L. B. Priester & Son, Inc.

National Labor Relations Board - Board Decisions

Sep 18, 1980

252 N.L.R.B. 236 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
L. B. Priester & Son, Inc. and Carpenters Local
2313, United Brotherhood of Carpenters and
Joiners of America, AFL-CIO. Cases 15-CA-
6645 and 15-CA-6907
September 18, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On May 9, 1980, Administrative Law Judge J.
Pargen Robertson issued the attached Decision in
this proceeding. Thereafter, counsel for the Gener-
al Counsel filed exceptions and a supporting brief,
and Respondent filed exceptions and a supporting
brief and an answering brief to the exceptions of
counsel for the General Counsel.
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, find-
ings,' and conclusions2 of the Administrative Law
Judge, as modified herein, and to adopt his recom-
mended Order, as modifed herein.
In his Decision, the Administrative Law Judge
found that the General Counsel should have in-
cluded all allegations that Respondent paid wages
below contract scale in the proceedings in Case
15-CA-6645, and that the General Counsel was
therefore precluded under Jefferson Chemical Com-
pany, Inc., 200 NLRB 992 (1972), from recovery
on all such underpayments which occurred before
the November 28, 1977, settlement in that case.
The General Counsel excepts to this finding, argu-
ing that since the settlement in Case 15-CA-6645
was later vacated, the violations which were al-
leged to have occurred before the November 28,
1977, settlement could therefore be litigated and re-
medied in the subsequent consolidated case. We
find merit in the General Counsel's exception.
The Charging Party, Carpenters Local 2313,
filed a charge in Case 15-CA-6645 (hereinafter
Case #1) on September 30, 1977, alleging viola-
tions of Section 8(a)(5), (1), and 8(d) of the Act.
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
I In his Decision, the Administrative Law Judge lists the names of var-
ious employees who worked as carpenters for Respondent at different
jobsites. We note that this list may not be a complete list of all of the
employees who worked for Respondent as carpenters at these sites.
252 NLRB No. 34
Subsequently, before a complaint was issued, the
Regional Director for Region 15 on November 28,
1977, approved an informal settlement of the case.
As part of that settlement, Respondent was re-
quired to pay three carpenter employees backpay
claims for work performed between August I and
November 9, 1977. On May 22, 1978, the Charging
Party filed a charge in Case 15-CA-6907 (herein-
after Case #2) alleging violations of Section 8(a)(5)
and (1) of the Act. After investigation, the conduct
alleged in Case #2 was found to constitute non-
compliance with the settlement agreement in Case
#1. Consequently, on August 10, 1977, the Region-
al Director vacated the settlement, and, on August
16, 1977, the two cases were consolidated, and a
consolidated complaint issued. The consolidated
complaint alleges, inter alia, that Respondent failed
to pay employees the contractual wage scale at
two projects at the U.S. Naval Air Station in Me-
ridian, Mississippi. At the hearing, the General
Counsel amended the complaint to include under-
payments by Respondent at other jobsites between
November 1, 1977, and July 31, 1979.
In his Decision, the Administrative Law Judge
found that Respondent failed to pay carpenter em-
ployees contractual wage scale at three jobs at the
U.S. Naval Station and at seven other jobs.3 As
previously noted, the Administrative Law Judge
also found that the General Counsel should be
denied recovery on all such underpayments occur-
ring before the approval of the November 28, 1977,
settlement agreement under Jefferson Chemical
Company, supra. However, that case dealt with a
different issue; namely, the effect of the General
Counsel's failure to litigate all aspects of an 8(a)(5)
and (1) allegation in an earlier case.4 The Board
held that the General Counsel was barred from
raising certain issues since they should have been
litigated in the earlier case. No such circumstance
exists in this case. Here, the parties entered into an
informal settlement agreement which was later va-
cated; the vacation of the settlement then resulted
in the issuance of a consolidated complaint based
on the first and second charge. Once vacated, a
settlement is a nullity, and cannot limit subsequent
litigation of violations alleged to have occurred
before that settlement. Thus, in such circumstances,
violations of the Act which antedate the settlement
may be litigated and remedied. See Universal Build-
ing Services, Inc., 234 NLRB 362 (1978). We there-
3 These seven jobs were at the Davidson Rest Home in Laurel; a
church in Needham, Alabama; the Northview Assembly of God Church;
the Lauderdale County Courthouse; the New Hope Baptist Church; the
Matty Hersee Hospital; and the Merchant and Farmers Bank.
Chairman Fanning and Member Jenkins find it unnecessary to distin-
guish Jefferson Chemical Company since they would not follow that case
in any event. See their dissenting opinion in that case.
236
L. B. PRIESTER & SONS INC.
fore find that the Administrative Law Judge erred
by finding that the terms of the settlement agree-
ment limited the General Counsel's recovery on
Respondent's failure to pay contractual wages to
instances which arose after the vacated November
28, 1977, settlement. We find, instead, based on the
Administrative Law Judge's finding that Respond-
ent failed to sign or comply with the 1977 collec-
tive-bargaining agreement, that recovery may be
had for Respondent's failure to pay its carpenter
employees the wage scale under that agreement
from the agreement's effective date of August 1,
1977. We shall therefore amend the Administrative
Law Judge's recommended Order, Remedy, and
notice accordingly. 5
Amended Remedy
In his remedy, the Administrative Law Judge
found that Respondent should be ordered to make
whole those apprentice and journeyman carpenters
which it employed at wage rates below those es-
tablished in the collective-bargaining agreement be-
tween November 29, 1977, and July 31, 1979. For
the reasons discussed above, we find that Respond-
ent must also make whole those employees paid
below the contractual wage rates between August
I and November 29, 1977. In footnote 4 of his De-
cision, the Administrative Law Judge further limit-
ed recovery to "those employees which were pre-
viously certified as journeyman or which the
Union does certify on a nondiscriminatory basis in
accordance with established policy, as having
qualified as journeyman during the material times,
and are entitled to future referrals as journeyman,
without regard to Union affiliation.[sic]" The Ad-
ministrative Law Judge reasoned that to hold oth-
erwise might result in unjust enrichment to those
employees so unskilled that they would not have
been referred to jobs under the collective-bargain-
ing agreement. However, this is inconsistent with
the Administrative Law Judge's own finding that
the collective-bargaining agreement only provided
two categories of carpenters at the nonforeman
level, "journeyman" and "apprentice," that "ap-
prentice" was limited to those employees involved
in a 4-year apprenticeship program, and that all
other carpenters employed by Respondent on jobs
within the contract's jurisdiction were necessarily
"journeyman" for purposes of the contract, regard-
less of their abilities. Since the Union did not serve
as an exclusive hiring hall for Respondent under
the contract, Respondent was free to hire employ-
' This date is within the 10(b) period with respect to the charge filed
in Case 15-CA-6645. All violations found herein are related to the 8(aX5)
and (I) violations alleged in that charge and are therefore within the
10(b) period.
ees possessing any level of skill it wished; however,
Respondent was then obligated to pay those em-
ployees journeyman wages, since it was bound by
the collective-bargaining agreement. We shall
therefore order Respondent to make whole the em-
ployees who are not found to be apprentices, at the
journeymen rates provided by the collective-bar-
gaining agreement.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
L. B. Priester & Son, Inc., Meridian, Mississippi, its
officers, agents, successors, and assigns, shall take
the action set forth in the said recommended
Order, as so modified:
1. Substitute the following for paragraph 2(a):
"(a) Make whole those employees employed by
it in the bargaining unit as apprentice and journey-
men carpenters during the term of its collective-
bargaining agreement of 1977-79, at any time on or
after August 1, 1977, in the manner set forth in the
section of the Administrative Law Judge's Deci-
sion entitled 'The Remedy,' as modified by the
Board's Decision and Order."
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to recognize and bar-
gain collectively with Carpenters Local 2313,
United Brotherhood of Carpenters and Joiners
of America, AFL-CIO, as the representative
of our employees within the bargaining unit
described below:
Employees who are employed by members
of the Meridian Contractors Association,
Inc., within and under the jurisdiction of the
Union in the following counties: Lauderdale,
Kemper, Neshoba, Clarke, and Newton
Counties in Mississippi, Choctaw and
Sumter Counties, Alabama, West of High-
way 17 including the cities bordering High-
way 17 inside their city limit lines and the
following counties or parts thereof, which is
not a part of the agreement: Jones, Jasper,
Smith, Simpson, Covington and Wayne
237
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Counties in Mississippi, Washington County
in Alabama.
WE WILL NOT hereafter withdraw from Me-
ridian Contractors Association after the Asso-
ciation has negotiated on our behalf a collec-
tive-bargaining agreement with the aforesaid
Union, or any other labor organization, and,
thereafter refuse to sign that collective-bar-
gaining agreement and be bound by it.
WE WILL NOT unilaterally, without bargain-
ing with the Union, change the wage rates of
our apprentice and journeyman carpenter em-
ployees employed in the above-described bar-
gaining unit, from the wage scale provided in
a collective-bargaining agreement to which we
are party.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees with respect to their exercise of rights
guaranteed them by Section 7 of the National
Labor Relations Act, as amended.
WE WILL make whole our employees em-
ployed as apprentice and journeyman carpen-
ters during the period from August 1, 1977,
through July 31, 1979, on our jobs at Naval
Air Station, Meridian; Davidson Rest Home,
Laurel, Mississippi; a church in Needham, Ala-
bama; Northview Assembly of God Church
north of Meridian; Lauderdale County Court-
house; New Hope Baptist Church, south of
Meridian; Matty Hersee Hospital, Meridian;
and Merchant and Farmers Bank, Meridian;
for any loss of earnings they may have suf-
fered due to our paying them wages below
those provided in our collective-bargaining
agreement.
L. B. PRIESTER & SON, INC.
DECISION
STATEMENT OF THE CASE
J. PARGEN ROBERTSON, Administrative Law Judge:
This case was heard on December 19, 20, and 21, 1979,
in Meridian, Mississippi. The charges in this case were
filed by the Charging Party (herein called the Union) on
September 30, 1977, and May 22, 1978. An order consoli-
dating cases and consolidated complaint and notice of
hearing issued on August 16, 1979. The consolidated
complaint alleges that Respondent violated Section
8(aXl) and (5) and 8(d) of the Act, by untimely with-
drawing from a multiemployer bargaining representative,
by refusing to execute a collective-bargaining agreement
with the Union, and by unilaterally changing the terms
and conditions of its collective-bargaining agreement
with the Union.
Upon the entire record and from my observations of
the witnesses, and after due consideration of the briefs
filed by the General Counsel and Respondent, I hereby
make the following:
FINDINGS
A. Commerce
Respondent admitted, and I find, that it satisfied all the
necessary commerce requirements and is an employer en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
During the hearing the parties stipulated that O. L.
Snowdon & Sons and Dan Colbert Construction Compa-
ny, Inc., were employer members of Meridian Contrac-
tors Association, Inc., at all times material herein, who,
during the course and conduct of their business oper-
ations, purchased and received goods and materials
valued in excess of $50,000, from suppliers located in
Meridian, Mississippi, who in turn received said goods
and materials from points located outside the State of
Mississippi. The evidence demonstrated, and I find, that
Meridian Contractors Association, Inc., was, at material
times, a multiemployer association whose members par-
ticipate in, and are bound by, negotiations conducted by
Meridian Contractors Association, Inc., with the Union.
In view of the parties' stipulation and the evidence as a
whole, I find that employers O. L. Snowdon & Sons and
Dan Colbert Construction Company, Inc., satisfy the
Board's jurisdictional requirements and, therefore, Merid-
ian Contractors Association, Inc., is an employer en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
B. Labor Organization
Respondent admitted and I find that Carpenters Local
2313, United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
C. The Evidence
The evidence is not disputed that for a substantial
period of time before 1977, Respondent was a member of
Meridian Contractors Association that actively partici-
pated in and was bound by that Association's collective-
bargaining agreements with the Union. Respondent also
participated in the negotiations which resulted in a col-
lective-bargaining contract with the Union during 1977.
That contract, which was executed by the Union and
Meridian Contractors Association on August 23, 1977,
was effective from August 1, 1977, through July 31,
1979. However, during the final negotiation session on
August 9, 1977, Respondent's representative, Secretary-
Treasurer Ralph Priester, objected to the Association
proposing an increased wage scale to the Union. That
scale was offered to the Union over Mr. Priester's objec-
tion and was subsequently incorporated into the contract.
Ralph Priester testified that he told the Association
members that Respondent "couldn't stand an increase in
labor and, if they did make a proposal that was accepted,
we would have to withdraw from the Association."
During the 1977 negotiations Ralph Priester held the
office of president of Meridian Contractors Association.
238
L. B. PRIESTER & SONS INC.
However, due to the Union's acceptance of the Associ-
ation's proposed wage scale, Mr. Priester followed
through on his threat to withdraw from the Association.
By letter dated August 16, 1977, Priester informed Me-
ridian Contractors Association that Respondent was
withdrawing and that he was thereby resigning as presi-
dent. After August 16, the Union's representative, Joe
Bass, called Ralph Priester and told him that the con-
tract was ready for signatures. Priester refused to sign
the contract, telling Bass that he was no longer connect-
ed with the Association.
Subsequently, on September 30, 1977, the Union filed
the 15-CA-6645 charge. On November 28, 1977, the 15-
CA-6645 case was settled. By that settlement Respond-
ent agreed to be bound by the contract between the
Union and the Association. Thereafter, on December 21,
1977, Respondent, by Ralph Priester, signed a letter of
assent agreeing to be bound by the collective-bargaining
contract during its duration of August 1, 1977, throught
July 31, 1979. As a part of its settlement in Case 15-CA-
6645, Respondent paid backpay claims of three carpenter
employees. Those three claims arose as a result of Re-
spondent paying the three carpenter employees rates
below the rates set forth in the contract.
Following the filing of the charge in Case 15-CA-
6907, on May 22, 1978, the Regional Director vacated
the settlement in Case 15-CA-6645, by notice dated
August 10, 1979. The General Counsel now contends
that Respondent unilaterally changed the terms and con-
ditions of the 1977-79, contract, by paying its carpenters
wages other than those established by the terms of the
contract.
CONCLUSIONS
A. The Collective-Bargaining Agreement
Respondent does not dispute that it was a participating
member of Meridian Contractors Association until after
negotiations concluded on the 1977-79, collective-bar-
gaining agreement. Respondent also agrees that the rule
of Retail Associates; Inc., 120 NLRB 388 (1958), renders
their withdrawal untimely absent unusual circumstances.
I find that the circumstances here fail to qualify as
"usual" under Retail Associates. In Hi-Way Billboards,
Inc., 206 NLRB 22 (1973), the Board restated the Retail
Associates rule, saying that "usual circumstances" are lim-
ited to "dire economic circumstances, i.e., circumstances
in which the very existence of an employer as a viable
business entity has ceased or is about to cease."
Respondent's president, Lee Priester, testified that
their business had been severely curtailed over the past
several years due to bonding companies' reluctance to
bond the company because of his and his brother's age.
Lee Priester is 76 and his brother Ralph is 74. That has
reduced the size of the jobs which Respondent can bid.
Consequently, Respondent lost between 40-S50,000 in
1977, and over $70,000 in 1978. In 1976, Respondent
earned $17,000.
The facts demonstrate that Respondent was involved
in a poor business year while engaged in the 1977 negoti-
ations. However, the prior year, while perhaps not great-
ly successful, had resulted in a profit. The cases indicate
that the above facts do not justify Respondent's untimely
withdrawal. In Serv-All Company, Inc., 199 NLRB 1131
(1972), no "unusual circumstances" were found. "Mere
business inconvenience or economic hardship, inability to
maintain a competitive position, or other business exigen-
cies have never afforded an excuse for failure to comply
with the requirements of the Act." (199 NLRB 1131,
1141)
I find Respondent's withdrawal from the Association
was not timely. Therefore, Respondent was bound by
the terms of the Association's collective-bargaining
agreement with the Union. I
B. Jurisdiction Under the Contract
The 1977 collective-bargaining agreement provides:
"the Association recognizes the Union as the exclu-
sive bargaining representative for the purpose of
collective bargaining with respect to rates of pay,
wages, hours of employment and other conditions
of employment for the employee within and under
the jurisdiction of the Union in the following Coun-
ties: Lauderdale, Kemper, Neshoba, Clarke, and
Newton Counties in Mississippi, Choctaw and
Sumter Counties Alabama west of Highway 17 in-
cluding the Cities bordering Highway 17 inside
their City limit lines. The Association recognizes
that the Union also represents the following Coun-
ties or parts thereof which is not a part of this
Agreement: Jones, Jasper, Smith, Simpson, Coving-
ton and Wayne Counties in Mississippi, Washington
County in Alabama.
Ralph Priester testified in agreement with the Union's
Joe Bass that the last sentence of the above quote came
up during the 1977 negotiations, due to the fact that the
Carpenters Local in Laurel, Mississippi, had merged into
Carpenters Local 2313 (the Union herein). Priester testi-
fied that last sentence reflected the Associations' concern
that their collective-bargaining agreement should not
bind contractors from Laurel, Mississippi, who were not
members of the Meridian Contractors Association. Joe
Bass testified that during those 1977 negotiations the As-
sociation was asked that even though they were unwill-
ing to extend the entire agreement to the counties for-
The evidence was not in dispute that Meridian Contractors Associ-
ation, Inc., has negotiated consecutive collective-bargaining agreements
with the Union since at least 1971, and that Respondent was a member of
Meridian Contractors Association, Inc., and bound by those contracts.
No evidence was offered or received which would tend to rebut the pre-
sumptions of continued majority status of the Union or of the appropri-
ateness of the bargaining unit. Therefore, in accordance with the evi-
dence and those presumptions, I find that the Union continued to repre-
sent a majority of the employees in the following, an appropriate bargain-
ing unit:
Employees who are employed by members of the Meridian Contrac-
tors Association, Inc., within and under the jurisdiction of the Union
in the following counties: Lauderdale, Kemper, Neshoba, Clarke,
and Newton Counties in Mississippi, Choctaw and Sumter Counties,
Alabama, West of Highway 17 including the cities bordering High-
way 17 inside their city limit lines and the following counties or
parts thereof, which is not a part of the agreement: Jones. Jasper,
Smith, Simpson, Covington and Wayne Counties in Mississippi,
Washington County in Alabama.
239
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
merly covered by the Laurel local, would they agree to
pay the contractual wage scale when working in those
counties. According to Bass, the Association agreed that
they would. Ralph Priester was asked if he recalled the
conversation as related by Bass and he testified that he
did not recall whether that was discussed or not. Under
the circumstances, I credit Bass' testimony and find that
the Association and the Union agreed that the contrac-
tual wage scale would extend to work performed by
members of the Association in the counties of Jones,
Jasper, Smith, Simpson, Covington and Wayne in Missis-
sippi, and Washington, in Alabama.
C. The Wage Scale
In regard to wages, the 1977 contract provides:
1. The scale of wage on work shall be effective
on the dates indicated:
8/1/77 4/1/78 12/1/78
Journeymen Carpenters
Carpenter Foremen (1-4)
Carpenter Foreman (4-8)
Carpenter Foreman (8 or more)
Floor Layers
Pile Drivers
Millwrights
Millwright Foreman
$7.25
7.50
7.625
7.75
7.25
7.75
7.75
8.25
$7.45
7.70
7.825
7.95
7.45
7.95
7.95
8.45
7.65
7.90
8.025
8.15
7.65
8.15
8.15
8.65
The evidence demonstrated and Respondent did not
dispute, that during the existence of the 1977-79 collec-
tive-bargaining agreement, and especially since Novem-
ber 1, 1977, Respondent failed to pay carpenter employ-
ees employed on three jobs at the Naval Air Station, Me-
ridian; and on seven other jobs, in accordance with the
contractual wage scale. Although Respondent did not
dispute either the rates established by the contract or the
rates it paid the various carpenter employees, it did raise
several defenses to the General Counsel's contention of
an 8(aXS) violation. Those defenses include:
1. The contract is a members-only contract
In support of this defense Respondent points to lan-
guage in the contract referring to "members" rather than
"employees," and contends that, therefore, the contrac-
tual wage scale is enforceable only to those journeymen
carpenters that are members of the Union.
Respondent correctly asserts that the contract does, in
several areas, refer to "members", However, I note that,
in other areas such as in the jurisdiction provisions and
in paragraph 7, the contract refers to employees. Addi-
tionally, Union Representative Bass testified without re-
buttal that he applied the contract to both members and
nonmembers alike.
Under the facts herein, Respondent's contention must
fail. The circumstances fall far short of the conditions
present in Don Mendenhall, Inc., 194 NLRB 1109 (1972).
In that case the Board found a members-only contract
existed where the Union disclaimed any interest in repre-
senting nonmembers, the Employer was required to pay
health and welfare benefits only for members, and the
Union's Section 8(a)(3) charge alleged violations only as
to union members even though it was evident that the
contractual rights of nonmembers would also have been
abrogated if the Employer had been obligated to bargain.
In the instant case the Union alleged that the Employer's
actions were illegal as to both members and non-
members.
2. Jefferson Chemical and Section 10(b)
Respondent contends that the allegations under Case
15-CA-6907 should not extend earlier than the 10(b)
period, i.e., 6 months before the May 22, 1978, filing of
the charge, and that Jefferson Chemical Company, Inc.,
200 NLRB 992 (1972), precludes litigation of issues that
should have been investigated and considered in Case
15-CA-6645.
In view of the testimony of Union Representative
Bass, I have determined that Respondent should prevail
in its Jefferson Chemical argument. In view of my finding
in that regard it is unnecessary to pass on the 10(b) con-
tention.
The Board held in Jefferson Chemical Company: (at fn.
3)
Our dissenting colleagues argue that the General
Counsel should not be required to be aware of each
and every fact giving rise to a possible unfair labor
practice prior to the issuance of a complaint since
its investigation is normally limited to the allega-
tions set forth in the charge. While we do not dis-
agree with this principle, we believe that, as a cor-
ollary, the General Counsel is dutybound to investi-
gate all matters which are encompassed by the
charge, and to proceed appropriately thereafter. As
noted by the Administrative Law Judge, the charge
in Jefferson Chemical Co., Case 23-CA-4088, filed
August 31, 1971, was a broad "refusal to bargain
collectively" charge. The General Counsel was
thereby put on notice to investigate all aspects of
that 8(a)(5) and (1) charge and his failure to litigate
bad-faith bargaining in that case, for whatever
reason, cannot now justify his litigation of surface
bargaining in the instant case.
Moreover, the Charging Party itself is not totally
without fault here. At the time the charge in Jeffer-
son Chemical Co., Case 23-CA-4088 was filed, if
not by the time the complaint in that case issued,
the Charging Party must have known of the Re-
240
L. B. PRIESTER & SONS INC.
spondent's bargaining tactics (the first bargaining
session was held in July 1971) and if it was dissati-
flied with the General Counsel's "narrow" com-
plaint, it could have made the facts regarding the
alleged surface bargaining known either before or
during the hearing in that case. Instead, however,
the Charging Party chose to file a second charge,
the charge herein (which, in part, spans the same
time period as that covered by the charge in the
earlier case), 2 days after the hearing was recessed.
We believe that such multiple litigation of issues
which should have been presented in the initial pro-
ceeding constitutes a waste of resources and an
abuse of our processes and that we should not
permit it to occur.
Union Representative Bass testifed that he was in-
formed before the settlement in Case 15-CA-6645, that
Respondent was not paying contractual wage scale on its
jobs. The charge in 15-CA-6645 included allegations of
Section 8(a)(5) and 8(d), and the settlement in that case
required Respondent to make whole its employees for
any loss of pay suffered because Respondent refused to
honor its collective-bargaining agreement. Thereafter,
three employees received backpay in accordance with
that requirement.
Therefore, I find that the General Counsel should
have included all the alleged violations of Respondent
paying wages below the contract scale, in the 15-CA-
6645 proceeding. Under Jefferson Chemical, the General
Counsel is now precluded from recovery on matters
which existed before the approval of the 15-CA-6645
settlement on November 28, 1977. Therefore, I will con-
sider only those matters which occurred after that date,2
in regard to the unilateral change allegations.
3. The carpenter employees were not journeymen
Respondent's final argument is that the employees that
received below contract scale did not possess the skills
of journeymen and therefore, were not entitled to jour-
neyman pay. In support of this contention, Respondent
points to evidence demonstrating (1) the jobs in question
generally did not require journeyman level skills and Re-
spondent neither sought nor employed journeymen to fill
those positions; and (2) many of the men in question
demonstrated by their work that they did not posess
journeyman skills. However, I find that argument begs
the question now before me. My role, as I see it, is not
to determine whether a particular job requires the skill of
a journeyman carpenter or whether a particular employ-
ee qualifies as a journeyman. In that regard, I agree with
Respondent's contention that this forum is not the proper
body to determine those questions. My role is properly
one of determining whether Respondent unilaterally
changed terms and conditions of employment by paying
wages different from those arranged through collective
bargaining.
2 Obviously Jefferson Chemical is inapplicable to matters which arose
on November 29, 1977, and afterward. Neither the General Counsel nor
the Union had reason to believe that Respondent would continue to pay
wages below the contract scale after it executed the settlement agree-
ment.
Unfortunately, from Respondent's standpoint, the col-
lective-bargaining agreement envisions only two catego-
ries of carpenters at the nonforeman level. Those cata-
gories are set out in the contract as "journeyman" and
"apprentice." Moreover, according to the undisputed tes-
timony of Joe Bass, the contractual term "apprentice" is
limited to those employees that are involved in the 4-
year apprenticeship program. Therefore, the contract re-
flects, and I find, that all carpenters employed by Re-
spondent on jobs within the contract's geographical ju-
risdiction, who were not engaged in the apprenticeship
program, are "journeymen."3
The evidence did not show that Respondent has ever
sought to negotiate wages for anyone other than jour-
neyman and apprentice carpenters. Mr. Lee Priester tes-
tified that he did discuss his manning problem with Joe
Bass on one occasion. According to Mr. Priester, Bass
called him after Respondent had sent Bass a copy of an
ad it ran for construction workers. Mr. Priester refused
Mr. Bass' offer to supply carpenters. However, he said
nothing to Mr. Bass to the effect that journeymen were
too qualified for the positions available. Rather, accord-
ing to Mr. Priester's testimony, he did not employ those
men suggested by Bass because he was not acquainted
with those particular carpenters and he had "to select
carpenters on the basis for some form of knowledge as to
their honesty and, as to whether or not they could work
in houses that were occupied by those Navy personnel."
Therefore, I find, on the basis of the entire record, that
Respondent hired and employed carpenters at wages dif-
ferent from those provided in the collective-bargaining
agreement. Respondent's action disregarded its obligation
to notify and bargain with its employees' representative,
the Union, prior to instituting changes in wages, a man-
datory subject of bargaining.
D. Scope of the Decision
The General Counsel alleged and the evidence proved,
that Respondent paid its carpenters in disregard to the
contract scale, during the period on and after November
29, 1977, during the existence of the 1977-79, contract,
on its jobs at the Naval Air Station, Meridian, Mississip-
pi; at the Davidson Rest Home job in Laurel, Mississippi;
at a job on a church in Needham, Alabama; at a job on
the Northview Assembly of God Church, off Highway
39, north of Meridian; the Lauderdale County Court-
house job, Meridian; at the New Hope Baptist Church
job, off Highway 39 south of Meridian; the job at the
Matty Hersee Hospital, Meridian; and the job at Mer-
chant and Farmers Bank, Meridian.
In regard to the jobs Respondent performed at the
Naval Air Stations during the material times, the record
herein contains Respondents files which demonstrate
I However, additional considerations apply regarding backpay. See
"Remedy," infra. The term journeyman, as it appears in the contract,
refers to carpenters other than apprentices, foremen, floor layers, pile
drivers, or millwrights. The contract does not reflect, nor did evidence
show, that consideration was given during negotiations, to limit the term
"journeyman" to employees possessing specific skills. In the absence of
such evidence, it would be improper for me to conclude that the parties
intended to exclude certain categories of carpenter employees from the
scope of the collective-bargaining agreement
241
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which employees were classified as carpenters. Those re-
cords reflect that the carpenters were not paid in accord
with the contract scale. By failing to pay those employ-
ees classified as carpenters on its records, in accord with
its collective-bargaining agreement, Respondent engaged
in unilateral action in violation of the Act.
The evidence is not in dispute that Respondent per-
formed carpentry work on the other jobs mentioned
above (other than the Naval Air Station jobs), and that
Respondent continued to pay subcontract wages on
those jobs. In determining which employees performed
carpentry work on those jobs, there appears to be little
dispute on the record. In that regard I found the testimo-
ny of witnesses Eugene Cole, Jr., Edgar J. Clearman,
Eric J. Johnson, and Lee Priester to be generally credi-
ble in regard to their recollection of which employees
performed work on the above-mentioned jobs. However,
in view of my findings above, I do not view as relevant
to the determination of which employees were perform-
ing work as a carpenter, Mr. Priester's testimony regard-
ing the quality of work performed by certain employees.
In that regard I do not view his categorization of certain
employees as apprentices to be dispositive. It appeared
from his testimony that Mr. Priester based that categori-
zation on his analysis of those employees' skills. The un-
rebutted testimony of Joe Bass proved, and I find, that
the contractual meaning of the term apprentice is limited
to those employees that were engaged in the 4-year ap-
prentice program.
Although Mr. Lee Priester's testimony was generally
credible, I find, in line with my reasoning mentioned
above, that he generally testified from a standpoint of
each employee's skills rather than as to which employee
performed carpentry work. Therefore, other than his tes-
timony regarding Floyd Keeton, which I shall mention
below, I do not view Mr. Priester's testimony to conflict
with, or even concern itself with, the issue of which em-
ployees performed carpentry work. In regard to employ-
ee Floyd Keeton, Lee Priester testified that Keeton was
hired as a plumber. However, I note that Respondent's
records regarding Naval Air Station job number N6247-
77-C-5027, reflects that Keeton was employed as a car-
penter at the rate of $6 per hour. Under the cirumstances
I credit the records and I find that Keeton was employed
as a carpenter while employed by Respondent during the
material times.
Additionally, in view of the testimony of Superintend-
ent Frank Lee, I do not view as material to the issue of
which employees were performing carpentry work, evi-
dence that those employees may have, on occasion, per-
formed work which is not customarily considered to be
carpentry work. Mr. Lee testified that while working as
a journeyman carpenter he had on occasion hung shee-
trock, performed framework, did some roofing, hung
paneling, did trimming, poured concrete forms, and tore
down walls and structures.
In addition to Respondent's records in evidence,
which reflects the names of employees employed as car-
penter on the Naval Air Station jobs, record evidence
demonstrates that the following employees worked as
carpenters on the jobs indicated:
Rickie McKay
M. R. Allen
Eugene Cole, Jr.
Eric Johnson
Scott Hill
Rickie McKay
Jessie Jones
Eugene Cole, Jr.
Eric Johnson
Jessie Jones
Eugene Cole, Jr.
Ernest Overby
Francis Blada
Scott Hitt
Jessie Jones
Scott Hitt
Leamon Holiday
Eric Johnson
Leamon Holiday
Eugene Cole, Jr.
Rickie McKay
Leamon Holiday
Algie Moore
Eric Johnson
Jessie Jones
Rickie McKay
Davidson Rest Home
Eugene Cole, Jr.
Eric Johnson
Mike Henderson
George Harwell
CONCLUSIONS OF LAW
I. Respondent L. B. Priester & Son, Inc., and Merid-
ian Contractors Association are employers engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. Carpenters Local 2313, United Brotherhood of Car-
penters and Joiners of America, AFL-CIO, is a labor or-
ganization within the meaning of Section 2(5) of the Act.
3. The following constitutes a unit appropriate for the
purpose of collective bargaining within the meaning of
Section 9(b) of the Act:
Employees who are employed by members of the
Meridian Contractors Association, Inc., within and
under the jurisdiction of the Union in the following
counties: Lauderdale, Kemper, Neshoba, Clarke,
and Newton Counties in Mississippi, Choctaw and
Sumter Counties, Alabama, West of Highway 17 in-
cluding the cities bordering Highway 17 inside their
city limit lines and the following counties or parts
thereof, which is not a part of the agreement: Jones,
Jasper, Smith, Simpson, Covington and Wayne
Counties in Mississippi, Washington County in Ala-
bama.
4. At all times material herein, the Union has been the
duly designated representative of the employees in the
aforesaid unit.
5. By withdrawing from Meridian Contractors Associ-
ation after the Association had negotiated a collective-
bargaining agreement with the Union, and, thereafter, re-
fusing to sign that collective-bargaining agreement and
Lauderdale County Courthouse
Merchant and Farmers Bank
Northview Baptist Church
Matty Hersee Hospital
242
L. B. PRIESTER & SONS INC.
be bound by it, Respondent has violated Section 8(a)(1)
and (5) and 8(d) of the Act.
6. By unilaterally changing the terms and conditions of
its collective-bargaining contract with the Union by fail-
ing to pay its carpenter employees in accordance with
the pay scale set forth in the collective-bargaining agree-
ment, Respondent has violated Section 8(a)(1) and (5) of
the Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1) and (5) and
8(d) of the Act, I shall recommend that it be ordered to
cease and desist therefrom, and to take certain affirma-
tive action designed to effectuate the policies of the Act.
My recommended Order shall require that Respondent
make whole those apprentice and journeyman carpenter
employees which it employed at wage rates below the
rates prescribed in its collective agreement with the
Union, at any time during the period November 29,
1977, through July 31, 1979, on its jobs at the Naval Air
Station, Meridian; the Davidson Rest Home, Laurel; the
church in Needham, Alabama; Northview Assembly of
God Church; Lauderdale County Courthouse; New
Hope Baptist Church; the Matty Hersee Hospital; and
the Merchant and Farmers Bank; for any loss of earn-
ings4 they may have suffered by reason of the Respond-
ent's unilateral action together with interest in the
manner prescribed in F W. Woolworth Company, 90
NLRB 289 (1950), and Florida Steel Corporation, 231
NLRB 651 (1977). 5
Upon the foregoing findings of fact and conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following:
ORDER6
The Respondent, L. B. Priester & Son, Inc., Meridan,
Michigan, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Refusing to recognize and bargain collectively with
Carpenters Local 2313, United Brotherhood of Carpen-
4 Even though Respondent violated the Act by unilaterally changing
its pay scale, backpay entitlement should be limited to those employees
who were previously certified as journeyman or who the Union certifies
on a nondiscriminatory basis in accordance with established policy, as
having qualified as journeyman during the material times, and are entitled
to future referrals as journeyman, without regard to union affiliation. To
hold otherwise may result in unjust enrichment to employees so unskilled
that they would not have been referred to jobs under the collective-bar-
pining agreement. Additionally, I shall not recommend backpay at jour-
neyman rates for employees Rickie McKay and Scott Hitt. Those em-
ployees were identified as second-year apprentice and first-year appren-
tice by the General Counsel's witness.
s See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
' 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 find-
ings, conclusions, and recommended Order 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 be deemed waived for all purposes.
ters and Joiners of America, AFL-CIO, as the exclusive
representative of its employees in the following appropri-
ate bargaining unit, with respect to rates of pay, wages,
hours of employment, and other terms and conditions of
employment:
Employees who are employed by members of the
Meridian Contractors Association, Inc., within and
under the jurisdiction of the Union in the following
counties: Lauderdale, Kemper, Neshoba, Clarke,
and Newton Counties in Mississippi, Choctaw and
Sumter Counties, Alabama, West of Highway 17 in-
cluding the cities bordering Highway 17 inside their
city limit lines and the following counties or parts
thereof, which is not a part of the agreement: Jones,
Jasper, Smith, Simpson, Covington and Wayne
Counties in Mississippi, Washington County in Ala-
bama.
(b) Untimely withdrawing from an employer bargain-
ing association and refusing to sign a collective-bargain-
ing agreement after agreement has been reached; and
unilaterally changing the wage rates of employees con-
vered by its collective-bargaining agreement to rates
other than the rates provided by that agreement.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action which is
deemed to be necessary to effectuate the policies of the
Act:
(a) Make whole those employees employed by it in the
bargaining unit, as apprentice and journeyman carpenters
during the term of its collective-bargaining agreement of
1977-79, at any time on or after November 29, 1977, in
the manner set forth in the section of this Decision enti-
tled "The Remedy."
(b) Preserve and, upon request, make avaliable to the
Board or its agents, for examination and copying, all
payroll records, social security payment records time-
cards, personnel records and reports and all other re-
cords necessary or useful to determination of the amount
of backpay due under the terms of this Order.
(c) Post at its office in Meridian, Mississippi, copies of
the attached notice marked "Appendix." 7 Copies of the
notice, on forms to be provided by the Regional Direc-
tor for Region 15, after being duly signed by an author-
ized representative of Respondent, shall be posted by Re-
spondent immediately upon receipt thereof, and be main-
tained by it for a period of 60 consecutive days thereaf-
ter, in conspicuous places, including all places where no-
7 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
243
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tices to employees are customarily posted. Reasonable
steps shall be taken by Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material.
(d) Notify the Regional Director for Region 15, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
244