Land Equipment Inc.

National Labor Relations Board - Board Decisions

Mar 26, 1980

248 N.L.R.B. 685 (N.L.R.B. 1980)

LAND EQUIPMENT INCORPORATED 685
Land Equipment Incorporated; and Equipment Ser-
vice Rentals, a Single Employer and Interna-
tional Union of Operating Engineers, Local No.
12, AFL-CIO. Case 21-CA-16819
March 26, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On April 18, 1979, Administrative Law Judge
Earldean V. S. Robbins issued the attached Deci-
sion in this proceeding. Thereafter, the Respon-
dent, the Charging Party, and the Intervenor' filed
exceptions and a supporting brief. In addition, the
Respondent filed a brief in opposition to the
Charging Party's and the Intervenor's exceptions,
and the Intervenor filed a brief in opposition to the
Respondent's exceptions.
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-
I Trustees of the Operating Engineers Health and Welfare Fund, the
Operating Engineers Training Trust, and the Operating Engineers Vaca-
tion-Holiday Savings Trust was granted leave to intervene in this pro-
ceeding prior to the hearing before the Administrative Law Judge.
248 NLRB No. 98
ings, 2 and conclusions3 of the Administrative Law
Judge and to adopt her recommended Order, as
modified herein. 4
2 We agree with the Administrative Law Judge's findings that Land
and Rentals are a single employer and that the unit of Land and Rentals
employees is the appropriate unit here The record shows that the Re-
spondent rents out construction equipment with operators and oilers to
individual building contractors in the San Diego, California, area Such
job assignments usually last less than 2 weeks. The record further shows
that the Respondent does not hire employees on a project-by-project
basis but has a relatively stable complement of employees who move
from job to job and who work between jobs in the Respondent's yard
performing maintenance and oiling work. Indeed, the testimony of W. A
Brown, the Respondent's owner, reveals a pattern of shifting the same
employees between the Land and the Rentals payrolls depending on
whether or not the Respondent was required to certify that the employ-
ees were being paid the prevailing wage on the particular joh Finally, as
described by the Administrative Lass Judge, the Union achieved majority
status in the appropriate unit on August 17, 1977 In such circumstances,
the General Counsel did not have the burden of establishing majority
support at each jobsite here. Cf. Dee Cee Floor Covering. Inc. and its alter
ego and/or succe.cor, Dagin-Akrab Floor Covering. Inc., 232 NLRB 421
(1977), and other cases where the employer hires employees on a project-
by-project basis. In any event, the record shows that four of the seven
employees dispatched from the hiring hall after August 18, 1977, were
members of the Union and that the other three applied for membership.
There is no record evidence to show any other employees in the appro-
priate unit during the time material here. In these circumstances, the Re-
spondent's reliance on R. J Smith Construction Co., Inc., 208 NLRB 615
(1974), and other cases involving contract relationships under Sec 8(f) of
the Act is misplaced The Board has not held that an employer is free to
repudiate an 8(f) agreement where, as here, a majority of unit employees
supported the union at the time of the repudiation. See, generally,
.L.R.B. v. Local Union Vo. 103. International Association of Bridge,
Structural & Ornamental Iron Workers, AFL-CIO, et al. [Higdon Construc-
tion Company], 434 U.S. 335 (1978). See also Ellis Tacke, d/b/a Ellis
Tacke Company, 229 NLRB 1296 (1977); Haberman Construction Compa-
ny, 236 NLRB 79 (1978); and M Construction Co.. Inc., 241 NLRB No
84 (1979).
The Respondent contends that it was coerced into signing the 8(f)
agreement by the Union's illegal conduct and therefore that it should not
be required to honor its contract with the Union The applicable agree-
ment was signed on August 10, 1977, and the Union achieved majority
status on August 17, 1977. The charge in the instant case was filed on
June 26, 1978. Thus, the conduct by the Union that the Respondent com-
plained about in its affirmative defense to the instant charges took place
prior to the period beginning 6 months before the filing of the charges in
this case. We find that such conduct cannot be considered because of
Sec. 10(b) of the Act. In so finding, we do not rely on Barwvise Sheet
Metal Co., Inc., etc., 199 NLRB 372 (1972), as did the Administrative
Law Judge, but on Erich R. Weber and Bernadino T Weber, Co-Partners.
d/b/a Weber's Bakery, 211 NLRB I (1974), and Io H Denham and Ger-
aldine A. Denham, d/b/a The Denham Company, 187 NLRB 434 (1970),
enfd. 469 F.2d 239 (9th Cir. 1972).
3 The Intervenor contends that the Administrative Law Judge improp-
erly described the appropriate bargaining unit in this case as including
"all employees" of the Respondent. The Intervenor maintains that the
proper unit description should be that which is described in the original
agreement between the Respondent and Local No. 12, i.e., "all employ-
ees of the Contractor performing work over which the Union has juris-
diction." The record does indicate that the Respondent employs certain
employees who are covered by a collective-bargaining agreement be-
tween the Respondent and Local 89 of the Laborers International Union.
In the absence of exceptions to the unit description by either party to the
agreement, however, we will not disturb the Administrative Law Judge's
unit description at this time.
' The Administrative Law Judge recommended, inter alia, that the Re-
spondent be ordered to give effect to the terms and conditions of the ap-
plicable contract retroactively to August 10, 1977, the date the agreement
was signed. We agree with the Administrative Law Judge's retroactive
application of the contract, which includes a period beyond the 10(b)
period, since the Respondent actively attempted to conceal from the
Union the existence of Rentals and the fact that some of the employees
dispatched by the Union to Land appeared on Rentals' payroll. See Me-
Continued
686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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,
Land Equipment Incorporated and Equipment Ser-
vice Rentals, a Single Employer, Poway, Califor-
nia, its officers, agents, successors, and assigns,
shall take the action set forth in the said recom-
mended Order, as so modified:
Substitute the following for paragraph 2(a):
"(a) Bargain collectively with the Union by rec-
ognizing the Union as the collective-bargaining
representative of all the employees in the aforesaid
appropriate bargaining unit, acknowledging that
Equipment Service Rentals is bound by the collec-
tive-bargaining agreement between Land Equip-
ment Incorporated and the Union executed on
August 10, 1977; and give effect to the terms and
conditions of the aforesaid agreement retroactively
to August 17, 1977, the date the Union achieved
majority status, and prospectively."
tromedia, Inc--KMBC-TV, 232 NLRB 486, 488, fn. 20 (1977); AMCAR
Division. ACF Industries, 231 NLRB 83, fn. 1 (1977); and Don Burgess
Construction Corporation d/b/a Burgess Construction and Donald Burgess
and Verlon Hendrix d/b/a V & B Builders, 227 NLRB 765 (1977). We
will, however, limit this retroactive application to August 17, 1977, the
date the Union achieved majority status.
In her remedy the Administrative Law Judge inadvertently cited f W
Woolworth Company, 90 NLRB 289 (1950), which is applicable in the cir-
cumstances of this case. See Ogle Protection Service, Inc., 183 NLRB 682
(1970).
DECISION
STATEMENT OF THE CASE
EARLDEAN V. S. ROBBINS, Administrative Law Judge:
This case was heard before me in San Diego, California,
on February I and 2, 1979. The charge was filed by In-
ternational Union of Operating Engineers, Local No. 12,
AFL-CIO, herein called the Union, and served on Land
Equipment Incorporated, herein called Land, and Equip-
ment Services Rentals, herein called Rentals, and collec-
tively called Respondent, on June 26, 1978. A first
amended charge was filed by the Union and served on
Respondent on July 27, 1978. The complaint, which
issued on August 18, 1978, alleges that Respondent has
engaged in unfair labor practices in violation of Section
8 (a)(1) and (5) of the National Labor Relations Act, as
amended. On January 29, 1979, The Trustees of the Op-
erating Engineers Trusts' were granted leave to inter..
vene in this matter.
The principal issues herein are whether the collective-
bargaining agreement between Land and the Union is en-
' The Trustees of the Operating Engineers Health and Welfare Fund;
The Trustees of the Operating Engineers Pension Trust; The Trustees of
the Operating Engineers Vacation-Holiday Savings Trust; and The Trust-
ees of the Operating Engineers Training Trust.
forceable; and whether Land and Rentals constitute a
single employer so that Rentals is bound by the collec-
tive-bargaining agreement between the Union and Land.
Upon the entire record, including my observation of
the witnesses, and after due consideration of the briefs
filed by the parties, I make the following:
FINDINGS OF FACTS
I. COMMERCE
Land is a California corporation engaged in the busi-
ness of renting construction equipment with operators to
contractors in the building and construction industry in
the southern California area. Land, in the course and
conduct of said business operations, annually rents equip-
ment and performs services valued in excess of $50,000
for customers located within the State of California,
which customers, in turn, each annually ships goods
valued in excess of $50,000 directly to customers located
outside the State of California or receives goods valued
in excess of $50,000 directly from suppliers located out-
side the State of California.
The parties stipulate, and I find, that Land is, and has
been at all times material herein, an employer engaged in
commerce and in a business affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
II. LABOR ORGANIZATION
The complaint alleges, Respondent admits, and I find
that the Union is a labor organization within the meaning
of Section 2(5) of the Act.
Ill. THE ALLEGED UNFAIR LABOR PRACTICES
Land is engaged in the business of renting construction
equipment with operators and oilers to contractors in the
building and construction industry in the southern Cali-
fornia area. Rentals is engaged in the business of supply-
ing labor, both operators and oilers, to Land, its sole cus-
tomer.
On August 10, 1977, Land entered into a collective-
bargaining agreement, herein called the Short Form
Agreement, with the Union by which it adopted the
Master Labor Agreement between the Union and various
San Diego County General Contractors Associations,
herein called the MLA. The MLA, which is effective by
its terms from June 1, 1977, to June 15, 1980, contains an
8-day union-security clause. It is undisputed that this
agreement is an 8(f) agreement.
The complaint alleges that Land and Rentals are a
single employer, that all employees employed by Land
and Rentals exclusive of office clerical employees,
guards, and supervisors, constitute an appropriate unit,
and that, in August 1977, a majority of the unit employ-
ees designated the Union as their collective-bargaining
representative. The complaint further alleges that Re-
spondent has failed and refused to pay the wages or
make the contributions to benefit trust funds required by
the collective-bargaining agreement, in violation of Sec-
tion 8(a)(l) and (5) of the Act.
Respondent argues that Land and Rentals are not a
single employer, since they at all times operated as sepa-
LAND EQUIPMENT INCORPORATED 687
rate and distinct businesss entities, with separate books,
separate payrolls, and separate work operations. Respon-
dent further argues that majority must be proven at each
separate jobsite and, since the record does not establish
such majority, Land's Section 8(f) contract with the
Union is voidable. Finally, Respondent contends that,
even if Land and Rentals are regarded as a single em-
ployer, the Union and the Trusts are estopped from as-
serting violations of Section 8(a)(1) and (5) of the Act
because Land was forced to sign the Short Form Agree-
ment in an illegal "top-down" fashion in violation of
Section 8(b)(4XA) and (B) and Section 8(e) of the Act.
William A. Brown, herein called W. A. Brown, and
Marcelle E. Brown, husband and wife, own all of the
stock of Land as joint tenants. Brown is president of
Land. Marcelle Brown is secretary-treasurer. Land has
three directors, Mr. and Mrs. Brown and their son
Gerard J. Brown. On April 9, 1976, Paul D. Brown, the
18-year-old son of W. A. Brown, filed with the county
clerk of San Diego County, California, a fictitious busi-
ness name statement alleging that he, an individual, was
doing business as Equipment Service Rentals.
Nevertheless, Paul Brown testified as follows:
Q. What kind of business is Equipment Service
Rental?
A. That's a good question.
Q. (By Mr. Petering) Can you answer the ques-
tion? What kind of business is Equipment Service
Rental?
A. To the best of my knowledge, all it is is a
group of employees.
Q. A group of employees. Are they your employ-
ees?
A. No.
Q. Whose employees are they?
A. I would say they were probably my dad's.
Q. Do you own any equipment?
A. No.
Q. Do you pay those employees?
A. No.
JUDGE ROBBINS: Mr. Brown, who does pay these
employees?
THE WITNESS: My dad does.
JUDGE ROBBINS: That is the William Brown-
THE WITNESS: Well, this business isn't even used.
I mean we don't use this business at all.
JUDGE ROBBINS: Who doesn't use this business?
THE WITNESS: Well, I don't use this business.
What I mean, I mean we don't even use it.
JUDGE ROBBINS: How did you happen to file this
fictitious business name statement?
THE WITNESS: By going down and just filing it
with the county clerk.
JUDGE ROBBINS: Yes; but I mean why did you
file it?
THE WITNESS: Well, the reason then was we
wanted to start another business.
JUDGE ROBBINS: Who is we?
THE WITNESS: My father and I, and that was the
reason for that at that time.
JUDGE ROBBINS: Did you invest any money in
this business?
THE WITNESS: Fifty dollars is all. 2
JUDGE ROBBINS: Did your father invest any
money in this business?
THE WITNESS: I don't know if you would call it
investing or whatever-not originally.
JUDGE ROBBINS: Originally what did the business
do?
THE WITNESS: I don't know. I wasn't even work-
ing for it at the time.
JUDGE ROBBINS: Did you file this at the request
of your father?
THE WITNESS: Yes.
JUDGE ROBBINS: Did you have anything at all to
do with managing this business, Equipment Service
Rental?
THE WITNESS: No.
JUDGE ROBBINS: Did you have anything to do
with obtaining clients for Equipment Service Rent-
als?
THE WITNESS: No.
JUDGE ROBBINS: To your knowledge, was this a
business strictly operated by your father?
THE WITNESS: Yes.
JUDGE ROBBINS: Did the employees of this busi-
ness operate some type of equipment?
THE WITNESS: Yes.
JUDGE ROBBINS: Who owned the equipment?
THE WITNESS: My father.
Q. (By Mr. Campbell) Mr. Brown, was that the
same equipment operated by the company called
Land Equipment, Inc.?
A. Yes.
W. A. Brown testified that Rentals' sole function is to
provide labor services to Land and that employees work-
ing under his supervision sometimes appeared on Rentals'
payroll. He also testified that he dispatched employees
out to work on particular jobsites and paid them with a
payroll check of either Land or Rentals upon his sole de-
termination.
It is apparent from W. A. Brown's testimony that, on
jobs where he was required to certify that employees
were paid the prevailing wage, employees were general-
ly placed on Land's payroll and paid the contract rate.3
Although not clear from the record, it appears that this
was the minimum contract rate and certain employees
were entitled to a higher wage rate under the provisions
of the contract. If there were no requirement for a certi-
fied payroll then, generally, employees were placed on
2 W. A. Brown testified that P. Brown opened the Rentals account
with a 50 deposit.
a Including contributions to the benefit trust funds.
688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Rentals' payroll and paid less than the contract rate.
Thus, the same employee might, with no break in em-
ployment, work on Rentals' payroll I week and Land
the next. 4 Further, employee Stanley Darrow testified
without contradiction that on about two occasions his
weekly paychecks alternated between Land and Rentals
even though he worked at only one jobsite during those
weeks. According to Darrow, this did not happen very
often because most of their jobs did not last into a
second week. He recalls only two longer jobs-once
when he worked on a water main in Ramona for a long
period of time and once when he worked on a dam pro-
ject in North County, off and on for a month.
The undenied testimony of Darrow and employees Art
Arganda and Robert Kern is that W. Brown was the
person who gave them job assignments and directions.
The threshold question here is whether Land and
Rentals are a single employer. The Board considers
nominally separate business entities to be a single em-
ployer where they comprise an integrated business enter-
prise. Among the principal criteria in determining wheth-
er two enterprises constitute a single employer are inter-
relationship of operations, common management, central-
ized control of labor relations, and common ownership.
Sakrete of Northern California, Inc., 137 NLRB 1220
(1962), enfd. 332 F.2d 902 (9th Cir. 1964), cert. denied
379 U.S. 961 (1965); Numrich Arms Corporation, et al.,
237 NLRB 313 (1978).
Here the record clearly establishes that Rentals exists
for the sole purpose of furnishing labor to Land at less
than the prevailing wage rate.5 Rentals has no equipment
and has no other customers and Land pays Rentals obli-
gations when necessary. W. A. Brown dispatches the
employees of both Land and Rentals to various jobs
upon his sole determination and uses his discretion as to
whether they are paid by Land or Rentals.
The record clearly establishes that Brown controls the
labor relations policies of both companies. He has the au-
thority to adjust grievances of all employees, evaluate
them, determine their remuneration, and has the author-
ity to hire and terminate employees. His control is actual,
not potential. Further, it is clear from Brown's testimony
that the determinant as to whether he considered an em-
ployee to be the employee of Rentals or Land was
whichever company was listed on the employee's W-4
form. It seems clear that, other than that, the differences
between the two groups of employees are indistinct.
It is also clear from the testimony of both Paul Brown
and W. A. Brown that W. A. Brown is the actual owner
of Rentals and that only he is involved in the manage-
ment of both Rentals and Land. In these circumstances,
it is clear, and I find, that Land and Rentals constitute a
single employer.
However, this finding, though relevant, is not conclu-
sively determinative as to whether an employerwide unit
4 Darrow, who worked for Respondent from January or February
1977 to the end of July 1978, testified without contradiction that they did
not know until they received their paychecks which of the two rates of
pay they would receive nor were they ever told whether they were
working for Land or Rentals in any particular week.
5 The contract involved here is not the first collective-bargaining
agreement between Land and the Union. However, it is not a successive
contract, thus, it is still subject to the provisions of Sec. 8(f) of the Act.
is appropriate since the criteria for finding a single em-
ployer are different from those for determining the ap-
propriateness of the unit. South Prairie Construction Co.
v. Local No. 627, International Union of Operating Engi-
neers, AFL-CIO, 425 U.S. 800 (1976); Frank Naccarato, a
Sole Proprietor, d/b/a Naccarato Construction Company, et
atl., 233 NLRB 1394 (1977).
In determining the scope of the unit, the primary con-
cern is the community interest of the employees in-
volved. The relevant factors to be considered are bar-
gaining history, the functional integration of operations,
the differences in the types of work and the skills of em-
ployees, the extent of centralization of management and
supervision, particularly as to labor relations and control
of day-to-day operations, and the extent of interchange
and contact between the groups of employees. Naccarato
Construction Company, supra; Peter Kiewit Sons' Co. and
South Prairie Construction Co., 231 NLRB 76 (1977).
Rentals has no bargaining history. Brown admits that
Rentals and Land use the same pool of employees re-
gardless of which is the noinal employer, and job assign-
ments on any one construction site are usually of short
duration, generally less than 2 weeks. In these circum-
stances and others set forth above, it is apparent that the
operations of Land and Rentals and the work of their
employees are so interwined as to render appropriate an
employerwide unit and to preclude the finding of sepa-
rate appropriate units based on the identity of either the
nominal employer or the construction project. Accord-
ingly, I find that the appropriate unit herein is all em-
ployees employed by Rentals and Land, excluding office
clerical employees, guards, and supervisors as defined in
the Act.
Since Rentals and Land are a single employer and the
employees of both constitute the appropriate unit, Rent-
als is bound by the collective-bargaining agreement be-
tween Land and the Union. Safety Electric Corporation
and San Joaquin Pacific Corporation, 239 NLRB No. 7
(1978); Edward J. White, Inc., and its Alter Ego, Repairs,
Inc., 237 NLRB 1020 (1978); Watson Meat Co., d/b/a
Ideal Meat Co., Inc., et al., 234 NLRB 115 (1978). How-
ever, since the agreement involved is an 8(f) one, the
crucial question is whether it was voidable.
In this regard, it is well established that, although Sec-
tion 8(f) of the Act exempts an employer and union from
unfair labor practice liability for entering into a collec-
tive-bargaining agreement prior to establishment of the
union as a majority representative, it does not protect the
union from inquiry into its majority status during the
term of the agreement. Thus, until the union obtains ma-
jority status, the employer does not violate Section
8(a)(5) and 8(d) of the Act by refusing to continue the
bargaining relationship and by unilaterally changing
terms and conditions of employment set forth in the con-
tract. N.L.R.B. v. Local Union No. 103, International As-
sociation of Bridge, Structural & Ornamental Iron Workers,
AFL-CIO [Higdon Contracting Co.], 434 U.S. 335 (1978);
R. J. Smith Construction Co., Inc., 191 NLRB 693 (1971);
Dee Cee Floor Covering, Inc. and its alter ego and/or suc-
cessor, Dagin-Akrab Floor Covering, Inc., 232 NLRB 421
(1977).
LAND EQUIPMENT INCORPORATED 689
General Counsel and the Trusts argue that Section 8(f)
merely makes a contract voidable and that Respondent
did not void the contract since it continued to utilize the
hiring hall and to adhere to the contract as to "Land em-
ployees." 6 The Board has rejected a similar argument in
Local Union No. 103, International Association of Bridge,
Structural and Ornamental Iron Workers, AFL-CIO
(Higdon Contracting Company), 216 NLRB 45 (1975).
Thus, it is necessary to inquire into the Union's majority
status.
W. A. Brown testified that in August 1977, shortly
after he signed the Short Form Agreement, the employ-
ees of Rentals were Stan Darrow, Bob Kern, Paul
Brown, Al Newson, and Bob Savino. The employees of
Land were Mark Davis, Chuck Scheneker, Floyd
Newman, and Michael Youell. ? Of these, Davis, Schen-
eker, Youell, and Newman were members. Darrow,
Kern, Brown, and Newson8 on August 17, 1977, and
Savino on August 18, applied for membership in the
Union and signed cards designating the Union as their
collective-bargaining representative. Thus, it is clear, and
I find, that as of August 17, 1977, a majority of the em-
ployees in the apropriate unit herein have designated the
Union as their collective-bargaining representative.
In reaching this conclusion, I have thoroughly consid-
ered and reject Respondent's argument that majority
must be established at each separate jobsite to which Re-
spondent dispatched employees. In making this argu-
ment, Respondent is relying upon certain conclusions by
the Board and the Supreme Court in Higdon Contracting
Co., supra, specifically, that the employer's obligation to
honor an 8(f) agreement is contingent on the union at-
taining majority support at the various construction sites.
However, both the Board and the Court in setting
forth this conclusion cited N.L.R.B. v. David F: Irvin, et
al., d/b/a The Irvin McKelvy Company, 475 F.2d 1265
(3rd Cir. 1973). That case involved a project agreement
and more than one bargaining unit (the unfinished pro-
jects and subsequent projects, projects to which the first
contract, by its terms, did not apply).9 The court, in en-
forcing the Board's decision that the employer violated
the Act by withdrawing recognition from the union and
repudiating the contract at the end of the term of the
contract as to those projects which had not been com-
pleted but did not violate the Act by entering into an 8(f)
agreement with another union as to those projects which
6 Although it is apparent from the evidence that none of these employ-
ees can be considered Land employees as opposed to Rentals employees
or vice versa, for convenience I shall refer to them as Land employees or
Rentals employees as indication of the payroll on which they appeared
for any particular pay period.
I In accordance with the contract, which required that current em-
ployees and subsequent employees be dispatched from the Union's hiring
hall, Brown had the current employees report to the union hall for dis-
patch. The Union's dispatch records are in accord with Brown's testimo-
ny except that they show that Floyd Newman was not dispatched until
September 22. All the others had been dispatched by August 18, 1977.
8 Newson was on withdrawal status and ultimately had his membership
reinstated.
9 The contract involved therein contained a "most favored nations"
clause which the employer invoked during the term of the contract and
thereby changed the agreement from a term contract to a "project only"
agreement.
had not commenced at the time of the repudiation, con-
cluded:
The Employer suggests that District 50 was never
"designated or selected . . . by the majority of the
employees in a unit" because the designation was
made by it pursuant to §8(f).
Without suggesting how we would rule if pre-
sented with the repudiation during its term by a
§8(f) employer of a collective bargaining agreement
containing no union security provisions, we reject
the interpretation of §8(f) advanced by the Employ-
er here, where there was a union security clause
and a dues checkoff provision, both of which were
complied with until April 1, 1969. Nothing in either
the text or the legislative history of §8(f) suggests
that it was intended to leave construction industry
employers free to repudiate contracts at will. It is
significant, we think, that despite the instant con-
tract provisions and their enforcement, the employ-
ees did not, from June, 1964 to April 1969, petition
for a representation election. There was at least
tacit acquiescence in the designation of District 50
as collective bargaining representative. Whatever
may be the correct rule in the absence of union se-
curity and dues checkoff clauses, at least where the
union's role has by the operation of such clauses
been brought home to the employees quite directly,
and they have refrained from seeking a representa-
tion election, an employer is not free to repudiate
his §8(f) contract during its term. That being so, the
Employer violated §8(a)(5) when it unilaterally sub-
stituted the terms of the ABC-UMW contract as of
April 1, 1969, on the three or four projects then un-
finished.
Considering the nature of the construction industry
where an employer often has no regular complement of
employees but rather hires employees for a particular
construction project and terminates them at the end of
the project, a unit coextensive with a particular construc-
tion project is often an appropriate unit. Thus, although
not free from doubt, it appears that the required majority
support must be attained in an appropriate unit. When
viewed within the framework of the realities of the con-
struction industry, such an interpretation is compatible
with the Board's and the court's reference to attaining
majority support at the various construction sites. Cf.
Barwise Sheet Metal Co.. Inc., a Division of Airtron, Inc..
et al., 199 NLRB 372 (1972).
Here, however, I have found that Respondent's oper-
ations preclude a finding that a unit limited to a particu-
lar construction site is appropriate. Accordingly, I reject
Respondent's argument that majority must be established
at each jobsite to which Respondent has dispatched em-
ployees.
I also reject Respondent's argument that it was co-
erced into signing an agreement by the Union's illegal
conduct and therefore should not be required to honor
its contract with the Union. See Barwise Sheet Metal Co.,
Inc., supra. Similarly unpersuasive is the argument that
certain alleged 8(e) clauses in the contract protect Re-
690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent from its obligation to honor its contract with
the Union. The Board had never found the inclusion of
an 8(e) clause to invalidate an entire collective-bargain-
ing agreement.
Accordingly, in the circumstances herein, I find that,
by refusing to honor the collective-bargaining agreement
between Land and the Union as to all its employees, Re-
spondent has violated Section 8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
1. Respondent, Land Equipment Incorporated and
Equipment Service Rentals, is a single employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. International Union of Operating Engineers, Local
No. 12, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. The following employees constitute a unit appropri-
ate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All employees employed by Land and Rentals, ex-
cluding office clerical employees, guards, and super-
visors as defined in the Act.
4. At all times since August 17, 1977, the Union has
been, and is now, the exclusive representative of all em-
ployees in the above-described appropriate unit for the
purposes of collective bargaining.
5. On or about August 10, 1977, Respondent and the
Union entered into a collective-bargaining agreement,
known as the Short-Form Agreement, adopting certain
terms and conditions of the Master Labor Agreement be-
tween the Union and various San Diego County General
Contractors Associations, which MLA is effective by its
terms from June 1, 1977, to June 15, 1980.
6. By refusing to recognize that the Union is the col-
lective-bargaining representative of the employees of
Rentals in the appropriate unit, by refusing to acknowl-
edge that Rentals is bound by the Short Form Agree-
ment and by failing and refusing to apply the terms of
the aforesaid agreement to all the employees in the ap-
propriate unit described in paragraph 4 above, including
failing and refusing to pay wages and make contributions
to the various trust funds as required by the aforesaid
agreement, Respondent has violated Section 8(a)(5) and
(1) 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 certain
unfair labor practices within the meaning of Section
8(a)(1) and (5) of the Act, I shall recommend that it
cease and desist therefrom and take certain affirmative
action to effectuate the purposes of the Act.
Since I have found that Respondent has violated Sec-
tion 8(a)(l) and (5) of the Act by refusing to apply the
collective-bargaining agreement between Land and the
Union to employees of Rentals, Respondent shall be or-
dered to recognize the Union as the exclusive representa-
tive of all the employees in the appropriate unit, and to
give effect to the terms and provisions of the collective-
bargaining agreement between the Union and Land ret-
roactively and prospectively.' 0 I shall also recommend
that Respondent make whole unit employees for any loss
of earnings or other compensation they may have suf-
fered by the unlawful refusal to apply the terms of the
collective-bargaining agreement to them and to reim-
burse the trust funds provided for in the collective-bar-
gaining agreement for those contributions Respondent
has failed to make on behalf of the unit employees. All
backpay is to be computed in the manner prescribed in
F. W. Woolworth Company, 90 NLRB 289 (1950), with
interest.
The General Counsel seeks a remedial interest rate of
9 percent per annum on the moneys for which Respon-
dent is liable for the violations involved herein. The
Board recently rejected that argument. W. Carter Max-
well d/b/a Pioneer Concrete Co., 241 NLRB No. 31
(1979). Accordingly, I recommend that interest herein be
computed in the manner set forth in Florida Steel Corpo-
ration, 231 NLRB 651 (1977)."
Upon the basis of the foregoing findings of fact, con-
clusions of law, and the entire record, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER t 2
The Respondent, Land Equipment Incorporated and
Equipment Service Rentals, a Single Employer, Powag,
California, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with International
Union of Operating Engineers, Local No. 12, AFL-CIO,
as the exclusive representative of its employees in the ap-
propriate unit described below by refusing to recognize
the Union as the collective-bargaining representative of
the employees of Equipment Service Rentals in the ap-
propriate bargaining unit described below; by refusing to
acknowledge that Equipment Service Rentals is bound
by the collective-bargaining agreement between Land
Equipment Incorporated and International Union of Op-
erating Engineers, Local No. 12, AFL-CIO; and by fail-
ing and refusing to apply the terms of said agreement to
all the employees in the appropriate unit described
below, including failing and refusing to pay the wages
and make the contributions to the various trust funds as
required by the collective-bargaining agreement. The ap-
propriate unit is:
'O Since Respondent actively attempted to conceal from the Union the
existence of Rentals and the fact that some of the employees dispatched
by the Union to Land appeared on the payroll of Rentals, it appears that
retroactive application of the contract terms to August 10, 1977, would
not be prohibited by Sec. 10(b) of the Act.
L See, generally, Isis Plumbing & Hearing Co., 138 NLRB 716 (1962).
'2 In the event no exceptions are filed as provided in Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
LAND EQUIPMENT INCORPORATED 691
All employees employed by Land Equipment Incor-
porated and Equipment Service Rentals, excluding
office clerical employees, guards, and supervisors as
defined in the Act.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Bargain collectively with the Union by recognizing
the Union as the collective-bargaining representative of
all the employees in the aforesaid appropriate bargaining
unit; acknowledging that Equipment Service Rentals is
bound by the collective-bargaining agreement between
Land Equipment Incorporated and the Union executed
on August 10, 1977; and give effect to the terms and
conditions of the aforesaid agreement retroactively and
prospectively.
(b) Jointly and severally make whole all employees in
the appropriate unit described above, for any loss of
wages and benefits they incurred because of Respon-
dent's illegal refusal to comply with the terms and provi-
sions of the aforesaid collective-bargaining agreement,
and reimburse the contractually agreed-upon trust funds
for those contributions Respondent failed to make on
behalf of the employees in the appropriate unit in the
manner set forth in that section of this Decision entitled
"The Remedy."
(c) Preserve and, upon request, make available 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 to analyze the amount of backpay due
under the terms of this recommended Order.
(d) Post at its facility or facilities in San Diego
County, California, copies of the attached notice marked
"Appendix."13 Copies of said notice, on forms provided
by the Regional Director for Region 21, after being duly
signed by Respondent's authorized 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 Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 21, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
13 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"
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had a chance to give
evidence, the National Labor Relations Board has found
that we violated the National Labor Relations Act, as
amended, and has ordered us to post this notice. We
intend to abide by the following:
The Act gives all employees these rights:
To organize themselves
To form, join, or help unions
To bargain collectively through representa-
tives of their own choosing
To act together for collective bargaining or
other mutual aid or protection
To refuse to do any or all of these things.
Accordingly, we hereby notify our employees that:
WE WILL NOT refuse to recognize and bargain
with International Union of Operating Engineers,
Local No. 12, AFL-CIO, as the representative for
purposes of collective bargaining on behalf of the
employees in the following appropriate unit:
All employees employed by Equipment Service
Rentals and Land Equipment Incorporated, ex-
cluding office clerical employees, guards, and su-
pervisors as defined in the Act.
WE WILL NOT refuse to recognize that Equip-
ment Service Rentals is bound by the terms and
conditions of the collective-bargaining agreement
executed on August 10, 1977, by Land Equipment
Incorporated and International Union of Operating
Engineers, Local No. 12, AFL-CIO.
WE WILL NOT refuse to pay the wages or make
the contributions to the various contractually
agreed-upon trust funds or to apply any of the other
terms of the aforesaid agreement to all the employ-
ees in the appropriate unit described above.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce our employees in
the exercise of the rights guaranteed in the Act.
WE WILL bargain collectively with the above-
named Union by recognizing it as the collective-
bargaining representative of all the employees in the
aforesaid appropriate bargaining unit.
WE WILL acknowledge that Equipment Service
Rentals is bound by the collective-bargaining agree-
ment described above and WE WILL give effect to
its terms and conditions retroactively and prospec-
tively.
WE WILL jointly and severally make whole all
our employees in the appropriate unit described
above, for any loss of wages and benefits they in-
curred because of our refusal to comply with the
692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
terms and provisions of the aforesaid collective-bar-
gaining agreement.
WE WILL jointly and severally reimburse the
contractually agreed-upon trust funds for those con-
tributions we failed to make on behalf of the em-
ployees in the appropriate unit described above.
LAND EQUIPMENT INCORPORATED AND
EQUIPMENT SERVICE RENTALS, A SINGLE
EMPLOYER