McKenzie Engineering Co.

National Labor Relations Board - Board Decisions

Apr 10, 2001

333 N.L.R.B. 905 (N.L.R.B. 2001)

MCKENZIE ENGINEERING CO. 905
McKenzie Engineering Co. and Northwest Illinois
and Eastern Iowa District Council of Carpen-
ters, affiliated with the International Brother-
hood Of Carpenters and Joiners of America,
AFL–CIO. Case 33–CA–12098
April 10, 2001
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
LIEBMAN
AND HURTGEN
On April 24, 1998, Administrative Law Judge William
J. Pannier III issued the attached decision. The Respon-
dent filed exceptions and a supporting brief, and the
General Counsel filed a brief in support of the judge’s
decision.1
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,2 and conclusions and
to adopt the recommended Order.
The judge found, as alleged in the complaint, that the
Respondent violated Section 8(a)(5) and (1) of the Act
by failing and refusing to honor its 8(f) collective-
bargaining agreement with the Northwest Illinois and
Eastern Iowa District Council of Carpenters (the Carpen-
ters Union) with respect to its work on the Crescent
Bridge repair project.3 We adopt this finding. It is well
settled that an employer may not repudiate an 8(f)
agreement during its term.4 Additionally, when an em-
ployer consents to be bound by an area 8(f) agreement
and its successor agreements, as the Respondent did here,
the employer’s contractual obligations continue, absent
timely notification to terminate the agreement and to
withdraw delegated bargaining authority.5

1 The Respondent also filed a letter on June 30, 2000, seeking to call
the Board’s attention to a recently-issued court decision, Carpenters
Fringe Benefit Funds of Illinois v. McKenzie Engineering, 217 F.3d
578 (8th Cir. 2000). The Board’s associate executive secretary rejected
the letter as argument submitted beyond the period allowed for filing
briefs but forwarded the court decision to the Board.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
3 Under Sec. 8(f) of the Act, it is generally permissible for an em-
ployer engaged primarily in the building and construction industry to
enter into an agreement with a union covering employees in that indus-
try even though the status of the union as the majority representative of
those employees has not been established and the employees who will
be covered by the agreement have not yet been hired. See Iron Workers
Local 3 v. NLRB, 843 F.2d 770, 773 (3d Cir. 1988).
4 John Deklewa & Sons, 282 NLRB 1375 (1987), enfd. sub nom.
Iron Workers Local 3 v. NLRB, supra; accord: NLRB v. W. L. Miller
Co., 871 F.2d 745 (8th Cir. 1989) (affirming Deklewa rule).
The Respondent performed repair work on a structure
under the Crescent Railroad Bridge on the Mississippi
River from early December 1996 until March 26, 1997.
The structure under repair, called a “Sheer,” protected a
pier under the bridge from collisions by vessels or debris
in the river. Beginning in December and repeatedly dur-
ing the course of the repair work, Carpenters Union rep-
resentatives requested the Respondent to honor its 8(f)
collective-bargaining agreement with the Union regard-
ing nonpower equipment-related work on this project.
The Respondent, however, did not honor the collective-
bargaining agreement. To the contrary, on February 5,
1997, the Respondent contacted a representative of a
different union, International Union of Operating Engi-
neers Local 150, and signed an addendum to its existing
Dredge Maintenance Agreement with the Operating En-
gineers making that agreement applicable to all work
involved in the Crescent Bridge project, not limited to
dredging work. Thereafter, the Respondent regarded all
its employees on the Crescent Bridge project as being
covered by its agreement with the Operating Engineers,
and it continued to refuse to honor its collective-
bargaining agreement with the Carpenters Union.
We agree with the judge, for the reasons he stated,
that, by virtue of a memorandum agreement that the Re-
spondent signed with the Carpenters in 1988, it was
bound by the 1996–2001 heavy and highway construc-
tion contract between the Associated General Contractors
of Illinois and the United Brotherhood of Carpenters and
Joiners of America and that this agreement was applica-
ble to the Crescent Bridge repair project. The judge
found that the contract covered work not involving the
operation of power equipment and tasks incidental
thereto. Thus, the judge found that work covered by the
contract clearly included, for example, such work as
placing fence timbers into position and connecting them
to each other. He further found that the contract’s work
jurisdiction provisions supported the Carpenters Union’s
contention that the contract also covered work connected
with fabrication of cells and erection of the steel structure
on the downstream side of the Sheer.6 We agree that the
Respondent violated Section 8(a)(5) and (1) of the Act
by failing and refusing to honor this collective-
5 Cedar Valley Corp., 302 NLRB 823 (1991), enfd. 977 F.2d 1211
(8th Cir. 1992), cert. denied 508 U.S. 907 (1993).
6 The judge also provided that, if it was determined during the com-
pliance phase of this proceeding that a particular task or tasks were not
encompassed by the contract, the remedy could be tailored to accom-
modate that determination.
333 NLRB No. 115
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 906
bargaining agreement with respect to the Crescent Bridge
project.
The subsequent decision of the U. S. Court of Appeals
for the Eighth Circuit in Carpenters Fringe Benefit
Funds of Illinois v. McKenzie Engineering, supra, to
which the Respondent has directed our attention, does
not compel a contrary result. In that case, the Carpenters
Fringe Benefit Funds of Illinois (the Funds) sued the
Respondent here under ERISA7 to recover unpaid pen-
sion fund contributions relating to the Respondent’s
work on the Crescent Bridge repair project as well as an
additional project (the Keokuk Dam repair project), and
Carpenters Union Locals 166 and 410 sued to recover
unpaid union dues and other benefit fund contributions
under Section 301 of the Labor Management Relations
Act8 relating to the same projects. The district court
granted judgment for the plaintiffs. On appeal, the Eighth
Circuit reversed. It found, as did the judge here, that the
Respondent had signed a memorandum of agreement
under which it agreed to be bound to certain multiem-
ployer collective-bargaining agreements with the Carpen-
ters Union and that such an agreement covered the geo-
graphic area that included the Crescent Bridge project.9
The Eighth Circuit, however, further found that “the
Funds failed to prove that the applicable collective-
bargaining agreements required [the Respondent] to pay
the amounts claimed in the audit and the Carpenters [lo-
cals] failed to exhaust remedies under those agree-
ments.”10
The Eighth Circuit’s dismissal of the Funds’ ERISA
claims was premised principally on a failure of proof.
Those claims were based on an audit of the Respondent’s
payroll records. The Respondent’s obligation to pay
benefit fund contributions accrued according to the num-
ber of hours worked by employees covered by the con-
tract. The auditor based his calculations of contributions
that the Respondent owed on the assumption that the
Carpenters Union’s contract covered all hours worked by
all the Respondent’s employees except hours for which
the Respondent had made contributions to another un-
ion’s pension fund. However, the audit report stated that
the auditor could not verify the work performed by any
of the individuals whose hours of work were used as the
basis for computing the Respondent’s fund contribution
liabilities. As the Respondent had contracts with several
unions, the Eighth Circuit found that there was “no basis

7 Employee Retirement Income Security Act of 1974, 29
U.S.C.A.§1001 et. seq.
8 29 U.S.C. § 185.
9 The Respondent did not dispute the plaintiffs’ contention that it
was covered by the contract.
10 217 F.3d at 580.
to assume that every employee on every McKenzie pro-
ject”11 was covered by the Carpenters Union contract.
The court therefore found that the assumption on which
the auditor calculated the Respondent’s liability for fund
contributions was unwarranted. The court specifically
found erroneous the audit report’s inclusion of certain
hours of work, because, for example, the hours of work
were performed in the wrong year or by employees not
shown to have worked on the projects in question.
Additionally, in dismissing the Funds’ claims, the
Eighth Circuit also concluded that the “record [would]
not support a finding that any Crescent Bridge work was
covered by a collective-bargaining agreement with the
Carpenters, as opposed to the Operating Engineers.”12 Its
basis for this conclusion was that the Respondent “had an
ongoing relationship with the Operating Engineers in its
home territory of Fort Madison and Keokuk [and] was
certainly free to expand that relationship to include [the
Crescent Bridge] project in the Quad Cities territory.”13
Thus, in the court’s view, the fact that the Respondent
had sought out a collective-bargaining agreement with
the Operating Engineers after the Carpenters had claimed
the Crescent Bridge work was “irrelevant.”14 The Re-
spondent, according to the court, “was contractually free
to assign the Crescent Bridge work to either union, or
part of the work to each union.”15 Further, the court
found that any union aggrieved by the Respondent’s as-
signment of the Crescent Bridge work “could invoke the
interunion jurisdictional dispute procedure,” and, be-
cause Carpenters Local 166 had not done so, “the Funds
[were] not entitled to contributions for work assigned to
members of a competing union.”16
Finally, the Eighth Circuit also rejected the local un-
ions’ claims for fund contributions and dues. It found
that their claims for fund contributions were based on the
same audit report calculations of employee work hours
that the court had already found faulty. Additionally, the
court sustained the Respondent’s defense that the local
unions’ Section 301 claims were barred by the unions’
failure to exhaust the collective-bargaining agreement’s
arbitration remedy.
We find that the court’s reasons for dismissing the
lawsuit are not applicable to the present proceeding. The
grounds on which the court dismissed the Funds’ and the
local unions’ claims under ERISA and Section 301 were
based in large measure on the record in that case and the
11 Id. at 583.
12 Id. at 584.
13 Id. at 584–585.
14 Id. at 584.
15 Id. at 585.
16 Id.
MCKENZIE ENGINEERING CO. 907
particular elements of proof necessary to establish viola-
tions under those statutes and, as such, have no applica-
tion in the instant unfair labor practice proceeding. Thus,
while the auditor’s report calculating benefit fund liabili-
ties was central to the lawsuit, it has no relevance to and
was not introduced in the present unfair labor practice
proceeding, which concerns the General Counsel’s com-
plaint allegation that the Respondent failed and refused
to honor its collective-bargaining agreement with the
Carpenters Union. Consequently, the shortcomings that
the court found with the Funds’ auditor’s report, as well
as other failures of proof in that case, are irrelevant to the
present proceeding.
Additionally, while the court upheld the Respondent’s
defense in that case that the local unions had failed to
exhaust the contractual arbitration procedure, the Re-
spondent raised no such defense in the present proceed-
ing. As deferral to arbitration procedures is an affirma-
tive defense, it is waived if not raised.17 Accordingly, the
defense of deferral to arbitration is not before us.
Finally, whatever the Respondent’s obligations under
ERISA may be, we find that, under our statute, the Re-
spondent had no right to refuse to honor its collective-
bargaining agreement with the Carpenters Union merely
because it entered into an overlapping collective-
bargaining agreement with the Operating Engineers. The
Seventh Circuit rejected such a contention in NLRB v.
Howard Immel, Inc., 102 F.3d 948 (1996). There it
stated:

Immel reasons that . . . [it] was entitled to repudiate its
agreement with one of the 9(a) representatives because
it had overlapping 9(a) agreements with two unions.
However, no legal authority supports the proposition
that an employer’s actions in entering into two conflict-
ing bargaining agreements alter the rights of a party to
a 9(a) agreement. Indeed, the only authority that Immel
cites recognizes that by entering into conflicting bar-
gaining agreements an employer may have to pay two
unions for work that only one performed. Hutter
Constr. Co. v. International Union of Operating
Eng’rs, 862 F.2d 641, 645 fn. 16 (7th Cir.1988). This
reasoning suggests that an employer cannot escape its
obligations under one collective bargaining agreement
by claiming that those obligations conflict with its obli-
gations under another agreement.18

Although the Carpenters Union’s contract that the Re-
spondent refused to honor was an 8(f) agreement rather

e project.

17 See Hospitality Care Center, 314 NLRB 893, 894 (1994); Food
Fair Stores v. NLRB, 491 F.2d 388, 395 fn. 9 (3d Cir. 1974).
18 102 F.2d at 953.
than a 9(a) agreement as in Howard Immel, the outcome
is no different. An 8(f) agreement, like a 9(a) agreement,
is binding and enforceable during its term.19 Further, as
the judge noted, when an employer executes an 8(f) con-
tract that binds it to renewals and to successive contracts,
the employer is statutorily obligated to honor those re-
newals and successive contracts, unless and until it prop-
erly exercises its right to terminate at the end of a con-
tract term.20 As the judge noted, the Respondent failed to
exercise such a right here. Accordingly, the fact that the
Respondent chose to enter into an overlapping contract
with the Operating Engineers does not relieve it of its
obligation under Section 8(a)(5) of the Act to honor its
contract with the Carpenters Union.21
Also, in our view, the Respondent’s failure to honor its
contract with the Carpenters Union cannot be excused by
the fact that the Carpenters Union did not invoke a con-
tractual interunion jurisdictional dispute resolution pro-
cedure.22 As a threshold matter, there was nothing that
could even remotely be called a jurisdictional dispute for
the majority of the 4-month duration of the Crescent
Bridge project. Only one contract—the Carpenters Union
contract—covered the work in question from early De-
cember 1996, when the project began and the Carpenters
Union made its initial demand that the Respondent honor
the contract, to February 5, 1997, when the Respondent
executed an addendum to its agreement with the Operat-
ing Engineers so that it would apply to the work in ques-
tion. Thus, even assuming arguendo that the existence of
a jurisdictional dispute would have altered the Respon-
dent’s obligation to abide by its contract with the
Carpenters Union, there is no basis on which the
Respondent can claim that a jurisdictional dispute existed
at the time that the Carpenters Union first requested that
the Respondent observe its contract with the Carpenters
Union and for more than half the duration of th
Further, there was, in fact, no jurisdictional dispute—
at least in the sense that is contemplated under the Act—
because, even after February 5, there were not two com-
peting claims for the same work. That is, neither the Car-
penters nor the Operating Engineers demanded that the
19 John Deklewa & Sons, supra; NLRB v. W. L. Miller Co., supra.
20 See Cedar Valley Corp., supra.
21 Cf. W. R. Grace & Co. v. Rubber Workers Local 759, 461 U.S.
757 (1983) (employer’s entering into conciliation agreement with
EEOC did not relieve it from conflicting obligations imposed by its
collective-bargaining agreement with union; a contrary result “would
undermine the federal labor law policy that parties to a collective-
bargaining agreement must have reasonable assurance that their con-
tract will be honored.” Id. at 771 (citation omitted)).
22 In its references to such a procedure, the court apparently had in
mind a voluntary procedure for settlement of jurisdictional disputes that
exists in the construction industry. The Respondent introduced evi-
dence regarding such a plan in the present case.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 908
Respondent assign the work to different groups of em-
ployees. Rather, after February 5, the issue arose regard-
ing which collective-bargaining agreement—the Carpen-
ters Union contract or the Operating Engineers
contract—should apply to the employees performing the
work in question. As there were not competing claims
regarding assignment of work to different employees, no
jurisdictional dispute existed.23 Moreover, the Respon-
dent’s conflicting contractual obligations arose only be-
cause it took the initiative to create such a conflict by
seeking out and signing the addendum to its contract
with the Operating Engineers. We agree with the judge’s
statement that the Respondent’s signing of the addendum
with the Operating Engineers was “no more than a very
thinly-disguised attempt by the Respondent to avoid its
collective-bargaining contract with the [Carpenters] Un-
ion.” (Below at 867.)
Finally, the Carpenters’ refraining from invoking a
contractual interunion jurisdictional dispute procedure
would not preclude the General Counsel from establish-
ing that the Respondent committed an unfair labor prac-
tice by refusing to honor its collective-bargaining agree-
ment with the Carpenters Union. Under the Act, an em-
ployer that fails to honor its collective-bargaining agree-
ment during the agreement’s term violates Section
8(a)(5).24 There is no prerequisite that, if a contractual
interunion jurisdictional dispute procedure exists, such a
procedure must be invoked.25
Accordingly, we adopt the judge’s finding that the Re-
spondent’s failure and refusal to honor its collective-
bargaining agreement with the Carpenters Union with
respect to the Crescent Bridge project violated Section
8(a)(5) and (1) of the Act.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, McKenzie Engineering Co.,
Fort Madison, Iowa, its officers, agents, successors, and
assigns, shall take the action set forth in the Order.

Judith T. Poltz, for the General Counsel.
Davis & Campbell L.L.C. (Keith J. Braskich), of Peoria, Illi-
nois, for the Respondent.
Marc M. Pekay, of Chicago, Illinois, for the Charging Party.

23 See, e.g., Safeway Stores, 134 NLRB 1320 (1961) (no jurisdic-
tional dispute within the meaning of Secs. 8(b)(4)(D) and 10(k) of the
Act where there are not two competing claims for work in question).
24 See, e.g., Diversified Bank Installations, 324 NLRB 457, 459
(1997), enfd. mem. 175 F.3d 1025 (8th Cir. 1999).
25 See Williams Enterprises, 212 NLRB 880, 887 (1974), enfd. 519
F.2d 1401 (4th Cir. 1975), overruled in part on other grounds, Brannan
Sand & Gravel Co., 289 NLRB 977, 980 fn. 12 (1988).
DECISION
STATEMENT OF THE CASE
WILLIAM J. PANNIER III, Administrative Law Judge. I
heard this case in Davenport, Iowa, on December 4 and 5,
1997. On April 29, 1997, the Regional Director for Region 33
of the National Labor Relations Board (the Board) issued a
complaint and notice of hearing, based on an unfair labor prac-
tice charge filed on February 11, 1997, alleging violations of
Section 8(a)(1) and (5) of the National Labor Relations Act, as
amended, 29 U.S.C. Sec 151 et seq. (the Act). All parties have
been afforded full opportunity to appear, to introduce evidence,
to examine and cross-examine witnesses, and to file briefs.
Based on the entire record,1 on the briefs which were filed and
on my observation of the demeanor of the witnesses, I make the
following findings of fact and conclusions of law.
I. THE ALLEGED UNFAIR LABOR PRACTICES
Presented for resolution in the instant case is an alleged re-
pudiation of a collective-bargaining contract, and the obliga-
tions imposed by it, arising under Section 8(f) of the Act. In-
volved is a project involving a structure in the Mississippi
River beneath the Crescent Railroad Bridge, a single-track,
crescent-shaped span extending between West Davenport, in
Scott County, Iowa, and Rock Island, in Rock Island County,
Illinois. That bridge was completed on January 8, 1990, and
consists of seven through-trusses and a swing span, with a
clearance of 26 feet MLW.2 So that river traffic can pass the
bridge, the swing span pivots horizontally, as opposed to the
relatively vertical-type movement of a drawbridge. The swing
span rests upon a masonry pivot pier, the base of which is on
the river’s bottom.
Obviously, an unprotected pivot pier is vulnerable to dam-
age, should a vessel collide with it or should it be struck by
river ice or other debris. To prevent such occurrences, a man
whose last name was Sheer designed an island-like structure
which has come to be referred to as a Sheer. It is essentially a
rectangular structure, with the pivot pier centered in it, running
parallel with the channel. One nose of the Sheer is upstream
from the pivot pier; the other one is downstream from it. In
consequence, a vessel which ventures too close, or river ice,
and debris, will strike the Sheer, leaving the pivot pier undam-
aged.
That, in fact, happens not infrequently. As a result, damaged
portions of the Sheer have to be periodically, apparently annu-
ally, repaired. It was repair work performed from early De-
cember 1996 until March 26, 1997, which has led to the charge
and complaint in the instant proceeding.
Sheer repair is normally undertaken during the winter
months when the river level is lower and there is minimal, if
1 The General Counsel’s unopposed motion to correct transcript is
hereby granted. It should not pass unnoticed that those listed in that
motion are not the only inaccuracies in the transcript. However, those
inaccuracies are not so obscure that a reviewer would be unable to
figure out what should have been reported. Accordingly, I shall not
consume space correcting them, as well.
2 See Costello, Climbing the Mississippi River Bridge by Bridge,
Volume One, Costello (1995), pp. 112–113.
MCKENZIE ENGINEERING CO. 909
any, river traffic. For some winters preceding that of 1996–
1997, that repair work had been performed by J.F. Brennan
Marine Construction Company (Brennan). The contract for the
1996–1997 repair project, however, was let to McKenzie Engi-
neering Co. (the Respondent) a Delaware corporation with an
office and place of business in Fort Madison, Iowa. Respon-
dent admits that, at all material times, it has been engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act. That ultimate admission is based upon the underlying
admitted subsidiary allegations that, at all material times, Re-
spondent has been engaged as a contractor in the business of
marine construction and, in the course of those business opera-
tions during calendar year 1996, Respondent derived gross
revenues in excess of $500,000, performed services valued in
excess of $50,000 in States other than Iowa, and purchased
goods valued in excess of $50,000 which it received at Fort
Madison directly from points outside of the State of Iowa.
At specific issue in the instant case is Respondent’s alleged
contractual obligation to have continued recognizing Northwest
Illinois and Eastern Iowa District Council of Carpenters, affili-
ated with the International Brotherhood of Carpenters and Join-
ers of America, AFL–CIO (the Union),3 as the exclusive collec-
tive-bargaining agent of some employees who should have
performed that 1996–1997 repair work on the Sheer, but for
Respondent’s asserted unlawful refusal to continue recognizing
and bargaining with the Union. Given the fact that an under-
standing of that allegation is bottomed upon the type of work
performed by employees represented by the Union, it is neces-
sary to have some understanding of the Sheer and of the types
of work performed to repair it.
Prior to Respondent’s work on the Sheer, there was a dolphin
which had been erected at its upstream nose. It consisted of
creosoted timber pilings which had been bolted to each other
and which rested on the stone surface of the river’s bottom.
Nailed to the outside of those pilings, facing the water, were
one-fourth to one-half inches steel plates. The otherwise hol-
low interior of that dolphin had been filed with large rocks.
At the Sheer’s downstream nose was a different type of dol-
phin: a steel home plate-shaped structure, resting on the river’s
bottom with steel sheeting nailed to its perimeter. The inside
was reinforced by I-beams and H-beams tied together with wire
rope and, also, with rock and some concrete.
Along both sides of the Sheer, extending over approximately
200-linear feet from dolphin to dolphin, were timber-pier pro-
tection fences. Each consists of a row of timbers which have
been bolted together. Between the two rows of fencing wooden
cross-bracing had been constructed, to provide support.

3 During March 1997, the Union’s name was changed to Heartland
Regional Council of Carpenters, affiliated with the International Broth-
erhood of Carpenters and Joiners of America, AFL–CIO. No motion
was made to amend this case’s caption. However, the remedial order
should issue on the Heartland Regional Council’s behalf, to reflect the
name change. In that regard, it should be noted that there is neither
contention nor evidence that the change in name had been anything
other than that—that is, no evidence nor contention that the name-
change had been but one aspect of an overall change which operated to
change the Union, as an entity. Cf., e.g., CPS Chemical Co., 324
NLRB 1018 (1997).
It is undisputed that when Brennan had performed repair
work on the Sheer, the crews had consisted of employees repre-
sented by the Union and—to perform mechanical operations,
such as boat- and crane-operation—of employees represented
by Local 150, International Union of Operating Engineers (Op-
erating Engineers).
Initially, Respondent successfully bid for reconstruction of
the downstream dolphin, damaged apparently severely when a
barge collided with it, and for replacement of damaged fence
timbers. However, Burlington Northern Santa Fe Railroad
officials liked the cell design submitted, to replace the dolphin,
in that bid. So, following submission of an additional bid, in-
cluded in the contract eventually executed was construction of
cells to replace both the upstream and downstream dolphins.
Also added was provision for steel reinforcing of the fences
near the downstream cell.
Respondent began work on the Sheer during the workweek
of December 9 through 13, 1996. Materials and equipment
were transported by barge to the site. When work began, it was
on the downstream nose. Cranes with clamshells—buckets
which open and close—were used to clear the dolphin which
was cut up with torches, transported by barge elsewhere and
junked. Its rock- and concrete-fill was moved nearby, so that it
could be reused as reinforcing fill for the cell, once fabricated.
Riverbed obstacles were located and removed, again by means
of cranes with clamshells. The template—a 5-ton, 28-foot-
diameter steel circle—was floated in by barge and, after being
hooked up, moved into place by crane to the location where the
cell would be constructed.
Around that template was constructed the circular PS 20-
inch pile cell. To accomplish that, 16-inch wide by 30 feet long
flat pieces of metal piling, with tongue and groove anchorages
on the ends, were lowered into position by crane and connected
with each other, around the template, by means of a vibratory
pile hammer. Once that had been completed, the template was
removed by crane. The rock- and concrete-fill was returned,
also by crane, from where it had been stored temporarily, fol-
lowing its removal from the dolphin. In the process, two rein-
forcing rings, with concrete crosses inside for added reinforce-
ment, were positioned in the cell, one at waterline and the other
at the cell’s top. Bolted or spiked to the outer portion of the
cell exposed to river traffic were rub timbers: rows of creosoted
wooden timbers connected by cross-sections of wood and in-
tended as an antisparking device and to protect the cell’s metal
piles from damage by anything which might otherwise strike
the cell, itself.
The final step in completing the downriver cell was to con-
nect it to the Sheer fences which, as stated above, extend ap-
proximately 200 linear feet along the outer sides of the Sheer,
between the noses and their dolphins/cells. Those fences are
made of creosoted timbers and, prior to Respondent’s work on
the Sheer, the area between those perimeter fences had been
filled with timber cross-bracing, for reinforcement.
Respondent replaced that cross-bracing nearest the down-
stream cell with a steel structure. It was not connected to any
of the internal cross-bracing, though some of that cross-bracing
was cut away by Respondent when erecting the steel structure.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 910
Still, rub timbers were bolted to that steel structure, at points
where the Sheer’s fences are adjacent to it.
The work performed to construct the upriver cell was essen-
tially similar to that described above in construction of the
downstream one. Thus, the timber crib structure there located
was disassembled by removing the steel plating on the outside
of the timbers, then using a crane-attached clamshell to remove
those timbers and finally, removing the rock and stone which
had filled the timber crib structure’s interior. After ensuring
that the river bottom was clear of obstacles, the template was
placed by crane, the tongue- and groove-steel plate pilings were
put in place, driven into the river’s bottom and connected with
each other. Once the template then was removed, the cell’s
interior was filled with the rock and stone removed when the
crib structure had been disassembled, as well as with some
newly purchased rock. In addition, concrete was poured for
two reinforcing rings, with crosses inside, to provide added
interior reinforcing, as was done downstream. Rub timbers
were bolted or spiked to the outer portion of the cell exposed to
the river.
No steel structure, like the above-described one fabricated
downriver, was fabricated upstream. Instead, the Sheer fences
were attached to the cell, so that their timbers interlocked with
the cell’s rub timbers, in the process replacing damaged and
destroyed fence timbers. Respondent also replaced damaged
and missing fence timbers at other points along the Sheer’s two
perimeter fences between the cells. For example, it replaced
seven or eight fence timbers on one side of the Sheer near the
bridge’s pivot.
Neither the General Counsel nor the Union claim that the lat-
ter’s collective-bargaining contract with Respondent encom-
passed all of the work performed on the Sheer between the first
part of December 1996 and March 26, 1997. Thus, they ac-
knowledge that the Union had not been entitled to represent
employees who ordinarily operate power-driven equipment,
such as boats and cranes, and who perform helper and mainte-
nance work incidental to operation of such equipment. How-
ever, the Union, supported by the General Counsel, asserts that
it should have been recognized as the collective-bargaining
agent of employees performing nonpower equipment-related
work performed by Respondent on the Crescent Bridge Sheer.
And the origin of that assertion is a memorandum agreement
admittedly signed by Robert J. McKenzie, Respondent’s owner
and president. Respondent admits that at all material times he
has been a statutory supervisor and its agent.
McKenzie testified that at the time of commencing work on
the Crescent Bridge Sheer, he had not been aware that he was
bound to any collective-bargaining contract which would cover
that project. However, he conceded that his signature does
appear on a single-page memorandum agreement which, in
part, states:

THIS AGREEMENT is entered into between NORTHWEST
ILLINOIS DISTRICT COUNCIL OF CARPENTERS:
Boone, Bureau, Carroll, DeKalb, Henderson, Henry, Jo Davi-
ess, La Salle, Lee Marshall, Mercer, Ogle, Putnam, Rock Is-
land, Stark, Stephenson, Whiteside, Winnebago counties of Il-
linois; and Allamakee, Appanoose, Benton, Cedar, Clayton,
Clinton, Davis, Delaware, Dubuque, Iowa, Jackson, Jefferson,
Johnson, Jones, Keokuk, Linn, Louisa north of the Iowa
River, Mahaska, Monroe, Muscatine, Scott, Van Buren, Wa-
pello, Washington, and Wayne counties of Iowa, hereinafter
sometimes referred to as the “UNION” and: (Print Firm
Name) McKENZIE ENGINEERING CO. hereinafter re-
ferred to as the “EMPLOYER”.

Robert J. McKenzie also acknowledged that he had twice
printed Respondent’s name on that document, as well as its
address and telephone number.
There are certain additional aspects about that memorandum
agreement which are significant, in light of contentions ad-
vanced by one or another party. First, numbered paragraph 2 of
that agreement provides that, “The EMPLOYER recognizes the
UNION as the sole and exclusive bargaining agent for and on
behalf of the Employees of the EMPLOYER coming within the
territorial and occupational jurisdiction of the UNION.”
Second, as stated above, Robert J. McKenzie acknowledged
having executed the contract, under the section for
“EMPLOYER:” But, after that quoted word appears the fol-
lowing printed statement: “(If a corporation, must be signed by
two officers.)” No other signature appears for Respondent and
that omission is relied upon by McKenzie as the basis for his
assertion, “that’s not a contract.”
Third, the date of “27 day of June, 1988” has been handwrit-
ten on the memorandum agreement executed by McKenzie. He
testified, without contradiction, that he had not been the one
who had handwritten that date on the agreement and moreover,
that that date had not been written there at the time that he had
executed it. Yet, he also testified that he did not recall how he
had received that memorandum agreement, for execution, nor
did he recall how he had returned it, after having executed it.
In addition, it is uncontroverted, no signature for the Union had
been on the contract at the time that McKenzie had executed it.
On the memorandum agreement identified by McKenzie during
the hearing, there appears the signature stamp of “E. E.
Jacobsen.” However, Jacobsen was never called as a witness,
though there was neither representation nor evidence that he
was unavailable to testify.
Fourth, as to what other contracts become binding on an
“EMPLOYER” who executes that memorandum agreement, its
numbered paragraph 4 states:

The EMPLOYER and the UNION do hereby incorporate by
reference and agree to be bound through their respective expi-
ration dates by each of the Area Agreements in effect on the
date of execution of this Agreement, negotiated between sub-
ordinate bodies of the United Brotherhood of Carpenters and
Joiners of America and certain Employer Associations in
counties of Illinois and Iowa which, of the effective date of
this Agreement, make up the geographic jurisdiction of the
Northwest Illinois District Council of Carpenters.

In addition, numbered paragraph 5 pertains to subsequent
collective-bargaining contracts which also are incorporated by
reference:

FURTHER, the EMPLOYER and the UNION hereby agree
to be bound by Area Agreements negotiated between the
MCKENZIE ENGINEERING CO. 911
Northwest Illinois District Council of Carpenters and various
Employer Associations for the period beginning with the ex-
piration dates of the several Agreements referred to above and
ending on the expiration dates of any successor Agreements
thereto from time to time thereafter unless the EMPLOYER
gives written notice to the UNION of a desire to amend or
terminate any of such Agreements at least three (3) calendar
months prior to the expiration of such Agreement or Agree-
ments.

In connection with the fourth above-enumerated aspect, sev-
eral collective-bargaining contracts were produced. One is a
“MILLWRIGHT AGREEMENT” between ILLOWA Mill-
wright Contractors Association, Inc. and Millwright-Technical
Engineers Local Union 2158 of the United Brotherhood of
Carpenters and Joiners of America, for a stated contractual
period of June 1, 1978 through May 31, 1996, revised in June
of 1993. It covers employees employed doing millwright work,
as described in article I, section 3 of that contract, in several
Illinois counties, including Rock Island south of Interstate 80 (a
roadway which is north of the Crescent Railroad Bridge) and
the eastern portion of La Salle County (in which the city of
Marseilles is located), and in several Iowa counties, including
Scott, Lee, and Jackson (in which the city of Bellevue is lo-
cated). Also in effect during 1988 was a collective-bargaining
contract between the Associated General Contractors of Illinois
and the United Brotherhood of Carpenters and Joiners of Amer-
ica, covering highway/heavy construction for a stated period of
July 1, 1985, through July 31, 1988. That contract covers work
performed in Illinois counties, including Rock Island and La-
Salle counties.
The significance of Marseilles and LaSalle County is that for
June of 1988 Respondent made benefit payments, recorded on
forms of Millwright Technical Engineers Local Union 2158, for
two employees stated on that form to have been working for
Respondent in Marseilles, Illinois. Like payments were made
on behalf of those two employees working in Marseilles for the
month of July 1988. For that same month, Respondent made
payments to Carpenters Fringe Benefit Funds on behalf of two
employees shown to have been working in Bellevue, Jackson
County, Iowa. In addition, the form recording those payments,
prepared by Respondent, shows that dues were checked off. In
fact, McKenzie acknowledged that during 1988 Respondent
had worked on projects in Marseilles, Illinois, and in Bellevue,
Iowa.
Also produced were successive highway/heavy construction
contracts between the Associated General Contractors of Illi-
nois and the United Brotherhood of Carpenters and Joiners of
America, one for the stated term of August 1, 1988, through
July 31, 1991; another for the stated term of August 1, 1991,
through July 31, 1996; and, of particular significance to the
dispute at issue in the instant case, for the stated term August 1,
1996, though July 31, 2001. The latter is the contract which the
General Counsel and Union contend applied to Respondent’s
December 1996 to March 26, 1997 Crescent Bridge Sheer pro-
ject.
The “Work Covered” by article I, section A of that 1996–
2001 highway/heavy construction collective-bargaining con-
tract is:

all work involved in the construction of roads, streets, alleys,
highways, railroad work, airport runways, bridges, under-
passes, overpasses, sidewalks, curbs, gutters, fences, guard
rails, signs, landscaping, slope walls, retaining walls, and wa-
ter lines when done in conjunction with highway work; dams,
locks and dikes, boat slips, and ramps, and diving. Also in-
cluding pump stations for locks and flood control, under-
ground electrical and telephone systems and overland high
tension transmission towers. [Emphasis added.]

As to the occupational scope of that contract, article I, sec-
tion B is subdivided into three categories: Carpenters, Mill-
wrights, and Piledrivers. As to Carpenters, the contract in-
cludes “all employees employed . . . in work coming under all
classifications” which work at “the erection, fastening or dis-
mantling of all material of wood, plastic, metal, fiber, cork and
composition, and all other substitute materials.” That provision
continues by specifying particular types of work, including
“installation of all piling for structures of all types whether
wood, metal, or concrete;” “installation of sheet piling and
bracing of same;” “removal of all materials pertaining to Pile
Drivers work;” “fabrication, erection . . . of all concrete forms
whether of wood, metal, or composition materials for structures
of all sorts;” and, “handling and unloading of materials related
to” such work.
The contract recites also that piledrivers work encompassed
by it includes “the driving and removal of all steel piling”; “the
loading, unloading and distribution of all piling”; and, “signal-
ing of all cranes, gin poles, machinery and/or equipment per-
taining to piledriving work, pile threader, and all other work
hereafter awarded to Piledrivers.” The contract states specifi-
cally that its geographic scope embraces Rock Island County,
Illinois.
In the final analysis, there really is no dispute about the fact
that some of the work on the Crescent Bridge Sheer between
December 1996 and March 26, 1997, had been encompassed by
the occupational scope of work recited in that 1996–2001 col-
lective-bargaining contract: pile driving, replacement of tim-
bers, construction of forms for concrete pours, for example. On
the other hand, as discussed in section II, infra, neither does
there appear to be a dispute about the fact that such work also
could have been performed by employees represented by Oper-
ating Engineers.
In an effort to create a link between the memorandum
agreement which McKenzie executed during mid-1988 and the
1996–2001 highway/heavy construction contract, the General
Counsel produced, as evidence of observance by Respondent of
the above-listed highway/heavy construction contracts between
those dates, records of contributions made by Respondent to
benefits funds after 1988. However, those records are not so
conclusive as is portrayed. In the first place, none of them
show that any contributions recited had been paid for work
performed in any of the above-named Illinois and Iowa coun-
ties listed in the memorandum agreement which McKenzie had
executed in mid-1988.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 912
To the contrary, secondly, of those which do list a county in
which a project was performed, all of those projects were per-
formed in Lee County, Iowa, or one of the municipalities lo-
cated within that Iowa county. However, Lee County is not one
of the Iowa counties specified in the memorandum agreement
executed by McKenzie.
To be sure, thirdly, the 1978 through 1996 “MILLWRIGHT
AGREEMENT” does encompass Lee County, Iowa, as men-
tioned above. Yet, that collective-bargaining contract had been
in existence by the time that McKenzie had executed the Un-
ion’s memorandum agreement. But, that memorandum agree-
ment makes no mention of Lee County, Iowa. Given those
facts, and the absence of some other evidence—even an indica-
tion–that the memorandum agreement’s geographic jurisdiction
extended to counties other than those set forth in it, there is no
basis for even inferring, much less concluding firmly, that Re-
spondent had been bound by the entire geographic area of an
incorporated by reference collective-bargaining contract to the
extent that the latter’s geographic scope exceeds that of the
memorandum agreement actually executed. The best that can
be concluded, given the totality of the evidence presented, is
that incorporated contracts are applicable to Respondent only to
the extent that they cover Illinois and Iowa counties enumerated
in the memorandum agreement.
Fourth, obviously Respondent did make those contributions,
which raises the logical question of why it had done so, had it
not been obliged to make them under some collective-
bargaining contract. In fact, for Lee County specifically, as
well as certain other southerly Iowa counties, Respondent was
bound to a separate collective-bargaining contract: one exe-
cuted with the Union acting “for and on behalf of” Carpenters
Local 410, United Brotherhood of Carpenters and Joiners of
America, AFL–CIO (Local 410). That particular contract is
described in my decision in McKenzie Engineering Co., JD-
117-97 (July 7, 1997), pending resolution by the Board on ex-
ceptions.
That contract excludes specifically “work under Highway
and Heavy, Residential, and Millwright contracts,” and, as
pointed out on page 6 of that decision, “The parties stipulated
that Respondent has not delegated bargaining authority to any
other association or individual to sign the Heavy and Highway
Construction Agreement,” and moreover, “that Respondent has
not signed that agreement.” In consequence, with regard to Lee
County, Iowa, and the other counties listed in its contract with
Local 410, the General Counsel has conceded that Respondent
is not party to a highway and heavy collective-bargaining con-
tract, such as those to which it became party, through incorpo-
ration by reference, in more northerly Iowa counties and those
in Illinois which are listed in the memorandum agreement.
Fifth examination of many of the forms accompanying Re-
spondent’s benefit contributions reveals that a number of them
contain the legend “LOCAL #410 COMMERCIAL,” or words
to that effect. By its terms, the word “COMMERCIAL” would
seem to imply something other than highway and heavy con-
struction work. At least, there is no evidence equating one to
the other. On many other forms appear the words “LOCAL
#166 COMMERCIAL/JRNYMAN,” or words to similar effect.
Local 166 is located in Rock Island, Illinois, within one of the
counties listed in the memorandum agreement which McKenzie
executed during 1988. Yet, use of the word
“COMMERCIAL,” as part of that insertion, would appear to be
inconsistent with highway or heavy construction work. More
significantly, the few project locations which do appear on
those forms for Local 166-represented employees—those of
June through December, 1990; of April 1991; and, of October
through December, 1993—all list Lee County, or a location
within it, for the project on which the covered work had been
performed.4 None of the forms show a location within one of
the memorandum agreement’s listed counties. Accordingly, the
best that can be inferred is that such contributions had been
made on behalf of a traveler: an employee-member of Local
166 working in Lee County. It simply cannot be concluded that
any of those contributions had been made pursuant to the
memorandum agreement and its incorporated collective-
bargaining contracts, as opposed to the separate collective-
bargaining contract to which Respondent was a party with Lo-
cal 410.
On the other hand, neither has there been a particularized
showing that, between fall of 1988 and December 1996, Re-
spondent had worked on any project located within any of the
Illinois and Iowa counties listed in the memorandum agree-
ment. As a result, lack of evidence regarding compliance with
contracts incorporated by that memorandum agreement could
merely reflect a lack of opportunity to have done so during that
somewhat more than 6-year period. In fact, McKenzie testified
that most of Respondent’s projects are in the Lee County area.
Beyond that, there is no evidence that Respondent ever
availed itself of the opportunity afforded by the memorandum
agreement’s above-quoted fifth numbered paragraph: no evi-
dence that prior to the workweek of December 9 through 13,
1996, it ever had given “written notice to the UNION of a de-
sire to amend or terminate any of such Agreements at least
three (3) calendar months prior to the expiration of such
Agreement or Agreements.”
Turning to what occurred at the Crescent Railroad Bridge
once Respondent commenced working on the Sheer there,
Heartland Regional Council Business Agent Paul Delcourt
testified that, on December 12, 1996, he had been asked by a
union member who it was that was working at the Crescent
Bridge. Delcourt further testified that he had contacted a La-
borers’ union representative who had said that he thought that it
was Respondent who was setting up to perform that work.
Delcourt decided to go to the site. But, before doing so, he
affirmed in the instant proceeding his testimony in a deposition,
taken in connection with a proceeding in Federal District Court,
that he had checked to ascertain if Respondent was party to a
collective-bargaining contract with the Union. According to
Delcourt, it was then that he learned about the memorandum
agreement which McKenzie had executed during 1988.

4 No solace is provided for the General Counsel and Union by the
form for May 1990. True, it lists Richard Parker as “H & H
#2/JRNYMAN.” But, it also states that the project involved had been
located in the City of Keokuk, in Lee County, Iowa. Thus, it had not
been a project covered by one of the counties enumerated in the memo-
randum agreement executed by McKenzie.
MCKENZIE ENGINEERING CO. 913
Delcourt went to the Crescent Bridge Sheer project, accom-
panied by a Laborers’ business agent, on that same day, De-
cember 12, 1996. There, they spoke with McKenzie. It is es-
sentially undisputed that the Laborers’ agent, Butch Downs,
asked if Respondent had any laborers working on the project,
saying that Respondent had a contract with the Laborers Union.
McKenzie replied that Respondent would not be needing labor-
ers on that project.
Delcourt testified that he then said to McKenzie “that he had
a contract with Carpenters, that if he had any people on the job
site that he wanted to bring in the Local, he could do so,” or,
alternatively, “if he didn’t have anybody that I had comparable
people that I could get to him that would do the job.”
McKenzie denied flatly that Delcourt had said he wanted Re-
spondent to abide by the Union’s contract. However, other
than agreeing that he had said that he would go to the Union’s
hall the next day, McKenzie never did describe with any par-
ticularity what he and Delcourt had said during that conversa-
tion.
On the following day, Friday, December 13, 1996,
McKenzie did go to the Union’s hall where he met with Del-
court, as well as with Laborers’ agents Downs and John
Hendricks. Neither of the latter testified in this proceeding,
though there was neither representation nor evidence of their
unavailability to appear as witnesses. McKenzie testified that
he believed two other people and a secretary also had been
present. But, he did not identify any of them by name.
In any event, McKenzie did not contest Delcourt’s testi-
mony, to the extent pertinent to this proceeding, that,

I don’t recall any comment from McKenzie at that time. I ba-
sically talked to him again and talked to him about the Car-
penters, that he had a contract with us, that he needed to honor
the contract. If he had carpenters that were in the field work-
ing that were competent to do that, he could bring them into
the Local. That he had to pay the fringes on them and that if
he did not—or also that I had carpenters that I could supply
him that had done that type of work before.

According to Delcourt, McKenzie changed the subject by
initiating discussion of Respondent’s problems in the Lee
County, Iowa area with Local 410 and its business representa-
tive, James S. Decker—which had given rise to the above-
mentioned prior proceeding involving Respondent—but Del-
court said that “this was a different area” and, eventually,
McKenzie said, testified Delcourt, “that he was not going to
start the job in earnest until about the middle of January and
that he would get with us and let us know what he was going to
do.”
Appearing as a witness, McKenzie was asked, more than
once by Respondent’s counsel, why he had chosen to bring up
the subject of Local 410 and Decker, during discussion with the
Union’s agents. But, McKenzie, who appeared to understand
what he was being asked, answered nonresponsively. His final
nonresponsive answer was: “I wanted to get the thing resolved
in a normal, civilized way. That’s why at the very first meeting,
I said, who is your boss, Paul, and he said, well, Dan
O’Connell,” agreeing that he wanted to work out a contract
arrangement with the Union: “I wanted to make a friendly reso-
lution between us.”
As to Respondent’s Lee County dispute with Local 410, in
the prior case I concluded that Respondent had violated the Act
by withdrawing recognition of Local 410, by repudiating its
1994–1997 collective-bargaining contract with Local 410 and
refusing to continue honoring that contract’s terms, by unlaw-
fully discharging four employees, and by engaging in inde-
pendent actions which constituted interference with, restraint
and coercion of employees in the exercise of their statutorily
protected rights. For the most part, the events underlying those
conclusions had occurred during late 1995. However, the un-
fair labor practice hearing involving them had occurred from
December 3 through 6, 1996, the week before Respondent
commenced moving equipment and materials to the Crescent
Bridge Sheer and, also, the week before McKenzie’s above-
described conversations with Delcourt. Thus, by December 12
and 13, 1996, those Lee County events had to be quite fresh in
McKenzie’s memory.
In connection with Respondent’s by-then deteriorated rela-
tionship with Local 410, one more event occurred on December
13, 1996. By “TERMINATION LETTER” bearing that date,
sent only to Decker of Local 410, McKenzie stated, in pertinent
part, “BY THIS LETTER, MCKENZIE ENGINEERING CO.
TERMINATES ANY AND ALL AGREEMENTS WITH
CARPENTERS LOCAL 410 AND ITS AFFILIATES AS OF
THE ABOVE DATE.” So far as the evidence discloses, no
copy of that letter, nor any similar to it, was sent to the Union,
nor to Delcourt with whom, of course, McKenzie had met on
that very date.
Delcourt testified that he returned to the Crescent Bridge on
January 15, 1997, looking for McKenzie who had not contacted
the Union as promised on the preceding December 13. The
latter was not there. According to Delcourt, there were be-
tween three and five people working around one of the cells
and he observed sheet piling being hooked to the pile driver
handle work, which he regarded as belonging to the Union. He
left a message with one of the workers, asking that McKenzie
contact the Union.
When Delcourt heard nothing by January 23, 1997, he testi-
fied that he returned to the project. On that occasion, testified
Delcourt, McKenzie again was not present and he again left a
message, requesting that he be contacted by McKenzie. Al-
though Delcourt gave no testimony about having spoken to
McKenzie at the project during January 1997, McKenzie, ques-
tioned about the subject, acknowledged that he had spoken
there with Delcourt and had agreed to come to the Union’s hall
to talk further with Delcourt. Interestingly, asked whether Del-
court had demanded on that occasion that Respondent abide by
the Union’s contract, McKenzie answered merely, “I don’t
believe he said that, no.” In any event, McKenzie did come to
the Union’s hall on January 24, 1997.
Both men testified about what had been said on that occa-
sion. Delcourt testified that McKenzie had said that he wanted
to meet with Dan O’Connell, the Union’s business manager,
secretary-treasurer. According to Delcourt, McKenzie also said
that, when he did meet with O’Connell, he would have copies
of the brief, “pertaining to the Fort Madison [dispute] with Jim
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 914
Decker and the case that was going on down there and the sce-
nario of how things happened,” for O’Connell and Delcourt to
read.
McKenzie provided a more detailed account of this conver-
sation with Delcourt, though his overall account is not truly
inconsistent with that, described in the preceding paragraph, of
Delcourt. Having never before met the Union’s by-then current
officers, McKenzie testified that he had asked Delcourt, “Are
you the top man?” When Delcourt responded in the negative,
adding that “Dan O’Connell is,” testified McKenzie, “I said,
‘Well I want to talk to him.’” That would lead to a meeting
between McKenzie and other officials of the Union, including
O’Connell, on January 31, 1997.
With respect to the January 24 conversation about the situa-
tion at the Crescent Bridge Sheer and that going on in Lee
County with Local 410, McKenzie allowed at one point that
“you could interpret” what he had said as an expression of un-
willingness to deal with the Union until the Lee County dispute
with Local 410 was resolved. However, he testified that what
he actually had said to Delcourt was,

You know, I have really bitter feelings about what occurred
between myself and Jim Decker and the Carpenters I had
down at Keokuk, Iowa, and I have very bad feelings about a
lot of lying that went on in the hearing—

. . . .

—at Fort Madison. So I said, “I am coming up here and I am
just rip roaring mad,” and I said, “Before I sign on anybody
up here,” I said, “I want to try to ferret this thing out with you
Carpenters because,” I said, you know, “I earn most of my
living down in Keokuk, Burlington, Fort Madison, and I am
not up here very much so this isn’t the world’s biggest step for
me up here.

However, McKenzie then answered in the negative when asked
more specifically if he had said that he did not want to deal
with the Union in the Quad Cities until he had the Fort Madison
situation resolved: “No, I said specifically—I said, ‘Let’s try to
get this thing resolved,’” and, “I didn’t say that at all, no. I said
‘I want to deal with you. I want to get this thing resolved.’”
McKenzie testified that he had renewed that refrain during
his meeting with the Union, including O’Connell, on January
31, 1997. Thus, asked if he had told O’Connell that Respon-
dent did not want to deal with the Union until resolution of the
Lee County, Iowa dispute occurred, McKenzie responded:
“Nope. I said, ‘Let’s try to get Fort Madison resolved first,”
and, “Let’s try to get this one figured out[.]” He agreed that he
had shown O’Connell and Delcourt copies of the posthearing
brief which Respondent was intending to file in that case. Even
so, McKenzie did not deny that, during the January 31 meeting,
the Union’s officials had asserted that the Union had a contract
with Respondent and wanted to get union-represented employ-
ees on the Sheer project, and had promised to try to accommo-
date Respondent’s small-contractor status by working out more
competitive journeyman-to-apprentice ratios or by freezing
wages. Most significantly, McKenzie never disputed the testi-
mony that, during that meeting, he had never denied assertions
that Respondent was party to a collective-bargaining contract
with the Union.
It appears to have been during that January 31 meeting that
the subject of a project agreement arose, though Delcourt con-
ceded that such an agreement may have been presented to
McKenzie as early as December 13, 1996. McKenzie was
unable to recall when, or even who, had presented him with
such an agreement: “Specifically I don’t know which one of
the Carpenters gave it to me. There were various meetings with
Paul Delcourt or his assistant.” Nevertheless, he agreed that it
had been handed to him at the Union’s hall before February 5,
1997, and that when it had been given to him, he had been told
that the Union “could live with a project only contract.” He
testified that, as he had never seen that type of contract before,
he had said, “I’ll have to go home and read it and check it and
run it past my lawyer and everything.”
That project agreement was presented during the hearing in
this proceeding. Its printed portions, to the extent pertinent,
contain a provision for recognition of the Union “as the sole
and exclusive-bargaining agent for and on behalf of the em-
ployees of the Employer coming within the territorial and oc-
cupational jurisdiction of the Union,” for observance by the
employer of “the terms of the Trust Agreements of fringe bene-
fit funds to which contributions are required to be made under
the Agreements referred to in this Memorandum of Agree-
ment,” and for agreement by the employer and the Union “that
all existing provisions of the current bargaining agreement will
be in full effect for the duration of this Agreement, which will
expire upon completion of the project named below.” Of
course, to the extent pertinent here, it is that final provision
which distinguishes that project agreement from the memoran-
dum agreement which McKenzie had executed during 1988.
Respondent contends that proffer of such a project agreement is
strong evidence from which to infer that even the Union had
understood, as of December 1996 through January 1997, that
Respondent was not bound to any existing contractual relation-
ship for the Crescent Bridge Sheer project.
Another meeting took place on February 5, 1997. Present
for the Union were Heartland Regional Council Business Rep-
resentative Barry Pence and Heartland Regional Council Busi-
ness Agent Bruce Werning. It was during this meeting that, for
the first time, McKenzie was presented with a copy of the
memorandum agreement which he had signed during 1988.
The fact that the Union had not done so until so late in the dis-
pute about work on the Sheer, argues Respondent, is further
evidence that the Union had not been demanding prior to then
that Respondent honor that contract. Asked about his reaction
when it had been handed to him, McKenzie testified, “I didn’t
say a word,” but merely “sort of look[ed] and [took] it,
shove[d] it back.” However, he did not describe more fully
what had been said during that meeting. Consequently, he
never disputed the accounts of Pence and Werning as to what
had been said during it.
Werning testified that, during the February 5 meeting,
McKenzie had renewed his complaints “about the 410 situation
down there and the problems he’s having there and at that time
Barry Pence had showed him a copy of the contract that we
have in our area and we wanted to deal with the problem at
MCKENZIE ENGINEERING CO. 915
hand in our area.” According to Werning, McKenzie re-
sponded “that he thought that he could not work with us be-
cause of the impending [sic] case in the 410 area,” and for
“some reason, date of February 14th comes to mind, that that’s
when a decision was going to be coming about the impending
[sic] case in the 410 area.”5 Werning testified that he and
Pence had protested that they could not wait until February 14,
since Respondent’s project “was in progress” and, “We wanted
to get our guys out working for him as soon as possible.”
Similarly, Pence testified that when he had started the meet-
ing by asking if Respondent would hire union-represented em-
ployees for the Crescent Bridge Sheer project, McKenzie had
“said, no, he couldn’t because of a pending lawsuit or labor
relations charge in the Fort Madison area, that he didn’t want to
hire our carpenters. It would act like he was admitting that he
had a contract with us.” According to Pence, after being shown
a copy of the memorandum agreement which he had executed,
McKenzie had complained that “he was upset with Jim
[Decker] for lying . . . in this lawsuit that was going on down
in the Fort Madison area,” and “also said that Jim Decker owed
him an apology for all the things he was having to go through.”
Pence further testified that McKenzie mentioned February 14—
either as a date for judgment on, or for settlement of, that case;
Pence was not certain which McKenzie had said—and said that
he “was wanting to wait to see the outcome of [that] before he
would commit to using any of the carpenters from our Local.”
Pence testified that he replied that the Union would not wait
and that he would have to report to O’Connell what had oc-
curred during the meeting.
In fact, on the following day the Union initiated picketing at
the project. By then, however, Respondent had taken what it
appears to have believed would be a poison pill measure that
would preempt any further dispute with the Union.
After leaving that meeting with Pence and Werning, testified
McKenzie, “I had called Jack Schadt,” business representative
for Operating Engineers. At that time, Respondent was party to
a “DREDGE MAINTENANCE AGREEMENT” with Operat-
ing Engineers. Schadt testified, “I had approached [McKenzie]
to sign the dredging agreement addendum quite some time
before” February 5, 1997. According to Schadt, dredging in-
volves use of equipment for “removal of material from under
water.” He testified further that although the Dredge Mainte-
nance Agreement covered work other than operation of power-
driven equipment, the addendum “extends [that agreement] to
allow other marine work,” meaning work “other than dredging,
which you call other work, which was not dredging.” The ad-
dendum, testified Schadt, is “a one trade agreement,” meaning
that a signatory employer could assign all work on a project to
employees represented by Operating Engineers.
All parties appear to have agreed that when Brennan had
worked on the Crescent Railroad Bridge Sheer, its work had
been performed by a composite crew, with some employees,
equipment operators and those performing work incidental
thereto, represented by Operating Engineers, while other em-
ployees had been represented by the Union. Moreover, it also

5 February 14, 1997, was the date for filing posthearing briefs in that
case.
appears uncontroverted that, prior to beginning work on that
Sheer, Respondent had employed regularly at least one Operat-
ing Engineers-represented worker, Larry Dennison, who had
been moved from project to project. In addition, Respondent
had obtained referrals from Operating Engineers for other ma-
rine projects. Significantly, however, asked about other bridge-
related work performed by Respondent, Schadt conceded, “not
locally here or lately,” and, further, “I can’t remember when [it
had] done another bridge job, sir.”
Schadt also acknowledged having been aware as of February
5, 1997, that Respondent was having difficulties with the Car-
penters. Nonetheless, when requested to do so, he presented a
copy of the addendum to McKenzie who signed it on behalf of
Respondent. “I said, Jack, will you come over to my house. I
think I want to sign that addendum agreement because it’s
time,” testified McKenzie. He agreed that, “[i]f need be,” only
employees represented by Operating Engineers would thereaf-
ter be able to work on the Sheer, without having to employ
anyone represented by any other union.
In fact, that is how Respondent completed that project. It ob-
tained one or two employees from Operating Engineers’ hiring
hall. It secured Operating Engineers’ permits for the remaining
employees who had been relocated to the Quad Cities from the
Fort Madison, Iowa area. McKenzie notified Delcourt “that the
operators could do all that work” and, by letter to Decker of
Local 410 dated February 13, 1997, copies to Delcourt and to
Pence, stated, inter alia, “that the December 13 letter was to
terminate, at their expiration dates, any and all agreements
between [Respondent], Local 410 and its affiliates, including
the” Union.
II. DISCUSSION
The General Counsel and the Union contend that, in per-
forming work from December 1996 to March 26, 1997, on the
Crescent Railroad Bridge Sheer, Respondent had been obli-
gated to honor and abide by the terms of the highway/heavy
construction collective-bargaining contract between Associated
General Contractors of Illinois and United Brotherhood of Car-
penters and Joiners of America for the term of August 1, 1996
through July 31, 2001. Of course, it is indisputable that a party
to a collective-bargaining contract—be it employer or union—
”violated Section 8(a)(5) and (1) and Section 8(d) of the Act [or
Section 8(b)(3), in the case of a union] whenever it fails to
honor a collective-bargaining contract by applying its terms to
all employees covered by that contract.” (Citation omitted.)
Diversified Bank Installations, 324 NLRB 457 (1997). That
obligation exists no less to collective-bargaining contracts aris-
ing under Section 8(f) of the Act, id., as is the situation pre-
sented here.
Of course, to conclude that an employer or union violated the
Act by failing and refusing to honor a collective-bargaining
contract, the General Counsel must credibly establish that that
employer or union had been party to the contract at issue—that
there existed a contractual obligation which was not honored.
Here, not only is there no evidence that Respondent had never
executed that above-mentioned 1996–2001 highway/heavy
contract, but the General Counsel and Union concede that Re-
spondent had never executed it. Rather, they argue that Re-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 916
spondent had been absorbed as a party to that contract by virtue
of the terms of the memorandum agreement executed almost a
decade earlier by Robert J. McKenzie. Although conceding
that McKenzie had executed that document, however, Respon-
dent contends that his signature, alone, did not suffice to create
a contractual relationship with the Union.
That contention rests upon essentially four facts. First, by
the very terms of that memorandum agreement, signatures of
two officers are required whenever the employer is a corpora-
tion and only McKenzie had signed for Respondent. Second, at
the time that he signed it, there was no signature on it for the
Union and the individual whose seemingly stamped signature
now appears on the memorandum agreement was never called
to authenticate when his signature had been stamped on the
memorandum agreement executed by McKenzie. Third, while
the date “this 27 day of June, 1988,” now appears on it, it is
undisputed that no date had been inserted on the memorandum
when McKenzie had executed it. Finally, no copy of that
memorandum agreement, with the date and with Jacobsen’s
stamped signature, had ever been provided to Respondent.
In some situations some or all or those facts might operate to
prevent formation of a contract. But, the memorandum agree-
ment executed by McKenzie is not an ordinary contract. It is a
collective-bargaining contract. Such contracts are evaluated in
the light of an “established federal labor policy favoring collec-
tive bargaining,” NLRB v. Boston District Council of Carpen-
ters, 80 F.3d 662, 665 (1st Cir. 1996), with one consequence
being that collective-bargaining contracts are not “governed by
the same old common-law concepts[ ] which control . . . private
contracts.” (Citations omitted.) Transport Union v. Union Pa-
cific Railroad Co., 385 U.S. 157, 160–161 (1966).
Respondent has pointed to no authority holding that, under
the Act, stamped signatures are inherently insufficient for a
collective-bargaining contract to be valid. Indeed, such a hold-
ing would seemingly be at odds with the by-now relatively
common practice of utilizing facsimile signatures on docu-
ments, even on paychecks and, in fact, on the Board’s own
subpoenas.
Nor is authority cited for a proposition that, for a collective-
bargaining contract to be valid, a union must execute it before
or, even, at the same time as the employer does so. To the con-
trary, it has become fairly common practice for one party to
execute a newly negotiated collective-bargaining contract, after
which it is transmitted to the other party or parties for signature.
Similarly, the fact that McKenzie executed an undated memo-
randum agreement hardly, of itself, relieved Respondent of an
obligation to honor it. After all, he filled in other blanks on that
agreement and, so far as the record discloses, nothing prevented
him from filling in the date, as well.
The actual problem here, of course, is ascertaining whether
the date of June 27, 1988, truly reflected when the memoran-
dum agreement had been executed by the Union—more spe-
cifically, had been stamped with Jacobsen’s signature—or
whether that signature had been added much later, perhaps not
until the Crescent Railroad Bridge Sheer project dispute arose.
Certainly, Respondent correctly argues that there has been nei-
ther representation nor evidence that Jacobsen was not avail-
able as a witness, had the General Counsel or the Union wanted
to call him to testify about when and how his signature came to
be stamped on the memorandum agreement executed by
McKenzie.
Even so, there is one other set of facts which tend to estab-
lish that, in fact, McKenzie had executed the memorandum
agreement during June 1988, notwithstanding his professed
inability to recall exactly when he had done so. For that month,
and for the following month, of that year, Respondent paid
benefits contributions on behalf of employees for work per-
formed in the geographic area encompassed by the memoran-
dum agreement’s enumeration of Illinois and Iowa counties.
Obviously, it was within Respondent’s power and control to
show that those contributions had been made pursuant to some
other collective-bargaining contract, had that been the fact.
Respondent’s failure to make such a showing, in the face of a
memorandum agreement executed by its owner and president,
would seem to establish conclusively that McKenzie had exe-
cuted the memorandum agreement during June 1988, albeit
perhaps not on June 27 of that month.
Furthermore, the fact that Respondent did honor the memo-
randum agreement and its incorporated contracts is evidence
that, in fact, it had regarded itself as bound by the agreement
which McKenzie had executed, regardless of whatever games
he had been trying to play at the time: “I delayed signing it
until then and then we were done and then I made certain that it
was not made into a contract because I made sure [Assistant
Secretary] Beverly Austin didn’t sign the contract,” to avoid
“mak[ing] it a legal document.”
Whether or not Jacobsen’s signature stamp had been affixed
to the memorandum agreement executed by McKenzie, upon its
receipt from him, is not truly dispositive of the question of the
Union’s acceptance of that collective-bargaining contract.
Respondent’s mid-1988 benefits contributions were accepted.
Obviously, that would not have occurred had a contractual
relationship not been established at the time of their receipt.
Beyond that, in Section 8(d) of the Act Congress distinguished
the concept of “agreement” from the obligation to “execut[e] a
written contract incorporating any agreement reached.” In
consequence, even had Jacobsen’s signature not been stamped
on the agreement at the time of its receipt, or shortly afterward,
the Union clearly regarded Respondent as bound to the terms of
that memorandum agreement and its incorporated contracts.
Any focus on the point at which the signature had been stamped
on the memorandum agreement, in the circumstances, would be
to elevate “the same old common-law concepts” applicable to
private contracts, id., over “established federal labor policy
favoring collective bargaining.” Id. Moreover, if the Union
was willing to accept that memorandum agreement with only
signature for Respondent, then it certainly was free to do so.
Therefore, I conclude that a preponderance of the credible
evidence establishes that Respondent did become party to a
collective-bargaining contract by having executed the memo-
randum agreement during June 1988. Of course, an affirmative
answer to that question does not, of itself, resolve the extent of
any ongoing obligation arising as a result of that initial obliga-
tion.
To the extent pertinent here, the extent of the obligation to
which Respondent became bound, as a result of McKenzie’s
MCKENZIE ENGINEERING CO. 917
mid-1988 execution of the memorandum agreement, seems
resolved by the terms of that agreement. For, it states, inter
alia, that Respondent agrees “to be bound by Area Agreements
negotiated between the [Union] and various Employer Associa-
tions . . . from time to time thereafter unless the EMPLOYER
gives written notice to the UNION of a desire to amend or ter-
minate any of such Agreements at least three (3) calendar
months prior to the expiration of such Agreement or Agree-
ments.”
At first blush, it might appear a somewhat onerous result to
conclude that a contractual obligation continued to exist, based
on no more than one-time execution of a memorandum agree-
ment in connection with a single short-term project performed
more than eight years earlier—that is, to conclude that an ongo-
ing contractual relationship existed because of one-time execu-
tion of what might be viewed as a “drive-by” collective-
bargaining contract, to adopt a phrase utilized in a different
context. Steel Co. v. Citizens for a Better Environment, 523
U.S. 83 (1998). But, there is more at stake in the circumstances
presented here.
As pointed out above, Federal labor policy favors collective
bargaining and, in consequence, contracts arising as a result of
that process are not governed by common law contractual con-
cepts. As a matter of public policy, “parties to a collective-
bargaining agreement must have reasonable assurance that their
contract will be honored.” (Citation omitted.) W. R. Grace &
Co. v. Rubber Workers Local 759, 461 U.S. 757, 771 (1983).
Even as to collective-bargaining relationships arising under
Section 8(f) of the Act, it is accepted that where an employer
executes a contract which binds it to renewals and to successive
contracts, that employer is statutorily obligated to honor those
renewals and successive contracts. Cedar Valley Corp., 302
NLRB 823 (1991), enfd. 977 F.2d 1211 (8th Cir. 1992), cert.
denied 508 U.S. 907 (1993). Thus, the fact that an employer
executes a collective-bargaining contract in connection with a
single, short-term project does not relieve it of a duty of honor
that contract on other projects which come to be encompassed
by it.
Of course, such a result might be intolerable, as a matter of
public policy, were an employer-signatory to such a contract to
be bound interminably, in perpetuity, to renewals and succes-
sive contracts. However, that is not the fact here. To prevent
renewals and incorporation of successive contracts, Respondent
need only have “give[n] written notice to the UNION of a de-
sire to amend or terminate any of such Agreements at least
three (3) calendar months prior to the expiration of such
Agreement or Agreements.” Respondent has presented no
evidence that it ever has availed itself of that provision and
there is no evidence that it ever had done so before December
1996, when it began moving materials and equipment to the
Crescent Railroad Bridge Sheer, to commence its project there.
Having failed to pursue so seemingly simple a course to pre-
vent an ongoing contractual relationship with the Union, Re-
spondent is in a poor position to claim that it should not be
statutorily obligated to do that which Section 8(d) of the Act
obliges it to do: “honor[ing] a collective-bargaining contract by
applying its terms to all employees covered by that contract.”
(Citation omitted.) Diversified Bank Installations, supra.
In an effort to create, in effect, a daisy chain of contracts
from 1988 through July 31, 2001, the General Counsel pre-
sented four Highway/Heavy Construction collective-bargaining
contracts between the Associated General Contractors of Illi-
nois and the United Brotherhood of Carpenters and Joiners of
America. Respondent points out, accurately, that the ones for
August 1, 1988 to July 31, 1991, and for August 1, 1991 to July
31, 1996 are unsigned. Obviously, those contracts would have
been better authenticated by presentation of ones which had
been signed. Nonetheless, Pence testified that, before having
become a business representative during approximately 1993,
he had been employed as a carpenter and had performed that
work under, inter alia, the terms of those 1988 to 1991 and
1991 to 1996 Highway/Heavy Construction contracts. “Testi-
mony that a matter is what it is claimed to be” is one statutory-
ly prescribed method of authentication. Fed.R.Evid. Rule
901(b)(1).
Beyond that, in reality, the 1988 to 1991 and 1991 to 1996
contracts are collateral to the dispute encompassed by the com-
plaint in the instant matter. An executed copy of the 1996–
2001 Highway/Heavy Construction collective-bargaining con-
tract was presented. Not only is it the current contract, but it is
the one which, it is argued, applies to Respondent’s work on the
Crescent Railroad Bridge Sheer. Under the memorandum
agreement which McKenzie executed, that 1996–2001 contract
is literally a “successive agreement[ ]” to the 1985–1988 one,
for which an executed copy was provided, in effect when Re-
spondent became a party to the memorandum agreement. Even
had there been a total hiatus between those two executed high-
way/heavy construction contracts—for example, as the result of
strike which occasioned a contractual hiatus from August 1,
1988, to July 31, 1996—that would not seemingly have pre-
cluded the 1996–2001 contract from being a “successive
agreement[ ]” to the 1985–1988 one in effect when Respondent
became a party to it.
To be sure, there is no evidence that Respondent had hon-
ored any highway/heavy construction collective-bargaining
contract between August 1988 and December 1996. Yet, as
quoted in section I above, McKenzie testified that most of Re-
spondent’s work is in the Fort Madison area, in Lee County,
Iowa. There is no particularized evidence that, during that
somewhat more than 8-year period, Respondent had performed
any work in any of the Illinois and Iowa counties listed in the
memorandum agreement which McKenzie had executed. If
there had been no opportunity to apply the terms of high-
way/heavy construction contracts during that period, because
Respondent had performed no work in counties encompassed
by the memorandum agreement, then it hardly can be argued
persuasively that a failure to honor such contracts during that
period somehow shows union-acquiescence to the proposition
that no such contract applied to Respondent once it completed
the projects in Bellevue, Iowa and in Marseilles, Illinois, much
less that no contract had ever existed, at all.
Beyond that, even if Respondent had slipped into one or
more of those Illinois and Iowa counties, there performing pro-
jects without having honored a then-in-effect highway/heavy
construction collective-bargaining contract, that hardly estab-
lishes a concession by the Union that Respondent was thereaf-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 918
ter no longer obliged to honor highway/heavy construction
contracts. For, as pointed out in Diversified Bank Installations,
supra, at 466:

the Board has held that a union’s past acquiescence to an em-
ployer’s failure to honor contract terms does not, under Sec-
tion 8(d) of the Act, operate to obliterate an employer’s statu-
tory obligation not to terminate or modify contract terms dur-
ing the existence of a collective-bargaining contract. [Cita-
tions omitted.]

“In Cedar Valley [supra] the Board adopted the judge’s deci-
sion that the employer was bound to an 8(f) contract by virtue
of an automatic renewal clause to which it had agreed with
various unions, despite the fact that the employer had not com-
plied with the subsequent agreements for a significant number
of years.” Neosho Construction Co., 305 NLRB 100 fn. 1
(1991).
Of course, where one party is unaware of another party’s
nonobservance of the terms of a collective-bargaining contract,
there is no basis for concluding that, because of that noncom-
pliance, there had been a waiver of the statutory obligation to
do so in the future. Absent a showing of knowledge, there can
be no waiver under the Act. Diversified Bank Installations,
supra, and cases cited therein. In the instant case, Respondent
has made no showing that the Union had been aware of any
project on which Respondent had worked within the Illinois
and Iowa counties listed in the memorandum agreement, which
McKenzie executed. Nor can a showing of such awareness be
found or inferred from the record.
Given the totality of the foregoing considerations, the con-
clusion is warranted that, pursuant to the memorandum agree-
ment which its owner and president executed and honored dur-
ing mid-1988, and which there is no basis for concluding was
ever terminated prior to December 1996, Respondent was obli-
gated to continue honoring its collective-bargaining contract—
the Highway/Heavy Construction collective-bargaining con-
tract for 1996 to 2001—at the time of commencing work on the
Crescent Railroad Bridge Sheer project. Nevertheless, Respon-
dent advances other arguments in opposition to such a conclu-
sion.
First, it denies that the Union initially had asserted that it had
a collective-bargaining contract with Respondent and, in that
regard, points out that the Union never presented McKenzie
with a copy of his executed memorandum agreement until Feb-
ruary 5, 1997. However, Respondent had pointed to no author-
ity, nor have I been able to locate any, holding that to perfect a
demand for contract compliance under the Act, the statutory
bargaining agent must present a signatory employer with a copy
of the collective-bargaining contract executed by the latter, in
support of each demand for compliance with it.
Beyond that, McKenzie denied with specificity having been
told that Respondent was bound by a contract only with regard
to his encounter with Delcourt on December 12, 1996. As to
like assertions by the Union during subsequent encounters be-
tween the parties, McKenzie mustered merely a “I don’t believe
he said that, no.” At best, such testimony shows a lack of rec-
ollection which “hardly qualifies as a refutation of . . . positive
testimony and unquestionably was not enough to create an issue
of fact between” McKenzie and the Union’s agents. Roadway
Express, Inc. v. NLRB, 647 F.2d 415, 425 (4th Cir. 1981). I
credit the testimony, which appeared to have been advanced
credibly and which is consistent with the objective fact that
Respondent was party to contracts incorporated by the memo-
randum agreement, that the Union’s agents did claim to
McKenzie, beginning in mid-December 1996, that Respondent
had a contract with the Union.
Actually, I have no doubt that, prior to the meeting with Del-
court and Laborers agent Downs on December 12, 1996,
McKenzie probably not given any thought to the memorandum
agreement’s effect on the Crescent Railroad Bridge Sheer pro-
ject. Of itself, of course, lack of forethought about a collective-
bargaining contract’s application to a particular project hardly
defeats its actual application to that project. Moreover, when
testifying, McKenzie impressed me as an intelligent and me-
ticulous individual. I have no doubt that, while he may not
have anticipated application of the memorandum agreement to
the Sheer project, and may not even have recalled having exe-
cuted it at the time that Delcourt first raised the subject,
McKenzie afterward had taken the time to ascertain what Del-
court was talking about and, by the time of their subsequent
meetings, had ascertained the basis for the Union’s ongoing
assertions of contractual obligation.
Indeed, a review of the testimony about what had been said
during the meeting on December 13, 1996, and during subse-
quent meetings, reveals that McKenzie pretty much ceased
disputing Respondent’s obligation to honor the 1996–2001
Highway/Heavy Construction collective-bargaining contract
and, instead, conditioned Respondent’s willingness to honor
that contract on resolution of Respondent’s dispute with Local
410 in Lee County, Iowa. In short, McKenzie utilized compli-
ance with Respondent’s contractual obligations pursuant to the
then-not terminated memorandum agreement, and its incorpo-
rated contracts, as some sort of lever to resolve Respondent’s
separate dispute with Local 410. Under the Act, however, that
is not an acceptable procedure.
Second, Respondent challenges the assertedly leisurely pace
at which the Union pursued its contract rights on the Sheer
project. Yet, McKenzie did not contest the testimony that on
December 13, 1996, he had told Delcourt “that he was not go-
ing to start the job in earnest until about the middle of January
and that he would get with us and let us know what he was
going to do.” It is difficult to ascertain the basis upon which
the Union now should somehow be faulted for believing that
McKenzie would keep his word—for having waited until mid-
January 1997, to try contacting McKenzie.
When it became obvious by January 15, 1997, that
McKenzie might not “get with” the Union, Delcourt again went
to the project, on that day and, again, a week and 1 day later, to
try speaking with McKenzie. Moreover, the Union participated
in meetings with McKenzie on January 24 and, once more, on
January 31, 1997. These facts do not suffice to establish some
type of indolent pursuit by the Union of its contract rights with
Respondent, much less an indolence which, on some unstated
basis, might serve to deprive the Union of its rights under the
memorandum agreement and its incorporated collective-
bargaining contracts.
MCKENZIE ENGINEERING CO. 919
Third, much is made by Respondent of the project agreement
concededly presented to McKenzie. Yet, so far as can be ascer-
tained from the record, that did not occur until January 31,
1997. By then, McKenzie had already resisted honoring the
1996–2001 Highway/Heavy Construction contract until his
dispute with Local 410 was resolved—an eventuality unlikely
to occur until at least February 14, 1997, if then. Respondent’s
project on the Sheer was a relatively short-term one. It had been
in progress for over a month by the end of January 1997. Re-
spondent was a relatively small contractor which, so far as the
record discloses, did not ordinarily work in the Illinois and
Iowa counties enumerated in the memorandum agreement
which McKenzie had executed. Given all these facts, it was
neither inconsistent with its existing contract rights, nor unrea-
sonable, for the Union to attempt some efforts at a quick set-
tlement of the dispute before the project was completed and the
Union-represented employees lost out altogether.
Proffer of a project agreement appears to have been but one
means adopted by the Union for accomplishing that objective.
Business Manager, Secretary-Treasurer O’Connell had been
willing to meet with McKenzie. Decker had been brought up
from Lee County to participate in one meeting with McKenzie.
It is uncontroverted that the Union offered to help Respondent
by adjusting journeyman-to-apprentice ratios and by freezing
wages. In the circumstances, proffer of a project agreement
appears to have constituted no more than another avenue driven
down by the Union in an effort to reach the destination of a
possible quick settlement before the Sheer project was com-
pleted.
It would not be consistent with the policies and purposes of
the Act to hold against a party on the merits, merely because
that party advanced less than entitled on the merits in an effort
to resolve the underlying dispute. Indeed, such use of a com-
promise offer would appear to be contrary to general policy, not
simply to that under the Act. See Fed.R.Evid. Rule 408. In
fact, Respondent has offered no evidence that, in offering a
project agreement, any of the Union’s agents had said that it
was being offered as a permanent substitute for the contracts
incorporated by the memorandum agreement, thereby waiving
all existing and future rights under the 1996–2001 High-
way/Heavy Construction collective-bargaining contract. Yet,
seemingly such a specific offer would have been required to
reach a conclusion that the Union had been willing to relinquish
all right under the latter in return for Respondent’s execution of
the proffered project agreement on the Sheer project. Diversi-
fied Bank Installations, supra.
In sum, I conclude that the Union’s proffer of a project
agreement does not establish either inconsistency with a claim
that Respondent was bound by an existing collective-bargaining
contract with the Union, or that the Union waived those con-
tract rights. In any event, Respondent never executed the pro-
ject agreement, with the result that it lost any opportunity to test
its effects on its existing obligation to honor the memorandum
agreement.
Finally, Respondent’s parting shot at the Union was the exe-
cution of the addendum with Operating Engineers which, Re-
spondent then claimed, gave rise to a jurisdictional dispute.
But, that addendum had not been signed until February 5,
1997—well after Respondent had commenced work on the
Sheer and, also, well after the Union already had laid claim to
work on that project. Obviously, parties cannot simply erase an
unlawful refusal to honor a collective-bargaining contract
through the device of executing a separate contract with another
labor organization and, then, claiming that there is a jurisdic-
tional dispute. Such an approach would undermine altogether
the statutory duty to honor collective-bargaining contracts and,
as well, the federal labor policy favoring collective bargaining.
Consequently, the Union’s contractual claim to some of the
work on the Crescent Railroad Bridge Sheer project is not nulli-
fied, nor diminished, by its unwillingness to submit the dispute,
arising because of Respondent’s belated execution of the ad-
dendum with Operating Engineers, to jurisdictional disputes
resolution procedures. Execution of that addendum constituted
“no more than a very thinly-disguised attempt by Respondent to
avoid its collective-bargaining contract with the Union.”
As to the extent of Respondent’s obligation to honor its col-
lective-bargaining contract with the Union at that project, it
seems undisputed that work there involving power equipment
operation—boats, cranes, etc.—was not work ordinarily per-
formed by employees represented by the Union and covered by
its contract with Respondent. In fact, the Union never laid
claim to representation of employees, such as Larry Dennison,
who were performing that work. On the other hand, both under
the Highway/Heavy Construction collective-bargaining con-
tract and under Brennan’s practice during past rehabilitation on
the Sheer, employees represented by the Union would perform
work there which did not involve operation of power equipment
and tasks incidental thereto. That, for example, would include
such work as placing fence timbers in position and connecting
them to each other.
Fabrication of cells was something different at the Sheer.
So, too, was erection of the steel structure on its downstream
side. The Union contends that work connected with those op-
erations is encompassed by the 1996–2001 Highway/Heavy
Construction collective-bargaining contract. A reading of that
contract’s work jurisdiction provisions, quoted in section I,
supra, would appear to support that contention. To be sure,
employees represented by Operating Engineers and, perhaps,
by other labor organizations, as well, also could perform some,
maybe all of that work. Nevertheless, so far as the evidence
reveals, only the Union had a collective-bargaining contract in
place when Respondent commenced work at the Sheer. If,
however, it is determined during the compliance phase of this
proceeding, Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 902 (1984),
that a particular task or tasks is not encompassed by the Un-
ion’s contract with Respondent, then the remedy can be tailored
to accommodate that determination.
CONCLUSION OF LAW
McKenzie Engineering Co. has committed unfair labor prac-
tices affecting commerce by failing and refusing to honor its
collective-bargaining contract with Northwest Illinois and East-
ern Iowa District Council of Carpenters, affiliated with the
International Brotherhood of Carpenters and Joiners of Amer-
ica, AFL–CIO, a statutory labor organization, as the exclusive
collective-bargaining representative of all employees employed
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 920
within the territorial and occupational jurisdiction of that labor
organization, as described in the memorandum agreement exe-
cuted by McKenzie Engineering Co. during 1988 and in the
collective-bargaining contracts which it incorporates by refer-
ence, in violation of Section 8(a)(5) and (1) of the Act.
REMEDY
Having concluded that McKenzie Engineering Co. has en-
gaged in unfair labor practices, I shall recommend that it be
ordered to cease and desist therefrom and, further, that it be
ordered to take certain affirmative action to effectuate the poli-
cies of the Act. With respect to the latter, it shall be ordered to
recognize and bargain with Heartland Regional Council of
Carpenters, affiliated with the International Brotherhood of
Carpenters and Joiners of America, AFL–CIO during the re-
maining term of the memorandum agreement which McKenzie
Engineering Co. executed during 1988, its incorporated collec-
tive-bargaining contracts and, absent timely and sufficient no-
tice effectively canceling that collective-bargaining contract,
any automatic renewals or extensions thereof, and, during that
remaining term, honor and abide by all contract terms for all
employees in the appropriate historic bargaining unit of: All
employees of McKenzie Engineering Co. employed within the
territorial and occupational jurisdiction of Heartland Regional
Council of Carpenters, affiliated with the International Brother-
hood of Carpenters and Joiners of America, AFL–CIO, in the
Illinois and Iowa counties listed in the memorandum agreement
executed during 1988.
It shall also be ordered to make whole all employees repre-
sented by Northwest Illinois and Eastern Iowa District Council
of Carpenters, affiliated with the International Brotherhood
Carpenters and Joiners of America, AFL–CIO who should have
been assigned work on the Crescent Railroad Bridge Sheer
project between mid-December 1996 and March 26, 1997,
pursuant to the terms of the above-mentioned memorandum
agreement and its incorporated collective-bargaining contracts
and, in addition, Heartland Regional Council of Carpenters,
affiliated with the International Brotherhood of Carpenters and
Joiners of America, AFL–CIO, for any losses suffered as a
result of the unlawful failure to comply with those contractual
obligations on that project, in the manner prescribed in Ogle
Protection Service, 183 NLRB 682 (1970), with interest as
computed in New Horizons for the Retarded, 283 NLRB 1173
(1987). Furthermore, McKenzie Engineering Co. shall be
ordered to make whole the appropriate fringe benefit funds for
losses suffered as a result of its delinquencies in failing to make
contractually required contributions to those funds. Diversified
Bank Installations, supra.
In addition, inasmuch as the project giving rise to this dis-
pute has been concluded, but others may be undertaken within
the geographic area encompassed by the above-identified
memorandum agreement and its incorporated contracts, renew-
als and extensions, McKenzie Engineering Co. shall be ordered
to sign and return to the Regional Director for Region 33 suffi-
cient copies of the notice for posting by Heartland Regional
Council of Carpenters, affiliated with the International Brother-
hood of Carpenters and Joiners of America, AFL–CIO, it being
willing, at all locations where notices to its members are cus-
tomarily posted.
On these findings of fact and conclusions of law, and on the
entire record, I make the following recommended6
ORDER
The Respondent, McKenzie Engineering Co., Fort Madison,
Iowa, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) During the term of the memorandum agreement executed
in 1988 and collective-bargaining contracts which it incorpo-
rates by reference, including, absent timely and sufficient no-
tice effectively canceling such obligation, any automatic re-
newals or extensions, withdrawing recognition from, and refus-
ing to bargain with, Heartland Regional Council of Carpenters,
affiliated with the International Brotherhood of Carpenters and
Joiners of America, AFL–CIO as the exclusive collective-
bargaining representative of all employees in an appropriate
historic bargaining unit of:

All employees of McKenzie Engineering Co. employed
within the territorial and occupational jurisdiction of Heart-
land Regional Council of Carpenters, affiliated with the Inter-
national Brotherhood of Carpenters and Joiners of America,
AFL–CIO, in the Illinois counties of Boone, Bureau, Carroll,
DeKalb, Henderson, Henry, Jo Daviess, La Salle, Lee, Mar-
shall, Mercer, Ogle, Putnam, Rock Island, Stark, Stephenson,
Whiteside and Winnebago, and the Iowa counties of Al-
lamakee, Appanoose, Benton, Cedar, Clayton, Clinton,
Davis, Delaware, Dubuque, Iowa, Jackson, Jefferson, John-
son, Jones, Keokuk, Linn, Louisa north of the Iowa River,
Mahaska, Monroe, Muscatine, Scott, Van Buren, Wapello,
Washington and Wayne; excluding office clerical employees,
guards and supervisors as defined in the National Labor Rela-
tions Act.

(b) Repudiating the memorandum agreement and its incorpo-
rated collective-bargaining contracts, specified in subparagraph
(a) above, including any renewals and extensions thereof, ab-
sent timely and sufficient notice effectively canceling such
obligations, and refusing and failing to comply with all contract
terms for all employees in the above-described appropriate
historic bargaining unit during the contractual term.
(c) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of rights guaranteed them
by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) During the term of the memorandum agreement and its
incorporated collective-bargaining contracts, specified in para-
graph 1(a) above, including any extensions and renewals
thereof, absent timely and sufficient notice effectively cancel-
ing such obligation, recognize and bargain with Heartland Re-
gional Council of Carpenters, affiliated with the International

6 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions and recommended
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 pur-
poses.
MCKENZIE ENGINEERING CO. 921
Brotherhood of Carpenters and Joiners of America, AFL–CIO,
as the exclusive collective-bargaining representative of all em-
ployees in the appropriate historic bargaining unit described in
that same paragraph.
(b) Honor all terms of the memorandum agreement and its
incorporated collective-bargaining contracts, specified in para-
graph 1(a) above, including any extensions and renewals
thereof, absent timely and sufficient notice effectively cancel-
ing such obligation, and comply with all contract terms for all
employees in the appropriate historic bargaining unit described
in that same paragraph.
(c) Make whole all employees, Heartland Regional Council
of Carpenters, affiliated with International Brotherhood of Car-
penters and Joiners of America, AFL–CIO, and fringe benefit
funds, in the manner set forth in the Remedy section, for any
losses they may have suffered as a result of the failure to adhere
to the memorandum agreement and its incorporated collective-
bargaining contracts, as specified in paragraph 1(a) above, in-
cluding any renewals or extensions thereof, for work performed
on the Crescent Railroad Bridge Sheer, on the Mississippi
River between Rock Island County, Illinois and Scott County,
Iowa, between December 9, 1996 and March 26, 1997, with
interest on amounts owing.
(d) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this Or-
der.
(e) Within 14 days after service by the Region, post at its
Fort Madison, Iowa place of business copies of the attached
notice marked “Appendix.”7 Copies of the notice, on forms
provided by the Regional Director for Region 33, after being
signed by its duly authorized representative, shall be posted by
McKenzie Engineering Co. and maintained for 60 consecutive
days in conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by it to ensure that the notices are not altered, defaced or
covered by any other material. In the event that, during the
pendency of these proceedings, McKenzie Engineering Co. has
gone out of business, it shall duplicate and mail, at its own
expense, a copy of the notice to all current employees and for-
mer employees employed by it at any time since December 9,
1996.
(f) Within 14 days after service by the Regional Director for
Region 33, sign and return to the Regional Director sufficient
copies of the notice for posting by Heartland Regional Council
of Carpenters, affiliated with the International Brotherhood of
Carpenters and Joiners of America, AFL–CIO, it being willing,
at all locations where notices to its members are customarily
posted.

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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”

(g) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that it
has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we violated
the National Labor Relations Act and has ordered us to post and
abide by this notice.

Section 7 of the Act gives employees these rights.

To organize
To form, join, or assist any union
To bargain collectively through representatives of their
own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected con-
certed activities.

WE WILL NOT, during the term of the memorandum agree-
ment which we executed in 1988 and any collective-bargaining
contract which it incorporates—including, absent timely and
sufficient notice effectively canceling such obligation, renewals
and extensions thereof—withdraw recognition from, and refuse
to bargain with, Heartland Regional Council of Carpenters,
affiliated with the International Brotherhood of Carpenters and
Joiners of America, AFL–CIO, as the exclusive collective-
bargaining representative of all employees in the following
appropriate historic bargaining unit:

All employees of McKenzie Engineering Co. employed
within the territorial and occupational jurisdiction of Heart-
land Regional Council of Carpenters, affiliated with the Inter-
national Brotherhood of Carpenters and Joiners of America,
AFL–CIO, in the Illinois counties of Boone, Bureau, Carroll,
DeKalb, Henderson, Henry, Jo Daviess, La Salle, Lee, Mar-
shall, Mercer, Ogle, Putnam, Rock Island, Stark, Stephenson,
Whiteside, and Winnebago, and the Iowa counties of Al-
lamakee, Appanoose, Benton, Cedar, Clayton, Clinton, Davis,
Delaware, Dubuque, Iowa, Jackson, Jefferson, Johnson,
Jones, Keokuk, Linn, Louisa north of the Iowa River,
Mahaska, Monroe, Muscatine, Scott, Van Buren, Wapello,
Washington and Wayne; excluding office clerical employees,
guards and supervisors as defined in the Act.

WE WILL NOT repudiate the above-specified memorandum
agreement and its incorporated collective-bargaining contracts
—including, absent timely and sufficient notice effectively
canceling such obligation, renewals and extensions thereof—
and WE WILL NOT refuse and fail to comply with contract
terms for all employees in the appropriate historic bargaining
unit described above.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of your rights protected
by the National Labor Relations Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 922
WE WILL, during the term of the above-specified memoran-
dum agreement and its incorporated collective-bargaining con-
tracts—including, absent timely and sufficient notice effec-
tively canceling such obligation, renewals and extensions
thereof—recognize and bargain with Heartland Regional Coun-
cil of Carpenters, affiliated with the International Brotherhood
of Carpenters and Joiners of America, AFL–CIO as the exclu-
sive collective-bargaining representative of all employees in the
above-described appropriate historic bargaining unit.
WE WILL, absent timely and sufficient notice effectively
canceling such obligation, honor the terms of the above-
specified memorandum agreement and its incorporated collec-
tive-bargaining contracts, including any renewals or extensions
thereof, and WE WILL comply with all contract terms for all
employees in the above-described appropriate historic bargain-
ing unit.
WE WILL make whole all employees, Heartland Regional
Council of Carpenters, affiliated with the International Brother-
hood of Carpenters and Joiners of America, AFL–CIO, and
fringe benefit funds for any losses suffered as a result of our
failure to comply with the above-specified memorandum of
agreement, its incorporated collective-bargaining contracts, and
renewals and extensions thereof, for work which we performed
between December 9, 1996, and March 26, 1997 on the Cres-
cent Railroad Bridge Sheer, with interest on amounts owing.
MCKENZIE ENGINEERING COMPANY