Nichols & Wright Paving, Inc.

National Labor Relations Board - Board Decisions

Feb 23, 2007

349 N.L.R.B. 403 (N.L.R.B. 2007)

NICHOLS & WRIGHT PAVING, INC.
349 NLRB No. 39
403
Nichols & Wright Paving, Inc. and International Un-
ion of Operating Engineers, Local No. 132,
AFL–CIO and Laborers District Council,
Charleston, West Virginia, Laborers Local Un-
ion No. 543. Cases 9–CA–41612 and 9–CA–
41729
February 23, 2007
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND WALSH
On November 9, 2006, Administrative Law Judge
Martin J. Linsky issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and the
General Counsel and the Charging Parties each filed an-
swering briefs.
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,1 and conclusions and
to adopt the recommended Order as modified and set
forth in full below.2
ORDER
The National Labor Relations Board orders that the
Respondent, Nichols & Wright Paving, Inc., Huntington,
West Virginia, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Unlawfully terminating its collective-bargaining
agreements with International Union of Operating Engi-
neers, Local No. 132, AFL–CIO, and Laborers District
Council, Charleston, West Virginia, Laborers Local Un-
ion No. 543 (collectively, the Unions), including any
automatic renewals or extensions of them, and failing to
comply with the terms and conditions of these collective-
bargaining agreements.
(b) Unlawfully withdrawing recognition from the Un-
ions.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed them by Section 7 of the Act.

1 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.
2 We shall modify the judge’s recommended Order to include the
Board’s standard remedial language and shall substitute a new notice to
employees to correspond with the modified Order.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Reinstate the unlawfully terminated collective-
bargaining agreements, including any automatic renewals
and extensions thereof, and comply with all their terms
and conditions retroactive to December 4, 2004.
(b) Recognize International Union of Operating Engi-
neers, Local No. 132, AFL–CIO as the exclusive collec-
tive-bargaining representative in the following unit:
All equipment operators and pavers employed by Re-
spondent in the State of West Virginia, but excluding
all office clerical employees, professional employees,
guards and supervisors as defined in the Act.
(c) Recognize Laborers District Council, Charleston,
West Virginia, Laborers Local Union No. 543 as the ex-
clusive collective-bargaining representative in the fol-
lowing unit:
All laborers employed by the Respondent in the State
of West Virginia, but excluding all office clerical em-
ployees, professional employees, guards and supervi-
sors as defined in the Act.
(d) Make whole employees for any loss of wages or
benefits they may have suffered as a result of its failure
to comply with the 2004–2006 collective-bargaining
agreements, and any automatic renewals or extensions of
them, since December 4, 2004, with interest, as set forth
in the remedy section of the judge’s decision.
(e) Deduct and remit union dues and fees as required
by the checkoff provisions in the 2004–2006 collective-
bargaining agreements, and any automatic renewals or
extensions of them, and reimburse the Unions for its fail-
ure to do so since December 4, 2004, with interest, as set
forth in the remedy section of the judge’s decision.
(f) Within 14 days after service by the Region, post at
its facility in Huntington, West Virginia, copies of the
attached notice marked “Appendix.”3 Copies of the at-
tached notice, on forms provided by the Regional Direc-
tor for Region 9, after being signed by the Respondent's
authorized representative, shall be posted by the Respon-
dent and maintained for 60 consecutive days in con-
spicuous places, including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other

3 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.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD404
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 Re-
spondent 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.
(g) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
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 bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT unlawfully terminate collective-
bargaining agreements with the Unions, International
Union of Operating Engineers, Local No. 132, AFL–CIO
and Laborers District Council, Charleston, West Vir-
ginia, Laborers Local Union No. 543, including any
automatic renewals or extensions of them, and fail to
comply with the terms and conditions of those collective-
bargaining agreements.
WE WILL NOT unlawfully withdraw recognition from
the Unions.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of your rights
guaranteed by Section 7 of the Act.
WE WILL reinstate the unlawfully terminated collec-
tive-bargaining agreements, including any automatic
renewals and extensions thereof, and comply with all
their terms and conditions retroactive to December 4,
2004.
WE WILL recognize the International Union of Operat-
ing Engineers, Local No. 132, AFL–CIO as the exclusive
collective-bargaining representative in the following
unit:
All equipment operators and pavers employed by us in
the State of West Virginia, but excluding all office
clerical employees, professional employees, guards and
supervisors as defined in the Act.
WE WILL recognize the Laborers District Council,
Charleston, West Virginia, Laborers Local Union No.
543 as the exclusive collective-bargaining representative
in the following unit:
All laborers employed by us in the State of West Vir-
ginia, but excluding all office clerical employees, pro-
fessional employees, guards and supervisors as defined
in the Act.
WE WILL make whole employees for any loss of wages
or benefits they may have suffered as a result of our fail-
ure to comply with the 2004–2006 collective-bargaining
agreements, and any automatic renewal or extension of
them, since December 4, 2004, with interest.
WE WILL deduct and remit union dues and fees as re-
quired by the checkoff provisions in the 2004–2006 col-
lective-bargaining agreements, and any automatic renew-
als or extensions of them, and reimburse the Unions for
our failure to do so since December 4, 2004, with inter-
est.
NICHOLS & WRIGHT PAVING, INC.
Mark G. Mehas, Esq., for the General Counsel.
Fred F. Holroyd, Esq., of Charleston, West Virginia, for the
Respondent.
Lawrence B. Lowry, Esq., of Huntington, West Virginia, for the
Operating Engineers.
James P. McHugh, Esq., of Charleston, West Virginia, for the
Laborers.
DECISION
STATEMENT OF THE CASE
MARTIN J. LINSKY, Administrative Law Judge. On Decem-
ber 21, 2004, the International Union of Operating Engineers,
Local No. 132, AFL–CIO (Operating Engineers) filed a charge
against Nichols & Wright Paving, Inc. (Respondent).
On February 15, 2005, Laborers’ District Council, Charles-
ton, West Virginia, Laborers’ Local Union No. 543 (the Labor-
ers) filed a charge in Case 9–CA–41729 against Respondent.
On July 27, 2005, the National Labor Relations Board (the
Board), by the Regional Director for Region 9, issued a con-
solidated complaint (the complaint) alleging that Respondent
violated Section 8(a)(1) and (5) of the National Labor Relations
Act (the Act), when on December 4, 2004, it unlawfully with-
drew its recognition of the Operating Engineers and the Labor-
ers and ceased honoring the collective-bargaining agreements it
NICHOLS & WRIGHT PAVING, INC. 405
had with the two unions which collective-bargaining agree-
ments 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.
A trial was held before me in Huntington, West Virginia, on
August 31, 2006.
Based on the entire record in this case, to include posttrial
briefs submitted by counsel for the General Counsel, counsel
for Respondent, counsel for the Operating Engineers, and coun-
sel for the Laborers as well as the testimony of the witnesses
and their demeanor I make the following
FINDINGS OF FACT
At all material times, Respondent, a corporation, with an of-
fice 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 Re-
spondent has been an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
I. THE LABOR ORGANIZATIONS INVOLVED
Respondent admits, and I find, that at all material times the
Operating Engineers and the Laborers have been labor organi-
zations within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Overview
The Constructors’ Labor Council of West Virginia, Inc. is a
multiemployer 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 Sec-
tion I of Article XII of each Agreement.
The undersigned also agrees to be bound by any sub-
sequent replacement Agreement, renewals, modifications,
amendments and addendums to the Agreements between
the aforementioned parties. [GC Exh. 8.]
On October 15, 1999, Respondent and the Operating Engi-
neers 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 Ar-
ticle XII of each Agreement.
The Undersigned also agrees to be bound by any sub-
sequent replacement Agreements, renewals, modifications,
amendments and addendums to the Agreements, between
the aforementioned parties. [GC Exh. 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 agree-
ments and highway agreements covering highway construction
and beginning in 2000 a unified heavy construction and high-
way agreement.
A series of eight agreements are in evidence as General
Counsel’s Exhibits 11(a–h).1
The latest agreement runs from December 1, 2003, to and in-
cluding 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 Agree-
ment shall remain in full force and effect from December
1, 2003 to and including November 30, 2006 and thereaf-
ter from year to year unless either party gives written no-
tice 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 Sep-
tember 30, 2006. [GC Exh. 11(h).]
The “Acceptance of Agreement” between Respondent and
the Operating Engineers makes reference in paragraph 2 to an

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. GC
Exh. 12, the exhibit, unfortunately, is barely legible.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD406
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’s Exhibits 4(a–d).2
The latest agreement runs from December 1, 2003, to and in-
cluding November 30, 2006.
Each of the four agreements contains the same language re-
garding 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 Agree-
ment shall remain in full force and effect from December
1, 2003 to and including November 30, 2006 and thereaf-
ter from year to year unless either party gives written no-
tice 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 Sep-
tember 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
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 Re-
spondent 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
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

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. GC Exh. 3.
3 All laborers employed by Respondent in the State of West Vir-
ginia, but excluding all office clerical employees, professional employ-
ees, 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.
4, 2004. We do not find a need at this time to be an em-
ployer participating in union jobs.
If you have any questions or concerns please feel free
to call me at the above number. [GC Exh. 9a.]
Also, on August 31, 2004, Respondent sent the following let-
ter 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. [GC Exh. 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 counsels
for the Laborers and the Operating Engineers that this with-
drawal of recognition of the Unions and Respondent ceasing to
honor the 2003 to 2006 collective-bargaining agreement vio-
lated Section 8(a)(1) and (5) of the Act because it was un-
timely. I agree.
Respondent incorrectly takes the position that it could termi-
nate the contract and withdraw recognition with 60 days notice
before the end of any year of the contract whether there was a
3-year contract in place or whether the contract had expired and
the old contract was being extended year to year till a new con-
tract was agreed upon by the parties.
An examination of the two “Acceptance of Agreement”
documents set forth above and an examination of the termina-
tion language for the December 1, 2003, to November 30, 2006
contracts reveal that Respondent is bound to the current con-
tract 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 Respon-
dent terminate on 60 days notice at the end of any contract year.
On the other hand if a 3-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 classifica-
tions 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’
NICHOLS & WRIGHT PAVING, INC. 407
Combined Fund and one employee to the Operating Engi-
neers 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 re-
ports to the present, again only reflecting one man, to the pre-
sent 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 repre-
sentatives 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 Ply-
male 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 or-
der 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 NLRB 682 (1970), enfd. 444 F.2d 52 (6th Cir.
1971), with interest as prescribed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).
In the event that the agreement provides for contributions to
pension and benefit funds, the Respondent shall make all con-
tractually required contributions to those funds that they have
failed to make since December 4, 2004, including any addi-
tional 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 reim-
burse 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 pre-
scribed in New Horizons for the Retarded, supra.
In addition, Respondent shall deduct and remit union dues
and fees as required by the checkoff 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. The 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 Oper-
ating Engineers and failed to comply with the terms and condi-
tions 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.
[Recommended Order omitted from publication.]