Ken Hash Construction, Inc.

National Labor Relations Board - Board Decisions

Apr 30, 1987

283 N.L.R.B. 822 (N.L.R.B. 1987)

822 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Ken Hash Construction , Inc., and District Council of
Carpenters of Seattle , King County and Vicini-
ty. Case 19-CA-15705
30 April 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND STEPHENS
On 30 January 1984 Administrative Law Judge
David G. Heilbrun issued the attached decision.
The General Counsel filed exceptions and a sup-
porting brief and the Respondent filed an answer-
ing brief.
The National .Labor Relations Board has delegat-
ed its authority- in this proceeding to a three-
member panel.
The Board has considered' the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions only to the extent consistent with this
Decision and Order.
As found by the judge, the Respondent is "an
employer engaged primarily -in the building and
construction industry" within the meaning of Sec-
tion 8(f) of the Act. In John Deklewa & Sons, Inc.,
282 NLRB 1375 (1987), the Board overruled R. J.
Smith Construction Co., 191 NLRB 693 (1971), enf.
denied sub nom. Operating Engineers Local 150 v.
NLRB, 480 F.2d 1186 (D.C. Cir. 1973), abandoned
the conversion doctrine, and modified unit scope
rules in 8(f) cases. The Board decided to apply the
following principles (at 1377-1378):
(1) a collective-bargaining agreement permit-
ted by Section 8(f) shall be enforceable
through the mechanisms of Section 8(a)(5) and
Section 8(b)(3); (2) such agreements will not
bar the processing of valid petitions filed pur-
suant to Section 9(c) and Section 9(e); (3) in
processing such petitions, the appropriate unit
normally will be the single employer's employ-
ees covered by the agreement; and (4) upon
the expiration of such agreements, the signato-
ry union will enjoy no presumption of majori-
ty status, and either party may repudiate the
8(f) bargaining relationship.
Applying Deklewa to the instant case, we reverse
the judge and conclude that the Respondent violat-
ed Section 8(a)(5) and (1) of the Act. On 27 August
1981 the Respondent entered into a compliance
agreement with the Union, which bound it to all
provisions of the existing Western and Central
Washington Area labor contract between the Asso-
ciated General Contractors of America and perti-
nent affiliates of the United Brotherhood of Car-
penters and Joiners of America. The contract was
effective until 1-June 1983. On , 8 February 19$3 the
Respondent repudiated the compliance agreement.
The complaint alleges that since that date the Re-
spondent has violated Section 8(a)(5) by failing to
continue in full force and effect all the terms and
conditions of the agreement.
Under the first Deklewa principle, the collective-
bargaining- agreement is enforceable under Section
8(a)(5) of the Act. However, under the fourth prin-
ciple, the Union enjoyed no presumption of majori-
ty status following the contract 's expiration date of
1 June 1983 , and thus at that point the Respondent
was free to repudiate the 8 (f) bargaining relation-
ship. Therefore we find that the Respondent violat-
ed Section 8(a)(5) and (1) of the Act by repudiating
the 1981-1983 contract with the Union during the
contract term and shall limit the make-whole
remedy accordingly.
CONCLUSIONS OF LAW
1. The Respondent is an employer- engaged in
commerce -within the meaning of Section 2(6) and
(7),of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By repudiating its - 1981-1983 collective-bar-
gaining agreement with the Union and withdraw-
ing recognition from the Union during the term of
the collective-bargaining agreement, the Respond-
ent has engaged in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act.
4. The unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that the Respondent has engaged
in certain unfair labor practices, we shall order that
it cease and desist and take certain affirmative
action designed to effectuate the policies of the
Act. We shall order the Respondent to make its
employees whole, as prescribed in Ogle Protection
Service, 183 NLRB 682 (1970), for any losses they
may have suffered as a result of the Respondent's
failure to adhere to the contract from 8 February
1983 until 1 June 1983, with interest as computed
in Florida Steel Corp., 231 NLRB 651 (1977).1
' Because the provisions of employee benefit fund agreements are van-
able and complex, the Board does not provide at the adjudicatory stage
of the proceeding for the addition of interest at a fixed rate on unlawfully
withheld fund payments. Therefore, any additional amount owed with re-
spect to the health and security fund and pension plan shall be deter-
mined in accordance with the procedure set forth in Merryweather Optical
Co., 240 NLRB 1213, 1216 fn. 7 (1979)
283 NLRB No. 132
KEN HASH CONSTRUCTION 823
ORDER
The National Labor Relations Board orders that
the Respondent,' Ken Hash Construction, Inc.,
Renton, Washington, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Withdrawing recognition during the, term of
a collective-bargaining , agreement from District
Council-of Carpenters of Seattle, King County and
Vicinity, as the exclusive collective-bargaining rep-
resentative of the Respondent's employees covered
by the agreement.
(b) Refusing to adhere to its 1981-1983 collec-
tive-bargaining agreement with the Union until the
1 June 1983 expiration date.
(c) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Make whole the above-described employees,
in the manner set forth in the remedy, for any
losses they may have suffered as a result of the Re-
spondent's failure to adhere to the contract from 8
February 1983 until it expired on June 1983.
(b) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(q) Post at its Renton, Washington office copies
of the attached notice marked "Appendix."2
Copies of the notice, on forms provided by the Re-
gional Director for Region 19, 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 employees 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.
(d) Sign and return to the Regional Director suf-
ficient copies of the attached notice marked "Ap-
pendix" for posting by District Council of Carpen-
ters of Seattle, King County and Vicinity, if will-
ing, in conspicuous places where notices, to em-
ployees and members are customarily posted.
(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE,
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National , Labor Relations Act
and has ordered us to post and abide by this notice.
- WE WILL NOT, during the term of a collective-
bargaining agreement , repudiate that agreement
and withdraw recognition from District Council of
Carpenters of Seattle, King County and Vicinity,
as the exclusive collective -bargaining representative
of our employees covered by the agreement.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL make our employees whole for any
losses they may have suffered ' as a result of our
failure to adhere to the 1991-1983 contract with
the Union until the contract expired on 1 June
1983.
KEN HASH CONSTRUCTION, INC.
George L Hamano, for the' General Counsel.
Judd H. Lees, of Mercer Island, Washington, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
DAvm G. HEILBRUN, Administrative Law Judge. This
case was tried at Seattle, Washington, September 27,
1983.1 The charge was filed by District Council of Car-
penters of Seattle, King County and Vicinity (the
Union), on May 13, and the complaint was issued June
28. The primary issues are whether Ken Hash Construc-
tion, Inc. (Respondent), repudiated a collective-bargain-
ing agreement with the Union on February 8, and there-
after until June unlawfully failed to maintain in effect
'former terms and conditions of employment, in violation
of Section 8(a)(1) and (5) of the National Labor Rela-
tions Act.
On the entire record,2 including my observation of the
demeanor of witnesses, and after consideration of briefs
2 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al 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."
I All dates and named months hereafter are in 1983, unless otherwise
indicated
2 The General Counsel's unopposed motion to correct the transcript,
dated October 31, is granted and received in evidence as G.C. Exh. 19.
824 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
filed by the General Counsel and Respondent, I make
the following
FINDINGS OF FACT
1. JURISDICTION
Respondent maintains an office and place of business
in Renton, Washington, where it is engaged as a general
contractor in commercial building construction. During a
representative past 12-month period, it had gross sales in
excess of, $500,000 and sold goods or provided services
valued in excess of $30,000 from facilities in Washington
to customers within the State, each of whom met an
other than indirect jurisdictional standard of the National
Labor Relations Board, while during that same repre-
sentative period purchasing goods and materials directly
from outside the State valued at $2500, and purchasing
goods and materials from suppliers within Washington,
each of whom had in turn obtained such goods and ma-
terials directly from sources outside the State, valued at
$39,000. Respondent admits and I find that it is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act, and that the Union is a labor
organization within the meaning of Section 2(5).
IL ALLEGED UNFAIR LABOR PRACTICES
A. Basis of Analysis
On August 27, 1981, Respondent entered into a com-
pliance agreement with the Union, which bound it to all
provisions of the existing Western and Central Washing-
ton Area labor contract between the Associated General
Contractors of America (AGC) and pertinent affiliates of
the United Brotherhood of Carpenters and Joiners of
America (UBCJA). Thereafter in workweeks from that
ending Wednesday, September 23, 1981, to that ending
February 9, Respondent paid applicable wage scale to its
carpenter employees and made periodic contributions to
benefit funds. On February 8 Ken Hash, Respondent's
president, wrote the Union advising that the initial com-
pliance agreement was repudiated.
During the approximate 18-month period following its
effectiveness, Respondent had performed various jobs
within the Union's geographical jurisdiction as a tenant
improvement contractor. About half these were at Belle-
vue Square Shopping Center, while the balance were
miscellaneous commercial or residential projects in the
vicinity. Respondent's steadiest employee was Steven
Schneider, a cousin-in-law to Hash. Schneider worked
close to a full-time basis during October and November
1981, and then tapered off into, the new year following
which he did not reappear on the payroll for 6 months
because of a skiing injury. Then for the fall and winter
months of 1982-1983, his pattern of hours worked resem-
bled those of the prior year. Schneider's chief replace-
ment was S. Robert Tellefson, who averaged 72 hours
per week from February through June 1982 and worked
briefly again in the fall. Two other persons with signifi-
cant employment were Jerry Wysocki and John Stenslie,
whose total annual hours of at least 230 each were con-
centrated in early and late 1982, respectively. Hash uti-
lized Chris Hall as a carpenter for 104 hours work in
early 1982 and employed former coworker Alvin Klein
for 128 hours spread over September and October of that
year. Robert Bineck worked an insignificant 30 hours
during spring of 1982, and Keith Hanson had a tryout as
journeyman carpenter in August, which lasted only 14
hours.
Of Respondent's approximately 20 projects during
times material to the case, excluding those under 8 hours
total time, Schneider worked on 13, Tellefson worked on
5, while Wysocki and Stenslie each worked on 4. All
carpenters employed by Respondent were members of
locals affiliated with the Union, and the only cessation of
membership involved Schneider who took a withdrawal
from Local 1797 in March 1983.
B. Analysis
This is a classic situation of an employer executing a
prehire agreement authorized by Section 8(1) of the Act
at a time when it had no employees, and then commenc-
ing operations appropriate to its business purpose. In that
setting the questions are those of whether a permanent
and stable work force was achieved, and whether the
Union represented a majority of an appropriate unit
within such work force.
Here the very nature of Respondent's business antici-
pates the random deployment of carpenters as various
renovation work progresses towards completion. A serv-
ice of this type is not akin to construction projects in
which employment concentrates in a series of discrete
jobsites. For this reason the overall profile of when and
to what degree carpenters were utilized is the most re-
vealing test on the issue' of whether operations led to re-
opening of the compliance' agreement into a recognizable
bargaining obligation under Section 9(a).
Such an examination shows only limited, sporadic use
of the craft, insufficient to demonstrate that a requisite
nucleus of employees was at any time the core work
force of permanence and stability over any significant
period of time . Cf. Hageman Underground Construction,
253 NLRB 60 (1980). With rare exception, there , was
only one carpenter with substantial employment in each
of the passing months. The first such occasion was that
of November 1981 when Wysocki joined Schneider to
the extent of 40 hours work during the month. Wysocki
did not continue on the payroll during December 1981
and reappeared for only 114 and 90 hours in February
and March 1982, respectively, plus an insignificant 3
hours work later in June. Tellefson became Schneider's
essential replacement, but aside from February and
March 1982 when he combined variously with Wysocki
and Hall for 195 and 214 total monthly hours of work he
did not function as part of any appreciable nucleus of
employees until Schneider himself had returned by Sep-
tember 1982. In that month, as well as October and No-
vember directly following, Respondent's use of carpen-
ters peaked with 289, 307, and 258 hours, respectively.
However, these totals include Klein, who worked only
portions of 2 consecutive months and Hanson, who was
quickly found unqualified. From December 1982 onward
only Schneider remained on the payroll, the consequence
of this overall review showing only fortuitous , casual
KEN HASH CONSTRUCTION
and irregular calling of personnel in a manner that lacks
the requisite doctrinal characteristic of permanence and
stability, let alone a showing of employee combinations
for even a significant span of time.
Beginning with 1983 , Respondent employed only
Schneider, a circumstance leaving the carpenter craft
bargaining unit inappropriate . The same policy grounds
825
that influence the Board to decline issuing certifications
in single person units apply when it is sought to elevate
an 8(f) undertaking to that in which majority representa-
tive status is claimed . Accordingly, I render a conclusion
of law that Respondent has not violated the Act as al-
leged.
[Recommended Order omitted from publication.]