Ruttmann Construction Co.

National Labor Relations Board - Board Decisions

Jun 28, 1971

191 N.L.R.B. 701 (N.L.R.B. 1971)

RUTTMANN CONSTRUCTION 701
Ruttmann Construction Company, and Ruttmann Cor-
poration, Joint Employers and International Union
of District 50, Allied and Technical Workers of the
United States and Canada ' and District 12, United
Mine Workers of America , and United Mine Work-
ers of America ,' Party to a contract . Case 14-CA-
5086
June 28, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
JENKINS, AND KENNEDY
On January 6, 1970, Trial Examiner Louis Libbin
issued his Decision in the above-entitled proceeding,
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices within the
meaning of the National Labor Relations Act, as
amended, and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. The
Trial Examiner also found that the Respondent had not
engaged in and was not engaging in certain other unfair
labor practices alleged in the complaint and recom-
mended that the complaint be dismissed as to those
allegations . Thereafter, the General Counsel, the Re-
spondent, and the UMW filed exceptions' to the Trial
Examiner's Decision and briefs in support thereof.'
The Board has reviewed the rulings of the Trial Ex-
aminer made at the hearing and finds that no prejudi-
cial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial Ex-
aminer 's Decision, the exceptions and briefs, and the
entire record in this case, and does not adopt the
findings, conclusions, and recommendations of the
Trial Examiner for the reasons noted hereafter.
Herein called District 50. The name of the Charging Party is hereby
corrected, in the caption and wherever it appears, to conform to its constitu-
tional change of name
Herein called UMW.
The UMW's request for oral argument is denied, as, in our opinion, the
record and the exceptions and briefs adequately present the issues and the
positions of the parties
The Respondent has filed a motion for leave to file a post-Trial Ex-
aminer's Decision exhibit, consisting of an exchange of two letters between
the Respondent and District 50. The Respondent and UMW contend that
this exhibit is necessary to clarify the record and to correct the Trial Ex-
aminer's findings (at fns. 4 and 8 of his Decision) that the Respondent's
contract with District 50 is still in effect because no notice to terminate was
ever given. The exhibit is submitted to show that such notice was, in fact,
given by each party to the other in letters dated June 2, 1969. The Respond-
ent states that these letters were not introduced during the hearing because
no issue was raised as to the status of the contract after its expiration date
of August 6, 1969. General Counsel does not oppose the receipt in evidence
of the two letters, arguing only that, in any event, this cannot affect the Trial
Examiner's recommended remedy. Accordingly, and particularly in the
absence of any opposition thereto, the Respondent's motion is granted and
the exhibit consisting of the two letters is received in evidence
At issue here is whether Respondent violated Section
8(a)(1), (2), (3), and (5) of the Act when, pursuant to
a contract with Peabody Coal Company whereby it was
to build a concrete storage silo at Shawneetown, Il-
linois, Respondent applied the provisions of a collec-
tive-bargaining agreement it had with the United Mine
Workers rather than a collective-bargaining agreement
it had with another Union, District 50.
The Trial Examiner found that the Respondent's
agreement with District 50, effective from August 6,
1966, to August 6, 1969, was a valid prehire contract
within the purview of Section 8(f) of the Act. He fur-
ther found that by failing and refusing to apply the
District 50 agreement, then in effect, to its employees
at the Shawneetown project, and by executing and ap-
plying an agreement with UMW, including union-
security provisions, to those employees, the Respond-
ent violated Section 8(a)(1), (2), (3), and (5) of the Act.
We disagree.'
In rejecting the Trial Examiner's conclusions we are
persuaded that the agreement the Respondent had with
District 50, whether it be deemed a general prehire
agreement or simply a recognition agreement, is insuffi-
cient to support a finding of a refusal to bargain. More-
over, in the circumstances related hereafter, we con-
clude that a literal interpretation and application of
Respondent's contract with District 50 would ignore
industrial reality and would not effectuate statutory
policy of promoting industrial peace and stability.
The factual context in which this dispute arose is
somewhat unusual. It is undisputed that in setting forth
an invitation to bid on the construction project, Pea-
body specifically stated that "this silo may not be built
by District 50 labor and must be quoted using new
contract UMWA labor." Although Respondent sub-
mitted bids based on both District 50 and UMW rates,
the contract which was awarded to Respondent on
March 11, 1969, specifically stated:
Contractor shall perform all labor with workers
who are either members of the local United Mine
Workers of America union at the work site or with
workers whose union membership will not other-
wise disturb Owner's labor relations with Owner's
workers at or near the work site.
From such background two important considera-
tions emerge. First, that Peabody Coal was willing to
assume higher labor costs rather than risk having labor
trouble with its own employees if employees involved
in the construction were covered by a District 50 con-
tract. Secondly, and as a necessary corollary, it is clear
that Respondent had no option to apply either the
' Contrary to the Trial Examiner , we do not find that our prior decision
in Oilfield Maintenance Co., Inc., 142 NLRB 1384, supports a violation
here. Oilfield primarily concerned the right of a successor-employer to
disavow contracts made by a predecessor with five different unions and
substitute the terms of a contract it had with another union.
191 NLRB No. 136
702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
District 50 or the UMW contract but as a condition to
acceptance of the contract, it had to apply the UMW
contract.
Congress enacted Section 8(f) of the Act in recogni-
tion of special conditions that existed in the construc-
tion industry. These special conditions included the
fact that employers not only needed an assurance that
skilled labor would be available but needed a basis for
estimating labor costs in bidding on construction con-
tracts. Employees, on the other hand, were often denied
the benefits of union representation because of the tem-
porary and sporadic nature of their employment. It is
clear, however, that in enacting Section 8(1) to assist in
resolving such problems, Congress merely permitted
parties to enter into such prehire agreements without
violating the Act. It does not mean that a failure to
abide by such an agreement is automatically a refusal
to bargain. In essence, therefore, this prehire agreement
is merely a preliminary step that contemplates further
action for the development of a full bargaining relation-
ship: such actions may include the execution of a sup-
plemental agreement for certain projects or covering a
certain area' and the hiring of employees who are usu-
ally referred by the union or unions with whom there
is a prehire agreement . These subsequent actions with
respect to District 50 never transpired and a full bar-
gaining relationship between District 50 and the Re-
spondent never reached fruition as to this project or
location.
Moreover, Respondent, through its membership in
the Association of Bituminous Contractors, had
become a party to another general prehire agreement
whereby the UMW was recognized as the exclusive
bargaining representative for employees of members of
the Association. In addition, earlier contracts the Re-
spondent had with District 50 had contained the qua-
lification that such contracts would apply "where feasi-
ble," although the current contract contained no such
qualification. Moreover a literal interpretation of both
the District 50 contract and the contract with the
UMW would mean that irrespective of which union
contract was applied to a particular jobsite, the Re-
spondent would apparently be in violation of one of the
contracts.
In these circumstances and for the reasons previ-
ously stated, we conclude that Respondent's failure to
apply the terms of the District 50 agreement did not
6 With respect to the District 50 agreement, it specifically stated that as
to wages, the "schedule of wages under this agreement, applicable to the
locality and vicinity of Region 35 [of District 50] are attached hereto and
made a part hereof " It further provided that when Respondent "bids on
construction projects outside of the geographical area of Region 35, the
Employer agrees to meet with the properly designated representatives of
`District 50' and negotiate, and predetermine wage rates for all occupations
before commencing work on such construction projects outside Region 35.
" The Shawneetown project was within region 45
constitute a refusal to bargain within the meaning of
Section 8(a)(5).
There remains for consideration whether the ap-
plication of the UMW contract to the Shawneetown
project was, nevertheless, violative of Section 8(a) (1),
(2), and (3) of the Act. Respondent's application of the
UMW contract was in compliance with the contract
requirements set forth by Peabody Coal which was in
turn motivated by Peabody's legitimate concern that
the hiring of District 50 labor or application of its
contract might initiate a labor dispute among its own
employees. In such circumstances, we conclude Re-
spondent's application of the UMW contract was in
accord with its membership in the Association of
Bituminous Contractors which had recognized the
UMW, was routine in nature, and did not constitute
illegal assistance or discrimination within the meaning
of Section 8(a)(1), (2), and (3) of the Act. Those allega-
tions shall, therefore, be dismissed.
ORDER
The allegations of the complaint herein, shall be and
hereby are, dismissed.
MEMBER FANNING, concurring:
The record shows that Respondent and District 50
over a period of years, beginning in 1962, had executed
a number of "exclusive" collective-bargaining agree-
ments. On July 9, 1962, the parties entered into an
agreement terminable after 1 year to cover work at the
Banning #4 mine of the Republic Steel Corporation at
West Newton, Pennsylvania, and Bethlehem Mines
Corporation installation at Ebensburg, Pennsylvania.
On September 4, 1962, they entered into a 1-year agree-
ment to cover work performed "in and around Bowling
Green, Ohio" and all work in "the State of Ohio when-
ever feasible." On April 23, 1963, they entered into a
1-year contract to cover work "in and around Lowell,
Indiana" and "in the State of Indiana whenever feasi-
ble." On June 9, 1963, the parties entered into a 1-year
agreement to cover work performed in the States of
West Virginia, Virginia, and Kentucky "but excluding,
without limitations, all work covered by the U.M.W. of
A. Bituminous Coal Wage Agreement." On August 26,
1963, they entered into a 3-year contract to cover work
"only" in and around Bowling Green, Ohio, and all
work in the "State of Ohio, whenever feasible." On
August 6, 1964, the latter agreement was supplemented
by providing, in part, that "this wage agreement shall
cover all work performed by the employer in any and
all localities throughout the State of Ohio, except where
otherwise agreed upon between the Employer and the
Union." On September 29, 1966, the parties entered
into a 3-year contract to cover work performed "in any
and all localities throughout the United States, except
RUTTMANN CONSTRUCTION
where otherwise agreed upon between the Employer
and the Union."
As the Trial Examiner found , on a number of occa-
sions beginning in 1962 and extending to 1969 the Re-
spondent bid on a number of jobs using employment
rates established by various craft unions affiliated with
the AFL-CIO Building and Construction Trades De-
partment . When successful on the basis of such bids,
Respondent employed members of those unions rather
than District 50 and, while no formal contracts were
signed , Respondent adhered to and maintained the
wages and other conditions of employment specified in
the applicable contracts of the craft unions, including
deductions for and transmittal of pension and insur-
ance funds . At least one such job was performed in
1965 at Anderson , Indiana, during the term of, and in
an area covered by , a District 50 contract.
From the foregoing, several conclusions are clear
with respect to the history of collective bargaining be-
tween Respondent and District 50. First, those con-
tracts which provided for the exclusive recognition of
District 50 appear to have been limited to specific job-
sites. Second , contracts signed in 1962 and 1963 cover-
ing areas wider than a specific location were subject to
the Respondent's unilateral decision not to recognize
District 50 . These contracts were limited by the proviso
that the District 50 contract would be applied "when-
ever feasible." Third, the areawide contract of 1963,
covering West Virginia , Virginia,, and Kentucky, was
limited by the proviso that work covered by the
UMWA was excluded. Fourth , contracts signed in
1964 , covering the State of Ohio , and in 1966, with
which we are here concerned, covering the entire
United States, were limited by a new proviso providing
for coverage except where the parties mutually agreed
not to apply the contract. The limitation upon the cov-
erage of these areawide contracts, whether exercised as
a matter of the employer 's prerogative or applicable by
mutual agreement , indicates that the parties had not
clearly defined a unit of employees in a specific geo-
graphic location for which District 50, and District 50
only, would be the exclusive representative. The most
that can be said of the 1966 contract is that it contem-
plates the prima facie 'applicability of that contract to
any job throughout the United States, but leaves open
for bargaining its coverage at any specific jobsite. Ap-
parently, Respondent desired to retain sufficient flexi-
bility in its bargaining relationship with District 50 so
as not to be deprived entirely of a practice , dating to
1962, of bidding on contracts on the basis of wage rates
established by unions other than District 50.
The events leading to Respondent 's alleged viola-
tions of the Act began in December 1968 when Re-
spondent was invited to bid on the construction of a
coal storage silo at Peabody Coal Company's Mine 90
in Shawneetown, Indiana. The invitation specified that
703
"this silo may not be built by District 50 labor and must
be quoted using new contract UMWA labor." Re-
spondent submitted its bid , quoting labor costs under
both its District 50 agreement and UMW's agreement
with the Association of Bituminous Contractors. The
work was awarded to Respondent on the condition that
it use only UMW members or workers whose union
membership would not disturb Peabody 's labor rela-
tions with its own workers on the site . Respondent
complied with this requirement and applied the wages
and conditions of employment of the UMWA agree-
ment at the Shawneetown project . Without considering
the appropriateness of the unit or the exclusivity of its
coverage , the Trial Examiner found that Respondent
by failing to adhere to the District 50 contract at this
location violated Section 8 (a)(1), (2), (3), and (5) of the
Act. I must disagree . In my opinion , the Trial Ex-
aminer's interpretation and application of District 50's
1966 contract to the Shawneetown project does not
adequately take into consideration the serious flaws in
that contract and the statutory objectives of Section
8(f). I have no hesitancy in agreeing with the Trial
Examiner that Section 8(a)(5) applies to valid prehire
agreements . I fully support the Board 's decision in Oil-
field Maintenance Co., 142 NLRB 1384, on which he
relies, to the effect that where, as there, an 8(f) contract
is unambiguous , exclusive , and limited to a specific
group of employees at a specific geographic location,
the execution of another contract with another union
for the same group of employees is violative of the Act.'
In the circumstances of this case, however, I cannot
find that District 50's 1966 contract is a valid prehire
contract extending to all employees to be hired by Re-
spondent at future unspecified locations and un-
scheduled jobsites . Since all future projects were, by the
terms of the contract, excludable to suit the conven-
ience of the parties, it cannot be found realistically that
that contract clearly and unambiguously covered the
employees at the Shawneetown project. In the last anal-
ysis the validity of a contract under Section , 8(f) must
hinge on the final proviso to that section, permitting
another union to challenge by Board election the
majority status of an incumbent union despite the exist-
ence of the latter's contract. Applied to the instant case,
it is clear that District 50's nationwide unit could not
be challenged, as provided in the proviso to Section
8(f), in any manner other than on a project-by-project
basis. Accepting the congressional purpose of Section
8(f) to facilitate bargaining between unions and em-
ployers in the construction industry by legalizing pre-
hire contracts , surely the reach of this section does not
' In this respect I agree entirely with Member Brown that Congress by
enacting Section 8 (f) did not intend to modify existing law governing the
applicability of Section 8(a)(5) and 8(b)(3) to valid collective-bargaming
agreements See our dissenting opinion in R..T. Smith Construction Co., Inc.,
191 NLRB No. 135, issued simulataneously herewith.
704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
extend so far as to encompass uncertain future catego-
ries of employees not finally and specifically covered by
a written contract.
For these reasons I would dismiss the complaint in
its entirety.
MEMBER BROWN , dissenting:
For the reasons set forth in the dissentingopinion in
R. J. Smith Construction Co., Inc., 191 NLRB No. 135,
I would find, in agreement with the Trial Examiner,
that Respondent violated Section 8(a)(1), (2), (3), and
(5) of the Act by executing a prehire agreement with
UMW and applying it to its employees at the Shawnee-
town project at a time when Respondent already had
a valid and binding agreement in effect with District 50
covering the same employees.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Louis LIBBIN, Trial Examiner: Upon charges filed on
April 25 and July 11, 1969, by International Union of District
50, United Mine Workers of America, herein called District
50, the General Counsel of the National Labor Relations
Board, by the Regional Director for Region 14 (St. Louis,
Missouri), issued a complaint, dated July 8, 1969, against
Ruttmann Construction Company and Ruttmann Corpora-
tion, joint employers, herein singly or collectively called Re-
spondent. With respect to the unfair labor practices the com-
plaint as amended at the hearing, in substance, alleges, and
Respondent's answer denies, that Respondent violated Sec-
tion 8(a)(1), (2), (3), and (5) of the Act by entering into and
giving effect to an agreement with District 12, United Mine
Workers of America, and United Mine Workers of America,
herein sometimes called District 12 or United Mine Workers
or UMW, for part of the same unit covered by a valid agree-
ment which Respondent at that time had with District 50, by
giving effect to the union security provision of said agreement
with UMW and by refusing to hire applicants because they
were members of District 50 rather than UMW.
A hearing was held before me at St. Louis, Missouri, on
September 15, 1969. All parties were given full opportunity
to participate in said hearing. On November 6, 1969, the
General Counsel, the Respondent, and the Party to the Con-
tract filed briefs which I have fully considered. For the rea
sons hereinafter indicated, I find that Respondent has vi-
olated the Act substantially as alleged in the complaint.
Upon the entire record' in the case, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The following facts concerning the relationship of the two
companies, herein collectively called the Respondent, are ad-
mitted. Both companies are corporations which work in the
construction industry with their principal office and place of
business in upper Sandusky, Ohio. They are engaged in the
construction of vertical concrete storage silos for use in the
coal, grain, and other industries throughout the country.
Ruttmann Construction Company specializes in the slip-
' I hereby grant Respondent's unopposed Motion to reopen the record
for the receipt of its Exhibit 23, dated November 6, 1969, and served upon
all parties.
form method of construction; while Ruttmann Corporation
specializes in the jump-form method of construction. Prior to
the formation of Ruttmann Corporation in July 1965, Rutt-
mann Construction Company did both types of construc-
tion.' Both companies have a common office with separate
payrolls and some interchange of employees without change
of payrolls. Both companies have common officers and direc-
tors, interchange work, and have a single labor policy which
affects employees of both corporations. They also have on
occasion jointly entered into collective bargaining agree-
ments.
Upon the above admitted facts, I find, as alleged in the
complaint and contrary to the denial in the answer, that both
companies are joint employers and constitute a single inte-
grated enterprise or employer within the meaning of the Act.'
Respondent's brief does not take issue with such a finding.
During the year ending March 31, 1969, a representative
period of its operations, Respondent performed services
valued in excess of $50,000, for various enterprises located in
States other than the State of Ohio. Upon these admitted
facts, I find, as Respondent's answer also admits, that Re-
spondent is engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
II THE LABOR ORGANIZATION INVOLVED
The parties stipulated, the record shows, and I find, that
at all times material herein the Unions listed in the caption
are each separate labor organizations within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction; the Issues
On August 6, 1966, Respondent and District 50 executed
a 3-year collective-bargaining agreement wherein District 50
is recognized as the "sole bargaining representative" for all
"persons employed" by Respondent who are engaged in
"working with tools" on "all work performed" by Respond-
ent "in any and all localities throughout the United States."
The agreement also contains, inter alia, union security and
checkoff provisions for dues, initiation fees, and assessments.
On December 10, 1968, Respondent became a party to a
union security agreement which United Mine Workers,
herein also called UMW, had executed with the Association
of Bituminous Contractors. This agreement covered the
"construction of mine or mine related facilities ... performed
by the signatories" thereto and recognized UMW as the "ex-
clusive bargaining agency representing the employees" of said
signatories. Respondent then agreed to apply this contract to
its employees who worked on a construction project (the
construction of a reinforced concrete storage silo at Shawnee-
town, Illinois) which Respondent had contracted in early
1969 with Peabody Coal Company. Thereafter, Respondent
applied the UMW agreement with its union security and
checkoff provisions, rather than the District 50 agreement, to
its employees who worked on the Shawneetown project. On
April 25, 1969, applicants for employment, at least one of
whom was a member of District 50, appeared at the project
site and were informed by Otis Bays, an alleged supervisor of
Respondent, that work may be available but that this was a
3 In the slip-form type of construction, the forms are constructed at
ground level and then the materials are slipped up as the concrete is poured.
In the jump-form type of construction, a fixed metal-type form is used for
several courses and then the first course of forms will be set on top of the
last set of the preceding day, so that the forms are jumped as you go up.
' See, e.g., Decker Disposal Inc., and Industrial Disposal, Inc, 171
NLRB 879,882.
RUTTMANN CONSTRUCTION
District 12 job and not a District 50 job. They never returned
to the project.
The principal issue litigated in this proceeding is whether
by the foregoing conduct in 1969, Respondent violated Sec-
tion 8(a)(1), (2), (3), and (5) of the Act, as the General Coun-
sel contends and the complaint alleges. A subsidiary issue is
whether Otis Bays is a supervisor within the meaning of the
Act. There are no issues requiring credibility resolutions, as
the essential facts are undisputed.
B. Allegations with Respect to District 50
and UMW Agreements
As previously noted, Respondent is engaged in the building
and construction industry, constructing vertical concrete
storage silos with either the slip-form or jump-form method
of construction for use in the coal, gram, and other industries
throughout the country. Thus, it has built silos at sites in
Florida, Georgia, Indiana, Illinois, Michigan, Pennsylvania,
Ohio, Virginia, West Virginia, and Kentucky. In addition, it
has unsuccessfully bid on silo construction jobs at sites also
in the States of Colorado, Louisiana, New York, Tennessee,
and Washington. The work at each construction site is in
charge of a general superintendent assigned to that site.
1. Bargaining history since 1962
Prior to the agreements involved in the instant case, Re-
spondent and District 50 had entered into a number of project
and area exclusive recognition agreements, the first of which
was executed on July 9, 1962. On the latter date, Respondent
and District 50 entered into an agreement covering projects
at West Newton and Ebensburg, Pennsylvania. On July 27,
1962, they entered into an agreement covering work "in and
around Bowling Green, Ohio and also ... all work performed
by the contractor in the State of Ohio whenever feasible." On
April 29, 1963, they entered into an agreement covering work
"in and around Lowell, Indiana, and also ... all work per-
formed by the contractor in the State of Indiana whenever
feasible." On May 9, 1963, they entered into an agreement
covering work "in and around coal mining operations, for
and in behalf of coal mining firms or corporations within the
States of West Virginia, Virginia, and Kentucky, but exclud-
ing without limitation, all work covered by the U.M.W. of A.
Bituminous Coal Wage Agreement." On July 27, 1963, they
entered into an agreement covering work "in and around
Bowling Green, Ohio and also ... all work performed by the
Contractor in the State of Ohio whenever feasible." On Au-
gust 6, 1964, they amended this agreement to make its cover-
age applicable to "all localities throughout the State of Ohio,
except where otherwise agreed upon between the Employer
and the Union." On September 29, 1966, retroactive to Au-
gust 6, 1966, Respondent and District 50 entered into a 3-
year agreement with nationwide coverage, the appropriate
unit of which is one of the issues in the instant case. Notwith-
standing the literal nationwide coverage of the latter agree-
ment, Respondent and District 50 entered into a memoran-
dum agreement providing that the terms of "the agreement
dated August 6, 1966... and expiring August 6, 1969.. .
will be in full force and effect in Region 63 to the expiration
date, August 6, 1969."
There is no showing that any of the above agreements
entered into between Respondent and District 50 were ever
preceded by any proof of majority support for District 50
among any of Respondent's employees. Moreover, each year
from February 23, 1962, through August 7, 1969, Respond-
ent has bid on silo construction jobs, utilizing labor rates
established by the agreements of unions affiliated with the
Building and Construction Trades Department, AFL-CIO,
in effect at the respective sites. Of 23 such bids submitted
705
throughout those years, 11 were made during the term of the
nationwide 1966 agreement. Of five jobs actually performed
under the wage rates established by the relevant Building and
Construction Trades agreements, one was performed in 1965
in territory (Anderson, Indiana) covered by Respondent's
April 29, 1963, agreement with District 50, and another was
begun in August or September 1969, at Carleton, Michigan,
and was still in progress at the time of the instant hearing. On
the occasions when the AFL-CIO building trades rates were
applied, Respondent's labor costs admittedly were higher.
2. The 1966 District 50
nationwide agreement
As previously noted, on September 29, 1966, Respondent
and District 50 entered into a 3-year collective-bargaining
agreement, retroactive to August 6, 1966, which provides
that the "Employer agrees that the Union shall be the sole
bargaining representatives for all employees covered by this
Agreement" and which extends the scope of the agreement
to "cover all work performed by the Employer in any and all
localities throughout the United States, except where agreed
upon between the Employer and the Union," with the re-
quirement that "the Employer will, upon the beginning of its
projects, notify the Union of the locality where the work is
being performed." The agreement defines "work" as meaning
"building construction or demolishing and wrecking of build-
ings or any kind of structure and the performance of all the
occupations entering into such work ." It contains a union
security clause which requires membership in District 50 as
a condition of employment and which is applicable to each
nonmember or new employee "on the eighth day" following
"the effective or execution date" of the agreement or the
"beginning of... employment ." With respect to wages, the
agreement states that the "schedule of wages under this
agreement, applicable to the locality and vicinity of Region
35" of District 50 "are attached hereto and made a part
hereof." It further provides that when Respondent "bids on
construction projects outside of the geographical area of Re-
gion 35, the Employer agrees to meet with the properly desig-
nated representatives of' District 50, "negotiate , and prede-
termine wage rates for all occupations before commencing
work on such construction projects outside Region 35, and
shall be attached to and become a part of this agreement."
The agreement was to continue in effect for 3 years and from
year to year thereafter unless a 60-day notice to modify or
terminate were given .' Since the execution of this agreement
on August 6, 1966, Respondent 's employees on all its projects
were represented by District 50 whom Respondent recog-
nized as their bargaining representative and the District 50
union security agreement was applied to the employees on all
projects until Respondent commenced the Shawneetown
project at Peabody Mine 90, the project involved in the in-
stant case.
3. Application of UMW agreement to
Shawneetown project
On December 10, 1968, the UMW and the Association of
Bituminous Contractors, herein called the Association, en-
tered into an agreement covering the "construction of mine
or mine related facilities" and recognizing UMW as the "ex-
clusive bargaining agency representing the employees" of the
Association's members. The agreement contains provisions
for union security, checkoff, and termination not before Sep-
The General Counsel states in his brief that the District 50 agreement
is still in effect because a 60-day notice to modify or terminate "was never
given." The other parties make no contrary contention.
706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tember 30, 1971. This agreement became available to Re-
spondent by its joining the Association and adopting the
UMW-Association agreement.
On December 13, 1968, Peabody Coal Company invited
Respondent to bid on the construction of a reinforced con-
crete storage silo , using the slip-form method, to be built at
Peabody's Mine 90 at Shawneetown, Illinois, beginning in
early Spring 1969. The invitation specifically stated that "this
silo may not be built by District 50 labor and must be quoted
using new contract UMWA labor." Respondent submitted a
bid on February 7, 1969, and quoted labor costs based on
both District 50 and UMW rates. The UMW labor cost was
substantially higher than the District 50 labor cost because of
the higher wage rates set forth in the UMW agreement. On
March 3, 1969, confirmed on March 11, 1969, Peabody Coal
Company awarded the contract for the construction of the
silo at Shawneetown, Illinois, to Respondent. This contract
provided in part that: "Contractor (Respondent) shall per-
form all labor with workers who are either members of the
local United Mine Workers of America union at the work
site, or with workers whose union membership will not other-
wise disturb Owner's labor relations with Owner's workers at
or near the work site."
Work at the Shawneetown project began on March 3, 1969,
and ended on June 27, 1969. Despite the concurrent existence
of Respondent's agreement with District 50, Respondent ap-
plied the terms of the UMW agreement to the Shawneetown
project throughout its duration, requiring employees to be
members of UMW and checking off dues to the UMW. On
April 5, 1969, Iley Pearce, a District 50 International repre-
sentative with jurisdiction over Region 45 (which covers most
of southern Illinois, parts of western Kentucky, and parts of
Missouri), went to Peabody's coal mine 90 in the vicinity of
Shawneetown, Illinois, and asked Newbern, Respondent's su-
perintendent on the jobsite, why District 50 had not been
notified that Respondent was coming in on the Peabody job.
Newbern replied that the work being done there was under
the UMW and that Respondent had to use UMW (District
12) on this project or it would not have been able to get the
contract.
4. Contentions of the parties
The General Counsel contends in his brief that the 3-year
District 50 agreement of August 6, 1966, is not a prehire
agreement but was based on a majority showing; that the
nationwide , employerwide unit covered by this agreement is
an appropriate unit within the meaning of Section 9 of the
Act; that this District 50 agreement is for those reasons a
valid agreement under Sections 8(a) and 8(f)(2) of the Act
and was in effect during the entire period that Respondent
was engaged on the Shawneetown project; that Respondent
was therefore statutorily obligated to apply the terms of said
agreement to its employees on this project because the nation-
wide unit included these employees; and that Respondent's
admitted conduct in entering into and applying the UMW
agreement , instead of the District 50 agreement, to this
project and in enforcing the union security and checkoff
provisions of the UMW agreement against its employees en-
gaged on this project was violative of Section 8(a)(1), (2), (3),
and (5) of the Act. Alternatively, the General Counsel con-
tends that even if the District 50 agreement were to be re-
garded as a prehire agreement and valid only within the
meaning of Section 8(f) of the Act, Respondent's above-
described conduct was equally violative of the same sections
of the Act.
On the other hand, Respondent and the Party to the Con-
tract contend in their briefs that the only basis on which it
could be argued that the Act obligated the application of the
District 50 agreement to the Shawneetown project would be
on "the premise that the agreement validly invests District 50
with the status of exclusive representative `designated ... by
the majority of the employees in a unit appropriate' for the
purposes of collective bargaining" within the meaning of Sec-
tion 9(a) of the Act; that the agreement did not validly so
invest District 50 because it defines an inappropriate unit in
the extension of its scope to "cover all work performed by the
employer in any and all localities throughout the United
States"; that Section 8(a)(5) of the Act therefore did not
obligate Respondent to apply the District 50 agreement to the
Shawneetown project; that said "agreement can only be valid
as a prehire agreement in the building and construction in-
dustry within the purview of Section 8(f) of the Act"; and
that, "as a prehire agreement, it has no" statutory "priority
over any other agreement for application at the Shawneetown
project." Alternatively, they contend that if the unit defined
by the District 50 agreement were found to be an appropriate
unit within the meaning of Section 9 of the Act, then "as a
matter of contract interpretation," the agreement "was not
intended to exclude" Respondent "from applying another
agreement to a construction project where the circumstances
make that course desirable."
5. Analysis and conclusions
As I understand the contentions of counsel for Respondent
and the Party to the Contract, it is their position that a
prehire agreement between an eligible employer and union is
valid under Section 8(f)' of the Act even if the unit defined
in that agreement is an inappropriate unit within the meaning
of Section 9 of the Act. This is the inescapable conclusion
from their contentions that the District 50 agreement covers
an inappropriate unit under Section 9 but is nonetheless a
valid prehire agreement within the purview of Section 8(f) of
the Act. I agree with their position that Section 8(f) validates
a prehire agreement between eligible parties without regard
to either majority designation or the appropriateness of the
unit as defined in Section 9. Therefore, assuming , without
deciding, that the unit defined in the District 50 agreement
is too broad in scope to constitute an appropriate unit within
the meaning of Section 9, I nevertheless find, as they contend,
that it is a valid prehire agreement within the purview of
Section 8(f) of the Act.
Where I part company with them is with respect to their
further contention that there is no statutory obligation upon
the employer who is a party to such a valid prehire agreement
to apply its provisions for the duration of its term but that,
instead, it may, without violating the Act, unilaterally apply
3 In pertinent part that section provides, "It shall not be an unfair labor
practice under subsections (a) and (b) of this section for an employer en-
gaged primarily in the building and construction industry to make an agree-
ment covering employees engaged (or who, upon their employment, will be
engaged) in the building and construction industry with a labor organization
of which building and construction employees are members (not established,
maintained, or assisted by any action defined in section 8(a) of this Act as
an unfair labor organization) because (1) the majority status of such labor
organization has not been established under the provisions of Section 9 of
this Act prior to the making of such agreement ... Provided further, That
any agreement which would be invalid, but for clause (1) of this subsection,
shall not be a bar to a petition filed pursuant to Section 9(c) or 9(e)."
Section 9(a) of the Act in pertinent part provides, "Representatives desig-
nated or selected for the purposes of collective bargaining by the majority
of the employees in a unit appropriate for such purposes, shall be the exclu-
sive representatives of all the employees in such unit for the purposes of
collective bargaining "
Section 9(b) of the Act in pertinent part provides in substance that the
"Board shall decide in each case. the unit appropriate for the purposes of
collective bargaining.
11
RUTTMANN CONSTRUCTION
the provisions of a concurrently existing competing prehire
agreement, subsequently executed with a rival union for all
or part of the same unit. In other words, they contend that
Section 8(a)(5) of the Act does not apply to such prehire
agreements which are valid under Section 8(f) of the Act. I
cannot agree with these contentions. They are based solely on
the fact that such a valid prehire agreement does not "val-
idly" invest the contracting union with the status of exclusive
representative "designated ... by the majority of the em-
ployees in a unit appropriate" for purposes of collective bar-
gaining under the provisions of Section 9 of the Act. Stated
differently, the absence of the very status (that the contracting
union be one which was designated or selected "by the
majority of the employees in a unit appropriate" for collective
bargaining) which Section 8(f) of the Act specifically exempts
in validating the prehire agreement is urged as the basis for
barring the application of Section 8(a)(5) to conduct of the
contracting employer with respect to the same agreement.
This strikes me as somewhat of a circuitous form of reason-
ing. Validating the prehire agreement without majority status
having been established in the manner prescribed in Section
9 but conditioning obligatory application of the terms of the
agreement upon compliance with Section 9 in this same re-
spect, would seem to accomplish a rather ineffectual, if not
meaningless , result, hardly conducive to promoting stable
labor relations in the building and construction industry.
In my opinion, the proscriptions of subsections (a) and (b)
of Section 8 have been left undisturbed insofar as they may
apply to conduct with respect to valid prehire agreements,
except to the extent sanctioned by Section 8(f). Thus, Section
8(f) has not removed the application of Section 8(a)(5) to
valid prehire agreements. All that it has done is to eliminate
the requirement, specified in Section 8(a)(5), that the bargain-
ing representative be one selected pursuant to Section 9(a) of
the Act, i.e., by a majority of the employees in an appropriate
unit. By so doing, it has not emasculated, but rather has left
completely intact, the obligations imposed by Section 8(a)(5)
upon an employer during the term of a valid collective-bar-
gaining agreement , subject, of course, to the final proviso of
Section 8(f) which affords an opportunity to test the appropri-
ateness of the unit and majority status therein through the
petition route at any time during the term of the agreement.
Such a holding will achieve a more meaningful result, will
bring about a more harmonious accommodation of Section
8(f) with the other sections, and will serve the purpose for
which Section 8(f) was designed by accommodating the
unique problems of the building and construction industry to
the basic policies of the Act. The validity of this position is
confirmed by the Board's holdings in Oilfield Maintenance
Co., Inc., etc., 142 NLRB 1384. The facts in that case, insofar
as here pertinent, were that during the term of a valid prehire
agreement which Respondents had executed with the Pipefit-
ters, the Respondent in 1962 executed and applied a union
security agreement with the Oil Workers to the employees
covered by the agreement with the Pipefitters. The Board
held that the Respondents "are bound by that (Pipefitters)
contract until its termination date," subject to the provisions
of Section 8(f), and that Respondents' conduct in executing
and applying the union security agreement with the Oil
Workers violated Section 8(a)(1), (2), (3) and (5) of the Act.'
I find no ment in the efforts to distinguish this case on asserted grounds
which do not serve as the basis for the Board's decision. For example, the
argument is made that the Respondents displaced the Pipefitters after the
Pipefitters agreement had already been applied to the work involved and
that they then applied the Oil Workers agreement to the uncompleted work.
Were this a material factor upon which the Board's decision turned, it would
have held that Respondents were bound by the Pipefitters contract until the
707
In view of my findings and conclusions hereinabove set
forth, I deem it unnecessary to determine the appropriateness
of the scope of the unit defined in the District 50 agreement.
I find that Respondent is bound by the District 50 agreement
until its termination date, subject to the provisions in Section
8(f). By failing and refusing to apply the terms of the District
50 agreement to its employees at the Shawneetown project,
and in the absence of compliance with Section 8(d) of the Act
or any intervening certification, Respondent withdrew its
recognition of District 50 as the bargaining representative of
these employees and thereby violated Section 8(a)(1) and (5)
of the Act. I also find that by executing and applying the
terms of the UMW agreement to the employees at the Shaw-
neetown project at a time when it was statutorily obligated to
recognize District 50 during its contract term, Respondent
unlawfully assisted the UMW in violation of Section 8(a)(1)
and (2) of the Act. I further find that by applying the union
security provisions of the UMW agreement to the employees
at the Shawneetown project under the same circumstances,
Respondent violated Section 8(a)(1) and (3) of the Act.'
C. Allegations with Respect to Refusal
to Hire District 50 Applicants
1. The facts
On or about April 25, 1969, Amos Curry, Richard Patter-
son, and Gene Thompson went as a group to Respondent's
jobsite at Shawneetown, Illinois, to see about obtaining a job
from Respondent on the silo being built there. Curry asked
some of the employees if "the boss was there" and was di-
rected to Otis Bays as "the fellow acting as boss here." Bays,
who was in charge of the project in the absence of Project
Superintendent Newbern, came over and told the group that
Respondent was not hiring that day, that he was just "act-
ing," and that the boss would be back on Monday. Bays
added that "maybe, there may be a chance on Monday" and
told the group to come back on Monday. Curry then asked
if this was a District 50 job or a District 12 UMW job. Bays
replied that it was District 12. Whereupon Curry stated that
he did not think he would be back because he was a District
50 man. Bays then walked away and Curry and the others
left. None of them returned later. Thereafter, Respondent
hired a number of other employees as concrete silo workers.
Curry was a member of District 50 and vice president of
his local. Patterson was not a member of any union at that
time. The record does not disclose Thompson's status in this
respect.
Otis Bays was classified as a "pusher." There were 12
employees on his shift. His immediate superior was Project
Superintendent Newbern. As a "pusher," his duties were to
"direct work" and to "lay out work and assist in directing,
you know, show them how." He had the authority to shift
employees from one job to another, to reprimand them, to
give an employee permission to leave the job, and to recom-
mend the discharge of an employee. Project Superintendent
Newbern left the jobsite for a "couple of hours" about once
a week. On those occasions, Newbern would inform Bays
"how long he would be gone and if there was anything in
particular to do to take care of it." The employees regarded
Bays as a foreman or "boss."
termination date of the project rather than until the "termination date" of
the Pipefitters contract which the Board further found was renewed until
October 1, 1966
' I find that the record does not support the alternative contention that
the District 50 agreement was not meant to preclude Respondent from
applying another agreement to a construction project where circumstances
made that course desirable.
708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Conclusions
The complaint alleges that "on or about April 25, 1969,
Foreman Bays at the Shawneetown project restrained and
coerced employees by telling them that they would not be
hired because of their membership in District 50." It further
alleges that since the above date Respondent has failed and
refused to hire "applicants for employment" Curry, Patter-
son, and Thompson "because said employees were members
of District 50 and were not members of the United Mine
Workers of America."
I find, in agreement with the General Counsel, that Otis
Bays possessed the authority, some of which he in fact exer-
cised, which renders him a supervisor within the meaning of
Section 2(11) of the Act, and that Respondent is responsible
for his acts and conduct. However, in disagreement with the
General Counsel and contrary to the allegation in the com-
plaint, I find that Bays' statements to the above-named em-
ployees on the occasion when they applied for work on or
about April 25, 1969, did not constitute restraint and coer-
cion within the meaning of the Act. Nor am I able to find that
the record supports the further allegation that Respondent
refused to hire these applicants because they "were members
of District 50 and not members of United Mine Workers of
America." Only Curry is shown to have been a member of
District 50. While it is true that under the UMW agreement
employees would have to become members as a condition of
continued employment after the expiration of the 7-day grace
period, the record shows that this did not prevent Respond-
ent from hiring District 50 members. In fact 14 of the em-
ployees on the Shawneetown project were District 50 mem-
bers when they were first employed there, having been
transferred by Respondent from its West Virginia project
where the District 50 agreement was applied. I will accord-
ingly recommend the dismissal of these allegations.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of the
Respondent described in section I, above, have a close, inti-
mate, and substantial relation to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
CONCLUSIONS OF LAW
1. By applying the terms of the UMW agreement, includ-
ing the union security and checkoff provisions, to the em-
ployees at the Shawneetown, Illinois, project at a time when
it was obligated to recognize District 50 and to apply the
District 50 agreement, as detailed in section III B, supra,
Respondent has engaged in unfair labor practices within the
meaning of Section 8(a)(1), (2), (3), and (5) of the Act.
2. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
3. Respondent has not engaged in unfair labor practices
violative of the Act by the conduct of Otis Bays or with
respect to the hiring of those who applied on or about April
25, 1969, for work at the Shawneetown, Illinois, project, as
detailed in section III C, supra.
THE REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices, I will recommend that it cease and desist
therefrom and take certain affirmative action which will effec-
tuate the policies of the Act.
Having found that Respondent unlawfully executed and
applied the UMW agreement to the Shawneetown, Illinois,
project, I will recommend that Respondent withdraw and
withhold recognition from UMW as the collective-bargaining
representative of its employees and to cease giving effect to its
agreement with the UMW unless and until such labor organi-
zation shall have been certified by the National Labor Rela-
tions Board. I will also recommend that, until the termination
date of its agreement with District 50 but subject to the
provisions of Section 8(f) of the Act,' Respondent shall bar-
gain with District 50 and give effect to the terms of its District
50 agreement at all its projects. I will further recommend that
Respondent reimburse-the employees on the Shawneetown,
Illinois, project for dues and initiation fees which they were
required to pay under the terms of the UMW union security
agreement which was applied to that project, with interest at
6 percent per annum.9
[Recommended Order omitted from publication.]
' The District 50 agreement is still in existence by its own terms
' Oilfield Maintenance Co., Inc., supra; Seafarers International Union et
at, 138 NLRB 1142.