Fortney & Weygandt, Inc.

National Labor Relations Board - Board Decisions

Jun 26, 1990

298 N.L.R.B. 863 (N.L.R.B. 1990)

FORTNEY & WEYGANDT
Fortney & Weygandt, Inc„ and Capital District
Council of Carpenters , United Brotherhood of
Carpenters & Joiners of America. Case 9-CA-
24407
June 26, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On October 11, 1988, Administrative Law Judge
Irwin Kaplan issued the attached decision. The
General Counsel and the Charging Party filed ex-
ceptions and supporting briefs, and the Respondent
filed cross-exceptions and a supporting brief. The
Respondent also filed an answering brief in re-
sponse to the General Counsel's and the Charging
Party's exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions only to the extent consistent with this
Decision and Order.
The judge found that the letter of assent signed
by the Respondent on July 29, 1985, did not bind
the Respondent to the automatic renewal provision
in the referenced collective-bargaining agreement.
For the reasons set forth below, we find that the
letter of assent did bind the Respondent to the
automatic renewal provision of the collective-bar-
gaining agreement. Consequently, we find that the
Respondent violated Section 8(a)(5) and (1) of the
Act by repudiating the collective-bargaining agree-
ment before its automatically renewed expiration
date.
The Respondent is a' general contractor engaged
in the construction and renovation of retail chain
stores. The Respondent has employed a regular
core of unrepresented carpenters and helpers. In
June or July 1985, the Respondent obtained a con-
tract to renovate a Foxmoor store in Columbus,
Ohio. The Respondent was informed by the
Union's representative for the Columbus area that
the store was located in a union mall and that it
would have to use union labor. On July 29, 1985,
the Respondent signed a letter 'of assent, which
provided that it did "hereby join in, adopt, accept,
and become a party to" the collective-bargaining
agreement between the Associated General Con-
tractors (AGC) and the Union effective May 1,
1984 through May 31, 1986. The Respondent was
not a member of the AGC.
298 NLRB No. 131
863
The AGC agreement referenced in the letter of
assent also contained a year-to-year renewal provi-
sion in the absence of either party giving a 60-day
written notice of an intent -to modify or terminate
the agreement. On March 20, 1986, the Union pro-
vided the AGC with a 60-day notice to terminate
the 1984-1986 agreement, and the AGC and the
Union thereafter negotiated a new agreement effec-
tive from June 1, 1986, to May -31, 1989. The
Union had not advised the Respondent of this
notice to terminate the 1984-1986 agreement, and
the Respondent did not provide the Union with
any notice regarding the 1984-1986 agreement.
The Foxmoor job was completed in August
1985, and the Respondent did not return to the Co-
lumbus area until November 1986, when it com-
menced work on a Columbus restaurant. There was
no contact between the Respondent and the Union
from August 1985 until November 1986, when the
Union produced the letter of assent and asked the
Respondent to sign the 1986-1989 AGC agreement.
On December 15, 1986, the Respondent advised
the Union that it was repudiating the letter of
assent because it had been executed solely for the
Foxmoor job and, as an 8(f) agreement, the Re-
spondent was now free to terminate it. The Union
filed the instant charge on June 15, 1987.
In determining whether the letter of assent
bound the Respondent to the automatic renewal
clause, the judge first addressed the Respondent's
argument that under article ' XIII of the AGC
agreement, only the AGC and the Union-not an
individual employer-had the option to modify or
terminate the contract 60 days prior, to the May 31,
1986 termination date.' Noting that under article
XIII, individual employers had such an option only
60 days prior to May 31, 1985, or the first anniver-
sary date, the judge agreed with the Respondent
that individual employers were treated differently
than the multiemployer group.2 He further stated
that as the letter of assent was not executed until
July 1985, well after May 31, 1985, it appeared that
the Respondent had no option to modify or termi-
nate the agreement. The judge then found in any
event, for the reasons discussed below, that the evi-
' Art XIII of the agreement provided, in pertinent part;
The remaining part of this Agreement shall remain in full force and
effect through May 31, 1986 except as noted herein for an individual
employer and shall continue from year to year until termination at
the option of either party after giving sixty (60) days notice in writ-
ing to either party
An individual employer may modify and/or terminate this Agree-
ment by notifying the other party, in writing, sixty '(60) days prior to
May 31, 1985 of his intent to modify and/or terminate this Agree-
ment following which, this Agreement shall terminate as of May 31,
1985, for that employer only
2 The judge interpreted the phrase "either party" in art XIII as mean-
ing either the AGC or the Union
864 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
dence fell short of establishing that the Respondent
and the Union by the letter of assent had contem-
plated successive or future contracts or anything
other than the existing 1984-1986 contract.
The judge found that the letter of assent did not
automatically renew for another year. In this
regard, he noted that the letter of assent itself did
not contain an express automatic renewal provi-
sion . He also found that the negotiations between
the Respondent and the Union regarding the letter
of assent did not involve the duration of the agree-
ment , and that there was no other evidence to sup-
port reading renewal features into the letter of
assent . The judge concluded that the letter of
assent created an 8(f) arrangement that ended when
the referenced 1984-1986 AGC agreement termi-
nated, and thus that the Respondent's repudiation
of the letter of assent subsequent to the expiration
of the 1984-1986 AGC agreement did not violate
Section 8(a)(5) of the Act as an unlawful midterm
repudiation. We disagree.
Although the letter of assent itself did not con-
tain an automatic renewal clause, it directly incor-
porated by reference the 1984-1986 AGC agree-
ment , which contained an automatic renewal clause
absent timely written notice of an intent to modify
or terminate the agreement. Further, the letter of
assent provided that the signatory contractor
became a party to the underlying agreement.
In a similar case, C.E.K Industrial Mechanical
Contractors, 295 NLRB 635 (1989), the Board held
that an individual employer who signed an employ-
er association contract as a nonassociation member
was a "party" to the contract and thus was bound
to the contract's automatic renewal clause. In
C.E.K, the respondent signed a copy of the 1981-
1983 employer association contract, which had an
expiration date of June 30, 1983, and which auto-
matically renewed absent "either party" giving
timely notice. The respondent was not a member of
the association. The association timely notified the
union that it wished to negotiate a new agreement,
and in July 1983 the union and the association
reached accord on a new contract. The respondent
did not sign the new agreement . The judge in
C.E.K. found that the renewal clause's reference to
"party" meant only the union and the association,
and thus the contract was lawfully terminated as to
the respondent when the association provided
notice to the union. The Board, however, reversed
the judge, finding that if the contract had meant to
exclude nonassociation members from the meaning
of "party," it would have been more explicit. The
Board declined to find that an employer who signs
a contract as an individual employer is not a party
to the contract merely because the contract was
negotiated by an employer association. The Board
concluded that as the respondent was not a
member of the association and had not delegated
bargaining authority to the association, the associa-
tion's notice of a desire to change the contract did
not preclude the effectiveness of the automatic re-
newal clause as to the respondent.
In the instant case, the letter of assent specifical-
ly provided that the contractor signatory to the
letter of assent became a party to the underlying
AGC agreement. As in C.E.K, we reject the
judge's reading of "party" here as meaning only
either the AGC or the Union. We further note that
the contractual relationship between the Respond-
ent and the Union was defined by both the letter of
assent and the underlying AGC agreement. Thus,
we find that the AGC agreement's automatic re-
newal clause applied to the Respondent in the ab-
sence of either the Respondent or the Union giving
timely notice to the other. The Union's notice to
the AGC to terminate the 1984-1986 agreement
did not preclude the effectiveness of the automatic
renewal clause as to the Respondent, as the Re-
spondent had never delegated bargaining authority
to the AGC.3
Further, we also reject the argument that under
the terms of article XIII of the AGC agreement,
individual employers could give notice to modify
or terminate the agreement 60 days before May 31,
1985, but not before the 1986 termination date.
Rather, we find that a reasonable interpretation of
article XIII, which is supported by testimony in
the record,4 is that individual employers could give
notice to modify or terminate the agreement 60
days either before May 31, 1985, or before the May
31, 1986 termination date.5 Thus, we do not read
the first cited paragraph of article XIII as exclud-
ing individual employers. Rather, we find that the
term "party" in that paragraph refers to the AGC,
the Union, or an individual employer, in contrast
to the judge's finding that "party" refers only to
the AGC or the Union.
Thus, we find that by signing the letter of assent,
the Respondent was bound to all the terms in the
1984-1986 AGC collective-bargaining agreement,
including the provision for automatic renewal for 1
year unless either the Respondent or the Union
s CE.K, above at 635 Victor Block, Inc., 276 NLRB 676, 679 (1985)
4 Richard Hobbs, executive director of the AGC, testified that art
XIII was intended to give individual employers an option to terminate
after the contract's first year, but was not meant to preclude an individual
employer from being able to terminate 60 days prior to the contract's ex-
piration date
5 We reject the General Counsel's contention that the May 31, 1985
date is a misprint, as we note that art XIII of the 1986-1989 contract
similarly provides that an individual employer may give notice to termi-
nate 60 days prior to May 31, 1987, or May 31, 1988.
FORTNEY & WEYGANDT
gave timely notice of a desire to modify or termi-
nate the agreement.6 The Respondent failed to
comply with this contractual notice requirement.
Accordingly, we conclude that the Respondent
was bound for 1 year 7 by the automatic renewal
clause of the 1984-1986 AGC agreement."
CONCLUSIONS OF LAW
1. The Respondent was bound by the automatic
renewal clause of the 1984-1986 collective-bargain-
ing agreement between the AGC and the Union.
2. By repudiating the automatically renewed
1984-1986 agreement on or about December 15,
1986, the Respondent has violated Section 8(a)(5)
and (1 ) of the Act.
REMEDY
Having found that the Respondent has violated
the Act, we shall order it to cease and desist and to
take certain affirmative action designed to effectu-
ate the purposes of the Act. We shall order the Re-
spondent to make whole its employees , as pre-
scribed in Ogle Protection Service, 183 NLRB 682
(1970), for any losses they may have suffered as a
result of the Respondent 's repudiation of the auto-
matically renewed 1984-1986 AGC contract. We
shall also order the Respondent to make whole its
employees by making all fringe benefit fund contri-
butions to the union funds as provided by the
agreement , " and by reimbursing the employees for
any expenses ensuing from the Respondent 's failure
to make such contributions , as set forth in Kraft
Plumbing & Heating, 252 NLRB 891 fn . 2 (1980),
enfd . mem. 661 F .2d 940 (9th Cir. 1981). All pay-
ments to employees shall be made with interest to
6 We agree with the judge that the Union's conduct in asking the Re-
spondent to sign the 1986-1989 AGC agreement in November 1986 was
not tantamount to an admission by the Union that the 1984- 1986 agree-
ment did not automatically renew
7 We leave to compliance whether the contract renewed again in 1987
C.EK, above at 635, in 3.
8 The judge found, and we agree, that the contract between the Re-
spondent and the Union was an 8(f) agreement However, nothing in the
Board 's decision in John Dekiewa & Sons, 282 NLRB 1375 (1987), enfd
sub nom Iron Workers Local 3 u NLRB, 843 F.2d 770 (3d Cir 1988),
precludes a finding that an 8(f) agreement may, in appropriate circum-
stances, automatically renew . See also William N Taylor, Inc, 288 NLRB
1049 (1988).
We agree with the judge that the Respondent 's other defenses are
without merit
9 Because the provisions of employee 'benefit fund agreements are van-
able and complex , the Board does not provide at the adjudicatory stage
of a proceeding for the addition of interest at a fixed rate on unlawfully
withheld fund payments . We leave to the compliance stage the question
of whether the Respondent must pay any additional amounts into the
fringe benefit funds in order to satisfy our "make whole" remedy. These
additional amounts may be determined , depending on the circumstances
of each case , by reference to the provisions in the documents governing
the funds at issue and , where there are no governing provisions , to evi-
dence of any loss directly attributable to the unlawful withholding action,
which might include the loss of return on investment of the portion of
funds withheld , additional administrative costs, etc, but not collateral
losses. See Merryweather Optical Co, 240 NLRB 1213 (1979).
865
be computed in the manner prescribed in New Ho-
rizons for the Retarded, 283 NLRB 1173 (1987).
ORDER
The National Labor Relations Board orders that
the Respondent, Fortney & Weygandt, Inc., Lake-
wood, Ohio, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Repudiating the automatically renewed 1984-
1986 collective-bargaining agreement between the
Associated General Contractors and the Capital
District Council of Carpenters, United Brother-
hood of Carpenters & Joiners of America.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of rights guaranteed them by Section 7 of
the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Make whole its employees in the following
appropriate unit for any losses suffered as a result
of the Respondent's repudiation of the automatical-
ly renewed 1984-1986 agreement, and by making
contributions to the union funds as required by that
agreement, in the manner set forth in the remedy
section of this decision. The appropriate unit is:
All carpenter craftsmen employed by [Re-
spondent] within the jurisdiction of the Union,
but excluding all professional employees,
guards and supervisors as defined in the Act.
(b) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(c) Post at its office in Lakewood, Ohio, copies
of the attached notice marked "Appendix."10
Copies of the notice, on forms provided by the Re-
gional Director for Region 9, after being signed by
the Respondent's authorized representative, shall be
posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in
conspicuous places including all places where no-
tices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or
covered by any other material.
10 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order Of The Na-
tional Labor Relations Board" shall read "Posted Pursuant To a Judg-
ment Of the United States Court of Appeals Enforcing an Order of The
National Labor Relations Board "
866 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(d) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
CHAIRMAN STEPHENS, dissenting.
For the reasons stated by the administrative law
judge, I would dismiss the complaint.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL, LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT repudiate the terms and condi-
tions of the 1984-1986 Associated General Con-
tractors collective-bargaining agreement with Cap-
ital District Council of Carpenters, United Brother-
hood of Carpenters & Joiners of America, covering
our employees in the following appropriate unit:
All carpenter craftsmen employed by [Re-
spondent] within the jurisdiction of the Union,
but excluding all professional employees,
guards and supervisors as defined in the Act.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL make whole employees for any losses
suffered as a result of our failure to honor the auto-
matically renewed 1984-1986 agreement, plus inter-
est, and by making contributions to the union funds
as required by that agreement.
FORTNEY & WEYGANDT, INC.
Carol L. Shore, Esq., for the General Counsel.
Alan G. Ross, Esq. (Wickens, Herzer & Panza Co. L.P.A.),
of Cleveland , Ohio, for the Respondent.
Jack Gregg Haught, Esq. ,(Benesch, Friedlander, Coplan &
Aronoff), of Columbus , Ohio, for the Charging Party.
DECISION
STATEMENT OF THE CASE
IRWIN KAPLAN, Administrative Law Judge. This case
was heard in Columbus, Ohio, on November 3 and 4,
1987. The underlying charges were filed on June 15,
1987, by the Capital District Council of Carpenters,
United Brotherhood of Carpenters & Joiners of America
(Charging Party or Union ). These charges gave rise to a
complaint and notice of hearing dated July 20, 1987, and
an amended complaint and order scheduling hearing
dated October 6, 1987.
The gravamen of the amended complaint alleges that
on or about December 15, 1986, Fortney & Weygandt
(Respondent or Employer) unlawfully repudiated a con-
struction industry or an 8(f) agreement before the expira-
tion date in violation of Section 8(a)(5) and (1) of the
National Labor Relations Act (the Act). The Respondent
and Charging Party were parties to a "Letter of Assent"
which document, in essence, is alleged to have incorpo-
rated by reference a collective-bargaining agreement be-
tween the Central Ohio Division, Ohio Building Chapter,
Associated General Contractors of America, Inc. (AGC)
and the Union. That collective-bargaining agreement by
its terms was effective from May 1, 1984, through May
31, 1986, but contained a year-to-year renewal provision
in the absence of either party giving a 60-day notice in
writing (evergreen provision). According to the General
Counsel, as neither the Respondent nor the Union pro-
vided timely notice to each other to terminate the afor-
enoted agreement, it is alleged that the agreement was
thereby extended for an additional year to May 31, 1987.
As such, it is alleged that the repudiation thereof by Re-
spondent on or about December 15, 1986, was a midterm
violation and violative of Section 8(a)(5) under the gen-
eral principles set forth by the Board in John Deklewa &
Sons, 282 NLRB 1375 (1987).
The Respondent filed a corresponding answer and
amended answer conceding, inter alia, certain jurisdic-
tional facts but denying that it committed any unfair
labor practices. In particular, the Respondent contends
that the Letter of Assent was a project-only agreement
which terminated by its own terms on May 31, 1986, or
terminated on that date as a result of the Union's termi-
nation notice on March 20, 1986, to the AGC. The Re-
spondent also raised various other defenses including the
appropriateness of the unit, majority status, deferral to
arbitration, constitutionality of any retroactive applica-
tion, and that the charges are time-barred by Section
10(b) of the Act.
Based on the entire record, including my observations
of the demeanor of the witnesses as they testified, and
after careful consideration of the posttrial briefs, I make
the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, an Ohio corporation with a principal
office and place of business in Lakewood, Ohio (a suburb
of Cleveland), is a carpentry contractor in the construc-
tion industry constructing commercial facilities in Co-
lumbus, Ohio, and other locations. During the 12-month
period ending June 30, 1987, the Respondent, in connec-
tion with the aforenoted business operations, purchased
and received at its various locations throughout the State
of Ohio, products, goods, and materials valued in excess
of $50,000 directly from points outside the State of Ohio.
The Respondent admits, the record supports, and I find
that it is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
FORTNEY & WEYGANDT
The Respondent admits, and I find , that the Union is a
labor organization within the meaning of Section 2(5) of
the Act.
II. THE UNFAIR LABOR PRACTICES
A. Background and Sequence of Events
The Respondent is a general contractor engaged in the
construction and renovation of retail chain stores located
largely in midwestern states but also down to Kentucky
and the east coast, except for the major cities on the
eastern seaboard. The carpentry work on the various
jobsites is performed by Respondent's employees (car-
penters and helpers); the noncarpentry work, i.e., paint-
ing and decorating, glass and glazing, electrical wiring,
etc., is subcontracted to various local specialty subcon-
tractors. The average length of these national retail chain
or account projects is from 4 to 6 weeks. At any one
time the Respondent may have from 8 to 10 projects in
operation.
Over the past 2 to 3 years, the Respondent employed a
regular core of unrepresented carpenters and helpers
averaging approximately 30 in number. They are paid in
accordance with Respondent's set salary structure which
proceeds from $10 to $11 per hour for new employees to
$16 to $17 per hour for the more experienced and senior
employees. In addition, the Respondent provides a fringe
benefit package that includes paid vacation, hospitaliza-
tion, personal time, and sick time. These various fringe
benefits are described in an employee manual or packet.
Respondent's employees work in two, three, or four-man
crews, but their composition is subject to change as em-
ployees interchange from project to project as needed.
All carpentry work assignments emanate from Respond-
ent's headquarters located in Lakewood, Ohio (near
Cleveland, Ohio).
In June or July 1985,1 the Respondent obtained a con-
tract toI renovate a retail store for one of its national
retail accounts, Foxmoor, at the Northland Shopping
Mall located in Columbus, Ohio. In early July, two of
Respondent's employees (Job Superintendent Tom Man-
narina and a helper) were dispatched to the Northland
Mall to do some demolition and related preliminary
work to get the Foxmoor "project started. Soon after
their arrival, Union Business Representative Diego
Moreno2 approached Mannarina and inquired whether
Respondent intended to do the work or subcontract.
Mannarina referred Moreno to Robert Fortney, president
of Respondent.
Moreno phoned Fortney that same day and posed to
the latter the same question he had to Superintendent
Mannarina, to wit, whether Fortney was going to use his
own carpenters, union contractors or subcontract. Ac-
cording to Fortney, Mannarina had already informed
him of Moreno's inquiry and that Moreno wanted a con-
tract for the carpentry work at the Northland Mall. As
i All dates refer to 1985 unless otherwise indicated.
2 Moreno't duties include the monitoring of union and nonunion jobs
within the charging Union's jurisdiction This covers three and a half
counties including Franklin County where Columbus is situated
867
testified - by Fortney, the conversation in pertinent part
went as follows:
I talked to Moreno and he stated this was a union
situation, a union mall, no non-union labor would be
permitted and that if we wanted to do work in the
mall we had to have a union agreement to get men
to do work in that mall.
Then I' asked him why we needed this contract,
if there was another way around it. He stated that if
we wanted to use labor that was on our payroll, it
would have to be union labor.
According to Fortney, "he [Fortney] did not have a
subcontractor lined up because of the pressures on the
job" and therefore he agreed to sign a labor contract
"for that job." Moreno's account of the conversation
was somewhat broader in scope as to whether anything
other than the Foxmoor job was discussed. Thus,
Moreno testified that they also touched on other carpen-
try work to be performed in the area and that "[Fortney]
said he probably would have some coming up."
The Fortney-Moreno phone conversation resulted in
union employees performing the carpentry work on the
Foxmoor job and a labor agreement known as a "Letter
of Assent." According to Moreno, while the terms of
that agreement were not discussed, he asserted that Fort-
ney was "well aware of what is in the assent form." That
same day, Moreno mailed the Letter of Assent (G.C.
Exh. 2) to Fortney for his signature. The agreement in
its entirety provides as follows:
Letter of Assent
In consideration of One Dollar ($1.00) and other
valuable considerations and, further, inconsideration
[sic] of the benefits to be derived herefrom, the un-
dersigned contractor, or its successors and assigns,
although not a member of the Central Ohio Divi-
sion, Ohio Building Chapter, Associated General
Contractors of America, Inc., the Associated Gen-
eral Contractors of America, Inc., does hereby join
in, adopt, accept and become a party to the certain
Collective Bargaining Agreement between Central
Ohio Division, Ohio Building Chapter, Associated
General Contractors of America, Inc., and the Cap-
ital District Council, United Brotherhood of Car-
penters and Joiners of America, AFL-CIO, effec-
tive May 1, 1984 through May 31, 1986, including,
but not limited to, all of the provisions contained in
said Agreement pertaining to contributions to vari-
ous funds providing for Health and Welfare, Pen-
sions, Apprenticeship Training, or any other fringe
benefit provided for therein, and agrees to be bound
by any Trust Agreement presently in existence or
hereafter to be entered into by and between the
Capital District Council and the Central Ohio Divi-
sion, Ohio Building Chapter, Associated General
Contractors of America, Inc., and agrees to make
3 As noted previously, the Respondent contends that the contract in
question was a "project only" contract
868 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
contributions as required thereunder, and authorizes
the Capital District Council and the Associated
General Contractors to name the Trustees to admin-
ister any such funds and ratifies and accepts such
Trustees and the terms and conditions of the
Trust(s) as made by the undersigned.
For the Foxmoor job , the Respondent was immediate-
ly serviced for its manpower exclusively from the
Union 's hiring hall in Columbus, Ohio, although Fortney
waited a few weeks before he actually executed the
Letter of Assent . In all, the Respondent hired four union
carpenters : two worked a total of 2 weeks , the other two
approximately 3-1/2 weeks , at which time the carpentry
work on the Foxmoor job was completed . At that time
all four union carpenters were permanently laid off.
The Respondent did not return to the Columbus, Ohio
area until November 1986. From the time the Foxmoor
job was completed back in August 1985 until November
1986 when Respondent commenced work on a restaurant
project in the Columbus , Ohio area named the Conflu-
ence Park Restaurant , there was no contact between the
Union or Respondent . In October 1986 the Respondent
was awarded a-major subcontract to perform the carpen-
try work on the Confluence Park Restaurant project.
The entire project involved the construction of a new
building and for the first time the Respondent performed
as a subcontractor rather than as a general contractor.
In the meantime , the Union had provided the AGC
with a 60-day notice to terminate the May 1984-May
1986 collective-bargaining agreement and the parties
thereafter negotiated a new agreement effective by , its
terms from June 1, 1986, to May 31, 1989 (G .C. Exh. 4).
The Union had not separately advised the Respondent of
the aforenoted notice to modify or terminate the 1984-
1986 Agreement . Nor had the Respondent provided any
such notice . (As noted previously , counsel for the Gener-
al Counsel contends that the 1984-1986 Agreement
thereby automatically renewed itself for another year.)
According to Moreno , in early November 1986,4 he
learned from the construction manager at the Confluence
Park Restaurant site that the Respondent had been
awarded the carpentry work on that project. There,
Moreno observed two or three carpenters employed by
Respondent engaged in "prefabbing some roof trusses."
As testified by Moreno, he asked one of them to name
their employer and asked about the work they were
doing. Moreno was told that they were employed by
"Fortney and Weygandt (Respondent) out of Cleve-
land." As for the work , Moreno testified that he was told
that they were just "prefabbing" but "that the jobsite
wasn 't actually ready for construction because of some
delays with the foundations." Moreno asserted that he
did not take any immediate action because Respondent's
carpenters were about to leave and he planned on calling
Fortney when Respondent 's carpenters returned to the
project.
On or about November 25 , Moreno phoned Fortney
and spoke to him for the first time in about 18 months or
since the Foxmoor job. They reintroduced themselves
4 All dates refer to 1986 unless otherwise indicated
and spoke about anticipated manpower requirements on
the Confluence Park Restaurant job as well as wages and
benefits . In this regard , they spoke about the possibility
of covering or treating Respondent under a Market Re-
covery Agreement . Such an agreement , inter alia, would
permit an employer to pay a lower wage rate than speci-
fied in the Union-AGC Master Agreement . It also allows
union contractors to compete more equally with non-
union contractors to regain a market in an area recently
lost and/or dominated by nonunion contractors. No
agreement was reached on the phone but Fortney and
Moreno agreed to meet at the Confluence Park Restau-
rant site on December 5 to discuss the matter further.
On December 5, Fortney met Moreno as planned at
the Confluence Park Restaurant (Confluence) site. On
that occasion, Moreno was joined by another union offi-
cial, Frank Casto. Fortney joined Moreno and Casto in
their car where they discussed , inter aha, manpower
needs for the Confluence job and whether the Respond-
ent could be provided "market recovery" terms and con-
ditions. As for market recovery, Moreno indicated that
he would check with his superiors and with the AGC.
According to Fortney , while in the car, Moreno gave
him a package of materials (R. Exhs. 2-6) which includ-
ed the new 1986-1989 collective-bargaining agreement
between the AGC and the Union (R. Exh. 2) which
Moreno asked him to sign and a copy of the Market Re-
covery Agreement (R. Exh . 3). Moreno denied that he
asked Fortney to sign any document but, rather , he pro-
duced for Fortney the original Letter of Assent which
the latter had signed at the time of the Foxmoor job. It is
undisputed that Fortney indicated that he would abide
by that document (Letter of Assent ) containing his signa-
ture. However, Fortney testified that he also told
Moreno that he believed that the Letter of Assent was
no longer valid.
During the course of the discussion on December 5
Fortney insisted on carrying five of his own carpenters
on the Confluence job, but he also indicated that he
would require 10 to 15 additional employees within the
next I to 2 weeks and asked Moreno if he could satisfy
that need . Fortney also invited Moreno and Casto to
meet his project foreman , Steve Zsinko. Thereupon, they
left the car and proceeded to meet the foreman . Zsinko
raised a number of job-related questions which Moreno
put off discussing stating that he and Fortney would ad-
dress those matters at a later date. Moreno also stated
that he would discuss wages and market recovery pros-
pects with his boss and would call Fortney on Monday,
December 8.
Fortney testified that Moreno called him 2 or 3 days
later and asked him if he was going to sign the agree-
ment, and that Fortney responded that no decision had
been reached . According to Moreno , Fortney told him
in that phone conversation that there were still some
problems at the Confluence jobsite and referred him to
Zsmko. Moreno testified that he met Zsinko that same
day and was told by the latter that there were certain
job-related problems but that he would soon be in touch
with the Union to supply employees for that job. Later
that week Moreno assertedly stopped by the jobsite for
FORTNEY & WEYGANDT
an update from Zsinko and was again told about job
delays and that he was not yet ready to use the Union
for its labor pool. (Zsinko did not testify at the hearing.)
Moreno called Fortney again on December 15. Fort-
ney informed Moreno that he had mailed a letter to him
and that rather than discussing the situation over the
telephone, that Moreno would better understand the
Company's position after he read that letter. The letter,
dated December 15, 1986, was essentially a notice of ter-
mination and repudiation of the Letter of Assent (G.C.
Exh. 5). Thus, in pertinent part, it stated:
The purpose of this letter is to advise Capital
District Council of the United Brotherhood of Car-
penters and Joiners of America, AFL-CIO that
Fortney and Weygandt, Inc. does hereby terminate,
repudiate and declare null, void and unenforceable
the above referenced Letter of Assent for the rea-
sons set forth below.
As you will recall, the above-referenced Letter of
Assent was executed solely for the purpose of ob-
taining carpenters for work at the Foxmoor Store at
the Eastland Mall in Columbus, Ohio. The work-
force thus employed, consisting of a total of four
carpenters was a temporary workforce to perform
certain carpentry work at the project involved. At
the end of the project all of those carpenters were
permanently laid off and have never been re-em-
ployed by Fortney and Weygandt, Inc.
The agreement entered into by Fortney and
Weygandt, Inc. and the District Council, United
Brotherhood of Carpenters and Joiners of America,
AFL-CIO was a Section 8(f) agreement within the
meaning of the National Labor Relations Act. Such
a Section 8(f) agreement does not become binding
upon an employer in the construction industry
unless and until the union involved attains majority
status in the signatory employer's permanent and
stable workforce. To the extent that the four car-
penters temporarily employed at the above-refer-
enced job in 1985 were not and are not part of the
permanent and stable workforce of Fortney and
Weygandt, Inc. and the Capital District Council of
the United Brotherhood of Carpenters and Joiners
of America cannot demonstrate that it represents a
majority of the carpenters employed at the current
jobsite wherein Fortney and Weygandt, Inc. is per-
forming construction work, Fortney and Weygandt
does hereby terminate and repudiate the Letter of
Assent.
Thereafter, the attorneys for the Union and the Re-
spondent exchanged correspondence setting forth their
respective views concerning the continued viability of
the Letter of Assent and Respondent's contractual obli-
gations thereon. (See G.C. Exhs. 6, 7, 8, and 9.) Subse-
quently, the Union filed a grievance and a hearing was
held on March 12, 1987, before a joint panel of the
Union and the AGC. The Respondent elected not to
attend that hearing, challenging the panel's jurisdiction
and instead set forth its position in a letter dated March
9, 1987 (G.C. Exh. 11). The joint panel deadlocked over
the question of jurisdiction and failed to reach any deci-
869
sion (G.C. Exh. 12). No further action was taken over
the grievance and on June 15, 1987, the Union filed the
instant charge.
B. Discussion and Conclusions
1. The alleged renewal or evergreen provision
This case turns principally on whether the Letter of
Assent, which incorporated by reference the May 1,
1984 through May 31, 1986 AGC collective-bargaining
agreement, automatically renewed itself for another year
when neither the Union nor the Respondent provided a
60-day notice to the other to modify or terminate said
collective-bargaining agreement. The Letter of Assent,
by itself, did not expressly contain an automatic renewal
or so-called "evergreen" provision. On the other hand,
the referenced collective- bargaining agreement provided
for a year-to-year renewal where "either party" (AGC
or the Union) fails to provide a 60-day written notice
prior to the termination date to "either party" except as
follows:
An individual employer may modify and/or ter-
minate this agreement by notifying the other party,
in writing, sixty (60) days prior to May 31, 1985 of
his intent to modify and/or terminate this Agree-
ment following which, this Agreement shall termi-
nate as of May 31, 1985 for that employer only.
(G.C. Exh. 3, p. 7, art. XIII.)
It is undisputed that no timely written notice was sent
or received by the Respondent under the aforenoted pro-
vision or otherwise under the 1984-1986 AGC agree-
ment. The General Counsel contends that, as a result, the
terms of the 1984-1988 AGC agreement as applicable to
Respondent were automatically extended for 1 year to
May 31, 1987. In these circumstances, and on reliance on
the Board's decision in John Deklewa & Sons, 282 NLRB
1375 (1987), dealing with construction industry 8(f) ar-
rangements, as in the instant case, the General Counsel
further contends that the Respondent's letter dated De-
cember 15, 1986, rejecting any collective-bargaining obli-
gations "constitutes an unlawful mid-term repudiation."
The record disclosed that the Union provided timely
written notice to the AGC with regard to the 1984-1986
contract and that the same parties thereafter negotiated a
new 3-year agreement by its terms effective from June 1,
1986, to May 31, 1989. (G.C. Exh. 4.)
The Respondent contends "that the contractual obliga-
tions created by the Letter of Assent terminated on the
date of the expiration of the 1984-1986 Agreement." Ac-
cording to the Respondent, the language in that agree-
ment effectively foreclosed it from exercising any option
to modify or terminate and was never intended to apply
to employers similarly situated. Thus, Respondent points
out that under article XIII of the AGC agreement only
the multiemployer group (AGC) and the Union have the
option to modify or terminate 60 days prior to the termi-
nation date of that agreement. As for individual employ-
ers, under article XIII, they have such option only 60
days prior to May 31, 1985, or the first anniversary date
870 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and not the termination date.5 As such, the Respondent
correctly points out, individual employers are treated dif-
ferently from the multiemployer group of which the Re-
spondent is not a member. Here, the Letter of Assent
was not executed until July 1985, well after the anniver-
sary date, so that it appears, as contended by the Re-
spondent, that it had no option to modify or terminate
on any basis under that agreement. In any event, I find,
on the state of this record, for reasons noted below that
the evidence falls far short of establishing that the Re-
spondent and Union had contemplated successive or
future contracts or anything other than the then current
1984-1986 AGC contract.
First, as noted previously the Letter of Assent, by
itself, contained no renewal provision. Compare, W. B.
Skinner, Inc., 283 NLRB 989 (1987), (the "short-form"
document contained an express "evergreen" provision);
City Electric, 288 NLRB 443 (1988). (The Respondent's
"Letter of Assent-A" authorized the Association to act
as its collective-bargaining representative for successive
agreements unless terminated at least 150 days prior to
the contract's then current anniversary date.) Garmon
Construction Co., 287 NLRB 88, 89 fn. 6 (1987). (The
signed memorandum contained a provision which stated
that it would continue in effect unless timely notice of
termination was given.)
Second, the negotiations between Fortney and Moreno
did not touch upon the duration of the agreement. The
record disclosed that Fortney and Moreno spoke to each
other only once before the Letter of Assent was execut-
ed, and that was on the telephone. On that occasion,
their conversation focused on the union providing car-
penters for the Foxmoor job and nothing was said about
the terms of agreement. According to Fortney, he had
agreed to a project only contract. Moreno acknowledged
that Fortney did not ask him about any of the terms con-
tained in the Letter of Assent (Tr. 76-77). Further,
Moreno testified that all he told Fortney about the docu-
ment was that it is a basic agreement which all contrac-
tors sign who deal with the Union (Tr. 77). Moreno did
not participate in negotiating any of the master agree-
ments nor was he involved in drafting the language in
the Letter of Assent. In fact, Moreno did not know who
drafted the language in question. The only other witness
to testify regarding the reach of the renewal provision in
the AGC contract was Richard Hobbs, executive direc-
tor for the AGC and one who participated in negotiating
the 1984-1986 master agreement. According to Hobbs,
the assent form binds a contractor only to the termina-
tion date of the referenced collective-bargaining agree-
ment with no renewal features. In these circumstances,
and in the absence of any other probative evidence tend-
ing to support the General Counsel's "evergreen" con-
5 The General Counsel contends that the 1984-1986 AGC contract
contains misprints and that no reliance should be placed on the dates set
forth in art XIII. While there is unrebutted record testimony indicating
that the printed execution date is in error, I find, contrary to the General
Counsel, that without more, it does not, follow that the May 31, 1985 date
as it relates to individual employers is also in error . In this connection, it
is noted that the 1986-1989 AGC contract provides the same relative
option for individual employers to modify or terminate that agreement on
the anniversary date (G C Exh 4 )
tention, I find no cogent basis to read renewal features
into that assent document where, as here, it is totally
silent on the subject of duration.
In rejecting the General Counsel's "evergreen" con-
tention, I'have not relied on the Respondent's additional
argument that as Moreno also requested Fortney to sign
the new AGC 1986-1989 agreement, this tends to belie
the notion that the former believed the parties were then
(the Confluence job) governed by an automatic renewal
or 1-year extension.6 Thus, I do not find that Moreno's
request to have Fortney's signature on a new full-term
agreement is tantamount to an admission that the assent
form was without continuing vitality for at least another
year. See Victor Block, Inc., 276 NLRB 676, 679 (1985).
Having found that the Letter of Assent created a con-
struction industry 8(f) arrangement which ended when
the referenced collective-bargaining agreement terminat-
ed, I turn now to consider whether a collective-bargain-
ing relationship survived that agreement. Thus, it is also
alleged that the Union by virtue of "Section 9(a) of the
Act, has been, and is, the exclusive representative" for
the alleged appropriate unit. One of the major principles
set forth by the Board in Deklewa, supra at 1377, 1378 is
that "upon the expiration of 8(f) agreements , the signato-
ry union will enjoy no presumption of majority status,
and either party may repudiate the 8(f) bargaining rela-
tionship." There, the Board also noted, at footnote 41,
that it will require the party asserting the existence of a
9(a) relationship to prove it.
In the instant case , the record is barren of evidence in
support of theUnion's majority status. Thus, I find, in ap-
plying the aforenoted Deklewa principle, that as the Gen-
eral Counsel had only established that the parties had an
8(f) relationship, the Respondent was free to repudiate
the bargaining relationship when the relevant collective-
bargaining agreement terminated . See also Jack Welsh
Co., 284 NLRB 378 (1987).
In sum, I find that as no 9(a) bargaining obligations
have been established, that the Respondent's repudiation
of the Union subsequent to the expiration date of the
1984-1986 AGC agreement was lawful and not in viola-
tion of Section 8(a)(5) of the Act.
2. Other issues
The Respondent has also raised variously that the
charges are time-barred by Section 10(b) of the Act; that
the Letter of Assent was a project-only agreement; that
the alleged unit is not an appropriate one; that the Board
should defer to the arbitration process; and, that there
should be no retroactive application of the Deklewa prin-
ciples.
Having found, for reasons discussed above, in favor of
the Respondent on the central issue dealing with alleged
renewal obligations and that the Respondent had not vio-
lated Section 8(a)(5) of the Act, I find it unnecessary to
discuss at length the Respondent's other defenses. I find
6 In crediting Fortney over Moreno on this point, it is noted, inter alia,
that Moreno's testimony was at odds with his affidavit in certain key re-
spects and at other times his testimony was inconsistent
FORTNEY & WEYGANDT 871
however that Respondent's other defenses are without
merit.
As for the timeliness of the charges, the record dis-
closed that there was no clear repudiation until Fortney's
letter of repudiation dated December 15, 1987, and re-
ceived by the Union on or about December 18, 1987. As
the underlying charges were filed on June 15, 1988, and
within 6 months of the date the Union learned of Re-
spondent's repudiation, the charges were timely filed.
See, e.g., Meekins, Inc., 290 NLRB 126 fn. 1 (1988).
I also reject Respondent's contention that the parties
had intended a "project-only" agreement. The record
disclosed that such arrangements are rare in the industry
and particularly within the jurisdiction of the Union and
AGC. As testified by Hobbs, Respondent's own witness,
a contractor signing an "assent form" is binding himself
to the Master Agreement and not a project (Tr. 186).
Even Fortney belatedly acknowledged that Moreno
never told him that under the assent form the Union was
going to supply labor only for the Foxmoor store (Tr.
320).
On the unit issue, I find contrary to Respondent that
in the construction industry, a unit limited to employees
(here carpenters) employed by the employer within the
jurisdiction of the union is an appropriate unit for collec-
tive-bargaining purposes. See, e.g., Hageman Under-
ground Construction, ,253 NLRB 60, 63 (1980); General
Engineering 283 NLRB No. 150 (May 18, 1987) (unpub-
lished decision) It is also noted that Respondent's hard
core employees normally work outside the Columbus,
Ohio area (Union's jurisdiction) and may constitute a
separate appropriate unit.
As for Respondent's deferral defense, it is noted that
the Respondent not only objected to the arbitration
process and refused to be bound by any decision ren-
dered by the arbitration panel, it also threatened to file
NLRB charges if the panel continued to pursue the sub-
ject in question. In any event, the panel was deadlocked
and never reached a decision. In Olin Corp., 268 NLRB
573 (1984), the Board held that it would defer to an arbi-
tration award where the proceedings appear to have
been fair and regular, all parties have agreed to be
bound, the arbitrator has adequately considered the
unfair labor practice issues, and the arbitrator's decision
is not clearly repugnant to the Act. Here, applying Olin,
deferral is inappropriate noting particularly that the Re-
spondent refused to submit to the jurisdiction of the arbi-
tration panel and that in any event the panel was dead-
locked and unable to reach a definitive result on the sub-
stantive issue.
Finally, as the Board in Deklewa has instructed that
retroactive application of the principles set forth therein
is appropriate, I find that the Respondent's further de-
fense is also without merit. Deklewa, supra at 40-41.
CONCLUSION OF LAW
The General Counsel has not established by a prepon-
derance of the credible evidence that the Respondent has
violated the Act as alleged in the complaint.
[Recommended Order omitted from publication.]