Frehner Construction Co., Inc.

National Labor Relations Board - Administrative Judge Opinions

Nov 16, 2006

32-CB-005976 (N.L.R.B. Nov. 16, 2006)

JD(SF)–59–06

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
SAN FRANCISCO BRANCH OFFICE
DIVISION OF JUDGES
LABORERS’ INTERNATIONAL UNION OF
NORTH AMERICA, LOCAL UNION NO. 169
and Case 32-CB-5976
FREHNER CONSTRUCTION CO., INC.
D. Criss Parker, Esq., of Oakland, CA,
appearing on behalf of the General Counsel
James T. Winkler, Esq., for Littler Mendelson,
of Las Vegas, NV, appearing on behalf of the
Charging Party
Michael E. Langton, Esq., for the
Law Offices of Michael E. Langton,
of Reno, NV, appearing on behalf of
the Respondent
DECISION
BURTON LITVACK: ADMINISTRATIVE LAW JUDGE
Statement of the Case
The unfair labor practice charge in the above-captioned matter was filed by
Frehner Construction Co., Inc., herein called Frehner, on August 8, 2005, and, after an
investigation and consideration of the legal issues, on March 29, 2006, the Regional
Director of Region 32 of the National Labor Relations Board, herein called the Board,
issued a complaint, alleging that Laborers’ International Union of North America, Local
Union No. 169, herein called Respondent, engaged in, and continues to engage in, acts
and conduct violative of Section 8(b)(3) and Section 2(6) and (7) of the National Labor
Relations Act, herein called the Act. Respondent timely filed an answer, denying the
commission of the alleged unfair labor practices and raising certain affirmative
defenses. Pursuant to a notice of hearing, a trial before the above-named
administrative law judge was held on May 17 and 18, 2006 in Reno, Nevada. During
said trial, all parties were afforded the right to call witnesses on their behalf, to cross-
examine witnesses called by other parties, to offer into evidence all relevant
documentary evidence, to argue their legal positions orally, and to file post-hearing
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briefs. Said documents were filed by counsel for the General Counsel, counsel for
Frehner, and counsel for Respondent, and each brief has been carefully examined.
Accordingly, based upon the entire record herein, including the post-hearing briefs and
my observations of the testimonial demeanor of the several witnesses, I make the
following:
FINDINGS OF FACT
Jurisdiction
At all times material herein, Frehner, a State of Nevada corporation with an office
and place of business in North Las Vegas, Nevada, has been engaged in the building
and construction industry in the construction of roads and buildings for government
agencies and other entities. During the 12-month period immediately preceding the
issuance of the instant complaint, which period is representative of its business
activities described above, Frehner, in the course and conduct of its business
operations, purchased and received goods and services valued in excess of $50,000
directly from suppliers located outside the State of Nevada. Frehner is now, and has
been at all times material herein, an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
Labor Organization
Respondent is now, and has been at all times material herein, a labor
organization within the meaning of Section 2(5) of the Act.
The Issues
The instant complaint alleges that Respondent engaged in acts and conduct
violative of Section 8(b)(3) of the Act by, since on or about July 22, 2005, failing and
refusing to meet with Frehner with respect to negotiating a collective-bargaining
agreement covering certain of its employees on behalf of whom Respondent is the
bargaining representative. Respondent denies that it was obligated to meet and
bargain with Frehner inasmuch as Frehner was, and is, lawfully bound to a collective-
bargaining agreement with it through and including July 15, 2010 covering the same
bargaining-unit employees. In this regard, Respondent argues that Frehner belatedly
withdrew its authorization for a multi-employer bargaining association to bargain for said
agreement on its behalf and that, in any event, by its actions, Frehner has adopted said
agreement. Contrary to Respondent, while not denying the existence of the latter
agreement, the General Counsel argues that Frehner is not a party to said agreement
as it did, in fact, withdraw its authority for a multi-employer association to bargain on its
behalf prior to the commencement of actual negotiations for the agreement and that
Frehner has never adopted the above contract.
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The Alleged Unfair Labor Practices
The Facts
The record establishes that Frehner is a State of Nevada corporation with offices
in North Las Vegas, Elko, and Sparks, Nevada and Park City, Utah; that it acts as a
general contractor in the building and construction industry primarily engaged in
performing “heavy” highway and bridge construction work including all grading, paving,
foundation, and bridge work; that, in performing the above-described work, Frehner
employs its own work force but subcontracts out so-called specialty tasks including
fencing, traffic control, sign installation, and electrical work; and that, for its construction
projects in northern Nevada, it utilizes a work force of approximately 100 employees,
including workers classified as laborers, during peak periods. Michael Pack is the
president of Frehner, and Sean Stewart has been its general counsel since 2004. They
maintain offices at Frehner’s corporate office in North Las Vegas; area managers, Fred
Courrier and Gary Isaman, project managers, and superintendents are based at its
northern Nevada office in Sparks. The record further discloses that Frehner has been a
long-standing employer-member of the Nevada Chapter of the Associated General
Contractors of America, Inc. (AGC), which is a multi-employer association comprised of
employers, who are engaged in the building and construction industry and which
negotiates collective-bargaining agreements, on their behalf, with unions, including
Respondent, which represent their employees employed in the various construction
crafts. Through its membership in AGC, Frehner has had, at least, a 20-year bargaining
relationship with Respondent and has been bound to successive collective-bargaining
agreements, covering its full-time and regular part-time laborer employees, between
AGC and Respondent, including an agreement effective from July 16, 2000 through July
15, 2005.1 At all times material herein, John D. Madole has been the executive director
of AGC, and Richard Daly has been the business manager/secretary treasurer of
Respondent.
In May 1995, just prior to the commencement of AGC’s negotiations for an
agreement, which ultimately became effective from 1995 through July 15, 2000, with
Respondent, Garth Frehner, on behalf of Frehner, entered into a proxy agreement with
AGC, which, by its terms, appointed the latter to act as Frehner’s “lawful proxy, to
represent me and negotiate a labor agreement on my behalf, and if such agreement is
satisfactory to my proxy to sign such labor agreement ….” At or prior to the expiration
of this agreement, AGC and Respondent engaged in bargaining for their agreement,
which became effective from 2000 through 2005. On behalf of Frehner, Michael Pack
was a member of the AGC’s bargaining committee and participated in the contract
negotiations, and there is no dispute that, pursuant to the above-described proxy,
Frehner became bound to, and adhered to, the terms and conditions of employment set

1 AGC’s agreement with Respondent covered the work of Frehner’s laborers on its
projects within the State of Nevada except those located in Clark and Lincoln counties,
the town of Tonopah, and that portion of Nye and Esmeralda counties lying south of
Highway 6.
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forth in the latter agreement. Thus, according to general counsel Stewart, Frehner
complied with the agreement as “we felt we were bound to it, we were bound to this
agreement …” and as “… it was my understanding we had a proxy with the AGC at the
time ….”2

While Frehner had no difficulty with adhering to any of the provisions of the
existing agreement for the initial two years of the contract period, the situation suddenly
changed in 2003. Stewart testified that, on Respondent’s projects in Northern Nevada,
it normally subcontracted the traffic control, striping, signage, permanent signage, and
barrier rail work to United Rentals, which also was party to a collective-bargaining
agreement with Respondent covering its laborer employees, but that, over time, United
Rentals had been submitting bids for less of the above-described work. Then, in 2003,
in the midst of work on a freeway interchange project, known as the “spaghetti bowl,” for
Frehner in Reno, Nevada Rentals abruptly ceased work entirely,3 and “… [Frehner] had
to scramble in the middle of that [project] to replace United ….” The problem for
Frehner was that Section 2 of the Laborers’ collective-bargaining agreement required a
general contractor to be responsible “… for all actions of a subcontractor, including
payment of wages and fringes, jurisdiction assignments and the observation of this
agreement.” In northern Nevada, there existed no union signatory subcontractors,
which performed all the work performed by Nevada Rentals, and, upon ceasing
operations in the area, the latter sold many of its assets to a non-union contractor,
Nevada Barricade, which then became the only subcontractor bidding for certain types
of the work, which previously had been performed by Nevada Rentals. In these
circumstances, as its employer-members, including Frehner, sought relief from what
they perceived as an overly restrictive subcontracting clause, AGC representatives
engaged in discussions with Richard Daly regarding “… what to do in a situation where
the union signatory subcontractors were not available” and, according to Stewart, while
“there were concessions made by both [parties] on certain areas of work … traffic
control with the union was one area where they refused to give us any [relief] in relation
to Nevada Barricade.”4 Stewart further testified that, while Respondent had informed

2 Michael Pack also conceded the validity of the proxy as of July 26, 2004.
3 According to Sean Stewart, United Rentals was “… having issues with the
Laborers’ Union and they no longer could be competitive in the area.” He added that
United Rentals continues to do business in southern Nevada and Frehner continues to
do business with “certain divisions” of the company.
4 Respondent’s Exhibit No. 1 is a Memorandum of Understanding between AGC and
Respondent, dated July 31, 2003 with regard to solving the problem caused by an
insufficient number of qualified signatory bidders to perform pavement marking and
highway striping work. The memorandum of understanding established the
circumstances and limits whereby the subcontracting provision of the 2000 through
2005 agreement would be waived. Apparently, Respondent agreed to waive
compliance with the subcontracting provision for all work of subcontractors prior to July
31, 2003 but specifically excluded four Frehner projects. With regard to Frehner’s four
projects, it received relief from the subcontracting provision for the pavement marking
and highway striping work of subcontractors performed on or after July 1, 2004.
Excluded was traffic control, permanent signage, and guardrail work.
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Frehner that it recognized the difficulties the former experienced in locating union-
signatory subcontractors and expressed a willingness to work with the Charging Party,
the latter did not believe Respondent’s sincerity as Daly had always expressed
“dissatisfaction” with Nevada Barricades and “would turn the other eye” when other non-
union subcontractors were mentioned. What particularly angered Pack was that
Respondent’s prior interpretation of the subcontracting provision had been to require
general contractors to use signatory contractors first as subcontractors but, if none were
available, to permit the general contractors to use non-signatory contractors. However,
according to Pack, Daly had changed Respondent’s policy so as to require the use of
only union signatory subcontractors, “… and … that’s when we had our differences.”
While Pack engaged in ultimately fruitless individual discussions with Daly,
seeking complete relief from the strict language of the aforementioned contractual
subcontracting provision, in early 2004, AGC’s labor policy committee held meetings in
order to discuss whether to approach Respondent, concerning early informal
discussions5 for extending their existing collective-bargaining agreement and avoiding a
possible strike or lockout situation, and decided to do so.6 Thereafter, in the spring of
that year, John Madole contacted Respondent regarding engaging in such informal
contract discussions. Richard Daly readily agreed to AGC’s request, and, on June 1,
2004, Daly and Madole signed a document, entitled Memorandum of Understanding, in
which they stated their agreement that
The parties will engage in informal discussions with respect to the possibility of
amending, modifying, or renewing the Collective Bargaining Agreement prior to
the formal expiration of the Collective Bargaining Agreement. If the parties,
through their informal discussions, arrive at a mutual agreement and
understanding as to the terms and conditions of any such proposed amendment,
modification, or renewal, at that time, the parties will formally open the …
Agreement to make such amendments, modifications, and/or renewals
consistent with the mutual understanding that is derived from the informal
discussions.

5 According to John Madole, notwithstanding that the existing contract’s
termination language was explicit the agreement would remain in effect until July 15,
2005 “… unless either party to the agreement shall give written notice to the other of a
desire to change, modify, or terminate the Agreement not more than 90 days nor less
than 60 days prior to July 15, 2005 …,” in the past, the parties had utilized a procedure
for obviating such a formal reopening of their contract by engaging in what were termed
“informal discussions.”
6 According to Mark Sullivan, AGC’s assistant executive director during 2004,
Frehner was aware of these meetings as “… we call everybody on our list. Anybody
that we have a proxy for … as a courtesy…. I know what I would typically do is I would
just contact the local office here, and I believe the person … would either be Bob
Perretto or Fred Courrier ….” Further, Sullivan thought that Courrrier attended at least
one of the labor policy committee meetings.
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Further, AGC and Respondent agreed that the memorandum of understanding did not
constitute formal notice, by either party, to terminate or open the existing agreement for
negotiations and that, if the “informal discussions” failed, the formal termination and
opening language of the existing collective-bargaining agreement would remain in
effect. As to why the parties termed what they were about to enter into as “informal
discussions,” Madole testified that “… unless both parties reached complete agreement
on mutual desires … we would walk away and finish the agreement in 2005” and that
they could avoid the legal issues, attendant to collective bargaining, including impasse,
strikes, and lockouts,7 Based upon the memorandum of understanding, on June 22,
July 8, July 11, and July 21, 2004, AGC and Respondent engaged in their “informal
discussions” for a successor collective-bargaining agreement, and, according to Madole
and Daly, the parties concluded their informal discussions on the latter date with all
participants shaking hands on an apparent deal. According to Mark Sullivan and
Madole, during their four meetings, the parties discussed all “the typical elements of a
collective-bargaining agreement,” including wages and other terms and conditions of
employment; sign-in sheets were distributed; there were proposals made on various
issues by both parties; positions were modified after back and forth discussion; and
agreements were reached.8 According to Daly, no participant believed anything less
than bargaining had occurred.
Respondent was charged with mailing a copy of the June 1 memorandum of
understanding to each AGC signatory contractor, and Michele King, the office manager
for Respondent, testified that she mailed copies of the memorandum of understanding,
each attached to a cover letter, dated June 14 and signed by Daly, to Frehner’s North
Las Vegas and Sparks offices.9 While Sean Stewart denied having seen the
memorandum of understanding and the cover letter prior to early 2005,10 it is clear that

7 Likewise, Mark Sullivan believed the parties labeled their talks informal discussions
as “… we wanted to make sure … it was for protection from both sides …. We wanted
to just have the opportunity to sit down and have nobody beholden to anything ….”
Sullivan did not believe legal protection was primary in the parties’ mindset for the
discussions. “I think it was more what was going on the marketplace, we were trying to
head off … a problem that we may have down the road for both the labor side and [the]
management side ….” On the other hand, according to Richard Daly, “I think both sides
were worried about either a strike or a lockout. Neither side wanted to wait until 2005.”
8 Madole testified that, during the informal discussions, Respondent never offered
proof of majority support among the employees of any signatory contractor, including
Frehner.
9 Respondent’s Exhibit No. 2 is the address label sheet, utilized by Respondent for
mailing the Memorandum of Understanding and attached cover letter to signatory
contractors, including Frehner. The document shows the two office addresses for the
latter
10 According to Stewart, when mail not addressed to any particular individual arrives
at Frehner’s North Las Vegas office, it “… is opened by the receptionist in front and the
documents are given to the people responsible for those duties. Any correspondence
… from unions … were given to either Mike Pack or myself.” Stewart added that Pack
never told him he had seen the memorandum of understanding prior to 2005, and if he
Continued
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Frehner was well aware of the occurrence of the above-described informal discussions.
Thus, according to Michael Pack, he first heard about them from one of Frehner’s
northern Nevada area managers,11 either Fred Courrier or Gary Isaman, and the area
manager told him that “… I’ve got a letter here from AGC about informal discussions
with the Laborers. And I just said …that’s not for us to go to.”12 Mark Sullivan
corroborated Pack on this point, testifying that, after attending one of the labor policy
committee meetings, Courrier “… had some communication with … Mike Pack, and
Mike told him not to attend any meetings and that was the end.” Notwithstanding
Respondent’s mailings, Pack maintained that he was never notified by AGC with regard
to the informal discussions between itself and Respondent and testified that no one
from Frehner participated in the said informal discussions, and, in any event, “… they’re
just informal discussions, they really don’t mean anything when it came time to have a
formal discussion ….” Sullivan corroborated Pack, stating he did not contact Frehner
with regard to the informal discussions with Respondent as, based upon what Courrier
told him, he did not believe it “necessary” to do so.
The record reveals that the apparent agreement, which was reached by
Respondent and AGC, at the conclusion of their July 21, meeting was, pending
ratification by Respondent’s employee-members,13 to extend their existing collective-
bargaining agreement through 2010 with certain agreed-upon changes and to execute
another memorandum of understanding, which would constitute the formal opening of
their existing collective-bargaining agreement to enable them to incorporate the agreed-
upon changes reached through their informal discussions. The only corroboration for
AGC’s and Respondent’s assertion that complete agreement was reached is found in
Madole’s notes for this meeting on which he wrote and circled “settled/9:45AM” at the
bottom. In fact, however, complete agreement was not attained on July 21. Thus, the
parties did not agree upon an effective date for the contract extension, and, according to
Daly, their only agreement on this point was “… to have it effective as soon as we could
physically get all of the agreed-upon changes in writing.” Moreover, several drafts of
the proposed memorandum of understanding, most of which are dated between July 27
and July 30, circulated between the parties, and examination of the drafts, General
Counsel’s Exhibits Nos. 25 through 28 patently reveals the absence of agreement on
the contract extension effective date until the latter date. In this regard, Exhibit No. 25
bears two effective dates—October 1, 2004 for fringe benefits and August 1 for all other
provisions; Exhibits Nos. 26 and 28 state as the effective date October 1, 2004; and the
first page of Exhibit No. 27 contains a crossed-out sentence establishing July 30, 2004
as the effective date and the second page of the document has October 1 crossed out
and July 30 interlined above it.
_________________________
had seen it, “he would have discussed it with me ….”
11 Pack asserted that he had never seen the June 1, 2004 Memorandum of
Understanding or Respondent’s cover letter until the first day of the trial.
12 According to Pack, other than the subcontracting provision, he was satisfied with
the terms of the existing collective-bargaining agreement, and “… there was no use in
us going to informal discussions and talking about other points.”
13 According to Madole, Daly assured him that their agreement would be ratified, and
Daly testified that he is authorized to consummate agreements without ratification.
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Michael Pack testified that he did not become aware that the informal
discussions between AGC and Respondent had resulted in an agreement until July 26
or 27. According to Frehner’s president, on one of the above dates, he received a
telephone call from Madole, who told Pack that he was aware Frehner was unhappy
with the subcontracting provision of the existing collective-bargaining agreement, “and
that’s the reason that he knew to give me a call.” Madole said that AGC’s discussions
with the Laborers had been “informal,” but “have gone on in an informal tone to more of
a formal tone … and it looks like we’ll enter into some type of formal negotiations with
the Laborers ….” Madole continued, telling Pack that the existing subcontracting clause
language would not be changed, and the latter replied “… unless we've got it in writing
with regards to how to move forward with non-signatory subcontractors, then we could
not sign that agreement. To this, Madole responded that, if Frehner did not want to be
party to the new collective-bargaining agreement, Pack had to withdraw its existing
proxy.14 During cross-examination, asked if Madole told him that the parties had
reached a tentative understanding with regard to a new agreement, Pack replied, “…
not to a new contract. It was an understanding of going ahead with a formal discussion
towards a new contract.” He then added, “I believed that the parties were very close to
reaching agreement under a formal basis.” On this latter point, Pack was impeached by
his pre-trial affidavit wherein he stated that, during their telephone conversation, Madole
said “… that the AGC had reached a tentative understanding with the union for a new
collective-bargaining agreement.” With regard to their telephone conversation, which he
recalled occurred on July 26, Madole testified that Pack placed the telephone call to him
and “… expressed to me that he had just learned that we had reached some sort of an
agreement on an extension of the [existing contract] and that he did not wish to be
bound.… I told him I wasn’t exactly sure what his position was but that he asked me
what he might do and I said, withdraw your proxy and perhaps that will get you out of
being extended on the agreement. “15 Pursuant to Madole’s advice, on July 27, on
behalf of Frehner, Pack sent the following letter to AGC’s office:
Re: Withdraw of Proxy Laborers’ International Union
Gentlemen:
You are hereby notified that Frehner Construction Company, Inc. herewith
revokes any or all proxies heretofore given you with respect to negotiations on a
new bargaining agreement with the Laborers’ International Union of North
America, Local 169.
You are not authorized nor empowered to act as proxy holder or agent on our
behalf in any negotiation, nor to execute any bargaining agreement on our

14 According to Pack, Madole never said he thought Frehner was bound to the 2010
contract extension.
15 According to Madole, he offered no assurance to Pack that withdrawing Frehner’s
proxy would enable it not to be bound to the 2010 extension of the AGC contract with
Respondent. Madole averred that he has been cautioned by AGC’s attorney not to offer
legal advice. Further, asked by me if, prior to their telephone conversation, he had any
indication whether Frehner wanted, or did not want, to be bound to the Laborers’
contract extension, Madole replied, “I was unaware of anything either way.”
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behalf, with any of the foregoing named Union.
The withdrawing of our proxy is for future agreements only, not the agreement to
which we are currently bound to with the Laborers’ International Union of North
America Local 169, which is currently in place until July 15, 2005.
Also, on the same day, Pack telephoned Daly at Respondent’s office and informed him
of the contents of the above letter to AGC. Pack testified that he and Daly discussed
the fact that the only issue between Respondent and Frehner was the subcontracting
clause, and “he had his position; we had our position …. I said I’m writing a letter to
withdraw my proxy from the AGC, and I’m going to look forward to future negotiations
for a new contract when this contract expires…. [H]e expressed his opinion once again
…. that if he can get the signatory general contractors to force all the subcontractors to
become signatory, then that would solve the problem.”16
Notwithstanding Daly’s testimony that such was unnecessary, Respondent’s
employee-members ratified the extension of the collective-bargaining agreement on
July 29, and, the next day, Respondent sent a letter to all signatory contractors,
including Frehner, in which Daly stated:
On June 14, 2004 you were sent a notice that [Respondent and AGC] were going
to engage in informal discussions with respect to the possibility of amending,
modifying or renewing the collective-bargaining agreement prior to the formal
expiration date …. All contractors were invited to attend or to contact the AGC
concerning such discussions.
On July 20, 2004 the Union and the AGC as a result of the informal discussions
arrived at a mutual agreement and understanding pending ratification by the
members of Laborers’ 169 as to the terms and conditions of the proposed
amendments, modifications and extensions and/or renewals of the [contract],
accordingly the Union and the AGC agreed to formally open the [existing
contract] to make the [agreed upon changes] ….
On July 30, 2004 [Respondent and AGC] formally opened the Laborers’ Master
Agreement and agreed … to amend, modify, extend and/or renew the [existing
collective-bargaining agreement].
As stated in the above letter, that same day, Daly and Madole entered into a
Memorandum of Understanding, dated July 30, 2004. Said document states, in part:

16 Corroborating Pack’s testimony that he orally informed Daly of Frehner’s
withdrawal of the proxy is Daly’s request to Madole that the latter send to Respondent a
copy of Pack’s July 27 letter. Madole did so on August 13, 2004.
Daly testified that, on July 27, Pack left him a voice mail message regarding the
withdrawal of Frehner’s proxy from AGC and that he returned Pack’s telephone call
either that day or the next. During their conversation, “… Mike Pack indicated … that
they were going to withdraw their proxy with the AGC and that they weren’t going to be
bound to the 2010 agreement …. I said I don’t believe that you can withdraw your proxy
after we’ve reached agreement.”
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WHEREAS, as a result of the informal discussions, the Union and the AGC have
arrived at a mutual agreement and understanding as to the terms and conditions
of the amendments, modifications, extension, and/or renewal of the existing
laborers’ Master Agreement;
Therefore, the Union and the AGC agree as follows:
The Union and the AGC will formally open the existing … Agreement for the sole
and exclusive purpose of extending a successor … Agreement that incorporates
the amendments, modifications, extension and/or renewal that have been agreed
to during the informal discussions.
The Successor Master Labor Agreement shall be effective July 30, 2004. The
agreed to amendments, modifications, extension and/or renewal derived from the
informal discussions shall be incorporated by reference … and shall remain in full
force and effect to and including July 15, 2010 ….
There is no dispute that, pursuant to Pack’s statement in his July 27 letter,
Frehner continued to adhere to the terms and conditions of employment set forth in the
2000 through 2005 collective-bargaining agreement between Respondent and AGC.
Then, in approximately February or March 2005, Daly and Respondent’s counsel met
with Pack and Sean Stewart in Frehner’s North Las Vegas office. Prior to the meeting,
Stewart sent a subcontracting proposal to Respondent, but the latter failed to respond.
According to Stewart, during the meeting, Daly gave Stewart a copy of the June 14,
2004 memorandum of understanding between AGC and Respondent, and “… the
substance of our conversation … was, how we address the subcontracting language
contained in the 2005 agreement, so as to make it compatible with our work schedule
and our ideas going forward.” Thereafter, on March 24, 2005, Respondent sent to
Frehner a recognition demand letter, stating that it “… represents a majority of the
laborers in the Laborers’ Bargaining Union (sic) employed by the Company in the
territorial jurisdiction of the Union …” and demanding recognition as the “… exclusive
representative under Section 9(a) of [the Act].” Frehner did not reply, and, on May 4,
Respondent filed a petition in Case No. 32-RC-5348 with Region 32 of the Board,
seeking certification as the Section 9(a) bargaining representative of Respondent’s
laborer employees within its territorial jurisdiction. On May 16, Frehner’s attorney wrote
to Region 32 that Frehner would be willing to proceed to an election in a “stipulated”
single employer bargaining unit. Meanwhile, on May 9, Stewart sent a letter to
Respondent, giving notice, pursuant to the termination provision of the 2000 through
2005 collective-bargaining agreement between AGC and Respondent, of Frehner’s
intent to terminate the agreement. In his letter, Stewart noted that Frehner had
previously withdrawn authority from any other entity, including AGC, to bargain on its
behalf. Daly replied by letter, dated May 18, stating that Respondent’s notice was not
timely inasmuch as AGC and Respondent previously had extended their agreement
through 2010 at a time when AGC continued to hold Frehner’s valid proxy to bind the
latter to said extension. Thereafter, in June 2005, an NLRB-conducted election was
held in which Respondent received a majority of the valid votes cast. Frehner did not
contest the result of the election, and, on July 18, 2005, the Regional Director of Region
32 of the Board certified Respondent as the exclusive bargaining representative of the
laborer employees of Frehner within the territorial jurisdiction of Respondent.
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Six days prior to the Board’s certification, Stewart, on behalf of Frehner, sent a
letter to Respondent, accepting the result of the Board election and extending
recognition to Respondent as the Section 9(a) representative of its laborer employees
within Respondent’s territorial jurisdiction.17 Also, Stewart wrote that “Frehner requests
that negotiations commence between Frehner and Laborers for a new collective-
bargaining agreement … under which both sides may continue to operate” and that
Frehner would continue to abide by the terms and conditions of the 2000 through 2005
collective-bargaining agreement until agreement on a successor was reached by the
parties or until bargaining resulted in an impasse. Ten days later, on July 22, Daly
wrote a letter to Stewart and, essentially, refused to engage in bargaining with Frehner,
stating that Respondent believed Frehner was, and remained, bound to the recently
completed 2005 through 2010 contract extension agreement between AGC and
Respondent, that, pursuant to Bonanno Linen Service v. NLRB, 454 U.S. 404 (1982)
and Retail Associates, 120 NLRB 388 (1958), Frehner’s withdrawal of its proxy was
untimely, and that Respondent would be prepared to bargain with Frehner “only at the
appropriate time.” On July 29, Stewart replied to Daly by letter, stating Frehner’s
disagreement with the legal conclusions set forth in his July 22 letter and reiterating
Frehner’s request to commence bargaining on a successor collective-bargaining
agreement, and, on August 4, Daly, by letter, replied to Stewart, stating that
Respondent was “… firm in our position that your request is not timely ….”
Sean Stewart testified that, notwithstanding AGC’s and Respondent’s extension
of their 2000 through 2005 collective-bargaining agreement until 2010, Frehner “… [has]
tried to follow the [2000 through 2005] agreement in all that we do …. To my knowledge
we were careful to implement the old … contract and not use any of the new
information,” including the new wage rates. The record establishes that Section 26 of
the collective-bargaining agreement between Respondent and AGC requires a
signatory contractor to pay, on behalf of each laborer employee, a “working
assessment” payment,18 commonly referred to as the dues checkoff, to Respondent19
for the operation of its hiring hall and the building trades assessment fund and that, from
October 2004 through October 2005, Frehner paid the dues checkoff assessment at the
rate of 44 cents per hour for each laborer employee. According to Richard Daly, the
foregoing contractual dues checkoff payment amount went into effect on October 1,
2004; it represented a one cent per hour increase over the previous checkoff amount;
and the increase was based upon a wage increase, which went into effect on October 1

17 According to Stewart, he sent the latter as “we had recently received the results of
the election, it was my understanding that we were now a single employer unit with a
9(a) relationship, and we were coming close to [the deadline for terminating the existing
2000 through 2005 collective-bargaining agreement], and I wanted to let the Union
know that … we wanted to bargain for a new agreement and … we would continue
under the old agreement.”
18 Frehner deducted an amount, calculated at 2.25 percent of the hourly wage rate,
from each laborer’s gross wages.
19 The total dues checkoff amount for all of a contractor’s laborers is paid to a trust
funds administrator on a monthly basis, and the trust funds administrator transmits the
payment to Respondent.
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for laborers as a result of the agreement reached by the AGC and Respondent on July
30, 2004.20 Daly added that, between October 2004 and October 2005, no one from
Frehner ever contacted him, contending that the increase in the checkoff was a mistake,
and that Frehner would no longer pay the increased amount.21 Contrary to Daly, Sean
Stewart testified that an individual in Frehner’s payroll department informed him that, in
October 2004, pursuant to the contractual formula, the dues checkoff amount would
have increased from 43 cents to 44 cents notwithstanding the October 1 wage increase
established by the 2010 contract extension agreement.22 Moreover, Frehner refused to
pay an additional checkoff increase in October 2005 on grounds that a new contract
between Frehner and Respondent had not been executed.23
Legal Analysis
The complaint alleges that, commencing on July 22, 2005, Respondent engaged
in, and continues to engage in, acts and conduct violative of Section 8(b)(3) of the Act
by failing and refusing to meet and bargain with Frehner concerning a collective-
bargaining agreement between the parties. In this regard, Section 8(d) of the Act
defines bargaining collectively as “… the performance of the mutual obligation of the
employer and the representative of the employees to meet at reasonable times and
confer in good faith with respect to wages, hours, and other terms and conditions of
employment or the negotiation of an agreement ….” In these regards, it is, of course,
axiomatic that an employer violates Section 8(1) and (5) of the Act by failing and
refusing to meet with reasonable promptness and frequency with the bargaining
representative of its employees in order to engage in collective bargaining. People
Care, Inc., 327 NLRB 814, 825 (1999). Moreover, since Section 8(b)(3) of the Act
parallels Section 8(a)(5), it is clear that the obligations, imposed upon employers, to

20 In October 30, 2004, Respondent sent a letter to each signatory contractor,
including Frehner, advising each as to the increase in the dues checkoff amount.
21 While Respondent argues herein that, by it conduct, Frehner has adopted the
2005 through 2010 contract extension, it failed to raise this as an affirmative defense
and never asserted this defense orally or in writing to Frehner prior to the hearing.
22 In this regard, in Respondent’s Exhibit No. 8, a letter from Daly to signatory
contractors dated October 30, 2002, he wrote that the dues checkoff assessment is
based upon a percentage of a laborer employee’s wage rate; that, if employees’ wage
rates increase, the check off assessment would likewise increase, and that Respondent
would notify contractors of any increase in the dues checkoff assessment sixty days
prior to the effective date of the change. Analysis of the 2000 through 2005 collective-
bargaining agreement discloses that laborer employees received a 50 cent wage/fringe
benefit package increase on October 1, 2004, with Respondent required to give notice
to the contractors sixty days prior to the effective date of the portion of the increase to
be allocated to wages and the portion to be allocated to fringe benefits. As counsel for
Frehner points out, even if only a small percentage of the 50 cents would have been
allocated to wages, such would have triggered a corresponding one cent increase in the
dues checkoff amount.
23 Daly conceded that Frehner has always maintained that it is not bound to the 2010
contract extension.
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meet at reasonable times and places in order to bargain are likewise applicable to labor
organizations. AAA Motor Lines, Inc., 215 NLRB 789, 791 (1974). Herein,24
Respondent was certified as the bargaining representative for Frehner’s full-time and
regular part-time laborer employees within the former’s geographic jurisdictional area, a
single employer unit; on July 12 and 29, 2005, Frehner requested that Respondent
commence negotiations with it for a collective-bargaining agreement; and it is not in
dispute, that, by letters dated July 22 and August 4, 2005, Respondent stated its refusal
to meet and commence bargaining with Frehner until the appropriate time. In these
circumstances, it is apparent that the General Counsel has established a prima facie
violation of Section 8(b)(3) of the Act and that the real issues in the instant matter are
the validity of Respondent’s defenses-- that Frehner is bound to the 2010 extension
agreement between Respondent and AGC and, therefore, Respondent is under no
obligation to bargain on an individual basis with Frehner until the expiration of said
agreement and that, by its conduct, Frehner adopted the said extension agreement.
With regard to Respondent’s initial defense, it asserts that Frehner’s July 27,
2004 withdrawal of its proxy to AGC did not constitute a timely withdrawal from multi-
employer bargaining so as to enable it to refrain from abiding by the 2010 contract
extension agreement between AGC and Respondent, and, in support, Richard Daly, in
his July 22 letter to Frehner, and counsel for Respondent, in his post-hearing brief,
relied upon the Supreme Court’s decision in Charles Bonanno Linen Service v. NLRB,
supra, and the Board’s decision in Retail Associates, supra. In Retail Associates, the
Board held that an employer’s ”… decision to withdraw must contemplate a sincere
abandonment, with relative permanency, of the multiemployer unit and the
embracement of a different course of bargaining on an individual employer basis,” and
that it would not permit withdrawal “… except upon adequate written notice given prior
to the date set by the contract for modification or to the agreed-upon date to begin the
multiemployer negotiations. Where actual bargaining negotiations based on the existing
multiemployer unit have begun, we would not permit, except on mutual consent, an
abandonment of the unit upon which each side has committed itself to the other, absent
unusual circumstances.” Id. at 394-395. In Charles Bonanno Linen Service v. NLRB,
the Supreme Court upheld the Retail Associates guidelines for proper withdrawal from
multiemployer bargaining, stating “these rules, which reflect an increasing emphasis on
the stability of multiemployer bargaining units, permit any party to withdraw prior to date
set for negotiation of a new contract or the date on which negotiations actually begin,
provided that adequate notice is given. Once negotiations … have commenced,
however, withdrawal is permitted only if there is ‘mutual consent` or ‘unusual
circumstances` exist.” Pursuant to this legal structure, counsel for Respondent asserts
that negotiations between AGC and Respondent for a successor collective-bargaining
agreement had commenced in June and continued through July, 2004; that it was not
until July 27, after negotiations had been completed, that Frehner notified AGC that it

24 I have considered the credibility of the several witnesses, and each impressed me
as being truthful, a refreshing conclusion in an era during which dissembling appears to
be a distressing fact in hearings before the Board. More particularly, I note that the
witnesses were basically corroborative on the pertinent facts and that the few areas of
disagreement are not significant.
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was revoking its proxy concerning negotiations for a new collective-bargaining
agreement with Respondent; that Frehner withdrew its proxy for future agreements and
not for the recently completed contract extension; and that Respondent did not receive
written notice of Frehner’s withdrawal from multiemployer bargaining until mid-August.
While Respondent correctly stated the rules for valid withdrawal from
multiemployer bargaining in the context of a Section 9 bargaining relationship, the Retail
Associate rules no longer govern withdrawal from multiemployer bargaining in the
context of a Section 8(f) bargaining relationship. Thus, there is no dispute that, at least
with regard to the 2000 through 2005 collective-bargaining agreement and, undoubtedly
for the prior agreements between the parties, the employer members of AGC, including
Frehner, each recognized Respondent as the bargaining representative for its laborer
employees pursuant to Section 8(f) of the Act, which, of course, permits employers in
the building and construction industry to recognize and bargain with labor organizations,
acting as the bargaining representative for certain of their employees, notwithstanding
that the labor organization has not established majority status. In John Deklewa &
Sons, 283 NLRB 1375 (1987), the Board required that “when parties enter into an 8(f)
agreement, they … comply with that agreement unless the employees vote, in a Board-
conducted election to reject (decertify) or change their bargaining representative.”
Likewise, in a Section 8(f) context, an employer, which signs an agreement to be bound
by multiemployer association bargaining or to adhere to an association agreement,
must abide by that agreement for its term. Twin City Garage Door Co., 297 NLRB 119
(1989). However, with regard to the binding effect upon a Section 8(f) employer of a
successor to such a multiemployer agreement, in James Luterbach Construction Co.,
315 NLRB 976 (1994), the Board noted that the Retail Associates rule was developed
within the context of multiemployer bargaining relationships, governed by Section 9 of
the Act, in which, upon expiration of an agreement, the signatory employers have a
statutory obligation to bargain for a successor contract and concluded that, in contrast,
as an employer, which has a Section 8(f) relationship with a labor organization, does not
have an obligation to bargain for a successor agreement; “if a multiemployer group
consists solely of such employers, neither the multiemployer group nor any of its
members would have an obligation to bargain for a successor contract.” James
Luterbach Construction Co., supra, at 979. Continuing, the Board noted that an
employer, which has a Section 8(f) bargaining relationship with a labor organization, in
certain circumstances, may obligate itself to a successor contract and, in order to
determine under what circumstances a Section 8(f) employer has agreed to be bound
by the results of bargaining in a multiemployer context, developed a two-part test--
“First, we will examine whether the employer was part of the multiemployer unit prior to
the dispute …. If this first inquiry is answered affirmatively, then we will examine
whether that employer has, by a distinct affirmative action, committed to the union that it
will be bound by the upcoming or current multiemployer negotiations.” If an employer
meets both parts of the test, it “… will be deemed to have clearly and unmistakably
waived both its right to withdraw recognition on contract expiration and its right to
bargain as an individual.” Id. at 980.
Contrary to Respondent, Counsel for the General Counsel argues that Frehner’s
withdrawal of its proxy to AGC was timely and that reliance upon James Luterbach
Construction Co. is not necessary. In this regard, the General Counsel relies upon the
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Board’s decision in Plasterers Local 337 (Marina Concrete), 312 NLRB 1103 (1995) in
which, in the context of a Section 8(f) relationship, the employer became bound to an
AGC collective-bargaining agreement with the Cement Masons Union and to successor
agreements. During the term of the most recent of said agreements, the employer
became a member of AGC. As herein, well prior to the expiration date of the
agreement, AGC and the Cement Masons entered into “talks,” which, in a
memorandum, the parties characterized as off-the-record exploratory, non-binding
discussions and as not constituting collective bargaining, and, eventually, the
discussions culminated in a tentative agreement on a new collective-bargaining
agreement. Then, the parties agreed upon a date by which any employer, which did not
desire to be bound by the agreement, was required to withdraw its bargaining
authorization to AGC. Two days before the deadline date, the employer wrote to the
AGC and to the Cement Masons, announcing its desire to not be party to the successor
agreement between the parties and, thereafter, continued to apply the terms and
conditions of employment of the existing contract. Subsequently, upon expiration of the
existing agreement, attempts to commence negotiations between the employer and the
Cement Masons failed, and the former wrote to the Cement Masons, stating its intent to
no longer recognize and bargain with that labor organization. The Board initially noted
that its decision in the matter would be in the context of the Retail Associates guidelines
for withdrawal from multiemployer bargaining (Id. at 1104, n. 5) and then concluded that
the employer’s notice to AGC and the Cement Masons constituted timely and
unequivocal notice as the prior informal discussions between AGC and the Cement
Masons did not constitute negotiations within the meaning of the Retail Associates
guidelines. In the latter regard, the Board specifically noted that, in their above-
described memorandum, the parties stated their deliberate intent to remove their
dealings from the constraints of Retail Associates. Id. at 1105, n. 6. Accordingly,
basing his arguments upon the Board’s reasoning in Marina Concrete, counsel for the
General Counsel contends that Respondent’s Retail Associates defense herein is
without merit as, notwithstanding that Frehner’s July 27 letter to AGC, stating withdrawal
of its proxy from AGC concerning bargaining on its behalf with Respondent, was
submitted to AGC after discussions had commenced between the latter and
Respondent, said discussions were characterized by the parties as “informal” in their
June 1, 2004 memorandum of understanding and, in said document, Respondent and
AGC “expressly” agreed that their memorandum of understanding did not constitute
formal notice of an intent to terminate or open the existing collective-bargaining
agreement and did not constitute a formal or binding agreement to open negotiations.
Accordingly, contrary to counsel for Respondent, counsel for the General Counsel
argues that Frehner’s withdrawal of bargaining authority from AGC was timely, and,
therefore, it was not bound to the result of bargaining between Respondent and AGC--
the 2010 extension agreement. In these circumstances, counsel for the General
Counsel urges that Respondent’s failure and refusal to bargain with Frehner was, and
remains, violative of Section 8(b)(3) of the Act.
I agree with counsel for the General Counsel that Respondent engaged in the
alleged unfair labor practice herein; however, I reiterate my views, expressed during the
trial, that counsel’s reliance upon the Mariana Concrete, supra, rationale is erroneous
and that this matter must be resolved pursuant to the rationale, expressed by the Board
in James Luterbach Construction Co., supra. Thus, in Marina Concrete, which involved
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a Section 8(f) bargaining relationship and a putative withdrawal from multiemployer
bargaining, the Board resolved the matter in the context of the Retail Associates
guidelines and, in that regard, the main focus of its decision was whether the employer’s
withdrawal of bargaining authority, which occurred subsequent to the conclusion of
talks, but not bargaining, between the AGC and the Cement Masons, from the former
was timely. However, in James Luterbach Construction Co., the Board expressly stated
that, because, in a Section 8(f) bargaining relationship, an employer is under no
obligation to bargain for a successor collective-bargaining agreement, in a
multiemployer context, as herein involved, the Retail Associates guidelines do not
apply. Therefore, contrary to counsel for the General Counsel, whether or not the
“informal discussions” between Respondent and AGC constituted collective bargaining
and whether or not Frehner’s withdrawal of its proxy from AGC was timely are not
relevant issues. Rather, herein, the only issues are (1) was Frehner a part of a
multiemployer unit as of July 30, 2004, the effective date of the contract extension
agreement between Respondent and AGC, and (2) whether Frehner, by “distinct
affirmative action,” recommitted to Respondent its intent to be bound to said extension
agreement. Moreover, contrary to counsel for the General Counsel, the Board’s
decision in Patterson-Stevens, Inc., 316 NLRB 1278 (1995), supports my view of the
Board law. Thus, in that matter, in the context of a Section 8(f) bargaining relationship,
the employer withdrew bargaining authority from a multiemployer bargaining
association, of which it was a member, subsequent to a meeting of association
members, during which they discussed the feasibility of early contract negotiations, and
a meeting between representatives of the association and the union, which the
administrative law judge described as “’exploratory talks before the formal opening of
negotiations.’” Id. at 1285. Then, deciding the case pursuant to the Retail Associates
analytical framework, he concluded that the employer’s withdrawal of bargaining
authority was timely. In affirming the administrative law judge, the Board stated:
We affirm the judge’s conclusion that the Respondent timely and
unequivocally withdrew from multiemployer bargaining before the Union and the
[Association] commenced negotiations for a new contract.… Finally, we note that
there are no exceptions to the judge’s application of the rule of Retail Associates
… to the circumstances of this case. Subsequent to the judge’s decision, a
Board majority held in James Luterbach Construction Co. … that the Retail
Associates rule is inapplicable to multiemployer bargaining in the construction
industry under 8(f). The Board would have dismissed the Sec. 8(a)(5) allegation
here under Luterbach
Id. at 1278, n. 2 (emphasis added). Clearly, by noting the lack of exceptions, the Board
indicated that its affirmance of the administrative law judge’s legal rationale has no
precedential value, and, rather than favorably commenting upon the judge’s utilization of
the Marina Concrete rationale, the Board pointedly commented that it would have
analyzed the case under the James Luterbach Construction Co. guidelines.25

25 Counsel for the General Counsel consumed five pages of his post-hearing brief,
contending that the Board’s rationale in Marina Concrete remains relevant after James
Luterbach Construction Co.. While perhaps in a non-construction industry context, the
Continued
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Accordingly, I reiterate my view that the validity of Respondent’s defense,
Frehner was, and remains, bound to the July 30 contract extension agreement between
Respondent and AGC, must be analyzed utilizing the principles of James Luterbach
Construction Co.. In this regard, I initially note that, as, at least prior to July 2005, a
Section 8(f) bargaining relationship existed between Respondent and Frehner, the latter
was under no obligation to abide by a successor collective-bargaining agreement
between AGC and Respondent and that the Board’s focus is not on whether Frehner
unequivocally and timely withdrew from multiemployer bargaining so as not to be bound
to said agreement but, rather, upon whether, by July 30, 2004, the effective date of the
contract extension agreement and the date upon which Respondent and AGC set forth
their intent to formally open their existing agreement for the purpose of executing their
extension agreement, Frehner demonstrated to Respondent its intent to be bound to the
said agreement. As to this, Respondent argues that utilizing the two-part test in James
Luterbach Construction Co. establishes that Frehner did, in fact, manifest such intent. I
disagree. Concerning whether the Charging Party remained part of the multiemployer
bargaining unit as of July 30, I agree with counsel for Frehner that this must be
answered in the negative. Thus, while, arguably, Frehner remained part of the
multiemployer bargaining unit, represented by AGC, through July 26, 2004,26 I believe,
by Pack’s letter dated July 27, 2004, Frehner removed itself from the said multiemployer
bargaining unit and effectively demonstrated its intent not to recommit to multiemployer
bargaining. Counsel for Respondent points to the letter’s language (“The withdrawing of
our proxy is for future agreements only ….”) as proof that Frehner intended to be part of
the multiemployer bargaining unit, bound to the 2010 contract extension; however, the
remainder of Pack’s letter makes clear that he was referring to agreements beyond the
existing 2000 through 2005 contract.27 While this finding nominally ends the inquiry,
assuming arguendo that counsel is correct and Frehner recommitted itself to the
multiemployer bargaining unit for the 2010 contract extension, as of July 30, I do not
believe Frehner ever engaged in any “distinct affirmative action” so as to recommit to
Respondent its intent to be bound by the contract extension agreement. On this point,
counsel for Respondent points to the attendance of Fred Courrier, a northern Nevada
_________________________
former decision retains its relevancy, given the Board’s silence in Patterson-Stevens,
Inc. as to the applicability of Marina Concrete and its specific statement that it would
have dismissed under the James Luterbach Construction Co. rationale, Marina
Concrete is no longer relevant in the construction industry context. In this regard,
contrary to counsel, the Board accepted the judge’s analysis but only in the absence of
the filing of exceptions.
26 While, by its wording, Frehner’s1995 proxy agreement seemingly appoints AGC to
represent it only for negotiating one labor agreement, the 1995 through 2000 contract
with Respondent, Michael Pack, on behalf of Frehner, was active in bargaining for the
2000 through 2005 agreement, and Sean Stewart testified that Frehner itself believed
the proxy continued to be valid for the 2000 through 2005 contract negotiations between
Respondent and AGC and bound Frehner to said agreement.
27 Counsel also argues that Frehner remained a member of AGC. However, there is
no record evidence that mere membership in AGC binds each employer/member to
every craft agreement, which is negotiated by that multiemployer association, and I do
not believe that counsel would seriously make such a contention.
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area manager for Respondent, at an AGC labor policy committee meeting, during which
the possibility of engaging in informal discussions with Respondent was the topic of
conversation, and to Pack’s order to Courrier that he attend no further such meetings or
participate in any informal discussions with Respondent. Contrary to counsel, whether
or not Courrier attended an AGC labor policy meeting is relevant only if a representative
of Respondent also attended or the attendance list and meeting minutes were shown to
Respondent; for the wording of the second part of the Board’s test presupposes that the
labor organization possesses knowledge of the employer’s actions. Herein, there is no
evidence that Respondent was aware that Courrier attended an AGC labor policy
meeting or, indeed, that he voted for or against AGC engaging in informal discussions.
Therefore, Courrier’s attendance at an internal AGC meeting hardly constitutes a
distinct affirmative act of recommitment. Finally, whatever knowledge Michael Pack
may have possessed regarding the informal discussions between AGC and Respondent
and notwithstanding how calculating his inaction might have been, the fact remains that
Frehner did not participate in any of the informal discussions between AGC and
Respondent, and the Board has held that “… mere inaction … is not sufficient to show
that the 8(f) employer has reaffirmed its intention to be bound by the results of
multiemployer bargaining.” Id. at 980. In these circumstances, I find that Respondent’s
first defense for its refusal to bargain is without merit.
Turning to Respondent’s second defense, that, by its actions, Frehner adopted
the 2010 contract extension between Respondent and AGC, I initially note that there is
no dispute that, from October 2004 through October 2005, Frehner did, in fact, make
the increased dues checkoff payments (an increase from 43 cents to 44 cents per
laborer employee per manhour of work) for its laborer employees to Respondent’s trust
funds. However, contrary to counsel for Respondent, I do not believe that this
evidences adoption of the extension agreement by Frehner. At the outset, I agree with
counsel for Frehner that what Frehner did may have been required by the existing 2000
through 2005 bargaining agreement. Thus, said agreement required an increase of 50
cents per hour in wages and fringe benefits payments on October 1, 2004, and, with a
portion of said payment being allocated to wages, pursuant to the contractual formula
for calculating the checkoff amount, such surely would have correspondingly increased
the dues deduction for each employee to, at least, 44 cents per hour. Moreover,
assuming Respondent is correct and Frehner deliberately based its increased dues
checkoff on an amount equivalent to the contract extension agreement wage increase,
while it is true that employers may be held to have adopted collective-bargaining
agreements (E.S.P. Concrete Pumping, Inc., 327 NLRB 711, 713 (1999), for the first
nine months of increased dues deductions, Frehner and Respondent had a Section 8(f)
bargaining relationship, and the Board has held that, upon expiration of a collective-
bargaining agreement, voluntary compliance with terms equivalent to those of a
successor agreement “… gives rise to no obligations whatsoever.” Id. at 714, n. 3;
Marina Concrete, supra, at 1106, n. 11; Garmen Construction Co., 287 NLRB 88, 89 at
n. 5. Further, in the Section 8(f) context, in order to find that an employer has adopted
an agreement, the employer must manifest its intent to be bound. E.S.P. Concrete
Pumping, supra, at 713-14. At all times material herein, Frehner has continually argued
that it was bound only to the 2000 through 2005 collective-bargaining agreement
between Respondent and AGC and withdrew bargaining authority from AGC for any
future agreement, and, rather than make additional dues deduction payments after
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October 2005, which were embodied in the 2010 contract extension agreement,
Frehner refused to do so on grounds that no new collective-bargaining agreement
existed between itself and Respondent. In these circumstances, I find Respondent’s
second defense to be without merit. Therefore, I find that Respondent violated, and
continues to violate, Section 8(b)(3) of the Act by failing and refusing to meet and
bargain in good faith with Frehner regarding a collective-bargaining agreement.
CONCLUSIONS OF LAW
1. Frehner is an employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. Respondent is a labor organization within the meaning of Section 2(5) of the
Act.
3. At all times material herein, since July 18, 2005, by virtue of Section 9(a) of
the Act, Respondent has been the exclusive representative for purposes of collective
bargaining of all full-time and regular part-time laborers employed by Frehner in the
State of Nevada, except Clark County, Lincoln County, the town of Tonopah, and the
portions of Nye County and Esmeralda County lying south of Highway Six (U.S. 6);
excluding all managers, salespersons, estimators, office clerical employees, all other
employees, and supervisors as defined in the Act.
4. Since July 22, 2005, Respondent has refused to meet and bargain in good
faith with Frehner, with regard to a collective-bargaining agreement covering the
employees in the above-described bargaining unit, in violation of Section 8(b)(3) of the
Act.
5. The above-described unfair labor practice is an unfair labor practice affecting
commerce within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
I have found that Respondent engaged in, and continues to engage in, a serious
unfair labor practice within the meaning of Section 8(b)(3) of the Act. Accordingly, I
shall recommend to the Board that it be ordered to cease and desist from engaging in
said acts and conduct and to engage in certain affirmative acts designed to effectuate
the purposes and policies of the Act, including the posting of a notice detailing its
obligations.
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On these findings of fact and conclusions of law and on the entire record, I issue
the following recommended28
ORDER
The Respondent, Laborers’ International Union of North America, Local Union
No. 169, its officers, agents, and representatives, shall:
1. Cease and desist from
(a) Failing and refusing to meet and bargain in good faith for a collective-
bargaining agreement with Frehner, covering the full-time and regular part-time laborers
employed by the latter;
2. Take the following affirmative action necessary to effectuate the policies of the
Act.
(a) Meet and bargain in good faith with Frehner for a collective-bargaining
agreement, covering the latter’s full-time or regular part-time laborers or until a valid
impasse in bargaining is reached, and, if agreement is reached, embody the terms of
said agreement in a written collective-bargaining agreement;
(b) Within 14 days after service by the Region, post at its office and hiring hall
facility located in Reno, Nevada, copies of the attached notice marked “Appendix.”29
Copies of the notice, on forms provided by the Regional Director for Region 32, after
being signed by the Respondent's authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to employee/members are
customarily posted. Reasonable steps shall be taken by the Respondent to ensure that
the notices are not altered, defaced, or covered by any other material;
(c) Sign and return to the Regional Director sufficient copies of the notice for
posting by Frehner, if willing, at all places where notices to employees are customarily
posted;

28 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in
Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be
deemed waived for all purposes.
29 If this Order is enforced by a Judgment of the 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.”
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(d) Within 21 days after service by the Region, file with the Regional Director a
sworn certification of a responsible official on a form provided by the Region attesting to
the steps that the Respondent has taken to comply.
Dated: Washington, DC November 16, 2006
___________________________________
Burton Litvack
Administrative Law Judge
JD(SF)–59–06

APPENDIX
NOTICE TO MEMBERS
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board had found that we violated Federal labor law and
has ordered us to post and obey this notice.
WE WILL NOT fail and refuse to meet and bargain in good faith with Frehner
Construction Co. for a new collective-bargaining agreement covering its full-time and
regular part-time laborer employees.
WE WILL meet and bargain in good faith with Frehner Construction Co. for a collective-
bargaining agreement covering its full-time and regular part-time laborer employees or
until a valid impasse in bargaining is reached and, if an agreement is reached, embody
said agreement in a written collective-bargaining agreement.
Laborers’ International Union of North
America, Local Union No. 169
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the
National Labor Relations Act. It conducts secret-ballot elections to determine whether employees want
union representation and it investigates and remedies unfair labor practices by employers and unions. To
find out more about your rights under the Act and how to file a charge or election petition, you may speak
confidentially to any agent with the Board’s Regional Office set forth below. You may also obtain
information from the Board’s website: www.nlrb.gov.
1301 Clay Street, Federal Building, Room 300N, Oakland, CA 94612-5211
(510) 637-3300, Hours: 8:30 a.m. to 5 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (510) 637-3270.
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