Pacific Erectors, Inc.

National Labor Relations Board - Board Decisions

Jun 8, 1981

256 N.L.R.B. 421 (N.L.R.B. 1981)

PACIFIC ERECTORS, INC. 421
Pacific Erectors, Inc. and International Association
of Bridge, Structural & Ornamental Iron-
workers, Local No. 29. Case 36-CA-3159
June 8, 1981
DECISION AND ORDER
On April II, 1978, Administrative Law Judge
Russell L. Stevens issued the attached Decision in
this proceeding. Thereafter, Respondent and the
Intervenor 1 filed exceptions and supporting briefs,
and the Charging Party filed a brief in opposition
to the exceptions by Respondent and the Interve-
nor.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, 2 and conclusions of the Administrative Law
Judge and to modify his remedy. 3 Chairman Fan-
1 Sheet Metal Workers International Association Local 16.
2 We agree with the Administrative Law Judge that Respondent vio-
lated Sec. 8(a)(5) of the Act when it unilaterally abrogated its agreement
with the Union at a time when the majority of the unit employees at the
Tualatin Jobsite were union members. The Board has held that an em-
ployer is not free to repudiate an 8(!) agreement where. as here, a maJor-
ity of the unit employees supported the union at the time of repudiation.
See, generally, NL.R.B. v. Local Union No. /03. International Association
of Bridge, Structural and Ornamental Iron Worker., AFL-C/0. et a/.
[Higdon Contracting Company], 434 U.S. 355 (1978).
In his Decision, the Administrative Law Judge stated that Respondent
should have resolved the dispute concerning its dissatisfaction with the
quality of employees referred through the hiring hall "within the confines
of the existing contract," rather than proceeding to execute a contract
with the Sheet Metal Workers. Respondent points out that the Iron-
workers contract was a short-form agreement. Thts fact, however, does
not detract from the Administrative Law Judge's proper conclusion that
Respondent was required to abide by the Ironworkers' contract. Nor is
this fact necessarily inconsistent with the Administrative Law Judge's
conclusion that Respondent should have sought to resolve its disputes
"within the confines of the exisung contract." On the contrary, we inter·
pret the Administrative Law Judge's remark in this respect as a proper
statement that Respondent, particularly in view of the contract, was re-
quired to work with the Ironworkers toward a mutually acceptable solu-
tion to the problems of concern to both of them. We do not construe that
remark as a factual statement that the contract contained a grievance
mechanism. Indeed, the Administrative Law Judge prefaced his remark
in this respect by noting that the parties' contract specifically excluded
the master agreement's grievance and arbitration provisions.
In sec. Ill of his Decision, the Administrative Law Judge inadvertently
refers to November 22, 1977, as the date Respondent commenced follow-
ing the terms and conditions of the then current master labor agreement.
However, the date should be November 22, 1974-the date Respondent
executed the short-form compliance agreement. The Decision is hereby
corrected to show November 22, 1974.
Finally, Respondent has excepted to certain credibility findmgs made
by the Administrative Law Judge. It is the Board's established policy not
to overrule an administrative law judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Prod-
ucts. Inc., 91 NLRB 544 (1950), enfd. 188 F2d 362 (3d Cir. 1951). We
have carefully examined the record and find no basis for reversing his
findings.
3 Respondent and the Intervenor have excepted to that portion of the
Administrative Law Judge's remedy making eligible for backpay the
three employees who were discharged by Respondent and the seven em-
ployees who walked otT the jobsite in apparent protest of those dis-
charges. We agree with Respondent and the Intervenor that backpay
should not be awarded to these employees. However, we do so for rea-
sons apart from those asserted by Respondent and the Intervenor. In our
256 NLRB No. 66
ning agrees that other possible jobsite locations are
outside the scope of the complaint herein. Further,
while the Chairman has previously indicated dis-
agreement with the construction of Section 8(t)
and related sections of the statute as applied
herein, 4 he notes that in NL.R.B. v. Local 103,
Iron Workers, supra, the Supreme Court held that
such a construction is a tenable one. Accordingly,
he has decided to follow that position, 6 and there-
fore joins in adopting the Administrative Law
Judge's recommended Order, as modified herein. 6
ORDER
Pursuant to Section 10{c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Pacific Erectors, Inc., Portland, Oregon, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in said recommended Order, as so
modified:
1. Delete paragraph 2(a) and substitute the fol-
lowing:
"(a) Upon request, apply to the Tualatin jobsite
the terms and conditions of the 1977-80 Master
Labor Agreement to the extent consistent with the
short-form memorandum agreement. The appropri-
ate unit is:
judgment, it appears that the seven employees engaged in an economic
strike in support of the dtscharged employees, rather than voluntarily ter-
minated their employment as contended by Respondent and Intervenor.
As there appears to be no evtdence that the seven strikers unconditional-
ly requested reinstatement and as there has been no allegation or finding
that the separation of any of the 10 employees from Respondent's employ
resulted from any unfair labor practice, we find that Respondent is not
obligated to furnish backpay to these employees.
• See his position set forth in dissenting or concurring opinions in R. J.
Smith Construction Co., Inc., 191 NLRB 693 (1971); Rullman Construction
Company. and Rullman Corporation, Joint Employer., 191 NLRB 701
( 1971 ); Dee Cee Floor Covering. Inc. and its Alter Ego and/or Successor.
Dagin-Akrab Floor Covering. Inc., 232 NLRB 421 (1977).
• See the Chairman's concurring opinion in D'Angelo & Khan, Inc.. 248
NLRB 396 (1980). The Chairman notes, however, that the language of
the Iron Workers decision suggests that a different statutory construction
is also tenable and within the Board's competence.
• In his Decision, the Administrative Law Judge noted that Respond-
ent signed a short-form compliance agreement which adopted in pertinent
part the terms of the 1974-77 Master Labor Agreement (MLA) executed
between the Oregon-Columbia Chapter, Associated General Contractors
of America, Inc., et a/., and the Union. The Administrative Law Judge
further noted that a successor MLA had been executed effective July 1,
1977, to June 30, 1980. This latter agreement is the one which Respond-
ent is currently bound and required to apply at the Tualatin jobsite. See
Ted Hicks and Associates, Inc., 232 NLRB 712 (1977); New York Typo-
graphical Union No. 6 (Clark & Fritts. Inc.), 236 NLRB 317 (1978); Phoe-
nix Air Conditioning, Inc., 231 NLRB 341 (1977). However, since the
short-form compliance agreement by its terms adopts only certain terms
and conditions of the current MLA. we shall modify the Admimstrative
Law Judge's recommended Order to provide that Respondent adhere to
the terms and conditions of the 1977-80 MLA only to the extent consist-
ent with the short-form memorandum agreement, and that it apply those
terms and conditions only to the Tualatin jobsite-the appropriate unit
herein.
422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All employees of the Employer engaged in
construction work at the Sports Complex
(Tualatin) jobsite in Beaverton, Oregon, ex-
cluding office clerical employees, professional
employees, guards, and supervisors as defined
in the Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL NOT refuse to recognize and bar-
gain with, or honor any labor agreement
reached with, International Association of
Bridge, Structural & Ornamental Ironworkers,
Local No. 29, as the exclusive representative
of our employees in an appropriate unit, con-
cerning rates of pay, wages, hours of employ-
ment, and other conditions of employment, at
any time when that labor organization is enti-
tled to recognition at any of our construction
projects.
WE WILL NOT assist or give support to
Sheet Metal Workers International Association
Local 16 by recognizing or entering into or
enforcing collective-bargaining agreements
with that labor organization as the exclusive
representative of employees on any of our
projects, when International Association of
Bridge, Structural & Ornamental Ironworkers,
Local No. 29, or any other labor organization,
is the lawfully recognized bargaining repre-
sentative of such employees or holds a valid
collective-bargaining agreement covering such
employees; or by otherwise recognizing the
above-mentioned Sheet Metal Workers Inter-
national Association Local 16 when such
Union is not entitled to recognition under the
Act.
WE WILL, upon request, apply to the Tuala-
tin jobsite the terms and conditions of the
1977-80 Master Labor Agreement to the
extent consistent with the short-form memo-
randum agreement. The appropriate unit is:
All employees of the Employer engaged in
construction work at the Sports Complex
(Tualatin) jobsite in Beaverton, Oregon, ex-
cluding office clerical employees, profession-
al employees, guards, and supervisors as de-
fined in the Act.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of their rights to self-organization,
to form, join, or assist labor organizations, to
bargain collectively through representatives of
their own choosing, to engage in concerted ac-
tivities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain
from any and all such activities except to the
extent that such rights may be affected by an
agreement requiring membership in a labor or-
ganization as a condition of employment, as
authorized by the Act.
PACIFIC ERECTORS, INC.
DECISION
STATEMENT OF THE CASE
RussELL L. STEVENS, Administrative Law Judge: This
matter was heard in Portland, Oregon, on February 23,
1978. 1 The complaint, issued November 30, is based on a
charge filed August 26 by International Association of
Bridge, Structural & Ornamental Ironworkers, Local No.
29. The complaint alleges that Pacific Erectors, Inc. (Re-
spondent), violated Section 8(a)(5), (2), and (I) of the
National Labor Relations Act (Act).
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally, and to file briefs. Briefs,
which have been carefully considered, were filed on
behalf of the General Counsel, Respondent, Charging
Party, and Intervenor. 2
Upon the entire record, and from my observation of
the witnesses and their demeanor, I make the following:
1 All dates hereinafter are within 1977, unless stated to be otherwise.
2 Sheet Metal Workers International Association Local 16 (Sheet
Metal Workers) intervened at the hearing, upon motion of its counsel,
without objection, granted by the Administrative Law Judge. At the
hearing, Respondent amended its answer to deny, rather than to admit,
the allegations of par. 5 of the complaint relating to the appropriate unit.
PACIFIC ERECTORS, INC 423
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is, and at all times material herein has
been, an Oregon corporation with an office and place of
business in Portland, Oregon, where it is engaged in the
construction industry as a roofing contractor. During the
past 12 months, which period is representative of all
times material herein, Respondent performed services
valued in excess of $50,000 for employers and contrac-
tors who are engaged in interstate commerce.
I find that Respondent is, and at all times material
herein has been, an employer engaged in commerce and
in operations affecting commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Association of Bridge, Structural & Or-
namental Ironworkers, Local No. 29, is, and at all times
material herein has been, a labor organization within the
meaning of Section 2(5) of the Act.
Ill. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background3
Respondent is a corporation that has been in business
since November 1974. Richard Abrams (Abrams) is the
corporate secretary and one of the stockholders, and his
wife is the corporate president. Abrams is the general
manager of the business, and visits the jobsites each day.
He has been a member of the Union for many years, and
is thoroughly familiar with the trade.
Respondent has had a collective-bargaining agreement
with the Union since November 22, 1974. The agreement
is a "short form" type, which adopts by reference, a
master agreement between the Oregon-Columbia Chap-
ter, Associated General Contractors of America, Inc.,
and certain other employer groups, and the Union, effec-
tive 7-1-74 through 6-30-77. The master agreement pro-
vides, inter alia, for a method of termination. The former
master agreement was followed by a similar agreement
effective 7-1-77 through 6-30-80. Neither the master
agreement nor the short-form agreement was terminated
at any time by either party involved herein.
Since November 22, 1977, Respondent has followed
the terms and conditions of the aforesaid short-form and
master agreements, and has employed only union mem-
bers on all its jobs. Respondent did not contract with, or
employ any members of, the Sheet Metal Workers at any
time prior to August 18, 1977.
Respondent's principal business is the installation of
sheet metal roofs, but it also installs sheet metal siding on
buildings. On June 1, 1977, Respondent commenced in-
stallation of sheet metal roof on a tennis court building
within a sports complex in Tualatin, Oregon. The roof
primarily consisted of a bottom layer of sheet metal upon
which was laid a pad of insulation material affixed in
place by subgirts, with a top layer of sheet metal then
3 Most facts essential to resolution of the issues are not m diSpute. This
background summary is based on uncontradicted and credlled testimony
of witnesses for the General Counsel and Respondent.
affixed to the building. 4 Respondent's initial crew con-
sisted entirely of ironworkers transferred from another of
Respondent's jobs. Thereafter, until August 18, all of Re-
spondent's employees 5 on the tennis court job were iron-
workers.
Because of very hot weather during the summer, an
agreement was reached between Respondent and its em-
ployees on the tennis court job, whereby the employees
worked from 6 a.m. to 2:30 p.m., with a half hour for
lunch and no overtime payment. By the end of the work-
day on August 17, insulation had been laid on the bottom
sheet metal, but it had not been tied down with subgirts.
During the evening or night of August 17 a wind came
up, and blew the insulation to the ground. When Abrams
came to the site on August 18 he saw what had hap-
pened, and laid off three employees. The remaining em-
ployees refused to work because of what they thought
was an injustice to the three who were laid off. During
an interval 6 when neither the job foreman nor Abrams
was with the employees, they installed the insulation and
subgirts. Respondent's work on the building then was ap-
proximately 40 percent complete. Abrams paid the em-
ployees off, and telephoned a representative of the Sheet
Metal Workers, which union for some time had been
trying to obtain work for its employees, with Respond-
ent. After their conversation, Abrams went to see the
Sheet Metal Workers representative, and the two of
them executed a collective-bargaining agreement on that
same day, August 18. Leroy Worley (Worley), the
Union's finar.cial secretary-treasurer and business repre-
sentative, heard from employees about the incident at the
tennis court, and about the Sheet Metal Workers agree-
ment with Respondent, and on August 19 he talked with
Abrams on the telephone, to protest Respondent's ac-
tions. The situation was left unchanged, and Worley then
called a representative of the Sheet Metal Workers, who
verified that an agreement had been signed with Re-
spondent.
Since August 18 Respondent has not requested any
employees from the Union. In September, four iron-
worker employees were used by Respondent, and, there-
after, only one such employee, a supervisor, was used.
Otherwise, all Respondent's employees since August 18
have been sheetmetal workers.
B. Contentions of the Parties
The General Counsel contends that Respondent's col-
lective-bargaining agreement with the Union covers all
Respondent's employees at the Tualatin jobsite, that Re-
spondent has not repudiated the agreement, that the
Sheet Metal Workers agreement is not a prehire con-
tract, and that Respondent's execution of an agreement
with the Sheet Metal Workers violated Section 8(a)(5)
and (2) of the Act.
• A separate contract for the Siding was awarded to another company.
• At one time Respondent had a nonunion supervisor on the job for a
limited period of time.
• There IS a confl1ct in testimony relative to the cause of this interval.
Yeager\ test1mony that it occurred when the foreman, at the employees'
request. went to see Abrams about writmg the remaining employees up
as layoffs, rather than qu1ts, in order that they could obtain unemploy-
ment msurance, !Iii credited
424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent contends that the Union's employees were
unable or unwilling to perform work at the Tualatin job-
site and that the Union refused to accept Respondent's
offer to use a composite crew on the Tualatin job, there-
by justifying the Sheet Metal Workers contract.
C. Discussion
The fact that Respondent has not repudiated its agree-
ment with the Union is shown by Respondent's hire of
ironworker employees for jobs other than the one in-
volved herein, after August 18. Further, Respondent
continues at the present, to employ an ironworker super-
visor and to make payments on his behalf to the Union's
trust funds.
The fact that the Union had majority status on the
Tualatin jobsite at all times until August 18 is shown by
the record evidence, and is not in issue.
It is not entirely clear that the parties intended that the
Ironworkers contract would be a prehire agreement, but
actions of the parties after they signed the agreement and
exclusion in the short-form agreement of the basic con-
tract's provisions for settling grievances indicate that the
contract, in its effect, was a prehire agreement. It is
found that the contract was for prehire purposes, within
the purview of Section 8(f) of the Act, and that the Iron-
workers had majority status on all jobs performed by
Respondent from date of the contract until August 18,
1977. The question then is presented as to whether or
not Respondent breached its agreement on August 18.
The fact is not disputed, that Respondent executed an
agreement with the Sheet Metal Workers on August 18,
without first attempting to obtain an alternate crew from
the Ironworkers. The merits of the dispute on August 18
are not in issue and were not fully litigated, but it ap-
pears that Respondent's termination of the work crew
that day possibly was not justified. However, a finding
on that point is not necessary, and is not made. The
matter is important only to the extent that it is raised in
argument by Respondent and the Intervenor, with the
contention that the crew abandoned the work, or quit
their jobs. It is argued that such abandonment, or quits,
justified Respondent's execution of an agreement with
the Sheet Metal Workers. That argument is not accepted.
The dispute at the worksite was between Respondent
and its employees. The basic contract then existing be-
tween Respondent and the Union had provisions relating
to settlement of disputes, but the short-form agreement
states that such provisions are not binding upon the par-
ties. That, however, is of no weight in determining
whether or not Respondent breached the agreement
without legal cause. It is clear that a dispute arose on
August 18, resulting in the discharge of three Iron-
workers employees. The remainder of the Ironworkers
employees then asked for reinstatement of the three dis-
chargees, or, in the alternative, for a layoff of them-
selves. However, Abrams did not treat the matter as a
dispute between Respondent and the employees. Rather
than attempt to resolve the problem through the Union,
Abrams immediately sought out the Sheet Metal Work-
ers and signed a contract with them.
Respondent now attempts to separate the rights and
duties of the employees from those of the Union, and
such cannot, as a legal matter, be done. The employees
and the Union were entitled to orderly resolution of the
work dispute within the confines of the existing con-
tract. 7
Respondent extends its argument, by contending that,
for several years, there has been argument in the indus-
try as to whether installation of metal roofing and siding
is work to be assigned to Ironworkers, or to Sheet Metal
Workers. Respondent argues that the Union was notified
on August 19, after the Sheet Metal Workers agreement
was signed, that it was willing to use Ironworkers on the
job, as composite crews with Sheet Metal Workers. This
argument is not pursuasive. Assuming the existence of a
jurisdictional dispute generally known in the industry,
such a dispute cannot be settled in the arbitrary manner
herein exhibited by Respondent. Its existing, valid con-
tract already had settled the matter, at least so far as the
Tualatin job was concerned. Further, the offer to use
composite crews is a weak reed, since Respondent con-
tends that it has been dissatisfied with the work of Iron-
workers employees for a long period of time. Respond-
ent now contends, on the one hand, that Ironworkers are
unsatisfactory, yet on the other hand, that it will accept
them, provided Sheet Metal Workers also are on the job.
The Sheet Metal Workers contract cannot be consid-
ered as a prehire contract for the Tualatin job since the
job was approximately 35 percent or 40 percent com-
plete when the agreement was signed on August 18. At
the time the Sheet Metal Workers contract was signed,
there were no Sheet Metal Workers on the job, thus the
Sheet Metal Workers did not then enjoy majority status.
That status was created later, through the illegal actions
of Respondent.
Respondent primarily is engaged in the construction
industry, and the Ironworkers are construction employ-
ees. As discussed above, Respondent's contract with the
Union appears to be a prehire agreement, but whether it
is or not, it was a valid, existing contract as of August
18. If it is considered to be a prehire agreement, it rip-
ened into a fully enforceable agreement at the outset of
the Tualatin job, when only Ironworkers employees
were hired. 8 The majority held by the Ironworkers at
the time is not challenged. If it is not considered to be a
prehire agreement, it is clear that the contract was hon-
ored and accepted by Respondent at all times prior to
August 18, and thus was fully enforceable. In either case,
Respondent's actions in breaching the contract without
7 Respondent also contends that some Ironworkers employees were
not satisfactory, and that Respondent was not successful in obtaining res-
olution of employee problems through the Union's representatives. That
contention primarily is based on the general and conclusionary testimony
of Abrams, who is not credited. Abrams' testimony is contrary to the tes-
timony of Worley, who is credited. However, assuming, a'!fuendo, that
some of the Union's employees and its representatives were not satisfac-
tory from Respondent's point of view, that fact would not justify Re-
spondent's unilateral and precipitous breach of its contract with the
Union.
8 Ruttmann Construction. Company, and Ruttmann. Corparation, Joint
Employers, 191 NLRB 701 (1971).
PACIFIC ERECTORS, INC. 425
prior notice to, or bargaining with, the Union constituted
a violation of Section 8(a)(5) and (I) of the Act. 9
The agreement Respondent signed with the Sheet
Metal Workers covered the same work, at the same site,
then within the existing agreement between Respondent
and the Ironworkers. The result was a change of work
force, and a change of bargaining representative for that
work force, without bargaining with, and over the pro-
test of, the Ironworkers. The contract was solicited, en-
tered into, and signed by and at the request of Abrams.
Such action assisted and gave support to the Sheet Metal
Workers in violation of Section 8(a)(2) and (I) of the
Act.Io
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE
UPON COMMERCE
The activities of Respondent, set forth in section III,
above, occurring in connection with the operations de-
scribed in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor dis-
putes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Pursuant to Section IO(c) of the Act, as amended, it is
recommended that Respondent be ordered to cease and
desist from engaging in the unfair labor practices found,
and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The complaint alleges, and it is found, that the appro-
priate unit involved herein is:
All employees of the Employer engaged in con-
struction work at the Sports Complex jobsite in
Beaverton, Oregon excluding office clerical em-
ployees, professional employees, guards and super-
visors as defined in the Act.
The complaint also alleges representation status of the
Union on the basis of Section 8(f) of the contract. The
General Counsel presented and argued the case on the
basis of the Tualatin job alone, and seeks in his brief
backpay for employees at only the Tualatin job. The
remedy herein, thus, will be limited to the Tualatin job-
site.
It has been found that Respondent unlawfully with-
drew recognition from the Union as the exclusive bar-
gaining representative of employees on the Tualatin
sports complex job, and refused to honor its bargaining
contract with the Union, which was effective at all times
relative to said job. It also has been found that Respond-
ent unlawfully assisted the Sheet Metal Workers by rec-
ognizing it as the exclusive representative of employees
on the Tualatin job. As discussed supra, the dispute at
the worksite on August 18 was not fully litigated. Fur-
ther, the complaint contains no 8(a)(l) or (3) allegations.
• Davis Industries. Inc.: Stag Construction, Inc.: and Add Miles, Inc., 232
NLRB 946 (1977): Mountain Stare.< Construction Company. Inc., 207
NLRB 139 (1'173).
10 Davis Industries. Inc .. supra: Mountain Stares Construction Co .. Inc ..
supra.
Thus, there is no issue relative to reinstatements. Howev-
er, the Ironworkers contract should have been applied
until the end of the Tualatin job, which would have re-
quired dispatch to the job of employees then on the Iron-
workers out-of-work list, when job opportunities were
available. Those opportunities, however, were given to
Sheet Metal Workers. Therefore, it is recommended that
Respondent be ordered to pay backpay to all such out-
of-work Ironworkers employees who were supplanted by
Sheet Metal employees on the Tualatin job for the
period of that job, between August 19 and the date each
such Ironworkers employee was dispatched to another
job, less any interim earnings.
It is further recommended that the Sheet Metal Work-
ers contract be declared null and void, and that the Iron-
workers contract be applied to all construction projects
performed or to be performed by Respondent during the
effective period of the aforesaid Ironworkers contract,
unless and until a valid bargaining agreement is entered
into with another labor organization covering Respond-
ent's employees.
As requested by the General Counsel, it is not recom-
mended that any backpay be awarded for any job other
than the Tualatin job discussed herein.
CONCLUSIONS OF LAW
1. Respondent, Pacific Erectors, Inc., is an employer
primarily engaged in the construction industry, and in
commerce within the meaning of Sections 2(6) and (7)
and 8(f) of the Act.
2. International Association of Bridge, Structural &
Ornamental Ironworkers, Local No. 29, and Sheet Metal
Workers International Association Local 16 are labor or-
ganizations within the meaning of Sections 2(5) and 8(f)
of the Act.
3. The following unit is, and at all times material
herein has been, an appropriate unit for the purpose of
collective bargaining within the meaning of Section 9(b)
of the Act:
All employees of the Employer engaged in con-
struction work at the Sports Complex jobsite in
Beaverton (Tualatin), Oregon excluding office cleri-
cal employees, professional employees, guards and
supervisors as defined in the Act.
4. At all times material herein, a majority of the em-
ployees in the bargaining unit described above in para-
graph 5 have been represented by the Union for the pur-
pose of collective bargaining and, by virtue of Sections
8(f) and 9(a) of the Act, the Union has been, and now is,
the exclusive representative of all employees in said unit
for the purpose of collective bargaining with respect to
rates of pay, hours of employment, and other terms and
conditions of employment.
5. By withdrawing recognition from the Ironworkers
as the exclusive representative of the employees in the
aforesaid appropriate unit, and by breaching its collec-
tive-bargaining agreement with the Ironworkers and re-
fusing to honor the conditions of employment therein
provided before the completion of the Tualatin project
without consulting and bargaining with the Ironworkers,
426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent engaged in unfair labor practices in violation
of Section 8(a)(5) and (1) of the Act.
6. By recognizing the Sheet Metal Workers as exclu-
sive representative of the Tualatin job employees, by in-
cluding those employees in an agreement entered into
with the Sheet Metal Workers, and by enforcing said
agreement with respect to the Tualatin job employees,
all events occurring while Respondent was engaged in
work at Tualatin and while the Ironworkers were the ex-
clusive bargaining representative of such employees pur-
suant to a valid collective-bargaining contract, Respond-
ent engaged in unfair labor practices in violation of Sec-
tion 8(a)(2) and (I) of the Act.
7. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section IO(c)
of the Act, as amended, I hereby issue the following rec-
ommended:
ORDER 11
The Respondent, Pacific Erectors, Inc., Portland,
Oregon, its offi:ers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to recognize and bargain with, or honor
any labor agreement reached with, International Associ-
ation of Bridge, Structural & Ornamental Ironworkers,
Local No. 29, as the exclusive representative of employ-
ees in an appropriate unit, concerning rates of pay,
wages, hours of employment, and other conditions of
employment, at any time when that labor organization is
entitled to recognition on any of Respondent's construc-
tion projects.
(b) Assisting or giving support to Sheet Metal Work-
ers International Association Local 16, by recognizing,
or entering into or enforcing collective-bargaining agree-
ments with, that labor organization as the exclusive rep-
resentative of employees on any of Respondents' projects
when the above-mentioned Ironworkers or any other
labor organization is the lawfully designated bargaining
representative of such employees or holds a valid collec-
11 In the event no exceptions are tiled as provided by Sec. 102 46 of
the Rules and Regulations of the National Labor Relations Board. the
findings. conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, he adopted by the Board and
become its findings, conclusions, and Order, and all ObJections thereto
shall be deemed waived for all purposes.
live-bargaining agreement covering such employees; or
by otherwise recognizing or contracting with the above-
mentioned Sheet Metal Workers when such union is not
entitled to recognition under the Act.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
right to self-organization, to form, join, or assist labor or-
ganizations, to bargain collectively through representa-
tives of their own choosing, to engage in concerted ac-
tivities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any and all
such activities, except to the extent that such rights may
be affected by an agreement requiring membership in a
labor organization as a condition of employment, as au-
thorized by the Act.
2. Take the following affirmative action, which is nec-
essary to effectuate the policies of the Act:
(a) Make whole all Ironworkers employees for any
loss of earnings they may have suffered by reason of the
discrimination against them, as set forth in the section of
this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary or useful in analyzing the amount of
backpay due under the terms of this recommended
Order.
(c) Post at its offices in Portland, Oregon, the attached
notice marked "Appendix." 12 Copies of said notice, on
forms provided by the Regional Director for Region 19,
after being duly signed by Respondent's authorized rep-
resentatives, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, where
notices to employees are customarily posted. Reasonable
steps shall be taken to insure that said notices are not al-
tered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 9, in writ-
ing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
1
' In the event that thiS Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relattons Board."