Sac Construction Co.

National Labor Relations Board - Board Decisions

Apr 28, 1978

235 N.L.R.B. 1211 (N.L.R.B. 1978)

SAC CONSTRUCTION CO.
SAC Construction Company, Inc. and Broward Coun-
ty Carpenters District Council; The Carpenters
District Council of Miami, Florida and Vicinity;
and Palm Beach County Carpenters District Coun-
cil
United Insulation Co., Inc. and Broward County
Carpenters District Council; The Carpenters Dis-
trict Council of Miami, Florida and Vicinity; and
Palm Beach County Carpenters District Council.
Cases 12-CA-7371-1 and 12-CA-7369-59
April 28, 1978
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY, AND
TRUESDALE.
On November 22, 1977, Administrative Law Judge
Thomas D. Johnston issued the attached Decision in
this proceeding. Thereafter, Respondent SAC Con-
struction Company, Inc., hereinafter Respondent
SAC, filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge2 and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, SAC Construc-
tion Company, Inc., Miami, Florida, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, except that
the attached notice is substituted for that of the
Administrative Law Judge.
IT IS FURTHER ORDERED that the complaint against
Respondent United Insulation Co., Inc., be, and it
hereby is, dismissed in its entirety and that the
complaint against Respondent SAC be, and it hereby
is, dismissed insofar as it alleged unfair labor
practices not specifically found herein.
I Respondent SAC 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 credibili-
ty unless the clear preponderance of all of the relevant evidence convinces
us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91
NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
235 NLRB No. 171
2 In agreeing with the Administrative Law Judge that the Unions
represented a majority of Respondent SAC's employees at times relevant,
we do so solely on the ground that on March 31, 1977, all employees in the
recognized unit were paying dues to the Unions. As there was at that time
no applicable union-security provision, such payment of dues shows without
question that a majority of the unit employees voluntarily supported the
Unions.
On March 13, 1978, Respondent SAC filed with the Board a motion for
leave to file supplemental memorandum to Respondent Employer's brief in
support of exceptions with a copy of the supplemental memorandum
attached. In its motion and memorandum, Respondent seeks primarily to
bring to the Board's attention the Supreme Court's opinion in N.LR.B. v.
Ironworkers Local 103, 98 S.Ct. 651 (Jan. 17, 1978), dealing, inter alia, with
certain aspects of 8(f) contracts. As the motion presents relevant matter not
available at the time Respondent SAC's exceptions and brief were due, it is
hereby granted. However, in view of the basis of our finding that the Unions
represented a majority of Respondent's carpenters, we conclude that the
Court's opinion does not require reversal of the Administrative Law Judge's
Decision.
With respect to the unit, the Administrative Law Judge found appropri-
ate the unit set forth in the complaint covering journeymen and apprentice
carpenters. Such unit description is essentially that set forth in Respondent
SAC's 1966 and other early contracts with certain subdivisions of the
Carpenters union. The parties' most recent agreement, however, covered
"all employees ... performing work under the trade and territorial
jurisdiction of the unions, regardless of the job classifications which the
Employer may use .... " Consequently, in affirming the Administrative
Law Judge's unit finding we construe the appropriate unit as including not
just employees formally classified as journeymen and apprentice carpenters,
but also Respondent's employees perforrmng work within the Union's trade
jurisdiction, with, of course, the customary applicable exclusions.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively with
the Broward County Carpenters District Council;
The Carpenters District Council of Miami, Flori-
da and Vicinity; and Palm Beach County Carpen-
ters District Council, as the representative of our
employees in the appropriate unit described
below by unilaterally failing to make contribu-
tions to the health and welfare, apprenticeship,
and pension fringe benefit plans, or by unilateral-
ly reducing the unit employees wage rates. The
appropriate unit is:
All journeymen and apprentice carpen-
ters employed by the Employer, excluding
all other employees, guards and supervisors
as defined in the Act.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of their right to form, join, or assist
any labor organization, to bargain collectively
through representatives of their own choosing, to
engage in concerted activities for the purpose of
collective bargaining or other mutual aid or
protection, or to refrain from any or all such
activities.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL restore paying the wage rates, as
existed prior to the unilateral change about April
1, 1976, to our employees in the aforesaid unit
and WE WILL make them whole for any losses of
pay they may have suffered by reason of the
change in wage rates, with interest.
WE WILL restore making contributions to the
health and welfare, apprenticeship, and pension
fringe benefit plans as existed prior to the unilat-
eral discontinuance of making these contributions
about April 1, 1976, for our employees in the
aforesaid unit and WE WILL make them whole for
any losses or expenses they may have suffered as
a result of this unilateral change and will pay into
the appropriate trust funds all those contributions
we have failed to pay by reason of the unilateral
change, with interest.
SAC CONSTRUCTION
COMPANY, INC.
DECISION
STATEMENT OF THE CASES
THOMAS D. JOHNSTON, Administrative Law Judge: These
consolidated cases were heard at Miami, Florida, on June
12 - 14, 1977, pursuant to charges filed on September 30,
1976,1 by Broward County Carpenters District Council,
The Carpenters District Council of Miami, Florida and
Vicinity, and Palm Beach County Carpenters District
Council (herein referred to as the Unions) against SAC
Construction Company, Inc. (herein referred to as Respon-
dent SAC) in Case 12-CA-7371-1 and against United
Insulation Co., Inc. (herein referred to as Respondent
United) in Case 12-CA-7369-59 and complaints issued
against each Respondent on April 14, 1977.
The complaint against Respondent SAC alleges that it
violated Section 8(a)(l) and (5) of the National Labor
Relations Act, as amended (herein referred to as the Act),
by refusing to bargain with the Unions as the exclusive
bargaining representative of the employees in the unit by
unilaterally, without notice to or consulting with the
Unions, making changes in the working conditions by
failing to make contributions to the health and welfare,
apprenticeship, and pension fringe benefit plans and by
reducing applicable wage rates of its unit employees.
Respondent SAC in its answer dated April 21, 1977,
which was amended at the hearing, denies having violated
the Act.
The complaint against Respondent United alleges that it
violated Section 8(a)(l) and (5) of the Act by refusing to
bargain with the Unions as the exclusive bargaining
1 All dates referred to are in 1976 unless otherwise stated.
2 Respondent SAC's unopposed motion filed on September 29, 1977, to
correct the transcript is hereby granted.
Respondent SAC's renewed motion filed on September 29, 1977. to
dismiss those allegations of the complaint alleging a refusal to bargain with
Broward County Carpenters District Council and Palm Beach County
Carpenters Distnct Council by making unilateral changes on the grounds its
employees did not perform any work in theirjurisdictions subsequent to the
representative of the employees in the unit by unilaterally,
without notice to or consulting with the Unions, discontin-
uing payments to the health and welfare, apprenticeship,
and pension fringe benefit plans for the unit employees.
Respondent United in its answer dated April 19, 1977,
which was amended at the hearing, denies having violated
the Act.
The issues involved are whether Respondent SAC violat-
ed Section 8(a)(1) and (5) of the Act by unilaterally failing
to make contributions to the health and welfare, appren-
ticeship, and pension fringe benefit plans and by reducing
employees' wage rates; and whether Respondent United
violated Section 8(a)(l) and (5) of the Act by unilaterally
discontinuing payments to the health and welfare, appren-
ticeship, and pension fringe benefit plans.
Upon the entire record2 in these cases and from my
observations of the witnesses and after due consideration
of the briefs filed by the General Counsel, Respondent
SAC, and Respondent United,3 I hereby make the follow-
ing: 4
FINDINGS OF FACT
I. THE BUSINESSES OF THE RESPONDENTS
Respondent SAC, a Florida corporation with its princi-
pal place of business located at Miami, Florida, is engaged
in business as a contractor in the building and construction
industry. During the 12-month period preceding April 14,
1977, Respondent SAC, in the course of its operations,
purchased goods and materials valued in excess of $50,000
from suppliers located in the State of Florida which had
purchased and received them directly from States located
outside the State of Florida.
Respondent United, a Florida corporation with its
principal place of business located at Miami, Florida, is
engaged in business as an insulation subcontractor in the
building and construction industry. During the 12-month
period preceding April 14, 1977, Respondent United, in the
course of its operations, purchased and received goods and
materials valued in excess of $50,000 at its Miami, Florida,
facility directly from outside the State of Florida.
Respondent SAC and Respondent United are each
employers engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Broward County Carpenters District Council; The Car-
penters District Council of Miami, Florida and Vicinity;
and Palm Beach County Carpenters District Council are
labor organizations within the meaning of Section 2(5) of
the Act.
expiration of the collective-bargaining agreement, is hereby denied, since
the Unions, which included these two labor organizations, were the
exclusive bargaining representative of Respondent SAC's employees.
3 The Charging Parties did not submit a brief.
I Unless otherwise indicated the findings are based upon the pleadings,
admissions, stipulations, and undisputed evidence contained in the record
which I credit.
1212
SAC CONSTRUCTION CO.
III. THE UNFAIR LABOR PRACTICES
A. Background
Respondent SAC, located at Miami, Florida, is engaged
in business as a contractor in the building and construction
industry, building commercial type buildings. Stanley
Cohen is its president.5
Respondent United, located at Miami, Florida, is en-
gaged in business as an insulation subcontractor in the
building and construction industry and performs thermal
insulation. Norman Jansik is its general manager.6
Both Respondent SAC and Respondent United were
parties to a written collective-bargaining agreement (herein
referred to as the master agreement) between the Unions
and various employer associations. 7 The master agreement
by its terms was effective from April 1, 1972, to March 31,
1975. A written extension of the master agreement between
the Unions and employer associations contained the
effective dates April 1, 1975, to March 31, 1976. Respon-
dent SAC signed the master agreement on August 1, 1972,
and its extension on July 2, 1975. Respondent United
signed the master agreement on October 9, 1972, and its
extension on August 6, 1975.
Prior to the master agreement Respondent SAC had
been a party to two successive collective-bargaining agree-
ments between The Carpenters District Council of Miami,
Florida and Vicinity (herein referred to as the Carpenters
District Council), and the South Florida Chapter, the
Associated General Contractors of America, Inc., and the
Builders Association of South Florida. The original agree-
ment which contained the effective dates May 17, 1966, to
March 31, 1969, was signed by Respondent SAC on May
26, 1966,8 and the latter agreement, which contained the
effective dates from April 1, 1969, to March 31, 1972, was
signed by Respondent SAC in July 1969.
B. The Bargaining Units and the Unions' Majority
Status
The complaints allege and Respondent United admits as
to itself that the appropriate bargaining units of each
Respondent SAC and Respondent United are as follows:
All journeymen and apprentice carpenters employed by
the Employer, excluding all other employees, guards
and supervisors as defined in the Act, constitute a unit
appropriate for the purpose of collective bargaining
within the meaning of Section 9(b) of the Act.
The bargaining unit, as defined in the master agreement,
consists of those employees performing work within the
5 President Cohen is a supervisor under the Act.
6 General Manager Jansik is a supervisor under the Act.
7 These employer associations included Broward Builders Exchange,
Inc.; The Associated General Contractors of Amenca, Inc., South Florida
Chapter, Broward Division; The Associated General Contractors of Amen-
ca, Inc., South Florida Chapter; Builders Association of South Florida;
Piledriving Contractors Association, Florida East Coast Chapter; Carpet
Association of South Flonda; Drywall Contractors Association of South
Florida; Dade County Acoustical and Flooring Contractors Association;
Home Builders and Contractors Association of Palm Beach County, Inc.;
and The Associated General Contractors of America, Inc., Florida East
Coast Chapter.
trade and territorial jurisdictions of the Unions. Under the
prior collective-bargaining agreements Respondent SAC
had with the Carpenters District Council the bargaining
unit was also comprised of carpenters performing work
within the territorial area of those agreements.
Prior to the expiration of the master agreement on March
31 both Respondent SAC and Respondent United with-
drew from the multiemployer bargaining unit.9 However,
following the expiration of the master agreement, both
Respondents continued to perform the same type work that
existed prior to its expiration.
Respondent SAC at the time of the expiration of the
master agreement on March 31 employed nine employ-
ees 10 in the bargaining unit, all of whom were paying union
dues. Three of those employees, in addition to the three
who were identified as being superintendents, continued
working for Respondent SAC after the master agreement
had expired.
Respondent SAC, prior to the expiration of the master
agreement, also employed employees classified as laborers,
operating engineers, and ironworkers and had collective-
bargaining agreements with their respective unions. The
collective-bargaining agreement with the operating engi-
neers expired on March 31 and after April I Respondent
SAC did not have collective-bargaining agreements with
any of those other labor organizations.
Since April I, Respondent SAC has not had any job
classifications for its employees, who now perform all
phases of construction work including those duties previ-
ously performed by the journeymen and apprentice car-
penters in the bargaining unit such as form work, framing,
trimming, and cabinet work. At the time the hearing was
held in July 1977, Respondent SAC employed approxi-
mately 20 field employees, 2 office clerical employees, 2
bookkeepers, and an estimator. Included in the field
employees were two or three employees who had previous-
ly been classified as carpenters before the master agree-
ment expired.
Respondent United, since about July 18, 1975, has only
employed one employee in the unit, Sam Minisall, who has
been classified as a carpenter and who was also paying
union dues when the master agreement expired. Besides his
part-time carpenter duties, which consist of blowing insula-
tion into attics and putting in batts and rolls, he also
performs work that laborers hired by the Company
perform such as unloading boxes, delivering materials, and
cleaning roofs." The laborers have not been included in
the bargaining unit. Their number and the duration of their
employment vary. In April Respondent United employed
two laborers, a supervisor who also served as a salesman, a
secretary, and Minisall.
8 According to President Cohen at the time the orginal collective-
bargaining agreement was executed Respondent SAC did not employ any
carpenters.
9 Respondent SAC timely withdrew and the complaint does not allege,
nor does the General Counsel contend, that Respondent United's withdraw-
al was unlawful.
'o President Cohen stated three of them, namely, Tony Manfra, Paul
Moshanko, and Frank Wheatley, were superintendents.
1i The contnbutions made to the trust funds by Respondent United on
Minisall's behalf only included those hours for which he performed
bargaining unit work.
1213
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Manager Jansik attributed the reduction in the
number of carpenters previously employed by Respondent
United to a decline in business since 1973 and the loss of
two big accounts; namely, F. and R. Builders and Babcock
Company; and at the time the hearing was held in July
1977, he did not anticipate hiring any carpenters in the
near future.
C. The Unilateral Changes Regarding Wage Rates
and Contributions to the Trust Funds
The master agreement provided, inter alia, for the wage
rates to be paid to the unit employees and for contributions
be made on their behalf by the employers for health and
welfare, apprenticeship, and pension benefits. These contri-
butions were payable to various trust funds 12 administered
by the Florida Administrators, Inc.
Since about April 9, Respondent United, without notice
to or consulting with the Unions, discontinued making
payments to the health and welfare, apprenticeship, and
pension fringe benefit plans. The last contribution it made
on behalf of its only employee in the unit, Minisall, which
was credited to his account by Florida Administrators,
Inc., was for the week ending April 9 after the master
agreement had expired on March 31.
According to General Manager Jansik the first contact
Respondent United had with the Unions about a new
collective-bargaining agreement occurred in late July or
early August when Paul Walker, a business agent for the
Carpenters District Council, informed him they had a new
agreement and had worked out a special agreement at a
lower rate for home building. After first informing Walker
they had withdrawn from the Union, he told Walker there
was no use in talking because he did not have the money to
pay the fringe benefits and if he did he would have to let
his one carpenter go. During a subsequent meeting with
Walker held about early October he informed Walker,
pursuant to his inquiry, that he had looked over a copy of
the new collective-bargaining agreement,13 which Walker
had furnished him, and stated he could not afford to pay
his carpenter the money and fringes. When Walker replied
he could not do anything about the fringes, he told Walker
he did not have any money and if he had to pay that he
would fire the man and get a cheaper man.
Mario Alleva, business representative of the Carpenters
District Council, acknowledged about September he had
asked Walker, who did not testify, to contact Respondent
United about getting it to sign one of their agreements. He
also denied any representative of Respondent United ever
tried to arrange for negotiations or made any offers about a
new agreement.
12 These trust funds include Broward County Carpenters health and
welfare fund; South Florida Carpenters health and welfare trust fund;
Broward County Carpenters pension trust fund; South Florida Carpenters
pension trust fund; Palm Beach County Carpenters pension - annuity trust
fund; Palm Beach County Carpentersjoint apprenticeship and training trust
fund; Broward County Carpenters joint apprenticeship and training trust
fund; and the South Florida Carpenters joint apprenticeship and training
trust fund.
13 The new master agreement executed between the Unions and the
various employer associations was effective by its terms from April I, 1976,
to March 31, 1979.
14 According to President Cohen the last time Respondent SAC
performed work in Broward County was 4 or 5 years ago.
Respondent SAC ceased making contributions to the
health and welfare, apprenticeship, and pension fringe
benefit plans the payroll period ending March 30. It did
not inform the Union either before or after the expiration
of the master agreement that it intended to cease paying
these contributions.
Respondent SAC, which did not perform work in
Broward County 14 or Palm Beach County, performed
work in Dade County, which was within the jurisdiction of
the Carpenters District Council and the contributions
which it had made on behalf of its employees were made to
the South Florida Carpenters health and welfare fund; the
South Florida Carpenters pension trust fund; and the
South Florida Carpenters joint apprenticeship and training
trust fund.15
Following the expiration of the master agreement on
March 31, those journeyman carpenters and apprentices
employed by Respondent SAC in the bargaining unit prior
to the expiration of the agreement, who continued working
after the expiration, received their same wage rates al-
though they performed other duties besides their carpentry
duties. However, other employees who were then assigned
to perform those carpenter duties previously performed by
the unit employees, along with other types of work as well
as new employees hired to perform such work in addition
to their other work, were not paid the wage rates set forth
in the expired master agreement for bargaining unit
employees and some were paid less. The wage rates of
employees hired since then are determined on the basis of
skills and ability, notwithstanding their duties include work
previously performed by bargaining unit employees.
Gerald Murphy, who had been previously employed by
Respondent SAC as a journeyman carpenter and a mem-
ber of the bargaining unit prior to the expiration of the
master agreement, was rehired by Respondent SAC and
worked during the period August through October. Al-
though Murphy, with a few exceptions, like working on
steel doors, continued to do the same type work that he had
when he was previously employed, he was only paid a wage
rate of $7.50 an hour which was below the wage rate
specified in the expired master agreement. Murphy, upon
being rehired on August 4, by Supervisor Lloyd Thomas,' 6
was told by Thomas the Company was then nonunion.
Respondent SAC's President Cohen' 7 testified the first
conversation he had with any official of the Unions about a
new collective-bargaining agreement occurred in the mid-
dle of March 18 when he had a conversation with William
Oliver, prior to a trust meeting held at the office of Florida
Administrators, Inc. Cohen stated that upon informing
Oliver he had withdrawn from negotiations last December
is Under the master agreement contributions were sent to Florida
Administrators, Inc., and then paid over to the appropriatejoint trust funds
operating within the area where the work was performed by the employees
for whom such contributions were made.
16 Supervisor Thomas, who did not testify, is a supervisor under the Act.
i? President Cohen served as a trustee on the South Florida Carpenters
health and welfare trust fund and the South Florida Carpenters pension
trust fund from 1966 through April 1976 and held the position of assistant
vice president and also served on the collection committee. He also served
as a trustee on the South Florida Carpenters joint apprenticeship and
training trust fund for 2 years.
18 President Cohen first placed the conversation as occurring towards the
end of March.
1214
SAC CONSTRUCTION CO.
but still had not heard from the Union about negotiating
an individual contract, Oliver's response was that he really
expected him to sign the master agreement when it was
finally negotiated by the associations. After telling Oliver
he had no intention of signing it and his purpose of
withdrawing was to negotiate an individual contract with
them and he wanted to do it then, Oliver indicated there
was just going to be one contract and that was the contract
negotiated with the associations. Cohen, when later repeat-
ing this same conversation, made no reference to the latter
remark which he had attributed to Oliver.
William Oliver 9 denied ever engaging in any negotia-
tions with Cohen or telling him the only agreement he
could get from the Unions was the master agreement.
According to Oliver sometime prior to Cohen resigning as
a trustee, Cohen told him he did not think his company
and the Carpenters District Council were going to reach an
agreement.
Business Representative Alleva of the Carpenters Dis-
trict Council, by letter dated March 24, informed President
Cohen, as follows:
We received your letter which we interpret as a
request for individual collective bargaining negotia-
tions. By that I take it that you mean that you do not
wish to be bound by the results of negotiations with any
contractor associations.
Since we have received several letters such as yours,
we are taking the liberty of scheduling our first
negotiation session with you and others at 9:30 a.m.,
Wednesday, March 31, 1976, in the upstairs meeting
room of Local Union 1509, 2956 N.W. 17th Avenue in
Miami.
Please be assured that we are in agreement that you
will not be bound by any collective bargaining agree-
ment except one agreed to by you or your specifically
designated agent.
To the extent possible, representatives of the other
Unions named in your current contract with us will
also be present.
President Cohen responded by letter dated March 30
informing Business Representative Alleva he had a previ-
ously scheduled meeting for March 31 but would be happy
to meet with Alleva at his convenience.
President Cohen did not attend that meeting which was
held and attended by five other contractors.
President Cohen testified that on April 6 Paul Fortini,
who is a business agent for the Carpenters District Council,
came to his office and informed him the associations and
the Union had come to an agreement and told him he
expected him to sign it. Upon replying he had withdrawn
for the purpose of negotiating a separate agreement,
Fortini told him there would be no separate contracts and
the only contract that would be signed by the Union would
be the master agreement. He informed Fortini, pursuant to
his inquiry, that he could not afford to pay the fringe
is William Oliver held various positions with the Carpenters District
Council, including fringe benefit coordinator, trustee, and member of the
executive committee. He also served as a member of and chairman of the
South Flonda Carpenters health and welfare trust fund and the South
Florida Carpenters pension trust fund for about 6 years.
benefits or sign the agreement and could not get any work
if he continued to pay those wages which ruled him out of
the competitive market. According to Cohen, Fortini also
told him he could not sign a separate contract with him
because of the most favored nations clause.2
Business Agent Fortini, who did not believe he met with
President Cohen on April 6, denied ever telling Cohen the
only agreement he could sign was the master agreement.
President Cohen testified that, following this conversa-
tion with Business Agent Fortini on April 6, he had further
conversations about April 26, May 21, June 30, July 1, two
in October, and on November 11 with various representa-
tives of the Carpenters District Council, including William
Oliver, Paul Fortini, Paul Quillan, who is a business agent
for the Carpenters District Council, and Ralfred Under-
wood, who is a delegate to the Carpenters District Council,
during which they informed him the only agreement the
Unions would sign was the new master agreement and the
most favored nations clause prohibited them from signing
any other agreement.
Fringe Benefit Coordinator Oliver, Delegate Under-
wood, and Business Agents Fortini and Quillan all denied
making the statements attributed to them by President
Cohen. They also denied having authority to negotiate
collective-bargaining agreements.
The Unions, by letter dated September 9 to President
Cohen, informed him it had negotiated a new master
agreement with the associations which no longer bargained
for him and enclosed a copy of that agreement for his
approval.
The letter further provided, in pertinent part, as follows:
If you are unwilling to accept this Collective Bar-
gaining Agreement, please notify us of that fact and we
will arrange to meet with you for the purpose of
negotiating a new Agreement. In that event, of course,
your prior Collective Bargaining Agreement with these
Unions will continue (as it has since April 1, 1976),
until the new Agreement is worked out or until impasse
in negotiations.
In any event, because we have consummated negoti-
ations for a new Agreement with the Associations, we
are anxious to reach final agreement with you also.
President Cohen responded by letter dated September 21
notifying the Unions in pertinent part as follows:
I am not willing to accept the Collective Bargaining
Agreement as you have prepared it. If you wish to
negotiate with me I am available to meet with you at
your convenience.
President Cohen testified that while attending a Miami
City commission meeting about the middle of January
1977, Business Representative Alleva asked him when he
was going to sign the contract. Upon replying to Alleva
they had to talk about a contract, Alleva indicated there
2 The new master agreement, as had the expired master agreement.
contained a more favorable agreement provision giving employers under
certain conditions the right to receive any more favorable benefits contained
in collective-bargaining agreements the Unions executed with other employ-
ers.
1215
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were two different contracts other than the master agree-
ment he could sign - the chop agreement and the restart
agreement.2 ' After telling Alleva the restart agreement was
for a specific type job, such as foreclosed or distressed
properties and the chop agreement was only for residental
work, neither of which types work he did and they did not
pertain to him, Alleva said the only contract to be signed
was the master agreement. Under cross-examination, Co-
hen, contrary to his direct testimony, denied telling Alleva
they had to talk about a contract and acknowledged the
restart program may not have been in effect.
President Cohen further testified that at a county
commission meeting held some weeks later and again at a
fund raising affair held on June 23, 1977, he had similar
discussions with Alleva.
Business Representative Alleva denied having such
discussions with President Cohen at these meetings or
making the statements attributed to him by Cohen.
Based on the testimony of Business Representative
Alleva, Fringe Benefit Coordinator Oliver, Delegate Un-
derwood, and Business Agents Fortini and Quillan, I credit
their denials that they made the statements attributed to
them by President Cohen concerning the master agree-
ment. Apart from my observations of the witnesses in
discrediting Cohen, he not only contradicted his testimony
but also his reasons given infra for making the unilateral
changes involved here do not appear plausible.
On December 13,22 Attorney Dave Kornreich, who
represented First Florida Corporation, had a conversation
with Business Agnet Fortini about getting First Florida
Corporation to sign a new collective-bargaining agreement
with the Unions. According to Kornreich, who also served
as labor counsel for Respondent SAC but was not
authorized at the time to negotiate for it, he informed
Fortini that besides representing First Florida Corporation
he also represented other companies, including Respon-
dent SAC. After telling Fortini all the companies wanted to
negotiate with the Carpenters Union on some kind of a
reasonable basis, Fortini told him they had a master
agreement which he would like to get signed. His response
was that the master agreement was not acceptable and
those companies all needed relief from the wage and fringe
package in the master agreement. Fortini mentioned they
could have a residental carpenters agreement, whereupon
he informed Fortini the companies he had named, includ-
ing Respondent SAC, were not residental contractors and
it would not benefit them. Upon asking Fortini about
negotiating project agreements, Fortini's response was that
they were not acceptable and they could not have them
except in limited situations, giving examples. Kornreich
stated he then mentioned to Fortini that small commercial
agreements had been raised in negotiations and he thought
they could solve the problems for a number of contractors,
including the ones he had named, and suggested that a
$300,000 or $350,000 permit value cutoff figure could
apply. Fortini's response was that he had no right to
change the contract; he said they had negotiated a contract
21 The chop agreement and the restart agreement were types of
collective-bargaining agreements the Unions executed with employers other
than the new master agreement.
22 The unfair labor practice charge in this matter had already been filed
against Respondent SAC.
with the AGC which had a wage and fringe benefit rate
and that was it.
Under cross-examination Kornreich stated that it was his
recollection Fortini had grouped the companies together
and that after that they had talked about all the companies.
However, he acknowledged they never discussed any
specific names after the introduction. Kornreich stated he
believed Fortini had said something to the effect, but he
could not recall exactly, that they would like to get them all
signed up. Kornreich also acknowledged Fortini had
mentioned the chop agreement, whereupon he told the
people named were not residental contractors and it would
be of no benefit to them. Kornreich acknowledged he had
not asked Fortini who could negotiate a different contract.
Business Agent Fortini's version was that he had contact-
ed Attorney Kornreich, at the suggestion of Mr. Bryner of
First Florida Corporation, about arranging a meeting for
all the parties, including Business Representative Alleva,
for contract talks regarding First Florida Corporation.
During the conversation Kornreich mentioned certain
employers were receiving the commercial master agree-
ment at a lesser scale than that provided in the master
agreement, which he denied he was aware of. When
Kornreich asked whether he knew of any small commercial
agreements signed by various contractors, he also denied
having any knowledge. Kornreich mentioned the major
stumbling block for First Florida Corporation was the
fringe benefits. On direct examination Fortini stated he
also believed Kornreich asked if he had the power to
change the agreement, whereupon he told him he did not
but that Business Representative Alleva had that power.
Fortini denied either he or Kornreich mentioned Respon-
dent SAC or any other company besides First Florida
Corporation.
Under cross-examination Fortini, contrary to his direct
testimony, denied having told Kornreich that he had no
authority to change the master agreement or that only
Alleva had the authority to change it, claiming the question
was never raised. He also acknowledged Kornreich may
have mentioned other companies, although he did not
recall it.
I credit Attorney Kornreich's version of the conversa-
tion, as I find Kornreich was a more credible witness than
Fortini. Besides my observations of the witnesses, Fortini
contradicted his own testimony.
President Cohen, who denied engaging in any negotia-
tions with the Unions after his conversation with Business
Agent Fortini on April 6, gave as his reasons for discontin-
uing the fringe benefit contributions: it was unlawful in the
absence of a written contract to make such contributions;
since the Unions had said there would be no agreement
other than the master agreement an impasse had been
reached on April 6 whereby he was not required to make
such payments; and because of financial reasons.23
During the hearing evidence discussed infra was submit-
ted regarding the issue of whether employers were required
23 A financial statement submitted for Respondent SAC for the year
ending June 30 shows it suffered a net income loss of $276,565 for that year.
1216
SAC CONSTRUCTION CO.
to make contributions to the trust funds absent a written
collective-bargaining agreement.
William Oliver, as fringe benefit coordinator for the
Carpenters District Council, sent a letter to employers
dated July 29, 1975, advising them, in pertinent part, as
follows:
We have received contributions on your Employees
for work performed after April 1, 1975.
The Taft-Hartley Law requires that in order to make
contributions to an Employee Benefit Fund you must
be signatory to the Agreement which establishes said
Fund.
As you know, our Collective Bargaining Agreement
expired March 31, 1975, and a one-year Extension and
Amendment was negotiated. In order for the Funds to
accept the contributions from your Company, we must
have the Extension and Amendment signed.
Enclosed with these letters were the extension and
amendment for their signatures.
Respondent United's general manager, Jansik, received a
copy of this letter from Oliver and Respondent SAC's
President Cohen saw a copy of the letter at a meeting of the
trustees held in August 1975, at which Oliver told them he
had sent the letter to employers who had not signed the
agreement.
Oliver explained the purpose of the letter was to get those
employers who they previously had agreements with, and
were continuing to make contributions, to execute a new
master agreement. He denied the Unions had refused to
accept any contributions from those employers.
Another letter dated November 3, addressed to Wads-
worth & Sabrice General Contractors from Leslie Harring-
ton, who was the fringe benefit coordinator for the
Broward County Carpenters Trust Fund, provided as
follows:
We have been unable to secure a signed agreement
from your company. We must therefore notify Florida
Administrators (the escrow agent for our trust funds)
not to accept any further contributions on your behalf.
We are also notifying any and all of your employees of
such action, as they will lose their Health & Welfare
and Pension benefits if they remain on your payroll.
Fringe Benefit Coordinator Harrington stated he sent the
letter on the instructions of Michele Gergora, who is the
business manager of the Broward County Carpenters
District Council.
According to Harrington, Wadsworth & Sabrice General
Contractors had been a party to the master agreement
which expired on March 31 and had continued to make
contributions to the trust fund after it expired. These funds
were sent by him to Florida Administrators, Inc. The
policy of the Broward County Carpenters Trust Funds as
stated by Harrington was to continue accepting contribu-
tions from employers who had not signed a collective-
bargaining agreement until such time as an impasse had
been reached.
24 These trust agreements involved in that action were not received in
evidence.
On July 2 certain trustees of the Palm Beach County
Carpenters pension - annuity trust fund and the Palm
Beach County Carpenters health and welfare trust fund
filed a complaint for declaratory judgment with United
States District Court for the Southern District of Florida,
West Palm Beach Division, seeking in part to determine
whether they could enforce payments into the funds. The
complaint stated in pertinent part that the petitioners
understood the law to be that payments could not be
accepted into the trust funds 24 from anyone who is not a
signatory to a written agreement, citing Moglia v. Geoghe-
gan, 403 F.2d 110 (C.A. 2, 1968), cert. denied 394 U.S. 919
(1969).
President Cohen stated that it was the policy of the
trustees, regarding these funds for which he was trustee,
that where an employer was not signatory to a current
collective-bargaining agreement with the Unions they
could not collect contributions for those funds. According
to Cohen, Attorney Kaplan, who represented the trust
funds, had repeatedly made them aware of such policy 25
and it was also his understanding of the Moglia decision
that contributions could not be accepted absent signatures.
The only employer Cohen had knowledge of prior to 1976
- that had withdrawn from the multiemployer bargaining
unit and asked for individual negotiations and then failed
to pay the fringe benefits - was J. & R. Forming
Company. Cohen stated that, when its name came up
before the collection committee, on which he served, for
failure to pay contributions, it was decided to wait because
they knew it was going to sign and would pay so that prior
to signing they did not press it for the contributions.
William Oliver, who was chairman of those trust funds,
stated about 1971 or 1972 Attorney Kaplan, in President
Cohen's presence, had said the Moglia case clearly demon-
strated that without evidence of a collective-bargaining
agreement in effect the employer could sue and get the
contributions back, and in order to make contributions to
the fund they needed to be signatory or bound to a
collective-bargaining agreement. Oliver testified that the
policy upon receiving contributions from an employer who
was not signatory to an agreement was for the administra-
tor to notify him as the Unions' fringe benefit coordinator
to get the proper agreement signed.
Regardless of what the policy may have been, during
those periods between the expirations of their collective-
bargaining agreements with the Unions prior to 1976,
various employers, including, among others, Respondent
SAC, Respondent United, and Lotspeich Company, Incor-
porated, continued to pay their contributions into the trust
funds administered by Florida Administrators, Inc., before
they signed new collective-bargaining agreements and the
Unions did not refuse to accept such contributions.
Records maintained by Florida Administrators, Inc., also
show that Respondent SAC made contributions to the trust
funds during these same periods.
Further, since April 1 Lotspeich Company, Incorporat-
ed, which timely withdrew from the multiemployer bar-
gaining unit prior to the expiration of the master agreement
for the purpose of bargaining individually with the Unions,
25 The dates of such conversations were not established.
1217
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as well as other employers who had been parties to the
master agreement, have continued to make contributions
to the trust funds, notwithstanding they did not have
written collective-bargaining agreements with the Unions.
D. Analysis and Conclusions
The General Counsel contends, contrary to denials by
both Respondents, that Respondent SAC violated Section
8(a)(1) and (5) of the Act by refusing to bargain with the
Unions by unilaterally failing to make contributions to the
health and welfare, apprenticeship, and pension fringe
benefit plans and by reducing employees wage rates, and
that Respondent United violated Section 8(a)(1) and (5) of
the Act by refusing to bargain with the Unions by
unilaterally discontinuing payments to the health and
welfare, apprenticeship, and pension fringe benefit plans.
Section 8(a)(1) of the Act prohibits an employer from
interfering with, restraining, or coercing its employees in
the exercise of their rights guaranteed in Section 7 of the
Act. Section 8(a)(5) of the Act prohibits an employer from
refusing to bargain collectively with the representative of
its employees.
The law is well established that unilateral changes of
"wages, hours and terms and conditions of employment"
by an employer obligated to bargain with the representa-
tive of its employees in an appropriate unit violates Section
8(a)(5) of the Act. Master Slack and/or Master Trousers,
Corp., et al., 230 NLRB 1054 (1977). Benefits, such as
payments into health, welfare, and pension funds on behalf
of employees, constitute an aspect of their wages and a
term and condition of employment which, along with wage
rates, survive the expiration of a collective-bargaining
agreement and cannot be altered without bargaining.
Harold W. Hinson, d/b/a Hen House Market No. 3, 175
NLRB 596 (1969), enfd. 428 F.2d 133 (C.A. 8, 1970). This
would also include payments on behalf of employees into
apprenticeship fringe benefit plans.
The findings, supra, establish that, prior to the expiration
of the master agreement on March 31 and Respondent
SAC's withdrawal from the multiemployer bargaining unit,
the Unions had been the representative of and had
successive collective-bargaining agreements covering its
journeymen and the apprentice carpenters in the bargain-
ing unit since 1972 and prior thereto these unit employees
had been represented since 1966 by one of those Unions,
namely the Carpenters District Council. These employees
had been represented separate and apart from its other
employees who had been represented by other labor
organizations. At the time the master agreement expired
Respondent SAC employed six employees, excluding three
superintendents, in the bargaining unit who were all paying
union dues. Three of them continued working for the
Respondent after the master agreement had expired.
Respondent United's journeymen and the apprentice
carpenters in the bargaining unit had been represented
since 1975 by the Unions which had collective-bargaining
agreements covering the unit. However, since July 1975
and following Respondent United's withdrawal from the
26 See Dee Cee Floor Covering Inc. and its Alter Ego and/or Successor,
Dagin-Akrab Floor Covering, Inc., 232 NLRB 421 (1977).
multiemployer bargaining unit and the expiration of the
master agreement it has only employed one employee in
the bargaining unit. That employee, who was paying union
dues, continued working for Respondent United and no
new employees have been hired to perform bargaining unit
work. Its other employees had not been included in the
bargaining unit, nor did they perform bargaining unit
work.
Where an employer has voluntarily recognized a labor
organization as the exclusive bargaining representative of
its employees, the presumption of majority status arising
therefrom continues after its withdrawal from a multiem-
ployer unit and reversion of its original status. Sierra
Development Company d/b/a Club Cal-Neva, 231 NLRB 22
(1977); and Tahoe Nugget, Inc. d/b/a Jim Kelley's Tahoe
Nugget, 227 NLRB 357 (1976).
Based on the foregoing evidence, which establishes that
Respondent SAC had voluntarily recognized the Unions as
the exclusive bargaining representative of its unit employ-
ees, separate and apart from its other employees, and had
successive collective-bargaining agreements covering them,
I find, contrary to Respondent SAC's denials, that the
bargaining unit alleged in the complaint and set forth supra
constitutes a unit appropriate for the purpose of collective
bargaining within the meaning of Section 9(b) of the Act. I
further find, based on the presumption of the majority
status arising from Respondent SAC's voluntary recogni-
tion of the Unions as the exclusive bargaining representa-
tive of the unit employees and successive collective-bar-
gaining agreements covering them, as well as the fact all of
the unit employees employed by Respondent SAC were
paying union dues, that the Unions, at all times material
herein, were the exclusive bargaining representative of the
unit employees employed by Respondent SAC within the
meaning of Section 9(a) of the Act. Respondent SAC's
contention that since the initial collective-bargaining agree-
ment entered into by it in 1966 was a prehire agreement the
presumption of majority status did not apply is rejected.
While prehire agreements do not give rise to a presumption
of a union's majority status,2 6 not only was the execution of
the original agreement in 1966 outside the 10(b) period but
also was executed with the Carpenters District Council
rather than the Unions which have been the recognized
bargaining representative since 1972 and have had succes-
sive collective-bargaining agreements.
The findings, supra, establish that Respondent SAC,
about March 30, without notice to or consulting with the
Unions, discontinued making contributions to the health
and welfare, apprenticeship, and pension fringe benefit
plans. Upon the expiration of the master agreement on
March 31, it also eliminated job classifications for its
employees and, with the exceptions of those unit employees
employed prior to the expiration of the master agreement
who continued to work after the expiration at the same
wage rates, other employees including new hires that were
assigned as part of their duties to perform carpentry work
previously performed by unit employees were not paid at
the same wage rates provided for in the expired master
1218
SAC CONSTRUCTION CO.
agreement for performing such unit work and some were
paid less.
The evidence, supra, also establishes that about April 9
Respondent United, without notice to or consulting with
the Unions, discontinued payments to the health and
welfare, apprenticeship, and pension fringe benefit plans
for its employees in the bargaining unit.
Among other defenses raised by Respondent SAC
besides the appropriateness of the bargaining unit and the
Unions' majority status which have already been rejected,
it further contends an impasse in negotiations with the
Unions was reached on April 6; it could not financially
afford to make the required payments; and, absent a
written collective-bargaining agreement with the Unions,
contributions could not lawfully be made to the health and
welfare, apprenticeship, and pension fringe benefit plans.
Turning first to the issue covering whether an impasse
had been reached, the Board in Taft Broadcasting Co.,
WDAF AM-FM TV 2 7 set forth the following criteria for
determining an impasse:
An employer violates his duty to bargain if, when
negotiations are sought or are in progress, he unilateral-
ly institutes changes in existing terms and conditions of
employment. On the other hand, after bargaining to an
impasse, that is, after good-faith negotiations have
exhausted the prospects of concluding an agreement,
an employer does not violate the Act by making
unilateral changes that are reasonably comprehended
within his preimpasse proposals.
Whether a bargaining impasse exists is a matter of
judgment. The bargaining history, the good faith of the
parties in negotiations, the length of the negotiations,
the importance of the issue or issues as to which there is
disagreement, the contemporaneous understanding of
the parties as to the state of negotiations are all relevant
factors to be considered in determining whether an
impasse in bargaining existed.
Assuming an impasse is reached it is well established that
an employer can only make unilateral changes in working
conditions which are consistent with its rejected offer to a
union after bargaining has reached an impasse. Allen W.
Bird, II, receiver for Caravelle Boat Company, a corporation,
and Caravelle Boat Company, 227 NLRB 1355 (1977).
Having discredited President Cohen concerning his
alleged conversations with Business Representative Alleva,
Fringe Benefit Coordinator Oliver, Delegate Underwood,
and Business Agents Fortini and Quillan about getting a
new collective-bargaining agreement, I find no impasse
had been reached nor had Respondent SAC made any
proposals to the Unions concerning changes in the wage
rates paid to employees performing unit work or about
eliminating its contributions to the health and welfare,
apprenticeship, and pension fringe benefit plans prior to or
after making these changes. The fact that Business Agent
Fortini discussed with Attorney Kornreich about getting
Respondent SAC to sign a new master agreement more
than 8 months after these unilateral changes had been
27 163 NLRB 475, 478 (1967), enfd. 395 F.2d 622 (C.A.D.C., 1968).
2s Sec. 302(cX5XB) of the Act makes illegal payments by an employer to
the representative of its employees except, inter alia, when paid to a trust
instituted could not have been relied on by President
Cohen in taking such unilateral action, nor does it not
detract from such findings.
Insofar as Respondent SAC contends that it was finan-
cially unable to make the required payments such defense
is rejected. The Board has consistently held financial
hardship is no justification for repudiation or modification
of a collective-bargaining agreement or its terms. Phoenix
Air Conditioning, 231 NLRB 341 (1977). While the master
agreement had expired prior to these unilateral changes, as
previously noted those benefits involved here survived the
expiration of such agreement and could not be altered
without bargaining.
The remaining defense regards the legality of making
contributions to the health and welfare, apprenticeship,
and pension fringe benefit plans in the absence of a written
collective-bargaining agreement with the Unions. Here the
evidence establishes that, during those periods between the
expirations of the prior collective-bargaining agreements
before 1976 and the dates various employers, who had been
parties to those agreements including Respondent SAC,
Respondent United, and Lotspeich Company, Incorporat-
ed, signed their new collective-bargaining agreement, they
continued making contributions which were accepted and
credited to those trust funds. Further, since the master
agreement expired on March 31 Lotspeich Company,
Incorporated, which had timely withdrawn from the
multiemployer bargaining unit, along with various other
employers, also continued to contribute to these trust funds
moneys which were accepted and credited without having
a signed new collective-bargaining agreement. Apart from
the fact as here that employers, without having signed
collective-bargaining agreements with the Unions, contin-
ued to contribute to those trust funds which were received
and credited to their accounts, the Board has previously
rejected a similar defense as raised here that Section
302(cX5X)(B) of the Act28 precludes an employer from
making contributions to a trust fund where the collective-
bargaining agreement has expired. Wayne's Olive Knoll
Farms, Inc. d/b/a Wayne's Dairy, 223 NLRB 260 (1976).
The United States Court of Appeals for the Eighth Circuit
in its decision in the Hinson case, cited supra, also rejected
a similar defense. The Moglia case, cited supra, relied on by
President Cohen as one of his reasons for discontinuing the
contributions, involves, unlike the instant case, a declarato-
ry judgment action to obtain pension payments under a
trust fund where the employer had never executed either a
written collective-bargaining agreement or a written trust
agreement and is therefore clearly distinguishable. The
case of Walsh, d/b/a Tom Walsh & Co. v. Schlecht, 429
U.S. 401 (1977), relied on by Respondent deals with the
proper construction of a subcontractor's clause where,
unlike the instant case which I find is distinguishable, the
subcontractor had not been a signatory to the collective-
bargaining agreement. Accordingly, I find this defense to
be without merit.
Based on the foregoing evidence and for the reasons
stated and having rejected Respondent SAC's defenses, I
fund meeting certain requirements including "(B) the detailed basis on
which such payments are to be made is specified in a written agreement with
the employer ...."
1219
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
find that Respondent SAC violated Section 8(aX)() and (5)
of the Act by refusing to bargain collectively with the
Unions as the exclusive bargaining representative of the
employees in the aforesaid unit since about April 1 by
unilaterally, without notice to or consulation with the
Unions, failing to make contributions to the health and
welfare, apprenticeship, and pension fringe benefit plans
and by unilaterally reducing the wage rates of the employ-
ees in the unit.
While the evidence supra establishes that Respondent
United since about April 9, unilaterally and without notice
to or consulting with the Unions, has discontinued pay-
ments to the health and welfare, apprenticeship, and
pension fringe benefit plans, the bargaining unit only
consists of one employee. Moreover, it has employed only
one employee in the unit since July 1975 and does not
presently anticipate hiring any additional employees in the
unit. The Board will not require an employer to bargain in
a unit consisting of only one employee. Stern Made Dress
Co., Inc., 218 NLRB 372 (1975). Therefore, since at all
times material herein Respondent United had a unit
consisting of only one employee, I find that Respondent
United did not violate Section 8(a)(l) and (5) of the Act by
discontinuing payments to the health and welfare, appren-
ticeship, and pension fringe benefit plans as alleged.
The additional defenses raised by Respondent United
that an impasse had been reached and that, absent a
written agreement, contributions could not lawfully be
made to the trust funds are rejected. Here the unilateral
changes occurred months before any discussions with the
Unions about a new collective-bargaining agreement took
place and consequently no impasse could have been
reached prior to discontinuing the payments. The rejection
of the defense that it was unlawful to continue the
payments absent a written agreement is based on those
same reasons set forth supra which I find are applicable
here.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent SAC set forth in section III,
above, found to constitute unfair labor practices occurring
in connection with the operations of Respondent SAC
described in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow
thereof.
CONCLUSIONS OF LAW
1. SAC Construction Company, Inc., and United Insu-
lation Co., Inc., are each employers engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Broward County Carpenters District Council; The
Carpenters District Council of Miami, Florida and Vicini-
ty; and Palm Beach County Carpenters District Council
are labor organizations within the meaning of Section 2(5)
of the Act.
3. All journeymen and apprentice carpenters employed
by Respondent SAC, excluding all other employees, guards
and supervisors as defined in the Act, constitute a unit
appropriate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act.
4. The Unions are now and at all times material herein
have been the exclusive representative of all the employees
of Respondent SAC in the aforesaid unit for the purpose of
collective bargaining within the meaning of Section 9(a) of
the Act.
5. By refusing since about April 1, 1976, to bargain
collectively with the Unions as the exclusive bargaining
representative of the employees in the aforesaid unit by
unilaterally failing to make contributions to the health and
welfare, apprenticeship, and pension fringe benefit plans
and by unilaterally reducing the wage rates of its employ-
ees in the aforesaid unit, Respondent SAC has engaged in
unfair labor practices within the meaning of Section 8(a)(1)
and (5) of the Act.
6. Respondent United did not violate Section 8(a)(1)
and (5) of the Act, as alleged.
7. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent SAC has engaged in
certain unfair labor practices within the meaning of Section
8(a)(Xl1) and (5) of the Act, I shall recommend that it cease
and desist therefrom and take certain affirmative action to
effectuate the policies of the Act. Accordingly, having
found that Respondent SAC about April 1, 1976, unilater-
ally reduced the wage rates of the employees in the
aforesaid unit it shall be ordered to restore those wage rates
that existed prior to the unilateral change and make the
unit employees whole for any losses of pay they may have
suffered as a result of the unilateral change, with interest.
Having found that Respondent SAC about April 1, 1976,
unilaterally discontinued making contributions to the
health and welfare, apprenticeship, and pension fringe
benefit plans for the employees in the aforesaid unit, it
shall be ordered to restore making such payments and
make whole the unit employees for any losses or expenses
they may have suffered as a result of the unilateral change
and to pay into the appropriate trust funds all those
contributions it has failed to pay as a result of the
unilateral change, with interest. Backpay and interest as
herein provided for shall be computed in the manner
prescribed by F. W. Woolworth Company, 90 NLRB 289
(1950), and Florida Steel Corporation, 231 NLRB 651
(1977).29
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
29 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
1220
SAC CONSTRUCTION CO.
ORDER 30
The Respondent, SAC Construction Company, Inc.,
Miami, Florida, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with the Broward
County Carpenters District Council; The Carpenters Dis-
trict Council of Miami, Florida and Vicinity; and Palm
Beach County Carpenters District Council, as the represen-
tative of its employees in the appropriate unit described
below by unilaterally failing to make contributions to the
health and welfare, apprenticeship, and pension fringe
benefit plans and by unilaterally reducing the unit employ-
ees wage rates. The appropriate unit is:
All journeymen and apprentice carpenters employed
by the Employer, excluding all other employees, guards
and supervisors as defined in the Act.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Restore paying the wage rates, as existed prior to the
unilateral change about April 1, 1976, to the employees in
the aforesaid unit and make them whole for any losses of
pay they may have suffered by reason of the unilateral
changes in the wage rates in the manner described in "The
Remedy."
(b) Restore making contributions to the health and
welfare, apprenticeship, and pension fringe benefit plans as
existed prior to the unilateral discontinuance of making
30 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
these contributions about April 1, 1976, for the employees
in the aforesaid unit and make them whole for any losses or
expenses they may have suffered as a result of this
unilateral change and pay into the appropriate trust funds
all those contributions it has failed to pay by reason of the
unilateral change in the manner described in "The Reme-
dy."
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze and determine the amount of backpay
due under the terms of this recommended Order.
(d) Post at its Miami, Florida, facility copies of the
attached notice marked "Appendix." 31 Copies of said
notice, on forms provided by the Regional Director for
Region 12, after being duly signed by Respondent SACs
authorized representative, shall be posted immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent
SAC to insure that said notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director for Region 12, in
writing, within 20 days from the date of this Order, what
steps Respondent SAC has taken to comply herewith.
IT IS FURTHER RECOMMENDED that the complaint against
Respondent United be, and it hereby is, dismissed in its
entirety and that the complaint against Respondent SAC
be, and it hereby is, dismissed insofar as it alleged unfair
labor practices not specifically found herein.
31 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 Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
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