F & F Construction Co.

National Labor Relations Board - Board Decisions

May 5, 1978

235 N.L.R.B. 1440 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
F & F Construction Co., Inc. and Laborers State of
Indiana District Council and Local Union No. 120,
Laborers International Union of North America.
Cases 25-CA-8627, 25-CA-7132, and 25-CA-
8156
May 5, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On August 8, 1977, Administrative Law Judge
James L. Rose issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel and
Charging Parties separately filed briefs in support of,
and limited exceptions to, the Administrative Law
Judge's Decision. In addition, the General Counsel
filed a brief in support of limited exceptions and
Charging Parties filed an answering brief to Respon-
dents' exceptions.
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, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order which has
been modified in certain respects.
1. We find merit in the Respondent's exception to
the Administrative Law Judge's remedy for the
discriminatory discharge of Roger L. Fields. At the
hearing counsel for the General Counsel stipulated
that Fields abandoned his employment on April 1,
1976, because he was not provided with overtime.
Accordingly we shall not order reinstatement for
Fields and shall stop his backpay as of April 1, 1976.
2. We find merit in the General Counsel's excep-
tion to the Administrative Law Judge's failure to find
that Respondent violated Section 8(a)(4) with regard
to Stephen Hood. The record clearly shows that it
was not until after Respondent received the August
10, 1976, unfair labor practice charge relating to
Respondent's reduction of Hood's hours of employ-
ment because he had joined Local 120 that Respon-
dent sharply curtailed assigning work to Hood,
though at the same time continuing to assign labor-
er's work to new employees. We conclude that
Respondent's animus toward Hood, as exemplified
by sporadic work assignments immediately after his
Payroll records from June 8 through August 10 show weeks varying
from 18 to 40 hours, with overtime in most weeks. As of August 17, Hood
had worked only 8 hours and on August 20 was apparently given his last
235 NLRB No. 196
joining the Union, was accentuated by the filing of
the unfair labor practice charge. Accordingly, we
find that, with respect to Hood, Respondent violated
Section 8(a)(4) of the Act as well as Section 8(a)(3).
Respondent contends, in effect, that Hood aban-
doned his job by failing to respond to a letter, not in
evidence, saying that he had his job back if he
wanted it.1 This was not a bona fide unconditional
offer of reinstatement such as required to remedy
Respondent's discriminatory discharge of Hood
when it ceased assigning him work. See Leo Rosen-
blum, d/b/a Crown Handbag of California, and d/b/a
Soft Touch Shoe Co., 137 NLRB 1162, 1164 (1962).
3. The Administrative Law Judge found a collec-
tive-bargaining relationship between Respondent
and Charging Parties as far back as 1971. An
automatic extension of the April 1, 1973-March 31,
1976, contract executed by the parties brought the
formal term to March 31, 1977, the last day of the 3-
day hearing. In response to the Union's November
16, 1976, request, Respondent had on November 30
expressed a willingness to meet for negotiations in
"mid-December" 1976 but no meeting was held until
the one meeting of February 17, 1977. The Adminis-
trative Law Judge, although finding a violation of
Section 8(a)(5) with respect to the failure to pay
contract wages and fringe benefits to all employees
doing bargaining unit work, and a "total disregard
for its obligations" under the contract and the
statute, found no bad faith in delaying "from
November until the time of hearing" inasmuch as
"the parties did agree to meet and did so." The
December-February delay is urged by the General
Counsel as constituting "a clear pattern of stalling
and evasive tactics by Respondent" based upon its
attorneys' being engaged in a jury trial. The Board
has, of course, recognized that a respondent is not
privileged to rely on a selected representative being
otherwise occupied for long periods (see "M" System,
Inc., Mobile Home Division, Mid-States Corporation,
129 NLRB 527, 549 (1960), in that case from April 9
to July 30). Here, however, a fair assessment of the
pertinent correspondence between the parties on the
subject of bargaining shows no more delay by
Respondent following the Union's January 10 "re-
newed" request than by the Union following Re-
spondent's suggestion for a "mid-December" meet-
ing, a suggestion ignored until January 10. We find,
therefore, that neither the delay in negotiating until
the February 17 meeting nor the failure to hold
another meeting before the March hearing estab-
lishes an attempt to evade bargaining by delay.2
check, which was for 8 hours of work. A month later he received the so-
called reinstatement letter.
2 Member Jenkins would find that Respondent's actions during the
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F & F CONSTRUCTION CO.
4. The Administrative Law Judge (at fns. 7 and
10) found an additional unilateral change of contrac-
tual term in violation of Sections 8(d) and 8(a)(5)
based upon Respondent's contract with the Operat-
ing Engineers (in evidence) and ordered backpay "on
the same basis" as backpay for each laborer employ-
ee for hours worked within the coverage of the
contract of the Laborers (Charging Parties).
The General Counsel, noting the complaint's
8(a)(3) allegations at paragraphs 6(e) and 6(f) con-
cerning the failure to pay wage rates established by
the two collective-bargaining contracts, excepts to
the failure of the Administrative Law Judge to find
8(a)(3) discrimination on the part of Respondent by
determining the wage rates paid employees on the
basis of membership or nonmembership in the
Union. We find merit in this exception. See New
Bedford Stevedoring Corporation, 159 NLRB 740, 743
(1966), citing Gaynor News Company, Inc. v.
N.L.R.B., 347 U.S. 17 (1954).
The Administrative Law Judge's remedy for the
8(a)(5) violation extends to all unit employees and
will encompass the 8(a)(3) violation which we base
upon the same conduct. Respondent excepts on the
ground that it should not be subject to a compliance
hearing on this score for "unnamed discriminatees."
We find no merit in this contention. See Mackee's
Roofing and Sheet Metal Co., Inc., 221 NLRB 277
(1975), where the Board remedied an 8(a)(5) viola-
tion by making whole "all its unit employees for any
losses they may have sustained by reason of Respon-
dent's failure to honor and apply the terms of the
labor agreements," including contributions for fringe
benefits required by the labor contracts. See also
Johnson Electric Company, Inc., 196 NLRB 637, fn. 1
(1972). The compliance proceeding will determine
which employees were unlawfully underpaid and the
amounts due.
5. Also, with respect to fringe benefit payments
for each hour an employee worked as a laborer
without having such contributions paid, the Admin-
istrative Law Judge in his remedy ordered payment
with interest to date of expiration of the last contract
with the Laborers. Thus the order directs cessation of
such payments on April 1, 1977. We do not agree on
this cutoff date for these payments. During the
hearing Respondent admitted its continuing duty to
bargain with the Laborers and there is no evidence of
an impasse in bargaining having been reached.
Respondent's attempted posthearing withdrawal of
recognition, referred to by the Administrative Law
Judge at footnote 8, which included declining to
aforesaid period constituted delaying tactics in violation of Sec. 8(a)(5). In
view of the finding that Respondent violated Sec. 8(aXS), (4), (3), and (I) by.
inter alia, in effect repudiating the collective-bargaining agreement, or at
least demonstrating total disregard for its obligation thereunder, as well as a
resume negotiations until an election established an
"uncoerced majority of the employees in the applica-
ble unit," was a meaningless gesture in the light of
the serious unremedied unfair labor practices such as
we find this Respondent has committed. According-
ly, we direct that Respondent continue to make the
appropriate fringe payments beyond April 1, 1977,
until a good-faith impasse in bargaining has oc-
curred.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
F & F Construction Co., Inc., Speedway, Indiana, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain with Laborers Local Union
No. 120, Laborers International Union of North
America, the representative of its employees in the
unit found above to be appropriate for purposes of
collective bargaining within the meaning of Section
9(b).
(b) Unilaterally altering the terms and conditions
of collective-bargaining agreements during their
terms.
(c) Failing and refusing to pay laborers and
operating engineers the appropriate wage rate under
the respective collective-bargaining agreements for
all employees doing bargaining unit work.
(d) Refusing to pay fringe benefits as required
under the collective-bargaining agreements for all
employees doing bargaining unit work.
(e) Discharging employees or threatening employ-
ees with discharge should they join the Laborers or
any other labor organization.
(f) Discriminating against employees because they
filed charges under the Act.
(g) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Make whole all employees in the appropriate
bargaining units who did not receive wages set forth
therein from December 9, 1974, to the date of
compliance, as computed in the manner prescribed
by the Board in F. W. Woolworth Company, 90
NLRB 289 (1950), with interest as set forth in Florida
Steel Corp., 231 NLRB 651 (1977). See, generally, Isis
Plumbing & Heating Co., 138 NLRB 716 (1962).
disregard for its obligations under the Act, it seems anomalous to conclude,
as do his colleagues, that Respondent was bargaining in good faith.
1441
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Pay to the appropriate fringe benefits funds
such payments as are required under the 1973-76
collective-bargaining agreement with the Laborers
for all employees doing bargaining unit work, be-
yond April 1, 1977, plus interest, and until a good-
faith impasse in bargaining is reached.
(c) Offer Stephen Hood full and complete reinstate-
ment to his former job or, if that job no longer exists,
to a substantially equivalent position, without preju-
dice to his seniority or other rights or privileges, and
make him whole for any loss of earnings resulting
from the discrimination against him, plus interest, as
set forth in paragraph 2(a), above.
(d) Make Roger Fields whole up to April 1, 1976.
(e) 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.
(f) Post at its Speedway, Indiana, facility copies of
the attached notice marked "Appendix." 3 Copies of
said notice, on forms provided by the Regional
Director for Region 25, after being duly signed by
the Respondent's authorized representative, shall be
posted by the Respondent 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 the
Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(g) Notify the Regional Director for Region 25, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
3 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
After a hearing in which all parties participated, the
National Labor Relations Board has found that we
have violated the National Labor Relations Act. We
have been ordered to post this notice and to abide by
its terms and conditions.
WE WILL NOT unilaterally alter or change any
collective-bargaining agreement that we have
with Local Union No. 120, Laborers Internation-
al Union of North America, or with any other
labor organization.
WE WILL NOT threaten or discharge employees
because they join the above-named Union or any
other labor organization.
WE WILL NOT discriminate against employees
for filing charges with the Board.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of the rights guaranteed them by Section
7 of the Act.
WE WILL bargain upon request with the above-
named Union and WE WILL execute any agree-
ment so reached.
WE WILL make whole all of our employees in
the appropriate bargaining units, including that of
the Operating Engineers, who were not paid the
appropriate wages from and after December 9,
1974, plus interest.
WE WILL pay laborers and operating engineers
the appropriate wage rate under the respective
collective-bargaining agreements for all employ-
ees doing bargaining unit work.
WE WILL pay to the appropriate fringe benefit
fund of the Laborers all fringe benefit payments
for employees on whose behalf such benefit
payments were not made, plus interest.
WE WILL offer Stephen Hood reinstatement to
his former job or, if that job no longer exists, to a
substantially equivalent position, and make him
whole for any loss suffered as a result of the
discrimination against him, plus interest.
WE WILL make Roger Fields whole up to April
1, 1976.
Our employees have the right to join Local
No. 120, Laborers International Union of
America, or any other labor organization,
refrain from doing so.
Union
North
or to
F & F CONSTRUCTION
Co., INC.
DECISION
STATEMENT OF THE CASE
JAMES L. ROSE, Administrative Law Judge: The above-
captioned complaints were consolidated and heard before
me on March 29, 30, and 31, 1977, at Indianapolis,
Indiana.
In general, it is alleged that the Respondent has refused
to bargain in violation of Section 8(a)(5) of the National
Labor Relations Act, as amended, 29 U.S.C. Sec. 151, et
seq., in that during the effective period of its collective-
bargaining agreement with the Charging Parties it unilater-
ally changed terms and conditions of employment. It is
1442
F & F CONSTRUCTION CO.
further alleged that the Respondent bargained in bad faith
with the Charging Parties for a renewal contract, and that
the Respondent unlawfully withdrew recognition of the
Charging Parties and has since refused further to negotiate.
It is also alleged that the Respondent discharged two
employees because of their interest in and activity on
behalf of the Charging Parties and to discourage union
activity in violation of Section 8(aX3) and (4) of the Act.
Finally, it is alleged that the Respondent made certain
threats in violation of Section 8(a)( ) of the Act.
Upon the record as a whole, including my observation of
the witnesses, and the briefs and arguments of counsel, I
hereby make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. JURISDICTION
The Respondent maintains its principal office and place
of business at Speedway, Indiana, and at all times material
hereto has been engaged principally in the construction
and installation of underground cable conduit for the
Indiana Bell Telephone Company. The Respondent does
this work at various construction sites throughout the State
of Indiana.
During the year preceding the filing of the complaint
herein, a representative period, the Respondent in connec-
tion with its business operations purchased goods, prod-
ucts, and materials valued in excess of $50,000 which were
delivered directly to it from points outside the State of
Indiana.
The Respondent admits, and I find, that it is, and has
been, an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
The Respondent stipulated that the Charging Parties,
Local Union No. 120, Laborers International Union of
North America; Laborers International Union of North
America, State of Indiana District Council; and Local
Union 103, International Union of Operating Engineers,
are labor organizations within the meaning of Section 2(5)
of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Factual Outline
F & F Construction Co., Inc., has been in existence since
1968 or 1969. As indicated above, the bulk of its business is
with Indiana Bell Telephone Company, principally digging
ditches and laying conduit. To do this work, the Respon-
dent has employees who dig ditches, build manholes, pour
concrete, spread asphalt, and drive trucks and the like.
According to Roland Barker, the president, the Respon-
dent also has a number of operating individual trucks
which are not associated with telephone company work. It
is unclear from the record how many, if any, of the "25 big
trucks" he spoke of are used in the connection with the
telephone work.
In any event, Barker testified that some dump trucks are
used for hauling away dirt from the construction sites and,
in addition to the truckdrivers, the Respondent's onsite
employees are classified as laborers and operating engi-
neers. The Respondent also employs mechanics and men
who work in the yard and the shop. In addition to these
classifications the Respondent regularly has from three to
six employees working as the "rodding crew."
The rodding crew, according to Barker, are not "labor-
ers." They work on finished conduit. It cannot be deter-
mined from the Respondent's records how much time a
given individual might work on the rodding crew as
opposed to doing other work for the Respondent.
According to Barker, the basic work of the laborers'
classification is digging, operating jackhammers, pouring
concrete, tearing out old forms, and building new ones.
He stated that the truckdrivers are assigned to drive
trucks and are not required to do any work other than
driving a truck "unless I have a laborer driving the truck.
. . .What I mean by a laborer is someone that I am paying
the union wages."
Testimony of several former employees, undenied by
Barker, is to the effect that they were required to come to
the shop each morning and were dispatched to the
particular jobsite from there, but their pay did not start
until they reached the jobsite and it stopped when they left.
Sometime in or before 1971 a majority of the Respon-
dent's employees doing laborers' work selected Local 120
as their collective-bargaining representative and since that
time the Respondent has had a series of collective-bargain-
ing agreements negotiated by the District Council on
behalf of its affiliates, including Local 120.
Specifically, the Respondent was a party to the agree-
ment between the Indiana Utility Contractors Association
and Sewer Contractors of Indianapolis, Indiana, and the
Laborers International Union of North America State of
Indiana District Council, effective April 1, 1973, through
March 31, 1976.
In connection with negotiations for a new contract with
the Association, notice to the Association, as well as to the
appropriate mediation and conciliation services, was timely
given by the District Council. All parties agree, however,
that, at the time of the expiration of the contract, the
Respondent was not a member of the Association nor did
the District Council give the Respondent notice of its
desire to terminate or modify the contract.
Although certain jobsites of the Respondent were picket-
ed in June and July as part of the statewide picketing of the
Association in connection with negotiations for a new
contract, all parties agree that from and after April i, 1976,
Local 120 and the Respondent continued to be bound by
the 1973-76 contract. All parties agree that the contract
had automatically been extended to March 31, 1977, due to
failure of either party to give the appropriate notice
required as a termination clause.
On November 16, 1976, Charles R. Morris, secretary-
treasurer of the District Council, wrote the Respondent
officially notifiying it that the Union desired to reopen the
agreement. Simultaneously a notice was sent to the Federal
Mediation and Conciliation Service as well as to the
appropriate state agency.
Barker responded to this letter by letter dated November
30, 1976, in which he indicated that the Company wished
1443
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to terminate the collective-bargaining agreement effective
March 31, 1977; however, he said the Respondent would
be willing to meet for negotiations in mid-December.
Thereafter, there were some telephonic communications
between the Union's attorney and the Company's attorney
culminating in a single bargaining session on February 17,
1977. The parties have not met subsequently.
By letter dated April 6, 1977, the Respondent, through its
attorney, withdrew recognition of the Union on grounds
that the Respondent had "information and belief that the
Union no longer has a continued majority status and has
lost majority support from the employees of F & F
Construction Company."
As demonstrated by the Respondent's records, employ-
ees receive different rates of pay. While Barker testified
that the rate of pay an individual receives is dependent on
his classification (laborer, operating engineer, rodding
crew, or truckdriver), it is alleged that individuals perform-
ing laborers' work were paid the contract rate only if they
were members of the Union, and were paid a lesser rate if
they were not.
In addition, it is alleged, and Eugene Barker, the
Respondent's secretary-treasurer admitted, that fringe ben-
efit contributions required pursuant to the collective-bar-
gaining agreement were paid only on behalf of those
employees who were members of the Union. Laborers who
were not members of the Union did not have contributions
paid on their behalf.
Roger L. Fields worked from July 1974 until January
1975, was rehired in March 1975, and was discharged then
on April 22. According to Fields' testimony he was hired to
be a truckdriver and a laborer, i.e., to carry boards, to use a
shovel and jackhammer, and to pour concrete and the like.
He did state, however, that about 70 percent of his time
was spent driving a truck.
In March 1975 Fields joined Local 120 by signing an
application for membership one day when a union business
agent came to the job. Thereafter Fields told Roland
Barker that he had joined the Union and wanted to be paid
laborers' scale. Barker stated that he would not do so and
Fields went to the Union. The business agent called the
Respondent and then directed Fields to go to the Respon-
dent's office, which he did. On arriving, Eugene Barker
asked Fields, "Are you the one who came from the union
hall?" Fields acknowledged he was. Barker stated, "I will
get your pay for you, but I don't need you anymore."
Fields was then given a check for $184.
Roland Barker testified that he discharged Fields be-
cause he had hired Fields to be a truckdriver and not a
At the hearing, checkmarks on this document indicating who were
laborers were rejected on grounds that such were made in connection with
the compromise and settlement of other litigation; namely, the arbitration
proceeding. Upon the review of the record, I conclude that I was
misinformed concerning this and that Barker made these notations on the
document not in compromise of the arbitration proceeding, but under
direction of the board of arbitration. Such therefore amounts to admissions
by Barker concerning who were and who were not "laborers" and should be
received. Accordingly, I reverse the ruling made at the hearing and will
receive into evidence G.C. Exh. 15 along with the indications by Barker
concerning who on that list were laborers.
2 The bargaining unit is:
All employees of the Respondent performing work defined as laborers'
laborer. Thus, according to Barker, when Fields joined the
Union, he ceased to be a truckdriver and was no longer
needed.
This discharge resulted in an arbitration proceeding
following which Fields was returned to his job with
backpay.
In connection with computing the backpay awarded to
Fields, Barker indicated on an employee roster which
employees were laborers so that an average number of
laborers hours could be calculated.'
Stephen Thomas Hood went to work for the Respondent
in June 1976 after hearing that the Respondent had some
openings. He simply went to the Respondent's office and
sat on the bench. Subsequently Eugene Barker pointed a
finger at him and told him to go with another individual.
He stated that he was assigned to standard laboring
work-helping dig out a swimming pool, laying pipes,
putting in manholes, and working with a jackhammer.
On July 16, 1976, while at work Hood was approached
by the union business agent and he signed an application
for membership in the Union at that time. During the next
2 weeks Hood's work for the Respondent was sporadic,
because the Respondent did not have work for him to do,
and finally on July 21 Hood reported to the Respondent's
office and was advised by Roland Barker that no work was
available for him.
On Friday of that week, when Hood picked up his
paycheck, he asked Foreman Lige Napier why he was not
working. "He told me it was because I was messing around
with the Union."
Approximately I month after this, Hood received a letter
from Respondent advising him that he could return to
work if he wanted, but he did not.
B. Analysis and Concluding Findings
1. The refusal-to-bargain allegations
Initially, it should be noted that there is no question
concerning the appropriateness of the bargaining unit.2
Nor is there any question but what a majority of the
Respondent's employees in the appropriate unit, sometime
in 1971, designated the Union to be their collective-
bargaining agent.3
Finally, there is no question but what the Union and the
Respondent did in fact execute the collective-bargaining
agreement effective April 1, 1973, through March 31, 1976,
and, as indicated, all parties agree that contract automati-
cally was extended for a period of 1 year.
work in the collective bargaining agreement between the Respondent
and the Union, known as the "Contractors-Laborers Working Agree-
ment," incorporated by reference in that document captioned
"ACCEPTrANCE OF WORKINO AGREEMENT" bearing the execution date of
August 21, 1973, and signed on behalf of the Respondent by its officer
and agent Roland Barker, within the territorial area set forth in said
agreement, exclusive of all office clerical employees, professional
employees, guards, and all supervisors as defined in the Act, constitute
a unit appropriate for the purpose of collective bargaining within the
meaning of Section 9(b) of the Act.
3 Par. 5(b) of the order consolidating cases, complaint, and notice of
hearing alleges this, and such was admitted by the Respondent in its answer.
1444
F & F CONSTRUCTION CO.
Thus, the record amply demonstrates the Respondent's
duty to bargain with the Union as the representative of its
laborer employees.4 Indeed, the Respondent admits this
duty until at least March 29, 1977, the day the hearing in
this matter commenced.
a. Altering the contract
While it appears that the Respondent assigned employ-
ees to duties sometimes outside the scope of the work
contemplated in the collective-bargaining agreement, it is
also clear from the record that employees were hired to do
laborer's work and were not in all cases paid the appropri-
ate contract rate.
Although Barker testified that he did in fact pay
employees according to the work that they performed, 5 the
evidence to the contrary is overwhelming. Specifically, a
number of employees who were not paid at any time the
wage rate set forth in the contract described the work they
did, which was "labor work."
Secondly, at Fields' arbitration hearing, Barker stated
that he paid union members wages under the collective-
bargaining agreement but he did not pay nonunion
members those wages. While Barker denied that he made
such a statement, I credit the several witnesses who
testified he did. Specifically, it is noted that Robert C.
Voris, vice president and general superintendent of another
construction company, participated in the arbitration
proceeding as an employer member. He testified that,
during that proceeding: "Mr. Barker said that he paid
wages to union employees that were union members and if
they weren't he paid them other wages."
I therefore find that a preponderance of the credible
evidence supports the conclusion that in fact the Respon-
dent altered the wage rate of employees doing bargaining
unit work from that set forth in the collective-bargaining
agreement. Such an alteration of the terms and conditions
of the collective-bargaining agreement is contrary to
Section 8(d) and is therefore a refusal to bargain in
violation of Section 8(a)(5). Marquis Elevator Company,
Inc., 217 NLRB 461 (1975).
Similarly, as Eugene Barker admitted, the Respondent
did not make payments to the various fringe benefit funds
required under the collective-bargaining agreement on
behalf of those employees who were not members of the
Union, irrespective of the fact that some of these employ-
ees were doing bargaining unit work. This also violates the
obligations under Section 8(d) and is a refusal to bargain
within the meaning of Section 8(a)(5).
4 The General Counsel suggests that, because the Respondent is engaged
in the building and construction industry, under the authority of R. J. Smith
Construction Co., Inc., 191 NLRB 693 (1971), reversed sub nomn. Local No.
150, International Union of Operating Engineers, AFL-CIO v. N. LR.B., 480
F.2d 1186 (C.A.D.C., 1973), decision on remand 208 NLRB 615 (1974), the
collective-bargaining agreement here might not support a finding that the
Respondent refused to bargain with the Union. I find R. J. Smith and
similar cases inapposite. In those cases, the Board stated that the mere
existence of a lawful prehire contract would not support a refusal-to-bargain
allegation. The Board noted in these cases that there had been no
demonstration of majority status or indeed any showing other than the
simple execution of a contract permissible under Sec. 8(f).
In this case, the Union clearly represented a majority of the Respondent's
employees, as the Respondent admitted, as far back as 1971. The Union and
the Respordent entered into collective-bargaining agreements, the most
Accordingly, I shall recommend an appropriate remedy
for the Respondent's failure to make the appropriate wage
and fringe benefit payments to and for employees doing
bargaining unit work during the term of their employment
with Respondent. 6
b. Bad-faith bargaining
It is alleged that the Respondent violated Section 8(aX5)
during the course of negotiations for a new contract,
specifically by delaying the commencement of negotiations
and then during the session of February 17, by negotiating
in bad faith.
A review of the record leads me to conclude that the
Respondent and its agents could have been more circum-
spect in their dealings with the Union. However, their
course of conduct does not necessarily imply a determina-
tion to delay bargaining or not to reach an agreement.
Indeed, the Union here was something less than rigorous
in its press for negotiations. From the totality of the record
it appears that the Union initially thought that the
Respondent was a member of the Association and would
be bound by any new agreement reached. Thus, the Union
did picket the Respondent along with all other employers
in June in support of its bargaining position. It is unclear
from the record when the Union determined or at least
assumed that the Respondent would not be bound by the
new agreement. In any event, it was not until November
that the Union wrote the Respondent suggesting that the
old contract had automatically been renewed and request-
ing negotiation of a new one. The Respondent answered in
November suggesting it could meet in mid-December. The
Union did not answer this inquiry.
While it is the case that the Respondent's attorneys were
unable to meet during the month of January, in view of the
total situation I cannot find that such was of itself enough
to imply bad faith, particularly in view of the fact that the
parties did agree to meet and did so. Finally, it appears that
the Union and not the Respondent broke off negotiations
at the February 17 meeting.
From the totality of the record it cannot be said that
from November until the time of the hearing the Respon-
dent was acting in bad faith in its dealings with the Union.
Accordingly, I will recommend that the Respondent not be
found to have violated Section 8(a)(X5) in this respect.
In summary, from the record as a whole it is my
conclusion that, during the course of its dealings with the
Union, the Respondent in effect repudiated the collective-
bargaining agreement or at least showed total disregard for
recent of which is the one under consideration here. In addition, there was a
union-security clause in the contract and no indication that the clause was
not enforced. In short, here we have a situation where there has been a
reasonably longstanding collective-bargaining relationship between the
Respondent and the Union and a showing that the Union did in fact
represent a majority of the Respondent's employees in an appropriate unit.
5 In his affidavit to a Board agent, Barker stated, "We did not apply the
contract to nonunion members, there being a split among our nonsupervisor
employees of about 10 and 10 members and nonmembers." In making this
statement it appears that he was referring to the period after August 3, 1976,
when the Union advised him he was still bound by the 1973-76 contract.
This is a party admission notwithstanding that "on advise of counsel"
Barker did not swear to or affirm that paragraph.
6 This includes the Respondent's failure to pay employees for all of their
time, e.g.. going to the jobsite and returning to the shop.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
its obligations thereunder as well as a disregard for its
obligations under Sections 8(d) and 8(a)(5). 7 This I find
even though the events around the one bargaining session
do not support substantive bad faith in negotiations.8
2. The Roger Fields discharge
There is little question in this matter but what Roger
Fields was hired principally as a truckdriver and was paid
initially $4 an hour and then $4.50, both of which rates
were substantially less than the rate for a laborer under the
collective-bargaining agreement. Fields credibly testified
that he spent about 70 percent of his time driving a truck
and about 30 percent of his time as a laborer. I simply do
not believe Barker when he stated that if Fields did any
laboring work "he did it on his own," and that truckdrivers
in Fields' category were not required to do additional work
during idle periods. I believe that Fields, as well as others
whose principal job it was to drive a truck, were required to
pitch in and do whatever their foreman asked of them
during times the truck would not be required.
Beyond this, however, the essence of Fields' discharge is
that he did join the Union; he went to Respondent asking
for a raise and backpay; and he was discharged for this
reason, even though he was given the backpay. Such is
clearly violative of Section 8(a)(3).
The fact that Fields joined the Union did not mean that
the Respondent could not use him as a truckdriver and pay
him the truckdrivers wages. Or to say it another way, Fields
did not promote himself to be a full-time laborer simply by
the act of joining the Union. Neither the Union nor Fields
could in fact increase his wages for doing nonunit work
merely by making him a union member nor force the
Respondent to assign him to unit work. The defense,
therefore, that the Respondent did not need him as a
laborer, just a truckdriver, does not justify his discharge.
Herb Arthur, Inc. d/b/a Custom Carpet Installations, 225
NLRB 1036 (1976).
As the Board found in that case it is well settled that the
Respondent need not have had a specific antiunion
purpose where a natural consequence of its act is to
encourage or discourage union membership. Clearly, dis-
charging Fields simply because he joined the Union had
the immediate effect of discouraging membership in that
labor organization and was necessarily violative of Section
8(a)(3).
3. The Stephen Hood discharge
While Hood was not specifically discharged when he
joined the Union, within a few days after joining the
Union, a fact which Roland Barker knew because he was
present at the time, Hood's hours began to be reduced and
7 The only evidence that the Respondent breached its bargaining
obligation with the operating engineers in a way similar to that outlined
above with regard to the laborers is the fact, demonstrated by the
Respondent's payroll records, that one operating engineer was paid less than
the contractual rate. I find that this, particularly in the context of
Respondent's other unfair labor practices, amounted to an additional
unilateral change of a contractual term in violation of Secs. 8(d) and 8(a)(5)
of the Act.
I The Respondent attempted to withdraw recognition by letter of April 6,
1977, which asserts that facts learned at the hearing gave the Respondent a
good-faith doubt that the Union continued to represent a majority of
ultimately he was told by Barker that they had no more
work for him. On that particular day, however, as Hood
testified without contradiction, two new employees were
sent out to do laboring work.
Also without contradiction, Hood testified that Supervi-
sor Lige Napier told him that he was not getting work
because he was "messing around with the Union." Given
that Hood's testimony in this regard stands undenied,
along with Respondent's antiunion activity including the
discharge of Fields, and the Respondent's determination to
pay union wages to as few employees as possible, I
conclude that the Respondent in fact violated Section
8(aX3) by terminating Hood's employment because he
joined the Union.
The Respondent defends its action on grounds that
Hood ceased showing up for work and on a couple of
occasions he went to a project other than the one to which
he had been assigned.
I do not find Barker's testimony in this regard particular-
ly persuasive, particularly in view of Hood's uncontradict-
ed testimony. Hood did testify that on one occasion he was
unable to go to the Respondent's shop, but he called the
foreman, of whom he asked and received permission to go
directly to the project.
Hood's discharge is alleged also to be violative of Section
8(a)(4). The record is devoid of any evidence demonstrat-
ing that the Respondent was motivated in its discharge of
Hood because he had filed a charge or had given testimony
in a Board proceeding. Accordingly, I will recommend that
the 8(aX4) allegation be dismissed.
4. The alleged threats
Dovetailing generally with Respondent's overall conduct
were statements by Supervisor Virgil McCloud to employee
Charles Kernedele, who also wanted to join the Union and
get his backpay, that he would be discharged. Both Roland
and Eugene Barker on two different occasions told em-
ployees that if they joined the Union they would be
discharged. All of these statements by the Respondent's
agents were threats in violation of Section 8(a)(1).
REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, I shall recommend that it be
ordered to cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the
Act.
Having found that the Respondent refused to bargain
with the Union in violation of Section 8(aX5) of the Act
from and after December 9, 1974 (6 months preceding the
filing of the initial charge herein), I shall recommend that it
employees. While I find nothing in the record to support this assertion, I do
not believe that it would be appropriate at this time to find the Respondent's
withdrawal of recognition to be independently violative of Sec. 8(aX5). Such
was not alleged in any complaint and was therefore not fully litigated. It is
noted that, because I have concluded that the Respondent has in other
respects violated Sec. 8(aX5), it could not withdraw recognition, even if
objective considerations existed, while there were unremedied unfair labor
practices affecting the bargaining relationship. Guerdon Industries, Inc.,
Armor Mobile Homes Division, 218 NLRB 658 (1975). Finally, whether the
Respondent is found to have violated the Act by its withdrawal of
recognition would not change the remedy I shall recommend.
1446
F & F CONSTRUCTION CO.
cease and desist therefrom and, upon request, bargain
collectively with Local 120 and/or the District Council, as
agent for Local 120, as the exclusive representative of all
employees in the appropriate bargaining unit concerning
wages, hours, and other terms and conditions of employ-
ment, and, if an understanding is reached, embody such
understanding in a signed agreement.
I shall also recommend that the Respondent pay to all
laborer employees from and after December 9, 1974, who
were paid wages less than those set forth in the contract the
difference between the wages that they were paid and the
contract rate. Because the Respondent altered the hours of
work for which pay was to be received by not paying
employees for the time to and from the Respondent's office
to the particular project, the Respondent will also be
ordered to pay for each laborer employee an additional
hour of wages for each day, to be determined by dividing
the total number of hours worked as a laborer by eight.
Although payroll records show names, wages, rates, and
hours worked, it cannot be determined precisely which
employees did bargaining unit work. Since some of these
employees may not have done any work as laborers, and
others may have worked only part time as laborers, the
precise amounts due each will be left to the compliance
stage of this proceeding. Backpay for those hours found to
have been worked within coverage of the contract 9 will be
9 The "Coverage" article of the contract seems to contemplate work on
new construction only. Thus, rodding crew work would be excluded. This
corroborates Barker's testimony that Steve Tuttle., a union agent, told him
the Union did not claim rodding work. Tuttle did not deny Barker's
the difference between the appropriate contract rate and
that rate each employee was actually paid. The Respon-
dent will also be ordered to pay interest on these amounts.
Isis Plumbing & Heating Co., 138 NLRB 716 (1962).1 0
The Respondent shall also be ordered to make appropri-
ate payments under the collective-bargaining agreement to
the fringe benefit funds set forth in the collective bargain-
ing agreement for each hour an employee worked as a
laborer, and on whose behalf such contributions were not
made, with interest. Vin James Plastering Company, 226
NLRB 125 (1976). Such payments should cease on April 1,
1977, because from that date on there has been no contract,
hence such payments would not be permitted pursuant to
the provisions of Section 302(c)(5) of the Act.
It having been found that Roger Fields and Stephen
Hood were discharged in violation of Section 8(aX3), the
Respondent will be ordered to reinstate them to their same
jobs or, if those jobs no longer exist, to equivalent positions
without prejudice to their seniority or other rights or
privileges and to make them whole for any loss of earnings
resulting from the discrimination against them in accor-
dance with the formula set forth in F. W. Woolworth
Company, 90 NLRB 289 (1950), and Isis Plumbing &
Heating Co., supra.
[Recommended Order omitted from publication.]
testimony. I therefore conclude that rodding crew work is not covered under
the contract.
lo Backpay for the operating engineers will be on the same basis.
1447