Nichols & Wright Paving, Inc.

National Labor Relations Board - Administrative Judge Opinions

Nov 9, 2006

09-CA-041612 (N.L.R.B. Nov. 9, 2006)

JD–78–06
Huntington, WV

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES

NICHOLS & WRIGHT PAVING, INC.

and Case 9–CA–41612

INTERNATIONAL UNION OF OPERATING
ENGINEERS, LOCAL NO. 132, AFL-CIO

and Case 9–CA–41729

LABORERS DISTRICT COUNCIL,
CHARLESTON, WEST VIRGINIA,
LABORERS LOCAL UNION NO. 543

Mark G. Mehas, Esq.,
for the General Counsel.
Fred F. Holroyd, Esq.,
of Charleston, WV,
for the Respondent.
Lawrence B. Lowry, Esq.,
of Huntington, WV,
for the Operating Engineers.
James P. McHugh, Esq.,
of Charleston, WV,
for the Laborers.

DECISION

Statement of the Case

MARTIN J. LINSKY, Administrative Law Judge: On December 21, 2004 the
International Union of Operating Engineers, Local No. 132, AFL-CIO, (herein Operating
Engineers) filed a charge against Nichols & Wright Paving, Inc. (herein Respondent).

On February 15, 2005, Laborers’ District Council, Charleston, West Virginia, Laborers’
Local Union No. 543 (herein the Laborers) filed a charge in Case 9-CA-41729 against
Respondent.

On July 27, 2005 the National Labor Relations Board, by the Regional Director for
Region 9, issued a consolidated complaint, herein complaint, alleging that Respondent violated
Section 8(a)(1) and (5) of the National Labor Relations Act, herein the Act, when on December
4, 2004 it unlawfully withdrew its recognition of the Operating Engineers and the Laborers and
ceased honoring the collective-bargaining agreements it had with the two unions which
collective bargaining agreements ran from December 1, 2003 to November 30, 2006.

Respondent filed an answer in which it admitted that it ceased honoring the collective
bargaining agreement with the unions but denied that it violated the Act in any way.

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A trial was held before me in Huntington, West Virginia on August 31, 2006.

Based on the entire record in this case, to include post-trial briefs submitted by Counsel
for the General Counsel, Counsel for Respondent, Counsel for the Operating Engineers, and
Counsel for the Laborers as well as the testimony of the witnesses and their demeanor I hereby
make the following

I. Findings of Fact

At all material times, Respondent, a corporation, with an office and place of business in
Huntington, West Virginia, has been engaged as a contractor in the construction industry doing
asphalt paving work.

Respondent admits, and I find, that at all material times Respondent has been an
employer engaged in commerce within the meaning of Section 2(2), (6) and (7) of the Act.

II. The Labor Organizations Involved

Respondent admits, and I find, that at all material times the Operating Engineers and the
Laborers have been labor organizations within the meaning of Section 2(5) of the Act.

III. The Alleged Unfair Labor Practices

A. Overview

The Constructors’ Labor Council of West Virginia, Inc., is a multi-employer organization
that bargains with construction unions in the state of West Virginia.

Respondent is not a member of the Constructors’ Labor Council of West Virginia, Inc.

On March 8, 1991 Respondent and the Laborers signed a document entitled
“Acceptance of Agreement” which provided as follows:

“The undersigned has read and hereby approves the Heavy and Highway
Construction Agreement between the CONSTRUCTORS’ LABOR COUNCIL OF
WEST VIRGINIA, INC., and ENGINEERS’ LOCAL NO. 132, AFL-CIO,
TEAMSTERS’ LOCALS OF WEST VIRGINIA, CARPENTERS’ STATE
COUNCIL, AFL-CIO, OPERATIVE PLASTERS’ & CEMENT MASONS’
INTERNATIONAL ASSOCIATION operating in West Virginia, which Agreements
are dated December 3, 1990, and herewith accepts the same and becomes one
of the parties thereto.

These Agreements cover the term of period beginning December 3, 1990, and
ending December 6, 1993 and from year to year thereafter in absence of sixty
(60) days notice of intention to terminate by either party. See Section I of Article
XII of each Agreement.

The undersigned also agrees to be bound by any subsequent replacement
Agreement, renewals, modifications, amendments and addendums to the
Agreements between the aforementioned parties.” General Counsel Exhibit 8.

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On October 15, 1999 Respondent and the Operating Engineers signed a similar
document entitled “Acceptance of Agreement” which provided as follows:

“The undersigned has read and hereby approves the Heavy Construction
Agreement and Highway Agreement between CONSTRUCTORS’ LABOR
COUNCIL OF WEST VIRGINIA INC., and ENGINEERS’ LOCAL UNION NO.
132, AFL-CIO, operating in West Virginia, which Agreements becomes one of the
parties thereto.

These Agreements cover the term of period beginning December 6, 1996,
and ending December 5, 1999, and from year to year thereafter in absence of 60
days notice of intention to terminate by either party. See Section 1 of Article XII
of each Agreement.

The Undersigned also agrees to be bound by any subsequent
replacement Agreements, renewals, modifications, amendments and addendums
to the Agreements, between the aforementioned parties.” General Counsel
Exhibit 2.

The “Acceptance of Agreement” signed on March 8, 1991 by Respondent and the
Laborers makes reference in paragraph 2 to an agreement running from December 3, 1990 and
ending December 6, 1993.

There was a succession of agreements which Respondent and the Laborers were bound
to by virtue of the “Acceptance of Agreement.” There were so-called Heavy Construction
Agreements, Highway Agreements covering highway construction and beginning in 2000 a
unified Heavy Construction and Highway Agreement.

A series of eight agreements are in evidence as General Counsel Exhibit 11(a-h).1

The latest agreement runs from December 1, 2003 to and including November 30, 2006.

Each of these eight agreements contain the same language regarding termination.

The language regarding termination in the December 1, 2003 to November 30, 2006 is
as follows:

“ARTICLE X

Termination

Section 1: Agreement Effective dates. This Agreement shall remain in
full force and effect from December 1, 2003 to and including November 30, 2006
and thereafter from year to year unless either party gives written notice to the
other party of its intention to terminate this Agreement at least sixty (60) days
prior to the expiration of any contract year.

1 In addition, Respondent and the Laborers entered into an Asphalt Agreement on July 28,
1997 which would only be applicable to private construction projects with a gross contract
values of $500,000 or less which are not funded by the United States or state government.
General Counsel Exhibit 12, the Exhibit, unfortunately, is barely legible.

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Section 2: Negotiations. Negotiations for a contract for the year 2007
shall be commenced on or before September 30, 2006.” General Counsel
Exhibit 11(h).

The “Acceptance of Agreement” between Respondent and the Operating Engineers
makes reference in paragraph 2 to an agreement beginning December 6, 1996 and ending
December 5, 1999.

There was a succession of agreements which Respondent and the Operating Engineers
were bound to by virtue of the “Acceptance of Agreement.”

As with Respondent and the Laborers these agreements were either Heavy Construction
Agreement, Highway Agreements, or Heavy Construction and Highway Agreements.

A series of four agreements are in evidence as General Counsel Exhibit 4(a-d).2

The latest agreement runs from December 1, 2003 to and including November 30, 2006.

Each of the four agreements contains the same language regarding termination.

The language regarding termination in the December 1, 2003 to November 30, 2006
agreement is as follows:

“ARTICLE X

Termination

Section 1: Agreement Effective dates. This Agreement shall remain in
full force and effect from December 1, 2003 to and including November 30, 2006
and thereafter from year to year unless either party gives written notice to the
other party of its intention to terminate this Agreement at least sixty (60) days
prior to the expiration of any contract year.

Section 2: Negotiations. Negotiations for a contract for the year 2007
shall be commenced on or before September 30, 2006.” General Counsel
Exhibit 4(d).

These agreements between Respondent on the one hand and the Laborers and
Operating Engineers on the other hand were Section 8(f) agreements and as such conferred on
the Laborers and the Operating Engineers limited exclusive collective-bargaining representation
to the Laborers for laborers employed by Respondent in the State of West Virginia3 and to the
Operating Engineers for equipment operators and pavers employed by Respondent in the State
of West Virginia.4

2 In addition, Respondent and the Operating Engineers on October 10, 1999 entered into a
so-called “small paving contract” to be applied on smaller projects. General Counsel Exhibit 3.
3 All laborers employed by Respondent in the State of West Virginia, but excluding all office
clerical employees, professional employees, guards and supervisors as defined in the Act.
4 All equipment operators and pavers employed by Respondent in the State of West
Virginia, but excluding all office clerical employees, professional employees, guards and
supervisors as defined in the Act.

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On August 31, 2004 Respondent sent the following letter to the Laborers:

“West Virginia Laborer’s Combined Fund
One Union Square
Suite 4
Charleston, WV 25302

August 31, 2004

To Whom It May Concern:

This is to inform you that we will be canceling our contract with Local
Laborers 543 effective on December 4, 2004. We do not find a need at this time
to be an employer participating in union jobs.

If you have any questions or concerns please feel free to call me at the
above number.” General Counsel Exhibit 9a.

Also, on August 31, 2004, Respondent sent the following letter to the Operating
Engineers:

“I.U.O.E. Local 132
Welfare, Pension and Apprenticeship Funds
P.O. Box 2626
Huntington, WV 25726

August 31, 2004

To Whom It May Concern:

This is to inform you that we will be canceling our contract with Local 132
Operating Engineers effective on December 4, 2004. We do not find a need at
this time to be an employer participating in union jobs.

If you have any questions or concerns please feel free to call me at the
above number.” General Counsel Exhibit 5.

Respondent’s President Christopher Strow authorized Vicki Sheffey to sign his name on
the two letters.

B. Discussion

It is the position of the General Counsel as well as Counsel for the Laborers and the
Operating Engineers that this withdrawal of recognition of the Unions and Respondent ceasing
to honor the 2003 to 2006 collective bargaining agreement violated Section 8(a)(1) and (5) of
the Act because it was untimely. I agree.

Respondent incorrectly takes the position that it could terminate the contract and
withdraw recognition with sixty days notice before the end of any year of the contract whether
there was a three year contract in place or whether the contract had expired and the old
contract was being extended year to year till a new contract was agreed upon by the parties.

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An examination of the two “Acceptance of Agreement” documents set forth above and
an examination of the termination language for the December 1, 2003 to November 30, 2006
contracts reveal that Respondent is bound to the current contract until November 30, 2006 and
was without authority to cease honoring the contract and without authority to withdraw
recognition when it purported to do so effective December 4, 2004.

If, for example, no successor contract had been agreed to prior to the agreement
running out and the prior agreement had been extended year to year then and only then could
Respondent terminate on 60 days notice at the end of any contract year. On the other hand if a
three year contract had been agreed to then Respondent could terminate with 60 days notice at
the end of the final year of the contract.

The parties stipulated as follows:

“both before and after August 31, 2004, Nichols and Wright had more than one
employee that they paid in the classifications of Laborer and Operating Engineer.
However, during this period Nichols and Wright only submitted contribution
reports for fringe benefits for one employee to the Laborers’ Combined Fund and
one employee to the Operating Engineers Funds.”

The parties amended that stipulation as follows:

“The contribution reports that we referred to previously, with only reporting on
one man with respect to the Laborers and the Operating Engineers, that they
have continued to file reports to the present, again only reflecting one man, to the
present time.”

I found the witnesses for the General Counsel, i.e., Donald Huff from the Operating
Engineers and Gary Tillis from the Laborers to be credible witnesses.

I don’t give any weight to the testimony of Respondent’s President Christopher Strow.
He claims that two union representatives met with him in early September 2004 shortly after
Respondent sent the August 31, 2004 letters to the Operating Engineers and Laborers and one
of the two, i.e., a person Strow identified as Tommy Plymale said the union wanted one more
dues paying member and they would leave Respondent alone. He further claims that he didn’t
know the name of the other union representative and didn’t know what union Tommy Plymale
represented. Strow had no evidence at all to corroborate his claims. I give this testimony no
weight whatsoever.

Accordingly, Respondent violated Section 8(a)(1) and (5) of the Act when it ceased
honoring the contract and withdrew recognition from the Unions effective December 4, 2004.

Remedy

The remedy in this case should include a cease and desist order and the posting of an
appropriate notice. The order should direct Respondent to reinstate the current collective-
bargaining agreement and apply the terms of the collective-bargaining agreement as if it had
never been terminated.

Respondent shall further make whole the unit employees for any loss of wages or
benefits they may have suffered as a result of the Respondent’s failure to comply with the
agreement since December 4, 2004, in the manner set forth in Ogle Protection Service, 183

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NLRB 682 (1970), enfd. 444 F.2d 52 (6th Cir. 1971), with interest as prescribed in New Horizons
for the Retarded, 283 NLRB 1173 (1987).

In the event that the agreement provides for contributions to pension and benefit funds,
the Respondent shall make all contractually required contributions to those funds that they have
failed to make since December 4, 2004, including any additional amounts due to the funds on
behalf of the unit employees in accordance with Merryweather Optical Co., 240 NLRB 1213,
1216 fn. 7 (1979). Further, the Respondent shall reimburse unit employees for any expenses
ensuing from its failure to make required contributions as set forth in Kraft Plumbing & Heating,
252 NLRB 891 fn. 2(1980), enfd. 661 F.2d 940 (9th Cir. 1981), such amounts to be computed in
the manner set forth in Ogle Protection Service, supra, with interest as prescribed in New
Horizons for the Retarded, supra.

In addition, Respondent shall deduct and remit union dues and fees as required by the
check-off provisions in the 2003-2006 and reimburse the Unions for the Respondent’s failure to
do so since December 4, 2004, with interest as prescribed in New Horizons for the Retarded,
supra.

Conclusions of Law

1. Respondent, Nichols & Wright Paving, Inc., is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.

2. The Unions are labor organizations within the meaning of Section 2(5) of the Act.

3. Respondent violated Section 8(a)(1) and (5) of the Act when it terminated its contract
with the Laborers and the Operating Engineers and failed to comply with the terms and
conditions of the contract.

4. Respondent violated Section 8(a)(1) and (5) of the Act when it withdrew recognition
of the Unions.

5. The above violations of the Act are unfair labor practices affecting commerce within
the meaning of Section 2(6) and (7) of the Act.

On these findings of fact and conclusions of law and on the entire record I issue the
following recommended5

ORDER

The Respondent, Nichols & Wright Paving, Inc., its officers, agents, successors, and
assigns, shall

1. Cease and desist from

5 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
purposes.

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(a) Unlawfully terminating collective-bargaining agreements with Unions and failing to
comply with the terms and conditions of collective-bargaining agreements.

(b) Unlawfully withdrawing recognition from Unions.

(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 effectuate the policies of the Act:

(a) Reinstate the unlawfully terminated contract and comply with all its terms and
conditions retroactive to December 4, 2004.

(b) Make whole employees for any loss of wages or benefits they may have suffered as
a result of its failure to comply with the collective-bargaining agreement since December 4,
2004, with interest, as set forth in the remedy section of this decision.

(c) Deduct and remit union dues and fees as required by the check off provisions in the
collective-bargaining agreements with the Unions, and reimburse the Union for its failure to do
so since December 4, 2004, with interest as set forth in the remedy section of this Decision.

(d) Within 14 days after service by the Region, post at its facility in Huntington, West
Virginia, copies of the attached notice marked “Appendix.”6 Copies of the attached notice, on
forms provided by the Regional Director for Region 9, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and former employees employed by
the Respondent at any time since December 4, 2004.

(d) 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
the Respondent has taken to comply.

Dated, Washington, D.C., November 9, 2006.

____________________
Martin J. Linsky
Administrative Law Judge

6 If this Order is enforced by a judgment of a United States court of appeals, the words in the
notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
JD–78–06
Huntington, WV

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 Federal labor law and has
ordered us to post and abide by this Notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities

WE WILL NOT unlawfully terminate collective-bargaining agreements with the Unions and fail to
comply with the terms and conditions of collective-bargaining agreements.

WE WILL NOT unlawfully withdraw recognition of the Union.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of your rights guaranteed by Federal Law.

WE WILL reinstate the contracts we unlawfully terminated and comply with all its terms and
conditions retroactive to December 4, 2004.

WE WILL reimburse our employees, with interest, for any loss of wages or benefits they may
have suffered as a result of our failure to comply with the collective-bargaining agreement since
December 4, 2004.

JD–78–06
Huntington, WV
WE WILL deduct and remit union dues and fees are required by the check off provisions in the
collective-bargaining agreements with the Unions, and reimburse the Unions with interest for
our failure to do so since December 4, 2004.

NICHOLS & WRIGHT PAVING, INC.
(Employer)

Dated By
(Representative) (Title)

The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
550 Main Street, Federal Office Building, Room 3003
Cincinnati, Ohio 45202-3271
Hours: 8:30 a.m. to 5 p.m.
513-684-3686.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 513-684-3750.