Remodeling by Oltmanns, Inc.

National Labor Relations Board - Board Decisions

Sep 17, 1982

263 N.L.R.B. 1152 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Remodeling by Oltmanns, Inc. and Carpenters Local
Union No. 400, affiliated with United Brother-
hood of Carpenters and Joiners of America,
AFL-CIO and Omaha Building Contractors
Employers Association, Party to the Contract.
Case 17-CA-9947
September 17, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On March 23, 1982, Administrative Law Judge
Burton Litvack issued the attached Decision in this
proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,'
and conclusions of the Administrative Law Judge
and to adopt his recommended Order, as modified
herein. 2
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,
Remodeling by Oltmanns, Inc., Omaha, Nebraska,
its officers, agents, successors, and assigns, shall
take the action set forth in the said recommended
Order, as so modified:
1. Insert the following as paragraph 2(f) and re-
letter the following paragraphs accordingly:
"(f) Expunge from its records and files any and
all references to the unlawful discharges of em-
ployees Charles Hartline, Robert Cantwell, Bill
Meeves, Virgil Guerra, and Harley Sedivey, and
I The Respondent has excepted to certain credibility findings 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 credi-
bility unless the clear preponderance of all of the relev ant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950). enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
2 We shall modify the recommended Order by incorporating a provi-
sion requiring Respondent to expunge from all its records and files any
references to the unlawful discharges of employees Hartline, Cantwell,
Meeves, Guerra, and Sedivey, and to notify said employees, in writing,
that Respondent has taken such action and that evidence of the unlawful
discharges will not be used as a basis for future personnel action against
them. See Sterling Sugars, Inc., 261 NLRB 472 (1982).
In accordance with his dissent in Olympic Medical Corporation, 250
NLRB 146 (1980), Member Jenkins would award interest on the backpay
due based on the formula set forth therein.
notify said employees, in writing, that this has been
done and that evidence of the unlawful discharges
will not be used as a basis for future personnel
action against them."
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.
WE WILL NOT refuse to recognize and bar-
gain collectively, upon request, concerning
rates of pay, wages, hours, and other terms
and conditions of employment with Carpenters
Local Union No. 400, affiliated with United
Brotherhood of Carpenters and Joiners of
America, AFL-CIO, herein called the Union,
as the exclusive representative for purposes of
collective bargaining for employees in the fol-
lowing appropriate unit:
All journeymen and apprentice carpenters,
carpenter foremen, carpenter general fore-
men, carpenters working on Creosote or
similar type material, carpenter sawmen,
carpenter welders, pile drivers, pile driver
foremen, millwrights, millwright foremen,
and millwright general foremen employed
by us at our jobsites and cabinet shop; ex-
cluding all office clerical and professional
employees, guards, and supervisors as de-
fined by the Act.
WE WILL NOT discourage membership in, or
activities on behalf of, the Union by causing
the discharge of employees who are members
of the Union.
WE WILL NOT fail or refuse to make pay-
ments to the Union's health, welfare, pension,
and other trust funds as we were required to
do prior to June 4, 1980.
WE WILL NOT unilaterally, without notice to
and bargaining with the Union, alter for the
aforementioned employees any of the terms
and conditions of employment in effect on
June 6, 1980.
WE WILL NOT interrogate prospective em-
ployees as to their membership in the Union.
263 NLRB No. 169
1152
REMODELING BY OLTMANNS, INC
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them in
Section 7 of the Act.
WE WILL recognize and, upon request, bar-
gain with the above-named labor organization
as the exclusive representative of all the em-
ployees in the above appropriate unit with re-
spect to rates of pay, wages, hours, and other
terms and conditions of employment, and, if an
understanding is reached, embody such under-
standing in a signed agreement.
WE WILL, upon the Union's request, revoke
any or all unilateral changes made effective by
us on and after June 9, 1980, with regard to
the wages, hours, and terms and conditions of
employment of all employees in the above-de-
scribed unit.
WE WILL give retroactive effect to all the
terms and conditions of employment in effect
on June 6, 1980, until such time that we and
the Union execute a signed contract or reach
good-faith impasse or the Union refuses to bar-
gain in good faith.
WE WILL offer to employees Charles Hart-
line, Robert Cantwell, Bill Meeves, Virgil
Guerra, and Harley Sedivey immediate and
full reinstatement to their respective former
positions of employment without loss of se-
niority or privileges, discharging, if necessary,
other employees who may have been hired or
assigned to perform their functions; or, if their
former respective positions do not exist, to
substantially equivalent positions without prej-
udice to their seniority or other rights and
privileges.
WE WILL make whole the employees speci-
fied in the above paragraph and all unit em-
ployees hired on or after June 9, 1980, for any
losses of pay, plus interest, each may have suf-
fered, respectively, either as a result of the dis-
crimination against them or because of our
failure to apply to them the terms and condi-
tions of employment in effect on June 6, 1980.
No part of the Board's Order shall be con-
strued as forcing or requiring us to subtract or
withdraw any benefit or benefits heretofore
granted to unit employees commencing June 9,
1980.
WE WILL expunge from our records and
files any and all references to the unlawful dis-
charges of employees Charles Hartline, Robert
Cantwell, Bill Meeves, Virgil Guerra, and
Harley Sedivey, and WE WILL notify these
employees, in writing, that this has been done
and that evidence of the unlawful discharges
will not be used as a basis for future personnel
action against them,
WE WILL pay to the appropriate union trust
funds the contributions required as of June 4,
1980, to the extent that such contributions
have not been made or that the employees had
not otherwise been made whole for their ensu-
ing medical and other expenses, and continue
such payments until we negotiate in good faith
with the Union to an agreement or to good-
faith impasse or until the Union refuses to bar-
gain.
REMODELING BY OLTMANNS, INC.
DECISION
STATEMENT OF THE CASE
BURTON LITVACK, Administrative Law Judge: This
matter was heard before me in Omaha, Nebraska, on
May 12 and August 12, 1981. On November 19, 1980,
the Regional Director for Region 17 of the National
Labor Relations Board, herein called the Board, issued a
complaint and notice of hearing based on original and
first amended unfair labor practice charges filed on Oc-
tober 2 and November 3, 1980, respectively, by Carpen-
ters Local Union No. 400, affiliated with United Brother-
hood of Carpenters and Joiners of America, AFL-CIO,
herein called the Union, alleging that Remodeling by
Oltmanns, Inc., herein called Respondent, engaged in
acts and conduct violative of Section 8(a)(1), (3), and (5)
of the National Labor Relations Act, as amended, herein
called the Act. Respondent filed an answer, denying the
commission of any unfair labor practices. All parties
have been afforded a full opportunity to introduce rele-
vant evidence, to examine and cross-examine witnesses,
and to file post-hearing briefs which have been carefully
examined. Based on the entire record, the post-hearing
briefs,' and my observation of the demeanor of the wit-
nesses, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent, a State of Nebraska corporation, is en-
gaged in the building and construction industry with a
facility located in Omaha, Nebraska. In the course and
conduct of its business operations, Respondent annually
purchases goods and services valued in excess of $50,000
from sources located within the State of Nebraska,
which sources, in turn, purchased said goods and serv-
ices directly from suppliers located outside the State of
Nebraska. Respondent admits, and I find, that it is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
i Although he did not file a post-hearing brief, counsel for the Charg-
ing Party did provide me with several court decisions which, it is con-
tended, support the legal theories underlying the allegations of the com-
plaint. Said cases have been carefully considered
1153
DECISIONS OF NATIONAL LABOR RELATIONS BOARI)
11. LABOR ORGANIZATION
Respondent admits, and I find, that the Union is now,
and at all times material herein has been, a labor organi-
zation within the meaning of Section 2(5) of the Act.
III. ISSUES
I. By entering into a document, dated June 30, 1971,
did Respondent bind itself to the 1971-74 collective-bar-
gaining agreement between the Union and Omaha Build-
ing Contractors Employers Association and all successor
agreements and/or amendments thereto, including the
existing 1980-83 collective-bargaining agreement?
2. In or about June 1980, did Respondent repudiate
said existing collective-bargaining agreement in violation
of Section 8(a)(1) and (5) of the Act?
3. In or about June 1980, did Respondent withdraw
recognition from the Union as the collective-bargaining
representative of certain of its carpenter employees in
violation of Section 8(a)(1) and (5) of the Act?
4. In or about June 1980, did Respondenlt unilaterally,
without first bargaining with the Union, change its em-
ployees' terms and conditions of employment in violation
of Section 8(a)(1) and (5) of the Act?
5. On or about June 30, 1980, did Respondent con-
structively discharge employees Robert Cantwell, Bill
Meeves, Charles Hartline, Virgil Guerra, and Harley Se-
divey in violation of Section 8(a)(l) and (3) of the Act?
h. In or about June 1980, did Respondent interrogate
prospective employees as to their membership in the
Union in violation of Section 8(a)(1) of the Act?
IV. THE ALI.IEGED LINFAIR l.ABOR PRACTICES
A. The Facts
The record discloses that since, at least, 1937, the
IUnion 2 and the Omaha Building Contractors Employers
Association, an organization comprising approximately
30 employers who are engaged in the building and con-
struction industry in the State of Nebraska and existing,
in part, for the purpose of representing its
employer,/members in collective bargaining with various
labor organizations, herein called the Association, have
been signatories to successive collective-bargaining
agreements, covering employees in a unit encompassing
journeymen and apprentice carpenters, carpenter fore-
men, carpenter general foremen, carpenters working on
Creosote or similar type material, carpenter sawmen, car-
penter welders, piledriver foremen, millwrights, mill-
wright foremen, and millwright general foremen. The
current collective-bargaining agreement between the par-
ties was executed shortly after a month-long strike on
August 4, 1980, and is effective until May 31, 1983. The
record further discloses that the Union is also signatory
to approximately 175 separate contracts, te med inde-
pendent agreements, with other building and construc-
2 Prior to 1979 the Union was known as Omaha Carpenters District
Council In that vear as a result of internal changes and requests from its
membership, the Union's nanae was changed to that which appears in the
caption herein. Moreover, all contracts between the Union and Omaha
Building Contractors Enmployers Association were redrafted to reflect the
new name of the Union. As far as can be determined from the record,
rther than its name. the Unlionr as an entity remained unchanged.
tion industry employers. With regard to these, based
upon what can be deciphered from the somewhat confus-
ing testimony of Eugene Shoehigh, the Union's general
representative, at some point during contract renewal ne-
gotiations with the Association, the Union presents these
independent agreements to the 175 non-Association
member contractors. Acting as temporary agreements
pending the completion of the Union-Association negoti-
ations, these contracts are utilized "because we wanted
to have a means for the employers to go ahead and
work" without the omnipresent threat of a strike and
either bind the signatory contractor to the terms of the
expired Association contract and, ultimately, to those of
the successor thereto or act as complete agreements
without reference to other documents. In the latter case,
according to Shoehigh, said contracts differ from the As-
sociation contracts only with respect to wages, and,
upon completion of the Union-Association negotiations,
the wage rates of the temporary independent agreements
are modified to reflect those set forth in the Association
collective-bargaining agreement. :t
The record establishes that Respondent is a contractor
in the building and construction industry in the State of
Nebraska, engaged in the remodeling of both existing
commercial and residential structures; that it employs
mostly carpenters who work at the sites of the jobs and
at an Omaha cabinet shop; and that most of said employ-
ees are long-time workers for Respondent (Hugo Olt-
manns states that "I do not have much turnover ... ").
Oltmanns is the president of the corporation, and Henry
Espersen is Respondent's superintendent in charge of the
cabinet shop.4 The record further establishes that prior
to June 1971, although not a signatory to any type of
collective-bargaining agreement with the Union and not
a member of the Association, Respondent, nevertheless,
employed carpenters who were members of the Union
and compensated them at the wage rates set forth in the
existing Association agreements." According to Hugo
Oltmanns, Respondent complied with the wage provi-
sions to the extent that it once paid to its employees ret-
roactive wages totaling in excess of $8,000, resulting
from an agreement between the Union and the Associ-
ation.
On May 31, 1971, the existing Association contract ex-
pired. Negotiations between the parties resulted in im-
passe, and the Union's member/employees struck. Olt-
manns testified that, despite the strike against the
employer/members of the Association, his employees
continued to work. However. one day in June, he re-
ceived a telephone call from Art Deseck, a union busi-
ness agent, who told Oltmanns that in order to avert a
3 Prior to modification, the independent agreement wage rates corre-
spond to the Union's last offer during negoianiops vsith the Association.
Despite Shoehigh's statement that said wage rates are eventually modi-
fied to correspond to those which the Association employer/members
agree to pay, analysis of G.C. Exh. 10, an independent agreement which
was presented to Respondent ini June 1980, discloises that ;t contains no
such provision signifying modification or the established wage rates.
4 In its answer, Respondent admitted that both individuals are supervi-
sors within the meaning of the Act.
s There is no record evidence regarding vhether, prior icr June 1971,
Respondent complied with any other terms of the Association agree-
ments, including payments to the fringe benefi: trust tunds
1154
REMODELING BY OLTMANNS, INC.
strike by his employees, Oltmanns would have to execute
an independent agreement. The latter told Deseck to
bring a copy of this agreement to Respondent's office
and they would "go through it and . . . I would either
sign it or not sign it." Within the next few days, Deseck
came to Respondent's office, and he and Oltmanns dis-
cussed the independent agreement provision by provi-
sion. Angered over his prior payment of retroactive
wages, Oltmanns' only objection to the contract's terms
was to a provision, requiring the signatory to pay the
contractual wage rates retroactive to the effective date
of the new agreement. After consulting with other union
officials, Deseck agreed to expurgate the clause from the
agreement. As to the duration of the contract, Deseck
said it "was for the time of the [Association agreement]."
This independent agreement, which was dated June 30,
1971, and executed by Oltmanns and Deseck, without
the deleted language, reads as follows:
We the undersigned, agree to work subsequent to
June 1, 1971, under the following agreement:
(I) We will continue to maintain current working
conditions, fringe benefits and wages which were in
effect prior to June 1, 1971, as per contract with the
Omaha Building Contractors Employers Associ-
ation or to maintain the same provisions as per con-
tract with the Heavy Contractors Association, Inc.,
which were in effect prior to January 1, 1971.
(2) We further agree to be bound by the terms of
negotiated agreements with both or either Contrac-
tors Associations during the terms of such Agree-
ment.
t* * * *
(4) We further agree that the undersigned union
may take any or all economic recourse to assure the
payment of such wages, fringe benefits and cost
conditions of such negotiated agreements.
Oltmanns' testimony as to the foregoing was uncontro-
verted.
Subsequent to Oltmanns execution of the above-de-
scribed document, the Union and the Association
reached agreement on the terms of a successor collec-
tive-bargaining agreement, effective until May 31, 1974.
Thereafter, the parties agreed on two successive con-
tracts, the first, effective from June 1, 1974, until May
31, 1977, and the next, effective from June 1, 1977, until
May 31, 1980. Hugo Oltmanns testified, without contra-
diction, that, between July 1971 and June 1980, he had
no contacts, verbal or otherwise, with representatives of
the Union regarding the aforementioned agreements 6 and
that, in fact, not only had he never been presented with
copies of these three successive contracts but also he was
unaware of the terms and conditions of employment con-
tained therein. Notwithstanding this lack of knowledge
and asserting that he "voluntarily" acted merely upon
6 Oltmanns testified that a former emplo)ee, Lewis R. Moody, was
elected the business manager of the Union and that he and Moody speak
from time to time. Oltmanns denied that said conversations have anything
to do with union business or Respondent's relationship to the Uion.
the word of his carpenter employees "because [they] had
a union card," Oltmanns admitted that, during this time
period, Respondent complied with several, if not all, 7 of
the economic provisions contained in the agreements.
Thus, the record reveals that Respondent paid its carpen-
ter employees at the contractual wage rates and that said
individuals received all fringe benefits, established by the
contracts. 8 With regard to the latter, Oltmanns stated
that the Union sent monthly forms to Respondent and
notified it as to any changes in the amounts due to the
various funds. 9 Besides these economic terms, the record
also reveals compliance by Respondent noneconomic
provisions of the successive Association collective-bar-
gaining agreements. In line with the contractual recogni-
tion of the Union as the "sole collective bargaining
agency" for carpenter employees, Charles Hartline, who
had been employed by Respondent as a carpenter since
1965 or 1966, testified, without contradiction, that all
carpenters who were hired by Respondent from July
1971 until June 1980 were members of the Union. Fur-
ther, on at least one occasion during this time period,
Respondent utilized the nonexclusive hiring hall provi-
sion of the contracts, hiring several individuals, who had
been referred by the Union, for a hotel remodeling
project. Also, Respondent's carpenters' work shift was
identical to that set forth in the Association contracts,
and they received the same standard holidays. Finally,
assertedly based on the fact that "the majority of [his]
people . . . were being paid as per the union's rates"
rather than his use of union people exclusively, Oltmanns
admitted that he considered Respondent to be a union
contractor.
The June 1, 1977, through May 31, 1980, collective-
bargaining agreement between the Association and the
Union expired on the latter date, and, with negotiations
at an apparent impasse, the carpenter employees of the
Association member/employers engaged in a concerted
work stoppage against their respective employers. De-
spite this, some of Respondent's employees continued to
work and no picketing occurred at Respondent's jobsites
or at the Omaha cabinet shop. On June 4, according to
employee Hartline, he was told by Henry Espersen that
Respondent had not yet executed any form of temporary
contract. Accordingly, the next day Hartline went to the
Uhion's office and spoke to Eugene Shoehigh, asking the
latter whether there was any sort of contract so that Re-
' In uncontroverted testimony, Oltmanns denied ever having paid con-
tractually mandated travel expenses or "show up" wages to carpenter
employees. With regard to compensation for overtime work, the succes-
sive Association contracts provide for double time pay for such. Employ-
ee Robert Cantwell testified that he worked overtime on one occasion
and that he was compensated at a double time rate for his work. Olt-
manns testified that overtime work was extremely rare but that when Re-
spondent's carpenters did work such hours, they received time-and-a-half
or straight time for such.
Concerning fringe benefit payments, there is no dispute that each
month, during the time period July 1971 through June 1980, Respondent
contributed on behalf of each of its carpenter employees specific sums of
money to various construction industrywide trust funds, including a
health and welfare fund, a pension fund, a holiday and vacation fund, and
a training and education fund.
9 Oltmanns denied personally being aware of changes in the fringe
benefit amounts, claiming that Respondent's bookkeeper was responsible
for such.
1155
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent's employees could continue to work. Shoehigh
gave Hartline a complete collective-bargaining agree-
ment, General Counsel's Exhibit 10, which, according to
Shoehigh was a copy of the contract that the Union was
seeking from the Association. Hartline testified that
Shoehigh told him that Respondent's employees could
work only if Oltmanns executed this contract, that Re-
spondent would have to pay the wage rates set forth
therein, and that said rates would ultimately be adjusted
to conform to whatever rates were established in the
new Association agreement.
Because an employee had informed him that Respond-
ent's carpenter employees would honor the Union's
strike against the employer/members of the Association
and cease working, Oltmanns called a meeting with all
his employees for Friday, June 6, at 7:30. a.m., in Re-
spondent's office at the cabinet shop facility. There is
little dispute as to what was said at this meeting. Thus,
Oltmanns testified that he began the meeting, stating that
he did not belong to the Association and that inasmuch
as there were no pickets at his jobsites, he believed the
carpenters could work. Next, Oltmanns said that, not-
withstanding a strike, because "twice I got hooked in
that and 1 just could not afford it," he would not pay
retroactive wages to the employees. Employee Hartline
then raised the matter of rumors that Oltmanns was
going to make Respondent a nonunion contractor. Ac-
cording to Oltmanns, he replied that, due to costs, he
had contemplated such a move for 2 or 3 years and that
whenever he reached a final decision, he would inform
the employees. He continued, saying that there were no
pickets and that he could not understand why the men
were not going to work. Hartline responded that he had
visited the union offices, had been given a contract, and
had been instructed that the employees could not work if
Oltmanns did not sign it. Thereupon, Hartline gave Olt-
manns the contract, which Shoehigh had given him the
day before. Oltmanns glanced at it and replied that the
Union had not, as yet, requested that he sign anything;
that as there were no pickets, he believed the carpenters
could work; and that if they did not, they should hand in
their tools.
Hartline testified that Oltmanns began the meeting by
stating that he could not afford to pay what the Union
was demanding from the Association employer/members
and that he would not pay retroactive wages even if the
employees worked through the strike. Hartline then
raised the matter of the contract which had been given
to him by Shoehigh, stating that Oltmanns "had to sign
for us to work during the strike." The latter glanced
through the contract and said that the carpenters could
still work as nobody was picketing the job. According to
Hartline, he replied that the contract had to be executed
and Respondent had to pay the wage rates therein before
the men would work. Oltmanns responded that if "we
wasn't [sic] going to go to work, we might as well turn
in all our tools and that he was thinking of going non-
union and then when he made up his mind he would let
us know which way he was going to go." Carpenter Bill
Meeves recalled that Oltmanns began the meeting, saying
that Respondent had a great deal of work and he hoped
that the men would continue to work and that because
he had done so in the past and such had cost him "too
much money," he was not going to sign any agreement
with the Union.' ° Next, Oltmanns said that he assumed
the employees were aware of rumors that Respondent
would become nonunion but that "he didn't know just
quite what he was going to do yet." Thereupon, Hartline
gave a copy of an agreement to Oltmanns; the latter
glanced through it without comment. Then, Oltmanns
announced that he was going to be in his office, that the
employees could decide what they wanted to do, and
that if they struck, they should leave their tools in the
shop.
Carpenter Robert Cantwell testified that Oltmanns told
the assembled employees that he wanted them to work,
that he had much work to do, and that he felt it was per-
missible for the men to work. Next, Oltmanns mentioned
a rumor that Respondent would go nonunion; he said
that while he had thought about doing this. he had not
yet decided to do so. According to Cantwell, Hartline
then stated that the employees could not work unless
Oltmanns signed a union contract: Oltmanns replied
"that he wasn't going to sign any kind of an agreement,
that he didn't need to, that we could go to work without
an agreement." Oltmanns concluded the meeting, saying
that while he had considered going nonunion, "he would
consider it further if we didn't go back to work." An-
other carpenter, Virgil Guerra, recalled that Oltmanns
said that he was not then going nonunion but had consid-
ered such based on "the costs and everything." He fur-
ther recalled that Hartline mentioned a union document,
which he had with him, saying that if Oltmanns signed it
and agreed to the terms therein, the carpenter employees
would be able to remain at work. Oltmanns declined to
sign the document. As to the result of negotiations be-
tween the Association and the Union, Oltmanns said that
he did not want to pay retroactive wages inasmuch as
"in prior years . . . he said that he got stung by that
method." The meeting ended with Oltmanns stating
"that whether he goes union or nonunion was going to
have a lot to do on how the strike turns out .... he
just said it was up to us." At the conclusion of the meet-
ing, after Oltmanns left the room, the employees dis-
cussed whether to honor the Union's strike and cease
working. Eventually, carpenter employees Hartline,
Cantwell, Meeves, Guerra, and Harley Sedivey chose to
honor the strike and withheld their services from Re-
spondent until its conclusion." Further, Respondent em-
ployed three other carpenters, Roland Dean Weiderick,
Jim Cross, and Jack Pearson, as of the day of this em-
ployee meeting; they continued to work during the
period of the strike and beyond. 12
10 Meeves assumed that the reason for this refusal was based on the
matter of retroactive wages.
I' Hartline, Cantwell, Meeves, Guerra, and Sedivey are listed in Re-
spondent's payroll records as having quit work on June 4, 1980. Another
carpenter employee, Darrell Benford, is also listed as having quit on that
date. The record is silent as to his union membership anid as to whether
he also honored the strike and withheld his s:rvices until the conclusion
thereof
"2 By their own admissions, Pearson and Weiderick were union mem-
bers as of June 6. The former testified that, at some point prior to the
hearing, he resigned said membership. Weiderick testified that he decided
Continued
1156
REMODELING BY OLTMANNS, INC.
Hugo Oltmanns testified that, based on what Hartline
said at the Friday meeting with regard to working with-
out a signed contract, on the following Monday (June 9),
he (Oltmanns) telephoned the Union's office and spoke
to Shoehigh. "I asked him, how come you told my men
they couldn't go to work . . . I do not even have an
agreement with the Union, although I have been paying
the union wage." Shoehigh replied, "I think you are
right about the agreement, but . .. I did not tell [Hart-
line] they could not go to work.... I told [him] that if
there was a picket, they could not cross the line; if there
was no picket, they had to use their own discretion."
Shoehigh then said he had an agreement for Respondent
which Oltmanns would have to sign. Oltmanns respond-
ed that Shoehigh should bring the document to Olt-
manns and "we will look at it and go through that . . .
because without reading it, I would not sign anything."
Shoehigh also testified as to this telephone conversation,
placing it on June 4 or 5. "During the conversation Mr.
Oltmanns asked me why his people were working, and I
believe I told him . . . that we were on a general strike,
that his people . . . were members of [the Union], and it
was up to them if they wanted to work . . . or if they
did not." Oltmanns asked about "another contract," and
Shoehigh mentioned that the Union had an independent
agreement "and if he would sign this . . . that this
would allow him to work." Oltmanns asked for a copy,
and Shoehigh agreed to have one sent to Respondent's
office. 1 3
Immediately after the telephone conversation, Olt-
manns sent the following letter to Shoehigh:
Dear Gene:
This is to confirm our telephone conversation
this morning as to the following:
Remodeling by Oltmanns, Inc. has no current
contract with [the Union] and that you did not tell
my men they could not work. You told them that
you were on strike and if there were no pickets,
they should use their own judgment.
Also after the telephone conversation, a union member
delivered a contract, identical to that which Shoehigh
gave to Hartline, to Respondent's office. Subsequently,
Oltmanns studied but did not sign the document.
The record establishes that, a few days after the June 6
employee meeting, Respondent became an
employer/member of Associated Builders and Contrac-
tors, Inc., herein called the ABC, a nonunion trade asso-
ciation of persons and companies in the building and
construction industry. By doing so, Oltmanins considered
Respondent no longer as being a union shop but rather a
"merit shop," wherein, according to Oltmanns, "I was
hiring [employees] for so much an hour until I found out
to resign his membership in the Union when he returned to work on June
9. However, the record is unclear as to the date of his resignation and, in
any event, he disclosed nothing of his intentions to Oltmanns: "1 just
more or less took it for granted he would know. No. I don't think I ever
did say yes or no." As to Jim Cross, who left Respondent's employ on or
about June 25, Oltmanns testified that he also was a union member.
Is Although their versions are corroborative as to several aspects, I
credit that of Oltmanns, believing that such appears to be more logical in
the context of the sequence of events herein.
what they could do. If they felt they were worth more
after they worked for me, there was my door, come in
and see me. If I did not think they were, I would say no
and if I did I would give them more money." Besides
changing its operational philosophy, Respondent institut-
ed several other changes in its employees' terms and con-
ditions of employment. Initially, during the week of June
12, employees Pearson and Weiderick received pay raises
from $11.95 per hour to S12.80 per hour, approximately
an 8-percent increase in pay. Next, subsequent to June 4,
Respondent ceased payments to the Union's fringe bene-
fit funds, instituted a new vacation policy, and contract-
ed with a different health insurance carrier. Further, in
mid-June, Respondent commenced paying newly hired
carpenter employees between $11 and $11.50 per hour, a
wage rate lower than what carpenters received prior to
the June 6 work stoppage. Moreover, in instituting its
merit shop system, Respondent attempted to guard
against hiring union members. Thus, Oltmanns admitted
interrogating at least two individuals, who were hired as
strike replacements in late June, as to their union mem-
bership. Finally, Oltmanns admitted that he instituted all
the foregoing changes without notifying or bargaining
with the Union, stating that subsequent to his June 9
conversation with Shoehigh, he had no contacts with
representatives of the Union.
The Union and the Association reached agreement on
the terms of a new contract, effective until May 31, 1983,
during the last weekend in June, and the strike ended.
The record discloses that, pursuant thereto, early in the
morning of Monday, June 30, striking employees
Cantwell, Guerra, Meeves, and Sediveyt4 each went to
Respondent's cabinet shop facility to ascertain his em-
ployment status with Respondent;15 they collectively
met with Oltmanns in the latter's office. According to
Bill Meeves, "I asked him if we had a job, and he said
. . . he'd like to keep us working, but . .. . he could only
afford to pay $11.50 an hour, and he said as far as bene-
fits go he didn't have anything in mind yet, but down the
road he would check on some benefits, and we didn't
need a union card." At that point, according to Meeves,
he and Cantwell shook hands with Oltmanns, said it had
been nice working for Respondent, and left the office.' 8
Cantwell testified that one of the four employees asked if
the four could return to work, and Oltmanns replied,
"You can go to work if you want . . . to work for
$11.50 an hour .... " Oltmanns then informed the em-
ployees that he had joined a "non-union outfit," ABC,
"and to go to work we would have to drop our union
cards. We couldn't belong to the union and work for
14 Charles Hartline did not go to Respondent's office that day inas-
much as he was awaiting notification from Oltmanns as to the latter's de-
cision whether or not to remain a union contractor. Unknown to him,
Oltmanns already had made his decision and was in the process of imple-
menting it.
'5 Late in June, Respondent hired four carpenter employees-Dennis
Turnbull, Jeff Henry, Mike Hardin, and James Chessier. According to
Oltmanns, each employee was informed that Respondent was a "merit
shop."
iS According to Meeves, when Oltmanns said the former did not need
a union card, "I assumed that we was [sic] going to go non-union, and
you didn't have, to have a union card, and I wasn't going to let mine
drop"
1157
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
him." Corroborating Meeves, Cantwell further testified
that at that point he and Meeves shook hands with Olt-
manns, said they could not do what Oltmanns wanted,
and left the office. Guerra, who testified that during the
period of the strike he had heard rumors that Respond-
ent had changed its status to that of a nonunion contrac-
tor, stated that Oltmanns began the meeting, saying "that
he was in the process of withdrawing from the union and
that we were welcome to stay with him.... The new
rate would be $11.50 an hour and the benefit package
. . . would be . . . through him . . . his own insurance
. . . and not through the union." At that point, accord-
ing to Guerra, Meeves and Cantwell shook hands with
Oltmanns and left the office. Thereafter, Oltmanns en-
gaged in a conversation with Guerra and Sedivey about
the job. Both employees said they wanted to stay with
the Union and then left the office. During cross-examina-
tion, Guerra quoted Oltmanns as saying that Respondent
had become a member of the ABC, that such was a non-
union organization, and that, as to whether the four em-
ployees could retain their union cards, "He told us that
he did not care if we carried a union card or not, that it
was up to us."
Oltmanns also testified with regard to this June 30
meeting. At first he denied having told the returning
strikers that Respondent had become nonunion. Howev-
er, upon being confronted with his pretrial affidavit, Olt-
manns changed his answer and admitted informing the
employees that Respondent was no longer a union shop.
According to Oltmanns, he also specifically informed
them that Respondent had become a merit shop, that new
employees would be paid $ii to $ii.50 per hour, and
that Respondent had implemented new vacation and
health insurance policies. I credit the testimony of
Guerra, as corroborated by Meeves and Cantwell, as to
what was said at this meeting. 7 Thus, I found his ac-
count to be the most detailed and logical. In this regard,
I do not credit Oltmanns' assertion that he told the em-
ployees that new employees would receive between $11
and $11.50 per hour, noting that each employee witness
recalled that Oltmanns referred to this wage rate as his
new one. ' 8
That afternoon, according to Charles Hartline, Bill
Meeves telephoned him and reported that there had been
a meeting earlier that day in Oltmanns' office, that the
latter had offered them $11.50 per hour and insurance
benefits at a later date, and that Oltmanns said the re-
turning strikers could not retain their union cards or
belong to the Union any longer. Testifying that "as far as
I knew [Respondent] went non-union, and I wouldn't
work for a non-union company," Hartline did not con-
tact Respondent with regard to his employment status
subsequent to June 30. That Hartline's conclusion seemed
17 Specifically noting the contradictory testimony of Meeves and
Cantwell concerning their union cards, I rely upon Guerra's testimony
that Oltmanns "did not care" what the employees did about them.
18 The crediting of a portion of Oltmanns' testimony and the discredit-
ing of another are required under the circumstances of this case and do
not require rejection of his entire testimony. Cafje Giovanni, Inc. d/b/la
Giovanni's, 259 NLRB 233 (1981): Carolina Canners, Inc., 213 NLRB 37
(1974). "Nothing is more common than to believe some and not all of
what a witness says." Edwards lransportation Company, 187 NLRB 3, 4
(1970), enfd. 437 F.2d 502 (5th Cir. 1971).
justifiable to him is clear from a conversation between
him and Henry Espersen later that summer. Thus, Hart-
line quoted Espersen as saying, "He had just mentioned
that he was going to drop his card, that Mr. Oltmanns
had gone non-union." Espersen was not called as a wit-
ness by Respondent.
To date, Respondent has not abided by the terms of
the existing Association contract.
B. Analysis
The complaint alleges that Respondent engaged in acts
and conduct violative of Section 8(a)(l), (3), and (5) of
the Act by refusing to abide by the 1980-83 collective-
bargaining agreement between the Union and the Associ-
ation; by withdrawing recognition from the Union as the
collective-bargaining representative of its carpenter em-
ployees; by unilaterally, without notification or bargain-
ing, changing the wage rates and other terms and condi-
tions of employment of its carpenter employees; and by
constructively discharging employees Cantwell, Meeves,
Guerra, Sedivey, and Hartline. In support, counsel for
the General Counsel argues that, by the terms of its 1971
contract, Respondent bound itself to all successors there-
to, including the existing Association collective-bargain-
ing agreement and alternatively that by adopting the
terms of all Association contracts between 1974 and
1980, Respondent bound itself to said agreements and,
thus, to the existing one. Next, counsel argues that Re-
spondent recognized the Union as the collective- bar-
gaining representative of its carpenter employees in 1971,
that the Union had attained majority status, and that by
proclaiming itself to be a nonunion contractor, Respond-
ent unlawfully repudiated the Union's status. As a corol-
lary to this last point, counsel contends that Respondent
was under an obligation to bargain prior to instituting its
admitted June changes in employees' terms and condi-
tions of employment. It is further argued that by making
"it impossible for employees to continue their employ-
ment and to retain union membership," Respondent un-
lawfully and constructively discharged employees
Cantwell, Meeves, Sedivey, Guerra, and Hartline. Final-
ly, counsel contends that Oltmanns' admitted interroga-
tion of Respondent's newly hired strike replacements
with regard to the union membership was violative of
the Act. Contrary to the General Counsel, Respondent
contends that it has not bound itself to the existing Asso-
ciation contract; that the Union was never recognized in
1971 as the majority representative of its carpenter em-
ployees by Respondent; that, therefore, no bargaining
obligation existed in June 1980; that Respondent did not
constructively discharge employees on June 30; and that
inasmuch as the admitted June employee interrogations
were isolated, such were not coercive and, thus, not un-
lawful.
Analysis of the continuing effect, if any, of the June
30, 1971, agreement between Respondent and the Union
must, at the outset, focus upon exactly what the Union
sought to accomplish by such a document. In this
regard, I note that the first paragraph binds the signatory
contractor to continue to abide by the terms and condi-
tions of employment of the expired Association collec-
1158
REMODELING BY OLTMANNS, INC.
tive-bargaining agreement and that the second paragraph
binds said contractor to the result of negotiations be-
tween the Association and the Union during the afore-
mentioned interim period-presumably a successor col-
lective-bargaining agreement. There are no terms and
conditions of employment set forth in the document, and
Shoehigh testified that such is utilized during the pend-
ency of a strike to ensure that the signatory employer's
employees continue to work. Accordingly, this particular
agreement must have been meant by the Union to have
the same effect as standard "truly interim, temporary
agreements"-of the type approved by the Supreme
Court in Charles D. Bonanno Linen Service, Inc. v.
N.L.R.B., 454 U.S. 404 (1982)-by which "both the
union and the employer executing the interim agreement
[are] bound by any settlement resulting from multiem-
ployer bargaining." Counsel for the General Counsel in-
terprets the document as having far greater significance
and effect, terming it a "memorandum agreement" simi-
lar to those considered by the Board in New York Typo-
graphical Union No. 6 (Clark & Fritts, Inc.), 236 NLRB
317 (1978); Ted Hicks and Associates, Inc., 232 NLRB 712
(1977); and Phoenix Air Conditioning, Inc., 231 NLRB
341 (1977), asserting that the June 30, 1971, agreement
bound Respondent to "the results of all future negotia-
tions between [the Union and the Association]" inasmuch
as said agreement "did not contain any express provi-
sions regarding its termination." I do not agree.
Initially, rather than the limiting language contained in
the document herein involved, the memorandum agree-
ments, in each of the relied-upon cases, bind the contrac-
tor to an existing multiemployer collective-bargaining
agreement and to "all succeeding [contracts] negotiated
between the union and the contractors association."
(Phoenix Air Conditioning, supra); to "'any modifications,
extensions, or renewals' of that contract" (Ted Hicks,
supra); and to "any amendments, modifications, supple-
ments, renewals, and extensions thereof." (Clark & Fritts,
Inc., supra at 318.) In the view of the Board, this type of
language has the effect of placing the signatory contrac-
tor on notice that its contractual relationship with a
union is a continuing one, governed by future modifica-
tions of an existing or about-to-be negotiated multiem-
ployer agreement. Ted Hicks, supra at 713. Such cannot
be inferred from the language of the agreement herein
which is conspicuously silent as to subsequent Associ-
ation contracts, and it was uncontroverted that, when he
executed the June 30, 1971, agreement, Oltmanns was in-
formed by union official Deseck that he (Oltmanns) was
only agreeing to be bound by the next Association agree-
ment and that the duration of the document "was for the
time of the [Association agreement]." Secondly, in Ted
Hicks, supra, the Board concluded that, absent express
termination1 9 dates in the memorandum agreement at
issue, those of the multiemployer contract must be incor-
porated into the former document. Accordingly, as the
parties to the multiemployer contract had reached agree-
ment on a successor thereto, as neither the respondent
nor the union gave the requisite notice to terminate the
19 In Ted Hicks supra, the Board explained that "termination" does
not signify the cessation of relations between the parties. Rather. it marks
the start of negotiations for a new successor agreement Id. at 714.
memorandum agreement and negotiate a separate one,
and as the respondent had, in the memorandum agree-
ment, signified its intent to establish a continuing con-
tractual relationship with the union governed by the re-
sults of multiemployer bargaining, the respondent therein
was held to be bound to the existing multiemployer con-
tract. The fact that the memorandum agreement con-
tained no express termination dates holds no significance
beyond the foregoing. Herein, there is no basis for con-
cluding that the Union and Respondent entered into any
sort of contractual relationship intended to last beyond
the expiration date of the next Association contract-
May 31, 1974. Even assuming the termination dates of
that agreement should be incorporated into the interim
agreement between the parties, neither the Union nor
Respondent gave the requisite notice to open new nego-
tiations; thus, their written contractual relationship ex-
pired on May 31, 1974. Based on the foregoing, as I be-
lieve the June 1971 agreement was meant only to be a
temporary, interim agreement and not to signify any con-
tinuing contractual relationship, I reject the contention
of the General Counsel that its terms somehow bound
Respondent to the 1980-83 Association contract and
shall recommend that paragraph 10(a) of the complaint
be dismissed.20
While I do not believe that any continuing written
contractual relationship beyond May 31, 1974, was effec-
tuated, I do believe that a continuing bargaining relation-
ship resulted from the June 30, 1971, agreement between
Respondent and the Union. Thus, I further believe that,
20 Counsel for the General Counsel alternatively argues that Respond-
ent's conduct subsequent to May 31, 1974, of, in effect, "adopting" the
terms of successive successor Association contracts signified its intent to
be bound by said agreements and, thus, bound Respondent to accept the
terms of the 1980-83 Association collective-bargaining agreement. In so
contending, counsel relies upon numerous Board cases, including Fitzpa-
trick Electric Inc., 242 NLRB 739 (1979); Haberman Construction Compa-
ny, 236 NLRB 79 (1978), enfd. 618 F. 2d 288 (5th Cir. 1980), modified 641
F.2d 351 (5th Cir. 1981); Yin James Plastering Company, 226 NLRB 125
(1976); and Marquis Elevator Company. Inc., 217 NLRB 461 (1975). 1
note, initially, that whether an employer has "adopted" a collective-bar-
gaining agreement is purely an issue of fact, and each case in this area of
the law must be decided upon its own merts. Haberman Construction.
supra at 85. However, assuming arguendo the validity of the General
Counsel's assertion vis-a.vis Respondent's conduct with regard to the As-
sociation's 1974 to 1977 and 1977 to 1980 contracts, I do not agree with
the conclusion that Respondent, therefore, bound itself to the 1980-83
agreement. Thus, analysis of each of the cited cases and others discloses
that the Board is typically concerned with an existing agreement with
which an employer initially complies but subsequently repudiates prior to
expiration In such circumstances, the Board examines the extent of the
respondent's compliance, and if such signifies that the contract's terms
have been adopted by said employer, the Board concludes that said re-
spondent has bound itself to the contract. Thus, the Board orders the em-
ployer to abide by the terms of the agreement.
Utilizing this theory, the Board has further concluded that a bargaining
obligation exists as to future contracts but has never held that an employ-
er, which has adopted an existing agreement, thereby binds itself to the
specific terms of a future contract about which it has not bargained and
with which it has not complied. In fact, the Board has made clear that an
employer "need not honor any such agreement unless it agrees to do so
after bargaining with the Union." Haberman Construction, supra at 79, fn.
2. Herein, there is no evidence of any bargaining between the parties, and
no evidence that Respondent complied with any term of the 1980-83 As-
sociation contract. Accordingly, I do not find that it has, in any way,
adopted or manifested any intent to be bound by said agreement, and I
cannot order such. Gregory's Inc., 242 NLRB 644 (1979) (the Board's
order therein): Habermoan Construction. supra.
1159
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by entering into said document, Respondent recog-
nized-and continued to recognize-the Union as the
bargaining representative of its carpenter employees, that
subsequent to this initial recognition, the Union achieved
a status as the majority representative of said employees,
and that by instituting its admitted unilateral changes in
the terms and conditions of employment of the carpenter
employees and by withdrawing recognition from the
Union as the majority collective-bargaining representa-
tive of these individuals, Respondent engaged in acts and
conduct violative of Section 8(a)(l) and (5) of the Act.
At the outset, there is no record evidence that the Union
was the majority representative of Respondent's carpen-
ter employees at the time Respondent entered into the
June 30, 1971, contract. However, Respondent concedes
that it is an employer in the building and construction in-
dustry, and Section 8(f) of the Act 2 ' makes it lawful for
construction unions to request and obtain recognition
without first establishing majority status. Albuquerque In-
sulation Contractor, Inc., Employer-Petitioner, 256 NLRB
61 (1981). Respondent contends that the June 30, 1971,
document was not a recognition agreement, pointing out
that there is no reference therein to a grant of recogni-
tion by Respondent to the Union. While counsel for Re-
spondent is correct that the word "recognize" does not
appear in the agreement, Respondent bound itself to con-
tinue to maintain the existing working conditions estab-
lished by the most recent Association contract and to
accept the "terms" of the next Association contract. Ar-
ticle l(a) of said agreements grants recognition to the
Union as the "sole bargaining agency" for carpenter em-
ployees. Moreover, Hugo Oltmanns impressed me as
being an extremely intelligent individual and a "hard-
nosed" businessman, who would not enter into an agree-
ment without knowledge as to what he was agreeing or
the potential consequences flowing therefrom. Accord-
ingly, I conclude that Oltmanns knew, full well, that by
entering into the June 30, 1971, contract, he was extend-
ing recognition to the Union as the collective-bargaining
representative of his carpenter employees.
It is clear Board law that when a union, originally rec-
ognized under Section 8(f), subsequently achieves major-
ity status among employees who make up a permanent,
stable work force, the employer is then under the statu-
tory duty to recognize and bargain with the Union as the
employees' exclusive representative. Construction Erec-
tors, Inc., 252 NLRB 319 (1980); Precision Striping, Inc.,
245 NLRB 169 (1979), reversed on other grounds 642
F.2d 1144 (9th Cir. 1981). Herein, there can be no doubt
21 Sec R(f) carved out an exception to the general rule requiring ma-
jority status as a prerequisite to recoginition. Specifically, Sec. 8(f) pro-
vides that:
It shall not be an unfair labor practice for an employer en-
gaged primarily in the building and construction industry to make an
agreement covering employees engaged (or who. upon their employ-
ment. will be engaged) in the building and construction industry
with a labor organization of which building and construction em-
ployees are members . .. because (1I) the majority status of such
labor organization has not been established under the provisions of
section 9 of this Act prior to lie making of such agreement .. Pro-
vided further, That an) agreement which would be invalid, but for
clause (1) of this subsection, shall not be a bar to a petition filed pur-
suant to section '1(c) or 9(e).
that subsequent to June 30, 1971, the Union obtained ma-
jority status among Respondent's carpenters to the extent
that, in mid-June 1980, at least eight, if not all nine, of
said employees were members of the Union. Thus, in the
time period July 1, 1971, through June 6, 1980, Respond-
ent, on at least one occasion, utilized the Union's nonex-
clusive hiring hall in order to hire carpenters and it was
uncontroverted that all other carpenters, hired during
this period, were members of the Union. Moreover, of
the nine carpenters employed by Respondent as of June
6, 1980, Charles Hartline, Virgil Guerra, Robert
Cantwell, Bill Meeves, Harley Sedivey, Roland Dean
Weiderick, Jack Pearson, and Jim Cross were members
of the Union. Finally, Hugo Oltmanns testified that his
carpenters were longtime employees, several having been
employed by Respondent for many years-"I do not
have much turnover." In these circumstances, I find that
subsequent to June 30, 1971, and certainly by June 6,
1980, the Union had achieved majority status in a stable
unit of Respondent's carpenter employees and that, at
least, by June 6, 1980, the tenents of Section 9(a) of the
Act applied to the bargaining relationship between the
Union and Respondent. Carrothers Construction Company.
Inc., 258 NLRB 175 (1981); Construction Erectors, Inc.,
supra.
As to the aforementioned bargaining relationship, the
record warrants the conclusion that, despite the absence
of a signed collective-bargaining agreement subsequent
to May 31, 1974, such a relationship existed and flour-
ished until June 1980. Thus, during this 6-year period,
Respondent honored most of the economic and several
of the noneconomic provisions of the Union's successive
collective-bargaining agreements with the Association,
despite the fact that Hugo Oltmanns never saw copies of
these agreements. This continued adherence to contrac-
tual terms demonstrates "the existence of a continuing
relationship between Respondent and the Union." Gre-
gory's Inc., supra at 646; Manor Research, Inc., 165 NLRB
909 (1967). Also, at all times, Respondent considered
itself to be a union contractor. In this regard, I note that
Respondent never disavowed its bargaining relationship
with the Union and I do not accept Oltmanns' less than
candid explanation-that he meant only that Respondent
paid the Union's prevailing wages and fringe benefits and
nothing more.22 Finally, the fact that Oltmanns had no
contact with union officials subsequent to June 30, 1971,
is of little significance inasmuch as, by Oltmanns' own
admission, Respondent honored virtually all consequen-
tial provisions of the Union's contracts with the Associ-
ation and instituted all requested changes in fringe bene-
fits contributions. In these circumstances, there really
·2 I base this conclusion on two factors: the fact that Respondent
joined the ABC in mid-June 1980 and the fact that Oltmanns interrogated
prospective strike replacements in late June as to their union membership.
With regard to the first, if Oltmanns truly equated being a ur'ion contrac-
tor only with paying union economics, Respondent might well have insti-
tuted the admitted unilateral changes without joining a nonunion contrac-
tors association. As to the latter, not only do I believe that such consti-
tute violations of Sec. 8(aXI) of the Act, and so find, but also that the
interrogations reflect the efforts by Oltmanns to ensure that the Union
would eventually lose its majority status among Respondent's carpenters.
1160
REMODELING BY OLTMANNS, INC.
was no need for contact between the parties to effectuate
the bargaining relationship.
To reiterate the substance of the foregoing discussion,
I have concluded that, at least by June 6, 1980, the
Union was the majority representative, for purposes of
collective bargaining, of Respondent's carpenter employ-
ees. On that day Oltmanns met with these individuals
and informed them that he saw no reason why they were
required to honor the ongoing strike against the
employer/members of the Association, that he would not
be able to afford portions of the settlement reached by
the Union and the Association, and that he was in the
process of determining whether Respondent would
revert to the status of a nonunion contractor. While
there is no record evidence of their precise reasons for
doing so, subsequent to this meeting five carpenter em-
ployees (Cantwell, Hartline, Meeves, Guerra, and Sedi-
vey) chose to withhold their services from Respondent
until the conclusion of the Association strike. Within the
next few days Respondent repudiated the status of the
Union, withdrawing recognition from it and converting
in status to, in Oltmanns' words, a "merit shop" and,
without notice to or bargaining with the Union, chang-
ing the terms and conditions of employment of its car-
penters by reducing the wage rates of newly hired em-
ployees, increasing the wage rates of incumbent carpen-
ters, and instituting new insurance and vacation plans. As
to the former, inasmuch as at the time the Union repre-
sented a majority of the employees in a stable and per-
manent unit of Respondent's carpenter employees, Re-
spondent was under a statutory duty to recognize the
Union's status as such and was not free to withdraw rec-
ognition from it. Hageman Underground Construction;
Hageman Construction Company, Inc.; Hageman Engineer-
ing, Inc., 253 NLRB 60, 63 (1980). With regard to the
uncontroverted and admitted unilateral changes, the
record establishes that prior to June 1980, Respondent,
pursuant to its "continuing relationship" with the Union,
voluntarily complied with and/or adopted not only the
wage rate and fringe benefits provisions but also signifi-
cant noneconomic terms, including, for all practical pur-
poses, the recognition clause of the successive Associ-
ation agreements and that, in this manner, became bound
to the terms and conditions of employment established
by said contracts as if it had negotiated such indepen-
dently with the Union. Gregory's Inc., supra at 646; Fitz-
patrick Electric, supra.2 3 Clearly, then, Respondent was
23 Respondent relies on Noriega Industries Incorporated d/b/a Pioneer
Printers. 201 NLRB 900 (1973). as support for its argument that Respond-
ent never manifested any intent to, and did not, adopt the terms of the
1974-77 and 1977-80 Association contracts with the Union so as to be
bound by them. I do not agree and believe Pioneer Printers is distinguish-
able from the instant case. Thus, in the former, the Board was concerned
with the rights of a successor employer, particularly its right not to
honor a predecessor's collective-bargaining agreement with a union.
Also, the Board was concerned with whether the successor employer had
properly withdrawn from a multiemployer bargaining group. Viewed in
the foregoing posture, Pioneer Printers bears no similarity to the instant
situation. Respondent further argues that, in following the Union's wage
rates from 1974 to June 1980, Respondent was doing no more than what
it did prior to 1971. However, there is no record evidence that Respond-
ent did more than pay prevailing wages in the years prior to 1971. In the
subsequent period, Respondent's adherence to the Union's terms and con-
ditions of employment was substantially more pronounced.
under the same duties and obligations as any employer
bound to a collective-bargaining agreement with a labor
organization and, upon expiration of the most recent As-
sociation contract and at a time when no impasse existed
between the Union and Respondent, 24 the latter could
not, without giving notice and an opportunity to the
Union to bargain, unilaterally rescind, modify, or alter
the existing terms and conditions of employment of the
carpenter employees. Henry Cauthorne. an Individual, t/a
Cauthorne Trucking, 256 NLRB 721 (1981); Southern
Newspapers, Inc., d/b/a The Baytown Sun, 255 NLRB 154
(1981); Dial Tuxedos, Inc., 250 NLRB 476 (1980). There-
fore, by repudiating its relationship with the Union and
becoming a "merit shop" and by instituting the afore-
mentioned unilateral changes, Respondent engaged in
conduct violative of Section 8(a)(1) and (5) of the Act.
The General Counsel next alleges that, notwithstand-
ing that employees Cantwell, Meeves, Guerra, and Sedi-
vey seemingly "quit" on June 30, they were actually
constructively discharged by Respondent in violation of
Section 8(a)(1) and (3) of the Act. Crediting the testimo-
ny of Guerra, as corroborated by Cantwell and Meeves,
I conclude that during his meeting with the four return-
ing strikers that morning Oltmanns informed them that
he was in the process of withdrawing recognition from
the Union; that Respondent had become a member of the
ABC, a nonunion contractors association; that if they re-
turned to work, each would earn 511.50 per hour;25 and
that he was instituting his own insurance plan rather than
using the Union's health insurance plan. Moreover, Olt-
manns himself admitted informing the employees that
Respondent had become nonunion during their absences.
Faced with the foregoing changes in their terms and
conditions of employment, the four strikers chose not to
return to work. In analyzing whether said employees
were, in fact, constructively discharged by Respondent,
it must be borne in mind that a constructive discharge is
not a discharge at all but a quit which the Board treats
as a discharge because of the circumstances which sur-
round it. ComGeneral Corporation, 251 NLRB 653 (1980).
Normally, such situations arise in two factual contexts.
In the first, with knowledge of its employees' participa-
tion in union or other protected concerted activities, an
employer harasses the individual to the point that his job
conditions become intolerable and, as a result, the em-
ployee quits. In such circumstances, a nexus between the
working conditions and the individual's protected activi-
ties must be shown and the imposed burdens must be in-
tended to cause an altering of the worker's working con-
ditions. If both factors are present, a constructive dis-
charge will be found. Palby Lingerie. Inc. and Argus Lin-
2' Although not specifically argued by Respondent, the fact that the
Association and the Union may have reached a good-faith impasse in
their negotiations was not controlling upon the relationship between the
Union and Respondent. Thus, inasmuch as it was never an Association
member, no impasse existed between Respondent and the Union. More-
over, the former's relationship with the Union was a separate one, based
on the 1971 contract.
" I am satisfied that, while Oltmanns may not have actually been
paying his journeyman carpenters at an S11.50-per-hour wage rate, his
fabrication was calculated to dissuade the strikers from returning to
work. As with the interrogations of the strike replacements, I believe Re-
spondent was attempting to rid itself of union employees.
1161
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gerie Corp., 252 NI.RB 176 (1980); Maywood, Inc., 251
NLRB 979 (1980); Lyman Steel Company, 249 NLRB 296
(1980); General Meats, Inc., 247 NLRB 1036 (1980); Crys-
tal Princeton Refining Company, 222 NLRB 1068 (1976).
In the second factual situation, an employer confronts an
employee with the Hobson's choice of either continuing
to work or foregoing the rights guaranteed to him under
Section 7 of the Act. In such a circumstance, his choice
must be clear and unequivocal and not left to inference.
J. J. Security, Inc.. 252 NLRB 1290 (1980); Henry A.
Young, d/b/a Columbia Engineers International, 249
NLRB 1023 (1980); Martin Arsham Sewing Co., 244
NLRB 918 (1979); Superior Sprinkler, Inc., and William
Augusto d/b/a William Augusto Fire Protection Services,
227 NLRB 204 (1976); and Marquis Elevator Company,
Inc., 217 NLRB 461 (1975).
The facts herein involved are similar to those in three
other Board cases. In Superior Sprinkler, Inc., and Wil-
liam Augusto d/b/a William Augusto Fire Protection Serv-
ices, supra, the respondent unlawfully refused to bargain
with and withdrew recognition from a union. There-
upon, it announced to employees that it was going non-
union and, as a result, employees "quit." The Board con-
cluded that the respondent "offered its employees the
choice of accepting the employer's unlawful repudiation
of its statutory bargaining obligations and working under
unlawfully imposed conditions of employment or quitting
their employment," and that "forcing employees to make
such a choice . .. 'discourages union membership almost
as effectively as actual discharge."' Id. at 210. In Haber-
man Construction, supra, the Board concluded that em-
ployees quit based on their employer's decision to go
"open shop" and no longer pay the union mandated
fringe benefits and that such imposed "intolerable" work-
ing conditions upon their jobs so as to convert the quits
to constructive discharges. 236 NLRB at 86. Finally, in
S. Freedman Electric, Inc., 256 NLRB 432 (1981), the em-
ployer informed employees that respondent was becom-
ing nonunion, that it would no longer recognize the
union, and that they could remain employees ". . . on
Respondent's unilaterally imposed terms . . . or [leave]
.... " The Board concluded that such constituted intol-
erable changes in working conditions which had the
clear effect of discouraging union membership. Id. at
440-441 (discharges of Ingersoll, et al.). This case is, of
course, almost identical to the foregoing. Thus, Oltmanns
informed employees that he was withdrawing recogni-
tion from the Union. joining a nonunion association, re-
ducing employee wages, and instituting his own benefits.
Clearly, the four returning strikers were faced with a
very real Hobson's choice: continuing to work and there-
by giving up their Section 7 rights or quitting. Contrary
to Respondent, I conclude that, in these circumstances,
the alleged "voluntary cessations of work" by Cantwell,
Meeves, Guerra, and Sedivey were, in reality, construc-
tive discharges in violation of Section 8(a)(l) and (3) of
the Act. Freedman Electric, supra, Haberman Construc-
tion, supra: Superior Sprinkler, supra.
The matter of Charles Hartline presents different con-
siderations inasmuch as he voluntarily chose not to
report for work on June 30, awaiting word from Olt-
manns whether Respondent would remain a union con-
tractor. However, I believe he also was constructively
discharged by Respondent in violation of Section 8(a)(1)
and (3) of the Act. Thus, while not attending the meet-
ing that day, he was informed immediately after by em-
ployee Meeves that Respondent had gone nonunion, and
"... I wouldn't work for a non-union company." This
fact was confirmed for Hartline by Henry Espersen in
August 1980 when the latter informed Hartline that he
(Espersen) intended to relinquish his union card because
Oltmanns had gone nonunion. Accordingly, while true
that Hartline never was confronted by Oltmanns with
the choice of working on a nonunion basis or quitting.
given the foregoing, such appears to have been a useless
and unnecessary requirement. Further, the record war-
rants the inference that Oltmanns meant that his terms
for permitting the strikers to return to work be transmit-
ted to Hartline. In these circumstances, Hartline clearly
was aware of his choices and was as much the subject of
a constructive discharge as the four returning strikers on
June 30. J. J. Security. Inc., supra at 1293.
CONCLUSIONS OF LAW
1. Respondent is now and has been at all times materi-
al herein an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The following unit constitutes a unit appropriate for
the purposes of collective bargaining within the meaning
of Section 9(b) of the Act:
All journeymen and apprentice carpenters, carpen-
ter foremen, carpenter general foremen, carpenters
working on Creosote or similar type material, car-
penter sawmen, carpenter welders. pile drivers, pile
driver foremen, millwrights, millwright foremen,
and millwright general foremen employed by Re-
spondent at its jobsites and at its cabinet shop; ex-
cluding all office clerical and professional employ-
ees, guards, and supervisors as defined by the Act.
4. At all times material herein, the Union has been, and
is now, the exclusive bargaining representative of all the
employees in the above-described appropriate unit for
the purposes of collective bargaining within the meaning
of Section 9(a) of the Act.
5. By withdrawing recognition from, and thereby re-
pudiating its obligation to bargain with, the Union, Re-
spondent engaged in conduct violative of Section 8(a)(l)
and (5) of the Act.
6. By unilaterally, without affording the Union an op-
portunity to bargain, changing the terms and conditions
of employment of its carpenter employees, Respondent
engaged in acts and conduct violative of Section 8(a)(l)
and (5) of the Act.
7. By causing the discharge of employees Hartline,
Cantwell, Meeves, Guerra, and Sedivey in order to dis-
courage membership in the Union, Respondent engaged
in conduct violative of Section 8(a)(1) and (3) of the Act.
8. By interrogating prospective employees as to their
membership in the Union, Respondent interfered with,
coerced, and restrained employees in the exercise of
1162
REMODELING BY OLTMANNS, INC
rights guaranteed by Section 7 of the Act and, thereby,
engaged in conduct violative of Section 8(a)(1) of the
Act.
9. Unless specifically found, Respondent engaged in no
other unfair labor practices.
REMEDY
Having found that Respondent engaged in certain
unfair labor practices, I shall recommend that it be or-
dered to cease and desist therefrom and to take certain
affirmative action designed to effectuate the purposes of
the Act. I have found that Respondent violated Section
8(a)(1) and (5) of the Act by withdrawing recognition
from the Union as the collective-bargaining representa-
tive of its carpenter employees. As a remedy, I shall re-
quire Respondent to recognize and bargain in good faith,
upon request, with the Union. In addition, inasmuch as I
also have found that Respondent violated Section 8(a)(1)
and (5) of the Act by unilaterally changing employees'
terms and conditions of employment, I shall require Re-
spondent to revoke, upon the Union's request, any or all
of its unilateral changes which were implemented com-
mencing in mid-June 1980 to make contributions, retro-
active to June 4, 1980, and at the rates then in effect, on
behalf of its carpenter employees to the Union's fringe
benefits funds; and to otherwise, retroactive to mid-June
1980, continue in full force and effect all the then current
terms and conditions of employment 26 until such time
that it reaches agreement or bargains to good-faith im-
passe with the Union or the latter refuses to bargain on
such matters.2? If agreement is reached, it shall be em-
bodied in a signed agreement. Further, I shall order that
all unit employees, hired after mid-June 1980, be made
whole as a result of Respondent's failure to apply to
them the terms and conditions of employment which
were in effect in mid-June 1980. Finally, the question of
interest and other additional amounts payable into the
Union's fringe benefits funds as part of this "make
whole" remedy will be left to the compliance stage of
this proceeding.
I have also concluded that employees Hartline,
Meeves, Cantwell, Sedivey, and Guerra were construc-
tively discharged by Respondent on or about June 30,
1980, in violation of Section 8(a)(l) and (3) of the Act.
Accordingly, I shall order that Respondent offer to each
employee immediate and full reinstatement to his former
position of employment or, if said position no longer
exists, to a substantially equivalent one, without preju-
dice to any rights and privileges to which he may be en-
titled. I shall further recommend that Respondent be or-
dered to make each employee whole for any loss of earn-
ings, including fringe benefit contributions or insurance
losses, subject to verification, he may have suffered as a
result of the discrimination by payment to him of the
2" Such should not bh construed to authorize Respondent. in any way,
to revoke or otherssise retrieve any wages or other benefits which are
greater than those in effect in mid-June 1980.
21 If an) employee suffered losses as a result of Respondent's unilateral
changes With regard to payments to the fringe benefits funds. Respondent
is ordered it, reimburse said individuals in any amount not covered by
other funds or insurance policies. provided that such amount shall not
exceed what the emplo)ee ssould have receised pursuant to the Union's
plan
amount he normally would have earned from the date of
his termination. June 30, 1980, with backpay to be com-
puted in the manner set forth in F. W Woolworth Comntpa-
ny, 90 NLRB 289 (1950), with interest as described in Isis
Plumbing & Heating Co., 138 NL.RB 716 (1962), and
Florida Steel Corporation, 231 NLRB 651 (1977).
Upon the foregoing findings of fact. conclusions of
law, and pursuant to Section 10(c) of the Act, I hereby
issue the following:
ORDER 2
The Respondent, Remodeling by Oltmanns, Inc.,
Omaha, Nebraska, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Refusing to recognize and bargain collectively,
upon request, concerning rates of pay, wages, hours, and
other terms and conditions of employment with Carpen-
ters Local Union No. 400, affiliated with United Brother-
hood of Carpenters and Joiners of America, AFL-CIO,
herein called the Union, as the exclusive representative
for purposes of collective bargaining for employees in
the following unit:
All journeymen and apprentice carpenters, carpen-
ter foremen, carpenter general foremen, carpenters
working on Creosote or similar type material, car-
penter sawmen, carpenter welders, pile drivers, pile
driver foremen, millwrights, millwright foremen.
and millwright general foremen employed by Re-
spondent at its jobsites and at its cabinet shop; ex-
cluding all office clerical and professional employ-
ees, guards, and supervisors as defined by the Act.
(b) Discouraging membership in, or activities on behalf
of, the Union by causing the discharge of employees
who are members of the Union.
(c) Unilaterally, without notice to or bargaining with
the Union, changing the terms and conditions of employ-
ment of the aforementioned employees.
(d) Interrogating prospective employees as to their
membership in the Union.
(e) In any like or related manner interfering with, co-
ercing, or restraining employees in the exercise of their
Section 7 rights.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act:
(a) Recognize and, upon request, bargain with the
above-named labor organization as the exclusive repre-
sentative of all the employees in the unit above with re-
spect to rates of pay, wages, hours, and other terms and
conditions of employment, and, if an understanding is
reached, embody such understanding in a signed agree-
ment.
(b) Upon the Union's request, revoke any or all unilat-
eral changes made effective by Respondent ion and after
28 In the event no exteptlons are filed as prov.ided b, Se, 1(12 4t of
the Rules and Regulations of the National Labor Relationrs Barol, the
findings, conclusions. and recomniended Order herein shall, as provided
in Sec 102.48 of the Rules and Regulations, be adopted by the lBoard and
become its findings. conclusions. and Order, andl all objeclions thereto
shall be deemed waived for all purposes
1163
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
June 9, 1980, with regard to the wages, hours, and other
terms and conditions of employment of all employees in
the appropriate unit described above.
(c) Give retroactive effect to all the terms and condi-
tions of employment in effect as of June 6, 1980, until
such time that Respondent and the Union reach good-
faith impasse, execute a collective-bargaining agreement,
or the Union refuses to bargain in good faith with re-
spect to such matters.
(d) Offer to employees Charles Hartline, Robert
Cantwell, Bill Meeves, Virgil Guerra, and Harley Sedi-
vey immediate and full reinstatement to their respective
former positions of employment, without loss of seniority
or privileges, discharging, if necessary, other employees
who may have been hired or assigned to perform their
functions; or, if their former respective positions do not
exist, to substantially equivalent positions without preju-
dice to their seniority or other rights and privileges.
(e) Make whole the employees specified in paragraph
2(d), above, and all unit employees hired on or after June
9, 1980, for any losses of pay each may have suffered,
respectively, either as a result of the discrimination
against each of them or because of Respondent's failure
to apply to them the terms and conditions of employ-
ment in effect on June 6, 1980, in the manner set forth
above in the section entitled "Remedy."
(f) Pay to the appropriate trust funds the contributions
required as of June 4, 1980, to the extent that such con-
tributions have not been made or that the employees
have not otherwise been made whole for their ensuing
medical and other expenses, and continue such payments
until Respondent negotiates in good faith with the Union
to an agreement, or to good-faith impasse, or until the
Union refuses to bargain.
(g) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, work schedules, production reports and
data, social security payment records, timecards, person-
nel records and reports, and all other records and entries
necessary to determine Respondent's compliance with
this Order and the amount of backpay and other sums
and benefits due under the terms of this Order.
(h) Post at its place of business in Omaha, Nebraska,
copies of the attached notice marked "Appendix."2 9
Copies of said notice, on forms provided by the Regional
Director for Region 17, after being duly signed by Re-
spondent's representative, shall be posted by it immedi-
ately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by Re-
spondent to ensure that said notices are not altered, de-
faced, or covered by any other material.
(i) Notify the 'Regional Director for Region 17, in
writing, within 20 days from the date of this Order, what
steps it has taken to comply herewith.
IT IS FURTHER OltDEIED that the portion of the com-
plaint which alleges that Respondent violated Section
8(aX1) and (5) of the Act by failing and refusing to abide
by the Association's 1980-83 collective-bargaining agree-
ment be dismissed.
2" 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 Relations Board."
1164