McDaniel Electric

National Labor Relations Board - Board Decisions

Nov 23, 1993

313 N.L.R.B. 126 (N.L.R.B. 1993)

126
313 NLRB No. 11
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 There is no evidence in the record detailing the Respondent’s
employment pattern before October 1992. Accordingly, the only rel-
evant time period before us for consideration in determining whether
the Respondent employed a stable one-man unit, is the period from
October 1992 through February 1993.
2 Apart from the Respondent’s above-recited history, we are unable
to discern from the record the exact number of days and weeks that
the Respondent employed other employees at the project. The Re-
spondent stipulated at the hearing that employee payroll records in-
troduced by the General Counsel ‘‘represent the total payroll for
McDaniel Electric.’’ In its brief in support of exceptions, the Re-
spondent contends that certain hours listed on these payroll records
pertain to work performed on a different, nonunit project outside San
Bernandino County that is not covered by the collective-bargaining
agreement. At the hearing, however, the judge noted that the payroll
records contained references to the other worksite outside San
Bernandino County but that the General Counsel had stated on the
record that these notations were erroneous ‘‘and shouldn’t be there.’’
In response, the Respondent stated at the hearing that it had ‘‘no in-
formation to believe that that’s not correct,’’ but that it might be ap-
propriate for the Respondent’s owner, Oscar McDaniel, to testify on
that matter. The judge then indicated that he had no objection to the
stipulation and Oscar McDaniel never testified. Later in the hearing,
the General Counsel attempted to clarify the stipulation so as to en-
compass the earlier representations regarding the allegedly erroneous
notations. The Respondent objected on the basis that ‘‘the record re-
flects what we stipulated to.’’ The General Counsel replied that ‘‘I’ll
leave it as it stands.’’ In view of this state of ambiguity, we are un-
able to construe the stipulation as establishing, on this record, that
all the work hours listed on the payroll records necessarily reflect
work performed only at the San Bernandino County project. Accord-
ingly, contrary to the judge, our above calculations are based on
work hours, set forth in the payroll records, which are not in dispute
and which all parties agree pertain to the San Bernandino County
jobsite.
Oscar David McDaniel d/b/a McDaniel Electric and
International Brotherhood of Electrical Work-
ers, Local 477, AFL–CIO. Case 31–CA–19638
November 23, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On June 30, 1993, Administrative Law Judge Mi-
chael D. Stevenson issued the attached decision. The
Respondent filed exceptions and a supporting brief, the
General Counsel filed an answering brief, and the Re-
spondent filed a reply brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and briefs and has decided to affirm the judge’s rul-
ings, findings, and conclusions and to adopt the rec-
ommended Order.
We agree with the judge that the Respondent vio-
lated Section 8(a)(5) and (1) by repudiating the terms
of a current collective-bargaining agreement with
IBEW Local 477 (the Union). For the reasons set forth
below, we adopt the judge’s findings that the Respond-
ent did not employ a stable one-man bargaining unit
that would privilege repudiation of the agreement.
Facts
On December 3, 1978, the Respondent, an electrical
contractor in the construction industry, executed a let-
ter of assent (Letter of Assent-A) authorizing Southern
Sierra Chapter, National Electrical Contractors Asso-
ciation (NECA) to act as its collective-bargaining rep-
resentative for the purpose of negotiating contractual
terms with the Union. The letter of assent, by its
terms, remained effective until terminated by timely
written notice to NECA and the Union. The Respond-
ent stipulated at the hearing that it has not sent a ter-
mination letter either to NECA or to the Union.
The most recent bargaining agreement between
Southern Sierra Chapter, NECA and the Union is ef-
fective from June 1, 1992, through May 31, 1995. The
1992–1995 agreement, covering jobsites in the counties
of San Bernandino, Inyo, and Mono, California, pro-
vides that the Union shall be the exclusive referral
source of employment applicants for the Respondent.
The agreement also provides that the Respondent shall
regularly contribute on behalf of unit employees to
various IBEW-NECA benefit trust funds.
In October 1992, the Respondent commenced work
at a construction project in San Bernandino County.1
At the time of the March 16, 1993 hearing in this pro-
ceeding, the Respondent had worked at the project for
21 weeks. It is undisputed that the Respondent em-
ployed unit employee Richard Harris at the project on
a regular basis. At various times, the Respondent also
employed two other employees at the project. Thus,
between November 30, 1992, and February 26, 1993,
the Respondent employed two or more employees at
the project during at least 5 weeks of this 13-week pe-
riod, including all three employees for 5 workdays dur-
ing the most recent workweek in evidence at the hear-
ing (the week ending February 27, 1993). Employee
Marcelino Lepe worked at the project with employee
Harris for at least 12 days over 3 weeks between No-
vember 30, 1992, and February 26, 1993, including the
week ending February 27, 1993. Employee Mario
Magdaleno worked with Harris at the project for 7
days over 3 weeks between January 29, 1993, and Feb-
ruary 26, 1993, including the week ending February
27, 1993.2 The Respondent stipulated at the hearing
that ‘‘from the start of this job’’ in San Bernandino
County, it has failed to abide by any of the terms and
conditions set forth in the 1992–1995 bargaining
agreement.
Discussion
As the judge found, the 1992–1995 bargaining
agreement is an 8(f) agreement enforceable under John
Deklewa & Sons, 282 NLRB 1375 (1987), enfd. sub
nom. Iron Workers Local 3 v. NLRB, 843 F.2d 770 (3d
Cir. 1988). By virtue of the Respondent’s execution of
127MCDANIEL ELECTRIC
3 See generally John Deklewa & Sons, supra at 1376, 1389 fn. 62
(employer engaged in no projects between September 1983 and May
1984 in which it directly employed unit employees covered by bar-
gaining agreement; Board held that ‘‘(a)n 8(f) contract is enforceable
throughout its term although at a given time there may not be any
employees to which the contract would apply’’).
4 As explained above, the focus of our inquiry in this 8(a)(5) case
is whether the employer maintains a stable one-man unit. Because
the critical inquiry here is directed to the scope of the employer’s
work force, the individual voting eligibility standards of Daniel Con-
struction Co., 133 NLRB 264 (1961), are not controlling.
Letter of Assent-A and its failure to notify the Union
and NECA of its termination in a timely manner, the
Respondent is bound by the 1992–1995 bargaining
agreement unless, as the Respondent contends, it had
no more than one employee performing unit work at
all material times. Haas Garage Door Co., 308 NLRB
1186, 1187 (1992). For the reasons below, we agree
with the judge that the Respondent violated Section
8(a)(5) and (1) as alleged.
The Board has long recognized the principle that
collective bargaining presupposes that there is more
than one eligible person who desires to bargain.
Luckenbach Steamship Co., 2 NLRB 181, 193 (1936).
And the Board has recognized that if it is not empow-
ered to direct an election and to certify a one-man unit,
it logically follows that the Act precludes the Board
from directing an employer to bargain with respect to
such a unit. Foreign Car Center, 129 NLRB 319
(1960). In short, when the employee complement at
issue has no ‘‘collective’’ character, and thereby has
no meaningful relationship to the practice and proce-
dure of collective bargaining that underlies the statu-
tory framework, it is altogether appropriate for the
Board to withhold its statutory representational and un-
fair labor practice processes.
Before we will withhold those processes, however,
we will require proof that the purportedly single-em-
ployee unit is a stable one, not merely a temporary oc-
currence. Thus, in Wilson & Sons Heating, 302 NLRB
802 (1991), the Board found that there was not a sta-
ble one-employee unit even though the employer em-
ployed only one permanent employee for a 9-month
period, encompassing a 4-month period before repudi-
ation of the contract and a 5-month period after the re-
pudiation. At other critical times, including the most
recent period preceding the hearing and at the time of
contract execution, the employer there employed more
than one employee.
Here, the Respondent at the outset of the San
Bernandino County project employed but one em-
ployee. In the last 13-week period preceding the hear-
ing it employed two or more employees during at least
5 of those weeks. In the final workweek of that period
it employed three employees for 5 workdays. This
most recent employment pattern reveals the existence
of a larger work force in the unit than is indicated by
the initial employment on the project, and is more than
enough to offset the Respondent’s employment for a
time of only one employee. Indeed, the Respondent’s
employment history at the project is typical, as the
judge noted, of employment fluctuations in the con-
struction industry. Accordingly, we agree with the
judge that the Respondent’s recent employment of two
or more employees at the project cannot be considered
insignificant and that such employment belies the Re-
spondent’s argument that it employs there a stable one-
employee unit that is not collective in character.3
Further, although the Respondent contends that it
performed no work within the jurisdiction of the Union
for many years preceding the October 1992 com-
mencement of work in San Bernandino County, and,
therefore, employed no unit employees during that pe-
riod, the record, as noted, is silent regarding the Re-
spondent’s employment pattern before October 1992.
In any event, even assuming that the Respondent’s as-
sertions are accurate, it is our view that the Respond-
ent’s most recent employment history is more relevant
to our inquiry than are more remote periods when the
Respondent purportedly was not engaged in business at
all in the locality covered by the bargaining agreement.
Finally, we find that the cases relied on by the Re-
spondent, in which the Board found a stable one-man
unit, are factually distinguishable. In Stack Electric,
290 NLRB 575, 577 (1988), the employers there em-
ployed more than one employee for only about 2
weeks over a 3-year period, and employed no more
than one employee during the remainder of that period.
At the time of the hearing, the employers had em-
ployed no more than one employee continuously for
several months. In Searls Refrigeration Co., 297
NLRB 133, 135 (1989), one of two individuals at issue
was found to be a supervisor and, following his exclu-
sion, only a one-man employee unit, at most, re-
mained. In D & B Masonry, 275 NLRB 1403, 1408–
1410 (1985), the employer employed only one em-
ployee at the time of the hearing and the most recently
laid-off unit employees had no reasonable expectation
of reemployment, or worked elsewhere. In Garman
Construction Co., 287 NLRB 88, 94 (1987), there was
no factual dispute that the employer employed only
one unit employee. And in Haas Garage Door Co.,
supra, two of the three individuals at issue were found
to be independent contractors, leaving, at most, one
unit employee.4
Accordingly, we adopt the judge’s finding that the
Respondent violated Section 8(a)(5) and (1) by repudi-
ating its obligations under the 1992–1995 bargaining
agreement with the Union.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
128 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates herein refer to 1992 unless otherwise indicated.
2 All agree that Respondent is an employer primarily engaged in
the building and construction industry. Because Respondent volun-
tarily entered into a collective-bargaining relationship with the Union
by virtue of the Letter-of-Assent-A without regard to whether the
Union had the support of a majority of the employees, or indeed
without regard to whether there were any employees at the time, I
conclude that an 8(f) relationship has been established initially and
through succeeding contracts. Stack Electric Co., 290 NLRB 575,
577 (1988); Bifco Corp., 291 NLRB 1015, 1015 (1988).
orders that the Respondent, Oscar David McDaniel
d/b/a McDaniel Electric, Anaheim, California, its offi-
cers, agents, successors, and assigns, shall take the ac-
tion set forth in the Order.
Ann L. Weinman, Esq., for the General Counsel.
Wayne A. Hersh and Jon G. Miller, Esqs., of Irvine, Califor-
nia, for the Respondent.
Robert B. Bowen, Business Representative, of San
Bernardino, California, for the Charging Party.
DECISION
STATEMENT OF THE CASE
MICHAEL D. STEVENSON, Administrative Law Judge. This
case was tried before me at San Bernardino, California, on
March 16, 1993,1 pursuant to a complaint issued by the Re-
gional Director of Region 31 for the National Labor Rela-
tions Board on December 23 and which is based on a charge
filed by International Brotherhood of Electrical Workers,
Local 477, AFL–CIO (the Union) on November 17. The
complaint alleges that Oscar David McDaniel d/b/a
McDaniel Electric (Respondent) has engaged in certain viola-
tions of Section 8(a)(1) and (5) of the National Labor Rela-
tions Act (the Act).
Issues
Whether Respondent, while a party to an 8(f) agreement
with the Union, failed to abide by and repudiate the agree-
ment in violation of the Act.
All parties were given full opportunity to participate, to in-
troduce relevant evidence, to examine and to cross-examine
witnesses, to argue orally, and to file briefs. Briefs, which
have been carefully considered, were filed on behalf of the
General Counsel, the Charging Party, and Respondent.
On the entire record of the case, and from my observation
of the witnesses and their demeanor, I make the following
FINDINGS OF FACT
I. RESPONDENT’S BUSINESS
Respondent admits that for all times material herein it is
a sole proprietorship owned by Oscar McDaniel d/b/a
McDaniel Electric and engaged in the construction business
as an electrical contractor and having an office and principal
place of business located in Anaheim, California. Respond-
ent, in the course and conduct of its business operations, an-
nually sells goods or provides services valued in excess of
$50,000 to customers or business enterprises within the State
of California, which customers or business enterprises them-
selves meet one of the Board’s jurisdictional standards, other
than the indirect inflow or indirect outflow standard. Further-
more, Respondent, in the course and conduct of its business
operations, annually derives gross revenues in excess of
$250,000. Accordingly, it admits, and I find, that it is an em-
ployer engaged in commerce and in a business affecting
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admitted and stipulated during the hearing (Tr.
9), and I find, that International Brotherhood of Electrical
Workers, Local 477, AFL–CIO, is a labor organization with-
in the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICE
A. The Facts
On December 3, 1978, Respondent executed a Letter of
Assent-A (G.C. Exh. 2), the effect of which is that Respond-
ent has, since that time, been bound to a series of successive
collective-bargaining agreements (Inside Wireman’s Agree-
ment) between the Union and Southern Sierras Chapter, Na-
tional Electrical Contractors Association (NECA). The agree-
ments, including the most recent which is effective between
June 1, 1992, through May 31, 1995 (G.C. Exh. 3), cover
jobsites located in San Bernardino, Inyo, and Mono Counties
within the State of California.
The last agreement requires, inter alia, that the Union be
the exclusive source of employment referrals for Respondent
(G.C. Exh. 3, p. 21) and that Respondent regularly contribute
certain payments to benefit trust funds on behalf of its unit
employees (G.C. Exh. 3, p. 72 et. seq.).
Since early October (G.C. Exh. 4(a)) Respondent has per-
formed work as an electrical subcontractor at a construction
project called the Cooley Ranch Elementary School, located
in Colton, California, which in turn is located within San
Bernardino County. The general contractor on this same
project is Gentosi Brothers, to whom Respondent submitted
weekly payroll records, dated for weeks ending October 3
through February 27, 1993 (G.C. Exhs. 4(a)–4(aa)).
At hearing, the parties agreed and stipulated that for all
times material to this case, Respondent has not complied
with the terms and conditions of the agreement with the
Union nor has Respondent sent a termination letter to the
Union or to NECA (Tr. 19–20).
B. Analysis and Conclusions
The parties do not dispute that for all times material to this
case, Respondent and the Union had a collective-bargaining
relationship governed by Section 8(f) of the Act.2 Accord-
ingly, I look first to the Board’s decision in John Deklewa
& Sons, 282 NLRB 1375 (1987), enfd. sub nom. Iron Work-
ers Local 3 v. NLRB, 843 F.2d 770 (3d Cir. 1988), for guid-
ance. In that case, the Board overruled previous interpreta-
tions of Section 8(f) and held that prehire agreements made
pursuant to Section 8(f) are ‘‘binding, enforceable and not
subject to unilateral repudiation throughout their term (id. at
1389 fn. 62). To ensure that employers and unions had avail-
able appropriate means for redress, the Board also stated in
Deklewa that a collective-bargaining agreement permitted by
129MCDANIEL ELECTRIC
3 In her brief, p. 4, the General Counsel refers to the ‘‘jobsite pay-
roll records for the weeks ending September 27, 1992 ‘‘This appears
to be a mistake since the first payroll record in evidence is for the
week ending October 3 (G.C. Exh. 4(b)). Furthermore, when the
General Counsel first introduced the records, she described the first
date as October 3, 1992 (Tr. 15).
Section 8(f) shall be enforceable through the mechanisms of
Section 8(a)(5) and Section 8(b)(3).
The principles established by the Board’s decision in
Deklewa & Sons are subject to an exception where applica-
ble. As explained by the Board in Stack Electric Co., supra,
290 NLRB at 577:
In D & B Masonry, 275 NLRB 1403 (1985), the Board
adopted the judge’s discussion of this issue at 1408.
It is settled that if an employer employs one or fewer
unit employees on a permanent basis that the employer,
without violating Section 8(a)(5) of the Act, may with-
draw recognition from a union, repudiate its contract
with the union, or unilaterally change employees’ terms
and conditions of employment without affording a
union an opportunity to bargain. SAC Construction Co.,
235 NLRB 1211, 1230 (1978); Sunray Limited, 258
NLRB 517, 518 (1981); Chemetrons Corp., 268 NLRB
335 (1983). The basis for permitting an employer to en-
gage in this conduct was explained by the Board in
Foreign Car Center, 129 NLRB 319, 320 (1960), as
follows:
The Board has held that it will not certify a one-man
unit because the principles of collective bargaining
presuppose that there is more than one eligible per-
son who desires to bargain. The Act therefore does
not empower the Board to certify a one-man unit. By
parity of reasoning, the Act precludes the Board
from directing an employer to bargain with respect
to such a unit. While we have held that the Act does
not preclude bargaining with a union on behalf of a
single employee, if an employer is willing, we have
never held that an employer’s refusal to bargain with
a representative on behalf of a one-man unit is a re-
fusal to bargain within the meaning of Section
8(a)(5).
See also Jervis B. Webb Co., 302 NLRB 316, 317 fn. 7
(1991).
As its sole defense in the instant case, Respondent con-
tends that it had only a single unit employee, Richard Harris;
Respondent concludes therefore, that ‘‘employers with one or
fewer unit employees are free to: (1) withdraw recognition
from a Union; (2) repudiate their purported contracts with a
Union, or (3) unilaterally change their employees terms and
conditions of employment without affording a Union an op-
portunity to bargain.’’ (Br. pp. 3–4, Tr. 14–15).
The General Counsel, on the other hand, contends that Re-
spondent employed four unit employees, Harris, Brian
McDaniel (son of Respondent’s owner), Mario Magdaleno,
and Marcelino Lepe (Tr. 22–23). Because none of the four
alleged unit employees testified, I must look to Respondent’s
payroll records (G.C. Exh. 4) to resolve the issue.
Summary of Payroll Records3
For Week Ending Brian McDaniel Richard Harris Mario Magdaleno Marcelino Lepe
10/3 ...........................................................
(G.C. Exh. 4(b)) ....................................... 9/30 (8 hrs.), 10/1 (1 hr.) 9/30 (8 hrs)
10/10 .........................................................
(G.C. Exh. 4(c)) ....................................... 10/7 (4 hrs.), 10/8 (8
hrs.)
10/8 (8 hrs.)
10/17 .........................................................
(G.C. Exh. 4(d)) ....................................... 10/12 (3 hrs.), 10/14 (4
hrs.)
................................................................ 10/15 (8 hrs.)
10/24 .........................................................
(G.C. Exh. 4(e)) ....................................... 10/19 (7 hrs.), 10/21 (8
hrs.)
10/21 (8 hrs.), 10/22 (8
hrs.)
................................................................ 10/22 (8 hrs.)
10/31 .........................................................
(G.C. Exh. 4(f)) ........................................ 10/27 (2 hrs.), 10/28 (7
hrs.)
10/27 (2 hrs.), 10/28 (7
hrs.)
................................................................ 10/29 (8 hrs.) 10/29 (8 hrs.)
11/7 ...........................................................
(G.C. Exh. 4(h)) ....................................... 11/2–11/6 (8 hrs./day) 11/2–11/6 (8 hrs./day)
11/l4 ..........................................................
(G.C. Exh. 4(i)) ........................................ 11/9–11/13 (8 hrs./day) 11/9–11/13 (8 hrs./day)
11/21 .........................................................
130 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 In its brief, p. 3, the Union describes Brian McDaniel as ‘‘fore-
man on the project.’’ Because he is excluded from the unit based
on his status as son of the owner, it is unnecessary to consider the
question as to whether Brian McDaniel was a statutory supervisor.
Further, this issue was never litigated.
Summary of Payroll Records3—Continued
For Week Ending Brian McDaniel Richard Harris Mario Magdaleno Marcelino Lepe
(G.C. Exh. 4(j)) ........................................ 11/16–11/20 (8 hrs./day) 11/16–11/20 (8
hrs./day)
11/28 .........................................................
(G.C. Exh. 4(k)) ....................................... 11/23 (8 hrs.), 11/24(8
hrs.)
11/23 (8 hrs.), 11/24 (8
hrs.)
................................................................ 11/25 (4 hrs.) 11/25 (4 hrs.)
12/5 ...........................................................
(G.C. Exh. 4(m)) ...................................... 11/30–12/4 (8 hrs./day) 11/30–12/4 (8 hrs./day) 11/30–12/4 (8 hrs./day)
12/12 .........................................................
(G.C. Exh. 4(n)) ....................................... 12/7–12/11 (8 hrs./day) 12/7–12/11 (8 hrs./day) 12/7–12/11 (8 hrs./day)
12/19 .........................................................
(G.C. Exh. 4(o)) ....................................... 12/14–12/18 (8 hrs./day) 12/14–12/18 (8
hrs./day)
12/14–12/18 (8
hrs./day)
12/26 .........................................................
(G.C. Exh. 4(p)) ....................................... 12/21 (8 hrs.), 12/22 (8
hrs.)
12/21 (8 hrs.), 12/22 (8
hrs.)
12/21 (8 hrs.)
................................................................ 12/22 (8 hrs.)
1/2/93 ........................................................
(G.C. Exh. 4(q)) ....................................... 12/28 (8 hrs.), 12/29 (8
hrs.)
12/28 (8 hrs.), 12/29 (8
hrs.)
12/28 (8 hrs.)
................................................................ 12/30 (8 hrs.) 12/29 (8 hrs.)
1/9/93 ........................................................
(G.C. Exh. 4(s)) ....................................... NO WORK NO WORK NO WORK NO WORK
1/16/93 ......................................................
(G.C. Exh. 4(t)) ........................................ 1/11 (6 hrs.), 1/12 (6
hrs.)
................................................................ 1/13 (6 hrs.), 1/14 (2
hrs.)
1/23/93 ......................................................
(G.C. Exh. 4(u)) ....................................... 1/19 (2 hrs.), 1/21 (5
hrs.)
................................................................ 1/22 (6 hrs.)
1/30/93 ......................................................
(G.C. Exh. 4(v)) ....................................... 1/25–1/29 (8 hrs./day) 1/25–1/29 (8 hrs./day) 1/29 (8 hrs.)
2/6/93 ........................................................
(G.C. Exh. 4(x)) ....................................... 2/1–2/5 (8 hrs./day) 2/1–2/5 (8 hrs./day) 2/2 (8 hrs.)
2/13/93 ......................................................
(G.C. Exh. 4(y)) ....................................... 2/10 (8 hrs.), 2/12 (8
hrs.)
2/10 (8 hrs.), 2/12 (8
hrs.)
2/20/93 ......................................................
(G.C. Exh. 4(z)) ....................................... 2/15 (2 hrs.), 2/16 (6
hrs.)
2/15 (2 hrs.), 2/16 (6
hrs.)
................................................................ 2/17 (8 hrs.) 2/17 (8 hrs.)
2/27/93 ......................................................
(G.C. Exh. 4(aa)) ..................................... 2/22–2/26 (8 hrs./day) 2/22–2/26 (8 hrs./day) 2/22–2/26 (8
hrs./day)
2/22–2/26 (8 hrs./day)
In analyzing the payroll records, I first disregard Brian
McDaniel because, as the son of Respondent’s owner, he is
not an ‘‘employee’’ pursuant to Section 2(3) of the Act.4
‘‘Where the employer does business as a sole proprietorship
[as is true here], it is clear that the employer’s children . . .
are statutorily excluded.’’ II Hardin, Developing Labor Law
1633 (3d Ed. 1992) citing Johnson Metal Products, 161
NLRB 844 (1966).
Turning next to the payroll records, I count 21 weeks of
work and 1 week of no work. For the first 9 weeks; Re-
spondent had only a single unit employee, Harris. Thereafter
beginning the week ending December 5, Respondent had
131MCDANIEL ELECTRIC
5 The Deklewa footnote reads as follows: ‘‘Accordingly, the Re-
spondent’s defense that it employed no ironworkers when it repudi-
ated the contract is without merit. An 8(f) contract is enforceable
throughout its term, although at a given time there may not be any
employees to which the contract would apply.’’
6 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
more than a single employee on 8 out of the remaining 13
weeks.
In Haas Gargage Door Co., 308 NLRB 1186, 1187
(1992), the Board stated:
[T]he Board has held that the one-man unit rule applies
in an 8(f) context. That rule provides that when a unit
consists of no more than a single permanent employee
at all material times, an employer has no statutory duty
to bargain and thus, will not be found in violation of
the Act for disavowing a bargaining agreement and re-
fusing to bargain. [Emphasis added.]
The Board then reversed the administrative law judge and
dismissed the case finding that Respondent had no employ-
ees doing unit work.
Despite the Board’s flat statement quoted above, other
cases reflect that the Board does not intend to apply me-
chanically the ‘‘one man unit’’ rule. For example, in Searls
Refrigeration Co., 297 NLRB 133 (1989), the Board af-
firmed the decision of the administrative law judge rec-
ommending dismissal of a case though Respondent had em-
ployed two persons on a part-time basis over a period of 2
months out of a 27-month period. One of the two persons
may have been a supervisor. However, the administrative law
judge in Searls Refrigeration Co. noted that in Stack Electric
Co., the Board applied the ‘‘one man unit’’ rule to one of
the respondents (North Town), even though North Town em-
ployed two employees during 2 weeks of the 3-year contract
term. The administrative law judge concluded that, ‘‘appar-
ently, the Board considered the 2-week period to be insignifi-
cant under the circumstances’’ (id. at 135).
The work performed by the two- or three-person unit in
the present case for the weeks in question cannot be consid-
ered insignificant. Rather the facts here show the type of
fluctuation in unit size which would be typical for many em-
ployers during construction work and which is the basis for
Section 8(f) of the Act. In Garman Construction Co., 287
NLRB 88 (1987), the Board reversed the administrative law
judge and found application of the ‘‘one man unit’’ rule to
be proper in that case. However, in Garman Construction,
supra at 89 fn. 8, the Board added:
We note that had the facts been different and the unit
of operating engineers been subject to fluctuations in
size, only temporarily decreasing in size to a single em-
ployee unit, the Respondent’s actions would have vio-
lated Section 8(a)(5) of the Act. See Deklewa above at
fn. 62.5
Respondent’s argument that the repudiation occurred dur-
ing the initial 2 months, after which it was free to disavow
the 1978 agreement would allow an employer to manipulate
its work schedule to defeat its bargaining obligations. Only
by looking at the total work schedule for all the weeks in
issue can a proper decision be reached.
By examining the total work schedule in this case and all
other relevant evidence, I find that Respondent has violated
Section 8(a)(5) and (1) of the Act because under the cir-
cumstances present in this case, the Board’s one-person unit
defense is not available. I further find that Respondent’s au-
thorities of Stack Electric, and D & B Masonry may be dis-
tinguished on their facts and do not apply to this case.
THE REMEDY
Having found that Respondent has engaged in an unfair
labor practice, I will recommend that it be ordered to cease
and desist and take certain affirmative actions designed to ef-
fectuate the policies of the Act. The Respondent will be or-
dered to make whole, as prescribed in Ogle Protection Serv-
ice, 183 NLRB 682 (1970), any employees for losses they
may have suffered as a result of the Respondent’s failure to
adhere to the contract, with interest, as computed in New Ho-
rizons for the Retarded, 283 NLRB 1173 (1987).
CONCLUSIONS OF LAW
1. The Respondent, Oscar David McDaniel d/b/a
McDaniel Electric, is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union, International Brotherhood of Electrical
Workers, Local 477, AFL–CIO, is a labor organization with-
in the meaning of Section 2(5) of the Act.
3. The following described employees of Respondent con-
stitute a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act:
Included: All inside wiremen, including journeymen
and apprentices employed by Respondent in San
Bernardino, Inyo and Mono Counties, California.
Excluded: All other employees, guards and super-
visors as defined in the Act.
4. By repudiating its current collective-bargaining agree-
ment with the Union, by refusing to honor and abide by the
terms of article IV, referral procedure of the 1992–1995 In-
side Wireman’s Agreement between the Union and Southern
Sierras Chapter of NECA and by refusing to make trust fund
contributions as required by the same agreement, the Re-
spondent has engaged in unfair labor practices within the
meaning of Section 8(a)(1) and (5) of the Act.
5. These unfair labor practices affect commerce within the
meaning of Section 2(6) and (7) of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended6
ORDER
The Respondent, Oscar David McDaniel d/b/a McDaniel
Electric, Anaheim, California, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Repudiating its current collective-bargaining agreement
(Inside Wireman’s Agreement) with the Union.
132 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
(b) Refusing to honor and abide by the terms of article IV,
referral procedure of the 1992–1995 Inside Wireman’s
Agreement.
(c) Refusing to make trust fund contributions as required
by the same agreement.
(d) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Honor and adhere to the current collective-bargaining
agreement (Inside Wireman’s Agreement) entered into by the
Southern Sierra Chapter of NECA and the Union.
(b) Make all past due and current trust fund contributions
as required by the same agreement referred to in 2(a) above.
(c) Make whole any employees, in the manner set forth in
the remedy, for any losses they may have suffered as a result
of the Respondent’s failure to adhere to its contract.
(d) Preserve and, on request, make available to the Board
or its agents for examination and copying, 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.
(e) Post at its Anaheim, California office, copies of the at-
tached notice marked ‘‘Appendix.’’7 Copies of the notice, on
forms provided by the Regional Director for Region 31, 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 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.
(f) 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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT repudiate our current collective-bargaining
agreement (Inside Wireman’s Agreement) with the Inter-
national Brotherhood of Electrical Workers, Local 477,
AFL–CIO.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL honor and adhere to the current collective-bar-
gaining agreement entered into for the period June 1, 1992,
through May 31, 1995, between the Southern Sierras Chapter
of NECA and the Union.
WE WILL make all past due and current trust fund con-
tributions as required by the same agreement referred to im-
mediately above.
WE WILL make employees whole for any losses they may
have suffered as a result of our failure to adhere to the col-
lective-bargaining agreement described above.
OSCAR DAVID MCDANIEL D/B/A MCDANIEL
ELECTRIC