IBEC Housing Corporation

National Labor Relations Board - Board Decisions

Sep 28, 1979

245 N.L.R.B. 1282 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IBEC Housing Corporation and Confederacion Labo-
rista de Puerto Rico
United Brotherhood of Carpenters & Joiners of Amer-
ica, Puerto Rico District Council, AFL-CIO and
Confederacion Laborista de Puerto Rico. Cases 24-
CA-3791 and 24-CB-984
September 28, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELLO
On May 22, 1979, Administrative Law Judge Ivar
H. Peterson issued the attached Decision in this pro-
ceeding. Thereafter, Respondent IBEC Housing Cor-
poration and Respondent United Brotherhood of
Carpenters & Joiners of America, Puerto Rico Dis-
trict Council, AFL-CIO, filed exceptions and sup-
porting briefs.
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 only to
the extent consistent herewith.
IBEC is the general contractor for the construction
of housing units at the Rio Cristal project in Maya-
guez, Puerto Rico. It has a collective-bargaining
agreement with the Carpenters which requires that all
unit employees become members of the Carpenters
after the seventh day from their commencement of
work. As of November 9, 1976,1 approximately 10 to
12 of IBECs employees at the Rio Cristal project
were covered by this agreement.
On November 9, Bracero and Bravo Construction
Company, herein B and B, one of IBEC's subcontrac-
tors, declared bankruptcy and terminated all its em-
ployees, including approximately 260 rank-and-file
laborers, carpenters, masons, and helpers. At the
time, the Charging Party, Confederation Laborista
De Puerto Rico, was certified as the collective-bar-
gaining representative for these employees. On the
same day, IBEC terminated its subcontract with B
and B and elected to complete B and B's work itself
rather than obtain another subcontractor.
On November 10, IBEC hired B and B's former
supervisors as well as 220 to 230 of B and B's former
rank-and-file employees. Upon being hired by IBEC,
I All dates are in 1976.
these employees continued to work in the same classi-
fication, under the same supervisors, and performing
the same operations as they had as B and B employ-
ees.
The Administrative Law Judge found that IBEC
conditioned the hire of B and B's former employees
on their execution of checkoff authorizations for the
Carpenters. He concluded that IBEC violated Section
8(a)(1) and (2) by requiring the employees to become
members of the Carpenters and execute checkoff au-
thorizations and, pursuant thereto, that it violated
Section 8(a)(3) by deducting and remitting moneys to
the Carpenters. The Administrative Law Judge fur-
ther concluded that the Carpenters violated Section
8(b)(l)(A) and (2) by accepting exclusive recognition
for the new employees at a time when it was not their
majority representative and by accepting moneys de-
ducted pursuant to the checkoff authorizations.
Contrary to the Administrative Law Judge, we find
that neither IBEC nor the Carpenters violated the
Act in requiring the employees to become members of
the Carpenters, in light of their lawful union-security
agreement. The contract between IBEC and the Car-
penters covers all of IBEC's construction employees
at all construction sites in the Commonwealth of
Puerto Rico, excluding certain employees not perti-
nent herein and employees covered by a collective-
bargaining agreement between IBEC and any bona
fide union. There is no contention that the laborers,
carpenters, masons, and helpers hired by IBEC fol-
lowing the demise of B and B were not "construction
employees." The contract, therefore, clearly applied.
The union-security provision, which requires mem-
bership in the Carpenters, is the type specifically vali-
dated by Section 8(f) of the Act, which allows for
prehire agreements in the construction industry,2 and
there is no contention that the agreement itself vio-
lates the Act in any way.
Since IBEC required membership in the Carpen-
ters pursuant to a lawful 8(f) agreement covering all
its construction employees, the fact that the Carpen-
ters had not specifically demonstrated that it had
been selected as the representative of the newly hired
employees is, simply, immaterial. For the same rea-
son, a determination that the new employees consti-
tuted an accretion is unnecessary. Also immaterial is
the fact that the Charging Party formerly represented
these particular individuals in a unit which was ap-
propriate while they were employed by B and B. Ab-
sent any finding that IBEC was a successor to B and
B, which is not contended,3 IBEC was under no obli-
gation to either recognize the Charging Party or re-
2 See Progressive Construction Company, 218 NLRB 1368 (1975).
3 In his brief to the Administrative Law Judge, the General Counsel stated
that it was unnecessary to find that IBEC was a successor to B and B, and
the Administrative Law Judge made no finding on this issue.
245 NLRB No. 165
1282
IBEC HOUSING CORPORATION
frain from recognizing the Carpenters as the exclusive
representative of the employees. We therefore find
that IBEC and the Carpenters did not violate the Act
in requiring that the former B and B employees be-
come members of the Carpenters.
We do agree. however, with the Administrative
Law Judge's finding that IBEC violated Section
8(a)(2) and (1) by requiring that the employees ex-
ecute dues-checkoff authorizations. An employee has
a Section 7 right to refuse to sign a checkoff authori-
zation as a method a fulfilling his membership obliga-
tion under a lawful union-security agreement.4 Fur-
ther, by accepting moneys deducted pursuant to
coercively obtained authorizations, the Carpenters
violated Section 8(b)(1)(A). 5
AMENDED CONCLUSIONS OF LAW
Substitute the following for the Administrative
Law Judge's Conclusions of Law 3 and 4:
"3. By requiring that employees execute dues-
checkoff authorizations in favor of the Carpenters,
and remitting moneys deducted pursuant thereto,
IBEC violated Section 8(a)(1) and (2) of the Act.
"4. By accepting and retaining moneys deducted
pursuant to coercively obtained checkoff authoriza-
tions, the Carpenters violated Section 8(b)(1)(A) of
the Act."
AMENDED REMEDY
Contrary to the Administrative Law Judge we shall
not order that Respondent reimburse the employees
for any moneys deducted pursuant to the coercively
obtained checkoff authorizations. A reimbursement
order is unnecessary in the circumstances of this pro-
ceeding since the affected employees were subject to a
lawful union-security provisions obligating them to
pay to the Carpenters the sums deducted.6
4 International Union of Electrical, Radio and Machine Workers, Local 601.
AFL-CIO (Westinghouse Electric Corporation), 180 NLRB 1062 (1970).
5 The record indicates that the IBEC deducted moneys for periods prior to
the expiration of the 7day grace period established in the union-security
agreement. However, the Administrative Law Judge did not specifically find
that this action violated the Act, no exceptions were taken to his failure to so
find, and the issue was not specifically litigated. We. therefore, make no
finding in this regard.
In addition, the Administrative Law Judge found that, by deducting mon-
eys pursuant to the coercively obtained checkoff authorizations. IBEC vio-
lated Sec. 8(aX3) and that, by accepting such moneys, the Carpenters vio-
lated Sec. 8(bX2). However, these findings were based on the erroneous
conclusion that the employees could not lawfully be compelled to become
members of the Carpenters. Since it would not affect the scope of the rem-
edy, it is unnecessary to decide whether Respondents' conduct violated these
sections of the Act on some other basis.
See International Union of Electrical, Radio and Machine Workers, Local
601, AFL-CIO (Westinghouse Electric Corporation), supra, American Geriar-
ric Enterprises, Inc., and its Wholly-Owned Subsidiary Hamilton Medical Con-
valescent Center, Inc., 235 NLRB 1532 (1978).
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that:
A. Respondent IBEC Housing Corporation, Hato
Rey, Puerto Rico, its officers, agents, successors, and
assigns, shall:
I. Cease and desist from:
(a) Assisting the United Brotherhood of Carpen-
ters & Joiners of America, Puerto Rico District Coun-
cil, AFL-CIO, or any other labor organization, by
requiring employees to execute dues-checkoff authori-
zations and deducting and remitting moneys pursuant
thereto.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
their rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the
Act:
(a) Post at its offices and places of business in
Puerto Rico copies of the attached notice marked
"Appendix A."7 Copies of said notice, on forms pro-
vided by the Regional Director for Region 24, after
being duly signed by Respondent's representative,
shall be posted by it immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent Employer to insure that said notices are not al-
tered, defaced, or covered by any other material.
(b) Post at the same places under the same condi-
tions as set forth above, as soon as they are forwarded
by the Regional Director, copies of the attached no-
tice marked "Appendix B."
(c) Deliver to the Regional Director for Region 24
signed copies of the attached notice marked "Appen-
dix A" in sufficient numbers to be posted by the Re-
spondent Union in places where notices to its mem-
bers are customarily posted.
(d) Notify the Regional Director for Region 24, in
writing, within 20 days from the date of this Order,
what steps the Respondent Employer has taken to
comply herewith.
B. Respondent United Brotherhood of Carpenters
& Joiners of America, Puerto Rico District Council,
AFL-CIO, its officers, agents, and representatives
shall:
In the event that this Order is enforced by a Judgment of a United States
Court of Appeals. the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
1283
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from:
(a) Accepting and retaining moneys deducted from
employees of IBEC Housing Corporation, or any
other employer, where such deductions are pursuant
to coercively obtained checkoff authorizations.
(b) In any like or related manner restraining or co-
ercing employees in the exercise of their rights guar-
anteed by Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the
Act:
(a) Post in conspicuous places at its business of-
fices, meeting halls, and all other places where notices
to members are customarily posted, copies of the at-
tached notice marked "Appendix B."8 Copies of said
notice, on forms provided by the Regional Director
for Region 24, after being duly signed by Respon-
dent's authorized representative, shall be posted by it
immediately upon receipt thereof, and be maintained
by Respondent Union for 60 consecutive days there-
after, in conspicious places, including all places where
notices to members are customarily posted. Reason-
able steps shall be taken by Respondent Union to
insure that said notices are not altered, defaced, or
covered by any other material.
(b) Post at the same places under the same condi-
tions as set forth above, as soon as they are forwarded
by the Regional Director, copies of the attached no-
tice marked "Appendix A."
(c) Deliver to the Regional Director for Region 24
signed copies of the attached notice marked "Appen-
dix B" in sufficient numbers to be posted by Respon-
dent Employer in places where its notices to employ-
ees are customarily posted.
(d) Notify the Regional Director for Region 24, in
writing, within 20 days from the date of this Order,
what steps Respondent Union has taken to comply
herewith.
IT IS FURTHER ORDERED that all allegations of viola-
tions of the Act not specifically found herein be, and
they hereby are, dismissed.
I See fn. 7, supra.
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT assist United Brotherhood of
Carpenters & Joiners of America, Puerto Rico
District Council, AFL-CIO, or any other labor
organization by requiring that employees ex-
ecute dues-checkoff authorizations and deduct-
ing and remitting moneys pursuant thereto.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them by
Section 7 of the Act.
IBEC HOUSING CORPORATION
APPENDIX B
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT accept and retain moneys remit-
ted to us by IBEC Housing Corporation, or any
other employer, which have been deducted from
employees wages pursuant to dues-checkoff au-
thorizations not freely and voluntarily given.
WE WILL NOT in any like or related manner
restrain or coerce employees in the exercise of
rights guaranteed them by Section 7 of the Act.
UNITED BROTHERHOOD OF CARPENTERS &
JOINERS OF AMERICA, PUERTO Rco Ds-
TRICT COUNCIL, AFL-CIO
DECISION
STATEMENT OF THE CASE
IVAR H. PETERSON, Administrative Law Judge: The hear-
ing in this case was held on 4 consecutive days commencing
June 27, 1977, in Hato Rey. Puerto Rico, based upon the
complaint issued by the Regional Director for Region 24 on
May 26, which in turn was based upon charges filed by
Confederacion Laborista De Puerto Rico in Case 24-CA-
3791 on November 15, 1976, later amended, and in Case
24-CB-984 on November I 1, amended on May 10, against
IBEC Housing Corporation and United Brotherhood of
Carpenters & Joiners of America, Puerto Rico District
Council, AFL-CIO, herein called the Respondent and the
Carpenters, respectively. Briefly stated, the complaint al-
leges that, at a time when the Confederacion had recently
been certified as the exclusive bargaining representative for
a unit of construction employees at the housing project for
which Respondent IBEC is the general contractor, Respon-
dent IBEC accorded exclusive recognition to the Carpen-
ters for these construction employees and required that, as a
condition of hire or continued employment, under an exist-
ing union-security contract, they become members of and
execute checkoff authorizations in favor of the Carpenters,
pursuant to which authorizations Respondent IBEC did de-
duct dues from these employees and remit such dues to the
Carpenters. The complaint further alleges that by such con-
duct Respondent IBEC rendered assistance and support to
the Carpenters in violation of Section 8(a)(1), (2), and (3) of
the Act. In addition, the complaint alleges that by accept-
ing such recognition and dues, at a time when it was not the
freely chosen representative of the employees in question,
the Carpenters restrained and coerced these employees and
1284
IBEC HOUSING CORPORATION
caused and attempted to cause the Respondent IBEC to
discriminate against them in violation of Section 8(b)(l)(A)
and (2) of the Act. In its answer, dated June 15, Respondent
IBEC admitted certain jurisdictional allegations but denied
that it had engaged in any unfair labor practices. The Car-
penters, in its answer dated May 31, similarly admitted cer-
tain allegations but denied that it had engaged in any con-
duct violative of the Act.
Upon the entire record in the case, including my observa-
tion of the witnesses as they testified, and consideration of
the briefs filed with me on or about August 24. 1 make the
following:
FINDINGS OF FACT
1. JURISDICTION
Respondent IBEC is a corporation organized under the
laws of the Commonwealth of Puerto Rico. It is engaged in
the construction of houses and in general construction work
throughout Puerto Rico. Admittedly, it is engaged in com-
merce within the meaning of the Act and comes within the
jurisdictional standards of the Board. Respondent Carpen-
ters and the Charging Party, Confederacion, are labor or-
ganizations within the meaning of Section 2(5) of the Act.
The complaint alleged, but Respondent IBEC denied, that
IBEC, as a general contractor for an agency of the Com-
monwealth of Puerto Rico, undertook to build approxi-
mately I100 housing units at the Rio Cristal project in
Mayaguez, Puerto Rico, and subcontracted the structural
and masonry work at that project to Bracero & Bravo Con-
struction Corporation, Inc., herein referred to as B & B.
The classifications employed by B & B consisted of labor-
ers, carpenters, masons, helpers, and heavy equipment op-
erators, who are not involved in the present proceeding. On
November I, 1976, Confederacion was certified for a unit
consisting of the above-mentioned B & B employees. On
November 9, 1976, Respondent IBEC determined that, for
economic reasons, it would complete the work undertaken
by B & B, rather than obtain another subcontractor. In
accordance with that determination, representatives of Re-
spondent IBEC and B & B met with the foremen of B & B
near the end of the workday on November 10, and at that
time Respondent IBEC told the foremen of its decision and
offered to, and in fact did, hire about four or five of them.
The foremen who were hired were instructed to gather the
B & B employees who had been under their supervision
into a group the next day before worktime in order to tell
them about the situation and inform them that all who
wished to continue on the project could do so as employees
of Respondent IBEC. On the morning of November 11, the
foremen met with the employees, about 260 in number, and
some 220 of them were hired immediately by Respondent
IBEC. At that time, Respondent IBEC had about 10 or 12
employees at the project who were in the unit represented
by the Carpenters. The former B & B foremen, as well as
the former B & B employees they supervised, continued to
work in the same manner as they had before they were
hired by Respondent IBEC. Respondent IBEC made no
radical changes in the method of operation formerly uti-
lized by B & B. The foregoing findings are based upon the
exhibits introduced into evidence and the uncontradicted
testimony of Nelson Acosta, who was Respondent IBEC's
western area manager with an office at the project and was
responsible for the day-to-day operations of the project.
Before work began on November 12, representatives of
the Carpenters appeared at the project and obtained check-
off authorizations from the former B & B employees. As
counsel for the General Counsel points out, the manner in
which these authorization cards were obtained "is the crux
of this proceeding."
II. THE AI.(;EGED I:NFAIR LABOR PRACTICES
Ramon Velez Mangual, the president of Confederacion,
testified that he visited the project on November 10 in order
to bargain with B & B under the certification issued by the
Board on November I. B & B showed him a letter stating
that Respondent IBEC was taking over the B & B phase of
the work. As Mangual testified, Bracero called the chief
engineer for Respondent IBEC, one Betancourt, who
"would explain what was the situation about the IBEC and
the Carpenters' Union." According to Mangual, he de-
manded that Respondent IBEC negotiate with Confedera-
cion, but Betancourt stated that he did not have to negoti-
ate anything with Confederacion because Respondent
IBEC had a collective-bargaining agreement with the Car-
penters which had been in existence for about 15 years.
Mangual testified that he appeared at the project every
morning in order "to orient the workers," and he met Be-
tancourt, "who was gathering up the people and demanding
that the people join the Carpenters' Union," and that he
interrupted part of these meetings, 'indicating to him that
the Confederacion Laborista De Puerto Rico would pro-
ceed to file charges ... because of the refusal to bargain by
Bracero & Bravo and by IBEC." Velez Mangual further
testified that the foregoing occurred on November II and
that, on the following day, he heard Betancourt tell the
former B & B employees that "all personnel had to join the
Carpenters' Union in order to be able to go on working
there." The status of Betancourt as engineer for Respon-
dent IBEC, rather than for B & B, was confirmed by the
testimony of Acosta who, in relating the hierarchy of super-
vision above the nine foremen at the project, named Betan-
court as engineer for IBEC. Betancourt was not called as a
witness and, accordingly, the foregoing testimony of Velez
Mangual is uncontradicted.
A former B & B employee who was hired by Respondent
IBEC on November I I, Luis Fiallo, testified that at the
time when B & B ceased operations and Respondent IBEC
took over, one "Papo" Lopez, the former general foreman
for B & B who was hired in the same capacity by Respon-
dent IBEC, told him that he should join the Carpenters
Union. He further testified that he was told by Lopez to
sign the checkoff for the Carpenters, but that he refused to
do so, and one El Cano, another former B & B foreman
who was hired by Respondent IBEC, signed his name on
the card without his authorization. Neither Lopez nor El
Cano testified. Fiallo also related that when representatives
of the Carpenters visited the project, Betancourt was the
one "taking the names" and requiring employees to sign the
cards under pain of suspension. Betancourt did not testify.
A former B & B employee, Elmer Fernandez, who was
also hired by Respondent without any break in employ-
1285
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment, testified that a foreman called "Sijo" told him and
other employees the following: "Fellows, this is what hap-
pens. From this very moment you are going to earn $3.15
per hour. And on December I st you'll be earning $3.25. But
you have to go to the office and fill out the papers to join
the Union de Carpenters. If anybody refuses to sign, he
cannot work here." Following this incident, Fernandez
signed a checkoff authorization and dues were deducted.
"Sijo," whose real name is Jose Ramon Echevarria, denied
telling Fernandez and other employees that if they did not
join the Carpenters Union they would lose their jobs or not
be hired. He also denied that he told any other employee
that he had to join the Carpenters after being employed by
IBEC or else such employee would lose his job. Moreover,
he denied telling any employee that he had to sign a card to
authorize union dues deductions for the Carpenters. Coun-
sel for the General Counsel argues that in view of the lead-
ing nature of the questions put to Echevarria, his denials
are entitled to little weight. He further contends that, con-
trary to Acosta's testimony that pursuant to his instructions
the foremen met with the employees before work on No-
vember II1, Echevarria testified that the employees under
his supervision started work that day as they normally did,
and that after they began work he went from group to
group during working hours to give them the information
he had received the previous afternoon from Acosta. How-
ever, counsel for the General Counsel points out that all
other evidence in this regard shows that the foremen told
the employees before work of their discharge by B & B,
which had ceased operations, and the offer by IBEC to hire
them, which they accepted before going to work. No expla-
nation was offered by Echevarria for this apparent contra-
diction or inconsistency. None of the other foremen named
by Acosta as having been present and hired by IBEC, at the
afternoon meeting of November 10, was called by Respon-
dent IBEC to testify.
Pascual Ramos, an organizer for the Carpenters, testified
that during a routine visit to the project on November 12 to
see if existing employees of IBEC had any grievances, he
learned for the first time of the hiring of the former B & B
employees the preceding day. In addition, he testified that
his last such visit to this project was in March. He related
that in response to inquiries from the former B & B employ-
ees during the November 12 meeting, he explained the con-
tractual benefits, and they then agreed to sign checkoff au-
thorizations.
Counsel for the General Counsel contends that there is
no dispute that upon being hired IBEC, the former B & B
employees continued to work in the same classifications un-
der their former supervisors, performing the same opera-
tions as they had performed when B & B was their em-
ployer. He calls attention to the fact that there was no
functional integration or overlap between the existing 10 or
12 Carpenters unit employees of IBEC and the former B &
B personnel. Anticipating that the Respondent "will at-
tempt to argue that the B & B employees are an accretion
to the existing carpenters unit," in reliance upon Federal
Electric Corporation, 167 NLRB 469 (1967); he argues that
that case is distinguishable as there the employees found to
be accretions worked in the same classifications and under
the same immediate supervision as the employees in the
existing unit and did not outnumber the latter. He contends
that the evidence in the present case establishes a lack of
functional integration and interchange between the two
groups, and that since before the former B & B employees
had recently been found to constitute a separate appropri-
ate unit, he submits that any accretion argument is without
merit.
Counsel for the General Counsel also submits that by
accepting from IBEC exclusive bargaining authority, in-
cluding dues coercively checked off, at a time when it was
not in fact the freely chosen majority representative, the
Carpenters violated Section 8(b)( 1) and (2) of the Act.
On the other hand, counsel for Respondent argues that a
preponderance of the evidence "conclusively establishes"
that IBEC has not in any manner or fashion assisted the
Carpenters and, therefore, has not violated Section 8(a)(1),
(2), and (3) of the Act. He contends that "any acts of Re-
spondent which may be construed as constituting 'assist-
ance' to the Carpenters were performed as part of a pre-hire
agreement contained in the prevailing collective bargaining
agreement in compliance with Section 8(f) of the Act." He
further contends that Confederacion's request that IBEC
recognize the Confederacion as the representative of its em-
ployees formerly employed by B & B "constitutes an in-
ducement," or perhaps even coercion, for IBEC "to violate
its pre-hire agreement with the Carpenters and, therefore,
Section 8(a)(5) of the Act."
With respect to the issue of assistance to the Carpenters,
counsel for the Respondent contends that, as President
Mangual of the Confedercion testified, IBEC permitted rep-
resentatives of that union to speak to IBEC employees and
made no efforts to impede Confederacion representatives
from speaking with the employees. It is counsel's position
that "this testimony clearly demonstrates that IBEC did not
assist the Carpenters and that, far from it, IBEC gave the
Confederacion all the reasonable opportunities to obtain
whatever support they could get from the employees."
With respect to the prehire agreement issue, counsel for
the Respondent argues that "in view of the existence of a
valid pre-hire agreement between Respondent IBEC and
the Carpenters which was in full force and effect at the
dates pertinent . . . IBEC could not have violated the Act
by deducting dues from the salaries of former B & B em-
ployees and remitting said dues to the Carpenters and/or
by supposedly notifying said former B & B employees that
they had to sign dues check-off authorizations in favor of
the Carpenters." He argues that in Fenix & Scisson, Inc.,
207 NLRB 752 (1973), the employer and the union were
both found to have violated the Act "precisely because ihe
employer, who was engaged primarily in the construction
industry, had a previous and valid pre-hire collective bar-
gaining contract with another union." It is counsel's con-
tention that the findings in the foregoing case "are clearly
applicable to the facts and issues of the above captioned
case and that IBEC could not have violated and did not,
under the facts established on the record, violate Sections
8(a)(1), (2) and (3) of the Act."
Further, counsel for IBEC argues that the doctrine of
Midwest Piping and Supply Co., Inc., 63 NLRB 1060 (1945),
and of the cases which have followed that decision, are not
applicable to the present case for two reasons: (1) Midwest,
1286
IBEC HOUSING CORPORATION
so he argues, "establishes a requirement of neutrality for an
employer who is confronted by conflicting claims of major-
ity representation where there is not a prevailing valid col-
lective bargaining contract, which raises a question con-
cerning representation," and (2) because "Midwest does not
deal with a situation covered by Section 8(f) of the Act."
He contends that the facts and issues in the present case are
governed by Progressive Construction Corp., 218 NLRB
1368 (1975), where the Board explained the meaning and
purpose of Section 8(f) of the Act. It is his contention that
this decision "confirms the position of Respondent IBEC
that it would have been a breach of its duty to enforce the
commitments made with the Confederacion if IBEC had
not deducted dues from the wages of employees who had
signed dues check-off authorizations for the Carpenters." In
addition, he contends that close examination of the argu-
ment of the General Counsel demonstrates that "in order to
find merit to his theory and to concede the remedy by his
sought, would be the negation and annulment of the valid
pre-hire agreement which is currently in existence between
IBEC and the Carpenters."
Counsel for the Respondent concludes that IBEC. an em-
ployer in the construction industry with a prehire collective-
bargaining agreement with the Carpenters covering em-
ployees on an islandwide basis, increased its work force
because B & B filed bankruptcy and abandoned the' sub-
contracted work. He contends that when this occurred,
IBEC decided to recruit former B & B supervisors and em-
ployees. Then, on November 12, the Carpenters requested
and obtained dues authorization cards from such former B
& B employees and from other employees who had not
worked for B & B. He argues that Confederacion had won
an election and obtained certification as a representative of
the B & B employees before B & B went bankrupt. It is his
position that after IBEC had taken over the subcontract of
B & B, the Confederacion requested recognition from IBEC
as the representative of the former B & B employees under
the assumption that IBEC became a successor of B & B. It
is his contention that the assumption that IBEC is a succes-
sor of B & B "is clearly erroneous." This is so, he argues,
because at that time IBEC was a general contractor with an
islandwide prehire collective-bargaining agreement with the
Carpenters. Accordingly, it is his position that these facts
"cannot establish a situation of successorship but rather
that of an accretion of some 100 odd employees into a
much larger unit which could be estimated at 1200 employ-
ees at any given time."
ll. DISCUSSION AND CONCLUSIONS
As aptly pointed out by counsel for the General Counsel,
the central issue in this case relates to the circumstances
and manner in which representatives of the Carpenters ob-
tained checkoff authorization cards from the former B & B
employees on November 12, following the certification, on
November , of Confederacion as the collective-bargaining
representative of those employees when they were, in fact,
employed by B & B. There is no dispute that these employ-
ees, when hired by Respondent IBEC, continued to work in
the same classifications and under their former supervisors,
performing the same operations as they had performed
when they were employees of B & B. Moreover, the record
clearly establishes that the 10 or 12 employees in the Car-
penters unit were not functionally integrated with, and their
work did not overlap that of, the former employees of B &
B. In his brief, counsel for the General Counsel states that
he anticipates that the Respondents "will attempt to argue
that the B & B employees are an accretion to the existing
Carpenters' unit, relying, as they did at the hearing, on Fed-
eral Electric Corp., 167 NLRB 469." My review of the tran-
script does not reveal that counsel for the Respondent
IBEC made such an argument on the record although, of
course, it is possible that he advanced that contention dur-
ing the course of off-the-record discussions.' In any event,
the Federal Electric case, decided by the Board in 1967. is
distinguishable from the present case, substantially for the
reasons enumerated by counsel for the General Counsel. As
ably stated by my colleague, Judge Leff, in Hershey Foods
Corporation, 208 NLRB 452 (1974), at 458:
It is well settled that the doctrine of accretion will
not be applied where the employee group sought to be
added to an established bargaining unit is so composed
that it may separately constitute an appropriate bar-
gaining unit .... Nor will it be applied by the Board in
situations where the employee group. though in exis-
tence at the time, was excluded from previously negoti-
ated collective-bargaining contracts covering the bar-
gaining unit to which its accretion is claimed .... As a
prerequisite to the addition of any such employee
group to an established unit, the law requires the ma-
jority consent of those to be added, expressed either in
a self-determination election or by some other lawfully
acceptable method.
As related above, Nelson Acosta, Respondent IBEC's
western area manager, met on November 10 with the for-
mer B & B foremen, hired them, and told them to meet with
the former B & B employees before operations began the
following morning to inform them of their termination by B
& B because of B & B's bankruptcy, and to tell them that
IBEC wished to hire them. Moreover, there is no dispute
that Betancourt, the engineer for IBEC, and Foreman Lo-
pez told the former B & B employees that if they did not
sign checkoff authorizations for the Carpenters, they could
not work on the project.
One witness called by counsel for the General Counsel,
Luis Fiallo, testified concerning the cessation of operations
by B & B and the assumption of control by Respondent
IBEC. At the time he testified, he had worked on the proj-
ect for about 3 years and held the position of delegate for
Confederacion when the transition between B & B and Re-
spondent IBEC occurred. Fiallo had some difficulty with
the English language, which required that the official inter-
preter on occasion translate his testimony. In his brief,
counsel for Respondent IBEC states that Fiallo's testimony
". . besides being very unreliable and obviously inconsis-
tent, is permeated with a clear partiality in favor" of Confe-
deracion and "a manifest prejudice against the Respon-
dents." He refers to two portions of the official transcript
and states that on one occasion Fiallo testified in substance
"that he does not have the type of mind that remembers
I Counsel did refer to Federal Eleciric, but in a somewhat different context.
1287
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dates but he later states that he distinctly remembers that
he talked to Papo Lopez on the precise date of November
10, 1976," and "also testified that 'El Cano' signed the
union dues authorization on his behalf, but that he is un-
able to distinguish the handwriting of 'El Cano' or of any-
one else because he cannot read or write except to sign his
own name." Further, counsel points out that Fiallo "testi-
fied that several employees were suspended by IBEC for
not signing dues check-off authorizations" for the Carpen-
ters, but that in his affidavit to the Board he "stated that 'as
far as I know, they have not fired anybody for not signing' "
a card for the Carpenters.
Counsel asserts the "most glaring contradiction in his tes-
timony appears in two statements found at the beginning of
his record appearance, and during the latter part." It is his
position that in view of these problems, "the testimony of
Luis Fiallo should be disregarded and not credited, because
it is totally unreliable, prejudiced and contradictory." The
testimony referred to is as follows: Fiallo stated that he
spoke to Lopez on November 10 and, in reply to the ques-
tion whether he was certain of the date, he replied in the
affirmative. Shortly thereafter, he was asked whether, in the
event "there appers a stipulation of a card on your name for
union dues deductions, would you say that would be the
approximate time that your conversation with Papo Lopez
took place? January 12?" Fiallo replied as follows: "More
or less." Counsel points out that the stipulation referred to,
which appears in the official transcript two pages earlier,
was proposed by counsel for IBEC, as follows: "The stipu-
lation is, Your Honor, that in the records that were subpoe-
naed by Mr. Boyd, there is a copy of a union dues deduc-
tion authorization for Luis Fiallo-Ramos on behalf of the
Carpenters' union employed by IBEC at the Rio Cristal,
Mayaguez, authorizing him to deduct union dues, dated
Month 1, day 12, year 1977." Counsel for the General
Counsel so stipulated and added, "I stipulate that the hand-
writing is entirely different from everything else on the
card."
Careful consideration has been given to this argument of
counsel and the testimony of Fiallo has been read several
times. It is my impression that, if Fiallo were testifying
falsely in regard to an important issue such as this, counsel
for Respondent IBEC would have undertaken to refute it,
which, insofar as I am aware, he could have done by pro-
ducing as witnesses the persons mentioned by Fiallo. More-
over, Fernandez, who had previously been employed by B
& B and was hired by Respondent IBEC with no break in
employment, related, as set forth above, what Foreman Sijo
had told the employees concerning the necessity of signing
a checkoff authorization for the Carpenters in order to re-
main employed. Fernandez did sign a dues-checkoff autho-
rization, and dues were deducted from his pay. While Fer-
nandez placed the date of this as having occurred between
November 4 and 10, the question put to him as to when he
did sign the checkoff card was stated in terms of "more or
less" and, in fixing the time as between November 4 and 10,
Fernandez stated it occurred "around there." It seems evi-
dent that Fernandez was not undertaking to fix the date
exactly, as is indicated by his further testimony, when,
asked whether at the time he spoke to him, Sijo was "speak-
ing on behalf of Bracero and Bravo" or "on behalf of
IBEC," he stated that Sijo was speaking "For IBEC Com-
pany."
Jose Ramon Echevarria, whose nickname is "Sijo", testi-
fied that he did not tell Fernandez and other employees
"that if they did not join the Carpenters Union they would
lose their jobs or not be hired." In answer to some rather
leading questions, he also denied that he told any other
employee that it was necessary to join the Carpenters after
being hired by IBEC or lose his job, or informed any em-
ployee that he had to sign a checkoff authorization for the
Carpenters. It is also to be observed that he testified, con-
trary to the account given by Acosta, that the employees
under his supervision began work that day as they normally
did, and, after they started work, he went from group to
group during working hours giving them the information he
had received the previous afternoon from Acosta. It is to be
observed that all other evidence with respect to this matter
is to the effect that the foremen told the employees before
work of their termination by B & B, which had ceased op-
erations, and the offer of Respondent IBEC to hire them,
which they accepted before they went to work. The record
contains no explanation by "Sijo," such as arriving late to
work that morning, of this apparent inconsistency. It should
further be noted that Respondent IBEC called none of the
other foremen named by Acosta as having been present and
hired by IBEC at the afternoon meeting of November 10.
Further, it should be noted that Pascual Ramos, an orga-
nizer for the Carpenters, testified that during a routine visit
to the project on November 12 to ascertain whether em-
ployees of Respondent IBEC had any grievances, he for the
first time learned that the former B & B employees had
been hired the preceding day. He stated that his last visit to
the project occurred in March and testified that, in response
to inquiries from the former B & B employees during the
November 12 meeting, he outlined to them their benefits
under the contract and thereupon they agreed to sign
checkoff authorizations.
After careful consideration of the record and the argu-
ments of able counsel, I am persuaded that, in substantial
part, the position of counsel for the General Counsel is sup-
ported. As previously found, no functional integration or
overlap exists between the some 10 to 12 employees repre-
sented in the Carpenters unit of Respondent IBEC and the
former B & B employees. Nor do I find that the B & B
employees are an accretion to the existing unit represented
by the Carpenters. This is so because there is a lack of
functional integration and interchange between the two
groups, the former B & B employees were by far the larger
of the two, and, moreover, the B & B employees had re-
cently been found to constitute a separate appropriate unit.
Accordingly, there is no merit to the suggestion that there
was an accretion.
As we have seen, Acosta met with the former B & B
foremen on November 10, 1976, hired them, and told them
to meet with the former B & B employees before work the
following morning, notify them of their termination by rea-
son of the bankruptcy of B & B. and advise them that IBEC
was willing to hire them. There is no dispute that Betan-
court, an engineer with IBEC, and Foreman Lopez advised
the former B & B employees that if they did not sign check-
off authorizations for the Carpenters, they could not work
1288
IBEC HOUSING CORPORATION
on the project. Indeed, Foreman El Cano signed a card for
an employee who refused to do so. I conclude that the con-
duct of Betancourt, Lopez, and El Cano is violative of Sec-
tion 8(a)(1) and (2) of the Act. Indeed, it is admitted that
beginning with the week ending November 19, 1976, Re-
spondent IBEC deducted dues pursuant to the authoriza-
tions signed by the employees and remitted such dues to
Respondent Carpenters. I find such conduct violative of
Section 8(a)(3) of the Act. I further find that Respondent
Carpenters, by accepting exclusive bargaining authority, in-
cluding dues coercively checked off, from Respondent
IBEC, at a time when it was not the freely chosen majority
representative, violated Section 8(b)(l) and (2) of the Act.
CONCLUSIONS OF LAW
1. IBEC Housing Corporation, Hato Rey, Puerto Rico,
is an employer engaged in commerce within the meaning of
Section 2(6) an (7) of the Act.
2. Confederacion Laborista De Puerto Rico and United
Brotherhood of Carpenters & Joiners of America, Puerto
Rico District Council, AFL-CIO, are labor organizations
within the meaning of Section 2(5) of the Act.
3. The Respondent IBEC has engaged in unfair labor
practices within the meaning of Section 8(a)(l), (2), and (3)
of the Act.
4. The Respondent Carpenters has engaged in unfair la-
bor practices within the meaning of Section 8(b)(1) and (2)
of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
It having been found that Respondent IBEC has engaged
in unfair labor practices in violation of Section 8(a)(1), (2),
and (3) of the Act and that Respondent Carpenters has
engaged in unfair labor practices in violation of Section
8(b)(1) and (2) of the Act, it will be recommended that each
cease and desist therefrom and take certain affirmative ac-
tion designed to effectuate the policies of the Act.
In his brief, counsel for the General Counsel requests
that "any appropriate remedy should include joint and sev-
eral reimbursement by the Respondents of the dues in-
volved herein" and that the "monetary remedy should be
accompanied by interest at the rate of 9 percent, rather
than the present 6 percent." I agree with the first conten-
tion, and will so provide. However, in my opinion I lack
authority to provide for the higher rate of interest. In my
view, that is a matter to be determined by the Board and
not an administrative law judge.
[Recommended Order ommitted from publication.]
1289