dili-
gence General Counsel was granted leave to file argu-
ment opposing or supporting the motion
Respondent's counsel filed an affidavit which explains
in essence that he discovered the Doxtater affidavit
among the documents in a file from another law firm
when it was transmitted to him as successor counsel in a
related action by the Union's trust funds against Re-
spondent for health and welfare contributions The same
law firm previously represented Respondent in this
matter and Respondent's counsel consulted with that
firm about this case when he was likewise substituted as
counsel here
Respondent's counsel further asserted his belief that
the lately discovered affidavit—filed in the pending trust
fund lawsuit before the hearing in this case—"is a power-
ful piece of evidence in favor of Respondent [as It
supports one of the positions put forth by the Re-
spondent regarding the intent of the amendment to the
Statewide Agreement"
Citing a number of Board decisions, General Counsel
opposes the reopening of the record in this instance on
the ground that Respondent has not met the burden re-
quired by the Board for reopening the record
12 According to Dick's analogy, communications between suited-up as-
bestos workers is similar to that between a parent and an Infant It re-
quires that one pay very close attention and be an expenenced Interpreter
of mumbled sounds
Respondent's motion is denied As the above summary
shows, the Doxtater affidavit was in existence at the time
of this hearing and could have been discovered with rea-
sonable diligence Moreover, Respondent has failed to
setforth with any specificity the matters to be adduced if
the record is reopened
Finally, to the extent that Respondent did specify the
nature of the evidence to be adduced, i e, support for
Respondent's position regarding the intent of the amend-
ment to the Statewide Agreement, my conclusions above
make it very unlikely that the decision I have reached
would be altered by added evidence of this nature To
reiterate, the parties' current contentions regarding the
interpretation of the project agreement are so strained in
light of the language used in the document that I have
chosen to disregard their subjective, exaggerated, after-
the-fact claims regarding their intentions Hence, I see no
useful purpose to reopening this record
II THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of the Respondent set forth above, oc-
curring in connection with Respondent's business oper-
ations, have a close, intimate, and substantial relationship
to trade, traffic, and commerce among the several states
and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce
CONCLUSIONS OF LAW
1 Respondent is an employer engaged in commerce
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 By repudiating the terms of the project agreement
executed on November 20, 1987, Respondent engaged in
an unfair labor practice within the meaning of Section
8(a)(5) of the Act
4 By constructively discharging Frank Reynolds and
Michael Johnson, and by reclassifying its laborer em-
ployees in order to avoid dealing with the Union, Re-
spondent engaged in unfair labor practices within the
meaning of Section 8(a)(3) of the Act
5 By threatening to discharge employees if they faded
to discontinue their membership in the Union and by in-
forming employees that it intended to reclassify employ-
ees to avoid dealing with the Union, Respondent en-
gaged in unfair labor practices within the meaning of
Section 8(a)(1) of the Act
6 The unfair labor practices of the Respondent affect
commerce within the meaning of Section 2(6) and (7) of
the Act
REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, the recommended order requires
Respondent to cease and desist therefrom and to take the
following affirmative action designed to effectuate the
policies of the Act
Because the project involved here was finished in
April 1988 and the project agreement by its terms termi-
952 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
nated at that time, I deem affirmative bargaining relief
appropriate only with respect to any future agreement
between the parties However, Respondent will be re-
quired to make whole any employee and any trust fund
for losses suffered as a consequence of Respondent's fail-
ure to adhere to the November 20 project agreement in
the manner specified in Ogle Protection Service, 183
NLRB 682 (1970), and Menyweather Optical Go, 240
NLRB 1213, 1216 fn 7 (1979)
As Respondent frequently selects core employees from
among the local temporary labor and as Johnson had
previously been utilized briefly as a core employee, his
constructive discharge here precluded current consider-
ation for employment at other projects Reynolds, clear-
ly a core employee by the time of his discharge, was
likewise precluded from assignment to other projects
after the completion of the Fort Carson job In these cir-
cumstances, I deem it appropriate that Respondent be re-
quired to offer in writing to reinstate both Reynolds and
Johnson at current projects Respondent will likewise be
required to make whole Reynolds and Johnson for losses
incurred from their constructive discharge on January 9,
1988, until the date of a valid offer of reinstatement is
tendered to them in the manner specified in F W Wool-
worth Go, 90 NLRB 289 (1950)
Interest shall be added to the backpay due any em-
ployee herein as computed under New Horizons for the
Retarded, 283 NLRB 1173 (1987)
Respondent is further required to remit to the Union
all dues and fees it should have deducted and remitted
pursuant to the terms of the November 20, 1987, project
agreement
Respondent must further expunge from any of its
records any reference to the constructive discharge of
Reynolds and Johnson on January 9, 1988, and notify
each in writing that such action has been taken and that
any evidence related thereto will not be considered in
any future personnel action Sterling Sugars, 261 NLRB
472 (1982)
Finally, as the Fort Carson project has been complet-
ed, Respondent will be required to mail the attached
notice to the last known address of all employees em-
ployed at the Fort Carson project to inform employees
of their rights and the outcome of this matter Respond-
ent will be further required to sign and return copies of
the attached notice to the Regional Director for delivery
to the Union at its Colorado Springs hiring hall if so de-
sired
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed13
ORDER
The Respondent, Expert Environmental Control, Inc
d/b/a E E C, me, Colorado Springs, Colorado, its offi-
cers, agents, successors, and assigns, shall
13 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-
poses
1 Cease and desist from
(a) Withdrawing recognition during the term of a col-
lective-bargaining agreement from Colorado Laborers'
District Council and affiliated Local Union No 578
(b) Refusing to adhere to any future collective-bargain-
ing agreement with the Union until the expiration date
thereof
(c) Constructively discharging its employees by insist-
ing that they resign membership in a labor organization
as a condition of employment
(d) Reclassifying employees to avoid dealing with the
employees collective-bargaining representative
(e) 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) Make whole its laborer employees, trust funds es-
tablished for their benefit and the Union for the losses In-
curred by them as a consequence of its failure to adhere
to the terms of the November 20, 1987 project agree-
ment with the Union in the manner specified in the
remedy section of this decision
(b) Offer Immediate and full reinstatement to Michael
Johnson and Frank Reynolds as specified in the remedy
section of this decision
(c) Make Reynolds and Johnson whole for losses in-
curred as a consequence of their January 9, 1988 con-
structive discharge as specified in the remedy section of
this decision
(d) Expunge from its records any reference to the con-
structive discharge of Reynolds and Johnson and notify
them in writing that such action has been taken and that
evidence related thereto will not be used in any future
personnel action involving them
(e) 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 determine the backpay, trust fund reimburse-
ments and dues reimbursements due under the terms of
this Order
(f) Mail signed copies of the notice to employees at-
tached hereto as the "Appendix"" to the last known ad-
dress of all employees it employed at its Fort Carson,
Colorado project
(g) Sign and return to the Regional Director sufficient
copies of the notice for posting by the Union, if willing,
at its Colorado Springs hiring hall
(h) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply
" 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"