Ellis Tacke Co.

National Labor Relations Board - Board Decisions

Jun 7, 1977

229 N.L.R.B. 1296 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ellis Tacke, d/b/a Ellis Tacke Company and Arizona
State Council of Carpenters; Central Arizona
District Council of Carpenters; Southeastern
Arizona District Council of Carpenters; and their
constituent Local Unions: Carpenters Locals Nos.
326, 445, 471, 857, 906, 1061, 1089, 1100, 1153,
1216, 1538, 2096, 2763, and Millwright Locals Nos.
1182 and 1914, all affiliated with United Brother-
hood of Carpenters and Joiners of America. Case
28-CA-3727
June 7, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
On September 14, 1976, Administrative Law Judge
Bernard J. Seff issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
limited exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions 2 of the Administrative Law
Judge except as herein modified.
The General Counsel excepted to the Administra-
tive Law Judge's failure to provide an appropriate
remedy which would require Respondent to honor
all of the terms of the collective-bargaining agree-
ment retroactive to the start of the 10(b) period; to
make backpayments to the respective trust funds
pursuant to the collective-bargaining agreement
retroactive to the commencement of the 10(b)
period; and to make whole its employees by paying
to them, as backpay from the commencement of the
10(b) period, the difference between the amount of
wages that Respondent paid said employees and the
amount Respondent should have paid said employ-
ees pursuant to the provisions of the collective-
i The Administrative Law Judge inadvertently stated that Respondent
refused at all times since September 1975 to submit reports to the health and
welfare trust fund, as required by the Carpenters agreement. The correct
date should be January 1976.
2 Respondent contended in its exceptions that the Union's majority
status was coerced by an illegal hiring hall provision. This question was not
raised in the pleadings nor at the hearing before the Administrative Law
Judge and therefore the record contains no evidence with respect to this
issue. We reject Respondent's contention as untimely.
3 None of the parties has urged that Respondent's liability be extended
beyond the 10(b) period. In the circumstances herein, we shall not, sua
sponte, impose a remedy extending beyond June 9, 1975. Cf. Don Burgess
229 NLRB No. 177
bargaining agreement.3 We find merit in the General
Counsel's exceptions.
Respondent disavowed the contract in October
1975. 4 However, even prior to that date it refused to
comply with some of the terms of the agreement. In a
similiar case, the Board in Nelson-Hershfield Elec-
tronics, 188 NLRB 26 (1971), required the respondent
to honor its collective-bargaining agreement retroac-
tively to the commencement of the 10(b) period. We
find that a similar refusal-to-bargain violation exists
in the circumstances of this case and we hold that the
Administrative Law Judge erred in ordering that
Respondent honor the collective-bargaining agree-
ment only prospectively. Accordingly, we will require
Respondent to honor the collective-bargaining agree-
ment retroactive to the start of the 10(b) period.
In view of the foregoing, we also find that the
Administrative Law Judge erred in not providing for
any retroactive payments to the respective trust
funds pursuant to the collective-bargaining agree-
ment. Such retroactive payments will prevent Re-
spondent from reaping financial gain from its
unlawful conduct.
The Administrative Law Judge failed to provide
for retroactive payments for lost wages because he
concluded that members of the affected class could
not be determined. We agree with the General
Counsel that members of the class of affected
employees are ascertainable by reviewing the Re-
spondent's payroll records to determine the employ-
ees employed in the classifications covered under the
collective-bargaining agreement during the backpay
period. Accordingly, in fashioning the appropriate
remedy here, we shall require Respondent to make
these retroactive payments of wages,5 together with
interest computed at 6 percent, in accordance with F.
W. Woolworth Company, 90 NLRB 289 (1950), and
Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
CONCLUSIONS OF LAW
1. 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
meaning of Section 2(5) of the Act.
Construction Corporation d/b/a Burgess Construction and Donald Burgess and
Verlon Hendrix d/b/a V& B Builders, 227 NLRB 765 (1977).
4 Even after that date Respondent submitted its health and welfare
reports; only ceasing to do so in January 1976.
5 See Nelson-Hershfield Electronics, supra. The General Counsel also
contended that Respondent's obligation to bargain here was a continuing
obligation, and that Respondent's refusal to abide by the agreement
subsequent to its initial repudiation constituted a continuing violation. We
find it unnecessary to consider that argument in view of the Administrative
Law Judge's conclusion that Respondent unequivocally repudiated the
contract within the 10(b) period.
1296
ELLIS TACKE COMPANY
3. A unit appropriate for collective bargaining
consists of the following employees:
All carpenter employees and carpenter apprentic-
es employed by the Respondent, excluding all
other employees, office clerical employees, guards
and supervisors as defined in the Act.
4. At all times material herein the Union has been
and now is the exclusive representative of the
employees in said unit for the purposes of collective
bargaining within the meaning of Section 9(a) of the
Act.
5. Respondent has violated Section 8(a)(1) and
(5) of the Act by: repudiating its collective-bargain-
ing agreement with the Union; refusing to bargain
collectively with the Union as exclusive representa-
tive of its employees in the unit described above;
unilaterally, without prior notice to or consultation
with the Union, effecting changes in the wages, rates
of pay, hours of employment, and other terms and
conditions of employment in the appropriate unit;
not using employees secured through the Union's
hiring hall as it was required to do under the terms of
its contract; failing and refusing to honor the
Union's request of September 16, 1975, to furnish
information necessary to determine Respondent's
obligation to make payments to the health and
welfare trust fund, the pension trust fund, and the
vacation-savings trust fund as provided in the
Carpenters agreement and failing to make required
payments to the respective trust funds; failing and
refusing to attend the the Joint Labor Management
meeting on or about September 8, 1975, to resolve
disputes pursuant to the procedures established by
the Carpenters agreement; and refusing at all times
since January 1976 to submit reports to the health
and welfare trust fund, as required by the Carpenters
agreement.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Ellis Tacke, d/b/a Ellis Tacke Company, Phoenix,
Arizona, its agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with the Union
as the exclusive bargaining representative of all the
employees in the appropriate unit described below
with regard to rates of pay, wages, hours of
employment, and other terms and conditions of
employment. The bargaining unit is:
All carpenter employees and carpenter apprentic-
es employed by the Respondent, excluding all
other employees, office clerical employees, guards
and supervisors as defined in the Act.
(b) Unilaterally, and without prior notice to and
consultation with the Union, effecting changes in the
terms and conditions of employment of its employees
in the appropriate unit.
(c) Refusing to honor and give effect to the terms
and conditions of the collective-bargaining agree-
ment with the Union.
(d) Refusing to adhere to the hiring hall provisions
of the collective-bargaining agreement with the
Union.
(e) Failing and refusing to attend meetings to
resolve disputes pursuant to the procedures estab-
lished by the collective-bargaining agreement and
refusing and failing to honor the Union's request to
furnish information necessary to administer effec-
tively the grievance procedures of the contract.
(f) Refusing at all times since January 1976 to
submit reports to the health and welfare trust fund,
as required by the Carpenters agreement.
(g) In any other manner interfering with, restrain-
ing, or coercing its employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which
will effectuate the policies of the Act:
(a) Honor and give retroactive effect from June 9,
1975, to the terms and conditions of the collective-
bargaining agreement with the Union.
(b) Revoke and rescind all unilateral changes made
with respect to the terms of the collective-bargaining
agreement with the Union.
(c) Upon request, bargain collectively with the
Arizona State Council of Carpenters; Central Arizo-
na District Council of Carpenters; Southeastern
Arizona District Council of Carpenters; and their
constituent Local Unions: Carpenters Locals Nos.
326, 445, 471, 857, 906, 1061, 1089, 1100, 1153, 1216,
1538, 2096, 2763, and Millwright Locals Nos. 1182
and 1914, all affiliated with United Brotherhood of
Carpenters and Joiners of America, as the exclusive
representative of all employees in the appropriate
unit with respect to rates of pay, hours of employ-
ment, and other terms and conditions of employ-
ment.
(d) Submit reports to the health and welfare trust
fund as required by the collective-bargaining agree-
ment and make payments to the health and welfare
trust fund, the pension trust fund, and the vacation-
savings trust fund, retroactive to June 9, 1975, as
provided for in the collective-bargaining agreement.
(e) Reimburse all employees, retroactive to June 9,
1975, the difference between the amount paid them
and the amount they should have received pursuant
1297
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the provisions of the collective-bargaining agree-
ment with interest at 6 percent per annum.
(f) Upon request make available to the Union
necessary data to effectively administer the grievance
provisions of the contract and attend meetings to
resolve disputes pursuant to procedures established
by the collective-bargaining agreement.
(g) Secure employees through the Union's hiring
hall pursuant to the provisions of the collective-
bargaining agreement.
(h) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
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.
(i) Post at its Phoenix, Arizona, place of business
copies of the attached notice marked "Appendix." 6
Copies of said notice, on forms provided by the
Regional Director for Region 28, after being duly
signed by Respondent's authorized representative,
shall be posted by it immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(j) Notify the Regional Director for Region 28, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
h In the event that 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 National 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
WE WILL NOT fail or refuse to bargain collec-
tively with Arizona State Council of Carpenters;
Central Arizona District Council of Carpenters;
Southeastern Arizona District Council of Carpen-
ters; and their constituent Local Unions: Carpen-
ters Locals Nos. 326, 445, 471, 857, 906, 1061,
1089, 1100, 1153, 1216, 1538, 2096, 2763, and
Millwright Locals Nos. 1182 and 1914, all
affiliated with United Brotherhood of Carpenters
and Joiners of America, as the exclusive collec-
tive-bargaining representative of all the employ-
ees in the appropriate unit with regard to rates of
pay, wages, hours of employment, and other
terms and conditions of employment. The bar-
gaining unit is:
All carpenter employees and carpenter
apprentices employed by the Respondent,
excluding all other employees, office clerical
employees, guards and supervisors as de-
fined in the Act.
WE WILL NOT unilaterally, and without prior
notice to and consultation with the Union, effect
changes in the terms and conditions of employ-
ment of our employees in the appropriate unit.
WE WILL NOT fail or refuse to honor and give
retroactive effect to the collective-bargaining
agreement between Ellis Tacke, d/b/a Ellis Tacke
Company and the Union.
WE WILL NOT refuse to adhere to the hiring hall
provisions of the collective-bargaining agreement
with the Union.
WE WILL NOT fail or refuse to attend meetings
when requested to do so and WE WILL NOT refuse
to make available to the Union necessary data to
administer effectively the grievance provisions of
the contract.
WE WILL NOT refuse to submit reports to the
health and welfare trust fund as required by the
collective-bargaining agreement.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the right
to self-organization, to form, join or assist the
above-named Union, or any other labor organiza-
tion, to bargain collectively through representa-
tives of their own chosing, to engage in concerted
activities for the purpose of mutual aid or
protection, or to refrain from any or all such
activities.
WE WILL honor and give retroactive effect to
June 9, 1975, to the terms and conditions of the
collective-bargaining agreement between Ellis
Tacke, d/b/a Ellis Tacke Company and the
Union.
WE WILL revoke and rescind all unilateral
changes made with respect to the terms of the
collective-bargaining agreement between Ellis
Tacke, d/b/a Ellis Tacke Company and the
Union.
WE WILL, upon request, bargain collectively
with Arizona State Council of Carpenters; Cen-
tral Arizona District Council of Carpenters;
Southeastern Arizona District Council of Carpen-
ters; and their constituent Local Unions: Carpen-
ters Locals Nos. 326, 445, 471, 857, 906, 1061,
1089, 1100, 1153, 1216, 1538, 2096, 2763, and
Millwright Locals Nos. 1182 and 1914, all
1298
ELLIS TACKE COMPANY
affiliated with United Brotherhood of Carpenters
and Joiners of America, as the exclusive represen-
tative of all employees in the appropriate unit
with respect to rates of pay, wages, hours of
employment, and other terms and condition of
employment.
WE WILL submit reports to the health and
welfare trust fund as required by the collective-
bargaining agreement and WE WILL pay to trust
funds all moneys due retroactive to June 9, 1975.
WE WILL reimburse all employees, retroactive
to June 9, 1975, the difference between the wages
employees received and the amount they should
have received pursuant to the provisions of the
collective-bargaining agreement with interest at 6
percent per annum.
WE WILL attend meetings to resolve disputes
pursuant to procedures established by the collec-
tive-bargaining agreement and make available to
the Union necessary data to administer the
grievance provisions of the contract.
WE WILL secure employees through the Union's
hiring hall pursuant to the provisions of the
collective-bargaining agreement.
ELLIS TACKE, D/B/A
ELLIS TACKE COMPANY
DECISION
STATEMENT OF THE CASE
BERNARD J. SEFF, Administrative Law Judge: This case
was heard by me in Phoenix, Arizona, on March 11, 1976,
based on a charge filed on December 8, 1975, and a
complaint issued on February 11, 1976. The complaint was
filed by the Arizona State Council of Carpenters; Central
Arizona District Council of Carpenters; Southeastern
Arizona District Council of Carpenters; and their Constit-
uent Local Unions: Carpenters Locals Nos. 326, 445, 471,
857, 906, 1061, 1089, 1100, 1153, 1216, 1538, 2096, 2763,
and Millwright Locals Nos. 1182 and 1914, all affiliated
with United Brotherhood of Carpenters and Joiners of
America. The complaint alleges that the following employ-
ees of Ellis Tacke constitute an appropriate unit:
All carpenter employees and carpenter apprentices
employed by the Respondent; excluding all other
employees, office clerical employees, guards and
supervisors as defined in the Act.
Complaint alleges that Respondent repudiated an agree-
ment with the Carpenters Union on June 9, 1975;
unilaterally made changes in wages, hours, rates of pay;
ceased to secure employees through the Union's hiring
hall; refused to furnish reports to the health and welfare
fund since September 16, 1975; and refused to attend a
Joint Labor Management Board meeting on September 8,
1975, to resolve disputes according to procedures estab-
lished by the Carpenters agreement. It is alleged that
Respondent thereby violated Section 8(aX)(1) and (5) of the
Act. In its answer Respondent denied the commission of
any unfair labor practices.
Briefs have been filed by the General Counsel, the
Respondent, and the Charging Party, which have been
carefully considered.
Upon the entire record in this case, including my
observation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, a sole proprietorship, has maintained its
principal office and place of business in Phoenix, Arizona,
where it is engaged as a general contractor in the building
and construction industry. During the past 12-month
period it has purchased goods and materials valued in
excess of $50,000 from other enterprises located in Arizona,
each of which other enterprises received said goods and
materials in interstate commerce directly from States
outside the State of Arizona. I find that Respondent is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
1. THE LABOR ORGANIZATIONS INVOLVED
The Unions are labor organizations within the meaning
of Section 2(5) of the Act.
The General Counsel filed an unopposed motion to
correct the record, which I hereby grant. I will not burden
the record with itemizing the changes which are, for the
most part, typographical or involve spelling errors.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. There is no dispute as to the facts. The parties
entered into an all party stipulation of the facts on
February 11, 1976, which appears as an exhibit in the
record. Respondent began his bargaining relationship with
the Union shortly after he went into business in 1958, at
which time Tacke signed a prehire agreement with the
Union.
This relationship later developed into a full bargaining
relationship over the succeeding years. Respondent execut-
ed a series of memorandum agreements in 1963, 1965, and
1967 which adopted the respective Arizona Master Labor
Agreements in existence. The Arizona Master Labor
Agreements were negotiated between the Arizona Building
and Construction Trade Unions, including the Union, and
three multiemployer associations. In 1967 there was a
Master Labor Agreement which expired in 1970 and a new
Arizona Master Labor Agreement was negotiated effective
June 22, 1970, and terminated on May 31, 1973. Pursuant
to the 1963-65 and 1967 memorandum agreements,
Respondent was bound to succeeding Arizona Master
Labor Agreements unless it gave written notice 30 days
prior to the expiration of the respective contracts, indicat-
ing that it did not intend to be bound by such succeeding
contract. No notice, either written or oral, was given prior
1299
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the time the parties entered into the 1970 Arizona
Master Labor Agreement.
On September 11, 1972, Respondent entered into
another memorandum agreement, which agreement bound
Respondent to the 1970 Arizona Master Labor Agreement.
Paragraph 2 of the 1972 memorandum agreement bound
Respondent to successor collective-bargaining agreements
unless Respondent gave actual and timely notice in writing
to the Union that it was withdrawing from multiemployer
bargaining and that it desired to bargain separately on an
individual basis.
Paragraph 5 of the 1972 memorandum agreement gave
the Union the right to cancel the memorandum agreement
at any time upon written notice to the Respondent.
Respondent admitted that both before and after entering
into the 1972 memorandum agreement it requested and
was referred carpenters from the union hiring hall pursuant
to the hiring hall provisions of the various Arizona Master
Labor Agreements. For the payroll period ending on July
26, 1972, through the payroll period ending on July 11,
1973, the Union represented a majority of the employees
employed by the Respondent and the Union set forth,
supra, which is an admittedly appropriate unit.
On June 13, 1973, the Union entered into a successor
collective-bargaining agreement to the 1970 Arizona
Master Labor Agreement, with two of the three employer-
associations who were parties to the 1970 Arizona Master
Labor Agreement. This new agreement was effective from
June 1, 1973, until May 31, 1976. On August 28, 1973, the
third employer-association which was a party to the 1970
Arizona Master Labor Agreement signed the Carpenters
agreement. At no time prior to June 1973 did Respondent
give notice, either oral or written, to any of the signatory
unions, including the Union, that it did not desire to be
bound by the agreements resulting from negotiations
between the Union and the various employer-associations
or nonmember signatories thereto, or that it desired
separate bargaining with the Union on an individual basis.
Pursuant to the 1972 memorandum agreement, Respon-
dent was obligated to give timely notice to the Union in
order to avoid being bound by any subsequent agreement
negotiated between the Union and the various employer-
associations. Respondent failed to give any such notice.
Consequently, by the terms of the 1972 memorandum
agreement, and in accord with Board decisions, Respon-
dent was bound by the successor collective-bargaining
agreement, the Carpenters agreement. N.LR.B. v. Joseph
T. Strong, d/b/a Strong Roofing and Insulating Co., 386
F.2d 929 (C.A. 9, 1967), enfg. 152 NLRB 9 (1965).
It is the contention of the General Counsel that the
above facts clearly demonstrate that the relationship
between the Respondent and the Union matured from its
initial prehire relationship into a full bargaining relation-
ship. From the above, it can be seen that the parties have
enjoyed a collective-bargaining relationship since 1958;
they have been parties to at least four successor collective-
bargaining agreements; Respondent has taken advantage
of the Union's hiring hall over a period of years; the Union
represented a majority of the employees employed by the
Respondent in the unit set forth above, at least from June
26, 1972, to July 11, 1973. It is further contended by the
General Counsel that with the attainment of majority
status the Union completed all of the criteria needed to
perfect its status as a 9(a) representative. Once the Union
achieved this status, its contracts were entitled to the
protection and stability afforded by Section 8(a)(5) of the
Act. Peter Kiewit Sons' Co. and South Prairie Construction
Co., 206 NLRB 562; Barwise Sheet Metal Co., 199 NLRB
372, 379 (1972); Irvin-McKelvy Company, 194 NLRB 52
(1971); Bricklayers & Masons International Union, Local
No. 3 (Eastern Washington Builders), 162 NLRB 476 (1966),
enfd. 405 F.2d 469 (C.A. 9, 1968). It therefore appears that
the Carpenters agreement carries with it a conclusive
presumption of the Union's majority status in the contract
unit for the term of the contract. Therefore, in view of the
Union's status as a 9(a) representative, Tacke's repudiation
of the collective-bargaining agreement was violative of
Section 8(a)(1) and (5) of the Act.
It should be noted that the record in the instant case
includes, as Joint Exhibit 11, the complete transcript of
Case 28-RM-328 which consists of 203 pages and which
was received in evidence.
On June 13, 1973, the Arizona Building Contractors,
Building Chapter, and the Home Builders Association of
Central Arizona, and on August 28, 1973, the Associated
General Contractors, Arizona Chapter, entered into a
successor agreement for the 1970 Arizona Master Labor
Agreement with the Union known as the Arizona State
Carpenters Labor Agreement which was effective from
June 1, 1973, through May 31, 1976.
At no time prior to June 1, 1973, did Respondent give
any notice, either oral or written, to any of the signatory
unions, including the Union, that it did not desire to be
bound by the agreement resulting from the negotiations
between the Union and the various employer-associations
or nonmember signatories thereto or that it desired
separate bargaining with the Union on an individual basis.
From the payroll period ending on June 26, 1972,
through the payroll period ending on June 11, 1973, the
Union represented a majority of the employees employed
by Respondent in the unit set forth, supra.
From April 1974 till the present, Respondent has
employed at least two, at times six to seven, employees in
the unit set forth, supra. Commencing on or about April
1974 until the present, Respondent unilaterally ceased
making payments to the health and welfare and pension
trust funds as provided for in the Carpenters agreement,
although from April 1974 and continuing through January
1976 Respondent did submit monthly reports to the health
and welfare trust fund which reports set forth that
Respondent employed no employees in the appropriate
bargaining unit.
Beginning in July 1973, and continuing to date, Respon-
dent has refused to abide by the terms of the Carpenters
agreement and has unilaterally made changes in the
working conditions of the employees represented by the
Union by failing to pay the wages set forth in the
Carpenters agreement, by not making the payments
required pursuant to the various trust fund provisions of
said agreement, and by not using the Union's hiring hall as
provided for in the said agreement.
1300
ELLIS TACKE COMPANY
Despite the fact that since April 1974 until the present
time Respondent employed at least two employees, and as
many as six to seven employees, Respondent submitted
health and welfare reports indicating that it employed no
employees in the unit represented by the Union. While
testifying in the instant case, Tacke indicated that he was
merely checking the box which indicated that he had no
employees covered by the agreement. Nonetheless, in Case
28-RM-328, Tacke also testified. In answer to a question
as to why he continued sending a report every month to the
fund administrator's office if he felt he didn't any longer
have any obligations under the contract, Tacke testified:
Well, when I thought I was signatory to the Union, I
thought it was part of the union plan that I had to do it.
However, in April 1974, Respondent employed union
member Art Carlson. Despite the fact that Respondent
now maintains that it was not bound to the Carpenters
agreement, it filed health and welfare reports with the
Union indicating the number of hours worked by Carlson
and paid the amounts to the various trust funds pursuant to
the respective clauses in the Carpenters agreement. It also
paid Carlson union rate.
It is to be noted that Respondent is a general contractor
and it is possible that he would not have any carpenters on
his payroll. Furthermore, business conditions in the area
were slow and it is also conceivable that Respondent had
no business. Therefore, by sending these reports, Respon-
dent led the Union to believe that it was complying with
the contract. Furthermore, when Respondent employed
union member Carlson in April 1974 and he paid Carlson
according to the terms of the Carpenters agreement, it
would therefore seem that until March 1975 the Union had
no way of knowing that Respondent was not complying
with the terms of the Carpenters agreement.
Late in March 1975, the Union, through its business
agent, Joseph Ferkan, learned that the Respondent was not
abiding by the hiring hall provisions of the Carpenters
agreement. Significantly, however, there is no evidence that
Respondent, at that time made any attempt to contact the
Union or its agents and inform them that he did not
consider himself bound by the Carpenters agreement. In
fact, as noted above, Respondent's attorney stipulated that
no such comment was made by Respondent until late April
1975.
In late April 1975, Union Agent John Hackett spoke to
Respondent at ajobsite in Glendale, Arizona. In the course
of this conversation, Hackett complained to Respondent
about the latter's failure to hire through the hiring hall.
Respondent remarked to Hackett that he was no longer
signatory. It is the contention of the General Counsel that
this remark by Respondent was ambiguous. It was true that
Respondent was not a signatory to the contract. He was,
however, bound to the Carpenters agreement for the
reasons set forth above. This statement was not an
unequivocal repudiation of the Carpenters agreement. On
May 2, 1975, Hackett filed a grievance against Respondent
contending that Respondent was in violation of the
collective-bargaining agreement. All that Hackett was
aware of was that Respondent was in violation of some of
the provisions of the Carpenters agreement, for example,
not using the hiring hall and the filing of false pension fund
reports. However, there is no evidence to show that the
Union was aware of Respondent's alleged total repudiation
of the Carpenters agreement, especially when the Union
was receiving health and welfare reports submitted by
Respondent. It is to be further noted that Respondent's
position with respect to the Carpenters agreement was
confused when Respondent's attorney filed a petition in
Case 28-RM-328, on May 27, 1975. In that petition, which
is a sworn to document, Respondent's attorney stated that
the expiration date of Respondent's contract was May 31,
1976, which happens to be the expiration date of the
Carpenters agreement. The reasonable inference that the
Union could draw from this information was that Respon-
dent considered itself bound to the Carpenters agreement.
On June 17, 1975, the Regional Director dismissed the
Respondent's petition in Case 28-RM-328, and its charge
in Case 22-CP-156. On June 19, 1975, the Union refiled its
grievances against Respondent, alleging violation of the
Carpenters agreement. On August 27, 1975, a meeting of
the Joint Labor Management Committee was scheduled
for September 8, 1975, to discuss these grievances.
Respondent was notified of this meeting, but he ignored
the request that he attend.
On September 16, 1975, Union Agent John Hackett sent
Respondent a letter requesting information from Respon-
dent in order to process its pending grievances. The Union
requested:
(I) A complete list of all employees hired atid used by
your company on construction jobs within the State of
Arizona since April 1974; (2) the number of hours
worked by each employee on a monthly basis since
April 1974; and (3) the amounts which you contend
have been paid to the Trust Funds for each employee
on a monthly basis since April 1974.
Respondent failed to furnish this information and in fact
ignored the Union's September 16 request for information.
In contrast to the conflicting statements made by
Respondent, in the course of the hearing in Case 28-RM-
328, which was held on October 16, 21, and 22, 1975,
Respondent testified that he had totally repudiated the
Carpenters agreement.
On December 8, 1975, the Union filed the charge in the
instant case.
Respondent takes the position that its activities occurred
outside of the 10(b) period and therefore the complaint is
barred by Section 10(b). The General Counsel argues that
Respondent tried to conceal its illegal actions in that its
conduct occurring outside the 10(b) period was not so
unequivocal as to constitute notice to the Union of its
repudiation of the Carpenters agreement. In support of this
argument, counsel for the General Counsel relies on the
fact that Respondent continued to submit its health and
welfare reports through January 1976, paid moneys due to
the health and welfare trust funds for Art Carlson, and
stated in his petition, filed in Case 28-RM-328, that its
contract expired on May 31, 1976. Accordingly, counsel for
the General Counsel maintains that it was not until
sometime within the 10(b) period that the Union can be
found to have sufficient facts to be put on notice that
1301
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent was repudiating the entire agreement, rather
than merely breaching some of the provisions in the
contract. See City Roofing Co., 222 NLRB 786 (1976). The
General Counsel continues by stating that, even assuming
arguendo that Respondent's statements to Union Agent
Hackett, in late April 1975, were violative of the Act, the
General Counsel would nevertheless maintain that Re-
spondent's conduct within the 10(b) period, as set forth in
the complaint, would be further violative of the Act. See
Strong Roofing and Insulating Co., 386 F.2d 929 (C.A. 9,
1969), enfg. 152 NLRB 9 (1965). N.L.R.B. v. Louisiana
Bunkers, Inc., et. al., 409 F.2d 1295 (C.A. 5, 1969), enfg. 163
NLRB 656 (1967). Cone Mills Corporation, 413 F.2d 455
(C.A. 4, 1969), enfg. 169 NLRB 449 (1968). The Board has
repeatedly held that the obligation to bargain, in the
circumstances of the instant case, is a continuing obliga-
tion. Strong Roofing, supra. Accordingly, each time an
employer refuses to abide by his obligation to bargain
pursuant to an existing collective-bargaining agreement, it
violates Section 8(a)(1) and (5) of the Act. The evidence
discloses that, within the 10(b) period, Respondent repudi-
ated the Carpenters agreement by not abiding by the terms
of the agreement; by refusing, since January 1976, to
submit reports to the health and welfare trust fund as
required by the Carpenters agreement; by failing and
refusing to attend the Joint Labor Management Board on
September 8, 1975, to resolve the outstanding grievances
between Respondent and the Union; by failing and
refusing to furnish the Union with information pursuant to
the Union's request of September 16, 1975, which informa-
tion was necessary to determine Respondent's obligation to
make payments to the health and welfare trust fund and
the other trust funds; and by disavowing the Carpenters
agreement during the hearing held in Case 28-RM-328 in
October 1975. Therefore, the General Counsel argues that
the Respondent's violation in the instant case occurred
within the 10(b) period and that complaint in the instant
case is not barred by Section 10(b) of the Act. I agree.
B. Validity of Contracts Lacking Definite Duration
Respondent also argues that, because of the Union's
unilateral right to terminate the 1972 memorandum
agreement, the Carpenters agreement is void because of
lack of mutuality. In support of this argument, Respondent
relies heavily on traditional contract principles.
At common law, contracts lacking a definite duration are
not invalid. Such contracts will be construed as terminable
at will or after a reasonable period. Lewis v. Harcliff Coal
Company, Inc., 237 F.Supp. 6, 8 (1965); Boeing Airplane
Company v. N.L.R.B., 174 F.2d 988, 991 (C.A.D.C., 1949),
unless it can be inferred from the nature or subject matter
of the contract that the parties intended a particular
duration. Miller v. Miller, 134 F.2d 583, 588-589 (1943),
cert. denied 320 U.S. 744.
Substantive contract terms, such as duration, are not
regulated by the National Labor Relations Act. N. LR.B. v.
American National Insurance Co., 343 U.S. 395, 401-402
(1952). Consequently, the parties may reach between
themselves the terms of their contract without interference
by the Board. The Board does, however, scrutinize contract
negotiations regarding particular terms pursuant to the aim
of the Act, which is to promote industrial stability. Thus,
although it is not a violation of the duty to bargain in good
faith for a party to insist on a particular resolution of the
duration terms (N.LR.B. v. Reed & Prince Manufacturing
Company, 205 F.2d 131 (C.A. 1, 1953), cert. denied 346
U.S. 887), the Board has found that insistence on an
unreasonable term, i.e., day-to-day or month-to-month was
an indication of bad faith and a violation of Section
8(aXS5). Bagel Bakers Council of Greater New York and its
Employer-Members, 174 NLRB 622, 630 (1969). The
Administrative Law Judge reasoned that this unreasonable
period militated against the kind of industrial stability the
Act was intended to promote and found that there was no
legitimate reason for limiting the duration in such a way.
See also Borg-Warner Controls, Borg-Warner Corporation,
128 NLRB 1035, 1051 (1960).
In other contexts as well, the Board recognizes that
collective-bargaining agreements without definite duration
clauses exist and are valid, although they are not frequent
in the context of labor relations. Lion Oil Company, 109
NLRB 680, 684 (1954). For example, a contract of
indefinite duration, thus terminable at will, does not
constitute a bar to elections, Pacific Coast Association of
Pulp and Paper Manufacturers, 121 NLRB 990, 993-994
(1958); and the notice provision of Section 8(d) has been
found to apply to contracts of indefinite duration as well as
contracts with a definite time of duration. Federal Cartridge
Corporation, 172 NLRB 121 (1958); Lion Oil Co., supra;
Boeing Airplane Co., supra.
The Board is not concerned with the substance and
validity of the contract per se. Such questions as whether
there is a mutuality of obligation will be appropriately
raised in a suit on the contract. The Board is concerned
with the contract only if it relates to the Act. Starting with
the fact that lack of a duration clause does not render the
contract void, the Board's concern with the contract would
be to consider, for example, whether insistence on no
termination date, thus making the contract terminable at
will, is an indicia of bad faith, with an intent to arrive at no
contract at all.
See Edward Shannon et al. d/b/a Shannon & Simpson
Casket Company, 99 NLRB 430 (1952), enfd. 208 F.2d 545
(C.A. 9, 1953), where the Board made the following
statement:
Apparently the Respondent seeks tojustify certain of
the above-described conduct by reliance on axioms of
contract law. However, the rules by which it is
determined whether the parties have made a contract
are not the rules by which it is determined whether or
not parties have bargained in good faith.... The
obligation under the Act contemplates that the parties
come to the bargaining table with a fair and open mind
and a sincere desire and purpose to conclude an
agreement on mutually satisfactory terms. Reliance
upon the rules of contract law so as to forestall and
avoid agreement does not satisfy that obligation.
The rule is stated in substantially the same language in
Lozano Enterprises v. N.LR.B., 327 F.2d 814, 818 (C.A. 9,
1964):
1302
ELLIS TACKE COMPANY
In our view, the Employer's arguments may be
accepted as stating good technical contract law, but we
do not think that in this particular case they state good
collective-bargaining law. We do not think that, in
deciding whether, under a particular set of circum-
stances, an employer and a union have in fact arrived at
an agreement that the employer is then obliged to
embody in a written contract upon the union's request,
the Board is strictly bound by the technical rules of
contract law.
Fitting the facts of the instant case with the above
principles, the unilateral right to terminate the contract
reserved by the Union alone does not make the Carpenters
contract either illusory or void for lack of consideration.
The series of memorandum agreements were not executory
- there was performance by the Union in that it provided
a pool of employees available to Respondent and it did in
fact supply such employees under the hiring hall provisions
of the contract.
Concluding Findings and Analysis
The relationship between Respondent and the Union
ripened from the initial prehire agreement in 1958 into a
series of four successive collective-bargaining agreements.
In 1963, 1965, 1967, and about September 11, 1972,
Respondent and the Union executed successive memoran-
dum agreements, whereby the Respondent agreed to and
did recognize the Union as the collective-bargaining
representative of its employees in the following appropriate
unit:
All carpenter employees and carpenter apprentices
employed by the Respondent, excluding all other
employees, office clerical employees, guards and
supervisors as defined in the Act.
Pursuant to the memorandum agreements described
above, the Respondent adopted and agreed to be bound by
the successive collective-bargaining agreements between
various labor organizations, including the Union, and
various multiemployer associations in the State of Arizona,
which agreements are commonly known as the Arizona
Master Labor Agreements.
Upon execution of a memorandum agreement about
September 11, 1972, Respondent adopted and became
bound to the Arizona Master Labor Agreement dated June
22, 1970, which was effective through May 31, 1973. The
memorandum agreement of September I I provided that
Respondent would be bound by all of the terms of
successor agreements negotiated by the parties unless the
Respondent gave actual and timely notice in writing to the
Union that it was withdrawing from the multiemployer
bargaining and that it desired to bargain separately on an
individual basis.
Respondent's contention that the contract is void
because the Union reserved to itself the unilateral right to
cancel the contract at will is without merit. The Board is
not bound by the technical rules of contract law as
explained supra.
On June 1, 1973, the Union entered into a successor
agreement to the 1970 Arizona Master Labor Agreement
with various employer-associations and nonmember em-
ployer signatories, known as the Arizona State Carpenters'
Labor Agreement, hereinafter called Carpenters' agree-
ment, which is effective through May 31, 1976.
At no time prior to June 1, 1973, did the Respondent give
actual timely notice to the Union that it did not desire to be
bound by the agreement resulting from the negotiations
between the Union and the various employer-associations
and nonmember signatories or that it desired to bargain
separately as provided for in Respondent's September 11,
1972, memorandum agreement with the Union. Because of
its failure to give actual and timely notice to the Union that
it did not desire to be bound by the aforementioned
multiemployer bargaining and that it desired separate
bargaining on an individual employer basis, as required by
the memorandum agreement of September 11, 1972,
Respondent adopted and became bound to the Carpenters'
agreement.
Unilaterally, without prior notice to or consultation with
the Union, Respondent effected changes in the wages, rates
of pay, hours, and other terms and conditions of employ-
ment in the appropriate unit set forth above. In addition, I
find that Respondent ceased using employees secured
through the Union's hiring hall as it was required to do
under the terms of its contract.
Respondent refused at all times since September 1975 to
submit reports to the health and welfare trust fund, as
required by the Carpenters' agreement.
Respondent failed and refused to honor the Union's
request of September 16, 1975, to furnish the Union
information necessary to determine the Respondent's
obligation to make payments to the health and welfare
trust fund, the pension trust fund, and the vacation-savings
trust fund as provided in the Carpenters' agreement.
Respondent also failed and refused to attend the Joint
Labor Management Board meeting on or about September
8, 1975, to resolve disputes pursuant to the procedures
established by the Carpenters' agreement.
It should be noted that Respondent took advantage of
the Union's hiring hall over a period of years. The Union
represented a majority of the employees employed by
Respondent in the unit set forth above at least from June
26, 1972, to July 11, 1973.
Consequently, upon the attainment of majority status,
the Union completed all of the requirements needed to
perfect its status as a 9(a) representative. As such 9(a)
representative, the Union was entitled to the protection
and stability afforded by Section 8(aX5) of the Act. Thus,
the Carpenters' agreement carries with it a conclusive
presumption of the Union's majority status and the
collective-bargaining unit for the term of the agreement
and for successor agreements. I so find. The leading case in
this area is Joseph T. Strong d/b/a Strong Roofing and
Insulating Co., 152 NLRB 9, 13 (1965); 393 U.S. 357 (1969).
With respect to events that took place outside the 10(b)
period, such events may be considered as background to
give meaning to a subsequent event. See Houston Maritime
Association, Inc. et al., 168 NLRB 615 (1967) and the cases
cited therein.
1303
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is significant to note that Respondent did not give
unequivocal timely notice either orally or in writing to the
Union of its intention to repudiate its agreement with the
Union prior to the 10(b) period. Respondent did not
disavow the Carpenters' agreement until the hearing in
Case 28-RM-328 in October 1975. Thus, Respondent's
violation in the instant case occurred within the 10(b)
period and is not barred by Section 10(b) of the Act, since
the charge was filed on December 8, 1975.
The General Counsel has requested, inter alia, that by
way of remedy Respondent reimburse its carpenter
employees for the wages they lost from the start of the
10(b) period. In this connection, I cannot determine from
an evaluation of the record how many applicants would
have been registered or who those registrants would have
been if the unfair labor practices had not occurred. Any
attempt to supply the number or names would prove to be
pure conjecture. International Longshoremen's and Ware-
housemen's Union, Local No. 13 (Pacific Maritime Associa-
tion), 183 NLRB 221, 229 (1970). I therefore find that by its
actions enumerated above, Respondent violated Section
8(a)(1) and (5) of the Act.
IV. THE REMEDY
Having found that Respondent engaged in certain unfair
labor practices, I shall recommend that it be required to
cease and desist therefrom and take affirmative action
designed to effectuate the policies of the Act.
Having found that Respondent repudiated its contract, I
shall recommend that Respondent honor the Carpenters'
agreement. Further, that it shall make backpayments to the
respective trust funds pursuant to the Carpenters' agree-
ment from the start of the 10(b) period. I shall also
recommend that it make available to the Union the
information sought by it on September 16, 1975. This
information is necessary in order to furnish the Union
information necessary to determine the Respondent's
obligation to make payments to the various trust funds. In
addition, I shall recommend that Respondent submit
reports to the health and welfare trust fund as required by
the Carpenters' agreement. Further, I shall recommend
that Respondent be ordered to attend any Joint Labor
Management Board meetings which are convened to
resolve disputes pursuant to procedures established by the
Carpenters' agreement.
Upon the basis of the above findings of fact and upon
the entire record in this case, I make the following:
Conclusions of Law
I. 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
meaning of Section 2(5) of the Act.
3. A unit appropriate for collective bargaining consists
of the following employees: All carpenter employees and
carpenter apprentices employed by the Respondent,
excluding all other employees, office clerical employees,
guards and supervisors as defined in the Act.
4. At all times material herein the Union has been and
now is the exclusive representative of the employees in said
unit for the purposes of collective bargaining within the
meaning of Section 9(a) of the Act.
5. By refusing since September 16, 1975, to furnish the
Union information required in order to effectively carry
out the terms and provisions of the Carpenters' agreement;
and by unilaterally changing the wages, hours, and
working conditions of its employees without notice to or
conferring with the Union; and by refusing to bargain
collectively with the Union as exclusive bargaining repre-
sentative of the Respondent's employees in the unit
described above, Respondent has violated Section 8(a)(1)
and (5) of the Act.
[Recommended Order omitted from publication.]
1304