G.M. Masonry Co.

National Labor Relations Board - Board Decisions

Sep 24, 1979

245 N.L.R.B. 267 (N.L.R.B. 1979)

(;. M. MASONRY CO.
G. M. Masonry Co. and Southern California District
Council of Laborers, affiliated with l,aborer's Inter-
national Union of North America, AFL-CIO. Case
21 CA 16676
September 24. 1979
DECISION AND ORDER
BY MEMBERS JENKINS. PNtL()O, AND) MURPItY
On November 21, 1978, Administrative Law Judge
Timothy D. Nelson issued the attached Decision in
this proceeding. Thereafter, the Charging Party filed
exceptions and a supporting brief, and the General
Counsel filed limited exceptions and a supporting
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings.' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the complaint be, and it hereby is, dismissed
in its entirety.
I In adopting the Administrative Law Judge's Decision we disavow an)
inference which may appear therein suggesting that the rationale of Dee Cee
Floor Covering. inc and irs Alter Ego and/or Successor. Dagin.Akrah Floor
Covering. Inc., 232 NLRB 421 (1977), is applicable to 9(a) bargaining rela-
tionships.
DECISION
STATEMENT OF THE CASE
TIMOTHY D. NELSON. Administrative Law Judge: This
matter was heard by me in Los Angeles. California, on Sep-
tember 14. 1978. On June 12, 1978. the Regional Director
for Region 21 issued a complaint and notice of hearing in
the above-captioned matter, based upon an unfair labor
practice charge filed on May 17, 1978, alleging violations of
Section 8(a)(5) and (I) of the National Labor Relations Act.
as amended, 29 U.S.C. §151, et seq., herein called the Act.
All parties have been afforded full opportunity to appear.
to introduce evidence, to examine and cross-examine wit-
nesses. and to file briefs.' Based upon the entire record. the
briefs filed n behalf of the parties, and my observation of
the demeanor of the witnesses I make the follo ing:
FINDIN(GS OF A(CI
I. JRISI)I( 'ION
The complaint alleges, the answer admits, and I find that
G. M. Masonry Co., hereinafter called Respondent. has
been at all times material herein engaged as a masonry sub-
contractor in the building and construction industry in
Southern California with an office located in Santa Ana.
California. During the representative 12-month period pre-
ceding the issuance of the complaint Respondent performed
services valued in excess of $50,000 for customers located
within the State of California, each of which in turn annu-
ally purchases and receives goods and products valued in
excess of $50.000 directly from suppliers located outside the
State of California. Therefore. I find that Respondent is and
has been at all times material herein an employer engaged
in commerce and in a business affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INV()I. EI)
As alleged in the complaint and admitted by Respon-
dent's answer thereto, at all times material herein Southern
California District Council of Laborers, affiliated with La-
borer's International Union of North America, AFL-CIO,
herein called the Union, has been a labor organization
within the meaning of Section 2(5) of the Act. I further find
that Local Union No. 652. Laborers' International Union
of North America. AFL. CIO. hereafter called Local 652. is
and has been at all times material herein a labor organiza-
tion within the meaning of Section 2(5) of the Act and is an
affiliate of the Union.
Ill. THE ISSUES
Whether on and after April 25, 1978.2 Respondent was
privileged in its admitted refusal to recognize the Union as
the exclusive collective-bargaining representative of certain
of its masonry employees, in its admitted repudiation of,
and in its refusal to apply to those masonry employees the
terms and conditions of employment embodied in a collec-
tive-bargaining agreement entered into between Respon-
dent and the Union on or about April 24.
IV. THE A.LEGED UNFAIR LtABOR PRA( TI(IS
The essentially uncontroverted background facts' are as
follows: Respondent, Gary M. Gideon. d/b/a G. M. Ma-
sonry Co.. performs masonry work primarily on apartments
I The Union appeared at the hearing through counsel hut did not file a
brief. Briefs were timel filed by the General Counsel and Respondent and
received due consideration.
2 Unless otherwise specified all dates are In 1978
In m judgment, not all of the facts set forth hereinafter are relevant to
my disposition of the case They are nevertheless included in deference to
certain positions taken by the parties which require reference to them.
245 NLRB No. 54
267
DE('ISIONS O() NATIONAL LABOR RELA'IHONS BOARD
and new housing tracts pursuant to subcontracts which it
receives from general contractors. Respondent has no per-
manent staff of' construction employees but, rather, hires
them as it obtains subcontracts for specific projects.
In July 1976, shortly after entering the subcontracting
business. Respondent was engaged on a masonry job at an
unspecified location or Comer C'onstruction Compalny. It
had one employee working at the time and had been on the
job for less than I week when Gideon was approached bh a
representative from local 652. who asked Gideon if his em-
ployee "was in the Union." After Gideon identified himself
as a "nonunion contractor." the Local 652 representative
said "either you sign the agreement . . . or I am going to
shut down the job." As Gideon put it, being new to the
business and out of concern for the impact that picketing
might have on his ability to continue in business, he agreed
to sign a labor agreement tendered by the representative.
That agreement, signed by Giideon on July 6, 1976, was
captioned "Brick Tenders Short-Form agreement." The
Union and its affiliated local unions, including Local 652.
were identified as the labor organizations party to that con-
tract. The contract purported to cover all "mason tenders"
(sometimes referred to as "brick tenders"). employed by
signatory contractors or subcontractors working in a large
geographical area encompassing Los Angeles Count? and
the greater surrounding Southern California area. II con-
tained, inter alia, a requirement that employees he hired
pursuant to an exclusive nondiscriminatory referral system
to be operated by the local unions comprising the Union. It
also contained a union-security provision as well as provi-
sion for contractor payments into health and welfare and
pension trust funds on behalf of covered employees. By its
terms the contract was effective between the dates of May
1, 1974, and June 15, 1977, with provision for automatic
renewal on an annual basis thereafter absent 60 days' writ-
ten notice prior to the scheduled June 15. 1977. expiration
date of either party's desire to "modify, amend or negotiate
changes."
Thereafter, for each month in the period July 1976 to
May 1977, Respondent made monthly trust contributions
and filed regular monthly reports to the trust signed by
Gideon and identifying employees on whose behalf contri-
butions were being made. Respondent's trust contribution
reports reflect payments having been made on behalf of no
more than two employees in any given monthly period. It
was further stipulated by the parties and I find that at all
times during the period July 6, 1976. until at least June4 15.
1977, "the Union acquired and maintained a status as a
representative of the majority of Respondent's employees."
The manner in which said "majority" was acquired and
maintained is not evident from the record, Presumably,
however, such "majority" would occur in due course pursu-
ant to Respondent's honoring of the exclusive hiring hall
and union-security provisions of the contract in effect dur-
ing that period.
4 In restating the parties' stipulation at the hearing I inadvertently referred
to the date of "Jul/ IS, 1977." The correct latter date. as is plain froim the
discussion which preceded my restatement, is June I5. 1977. Accordingly. I
have set forth the correct date in the above finding.
The record is silent as to any action which the Union
may have taken to forestall automatic renewal of said con-
tract in the period before June 15. 1977: however. on June
1,. 1977. Gideon mailed a letter to the Union. received in
due course. which stated in pertinent part:
Gentlemen:
This is mv notification to ou that as of June 15,
1977 1 am terminating the contract I signed with the
l.aborers' ocal t652. dated July 6, 1976.
Thereafter, Respondent submitted a report on a standard
reporting form to the above-mentioned trusts purporting to
cover hours worked in the month of June 1977 which con-
tained the names of no employees and which also contained
the handwritten notation entered by Gideon: "agreement
was cancelled period." Respondent did not file any further
signed trust fund reports after the June 1977 reporting pe-
riod, and, so far as this record discloses, it failed to make
any trust contributions whatsoever, even though the record
indicates that it continued to perfiorm subcontracting work
on various jobs within the Union's jurisdictional area.
The record further sketchily discloses that commencing
on or about August 1, 1977. Local 652 picketed one of
Respondent's projects at Placentia, Calilfornia. This resulted
in the filing b Respondent, through its labor relations rep-
resentative, M. K. Sullivan. of' three separately captioned
unfair labor practice charges under Section 8(hb)(3) and
(4)(B) of the Act. The 8(b)(3) charges included the allega-
tion that Local 652 had sought to force Respondent to "sign
an illegal contract to be negotiated by others." The charges
were eventually the subject of an informal settlement agree-
ment containing a nonadmission clause, approved by the
Regional Director for Region 21 on September 19, 1977. In
that agreement L.ocal 652 promised. inter alia, to bargain,
"upon request." with Respondent in an appropriate unit set
forth therein.
Following the above-described settlement agreement in
September 1977 Respondent had at least one subcontract-
ingjob for Comer Construction Company at a site on Giar-
den Grove Boulevard in the city of Orange, California. This
work was performed sometime during the period Septem-
ber 1977 to February 1978. This job was apparently per-
formed on a "nonunion" basis, the record failing to indicate
anything to the contrary. It appears that the work was only
intermittently performed at that time due to an unusually
rainy season.
Respondent hired one Carlos Godinez in the first week of
December 1977. Although Godinez was a member of the
Union (or one of its constituent locals the record is not
clear on this point), and Gideon was aware of this fct.
Gideon hired him "directly" and not through the Union's
hiring hall. The record does not disclose whether (iodinez
was working on the project in the city of Orange or on some
other project which Respondent may have had at the time
of Godinez' commencement of employment, Gideon having
no specific recollection on that point.5
5 Godinez was called as a witness by counsel for the General Counsel. hut
he was not asked which project he had been working on when first hired. It
could not have been the "Brea" project discussed below. since. bh stipulation
olf the parties. Respondent did not begin operations at the Brea project until
"the end ol January 1978" (see Resp. Exh 2. par. I).
268
G. M. MASONRY CO.
There were no further contacts between Respondent and
the Union after the August 1977 picketing of the Placentia
project until on or about the following February I. At that
time Respondent was working on a new construction job
for Comer Construction Company in the city of Brea, Cali-
fornia, which Respondent had begun at "the end of Janu-
ary 1978" (see fn. 5). On February I Local 652 Business
Agent Dave Atkinson had a conversation with Gideon at
the Brea jobsite. The nature of said conversation is not evi-
dent from the record. On the following day. February 2.
pickets appeared at the Brea jobsite carrying signs bearing
the legend: "Ron Comer Construction unfair to Laborers
Local 652." 6
On February 7 Respondent, through its labor relations
representative, Sullivan, filed charges with the Regional Di-
rector for Region 21 in Cases 21 CC-2014 and 21 CE-201.
naming not only the Union and Local 652 but also "Build-
ing & Construction Trades Council of Orange County."
The charges alleged, in substance, that the three above-
named entities had violated Section 8(b)(4)(A) and (B) and
8(e) of the Act.
The foregoing unfair labor practice charges were dis-
missed by the Regional Director for Region 21 on February
23. That administrative dismissal was not appealed by Re-
spondent. In dismissing the "CE" case the Regional Direc-
tor noted: "there is insufficient evidence to establish that
the picketing constituted a reaffirmation of any agreement
violative of Section 8(e) of the Act or that any of the
charged parties engaged in any conduct violative of Section
8(e) of the Act." With respect to the "CC" case, the Re-
gional Director noted: "there is insufficient evidence to es-
tablish that the picketing was for an object prohibited by
Section 8(b)(4)(B) of the Act. Rather it appears that the
picketing was primary activity privileged by the proviso to
Section 8(b){4)(B) of the Act."'
Following that legal skirmish Respondent continued to
work for Comer Construction Company at the Brea jobsite
without further contact with the Union until on or about
April 19. During that period Godinez was employed con-
tinuously. On March 17 an additional laborer, Reyes Jime-
nez, was also hired. Jimenez, like Godinez, was hired di-
rectly by Respondent "off the bank" as it were and not
through the auspices of any hiring hall operated by the
Union or any of its constituent locals.'
I This finding is based on the unconiradicled testimony orGideon as to the
content of the picket signs. Gideon had first been asked by the General
Counsel whether "the Laborers' Union were picketing you on that project."
Gideon answered: "yes they were." but he promptly corrected himself. say-
ing that the pickets were against Comer Construction Company and bore the
legend quoted above.
'The foregoing recital is mentioned here for the sole purpose of providing
an understanding of the history of this case. It ought to be made clear.
however, as I did at the heanng. that the Regional Director's conclusions as
set forth in the February 23 dismissal letter do not constitute evidence as to
the character of the picketing in question, nor are they binding upon me In
any other respect.
IThere is a probably immaterial conflict between the above finding and
the written stipulation of the parties, received as Resp. Exh. 2, on this point.
According to par. I I of the written stipulation. "G. M. began masonry op-
erations at the Brea project at the end of January 1978. with three (3) em-
ployees. two of whom were laborers and the third, a brick mason. These
same three employees remained working for G. M. on the Brea project a all
times material herein [Emphasis added.]" Specific evidence received at the
On April 19 Local 652 picketed Respondent at its Brea
project until April 24. 9 The picket signs stated: "G. M. Ma-
sonry Unfair to Local 652. Not Paying Prevailing Wages
and Fringe Benefits." On the morning of April 24. acting
under pressure from his general contractor. Gideon sent
word through one of the pickets that he wished to speak
with Local 652 agent Atkinson about signing a contract.
Later that morning Gideon and Atkinson spoke briefl.
Gideon expressed a willingness to sign a new contract. pro-
vided that the Union would agree to certain requests as
follows: that the Union would abandon any claim it might
have against Respondent for "retroactive pa" or "fines":
that the Union would "clear" Godinez to work anywhere
he wanted to: and that Jimenez would be permitted to join
the Union and remain working for Respondent on the Brea
project. Atkinson replied that he would "take care of' Re-
spondent. and Gideon thereupon signed a new contract ten-
dered by Atkinson. That new contract was a preprinted
document captioned "Brick Tenders Short Form Agree-
ment 1977-1982" containing terms substantiali\ identical to
those in the earlier agreement which Respondent had
signed in July 1976 but with different wage and fringe bene-
fit rates. Its stated term was from July 1, 1977. through June
15. 1982.
On April 25. however. Respondent filed a petition tor
representation election in Case 21-RM-1892. failing to
mention the existence of the contract with the Union signed
on the preceding day. On Ma I . for reasons which are
unclear on this record but which may be related to the filing
of a companion charge under Section 8(b)(7)(C) of the Act.
the Regional Director for Region 21 directed that an elec-
tion be conducted in that "RM" case. On June 14. follow-
ing the filing of the instant charge. however. the Regional
Director issued on Order vacating direction of election and
dismissing petition in the "RM" case stating, in pertinent
part, as follows:
subsequent investigation revealed that the object of the
conduct giving rise to the aforementioned direction of
election was not initial recognition but rather was the
obtaining of a successor collective-bargaining agree-
ment, that such a successor agreement was executed
Iby the Union and Respondentl on April 24. 1977 [sic]
* . . . *
hearing based on Respondent's payroll records indicated that the second
laborer. Jimenez. was hired on March 17 rather than at the beginning of the
project "at the end of January 1978" Accordingly. I hase ignored the par-
ties' stipulation in this particular respect. preferring instead to rely upon the
more specific evidence received at the hearing.
9 Pursuant to charges filed by Respondent's representative on April 25 In
Cases 31 CC 2038 1 and 21 CE-207, the Regional Director for Region 21
issued a consolidated complaint on May 25 which alleged. in substance. Ihat
said picketing violated Sec. 8(b}4{A) and (e) of the Act because the picket-
ing was for the alleged purpose of requiring Respondent to sign a contract
containing. inter aia, provisions violative of Sec. 8(e). That matter is now
pending before the Board pursuant to the parties' joint motion and an ac-
companying stipulation of fact (which latter document was received in this
case as Resp. Exh. 2. for supplementary background purposes). I denied
Respondent's motion made at heanng to adjourn the hearing until such time
as the Board had decided the foregoing cases. I hereby futher dens Respon-
dent's renewed motion of similar effect made in its brief
269
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The aforementioned valid collective bargaining agree-
ment between the parties acts as a bar to the holding of
an election herein. Accordingly, I shall vacate the di-
rection of election and dismiss the petition.' °]
At all times since its execution of the April 24 contract,
however, Respondent has failed to apply its terms to its
employees and has refused to recognize and bargain with
the Union as the representative of its employees.
V. DISCUSSION ANI) ANALYSIS
Although somewhat convoluted in a detailed retelling,
the relevant background facts may be summarized as fol-
lows. After signing an initial agreement with the Union in
July 1976 Respondent honored that agreement until the fol-
lowing June, during which time a majority of its employees
on its various projects were represented by the Union. Since
June 1977 and to date Respondent has performed subcon-
tracting work on a new series of different projects using
employees hired through its own devices who have received
wages and benefits determined by Respondent unilaterally
and without regard to the provisions of any union contract.
Its execution of a new contract with the Union at the Brea
project on April 24 signaled a change in Respondent's pat-
tern of "nonunion" operations, but the April 24 contract
was promptly ignored and disavowed thereafter, and Re-
spondent has continued, in fact, to perform subcontracting
work as if it had no obligation to recognize the Union or to
honor the April 24 agreement. At no time on or after April
24 is there any affirmative indication that a majority of
Respondent's employees at the Brea project desired repre-
sentation by the Union. The most that the record shows in
this regard is that one employee, Godinez, was a member of
a local of the "Laborers" Union.
A. Summary of the Parties' Contentions
In addition to a secondary defense dealt with hereafter.
Respondent argues primarily that the April 24 contract was
a "pre-hire" agreement of the type contemplated by Section
8(f) of the Act" which, under previous Board rulings.'2 as
1' In so holding the Regional Director appears to have decided in a repre-
sentation case context essentially the same question posed herein (see discus-
sion, infra). To the extent that it might be argued that Sec. 102.67(f) of the
Board's Rules and Regulations bars "relitigation" of that issue in this "re-
lated subsequent" unfair labor practice case, I find that such an argument
was waived by full litigation of the issue herein without objection from the
General Counsel or the Union. See City Motor Cornpany. Inc., 214 NLRB
298 (1974); Barwood, Inc.. 209 NLRB 19 (1974).
" Sec. 8(f) states in pertinent part:
(f) It shall not be an unfair labor practice . .. for an employer en-
gaged primanly in the building and construction industry to make an
agreement covering employees engaged .. in the building and con-
struction industry with a labor organization of which building and con-
struction employees are members ... because (I) the majority status of
such labor organization has not been established under the provisions of
section 9 of this Act prior to the making of such agreement .... Pro-
videdfurther, That any agreement which would be invalid. but for clause
(I) of this subsection, shall not be a bar to a petition filed pursuant to
section 9(c) or 9(e). [Emphasis supplied.]
I R. J. Smith Construction Co.., Inc., 191 NLRB 693 (1971), enforcement
denied 480 F.2d 1186 (D.C. Cir. 1973); see also its companion, Ruttman
Construction Company, etc., 191 NLRB 701, 702 (1971), wherein the Board
ratified by the Supreme Court in Higdon Contracting Com-
pany,' 3 Respondent was free to repudiate at will unless the
Union in fact represented a majority of its employees at the
time of repudiation. Noting that the record fails to reflect
that a "majority", i.e., both of its then-employed laborers,
desired representation by the Union, a prima flie burden
which Respondent claims the General Counsel must shoul-
der, Respondent contends that it was free under the forego-
ing authorities to repudiate the April 24 contract on the day
after its execution.
The General Counsel contends that on April 24 the
Union enjoyed a continuing "presumption" of "majority
status" deriving from the contractual relationship in the
year following the execution of the July 1976 contract, dur-
ing which time a majority of Respondent's employees sup-
ported the Union.
Thus, conceding that no more than a repudiatable Sec-
tion 8(f) relationship existed upon execution of the July
1976 contract, the General Counsel argues that the parties'
relationship ripened into a full. "Section 9(a)" relationship
which Respondent was not free to repudiate after the
Union eventually commanded "majority" support among
Respondent's employees. Under established principles.
therefore. the General Counsel contends that Respondent
had an obligation to recognize the Union when confronted
with renewed demands in April. absent a "good faith
doubt, based upon objective considerations"'4 that the
Union no longer enjoyed majority support in the unit. The
General Counsel further correctly argues that where such a
"Section 9(a)" relationship exists the burden shifts to Re-
spondent to show that there is a good-faith basis for doubt-
ing the Union's majority-a burden which the General
Counsel correctly notes is not ordinarily satisfied where, as
here, it is simply shown that one of' two unit employees is
not a "member" of the Union. In these circumstances, ac-
cording to the General Counsel's theory'. the April 24 con-
tract signed by Gideon was not a mere "pre-hire" agree-
ment under Section 8(f) but was a valid, conventional,
collective-bargaining agreement, carrying with it a full obli-
gation on Respondent's part under Section 8a)(5) and (d)
of the Act to recognize the Union and to implement its
provisions during its term.
described execution of a "pre-hire" agreement under Sec. 8(f ) as being
"merely a preliminary step that contemplates further action for the develop-
ment or a full bargaining relationship"
' N L.R.B. v. Local Union No. 103. Inrernationul sociaturion of Bridge,.
Structural and Ornamental Iron Workers. AFL CIO (Higdan Conracting
Co.) 98 S.Ct. 651 (1978). in which the Court stated (at p. 658)
The employer's duty to bargain and honor the [Sec. 8(f)j contract is
contingent on the union attaining majority support at the arious con-
struction sites.
'' Since the right to decline further recognition based on an employer's
"good faith doubt," etc., exists only after a union contract has expired, this
argument must assume, as I have for purposes of' this Decision. that the first
contract had fully terminated upon its stated expiration date in June 1977.
As a matter of law. that contract might still have been in effect immediately
before the signing of the new agreement, in slew of the "automatic renewal"
provisions contained therein and the fact that there is no evidence that it was
terminated or opened for renegotiation in a timely fashion (that is. prior to
the final 60 days of its stated term). The Union also appears to have assumed
that Respondent's June 1. 1977, "termination" letter was effective. notwith-
standing its contractual untimeliness, since it never claimed that a contract
was in effect between it and Respondent between June 15. 1977. and April
24. 1978.
270
G. M. MASONRY CO.
Addressing himself to Respondent's argument under Sec-
tion 8(f), the General Counsel states that "Section 8(f) is
applicable only to initial contracts," citing portions of the
Decision of the Administrative Law Judge in Haberman
Construction Company. 236 NLRB 79 (1978). as well as
Bricklayers & Masons International Union. Local ,No. 3
(Eastern Washington Builders Chapter of A GC 162 NLRB
476 (1966). From that base, the General Counsel contends
that the April 24 contract was a "successive" as opposed
to an "initial" -agreement. carrying with it the irrehuttable
presumption that the Union enjoyed majority status al the
time of its execution. Accordingly. so the argument goes,
Respondent was unable to invoke any right otherwise exist-
ing under Section 8(f) to repudiate the April 24 contract
and the attendant recognitional and bargaining relationship
with the Union at any time during the term of the April 24
contract.
B. Conclusions
The General Counsel's argument is seriously flawed by
the fact that it not only misconstrues the import of the
Board's decision in Haberman, supra.' but it also omits ref-
erence to what I deem to be dispositive Board precedent to
the contrary. In Dee Ccce Floor Covering, Inc.. et al., 232
NLRB 421 (1978), as here, the employer and the construc-
tion union involved had had a prior contractual relation-
ship based on a contract signed in 1973. followed by em-
ployment on subsequent projects of mostly union members
and application of the 1973 contract's terms and benefits to
those employees. In April 1975 the employer signed the
same 1973 agreement with the same union but used a differ-
ent business name. The Board found that the "employer"
was the same in both instances--the changed business
name having merely reflected an alter ego. When the em-
ployer was awarded a new construction subcontract in Au-
gust 1975 it refused to apply the April 1975 contract to
workers employed on that new project. In disagreement
with the Administrative Law Judge on this point, the Board
found the April 1975 agreement to be no more than a Sec-
tion 8(f) "pre-hire" agreement which was:
not binding on the Respondent for purposes of Section
8(a)(5) until such time as the Union demonstrated that it
enjoyed the support of a majorit of Respondent's em-
ployees employed at the newl Ft. Riley project. [Dee
Cee, supra at 422 Emphasis supplied.]
Moreover, in language which appears to meet and dis-
pose of the General Counsel's contrary contention in this
case, the Board stated:
Furthermore, the mere fact that the Union might in-
deed have represented a majority of the employees at
Respondent Dee Cee's previous jobsites is of no conse-
quence inasmuch as the Union must demonstrate its ma-
i~ In affirming the Administrative Law Judge's finding of a Sec. 8l(aiS)
violation in Haberman, supra. the Board took pains not to rel on that por-
lion of the judge's opinion on which the General Counsel has placed great
reliance herein. See Haberman, supra at fn. I. There the Board rested its
affirmance on the fact that the record affirmatively showed that the union
had the support of the majonty of unit employees "at the time of repudl-
ation."
jorit ' at each news jobsuie in order to nvoke the provi-
sions of Section 8(a)(5) of the Act. [Id. Emphasis
supplied.',
The lessons of Dee (C, supra, and Irin-McAKeh', .supra,
seem plain enough, and they cannot he reconciled with the
General Counsel's position herein. Those cases clearly re-
quire a project-by-project inquiry into the majority status of'
the construction labor organization which would invoke
rights under Section 8(a)(5) of the Act. Such an inquiry
may not be aided by a "continuing presumption" of major-
ity status deriving from the labor organization's majorit'
status on earlier projects but, rather, requires some atirma-
tive indication that the labor organization enijosed majorit
support on the project in existence at the time of' the alleged
wrongful repudiation."
Other cases cited by the General Counsel. Ealt.crn I .s/-
ington Builders Chapter A GC, supra, and Dll~a Builing
and Construction Trades (Counil ( Islla ( ountIr ( )s.tlru -
lionl Emplovers' .ssociaio,. Inc.), 164 NI.RB 938 (1967),
are not inconsistent with this approach. Both cases arose in
clearly distinguishable factual and legal contexts. The
Board did not, in either case. fcus on the question of the
majority status of the unions involved ivi-a-vis the hargain-
ing units in question. While it is true that in each case the
Board suggested that the provisions of Section 8f) were not
addressed to the types of "successive" bargaining relation-
ships therein involved, it also appears that the Board as-
sumed that the unions were the majority representatives in
each unit based on the evidence reflecting an unbroken his-
tory of' successive collective-bargaining agreements hich
had been successively honored. Under such circumstances,
a majority of employees on a project covered bhs a given
union contract will ordinarily he members of the union in-
volved bh the employ er's routine resort to the union's hiring
hall and routine application of the union-securitl clause. il
for no other reasons. Accordingly. I do not read those cases
as creating a jural presumption of the tpe urged b, the
General Counsel herein.
Moreover. unlike the cases just discussed, as of April 24
Respondent and the Union had nlt been parties to a con-
'6'Citing David F Iin, al. d H'a The Intl-,lf Ael' ( tmpani. 194
NLRB 52 (1971 ). entforcement dened In part 475 F 2d 1265 (3d Cir 1973).
case cited by the General Counsel on brief herein. but which is otal! at
odds with the proposition which he urges. It s true that the Board. In is
McKelv,. upra. found that the employer therein had violated Sec (a)(5) hs
repudiating a contract initially entered into pursuant to Sec (itI, hut it .iA
critical to that result that the union was found, n act. to hase represented a
majority of the employees emplo3er's employees ho were ,aorking n the
project at the time of repudiation. See lnin tfcAcli . uprs at 53 h ,as
underscored hb the fact that the Board noted that the contract in qllet'on
would not present the employer from entering nto agreements .ith rlal
unions and. [by inferencel. with no union at all "on any uhslqutn prWo-
ects . so long as it did not employ at u(h proJet a 'ork hIrce iIt hich a
majority were [members of the union with which the emploer hd signed
the initial pre-hire agreementsl. [Emphasls supplied]" See /lr nit AcA.
supra at 53 The Supreme Court appears to hase embraced this ers dltin,
tion. uh rtlenlt., in the discussion of lInn-IlcAKeli contained n tlldt
Contracting supra at 65R
I This is not t say that "presumptions" night nt cme nlo pla is here.
for example a union attains majorit support in the earlier stages oi a con-
struction project or which it initially signed a prehire contract bat u here the
signatory employer repudiates the agreement and the bargaining relationship
later on in the same project due to an asserted ioss. n the meaintime. oit Hrih
majorit) support the Board's comments in Haberman. ilprai at tn I uig-
gest that such questions hase et to be finalls leiermined
271
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tinuous unbroken bargaining relationship involving succes-
sive application of union contracts at all of Respondent's
projects: and the signing of the April 24 agreement did not
constitute a mere renegotiation in due course of an old
agreement which had expired or was about to expire. More
accurately, there had been no contract or bargaining rela-
tionship between the parties fr almost I year prior to the
signing on April 24 of a new contract.l While, based on the
rule of Dee Cee, supra, this distinction would not appear
material in any case, it must be observed that the General
Counsel's characterization of the April 24 contract as
merely "successive" involves a straining of the facts.
Since the record fails to indicate that the Union enjoyed
the support of a majority of the employees employed at
Respondent's Brea, California, project at any time prior to
Respondent's repudiation of the April 24 contract, I con-
clude that such repudiation was lawful and privileged un-
der Section 8(f) of the Act. See Dee Cee, supra. Accord-
a" In this regard, I do not find persuasive the General Counsel's contention
that Respondent's filing of an 8(b)(3) charge against the Union in August
1977 may be treated as proof' that the Union was entitled to recognition as
the majority representative of Respondent's employees during the June 1977
to April 1978 hiatus period. While the charge and the informal settlement
thereof may be taken as an indication that Respondent's labor relations
representative. Sullivan. believed that such a relationship existed, it is just as
possible that the charge was for the sole tactical purpose of minimizing the
effects of picketing at the time. In any case, Sullivan's "assumptions" in this
regard do not establish in law what did not otherwise exist in fact. With
equal lack of logic, it could be argued that the fact that the Union never filed
an unfair labor practice charge under Sec. 8(a)(5) during the period June
1977 to April 24, 1978. but. rather. resorted to picketing as the sle means of
reestablishing a relationship with Respondent may be taken as evidence that
the Union had no right to recognition as the statutory representative of
Respondent's employees during that period.
ingly. I shall recommend dismissal of the complaint in its
entirety.
In view of the foregoing disposition I do not find it neces-
sary to consider Respondent's secondary defenses to its re-
pudiation of the April 24 agreement based on claims that
the agreement was void because it was signed under "du-
ress" and/or in response to allegedly unlawful picketing un-
der Section 8(b)(4)(A) of the Act for an object proscribed
by Section 8(e) of the Act.
CONCI.U;SIONS ()F LAW
I. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union and Local 652 are both labor organiza-
tions within the meaning of Section 2(5) of the Act.
3. Respondent did not commit unfair labor practices as
alleged in the complaint by repudiating the April 24 con-
tract and refusing to accord recognition to the Union there-
after as the bargaining representative of its employees.
Upon the foregoing findings of fact, conclusions of' law.
and the entire record and pursuant to Section 10(c) of the
Act I hereby issue the following recommended:
ORDER'
The complaint is dismissed in its entirety.
19 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings.
conclusions. and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations. be adopted by the Board and become its
findings. conclusions. and Order, and all objections thereto shall he deemed
waived or all purposes,
272